State v. A.S.

430 P.3d 703

STATE of Washington, Respondent,

v.A.S., Appellant.

No. 76823-9-I

Court of Appeals of Washington, Division 1.

FILED: December 3, 2018

David Bruce Koch, Nielsen Broman & Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant/Cross-Respondent.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Smith, J.

¶ 1 A.S. appeals her conviction for possession of drug paraphernalia and possession of a controlled substance. A.S. argues that the trial court erred by denying her motion to suppress evidence found by the vice principal of Meadowdale Middle School when he searched A.S.’s backpack on school grounds. Because the search of A.S.’s backpack was not reasonable under the circumstances, we reverse.

FACTS

¶ 2 On April 11, 2016, Meadowdale staff received information about an alleged threat involving then 14-year-old A.S., who was not a Meadowdale student. Meadowdale staff looked up A.S.’s picture using the district’s computer system so that they would be able to identify her should she appear on campus. Later that day, Joseph Webster, Meadowdale’s vice principal, saw A.S. walk by the school’s office. Webster approached A.S., called out her name, and asked her to come with him to the office. Webster later testified that if he were to encounter an individual he thought did not have a reason to be on campus, he ordinarily would ask that person to leave. He did not do so here because he believed A.S. was there for a "negative reason."

¶ 3 A.S. complied with Webster’s request to accompany him to the school office. Webster brought A.S. to Principal Jennifer Kniseley’s office, where Kniseley began asking A.S. questions about why she was on the Meadowdale campus. A.S. was not very cooperative. After about five minutes, Kniseley remarked to Webster that A.S. was not being very cooperative and decided to call the police. A.S. was told that the police were being called. Webster later testified that had A.S. gotten up and decided to leave, she would have been allowed to do so. Webster also testified that because A.S. was not a student at Meadowdale, he and Kniseley did not have any ability to issue any discipline to A.S.

¶ 4 At some point while A.S. was in Kniseley’s office, Webster noticed an odor that he recognized as marijuana emanating from A.S. Webster then searched A.S.’s backpack, which was sitting next to her, and found suspected marijuana and drug paraphernalia. A.S. did not say or do anything to resist Webster’s search of her backpack.

¶ 5 A police officer responded at 2:29 p.m.—less than half an hour after Webster first observed A.S. on campus—and A.S. was later charged by information with possession of drug paraphernalia and possession of a controlled substance. Prior to trial, A.S. moved to suppress the evidence of the suspected marijuana and drug paraphernalia found in her backpack, arguing that the evidence was the fruit of an unlawful search and seizure. Specifically, A.S. argued that the "school search exception" to the warrant requirement did not apply to her because she was not a Meadowdale student when Webster searched her backpack and even if the exception did apply, the search was not reasonable.

¶ 6 The trial court denied A.S.’s motion and, following a stipulated bench trial, convicted A.S. of both possession of drug paraphernalia and possession of a controlled substance. A.S. appeals.

ANALYSIS

Standard of Review

¶ 7 The facts are not in dispute, and A.S. challenges only the trial court’s conclusions of law. Accordingly, we review the issues de novo. State v. Meneese, 174 Wash.2d 937, 942, 282 P.3d 83 (2012).

The School Search Exception

¶ 8 Under both the state and federal constitutions, a government actor must obtain a warrant supported by probable cause to conduct a search unless an exception applies. U.S. CONST . amend. IV ; WASH. CONST. art. I, § 7 ; Meneese, 174 Wash.2d at 943, 282 P.3d 83. The exceptions to the warrant requirement are " ‘jealously and carefully drawn.’ " State v. McKinnon, 88 Wash.2d 75, 79, 558 P.2d 781 (1977) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ).

¶ 9 One of these exceptions is the "school search exception," which allows school authorities to conduct a search of a student without probable cause if the search is reasonable under all the circumstances.

State v. B.A.S., 103 Wash. App. 549, 553, 13 P.3d 244 (2000). "A search is reasonable if it is: (1) justified at its inception; and (2) reasonably related in scope to the circumstances that justified the interference in the first place." Id. (citing New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ). "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, 105 S.Ct. 733 (footnote omitted). And, a search will be permitted in scope "when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 342, 105 S.Ct. 733.

¶ 10 Washington courts have established the following factors ( McKinnon factors) as relevant in determining whether school officials had reasonable grounds for conducting a warrantless search:

"[T]he child’s age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search."

State v. Brooks, 43 Wash. App. 560, 567-68, 718 P.2d 837 (1986) (quoting McKinnon, 88 Wash.2d at 81, 558 P.2d 781 ). Although all of the foregoing factors need not be found, their total absence will render the search unconstitutional. Id. at 568, 718 P.2d 837.

Warrantless Search of A.S.’s Backpack

¶ 11 As an initial matter, A.S. urges this court to conclude that the school search exception cannot apply to searches of nonstudents. We decline to adopt such a bright-line rule because doing so would reach beyond the facts here: Even assuming that the exception applies to nonstudents, the search conducted by Webster does not pass muster under the McKinnon factors.

¶ 12 Specifically, nothing in the record suggests that Webster, who guessed that A.S. was middle school aged, knew anything about A.S.’s history or school record. Indeed, Webster testified that when he looked up A.S. in the district database, he was only interested in her picture. Furthermore, there was no evidence that drug use was a problem at Meadowdale. Rather, when asked whether Meadowdale had a drug problem, Webster responded, "I don’t believe so." He also testified that he did not deal with drugs on a regular basis as a school administrator and that Meadowdale had only "occasional incidents" on its campus involving students bringing drugs or drug paraphernalia on campus. Additionally, there was no exigency to conduct the search without delay, given that the police had been called, and A.S.—who had been told that the police were called—gave no indication that she was trying to leave the principal’s office. And finally, the odor of marijuana alone did not create an exigent circumstance, particularly where Webster had no other reason to believe that A.S. used marijuana or that her backpack would contain marijuana. For these same reasons, the search of A.S.’s backpack was not justified at its inception.

¶ 13 The State argues that the search of A.S.’s backpack was reasonable because courts have generally " ‘recognized students have a lower expectation of privacy because of the nature o[f] the school environment.’ " Br. of Resp’t at 13 (quoting York v. Wahkiakum Sch. Dist. No. 200, 163 Wash.2d 297, 308, 178 P.3d 995 (2008) ). But this quote from York is no more than a restatement of one of the justifications underlying the school search exception. See York, 163 Wash.2d at 308, 178 P.3d 995. That exception still demands that, consistent with both the federal and state constitutions, searches be reasonable, and "what is reasonable depends on the context within which a search takes place." T.L.O., 469 U.S. at 337, 105 S.Ct. 733.

¶ 14 To this end, the underlying rationale for the school search exception is that " ‘teachers and administrators have a substantial interest in maintaining discipline in the classroom and on school grounds’ which often requires swift action." Meneese, 174 Wash.2d at 944, 282 P.3d 83 (internal quotation marks omitted) (quoting State v. Slattery, 56 Wash. App. 820, 824, 787 P.2d 932 (1990) ). Here, Webster searched the backpack of A.S., a 14-year-old nonstudent he had no ability to discipline. He based his search solely on an odor of marijuana emanating from A.S. as she sat in the principal’s office waiting for a police officer to arrive. A.S. gave no indication that she planned to leave, and her backpack was merely sitting next to her. Under these circumstances, no "swift action" was required, nor did the search further any interest in "maintaining discipline." Cf. id. at 944-45, 282 P.3d 83 (declining to extend the school search exception to a school resource officer acting in the capacity of a law enforcement officer and observing that (1) the school resource officer had no authority to discipline students and (2) there was no need for swift discipline because the student was already under arrest and about to be removed from campus at the time of the search).

¶ 15 The facts at bar are readily distinguishable from cases where we have applied the McKinnon factors and concluded that a school search was reasonable. For example, in Brooks, where the vice...