Appeal by juvenile from orders entered 5 January 1999 by Judge
Rebecca W. Blackmore in New Hanover County District Court. Heard
in the Court of Appeals 18 November 1999.
Michael F. Easley, Attorney General, by T. Brooks Skinner,
Jr., Assistant Attorney General, for the State.
Smith, Smith & Harjo, by Jennifer Harjo, for juvenile-
appellant.
EDMUNDS, Judge.
Juvenile Patrick Jason Murray (Murray) appeals the trial
court's order denying his motion to suppress and the order
adjudicating him to be a delinquent pursuant to N.C. Gen. Stat.
§ 7A-517(12) (Supp. 1998) (repealed effective July 1, 1999). Weaffirm.
On 15 October 1998, Williston Middle School Assistant
Principal LaChawn Smith (Ms. Smith) was approached by a student who
told her, “Jason had -- Murray had something in his book bag that
he should not have at school.” Ms. Smith found Murray alone in
Room 105. In response to her question, he denied having a book
bag. However, Ms. Smith noticed a red book bag “less than an arm's
reach away” from Murray and asked if it was his. When Murray
acknowledged that it was, Ms. Smith asked him to accompany her
about twenty feet to her office. As they walked, Murray carried
his book bag. Once they reached her office, Ms. Smith asked Murray
if there was anything in the book bag that should not be there. He
answered that there was not. Ms. Smith then advised Murray that
she needed to search the bag. He responded that he did not want
her to search it and expressed a desire that his father be called.
Ms. Smith contacted the school's Dean of Students and the
school's Resource Officer, Deputy Johnson. After Deputy Johnson
and the Dean arrived, they explained to Murray that they “needed to
search his book bag because [they] were concerned about his safety
and the safety of others in the building.” However, when Ms. Smith
attempted to take possession of the book bag, Murray “clamped down
on it.” Deputy Johnson testified at the suppression hearing: “I
then grabbed [Murray], and he struggled with me a little bit. So,
I cuffed him so that he wouldn't hurt himself or I wouldn't get
hurt in the incident.” Once the book bag was secured, Ms. Smith
opened it and found a pellet gun. Deputy Johnson then removed the
handcuffs from Murray and the principal called his father. Murray filed a motion to suppress the physical evidence
.
After conducting a hearing, the trial court denied the motion, then
adjudicated Murray delinquent for possessing a weapon on school
property, in violation of N.C. Gen. Stat. § 14-269.2(d) (Supp.
1998). Murray appeals.
I.
[1]Murray first challenges the trial court's failure to
suppress the fruits of the search of the book bag. Initially, we
must determine the standard to be used in reviewing the legality of
the search. The standard we use depends on whether a school
official or law enforcement officer conducted the search.
The record reveals that Ms. Smith, an assistant principal,
received information that focused her suspicion on Murray's book
bag. After initially confronting Murray and receiving
contradictory information from him, she escorted Murray to her
office, where she asked if she could search his book bag. Only
after the student refused to allow a voluntary search did she call
for Deputy Johnson and the Dean of Students. She testified, “I
needed someone with greater strength than I have,” indicating that
she had decided to search the bag. Deputy Johnson handcuffed
Murray only after Murray made it obvious that he was not going to
relinquish his book bag without a struggle. Deputy Johnson acted
to enable Ms. Smith to obtain the bag and search it. He did not
search the bag himself, nor did he conduct any investigation on his
own. Therefore, we hold that the search of Murray's book bag was
conducted by a school official.
See Cason v. Cook, 810 F.2d 188,
192 (8th Cir. 1987) (“At most . . . this case represents a police
officer working
in conjunction with school officials.”);
see also
Martens v. District No. 220, Bd. of Educ., 620 F. Supp. 29 (N.D.
Ill. 1985);
Coronado v. Texas, 806 S.W.2d 302 (Tex. App. 1991),
rev'd on other grounds, 835 S.W.2d 636 (Tex. Crim. App. 1992). Consequently, we review the search in light of
New Jersey v.
T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720 (1985), wherein the United
States Supreme Court examined the legality of a school official's
search of a student's purse.
In
T.L.O., a student was discovered smoking in a school
lavatory. Although caught in the act, the student denied even
being a smoker. When the school's assistant vice-principal
searched the student's purse for cigarettes, he also found
marijuana, rolling papers, and other paraphernalia. In holding
that the search was reasonable, the Supreme Court acknowledged the
difficulties faced by schools in maintaining discipline. The Court
observed that the majority of lower courts had held, “the Fourth
Amendment applies to searches conducted by school authorities, but
the special needs of the school environment require assessment of
the legality of such searches against a standard less exacting than
that of probable cause.”
Id. at 332 n.2, 83 L. Ed. 2d at 728-29.
Agreeing with those courts, the Supreme Court held:
[T]he legality of a search of a student should
depend simply on the reasonableness, under all
the circumstances, of the search. Determining
the reasonableness of any search involves a
twofold inquiry: first, one must consider
“whether the . . . action was justified at its
inception,”
Terry v. Ohio, [392 U.S. 1, 20, 20
L. Ed. 2d 889, 905 (1968)]; second, one must
determine whether the search as actually
conducted “was reasonably related in scope to
the circumstances which justified the
interference in the first place,”
ibid.
Id. at 341, 83 L. Ed. 2d at 734 (omission in original). Because the
T.L.O. reasonableness standard
applies to the
facts of this case, we first examine whether the search was
reasonable at its inception.
Under ordinary circumstances, a search of a
student by a teacher or other school official
will be “justified 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.
Id. at 341-42, 83 L. Ed. 2d at 734-35. “[T]he requirement of
reasonable suspicion is not a requirement of absolute certainty:
'sufficient probability, not certainty, is the touchstone of
reasonableness under the Fourth Amendment . . . .'”
Id. at 346, 83
L. Ed. 2d at 737 (omission in original) (quoting
Hill v.
California, 401 U.S. 797, 804, 28 L. Ed. 2d 484, 490 (1971)).
In the case at bar, Ms. Smith received an unsolicited tip from
a student that Murray had something in his book bag that he should
not have at school. At the time, Ms. Smith was walking to a
classroom in order to escort Murray to another classroom
. Although
she testified that she was doing so because of a “disturbance,”
further details are not set out in the record. When she found
Murray, he was alone in a classroom and a red book bag lay within
his reach. She asked him if he had a book bag, and he falsely
answered that he did not. Only when she asked him specifically if
the red book bag was his did he admit ownership. The student's
tip, followed by Murray's lie, provided sufficient grounds for a
reasonable person to decide that a search of the book bag would
yield evidence that Murray had broken a school rule or law. Ms.Smith's decision to search the book bag, like the decision to
search the purse in
T.L.O., was “the sort of 'common-sense
conclusio[n] about human behavior' upon which 'practical people' --
including government officials -- are entitled to rely.”
Id. at
346, 83 L. Ed. 2d at 737 (quoting
United States v. Cortez, 449 U.S.
411, 418, 66 L. Ed. 2d 621, 629 (1981)) (alteration in original);
see generally Myron Schreck,
The Fourth Amendment in the Public
Schools: Issues for the 1990s and Beyond, 25 Urb. Law. 117 (1993)
(discussing various court cases that have addressed whether
searches conducted by school officials were reasonable).
Having determined that Ms. Smith had reasonable grounds for
suspicion, we next turn to the second prong of the
T.L.O. test,
which requires that the search be conducted in a reasonable manner.
A “search will be permissible in its scope when the measures
adopted are 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.”
T.L.O., 469 U.S. at
342, 83 L. Ed. 2d at 735. Ms. Smith's search, confined to the book
bag, was reasonable in scope. Murray contends that it was improper
and excessive for Deputy Johnson to handcuff him before Ms. Smith
searched the book bag. However, we hold that this measure was
reasonable in light of the circumstances. Although Ms. Smith had
the right to search the book bag, Murray refused to turn it over
voluntarily. He physically protected the bag when Ms. Smith
attempted to take it and then began struggling with Deputy Johnson.
Handcuffs insured that Ms. Smith could safely search the bagwithout interference and allowed the deputy to control a
potentially unpleasant or even perilous situation. Deputy Johnson
released Murray as soon as Ms. Smith found the pellet gun and any
danger of disruption dissipated. Therefore, consistent with the
Supreme Court's holding in
T.L.O., we hold that the trial court
properly denied Murray's motion to suppress the search.
Murray also contends that the search violated the constitution
of North Carolina. Because there is no variance between North
Carolina's law of search and seizure and the requirements of the
Fourth Amendment to the Constitution of the United States,
see
State v. Hendricks, 43 N.C. App. 245, 251-52, 258 S.E.2d 872, 877
(1979), we hold that the search was proper under the laws of North
Carolina. This assignment of error is overruled.
II.
[2]Murray next claims the trial court erred in denying his
motion to dismiss for insufficiency of the evidence at the close of
the State's case and at the close of all the evidence. The trial
court found that Murray violated N.C. Gen. Stat. § 14-269.2(d),
which makes it a Class 1 misdemeanor “for any person to possess or
carry, whether openly or concealed, any BB gun, stun gun, air
rifle, air pistol . . . on educational property.” Murray argues
that the State failed to show he had “exclusive possession of the
bag or its contents.”
“In ruling on a motion to dismiss for insufficient evidence,
the trial court must consider the evidence in the light most
favorable to the State, which is entitled to every reasonableinference which can be drawn from that evidence.”
State v. Dick,
126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997) (citation
omitted). The motion to dismiss should be denied if there is
substantial evidence of each element of the crime.
See State v.
Bates, 309 N.C. 528, 308 S.E.2d 258 (1983). Substantial evidence
is such relevant evidence that a reasonable mind might find
sufficient to support a conclusion.
See State v. Smith, 300 N.C.
71, 265 S.E.2d 164 (1980). Exclusive possession need not be shown
where other incriminating evidence supports constructive
possession.
See State v. Mitchell, 104 N.C. App. 514, 410 S.E.2d
211 (1991). Here, Murray admitted the book bag was his, it was
within his reach when Ms. Smith walked into the classroom, and no
one else was in the room. Murray's other conduct, detailed above,
is consistent with guilty knowledge. There was no evidence that
anyone other than Murray possessed the book bag or that there was
an opportunity for someone to put the pellet gun into it.
Consequently, we hold that the State presented sufficient evidence
for a reasonable mind to conclude that Murray knowingly possessed
a pellet gun on educational property. This assignment of error is
overruled.
Affirmed.
Judges MCGEE and HORTON concur.
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