September 27, 2010 – State of New Mexico v. Gage R., No. 29,489

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: September 27, 2010
NO. 29,489
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
GAGE R.,
Child-A ppellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Freddie J. Romero, District Judge

Gary K King, Attomey General

Andrew S. Montgomery, Assistant Attomey General
Santa Fe, NM

for Appellee

Law Office of Craig C. Kling

Craig C. Kling

San Diego, CA

for Appellant

OPINION
VANZI, Judge.
{1} 	Child appeals the denial of his motion to suppress evidence obtained during a
search of his backpack at school. Child entered into a conditional plea, and pled no
contest to the unlawful carrying of a deadly weapon on school premises. 	For the
reasons discussed in this opinion, we reverse and remand for a determination of
whether the search was justified by the requisite individualized and particularized
suspicion that Child may have been bringing tobacco products onto the campus.
BACKGROUND
{2} 	Before the start of school on the morning of October 16, 2008, a Roswell High
School security officer observed Child, along with “an unusually large gathering of
students,” across the street from the school in an area known as the “smoker’s corner.”
The security officer saw students smoking but could not remember if he specifically
saw Child smoking. 	When the school bell rang, the group of students from the
smoker’s corner crossed the street and entered school property. As was the consistent
practice of the school, at least one or two times per week during the school year, the
school security officer detained all of the students, including Child, patted them down,
and searched their backpacks for tobacco and tobacco products. During the search of
Child, the security officer found a pipe and a knife in Child’s backpack, as well as a

3
lighter, although he could not recall if the lighter was found on Child’s person or in
his backpack. Child was the only student found with non-tobacco contraband that
day.
{3} 	The school policy at Roswell High School prohibits smoking, tobacco products,
lighters, and cigarettes on school property. As a result, the security officer—who is
a school official, not a law enforcement officer—is authorized to conduct searches for
items that violate the policy such as tobacco products and lighters. 	Searches are
conducted on randomly selected days of all students entering school grounds from the
smoker’s corner, especially on those days when a larger than usual gathering of
students are observed at the corner. Students understand that they can be randomly
searched. 	When a child has contraband it is seized, but not every child has
contraband. In this case, the security officer suspected that Child might have tobacco
or tobacco products based on his presence at the smoker’s corner where “everyone
hangs out to smoke.”
{4} 	As a consequence of the items found in the search, the State petitioned for an
adjudication of delinquency for unlawful carrying of a deadly weapon on school
premises, contrary to NMSA 1978, Section 30-7-2.1 (1994), and possession of drug
paraphernalia, contrary to NMSA 1978, Section 30-31-25.1 (2001). 	In the district
court, Child moved to suppress the evidence seized as a result of his search. Child
argued that the security officer lacked individualized or particularized suspicion that

4
Child had committed a crime or violated a school policy. The district court denied
Child’s motion, ruling in pertinent part that the security officer “did not have or need
individualized suspicion that each child [entering the school from the smoker’s corner]
was in possession of tobacco products or a lighter.” 	Instead, the district court
reasoned that the search was reasonable and justified at its inception given Child’s
presence before the commencement of school at the smoker’s corner.
{5} 	The parties entered into a plea and disposition agreement, under which Child
pleaded no contest to unlawful carrying of a deadly weapon on school premises, and
the State agreed to dismiss the possession of drug paraphernalia charge. Pursuant to
the no-contest plea, the court entered a consent decree suspending the proceedings and
placing Child on supervised probation for six months. This appeal timely followed.
PRESERVATION
{6} 	Before proceeding to the issue of the search, we first address the State’s
argument that Child failed to reserve his right to appeal the denial of his motion to
suppress. 	See generally Rule 5-304(A)(2) NMRA (allowing a defendant to enter a
conditional guilty plea, reserving in writing the right to appeal an issue raised in a
pretrial motion and adversely decided by the district court). The State contends that
Child did not meet the “critical requirements” for a conditional plea because neither
the plea agreement nor the consent decree “expressed an intention to preserve a
particular pretrial issue for appeal.” State v. Hodge, 118 N.M. 410, 417, 882 P.2d 1,

5
8 (1994) (internal quotation marks and citation omitted). We note that in this case, the
“WAIVER OF DEFENSES AND APPEAL” provision of Child’s plea and disposition
agreement is crossed out. The State argues, however, that at most, the crossed-out
provision suggests that the parties did not reach agreement on whether Child was
waiving the right to appeal and that it fails to express an intention to reserve the right
to appeal; therefore, the appeal should be dismissed. We disagree. {7} Although the
plea does not specifically “reserve a particular pretrial issue for appeal,” see id., given
that the waiver provision was crossed out and that Child’s motion to suppress was
premised 	on 	one 	central 	question—whether 	the 	search 	was 	justified 	absent
particularized suspicion—it is obvious that Child intended to reserve the right to
appeal this issue. Moreover, we note that Child’s attorney specifically referred to the
crossed-out provision when electing to enter into the plea, and that the district court
also stated that Child would retain his right to appeal should he so desire. 	We
conclude that this is sufficient to reserve Child’s right to appeal. See id. (providing
for a “substance-over-form” approach in considering whether an issue is reserved for
appeal, rather than requiring “rigid adherence” to reservation requirements); see also
State v. Padilla, 2006-NMCA-070, ¶¶ 10-12, 139 N.M. 700, 137 P.3d 640 (holding
that an issue was sufficiently reserved in a plea, even though not reduced to writing,
when both the prosecution and the district court were aware of the defendant’s intent
to appeal). Consequently, we proceed to address the district court’s ruling concerning

6
Child’s motion to suppress.
DISCUSSION
{8} 	A ruling on a motion to suppress evidence presents a mixed question of law and
fact. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. We “review[]
factual findings under a substantial evidence standard, viewing the facts in the light
most favorable to the prevailing party, and we review de novo whether the district
court correctly applied the law to the facts.” State v. Slayton, 2009-NMSC-054, ¶ 11,
147 N.M. 340, 223 P.3d 337. 	Whether a search was reasonable is a legal
determination for this Court. In re Josue T., 1999-NMCA-115, ¶ 14, 128 N.M. 56,
989 P.2d 431. 	We therefore apply a de novo review to the district court’s legal
determination that the search of Child in this case was reasonable. See id.
{9} 	As we have noted, our standard of review requires that we first assess whether
the district court’s findings of fact are supported by substantial evidence. The parties
do not dispute the factual underpinnings of this case, and we therefore turn to the
second prong of our analysis, whether it was reasonable under the Fourth Amendment
to the United States Constitution for the school security officer to conduct a search of
Child and his backpack absent a particularized or individualized suspicion. We start
with a review of federal precedent in this area and then turn to a discussion of the
district court’s ruling. We will then address the development of this issue under New
Mexico law.

7
{10} 	In New Jersey v. T.L.O., 469 U.S. 325, 340-41 (1985), the United States
Supreme Court held that school officials’ need for maintaining order and discipline
in school is such that school officials do not need either probable cause or a search
warrant to search students and their belongings. Instead, T.L.O. provides that “the
legality of a search of a student should depend simply on the reasonableness, under
all the circumstances, of the search.” 	Id. at 341. In evaluating whether a search is
reasonable under the circumstances, T.L.O. requires that courts apply a two-prong test:
(1) whether the school authority’s search was justified at its inception and (2) whether
the search was reasonably related in scope to the circumstances that justified the
interference. Id.; see also Safford Unified Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633,
2639 (2009) (holding that when “reasonable suspicion” exists, “a school search will
be permissible in its scope when the measures adopted are reasonably related to the
objectives of the search”). At issue in the present case is the first prong of the test:
whether the search was justified at its inception.
{11} 	A search is 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 rules of the school. 	T.L.O., 469 U.S. at 341-42. 	With
regard to individualized suspicion in particular, however, the T.L.O. Court made clear
that it was not deciding “whether individualized suspicion is an essential element of
the reasonableness standard we adopt for searches by school authorities.” Id. at 342

8
n.8. Specifically, the Court stated that “[b]ecause the search of T.L.O.’s purse was
based upon an individualized suspicion that she had violated school rules, we need not
consider the circumstances that might justify school authorities in conducting searches
unsupported by individualized suspicion.” 	Id. (citation omitted). 	Thus, the Court
noted that “[e]xceptions to the requirement of individualized suspicion are generally
appropriate only where the privacy interests implicated by a search are minimal and
where other safeguards are available to assure that the individual’s reasonable
expectation of privacy is not subject to the discretion of the official in the field.” Id.
(internal quotation marks and citation omitted).
{12} 	Since T.L.O., the United States Supreme Court has established that school
searches do not always need to be supported by individualized suspicion. The Court
has held that suspicionless searches can be justified in certain limited circumstances
by “special needs, beyond the normal need for law enforcement.” Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 653 (1995) (internal quotation marks and citation
omitted). 	In Vernonia, this “special needs” doctrine was used to uphold a school
district’s policy of subjecting student athletes to random, suspicionless drug tests. Id.
at 650. In holding the policy constitutionally permissible, the Court found that student
athletes “who voluntarily participate in school athletics have reason to expect
intrusions upon normal rights and privileges, including privacy.” 	Id. at 657. More
recently, the United States Supreme Court held that schools may conduct random,

9
suspicionless drug tests not only of student athletes but also of any student who
participates in competitive extracurricular activities (such as Future Farmers of
America, choir, or band), provided that the student’s participation in such activities
is conditioned on consent to such drug testing. Bd. of Educ. of Indep. Sch. Dist. No.
92 v. Earls, 536 U.S. 822, 829, 837 (2002) (noting that “[i]n certain limited
circumstances, the Government’s need to discover such latent or hidden conditions,
or to prevent their development, is sufficiently compelling to justify the intrusion on
privacy entailed by conducting such searches without any measure of individualized
suspicion.” (internal quotation marks and citation omitted)). At its core, the “special
needs” category requires courts to look at whether there is a safety concern that is
substantial enough to override the individual’s privacy interest and to suppress the
Fourth Amendment’s requirement of individualized suspicion. See id. at 836.
{13} 	We find it significant that each of the “special needs” cases decided by the
United States Supreme Court in the school context is a very limited exception to the
reasonable suspicion requirement that permits searches of public school students. In
particular, these cases involve obtaining consent through a threatened withholding of
a benefit when consent is not given. 	We do not believe—and the State does not
argue—that the “special needs” doctrine has any application in this case. Therefore,
it is appropriate to analyze the factual circumstances in this case under the “reasonable
suspicion” standard set forth in T.L.O. and adopted by our courts. 	See 	469 U.S. at

10
342.
{14} 	New Mexico courts have long applied the two-prong standard articulated in
T.L.O. to determine whether searches of students are justified. See Kennedy v. Dexter
Consol. Sch., 2000-NMSC-025, ¶¶ 16-19, 129 N.M. 436, 10 P.3d 115 (Kennedy I).
Applying the T.L.O. analysis in Kennedy I, our Supreme Court specifically required
individualized suspicion before school officials may conduct a lawful strip search of
a student. Kennedy I, 2000-NMSC-025, ¶¶ 14-15. However, with the exception of
the “special needs” doctrine and the Kennedy I decision discussed above, neither the
United States Supreme Court nor the New Mexico Supreme Court has stated explicitly
when individualized or particularized suspicion is needed when conducting a search
on school grounds.
{15} 	In the present case, the district court concluded that the search of Child’s
backpack was a minimal intrusion and that it effectively fell within an exception to the
requirement of individualized suspicion as contemplated by T.L.O. The district court
ruled that individualized suspicion is required only when a student is subjected to an
intrusive strip 	search and that a 	T.L.O. 	analysis does not otherwise require
individualized suspicion for less intrusive school searches. In support of its decision,
the district court relied on the holding in Kennedy I to find that individualized
suspicion is necessary before school officials may conduct a lawful strip search of a
student given its intrusive nature. While we acknowledge the footnote in T.L.O., 469

11
U.S. at 342 n.8, anticipated that exceptions to the requirement of individualized
suspicion may exist where the student’s privacy interests implicated by a search are
minimal and other safeguards are present, we conclude that the search of Child and
his backpack did not fall within this narrow exception.
{16} 	At the outset, we observe that Kennedy I does not hold that individualized
suspicion is required only when school officials conduct a strip search, and for this
reason, we conclude that the district court read the holding in that case too narrowly.
In its analysis, the New Mexico Supreme Court in Kennedy I refers to two New
Mexico school search cases that do not involve strip searches to support its holding
that 	searches 	of 	students 	require 	individualized 	suspicion 	in 	order 	to 	pass
constitutional scrutiny. 2000-NMSC-025, ¶ 17. Kennedy I cited to State v. Michael
G., 106 N.M. 644, 647, 748 P.2d 17, 20 (Ct. App. 1987), and noted that in that case
the search of the student’s locker “proceeded not only with individualized suspicion”
but was justified by information from an eyewitness who saw the student attempt to
distribute drugs. Kennedy I, 2000-NMSC-025, ¶ 17. Further, Kennedy I cited with
approval Doe v. State, 88 N.M. 347, 352-53, 540 P.2d 827, 832-33 (Ct. App. 1975),
which upheld the search of a student who had been detained and was required to turn
over a marijuana pipe because there was individualized suspicion and because school
officials had seen the student smoking out of a pipe. Kennedy I, 2000-NMSC-025, ¶
17. Kennedy I’s predecessor, Kennedy v. Dexter Consol. Sch., 1998-NMCA-051, ¶

12
13, 124 N.M. 764, 955 P.2d 693 (Kennedy II), rev’d in part on other grounds by
Kennedy, 2000-NMSC-025, ¶¶ 20-22, similarly refers to out-of-state case law that do
not involve a strip search to support this Court’s conclusion that individualized
suspicion is ordinarily necessary for a search by school officials. See, e.g., DesRoches
v. Caprio, 974 F. Supp. 542 (E.D. Va. 1997) (backpack search for missing shoes);
Burnham v. West, 681 F. Supp. 1160 (E.D.Va. 1987) (search of pockets, purses, and
bags); In re Doe, 887 P.2d 645, 655 (Haw. 1994) (holding that “[b]ecause a search of
a student’s wallet, purse or other bag carried on his or her person is undoubtedly a
severe violation of subjective expectations of privacy, . . . individualized suspicion is
a necessary element in determining reasonableness where . . . the principal emptied
the contents of [the m]inor’s purse” (internal quotation marks and citation omitted)).
{17} 	In addition to the discussion of cases requiring individualized suspicion set
forth in both Kennedy opinions, other decisions from this Court also suggest that
individualized suspicion is required under the T.L.O. standard of reasonableness for
school searches in circumstances comparable to the present case. While these cases
have not explicitly addressed, as did Kennedy I, whether individualized suspicion is
required to justify searches of students and their belongings, the holdings generally
presuppose that this requirement must be met. For example, in Josue T., we noted
that, to be justified at its inception, a school search must be based on more than “an
inchoate and unparticularized suspicion or hunch.” 1999-NMCA-115, ¶ 23 (internal

13
quotation marks and citation omitted). Because the facts in that case established that
the student appeared evasive and smelled of burnt marijuana, we held that school
officials were justified in searching the student. Similarly, in State v. Pablo R., we
recognized that the reasonable suspicion to justify the search of the student and his
jacket could not be based on unparticularized suspicion, and held that the search was
unreasonable under the circumstances because the school official did not suspect the
child of engaging in any criminal activity, did not smell marijuana on him, and had
no knowledge that the child was carrying a weapon or marijuana. 2006-NMCA-072,
¶¶ 14, 16, 139 N.M. 744, 137 P.3d 1198.
{18} 	Finally, State v. Crystal B., 2001-NMCA-010, ¶¶ 21-22, 130 N.M. 336, 24 P.3d
771 (filed 2000), supports the conclusion that particularized suspicion is required in
order to justify a search at its inception. In Crystal B., we held that a school official
violated a student’s Fourth Amendment rights when the school official, after receiving
a tip that the student was smoking in an alley off campus, seized the student, ordered
her into his car, and took her back to the school. 	Id. 	¶¶ 22, 25. After returning to
campus, the school official searched the student and found a small amount of
marijuana in her book bag. 	Id. ¶ 11. 	Looking to the reasonableness of the school
official’s actions, we held that even assuming the school official had the authority to
leave school property to investigate a violation of school rules, the seizure of the
student was unreasonable. Id. ¶¶ 21-22. Specifically, when the student was found in

14
the alley, the school official did not see the student smoking, did not smell any smoke,
and did not see anyone trying to hide anything. Id. ¶ 22. Thus, any suspicion gleaned
from the tip was dispelled, and the school official had no justification for the seizure
as there was no evidence that the student was violating school policy or the law. Id.
Accordingly, we held that the seizure and subsequent search were both unreasonable,
and the evidence should have been suppressed. Id. ¶ 25.
{19} 	In summary, it appears that our cases have taken the position that a search is
warranted only if the circumstances create an individualized suspicion that a particular
rule has been violated and that the search will serve to produce evidence of that
violation. 	Analyzing the factual circumstances of this case, we conclude that the
search of a group of students gathering at the “smoker’s corner,” without reason to
suspect 	that 	any 	particular 	student 	is 	in 	possession 	of 	contraband, 	is 	not
constitutionally sound. 	We concede that in any sufficiently large group, there is a
statistical probability that someone will have contraband in his or her possession. But,
it is our view that the Fourth Amendment demands more than a generalized
probability, and a student’s mere association with or presence among suspected
wrongdoers without more does not provide a sufficient basis for a search by school
officials. In this case, the sweeping and indiscriminate search of only those students
who happen to be seen at a particular location off campus where smokers often gather
ignores the need to ascertain individualized suspicion and exceeds the bounds of

15
reasonableness that T.L.O. and our case law require. 	We thus hold that, even
assuming a lessened expectation of privacy, some articulable facts that focus suspicion
on a specific student must be demonstrated before any school search can be carried
out.
{20} 	In apparent anticipation of our holding that the search of Child and his
backpack required individualized suspicion, the State nevertheless urges this Court to
affirm the district court’s denial of the motion to suppress. The State contends that,
although the district court ruled the security officer “did not have or need
individualized suspicion that each child was in possession of tobacco products or a
lighter,” affirmance is merited because such individualized suspicion to search Child
and his backpack was nevertheless present. 	In support of its argument, the State
acknowledges that Child’s mere presence at the smoker’s corner prior to stepping onto
the school campus does not provide the requisite individualized suspicion. 	See
generally State v. Jason L., 2000-NMSC-018, ¶ 21, 129 N.M. 119, 2 P.3d 856 (noting
that New Mexico has not dispensed with the need for individualized suspicion and
affirming the lower court’s determination that the actions of the defendant’s
companion could not be used to justify the defendant’s detention); State v. Eli L.,
1997-NMCA-109, ¶¶ 3, 11, 124 N.M. 205, 947 P.2d 162 (holding that the child’s
proximity to the initial reported disturbance, the child’s dress in gang-attire and the
child’s gang-whistle, and the fact that another juvenile in the area had been found

16
carrying a concealed weapon did not provide the necessary individualized suspicion
to justify the search of the child in the school parking lot). However, the State argues
that individualized suspicion is not solely dependent on Child’s presence at the
smoker’s corner and subsequent entry onto the school campus. 	Instead, the State
directs us to evidence that tobacco products had been found during a search of Child
earlier in the school year when Child had similarly entered campus from the smoker’s
corner. 	Given Child’s prior misconduct, the State argues that the requisite
individualized suspicion existed to justify the search of Child when he was again seen
entering campus from the smoker’s corner.
{21} 	We recognize that a reasonable suspicion determination requires an assessment
of “the totality of the circumstances and precludes . . . [a] divide-and-conquer
analysis” so that each individual factor or circumstance is not viewed in a vacuum.
State v. Neal, 2007-NMSC-043, ¶ 28, 142 N.M. 176, 164 P.3d 57 (omission in
original) (alteration in orginal) (internal quotation marks and citation omitted).
Consistent therewith, we further recognize federal case law provides that “in
conjunction with other factors, criminal history contributes powerfully to the
reasonable suspicion calculus.” United States v. Santos, 403 F.3d 1120, 1132 (10th
Cir. 2005). 	New Mexico case law extends a similar consideration to a school
official’s prior knowledge of a suspect student’s behavior when considering the
reasonableness of a school search. 	See Pablo R., 2006-NMCA-072, ¶¶ 13-14

17
(considering the factor that the school official had no history of trouble with the child
in determining that the search was not justified at its inception); Doe, 88 N.M. at 352,
540 P.2d at 832 (providing that a child’s history of disciplinary problems is a factor
to consider in determining whether the search of a child is justified).
{22} 	In the present case, however, we are unwilling to engage in the analysis
suggested by the State because of the way the case was argued and decided below. As
noted above, the State steadfastly maintained below that individualized suspicion was
not needed, and the district court agreed. As a result, the question of individualized
suspicion was not fully developed before the district court, nor was Child given a full
and fair opportunity to respond to the effect his prior misconduct might have on the
individualized suspicion inquiry. 	See Meiboom v. Watson, 2000-NMSC-004, ¶ 20,
128 N.M. 536, 994 P.2d 1154 (providing that our Supreme Court will not affirm a
district court ruling on a ground not relied upon by the district court if reliance on the
new ground would be unfair to appellant, and as part of this, the Court “on appeal . .
. will not assume the role of the trial court and delve into . . . fact-dependent inquiries”
(omissions in original) (alteration omitted)); State v. Wilson, 1998-NMCA-084, ¶ 17,
125 N.M. 390, 962 P.2d 636 (recognizing that unfairness precludes an appellate court
from affirming on a fact-dependent ground not determined below).
{23} 	We note that the district court expressly found that “Child had previously been
searched during the 2008 school year and was found to have a pack of cigarettes.”

18
While we agree that tobacco use and possession could supply the particularized
suspicion necessary to support a search, the district court did not state whether the
security officer in the present incident was the same security officer that had searched
Child previously and found cigarettes, nor did the court make findings regarding
whether the security officer recalled that Child had previously been found with
tobacco products when he was searched the second time. Further, Child was not put
on notice of the importance of or need to inquire into those matters. 	See generally
Meiboom, 2000-NMSC-004, ¶ 20 (holding that our Supreme Court will not affirm on
a fact-dependant ground not determined below); State v. Williams, 2006-NMCA-062,
¶ 27, 139 N.M. 578, 136 P.3d 579 (recognizing that “[t]he reasonableness of official
suspicion must be measured by what the officers knew before they conducted their
search” (citation omitted)); Wilson, 1998-NMCA-084, ¶ 17 (stating that fairness
tempers the precept “that an appellate court can uphold a trial court’s decision if it is
right for any reason”).
{24} 	Because factual matters remain to be considered and resolved in light of our
holding that individualized suspicion was required to justify the search, we decline to
resolve these matters in the first instance on appeal. 	Accordingly, we remand for
consideration of whether the facts in this case support a conclusion that the school
security officer had individualized and particularized suspicion to justify the search
of Child and his backpack.

19
{25} 	Finally, Child argued below and on appeal that the search was illegal under both
the Federal and State Constitutions. 	Because we conclude that the Federal
Constitution affords Child relief, we need not address his claims under the New
Mexico Constitution. See State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 7, 130 N.M.
386, 25 P.3d 225 (declining to examine the defendant’s state constitutional claim “[i]f
the [F]ederal Constitution affords [the d]efendant the protection he seeks”).
CONCLUSION
{26} 	Based on the foregoing discussion, we conclude that the school security officer
needed individualized suspicion that Child violated the school policy prohibiting the
possession of tobacco products on school grounds in order to justify the search of
Child and his backpack. 	We reverse the district court’s ruling to the contrary and
remand for further consideration.
{27} 	IT IS SO ORDERED.
_________________________________
LINDA M. VANZI, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

TIMOTHY L. GARCIA, Judge

20