 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 27,552

10 JONATHON D.,

11          Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 William C. Birdsall, District Judge

14 Gary K. King, Attorney General
15 Andrew S. Montgomery, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Allison H. Jaramillo, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1         Jonathon D. (Child) appeals from the district court’s ruling denying a motion

 2 to suppress evidence obtained as a result of a search at Farmington High School.

 3 Finding no error, we affirm.



 4 BACKGROUND

 5         At approximately 8:00 a.m. on October 12, 2006, a teacher observed Child

 6 smoking a cigarette outside one of the school buildings at Farmington High School.

 7 Smoking cigarettes on school grounds is a violation of school policy at the high

 8 school. Accordingly, the teacher reported the incident to vice principal Christopher

 9 Pash.

10         When a student has been caught smoking at Farmington High School, the

11 policy, pursuant to the student handbook, is to search that student to determine if they

12 are in possession of any additional contraband. The student handbook states that a

13 search is permitted if there is reasonable cause to believe that the student has violated

14 a school rule or the law. The search generally consists of asking the student to remove

15 his or her coat or jacket, empty out his or her pockets, and then pull the pockets of

16 their clothing inside out. In addition, the student’s back pockets are checked with a

17 ruler or pen. Finally, the student is asked to take off his or her shoes and lift up his

18 or her pants to ascertain whether contraband is hidden in the student’s socks.



                                               2
 1        At the hearing on the suppression motion, Mr. Pash testified that he brought

 2 Child to the office, asked Child why he had been smoking and if Child “had anything

 3 else” in his possession. Mr. Pash did not remember whether Child handed over any

 4 cigarettes before he began the search, and he did not recall finding cigarettes in

 5 Child’s possession. After he talked to Child, Mr. Pash proceeded to conduct a search

 6 of Child—in accordance with school policy—to determine if Child was in possession

 7 of cigarettes or other contraband. Child was not wearing a jacket or coat so Mr. Pash

 8 began the search by asking Child to remove his shoes and instructed Child to pull up

 9 his pant legs. When Child raised his pant legs, Mr. Pash noticed a bulge in Child’s

10 sock. He asked if Child suffered from a medical condition which might account for

11 the bulge. Child answered, “No. You found my stash.” Child’s “stash” was

12 marijuana.

13        Child offered a slightly different account of the events which occurred after he

14 was taken to the office. According to Child, he immediately and voluntarily

15 relinquished a pack of cigarettes and a lighter as soon as he entered the office.

16 Thereafter, Mr. Pash began drafting a three-day suspension notice. Once that

17 suspension notice was written, Mr. Pash left the office for three or four minutes. After

18 he returned to the office, Mr. Pash asked Child to remove his shoes and lift his pant

19 legs. When Mr. Pash discovered the marijuana in Child’s sock, he threw out the

20 three-day suspension notice and drafted a ten-day suspension notice.

                                              3
 1        In the district court, Child moved to suppress the evidence (the marijuana)

 2 obtained as a result of the search. Child argued that Mr. Pash had searched him twice.

 3 As a result of the first search, Mr. Pash discovered the cigarettes and lighter, and as

 4 a result of the second search, he discovered the marijuana. Based on these facts, Child

 5 claimed that the second search was not justified because any suspicion that may have

 6 arisen as a result of the smoking violation was “quelled” after Mr. Pash seized the

 7 cigarettes and lighter. The district court denied Child’s motion. It noted first that “to

 8 hold that the voluntary production of some contraband by . . . [C]hild vitiates, rather

 9 than strengthens, an existing reasonable suspicion turns logic on its head.” The

10 district court went on to state that “[t]he lack of memory of [Mr. Pash] is problematic,

11 but once the [C]hild produced the cigarettes and lighter it would certainly be

12 appropriate to follow up with a search for additional contraband.”

13        On appeal, Child argues that the district court erred in denying his motion to

14 suppress because Mr. Pash did not have reasonable suspicion to search him a second

15 time after he had already turned over the cigarettes. Child does not contend here that

16 Mr. Pash searched him on two separate occasions. Rather, Child asserts that once he

17 voluntarily relinquished the cigarettes and lighter there was no longer any reasonable

18 suspicion to conduct a search. Accordingly, Child argues that the search by Mr. Pash

19 violated Child’s rights under the Fourth Amendment to the United States Constitution.

20 For the reasons that follow, we disagree.

                                               4
 1 DISCUSSION

 2        Because a motion to suppress evidence raises issues of fact and issues of law,

 3 we apply a two-part standard of review: “first, we determine whether the findings of

 4 fact made by the district court are supported by substantial evidence; second, we

 5 engage in a de novo review of the application of the law to those facts.” State v.

 6 Pablo R., 2006-NMCA-072, ¶ 9, 139 N.M. 744, 137 P.3d 1198. We view the facts

 7 as determined by the district court in the light most favorable to its ruling. In re Josue

 8 T., 1999-NMCA-115, ¶ 14, 128 N.M. 56, 989 P.2d 431.                   “Determining the

 9 reasonableness of a search, however, is a matter of law.” Id. We therefore apply a de

10 novo review to the district court’s determination that the search of Child in this case

11 was reasonable. Id.

12        As we have noted, our standard of review requires that we first assess whether

13 the district court’s findings of fact are supported by substantial evidence. The parties

14 do not dispute the majority of the factual underpinnings in this case. The one fact

15 which remains uncertain is whether and when Child turned over the cigarettes and

16 lighter to Mr. Pash. Child testified that he turned over the cigarettes and lighter

17 immediately upon entering the office. Mr. Pash, on the other hand, testified that he

18 did not remember whether Child handed over any cigarettes before he began the

19 search, that he did not recall finding cigarettes in Child’s possession although he did

20 find cigarettes at some point, and that Child may have voluntarily turned them over.

                                               5
 1 The district court was not troubled by Mr. Pash’s inconclusive testimony and observed

 2 that “[t]he lack of memory of [Mr. Pash] is problematic, but once . . . [C]hild produced

 3 the cigarettes and lighter it would certainly be appropriate to follow up with a search

 4 for additional contraband.” Thus, it appears that the district court accepted Child’s

 5 account of the search to the extent that Child testified that he voluntarily relinquished

 6 cigarettes and a lighter to Mr. Pash before Mr. Pash initiated the search which

 7 ultimately revealed the marijuana. To the extent that there is a dispute as to whether

 8 Child turned over the cigarettes and lighter, there is substantial evidence to support

 9 the district court’s finding that he did do so. In so concluding, however, we note that

10 whether or not Child turned over the cigarettes and lighter is of little consequence

11 because there is no disagreement that Child had been caught smoking in violation of

12 school policy.

13        We thus turn to the second prong of our analysis, whether it was reasonable

14 under the Fourth Amendment to the United States Constitution for Mr. Pash to

15 conduct a further search of Child to determine whether he had additional contraband

16 on his person. The parties do not dispute the basic principles governing a search of

17 a student by a school official. “It is well established that school officials do not need

18 a search warrant or even probable cause to search a student’s belongings for

19 contraband.” State v. Crystal B., 2001-NMCA-010, ¶ 14, 130 N.M. 336, 24 P.3d 771.

20 Because school officials have a need to maintain order and discipline on school

                                               6
 1 grounds, searches conducted by school officials in the school setting are subject to a

 2 less stringent standard. Id. However, students “do not shed their constitutional rights

 3 at the schoolhouse gate,” and they maintain a legitimate expectation of privacy in their

 4 persons and in the personal belongings they bring to school. State v. Tywayne H.,

 5 1997-NMCA-015, ¶ 7, 123 N.M. 42, 933 P.2d 251. Therefore, while probable cause

 6 is not required, a school search of a student is legal if it is “reasonable under the

 7 circumstances.” Pablo R., 2006-NMCA-072, ¶ 10.

 8        The parties also agree that when evaluating whether a school search was

 9 reasonable under the circumstances, our courts apply the two-prong standard set forth

10 in New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985), which was recently reiterated

11 in Safford Unified Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2638-39 (2009). See

12 Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, ¶¶ 16-19, 129 N.M. 436, 10 P.3d

13 115. Under the first prong of the standard articulated in T.L.O., we determine whether

14 the search was justified at its inception. 469 U.S. at 341. A search is justified at its

15 inception if “there are reasonable grounds for suspecting that the search will turn up

16 evidence that the student has violated or is violating either the law or the rules of the

17 school.” Id. at 341-42. Under the second prong, we determine whether the search, as

18 conducted, “was reasonably related in scope to the circumstances which justified the

19 interference in the first place.” Id. at 341 (internal quotation marks and citation

20 omitted). It is reasonable in scope if “the measures adopted are reasonably related to

                                               7
 1 the objectives of the search and not excessively intrusive in light of the age and sex

 2 of the student and the nature of the infraction.” Id. at 342.

 3        Child contends that the search he was subjected to does not satisfy either prong

 4 of the standard articulated in T.L.O. Child argues that once the cigarettes and lighter

 5 were in Mr. Pash’s possession, there was no longer reasonable suspicion to justify the

 6 search. Thus, there was no justification for the search at its inception. Further, Child

 7 argues that Mr. Pash’s examination of his socks lacked any connection to the

 8 reasonable suspicion which initially existed because no such reasonable suspicion ever

 9 initially existed. We address these arguments in turn.

10        The case relied upon by Child, Crystal B., does not support his position that the

11 search was not justified at its inception. In Crystal B., 2001-NMCA-010, ¶ 25, we

12 held that a school official violated a student’s Fourth Amendment rights when the

13 school official, after receiving a tip that the student was smoking in an alley off

14 campus, seized the student, ordered her into his car, and took her back to the school.

15 Id. ¶¶ 9-10. After the school official and the student returned to campus, the school

16 official searched the student and found a small amount of marijuana in her book bag.

17 Id. ¶ 11. This Court first looked to the reasonableness of the school official’s actions,

18 and we held that even assuming the school official had the authority to leave school

19 property to investigate a violation of school rules, the seizure of the student was

20 unreasonable. Id. ¶¶ 21-22. The rationale underlying our conclusion that the seizure

                                               8
 1 was unreasonable was two-fold. Id. ¶¶ 12-24. First, the school official had no

 2 authority to seize the student at a location off the grounds of the school. Id. ¶¶ 15-20.

 3 Second, when the student was found in the alley, the school official did not see the

 4 student smoking, did not smell any smoke, and did not see anyone trying to hide

 5 anything. Id. ¶ 22. Thus, any suspicion gleaned from the tip was dispelled, and the

 6 school official had no justification for the seizure as there was no evidence the student

 7 was violating school policy or the law. Id. Accordingly, the seizure and subsequent

 8 search were both unreasonable, and the evidence seized should have been suppressed.

 9 Id.

10        Child contends that his case is analogous to Crystal B. because once he

11 relinquished the cigarettes and lighter to Mr. Pash, the reasonable suspicion which

12 existed dissipated and Mr. Pash was required to release him. We are not persuaded.

13 Child’s case is significantly different from Crystal B., a case where no violation of

14 school policy or the law was observed, and therefore, there was no reasonable

15 suspicion for the seizure. Rather, the initial justification for the search at issue here

16 arose because a teacher reported that Child had been observed smoking on school

17 grounds. There is no dispute that Child had in fact been caught smoking. Mr. Pash

18 took Child to an office, asked Child why he had been smoking, and asked if he had

19 anything else in his possession. Mr. Pash then conducted the search based on the

20 suspicion that Child possessed tobacco products in violation of school rules. The

                                               9
 1 circumstances of the encounter between Mr. Pash and Child established that Mr. Pash

 2 had a reasonable suspicion that Child may have been in possession of additional

 3 contraband. Accordingly, the search was justified at its inception. The fact that Mr.

 4 Pash discovered marijuana, not cigarettes or cigarette smoking paraphernalia, does

 5 nothing to alter this conclusion.

 6        Further, we agree with the district court that the reasonable suspicion which

 7 existed to initiate the search of Child for evidence of cigarette use was strengthened,

 8 not diminished, when Child relinquished evidence of that violation (cigarettes and a

 9 lighter) to Mr. Pash. That Mr. Pash would suspect that Child might have additional

10 cigarettes and other related contraband beyond that which was already voluntarily

11 relinquished was neither an unreasonable assumption nor an unreasonable basis upon

12 which Mr. Pash could have concluded that searching Child was warranted. Rather,

13 this seems precisely the type of “common-sense conclusio[n] about human behavior

14 upon which practical people—including government officials—are entitled to rely.”

15 T.L.O, 469 U.S. at 346 (internal quotation marks and citation omitted). We have little

16 difficulty concluding that the search of Child was justified at its inception and hold

17 that the search satisfies the first prong of the standard articulated in T.L.O.

18        Child’s arguments that the search Mr. Pash carried out failed to satisfy the

19 second prong of the T.L.O. standard are equally unpersuasive as they are, effectively,

20 identical to Child’s arguments regarding why the search failed the first prong. Child

                                              10
 1 contends that having turned over his cigarettes and lighter, Mr. Pash did not possess

 2 reasonable suspicion to initiate the search, and thus, Mr. Pash’s examination of

 3 Child’s sock had no connection to the initial reason for the search as no such reason

 4 existed. We reject this argument for the reasons we rejected Child’s previous

 5 arguments.

 6        Furthermore, the facts and circumstances demonstrate that the scope of the

 7 search was reasonably related to Mr. Pash’s objective of determining whether Child

 8 possessed tobacco products and was not excessively intrusive in light of the age and

 9 sex of Child. T.L.O., 469 U.S. at 342. Requiring Child to remove his shoes and raise

10 his pant legs was minimally intrusive at best. The evidence establishing the manner

11 and limited scope of the search supports Mr. Pash and Child’s testimony to this effect.

12 Thus, the search of Child’s socks that resulted in the seizure of the marijuana did not

13 violate the Fourth Amendment’s reasonableness requirement for a search of a student

14 at school.

15        Child argues that, once the cigarettes and lighter had been turned over, Mr.

16 Pash’s “suspicions he had from the tip the teacher gave him had been dispelled, and

17 he was required to let [Child] go.” This argument is without merit. The record

18 demonstrates that Mr. Pash had a reasonable suspicion that Child was in possession

19 of tobacco products, and his search of Child proceeded under that suspicion. The

20 surrender of the cigarettes and lighter did not cause Mr. Pash’s suspicion to dissipate

                                             11
 1 but instead provided additional justification to search elsewhere based on the

 2 reasonable suspicion that Child was in possession of additional tobacco products.

 3 Child’s argument is precisely the type of overly narrow conceptualization of the term

 4 “reasonableness” the United States Supreme Court rejected in T.L.O. See T.L.O., 469

 5 U.S. at 343-346 (rejecting the New Jersey Supreme Court’s “crabbed notion of

 6 reasonableness” upon which the New Jersey court struck down the search of a

 7 student’s purse and instructing that “reasonable suspicion is not a requirement of

 8 absolute certainty:    sufficient probability, not certainty, is the touchstone of

 9 reasonableness under the Fourth Amendment” (internal quotation marks and citation

10 omitted)). Because the search here was justified at its inception and its scope was

11 reasonable under the circumstances, the district court did not err by denying Child’s

12 motion to suppress evidence of the marijuana.

13 CONCLUSION

14        For the foregoing reasons, we affirm.

15        IT IS SO ORDERED.


16                                                     ___________________________
17                                                     LINDA M. VANZI, Judge


18 WE CONCUR:




                                            12
1 ______________________________________
2 CYNTHIA A. FRY, Chief Judge



3 ______________________________________
4 RODERICK T. KENNEDY, Judge




                                  13
