103 Wash. App. 549 | Wash. Ct. App. | 2000
B.A.S. appeals his juvenile court conviction for possession of less than 40 grams of marijuana in violation of RCW 69.50.401(e). He alleges the court erred in refusing to suppress evidence found by a school official who ordered B.A.S. to empty his pockets because he believed B.A.S. had violated the school’s closed campus rule. Because the school official lacked reasonable grounds for searching B.A.S., we reverse the conviction.
FACTS
B.A.S. attends Auburn Riverside High School, which has a closed campus policy. This policy prohibits students from leaving campus during school hours without permission from the school. The school’s parking lot is considered off campus, and the school has a policy that any student seen in the parking lot without permission or a valid excuse
On November 25, 1998, David Halford, Auburn Riverside’s school attendance officer, saw B.A.S. and three other boys about 20 feet from the parking lot. Halford knew that B.A.S., who was only 15 years old at the time, did not have a car and did not have permission to be in the parking lot. According to Halford, as he approached the group he noticed that B.A.S.’s pants had a one- to two-inch wet ring around the bottom, which suggested to Halford that B.A.S. had been in a nearby field because the campus area was dry and it had not been raining. He also noticed that B.A.S. and his companions looked surprised to see him. Based on B.A.S.’s proximity to the parking lot, his wet pant legs, and his startled response when he saw Halford, he concluded that B.A.S. had been off campus.
Halford asked the four boys to go to his office so he could talk to them individually. Before talking to B.A.S., Halford checked the school’s attendance records and learned that B.A.S. was missing class. He then invoked the school’s search policy and asked B.A.S. to empty his pockets to ensure that he had not brought any prohibited items onto the school’s campus. B.A.S. initially refused, but complied after Halford threatened to call his father. When B.A.S. pulled a black case out of his pocket and put it on the table, Halford opened the case and found several plastic baggies filled with a substance he suspected was marijuana. Later testing confirmed that Halford’s suspicion was correct.
After B.A.S. was charged, the court held a CrR 3.6 hearing during which B.A.S. moved to suppress the evi
DISCUSSION
We hold that Halford’s suspicion that B.A.S. had violated the closed campus rule did not provide reasonable grounds for concluding that a search would reveal evidence of that or additional violations of law or school rules. The search was therefore illegal, and we reverse B.A.S.’s conviction.
The Fourth Amendment to the U.S. Constitution and the Washington Constitution, article I, section 7, protect people from unreasonable searches and seizures and invasions of privacy.
“the 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.”[8 ]
Halford’s search of B.A.S. does not pass muster under these standards.
Halford searched B.A.S. for contraband because he believed B.A.S. had violated the school’s closed campus policy and because Auburn Riverside has a policy “that all students seen in the parking lot area without permission are subject to search.” But these grounds did not provide a reasonable basis for suspecting that a search would either confirm Halford’s suspicion or reveal that B.A.S. committed some other offense. There must be a nexus between the item sought and the infraction under investigation.
Nor does the general purpose of the search policy, without more, provide a reasonable basis for searching B.A.S. The commissioner found that the policy’s purpose is “to ensure the safety of students at school and to ensure that prohibited items are not brought onto the school grounds. Prohibited items include marijuana, drugs, and weapons, among other items.”
An analysis of the remaining reasonableness factors lends further support to our conclusion that this search was not justified. While Halford stated he knew B.A.S. was only 15 and did not drive to school, that information is not
In State v. Brooks,
Reversed.
Grosse and Cox, JJ., concur.
B.A.S. does not assign error to any of the commissioner’s findings of fact and they are therefore verities on appeal. State v. Brooks, 43 Wn. App. 560, 564, 718 P.2d 837 (1986).
Although the court’s finding 6 states that the school’s policy is that any student' seen in the parking without permission or a valid excuse will be searched, the court later states in finding 12 that being seen in the parking lot makes a student subject to search. Testimony at trial supports the latter description. Auburn Riverside’s school attendance officer testified that when a student is seen in the parking lot he or she is asked a series of questions and that “a search can be invoked, depending on what the circumstances are.”
A school official’s demand that a student empty his or her pockets constitutes a search. See, e.g., State v. Slattery, 56 Wn. App. 820, 787 P.2d 932, review denied, 114 Wn.2d 1015 (1990).
The Fourth Amendment to the U.S. Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article I, section 7 of the Washington Constitution states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Washington Constitution does not provide students with greater protections from searches by school officials than the Fourth Amendment. Brooks, 43 Wn. App. at 568.
469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985).
Id.
Id. at 342.
Slattery, 56 Wn. App. at 825 (quoting Brooks, 43 Wn. App. at 567-68). Although our Supreme Court first enunciated these factors in a pr e-T.L.O. case, State v. McKinnon, 88 Wn.2d 75, 81, 558 P.2d 781 (1977), the express holding in that case was that a school official need only have “reasonable grounds” to search a student, and the McKinnon factors are therefore consonant with the holding in T.L.O. See Brooks, 43 Wn. App. at 567-68.
T.L.O., 469 U.S. at 345.
While there may be such evidence in documents and/or school officials’ experience, the State did not present it in this case.
We note that the T.L.O. Court did not consider whether individualized suspicion is an essential element of the reasonableness standard for searches by school authorities because the search involved in that case “was based upon an individualized suspicion that [T.L.O.] had violated school rules.” 469 U.S. at 342 n.8. For the same reason, the question of individualized suspicion is not before us.
Halford testified that when a student is caught in the parking lot without permission or a valid excuse “it’s a three-hour contingent or community service, whichever way — that would be up to the parent or the student.”
While the record suggests that Halford’s decision to search B.A.S. was also based on the fact that B.A.S. was skipping class, that fact does not alter our analysis. Like the off-campus rule, this record does not establish a logical connection between learning a student skipped class and concluding that a search might reveal a violation of the law or other school rules.
While there was no testimony or findings on the purpose of the general closed campus policy, presumably its purpose is the same.
We reject the State’s contention that B.A.S. consented to the search. He did not consent. Rather, he followed the directive of a school official that he submit to a search.
See also Slattery, 56 Wn. App. 820 (Slattery conceded that a search of his person was reasonable where a reliable informant told the principal that Slattery was selling marijuana in the parking lot and the principal had received other reports that Slattery was involved with drugs); State v. Sweeney, 56 Wn. App. 42, 782 P.2d 562 (1989) (ordering Sweeney to empty his pockets and search were reasonable where a student leader in Sweeney’s dormitory informed the dormitory supervisor that Sweeney was selling drugs, and the supervisor already suspected Sweeney of drug involvement because other students came and went from Sweeney’s room at unusual hours).