[Amendment IV] [Security from Unwarrantable Search and Seizure].

Notes to Decisions

      Generally.

Defendant’s motion to suppress was properly denied as it was reasonable for the police to temporarily seize and detain defendant to determine his identity and connection to the property to be searched and to protect officers and others; the length of detention was reasonable as was a pat-down search, since defendant’s knife was plainly visible in his back-pocket. State v. Winton, 2010-NMCA-020, 148 N.M. 75, 229 P.3d 1247, 2009 N.M. App. LEXIS 294 (N.M. Ct. App. 2009), cert. denied, 147 N.M. 673, 227 P.3d 1055, 2010 N.M. LEXIS 160 (N.M. 2010).

N.M. Const. art II  § 10 does not afford greater protection for investigative detentions than the fourth amendment of the US constitution. State v. Jimmy R., 1997-NMCA-107, 124 N.M. 45, 946 P.2d 648, 1997 N.M. App. LEXIS 97 (N.M. Ct. App. 1997).

Due to an automobile’s mobility, the complex scheme of regulations governing motor vehicles, and the lesser expectations of privacy the public holds with regard to private cars, an officer may search an automobile without a warrant, but the requirement of probable cause remains inviolate. State v. Guebara, 1995-NMCA-031, 119 N.M. 662, 894 P.2d 1018, 1995 N.M. App. LEXIS 30 (N.M. Ct. App. 1995), cert. quashed, 121 N.M. 783, 918 P.2d 369, 1996 N.M. LEXIS 241 (N.M. 1996), cert. quashed, 121 N.M. 783, 918 P.2d 369, 1996 N.M. LEXIS 242 (N.M. 1996).

Defendant was properly convicted of possession with intent to distribute marijuana, and his Fourth Amendment rights under the United States Constitution and N.M. Const. art II  § 21 were not violated; although the fact that he surrounded his marijuana crop with six rows of corn might have provided some evidence of his expectation of privacy at ground level, it did not establish an expectation of privacy with respect to aerial surveillance. State v. Bigler, 1983-NMCA-114, 100 N.M. 515, 673 P.2d 140, 1983 N.M. App. LEXIS 773 (N.M. Ct. App. 1983).

Bail is allowed during the period before a governor’s extradition warrant has been served, however, there is no provision for bail after an arrest on a governor’s extradition warrant. State ex rel. Schiff v. Brennan, 1983-NMSC-042, 99 N.M. 641, 662 P.2d 642, 1983 N.M. LEXIS 2284 (N.M. 1983).

      Constitutionality.

District court's interpretation of the statute was not consistent with legislative intent and the deputy had reasonable suspicion to stop defendant for speeding, despite his mistaken belief that the speed limit was twenty-five rather than thirty miles per hour; defendant's motion to suppress was reversed and remanded. State v. Moseley, 2014-NMCA-033, 320 P.3d 517, 2013 N.M. App. LEXIS 137 (N.M. Ct. App. 2013), cert. denied, 322 P.3d 1063, 2014 N.M. LEXIS 71 (N.M. 2014).

Evidence seized through use of invalid search warrant was suppressed; good-faith exception to the exclusionary rule was incompatible with the guarantees of N.M. Const. art II  § 10, and thus, the exception was not recognized in New Mexico. State v. Gutierrez, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052, 1993 N.M. LEXIS 342 (N.M. 1993).

      Applicability.

Illegal arrest by itself did not raise any issue as to the power of the court to try a defendant or provide any relief from a conviction; defendant had committed the crime of obstructing an officer prior to the arrest in plain view of the arresting officer, and the arrest was therefore legal. City of Roswell v. Smith, 2006-NMCA-040, 139 N.M. 381, 133 P.3d 271, 2006 N.M. App. LEXIS 18 (N.M. Ct. App.), cert. denied, 139 N.M. 353, 134 P.3d 120, 2006 N.M. LEXIS 195 (N.M. 2006).

Although defendant’s door was ajar and although officers smelled marijuana burning, the trial court improperly denied defendant’s motion to suppress evidence seized when the officers failed to wait a reasonable time after they knocked and announced their presence where exigent circumstances did not exist to permit the officers to enter the premises without a warrant, thus a violation of N.M. Const. art II  § 10 and the Fourth Amendment occurred. State v. Halpern, 2001-NMCA-049, 130 N.M. 694, 30 P.3d 383, 2001 N.M. App. LEXIS 46 (N.M. Ct. App. 2001).

Defendant was entitled to suppression of a handgun found on his person pursuant to an investigatory stop by police officers, who testified that they observed defendant and a companion acting suspiciously as they were walking down the street, because the detention was a field inquiry made without reasonable suspicion and was therefore in violation of the Fourth Amendment. State v. Jason L., 2000-NMSC-018, 2000-NMSC-018, 129 N.M. 119, 2 P.3d 856, 2000 N.M. LEXIS 189 (N.M. 2000).

Application of the Fourth Amendment to the states is through the Fourteenth Amendment. State v. Dawson, 1999-NMCA-072, 127 N.M. 472, 983 P.2d 421, 1999 N.M. App. LEXIS 67 (N.M. Ct. App. 1999).

Search of motel room was unlawful where a police officer entered the room with passkey without first giving notice of authority and announcing his purpose, and where there had been no denial of entry or exigent circumstances justifying the use of the passkey to enter the room. State v. Rogers, 1993-NMCA-104, 116 N.M. 217, 861 P.2d 258, 1993 N.M. App. LEXIS 88 (N.M. Ct. App. 1993).

Entry by deception does not violate the Fourth Amendment; thus, defendant’s conviction as an accessory in cocaine trafficking was affirmed because the undercover officer’s entry into defendant’s house to buy a controlled substance, at defendant’s invitation, did not violate defendant’s Fourth Amendment rights by breaching his legitimate interest in privacy. State v. Allen, 1992-NMCA-060, 114 N.M. 146, 835 P.2d 862, 1992 N.M. App. LEXIS 54 (N.M. Ct. App.), cert. denied, 113 N.M. 815, 833 P.2d 1181, 1992 N.M. LEXIS 195 (N.M. 1992).

      Arrest on probable cause.

It was error to grant defendant's motion to suppress because the warrantless arrest of defendant did not violate defendant's rights under the United States Constitution; that, in turn, would make the subsequent search incident to that arrest lawful as well, at least under the Fourth Amendment. State v. Paananen, 2015-NMSC-031, 357 P.3d 958, 2015 N.M. LEXIS 280 (N.M. 2015).

      Authority of doctor.

      Authority of officer.

Where defendant was seated in a pickup truck that was legally parked on the side of a dead end street, a police van parked in front of the truck, blocking its exit, four officers, at least two of whom showed their badges, got out and approached the truck, and the officers saw drug-related contraband allegedly in plain view on the truck’s front seat and arrested defendant, the evidence seized from defendant’s truck was properly suppressed; because the officers did not have a reasonable suspicion, based on articulable facts, that defendant had committed or was committing a crime when they approached his truck, they could not lawfully use restraint or force to detain him, even if they intended only to question him. State v. Lopez, 1989-NMCA-030, 109 N.M. 169, 783 P.2d 479, 1989 N.M. App. LEXIS 87 (N.M. Ct. App.), cert. quashed, 109 N.M. 131, 782 P.2d 384, 1989 N.M. LEXIS 290 (N.M. 1989).

There was no unlawful detention, and evidence gathered during the detention was not unlawful, where a Bureau of Indian Affairs police officer, who had the authority to stop a non-Indian defendant driver for a traffic violation on a tribal reservation, requested that defendants wait until another officer arrived; the assistance of a state officer was necessary either to arrest defendant driver for a state violation or, if defendant had been arrested for violating the reservation ordinance, to receive defendant for further proceedings. State v. Ryder, 1981-NMCA-017, 98 N.M. 453, 649 P.2d 756, 1982 N.M. App. LEXIS 794 (N.M. Ct. App.), aff'd, 1982-NMSC-066, 98 N.M. 316, 648 P.2d 774, 1982 N.M. LEXIS 2851 (N.M. 1982).

      Checkpoint.

      Community caretaker.

In a prosecution for driving while intoxicated, the trial court properly characterized defendant’s contact with an officer on a rural road as a community caretaker encounter, rather than a seizure; thus the Fourth Amendment protections did not apply. State v. Walters, 1997-NMCA-013, 123 N.M. 88, 934 P.2d 282, 1996 N.M. App. LEXIS 107 (N.M. Ct. App. 1996), cert. denied, 123 N.M. 83, 934 P.2d 277, 1997 N.M. LEXIS 24 (N.M. 1997).

      Computers.

Search warrant which authorized the seizure of, inter alia, “computers,  . . . computer diskettes, CDs, DVDs, photographs, and magazines containing child pornography  . . . ” was sufficiently particularized to allow the search and seizure of the hard drive of defendant’s computer. Police were also authorized to search for those images in any location within the computer, not just those files associated with defendant’s user name.  State v. Hinahara, 2007-NMCA-116, 142 N.M. 475, 166 P.3d 1129, 2007 N.M. App. LEXIS 88 (N.M. Ct. App.), cert. denied, 142 N.M. 435, 166 P.3d 1089, 2007 N.M. LEXIS 528 (N.M. 2007).

Search of the hard drive of defendant’s computer did not exceed the scope of the search warrant, and therefore the district court erred by granting defendant’s motion to suppress, because the warrant authorized police to search computers and computer diskettes containing child pornography. The seizure of unlawful images from within defendant’s computer was within the scope of the warrant because it authorized the search of the computer for the illegal images. State v. Hinahara, 2007-NMCA-116, 142 N.M. 475, 166 P.3d 1129, 2007 N.M. App. LEXIS 88 (N.M. Ct. App.), cert. denied, 142 N.M. 435, 166 P.3d 1089, 2007 N.M. LEXIS 528 (N.M. 2007).

      Consent.

Mother’s alleged consent to a high school student’s seizure was ineffective where the student, at 16 years old, was old enough to decide for himself whether to withhold consent. Pacheco v. Hopmeier, 770 F. Supp. 2d 1174, 2011 U.S. Dist. LEXIS 25976 (D.N.M. 2011).

Landlords did not have common authority over defendant’s separate living area in their home, and thus officers’ warrantless entry into that area with their permission tainted the subsequent search, even though defendant consented to the search after the officers entered. State v. Monteleone, 2005-NMCA-129, 138 N.M. 544, 123 P.3d 777, 2005 N.M. App. LEXIS 132 (N.M. Ct. App. 2005), cert. denied, 141 N.M. 402, 156 P.3d 40, 2007 N.M. LEXIS 91 (N.M. 2007).

An officer’s inquiry about weapons did not taint defendant’s voluntary consent to search and the searches of her vehicle and bag. Even if the officer did not have reasonable suspicion to inquire about weapons; the consent was voluntary and was not an exploitation of the prior illegality. State v. Lowe, 2004-NMCA-054, 135 N.M. 520, 90 P.3d 539, 2004 N.M. App. LEXIS 22 (N.M. Ct. App.), cert. quashed, 103 P.3d 1098, 2004 N.M. LEXIS 582 (N.M. 2004).

District court had substantial evidence to conclude that defendant’s consent to search was not derived by duress or coercion, and did not exceed defendant’s consent; defendant approached and advised the officers that he wished to be searched so that he could leave the premises, and did not express any restriction to the search or protest the search of his pockets or his wallet. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, 2003 N.M. App. LEXIS 107 (N.M. Ct. App.), cert. denied, 135 N.M. 51, 84 P.3d 668, 2003 N.M. LEXIS 305 (N.M. 2003).

Defendant’s apparent consent to the search of her car during a routine traffic stop was the fruit of the police officer’s illegal questioning of defendant and her passenger; the State did not show how information about defendant’s itinerary was relevant to her failure to properly display the temporary permit or her inability to produce proof of insurance, and there was no attenuation between the officer’s improper questioning of defendant and her passenger. State v. Duran, 2003-NMCA-112, 134 N.M. 367, 76 P.3d 1124, 2003 N.M. App. LEXIS 69 (N.M. Ct. App. 2003), rev'd, 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836, 2005 N.M. LEXIS 443 (N.M. 2005).

There is no constitutional right to refuse a chemical test, and a defendant’s right to refuse a forced chemical test exists only if the forced test is unreasonable under the Fourth Amendment to the United States Constitution. State v. Kanikaynar, 1997-NMCA-036, 123 N.M. 283, 939 P.2d 1091, 1997 N.M. App. LEXIS 26 (N.M. Ct. App. 1997).

Defendant had standing to assert an invasion of her reasonable expectation of privacy in the bedroom of a trailer whether or not she was an overnight guest where the owner of the trailer had given his consent for defendant and her boyfriend to occupy the bedroom and where the door to the bedroom was closed when the police entered the trailer. State v. Wright, 1995-NMCA-016, 119 N.M. 559, 893 P.2d 455, 1995 N.M. App. LEXIS 11 (N.M. Ct. App.), cert. denied, 119 N.M. 389, 890 P.2d 1321, 1995 N.M. LEXIS 122 (N.M. 1995).

When defendant’s spouse found incriminating evidence and voluntarily delivered it to police and consented to an examination of the evidence, neither Fourth Amendment nor nor N.M. Const. art II  § 10 prohibited admission of the evidence at trial. State v. Cline, 1998-NMCA-154, 126 N.M. 77, 966 P.2d 785, 1998 N.M. App. LEXIS 128 (N.M. Ct. App. 1998), cert. denied, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 362 (N.M. 1998), cert. denied, 526 U.S. 1041, 119 S. Ct. 1338, 143 L. Ed. 2d 502, 1999 U.S. LEXIS 2257 (U.S. 1999).

           —Authority to consent.

Regional supervisor of black bear study had authority to consent to search of common areas in bunkhouse used as base of operations for study, including the crawlspace under the bunkhouse. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, 2006 N.M. App. LEXIS 15 (N.M. Ct. App.), cert. denied, 139 N.M. 353, 134 P.3d 120, 2006 N.M. LEXIS 183 (N.M. 2006), cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172, 2006 U.S. LEXIS 5533 (U.S. 2006).

In trial for multiple sexual offenses, victim had authority to authorize search of defendant’s room in trailer/bunkhouse owned by their employer, and used by both of them while conducting studies on black bears, where victim had unrestricted access to the room, her job required frequent access to the room, and she stored some of her personal and work belongings in the room; victim also had authority to authorize viewing of videotapes found on the floor of the room, where both used the video camera in their bear research, she sometimes entered defendant’s room to get the camera and tapes, and where defendant had given victim explicit authority to enter his room to get videotapes to watch. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, 2006 N.M. App. LEXIS 15 (N.M. Ct. App.), cert. denied, 139 N.M. 353, 134 P.3d 120, 2006 N.M. LEXIS 183 (N.M. 2006), cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172, 2006 U.S. LEXIS 5533 (U.S. 2006).

      Consent to search.

Defendant’s consent to a pat down search was tainted because an officer immediately questioned defendant about weapons and drugs after the officer told defendant that he was free to go, there were no intervening circumstances, and the officer did not request permission to ask defendant a few more questions. State v. Figueroa, 2010-NMCA-048, 148 N.M. 811, 242 P.3d 378, 2010 N.M. App. LEXIS 63 (N.M. Ct. App. 2010).

In a second degree murder case, the factual finding that the police unconstitutionally searched defendant’s home was not the only one rationally supported by the record; on the contrary, the facts in the record indicated that defendant called the police reporting his estranged wife’s alleged suicide and that he might have consented to their presence in his home. Because a finding that the police illegally searched defendant’s home was not the only one rationally supported by the record, there was no plain error. State v. Torres, 2005-NMCA-070, 137 N.M. 607, 113 P.3d 877, 2005 N.M. App. LEXIS 56 (N.M. Ct. App.), cert. denied, 113 P.3d 345, 2005 N.M. LEXIS 249 (N.M. 2005).

      Custodial interrogation.

Pursuant to a routine search with a drug-sniffing dog, border patrol agents found marijuana in duffel bag in the cargo compartment of a bus. After determining bag was linked to defendant’s seat number, agent requested that he exit the bus for questioning, during which they requested that defendant empty his pockets and remove his shoes, and then arrested defendant when a ticket stub confirming his ownership of the bag was found in his shoe. Based on the totality of the circumstances, defendant was not in custody prior to the arrest so as to invoke his Miranda rights, and his consent to officer’s request was voluntary. State v. Munoz, 2008-NMCA-090, 144 N.M. 350, 187 P.3d 696, 2008 N.M. App. LEXIS 66 (N.M. Ct. App. 2008), cert. quashed, 147 N.M. 423, 224 P.3d 650, 2009 N.M. LEXIS 909 (N.M. 2009).

      DNA samples.

Provision of the Albuquerque Sex Offender Registration and Notification Act allowing police to collect DNA samples and dental imprints from registrants was an unreasonable governmental invasion into the individual’s personal security or privacy, thus violating the Fourth Amendment. ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215, 2006 N.M. App. LEXIS 53 (N.M. Ct. App. 2006).

      DUI.

      Elements.

The applicable Fourth Amendment test for a warrantless administrative search of commercial premises in the context of a pervasively regulated business will be deemed to be reasonable only so long as three criteria are met: there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made; the warrantless inspections must be necessary to further the regulatory scheme; and the statute’s inspection program, in terms of the certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978, 1993 N.M. App. LEXIS 99 (N.M. Ct. App.), cert. denied, 116 N.M. 364, 862 P.2d 1223, 1993 N.M. LEXIS 336 (N.M. 1993).

      Emergency assistance doctrine.

State failed to establish that there were reasonable grounds for the deputies to believe that an emergency necessitated their immediate entry into defendant's home, as they had no specific information that defendant was seriously injured and in need of immediate aid, there were no signs of injury in the cab of the truck, none of the witnesses who saw the three men flee from the truck told deputies that they appeared injured, and there was no signed of injury on the property.  State v. Cordova, 2016-NMCA-019, 366 P.3d 270, 2015 N.M. App. LEXIS 65 (N.M. Ct. App. 2015).

In narrowly limited circumstances police may enter a home without a warrant or consent during a criminal investigation under the emergency assistance doctrine. To the extent that it may be read to preclude an emergency entry during a criminal investigation, the supreme court of New Mexico overruled State v. Nemeth, 130 N.M. 261. State v. Ryon, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032, 2005 N.M. LEXIS 117 (N.M. 2005), abrogated in part as stated in State v. Crocco, 2013-NMCA-033, 296 P.3d 1224, 2012 N.M. App. LEXIS 121 (N.M. Ct. App. 2012).

Where after a stabbing, police proceeded to defendant’s home and they were told defendant might have a head injury, the emergency assistance doctrine did not support their entry without a warrant because the officers in substantial part were engaged in crime-solving activities rather than responding to an emergency. Therefore the evidence seized with the search warrant obtained as a result of their entry was properly suppressed. State v. Ryon, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032, 2005 N.M. LEXIS 117 (N.M. 2005), abrogated in part as stated in State v. Crocco, 2013-NMCA-033, 296 P.3d 1224, 2012 N.M. App. LEXIS 121 (N.M. Ct. App. 2012).

      Evidence.

Although defendant argued that the denial of his motion to suppress evidence seized during a protective frisk violated his constitutional rights, the retrieval of a vial from defendant’s pocket did not violate his constitutional rights when only the vial, and no drugs, were in plain view. The officer recognized the vial as commonly containing drugs and properly continued his investigation, asking defendant to identify the contents, and when defendant did so, he incriminated himself. State v. Ochoa, 2004-NMSC-023, 135 N.M. 781, 93 P.3d 1286, 2004 N.M. LEXIS 333 (N.M. 2004).

           —Generally.

Police were justified in making a warrantless protective search of defendant’s home when they arrested him, because they had proof of the commission of a violent felony and could not know that he was alone in the house, and the blood evidence they observed on the walls of the house was in plain view during this lawful search. State v. Lara, 1990-NMCA-075, 110 N.M. 507, 797 P.2d 296, 1990 N.M. App. LEXIS 77 (N.M. Ct. App. 1990), cert. denied, 110 N.M. 330, 795 P.2d 1022, 1990 N.M. LEXIS 247 (N.M. 1990), abrogated as stated in State v. Otuafi, No. 30332, 2011 N.M. App. Unpub. LEXIS 213 (N.M. Ct. App. May 27, 2011).

           —Admissible.

Where police officers had a search warrant that gave them the authority to search defendant’s residence and seize receipts, newspaper clippings that the officers found while looking for receipts were in plain view and were properly seized and entered into evidence against defendant in his murder trial. State v. Vargas, 1994-NMCA-041, 117 N.M. 534, 873 P.2d 280, 1994 N.M. App. LEXIS 40 (N.M. Ct. App.), cert. denied, 117 N.M. 524, 873 P.2d 270, 1994 N.M. LEXIS 167 (N.M. 1994).

Search of defendant’s briefcase and cardboard box during takeover of credit union by state and federal regulators was valid administrative search within exception to the warrant requirement where search was made pursuant to 58-11-1 NMSA 1978 et seq., because the government had a substantial interest in supervising and regulating the credit union to ensure that the accounts, assets, investments and securing the credit union’s documents and materials during the course of the imposition of the conservatorship, in order to prevent additional loss or destruction of credit union resources and records, was necessary to further a substantial government interest. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978, 1993 N.M. App. LEXIS 99 (N.M. Ct. App.), cert. denied, 116 N.M. 364, 862 P.2d 1223, 1993 N.M. LEXIS 336 (N.M. 1993).

In a prosecution for trafficking in a controlled substance by manufacturing and possession of drug paraphernalia, the trial court properly declined to suppress glassware, handguns, a briefcase, and its contents seized by an officer who entered defendant’s residence, which was believed to be a possible methamphetamine lab, following a fire at the residence and a determination that hazardous chemicals might be in the house where the presence of hazardous chemicals constituted exigent circumstances justifying the officer’s warrantless entry, where the glassware and handguns were in plain view, where potentially hazardous conditions constituted exigent circumstances justifying a warrantless search of the briefcase, and where the briefcase’s contents were in plain view following his valid intrusion into the briefcase. State v. Calloway, 1990-NMCA-110, 111 N.M. 47, 801 P.2d 117, 1990 N.M. App. LEXIS 118 (N.M. Ct. App. 1990).

There was no violation of the Fourth Amendment where police, investigating a report of shots, stood in a neighbor’s driveway and shined a flashlight into defendant’s widow, observing defendant with a gun. State v. Calvillo, 1990-NMCA-046, 110 N.M. 114, 792 P.2d 1157, 1990 N.M. App. LEXIS 35 (N.M. Ct. App. 1990).

Portion of a police officer’s tape recording made after a defendant withdrew his consent for the officer to be in his home was admissible on the charge of assault with intent to kill an officer because, even assuming that the officer remained in the home unlawfully, the evidence was not obtained by exploitation of that illegality and the officer did not violate the Fourth Amendment by electronically recording his conversation with another person. State v. Chamberlain, 1989-NMCA-082, 109 N.M. 173, 783 P.2d 483, 1989 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 109 N.M. 154, 782 P.2d 1351, 1989 N.M. LEXIS 332 (N.M. 1989).

Trial court properly refused to suppress evidence which led to defendant’s conviction for possession of marijuana because the officer found the marijuana in plain view when the defendant, already under arrest for possession of drug paraphernalia, gave the officer consent to re-enter his hotel room to obtain money for posting bail. State v. Pool, 1982-NMCA-139, 98 N.M. 704, 652 P.2d 254, 1982 N.M. App. LEXIS 936 (N.M. Ct. App. 1982).

Evidence was properly admitted from a warrantless, nonconsensual entry into a defendant’s home because the officers who entered the home could reasonably believe that the defendant had become aware of his kidnapping victim’s escape and would try to flee. State v. Chavez, 1982-NMCA-072, 98 N.M. 61, 644 P.2d 1050, 1982 N.M. App. LEXIS 854 (N.M. Ct. App.), cert. denied, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 2936 (N.M. 1982).

Pursuant to United States v. White, 401 U.S. 745, police agents that conceal their status as police can write down their conversations with defendants and testify about them without violating the Fourth Amendment; for constitutional purposes, no different result is required where instead of reporting and transcribing their conversations the agents either simultaneously record the conversations with electronic equipment on their persons or carry equipment that transmits the conversations either to recording equipment located elsewhere or to agents that monitor the transmission. State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, 1977 N.M. App. LEXIS 627 (N.M. Ct. App.), cert. denied, 90 N.M. 636, 567 P.2d 485, 1977 N.M. LEXIS 1170 (N.M. 1977).

Fact that the heroin that was seized from defendant was found in an area that was beyond a search warrant’s scope did not require suppressing that heroin in a trial in which defendant was convicted of violating former 54-11-20 1953 Comp. by trafficking in heroin; the seizure did not violate defendant’s rights under the Fourth Amendment and N.M. Const. art II  § 10 because he had no expectation of privacy as to the adjoining abandoned property on which it was found and because the plain view doctrine applied because a police officer spotted the can in which it was located from a vantage point where the search warrant authorized him to be. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, 1976 N.M. App. LEXIS 555 (N.M. Ct. App. 1976), cert. denied, 89 N.M. 206, 549 P.2d 284, 1976 N.M. LEXIS 965 (N.M. 1976), overruled,  State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183, 1981 N.M. LEXIS 2317 (N.M. 1981).

           —Inadmissible.

Trial court erred in denying a motion to suppress. The court of appeals of New Mexico held that the anonymous tip lacked sufficient indicia of reliability because it contained no predictive information allowing the officers to judge the informant’s knowledge or credibility and the investigatory stop, therefore, violated defendant’s Fourth Amendment rights. The subsequent pat-down search of defendant on a public corner was an intrusive form of seizure and the gun, as evidence seized during the illegal stop, had to be excluded. State v. Morales, 2005-NMCA-027, 137 N.M. 73, 107 P.3d 513, 2004 N.M. App. LEXIS 147 (N.M. Ct. App. 2004), cert. quashed, 138 N.M. 330, 119 P.3d 1267, 2005 N.M. LEXIS 439 (N.M. 2005).

Where police officers suspected defendant of being a gang member, yet had only generalized suspicions that a gang member, not specifically defendant, had committed a litany of crimes, the trial court should have suppressed evidence that was the tainted fruit of the illegal stop, which violated defendant’s right to privacy under the Fourth Amendment to the United States Constitution; an inference that arose from gang membership and presence in a gang activity area was insufficient alone to support reasonable suspicion. State v. Jones, 1992-NMCA-064, 114 N.M. 147, 835 P.2d 863, 1992 N.M. App. LEXIS 57 (N.M. Ct. App.), cert. denied, 114 N.M. 62, 834 P.2d 939, 1992 N.M. LEXIS 199 (N.M. 1992).

           —Insufficient.

           —Sufficient.

Probable cause justified a warrantless search leading to the discovery of amphetamines where a reliable informant had seen a “sale” by defendant of “dexedrine pills” from a suitcase at the truck stop and the informant identified the purchaser, and gave police detailed information concerning the description of defendant, the fact that he would be armed, the fact that a lady would be traveling with him and recitation of the make and color of the tractor and the color of the trailer. In re One 1967 Peterbilt Tractor, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199, 1973 N.M. LEXIS 1222 (N.M. 1973).

Officers had probable cause to arrest occupants of an apartment and to seize marijuana after receiving information from an informant acquainted with one officer; officers were able to observe, to inquire into, and to judge the credibility of the detailed information provided, and when officers approached the apartment, the occupants said “watch it, the cops are coming,” and began to run. State v. Deltenre, 77 N.M. 497, 424 P.2d 782, 1966 N.M. LEXIS 2735 (N.M.), cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136, 1967 U.S. LEXIS 2014 (U.S. 1967).

      Exclusionary rule.

      Exigent circumstances.

      Expectation of privacy.

Defendant lost his expectation of privacy when he voluntarily relinquished possession of the computer and external hard drives to his coworker and specifically asked him to destroy the child pornography stored on the hard drives; because defendant lost any privacy expectation he may have had in the computer and external drives, the officer’s seizure of them was reasonable and lawful under this provision and N.M. Const. art II  § 10. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, 2012 N.M. App. LEXIS 10 (N.M. Ct. App. 2012), rev'd, 2014-NMSC-012, 324 P.3d 1230, 2014 N.M. LEXIS 118 (N.M. 2014).

Defendant had standing to attack the seizure of the buy-money because he had an expectation of privacy in the money that society would accept as reasonable, pursuant to N.M. Const. art II  § 10, and this provision, and defendant did not abandon the buy-money that was ultimately found stashed in the hole in the closet; the plain-view exception to the warrant requirement did not apply, and the state failed to prove its claimed exigency and protective-sweep justifications for the search of the hole in the closet. State v. Sublet, 2011-NMCA-075, 150 N.M. 378, 258 P.3d 1170, 2011 N.M. App. LEXIS 69 (N.M. Ct. App. 2011).

Defendant had no reasonable expectation of privacy in a videotape labeled “home improvement” laying on the floor in his room in a trailer/bunkhouse when he knew that the entire bunkhouse would be searched for environmental hazards; defendant must have known that such a tape would be of interest to someone attempting to identify environmental hazards. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, 2006 N.M. App. LEXIS 15 (N.M. Ct. App.), cert. denied, 139 N.M. 353, 134 P.3d 120, 2006 N.M. LEXIS 183 (N.M. 2006), cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172, 2006 U.S. LEXIS 5533 (U.S. 2006).

Defendant had no expectation of privacy in a bedroom in a trailer/bunkhouse owned by his employer in which he routinely slept while conducting studies on black bears, where there was evidence that he knew others had used his room without his prior knowledge and when he was not present. Assuming, arguendo, that he did have an expectation of privacy, it was not a reasonable expectation, where the bedroom was located in a trailer that was the main base of operations for the bear study, and was frequently unlocked, with keys made available to a number of people. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, 2006 N.M. App. LEXIS 15 (N.M. Ct. App.), cert. denied, 139 N.M. 353, 134 P.3d 120, 2006 N.M. LEXIS 183 (N.M. 2006), cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172, 2006 U.S. LEXIS 5533 (U.S. 2006).

      Findings.

Defendant did not have a justifiable expectation of privacy with respect to marijuana plants protruding through holes in a greenhouse roof on his property and the helicopter surveillance methods used by the police were not unreasonable. State v. Rogers, 1983-NMCA-115, 100 N.M. 517, 673 P.2d 142, 1983 N.M. App. LEXIS 774 (N.M. Ct. App. 1983).

      Individualized suspicion.

Court relied in part on Fourth Amendment precedent in finding that under N.M. Const. art II  § 10, an officer’s knowledge that the registered owner of a vehicle had a revoked license provided reasonable suspicion to stop the vehicle, even though the officer made no effort to determine, prior to the stop, whether the driver was the registered owner. State v. Hicks, 2013-NMCA-056, 300 P.3d 1183, 2013 N.M. App. LEXIS 21 (N.M. Ct. App.), cert. denied, 301 P.3d 858, 2013 N.M. LEXIS 219 (N.M. 2013).

Driver’s pulling into parking lot prior to DWI checkpoint, along with apparent nervousness of backseat passenger, did not give rise to individualized suspicion that defendant front-seat passenger was involved in criminal activity, and thus results of subsequent search should have been suppressed. State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286, 2006 N.M. App. LEXIS 12 (N.M. Ct. App. 2006).

Evidence obtained as a result of warrantless search of passenger in vehicle should have been suppressed, because police officer’s prior discovery of drug paraphernalia on another occupant of vehicle, along with officer’s observation of open alcohol container in vehicle, but not near defendant, did not give rise to individualized suspicion that defendant was engaged in illegal activity. State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286, 2006 N.M. App. LEXIS 12 (N.M. Ct. App. 2006).

      Investigatory stop.

In a driving while intoxicated case, the appellate court concluded that under the totality of the circumstances of this case, and viewing the facts in the light most favorable to the State as the prevailing party, a police officer's investigatory stop of defendant's truck was supported by reasonable suspicion under a Fourth Amendment analysis. State v. Lope, 2015-NMCA-011, 343 P.3d 186, 2014 N.M. App. LEXIS 79 (N.M. Ct. App.), cert. denied, 339 P.3d 425, 2014 N.M. LEXIS 427 (N.M. 2014).

Encounter between defendant and an officer did not become consensual merely because defendant was told that he was free to leave because the officer immediately began questioning defendant, there was no break in time or location of questioning, there was no request for permission to continue with questioning, and nothing indicated that the seizure had changed to anything remotely consensual. State v. Figueroa, 2010-NMCA-048, 148 N.M. 811, 242 P.3d 378, 2010 N.M. App. LEXIS 63 (N.M. Ct. App. 2010).

Given that two reported incidents of domestic problems had occurred at a house in less than two hours, an officer was justified in making brief inquiries to find out what defendant was doing at the house, but the officer illegally expanded the scope of the initial investigatory stop when the officer told defendant that he was free to leave and then detained defendant for a weapons check where there was no reasonable suspicion for the officer’s question about weapons and the officer articulated no danger to the officers. State v. Figueroa, 2010-NMCA-048, 148 N.M. 811, 242 P.3d 378, 2010 N.M. App. LEXIS 63 (N.M. Ct. App. 2010).

The test for determining that a defendant is in Miranda custody is not one employed by using a Fourth Amendment analysis of investigatory detention versus de facto arrest. The test is whether the defendant’s freedom of movement is restrained by formal arrest or of the degree associated with a formal arrest. State v. Wilson, 2007-NMCA-111, 142 N.M. 737, 169 P.3d 1184, 2007 N.M. App. LEXIS 94 (N.M. Ct. App. 2007).

Defendant was in custody for purposes of a Miranda Analysis where a police officer had used force in order to fully handcuff him, which caused him to drop to his knees, and then placed him in the back seat of the officer’s vehicle. Under those circumstances, a reasonable person would have believed that he was restrained to the degree associated with a formal arrest. State v. Wilson, 2007-NMCA-111, 142 N.M. 737, 169 P.3d 1184, 2007 N.M. App. LEXIS 94 (N.M. Ct. App. 2007).

Defendant was seized when he obeyed the officer’s commands to stop and submitted to the officer, not earlier when the officer approached the group and ordered everyone not to move, and therefore the evidence he abandoned after he stopped was protected by the Fourth Amendment. At the time of the seizure, the officer had reasonable suspicion to conduct an investigatory stop of defendant because: (1) he was standing in a group of people with an individual known to have just completed a drug sale; (2) when the officers arrived defendant hurried away in the opposite direction; and (3) a detective testified that he was familiar with multiple-person drug sales; therefore, the appellate court properly held that defendant’s motion to suppress was properly denied. State v. Harbison, 2007-NMSC-016, 141 N.M. 392, 156 P.3d 30, 2007 N.M. LEXIS 142 (N.M. 2007).

Officer’s activities in asking defendant passenger, the owner of the vehicle, for identification, registration, and insurance documentation, and in pursuing a computer warrants check were constitutionally permissible and did not constitute valid grounds on which to suppress evidence because defendant was responsible for assuring that the vehicle was properly registered and insured, and was also responsible for giving permission to the driver to operate the vehicle. State v. Rubio, 2006-NMCA-067, 139 N.M. 612, 136 P.3d 1022, 2006 N.M. App. LEXIS 40 (N.M. Ct. App.), cert. denied, 140 N.M. 224, 141 P.3d 1278, 2006 N.M. LEXIS 277 (N.M. 2006).

      Issuance of a citation.

The issuance of a citation for resisting, evading, or obstructing an officer, even under threat of jail if not accepted, did not rise to the level of a Fourth Amendment seizure. Martinez v. Carr, 479 F.3d 1292, 2007 U.S. App. LEXIS 7074 (10th Cir. N.M. 2007).

      Knock and announce.

Where defendant had opened door, recognized approaching police officers, and attempted to close door, futility exception to knock and announce requirement applied. Requiring the officers to allow defendant to close the door so that they could then knock and announce their presence and authority would have been meaningless and may have given defendant the time necessary to ready a violent response to the officers’ entry. State v. Vargas, 2008-NMSC-019, 143 N.M. 692, 181 P.3d 684, 2008 N.M. LEXIS 222 (N.M. 2008).

Under the totality of the circumstances, law enforcement agents, who were serving a search warrant on defendant at his trailer, complied with the knock-and-announce rule after waiting 10 to 20 seconds before forcing entry because the trailer was small, defendant did not verbally respond to the agents’ shouts, and one agent heard defendant moving back and forth within the trailer but never toward the door. The agents’ 10 to 20 second wait after knocking and announcing was a reasonable length of time for them to discern that they were being denied admission. State v. Hand, 2008-NMSC-014, 143 N.M. 530, 178 P.3d 165, 2008 N.M. LEXIS 124 (N.M. 2008).

Officer’s perception of movement within the place to be searched, after knocking and announcing, is a significant component of the constructive refusal analysis. Nonetheless, a reviewing court must consider the totality of the circumstances in any given case to decide whether the officers waited a reasonable length of time to conclude that they were being denied admission. State v. Hand, 2008-NMSC-014, 143 N.M. 530, 178 P.3d 165, 2008 N.M. LEXIS 124 (N.M. 2008).

Compliance with the knock-and-announce rule was excused where the information in the affidavit provided the officers with the information that the occupant was an alleged drug dealer and had multiple fully automatic mini-14’s and sawed-off shotguns, supporting the officers’ reasonable suspicion that the occupants presented a serious risk. State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80, 2005 N.M. LEXIS 333 (N.M. 2005).

      Liability.

School officials were liable for compensatory and punitive damages where they conducted strip searches of two students in an attempt to recover another student’s missing ring without any individualized suspicion and showed reckless disregard for the students’ rights. Kennedy v. Dexter Consol. Sch., 2000-NMSC-025, 2000-NMSC-025, 129 N.M. 436, 10 P.3d 115, 2000 N.M. LEXIS 301 (N.M. 2000).

Agency officials were entitled to qualified immunity in a mother’s  42 U.S.C.S. § 1983 action based on their alleged unlawful execution of an ex parte child custody order where their actions were objectively reasonable in light of clearly established law. Yount v. Millington, 1993-NMCA-143, 117 N.M. 95, 869 P.2d 283, 1993 N.M. App. LEXIS 167 (N.M. Ct. App. 1993), cert. denied, 117 N.M. 121, 869 P.2d 820, 1994 N.M. LEXIS 49 (N.M. 1994).

      New criminal activity.

Where police officers were interviewing mother at partially open doorway while investigating domestic disturbance, heard threatening sounds behind door, and opened door to see her son moving towards them in a threatening manner, exclusionary rule did not operate to suppress officers’ testimony regarding subsequent assault on officers by son. Even assuming arguendo that entry was illegal, son’s actions against the officers constituted new criminal activity that was not subject to the exclusionary rule. State v. Travison B., 2006-NMCA-146, 140 N.M. 783, 149 P.3d 99, 2006 N.M. App. LEXIS 143 (N.M. Ct. App.), cert. denied, 140 N.M. 845, 149 P.3d 942, 2006 N.M. LEXIS 619 (N.M. 2006).

      Other particular circumstances.

There was not a reasonable suspicion to detain defendant where he displayed nothing more than a nervous and possibly furtive demeanor, there was no criminal activity in the area, one officer acknowledged that he had no objective reason to believe that defendant was either engaged in criminal activity or concealing a firearm, and all of the incriminating statements that defendant had a gun in his possession and was a felon were made after defendant was seized. State v. Gutierrez, 2008-NMCA-015, 143 N.M. 522, 177 P.3d 1096, 2007 N.M. App. LEXIS 150 (N.M. Ct. App. 2007), cert. quashed, 145 N.M. 657, 203 P.3d 872, 2009 N.M. LEXIS 417 (N.M. 2009).

Defendant’s initial seizure was an investigatory detention where it was brief and in a public place, but his freedom of movement was highly restricted after the officer pointed a firearm at him within seconds of the encounter. State v. Gutierrez, 2008-NMCA-015, 143 N.M. 522, 177 P.3d 1096, 2007 N.M. App. LEXIS 150 (N.M. Ct. App. 2007), cert. quashed, 145 N.M. 657, 203 P.3d 872, 2009 N.M. LEXIS 417 (N.M. 2009).

Denial of defendant’s motion to suppress was proper as his encounter with the police was not a seizure under the Fourth Amendment; defendant neither submitted to authority nor was restrained by physical force until after he dropped the cocaine. State v. Rector, 2005-NMCA-014, 136 N.M. 788, 105 P.3d 341, 2004 N.M. App. LEXIS 137 (N.M. Ct. App. 2004), cert. denied, 106 P.3d 578, 2005 N.M. LEXIS 28 (N.M. 2005).

      Other particular persons.

Denial of defendant’s motion to suppress was error and defendant’s conviction for possession of cocaine was reversed as an officer’s search of defendant’s pants, in which plastic bags filled with cocaine were found, while defendant was lying unconscious in the hospital constituted an illegal search and was not a community caretaking encounter. State v. Gutierrez, 2005-NMCA-015, 136 N.M. 779, 105 P.3d 332, 2004 N.M. App. LEXIS 136 (N.M. Ct. App. 2004), cert. denied, 106 P.3d 578, 2005 N.M. LEXIS 29 (N.M. 2005), cert. quashed, No. 29,005, 2005 N.M. LEXIS 265 (N.M. June 2, 2005), abrogated in part, City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637, 2012 N.M. LEXIS 328 (N.M. 2012).

      Other violations.

Arresting officer had a reasonable, articulable suspicion to stop defendant’s vehicle when he saw him cross the left of the center of a roadway in violation of 66-7-308 NMSA 1978 or 66-7-313 NMSA 1978. It was not pertinent that he was never charged with violating either statute but charged instead with driving while under the influence of alcohol. State v. Collins, 2005-NMCA-044, 137 N.M. 353, 110 P.3d 1090, 2005 N.M. App. LEXIS 23 (N.M. Ct. App. 2005), overruled in part, State v. Willie, 2009-NMSC-037, 146 N.M. 481, 212 P.3d 369, 2009 N.M. LEXIS 411 (N.M. 2009).

      Pleadings.

      Probable cause.

Plaintiff's arrest was supported by probable cause because it was reasonable for a deputy to believe that plaintiff assaulted a peace officer. Therefore, the district court did not err in dismissing plaintiff's claims for unreasonable seizure based on lack of probable cause to arrest. Benavidez v. Shutiva, 2015-NMCA-065, 350 P.3d 1234, 2015 N.M. App. LEXIS 40 (N.M. Ct. App. 2015).

Because an affidavit failed to establish either the truthfulness of its sources or the factual bases of their allegations, conclusory hearsay accounts of defendant’s alleged admission to some unidentified person or persons that defendant killed a murder victim did not furnish probable cause for the issuance of a search warrant. State v. Haidle, 2012-NMSC-033, 285 P.3d 668, 2012 N.M. LEXIS 327 (N.M. 2012).

Trial court properly granted defendants’ motion to suppress evidence obtained from the seizure of a digital camera from their residence during a child pornography investigation; in the absence of any indication that the camera, which did not contain a memory card, was being used for the storage of child pornography, or was being used for the manufacture of pornography, there was no substantial basis for concluding that there was probable cause that the camera would contain child pornography. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, 2011 N.M. App. LEXIS 40 (N.M. Ct. App. 2011), rev'd, 2013-NMSC-025, 303 P.3d 838, 2013 N.M. LEXIS 180 (N.M. 2013).

Trial court erred in denying defendant’s motion to suppress because a confidential informant’s participation in two controlled purchases of controlled substances did not sufficiently establish the informant’s veracity; the observations of the affiant law enforcement officer of activity consistent with drug trafficking did not sufficiently corroborate the informant’s observations to justify the issuance of a warrant for defendant’s home. The affidavit was insufficient to support a finding of probable cause. State v. Vest, 2011-NMCA-037, 149 N.M. 548, 252 P.3d 772, 2011 N.M. App. LEXIS 8 (N.M. Ct. App. 2011), cert. denied, 293 P.3d 887, 2012 N.M. LEXIS 169 (N.M. 2012).

Officer’s belief that woman’s answers to questions regarding her son were evasive did not give him probable cause to arrest her for obstruction, and because there was no underlying crime, he also had no probable cause to arrest her for concealing her identity. Keylon v. City of Albuquerque, 535 F.3d 1210, 2008 U.S. App. LEXIS 16542 (10th Cir. N.M. 2008).

Where during a lawful stop and detention of defendant, a police officer saw that his movements were slow and lethargic, that his coordination seemed off, that his eyes were red and bloodshot, that his speech was slightly slurred and that he smelled of alcohol strongly, and he refused to take field-sobriety tests, the officer had probable cause to arrest defendant for driving while under the influence. United States v. Aguilar, 301 F. Supp. 2d 1263, 2004 U.S. Dist. LEXIS 1590 (D.N.M. 2004).

Defendant’s privacy rights would not have been violated by a search of real property under U. S. Const., amend. IV, if a warrant was obtainable because as long as there was probable cause to support a warrant, a police officer could have informed defendant that he would get a warrant without invalidating subsequent consent to search. State v. Shaulis-Powell, 1999-NMCA-090, 127 N.M. 667, 986 P.2d 463, 1999 N.M. App. LEXIS 60 (N.M. Ct. App.), cert. denied, 127 N.M. 391, 981 P.2d 1209, 1999 N.M. LEXIS 182 (N.M. 1999), cert. denied, 127 N.M. 391, 981 P.2d 1209, 1999 N.M. LEXIS 201 (N.M. 1999).

In testing the reliability of an informant’s tip, the trial court erred by using the totality of the circumstances test rather than the two-pronged Aguilar-Spinelli test: (1) the reliability of the information, and (2) the credibility of the informant; however, there was sufficient evidence to support the trial court’s conclusion that the stop was reasonable. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502, 1997 N.M. App. LEXIS 92 (N.M. Ct. App. 1997), abrogated in part as stated in State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009).

Defendant’s responsive actions to an officer’s lawful attempt to execute a protective frisk provided both the probable cause and exigent circumstances to justify a warrantless search where defendant became agitated, informed the officer that he had a needle in his pocket, and struggled with the officer. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502, 1997 N.M. App. LEXIS 92 (N.M. Ct. App. 1997), abrogated in part as stated in State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, 2009 N.M. App. LEXIS 298 (N.M. Ct. App. 2009).

Defendant was properly convicted of possession of cocaine, where his suppression motion was denied, because a police officer’s observation of a traffic violation provided probable cause to stop a vehicle. State v. Vargas, 1995-NMCA-091, 120 N.M. 416, 902 P.2d 571, 1995 N.M. App. LEXIS 95 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 283 (N.M. 1995).

Defendant’s contention that a stop in which marijuana was confiscated violated defendant’s Fourth Amendment rights lacked merit because the police officer was justified in making his initial stop of defendant where officer testified that defendant was traveling 35 miles per hour in a 55 mile per hour zone while occupying the inside traffic lane and other vehicles were in the area, which was sufficient probable cause to believe that defendant was violating 66-7-305 NMSA 1978. State v. Mann, 1985-NMCA-107, 103 N.M. 660, 712 P.2d 6, 1985 N.M. App. LEXIS 622 (N.M. Ct. App. 1985), cert. denied, 103 N.M. 740, 713 P.2d 556, 1986 N.M. LEXIS 2868 (N.M. 1986).

Where defendants’ car was stopped and defendants detained by police on the basis of a drug courier profile, cocaine found in the car was properly suppressed because the few elements of the drug courier profile, by themselves, do not provide a reasonable suspicion for detention and one defendant’s consent to search did not vitiate the taint of the illegal detention. STATE v. COHEN, 1985 N.M. App. LEXIS 625 (N.M. Ct. App. 1985).

Where an officer was called to a hotel room to arrest and remove a trespasser and smelled the odor of marijuana when defendant emerged from the room, the odor of marijuana was sufficient to establish probable cause to search. State v. Pool, 1982-NMCA-139, 98 N.M. 704, 652 P.2d 254, 1982 N.M. App. LEXIS 936 (N.M. Ct. App. 1982).

Affidavit was sufficient to support the issuance of a search warrant where the affiant officers had personally observed known drug users going in and out of defendant’s house after another officer said that he had seen such activity and had been told by drug users that defendant was selling drugs; the double hearsay did not render the affidavit legally insufficient, and the procedural irregularities in the return did not invalidate the warrant where there was no showing that defendant was prejudiced. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287, 1973 N.M. App. LEXIS 775 (N.M. Ct. App. 1973).

      Protective sweep.

Protective sweep of defendant’s motel room bathroom violated his constitutional rights because, during the protective sweep and by his own admission, the officer was looking for evidence inside a medicine cabinet, not individuals who might be threats to the officers. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, 2005 N.M. App. LEXIS 17 (N.M. Ct. App.), cert. quashed, 138 N.M. 773, 126 P.3d 1137, 2005 N.M. LEXIS 558 (N.M. 2005).

      Qualified immunity.

In civil rights suit, police officers were found to have no qualified immunity where the law clearly established that there was no possibility of obtaining a warrant for ordering a non-consensual blood test for an alleged misdemeanor, and thus any reasonable officer would have been aware that ordering such a test without a warrant would be in violation of the accused civil rights. Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 2007 U.S. App. LEXIS 389 (10th Cir. N.M. 2007).

      Reasonable suspicion.

Officer was permitted to expand the scope of a traffic stop into an investigation of prostitution solicitation because the officer had a reasonable suspicion that defendant was turning into an alleyway late at night in an area known for prostitution in order to engage his passenger’s services in violation of 30-9-3B NMSA 1978; defendant backed out of the alley after seeing the officer, he avoided eye contact with the officer, and the officer suspected the passenger was working as a prostitute based on her clothing and heavy make-up. The consensual search of defendant’s fanny pack which contained three crack pipes was not the fruit of any prior unlawful search or seizure under the Fourth Amendment. State v. Olson, 2012-NMSC-035, 285 P.3d 1066, 2012 N.M. LEXIS 337 (N.M. 2012).

New Mexico Taxation and Revenue Department, Motor Vehicle Division (MVD), properly sustained the revocation of appellant’s driver’s license because the arresting officer had reasonable grounds to believe appellant was driving a motor vehicle under the influence of alcohol pursuant to 66-8-112F(1) NMSA 1978, and appellant was arrested in accordance with 66-8-112F(1)-(2) NMSA 1978. The officer’s encounter was constitutional under this provision because he was acting as a community caretaker when he saw petitioner’s motorcycle fall; the officer had reasonable suspicion to expand the encounter into a DWI investigation because petitioner smelled of alcohol, had bloodshot eyes, and admitted he had been drinking. Schuster v. State Dep't of Taxation & Revenue, Motor Vehicle Div., 2012-NMSC-025, 283 P.3d 288, 2012 N.M. LEXIS 317 (N.M. 2012).

Pursuant to this provision and N.M. Const. art II  § 10, officers had a reasonable articulable suspicion permitting them to remove the weapon, and removal of the firearm was a minimal intrusion, which was reasonable given the grave need for officer safety during traffic stops; the district court erred in granting defendant’s motion to suppress. State v. Ketelson, 2011-NMSC-023, 150 N.M. 137, 257 P.3d 957, 2011 N.M. LEXIS 274 (N.M. 2011).

Based on a tip, officer had lawfully pulled over vehicle, arrested passenger for check forgery, and found drugs on passenger. Once officer discovered passenger had committed drug crime, it was reasonable for him to briefly detain driver, ask him whether he possessed any drugs or paraphernalia, and request to search the vehicle. Therefore, evidence found as a result of consent search was admissible against driver.  State v. Funderburg, 2008-NMSC-026, 144 N.M. 37, 183 P.3d 922, 2008 N.M. LEXIS 282 (N.M. 2008).

Law enforcement officers had reasonable suspicion to make an investigatory stop of defendant’s car as it drove away from a public hunting area after landowners reported him trespassing. Although the officers were unable to find defendant while he was actually committing a misdemeanor trespass, they had received similar complaints about defendant before, and recognized defendant’s vehicle as it was driving away from the area. United States v. Moran, 503 F.3d 1135, 2007 U.S. App. LEXIS 22726 (10th Cir. N.M. 2007), cert. denied, 553 U.S. 1035, 128 S. Ct. 2424, 171 L. Ed. 2d 234, 2008 U.S. LEXIS 3928 (U.S. 2008).

Individual’s flight may properly be considered in determining the existence of reasonable suspicion unless that flight can be considered unlawfully provoked. State v. Harbison, 2007-NMSC-016, 141 N.M. 392, 156 P.3d 30, 2007 N.M. LEXIS 142 (N.M. 2007).

Under the Fourth Amendment there is no seizure and, thus, no requirement for reasonable suspicion until the individual actually submits to a show of authority. State v. Harbison, 2007-NMSC-016, 141 N.M. 392, 156 P.3d 30, 2007 N.M. LEXIS 142 (N.M. 2007).

Denial of defendant’s motion to suppress in his criminal trial that resulted in a conviction for the possession of a controlled substance, cocaine, was inappropriate pursuant to the Fourth Amendment because defendant was detained without individualized reasonable suspicion that he had committed, or was about to, commit a crime. He was merely going about his business and complied with requests to “step back” when told to do so. State v. Rivas, 2007-NMCA-020, 141 N.M. 87, 150 P.3d 1037, 2006 N.M. App. LEXIS 167 (N.M. Ct. App. 2006), cert. denied, 141 N.M. 164, 152 P.3d 151, 2007 N.M. LEXIS 8 (N.M. 2007).

Trial court improperly denied defendant’s motion to suppress evidence of drugs found in his vehicle pursuant to arrest, because the arresting officer did not have individualized reasonable suspicion regarding defendant prior to asking him for his identification. Defendant had been in his parked vehicle, in a place where criminal activity sometimes occurred, speaking to someone whose identity was unknown to the police officer, when the police officer, without preamble, requested his identification. When he was unable to produce identification, the police officer ran a warrant check, discovered there was an outstanding warrant, arrested defendant, and found drugs in his vehicle in a search pursuant to arrest. Defendant was not free to leave, rendering this a custodial stop. State v. Williams, 2006-NMCA-062, 139 N.M. 578, 136 P.3d 579, 2006 N.M. App. LEXIS 36 (N.M. Ct. App.), cert. denied, 140 N.M. 224, 141 P.3d 1278, 2006 N.M. LEXIS 267 (N.M. 2006).

Detention of defendant’s vehicle for 35 to 40 minutes to await a canine unit was within the permissible scope of the investigatory stop; the officers acted diligently, with minimal intrusion, to verify or dispel their reasonable suspicion that defendant was in possession of methamphetamine with the intent to distribute. State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570, 2006 N.M. App. LEXIS 35 (N.M. Ct. App.), cert. denied, 139 N.M. 568, 136 P.3d 569, 2006 N.M. LEXIS 258 (N.M. 2006).

Based on a tip provided by a named informant, the officers had reasonable suspicion that defendant had or was engaged in criminal conduct because the tip accurately predicted the future movement of defendant and because other significant aspects of the tip were corroborated by the officers, and therefore defendant’s motion to suppress drug evidence was properly denied. The officers corroborated defendant’s future movement when they followed the truck she was driving to within two and a half blocks of the destination provided by the informant; the officers also corroborated the description of the vehicle, including the personalized license plate, and it was reasonable for the officers to believe that defendant’s husband was present in the truck prior to the stop because they were following a vehicle that had two occupants. State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570, 2006 N.M. App. LEXIS 35 (N.M. Ct. App.), cert. denied, 139 N.M. 568, 136 P.3d 569, 2006 N.M. LEXIS 258 (N.M. 2006).

      Requirements.

Objects that a person exposes to the plain view of outsiders are not protected by the Fourth Amendment because no intention to keep them private has been exhibited. State v. Cline, 1998-NMCA-154, 126 N.M. 77, 966 P.2d 785, 1998 N.M. App. LEXIS 128 (N.M. Ct. App. 1998), cert. denied, 126 N.M. 532, 972 P.2d 351, 1998 N.M. LEXIS 362 (N.M. 1998), cert. denied, 526 U.S. 1041, 119 S. Ct. 1338, 143 L. Ed. 2d 502, 1999 U.S. LEXIS 2257 (U.S. 1999).

      Right to privacy.

      Roadblock.

Even where another driver, who had been stopped at a roadblock and had failed a blood alcohol test pursuant to 66-8-110C NMSA 1978, was not ticketed for driving while intoxicated and was driven home by an officer, another driver who was stopped at the roadblock and charged with driving while intoxicated was not unlawfully “seized” because the initial stop of her vehicle at the roadblock was reasonably and uniformly performed. The uniformity requirement did not extend to the later stages of the roadblock, and the irregularities in the post-stop procedures did not invalidate the roadblock itself. State v. Villas, 2002-NMCA-104, 132 N.M. 741, 55 P.3d 437, 2002 N.M. App. LEXIS 89 (N.M. Ct. App. 2002).

      School grounds.

Search of a student’s pockets, wallet, and shoes was excessively intrusive in light of a claim that the student became unruly prior to being restrained where the order to search the student came only after he had been handcuffed, and there was no allegation that the principal suspected that the student carried any weapon or drug. Pacheco v. Hopmeier, 770 F. Supp. 2d 1174, 2011 U.S. Dist. LEXIS 25976 (D.N.M. 2011).

High school principal was not entitled to use the fellow officer doctrine as a shield to a student’s Fourth Amendment claim where no police officer had ever represented to the principal that he had probable cause to seize the student for violating the law; rather, the officer had explained that the student was not suspected of any crime but was merely a potential witness to a crime committed by another. Pacheco v. Hopmeier, 770 F. Supp. 2d 1174, 2011 U.S. Dist. LEXIS 25976 (D.N.M. 2011).

High school principal was not entitled to use the joint participation doctrine as a shield to a student’s Fourth Amendment claim because the principal acted as a state actor when searching or seizing a student on school grounds. Pacheco v. Hopmeier, 770 F. Supp. 2d 1174, 2011 U.S. Dist. LEXIS 25976 (D.N.M. 2011).

High school student’s seizure by a school principal acting on a request by a police officer to take the student to the police station for questioning as a potential witness to a crime committed by another violated the student’s Fourth Amendment rights where there was no evidence that the student was acting disruptively or had violated any law or school rule, and thus the probable cause standard applied, and under that standard the concession that the student had not violated any law or school rule meant that no probable cause existed for the seizure. Pacheco v. Hopmeier, 770 F. Supp. 2d 1174, 2011 U.S. Dist. LEXIS 25976 (D.N.M. 2011).

Child’s motion to suppress evidence found pursuant to search on school grounds by campus service aides was granted, where the aides had no knowledge or information concerning any wrongdoing by the child, other than his being out of class without a pass. As there was no logical connection between the search of the child for contraband and the suspected violation of being out of class without a pass, the aides did not have a reasonable suspicion to justify the search at its inception. State v. Pablo R., 2006-NMCA-072, 139 N.M. 744, 137 P.3d 1198, 2006 N.M. App. LEXIS 45 (N.M. Ct. App.), cert. denied, 140 N.M. 224, 141 P.3d 1278, 2006 N.M. LEXIS 289 (N.M. 2006).

      Search and seizure.

N.M. Const. art II  § 10 provides greater protection than the Fourth Amendment of the right to privacy in garbage which is sealed from plain view and placed out for collection. State v. Crane, 2014-NMSC-026, 329 P.3d 689, 2014 N.M. LEXIS 245 (N.M. 2014).

Deputy had a reasonable and objective basis for suspecting defendant of criminal activity and, therefore, the initial stop of defendant’s vehicle was lawful; the length and manner of defendant’s detention did not exceed that which was necessary for the deputy to quell or verify his initial suspicion of criminal activity. State v. Harrison, 2010-NMSC-038, 148 N.M. 500, 238 P.3d 869, 2010 N.M. LEXIS 413 (N.M. 2010).

Substantial evidence supported the decision of the district court to grant defendant’s motion to suppress where the police improperly used probation officers to effectuate an investigation, N.M. Const. art II  § 10 and this section; the probation officers’ visit, and resulting search, was not conducted for a probationary purpose. State v. Bolin, 2010-NMCA-066, 148 N.M. 489, 238 P.3d 363, 2010 N.M. App. LEXIS 98 (N.M. Ct. App. 2010).

Defendant was seized where an unmarked police car had pulled up to the curb, both officers had exited the car to stop defendant, one officer drew a firearm when defendant began to step backward, and defendant was not asked any questions until the officer drew his gun. State v. Gutierrez, 2008-NMCA-015, 143 N.M. 522, 177 P.3d 1096, 2007 N.M. App. LEXIS 150 (N.M. Ct. App. 2007), cert. quashed, 145 N.M. 657, 203 P.3d 872, 2009 N.M. LEXIS 417 (N.M. 2009).

In an abuse and neglect proceeding, the exclusionary rule does not apply to a search of a parent’s home because the abuse and neglect proceeding is not a criminal prosecution. State ex rel. Children, Youth & Families Dep't. v. Michael T., 2007-NMCA-163, 143 N.M. 75, 172 P.3d 1287, 2007 N.M. App. LEXIS 139 (N.M. Ct. App. 2007).

Trial court erred in granting defendant’s motion to suppress rock of cocaine he had thrown under car during encounter with police. State’s argument that the encounter was consensual, and thus the rock was abandoned, was invalid, since police officer’s pursuit of defendant with weapon drawn rendered it a custodial stop. However, officer was justified in making custodial stop because he had reasonable suspicion that defendant was engaged in criminal activity based on defendant’s individualized conduct, which included his flight from police in conjunction with the known criminal activity that had just taken place at the location. State v. Harbison, 2006-NMCA-016, 139 N.M. 59, 128 P.3d 487, 2005 N.M. App. LEXIS 159 (N.M. Ct. App. 2005), aff'd, 2007-NMSC-016, 141 N.M. 392, 156 P.3d 30, 2007 N.M. LEXIS 142 (N.M. 2007).

Post-midnight visit to defendant’s home during which police ordered defendant to be awakened and then demanded that defendant exit his home constituted a non-consensual investigative detention; seizure amounted to an illegal seizure under the state and federal constitutions because it was unsupported by reasonable suspicion, and evidence obtained as a result of the post-midnight visit by the police to defendant’s home was suppressed as to the identification of defendant and any admissions defendant made as a consequence of that police visit. State v. Scott, 2006-NMCA-003, 138 N.M. 751, 126 P.3d 567, 2005 N.M. App. LEXIS 145 (N.M. Ct. App. 2005), cert. quashed, 141 N.M. 339, 154 P.3d 1239, 2007 N.M. LEXIS 495 (N.M. 2007).

Reasonable person would not feel free to leave because an officer ordered defendant and others out of the shed while investigating a stabbing at the residence; furthermore, the officer’s detention of defendant by requesting him to exit the shed for questioning was warranted where one person had been stabbed at the residence, and neither the perpetrator nor the weapon had been located yet. Because neither the perpetrator nor the weapon had been located, the officer’s pat down search of defendant was necessary for his own protection, as well as for the protection of the other officers and other people in the area; therefore, the officer’s detention and pat down of defendant was appropriate, and defendant’s motion to suppress was properly denied. State v. Sanchez, 2005-NMCA-081, 137 N.M. 759, 114 P.3d 1075, 2005 N.M. App. LEXIS 67 (N.M. Ct. App.), cert. denied, 115 P.3d 229, 2005 N.M. LEXIS 316 (N.M. 2005).

Because defendant was in violation of a traffic and equipment regulation of New Mexico as the sticker on his license plate was a different color from the sticker for the year at that time, which indicated that the license plate’s validity had expired, upon a police officer observing the violation, he was warranted in stopping defendant and his vehicle. United States v. Aguilar, 301 F. Supp. 2d 1263, 2004 U.S. Dist. LEXIS 1590 (D.N.M. 2004).

Routine traffic stops are constitutionally required not to be unreasonable given the circumstances. United States v. Aguilar, 301 F. Supp. 2d 1263, 2004 U.S. Dist. LEXIS 1590 (D.N.M. 2004).

Defendant was entitled to the suppression of marijuana found on his person because his detention after a traffic stop violated the fourth amendment as the police lacked reasonable suspicion that he violated a traffic law; even though the police had a good faith belief that the car in which defendant was riding did not display a license plate, the license plate was in fact properly displayed. State v. Vandenberg, 2002-NMCA-066, 132 N.M. 354, 48 P.3d 92, 2002 N.M. App. LEXIS 45 (N.M. Ct. App. 2002), rev'd, 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19, 2003 N.M. LEXIS 232 (N.M. 2003).

Deputies search of a parent’s house in an investigation of possible child neglect was not proper because a reasonable officer would not have believed that an emergency situation existed requiring immediate entry into the parent’s home. Chavez v. Bd. of County Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027, 2001 N.M. App. LEXIS 61 (N.M. Ct. App. 2001).

      Search incident to arrest.

Search of defendant’s wallet incident to his arrest for murder was permissible, and, thus, ATM receipt found in wallet was lawfully seized and evidence obtained as a result of investigating that receipt was not tainted. State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521, 2008 N.M. LEXIS 446 (N.M. 2008), overruled in part, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, 2009 N.M. LEXIS 402 (N.M. 2009).

      Searches.

Evidence was sufficient to give rise to a reasonable inference that defendant had knowledge of a gun in a vehicle in which he was a passenger, but given that both defendant and the driver had equal access to the gun, the State needed more than physical proximity to establish defendant’s control; however, the ammunition clip was enough to create an inference of both knowledge and control, particularly when embellished by the other pieces of incriminating evidence; therefore, the officers searched the car and seized the gun, not as evidence of a crime, but in a reasonable effort to secure the scene and were entitled to a reasonable, limited search of the car for weapons, even after the suspects had left the car. State v. Garcia, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72, 2005 N.M. LEXIS 335 (N.M. 2005), overruled in part, State v. Bomboy, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045, 2008 N.M. LEXIS 292 (N.M. 2008).

      Standing.

Defendant driver of a rental vehicle, who was neither the renter nor listed on the rental contract as an authorized driver, and presented no evidence of consent or permission from the lawful owner or renter to be in possession of the vehicle, had no standing to challenge a search of the vehicle. State v. Van Dang, 2005-NMSC-033, 138 N.M. 408, 120 P.3d 830, 2005 N.M. LEXIS 444 (N.M. 2005).

Defendant had standing to assert that the search of the motel room violated his constitutional rights because his subjective expectation of privacy in the motel room was one that society was prepared to recognize as reasonable. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, 2005 N.M. App. LEXIS 17 (N.M. Ct. App.), cert. quashed, 138 N.M. 773, 126 P.3d 1137, 2005 N.M. LEXIS 558 (N.M. 2005).

Defendant had standing to assert a Fourth Amendment claim against the search of his vehicle when his property interest in the vehicle searched was clearly established by undisputed evidence in the form of police records, therefore the trial court erred in finding that defendant lacked standing. State v. Esguerra, 1991-NMCA-147, 113 N.M. 310, 825 P.2d 243, 1991 N.M. App. LEXIS 243 (N.M. Ct. App. 1991).

A defendant, who was convicted on multiple charges, lacked standing to exclude evidence obtained from a search of an allegedly stolen car and its occupants, because the defendant disclaimed any knowledge of the stolen car, and because no right of the defendant was involved in the search of the other occupants. State v. Ellis, 1975-NMCA-076, 88 N.M. 90, 537 P.2d 698, 1975 N.M. App. LEXIS 672 (N.M. Ct. App. 1975), overruled,  State v. Espinosa, 1988-NMSC-050, 107 N.M. 293, 756 P.2d 573, 1988 N.M. LEXIS 275 (N.M. 1988).

      Traffic stop.

           —Computer check.

District court did not err in denying defendant's motion to suppress because it was objectively reasonable for an officer to suspect defendant was operating an uninsured vehicle in violation of the New Mexico Mandatory Financial Responsibility Act when the database indicated the compliance status was unknown to the Motor Vehicle Division (MVD); the officer was justified in his objective and particularized belief that the MVD database contained no information reflecting the vehicle was insured. State v. Yazzie, 2016-NMSC-026, 376 P.3d 858, 2016 N.M. LEXIS 152 (N.M. 2016).

Where close to ninety percent of vehicles reflecting an “unknown” compliance status in Motor Vehicle Division (MVD) of the New Mexico Taxation and Revenue Department records are in fact uninsured in violation of the law, an officer who learns that the MVD records for a particular vehicle indicate an “unknown” compliance status has constitutionally reasonable suspicion to stop the vehicle and investigate further. State v. Yazzie, 2016-NMSC-026, 376 P.3d 858, 2016 N.M. LEXIS 152 (N.M. 2016).

           —Temporary dealer plates.

Officer who witnessed driver operating a vehicle at 2:00 a.m. with temporary dealer license plates, and based on his knowledge that such plates are often stolen or misused, decided to make a traffic stop, did not have particularized reasonable suspicion. State v. Aguilar, 2007-NMCA-040, 141 N.M. 364, 155 P.3d 769, 2007 N.M. App. LEXIS 15 (N.M. Ct. App.), cert. denied, 141 N.M. 401, 156 P.3d 39, 2007 N.M. LEXIS 126 (N.M. 2007).

      Traffic stop as pretext.

In defendant’s drug case, a court erred by denying his motion to suppress evidence obtained pursuant to a warrantless search because all the officer knew, or at least all that he articulated, was that defendant was associating with possible drug dealers in Midland, Texas, and for some unknown reason he might have drugs in his possession. His investigation yielded no new information beyond a license plate number, and in the absence of specific and particularized incriminating information about the criminal activity that defendant was or was about to engage in, generalized suspicions and mere corroboration of innocent activity was insufficient to create reasonable suspicion for the investigatory detention. State v. Prince, 2004-NMCA-127, 136 N.M. 521, 101 P.3d 332, 2004 N.M. App. LEXIS 112 (N.M. Ct. App. 2004), cert. quashed, 138 N.M. 440, 120 P.3d 1183, 2005 N.M. LEXIS 428 (N.M. 2005).

In defendant’s drug case, a court erred by denying his motion to suppress evidence because there was a direct causal relationship between the illegal detention and defendant’s consent to search which was underscored by flagrant misconduct. The agent used a lawful traffic stop to perform an unrelated drug investigation when he himself knew there was no reasonable suspicion to detain defendant for such purpose, and there was no break in the causal chain, either in terms of temporal proximity or intervening circumstances. State v. Prince, 2004-NMCA-127, 136 N.M. 521, 101 P.3d 332, 2004 N.M. App. LEXIS 112 (N.M. Ct. App. 2004), cert. quashed, 138 N.M. 440, 120 P.3d 1183, 2005 N.M. LEXIS 428 (N.M. 2005).

      Warrant required.

Where a building inspector entered a software company’s building, seeking to discover building code violations, the inspector needed a warrant; thus, because the company’s building was not open to the public, the inspector’s entrance into the building without a warrant or consent was a violation of the owners’ Fourth Amendment rights MIMICS, Inc. v. Vill. of Angel Fire, 277 F. Supp. 2d 1131, 2003 U.S. Dist. LEXIS 14346 (D.N.M. 2003), aff'd in part and rev'd in part, 394 F.3d 836, 2005 U.S. App. LEXIS 15 (10th Cir. N.M. 2005).

      Warrantless arrest.

On appeal of an administrative license revocation proceeding, the Supreme Court of New Mexico held that the New Mexico Taxation and Revenue Department, Motor Vehicle Division, had to find that the arrest and underlying police activity leading to the arrest were constitutional as a prerequisite to revoking a driver’s license under the Implied Consent Act. The plain meaning of the word “arrest,” as set forth in 66-8-112E(2) NMSA 1978, means an arrest that complies with the protections of the this provision and N.M. Const. art II  § 10. Schuster v. State Dep't of Taxation & Revenue, Motor Vehicle Div., 2012-NMSC-025, 283 P.3d 288, 2012 N.M. LEXIS 317 (N.M. 2012).

Warrantless arrest of murder suspect was justified by exigent circumstances where officers were in possession of overwhelming evidence that suspect had at least assaulted and abducted missing victim and had been aggressively concealing and destroying evidence of his crimes. Officers were justified in taking swift action to prevent further destruction of evidence and to pursue any remaining possibility of saving victim’s life.  State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521, 2008 N.M. LEXIS 446 (N.M. 2008), overruled in part, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783, 2009 N.M. LEXIS 402 (N.M. 2009).

      Warrantless search.

Officer did not have reasonable suspicion that drugs would be found in defendant’s vehicle and to, therefore, justify its detention beyond the time necessary to issue a citation for a cracked windshield because defendant’s mere association with a convicted felon, who was under surveillance in an ongoing drug investigation, was insufficient to create reasonable suspicion of defendant, especially where the officer did not even know the identities of the two men when he observed them. Moreover, defendant’s denial of consent to search the truck was not a probative fact of guilt, suspicion, or dangerousness. State v. Neal, 2007-NMSC-043, 142 N.M. 176, 164 P.3d 57, 2007 N.M. LEXIS 328 (N.M. 2007).

Police officers who responded to a one-car accident where the driver had left the scene did not have a reasonable suspicion to stop the vehicle defendant was riding in merely because it drove slowly by the accident scene twice. The stop was an unlawful seizure under the Fourth Amendment and defendant’s motion to suppress should have been granted. A second pass by the accident scene alone was not sufficient evidence of criminal activity to support a finding of reasonable suspicion. State v. Lackey, 2005-NMCA-038, 137 N.M. 296, 110 P.3d 512, 2005 N.M. App. LEXIS 19 (N.M. Ct. App.), cert. quashed, 138 N.M. 330, 119 P.3d 1267, 2005 N.M. LEXIS 427 (N.M. 2005).

Police officer’s warrantless search of a paper sack in a box in a closet in defendant’s residence could not be justified as incident to defendant’s arrest where there was no evidence that the sack was within the area from which defendant, whose hands had been cuffed behind his back and who was probably not too close to the closet, might have gained possession of a weapon or destructible evidence. State v. Martinez, 1997-NMCA-048, 123 N.M. 405, 940 P.2d 1200, 1997 N.M. App. LEXIS 37 (N.M. Ct. App. 1997).

      Warrants.

Word “showing” in N.M. Const. art II  § 10 is a presentation or statement of facts that can be made through audible or other sensory means as well as through visual means, and New Mexico’s Constitution allows for alternative methods for requesting and approving search warrants. State v. Boyse, 2013-NMSC-024, 303 P.3d 830, 2013 N.M. LEXIS 177 (N.M. 2013).

“All persons” warrant impermissibly authorized the search of defendant’s person because it was not supported by information in the affidavit establishing a particularized suspicion that defendant or “all persons” found on the premises were involved in criminal activity or in possession of contraband; the party took place in a public theater that anyone could enter. State v. Light, 2013-NMCA-075, 306 P.3d 534, 2013 N.M. App. LEXIS 48 (N.M. Ct. App. 2013).

Defendant’s motion to suppress was erroneously granted because even though no express statement in a detective’s search warrant affidavit connected the address to be searched with the address described where evidence could be found, such a connection was the only logical conclusion supported by a commonsense reading of the affidavit; the same address was listed at the top of each page of the affidavit. State v. Trujillo, 2011-NMSC-040, 150 N.M. 721, 266 P.3d 1, 2011 N.M. LEXIS 498 (N.M. 2011).

Any warrantless intrusion into a home by law enforcement officers should minimize the imposition on privacy and possessory interests protected by the Fourth Amendment. State v. Wagoner, 1998-NMCA-124, 126 N.M. 9, 966 P.2d 176, 1998 N.M. App. LEXIS 107 (N.M. Ct. App. 1998), cert. denied, 125 N.M. 654, 964 P.2d 818, 1998 N.M. LEXIS 311 (N.M. 1998), rev'd, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, 2001 N.M. App. LEXIS 4 (N.M. Ct. App. 2001).

Before law enforcement officers can conduct a search, the Fourth Amendment ordinarily requires that they have not only probable cause, but also a warrant. State v. Wagoner, 1998-NMCA-124, 126 N.M. 9, 966 P.2d 176, 1998 N.M. App. LEXIS 107 (N.M. Ct. App. 1998), cert. denied, 125 N.M. 654, 964 P.2d 818, 1998 N.M. LEXIS 311 (N.M. 1998), rev'd, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, 2001 N.M. App. LEXIS 4 (N.M. Ct. App. 2001).

Research References and Practice Aids

      New Mexico Law Review.

Note, State v. Vandenberg: Lowering the Fourth Amendment Bar While Avoiding the Issue of Pretextual Police Conduct, Todd Coberly, 35 N.M. L. Rev. 467 (2005).

Article: Criminal Justice and the 2003-2004 United States Supreme Court Term, Christopher E. Smith, Michael McCall and Madhavi McCall, 35 N.M. L. Rev. 123 (2005).

Note: State v. Urioste: A Prosecutor’s Dream and Defenders’ Nightmare, Amanda C. Sanchez, 34 N.M. L. Rev. 517 (2004).

Article: Overbreadth Outside the First Amendment, John F. Decker, 34 N.M. L. Rev. 53 (Winter, 2004).