      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00228-CV




                                     In the Matter of K. C. B.




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. J-23,077, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                                           OPINION


               Appellant K.C.B., a juvenile, was adjudicated delinquent for possession of marihuana

in a drug-free zone at Del Valle Junior High School and was placed on probation. See Tex. Health

& Safety Code Ann. §§ 481.121, .134 (West 2003); Tex. Fam. Code Ann. § 54.03 (West 2002). He

appeals contending that the trial court erred in denying his motion to suppress the State’s evidence

because (1) the school official did not have the requisite reasonable suspicion to search him, and (2)

the evidence was inadmissible under the Texas exclusionary rule because the school official

assaulted him while obtaining the evidence. Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp.

2004); Tex. Fam. Code Ann. § 51.17(c) (West 2002). We will reverse the trial court’s judgment and

remand the cause for further proceedings.
                     FACTUAL AND PROCEDURAL BACKGROUND

               The Travis County Sheriff’s Office Incident Report, the veracity of which both the

State and K.C.B. agreed upon at trial, lays out the only facts on record in this case. On September

23, 2002, Clifford Bowser, the Del Valle Junior High School hall monitor, received a tip from an

anonymous student that K.C.B. had a plastic bag containing marihuana in his underwear. Bowser

escorted K.C.B. to the office of Assistant Principal Jackie Garrett, where Bowser asked K.C.B. if

he had “anything in his possession which he should not have.” After K.C.B. responded that he did

not, Bowser had him remove his shoes and socks, in which he found nothing. Bowser then informed

Garrett that the tip indicated that the marihuana was in K.C.B.’s underwear. Garrett asked K.C.B.

to lift up his shirt, at which time Garrett approached K.C.B. and extended the elastic on K.C.B.’s

shorts. Observing a plastic bag in K.C.B.’s waistline, Garrett removed it, and K.C.B. was taken to

the campus security office where Deputy Salazar, the school resource officer, arrested him for

possession of marihuana.

               K.C.B. was charged with possession of marihuana in a drug-free zone. He moved

to have the marihuana evidence suppressed, arguing that the search and seizure violated his rights

under the United States and Texas Constitutions. The trial court overruled K.C.B.’s motion to

suppress, determining that “the actions taken by the school were not overly invasive in this

situation.” With his motion denied, K.C.B. pleaded true to the charge of possession of marihuana

in a drug-free zone. Accordingly, the trial court adjudicated K.C.B. delinquent and sentenced him

to six months’ probation.

               K.C.B. now raises two issues on appeal: (1) the trial court erred in denying the

motion to suppress because the search was unreasonable and violated the United States and Texas

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Constitutions; and (2) the trial court erred in denying the motion to suppress because an assault was

committed by the retrieval of the evidence, invoking the Texas exclusionary rule.


                                               DISCUSSION

Standard of Review

                A trial court’s ruling on a motion to suppress will be set aside only on a showing of

an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); In re V.P.,

55 S.W.3d 25, 30 (Tex. App.—Austin 2001, pet. denied). The trial court is the sole trier of fact and

judge of the weight and credibility to be given a witness’s testimony. State v. Ballard, 987 S.W.2d

889, 891 (Tex. Crim. App. 1999); Villarreal, 935 S.W.2d at 138; V.P., 55 S.W.3d at 30. We give

almost total deference to a trial court’s determination of the facts and “mixed questions of law and

fact” that turn on an evaluation of witness credibility and demeanor. V.P., 55 S.W.3d at 30-31; In

re L.M., 993 S.W.2d 276, 286 (Tex. App.—Austin 1999, pet. denied); see Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). In a case such as this where there is no disagreement about

the facts, we review de novo questions not turning on credibility and demeanor. V.P., 55 S.W.3d

at 31; L.M., 993 S.W.2d at 286. Because both issues fall into this category, we will review de novo

the trial court’s resolution of both issues.


Reasonableness of the Search

                K.C.B.’s first issue is that the trial court erred in denying his motion to suppress

because the evidence was obtained during an unreasonable search by Garrett in violation of K.C.B.’s

Fourth Amendment rights.




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                 In searches of students conducted by public school officials,1 the standard of suspicion

necessary to comport with the Fourth Amendment is reasonable suspicion, not the usual probable

cause. New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1986). The T.L.O. test to determine whether

the facts lead to “reasonable suspicion” dictates that we look at (1) whether the action was justified

at its inception; and (2) whether the search as actually conducted was reasonably related in scope to

the circumstances that justified the original interference. Id. at 341-42. K.C.B. argues that the

actions of Garrett and Bowser fail both prongs of this test.

                 According to the United States Supreme Court, “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.” Id. K.C.B. argues that because the

tip that led Bowser and Garrett to search him was made by an anonymous student, there were no

reasonable grounds for suspecting a violation. K.C.B. contends that the first prong of the T.L.O. test

fails here because there is no evidence that school officials based their search on anything other than

the anonymous tip.

                 The State agrees that there is no evidence in the record that the anonymous tip was

corroborated, but argues that because of the nature of the public school setting, the tip was sufficient

to give the school officials reasonable suspicion even if it may not have sufficed elsewhere. The

State relies on those cases acknowledging that because of the schools’ custodial and tutelary

responsibility, students’ Fourth Amendment rights at school are different from those that exist



        1
            Neither party argues that the school official was acting as a police officer.

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outside of it. Additionally, the State argues that for the safety of the students and the benefit of the

learning process there is a special need for immediate response to student behavior. See Florida v.

J.L., 529 U.S. 266, 274 (2000); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656-57 (1995);

T.L.O., 469 U.S. at 353.

               The State argues that it is necessary to continue to recognize the diminished rights

of students in this case because in a closed setting such as a school, people are less likely to give

important information to authorities if they are not certain that their anonymity will be protected.

The State further notes that the Supreme Court has recognized that with respect to anonymous tips,

officials in locations such as schools, where Fourth Amendment rights are diminished, may conduct

protective searches based on information that would be insufficient elsewhere. J.L., 529 U.S. at 274.

               Under the Fourth Amendment, the primary focus of an assessment of the

reasonableness of a search by a member of the government requires analysis of the government

interest being advanced to support the intrusion on the individual’s rights. Terry v. Ohio, 392 U.S.

1, 21 (1968). “There is ‘no ready test for determining reasonableness other than by balancing the

need to search [or seize] against the invasion which the search [or seizure] entails.’” Id. (quoting

Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37 (1967)). It was under this principle that

the Terry Court crafted the test for reasonableness that was later adopted by the T.L.O. Court for

searches by school officials. Id. Thus, in determining whether a search is justified at its inception,

this overarching balance must be kept in mind.

               In cases in which reasonable suspicion is the standard for law enforcement officials,

the Supreme Court has held that in order to conclude that an anonymous tip is reliable, thereby

justifying the search, there normally must be some further indicia of reliability contained within the

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tip. J.L., 529 U.S. at 271; Alabama v. White, 496 U.S. 325, 326 (1990). The Supreme Court has

further held that in these cases an anonymous tip must be corroborated by more than just easily

observable facts, such as attire or location, in order to rise to the level of reasonable suspicion. J.L.,

529 U.S. at 271-72.

                The T.L.O. Court expressly stated that under ordinary circumstances a search by a

school official will be justified at its inception only when there are reasonable grounds for suspecting

that the search will turn up evidence. T.L.O., 469 U.S. at 341-42. Uncorroborated anonymous tips

do not ordinarily rise to the requisite level of reasonable suspicion. We have, in fact, previously held

so. In re A.T.H., 106 S.W.3d 338, 344 (Tex. App.—Austin 2003, no pet.). In A.T.H., a law

enforcement officer working at the school received a tip from an unidentified caller that a group of

likely-students were smoking marihuana behind a nearby business. As the suspects walked back

through the school parking lot, one of them was apprehended and searched by the officer, and drugs

were found. We did not reach the issue of whether the officer acted as a school official because we

held that he “lacked justification for his pat-down of A.T.H. even under the T.L.O. standard.”

A.T.H., 106 S.W.3d at 341-42.

                In this case, we are bound by the facts as stipulated to by both parties, and so are

unable to determine whether the tip was truly anonymous, allowing for no indicia of reliability, or

rather made to Bowser by a known student who asked the hall monitor that his name not be revealed.

Under the latter circumstance there might be an added indicia of reliability, thus allowing him to

reasonably rely upon the tip.

                We recognize, however, that the State is correct in its assertion that the diminished

right of privacy for students in schools and the custodial nature of the relationship between school

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official and student do play a role in determining the reasonableness of such a search. Had the

anonymous tip involved the presence of a weapon, for example, the circumstances presented might

not be characterized as “ordinary” and the balance might tilt more strongly in favor of the

government interest involved.

                The legality of a search of a student is governed by “the reasonableness, under all the

circumstances, of the search.”      T.L.O., 469 U.S. at 341.        It is from this overall sense of

reasonableness under the circumstances that the necessity that a search be justified at its inception

flows. Id. Under ordinary circumstances, the Supreme Court held, this is judged based on the

presence of reasonable grounds for suspecting the search to turn up evidence, id., but this still must

be assessed in light of the overall reasonableness required by the Fourth Amendment. The

compelling state interest required to infringe upon the rights of the individual is not a fixed,

minimum quantum of government concern. Vernonia, 515 U.S. at 661. Rather, the phrase

“compelling state interest” “describes an interest that appears important enough to justify the

particular search at hand, in light of other factors that show the search to be relatively intrusive upon

a genuine expectation of privacy.” Id. It is for this reason that an anonymous tip alleging the

presence of a weapon might very well present an extraordinary circumstance and could result in a

search similar to the one in the case at bar being viewed as justified at its inception.

                In determining the reasonableness of the caution being taken, it is necessary to take

into account the nature of the relationship between the students and the school officials. In

Vernonia, in which the random drug testing of students who chose to participate in inter-scholastic

sports and signed waivers was held to be reasonable, the Court stated that the most significant

element of its analysis was that the searches were “undertaken in furtherance of the government’s

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responsibilities, under a public school system, as guardian and tutor of children entrusted to its care

. . . . [W]hen the government acts as guardian and tutor the relevant question is whether the search

is one that a reasonable guardian and tutor might undertake.” Id. at 665.

                Although the Supreme Court has found an anonymous tip regarding a person carrying

a weapon to be inadequate to provide reasonable suspicion for a police officer to conduct a stop and

frisk, J.L., 529 U.S. at 274, because of the different nature of the government interest and the level

of expectation of privacy in the school setting, a search by a school official might be reasonable if

performed in the school setting. In J.L., the Supreme Court stated that the facts of the case did not

require it to consider under which circumstances the danger alleged in an anonymous tip might be

so great as to justify a search without a showing of reliability. Id. at 273. It went on to clarify that

it specifically was not holding in its opinion that “public safety officials in quarters where the

reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools,

cannot conduct searches on the basis of information insufficient to justify searches elsewhere.” Id.

at 275 (internal citations omitted).

                In contrast to a law enforcement officer, school officials’ custodial responsibility

results in a greater government interest in protecting the students from harm. The “government has

a heightened obligation to safeguard students whom it compels to attend school.” T.L.O., 469 U.S.

at 353 (Blackmun, J., concurring). In Terry, the Court held that in making the assessment as to

whether an intrusion is called for in a particular situation, “it is imperative that the facts be judged

against an objective standard: would the facts available to the officer at the moment of the seizure

or the search warrant a man of reasonable caution in the belief that the action taken was

appropriate?” Terry, 392 U.S. at 21-22 (internal quotations omitted). The imminent risk of harm

                                                   8
posed by the presence of a weapon in a school setting makes immediate action all the more

appropriate under such extraordinary circumstances.

                While children do not lose their constitutional rights when in school, the nature of

their rights is different than it is when they are not in school. Vernonia, 515 U.S. at 655-56.

Specifically, the Supreme Court has held that at school, students have a lesser expectation of privacy

than those outside of the school setting normally have. Id. at 657; T.L.O., 469 U.S. at 348 (Powell,

J., concurring). By balancing these diminished rights against the increased level of government

interest in the protection of students in the school setting, a search for weapons in a school triggered

by an anonymous tip might be found to be justified at its inception despite the fact that “under

normal circumstances” there must be reasonable grounds for suspecting a search will uncover

evidence.

                The presence of drugs on a student, however, does not tip the balance far enough for

the search in this case to be deemed justified at its inception. Immediacy of action is not as necessary

as could be found with a tip regarding a weapon. Furthermore, although the Vernonia Court found

the government interest compelling enough to justify further infringement on students’ rights by

randomly testing athletes for drugs, the Supreme Court noted that the average student has a higher

expectation of privacy than those of the athletes being tested. Vernonia, 515 U.S. 657. The Court

stressed that by choosing to participate in extra-curricular school athletics, the students voluntarily

subjected themselves to more oversight than was imposed on other students. Id. For these reasons,

we do not believe that the search of K.C.B., which turned up the marihuana evidence, was justified

at its inception, and so it fails the test set out in T.L.O.




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                We therefore hold that the search was not based on a reasonable suspicion by the

school officials, and therefore was not justified at its inception. The trial court abused its discretion

in denying K.C.B.’s motion to suppress on the grounds that the search was unreasonable and

violative of K.C.B.’s constitutional rights. We sustain K.C.B.’s first issue.


                                           CONCLUSION

                We conclude that the trial court erred in denying K.C.B.’s motion to suppress on the

grounds that the search was unreasonable and violative of K.C.B.’s constitutional rights. The

standard of reasonableness constitutionally required of searches of students by school officials was

not satisfied in the search for the marihuana. Accordingly, we reverse the trial court’s judgment and

remand the cause for further proceedings.2




                                                David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Reversed and Remanded

Filed: July 15, 2004




        2
          Having decided that the evidence should have been suppressed because it was obtained
without reasonable suspicion, it is unnecessary for us to reach the second issue concerning the
possible commission of an assault by Garrett during the search. See Tex. R. App. P. 47.1 (opinions
should be as brief as practicable while addressing every issue necessary to final disposition of
appeal).

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