Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Benny C. Osorio, No. MJ19251 Judge Presiding.
Esther Sorkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General; Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
Kameron V. appeals from an order declaring him a ward of the juvenile court for unlawfully possessing a weapon on school property. (See Pen. Code, § 626.10, subd. (a).) Kameron contends the evidence against him should have been suppressed because it was discovered through an unlawful search. (Welf. & Inst. Code, § 700.1.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Wendy Ihrig was a campus supervisor in the gangs and graffiti unit at Antelope Valley High School. On December 16, 2009, Ihrig searched the backpack of Kameron V., a student at the school, and discovered a locking-blade knife.
On February 19, 2010, the People filed a petition under Welfare and Institutions Code section 602 alleging that Kameron violated Penal Code section 626.10, subdivision (a) by possessing a weapon on school grounds. Kameron filed a motion to suppress the blade, arguing that Ihrig lacked reasonable suspicion to search his backpack. (See Welf. & Inst. Code, § 700.1.)
Ihrig, who was the only witness at the suppression hearing, testified that school rules prohibited students from writing on school property or having any form of writing on their backpacks, their shoes or their bodies. In her role as a campus supervisor, Ihrig was authorized to investigate any form of graffiti, including “any writing on... school grounds” or on “property belonging to the student[s].”
Ihrig stated that, prior to the day of the search, she had seen Kameron associating with two different “tagging crew[s]” named “FTK” and “THUK.” Ihrig was aware that members of both groups were “known to have committed graffiti in the past.” Although Ihrig had never seen Kameron “tagging, ” she stated that she had wanted to question him about “graffiti... believe[d to be] his” on numerous past occasions. On each such occasion, however, Kameron was not at school and therefore could not be interviewed. Ihrig also said she had previously “conferenced with Kameron about having any kind of writing on paper or in his backpack....”
Ihrig testified that on December 16, 2009, a campus security officer brought Kameron into a detention room because he was wearing a beanie that violated the school dress code, which only permitted students to wear solid black beanies or beanies that were purchased from the school store. Ihrig, who was present in the detention room, stated that Kameron became argumentative with the security officer, telling him: “Fuck that. I’m not taking off my beanie. You can’t tell me what to wear. I’m not going to wear anything else.” Ihrig tried to calm Kameron down and offered him a new beanie from the school store.
Kameron became very agitated and stood up to leave the detention room. Although he was ordered to sit down, Kameron continued to stand and grabbed his backpack. At that moment, Ihrig noticed that there was writing on Kameron’s backpack. The backpack, which was introduced as evidence at the suppression hearing, had the word “Mighty” written in a “yellowish color.” It also had the letters “N-O-R-M-A-K” written on the side and a stamp of the letters “NHC.” After seeing the writing, Ihrig elected to search the interior of the backpack and found a locking-blade knife and a drill bit. Kameron was sent to the vice-principal’s office and was later arrested by a deputy sheriff.
When Kameron’s counsel asked Ihrig why she had conducted the search, she said she believed “the fact that Kameron had writing on his backpack and associate[d] himself with FTK and THUK” provided sufficient grounds to search the bag. Ihrig further stated that although she thought any writing on a student backpack would provide sufficient cause to search the student’s bag, she admitted that school officers did not search every student who had writing on his or her backpack.
When the trial court asked Ihrig to explain what she “had reasonable suspicion to believe” at the time of the search, she responded: “there was writing on his backpack, therefore I wanted to see if there is writing inside of his backpack, on any papers or any textbooks or anything that might be linked to school campus.” She also explained that, during graffiti investigations, she was generally looking for “graffiti tools. They’re not allowed to have any kind of permanent markers, any kind of sharpies on campus. And when they have writing on their backpack which appears to be a permanent marker, we’re going to look for that. We want to take those items from the kids.”
At the conclusion of the hearing, the court denied the motion to suppress, finding that “the search was justified and that the scope of the search was reasonably related to the circumstances, and that being the further investigation of the graffiti or the writing investigation pursuant to school policies and codes. [¶]... [U]nder these facts and circumstances, the court will deny the 700.1 motion.”
After the court denied the motion, Kameron admitted the allegations in the petition and was granted a deferred entry of judgment. The deferral of judgment was subsequently revoked due to Kameron’s violations of the court’s orders. At the disposition hearing, which was held on April 11, 2011, Kameron was declared a ward of the court pursuant to Welfare and Institutions Code section 602 and placed home on probation. Kameron filed a timely appeal.
DISCUSSION
On appeal, Kameron argues that the juvenile court should have suppressed the locking blade found in his backpack because Ihrig conducted the search without reasonable suspicion.
A. Standard of Review
In reviewing a ruling on a motion to suppress, whether arising from a juvenile court or adult criminal proceeding, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (In re William V. (2003) 111 Cal.App.4th 1464, 1468 (William V.).) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (William V., supra, 111 Cal.App.4th at p. 1468.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562 (Randy G.); In re Lance W. (1985) 37 Cal.3d 873, 885-890.)
B. Summary of the Fourth Amendment’s Application in the Context of Schools
The Fourth Amendment applies to searches of students attending public schools. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 656 (Vernonia); In re Randy G., supra, 26 Cal.4th at p. 561.) In the context of schools, however, the Fourth Amendment must be applied in a manner that accommodates the governmental interest in our education system, which the California Supreme Court has described as “‘perhaps the most important function of state and local governments.’ [Citation.] ‘Some modicum of discipline and order is essential if the educational function is to be performed.’” (Randy G., supra, 26 Cal.4th at p. 566; see also In re Sean A. (2011) 191 Cal.App.4th 182, 186 (Sean A.) [when applying Fourth Amendment to school searches, “[t]he need to maintain discipline, provide a safe environment for learning and prevent the harmful impact on the students and staff of drugs and weapons cannot be denied”].)
Because “‘special needs’ inhere in the public school context, ” (Board of Ed. of Independent School Dist. No. 92 of Pottawatomie City. v. Earls (2002) 536 U.S. 822, 829 (Earls)), “the privacy interests of schoolchildren [sic.]... do[] not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all circumstances, of the search.” (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341 (T.L.O.); see also Sean A., supra, 191 Cal.App.4th at p. 186 [“strict application of the principles of the Fourth Amendment as used in criminal law enforcement matters does not appropriately fit the circumstances of the operation of the public schools”].) “Fourth Amendment rights... are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibilities for children.” (Vernonia, supra, 515 U.S. at p. 656; see also Earls, supra, 536 U.S. at p. 831 [“Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults”]; In re William G. (1985) 40 Cal.3d 550, 563 (William G.) [“students’ zones of privacy are considerably restricted as compared to the relation of a person to the police – whether on the street or at home”].)
Our courts have generally distinguished between two types of public school searches: (1) administrative or regulatory searches conducted pursuant to an established policy or procedure, rather than on individualized suspicion (see generally Sean A., supra, 191 Cal.App.4th 182 [metal detector weapons searches]; In re Latasha W. (1998) 60 Cal.App.4th 1524 (Latasha W.) [search of all persons returning to campus in middle of day]); and (2) searches predicated on individualized suspicion of wrongdoing. (In re Lisa G. (2004) 125 Cal.App.4th 801, 805 (Lisa G.).)
In this case, the Attorney General argues that Ihrig’s search was reasonable within the meaning of the Fourth Amendment because it was conducted pursuant to an established policy that permitted school officials to search the interior of any backpack that was found to have writing on it. Alternatively, the Attorney General argues that the search was “legally justified [because it] was based on a reasonable suspicion of wrongdoing.”
C. The Search Was Not an Administrative or Regulatory Search
1. Summary of administrative or regulatory searches in the context of schools
Ordinarily a search or seizure in the absence of individualized suspicion of criminal activity is unreasonable and violates the Fourth Amendment. (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 37; Randy G., supra, 26 Cal.4th at p. 565.) However, in the context of schools, courts have upheld the use of “‘special needs’ administrative searches, conducted without individualized suspicion, ... where the government need is great, the intrusion on the individual is limited, and a more rigorous standard of suspicion is unworkable.” (Latasha W, supra, 60 Cal.App.4th at p. 1527.) These administrative searches are generally deemed to be lawful when conducted pursuant to an established policy that includes “‘safeguards’... ‘to assure that the individual’s reasonable expectation of privacy is not “subject to the discretion of the official in the field.”’ [Citations.]” (T.L.O., supra, 469 U.S. at p. 342, fn. 8.)
The United States Supreme Court has approved the use of suspicionless administrative searches in numerous other contexts in which the intrusion serves “special governmental needs, beyond the normal need for law enforcement” and where “it [would be] impractical to require a warrant or some level of individualized suspicion.” (Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665-666 [affirming use of suspicionless drug testing of Customs Service employees seeking transfer or promotion to positions that required carrying a firearm or involved efforts to prevent importation of illegal drugs]; New York v. Burger (1987) 482 U.S. 691, 702-704 [affirming use of warrantless inspections of the physical premises of “closely regulated” businesses]; Camara v. Municipal Court (1967) 387 U.S. 523, 534-539 [affirming the use of inspections to ensure compliance with municipal housing codes ].) The California Supreme Court has affirmed the use of similar “administrative” searches. (People v. Banks (1993) 6 Cal.4th 926 [affirming the use of sobriety checkpoints]; People v. Hyde (1974) 12 Cal.3d 158, 165-166 [affirming airport security searches].).
For example, in Latasha W., supra, 60 Cal.App.4th 1524, the appellate court reviewed a weapons search conducted [on a student] pursuant to “a written policy... [intended] to protect students and staff.” (Id. at p. 1526.) Under the terms of the policy, the weapons “searches were to be made at random, and persons to be searched selected on neutral criteria. Parents and students were given notice before institution of this practice, and again at frequent intervals. [¶] Searches were conducted using a hand-held metal detector, waved next to the student’s person. Students were asked to open jackets or pockets to reveal items which triggered the detector.” (Ibid.) A school official searched the defendant pursuant to the policy and discovered a knife. The defendant was charged with “bringing on school grounds a knife with a blade longer than 2.5 inches.” (Id. at p. 1526.)
The appellate court upheld the school’s administrative search based on three factors. First, the court found that “[t]he need of schools to keep weapons off campuses is substantial.” (Latasha W., supra, 60 Cal.App.4th at p. 1527.) Second, the court found that the metal detector searches “were minimally intrusive.” (Ibid.) Third, the court concluded that “no system of more suspicion-intense searches would be workable. Schools have no practical way to monitor students as they dress and prepare for school in the morning, and hence no feasible way to learn that individual students have concealed guns or knives on their persons, save for those students who brandish or display the weapons.” (Ibid.)
More recently, in In re Sean A., supra, 191 Cal.App.4th 182, the court affirmed a search conducted pursuant to a written policy requiring school administrators to search any students “who le[ft] campus and then return[ed] during the school day.” (Id. at p. 185.) The purpose of the rule, which was published in the student handbook, was “‘to ‘keep students that are on campus safe’ and to ensure that ‘nobody’s bringing anything on campus they shouldn’t.’” (Ibid.) An attendance clerk observed the defendant returning to campus in the middle of the school day and referred the matter to the assistant principal. In compliance with the school’s search policy, the assistant principal asked the defendant to empty his pockets. The defendant produced a plastic bag containing illegal drugs and was charged with possession of a controlled substance for the purpose of sale. The defendant moved to suppress evidence of the drugs, but the trial court denied the motion.
The appellate court affirmed, explaining that “[t]he search... was conducted pursuant to an established policy. Every student who leaves the campus and then returns is subject to search upon return. The students and their parents receive notice of the policy as part of the school’s behavior code. The search... was carried out without touching the student, who was required only to empty his pockets. The assistant principal testified the purpose of the search policy is to keep the school environment safe.” (Sean A., supra, 191 Cal.App.4th at p. 188.) The court concluded that “the search... was consistent with the type of action on the part of a school administrator that falls well within the definition of ‘special needs’ of a governmental agency.... Given the general application of the policy to all students engaged in a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment, we conclude that further individualized suspicion was not required.” (Id. at pp. 189-190.)
Although Latasha W. and Sean A. both involved searches conducted pursuant to an established policy, the United States Supreme Court has also upheld the use of administrative or regulatory searches “in emergency situations.” (See Michigan v. Tyler (1978) 436 U.S. 499, 509-510 [firefighters need not obtain warrant before entering a burning building to investigate the cause of the fire].) In this case, the Attorney General does not contend that the search was justified because of an emergency.
2. The record demonstrates that Ihrig’s search was not conducted pursuant to a school “policy”
The Attorney General contends that, as in Latasha W. and Sean A., Ihrig’s search was lawful because it was conducted pursuant to a policy that permitted school officials to search any backpack that had writing on its exterior. The Attorney General further contends that this policy was intended to “allow a school supervisor to determine whether any of the graffiti found on or in a student’s backpack matched graffiti that had defaced school property. Such monitoring for graffiti does not constitute a significance invasion of privacy.”
The record does not support the Attorney General’s contention that the search in this case was conducted pursuant to a school policy. Ihrig repeatedly testified that she searched Kameron’s backpack because she believed she had “reasonable suspicion” of wrongdoing. Ihrig also stated that she thought “the fact that Kameron had writing on his backpack and associates himself with FTK and THUK gave [her] the right to search his backpack.” Although Ihrig testified that school rules forbid students from having writing on their backpacks, she admitted that the school did not search every backpack with writing on it: “We don’t allow any writing or anything on the backpack or on themselves that we see. We don’t even allow a smiley face. Do we search every student that has writing on the backpack? Absolutely not.”
Ihrig’s statements demonstrate she did not search Kameron pursuant to a school policy applicable to students with writing on their backpacks. Indeed, Ihrig never even referenced such a policy. Instead, she stated that she conducted the search because: (1) she believed she had “reasonable suspicion, ” and (2) she believed the individual circumstances of the case warranted a search. Moreover, Ihrig’s admission that the school did not search every student with writing on his or her backpack contradicts the Attorney General’s assertion that a policy existed providing for the search of all such students.
D. The Search Was Supported by Reasonable Suspicion
The Attorney General also argues that Ihrig’s search was lawful because there were reasonable grounds for suspecting that the search would reveal evidence of wrongdoing.
I. Legal standards applicable to student searches based on individualized suspicion of wrongdoing
Student searches based on individualized suspicion fall within “an exception to the warrant and probable cause requirements.” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1739.) In the context of schools, “a search of a student by a teacher or other school official will [ordinarily] be justified... when there are reasonable grounds for suspecting the search will disclose evidence the student has violated or is violating the law or school rules. [Citation.]” (Lisa G, supra, 125 Cal.App.4th at p. 806.) Although this “‘[r]easonable suspicion’ [standard] is a lower standard than probable cause[]” (In re Cody S. (2004) 121 Cal.App.4th 86, 91), there “must be articulable facts supporting that reasonable suspicion.” (William G, supra, 40 Cal.3d at p. 564; Lisa G., supra, 125 Cal.App.4th at p. 806.) There must also be “[a] correlation between the wrongful behavior of the student and the intended findings of the search....” (Lisa G., supra, 125 Cal.App.4th at p. 807.) “Neither indiscriminate searches of lockers nor more discreet individual searches of a locker, a purse or a person... can take place absent the existence of reasonable suspicion. Respect for privacy is the rule – a search is the exception.’” (William G., supra, 40 Cal.3d 550 at p. 564.) A search of a student “[may not be] predicated on mere curiosity, rumor, or hunch.” (Ibid.)
Whether the facts support a reasonable suspicion of wrongdoing “is measured by an objective standard, not by the particular [school administrator’s] state of mind at the time of the [search].” (People v. Conway (1994) 25 Cal.App.4th 385, 388; see also People v. Greenwood (2010) 189 Cal.App.4th 742, 749 (Greenwood) [“The reasonableness of a search under the Fourth Amendment is determined objectively, and an officer’s subjective motivation is irrelevant to the constitutional issue”].) “As [the United States Supreme Court has] repeatedly explained, ‘“the fact that the [state agent] does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s actions does not invalidate the action as long as the circumstances, viewed objectively, justify that action.”’ [Citation.] “‘[T]he Fourth Amendment’s concern with “reasonableness” allows certain actions to be taken in certain circumstances, whatever the subjective intent.’ [Citation.]” (Devenpeck v. Alford (2004) 543 U.S. 146, 153.)
“In sum, [the] standard [applicable to student searches based on individual suspicion] 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., supra, 40 Cal.3d at p. 564.)
In In re William G., supra, 40 Cal.3d 550, the California Supreme Court applied these principles in reviewing a school official’s search of a student he suspected was tardy for class. While questioning the student as to why he was late for class, the official noticed the student was carrying a calculator case with an odd-looking bulge. (Id. at p. 555.) After several unsuccessful attempts to obtain the student’s consent to examine the case, the school official forcefully took the case and searched it. The case contained marijuana, a scale and Zigzag cigarette papers. (Ibid.)
The court concluded that the search was unlawful, explaining that the school official had failed to “articulate[]... [any] facts to support a reasonable suspicion that [the student] was engaged in a proscribed activity justifying a search. The record reflects a complete lack of any prior knowledge or information... relating [the student] to the possession, use, or sale of illegal drugs or other contraband. [Citations.] [The school official’s] suspicion that [the student] was tardy or truant from class provided no reasonable basis for conducting a search of any kind.” (Id. at p. 566.)
In Lisa G., supra, 125 Cal.App.4th 801, the court reached a similar conclusion in reviewing whether a teacher unjustifiably searched a student’s purse after the student engaged in disruptive behavior and left class without permission. (Id. at pp. 805-806.) The teacher alleged that she searched the purse to find the student’s identification, which would enable the teacher to write a disciplinary referral. Upon opening the purse, the teacher saw a knife and called security. (Id. at p. 805.) The court ruled that the search was not reasonable, explaining “[t]here are no facts in the record suggesting [the teacher] had any suspicion [the defendant] had engaged or was engaging in any proscribed activity justifying a search. There was no suspicion [the defendant] had a knife or other prohibited item in her purse that justified [the teacher] opening it. The only misbehavior [defendant] engaged in was being disruptive in class. Mere disruptive behavior does not authorize a school official to rummage through his or her students’ personal belongings.” (Id. at p. 807.)
In contrast, in New Jersey v. T.L.O., supra, 469 U.S. 325, the United States Supreme Court upheld a search that occurred after a teacher found the defendant and her companion smoking cigarettes in the school restroom in violation of a school rule. (Id. at p. 328.) The defendant was referred to the assistant vice-principal and denied that she had been smoking in the lavatory. She also claimed that she did not smoke at all. (Ibid.) The assistant vice-principal searched the defendant’s purse for cigarettes and found cigarettes, marijuana and other evidence suggesting the student was engaged in drug dealing. (Ibid.)
The court held the search was justified because the school official had received information indicating that the student was smoking, thereby establishing reasonable suspicion that the student had cigarettes in her purse. (T.L.O., supra, 469 U.S. at p. 345.) The court explained that the evidence established that there was a “‘nexus’ between the item searched for and the infraction under investigation”: the search was intended to reveal whether the student had cigarettes, which would “both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking.” (Ibid.)
2. Ihrig’s search was supported by reasonable suspicion
In deciding whether Ihrig was justified in searching Kameron’s backpack, we must determine, whether, under the totality of the circumstances, it was objectively reasonable to suspect “that the search [would] turn up evidence that the student ha[d] violated or [wa]s violating either the law or the rules of the school.” (T.L.O., supra, 469 U.S. at p. 326; see also id. at p. 341 [“the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search”]; William G., supra, 40 Cal.3d. at p. 564 [“this standard requires articulable facts, together with rational inferences from those facts, warranting an objectively reasonable suspicion....”].)
Determining the reasonableness of a student search based on individualized suspicion generally involves “a two-fold inquiry: (1) whether the search was [based on reasonable suspicion, and therefore] 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.” (Lisa G., supra, 125 Cal.App.4th at p. 805; see also T.L.O., supra, 469 U.S. at p. 341.) In this case, however, Kameron has not challenged the scope of Ihrig’s search. He argues only that the search was not justified at its inception.
At the hearing on the motion to suppress, Ihrig testified to the following facts: (1) prior to the day of the search, she had seen Kameron associating with two different “tagging crews” whose members had defaced school property with graffiti; (2) Ihrig had previously reminded Kameron that the school graffiti policy prohibited him from writing on his backpack or other personal belongings; (3) on the day in question, Ihrig observed that, despite those reminders, the exterior of Kameron’s backpack had writing in three different places.
During the hearing, Ihrig stated that she believed she could search Kameron’s backpack based solely on the writing she saw on the exterior of the bag. For the purposes of our review, however, Ihrig’s subjective belief about what facts gave her cause to search the backpack is irrelevant. Instead, we must consider whether, based on all the facts known to Ihrig prior to the search, it was objectively reasonable to suspect that the backpack might contain evidence of wrongdoing. (See generally William G., supra, 40 Cal.3d at p. 564 [reasonable suspicion standard requires “articulable facts... warranting an objectively reasonable suspicion that the student or students to be searched are violating or have violated a rule, regulation, or statute”]; Greenwood, supra, 189 Cal.App.4th at p. 749 [“The reasonableness of a search under the Fourth Amendment is determined objectively, and an officer’s subjective motivation is irrelevant to the constitutional issue”].)
Ihrig also described what she suspected she might find in the backpack. First, Ihrig explained that she was looking for additional writing on the interior of the backpack, which would violate the school’s graffiti rules and potentially link Kameron to other graffiti that had been located on campus. Second, the search might reveal prohibited “graffiti tools.”
Although this is a close case, we conclude that these facts, together with all rational inferences from those facts, provided reasonable suspicion to search Kameron’s backpack. Given that Kameron openly associated with known taggers and had ignored prior warnings about the school’s graffiti policy by writing on his backpack, there were reasonable grounds to suspect that a search of his backpack might reveal further evidence of wrongdoing related to graffiti. As in T.L.O., the evidence shows there was a “nexus” between “the wrongful behavior of the student and the intended findings of the search....” (Lisa G., supra, 125 Cal.App.4th at p. 807): the backpack, which contained writing that violated the school’s graffiti rules, was searched for additional illicit writing, prohibited graffiti tools and evidence linking Kameron to other instances of graffiti.
This is not a case like William G. or Lisa G., where the school official conducted a search based on misconduct – tardiness and disruptive behavior – that had no apparent correlation to the items searched. Nor is it a case where the search was “indiscriminate” or “predicated on mere curiosity, rumor, or hunch.” (William G., supra, 40 Cal.3d 550 at p. 564.) Rather, the evidence showed that the search occurred only after Kameron had been seen associating with known taggers, been warned about the school’s graffiti policy and then ignored those warnings by writing on his backpack.
Kameron, however, contends that the evidence was insufficient to establish reasonable suspicion. First, he asserts that the prosecution failed to show any “‘nexus’ between the grounds of the search (graffiti) and the infraction at issue (non-conforming beanie). There is no evidence of an investigation regarding graffiti at the time appellant was searched.” It is true that Kameron was initially detained because he was wearing a beanie that violated the school’s dress code. However, according to Ihrig’s testimony, that infraction was not the basis of the search. Rather, the search occurred only after Ihrig saw Kameron had writing on his backpack, which qualified as an independent violation of the school’s graffiti policy. Ihrig conducted the search as part of her investigation of that violation. Thus, contrary to Kameron’s assertion, it cannot be said that there was no “investigation regarding graffiti” at the time the search occurred.
Kameron further contends that his alleged “associat[ion] with other students known to Ms. Ihrig to be taggers” did not provide reasonable grounds for the search. Numerous cases have held that “the mere association of someone with a criminal suspect does not give rise to probable cause.” (Van Tran v. Lindsey (9th Cir. 2000) 212 F.3d 1143, 1158 [disagreed with on other grounds in Lockery v Andrade (2003) 538 U.S. 63, 71]; see also Montgomery v. Superior Court In and For Alameda County (1956) 146 Cal.App.2d 622, 623 [“the mere fact that one is in the company of another who is known or reasonably believed to have committed a felony, standing alone, is not enough to justify the police in making a search of his person”].) As explained by the United States Supreme Court, “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” (Ybarra v. Illinois (1979) 444 U.S. 85, 91.)
Even if we assume these holdings extend to student searches subject to the reasonable suspicion standard, Kameron overlooks that his association with FTK and THUK was not the only fact presented in support of the search. Rather, as explained above, the evidence also showed that Kameron had been warned about violating the school’s graffiti policy in the past and then ignored those warnings by writing on his backpack. It was Kameron’s association with known taggers, in conjunction with other factors, that gave rise to the reasonable suspicion justifying the search.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J. JACKSON, J.