       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00516-CV



                                       In the Matter of O.E.




       FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
          NO. J-22,173, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               O.E. was adjudicated delinquent based on his possession of marihuana in a drug-free

zone. See Tex. Health & Safety Code Ann. § 481.121 (West 2003). After the trial court denied

appellant’s motion to suppress evidence, appellant waived trial by jury, pled true to the allegations

in the petition, was adjudicated delinquent by the trial court, and placed on probation for a six-month

period. In one issue on appeal, appellant contends that the trial court erred in denying his motion to

suppress. We will affirm the trial court’s judgment.


                              Factual and Procedural Background

               Val Barnes, a seven-year veteran of the Austin Independent School District Police

Department, was the only witness at the hearing on the motion to suppress.1 Barnes worked at the



   1
     The Austin Independent School District has its own police force; Barnes was not an officer
from the Austin Police Department assigned to patrol the school. The AISD police force provides
security, assists school administrators in carrying out security, and serves in a law enforcement
capacity.
Alternative Learning Center (the “Center”). Students from throughout the district are placed in the

Center for various disciplinary violations, including drug-related offenses and gang-related issues;

only students with such violations attend the Center. The Center has a uniform security policy:

every day, all students entering the Center must pass through a metal detector, be patted down, empty

their pockets onto a tray, remove their shoes, and place those shoes on a table for inspection. If no

contraband is found, the student is allowed to retrieve the belongings and go to class. Before

attending the Center, every student and parent is required to attend an orientation session outlining

the Center’s rules and regulations, including the search policy. The policy had been in place during

the entire seven years that Barnes worked at the Center.

               On the morning of May 2, 2002, appellant emptied his pockets, went through the

metal detector, removed his shoes, and placed them on the table. Officer Barnes saw a white tissue

inside the right shoe, removed the tissue, and found a marihuana cigarette. This juvenile proceeding

ensued.


                                             Discussion

Standard of Review

               We review the ruling on a motion to suppress in a juvenile case using an abuse of

discretion standard of review. See In re R. J. H., 79 S.W.3d 1, 6 (Tex. 2002) (adopting standard).2


   2
      The Texas Supreme Court noted that the Texas Court of Criminal Appeals used an abuse of
discretion standard but “has not said whether that standard of review is different from the standard
under federal law.” In re R. J. H., 79 S.W.3d 1, 6 (Tex. 2002). In adopting the criminal standard
for juvenile cases, the Texas Supreme Court said that “for purposes of this case at least we take [that
standard] to be essentially identical to the federal standard.” Id. Although appellant asserts that the
challenged evidence was secured “in violation of Appellant’s federal and state constitutional rights,”

                                                  2
An appellate court reviewing such a ruling defers to the trial court’s findings of historical fact but

determines de novo the court’s application of the law to those facts. Id.; see State v. Ross, 32 S.W.3d

853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

The reviewing court may not disturb supported findings absent an abuse of discretion. See Etheridge

v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994).

               Although the court in this case made detailed findings, to the extent that the juvenile

court’s findings might not sufficiently address all factual issues, the appellate court examines the

record in the light most favorable to the trial court’s ruling. See State v. Ballard, 987 S.W.2d 889,

891 (Tex. Crim. App. 1999). Viewing the evidence in that light, the reviewing court may infer all

findings necessary to support the juvenile court’s ruling. The court must defer to those findings and

must sustain that lower court’s ruling if the record reasonably supports the ruling and the ruling is

correct on any theory of law applicable to the case. See Ross, 32 S.W.2d at 855-56.


Administrative Searches

               The uncontradicted evidence in this case shows this search was not targeted at a

particular person based on a tip, suspicious behavior, or any other form of individual suspicion.3


he has not provided any citation, analysis, or argument specifically directed at the applicability of
the Texas Constitution. See Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1990)
(brief asserting right under Texas constitution inadequate if fails to provide argument or authority
in support of assertion). For purposes of this case, we will assume the rights under the United States
and Texas Constitutions are essentially identical. See R. J. H., 79 S.W.3d at 6.
  3
     Cf., e.g., In re A.T.H., 106 S.W.3d 338, 341-42 (Tex. App.—Austin 2003, no pet.) (officer had
neither reasonable suspicion nor probable cause to conduct pat-down search based on uncorroborated
anonymous tip concerning “juveniles” smoking marihuana; fact that description of individual as
“black male wearing Dion Sanders jersey” matched person searched insufficient corroboration
standing alone).

                                                  3
Rather, appellant was searched as part of a daily routine during which all students entering the Center

were searched. Thus, this search falls within the general category of “administrative searches.” See,

e.g., Camara v. Municipal Court, 387 U.S. 523, 537 (1967).

               An administrative search is conducted as part of a general regulatory scheme in

furtherance of an administrative purpose, rather than as part of a criminal investigation to secure

evidence of a crime. See Gibson v. State, 921 S.W.2d 747, 757-62 (Tex. App.—El Paso 1996, pet.

denied) (metal detector at courthouse entrance). As such, it is may be permissible under the Fourth

Amendment although not supported by a demonstration of probable cause directed to a particular

place or person to be searched. Gibson, 747 S.W.2d at 758 (citing United States v. Davis, 482 F.2d

893, 908 (9th cir. 1973)).      “Designed to prevent the occurrence of a dangerous event, an

administrative search is aimed at a group or class of people rather than a particular person.” Id.

(quoting People v. Dukes, 151 Misc.2d 295, 580 N.Y.S.2d 850, 851-52 (City Crim. Ct. 1992)). An

administrative search will be upheld as reasonable when the intrusion involved is no greater than

necessary to satisfy the governmental interest underlying the need for the search. See Vernonia Sch.

Dist. 47J v. Acton, 515 U.S. 646, 664-65 (1995) (random drug testing of athletes); Michigan Dep’t

of State Police v. Sitz, 496 U.S. 444, 455 (1990) (random sobriety checkpoints); Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 633 (1989) (post-accident drug testing of railroad

employees); United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976) (vehicle stops at fixed

checkpoints to search for illegal aliens); Camara v. Municipal Court, 387 U.S. 523, 537 (1967)

(searches of residences by housing code inspectors); Gibson, 921 S.W.2d at 765 (magnetometer

search at courthouse entrance).



                                                  4
School Searches

               The Fourth Amendment applies to searches of students by school authorities. See

New Jersey v. T.L.O., 469 U.S. 325, 333 (1985). However, “[a] student’s privacy interest is limited

in a public school environment where the State is responsible for maintaining discipline, health, and

safety . . . . Securing order in the school environment sometimes requires that students be subjected

to greater controls than those appropriate for adults.” Board of Education v. Earls, 536 U.S. 822,

830-31 (2002); Marble Falls Indep. Sch. Dist. v. Shell, No. 03-02-00652-CV, 2003 Tex. App. LEXIS

2845, at *16 (Tex. App.—Austin April 3, 2003, no pet.) (memorandum opinion) (citing Earls, 536

U.S. at 830-31). The legality of a search of a student depends on the reasonableness, under all the

circumstances, of the search. T.L.O., 469 U.S. at 341.

               Administrative searches at schools have been upheld in various circumstances.

Random drug testing of athletes without any individualized suspicion was upheld in Vernonia, 515

U.S. at 664-65. Although the court recognized that the drug testing at issue was inherently intrusive,

it concluded that the privacy invasion was justified by the important government interest in reducing

drug abuse by student athletes. Earls, essentially following Vernonia, approved random drug testing

for all students participating in extracurricular activities. Earls, 536 U.S. at 838.

               In In re F.B., 658 A.2d 1378 (Pa. Super. Ct. 1995), students entering a public high

school were routinely required to empty their pockets, and surrender their jackets and any bags.

While the belongings were searched, the students were scanned with a metal detector. If no drugs

or weapons were found, the student was allowed to retrieve his belongings. Signs were posted

notifying students of this procedure. Id. at 1380. The defendant was found to have engaged in



                                                  5
delinquent conduct by possessing a weapon on school property, a knife found when he emptied his

pockets. In upholding the search, the court held that the search of the student during a student-wide

search by school officials was reasonable even though the school officials had no individualized

suspicion that the student was armed. Id. at 1379-80. The court concluded that the search was

justified at its inception because of the high rate of violence in the Philadelphia public schools.

Further, “it was reasonable to search all students prior to entering the school because there is no way

to know which students are carrying weapons.” Id. at 1382. A similar search procedure was upheld

in In re S.S., 680 A.2d 1172 (Pa. Super. Ct. 1996). An important factor in the court’s analysis was

that a uniform procedure was followed when each student was searched. “This uniformity served

as a safeguard, assuring that a student’s expectation of privacy was not subjected to officials’

discretion.” Id. at 1176.


Analysis of this Search

               In analyzing an administrative search, we weigh the intrusion involved against the

governmental interest underlying the need for the search to determine its reasonableness.4 See, e.g.,




   4
      Because conducting these searches was a routine part of his duties as an Austin Independent
School District police officer, and because this search is an administrative search, and not one
conducted pursuant to any particularized suspicion, we do not think concerns about the status of the
person performing the search are implicated. Cf. Russell v. State, 74 S.W.3d 887, 891-92 (Tex.
App.—Waco 2002, pet. ref’d) (applying three-part test to determine whether reasonable suspicion
or probable cause test should apply depending on status of person conducting search as school
official, school police or liaison officials, or outside police officers; search involved individual
suspicion).

                                                  6
Vernonia, 515 U.S. at 664-65. In that weighing process, we keep in mind the diminished expectation

of a student’s privacy in a school setting and the State’s compelling interest in maintaining a safe and

disciplined environment. See Tex. Educ. Code Ann. § 4.001 (West 1996) (one of objectives of

public education is that “[s]chool campuses will maintain a safe and disciplined environment

conducive to student learning.”). In this case, Barnes’ testimony made it clear that the search had

as its main objective the security of the school. During the seven years Barnes worked at the Center,

contraband items such as knives, razor blades, marihuana, and cocaine were regularly found. More

than one court has noted the increasing violence in public schools. See T.L.O., 469 U.S. at 339 (drug

use and violent crime in the schools have become major social problems); People v. Pruitt, 662 N.E.

2d 540, 546 (Ill. App. Ct. 1996) (“violence and the threat of violence are present in the public

schools[;] [s]choolchildren are harming each other with regularity”). All of the students attending

the Center had been removed from other campuses for disciplinary problems, increasing the

difficulty of the State’s task to maintain order and provide a safe environment conducive to learning.

Cf. In re F. B., 658 A.2d at 1378 (all students entering school searched; no indication campus was

disciplinary school facility). The search procedure was justified at its inception as a method of

furthering the State’s interest in maintaining a safe and disciplined learning environment in a setting

at high risk for drugs and violence.

               We also must evaluate the level of intrusion on the individual’s privacy. In general,

although students in public schools have an expectation of privacy in their persons and belongings,

because of the state’s custodial and tutorial authority over the students, public school students are




                                                   7
subject to a greater degree of control and administrative supervision than adults. Earls, 536 U.S. at

830-31.

               In this case, appellant and his parents were notified in advance of the school’s daily

screening process. Such a notice has been held to reduce the expectation of privacy. See Shoemaker

v. State, 971 S.W.2d 178, 182 (Tex. App.—Beaumont 1998, no pet.) (student had no reasonable

expectation of privacy in locker when school authorities had keys to all lockers and student

handbook warned that lockers could be searched at any time there was “reasonable cause” to do so).

               Emptying pockets and searching backpacks previously has been upheld in other

school searches; the level of intrusion into any given individual’s privacy is less than that approved

in the cases allowing random drug testing. Removing one’s shoes for inspection has been deemed

“minimally intrusive” in at least one case. See Thompson v. Carthage Sch. Dist., 87 F.3d 979, 981-

83 (8th Cir. 1996) (suspicion that weapons brought to school, all male students asked to take off

shoes and socks and empty pockets; “generalized but minimally intrusive search for dangerous

weapons was constitutionally reasonable”).

               The school district has developed a uniform procedure to search students. Such

uniformity serves as a safeguard against an abuse of discretion on the part of school officials in

making a determination of which persons will be searched. See In re S.S., 680 A.2d at 1176. It is

tailored to meet the needs of a school setting at higher risk than usual for disciplinary problems

involving weapons and drugs. The intrusion on the students more limited expectation of privacy is

reasonable. Accordingly, the search was an administrative search of the sort permissible under the

Fourth Amendment. See Earls, 536 U.S. at 838; Vernonia, 515 U.S. at 664-65.



                                                  8
                                         Conclusion

              We have overruled appellant’s only issue. Accordingly, we affirm the trial court’s

judgment.




                                           __________________________________________

                                           David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: November 13, 2003




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