In Re Josue T.

1999 NMCA 115, 989 P.2d 431, 128 N.M. 56, 1999 WL 688727
CourtNew Mexico Court of Appeals
DecidedJuly 2, 1999
Docket19,472
StatusPublished
Cited by32 cases

This text of 1999 NMCA 115 (In Re Josue T.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Josue T., 1999 NMCA 115, 989 P.2d 431, 128 N.M. 56, 1999 WL 688727 (N.M. Ct. App. 1999).

Opinion

OPINION

APODACA, Judge.

{1} This case presents a question of first impression in New Mexico — Does the Fourth Amendment to the Federal Constitution require probable cause for a full-time, commissioned police officer assigned to a public high school as a resource officer to lawfully search a student during school hours, when the search is conducted at the request of a school official? We answer that question negatively and hold that under the facts present in this appeal, the officer only required reasonable suspicion, the same, lower standard required of school officials.

{2} In New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), the United States Supreme Court decided that school officials’ special need for flexibility and swiftness in responding to discipline problems makes the warrant and probable cause requirements inappropriate for school officials in the school setting. We believe the rationale underlying the exception to the warrant and probable cause requirements for school officials applies with equal force where, as here, a school resource officer searched a student at the behest of a school official, who we determine later in our discussion had reasonable grounds for the search.

{3} In this appeal, Defendant Josué T. (Student), a child, entered a conditional admission to the delinquent act of carrying a deadly weapon on school premises. He appeals the trial court’s denial of his motion to suppress the weapon found on him, arguing that the search and seizure by the school resource officer was unreasonable. Because we conclude that the school resource officer’s search of Student was reasonable under the circumstances existing in this appeal, we hold that the search did not violate Student’s Fourth Amendment right to be free from unreasonable searches. We thus affirm the judgment and disposition, as well as the trial court’s denial of Student’s motion to suppress the weapon discovered in the search.

I. FACTUAL AND PROCEDURAL BACKGROUND

{4} On the day in question, Student was driven to his school, Goddard High School in Roswell, New Mexico, in another student’s pickup truck. During the morning, the other student was referred to the assistant principal (the school official) because he “smell[ed] heavily of marijuana.” In an effort to determine if any other students were in possession of marijuana on the school premises, the school official contacted several of the students who had ridden to school in the pickup truck. The school official went to Student’s classroom with the intention of speaking with him briefly. Before speaking to Student, the school official had spoken to and searched the driver of the pickup truck, had spoken to and searched one other student who had ridden to school in the truck, and had searched the truck. No marijuana was found during those searches.

{5} When the school official opened the door to Student’s classroom and requested that he meet her in the hallway, Student immediately appeared evasive, which was not his usual manner. When Student stepped into the hallway, the school official noticed that he too smelled of burnt marijuana. At that point, the school official decided that she would take Student to her office to be searched for marijuana. Officer Reese, a school resource officer, joined the school official and Student and accompanied them to the school official’s office. A school resource officer is a commissioned police officer assigned to a public school by the officer’s police department. Officer Reese was employed full-time by the Roswell Police Department but had a permanent office at the high school, where he was assigned to full-time duty. In performing his duties at the school, the officer was armed and wore a police uniform.

{6} During the time Student was being questioned by the school official outside of his classroom and as he walked with the official and Officer Reese down the hallway to be searched in the school official’s office, Student kept both hands in the pockets of his baggy pants. While walking to the school official’s office, both the school official and the officer noticed that Student had a large object in the right front pocket of his pants. Based on her observation of this bulging object, Student’s atypically quiet demeanor, and the fact that Student kept putting his hand further and further into his pocket, the school official became concerned and wondered what Student might be hiding in his pocket.

{7} Once in the school official’s office, the school official told Student that he would be searched and that he should empty his pockets on her desk. Student emptied his left pocket, but would neither empty his right pocket nor remove his hand from the pocket, despite repeated requests to do so. Student’s refusal to comply increased the school official’s concern about what the Student was hiding in his pocket. She testified that she became concerned and that Student’s refusal to take his hand from his pocket created a “safety issue” in her mind. For that reason, she asked Officer Reese to search Student, Based on that request, the officer directed Student to remove his hand from his right pocket, which he refused to do. Officer Reese then took Student’s hand from his pocket, reached into the pocket himself, and retrieved a .38 caliber handgun.

{8} The State filed a delinquency petition charging Student with the Unlawful Carrying of a Deadly Weapon on School Premises contrary to NMSA 1978, § 30-7-2.1 (1994). Student entered a conditional admission to this charge, but reserved the right to appeal the denial of his motion to suppress evidence of the weapon. After an evidentiary hearing on the motion to suppress, the trial court entered findings of fact, conclusions of law, and an order denying the motion. The court later entered a judgment and disposition, concluding that Student was delinquent based on his admission of carrying a deadly weapon to school. Student appeals from the judgment and the denial of his motion to suppress.

{9} At this juncture, we observe that Student views the facts differently than we have outlined them above. He notes that, prior to his removal from the classroom, his behavior had not aroused any attention. Student emphasizes that the driver evidently smelled of marijuana. Although the school official suspected that the students were smoking at the school, no one reported seeing Student or the driver smoking there. Student also points out that the driver did not implicate Student with possession or use of marijuana. Neither the search of the driver nor the search of another student who had been in the truck turned up evidence of marijuana.

{10} Additionally, Student notes that Officer Reese did not testify that Student smelled of marijuana. Student states that he was cooperative as they walked down the hall. The school official testified that, at that time, she did not see anything protruding from his pockets. Student did not say anything or make threats concerning a gun. The school official testified that Student had always been respectful to her in the past. Based on this evidence, Student argues that nothing in the school official’s testimony indicates her suspicion that Student was carrying a weapon. Finally, Student notes that Officer Reese did not believe he had probable cause to search Student for drugs.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 115, 989 P.2d 431, 128 N.M. 56, 1999 WL 688727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-josue-t-nmctapp-1999.