1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number:______________

3 Filing Date: June 22, 2015

4 NO. 33,997

5 STATE OF NEW MEXICO,

6 Plaintiff-Respondent,

7 v.

8 ANTONIO T., a child,

9 Defendant-Petitioner,

10 Consolidated with:

11 NO. 33,999

12 STATE OF NEW MEXICO,

13 Plaintiff-Petitioner,

14 v.

15 ANTONIO T., a child,

16 Defendant-Respondent.

17 ORIGINAL PROCEEDINGS ON CERTIORARI

18 Sandra A. Price, District Judge
1 Jorge A. Alvarado, Chief Public Defender

2 J.K. Theodosia Johnson, Assistant Appellate Defender

3 Santa Fe, NM

4 for Petitioner and Respondent Antonio T.

5 Gary K. King, Attorney General

6 Joel Jacobsen, Assistant Attorney General

7 Santa Fe, NM

8 for Respondent and Petitioner State of New Mexico
1 OPINION

2 CHÁVEZ, Justice.

3 {1} Having granted the State’s motion for rehearing in this case, we withdraw the

4 opinion filed October 23, 2014, and substitute the following in its place.

5 {2} Antonio, a seventeen-year-old high school student, was taken to Assistant

6 Principal Vanessa Sarna’s (Principal Sarna) office because he wassuspected of being

7 under the influence of alcohol. Possession of alcohol by a minor is a delinquent act

8 under NMSA 1978, Section 32A-2-3(A)(2) (2009) of the Delinquency Act, NMSA

9 1978, §§ 32A-2-1 to -33 (1993, as amended through 2009). Principal Sarna

10 questioned Antonio about his possession of alcohol in the presence of Deputy Sheriff

11 Emerson Charley, Jr. (Deputy Charley), whom she had asked to be present, and

12 requested that he bring a breath alcohol test to be administered to Antonio. Antonio

13 admitted that he had brought alcohol to school, where he consumed it. At Principal

14 Sarna’s request, Deputy Charley administered the breath test to Antonio, which tested

15 positive for alcohol. After administering the test to Antonio, DeputyCharley advised

16 Antonio of his right to remain silent, and Antonio declined to answer Deputy

17 Charley’s questions about his possession of alcohol.

18 {3} Antonio was charged with the delinquent act of possession of alcohol by a

19 minor. He filed a motion to suppress the statements he made to Principal Sarna
2

1 because his statements were elicited without a knowing, intelligent, and voluntary

2 waiver of his right to remain silent, citing Section 32A-2-14(D). The district court

3 denied his motion, which was affirmed by the Court of Appeals. State v. Antonio T.,

4 2013-NMCA-035, ¶ 26, 298 P.3d 484. We reverse both the district court and the

5 Court of Appeals. Although a school official may insist that a child answer questions

6 for purposes of school disciplinary proceedings, any statements elicited by the official

7 in the presence of a law enforcement officer may not be used against the child in a

8 delinquency proceeding unless the child made a knowing, intelligent, and voluntary

9 waiver of his or her statutory right to remain silent. Section 32A-2-14(C), (D).

10 Because the State failed to prove that Antonio effectively waived this statutory right,

11 his statements were inadmissible in the delinquency proceeding.

12 I. BACKGROUND

13 {4} Two teachers at Kirtland Central High School (KCHS) escorted Antonio to

14 Principal Sarna’s office because they suspected he was under the influence of alcohol.

15 Principal Sarna called the student resource officer on duty, Deputy Charley, to

16 administer a portable breath test to Antonio. Deputy Charley is a certified law

17 enforcement officer with the San Juan County Sheriff’s Office who spent over eleven

18 years on the police force before being assigned to KCHS as a student resource officer.
3

1 Deputy Charley wears a full uniform, including his badge and duty belt with a

2 holstered gun, to work in the school. He was wearing his uniform and his sidearm

3 when he entered Principal Sarna’s office.

4 {5} Deputy Charley stood about five feet away from Antonio, preparing the breath

5 test, while Principal Sarna questioned Antonio about drinking alcohol at school.

6 Deputy Charley’s normal procedure was to question a student suspected of using

7 alcohol prior to administering a breath alcohol test. However, in this instance,

8 because Principal Sarna was asking questions that were identical to the ones that

9 Deputy Charley would have asked, he merely listened attentively to Principal Sarna’s

10 questioning “in case something [did] come up . . . further on in the investigation that

11 [he] might have to look back onto.” Principal Sarna asked Antonio if he had been

12 drinking, what he had to drink, how much he had consumed, and if anyone else was

13 drinking with him. Principal Sarna testified that she told Antonio that he would

14 receive a lesser term of suspension if he told her the truth. These kinds of questions

15 and bargains were routine for Principal Sarna because her job is to enforce discipline

16 at KCHS, where she often deals with student disciplinary cases “just one right after

17 another.” In response to Principal Sarna’s questions, Antonio admitted that he had

18 consumed two shots of alcohol, he had brought the alcohol to school in a soda or
14 Principal Sarna and Deputy Charley were the only two witnesses to testify in 1

15 this case. Their stories differed as to when the knife was discovered and whether or

16 not Deputy Charley was present when Antonio was questioned by Principal Sarna.

17 Principal Sarna testified that she could not be sure of the sequence of events, and

18 Deputy Charley’s testimony and his police report reflect that he was present during

19 Principal Sarna’s questioning and her search of Antonio’s backpack. The district

20 court found that Deputy Charley was present. “[W]hen there is a conflict in the

21 testimony, we defer to the trier of fact.” Buckingham v. Ryan, 1998-NMCA-012, ¶

22 10, 124 N.M. 498, 953 P.2d 33.

4

1 Gatorade bottle, and he had disposed of the bottle in a bathroom trash can east of the

2 school library.

3 {6} After Antonio confessed to consuming alcohol, Deputy Charley advised

4 Antonio that he would have to blow into the portable breath test machine, which

5 Antonio did; Antonio tested positive for alcohol, which corroborated his confession.

6 No parent or guardian was present, and Deputy Charley did not provide Antonio with

7 any Miranda warnings prior to administering the breath test because at that time he

8 “was going by what the school was requesting.” While Deputy Charley was

9 administering the breath test, Principal Sarna searched Antonio’s backpack and

10 located a folding pocketknife.1

11 {7} Principal Sarna then asked Deputy Charley to search for the plastic bottle that

12 Antonio claimed he threw away. Deputy Charley searched three trash cans in the

13 vicinity of the bathroom near the library, but he could not find the bottle. After the
5

1 search for evidence turned up nothing, Deputy Charley returned to Principal Sarna’s

2 office and advised Antonio of his full constitutional rights as announced in Miranda

3 v. Arizona, 384 U.S. 436, 478-79 (1966). Antonio answered Deputy Charley’s

4 questions about the knife, but he refused to answer Deputy Charley’s questions

5 regarding alcohol consumption. The statements Antonio made during Principal

6 Sarna’s questioning were documented in Deputy Charley’s police report under the

7 “investigation” heading. Deputy Charley confiscated the pocketknife that Principal

8 Sarna found in Antonio’s backpack. The State later charged Antonio only with

9 possession of alcoholic beverages by a minor.

10 {8} Antonio filed a motion to suppress his statement or confession pursuant to

11 Section 32A-2-14(C) through (E), contending that “the State cannot prove that the

12 statement or confession offered in evidence was elicited after a knowing, intelligent

13 and voluntary waiver of the Child’s rights and must be suppressed.” Antonio

14 specifically cited Section 32A-2-14(D), which “requires that the state ‘shall prove the

15 statement or confession offered in evidence was elicited only after a knowing,

16 intelligent and voluntary waiver of the child’s constitutional rights was obtained.’ ”

17 Antonio requested the district court find that he “did not knowingly, intelligently and

18 voluntarily waive constitutional and statutory rights and suppress any statements or
6

1 confession.”

2 {9} An evidentiary hearing was held on Antonio’s motion to suppress on

3 September 1, 2010. After hearing testimony from Principal Sarna and Deputy

4 Charley, the district court denied the motion. Antonio entered into a conditional plea

5 and disposition agreement, reserving his right to appeal the denial of his motion to

6 suppress. He appealed to the New Mexico Court of Appeals, which affirmed the

7 district court’s ruling. Antonio T., 2013-NMCA-035, ¶ 26.

8 {10} The Court of Appeals analyzed the suppression as a constitutional issue,

9 discussing the constitutional rights of children during custodial interrogation, id. ¶¶

10 8-10, and investigatory detentions, id. ¶¶ 12-16. It first concluded that Antonio had

11 been subject to an investigatory detention, not a custodial interrogation. Id. ¶¶ 11, 17.

12 The Court of Appeals noted that “Section 32A-2-14 has thus far only been applied in

13 cases where law enforcement has interrogated or detained a child, never in instances

14 of school discipline involving only a school administrator,” Antonio T.,

15 2013-NMCA-035, ¶ 18, and that “Section 32A-2-14 applies to investigations by or

16 on behalf of law enforcement officials,” Antonio T., 2013-NMCA-035, ¶ 20. The

17 Court of Appeals then determined that Principal Sarna was acting within the scope

18 of her duties as a school administrator and was not acting as an agent for law
7

1 enforcement, and accordingly concluded that she was not obligated to issue Miranda

2 warnings to Antonio. Id. ¶¶ 24, 26. The Court of Appeals did not address Antonio’s

3 statutory claim that his statement was inadmissible under the plain language of

4 Section 32A-2-14(D), which was the original basisfor Antonio’s motion to suppress.

5 Both Antonio and the State appealed to this Court.

6 {11} We granted certiorari on two questions raised in Antonio’s appeal: (1) did the

7 Court of Appeals err in affirming the lower court’s denial of Antonio’s suppression

8 motion, and (2) was the plea invalid because there was insufficient evidence? State

9 v. Antonio T., 2013-NMCERT-003 (No. 33,997, Mar. 1, 2013). We also granted

10 certiorari on one question raised in the State’s appeal: did the Court of Appeals err

11 in holding that Antonio was in investigatory detention? State v. Antonio T.,

12 2013-NMCERT-003 (No. 33,999, Mar. 1, 2013). We hold that Deputy Charley’s

13 mere presence during Principal Sarna’s questioning of Antonio subjected Antonio to

14 an investigatory detention that triggered the statutory protections provided by Section

15 32A-2-14(C) and (D). Pursuant to Section 32A-2-14(C), Deputy Charley was

16 required to advise Antonio that he had a right to remain silent, and that if Antonio

17 waived the right, anything he said could be used against him in criminal delinquency

18 proceedings. Because DeputyCharley failed to advise Antonio of this statutory right
8

1 before Principal Sarna questioned Antonio in his presence, Antonio’s incriminating

2 statements are inadmissible under Section 32A-2-14(D).

3 II. DISCUSSION

4 {12} This case requires us to analyze whether a statement made by a child over the

5 age of fifteen is admissible under Section 32A-2-14, when the statement was made

6 in response to questioning by a school principal in the presence of a law enforcement

7 officer. Children who commit an act that would be considered a crime if they were

8 over the age of eighteen are subject to the Delinquency Act and are granted certain

9 basic statutory rights under Section 32A-2-14. The admissibility of Antonio’s

10 statements is dependent on our interpretation of the Delinquency Act. Because

11 statutory interpretation is a question of law, we review it de novo. See State v. Jade

12 G., 2007-NMSC-010, ¶ 15, 141 N.M. 284, 154 P.3d 659.

13 A. Pursuant to Section 32A-2-14(D), Antonio’s statements were inadmissible

14 because he was questioned during an investigatory detention without

15 being first advised of the right to remain silent as required by Section 32A16 2-14(C)

17 {13} In State v. Javier M., 2001-NMSC-030, ¶¶ 32, 42, 131 N.M. 1, 33 P.3d 1, we

18 held that the Legislature intended Section 32A-2-14 to afford children greater

19 statutory protection than what is constitutionally mandated. We evaluated the

20 admissibility of a child’s statements made in response to police questioning by first
9

1 assessing the minimum constitutional guarantees available to the child under the

2 United States Supreme Court’s decision in Miranda. Javier M., 2001-NMSC-030,

3 ¶ 11 (“Only after assessing the minimum constitutional guarantees available to the

4 Child under Miranda can we adequately interpret Section 32A-2-14 and determine

5 what, if any, additional protections are available to the Child under the statute.”).

6 {14} We recognized that Miranda “imposed a prophylactic protection by requiring

7 that suspects be advised of their rights under the Fifth Amendment [of the United

8 States Constitution] prior to any questioning” during a custodial interrogation. Javier

9 M., 2001-NMSC-030, ¶ 14. “Custodial interrogation occurs when [a]n individual [is]

10 swept from familiar surroundings into police custody, surrounded by antagonistic

11 forces, and subjected to the techniques of persuasion . . . [so that the individual feels]

12 under compulsion to speak.” Id. ¶ 15 (alterations in original) (internal quotation

13 marks and citation omitted). When a suspect is subjected to a custodial interrogation,

14 that person “ ‘must be warned that he [or she] has a right to remain silent, that any

15 statement he [or she] does make may be used as evidence against him [or her], and

16 that he [or she] has a right to the presence of an attorney, either retained or

17 appointed.’ ” Id. (quoting Miranda, 384 U.S. at 444). In Javier M., we held that the

18 child was not subjected to a custodial interrogation because the “Child’s detention
10

1 was not overly ‘police dominated,’ ” the child was not swept away from familiar

2 surroundings, and the child was questioned in a public place in the presence of

3 several other suspects. See id. ¶¶ 21-23. Accordingly, in Javier M. we held that “the

4 officer was not required to ‘Mirandize’ the Child before questioning him.” Id. ¶ 23.

5 {15} Having concluded that the child was not entitled to the constitutional

6 protections guaranteed by Miranda, this Court turned to the Delinquency Act to

7 analyze whether it provided the child with any additional statutory protection. Javier

8 M., 2001-NMSC-030, ¶¶ 24-32. As a preliminary matter, we acknowledged that “it

9 is completely within the Legislature’s authority to provide greater statutory

10 protection than accorded under the federal Constitution.” Id. ¶ 24 (emphasis added).

11 In interpreting Section 32A-2-14, we focused on three issues: (1) whether the

12 Legislature intended to merely codify Miranda under the statute by requiring that

13 children be subjected to custodial interrogations before statutory protections are

14 triggered, (2) the circumstances under which statutory protections would be triggered

15 if the Legislature did not intend to codify Miranda, and (3) the nature of the statutory

16 protections afforded under the statute. Javier M., 2001-NMSC-030, ¶ 25.

17 {16} After looking at its plain language, this Court rejected the notion that Section

18 32A-2-14 was intended to codify the advice of constitutional rights announced in
11

1 Miranda. Javier M., 2001-NMSC-030, ¶ 29. “Instead of using Miranda triggering

2 terms such as ‘custody’ or ‘custodial interrogation,’ the Legislature used much

3 broader terms, such as, ‘alleged,’ ‘suspected,’ ‘interrogated,’ and ‘questioned.’ ”

4 Javier M., 2001-NMSC-030, ¶ 29 (quoting Section 32A-2-14(C)). Accordingly, we

5 held that Section 32A-2-14 did not require a child to be subject to a custodial

6 interrogation in order for the additional statutory protections to apply. Javier M.,

7 2001-NMSC-030, ¶ 32.

8 {17} After determining that a custodial interrogation was not required, we then

9 turned to the question of what circumstances would trigger the protections of Section

10 32A-2-14. In Javier M., we stated that “ ‘alleged’ ” pertained to the “time period after

11 which a formal petition alleging delinquency has been filed in the Children’s Court”

12 and defined “ ‘suspect’ ” as meaning “ ‘to imagine (one) to be guilty or culpable.’ ”

13 Id. ¶ 29 (quoting Webster’s Ninth New Collegiate Dictionary 1189 (1985) (second

14 alteration in original)). We reasoned that “an officer’s suspicion will almost always

15 cause the encounter with the child to be an investigatory detention,” Javier M., 2001-

16 NMSC-030, ¶ 35, and that “by including the term ‘suspected’ in Section 32A-2-14(C)

17 to describe when the statute’s protections are triggered, the Legislature intended to

18 draw the line at investigatory detentions.” Javier M., 2001-NMSC-030, ¶ 36. We
12

1 concluded that “when an officer approaches a child to ask the child questions because

2 the officer ‘suspects’ the child of delinquent behavior, the officer is performing an

3 investigatory detention.” Id. ¶ 37. “Given a child’s possible immaturity and

4 susceptibility to intimidation, a child who is subject to an investigatory detention may

5 feel pressures similar to those experienced by adults during custodial interrogation.”

6 Id. As a result, we held that “the protections of the statute are triggered in two

7 circumstances: (1) after formal charges have been filed against a child; and (2) when

8 a child is seized pursuant to an investigatory detention and not free to leave.” Id. ¶

9 38.

10 {18} Finally, in defining the scope of the protections afforded under the statute, we

11 held that the term “ ‘constitutional rights’ ” in Section 32A-2-14(C) does not refer to

12 the warnings enumerated in Miranda where the child is subject to an investigatory

13 detention and not a custodial interrogation. Javier M., 2001-NMSC-030, ¶ 41.

14 Instead, we held that “children who are subject to investigatory detentions [have a

15 statutory right] only to be warned of their right to remain silent and that anything they

16 say can be used against them.” Id. ¶ 41 (emphasis added).

17 {19} Under the reasoning in Javier M., if Antonio was subjected to an investigatory

18 detention, the basic statutory right at issue in this case is the right to remain silent.
13

1 Because children may not understand either their right to remain silent or that they

2 are entitled to assert this statutory right, the Legislature has detailed which procedural

3 safeguards must be satisfied before any statement made by a child is admitted as

4 evidence in a criminal delinquency proceeding. Under Section 32A-2-14(C), a child

5 who is suspected or alleged of having committed a delinquent act cannot be

6 interrogated or questioned during an investigatory detention unless the child is first

7 advised of his or her statutory right to remain silent and the child knowingly,

8 intelligently, and voluntarily waives his or her rights. When Section 32A-2-14(C) has

9 been violated, the legislative remedy is to preclude the admission of any statement or

10 confession elicited fromthe child in court proceedings. Section 32A-2-14(D); Javier

11 M., 2001-NMSC-030, ¶¶ 1, 27.

12 {20} To determine whether a child’s statement or confession may be introduced into

13 evidence, the State bears the burden of proving that the child knowingly, intelligently,

14 and voluntarily waived the child’s statutory right to remain silent. Section 32A-2-

15 14(D). In assessing the validity of an alleged waiver, Section 32A-2-14 requires the

16 court to consider (1) the age of the child, (2) whether the child’s statement was

17 elicited or volunteered, (3) whether the child was advised of his or her statutory right

18 to remain silent before the statement was elicited, and (4) the additional criteria listed
14

1 in Section 32A-2-14(E).

2 {21} If the child is less than thirteen years old, under no circumstances may his or

3 her statement be introduced against the child in court proceedings. Section 32A-2-

4 14(F) provides that “[n]otwithstanding any other provision to the contrary, no

5 confessions, statements or admissions may be introduced against a child under the age

6 of thirteen years on the allegations of the petition.” In Jade G., we held that Section

7 32A-2-14(F) erects an absolute bar to the admission of any statement made by a child

8 under the age of thirteen—even statements that the child spontaneously volunteers

9 to family members, friends, or others who are not in a position of authority. See

10 2007-NMSC-010, ¶ 16. For children who are thirteen or fourteen years old, the

11 Legislature has created a rebuttable presumption that their confessions, statements,

12 or admissions are inadmissible in court proceedings if such statements were made to

13 a person in a position of authority. Section 32A-2-14(F).

14 {22} If the child is fifteen years old or older, as in this case, his or her statement is

15 admissible if it was made spontaneously by the child without prompting—i.e., if it

16 was not elicited. Section 32A-2-14(D), (F). “[V]olunteered statements of any kind

17 are . . . not subject to the protections of Section 32A-2-14 since such statements are

18 generally not in response to any ‘questioning’ or ‘interrogation.’ ” Javier M., 2001-
15

1 NMSC-030, ¶ 40. However, if the statement or confession was elicited during an

2 investigatory detention, the State must prove that the child was advised of his or her

3 statutory right to remain silent and knowingly, intelligently, and voluntarily waived

4 this right. Id. ¶¶ 40, 44. The question before this Court is whether Antonio was

5 subjected to an investigatory detention triggering the protections of Section 32A-2-14

6 when Principal Sarna questioned him about delinquent behavior in the presence of

7 a law enforcement officer. Unlike the Court of Appeals, we answer this question in

8 the affirmative.

9 1. When a child suspected of delinquent behavior is questioned in the presence

10 of a law enforcement officer, that child is subjected to an investigatory

11 detention

12 {23} The Court of Appeals interpreted Section 32A-2-14(D) to preclude only

13 statements or confessions elicited by law enforcement officers or their agents.

14 Antonio T., 2013-NMCA-035, ¶ 20 (holding that all of the basic rights of children

15 enumerated in Section 32A-2-14 only apply “to investigations by or on behalf of law

16 enforcement officials”). The Court of Appeals noted that “Section 32A-2-14 has thus

17 far only been applied in cases where law enforcement has interrogated or detained a

18 child, never in instances of school discipline involving only a school administrator.”

19 Antonio T., 2013-NMCA-035, ¶ 18. Accordingly, the Court of Appeals concluded
16

1 that Section 32A-2-14 only applies when a law enforcement officer interrogates or

2 detains a child, or when the school official acts as an agent of law enforcement.

3 Antonio T., 2013-NMCA-035, ¶¶ 18-20. Because the Court of Appeals found that

4 Deputy Charley did not interrogate or detain Antonio, the Court focused solely on

5 whether Principal Sarna acted as an agent of law enforcement beyond the scope of her

6 duties as a school administrator. Id. ¶¶ 21-24. Concluding that Principal Sarna was

7 not acting as an agent to law enforcement, the Court of Appeals held that “although

8 this was an investigatory detention, Antonio had no right to Miranda warnings from

9 a school administrator for a school interrogation, despite the presence of a deputy.”

10 Antonio T., 2013-NMCA-035, ¶ 26.

11 {24} We begin our analysis by first acknowledging that Principal Sarna suspected

12 Antonio of being intoxicated while at school—a school disciplinary violation that

13 would also render him a delinquent child. This suspicion prompted Principal Sarna

14 to conduct an investigation into Antonio’s alcohol consumption. We agree with the

15 Court of Appeals that Principal Sarna’s suspicion alone did not trigger the protections

16 under Section 32A-2-14(C), because Principal Sarna is neither a law enforcement

17 officer nor was she acting as an agent of law enforcement. See Antonio T., 2013-

18 NMCA-035, ¶ 20. Questioning a child for school disciplinary matters is
17

1 distinguishable from questioning a child for suspected criminal wrongdoing. See In

2 re Julio L., 3 P.3d 383, 385 (Ariz. 2000) (en banc) (“[N]ot every violation of public

3 decorum or of school rules gives legal cause for criminal adjudication.”). Because

4 “maintaining security and order in . . . schools requires a certain degree of flexibility

5 in school disciplinary procedures,” we recognize “the value of preserving the

6 informality of the student-teacher relationship.” New Jersey v. T.L.O., 469 U.S. 325,

7 340 (1985) (emphasis added). Accordingly, Principal Sarna was entitled to act on her

8 suspicion and compel answers from Antonio for the purposes of school discipline.

9 See In re Doe, 1975-NMCA-108, ¶ 29, 88 N.M. 347, 540 P.2d 827 (stating that in10 school disciplinary matters, unlike criminal proceedings, do not require Miranda

11 warnings). Absent any agency relationship between school officials and law

12 enforcement authorities, interrogating Antonio alone in her office about school

13 disciplinary matters would not have constituted an investigatory detention. See State

14 v. Santiago, 2009-NMSC-045, ¶ 18, 147 N.M. 76, 217 P.3d 89 (providing the test to

15 determine whether someone acts as an agent of law enforcement).

16 {25} However, the character of Principal Sarna’s school disciplinary investigation

17 changed once she requested Deputy Charley to be present when she questioned

18 Antonio about his suspected delinquent behavior. While the State maintains that
18

1 Deputy Charley’s presence in the room was innocuous, Deputy Charley’s presence

2 in the room created a coercive and adversarial environment that does not normally

3 exist during interactions between school officials and students. See T.L.O., 469 U.S.

4 at 349-50 (Powell, J., concurring). Unlike school officials, whose primary duties

5 focus on “the education and training of young people[,] . . . [l]aw enforcement

6 officers function as adversaries of criminal suspects. These officers have the

7 responsibility to investigate criminal activity, to locate and arrest those who violate

8 our laws, and to facilitate the charging and bringing of such persons to trial.” See id.

9 (Powell, J., concurring).

10 {26} Deputy Charley’s mere presence during Principal Sarna’s questioning of

11 Antonio converted the school disciplinary interrogation into a criminal investigatory

12 detention, and it therefore triggered the protections provided by Section 32A-2-14(C).

13 Before encountering Antonio, Deputy Charley was already on notice that Antonio

14 was suspected of delinquent behavior. Principal Sarna testified that she involved

15 Deputy Charley in the school’s investigation so he would know that Antonio was

16 under the influence, and also to test Antonio’s breath for alcohol. As Principal Sarna

17 interrogated Antonio about his suspected delinquent behavior, Deputy Charley

18 noticed that Antonio’s speech wasslurred and slow. During Antonio’s interrogation,
19

1 Deputy Charley stood about five feet away from Antonio preparing a portable breath

2 alcohol test while wearing a full uniform, including his badge and duty belt with a

3 holstered gun. At a minimum, Antonio was not free to leave Principal Sarna’s office

4 until Deputy Charley administered the portable breath alcohol test to Antonio.

5 {27} Deputy Charley’s presence in the room not only created a coercive and

6 adversarial environment, it also granted him access to evidence necessary to

7 prosecute criminal delinquent behavior. Apparently anticipating that Antonio’s

8 responses would have bearing on a future criminal investigation and other

9 proceedings, Deputy Charley listened attentively to the interrogation. To this end, he

10 testified that it is important for him to listen to whether a child admits or denies

11 consuming alcohol before administering the portable alcohol test to confirm or deny

12 the child’s statements. Deputy Charley simply uses the portable alcohol test as a

13 pseudo lie detector test during his criminal investigation to corroborate any elicited

14 statements or confessions. This is important because Antonio’s incriminating

15 statements that he drank alcohol alone would support a school suspension, although

16 the confession alone would not support a criminal conviction under the statutory

17 corpus delicti doctrine. See § 32A-2-14(G).

18 {28} The statutory corpus delicti requirement provides that “[a]n extrajudicial
20

1 admission or confession made by the child out of court is insufficient to support a

2 finding that the child committed the delinquent acts alleged in the petition unless it

3 is corroborated by other evidence.” See id. As a result, the State could not have

4 prosecuted Antonio solely on his statement or confession. Id. Deputy Charley’s

5 presence in Principal Sarna’s office as she questioned Antonio granted the State

6 access to both Antonio’s incriminating statements and the results of the portable

7 breath alcohol test, which corroborated Antonio’s confession.

8 {29} We disagree with the State’s characterization of Deputy Charley’s involvement

9 in Principal Sarna’s questioning of Antonio. We acknowledge that Deputy Charley

10 did not escort Antonio to Principal Sarna’s office, ask Antonio any questions himself,

11 or tell Principal Sarna which questions to ask Antonio. Nonetheless, Deputy

12 Charley’s mere presence in Principal Sarna’s office as Principal Sarna questioned

13 Antonio subjected Antonio to an investigatory detention. Pursuant to Section 32A-2-

14 14(C), Deputy Charley was required to advise Antonio that he had a statutory right

15 to remain silent, and if Antonio waived that right, anything he said could be used

16 against him in criminal delinquency proceedings. Deputy Charley must have been

17 aware that Antonio’s statements would be inadmissible absent a valid waiver of his

18 right to remain silent, as was evidenced by the fact that Deputy Charley subsequently
21

1 advised Antonio of his right to remain silent prior to attempting to question him again

2 about his consumption of alcohol.

3 2. Antonio’s statements were inadmissible because he did not waive his right

4 to remain silent as required by Section 32A-2-14(D)

5 {30} Section 32A-2-14(D) provides that before any incriminating statement “may

6 be introduced at a trial or hearing when a child is alleged to be a delinquent child, the

7 state shall prove that the statement or confession offered in evidence was elicited only

8 after a knowing, intelligent and voluntary waiver of the child’s constitutional rights

9 was obtained.” A knowing, intelligent, and voluntary waiver cannot be obtained if

10 the child has not first been advised of his or her statutory right to remain silent.

11 Accordingly, Section 32A-2-14(D) provides the legal remedy for violations of

12 Section 32A-2-14(C).

13 {31} Antonio moved to suppress the incriminating statements he made to Principal

14 Sarna based on the plain language mandate of Section 32A-2-14(D) that for the

15 statements to be admissible against him in a delinquency proceeding, “the state shall

16 prove that the statement or confession offered in evidence was elicited only after a

17 knowing, intelligent and voluntary waiver of the child’s constitutional rights was

18 obtained.” Because the language of the statute is clear, it is proper to apply it as

19 written. State v. Jonathan M., 1990-NMSC-046, ¶ 4, 109 N.M. 789, 791 P.2d 64
22

1 (“When a statute contains language which is clear and unambiguous, we must give

2 effect to that language and refrain from further statutory interpretation.”). In this

3 case, the district court should have granted Antonio’s motion to suppress his

4 statements because Antonio’s statements were elicited by Principal Sarna before he

5 was warned and without Antonio having knowingly, intelligently, and voluntarily

6 waived his statutory right to remain silent. It is undisputed that Antonio refused to

7 repeat the statements after Deputy Charley advised him of his right to remain silent.

8 Antonio appeared to have understood that his answers to Principal Sarna’s questions

9 would affect his discipline under school rules, but once Deputy Charley questioned

10 him, he then potentially faced criminal charges. Because the State could not prove

11 that the statements were made after warnings and a valid waiver as required by

12 Section 32A-2-14(D), the statements were inadmissible. As a result, the State failed

13 to meet its burden of proof under Section 32A-2-14(D).

14 {32} We emphasize that our holding in this case should not be construed to require

15 school administrators to advise a child of his or her right to remain silent in order to

16 use incriminating statements elicited from the child against that child in school

17 disciplinary proceedings. We emphasized in State v. Nick R. that “[nothing] in this

18 opinion [is] intended to impair the existing authority of school authorities to
23

1 promulgate and enforce administrative security measures.” 2009-NMSC-050, ¶¶ 44-

2 48, 147 N.M. 182, 218 P.3d 868 (affirming school policies prohibiting pocketknives

3 on campus, but holding that a pocketknife was not a “deadly weapon” for purposes

4 of adjudication in Children’s Court (quoting with approval State v. Doe, 92 P.3d 521,

5 525 (Idaho 2004) (“[P]ublic school officials [have] an effective means of disciplining

6 unruly or disruptive pupils in an administrative fashion.” (alterations in original)

7 (internal quotation marks and citation omitted)))); State v. Tywayne H.,

8 1997-NMCA-015, ¶ 13, 123 N.M. 42, 933 P.2d 251 (“[T]here is a sharp distinction

9 between the purpose of a search by a school official and a search by a police officer.

10 The nature of a . . . search by a school authority is to maintain order and discipline in

11 the school. The nature of a search by a police officer is to obtain evidence for

12 criminal prosecutions.” (internal citation omitted)). Similarly, in this case, a plain

13 language reading of Section 32A-2-14(D) demonstrates that it is a bar to the

14 admissibility of children’s confessions in delinquency proceedings if the confession

15 was elicited in the presence of a law enforcement officer or a school official who was

16 acting as an agent of law enforcement; in no way does thissection prevent children’s

17 confessions from being used against them during school disciplinary proceedings.

18 III. CONCLUSION
24

1 {33} We hold that Section 32A-2-14(D) precluded the use of Antonio’s self2 incriminating statements against him in a delinquency proceeding. Accordingly, we

3 reverse both the district court and the Court of Appeals. We remand to the district

4 court, where Antonio shall be permitted to withdraw his plea if he so chooses.

5 {34} IT IS SO ORDERED.

6 ______________________________

7 EDWARD L. CHÁVEZ, Justice

8 WE CONCUR:

9 ___________________________________

10 BARBARA J. VIGIL, Chief Justice

11 ___________________________________

12 PETRA JIMENEZ MAES, Senior Justice

13 ___________________________________

14 RICHARD C. BOSSON, Justice

15 ___________________________________

16 CHARLES W. DANIELS, Justice