In the Matter of B.R.P., No. 03-07-00106-CV (Tex. App. 8/23/2007)

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IN THE MATTER OF B. R. P.

No. 03-07-00106-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: August 23, 2007.

Appeal from the District Court of Travis County, 98th Judicial District, No. J-26,460, Honorable W. Jeanne Meurer, Judge Presiding.

Affirmed.

Before Justices PATTERSON, PURYEAR and PEMBERTON.

MEMORANDUM OPINION

BOB PEMBERTON, Justice.

The district court adjudicated B.R.P. delinquent after B.R.P. pleaded true to the offense of possessing marihuana in a drug-free zone. See Tex. Health & Safety Code Ann. § 481.121 (West 2003), § 481.134 (West Supp. 2006). Punishment was assessed at six months' probation. In a single issue on appeal, B.R.P. asserts that the district court erred in denying his motion to suppress. We affirm the judgment.

BACKGROUND

In the hearing on B.R.P.'s motion to suppress, the district court heard evidence that on October 31, 2006, Ty Davidson, Assistant Principal of the Austin Independent School District's Crockett High School, received information that B.R.P. was selling and buying drugs. When asked about "the nature of that tip," Davidson explained:

I was speaking to [another] student about his own problems with drugs. And he mentioned to me that every morning all I had to do was go to a certain bathroom, and I would see [B.R.P.] and a fellow student exchanging drugs, whether it was [B.R.P.] selling it or [B.R.P.] buying it.

The following day, Davidson ran into B.R.P. in the school's hallway. Davidson testified that "[t]he bell had already rung" and that "[t]he students were supposed to be in class." In fact, according to Davidson, B.R.P. was "30 to 45 minutes late." Davidson explained that he had "a relationship with [B.R.P.] for over a year now," so he decided to bring B.R.P. into his office to ask him how he was doing and why he was late. However, when Davidson asked B.R.P. to come with him, B.R.P. appeared "nervous" and immediately claimed that he needed to go to the restroom. Davidson told him that he could not go, but B.R.P. asked again, stating "that he really needed to go." Davidson told B.R.P. that he could go to the restroom later and insisted that B.R.P. come with him. Davidson found this behavior suspicious because B.R.P. had been cooperative in their previous encounters.

At this point, based on B.R.P.'s behavior and Davidson's "history" with B.R.P., which included Davidson's knowledge that B.R.P. had been "busted with marijuana before,"¹ Davidson decided to search B.R.P. for drugs. Davidson escorted B.R.P. to an empty conference room and, in accordance with school policy, summoned David Wilson, an Austin Police Department officer assigned to Crockett, to observe the search. Once Officer Wilson arrived at the conference room, Davidson performed the search, asking B.R.P. to empty everything out of his pockets. B.R.P. removed from his pockets some dice, his wallet, and an inhaler. Davidson then proceeded to search B.R.P.'s pockets, neck, waistline, ankles, shoes, and possessions. The last thing Davidson examined was the inhaler. Davidson pulled off the cap, looked inside, and found a "green substance" inside a "clear baggy" and a partially smoked cigarette. Officer Wilson recognized the substance as marihuana. Consequently, Wilson took B.R.P. into custody and processed the evidence. Both the green substance and the substance in the cigarette later tested positive for marihuana.

On November 9, 2006, the State filed a petition alleging that B.R.P. had engaged in delinquent conduct. In response, B.R.P. filed a motion to determine the admissibility of evidence. Following a hearing on the motion, the district court ruled that the evidence was admissible and proceeded to adjudication. B.R.P. pleaded true to the allegations against him and was adjudged delinquent. The district court sentenced him to six months' probation. This appeal followed.

DISCUSSION

In his sole issue on appeal, B.R.P. contends that the district court erred in denying his motion to suppress because the search conducted by Davidson was not justified at its inception or, in the alternative, was not reasonably related in scope to the circumstances that had justified the original interference.

Standard of review

A trial court's ruling on a motion to suppress lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re K.C.B., 141 S.W.3d 303, 305 (Tex. App.-Austin 2004, no pet.). The trial court is the sole trier of fact and judge of the weight and credibility to be given to a witness's testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999); K.C.B. 141 S.W.3d at 305. Therefore, we give almost total deference to a trial judge's determination of facts and questions of "mixed law and fact" that turn on an evaluation of witness credibility and demeanor. K.C.B., 141 S.W.3d at 305; In re V.P., 55 S.W.3d 25, 30-31 (Tex. App.-Austin 2001, pet. denied). All other "mixed questions" and pure questions of law we review de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); In re L.M., 993 S.W.2d 276, 286 (Tex. App.-Austin 1999, pet. denied). In this case, because the facts are undisputed, we review the district court's ruling de novo. See K.C.B., 141 S.W.3d at 305.

In searches of students conducted by public school officials, the standard of suspicion necessary to comport with the Fourth Amendment is reasonable suspicion, not probable cause. New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1986). The test to determine whether the facts support "reasonable suspicion" dictates that we look at (1) whether the action was justified at its inception and (2) whether the search as actually conducted was reasonably related in scope to the circumstances that justified the original interference. K.C.B., 141 S.W.3d at 306. B.R.P. argues that the search in this case fails both prongs of this test.

Justification for the search

"Under ordinary circumstances, a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." T.L.O., 469 U.S. at 341-42. B.R.P. argues that the search was not justified because it was based on an "uncorroborated anonymous tip" and that there were no reasonable grounds for suspecting that B.R.P. possessed marihuana. The State responds that the tip was not anonymous and, furthermore, that the search was based on B.R.P.'s suspicious behavior.

This Court has previously held that an anonymous tip, standing alone, will rarely provide the reasonable suspicion necessary to justify an investigative detention or search. See K.C.B., 141 S.W.3d at 307; In re A.T.H., 106 S.W.3d 338, 344 (Tex. App.-Austin 2003, no pet.). However, both of these cases are distinguishable from the facts here. The tip in A.T.H. was received over the telephone from a caller who refused to provide his name. 106 S.W.3d at 341-42. In K.C.B., the holding was predicated on a joint stipulation that the tip was truly anonymous. 141 S.W.3d at 307. However, the Court added that if the tip had been provided by an unidentified "known student," "there might be an added indicia of reliability, thus allowing [the school official] to rely upon the tip." Id.

In this case, Davidson testified that a "student came in [to his office] who was on another infraction." Although Davidson did not explicitly identify the student in court, the district court could have reasonably inferred that Davidson knew the identity of the student. The student was in Davidson's office on "another infraction," and, Davidson added, "I was speaking to the student about his own problem with drugs." Furthermore, the student was speaking to Davidson face-to-face, not over the telephone as in A.T.H. Texas courts have distinguished between anonymous telephone informants and informants who personally approach officers. See, e.g., State v. Garcia, 25 S.W.3d 908, 913 (Tex. App.-Houston [14th Dist.] 2000, no pet.); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.-Fort Worth 1995, pet. ref'd). "Unlike a person who makes an anonymous telephone call, an individual presenting himself to the officer in person . . . puts himself in a position to be held accountable for his intervention; thus, the reliability of the information he provides is increased." Garcia, 25 S.W.3d at 913. No accountability concerns are present in this case, as the student informant, whose identity was known to Davidson, could have been held responsible if the information he provided turned out to be inaccurate. See Florida v. J.L., 529 U.S. 266, 270 (2000).

Furthermore, the tip contained "predictive information" that could be verified. See State v. Fudge, 42 S.W.3d 226, 239-40 (Tex. App.-Austin 2001, no pet.). The tip specifically mentioned B.R.P., another student, a particular bathroom, and a particular time of day. This sort of predictive information moves beyond "merely observable facts such as location or attire" and predicts certain events involving specific individuals. See K.C.B., 141 S.W.3d at 307 (citing J.L., 529 U.S. at 271-72). "Predictive information" and receiving an informant's information in-person have long been held to be sufficient indicia of reliability to warrant "reasonable suspicion." See J.L., 529 U.S. at 271 (finding deficiency in anonymous tip because it lacked predictive information); Adams v. Williams, 407 U.S. 143, 146-47 (1972) (holding that informant whom officer personally knew provided "enough indicia of reliability" to create probable cause). Thus, this tip does not raise the same reliability concerns as the tips in K.C.B. and A.T.H.

Additionally, the tip in this case, unlike the tips in A.T.H. and K.C.B., was not the only basis for the search. Davidson also relied on B.R.P.'s suspicious behavior in deciding to search B.R.P. B.R.P. argues that needing to go to the bathroom...