Landry, Shannon Dawn v. The State of Texas--Appeal from Co Crim Ct at Law No 9 of Harris County

Affirmed and Memorandum Opinion filed March 31, 2005

Affirmed and Memorandum Opinion filed March 31, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01254-CR

 SHANNON DAWN LANDRY, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court at Law #9

Harris County, Texas

Trial Court Cause No. 1190522

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 M E M O R A N D U M  O P I N I O N

Appellant Shannon Dawn Landry was charged with misdemeanor possession of marijuana. After the trial court denied appellant=s motion to suppress, she pleaded guilty to the charge and the trial court certified her right to appeal. On appeal, appellant argues the trial court erred in denying her motion because the marijuana was the fruit of an illegal search by Klein School District personnel. Having concluded the search was both justified at its inception and reasonably related in scope to the circumstances initially warranting it, we affirm.

I. Factual Background

A Klein School District (KSD) police officer observed appellant and another Klein High School student returning from an off-campus excursion. Based on his experience, the officer suspected that appellant and her companion had violated school rules by leaving campus without permission. He communicated this information to another KSD officer, Flavia Cook, who then approached appellant and performed a pat-down search. After the search, Cook escorted appellant to an office to meet with Associate Principal Carl Harrod. While there, Cook observed appellant open her purse and Afumble@ through it. Because appellant=s actions caused Cook to fear there may have been a weapon in the purse, she took it from appellant and placed it on Harrod=s desk. Harrod searched the purse for weapons and contraband and discovered marijuana. Appellant was subsequently arrested. The trial court denied appellant=s motion to suppress. She then pleaded guilty to misdemeanor possession of marijuana, and was sentenced to eighteen months= deferred adjudication and a $100 fine. This appeal ensued.

II. Issues and Standard of Review

In three issues, appellant argues the trial court erred in overruling her motion to suppress because Cook did not possess the requisite reasonable suspicion to frisk her and seize her purse, and Harrod=s search of her purse was not justified.

We utilize a bifurcated standard of review in evaluating a trial court=s ruling on a motion to suppress, giving almost total deference to the trial court=s determination of historical facts and reviewing de novo the trial court=s application of the law to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Where, as here, a trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and presume the trial court made the findings necessary to sustain its ruling, so long as the record supports those implied findings. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Kendrick v. State, 93 S.W.3d 230, 233 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

III. Analysis

A. The law of school searches

In New Jersey v. T.L.O., the United States Supreme Court established a two-part test for ensuring a school official=s search of a student abides by the reasonableness requirement of the Fourth Amendment. U.S. Const. amend. IV; New Jersey v. T.L.O., 469 U.S. 325, 336B37 (1985). To satisfy the first prong, the search must be justified at its inception. T.L.O., 469 U.S. at 341. When reasonable grounds exist to suspect that a search will reveal evidence the student has violated, or is violating, the law or school rules, the search is justified at its inception. Id. at 341B42; Coronado v. State, 835 S.W.2d 636, 640 (Tex. Crim. App. 1992). Under the second prong, the search, as actually conducted, must be reasonably related in scope to the circumstances that warranted the search in the first place. T.L.O., 469 U.S. at 341. This requirement is met if the measures used are reasonably related to the objectives of the search and are not excessively intrusive in light of the nature of the infraction and the age and sex of the student. Id. at 342; Coronado, 835 S.W.2d at 640.

 B. Are Cook=s and Harrod=s actions reasonable under T.L.O.?

Appellant argues that because Cook had no information appellant was armed, dangerous, or had been engaged in criminal activity, Cook did not possess the requisite reasonable suspicion to justify the pat-down search or the subsequent seizure of her purse. Appellant also contends Harrod=s search of her purse was not justified because he did not possess information that appellant had been engaged in illegal activity while off campus. We conclude both Cook=s and Harrod=s actions meet T.L.O.=s requirements.

1. The pat-down search of appellant

As noted, another KSD officer advised Cook that appellant was returning from an unauthorized trip off campus during school hours, a violation of school rules. Cook testified that in her experience, students taking such trips often Aare either smoking or they are doing something they shouldn=t be doing,@ and further, that students who leave campus may return with weapons. Like Cook, Harrod also testified that students returning from an unauthorized trip off campus could return with a weapon. Cook further testified that it was school policy to perform a pat-down search of truant students returning to campus. Cook=s knowledge that appellant left the campus without permission and her experience that students who leave campus might return with weapons, establish reasonable grounds that a pat-down search of appellant would reveal evidence she was violating or had violated either the law or school rules. T.L.O., at 341B42; see Coronado, 835 S.W.2d at 641 (holding principal=s pat-down search of student attempting to leave campus without permission was justified for safety reasons); see also Wilcher v. State, 876 S.W.2d 466, 469 (Tex. App.CEl Paso 1994, pet. ref=d) (affirming police officer=s request that student empty his pockets after principal received a report the student possessed a gun at school). Accordingly, we conclude the pat-down search was justified at its inception. T.L.O., 469 U.S. at 341B42.

We next examine whether the pat-down search was reasonably related in scope to the circumstances that originally warranted it, thus satisfying the second T.L.O. prong. Id. Cook testified she performed the pat-down search for officer safety and limited the search to appellant=s outer person. In light of appellant=s age and sex and the nature of the infraction, we conclude the pat-down search was not excessively intrusive. Id. at 342; Coronado, 835 S.W.2d at 640; see also Russell v. State, 74 S.W.3d 887, 893 (Tex. App.CWaco 2002, pet. ref=d) (concluding police officer=s search of appellant=s pocket after appellant was observed Amessing with@ the pocket while in the principal=s office was not excessively intrusive).

Viewing this evidence in the light most favorable to the trial court=s ruling, we hold Cook=s pat-down search was reasonable under T.L.O. Id. at 341B42; Ross, 32 S.W.3d at 855. Appellant=s first issue is overruled.

 2. The search of appellant=s purse

Safety fears also justified the search of appellant=s purse. Cook stated that when appellant began to fumble through her purse, Cook feared for her safety and thus confiscated the purse. In that regard, we find Russell v. State instructive, a case in which a student=s fumbling through his pants pocket also prompted a search by a school principal. 74 S.W.3d at 887. In Russell, the school principal received a report that three students were smoking in the school=s parking lot. Id. at 888. The principal took Russell to her office, where she observed Russell Amessing with@ one of the pockets of his baggy shorts. Id. After Russell refused the principal=s demand that he empty his pockets, the principal asked Gregory Lee, a Richardson Police Officer assigned to the campus, for assistance. Id. at 889. Lee performed a pat-down search of Russell because, in his experience, students who refused to empty their pockets for school administrators Awere hiding something . . . a weapon, marijuana, or cigarettes.@ Id. at 889. The appellate court upheld the search because the facts known to the officer at the time of the search provided a reasonable basis to suspect Russell was in possession of a weapon or contraband. Id. at 893. The court also determined the search was not excessively intrusive, in part because it focused mainly on Russell=s pocket. Id. As in Russell, appellant here focused Cook=s and Harrod=s attention on her purse by opening it and looking through it. Cook=s safety fears were reasonable in light of her knowledge and experience that students who leave campus could possibly return with weapons. See Russell, 74 S.W.3d at 893.

Further, when Harrod searched the purse, he was aware that (1) appellant had violated school rules because she and another student were seen returning to campus after being across the street; (2) students returning from excursions off campus during school hours could return possessing contraband or weapons; and (3) Cook confiscated appellant=s purse for safety reasons because appellant began to examine its contents. We also note that at the hearing on the motion to suppress, appellant=s counsel admitted that the search of the purse met the first prong of T.L.O.

Viewing this evidence in the light most favorable to the trial court=s suppression ruling, we conclude the search of the purse was justified at its inception, meeting the first T.L.O. requirement. T.L.O., 469 U.S. at 341; see also Coffman v. State, 782 S.W.2d 249, 250 (Tex. App.CHouston [14th Dist.] 1989, no writ) (upholding search of student A[b]ased on appellant=s propensity to get into trouble, coupled with the fact that he was in the hall without a pass and returning from an area where thefts had previously occurred@); Russell v. State, 74 S.W.3d at 892B93.

We also hold Harrod=s search was reasonably related in scope to the circumstances initially justifying it. T.L.O., 469 U.S. at 341. Both Cook and Harrod testified that students who left campus without permission sometimes returned with weapons or contraband. Thus, a search of appellant=s purse was reasonably related to the need for the searchCCook=s and Harrod=s concern that appellant had violated the law and school rules by possessing a weapon. Further, the search was limited to appellant=s purse, a measure reasonably related to determining whether appellant possessed a weapon, based on appellant=s examination of the contents of her purse in Cook=s and Harrod=s presence. See Russell, 74 S.W.3d at 893. Additionally, the search was not excessively intrusive because it focused exclusively on the purse. T.L.O., 469 U.S. at 342; Russell, 74 S.W.3d at 893; but cf. Coronado, 835 S.W.2d at 641B42 (holding search of appellant=s vehicle was not reasonably related to determining whether appellant was skipping school). Viewing the evidence in a light favoring the trial court=s ruling, we conclude the second requirement of T.L.O. is met, and the search of appellant=s purse was reasonable. T.L.O., 469 U.S. at 342; see also Russell, 74 S.W.3d at 893. Accordingly, we overrule appellant=s second and third issues.

In conclusion, we hold the trial court did not abuse its discretion in refusing to suppress the marijuana evidence. Accordingly, we affirm the trial court=s judgment.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed March 31, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).