Court Limits Schools' Search of Students

By Amy Miller, Journal Staff Writer

Students can't be searched just because a school official has a hunch they have done something illegal, the state Court of Appeals has ruled.
The ruling upheld a district court decision that two Rio Grande High School campus security aides didn't have reasonable suspicion to search a student who was "acting a little nervous" when approached.
The student, identified only as Pablo R., was found in possession of a weapon and drug paraphernalia. The ruling grants the student's request to suppress evidence in his juvenile case.
Assistant Attorney General Arthur Pepin said his office was disappointed.
"We feel the safety concerns the school expressed are legitimate, and it (the ruling) makes it more difficult for the school to provide a safe learning environment," Pepin said.
The decision was filed in April, and the state Supreme Court declined to review it in June.
Assistant Appellate Defender Nancy Hewitt said the court case should not change how schools operate.
The U.S. Supreme Court has established that school officials must have a good reason to suspect that students have violated the law or a school rule before searching them.
That has been Albuquerque Public Schools' policy for several years, APS spokesman Rigo Chavez said.
However, he said APS police officers and campus security aides will be briefed on the decision and others that define reasonable suspicion during annual training sessions.
Peter Simonson, executive director of the American Civil Liberties Union of New Mexico, said the decision does "clarify the rights that students have against unwarranted, unjustifiable searches of their person by school administrators."
"We have such a problem in our public schools with misunderstandings about where students' constitutional rights begin and end," he said.

Reasonable suspicion
The court said school officials don't need a search warrant or even probable cause to search a student's belongings.
But students have a constitutional right to privacy, so "the search of a student must still be reasonable under the circumstances in order to withstand constitutional scrutiny," wrote state Appeals Court Judge Michael Vigil. Judges Cynthia Fry and Ira Robinson concurred.
The court said school officials must have reasonable suspicion based on specific facts, and there must be a connection between what they searched for and what they found.
What reasonable suspicion actually means on school grounds to school officials has been a gray area, legal experts agreed.
"Reasonable suspicion is a standard that inevitably will vary from case to case, depending on the circumstances school officials find themselves in at the time," said Chief Public Defender John Bigelow.
In this case, the student was walking down a Rio Grande High hallway on Dec. 15, 2003, without a pass. He said he had been late to class and been instructed by his teacher to go to the office for a late pass.
A campus security aide stopped him and thought "something was wrong" because he seemed nervous and fidgety.
The student was directed to the security office, where two aides frisked him and searched his jacket. They found a pipe containing what appeared to be marijuana residue and a pair of brass knuckles.
The campus security aide admitted that when he stopped the student, he did not suspect any criminal activity or smell marijuana. He became concerned the student "might have a weapon or anything else like marijuana," because the student appeared nervous.
The Appeals Court said that didn't meet the test to allow a search.
"This was nothing more than a hunch and insufficient as a matter of law to provide reasonable suspicion to conduct the search," Vigil wrote. "Reasonable suspicion must exist at the inception of the search; the State cannot rely on facts which arise as a result of the search, such as the discovery of the weapon and drug paraphernalia on Child."

Officer Involved In Fatal Shooting

By T.J. Wilham And Julie Medina, Journal Staff Writers

An off-duty Albuquerque police officer was involved in a fatal shooting that left his "stepfather," Kirk Carroll, dead in his doorway Tuesday night, police said.
Investigators suspect that Carroll, 48, was struggling with Officer Orlando Camacho for control of the officer's service-issued weapon when it discharged.
Carroll is being described to investigators as Camacho's "stepfather," said John Walsh, an Albuquerque police spokesman.
Walsh said investigators are trying to confirm the information but have yet to find official documents that verify the relationship.
According to tax records, the South Valley home, 1716 Desert Breeze SW, is owned by the two men.
Neighbors said Wednesday that Carroll and Camacho appeared to be father and son.
Camacho wasn't scheduled to work his normal shift and investigators are trying to determine why he was in uniform at the time of the shooting.
Within hours of the shooting, Camacho, a three-year member of the department, was placed on administrative leave and released from police custody. He did give a statement to investigators.
"This case is being investigated just like any other. We are making sure that this investigation is conducted with the utmost integrity," Police Chief Ray Schultz said. "This is not an officer-involved shooting. This is a shooting involving someone who is an officer."
Police said they would submit the investigation to the Bernalillo County District Attorney's Office, which will decide whether charges will be filed.
According to police, at 11:05 p.m., Camacho called on his radio that he needed an ambulance and a rescue unit sent to his home for an "emergency situation."
When rescue crews arrived, they found Carroll dead, lying in the doorway.
Investigators said Camacho had just pulled into the driveway in his squad car and within minutes got into an argument with Carroll over "life issues," Walsh said.
Walsh said the dispute had been brewing over a long time.
The argument eventually turned into a struggle for the gun, police said. Investigators don't know if Camacho drew the weapon.
Walsh said tests will be done to determine who was in control of the gun when it fired.
"It is so preliminary in the investigation right now," Walsh said.
Neighbor Christine Shugars said occasionally she could hear Carroll yelling at Camacho.
"He wasn't nice to his son," Shugars said.
She said when she asked Carroll to join the neighborhood association he was "rude" and told her he didn't care what happens in the neighborhood.
"He just flat wasn't the friendliest," she said.
However, Shugars' daughter, Trudy McKenzie, said Camacho is known around the area to be "pretty friendly."
She said when one neighbor came home and found her house had been broken into, Camacho checked out the home to make sure it was safe for her.
Another neighbor, Irene Ornelas, said the two men were frequently outside working on the yard or the home and appeared friendly.
"Whenever we passed by (Carroll) would smile or nod," she said.
None of the neighbors said they heard anything late Tuesday beside fireworks and a lightning storm.
About five hours before the incident, Joshua Thomas was arriving at a friend's home just a few homes away from where the shooting occurred.
As he passed the home, he saw Carroll standing outside, wearing beige pants and a white T-shirt.
"I waved to him," Thomas said. "He waved back."
Camacho was in uniform and driving off in his squad car, Thomas said.
"He didn't look disturbed," he said.

Gary E. Salazar of the Journal contributed to this report.