State v. ELI L.

DONNELLY, Judge,

dissenting.

17. I respectfully dissent. This case represents another in a series of attempts by school authorities to deal with gang problems in the public schools. Eli L. (the Child) was adjudicated by the children’s court to have unlawfully possessed a deadly weapon on school premises, contrary to NMSA 1978, Section 30-7-2.1 (1994).

18. The record indicates that two Hobbs police officers responded to a call reporting a disturbance by gang members across the street from a building where a school dance at Highland Junior High School was being held. Officer Mark Herrera testified that when he and another officer arrived at the school the youths causing the disturbance ran away. One of the youths involved in the disturbance was apprehended by the officers. A pat-down search of that individual revealed that he was carrying a deadly weapon.

19. A brief time later, the officers observed the Child, involved here, in the school parking lot. Officer Herrera testified that the Child was signaling to gang members in the area and that he approached the Child in order to question him. The school principal who observed the events stated that when Officer Herrera walked up to the Child, the youth became “a little bit disrespectful” and said something “derogatory” to the officer. The principal also testified that

[t]hey asked [the Child] to go with them. He initially resisted. One of the officers ... took him by the arm and [the Child] jerked his arm around and resisted them and then both officers took him across the street to their car where they did a pat-down search of him.

Officer Herrera testified that he conducted a pat-down search of the Child for the safety of the police officers and for the safety of the students in the area. The search of the Child revealed a straight-blade knife hidden in the waistband of the Child’s clothing. The Child filed a motion to suppress the weapon seized from the search. Following a hearing, the children’s court denied the motion to suppress.

20. I would affirm the ruling of the children’s court. An appellate court, in reviewing the lower court’s ruling on a motion to suppress, examines the record to determine whether the law was correctly applied to the facts. In conducting this review, we view the evidence presented at the motion to suppress in the manner most favorable to the ruling below and engage in all reasonable inferences in support thereof. See State v. Wright, 119 N.M. 559, 562, 893 P.2d 455, 458 (Ct.App.1995).

21. This Court has held that, in order to conduct an investigatory stop and a pat-down search of an individual, the officer must possess a particularized suspicion, based on the totality of the circumstances justifying a reasonable suspicion, that the individual stopped is or has been engaged in wrongdoing. See State v. Watley, 109 N.M. 619, 624, 788 P.2d 375, 380 (Ct.App.1989). This Court has also held that while an individual’s membership in a gang is a factor which may properly be considered by law enforcement officers in determining whether a stop and frisk is proper, that factor, standing alone, is insufficient to justify such action. See State v. Jones, 114 N.M. 147, 150, 835 P.2d 863, 866 (Ct.App.1992).

22. Although I agree with the majority that certain of the evidence, if considered in isolation, would not justify a warrantless search of the Child, the evidence, when viewed in its totality, provided a factual basis for the officers to believe that the Child was signaling gang members involved in the school disturbance, and based on the Child’s ensuing conduct the children’s court could reasonably determine that the pat-down search of the Child was justified for safety reasons. See State v. Vargas, 120 N.M. 416, 418, 902 P.2d 571, 573 (Ct.App.) (whether search complies with constitutional requirements depends on objective assessment of police officer’s actions based on all the facts confronting the officer), cert. denied, 120 N.M. 213, 900 P.2d 962 (1995); State v. Porras-Fuerte, 119 N.M. 180, 184, 889 P.2d 215, 219 (Ct.App.1994) (whether search was justified is viewed from the totality of the circumstances); see also State v. Cobbs, 103 N.M. 623, 630, 711 P.2d 900, 907 (Ct.App.1985) (police officer need not await “ ‘glint of steel before he can act to protect his safety’”) (citation omitted).

23. Considering the fact that the stop and pat-down search occurred shortly after police arrived in response to a call reporting a public disturbance involving known gang members, at least one of whom was found to be armed with a weapon; the fact that the officers had a reasonable basis to suspect that the Child was assisting the gang members who had caused the disturbance to avoid being apprehended; that the Child was on school premises and other students were in the area; that when the officers attempted to talk to him, the Child became disrespectful and “resisted” them; and together with the fact that the officer who conducted the search testified that he conducted the search for his own safety and that of others in the area, I do not believe that reversal is appropriate here. As observed by this Court in State v. Tywayne H., 123 N.M. 42, 46, 933 P.2d 251, 255 (Ct.App.), cert. denied, 123 N.M. 83, 934 P.2d 277 (1997), the state has a legitimate and important concern in ridding the school grounds of weapons. Additionally, as recognized by the majority, this Court has previously held that law enforcement officers may in appropriate circumstances stop an individual in order to investigate possible criminal activity, even if there is no probable cause to make an arrest. See Cobbs, 103 N.M. at 626, 711 P.2d at 903. It is undisputed that the stop and pat-down occurred on school property within minutes after there had been a disturbance at the school necessitating a call for police assistance. Under these circumstances, I would defer to the children’s court’s determination of the underlying facts and affirm its ruling concerning the admissibility of the evidence.