People In Interest of J.G. ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 16, 2022
2022COA64
No. 20CA0218, People in Interest of J.G. — Juvenile Court —
Delinquency; Constitutional Law — Fourth Amendment —
Searches and Seizures — Searches in School Settings
A juvenile appeals the judgment adjudicating him delinquent
for possessing a handgun as a second-time juvenile offender and
possessing a weapon on school grounds. The juvenile 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.
In this case, a division of the court of appeals applies the two-
part test established in New Jersey v. T.L.O., 469 U.S. 325, 341
(1985), to novel facts. The T.L.O. Court laid out a two-part inquiry
for determining reasonableness. Under T.L.O., a court must first
determine whether the search was justified at its inception, and
then 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.
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. The
division concludes that reasonable suspicion is a sufficient, but not
necessary, means of justifying a search at its inception under T.L.O.
The division holds that 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 the juvenile that included a search
requirement, the division concludes that J.G. didn’t have a
legitimate expectation of privacy in his backpack and that the
search was justified at its inception even without reasonable
suspicion of other wrongdoing. Accordingly, the division affirms.
COLORADO COURT OF APPEALS 2022COA64
Court of Appeals No. 20CA0218
City and County of Denver Juvenile Court No. 19JD641
Honorable Laurie A. Clark, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of J.G.,
Juvenile-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE WELLING
Fox and Johnson, JJ., concur
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
¶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 (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.
1
¶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. 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
2
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.
3
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:
¶ 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
4
effect, but the Threat Appraisal Team included additional
requirements. As amended, the Safety Plan contained the following
pertinent items excerpted from a larger chart:
....
¶ 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.
5
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.
6
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
7
this point, J.G. was acting aggressively. Officer Avila held J.G.’s
arms and escorted him to the security office.
¶ 20 Officer Avila, Mr. Thompson, and the security officers placed
J.G. in a private security room and told him that they were going to
search him. J.G. responded that he would comply with a search of
his person, but not to a search of his backpack. Officer Avila then
restrained J.G. while one of the security officers removed J.G.’s
backpack and completed the search.
¶ 21 The campus security officer opened the main compartment of
J.G.’s backpack and found a fully loaded handgun. Officer Avila
immediately arrested J.G., placed him in handcuffs, and completed
a thorough search of his person. Later the same day, Mr.
Thompson sent J.G.’s mother a suspension notice.
E. Suppression Hearing
¶ 22 At the suppression hearing, J.G. argued that the handgun
should be suppressed because (1) he was seized and searched
without reasonable suspicion; (2) the Safety Plan didn’t constitute
consent to a search; and (3) even if the Safety Plan could be
interpreted as consent, it was no longer in place at the time of the
search on August 29, 2019.
8
¶ 23 The juvenile court denied J.G.’s motion. The matter proceeded
directly to trial and the court adjudicated J.G. delinquent for
(1) possessing a handgun as a second-time juvenile offender and
(2) possessing a weapon on school grounds. J.G. appeals the
court’s denial of his suppression motion.
II. Analysis
¶ 24 J.G. contends that the juvenile court erred by denying his
motion to suppress. We aren’t persuaded.
A. Standard of Review and Legal Principles
¶ 25 The review of a suppression order presents us with a mixed
question of law and fact. People v. Brown, 2019 CO 63, ¶ 8. We
accept the juvenile court’s findings of fact that are supported by
competent evidence, but we review its application of the law to
those facts de novo. Id. Likewise, the interpretation of written
documents presents a question of law subject to de novo review.
Collins v. Colo. Mountain Coll., 56 P.3d 1132, 1135 (Colo. App.
2002).
¶ 26 The Fourth Amendment prohibits unreasonable searches and
seizures. People v. Bailey, 2018 CO 84, ¶ 18. This prohibition
safeguards individuals’ privacy and security against arbitrary
9
intrusion by government officials, People v. Coke, 2020 CO 28, ¶ 33,
and it extends to searches of students by public school officials,
T.L.O., 469 U.S. at 333.
¶ 27 Ordinarily, a warrantless search must be supported by
probable cause to believe that a violation of the law has occurred.
Id. at 340. This standard, however, is relaxed in the school setting
to accommodate “the substantial need of teachers and
administrators for freedom to maintain order in the schools.” Id. at
341. Accordingly, the warrant requirement is not suited for the
school environment and is generally not applicable to searches of
school children. People in Interest of P.E.A., 754 P.2d 382, 387
(Colo. 1988). We therefore evaluate the legality of school searches
under the less stringent reasonableness standard established by
the Supreme Court in T.L.O., 469 U.S. at 341-42.
¶ 28 To determine reasonableness, the need to search must be
balanced against the invasion that the search entails. P.E.A., 754
P.2d at 387. Reasonableness must be assessed “under all the
circumstances” of a search. T.L.O., 469 U.S. at 341. This
determination involves a two-part inquiry. A school search is
reasonable if it is (1) justified at its inception and (2) conducted in a
10
manner “reasonably related in scope to the circumstances which
justified the interference in the first place.” Id. (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)); P.E.A., 754 P.2d at 388.
B. Application
¶ 29 J.G. argues that the search that revealed the gun was illegal
because school officials and Officer Avila didn’t have reasonable
suspicion to search his backpack. J.G. highlights that students
have a legitimate expectation of privacy in the bags that they bring
onto school grounds. See T.L.O., 469 U.S. at 326. J.G. further
asserts that he didn’t do anything to provoke the search, as there
were no reports that he’d engaged in suspicious behavior on August
29, 2019.
¶ 30 On appeal, J.G. makes several contentions related to the
Safety Plan. First, J.G. argues that the Safety Plan didn’t prohibit
him from carrying a backpack on school grounds. Second, J.G.
asserts that even if the Safety Plan included such a prohibition, it
had expired after the 2018-2019 school year and wasn’t in effect at
the time of the search. More fundamentally, J.G. argues that the
Safety Plan couldn’t provide reasonable suspicion because it was
only based on his history of prior offenses. Accordingly, J.G.
11
contends that the juvenile court erred in denying his suppression
motion. We disagree.
¶ 31 At issue here is the first prong of the T.L.O. standard —
namely, whether the search of the backpack, based on the Safety
Plan, was justified at its inception. The T.L.O. Court explained that,
“[u]nder ordinary circumstances,” the search of a student’s property
is justified at its inception if 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.”
469 U.S. at 341-42 (emphasis added); see also People in Interest of
C.C-S., 2021 COA 127, ¶ 19. Reasonable suspicion is a sufficient,
but not necessary, justification of a search at its inception.
¶ 32 The ultimate inquiry rests on a determination of
“reasonableness, under all the circumstances, of the search.” Id. at
341. Therefore, whether J.G.’s Safety Plan was still in effect for the
2019-2020 school year is determinative. If the Plan was in effect,
then J.G. had a substantially diminished expectation of privacy in a
backpack that his Safety Plan prohibited, and that was nonetheless
subject to search. For the following reasons, we conclude the
Safety Plan was in effect and the search was reasonable.
12
1. The Safety Plan Subjected J.G. and His Backpack to Search
¶ 33 J.G. contends that the Safety Plan didn’t prohibit him from
bringing a backpack to school. J.G. maintains that the only
mention of a backpack restriction is a single checked box in step
one of the PIGF. J.G. highlights that the PIGF was only a short-
term response to an emergent situation. J.G. argues that the Safety
Plan was the only document with ongoing effect and it didn’t
include a backpack prohibition.
¶ 34 Rejecting J.G.’s contentions, the juvenile court found that the
Safety Plan prohibited J.G. from bringing a backpack to school.
We, however, conclude that the Safety Plan’s search requirement is
the controlling factor in this inquiry.
¶ 35 Under the Safety Plan, next to the box concerning “[b]ackpack,
coat, and other belongings,” there is individualized text relating to
J.G. that reads: “Student will not have a locker and would need to
be searched daily,” and “[s]tudent will be able to leave materials in
classes. Student is not anticipated to have homework.” This same
page of the Safety Plan also describes the level of supervision to
which J.G. was to be subjected, and by whom the supervision
would be conducted: “Student will need to be searched everyday by
13
admin and security. Student will need [to] report to the [Campus
Security Officer’s] office.”
¶ 36 The following text was added to the Safety Plan on April 22,
2019: “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.”
¶ 37 We acknowledge that the PIGF isn’t part of the Safety Plan.
Nonetheless, even if we were to agree with J.G. that the explicit
prohibition of the backpack in the PIGF wasn’t intended to be
permanent, this detail isn’t dispositive. This fact must be placed in
its proper context: a consideration of all the circumstances of the
search as part of a reasonableness analysis. See T.L.O., 469 U.S. at
341.
¶ 38 Importantly, the Safety Plan limited the items that J.G. could
bring onto campus and carry between classes; the school ensured
he could leave materials in classes and further limited his need to
carry items between classes by not assigning him homework. The
Safety Plan further prohibited J.G. from having a locker, thereby
denying him access to areas where he could stow any property in a
14
manner or place that shielded it from school officials’ view. These
requirements were enforced through constant check-ins and
routine searches.
¶ 39 Officer Avila — who was present when the Safety Plan was
developed — testified that the Plan was “very strict” and included a
backpack prohibition. Officer Avila further testified that J.G. had
complied with the Safety Plan until the incident on August 29,
2019. We needn’t, however, decide whether the Safety Plan
prohibited J.G. from bringing a backpack to campus.
¶ 40 Rather, we conclude that regardless of whether the Safety Plan
included a backpack prohibition, it unequivocally contained a
search requirement. Further, the only reasonable interpretation of
the Safety Plan is that the mandatory searches were intended to
encompass J.G.’s person and anything he brought to campus,
including a bag. Therefore, J.G. didn’t have a legitimate expectation
of privacy in his backpack.
2. The Safety Plan Was in Place for the 2019-2020 School Year
¶ 41 Next, J.G. argues that even if the Safety Plan prohibited him
from bringing a bag and subjected him to being searched, it wasn’t
in effect at the time of the search. Thus, J.G. contends that
15
because he had done nothing else to provoke the search, it wasn’t
justified at its inception. We aren’t persuaded.
a. The Safety Plan Didn’t Expire
¶ 42 First, J.G. asserts that there was no evidence that he had been
told that he was subject to the Safety Plan during the 2019-2020
school year. Rather, J.G. contends that Mr. Thompson told his
mother that a Safety Plan would likely not be necessary for the new
school year. Moreover, J.G. emphasizes that the school never held
a re-entry meeting to advise J.G. that he remained on a Safety Plan.
¶ 43 At the suppression hearing, Officer Avila testified that the
Safety Plan was effective “for the duration of [J.G.’s] stay at [the
high school].” Officer Avila testified that he was present for all of
the meetings related to the creation and amendment of J.G.’s Safety
Plan. Officer Avila reiterated that the Safety Plan was a “standing
order,” such that no new threat assessment was required for the
2019-2020 academic year. Officer Avila confirmed that the Safety
Plan wasn’t amended after the April 22, 2019, meeting.
¶ 44 Relatedly, J.G.’s mother testified that she had signed the
Safety Plan and was aware of the procedures required to amend it.
16
She further testified that she hadn’t attended any meetings to
amend the Safety Plan.
¶ 45 Although J.G.’s mother also testified that Mr. Thompson had
told her that “he didn’t think that [J.G.] would need a Safety Plan
for the [2019-2020] year,” Mr. Thompson didn’t testify at the
suppression hearing. Therefore, the juvenile court considered
J.G.’s mother’s testimony of Mr. Thompson’s purported remark as a
hearsay statement for the limited purpose of what J.G.’s mother
believed. The juvenile court noted that nothing in the record
suggests that J.G.’s mother communicated this statement to J.G.
¶ 46 We note that the Safety Plan doesn’t specify a timeframe and
that it also doesn’t include an expiration date. Thus, we construe
the Safety Plan as remaining effective as long as J.G. attended the
same high school. This is consistent with the indefinite nature of
other documents, such as J.G.’s 504 Plan,1 which were intended to
remain in effect for the duration of J.G.’s time at the school.
1 A “504 Plan” is a plan that provides a qualifying student with a
disability accommodations that enable him or her to participate in
the educational services and programs provided by the school.
Such plans are implemented to ensure compliance with Section 504
of the Rehabilitation Act of 1973, 29 U.S.C § 794. See People in
17
b. Discipline Incident Report
¶ 47 Second, J.G. asserts that the Discipline Incident Report, which
Mr. Thompson drafted after the search, confirms that the Safety
Plan was in effect for the 2018-2019 academic year, but not at the
time of the search. J.G. highlights that Mr. Thompson stated that
J.G. “had been” on the Safety Plan “during the 18-19 school year,”
but it was only on the day of the search that “the decision was
made that [J.G.] should remain on the safety plan.” We aren’t
persuaded.
¶ 48 It’s true that considerable uncertainty surrounded J.G.’s
return to school for the 2019-2020 academic year. Mr. Naughton
created the schedule that permitted J.G. to return to school and
informed J.G.’s mother once it was completed. J.G. returned to
school on Tuesday, August 27, 2019. The juvenile court
acknowledged, however, that “[n]obody was really on notice.”
Indeed, the Discipline Incident Report shows that Mr. Thompson
believed that J.G. had started school on Wednesday, August 28,
2019. Further, the juvenile court emphasized an apparent lack of
Interest of S.K., 2019 COA 36, ¶¶ 17-18 (discussing Section 504 of
the Rehabilitation Act).
18
communication between Mr. Naughton and Mr. Thompson,
commenting that Mr. Naughton may not even have known about
the Safety Plan.
¶ 49 Before returning to school, J.G. was supposed to attend a re-
entry meeting. At this meeting, school officials would clarify that
the Safety Plan was still in place. It appears that due to the
uncertainty surrounding J.G.’s start-date, no re-entry meeting was
held. Accordingly, the school officials’ failure to hold a re-entry
meeting isn’t dispositive.
¶ 50 Moreover, we disagree with J.G.’s construction of the
Discipline Incident Report. Nothing in the document shows that
the Safety Plan had expired. It’s true that J.G. “had been” on the
Safety Plan for the 2018-2019 school year. The Safety Plan,
however, is, as discussed above, an ongoing document that could
only be changed pursuant to certain procedures. School officials
never initiated the procedures required to amend or discontinue the
Safety Plan. Therefore, we don’t ascribe significance to Mr.
Thompson’s use of the past tense in the Discipline Incident Report.
¶ 51 Further, we aren’t persuaded that Mr. Thompson’s statement
that J.G. would “remain” on the Safety Plan indicates that the Plan
19
expired. On the contrary, a plain meaning interpretation supports
the juvenile court’s finding that the Safety Plan continued to apply
to J.G. as it had previously. See Webster’s Third New International
Dictionary 1919 (2002) (defining “remain” as “to continue
unchanged in form, condition, status, or quantity”). When school
officials became aware that J.G. had returned for the 2019-2020
academic year, they decided it shouldn’t be amended but that it
would stay in place.
¶ 52 Thus, any failure to enforce J.G.’s Safety Plan during the first
few days of the 2019-2020 academic year can’t be reasonably
construed as a lapse in the effectiveness of the Safety Plan itself.
Likewise, any lack of enforcement due to oversight isn’t dispositive
in our consideration of the reasonableness of the search under all
the circumstances.
¶ 53 In sum, J.G.’s history of firearm offenses properly informed the
content and restrictiveness of the Safety Plan. We note that J.G.
had complied with the Safety Plan for months and was aware of its
requirements. Based on the foregoing, and the seriousness of the
threat posed by gun possession on school grounds, we conclude
that the juvenile court properly determined that compliance with
20
the Safety Plan was a condition of J.G.’s attendance at the same
high school. Accordingly, we conclude that the Safety Plan was still
in effect at the time of the search.
3. The Search Was Reasonable Under All the Circumstances
¶ 54 Finally, J.G. argues that the Safety Plan was insufficient to
provide school officials with reasonable suspicion to justify the
search at its inception. J.G. contends that school officials had no
reason on August 29, 2019, to believe that he was violating any law
or rule, or that he was acting in a manner justifying the search.
Therefore, J.G. maintains that the only reason for the school
officials’ perceived need to search him was his history of prior
offenses. J.G. insists that such a history can’t provide reasonable
suspicion for a search.
¶ 55 We disagree with J.G.’s contentions and hold that the school
officials’ search satisfied both prongs of the T.L.O. standard.
a. The Safety Plan Justified the Search at its Inception
¶ 56 J.G. relies on federal and Colorado authority arising from
investigatory stop jurisprudence outside of the school context to
contend that there was no reasonable suspicion to justify the
search. See United States v. Davis, 94 F.3d 1465 (10th Cir. 1996),
21
cited with approval in Outlaw v. People, 17 P.3d 150, 157-58 (Colo.
2001). J.G. relies on Davis for the proposition that knowledge of “a
person’s prior criminal involvement is not, standing alone, sufficient
to create reasonable suspicion.” Id. at 1469. Davis, however, isn’t
applicable.
¶ 57 In Davis, the Tenth Circuit Court of Appeals found that there
were insufficient facts to provide an adequate articulable basis
justifying an investigatory detention. Id. at 1470. Officers were
patrolling an area with a history of criminal activity in a marked
patrol car. At approximately 10 p.m., the officers saw a car with
four individuals inside it parked in front of a building known to be
associated with criminal activity.
¶ 58 As the officers arrived, one of the individuals in the car got out
of the car, made eye contact with one of the officers, then broke eye
contact and began walking toward the building with his hands in
his pockets. The officers recognized the individual as a gang
member, ex-convict, and seller of narcotics. The officers told the
individual to stop and take his hands out of his pockets. When he
continued walking, the officers seized him. The Tenth Circuit Court
22
of Appeals concluded that the officers’ conduct wasn’t based on “a
reasonable suspicion that criminal activity was afoot.” Id. at 1468.
¶ 59 Unlike the search in Davis, the school officials’ search of J.G.
occurred in the school context. Fourth Amendment rights are
different in public schools than elsewhere; the reasonableness
inquiry can’t disregard the custodial and tutelary nature of public-
school officials’ power over schoolchildren. See Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 655-56 (1995). Thus, the school
environment permits “a degree of supervision and control that could
not be exercised over free adults.” Id. at 655. Accordingly, we
necessarily review the facts at issue here differently than the court
reviewed those in Davis.
¶ 60 This case is distinguishable from Davis by the fact that this
case concerns gun possession at school. “Allegations of gun
possession on school campuses are different from traditional
Fourth Amendment cases.” M.D. v. State, 65 So. 3d 563, 565 (Fla.
Dist. Ct. App. 2011). It’s widely accepted that these cases are
“unique because of the seriousness of the threat, the location of the
threat, the vulnerability and number of potential victims, and the
lessened expectation of privacy of students.” Id. (emphasis added).
23
¶ 61 Here, the Safety Plan was developed as part of the Denver
Public Schools’ “Threat Response System.” Officer Avila testified at
the suppression hearing that the Safety Plan was devised for J.G.’s
safety, and for the safety of all others at the school. The Threat
Appraisal Team developed the Safety Plan based on a specific,
articulable, and objective basis — namely, J.G.’s adjudication of a
firearm offense. Cf. id. at 567 (The court held that an anonymous
tip of a student bringing a gun to school three months earlier
provided school officials with reasonable suspicion to conduct a
search; “[R]ecent tragedies make it clear that school officials could
not ignore the possibility that the student could possess a firearm
on school property. These officials had not only the right, but the
responsibility, to look further into the threat.”). Thus, the Safety
Plan represented a legitimate school rule implemented to reduce the
serious threat posed by J.G. concerning gun possession at his high
school.
¶ 62 We’ve concluded that the Safety Plan included a search
requirement. We’ve also concluded that the Safety Plan was in
effect at the time of the search. Therefore, we now determine that
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J.G. didn’t have a legitimate expectation of privacy in his backpack
while at school.
¶ 63 Based on the Safety Plan’s explicit search requirement, J.G.’s
case doesn’t involve the “ordinary circumstances” at play in T.L.O.,
469 U.S. at 341-42. Accordingly, we base our conclusion not on a
reasonable suspicion inquiry, but rather on the fact that the Safety
Plan stripped J.G. of a legitimate expectation of privacy in his
backpack.
¶ 64 Students’ expectation of privacy is balanced against the
“substantial interest of teachers and administrators in maintaining
discipline in the classroom and on school grounds,” and the
school’s “legitimate need to maintain an environment in which
learning can take place.” P.E.A., 754 P.2d at 387 (quoting T.L.O.,
469 U.S. at 339-40). Students in the school environment thus have
a lesser expectation of privacy. Trinidad Sch. Dist. No. 1 v. Lopez,
963 P.2d 1095, 1106 (Colo. 1998).
¶ 65 J.G.’s Safety Plan isn’t a “trivial school regulation or precatory
guideline for student behavior.” T.L.O., 469 U.S. at 377 (Stevens,
J., concurring in part and dissenting in part). Rather, the Safety
Plan relates to one of the most acute concerns in schools today:
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possession of a dangerous weapon. Indeed, “[v]iolent, unlawful, or
seriously disruptive conduct,” such as gun possession on school
grounds, “is fundamentally inconsistent with the principal function
of teaching institutions . . . . When such conduct occurs amidst a
sizable group of impressionable young people, it creates an
explosive atmosphere that requires a prompt and effective
response.” Id. at 376.
¶ 66 By bringing a backpack to school and refusing to submit to
the routine searches contemplated by his Safety Plan, J.G. violated
school rules. Given the protective purpose of J.G.’s active Safety
Plan, the warrantless search of his backpack was justified at its
inception.
¶ 67 Therefore, based on a consideration of all the circumstances,
school officials’ search of J.G. was justified at its inception.
b. The Search Was Permissible in its Scope
¶ 68 Likewise, the search was permissible in its scope, satisfying
the second prong of the T.L.O. test. As part of this inquiry, the
court must determine whether the search, as conducted, “was
reasonably related in scope to the circumstances which justified the
interference in the first place.” Id. at 341 (majority opinion) (quoting
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Terry, 392 U.S. at 20). 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.” Id.¶ 69 Here, school officials attempted to conduct a routine and
mandatory search of J.G. pursuant to the Safety Plan. J.G.’s
refusal to submit to the search in the gym area justified Officer
Avila in escorting J.G. to the security office. Likewise, once in the
security office, Officer Avila’s restraint of J.G. was reasonably
related to enabling a search of the backpack as J.G., according to
the Discipline Incident Report, became belligerent while continuing
to refuse to submit to the search. Further, the ultimate search,
which consisted of a campus security officer removing and opening
J.G.’s bag, wasn’t excessively intrusive.
¶ 70 In sum, the search conducted by school officials on J.G. was
reasonable under all the circumstances and therefore legal.
Further, J.G.’s arguments regarding consent aren’t relevant to the
facts of this case. We decline to address them. Finally, because we
conclude that the search was legal, the exclusionary rule doesn’t
apply.
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III. Conclusion
¶ 71 For the reasons set forth above, we affirm the juvenile court’s
judgment.
JUDGE FOX and JUDGE JOHNSON concur.
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