In re I.O.

612 S.W.3d 637

In the MATTER OF I.O., a Juvenile

NO. 01-19-00865-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued October 20, 2020

Alexander Bunin, Chief Public Defender, Harris County, Texas, Nicholas Mensch, 1201 Franklin St., 13^th Floor, Houston, Texas 77002, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Patricia McLean, 500 Jefferson, Houston, Texas 77002, for Appellee.

Panel consists of Chief Justice Radack and Justices Hightower and Adams.

Terry Adams, Justice

This appeal concerns the constitutionality of an administrative search of appellant, I.O., at the middle school he attended. A controlled substance was found on appellant during the search and he was subsequently charged with delinquent conduct; specifically, possession of a controlled substance on school property.¹ After the trial court denied his motion to suppress evidence, appellant entered into a stipulation of evidence. The trial court found that appellant engaged in delinquent conduct and placed him on probation for one year. In one issue on appeal, appellant contends the trial court erred in denying his motion to suppress.

We affirm the judgment of the trial court.

Background

The State filed a petition alleging that appellant engaged in delinquent conduct by possessing a controlled substance on school property. Appellant filed a motion to suppress evidence, which the trial court denied.

Testimony presented at the suppression hearing indicated that, on September 6, 2018, officials at the middle school appellant attended suspended a female student who was in possession and under the influence of a controlled substance. The student initially refused to reveal the source of the controlled substance. But she returned to the school the next morning with her mother and told T. Perkins, one of the school's three assistant principals, that she had received the controlled substance from appellant. Perkins, who did not testify at the suppression hearing, shared this information with the school principal, B. Bilton.

Based on the female student's tip identifying appellant, Bilton and another assistant principal, C. Perez, decided to search appellant that same day.² Bilton stated it was his duty as principal to "make sure that [the school] environment is safe; and that means no drugs...."

Perez made contact with appellant as appellant arrived late to school with two other students. To Perez, appellant "looked under the influence of some type of ... drug or some type of substance." Perez called appellant and the other students—who also appeared to be "high or intoxicated"—into Bilton's office. After appellant denied that he was in possession of anything prohibited at school, Perez proceeded with the administrative search. Bilton observed. In appellant's backpack, Perez found "three small [green] squares" in a plastic bag along with "three or four ... rectangular pieces of medicine," which Perez recognized as Xanax.³

According to Perez, appellant violated the school's code of conduct by possessing a controlled substance on campus and by coming to school under the influence. Although Perez noticed the odor of marijuana on appellant's clothing, no marijuana was found on appellant's person or in his backpack. Perez acknowledged the possibility that the marijuana odor may have transferred to appellant's clothing, since one of the other students called into Bilton's office was in possession of marijuana. Bilton did not recall whether appellant had an odor of marijuana or appeared to be under the influence of alcohol or a controlled substance. The school officials did not administer any drug or alcohol test to appellant, and appellant was not examined by the school nurse.

The school contacted the school district's police department, and Officer R. Robinson arrived to search appellant for weapons. As Perez explained to appellant what would happen next, appellant became frustrated and produced two additional bags of Xanax from his waistband. He told Perez, "Here, you missed these." Officer Robinson arrested appellant. He did not note in his report that appellant appeared to be under the influence of alcohol or a controlled substance at the time of his arrest.

Standard of Review

We review a trial court's denial of a motion to suppress evidence under a bifurcated standard. See Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) ; see also In re R.J.H. , 79 S.W.3d 1, 6 (Tex. 2002) (standard of review for rulings on motion to suppress is same in juvenile cases as in adult criminal proceedings). We review the trial court's factual findings under an abuse of discretion standard but conduct a de novo review of the trial court's application of law to those facts. Turrubiate , 399 S.W.3d at 150 ; see also State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) ; Guzman v. State , 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997).

When, as here, no findings of fact were requested or filed, we must view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. In re R.J.H. , 79 S.W.3d at 7. We will sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. In re M.I.S. , 498 S.W.3d 123, 130 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Stated differently, and as the Texas Court of Criminal Appeals has instructed, "appellate courts, including this Court, should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's findings are based on an evaluation of credibility and demeanor." Ross , 32 S.W.3d at 856 (quoting Guzman , 955 S.W.2d at 89 ).

Motion to Suppress

In his sole issue, appellant argues that the trial court erred in denying his motion to suppress because, according to appellant, the administrative search was not justified at its inception. See U.S. CONST. amend. IV ; TEX. CONST. art. I, § 9 ; TEX. CODE CRIM. PROC. art. 38.23 ; TEX. FAM. CODE § 54.03(d) ; New Jersey v. T.L.O. , 469 U.S. 325, 337, 341–42, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). We disagree.

The Fourth Amendment applies to administrative searches of students by school authorities. See T.L.O. , 469 U.S. at 337, 105 S.Ct. 733. But the school setting requires "some modification of the level of suspicion of illicit activity needed to justify a search." Id. at 340, 105 S.Ct. 733. Accommodating both the privacy interests of students and the substantial need of school authorities "for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe the subject of the search has violated or is violating the law." Id. at 341, 105 S.Ct. 733. Rather, the legality of a search depends on its reasonableness under all of the circumstances. T.L.O. , 469 U.S. at 341–42, 105 S.Ct. 733 ; Coronado v. State , 835 S.W.2d 636, 640 (Tex. Crim. App. 1992).

In determining the reasonableness of an administrative search of a student, we apply a two-pronged test. See T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. First, the search must be "justified at its inception." T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. A search is justified at its inception when there are reasonable grounds for suspecting that the search will reveal evidence a student has violated, or is violating, the law or rules of the school. T.L.O. , 469 U.S. at 341–42, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640.

Second, the search, "as actually conducted," must be "reasonably related in scope to the circumstances which justified the interference in the first place." T.L.O. , 469 U.S. at 341, 105 S.Ct. 733 ; see Coronado , 835 S.W.2d at 640. A search is permissible in scope when the measures used are "reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction." T.L.O. , 469 U.S. at 342, 105 S.Ct. 733 ; Coronado , 835 S.W.2d at 640. "[S]ufficient probability, not certainty, is the touchstone of reasonableness[.]" T.L.O. , 469 U.S. at 346, 105 S.Ct. 733 (quotation omitted).

Appellant challenges only the first prong of the reasonableness inquiry—whether the administrative search was justified at its inception.⁴ Appellant contends the school did not have reasonable grounds for suspecting that the search would reveal evidence of a law or rules violation because the female student's tip, identifying him as the source of a controlled substance on the school campus, allegedly lacked sufficient indicia of reliability. In appellant's view, the tip was nothing more than a "naked tip" from an anonymous tipster because (1) neither Bilton nor Perez identified the female student informant by name at the suppression hearing, (2) neither Bilton nor Perez spoke with the female student informant, and (3) the tip lacked predictive value.

In support of his position, appellant cites two decisions from the Austin Court of Appeals holding that an anonymous tip, standing alone, will rarely provide the reasonable suspicion necessary to justify a search. See In re K.C.B. , 141 S.W.3d 303, 307 (Tex. App.—Austin 2004, no pet.) ; In re A.T.H. , 106 S.W.3d 338, 343–44 (Tex. App.—Austin 2003, no pet.).

In A.T.H. , a law enforcement officer working at a school received a tip from an anonymous caller that a group of high-school-aged teens were smoking marijuana behind a nearby business. 106 S.W.3d at 341. The caller stated: "[T]he only person I could really identify for you is a black male wearing a Dion Sanders football jersey." Id. The officer then intercepted A.T.H.—a black male wearing a jersey matching the caller's description—in the school parking lot, performed a pat-down search of A.T.H., and found marijuana. Id. at 341–42.

The Austin court concluded the search was not...