Filed 4/11/16 In re Diego V. CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re DIEGO V., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,
                                                                       G050939
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL049307)
         v.
                                                                       OPINION
DIEGO V.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
                   Jan B. Norman, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Kimberley A. Donohue and Christopher Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
              The juvenile court found true allegations Diego V. committed five acts of
misdemeanor vandalism (Pen. Code, § 594, subds. (a), (b)(1)), declared him a ward of the
court (Welf. & Inst. Code, § 602), set a 28-month maximum period of incarceration, and
placed him on home probation.
              Diego challenges the court’s denial of his motion to suppress evidence.
(Welf. & Inst. Code, § 700.1.) We affirm the court’s ruling and judgment.
                                         FACTS
              A Welfare and Institutions Code section 602 petition alleged Diego
committed five acts of vandalism after a school administrator found evidence linking him
to vandalism at Garden Grove High School in a fellow student’s locker. When
questioned, Diego admitted vandalizing the high school. He also admitted vandalizing
four pieces of property owned by the City of Garden Grove.
              Diego’s motion to suppress asserted the inculpatory evidence was obtained
by “[t]he non-consensual detention of Minor’s person” and “illegal conduct by the
government.” The district attorney asserted the school administrator searched the other
student’s locker based on a reasonable suspicion it would contain evidence of vandalism.
              At the hearing on the motion to suppress, Thomas Duggan, a 14-year
veteran assistant principal at Garden Grove High School, testified that school policy
requires every student to sign a written agreement to obtain a locker. Students are not
permitted to share lockers, unless both students have signed an agreement, and they are
informed of this policy through class announcements and flyers, and Duggan’s annual
speech about school rules. Duggan found that students tend to use each other’s lockers to
conceal contraband.
              Another aspect of Duggan’s job involves the investigation of school rules
and law violations. Vandalism occurs on an almost weekly basis, and Duggan
investigates between 10 and 15 incidents of vandalism on school property every year. He
was very familiar with a variety of graffiti forms and tagging.

                                             2
              On Saturday, December 14, 2013, someone wrote the word “KING” on a
United States Postal Service (USPS) priority mail sticker and posted the sticker on a wall
in one of the boys’ bathrooms. Duggan referred to this type of vandalism as a “slap tag.”
              The following Monday, Duggan identified the students who were on
campus the previous Saturday. Duggan compared this list with a list of known taggers
and happened to see a USPS priority mail sticker on a female student’s notebook. The
sticker had the name “Juan S[.]” written on it. The student told Duggan the sticker came
from Juan, and as it turned out, Juan had been on campus the previous Saturday.
              Duggan checked for and found a locker agreement for Juan before he
located and searched Juan’s assigned locker. Duggan testified he was looking for
“anything related” to the December 14 vandalism. As Duggan searched through Juan’s
locker, he found Juan’s school planner with a USPS sticker, “same colors, same writing,”
as the December 14 slap tag emblazoned with Juan’s name.
              As Duggan continued to flip through the contents of Juan’s locker, he
discovered several notebooks. In addition to Juan’s belongings, Duggan found a letter-
sized notebook bearing Diego’s name. On an inside page, Duggan found the letters,
“FUAK” in a familiar graffiti style. Duggan testified that on Saturday, November 16,
someone had written FUAK in permanent marker on the wall of the boys’ locker room.
              Duggan, who now suspected Diego might be involved in campus graffiti
and vandalism, removed some pages from the notebook, including the FUAK page and a
page with another familiar symbol, the graffiti letters “ENTA.” He compared the images
from Diego’s notebook to computer images of the November vandalism. They were
similar enough that Duggan decided to question Diego.
              Duggan had Diego brought to his office. He showed Diego the FUAK
page, told Diego he was calling the police, and advised Diego to tell the truth because
lying to a police officer is a separate crime. After that, Diego admitted writing FUAK on
the boys’ locker room wall.

                                             3
                When Garden Grove Police Officer Gary Elkins arrived at school, Diego
verbally repeated his admission and provided a handwritten confession. Elkins collected
the pages from Diego’s notebook, his handwritten confession, and a picture of the
November 16 graffiti, and he arrested Diego for vandalism.
                Elkins handcuffed Diego and took him to the Garden Grove Police
Department’s Juvenile Justice Center. Diego received a Miranda (Miranda v. Arizona
(1966) 384 U.S. 436) advisement, and he told Elkins that he understood his rights and
wanted to waive them. Diego then told Elkins that FUAK was the name of a tagging
crew in Garden Grove. He also told Elkins that he sometimes “tagged” alone, and Diego
admitted using slap tags to put “signs in electrical boxes and property.”
                Elkins then showed Diego several pictures of graffiti from different parts of
Garden Grove. Initially, Diego claimed responsibility for 10 to 20 acts of vandalism to
city property, but he later recanted and reduced the number to five. As for the letters
ENTA, Diego said that was just graffiti.
                At the hearing on the motion to suppress, Diego’s counsel argued Duggan’s
reasonable suspicion of Juan’s complicity in a crime did not give Duggan grounds to
open Diego’s notebook. Diego’s counsel asserted the Fourth Amendment required
Duggan to “withdraw the notebook and call Diego into his office” before looking at any
of the pages.
                The court first questioned whether Diego maintained a reasonable
expectation of privacy in a notebook he put in Juan’s locker. Diego’s counsel stated,
“My argument would be yes, simply by the fact that he’s put his name on the outside.
Yes, can anybody go through the notebook . . . yes, but for argument sake here, by
placing his name on the outside of the cover, he’s identified it as his . . . .” As counsel
explained, “I think once finding Deigo’s notebooks and seeing he’s in violation of a
school policy, he could have collected the notebooks and talked to Diego. [¶] There was
no need to go through specifically every single page of the notebook.”

                                               4
              The district attorney asserted Duggan’s search of Juan’s locker was based
on a reasonable suspicion Juan violated the law. “And beyond that, [Diego] no longer
has complete control over that locker, so thus he’s kind of on notice that the locker could
be searched because of something Juan . . . does . . . .” Citing In re J.D. (2014) 225
Cal.App.4th 709 (J.D.), the district attorney asserted the search of Diego’s notebook was
justified by Duggan’s reasonable suspicion Juan violated the law or a school rule. The
court agreed, and Diego’s motion was denied.
                                      DISCUSSION
              Diego asserts Duggan violated his Fourth Amendment rights by opening
the notebook Diego left in Juan’s locker. On appeal, we review the denial of a motion to
suppress in the light most favorable to the court’s ruling, deferring to the court’s express
or implied factual findings if supported by substantial evidence, but exercising our
independent judgment to determine whether, on those facts, the search or seizure was
reasonable under the Fourth Amendment. (People v. Lomax (2010) 49 Cal.4th 530, 563;
In re Sean A. (2010) 191 Cal.App.4th 182, 186 (Sean A.); In re Cody S. (2004) 121
Cal.App.4th 86, 90 (Cody S.).)
              Students in our public schools retain Fourth Amendment protection from
unreasonable searches and seizures of their persons or property. (New Jersey v. T.L.O.
(1985) 469 U.S. 325, 333-324 (T.L.O.); In re William G. (1985) 40 Cal.3d 550, 564
(William G.); Sean A., supra, 191 Cal.App.4th at p. 186.) However, the “strict
application of the principles of the Fourth Amendment as used in criminal law
enforcement matters does not appropriately fit the circumstances of the operation” of
public schools. (Sean A., at p. 186.) As the California Supreme Court observed, “The
public school setting is one in which governmental officials are directly in charge of
children and their environs, including where they study, eat and play. Thus, students’
zones of privacy are considerably restricted as compared to the relation of a person to the
police—whether on the street or at home.” (William G., supra, 40 Cal.3d at p. 563.)

                                              5
              In practice, a public school student’s legitimate expectation of privacy is
balanced against the school’s obligation to maintain discipline and to provide a safe
environment for all students and staff. (Cal. Const., art. 1, § 28, subd. (f)(1); Cody S.,
supra, 121 Cal.App.4th at p. 90.) This balancing does away with the probable cause and
warrant requirements: “searches of students by public school officials must be based on a
reasonable suspicion that the student or students to be searched have engaged, or are
engaging, in a proscribed activity (that is, a violation of a school rule or regulation, or a
criminal statute).” (William G., supra, 40 Cal.3d at pp. 563-564; see also T.L.O., supra,
469 U.S. at p. 324.) And, the reasonable suspicion 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. [Citations.]” (William G., at p. 564.)
              Diego recognizes the reasonable suspicion standard, but argues Duggan
needed an individualized suspicion Diego was involved in a crime or school rule
violation before he opened Diego’s notebook. We disagree for a couple reasons.
              First, Duggan realized Diego had violated the school’s locker-sharing
policy the moment he saw Diego’s notebook in Juan’s locker. Under these
circumstances, Diego’s unauthorized locker sharing arguably justifies Duggan’s
continued search.
              Second, in the school setting, individualized suspicion is not always
necessary. “[S]chool officials ‘are not in the business of investigating violations of the
criminal laws . . . and otherwise have little occasion to become familiar with the
intricacies of this Court’s Fourth Amendment jurisprudence.’ [Citation.] Those officials
must be permitted to exercise their broad supervisory and disciplinary powers, without
worrying that every encounter with a student will be converted into an opportunity for
constitutional review. To allow minor students to challenge each of those decisions,
through a motion to suppress or in a civil rights action under 42 United States Code

                                               6
section 1983, as lacking articulable facts supporting reasonable suspicion would make a
mockery of school discipline and order.” (In re Randy G. (2001) 26 Cal.4th 556, 566
(Randy G.).)
               For instance, in Randy G., a campus security officer encountered the minor
in an area where students were not allowed to congregate. (Randy G., supra, 26
Cal.4th at p. 560.) The minor fidgeted with his pants pocket, so the security officer
followed him and alerted another security officer. (Ibid.) Both security officers went to
the minor’s classroom, asked him to come out of class and into the hall, and then
questioned him. (Ibid.) During the questioning, the security officers received the
minor’s consent to a patdown search. (Ibid.) The patdown search yielded a knife. (Ibid.)
               The trial court denied the minor’s motion to suppress, but the Court of
Appeal reversed, agreeing with the minor that the proper standard under the
circumstances “was whether ‘the detaining officer has reasonable suspicion that the
person to be detained has been, is, or is about to be engaged in criminal activity.’
[Citation.]” (Randy G., supra, 26 Cal.4th at p. 561.)
               The California Supreme Court reversed, stating, “Although individualized
suspicion is usually a prerequisite to a constitutional search or seizure, ‘such suspicion is
not an “irreducible’ component of reasonableness.’ [Citation.] Under the Constitution,
the usual prerequisites can be modified when ‘“‘special needs’”’ render those rules
impracticable. [Citation.] ‘Special needs’ exist ‘in the public school context.’
[Citation.]” (Randy G., supra, 26 Cal.4th at p. 565.) Consequently, the detention of
minor students on school grounds is Constitutional so long as the detention was “not
arbitrary, capricious, or for the purposes of harassment. [Citations.]” (Id. at p. 567.) In
sum, “Reasonable suspicion—whether called ‘particularized suspicion’ [citation],
‘articulable and individualized suspicion’ [citation], ‘founded suspicion’ [citation], or
‘reasonable cause’ [citation]—need not be shown.” (Ibid.)



                                              7
              In the context of a locker search, we find J.D., supra, 225 Cal.App.4th 709
instructive. In J.D., a female high school student told a campus security officer that she
had seen another student, T.H., pull out a gun and shoot someone on a transit bus. (Id. at
p. 712.) When the security officer learned T.H. hung around another student’s locker,
and that T.H. had been loitering in that general area earlier in the day, the officer became
concerned that T.H. might have stashed a gun the other student’s locker. (Id. at p. 713.)
Two campus security officers eventually searched two lockers in that area. (Ibid.) J.D.’s
backpack, which contained a sawed-off shotgun and miscellaneous papers, was in one of
the lockers, and J.D. later admitted the shotgun belonged to him. (Id. at p. 714.)
              The trial court denied J.D.’s motion to suppress, and J.D. appealed. Citing
Randy G., supra, 26 Cal.4th 556, the appellate court stated, “[a]gainst the strong
governmental interest or special need in the public school arena, the courts have
developed the need to focus not on individualized suspicion, but on the circumstances
triggering administrative action and whether the execution is arbitrary, capricious, or for
the purpose of harassment. [Citation.]” (J.D., supra, 225 Cal.App.4th at p. 716.) In
sum, “‘[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. 717.)
              In this case, Duggan, based on specific and articulable facts, was justified
in searching Juan’s locker for proof of vandalism. While doing so, he found notebooks
belonging to Diego. Diego’s notebooks were readily available to anyone who opened the
locker, and Duggan merely picked up and opened them. The notebook was contraband,
and as it turned out, also contained evidence of vandalism. In our view, Duggan acted
reasonably when he searched the contents of Juan’s locker, Diego’s property included.
              Diego’s reliance on William G., supra, 40 Cal.3d 550, and In re Lisa G.
(2004) 125 Cal.App.4th 801 (Lisa G.), is misplaced. Neither case deals with the
proposition that an individualized suspicion of wrongdoing must be formed when one
student’s property is found in the locker of another.

                                             8
              In William G., an assistant principal, Lorenz, approached William because
William was tardy and carrying a suspicious small black bag. (William G., supra, 40
Cal.3d at p. 555.) William was not cooperative when Lorenz asked to see inside the bag.
(Ibid.) In fact, William told Lorenz to get a warrant. (Ibid.) Eventually, Lorenz took the
bag from William and opened it, finding drugs and drug paraphernalia inside. (Ibid.)
              In Lisa G., a teacher opened the purse of a disruptive student after the
student left the classroom to look for identification, but she found a knife. Citing William
G., the appellate court reversed the lower court’s denial of Lisa’s motion to suppress,
concluding “A correlation between the wrongful behavior of the student and the intended
findings of the search is essential for a valid search of the student under the Fourth
Amendment.” (Lisa G., supra, 125 Cal.App.4th at p. 807.)
              We have no quarrel with either case, but they provide no guidance here.
Duggan searched Juan’s locker based on an objectively reasonable suspicion it would
contain evidence of Juan’s vandalism. Nothing more was required.


                                      DISPOSITION
              The judgment is affirmed.




                                                  THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.



                                              9
