Opinion issued August 23, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00508-CR
———————————
JUAN ALEJANDRO VALDERAMA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case No. 1423465
MEMORANDUM OPINION
After the trial court denied his motion to suppress evidence, appellant, Juan
Alejandro Valderama, with an agreed punishment recommendation from the State,
pleaded guilty to the offense of possession of a controlled substance, namely
cocaine, weighing less than one gram, in a drug-free zone.1 In accordance with the
plea agreement, the trial court deferred adjudication of his guilt, placed him on
community supervision for four years, and assessed a fine of $200. In his sole
issue, appellant contends that the trial court erred in denying his motion to suppress
evidence.
We affirm.
Background
At a hearing on appellant’s motion to suppress, Pasadena Independent
School District (“PISD”) Police Department Officer M. Rodriguez testified that on
April 2, 2014, he was assigned to monitor Pasadena Memorial High School (the
“high school”). He saw appellant and another student, Jonathan Castillo, standing
at the trunk of a “blue sports car” that was parked in the “horseshoe-drive through”
in front of the school. Rodriguez recognized the car “right away” as belonging to
Lacy Summerall, a former student, because he had “dealt with her as far as
speeding [through] a parking lot.” And he saw Summerall standing at the open
trunk of the car, “handing [appellant] some books.” As Rodriguez approached
them, Summerall closed the car’s trunk, got into the car, and drove away.
Officer Rodriguez explained that appellant and Castillo were supposed to be
in class at the time. And when he asked them why they were not in class, Castillo
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103(3)(D), 481.115(b) (Vernon
2010), § 481.134 (Vernon Supp. 2015).
2
became “very defensive” and “argumentative.” Rodriguez became suspicious
because “[m]ost kids” would have said, “I was just getting my books.” However,
Castillo “became so defensive over a simple question” that Rodriguez thought
“[m]aybe he was hiding something.” Rodriguez also noted that he had seen
photographs of Summerall on “social media, advertising drug usage with several
other students at [the high school,] as well as herself using drugs.” And “she
wasn’t shy [about] advertis[ing] what she was doing at all.” Rodriguez opined that
there “may have been a drug transaction occurring” between appellant and
Summerall. He further opined that “all three of them” were “connected in a drug
transaction.”
Officer Rodriguez escorted appellant and Castillo to speak with Assistant
Principal John Thompson. And Rodriguez placed them in a “little waiting area” in
front of Thompson’s office, which was under a secretary’s supervision. Rodriguez
then went into Thompson’s office and told him that he had seen appellant and
Castillo “outside with” Summerall when “they were supposed to be in class.”
Thompson decided to perform an “administrative search” of Castillo, and he found
in a back pocket of Castillo’s pants “an unusual amount of marijuana,” which
Rodriguez confirmed through field testing. Thompson then took appellant to
another office to search him. A short time later, Thompson returned to Rodriguez
with a “black wallet” that contained a “small” “clear-plastic baggy with a white
3
powder substance inside of it.” And a field test revealed that the substance was
cocaine.
Thompson testified that on April 2, 2014, Officer Rodriguez informed him
that he had seen appellant and Castillo, who both should have been in class,
outside the school building with Summerall at her car. And Rodriguez specifically
told him that he had seen appellant and Castillo “taking something” or
“exchanging something out of [Summerall’s] car,” “out of her trunk.” This
information, based on his prior experiences with Castillo and Summerall and “their
relationship with narcotics,” raised Thompson’s suspicions. He noted that in her
senior year, he had disciplined Summerall for “being under the influence of
marijuana” at school. And she had been “outspokenly pro marijuana use.”
Thompson further noted that Castillo, who “had a reputation” for “being involved
with drugs at the school,” had previously “come to [him] and offer[ed]
information on students [who] had . . . narcotics on their person.” And, “most
times,” his information was reliable.
Thompson explained that because appellant, at the time Officer Rodriguez
saw him outside in front of the school, “should have been in his class,” he was
truant pursuant to PISD policy.2 The high school is a “closed campus,” meaning
that students are not allowed to leave the assigned area during lunch without a pass
2
Thompson explained that PISD defines “truancy” as a student not being in his
assigned place at the pertinent time.
4
or permission from an assistant principal. And it is a violation of school rules for
students to be outside in front of the school during the school day, unless they have
checked out through the school office.
After Officer Rodriguez had escorted appellant and Castillo to Thompson’s
office, Castillo told Thompson that Summerall had simply handed appellant a
binder. Thompson believed that a search of appellant and Castillo was “necessary”
because they had been outside of the school “talking to someone” who “should not
have been there at that time”; there had been “an exchange of a binder at that time
from someone” with whom Thompson had had prior experiences involving
narcotics; and “their behavior at the time was evasive” and “very non-direct.”
From PISD’s “Student Code of Conduct,” Thompson read into the record
that “school officials may search a student or student’s property if school officials
have reasonable suspicion to believe that either the law or school rules are being
violated by the student.” And “[s]earches of a student’s outer clothing, pockets
and articles of personal property, such as purses, wallets and bags may be
conducted if reasonable suspicion exists to believe that either the law or school
rules are being violated by the student.” Thompson noted that all students are
required to sign a form stating that they have received copies of these policies.
And the trial court admitted into evidence the Student Code of Conduct and
Student Handbook.
5
Thompson further testified that when he searched Castillo’s outer clothing
and shoes, he found “loose” in the right back pocket of Castillo’s pants “trace
amounts of marijuana.” “After it tested positive,” Thompson “decided
that . . . maybe [appellant] might also have some narcotics,” and he “decided to
pull him into another office and search him.”
Appellant then told Thompson that he had been “out front trying to get his
binder from [Summerall] because he had been over there the [previous] night.”
Thompson noted that although appellant’s tone was “respectful,” he “display[ed]
very apprehensive characteristics.” Rather than looking “directly” at Thompson,
appellant “look[ed] to the ground.” And he shook “slightly” and seemed “very
nervous.” In Thompson’s “experience,” such behavior “indicates someone who’s
not being truthful,” and he performed a search of appellant’s “person.” After he
did not find any contraband, Thompson left the office and spoke to a secretary.
She told Thompson that appellant had left his binder under the chair in which he
had been seated in the waiting area. She further noted that appellant had been
“playing with it and acting nervous.” Thompson picked up the binder, went back
into the office with appellant, confirmed that the binder belonged to him, and told
him that he was going to search it. Inside the binder, Thompson found a wallet
containing a clear plastic “bag of cocaine.”
6
Appellant testified that on April 2, 2014, while he was a twelfth-grade
student, he, during his lunch period, met with Summerall and Castillo in front of
the high school, where Summerall handed him a binder. During cross-examination,
appellant admitted that he had violated school rules by being outside the school
during his lunch period because he was “not where [he] was supposed to be.” He
also admitted that, when Officer Rodriguez took him into the principal’s office, he
sat in front of a secretary’s desk and waited. And, while he waited, he had placed
his wallet inside the binder and placed the binder on the floor next to his chair.
The trial court denied appellant’s motion to suppress, specifically finding, in
part, as follows:
[3.] Officer Rodriguez, while monitoring school lunch on April
2, 201[4], went to the front of the building, and . . . noticed a blue
sports car parked in the vicinity directly in front of the building which
was a driveway parking lot for administration, teachers and visitors
and not students. He observed [appellant] and a fellow classmate
[Castillo], who Rodriguez knew to have been involved with marijuana
on campus.
[4.] Officer Rodriguez saw [Summerall], another student he
knew by viewing social media depicting her to have been an advocate
of marijuana use and bragging on said media about getting high with
other current students at the school. Officer Rodriguez noticed her
talking to [appellant] and Castillo and saw her handing books to
[appellant] while she was standing by the trunk of her vehicle. He
observed Summerall drive off.
....
[6.] [Officer Rodriguez] asked [appellant and] Castillo why
they were in front of the drive-through and [appellant] replied that he
was getting books from [Summerall] and Castillo became
defensive . . . .
7
....
[10.] [W]hen Officer Rodriguez saw [Summerall] handing
[appellant] those books, he thought it may have been a drug
transaction between two students because of pictures on social media
of Summerall using drugs [with] several other students at Pasadena
Memorial High School.
....
[13.] Officer Rodriguez also thought [appellant] could be
hiding something from him and also seeing that he was with Castillo
and [Summerall] out in front of the school and that [Summerall]
handed [appellant] books.
[14.] Officer Rodriguez thought that based on this observation
all three were connected and in a drug transaction.
....
[57.] [Thompson] also disciplined [Summerall] the previous
year for being under the influence of marijuana.
....
[62.] Officer Rodriguez had escorted [appellant and] Castillo
from the front of the building and relayed the information to AP
Thompson concerning the conversation he had . . . and contact he
observed between [appellant,] Castillo and Summerall, and the
exchange of something out of Summerall’s trunk.
....
[67.] AP Thompson searched [Castillo] first with Officer
Rodriguez present, and based on the information he received from
Officer Rodriguez concerning conversations and the actions in front
of the school, he searched Castillo because he knew Castillo’s
relationship with drugs and also . . . Summerall’s relationship with
drugs, and he believed that Castillo had drugs on him at the time.
....
[69.] . . . AP Thompson thought that since Castillo had
marijuana, he decided that [appellant] might also have some narcotics
on him. So he decided to pull [appellant] into another office and
search him, as well.
8
[70.] AP Thompson in the presence of [appellant] and Dr.
Angela Kennedy and other [sic] assistant principal and one of her
secretaries were in the room while he conducted the search of
[appellant].
....
[72.] AP Thompson indicated at the time he searched
[appellant], searched his person, the binder was not in the office . . . .
And due to the fact that [appellant] had been outside with Castillo and
Summerall and Castillo had marijuana on his person and Summerall
had given [appellant] a binder, . . . AP Thompson searched his person
and thought that maybe there would be narcotics on [appellant].
[73.] AP Thompson found nothing on his person and he left
him in the office and walked outside the office, and the secretary told
him that [appellant’s] binder was sitting under the chair where
[appellant] had been sitting earlier, and that earlier he was playing
with it and acting nervous.
....
[75.] AP Thompson asked if it was [appellant’s] binder and
[appellant] indicated that it was. AP Thompson found a wallet in the
binder, opened the wallet and found a small bag of cocaine. [He]
[t]ook it to the police office where . . . Officer Rodriguez . . . field
tested it, [and it] tested positive . . . .
The trial court made the following conclusions of law:
[1.] Officer Rodriguez’s detention of [appellant and] Castillo, a
known marijuana user and informant, outside the school building on
the sidewalk in the driveway area, front driveway area was not under
arrest, but an investigatory detention. And he had reasonable
suspicion that [appellant] and/or Castillo were in violation of school
code of conduct rules by being outside the building during lunch
period, or during the classroom period without permission.
[2.] Officer Rodriguez’s stop and detention of [appellant] was
based upon articulable facts, to wit, that [appellant] and Castillo were
in a prohibited area outside the school building, in front of the
driveway near the front parking lot area and took a book or books
from another student who drove off, who also had a known reputation
for marijuana use. These facts gave rise to the reasonable suspicion
9
that [appellant] and [Summerall] may have been involved in a drug
transaction, therefore, the temporary detention and escorting
[appellant] to AP Thompson’s office was lawful, and the resulting
search was justified at its inception.
[3.] AP Thompson who was responsible for twelfth grade, all
safety issues, all security issues and monitored all discipline issues for
the twelfth grade, including [appellant], when briefed by Officer
Rodriguez as to all the details of what Officer Rodriguez had observed
and knew about Castillo and Summerall, coupled with AP
Thompson’s own knowledge of Castillo as an informant and user and
of Summerall as a user of marijuana, had reasonable suspicion to
believe that both [appellant] and Castillo had at minimum violated
[the] Student Code of Conduct by not being where they were
supposed to be at that particular time and therefore by being out of the
building without a pass or permission from an adult, [appellant] was
in violation of school rules.
[4.] AP Thompson had reasonable suspicion also to believe
Castillo had committed a law violation, possession of controlled
substance based upon the information he had from Officer Rodriguez
and his own knowledge of Castillo and the search of Castillo having
been legally justified in accordance with page 29 of the Student Code
of Conduct . . . did have reasonable suspicion to search Castillo.
[5.] AP Thompson having searched Castillo and found a small
amount of marijuana in his back pocket, had articulable facts
that . . . [appellant,] who had been outside the building without
permission with Castillo and Summerall, instead of in his fourth
period class, and who had received a binder from [Summerall] outside
the building had reasonable suspicion to believe that [appellant] might
also be in possession of illegal drugs.
[6.] AP Thompson’s search of [appellant’s] person was lawful
and reasonable under all circumstances of the search.
[7.] AP Thompson’s subsequent search of [appellant’s] binder,
which a secretary informed him was placed by the [appellant] next to
the chair before he was searched by AP Thompson in the presence of
others was based upon the information AP Thompson already had at
the time of the search of [appellant’s] person and all these articulable
facts is reasonable suspicion that [appellant] might have illegal drugs
in the binder and/or his person.
10
[8.] AP Thompson’s search of [appellant’s] binder and wallet,
and his search and seizure of those items recovered the cocaine was
based upon reasonable suspicion the binder and/or his person might
contain illegal drugs.
[9.] . . . And [Thompson’s] . . . search of [appellant] . . . was
justified at its inception as AP Thompson had credible information
that [appellant] had committed a violation of school law and had
reasonable suspicion to believe he violated state law, possession of
some narcotics.
[10.] AP Thompson’s knowledge of what Rodriguez told him,
plus Thompson’s knowledge that [appellant] spoke to an outside
person and was handed books or a binder, as [appellant and] Castillo
admitted, and Rodriguez’s suspicion that a drug transaction had gone
down between [appellant] and [Summerall] and AP Thompson’s
result of search of Castillo and [appellant] were both reasonably
related in scope to the search and justified his interference with
[appellant] in the first place.
[11.] [T]he search of [appellant] was justified at its inception
because reasonable grounds existed for both Officer Rodriguez and
AP Thompson to believe that [appellant] violated school rules as to
truancy, as well as having reasonable grounds for suspecting
[appellant] has or is at the time in violation of the law of possessing
illegal drugs and the search was reasonably tailored to the
circumstances of the interference.
Accordingly, the search was reasonable and not a violation of
the Fourth Amendment to the U.S. Constitution,[3] Article 1, Section 9
of the Texas Constitution[4] and statutes of the State of Texas.
Standard of Review
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). “We review the trial court’s factual findings for an abuse of discretion, but
3
U.S. CONST. amend. IV.
4
TEX. CONST. art. I, § 9.
11
review the trial court’s application of law to the facts de novo.” Id. We give
almost total deference to a trial court’s determination of historical facts, especially
if those determinations turn on witness credibility or demeanor, and we review de
novo the trial court’s application of the law to facts not based on an evaluation of
credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim.
App. 2012); Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility and may choose to believe or disbelieve all or any part
of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as
here, the trial court makes findings of fact, we determine whether the evidence,
when viewed in the light most favorable to the trial court’s ruling, supports those
findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review
the trial court’s legal ruling de novo unless its explicit findings that are supported
by the record are also dispositive of the legal ruling. Id. We will sustain the trial
court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. Ross, 32 S.W.3d at 855–56.
Motion to Suppress Evidence
In his sole issue, appellant argues that the trial court erred in denying his
motion to suppress the cocaine seized from his binder and wallet because the
12
search was not “reasonably related to his truancy.” See U.S. CONST. amend. IV;
TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005); see
also New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740 (1985).
The Fourth Amendment applies to searches of students by school authorities.
T.L.O., 469 U.S. at 337, 105 S. Ct. at 740. However, the school setting requires
“some modification of the level of suspicion of illicit activity needed to justify a
search.” Id. at 340, 105 S. Ct. at 742. Accommodating both the privacy interests of
children and the substantial need of teachers and administrators to maintain order
“does not require strict adherence to the requirement that searches be based on
probable cause to believe the subject of the search has violated or is violating the
law.” Id. Rather, the legality of the search of a student “depend[s] simply on the
reasonableness, under all the circumstances.” Id. “By focusing attention on the
question of reasonableness, the standard . . . spare[s] teachers and school
administrators the necessity of schooling themselves in the niceties of probable
cause and permit[s] them to regulate [student] conduct according to the dictates of
reason and common sense.” Id. at 343, 105 S. Ct. at 743.
In determining the reasonableness of a search of a student by school
authorities, a court conducts a two-prong inquiry. Id. at 469 U.S. at 341, 105 S. Ct.
at 742–43; see Coronado v. State, 835 S.W.2d 636, 640 (Tex. Crim. App. 1992).
First, the search must be “justified at its inception.” T.L.O, 469 U.S. at 341, 105 S.
13
Ct. at 742–43. A search is justified at its inception if reasonable grounds exist to
suspect that the search will reveal evidence that a student has violated, or is
violating, the law or school rules. Id. at 341–42, 105 S. Ct. at 743. Second, the
search, “as actually conducted,” must be “reasonably related in scope to the
circumstances which justified the interference in the first place.” Id. at 341, 105 S.
Ct. at 743. This requirement is met if the measures used are “reasonably related to
the objectives of the search and are not excessively intrusive in light of the nature
of the infraction and the age and sex of the student.” Id. at 342, 105 S. Ct. at 743.
Here, appellant, in his brief, concedes that the search was justified at its
inception. See id. at 341, 105 S. Ct. at 742–43. He states that, “[a]dmittedly,” he
was “seen outside of the school building during school hours speaking with
[Summerall] at her car.” And, “[a]t that point,” Officer Rodriguez, who was
“legitimately investigating a violation of the school rule against truancy,” “lawfully
detained” him. He argues, however, that because “there is no evidence suggesting
a connection” between “his truancy” and the search of his binder and wallet, the
search was unreasonable under “the second prong of [T.L.O.].” See id. at 341, 105
S. Ct. at 743.
In support of his argument, appellant relies on Coronado v. State, 835
S.W.2d 636 (Tex. Crim. App. 1992). In Coronado, Benning, a high-school
assistant principal, received a tip from an informant that the defendant, a student,
14
had attempted to sell narcotics to another student. Id. at 637. Benning searched
the defendant, but found no contraband. Id. Several days later, a school secretary
informed Benning that the defendant was attempting to leave campus, purportedly
to attend his grandfather’s funeral. Id. After verifying that the defendant’s story
was false, Benning located the defendant and asked where he had parked his car.
Id. After the defendant replied that he had not driven to school that day, Benning
confirmed with another student that the defendant had in fact driven his car to
school. Id. And Benning sent a security officer to the student parking lot to locate
the defendant’s car. Id.
Benning then detained the defendant and called Randall, a sheriff’s deputy
assigned to the school, to his office. Id. at 638. After Benning “patted down” the
defendant “for safety,” he asked him to remove his shoes and socks and to “pull
down his pants.” Id. After a search lasting “approximately forty-five minutes,”
Benning, having found no contraband, searched the defendant’s locker. Id. Again
finding nothing, Benning, Randall, and a school security guard then accompanied
the defendant to his car, where Benning demanded that he open the car. Id. When
the defendant opened the trunk, Benning saw him attempt to hide a paper bag. Id.
at 639. Subsequently, Randall discovered in the trunk bags of white powder,
scales, and marijuana. Id. After Randall arrested the defendant and handcuffed
15
him to a chair in an office for “two to three hours,” he gave a statement in which he
revealed past and pending “drug deals.” Id.
The court concluded that Benning had “reasonable grounds to suspect that
[the defendant] was violating school rules by ‘skipping.’” Id. at 641. However,
the subsequent searches of the defendant’s clothing, person, locker, and car “were
not reasonably related in scope to the circumstances which initially justified
Benning’s interference with [the defendant], i.e., Benning’s suspicion of [the
defendant’s] skipping school.” Id. Rather, the searches were “excessively
intrusive in light of the infraction of attempting to skip school.” Id. And, “nothing
observed during the patdown or subsequent search of [the defendant’s] clothes and
person, or locker . . . justif[ied] Benning’s expansion of the search to [the
defendant’s] vehicle.” Id.
Here, unlike in Coronado, the record reveals suspicious behavior beyond
that of appellant’s truancy. Although Officer Rodriguez initially stopped appellant
to question him about being outside the school when he was supposed to be in
class, this alone did not constitute the basis for Thompson’s search of appellant.
At the time of his search, Thompson was aware that Rodriguez had seen appellant
and another student, Castillo, outside the school in a driveway, standing with
Summerall at the open trunk of her car. Thompson and Rodriguez each knew
Summerall as a former student with a history of narcotics use and promotion. And
16
Rodriguez had seen appellant “taking something” or “exchanging something out of
[Summerall’s] car,” specifically, “out of her trunk.” When Rodriguez approached,
Summerall closed the trunk, got into the car, and drove away. Castillo behaved
“very defensive[ly],” and he was “argumentative” toward Rodriguez. And
Thompson subsequently found marijuana in the back pocket of Castillo’s pants.
Moreover, appellant was evasive when Thompson asked him about his exchange
with Summerall. At that point, Thompson suspected that appellant had been
involved in a narcotics transaction and was carrying contraband. See T.L.O, 469
U.S. at 341, 105 S. Ct. at 742–43.
Thompson’s search progressed to appellant’s binder because appellant told
him that he had obtained the binder from Summerall, and Thompson’s secretary
told him that appellant, while seated in the waiting area, had acted “nervous,”
“play[ed] with” the binder, and placed it under his chair when he went in to speak
with Thompson. See id. at 342, 105 S. Ct. at 743.
In a similar case, a school police officer saw the defendant and another
student returning to school from “an off-campus excursion.” Landry v. State, No.
14-03-01254-CR, 2005 WL 725031, at *1 (Tex. App.—Houston [14th Dist.] Mar.
31, 2005, no pet.) (mem. op., not designated for publication). The officer
suspected that the defendant and the other student had violated school rules by
leaving campus without permission, and the officer communicated this information
17
to a second officer, Cook, who approached the defendant and performed a
pat-down search. Id. Cook then escorted the defendant to meet with an assistant
principal. Id. While in the assistant principal’s office, Cook saw the defendant
open her purse and “fumble” through it. Id. Because Cook feared that the
defendant might have a weapon, she took the purse from the defendant and placed
it on the principal’s desk. Id. The assistant principal subsequently searched the
purse “for weapons and contraband” and discovered marijuana. Id.
On appeal in Landry, the defendant argued that because there was no
evidence that she had been engaged in criminal activity, Cook did not possess the
requisite reasonable suspicion to justify the pat-down search or seizure of her
purse. Id. at *2. Further, because the assistant principal did not possess
information that the defendant had been engaged in illegal activity while off
campus, his subsequent search of her purse was not justified. Id. Cook had
testified that, in her experience, students taking unauthorized trips off campus often
“are either smoking or they are doing something they shouldn’t be doing,” and
they could return to campus with contraband. Id. Likewise, the assistant principal
testified that students returning from unauthorized trips off campus could return
with contraband. Id. And, at the time the assistant principal searched the
defendant’s purse, he was aware that the defendant and another student had been
seen returning to campus and that Cook had seen the defendant rummaging
18
through her purse. Id. at *3. The court concluded that the search of the
defendant’s purse was justified at its inception and reasonably related in scope to
determining whether the defendant possessed contraband. Id.
In another similar case, the defendant stood accused of the offense of
possession of cocaine in an amount less than one gram in a drug-free zone, and he
challenged the legality of the search. Briseno v. State, No. 05-02-01630-CR, 2003
WL 22020800, at *1 (Tex. App.—Dallas Aug. 28, 2003, no pet.) (not designated
for publication). An assistant principal approached the defendant in the hallway of
a school to find out why he was not in class. Id. The assistant principal noted that
the defendant was evasive and, upon arriving at his classroom, quickly dropped his
backpack under a table near another student. Id. The defendant’s evasiveness and
attempt to separate himself from the backpack led the assistant principal to suspect
that he was hiding contraband in the backpack. Id. The assistant principal then
told the defendant to “come into the library office and bring his backpack.” Id.
After the assistant principal found “a ziplock plastic bag of what appeared to be
marijuana inside the backpack,” he called the “school’s police officer liaison,” who
subsequently found cocaine on the defendant’s person. Id.
On appeal in Briseno, the defendant contended that his tardiness to class
coupled with the assistant principal’s subjective feeling that his behavior was
suspicious did not justify the search of his backpack. Id. at *2. The court held that
19
the assistant principal was justified in approaching the defendant because he was
“truant,” or at least late to class, and, therefore, in violation of school policy and
state law. Id. And, because the defendant was evasive and had dropped his
backpack under a table near another student, rather than carrying it to his own seat,
the court concluded that the assistant principal had a reasonable suspicion that the
defendant had contraband in his backpack. Id. And the court held that the search
of the defendant’s backpack was justified at its inception and reasonably related in
scope to the assistant principal’s suspicion that the backpack contained contraband.
Id. at *3.
Here, as in Landry and Briseno, appellant was seen by a school official, i.e.,
a campus police officer, outside of school or class, during the school day, without
authorization. See Landry, 2005 WL 725031, at *1; Briseno, 2003 WL 22020800,
at *1. And the officer initially stopped appellant for truancy. See Landry, 2005
WL 725031, at *1; Briseno, 2003 WL 22020800, at *1. After the officer escorted
appellant to the principal’s office, he became evasive, “act[ed] nervous,” and
“play[ed] with” the binder that he had obtained from Summerall while he was
outside of the school. See Landry, 2005 WL 725031, at *1; Briseno, 2003 WL
22020800, at *2. Moreover, he attempted to separate himself from the binder. See
Briseno, 2003 WL 22020800, at *1. And Thompson, based on his experience as a
school administrator, testified that students will typically hide narcotics in pockets,
20
binders, socks, and shoes. See Landry, 2005 WL 725031, at *2. Thus, the initial
stop, questioning, and searches of appellant followed a logical progression that led
to the discovery of cocaine in his wallet. See Coronado, 835 S.W.2d at 641.
Appellant asserts that nervousness and criminal history “alone” are
insufficient to establish reasonable suspicion. However, although nervousness
alone is not sufficient to establish reasonable suspicion, it is a factor to be
considered. Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012).
“Likewise, a prior criminal record does not by itself establish reasonable suspicion
but is a factor that may be considered.” Id.
Appellant further asserts that Thompson’s testimony reflects that he was
merely “speculating” that he “might” find narcotics on appellant when he decided
to search him. In T.L.O., a teacher discovered two students, in violation of school
rules, smoking in a school restroom. 469 U.S. at 328, 105 S. Ct. at 735. The
teacher escorted the students to the principal’s office, where one of the students
admitted that she had been smoking. Id. After T.L.O. denied that she had been
smoking, the principal demanded to look inside her purse. 469 U.S. at 328, 105 S.
Ct. at 735–36. In the purse, the principal found a pack of cigarettes and “rolling
papers.” Id. The discovery of the “rolling papers” prompted a more thorough
search of the purse, which revealed marijuana, a pipe, empty plastic bags, money, a
list of students, and information that implicated T.L.O. in marijuana dealing. Id.
21
The New Jersey Supreme Court concluded that the evidence was
inadmissible because possession of cigarettes was not in itself a violation of law or
school rules and, thus, the contents of T.L.O.’s purse could have “no direct bearing
on the infraction” of which she was accused (smoking in a restroom where
smoking was prohibited). Id. at 344, 105 S. Ct. at 744. The court further noted
that the teacher had no reasonable grounds to suspect that T.L.O. had cigarettes in
her purse, and there was no reason to search her purse. Id. At best, the teacher had
“a good hunch.” Id. at 345, 105 S. Ct. at 744.
In reviewing the New Jersey Supreme Court’s opinion, the United States
Supreme Court concluded that the principal’s search of the student’s purse was
justified at its inception because a teacher had reported that T.L.O. had been
smoking in a restroom. Id. at 345–46, 105 S. Ct. at 745. The Supreme Court
explained that the principal had reason to suspect that T.L.O. was carrying
cigarettes, and, if T.L.O. did have cigarettes, her purse was the obvious place in
which to find them. Id. The principal’s suspicion that T.L.O. had cigarettes in her
purse was not an “inchoate and unparticularized suspicion or ‘hunch.’” Id. at 346,
105 S. Ct. at 745. Rather, it was the “sort of ‘common-sense conclusio[n] about
human behavior’ upon which ‘practical people’—including government officials—
are entitled to rely.” Id.
22
Likewise, as discussed above, Thompson’s suspicion that appellant had
contraband on his person or in the binder he had just obtained from Summerall was
not just a “hunch.” See id. at 343, 105 S. Ct. at 743 (focusing legality of search of
student “on the reasonableness, under all the circumstances” allows school
administrators “to regulate [student] conduct according to the dictates of reason
and common sense”). The trial court could have reasonably concluded that
Thompson’s search of appellant was justified at its inception because reasonable
grounds existed to suspect that the search would reveal evidence that appellant was
violating the law by possessing narcotics. See id. at 341, 105 S. Ct. at 742–43.
And it could have further reasonably concluded that Thompson’s search was
reasonably related in scope to that objective and was not excessively intrusive. See
id. at 342, 105 S. Ct. at 743. Accordingly, we hold that the trial court did not err in
denying appellant’s motion to suppress evidence.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
23
Juan Alejandro Valderama v. State
Combined Opinion