People ex rel. J.G.

517 P.3d 1267

2022 COA 64

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF J.G., Juvenile-Appellant.

Court of Appeals No. 20CA0218

Colorado Court of Appeals, Division VI.

Announced June 16, 2022

Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant

Opinion by JUDGE WELLING

¶ 1 J.G., a juvenile, appeals the judgment adjudicating him delinquent based on findings that he possessed a handgun as a second-time juvenile offender, see § 18-12-108.5(1), C.R.S. 2021, and possessed a weapon on school grounds, see § 18-12-105.5, C.R.S. 2021. He contends that the juvenile court erred by denying his motion to suppress the gun because school officials discovered it in the course of an unreasonable search of his backpack at school.

¶ 2 This case involves a novel application of an established legal test. In New Jersey v. T.L.O. , 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the Supreme Court held that the legality of a search of a student in the school context depends "simply on the reasonableness, under all the circumstances, of the search." The T.L.O. Court laid out a two-part inquiry for determining reasonableness. Id. First, a court must determine whether the search was justified at its inception. Id. Second, a court must determine whether the search was reasonably related in scope to the circumstances that initially justified the interference. Id. This case concerns the application of the first part of the inquiry.

¶ 3 Under ordinary circumstances, a search of a student at school is "justified at its inception" when a school official has reasonable suspicion that a search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Id. at 341-42, 105 S.Ct. 733. We conclude that reasonable suspicion is a sufficient, but not necessary, means of justifying a search at its inception.

¶ 4 A search may be justified at its inception without reasonable suspicion where the record shows that the student had a substantially diminished expectation of privacy in his or her person or property. Because the high school here implemented a Safety Plan for J.G. that included a search requirement, J.G. didn't have a legitimate expectation of privacy in his backpack sufficient to trigger a warrant requirement. And based on this, we conclude that the search was justified at its inception even without reasonable suspicion of other wrongdoing. Accordingly, we affirm.

I. Background

A. Overview

¶ 5 J.G. attended a public high school in Denver. In December 2018, the juvenile court adjudicated J.G. delinquent for two offenses: felony menacing and possession of a handgun by a juvenile. Based on this adjudication, on January 15, 2019, the school's Threat Appraisal Team completed a Preliminary Information Gathering Form (PIGF) and a Full Threat Appraisal (FTA).

¶ 6 The Threat Appraisal Team used the FTA to develop an Action and Intervention Plan, which we will refer to as J.G.’s "Safety Plan," as that is the nomenclature used before the juvenile court. Officer Johnny Avila, the School Resource Officer, participated in creating the Safety Plan. J.G.’s mother, J.G.’s guardian ad litem, the Dean of Students, and several other school officials also participated.

¶ 7 In February 2019, J.G. was involved in a motor vehicle theft. J.G.’s companion in that incident unlawfully possessed a firearm during the theft. Following that incident, J.G. remained in detention until April 2019. On April 22, 2019, to support J.G.’s transition back to school, the Threat Appraisal Team conducted another assessment and amended the Safety Plan.

¶ 8 School officials conducted the search at issue in this case pursuant to the Safety Plan. The parties contest whether the Safety Plan justified the search.

B. PIGF, Original Safety Plan, and Amended Safety Plan

¶ 9 The PIGF is the first part of Denver Public Schools' "Threat Response System." The PIGF consists of six steps that help the Threat Appraisal Team complete the FTA, which, once completed, became J.G.’s Safety Plan. Step one, titled "Make Sure All Students Are Safe," includes several boxes, only one of which the Threat Appraisal Team checked:

Step 1: Make Sure All Students Are Safe
         [] Appropriately detain the student(s) being assessed until this protocol is completed
         [X] Do not allow access to coasts, backpacks, or lockers
         [] Search was conducted
         [] Weapon was found and turned over to Denver Police
         [] If there is imminent danger, call DPS Department of Safety dispatch at 720-423-3911, and the Denver Police
         Department at 911

¶ 10 In step six, titled "Determine next steps," the Threat Appraisal Team checked a box indicating that the incident warranted the completion of the FTA.

¶ 11 The FTA consists of eight steps. Step seven of the FTA, titled "Develop an Action and Intervention Plan," contains a chart with generic fields on the left and corresponding information specific to J.G. on the right.

¶ 12 On April 22, 2019, after his release from detention following the motor vehicle theft incident, the Threat Appraisal Team amended J.G.’s Safety Plan. All previous requirements remained in effect, but the Threat Appraisal Team included additional requirements. As amended, the Safety Plan contained the following pertinent items excerpted from a larger chart:

Step 7: Develop an Action and Intervention Plan
   Use the following Plan to address all concems identified during this Threat Appraisal process
   SCHOOL (attach additional pages as needed)
   [] Describe the level of supervision and who it will be         Student will need to be searched everyday by admin and security.
   conducted by:                                                   Student will need report to the CSO's office
                                                                   Maintain prior level of supervision: student will stay on campus
                                                                   during lunch and will do another check-in with the main office to
                                                                   monitor his attendance following the lunch period. If student
                                                                   leaves or is unaccounted for, another search will clear.
                                                                 . . . .
   [] Backpack, coat, and other belongings check-in and            Student will not have a locker and would need to be searched
   check-out by:                                                   daily.
                                                                   Student will be able to leave materials in classes. Student is not
                                                                   anticipated to have homework.

¶ 13 The juvenile court admitted the PIGF and the Safety Plan into evidence at the suppression hearing. Officer Avila also testified that the Safety Plan was intended to remain in effect for "the duration of [J.G.]’s stay at [the high school]." Officer Avila stated that the Safety Plan also prohibited "[J.G.] from being in possession of a book bag." The Safety Plan wasn't amended after the April 22, 2019, meeting.

C. J.G.’s Return to School

¶ 14 J.G.’s mother tried to enroll J.G. in a different high school in the Denver Public Schools system for the 2019-2020 academic year. That other school placed J.G. on a waitlist. A requirement of J.G.’s probation, however, was enrollment in high school. Thus, as the new academic year approached, J.G.’s mother hastily arranged for him to return to the same public high school he had attended the prior year.

¶ 15 On Wednesday, August 21, 2019, the week before the 2019-2020 academic year started, J.G.’s mother went to the school to arrange his re-enrollment. One of the school's counselors told J.G.’s mother that he could only start attending school once they had made a schedule for him. On the same day, J.G.’s mother also spoke to William Thompson, the Dean of Students at the high school. J.G.’s mother testified at the suppression hearing that Mr. Thompson told her that "he didn't think that [J.G.] would need a safety plan this year." Mr. Thompson, however, didn't testify at the suppression hearing.

¶ 16 On Monday, August 26, 2019, the first day of the new school year, Joe Naughton, a counselor at the high school, emailed J.G.’s mother confirming that J.G.’s schedule had been created and that he could return to school for the 2019-2020 academic year. J.G. returned to school the next day.

D. The Search

¶ 17 On the morning of August 29, 2019, J.G.’s third day back at school for the fall semester, Mr. Thompson attempted to call J.G.’s mother; but she was at work and didn't answer. Mr. Thompson then left a message for her indicating that he would be speaking with J.G. and that he needed to go over a few things with both of them.

¶ 18 Later that day, Mr. Thompson and campus security officers notified Officer Avila that they needed his assistance with J.G. in the gym. They informed Officer Avila that J.G. wasn't complying with a request to search his backpack. Officer Avila testified that Mr. Thompson and campus security officers initiated the attempted search pursuant to the requirements of the Safety Plan, not because J.G. had acted in a manner causing reasonable suspicion to warrant the search.

¶ 19 Officer Avila responded, and he and the school officials walked J.G. to a hall where fewer observers were present. Officer Avila and Mr. Thompson continued to tell J.G. that he needed to comply with the search, as he always had before. J.G. then tried to sidestep all the officials and leave the building while holding the backpack. By this point, J.G. was acting aggressively. Officer Avila...