OPINION
{1} Child appeals the denial of his motion to suppress evidence obtained during a search of his backpack at school. Child entered into a conditional plea, and pled no contest to the unlawful carrying of a deadly weapon on school premises. For the reasons discussed in this opinion, we reverse and remand for a determination of whether the search was justified by the requisite individualized and particularized suspicion that Child may have been bringing tobacco products onto the campus.
BACKGROUND
{2} Before the start of school on the morning of October 16, 2008, a Roswell High School security officer observed Child, along with “an unusually large gathering of students,” across the street from the school in an area known as the “smoker’s corner.” The security officer saw students smoking but could not remember if he specifically saw Child smoking. When the school bell rang, the group of students from the smoker’s corner crossed the street and entered school property. As was the consistent practice of the school, at least one or two times per week during the school year, the school security officer detained all of the students, including Child, patted them down, and searched their backpacks for tobacco and tobacco products. During the search of Child, the security officer found a pipe and a knife in Child’s backpack, as well as a lighter, although he could not recall if the lighter was found on Child’s person or in his backpack. Child was the only student found with non-tobacco contraband that day.
{3} The school policy at Roswell High School prohibits smoking, tobacco products, lighters, and cigarettes on school property. As a result, the security officer — who is a school official, not a law enforcement officer — is authorized to conduct searches for items that violate the policy such as tobacco products and lighters. Searches are conducted on randomly selected days of all students entering school grounds from the smoker’s corner, especially on those days when a larger than usual gathering of students are observed at the corner. Students understand that they can be randomly searched. When a child has contraband it is seized, but not every child has contraband. In this case, the security officer suspected that Child might have tobacco or tobacco products based on his presence at the smoker’s corner where “everyone hangs out to smoke.”
{4} As a consequence of the items found in the search, the State petitioned for an adjudication of delinquency for unlawful carrying of a deadly weapon on school premises, contrary to NMSA 1978, Section 30-7-2.1 (1994), and possession of drag paraphernalia, contrary to NMSA 1978, Section 30-31-25.1 (2001). In the district court, Child moved to suppress the evidence seized as a result of his search. Child argued that the security officer lacked individualized or particularized suspicion that Child had committed a crime or violated a school policy. The district court denied Child’s motion, ruling in pertinent part that the security officer “did not have or need individualized suspicion that each child [entering the school from the smoker’s corner] was in possession of tobacco products or a lighter.” Instead, the district court reasoned that the search was reasonable and justified at its inception given Child’s presence before the commencement of school at the smoker’s corner.
{5} The parties entered into a plea and disposition agreement, under which Child pleaded no contest to unlawful carrying of a deadly weapon on school premises, and the State agreed to dismiss the possession of drug paraphernalia charge. Pursuant to the no-contest plea, the court entered a consent decree suspending the proceedings and placing Child on supervised probation for six months. This appeal timely followed.
PRESERVATION
{6} Before proceeding to the issue of the search, we first address the State’s argument that Child failed to reserve his right to appeal the denial of his motion to suppress. See generally Rule 5-304(A)(2) NMRA (allowing a defendant to enter a conditional guilty plea, reserving in writing the right to appeal an issue raised in a pretrial motion and adversely decided by the district court). The State contends that Child did not meet the “critical requirements” for a conditional plea because neither the plea agreement nor the consent decree “expressed an intention to preserve a particular pretrial issue for appeal.” State v. Hodge,
{7} Although the plea does not specifically “reserve a particular pretrial issue for appeal,” see id., given that the waiver provision was crossed out and that Child’s motion to suppress was premised on one central question — whether the search was justified absent particularized suspicion — it is obvious that Child intended to reserve the right to appeal this issue. Moreover, we note that Child’s attorney specifically referred to the crossed-out provision when electing to enter into the plea, and that the district court also stated that Child would retain his right to appeal should he so desire. We conclude that this is sufficient to reserve Child’s right to appeal. See id. (providing for a “substance-over-form” approach in considering whether an issue is reserved for appeal, rather than requiring “rigid adherence” to reservation requirements); see also State v. Padilla,
DISCUSSION
{8} A ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Garcia,
{9} As we have noted, our standard of review requires that we first assess whether the district court’s findings of fact are supported by substantial evidence. The parties do not dispute the factual underpinnings of this case, and we therefore turn to the second prong of our analysis, whether it was reasonable under the Fourth Amendment to the United States Constitution for the school security officer to conduct a search of Child and his backpack absent a particularized or individualized suspicion. We start with a review of federal precedent in this area and then turn to a discussion of the district court’s ruling. We will then address the development of this issue under New Mexico law.
{10} In New Jersey v. T.L.O.,
{11} A search is justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated, or is violating, either the law or rules of the school. T.L.O.,
{12} Since T.L.O., the United States Supreme Court has established that school searches do not always need to be supported by individualized suspicion. The Court has held that suspicionless searches can be justified in certain limited circumstances by “special needs, beyond the normal need for law enforcement.” Vernonia Sch. Dist. 47J v. Acton,
{13} We find it significant that each of the “special needs” cases decided by the United States Supreme Court in the school context is a very limited exception to the reasonable suspicion requirement that permits searches of public school students. In particular, these cases involve obtaining consent through a threatened withholding of a benefit when consent is not given. We do not believe — and the State does not argue — that the “special needs” doctrine has any application in this case. Therefore, it is appropriate to analyze the factual circumstances in this case under the “reasonable suspicion” standard set forth in T.L.O. and adopted by our courts. See
{14} New Mexico courts have long applied the two-prong standard articulated in T.L.O. to determine whether searches of students are justified. See Kennedy v. Dexter Consol. Sch.,
{15} In the present ease, the district court concluded that the search of Child’s backpack was a minimal intrusion and that it effectively fell within an exception to the requirement of individualized suspicion as contemplated by T.L.O. The district court ruled that individualized suspicion is required only when a student is subjected to an intrusive strip search and that a T.L.O. analysis does not otherwise require individualized suspicion for less intrusive school searches. In support of its decision, the district court relied on the holding in Kennedy I to find that individualized suspicion is necessary before school officials may conduct a lawful strip search of a student given its intrusive nature. While we acknowledge the footnote in T.L.O.,
{16} At the outset, we observe that Kennedy I does not hold that individualized suspicion is required only when school officials conduct a strip search, and for this reason, we conclude that the district court read the holding in that case too narrowly. In its analysis, the New Mexico Supreme Court in Kennedy I refers to two New Mexico school search cases that do not involve strip searches to support its holding that searches of students require individualized suspicion in order to pass constitutional scrutiny.
{17} In addition to the discussion of cases requiring individualized suspicion set forth in both Kennedy opinions, other decisions from this Court also suggest that individualized suspicion is required under the T.L.O. standard of reasonableness for school searches in circumstances comparable to the present ease. While these cases have not explicitly addressed, as did Kennedy I, whether individualized suspicion is required to justify searches of students and their belongings, the holdings generally presuppose that this requirement must be met. For example, in Josué T., we noted that, to be justified at its inception, a school search must be based on more than “an inchoate and unparticularized suspicion or hunch.”
{18} Finally, State v. Crystal B.,
{19} In summary, it appears that our cases have taken the position that a search is warranted only if the circumstances create an individualized suspicion that a particular rule has been violated and that the search will serve to produce evidence of that violation. Analyzing the factual circumstances of this case, we conclude that the search of a group of students gathering at the “smoker’s corner,” without reason to suspect that any particular student is in possession of contraband, is not constitutionally sound. We concede that in any sufficiently large group, there is a statistical probability that someone will have contraband in his or her possession. But, it is our view that the Fourth Amendment demands more than a generalized probability, and a student’s mere association with or presence among suspected wrongdoers without more does not provide a sufficient basis for a search by school officials. In this ease, the sweeping and indiscriminate search of only those students who happen to be seen at a particular location off campus where smokers often gather ignores the need to ascertain individualized suspicion and exceeds the bounds of reasonableness that T.L.O. and our case law require. We thus hold that, even assuming a lessened expectation of privacy, some articulable facts that focus suspicion on a specific student must be demonstrated before any school search can be carried out.
{20} In apparent anticipation of our holding that the search of Child and his backpack required individualized suspicion, the State nevertheless urges this Court to affirm the district court’s denial of the motion to suppress. The State contends that, although the district court ruled the security officer “did not have or need individualized suspicion that each child was in possession of tobacco products or a lighter,” affirmance is merited because such individualized suspicion to search Child and his backpack was nevertheless present. In support of its argument, the State acknowledges that Child’s mere presence at the smoker’s corner prior to stepping onto the school campus does not provide the requisite individualized suspicion. See generally State v. Jason L.,
{21} We recognize that a reasonable suspicion determination requires an assessment of “the totality of the circumstances and precludes ... [a] divide-and-conquer analysis” so that each individual factor or circumstance is not viewed in a vacuum. State v. Neal,
{22} In the present case, however, we are unwilling to engage in the analysis suggested by the State because of the way the case was argued and decided below. As noted above, the State steadfastly maintained below that individualized suspicion was not needed, and the district court agreed. As a result, the question of individualized suspicion was not fully developed before the district court, nor was Child given a full and fair opportunity to respond to the effect his prior misconduct might have on the individualized suspicion inquiry. See Meiboom v. Watson,
{23} We note that the district court expressly found that “Child had previously been searched during the 2008 school year and was found to have a pack of cigarettes.” While we agree that tobacco use and possession could supply the particularized suspicion necessary to support a search, the district court did not state whether the security officer in the present incident was the same security officer that had searched Child previously and found cigarettes, nor did the court make findings regarding whether the security officer recalled that Child had previously been found with tobacco products when he was searched the second time. Further, Child was not put on notice of the importance of or need to inquire into those matters. See generally Meiboom,
{24} Because factual matters remain to be considered and resolved in light of our holding that individualized suspicion was required to justify the search, we decline to resolve these matters in the first instance on appeal. Accordingly, we remand for consideration of whether the facts in this case support a conclusion that the school security officer had individualized and particularized suspicion to justify the search of Child and his backpack.
{25} Finally, Child argued below and on appeal that the search was illegal under both the Federal and State Constitutions. Because we conclude that the Federal Constitution affords Child relief, we need not address his claims under the New Mexico Constitution. See State v. Cardenas-Alvarez,
CONCLUSION
{26} Based on the foregoing discussion, we conclude that the school security officer needed individualized suspicion that Child violated the school policy prohibiting the possession of tobacco products on school grounds in order to justify the search of Child and his backpack. We reverse the district court’s ruling to the contrary and remand for further consideration.
{27} IT IS SO ORDERED.