Frederick B., In re

Page 338

237 Cal.Rptr. 338

192 Cal.App.3d 79, 39 Ed. Law Rep. 706

In re FREDERICK B., a Minor The PEOPLE, Plaintiff and Respondent, v. FREDERICK B., Defendant and Appellant.

A033578.

Court of Appeal, First District, Division 4, California.

May 27, 1987.

Edward R. Roybal, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

POCHE, Associate Justice.

The issues presented on this appeal from a wardship order concern the status of a public school security guard and his authority to detain a student suspected of being involved with the sale of drugs on a public school campus.

BACKGROUND AND PROCEDURE

Frederick B. was adjudged a ward of the juvenile court in 1982. In June of 1985 a supplemental petition was filed in which it was alleged that Frederick had possessed cocaine and possessed it for sale (Health & Saf.Code, §§ 11350, 11351); possessed marijuana (id. § 11357, subd. (b)); carried a concealed, loaded firearm on the grounds of a public school (Pen.Code, §§ 626.9, 12025, subd. (b), 12031, subd. (a)); and that Frederick "did wilfully and unlawfully resist, delay and obstruct Officer Jeffrey Bartlett, who was then and there a public officer discharging and attempting to discharge a duty of his office." (Id. § 148.)

A jurisdictional hearing was conducted by a referee. After being advised that Frederick had filed a suppression motion pursuant to Welfare and Institutions Code section 700.1, the referee heard the following testimony:

Jeffrey Bartlett testified that he is a "[s]chool police officer" employed by the Richmond Unified School District. His duties include "keep[ing] discipline in the schools, mak[ing] sure no outsiders are on campus, breaking up fights, things of that nature." On June 13, 1985, he was on duty at Richmond High School, where he had been working for about two and one-half months. At approximately 11:20 a.m. Bartlett was leaving a building on the north side of the campus when he observed Frederick, whom he knew to be a student, and Robert B. standing close together exchanging paper currency.

Bartlett approached the two boys and asked them what they had exchanged. Frederick stated that he had given Robert 50 cents. Bartlett, who had "made two detainments for narcotics-related incidents on that end of the campus," responded that he wanted the boys to accompany him to the dean's office to "check[ ] it out." Frederick refused. Bartlett "tried to reason with him, tried to explain that if [Frederick's story was correct], then what is the difficulty in going down to the office and checking it out and clearing up the matter."

Frederick, who was "very obviously nervous," still refused. After several minutes of unsuccessfully trying to persuade Frederick to go to the dean's office, Bartlett used a walkie-talkie to summon another security officer. Upon hearing this, Frederick started to walk away. Bartlett "pursued him and stood in front of him and again ... asked him to come to the office." In Bartlett's words: "At that point he turned away from me and started walking away again. I made the decision then to physically detain him." As Bartlett and another security officer were in the process of bodily restraining Frederick, Bartlett discovered a pistol in the front of Frederick's waistband.

Bartlett further testified that the officers wrestled Frederick to the ground, handcuffed him, and took him to the dean's office. Frederick was then searched. In addition to the firearm--which was loaded--Frederick was found to be carrying a number of baggies containing a white substance, $27 in cash, and a "half-smoked hand-rolled butt of a cigarette."

Richmond Police Officer David Blaisdell testified that he went to the school at about noon; took possession of Frederick and the items; and transported them to jail. The parties stipulated that the white substance in the baggies was cocaine, and that the cigarette contained marijuana and cocaine.

Richmond Police Officer Eva Wilson testified that she was present when Frederick made a statement at about 6 p.m. that night. The substance of the statement was two-fold. First, Frederick admitted that he had purchased the cocaine and intended to sell it. Second, Frederick stated that "he had received the gun for a $25 quantity of cocaine ... and that he kept the gun with him for protection because he was fearful of being robbed."

The only witness called by Frederick was Robert B. He testified that, at his request, Frederick had given him 50 cents for bus fare. They did not exchange cash. Robert testified that he showed Bartlett the coins Frederick had given him, following which Bartlett "said he thought that he had seen us making a transaction, so he wanted to take us down to the Dean's office and make a search." Robert's testimony regarding subsequent events (excluding the office search which he did not observe) did not significantly differ from Bartlett's.

Relying on the recent decision of New Jersey v. T.L.O. (1985) 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, Frederick's counsel argued in support of the suppression motion that Bartlett did not have "rational suspicion" to connect Frederick with unlawful activity. From this premise it was further argued that Bartlett lacked justification for either a detention or a search of Frederick. The referee ruled that reasonable suspicion did exist and therefore denied the motion. The referee thereupon sustained all of the allegations of the supplemental petition with the exception of simple cocaine possession.

At the ensuing dispositional hearing, the referee made an order continuing Frederick's status as a ward and placing him in a county institution for six months. This timely appeal followed.

REVIEW

I

Frederick commences his attack on the referee's denial of his suppression motion by correctly noting that Officer Bartlett was acting as a governmental official; that Bartlett's actions were therefore subject to the Fourth Amendment's protection against unreasonable searches and seizures; and that any violation by Bartlett of that protection would necessitate exclusion of any evidence obtained from such violation in any subsequent judicial proceedings. (See New Jersey v. T.L.O., supra, 469 U.S. 325 at pp. 333-337, 105 S.Ct. 733 at pp. 739-741; In re William G. (1985) 40 Cal.3d 550, 558-561, 567-568, 221 Cal.Rptr. 118, 709 P.2d 1287 [text and fn. 17]; cf. Gordon J. v. Santa Ana Unified School Dist. (1984) 162 Cal.App.3d 530, 208 Cal.Rptr. 657 [exclusionary rule not applicable to school disciplinary proceedings].) But exclusion is presently required only if commanded by force of the United States Constitution. (Cal. Const., art. I, § 28, subd. (d); In re Lance W. (1985) 37 Cal.3d 873, 879, 890, 210 Cal.Rptr. 631, 694 P.2d 744; In re Robert B. (1985) 172 Cal.App.3d 763, 771, 218 Cal.Rptr. 337.) We therefore examine whether Bartlett's actions were reasonable according to federal standards, with reference to California authorities where appropriate.

Both the United States and the California Constitutions have been construed to permit governmental searches of students and their effects if founded upon reasonable suspicion that "the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (New Jersey v. T.L.O., supra, 469 U.S. 325 at pp. 341-342, 105 S.Ct. 733 at pp. 743-744, fn. omitted; accord In re William G., supra, 40 Cal.3d 550 at p. 564, 221 Cal.Rptr. 118, 709 P.2d 1287; In re Robert B., supra, 172 Cal.App.3d 763 at p. 771, 218 Cal.Rptr. 337.) What is at issue here is not a search but a detention. A detention, however, is also governed according to federal law by a variant of the reasonable suspicion test, i.e., whether the detaining officer has reasonable suspicion that the person to be detained has been, is, or is about to be engaged in criminal activity. (United States v. Hensley (1985) 469 U.S. 221, 227, 105 S.Ct. 675, 680, 83 L.Ed.2d 604;United States v. Place (1983) 462 U.S. 696, 702-703, 103 S.Ct. 2637, 2641-2642, 77 L.Ed.2d 110; Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.)

"... The touchstone of ... analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' Terry v. Ohio, 392 U.S. 1, 19 [88 S.Ct. 1868, 1878, 20 L.Ed.2d 889] (1968). Reasonableness, of course, depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S.Ct. 2574, 2579, 45 L.Ed.2d 607] (1975)." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331; see New Jersey v. T.L.O., supra, 469 U.S. 325 at p. 337, 105 S.Ct. 733 at p. 741.) Within this context the countervailing factors have been identified as follows: "Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.... [T]he preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult." (New Jersey v. T.L.O., supra, at p. 339, 105 S.Ct. at p. 742-743; see id. at p. 350, 105 S.Ct. at p. 748 (conc. opn. of Powell, J.).) It has also been recognized that "even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults....' " (Ginsberg v. New York (1968) 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195.)

Numerous California authorities are to the same...