1 Filed 3/5/15 In re E.R. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO
In re E.R., a Person Coming Under the Juvenile Court Law. B256229
(Los Angeles County Super. Ct. No. VJ43841)

THE PEOPLE,
Plaintiff and Respondent,

v.
E.R.,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kevin Brown, Judge. Reversed. Bruce G. Finebaum, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistan t Attorney General, Ja mes W. Bilderback II, Supervising Deputy Attorney General and William N. Fr ank, Deputy Atto rney General, for Plaintiff and Respondent.
* * * * * *2 E.R., a minor, attacks his adjudication for possessing a knife on school property on the grounds that the juvenile court should ha ve suppressed the knife as the fruit of an unlawful seizure and search. We agree with E.R. that the school officials did not have reasonable grounds to search his backpack. The motion to suppress the knife found in the backpack should have been granted, and we accordingly reverse. FACTS AND PROCED URAL HISTORY E.R. is a 12-year-old male who attends a middle school in Lakewood, California. A security guard responding to a report of excessive noise found E.R. and a friend on school property after their classes for the day were over. The gua rd ordered them onto her golf cart so they could be taken to the principal’s office. She noted that E.R. was “extremely nervous” and re peatedly asserted that he was “ going to get in trouble.” When they arrived at the principal’s office, E. R. became increasingly agitated—crying and repeatedly stating, “I know I am going to get into trouble.” Bo th the guard and the assistant principal asked E.R. to hand over the backpack he was carrying, but E.R. refused both requests. The assistant principal asked him to show what was in his backpack, but E.R. refused that request as we ll. The assistant prin cipal then asked E.R. to empty his backpack and E.R. only partially complied. Eventually, E.R. handed over his backpack, and the assistant principa l went through it and found a knife. The People filed a petition against E. R. under Welfare and Institutions Code section 602 alleging a single count of po ssessing a weapon on school grounds (Pen. Code, § 626.10, subd. (a)(1).) E.R. moved to suppress the kn ife. The court denied the motion, and E.R. thereafter admitted the o ffense and was placed on probation for six months. E.R. timely appeals. DISCUSSION E.R. argues that the trial court erred in denying his motion to suppress because (1) the knife was the fruit of an unconstitutional detentio n, and (2) the assistant principal’s search of his backpack was uncons titutional. Where, as here, the facts are3 undisputed, we review the legality of a search or seizure de novo

. ( People v. Redd (2010) 48 Cal.4th 691, 719.) I. Legality of detention In the context of public school studen ts, the Fourth Amendment’s prohibition against “unreasonable” seizures means that sc hool officials may detain students “as long as [the detention is] not arb itrary, capricious, or for the purpose of harassment.” ( In re Randy G. (2001) 26 Cal.4th 556, 567 ( Randy G. ); cf. United States v. Arvizu (2002) 534 U.S. 266, 273 [for adults, detention must be justified by reasonable su spicion].) As an initial matter, E.R. has forfeited any challenge to the lawfulness of his detention because he conceded its lawfulness before the juvenile court. (See People v. Williams (1999) 20 Cal.4th 119, 129-130 [forfeiture of issues in suppression motion occurs when issues not specifically raised].) E.R.’s challenge is with out merit in any event. The security guard detained E.R. and his frie nd after finding them loitering on school grounds after their school day was over in the area from which excessive noise was reported. Her decision was accordingly not “arbitrary, capricious or for the purpose of harassment.” II. Legality of search A search of a public school student’s person or his belongings is “reasonable” under the Fourth Amendment if (1) there are reasonable grounds for suspecting the search will uncover evid ence that the student was violated or is violating school rules ( In
re Lisa G. (2004) 125 Cal.App.4th 801, 806 ( Lisa G. ); Randy G. , supra , 26 Cal.4th at pp. 565-566; New Jersey v. T.L.O. (1985) 469 U.S. 3 25, 341-342), and (2) “the scope of the search is reasonably related to the circum stances that justifie d the initial search” ( Lisa G. , at p. 805). The assistant principal did not have “reasonable grounds” to search E.R.’s backpack. At the time of the search, the assistant principal knew that (1) E.R. was very nervous and feared he would “get into tro uble,” and (2) E.R. refused to hand over or completely empty his backpack. But neither reason is enough to supply the requisite suspicion. It is well established that ne rvousness alone does not supply reasonable4 suspicion for a search ( People v. Brown (1985) 169 Cal.App.3d 159, 164), and that the “‘refusal to consent to a search cannot itself form the basis’” for a search ( In re H.H. (2009) 174 Cal.App.4th 653, 658). We are not persuaded by the People’s argument that the assistant principal had reasonable grounds for believing that E.R.’s distress was focused on the backpack or its contents. The distress E.R. exhibited is not atypical of a 12-year-old child being placed in a golf car t and taken to the principal’s office for any reason. In the absence of any suspicion as to the backpack, we ar e left with a search justified solely by the reasons that warrant ed E.R.’s initial dete ntion—namely, loitering and making excessive noise. Because the search of E.R.’s backpack is unrelated to those reasons, they provide no reasonable gr ounds for that sear ch. (See, e.g., Lisa G. , supra , 125 Cal.App.4th at p. 166 [sea rch of student’s purse after disruptive behavior uncovered knife; not reasonable]; In re William G . (1985) 40 Cal.3d 550, 566 [search of student’s calculator case when he was suspected of tardiness disclosed contraband; not reasonable].) The People urge us to u phold the search as consensual. A search conducted pursuant to voluntary consent is certainly lawful under the Fourth Amendment. ( People v. Rodriguez (2014) 231 Cal.App.4th 288, 302.) Wh ether consent is voluntary or instead “‘the product of duress or coercion, express or implied,’” is a question we evaluate from the totality of the circumstances. ( Ibid. ) In this case, E.R.’s “consent” consisted of handing the assistant principal the backpack after refusing the security guard’s and assistant principal’s initial reque sts to hand over the backpack , after refusing the assistant principal’s request to show him what was in the backpack, and after refusing to comply fully with the assistant principal’s reque st to empty the backpack. Under these circumstances, E.R.’s eventual surrender of th e backpack was more a capitulation than a voluntary act. We conclude th ere was no voluntary consent.5 DISPOSITION The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________ ____, J. HOFFSTADT
We concur:

_____________ _______________, P. J. BOREN

___________________ _________, J. CHAVEZ