In re D.W. CA1/1 ( 2021 )

Filed 9/24/21 In re D.W. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re D.W., a Person Coming Under
the Juvenile Court Law.
A162067
THE PEOPLE,
(Solano County
Plaintiff and Respondent, Super. Ct. No. J44977)
v.
D.W.,
Defendant and Appellant.
D.W. appeals from a juvenile court dispositional order placing him on
informal probation for six months based on a finding he possessed a knife on
school grounds. On appeal, he claims the court wrongly denied his motion to
suppress evidence of the knife. D.W. alternatively claims, and the Attorney
General concedes, that a conditional remand is proper because D.W.’s counsel
did not seek a deferred entry of judgment notwithstanding D.W.’s eligibility
for one. Although we affirm the court’s ruling on the motion to suppress, we
agree with the parties that a conditional remand is appropriate for the court
to evaluate D.W. for a deferred entry of judgment.
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I.
FACTUAL AND PROCEDURAL
BACKGROUND
In October 2019, D.W. was 15 years old and a student at Benicia High
School. On the morning of October 31, the high school’s assistant principal,
Dwight Rogers, received a report from a teacher that D.W. “was possibly
under the influence.” D.W. was escorted by a school security officer to
Rogers’s office so Rogers could “begin [his] questioning and investigation of
the situation.” Rogers asked D.W. if he knew why he had been brought to the
office and whether “he had anything on him that he should not have.” Rogers
also told D.W. that he “would try to work with him as much as possible to
give him [as few] consequences as possible if it was something that [they]
could work with.”
D.W. stated he did know why he was brought to Rogers’s office and had
not done anything wrong. Rogers responded by telling D.W. that a School
Resource Officer could “come in and assist [him] if need be.” Rogers noticed
that D.W. was “moving, shifting his arms and . . . body[, and] it appeared [to
Rogers] like he was camouflaging something that he [might] be hiding on his
person.” Believing D.W. possessed “drugs or something,” Rogers asked D.W.
if “[D.W.] could just give it to [him] without [him] bringing in the . . . School
Resource Officer.” After a moment of reflection, D.W. “produced a knife that
was in his pocket that was inside of his pants.” D.W. said he did not “have
any . . . drugs, but he had a knife but he didn’t know how it got there.” At no
time during their interaction did Rogers yell at D.W., force D.W. to declare
what he was hiding, or physically search D.W.
In June 2020, the Solano County District Attorney filed a petition
under Welfare and Institutions Code section 602, subdivision (a), seeking to
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have D.W. declared a ward of the juvenile court.1 The petition alleged one
count of felony possession of a knife on school grounds. (Pen. Code, § 626.10,
subd. (a).) Several months later, D.W. moved to suppress evidence of the
knife. In November 2020, the juvenile court held a combined suppression
and jurisdictional hearing, and the following month it denied the motion to
suppress and sustained the petition. In February 2021, the court reduced the
offense to a misdemeanor and placed D.W. on informal probation without
wardship for six months in accordance with section 725, subdivision (a).
II.
DISCUSSION
A. The Juvenile Court Properly Denied the Motion to Suppress.
1. The law governing searches of students on school premises
The Fourth Amendment “applies to searches conducted by school
authorities.” (New Jersey v. T.L.O. (1985) 469 U.S. 325, 337 (T.L.O.).)
However, “[t]he determination of the standard of reasonableness governing
any specific class of searches requires ‘balancing the need to search against
the invasion which the search entails.’ [Citation.] On one side of the balance
are arrayed the individual’s legitimate expectations of privacy and personal
security; on the other, the government’s need for effective methods to deal
with breaches of public order.” (Ibid.)
In the school context, “the child’s interest in privacy” must be weighed
against “the substantial interest of teachers and administrators in
maintaining discipline in the classroom and on school grounds.” (T.L.O.,
supra, 469 U.S. at p. 339.) Consequently, the high court has recognized “that
maintaining security and order in schools requires a certain degree of
All further statutory references are to the Welfare and Institutions
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Code unless otherwise noted.
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flexibility in school disciplinary procedures” and that “the school setting
requires some easing of the restrictions to which searches by public
authorities are ordinarily subject.” (Id. at pp. 339–340.) Specifically, “school
officials need not obtain a warrant before searching a student who is under
their authority,” nor do they need “probable cause” for a student search.
(Id. at p. 340.) “Rather, the legality of a search of a student should depend
simply on the reasonableness, under all the circumstances, of the search.
Determining the reasonableness of any search involves a twofold inquiry:
first, one must consider ‘whether the . . . action was justified at its inception,’
[citation]; second, one must determine whether the search as actually
conducted ‘was reasonably related in scope to the circumstances which
justified the interference in the first place.’ ” (Id. at p. 341.)
“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. Such a search will be permissible in its 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.” (T.L.O., supra, 469 U.S. at pp. 341–342, fns. omitted.) “On
appeal from a ruling denying a motion to suppress evidence, we ‘exercise our
independent judgment to determine whether, on the facts found by the court,
the search was reasonable under the Fourth Amendment.’ ” (In re
Sean A. (2010) 191 Cal.App.4th 182, 186.)
2. The search of D.W. was not unreasonable.
D.W. argues that Rogers lacked reasonable suspicion to conduct a
search and that he only turned over the knife “in response to improper
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threats and promises by [Rogers].” We are not persuaded. As to the first part
of the inquiry, Rogers’s interaction with D.W. was “ ‘justified at [the]
inception’ ” in light of the teacher’s report that D.W. “was possibly under the
influence.” (T.L.O., supra, 469 U.S. at p. 341.) As to the second part of the
inquiry, the aspects of Rogers’s interaction with D.W. that led to the
production of the knife were “ ‘reasonably related in scope to the
circumstances which justified the interference in the first place,’ ” i.e., the
teacher’s report.2 (Ibid.)
We start by discussing the first part of the inquiry. The teacher’s
report that D.W. was possibly under the influence in the morning hours was
serious, and it was eminently reasonable for school officials and Rogers to
investigate. “Deterring drug use by our Nation’s schoolchildren” is
“important—indeed, perhaps compelling.” (Vernonia School Dist. 47J v.
Acton (1995) 515 U.S. 646, 661.) “School years are the time when the
physical, psychological, and addictive effects of drugs are most severe,” and
drug-related problems “are visited not just upon the users, but upon the
entire student body and faculty, as the educational process is disrupted.” (Id.
at p. 662.)
In his briefing, D.W. agrees that his initial escort and detention
“passe[d] constitutional muster,” but he argues that the teacher’s report was
unreliable because the teacher was not identified. We are not convinced.
While it is true that the teacher was not identified, it was undisputed that
the report came from a teacher. We agree with the Attorney General that In
2In light of our conclusion that D.W. was not unreasonably searched,
we need not address the Attorney General’s cursory suggestion that Rogers’s
questions to D.W. “were not a search.” Similarly, we need not address D.W.’s
argument that the production of the knife was not consensual, because the
Attorney General does not contend otherwise.
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re Corey L. (1988) 203 Cal.App.3d 1020 suggests that such a report from a
teacher provides reasonable suspicion for school officials to investigate
further. In Corey L., Division Two of this court concluded that a school
principal had reasonable suspicion to search a student for contraband based
on information the principal received from other students. (Id. at pp. 1022,
1024.) If reasonable suspicion is established by a student reporting that
another student may be in possession of contraband, it is even more
established by a similar report from a teacher—an adult with institutional
responsibilities over students. We reject D.W.’s argument that Rogers’s
interaction with D.W. was not justified because the report came from a
teacher whose identity was not disclosed during the proceedings below.
D.W. also contends that Rogers was prohibited from interacting with
him until Rogers performed a “prompt investigation to either confirm or
dispel the report [of D.W.’s possibly being under the influence],” by taking
measures such as smelling D.W.’s breath, observing his pupils, or asking him
to follow a pen with his eyes. We disagree. We are aware of no authority
requiring school officials to use these measures before initiating a
conversation with the student and employing other investigative techniques.
Rogers had a reasonable and growing suspicion that D.W. was possibly under
the influence and possibly in possession of a controlled substance, and this
suspicion allowed him to investigate further.
We therefore turn to the second part of our inquiry and address the
argument that Rogers’s search of D.W. was unreasonable. Since it is
undisputed that Rogers did not physically search D.W., the more precise
inquiry is whether Rogers’s interaction with D.W. was reasonably related in
scope to the teacher’s report. We think the answer is clearly yes.
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Rogers’s suspicion that D.W. might be in possession of an illegal
substance was reasonable at the outset by virtue of the teacher’s report, and
the suspicion was strengthened by D.W.’s attempt to camouflage or hide
something during the interaction. True, during the interaction Rogers
suggested to D.W. that Rogers would “work with him as much as possible to
give him [fewer] consequences” if he cooperated, and Rogers also said he
might ask a School Resource Officer for assistance if D.W. did not cooperate.
But we reject D.W.’s argument that these comments demonstrated that D.W.
was “coerced into turning out his pockets in the absence of reasonable
suspicion.” (Emphasis omitted.) “Questioning of a student by a principal,
whose duties include the obligations to maintain order, protect the health
and safety of pupils[,] and maintain conditions conducive to learning, cannot
be equated with custodial interrogation by law enforcement officers.” (In re
Corey L., supra, 203 Cal.App.3d at p. 1024.) As we have said, school officials
have more leeway than do law enforcement officials when questioning
students about possible illegal activities, and Rogers’s comments to D.W.
were, in our view, reasonable statements by a school official questioning a 15-
year-old student whom a colleague had reported was possibly under the
influence. The interaction was brief, and Rogers did not yell at D.W. or force
him to say what he was hiding. In short, the circumstances surrounding the
interaction were “ ‘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.’ ” (In re William G. (1985) 40 Cal.3d 550, 564.) As a result,
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the juvenile court properly denied the motion to suppress evidence of the
knife.
B. The Matter Must Be Remanded for the Juvenile Court to Consider
a Deferred Entry of Judgment.
Section 700.1 states that a motion to suppress evidence “obtained as a
result of an unlawful search or seizure shall be heard prior to the attachment
of jeopardy.” D.W. argues that the juvenile court violated this provision by
holding the suppression hearing at the same time as the jurisdictional
hearing. He also argues that his counsel below was ineffective for failing to
request a deferred entry of judgment.
Although the Attorney General claims that D.W. forfeited these
arguments by not raising them below (see In re Sheena K. (2007) 40 Cal.4th
875, 880), he concedes that D.W.’s counsel was ineffective by failing to object
to the unitary hearing. The Attorney General states if the suppression
motion had been heard before the jurisdictional hearing, D.W. might have
sought a deferred entry of judgment, and “it appears reasonably probable”
that the court would have granted such a request. (See In re A.I. (2009)
176 Cal.App.4th 1426, 1434 [minor may pursue motion to suppress and
accept deferred entry of judgment after denial of suppression motion].)
We agree with the parties that a conditional reversal is proper since
D.W.’s counsel never asked for a deferred entry of judgment even though
D.W. was eligible for such relief. As a result, we need not decide whether
conducting the suppression hearing at the same time as the jurisdictional
hearing constituted prejudicial error by limiting D.W.’s opportunity to seek a
deferred entry of judgment.
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III.
DISPOSITION
The jurisdictional and dispositional orders are conditionally reversed,
and that the matter is remanded for the juvenile court to evaluate D.W. for a
deferred entry of judgment. If the court grants D.W. a deferred entry of
judgment, it shall vacate its jurisdictional and dispositional orders. If the
court denies D.W. a deferred entry of judgment, it shall reinstate those
orders. (See In re Luis B. (2006) 142 Cal.App.4th 1117, 1123–1124.)
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_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
People v. D.W. A162067
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