State v. Gage R.

243 P.3d 453

149 N.M. 14

2010 -NMCA- 104

STATE of New Mexico, Plaintiff-Appellee,

v.GAGE R., Child-Appellant.

No. 29,489.

Court of Appeals of New Mexico.

Sept. 27, 2010.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney 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 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, contraryto 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 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, 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 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.

{10} In New Jersey v. T.L.O., 469 U.S. 325, 340-41, 105 S.Ct. 733, 83 L.Ed.2d 720 (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, 105 S.Ct. 733. 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, --- U.S. ----, 129 S.Ct. 2633, 2639, 174 L.Ed.2d 354 (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, 105 S.Ct. 733. 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 n. 8, 105 S.Ct. 733. 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...