In re Elvin G.

Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about August 3, 2006, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed the act of unlawful possession of a weapon by a person under 16, and placed him with the Office of Children and Family Services for a period of 12 months, affirmed, without costs. The court properly denied appellant’s suppression motion without granting a hearing since his allegations on their face “did not lay out a factual scenario which, if credited, would have warranted suppression” (People v Mendoza, 82 NY2d 415, 432 [1993]). Even under appellant’s version of the facts, in which he asserted that a dean at his school, who was responding to a call from his teacher that an apparently unknown student was using a device, possibly a cellular phone, to make disruptive sounds, “had the students stand up, and started checking their pockets for something that was making musical sounds [and that] . . . once it became clear that students in the classroom were subject to this search, [appellant] took the [hunting] knife out of his pocket,” he did not present a legal — 528 — basis upon which to challenge the school official’s conduct (see New Jersey v T. L. O., 469 US 325, 341-342 [1985] [“Under ordinary circumstances, a search of a student by a teacher or other school official will be ‘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 the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction”]; cf. Matter of Haseen N, 251 AD2d 505, 505-506 [1998] [the Halloween morning administrative “search” of students as they arrived at school, designed to prevent a recurrence of the egg-throwing melees that had occurred on the three previous Halloweens, which entailed a quick pat down of the students’ outer clothing by nonpolice school personnel, “was the least intrusive, most practical means of locating concealed eggs, and represented a reasonable balance between the competing interests of the students in privacy and the school administrators in maintaining order”]). With regard to the dissent’s criticism of the Family Court’s initial determination that there was no search because both appellant and the presentment agency agreed that appellant had the knife in his hand in open view of the dean, the court did not stop there, but went on to hold that “[e]ven if it could be argued that the dean conducted a ‘search’ of [appellant’s] person, the dean’s actions were reasonably related to restore [sic] order to the classroom and the ‘search’ was not excessively intrusive in light of [appellant’s] age and sex and the nature of the infraction. The dean’s actions were justified in their inception because the teacher and the dean were restoring order to the classroom.” As to the Family Court’s further determination that the dean’s request that the students empty their pockets was the least intrusive, most practical means of finding the offending cellular phone, the dissent states that it is mystified as to the basis for such conclusion and would remand for a hearing so as to require “testimonial proof from the school as to why a search of pockets was the least intrusive and most practical means of finding the ringing cell phone or how that search was a reasonable balance between the competing privacy interest of the students and the interest of school administrators in maintaining order.” Again, however, we fail to see any purpose for such a remand in this case since, as the Court of Appeals has reminded us, a determination of the reasonableness and lawfulness of any search presents a mixed question of fact and law (People v — 529 — Wheeler, 2 NY3d 370, 373 [2004]). Thus, since the dissent agrees that it is undisputed that the dean entered the classroom to investigate an apparent violation of school rules, the only issue remaining to be determined is the legal question presented by appellant’s motion which was premised on his assertion that the subsequent search was illegal because the dean had “no reasonable suspicion that [he] engaged in any illegal activity.” The dissent also claims that the Family Court failed to apply the correct legal standard to the facts of this case; however, contrary to appellant’s assertion that the dean had no reason to believe that he personally was engaged in any illegal activity, the Court of Appeals has found it “noteworthy that the Supreme Court in New Jersey v T. L. O. (supra) specifically disclaimed that its decision made some quantum of individualized suspicion an essential element of every school search (see id. at 342, n 8)” (Matter of Gregory M., 82 NY2d 588, 593 [1993]). Thus, although the dean may not have had reasonable suspicion that appellant was the offending student, such individualized suspicion in the context of an administrative search such as this was not required. The dean clearly had a reasonable basis to believe that some student in the classroom was violating school rules and there is no question that such breach was disrupting the class. Nevertheless, the dissent finds that “appellant correctly asserts that a search involving the emptying of pockets . . . could not be considered the least intrusive means because no showing was made that the presence of a cell phone in a classroom presented any kind of threat to the safety of the students or the school personnel.” That, however, is the wrong standard to be applied. “The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests” (New Jersey v T. L. O., 469 US at 353 [Blackmun, J., concurring] [emphasis added]). As the Family Court properly found, “the dean simply sought to restore order to a disrupted classroom, which is not a law enforcement interest. Therefore, the dean’s subsequent actions required neither probable cause nor reasonable suspicion to justify asking students to empty their pockets.” Accordingly, given the circumstances presented and balancing the relevant interests, it cannot be said, as a matter of law, that asking students to empty their pockets in order to restore order to the classroom and enable the classroom teacher to resume — 530 — the lesson was unreasonable or overly intrusive. Concur— Andrias, Marlow and Buckley, JJ.