Filed 1/11/21 In re Jesus R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
In re JESUS R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, F080442
Plaintiff and Appellant, (Super. Ct. No. JJD071730)
v.
OPINION
JESUS R.,
Defendant and Respondent.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Robin L. Wolfe,
Judge.
Tim Ward, District Attorney, Dan Underwood, Chief Deputy District Attorney,
Dave Alavezos, Assistant District Attorney, Jessica Weatherly and Adam Clare, Deputy
District Attorneys, for Plaintiff and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
The People appeal from an order dismissing a juvenile wardship petition (Welf. &
Inst. Code, § 602)1 involving minor Jesus R. following the grant of minor’s motion to
suppress evidence (§ 700.1).
We affirm.
FACTUAL AND PROCEDURAL HISTORY
On June 10, 2019, the People filed a juvenile wardship petition pursuant to
section 602, alleging that minor violated Penal Code section 626.10, subdivision (a), by
possessing a weapon on school grounds. On July 31, 2019, minor filed a motion to
suppress evidence pursuant to section 700.1. On October 15, 2019, the court held a
hearing on the motion.
At the hearing, Detective Maria Aguilar2 of the Porterville Police Department
testified that she was working as a school resource officer on February 1, 2019, at
approximately 9:30 a.m., when she responded to Vine Street Community Day School for
a report of a juvenile in possession of marijuana. Once there, the principal told Aguilar
that three students, one of whom was minor, smelled strongly of marijuana. Aguilar
entered the classroom where the three students were located. Other students also were
present. Aguilar smelled a strong odor of marijuana.
Aguilar asked minor to step outside into the yard, and advised him that he was not
arrested or detained, but that she was trying to figure out who was smoking marijuana
before school. Aguilar testified that she conducted a patdown search of minor for “his
safety and [hers].” Aguilar did not ask minor any questions before she patted him down.
During the search, Aguilar felt something hard, approximately three inches in length by
one to one and a half inches in width, and believed it to be a pocketknife. She located a
1 Subsequent statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
2 The crime report and notice to appear list the responding officer as “M. Aguillon.”
However, at the hearing she gave her last name as Aguilar. We refer to her as Aguilar.
2.
folding blade in the right front pocket of his shorts. She did not locate any marijuana on
minor. She placed him under arrest.
At the hearing, Aguilar could not recall whether she observed any signs or
symptoms indicating minor was under the influence of marijuana, and acknowledged that
she did not note any such signs or symptoms in her report. She did, however, note in her
report that minor smelled of marijuana. She confirmed that she smelled marijuana on
minor “when [she] arrived that morning.”
The court asked Aguilar to explain why she felt she needed to conduct a patdown
search, and she responded as follows:
“I worked schools for at least a year and a half. I’ve taken numerous knives
from juveniles from elementary school, fourth grade -- I believe that was
the youngest -- to numerous in high school. I will say that numerous times
that whenever I collect marijuana, when a child is in possession of
marijuana, about a third of those students will also have a knife, which led
me to believe that they had a strong odor of marijuana then I need to protect
them and myself just in case they do have one.”
The court asked whether there was anything in particular about minor that caused her
concern, and she responded that there was not.
The court granted the defense motion on the ground that Aguilar testified she
routinely conducts patdown searches as a matter of common practice or procedure for her
safety and the safety of the minor, but she did not articulate any specific facts to believe
minor was armed and dangerous.
In light of the suppression motion being granted, defense counsel asked that the
case be dismissed, and the People also invited the court to dismiss. The court
accordingly dismissed the petition for insufficient evidence.
DISCUSSION
The People contend the juvenile court erred by considering Aguilar’s subjective
reason for conducting the patdown search, i.e., her suspicion that minor possessed a
weapon. The People argue the search instead was supported by reasonable suspicion
3.
because minor smelled of marijuana. Minor asserts the People did not argue this theory
below and, in any event, the smell of marijuana did not provide reasonable suspicion to
search minor for marijuana. For the reasons set forth below, we conclude the motion to
suppress was properly granted.
A. Applicable Law
Determining the reasonableness of a search of a student is a two-fold inquiry:
(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 that justified
the initial search. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341.) Under both the
United States Constitution and the California Constitution, a search of a student by school
officials is warranted 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.” (T.L.O., at p. 342; accord, In re William G. (1985) 40
Cal.3d 550, 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.” (William G., at p. 564.)
In reviewing a motion to suppress, we defer to the trial court’s factual findings if
they are supported by substantial evidence, but consider questions of law independently.
(People v. Alvarez (1996) 14 Cal.4th 155, 182.) Whether an officer subjectively believed
that a person was involved in criminal activity is a question of fact, subject to the
substantial evidence test. (People v. Leyba (1981) 29 Cal.3d 591, 597–598.) Whether it
was objectively reasonable for the officer to entertain that suspicion is a question of law,
reviewed de novo. (Ibid.) These same standards of review apply to juvenile cases. (In re
Lisa G. (2004) 125 Cal.App.4th 801, 805 (Lisa G.); In re Joseph G. (1995) 32
Cal.App.4th 1735, 1738–1739.)
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B. Analysis
Aguilar testified that her search of minor was not based on individualized
suspicion, but rather her common practice and procedure, “just in case” minor possessed
a knife. The juvenile court found Aguilar did not conduct the search based on any
specific, articulable facts concerning minor. The People do not dispute this finding
which, in any event, is supported by substantial evidence. (Lisa G., supra, 125
Cal.App.4th at p. 805 [“When reviewing a ruling on a motion to suppress evidence, we
first determine whether the trial court’s factual findings, express or implied, are supported
by substantial evidence.”].) The trial court did not err in concluding the search was not
justified on this basis.
The People contend the juvenile court should have considered whether the search
was justified on another basis, not articulated by Aguilar: the fact that minor smelled of
marijuana. However, Aguilar did not express suspicion that a search of minor would
reveal marijuana or other related contraband. (Lisa G., supra, 125 Cal.App.4th at p. 807
[“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.”].)
The People bear the burden “of proving that [a] warrantless search or seizure was
reasonable under the circumstances” (People v. Williams (1999) 20 Cal.4th 119, 130);
accord, People v. Johnson (2006) 38 Cal.4th 717, 723), and the law enforcement
personnel who decided to proceed with a warrantless search “are in the best position to
know what justification, if any, they had for doing so” (Williams, at pp. 129–130;
Johnson, at p. 723). Here, the trial court properly relied on Aguilar’s proffered
justification for the search in determining the search was unreasonable.
The People also contend Aguilar’s subjective reasons for conducting the search
were irrelevant. However, the cases relied on by the People in support of this proposition
are inapposite. (See People v. Logsdon (2008) 164 Cal.App.4th 741, 744–745; People v.
Miranda (1993) 17 Cal.App.4th 917, 925; People v. Uribe (1993) 12 Cal.App.4th 1432,
5.
1436.) Each of these cases considered whether a traffic stop by an officer constituted a
lawful detention. (Miranda, at pp. 922–926; Logsdon, at pp. 744–745; Uribe, at
pp. 1436–1439.) In Miranda and Uribe, it was conceded that the officer had at least
reasonable suspicion that the driver had violated the Vehicle Code, but it was alleged the
Vehicle Code violation provided merely pretextual cause for the officer to search for
evidence of some other crime.3 (Miranda, at p. 922; Uribe, at p. 1436.) In that context,
the court held that “the subjective motivation of an arresting officer is irrelevant in
determining the propriety of a traffic stop.” (Miranda, at p. 925; accord, Uribe, at
p. 1436.) In other words, these cases stand for the proposition that a detention supported
by reasonable suspicion is not rendered invalid merely because the officer may have had
another, pretextual motive for the search. The cases do not hold that a trial court may, let
alone must, find a search justified on a basis not articulated by the officer.
Ultimately, the People did not rely below on the argument that the search was
justified by suspicion that it would reveal evidence of marijuana use. In their written
opposition to the motion to suppress, the People presented three, briefly stated arguments:
(1) the smell of marijuana raised a reasonable suspicion that minor had used marijuana
recently;4 (2) the search was permissible under Terry v. Ohio (1968) 392 U.S. 1, which
imposes a more exacting standard than that applicable to searches by school officials; and
(3) minor was on probation and subject to a warrantless search condition.5 In their oral
argument to the court, the People argued primarily that the search was permissible under
Terry because Aguilar suspected minor had a weapon. The People concluded by citing
3 Logsdon merely quotes from Miranda, and does not add to the analysis. (People
v. Logsdon, supra, 164 Cal.App.4th at p. 745.)
4 Again, however, the People did not specifically argue that the officer had
“reasonable grounds for suspecting that the search [would] turn up evidence” of
marijuana use. (New Jersey v. T.L.O., supra, 469 U.S. at p. 342.)
5 The People do not argue on appeal that the search was permissible because minor
was on probation, and we therefore do not consider this contention.
6.
People v. Marshall (1968) 69 Cal.2d 51, overruled on another ground by Guidi v.
Superior Court (1973) 10 Cal.3d 1, 17, fn. 18, and stating, “And there is similar case law
in—out of California, specifically regarding the odor of marijuana being enough to make
a search, you know, reasonable and … there’s many more, but I won’t take up the
Court’s time citing everything.”
Based on the foregoing, the People cannot now argue that the court’s focus on
Aguilar’s suspicion that minor had a weapon was misplaced. That was the theory
advanced by the People and the court necessarily disposed of it. Had Aguilar asserted
that she believed a search of minor would reveal marijuana or other related contraband,
or had the People coherently raised such an argument, the court would have been
compelled to consider it and to make factual findings regarding whether that belief was a
credible explanation for Aguilar’s action, and then to determine whether the search was
justified on that basis. (People v. Leyba, supra, 29 Cal.3d at p. 596.) However, Aguilar
did not assert such a suspicion; to the contrary, she stated nothing about minor caused her
any particular concern.
Finally, the cases cited by the People regarding marijuana-related searches are
distinguishable. (People v. Cook (1975) 13 Cal.3d 663, 668–669 [officers had probable
cause to believe a car contained contraband based on the “strong aroma of fresh
marijuana” emanating from inside the vehicle], disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 421; People v. Strasburg (2007) 148 Cal.App.4th 1052,
1055, 1059 [officer had probable cause to search car, where the defendant opened the
driver’s side door and the officer immediately smelled the odor of marijuana], superseded
by statute as stated in People v. Johnson (2020) 50 Cal.App.5th 620, 628–629; see People
v. Waxler (2014) 224 Cal.App.4th 712, 720 [odor of marijuana justifies the warrantless
search of an automobile under Strasburg], superseded by statute as stated in Johnson, at
p. 629; see also People v. Coleman (1991) 229 Cal.App.3d 321, 323, 327 [officers had
probable cause to search a driver, where they had a tip that drugs were being sold out of a
7.
described vehicle at a described location, a vehicle matching the description was
surrounded by multiple people, and a marijuana cigarette was seen in plain sight on the
car console].) Minor was not in an enclosed space, such as a vehicle, that smelled of
marijuana. Rather, he arrived at school with two other students who, collectively,
smelled of marijuana. Aguilar later encountered him in a classroom with other students
and noticed the smell of marijuana. Yet, Aguilar testified she had no particularized
suspicions regarding minor. She certainly articulated no suspicion that he was in
possession of marijuana.
Based on the foregoing, the court did not err in granting minor’s motion to
suppress.
DISPOSITION
The order dismissing the petition is affirmed.
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