1997 -NMCA- 15, State v. Tywayne H.

• Decision Date: 29 January 1997
• Docket Number: No. 16565,16565
• Citation: 1997 NMCA 15,933 P.2d 251,123 N.M. 42
• Parties: , 1997 -NMCA- 15, 116 Ed. Law Rep. 1234 STATE of New Mexico, Plaintiff-Appellee, v. TYWAYNE H., a child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 251

933 P.2d 251

123 N.M. 42, 1997 -NMCA- 15, 116 Ed.

Law Rep. 1234

STATE of New Mexico, Plaintiff-Appellee, v. TYWAYNE H., a child, Defendant-Appellant.

No. 16565.

Court of Appeals of New Mexico.

Jan. 29, 1997.

Certiorari Denied March 26, 1997.

Tom Udall, Attorney General, Max Shepherd, Ass't Attorney General, Michelle S. Leighton, Ass't Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, Laurel A. Knowles, Ass't Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

APODACA, Chief Judge.

¶1 Child was adjudged a delinquent child for unlawfully carrying a deadly weapon on school premises, contrary to NMSA 1978, Section 30-7-2.1 (Repl.Pamp.1994) and NMSA 1978, Section 32A-2-3(A), (B) and Section 32A-2-16 (Repl.Pamp.1995). Child appeals, contending that the search of his person that uncovered the weapon was unlawful. We agree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mothers Against Drunk Drivers (MADD) co-sponsored an after-prom dance with Clovis High School in the school's gymnasium. Two uniformed police officers from the Clovis Police Department provided security. The dance started between midnight and 12:30 a.m. Students were instructed to enter through the front entrance, where their hands were stamped. Once a student left the gym, he or she was not allowed to return.

¶3 Shortly after the dance began, Officer Mondragon and another officer arrived to check on the two officers already present. At about 12:45 a.m., two students, Child and a friend, entered through a side door. Officer Mondragon asked one of the school's coaches standing nearby if students were allowed to enter through that door. The coach said no. The four officers quickly surrounded the two students, and Officer Mondragon put his hand on Child's shoulder. The officers tried to see if the students had stamps on their hands, but it was too dark in the gym to tell. There is no dispute that the smell of alcohol emanated from the friend. This fact was communicated to Officer Mondragon. Officer Jackson testified that he smelled alcohol on Child and that Child admitted drinking one beer outside. Officer Mondragon asked Child to step outside, and Officer Summers asked the friend to follow. Both students were frisked. Officer Mondragon's pat-down search of Child uncovered a loaded semi-automatic handgun. The officers testified that the students fully cooperated at all times and did not show any violent tendencies during the encounter.

¶4 Child filed a motion to suppress the evidence seized, arguing that the search was unlawful. The motion was denied, and Child appeals the denial of his motion.

II. DISCUSSION

A. Standard Of Review

¶5 As a reviewing court, we must give weight to the trial court's inferences drawn from historical facts. See Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994); State v. Esguerra, 113 N.M. 310, 313, 825 P.2d 243, 246 (Ct.App.1991) (in reviewing motion to suppress, facts reviewed in manner most favorable to prevailing party). The ultimate determination of reasonable suspicion and probable cause, however, is reviewed de novo. Ornelas; State v. Graves, 119 N.M. 89, 91, 888 P.2d 971, 973 (Ct.App.1994).

B. The Fourth Amendment And Reasonable Government Searches

¶6 All persons harboring a reasonable expectation of privacy are entitled to be free from unreasonable governmental intrusions. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873-74, 20 L.Ed.2d 889 (1968); see Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 2390, 132 L.Ed.2d 564 (1995) ("[T]he ultimate measure of the constitutionality of a governmental search is 'reasonableness.' "). The Federal Constitution, through the Fourteenth Amendment, seeks to protect this freedom by prohibiting unreasonable searches and seizures by state officers. Terry, 392 U.S. at 9, 88 S.Ct. at 1873-74. Thus, in general, a state officer must have probable cause, evidenced by a warrant, to conduct a search. See Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2305-06, 110 L.Ed.2d 112 (1990); N.M. Const. art. II, § 10; State v. Williams, 117 N.M. 551, 554-55, 874 P.2d 12, 15-16 (1994). A warrant, however, is not required to establish the reasonableness of every government search, and often when a warrant is not required, neither is probable cause. Vernonia, 515 U.S. at ---- - ----, 115 S.Ct. at 2390-91.

1. Was The Search Justified As A T.L.O. School Search?

¶7 The State argued to the children's court that school children do not have a reasonable expectation of privacy, and thus the Fourth Amendment does not apply to them. This is incorrect. School children do not shed their constitutional rights at the schoolhouse gate. Vernonia, 515 U.S. at ----, 115 S.Ct. at 2392; Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Ample case law demonstrates that the Fourth Amendment applies to searches conducted by public school authorities. See, e.g., Vernonia, 515 U.S. at ---- - ----, 115 S.Ct. at 2390-91; New Jersey v. T.L.O., 469 U.S. 325, 336-37, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985); Doe v. State, 88 N.M. 347, 351, 540 P.2d 827, 831 (Ct.App.1975); State v. Michael G., 106 N.M. 644, 646-48, 748 P.2d 17, 19-21 (Ct.App.1987).

¶8 The State alternatively argues that the search was a legitimate school search permitted under the holding in T.L.O. In T.L.O., the United States Supreme Court rejected the need for school authorities to obtain search warrants before searching students and also lessened the search and seizure standard for school authorities from probable cause to reasonable suspicion. 469 U.S. at 340-41, 105 S.Ct. at 742-43. The reason for this lessening of requirements was a need to balance the privacy interests of students against the school's interests in discipline and order. Id. at 341, 105 S.Ct. at 742-43. The test for proper searches by school officials expressed in T.L.O. was (1) whether the school authority's action was justified at its inception (i.e., whether there was reasonable suspicion to believe that the student was in violation of a law or school rule and that the search would uncover evidence of the violation) and (2) whether the search was reasonably related in scope to the circumstances that justified the interference. Id. T.L.O., however, limited its application to school authorities acting alone and on their own authority. Id. at 341 n. 7, 105 S.Ct. at 743 n. 7. The Court specifically did not address "the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies." Id.

¶9 The search here was not conducted by school authorities on their own initiative or even by school authorities with or at the direction of a law enforcement agency. Instead, it was conducted completely at the discretion of the police officers. The only police contact with a school official was Officer Mondragon's question to the coach concerning whether students were permitted to enter through the side door. The coach answered that they were not but gave no directive to the officers to search the students. During the pat-down search itself, there were no school authorities present.

¶10 We thus determine that T.L.O.'s lowered standard of reasonable suspicion does not apply under the circumstances of this appeal. Probable cause was therefore required to conduct the search of Child. See, e.g., Picha v. Wielgos, 410 F.Supp. 1214, 1221 (N.D.Ill.1976) (probable cause required if police involved in school search); F.P. v. State, 528 So.2d 1253, 1254-55 (Fla.Dist.Ct.App.1988) (same); State v. Young, 234 Ga. 488, 216 S.E.2d 586, 594 (1975) (minimal standard of suspicion for school authorities applies if search is "free of involvement by law enforcement personnel"); People v. Bowers, 77 Misc.2d 697, 356 N.Y.S.2d 432, 435 (Sup.Ct.1974) (same); 4 Wayne LaFave, Search and Seizure § 10.11(b), at 832 (3d ed. 1996) ("Lower courts have held or suggested that the usual probable cause test obtains if the police are involved in the search in a significant way."); cf. Cason v. Cook, 810 F.2d 188, 192-93 (8th Cir.1987) (search by plainclothes liaison officer in conjunction with vice-principal where officer's intrusion was minimal held to T.L.O. standard of reasonable suspicion); Martens v. District No. 220, Bd. of Educ., 620 F.Supp. 29, 32 (N.D.Ill.1985) (same). But see People v. Dilworth, 169 Ill.2d 195, 214 Ill.Dec. 456, 463, 661 N.E.2d 310, 317 (search by police officer acting in capacity as liaison officer for public school governed byT.L.O.),cert. denied, --- U.S. ----, 116 S.Ct. 1692, 134 L.Ed.2d 793 (1996).

¶11 Our determination that T.L.O. does not apply to the facts of this appeal is buttressed by an analysis of the United States Supreme Court's three-prong test for determining whether a departure from the Fourth Amendment standard of probable cause and a warrant is appropriate. Vernonia, 515 U.S. at ---- - ----, 115 S.Ct. at 2391-94. The test requires that the conflicting interests of the State and the individual be examined in light of (1) the nature of the privacy interest upon which the search intrudes, (2) the character of the intrusion, and (3) the nature and immediacy of the search. Id.

¶12 Regarding the first prong, the nature of Child's "privacy expectations vis-a-vis the State may depend upon the individual's legal relationship with the State." Id. at ----, 115 S.Ct. at 2391. Here, although Child's reasonable expectation of privacy is lowered with respect to a search by school authorities, see T.L.O., it is not lowered with respect to a search by a uniformed police officer. T.L.O. gave leeway to school officials because "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary...