C.S. v. State

SHARPNACK, C.J.,

concurring in part and dissenting in part.

I respectfully disagree with the majority’s conclusion that Sergeant Gaines’ search of C.S. was constitutionally valid, and as a result I also conclude that there was insufficient evidence to support the trial court’s finding that C.S. is a delinquent, child. I agree with the majority that the evidence was sufficient to support the trial court’s revocation of C.S.’s probation, but I reach that conclusion by different reasoning.

The standard by which we analyze school searches is whether the search is reasonable under all the circumstances. New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 742-743, 83 L.Ed.2d 720 (1985). A school search is reasonable when it is justified at. its inception and when the search must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. D.I.R. v. State, 683 N.E.2d 251, 253 (Ind.Ct.App.1997). I do not agree that the search here was justified at its inception.

A search is justified at its inception when there are reasonable' grounds for suspecting that the search will turn up evidence that the student is or has violated either the law or a school rule. Id. In this case, all that the record reveals is that Sergeant Gaines received information from a student about C.S. that caused her to remove C.S. from the classroom and search him.5 I conclude that this evidence is insufficient to demonstrate that Sergeant Gaines had a reasonable basis to suspect that C.S. was violating the law or school rules. See id. (determining that a school official’s search of a student was unconstitutional because the school official had no reasonable grounds to suspect that the defendant was violating the law or school rules). Students have a diminished expectation of privacy in school, but school *278officials must provide some justification for searching a student. The evidence in the record does not reveal any justification at all.

Furthermore, the search cannot be justified under the “officer safety” exception to the warrant requirement of the Fourth Amendment. Under this exception, an officer may pat down a suspect for weapons if he or she can point to specific reasonable inferences that would cause a reasonably prudent person to be warranted in the belief that his or her safety or that of others was in danger. See L.A.F. v. State, 698 N.E.2d 355, 356 (Ind.Ct.App.1998). In the instant case, Sergeant Gaines merely stated that she searched C.S. for “officer safety” without articulating any specific facts that would have warranted a belief that she was in danger. Such general assertions are insufficient to establish that a reasonably prudent person would be warranted in the belief that his or her safety was in danger. See id.

Consequently, I conclude that the trial court abused its discretion when it admitted the handgun into evidence for the purpose of adjudicating the delinquency charges against C.S., and I would reverse the trial court’s finding that C.S. is a delinquent child. See, e.g., Jackson v. State, 669 N.E.2d 744, 750 (Ind.Ct.App.1996) (reversing a defendant’s convictions for drug possession where the drugs were illegally seized and were the only evidence of guilt).

Turning to the probation revocation petition, I agree that a probation revocation hearing is in the nature of a civil proceeding, and because such a proceeding is not an adjudication of guilt, a defendant is not endowed with all of the rights he or she possessed before his conviction. Plue v. State, 721 N.E.2d 308, 310 (Ind.Ct.App. 1999). In addition, the exclusionary rule is not fully applicable to probation revocation proceedings, and illegally seized evidence “ Vill be excluded only if it was seized as part of a continuing plan of police harassment or in a particularly offensive manner.’” Id. (quoting Dulin v. State, 169 Ind.App. 211, 219, 346 N.E.2d 746, 751 (1976)).

Here, C.S. does not claim that Sergeant Gaines harassed him as part of a continuing plan. Furthermore, although an intrusion into an individual’s privacy by means of a search should not be taken lightly, I cannot conclude that Sergeant Games’ search of C.S. was conducted in a particularly offensive manner. See id. (determining that a search was not conducted in an offensive manner where the officer patted down, restrained, and handcuffed a probationer before discovering the challenged evidence). Consequently, even though Sergeant Gaines’ search of C.S. was unconstitutional, the handgun was properly admitted for the purpose of adjudicating the probation revocation petition. See id. Because the handgun was properly admitted for the purpose of the probation revocation petition, I agree with the majority that the evidence is sufficient to support the trial court’s revocation of C.S.’s probation.

I affirm the trial court’s revocation of C.S.’s probation, but I would reverse the trial court’s finding that C.S. is a delinquent child.

. As the majority indicates, the specific information that the student told to Sergeant Gaines was not admitted in evidence. A hearsay objection to it was sustained and no offer to prove was made. Because the information was most likely relevant to the issue of whether Sergeant Gaines had probable cause to call out C.S. and frisk him, it was most likely not hearsay and should have been admitted.