                                                 I attest to the accuracy and
                                                  integrity of this document
                                                    New Mexico Compilation
                                                  Commission, Santa Fe, NM
                                                 '00'04- 13:55:51 2013.03.13
Certiorari Granted, March 1, 2013, No. 33,997
Certiorari Granted, March 1, 2013, No. 33,999

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-035

Filing Date: December 13, 2012

Docket No. 30,827

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ANTONIO T.,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra Price, District Judge

Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM

for Appellee

Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM

for Appellant

Jennifer Street
Albuquerque, NM

Jones, Snead, Wertheim & Wentworth P.A.
Jerry Todd Wertheim
Santa Fe, NM


                                          1
for Amicus Curiae New Mexico Criminal Defense Lawyers Association

Cuddy & McCarthy LLP
John F. Kennedy
Santa Fe. NM

for Amicus Curiae New Mexico School Boards Association and New Mexico Coalition of
School Administrators

                                         OPINION

KENNEDY, Judge.

{1}      A vice principal interrogated a high school student suspected of being intoxicated.
The interrogation was conducted in her office in the presence of a police officer. The officer
thereafter arrested the student, and the student’s statements to the vice principal were used
against him in his juvenile case. We evaluate whether the student was subject to questioning
in violation of his rights against self-incrimination under NMSA 1978, Section 32A-2-14
(2009) and the Fifth Amendment to the United States Constitution. We consider whether
the student was subject to an investigatory detention and whether Miranda protections are
extended under Section 32A-2-14 to include interrogations by school officials in the
presence of a passive officer. We conclude that, although the student experienced an
investigatory detention, the vice principal was not acting on behalf of law enforcement, and
the unique concerns of a school investigation do not require a student to receive warnings
prior to questioning by a school official in these circumstances. We affirm the district court.

I.     BACKGROUND

{2}      On April 14, 2010, at Kirtland Central High School, two teachers escorted a student,
Antonio T., to the school’s administrative office based on the suspicion that he was
intoxicated. Antonio was taken to the office of Vice Principal Vanessa Sarna. Sarna stated
that she immediately noticed that Antonio’s speech was slurred. Shortly after Antonio
arrived in the office, Sarna called in Deputy Emerson Charley, a police officer who served
as the school’s resource officer. The deputy was dressed in full police uniform and equipped
with all of the standard instruments of lethal and non-lethal force. Sarna stated that she had
called in the deputy to administer a portable breath test (PBT), as well as to protect her in
case Antonio became violent. The deputy prepared the PBT while Sarna questioned
Antonio. The deputy testified that, before administering the PBT, he heard Sarna ask
Antonio if he had consumed any alcohol, what kind of alcohol, and how much he had
consumed.

{3}    During the course of Sarna’s questioning, Antonio admitted to drinking two shots of
peppermint schnapps before disposing of the bottle in a restroom trash can. Deputy Charley
then administered the PBT, which showed that Antonio’s blood alcohol concentration was

                                              2
.11%. While Antonio took the PBT, Sarna searched his bag within a few feet from the
deputy and Antonio. She discovered a folding pocket knife. Sarna confiscated the knife and
gave it to the deputy. Sarna then directed the deputy to go search the bathroom for the bottle
that Antonio disposed of in the trash can. The deputy left Sarna’s office to search for the
bottle, but was unable to locate it.

{4}     Sarna testified that the purpose of her investigation was to ensure the safety of
Antonio and other students. She also stated that the PBT was administered for safety reasons
and that Deputy Charley searched the bathroom to ensure that intoxicants had not been left
out for other students to find and possibly ingest.

{5}     After searching the bathroom, Deputy Charley returned to the administrative office,
read Antonio his Miranda rights, and proceeded to question him. Antonio answered the
deputy’s questions about the knife, but asserted his Fifth Amendment right against self-
incrimination when he was questioned about the alcohol. The deputy arrested Antonio and
charged him as a minor in possession of alcohol and for carrying a deadly weapon on school
premises. The knife is not an issue in this case. The deputy testified that he had actively
listened to Sarna’s questions and used Antonio’s admission to consuming alcohol in filling
out his police report.

{6}     Antonio moved to suppress his admission to consuming alcohol, and the district court
held an evidentiary hearing in the matter. Antonio alleges that at the hearing, the State failed
to show that the admission was made after a knowing, intelligent, and voluntary waiver of
his right to remain silent pursuant to Section 32A-2-14(C) and (D). Deputy Charley and
Sarna maintained that their investigations were distinct and unrelated. Antonio’s confession
was admitted as evidence against him. The district court orally denied the motion to
suppress and Antonio appealed the admission of his confession.

II.    DISCUSSION

{7}     Antonio argues that his confession should have been suppressed under New Mexico’s
broad extension of Miranda protection for juveniles under Section 32A-2-14. The State
argues that Antonio was not entitled to a reading of his Miranda rights because he was
questioned by Sarna, a school administrator, not law enforcement, and that Sarna’s
investigation was school-related and not on behalf of the police.

A.     Miranda Warnings in Custodial Interrogations

{8}     The United States Supreme Court recognized that, due to compelling pressures in
custodial interrogations, suspects are required to be advised of their Fifth Amendment rights
before questioning. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). A determination of
whether a person is subject to custodial interrogation and entitled to the constitutional
protections of Miranda is a mixed question of law and fact. State v. Javier M., 2001-NMSC-
030, ¶ 17, 131 N.M. 1, 33 P.3d 1 (internal quotation marks and citation omitted). “[W]e

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review mixed questions of law and fact de novo, particularly when they involve
constitutional rights.” Id.

{9}     In New Mexico, any individual suspected of criminal conduct who is held for
custodial interrogation must be read their Miranda rights. See State v. Smile, 2009-NMCA-
064, ¶ 24, 146 N.M. 525, 212 P.3d 413; see also State v. Fekete, 120 N.M. 290, 300, 901
P.2d 708, 718 (1995). For police questioning to qualify as a custodial interrogation and thus
trigger a suspect’s Miranda rights, “the defendant must be in custody and there must be an
interrogation.” Smile, 2009-NMCA-064, ¶ 24. Questioning by investigating officers is not
subject to Miranda requirements where the defendant is neither in custody nor deprived of
freedom in any significant way. State v. Swise, 100 N.M. 256, 257-58, 699 P.2d 732, 733-34
(1983). The constitutional privilege against self-incrimination is as applicable in the case
of juveniles as it is with respect to adults. In re Gault, 387 U.S. 1, 55 (1967).

{10} In Javier M., our Supreme Court noted that a person is subject to custodial
interrogation when he or she lacks the freedom to leave to an extent equal to formal arrest,
in addition to isolation in an environment completely controlled by law enforcement. 2001-
NMSC-030, ¶ 18. In this case, Antonio was being questioned by a school administrator
while a deputy listened and also administered a sobriety test. Antonio was not taken to a
new location or isolated with law enforcement; the office was not controlled by the officer.
Sarna testified that, as a school administrator, her goals were the safety of Antonio and other
students, rather than a pursuit of a criminal investigation. Because the purpose and location
of the questioning were not controlled by law enforcement, we conclude that Antonio was
not subject to a custodial investigation.

{11} Having determined that Antonio did not experience a custodial interrogation when
he was taken to the vice principal’s office, we next address whether Antonio was held for
an investigatory detention. Because such detentions are routine and fact-finding, they have
not generally triggered a defendant’s constitutional rights. See Swise, 100 N.M. at 257, 669
P.2d at 733.

B.     Miranda Rights for Juveniles in Investigatory Detention

{12} New Mexico has created a statutory exception to the general rule that investigatory
detentions do not trigger Miranda rights by providing juveniles with heightened protections.
See Javier M., 2001-NMSC-030, ¶ 1. Section 32A-2-14(C) provides that “[n]o person . . .
who is alleged or suspected of being a delinquent child shall be interrogated or questioned
without first advising the child of the child’s constitutional rights and securing a knowing,
intelligent[,] and voluntary waiver.” Section 32A-2-14 provides that a child need not be
under custodial interrogation in order to trigger the protections of the statute. Javier M.,
2001-NMSC-030, ¶ 1.

{13} As a result, Miranda rights are triggered when a child is subject to an investigatory
detention, which requires less coercive circumstances than a custodial interrogation. Id.

                                              4
Investigatory detentions are “[f]ourth [a]mendment seizures of limited scope and duration,
[which] are generally public, temporary, and substantially less coercive than custodial
interrogations.” Id. ¶ 19. Investigatory detentions are presumptively brief and not so
inherently coercive that the detainee feels compelled to speak. Id. An investigatory
detention requires a reasonable suspicion of guilt and should be performed to confirm or
dispel an officer’s suspicion that criminal activity has occurred or is occurring. Cf. State v.
Alderete, 2011-NMCA-055, ¶ 18, 149 N.M. 799, 255 P.3d 377 (noting that the police “had
reasonable suspicion to conduct an investigatory stop of [the d]efendant’s vehicle to confirm
or dispel their suspicions”); Javier M., 2001-NMSC-030, ¶ 40 (determining that “[t]he
statute . . . protects against a child’s statements which are made during an investigatory
detention in response to a police officer’s questioning that could not be mere administrative
questions and that is intended to confirm or dispel the officer’s suspicions that the child is
or has committed a delinquent act”). In all of these situations, as with custodial
interrogation, the investigatory detention is initiated and pursued by a police officer.

{14} Although other states have enacted statutes that provide juveniles with heightened
Miranda protections, New Mexico is the only state that requires a reading of Miranda rights
during an investigatory detention as opposed to a custodial interrogation. Our Supreme
Court in Javier M. determined that the Legislature intended that Section 32A-2-14 applies
when a child is formally charged or seized pursuant to an investigatory detention and is not
free to leave. Javier M., 2001-NMSC-030, ¶ 38. The Court in Javier M. exempted
administrative questions, such as name or age, general on-the-scene questions, or voluntary
statements from the child. Id. ¶¶ 38-39. It then determined that an investigatory detention
is one that is limited, public, temporary, and less coercive than a custodial detention. Id. ¶
19.

{15} In Javier M., a police officer asked the defendant to step outside of a residence for
questioning on an open stairwell because he had reason to believe that the defendant was
under age and had been drinking. Id. ¶ 3. Although the defendant was not free to leave, the
questioning was brief, done in public, and not so coercive that the child would have felt that
he was under arrest. Id. ¶ 20. The defendant was not searched nor administered a field
sobriety test. Id. ¶¶ 3, 20-23. The officers briefly detained the defendant to confirm their
suspicion that he had been drinking. Id. ¶¶ 3-4. The defendant was charged with
delinquency based on his affirmative answer to the officer’s questioning. Id. ¶ 5. On appeal,
the Supreme Court held that the defendant’s admission should have been suppressed. Id. ¶
48. The Court determined that he had been held in an investigatory detention and should
have been entitled to a reading of his Miranda rights. Id.

{16} In our case, Antonio was taken away from class to the vice principal’s office, held
in a closed room, and questioned by Sarna, a school administrator, in the presence of a
uniformed deputy. Antonio was isolated from the public during Sarna’s questioning, but not
alone with the deputy, and the deputy asked no questions. Sarna searched his bag. Sarna
testified that her interrogation was to ensure the safety of Antonio and other students by
determining how much he drank and where the alcohol was disposed. Antonio was not taken

                                              5
from school grounds and, as in Javier M., the detention was “to ensure the safety of the
[c]hild and was not adversarial as is the case when an individual is in custodial
interrogation.” Id. ¶ 22. By contrast, an individual is subjected to a custodial interrogation
when he or she is “swept from familiar surroundings into police custody, surrounded by
antagonistic forces, and subjected to the techniques of persuasion,” causing the individual
to feel a “compulsion to speak.” Id. ¶ 15 (internal quotation marks and citation omitted).

{17} From these circumstances, we conclude that Antonio was subjected to an
investigatory detention. We now must determine whether Section 32A-2-14, which extends
protections to juveniles in investigatory detentions, retains the requirement in Miranda that
the protected investigations are conducted by law enforcement officers.

C.     Public School Official’s Questioning Was For School Purposes, Not Law
       Enforcement

{18} In Miranda, the United States Supreme Court held that the Fifth Amendment right
against self-incrimination applies to custodial interrogations conducted by law enforcement
officers. In New Mexico, if police officers detain a minor to confirm or dispel subjective
suspicions of a child’s delinquency, the officers must inform the child of his or her right to
remain silent under Section 32A-2-14. Section 32A-2-14 has thus far only been applied in
cases where law enforcement has interrogated or detained a child, never in instances of
school discipline involving only a school administrator. See, e.g., State v. Martinez,
1999-NMSC-018, ¶ 4, 127 N.M. 207, 979 P.2d 718; State v. Randy J., 2011-NMCA-105,
¶¶ 2-3, 150 N.M. 683, 265 P.3d 734; State v. Adam J., 2003-NMCA-080, ¶ 2, 133 N.M. 815,
70 P.3d 805; In re Bruno R., 2003-NMCA- 057, ¶¶ 7-8, 133 N.M. 566, 66 P.3d 339.

{19} Other states have declined to view a school administrator as an agent for law
enforcement and permitted testimony obtained without Miranda warnings during a student
interrogation. See, e.g., In re Brendan H., 372 N.Y.S.2d 473, 477 (N.Y. Fam. Ct. 1975);
State v. J.T.D., 851 So. 2d 793, 795 (Fla. Dist. Ct. App. 2003) (holding that “the assistant
principal was not an agent of the police . . . [g]iven that finding, Miranda warnings were not
necessary in this case”); People v. Butler, 725 N.Y.S.2d 534, 540 (Sup. Ct. 2001) (holding
that “the interrogation must be by a public servant engaged in law enforcement or a person
acting in cooperation with, or under the direction of, or as an agent of a law enforcement
officer” to require Miranda warnings); J.D. v. Commonwealth, 591 S.E.2d 721, 724 (Va. Ct.
App. 2004) (determining that the principal “was not acting as a police officer or as a
governmental agent with law enforcement authority” and basing its holding on the weight
of authority from “[n]umerous appellate courts from other states [that] have concluded that
a school principal or other school official who questions a student about a possible violation
of law or school regulation does not, absent other circumstances, act as a law enforcement
officer or agent of the state with law enforcement authority”); S.G. v. State, 956 N.E.2d 668,
680 (Ind. Ct. App. 2011) (holding that an investigation initiated by a principal, who
summoned the school police officer to be present, did not require Miranda protections and
stating that “[p]olice cannot avoid their duty under Miranda by attempting to have someone

                                              6
act as their agent in order to bypass the Miranda requirements”).

{20} In the cases above, the courts determined that the mere presence of an officer did not
transform a school official’s interrogation into an action by law enforcement that requires
Miranda rights. We have recognized:

                  The special relationship between teacher and student . . . distinguishes
        the setting within which schoolchildren operate. Law enforcement officers
        function as adversaries of criminal suspects. These officers have the
        responsibility to investigate criminal activity, to locate and arrest those who
        violate our laws, and to facilitate the charging and bringing of such persons
        to trial. Rarely does this type of adversarial relationship exist between school
        authorities and pupils. Instead, there is a commonality of interests between
        teachers and their pupils.

State v. Tywayne H., 1997-NMCA-015, ¶ 12, 123 N.M. 42, 933 P.2d 251 (internal quotation
marks and citation omitted). We have also recognized that most school house interrogations
are conducted for the purpose of discovering violations of school rules or social
maladjustments and trying to correct the problem. Doe v. State, 88 N.M. 347, 353, 540 P.2d
827, 833 (Ct. App. 1975). We have stated that “[g]iving Miranda-type warnings would only
frustrate this purpose. It would put the school official and student in an adversary position.
This would be in direct opposition to the school official’s role of counselor.” Id. (emphasis
added). School officials receive leeway because “maintaining security and order in the
schools requires . . . flexibility . . . and we have respected the . . . informality of the student-
teacher relationship.” Tywayne H., 1997-NMCA-015, ¶ 12 (internal quotation marks and
citation omitted). Therefore, based on the weight of authority and the special goals of school
interrogations, we determine that Section 32A-2-14 applies to investigations by or on behalf
of law enforcement officials. We now evaluate whether Sarna’s investigation was on behalf
of law enforcement.

{21} The test to determine whether someone acts as an agent for law enforcement is laid
out in State v. Santiago, 2009-NMSC-045, 147 N.M. 76, 217 P.3d 89. In Santiago, mall
security guards apprehended the defendant in a parking lot and tackled, subdued, and
handcuffed him before discovering a pill bottle containing cocaine in his pocket. Id. ¶ 2.
Police arrived shortly thereafter, confiscated the drugs, and took the defendant into custody.
Id. ¶ 3. The defendant moved to suppress the evidence, claiming that the security guards had
acted as agents of the police, thus implicating his constitutional rights. Id. ¶ 4. The Court
determined that the state action doctrine did not apply, and the security guards were not
acting as agents of state law enforcement. Id. ¶ 28. In making this determination, the Court
considered (1) whether the government knew of and acquiesced in the intrusive conduct, and
(2) whether the party performing the search intended to assist law enforcement efforts or to
further his own ends. Id. ¶ 18.

{22}    We apply the test used in Santiago to determine whether Sarna acted as an agent for

                                                 7
the police while interrogating Antonio. First, we ask whether the government knew of and
acquiesced in the intrusive conduct. Id. In Santiago, the Court found that because the police
were neither present during, nor had direct knowledge of the search of the suspect, the first
prong of the agency test could not be satisfied. Id. ¶¶ 19-20. Here, Deputy Charley had
direct knowledge of and participated in the search that is at issue. The deputy aided in the
investigation when he conducted the PBT and when he left to check the trash cans in the
bathroom. Though Sarna directed the deputy to take both of these actions, the deputy
assumed full control over the investigation of the bathrooms, leaving Sarna and Antonio in
the office. Moreover, the deputy directly administered the PBT to Antonio. Sarna testified
that she was not properly trained to administer a PBT. The deputy’s service was an
indispensable part of Sarna’s investigation. Because the deputy was present almost the
entire time and participated in fact finding, he both knew of and acquiesced in the
investigation. Thus, his actions satisfy the first prong of the agency test.

{23} In turning to the second prong, we ask whether the party performing the interrogation
intended to assist law enforcement efforts or to further his or her own ends. Id. ¶ 18. Sarna
did not overstep her duties as a school administrator to assist law enforcement when she
directed Deputy Charley to administer the PBT or to search the bathroom. Sarna’s
determination of how much Antonio had been drinking, and if other students had been
drinking with him, directly served the interests of the school, as well as Antonio’s health and
safety. Sarna testified that she needed to know if Antonio had consumed other intoxicants
with the alcohol or by themselves to assess whether Antonio was in danger. The bathroom
was searched by the deputy to ensure that alcohol was not left out for other students to find
and consume. These actions served the school’s interests in a safe environment, even though
they may have also served a police interest. A school administrator has a legitimate interest
in preserving the safety and harmony of a school zone and its occupants. It is important to
a school administrator to know if a child is intoxicated and whether drugs or alcohol were
accessible to other students. We cannot say that Sarna acted in some capacity beyond the
scope of her employment to specifically aid law enforcement efforts. Section 32A-2-14 does
not require that Antonio be given Miranda warnings in this case.

{24} We conclude that Sarna was not acting to assist law enforcement beyond the scope
of her duties as a school administrator. The school had a legitimate independent motivation
or private interest in conducting the investigation, and we therefore reason that Sarna was
not acting as an agent for law enforcement.

{25} Although an amicus brief argues that the confession was not voluntary, Antonio does
not raise the issue, and thus we do not address it. Amicus curiae must accept cases on issues
as raised by parties and cannot assume the functions of a party. State ex rel. Castillo Corp.
v. N.M. State Tax Comm’n, 79 N.M. 357, 362, 443 P.2d 850, 855 (1968).

III.   CONCLUSION

{26}   For the above reasons, we conclude that, although this was an investigatory

                                              8
detention, Antonio had no right to Miranda warnings from a school administrator for a
school interrogation, despite the presence of a deputy. We affirm the district court.

{27}   IT IS SO ORDERED.

                                           ____________________________________
                                           RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Antonio T., No. 30,827

CHILDREN
Detention

CONSTITUTIONAL LAW
Miranda Warnings
Waiver of Rights

CRIMINAL LAW
Intoxication

CRIMINAL PROCEDURE
Confession
Detention or Custody
Miranda Warnings
Waiver

GOVERNMENT
Education and Schools




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