Filed 2/19/14 In re A.M. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re A.M., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                          A138040

         Plaintiff and Respondent,                                   (Contra Costa County
v.                                                                   Super. Ct. No. J12-01489)
A.M.,
         Defendant and Appellant.


         Following a combined motion to suppress evidence and jurisdictional hearing, the
juvenile court sustained a petition alleging appellant possessed a weapon on school
grounds. Appellant contends the court erred in denying his suppression motion. We
disagree and affirm the judgment.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
         1. Prosecution
         On October 22, 2012 at approximately 11:30 a.m., Andre Walker, a campus
supervisor assigned to provide security and ensure classroom attendance at Antioch High
School, was located at the front of the school. At that time, he noticed appellant entering
the campus. Walker asked appellant why he was so late for an 11:00 a.m. class.
Appellant did not respond. As appellant approached, Walker “picked up a scent of
marijuana on him, and that’s the time when I immediately asked him could he join me
into the vice principal’s office [sic].” Walker took appellant to the vice-principal’s office
because he was late to school, smelled of marijuana, and to determine if he had on him
any “drug substance.”
       In the office of the vice-principal, Jarrod Bordi, the vice-principal also noticed the
odor of marijuana emanating from appellant. Nonetheless, when Walker asked appellant
if he possessed anything they “should be aware of,” appellant responded he did not.
Appellant admitted, however, he had smoked marijuana off campus.
       Because appellant smelled of marijuana, Bordi assumed he possessed marijuana or
paraphernalia, and he authorized Walker to search appellant. Walker in turn conducted a
pat search, felt an object, and removed a knife from appellant’s front pocket. According
to Bordi, the knife had blades “coming out of it at both ends.” Appellant told Bordi he
found the knife off campus and carried it for protection. Following the discovery of the
knife and appellant’s admission, Bordi informed him he was under suspension, and called
the police.
       Antioch Police Office Christopher Kidd was dispatched to the high school where
he met with Bordi. Bordi gave him a knife taken from appellant. The knife had “dual
blades on each side” that locked into position. After being advised of his Miranda
rights,1 appellant said he found the knife about three or four days previously, and carried
it for protection.
       2. Defense
       Appellant testified he was searched by Timothy Manly, site safety coordinator for
Antioch High School, in front of the school near the parking lot. Appellant denied he
was ever searched by Walker in the vice-principal’s office, but indicated Walker was
present when Manly searched him.
       Officer Kidd testified that when he arrived at the vice-principal’s office, Bordi told
him Manly had contacted him to advise that a student was in possession of a knife. Kidd
was “under the impression that he [the vice-principal] was just contacted” by Manly and

       1
           Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


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had not actually witnessed the search. Officer Kidd, however, did not speak to Manly
about the search. According to Kidd, while he was present, Bordi used a walkie-talkie
device and contacted Manly who described the circumstances of the search.
       3. Rebuttal
       Safety Coordinator Manly testified that he had no contact with and did not search
appellant on October 22, 2012, or at any other time.2 He also did not remember speaking
with Officer Kidd on October 22, 2012, nor talking to Bordi over the radio about the
search of appellant.
B. Procedural Background
       On October 24, 2012, a Welfare and Institutions Code section 602 petition was
filed alleging appellant committed a misdemeanor, possession of a knife on school
grounds. (Pen. Code, § 626.10, subd. (a).) Thereafter, appellant filed a motion to
suppress evidence. (Welf. & Inst. Code, § 700.1.) Following a combined
suppression/jurisdictional hearing on February 21, 2013, the court found Walker, Manly,
and Bordi gave credible testimony, but did not “necessarily find” appellant gave credible
testimony. It denied the suppression motion, sustained the petition, and declared
appellant a ward of the court. Appellant was placed on probation subject to various terms
and conditions.
                                    II. DISCUSSION
       Appellant contends the court erroneously denied his motion to suppress because
the court’s factual finding that school officials had a reasonable suspicion to search was
not supported by substantial evidence and the search was unreasonable even if school
officials smelled marijuana.
       “The standard of review of a trial court’s ruling on a motion to suppress is well
established and is equally applicable to juvenile court proceedings.” (In re Lennies H.
(2005) 126 Cal.App.4th 1232, 1236.) “ ‘On appeal from the denial of a suppression

       2
         Walker testified that after he searched appellant, he left the vice-principal’s
office and passed Manly, who was about to enter. Bordi recalled that Manly entered the
vice-principal’s office after the knife was discovered.


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motion, the court reviews the evidence in a light favorable to the trial court’s ruling.
[Citation.] We must uphold those express or implied findings of fact by the trial court
which are supported by substantial evidence and independently determine whether the
facts support the court’s legal conclusions.’ ” (In re William V. (2003) 111 Cal.App.4th
1464, 1468.)
       We begin by setting forth the general legal principles that govern searches and
seizures of students. The Fourth Amendment3 protects students on a public school
campus against unreasonable searches and seizures. (In re Randy G. (2001) 26 Cal.4th
556, 566; In re William G. (1985) 40 Cal.3d 550, 561.) The school setting, however,
“ ‘requires some modification of the level of suspicion of illicit activity needed to justify
a search.’ ” (Safford Unified Sch. Dist. # 1 v. Redding (2009) 557 U.S. 364, 370.)
Greater flexibility is required in applying the principles of the Fourth Amendment to
searches of a student because teachers’ and administrations’ substantial interests in
maintaining discipline in the classroom and on school grounds must be balanced against
the student’s interest in privacy. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 339
(T.L.O.).) “[T]he legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.” (Id. at p. 341.)
       The reasonableness of a search under this standard generally depends on
(1) whether the search was justified at its inception; and (2) whether the scope of the
search, as actually conducted, was reasonably related to the circumstances justifying the
initial search. (T.L.O., supra, 469 U.S. at p. 341.) Ordinarily, a search of a student by a
school official will be justified at its inception when there are reasonable grounds for


       3
          The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches . . . .” (U.S. Const.,
4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment, and
is applicable to states. (Mapp v. Ohio (1961) 367 U.S. 643, 655.) The state Constitution
contains a similar guarantee against unreasonable government searches (Cal. Const.,
art. I, § 13); but, since voter approval of Proposition 8 in June 1982, state and federal
claims relating to exclusion of evidence on grounds of unreasonable searches are
measured by the same standard. (In re Lance W. (1985) 37 Cal.3d 873, 886–887.)


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suspecting the search will disclose evidence the student has violated or is violating the
law or school rules. (Id. at pp. 341–342.) To justify a search, “[t]here must be articulable
facts supporting that reasonable suspicion. . . . Respect for privacy is the rule—a search is
the exception.” (In re William G., supra, 40 Cal.3d at p. 564.) “[T]his standard requires
articulable facts, together with rational inferences from those facts, warranting an
objectively reasonable suspicion that the student or students to be searched are violating
or have violated a rule, regulation, or statute.” (Ibid.) A search is permissible in its scope
when the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in the context of the age and sex of the student. (Ibid.)
       Applying the foregoing principles to the facts of this case, we reject appellant’s
contention the search was unreasonable. While appellant’s truancy from class, standing
alone is not a sufficiently reasonable basis for conducting a search of any kind (see In re
William G., supra, 40 Cal.3d at p. 566), as we shall explain, there was an additional fact,
the odor of marijuana emanating from appellant, giving rise to reasonable suspicion.
       We first address appellant’s claim that substantial evidence does not support the
court’s factual finding that school officials had reasonable suspicion to search. As noted
above, the court found Walker, Bordi, and Manly were credible witnesses, however, it
did not “necessarily find” appellant credible. Appellant disputes the court’s findings
based on “material contradictions” among the three witnesses’ testimony and with
Officer Kidd’s testimony, arguing we should view the trial court’s findings with
“skepticism.” According to appellant, “[i]n addition to appellant’s testimony that
Manly[, not Walker,] searched him in the parking lot without consent and that Walker
was present but did not speak to him, Manly contradicted the testimonies of Walker and
Bordi by denying that he had any contact with appellant on the day of this incident, and
by testifying that he does not think or is not sure if he was even working that day.” He
also focuses on Manly’s testimony that he did not speak to Bordi over the radio in
contradiction of Officer Kidd’s testimony he recognized Manly’s voice on Bordi’s
walkie-talkie, and Kidd’s testimony Bordi had told him Manly contacted Bordi about a



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student in possession a knife. Lastly, appellant claims Officer Kidd contradicted
Walker’s and Bordi’s testimony when he testified Bordi did not witness the search.
       We find no merit in appellant’s contention that the court’s credibility findings
were not supported by substantial evidence. When a superior court rules on a motion to
suppress it must first find the facts relating to the challenged search or seizure. In other
words, “it must decide what the officer actually perceived, or knew, or believed, and what
action he took in response.” (People v. Leyba (1981) 29 Cal.3d 591, 596–597,
superseded by statute on other grounds as stated in People v. Trujillo (1990)
217 Cal.App.3d 1219, 1223–1224.) These are traditional questions of fact, and Penal
Code section 1538.5 vests the superior court with the power to decide them. (Pen. Code,
§ 1538.5, subd. (i).) Accordingly, the power to judge the credibility of the witness,
resolve conflicts in the testimony, weigh the evidence and draw factual inferences is
vested in the trial court. “ ‘On appeal all presumptions favor the exercise of that power,
and the trial court’s findings on such matters whether express or implied, must be upheld
if they are supported by substantial evidence.’ ” (People v. Leyba, at pp. 596–597.)
       The trial court was also in the best position to determine the credibility of the
witnesses. The court found Walker, Bordi, and Manly credible and appellant not
“necessarily” credible. We see no abuse of discretion in the court’s credibility findings.
The discrepancies in Manly’s testimony relate primarily to his uncertainty about his
activity on the day of the incident and have no bearing on the credibility of Walker and
Bordi. While appellant claims it was Manly, not Walker who searched him, the trial
court evidently discredited appellant’s testimony. The court also gave little if any weight
to Officer Kidd’s testimony he heard Manly’s voice on the walkie-talkie or Kidd’s
hearsay testimony Bordi told him Manly contacted Bordi about a student in possession of
a knife. This assessment was reasonable because Officer Kidd had no personal
knowledge of who conducted the search, not having been present when the knife was
discovered, and was only “under the impression” that Bordi did not witness the search.
In the absence of a compelling circumstance which is not presented here, we are bound
by the trial court’s credibility determinations.


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       Equally without merit is appellant’s contention that even if school officials
smelled marijuana, they lacked reasonable suspicion to search him because Officer Kidd
did not notice any objective symptoms of appellant being under the influence of
marijuana and neither Walker nor Bordi observed “anything else suspicious” or “any kind
of bulge.”
       Generally, the odor of marijuana emanating from a particular place provides
cause to believe more is present. In People v. Cook (1975) 13 Cal.3d 663, disapproved
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 and footnote 22, the
Supreme Court rejected the defendant’s contention that the odor of marijuana did not
furnish probable cause to search a car. Relying on People v. Gale (1973) 9 Cal.3d 778,
the court held “that a police officer having made a lawful entry into an automobile could
rely on a strong aroma of fresh marijuana as giving him ‘ “probable cause to believe . . .
that contraband may be present.” ’ ” (People v. Cook, at p. 668; see also People v.
Strasburg (2007) 148 Cal.App.4th 1052, 1059.) Here, both Walker and Bordi smelled
the odor of marijuana emanating from appellant, who admitted he had been smoking
marijuana earlier off campus. “ ‘It requires no perspicacious intellect to reason the
person smoking one marijuana cigarette may well want another and will carry sufficient
marijuana to satisfy his appetite of the moment.’ ” (People v. Coleman (1991) 229
Cal.App.3d 321, 327.) Clearly there was reasonable suspicion to believe appellant
possessed more marijuana on his person. The search was reasonable.
                                   III. DISPOSITION
       The judgment is affirmed.




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                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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