State v. PAUL T.State v. PAUL T.
Lead Opinion
OPINION
{1} Pаul T. contests the children’s court’s denial of his motion to suppress certain evidence used against him in a delinquency proceeding. The Court of Appeals affirmed the children’s court, holding that the initial pat down of Paul’s person was a valid protective search and that the subsequent search of Paul’s pockets was reasonable under the circumstances. The Court of Appeals rejected Paul’s argument that the pat-down search was pretextual, deciding that the argument depended on determinations of credibility and weight on which the appellate court should defer to the trier of fact. Because the Court of Appeals found the search of Paul’s poсkets reasonable under the circumstances, it did not reach the issue of whether Paul’s alleged consent was voluntary.
{2} We affirm the Court of Appeals on the issue of whether the initial pat down was a valid protective search, though we base our holding on an objective standard instead of an analysis of whether the search was pretextual. We reverse the Court of Appeals on the issue of whether the subsequent search of Paul’s pockets was reasonable under the circumstances. We also reject the State’s argument that the searches could be sustained as a search incident to an arrest. We hold that the search of Paul’s pockets was unlawful without his valid сonsent, and therefore we remand to the children’s.court for a factual determination of voluntariness and full consideration of the validity of Paul’s consent.
FACTS AND PROCEDURAL POSTURE
{3} Shortly after midnight on September 9, 1995, Officer John Serna of the Alamagordo Department of Public Safety stopped an automobile operating with only one headlight. While conferring with the driver, Officer Serna recognized Paul, who he knew was under the age of sixteen, in the rear passenger seat. Since it was a Saturday, Alamagordo’s juvenile curfew ordinance had gone into effect at midnight. See Alamagordo, N.M., Code of Ordinances, § 11-03-040 (1960).
{4} Paul confirmed for Officer Serna his name and that he was fifteen years old. He told Officer Serna that he lived six blocks away, that he was on his way home, and that his sister was his guardian that evening. Officer Serna attempted to reach Paul’s parents at the phone number Paul gave him, but was unable to do so. Serna cited the driver for the headlight infraction, determined Paul was in violation of curfew, and asked Paul to step out of the car. Paul complied.
{5} Section ll-03-040(c) of the curfew ordinance provides: “It shall be the duty of peace officers to apprehend and take into custody any minor found in violation of this section.” The ordinance requires the officer to attempt to notify the parent or guardian of the juvenile and mandates that “such parent or guardian shall be deemed guilty of permitting a violation of this section.” Id. The juvenile is released to the “parent or guardian or other person having care or custody of the minor, upon written promise that such parent or guardian will assume the responsibility that said child will comply with [the curfew ordinance].” Section ll-03-040(e).
{6} Before placing Paul in his police cruiser, Officer Serna patted him down. During the pat-down search, Officer Serna felt several items in Paul’s pockets, “some of which were solid and others softer.” He asked for and received Paul’s permission to empty his pockets. The subsequent search revealed a sandwich-sized plastic bag containing a small amount of marijuana, a package of cigarette rolling papers, and several coins wrapped in pink tissue paper. Following this discovery, Officer Serna took Paul to the police station, completed an Incident Report, and then released Paul to his sister’s custody. Later, Officer Serna contacted Paul’s mother and issued her a citation for the curfew violation.
{7} On October 10,1995, the State filed a delinquency petition in children’s court charging Paul with possession of one ounce or less of marijuana, contrary to NMSA 1978, § 30-31-23 (1990), as well as possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1(A) (1981, prior to 1997 amendment). Paul moved to suppress the evidence seized as a result of the pat-down search and the search of his pockets, contending that the searches were unlawful. The children’s court denied Paul’s motion, whereupon he entered a no contest plea to both charges, reserving the right to appeal the suppression ruling. After the Court of Appeals affirmed the ruling, we granted certiorari and now affirm in.part, reverse in part, and remand.
DISCUSSION
{8} “The issue of suppression ... raises a mixed question of law and fact and our review on appeal is de novo.” State v. Duffy,
{9} Paul contends that the evidence against him was obtained in violation of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Both provisions proscribe unreasonable searches by state officials. See Mapp v. Ohio,
{10} The State attempts to justify the warrantless search of Paul’s person on three independent grounds, arguing first that it was “akin” to a search incident to arrest, second, that it was no more than a protective search for weapons under Terry v. Ohio,
{11} The State analogizes the search of Paul’s pockets in this case to a search incident to arrest, thereby obviating the need for a warrant or valid consent from Paul. Under the Fourth Amendment, the police may lawfully conduct a full, warrantless search of the arrestee’s person without his or her permission. See Chimel v. California,
{12} In United States v. Robinson, a case involving an arrest for a traffic violation, the United States Supreme Court concluded that the authority to conduct a full field search incident to a “custodial arrest” was a bright-line rule that did not depend in every case upon the existence of a concern for officer safety or the destruction or loss of evidence. See
{13} Paul preserved his claim that Article II, Section 10 protects him in the circumstances of this case from a full search incident to arrest. In Gomez, we held that where, as here, there is established precedent interpreting Article II, Sectiоn 10 more broadly than its federal counterpart, the defendant’s claim “may be preserved by (1) asserting the constitutional provision that provides the protection sought under the New Mexico Constitution, and (2) showing the factual basis needed for the trial court to rule on the issue.” Id. ¶ 22. Paul met the first requirement by stating in his response brief on the suppression issue that “our New Mexico Constitution offers greater safeguards from unreasonable searches and seizures than the United States Constitution.” In the same brief, Paul also alerted the children’s court to his contention that the factual scenario of this case, where he was taken into custody for a curfew violation but not arrested, invalidated the Statе’s argument that “ ‘this situation is similar to a lawful arrest without a warrant.’ ” Paul argued in the brief that “[a]ny attempt to uphold the search by reference to protective custody and arrest is not sustainable.” Gomez requires no more.
{14} Looking as we do at the particular facts of each search in determining reasonableness, we hold under Article II, Section 10 that the search of Paul’s pockets cannot be considered as “akin” to a search incident to arrest. A full-blown field search is simply not justified under the facts presented here. Here, Paul was taken into custody for a curfew violation, a non-criminal offense that did not involve an emergency situation. Compare State v. Keyes,
{15} We reach the same conclusion with respect to the other historic rationale fоr a search incident to arrest — preservation of evidence. Once Paul told Officer Serna that he was fifteen years old, the possibility that additional evidence of a curfew violation existed in his pockets, and that he would destroy such evidence, is too remote to justify a full-blown search of Paul’s person. Cf. Knowles v. Iowa,
{16} Next, we turn back to the Fourth Amendment and the State’s alternative argument that Terry justifies Officer Serna’s search of Paul’s person. We hold that Terry provides the proper analytical framework for this case. The “crux of this ease” is the same as in Terry, that is, “whether thеre was justification' for [the officer’s] invasion of [the defendant’s] personal security by searching him for weapons.”
{17} Under Terry, to initiate a protective search, police must have “specific and articulable facts” on which they premise their assessment of danger.
{18} Again, our test is an objective one. Officer Serna need not “have been absolutely certain that the individual [was] armed; the [only question] is whether a reasonably prudent man in the circumstances would [have been] warranted in the belief that his safety or that of others was in danger.” Terry,
If the object felt is hard, then the question is whether its “size or density” is such that it might be a weapon. But because “weapons are not always of an easily discernible shape,” it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon “the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing,” which is most likely to occur when the suspect is wearing heavy clothing. Under this approach, courts have upheld as proper searches which turned up certain objects other than guns, such as a pocket tape recorder, a pipe, a pair of pliers, cigarette lighter, several keys taped together, a metal clip full of money, tightly wrapped bags of crack cocaine, or a prescription bottle.
Id. at 278-79 (footnotes omitted).
{19} Applying the foregoing rules to this case, we hold that the coins wrapped in tissue paper were not оf such a “size or density” to provide a reasonable basis for Officer Serna’s intrusion into Paul’s pockets. See People v. Mosher,
{20} The State insists that the fact that Officer Serna took Paul into custody provides a basis to search for atypical weapons beyond the scope of a Terry-type “stop and frisk.” At the suppression hearing, on cross examination, Officer Serna opined that almost anything in Paul’s pockets that was hard — a marble, ring, pin, or little box, for example — could be used as a weapon from Paul’s position behind him in the patrol car. However, at least one other court has addressed similar arguments and reached the same conclusion that we reach today.
{21} In Brisendine, the California Supreme Court evaluated whether a more intrusive protective search than a pat down was warranted when two deputy sheriffs cited a group of young men for illegally camping in a national forest and escorted them on a two-hour hike partially in darkness through ravines and along deep canyon walls back to where the deputies’ car was parked. See
{22} The court upheld the protective searches of the defendant’s pack and its interior as reasonable to ensure the safety of the deputies, given the necessity that the campers and their effects accompany them on the return trip and the absence of any practical way for the officers to negotiate the difficult terrain and at the same time assure that their charges would not be able to gain access to weapons possibly secreted in their gear. See id. at 1107-08. The state attempted to justify the search of the bottle and the envelopes on the grounds that they might have contained unusual or atypical weapons, id. at 1108, but the court rejected the argument, relying on People v. Collins,
{23} In Collins, the California Supreme Court made explicit the rule that “an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which would reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.” Id. at 406. The Collins court specifically disapproved as “fanciful speculation” the reasoning of People v. Armenta,
{24} We are aware that the California electorate has forbidden by constitutional amendment the suppression of evidence under the state’s analog to the Fourth Amendment, thereby implicitly superceding the result in Bnsendine. See In re Lance W.,
{25} Subsequent to Bnsendine, the California Supreme Court again rejected an expanded search for atypical weapons in a transportation situation, in part because the court deemed it “highly improbable, as a general proposition, that a covey of staggering and helpless inebriates like this defendant in the back of a secure B-wagon [would] design an escape plot or execute a coordinated group attack on the officers driving the van.” Maher,
{26} Additionally, on the facts presented here, we hold that Article II, Section 10 provides at least the same degree of protection from unreasonably intrusive pat-down searches as we havе determined exists under the Fourth Amendment. See State v. Wright,
{27} Finally, the State appears to make a sub-argument under Terry and its progeny regarding the “plain feel” doctrine, which embraces soft objects. In Dickerson, the United States Supreme Court held that when the identity of contraband is “immediately apparent” to an officer conducting a pat-down search, the officer may lawfully seize the object.
{28} Apart from the rubrics of a search incident to arrest and a Terry-type protective search, the State’s third alternative argument is that Paul consented to the search of his pockets. Searches that are shown to be consensual are an exception to the warrant requirement because they are manifestly reasonable. See State v. Walker,
{29} The problem here is that the children’s court did not base its ruling at the suppression hearing on consent, as both the State and Paul cоncede. Paul, citing Aguilar v. State,
{30} In the event of remand, Paul asks this Court to develop special standards and guidelines for the use of trial courts in evaluating juvenile consent to search cases. However, given the undeveloped state of the record on the issue of consent generally and the fact that the parties did not brief the narrower issue of juvenile consent at all below or extensively on appeal, it would be premature for us to act on Paul’s request at this time, and we decline to do so. See City of Las Cruces v. El Paso Elec. Co.,
CONCLUSION
{31} For the reasons discussed above, we affirm the Court of Appeals’ judgment that Officer Serna’s initial, limited pat-down search of Paul was justified; we reverse the Court of Appeals’ determination that the subsequent, expanded search of Paul’s pockets was lawful, and we remand to the children’s court for further proceedings regarding whether Paul’s consent to search his pockets was valid.
{32} IT IS SO ORDERED.
Notes
. In addition to its three principal arguments, the State also asserts, in passing, that this case "resembles a community caretaker type of situation." Besides the failure of the State to develop this argument, let alone say how it was preserved, Paul points out that the State stipulated below that he was "in custody" and "seized" within the meaning of the Fourth Amendment, making the community caretaking line of cases inapplicable. See State v. Walters,
. Paul now contends in this Court that the curfew ordinance is unconstitutional and/or preempted by the Delinquency Act, but because those arguments were not preserved below, we do not address them. See Garcia ex rel. Garcia v. La Farge,
Dissenting Opinion
DISSENT
{33} I respectfully dissent from the Court’s opinion. I would affirm the Court of Appeals conclusion under the Fourth Amendment the search of Paul’s pockets was reasonable under the circumstances.
{34} I would hold that under a Terry analysis, Officer Serna’s emptying of Paul’s pockets did not exceed the scope of a warrantless protective search. Weapons come in all shapes and sizes. Had Officer Serna been able to discern that the solid objects he felt during the pat-down were coins, then the subsequent search of Paul’s pockets would not have been justified. However, when Officer Serna could not identify the solid object, emptying Paul’s pockets was proper. Indeed, the majority notes that in United States v. Oates,
{35} I also write to comment on the majority’s use of the interstitial approach to independently interpret our state constitution. See State v. Gomez,
{36} I believe the majority’s analysis fails to properly address these or any other criteria justifying its holding that “under Article II, Section 10[, the] search of Paul’s pockets cannot be considered as ‘akin’ to a search incident to arrest.” The majority’s discussion does not examine how trends in Article II Section 10 jurisprudence support the holding that a search of a minor taken into custody for a curfew violation cannot be considered akin to a search incident to arrest. The Court’s reliance on cases from other jurisdictions does not provide an adequate substitute.
{37} The adoption of the interstitial approach provides this Court with a tool that “theoretically remov[es] the opportunity for the judiciaries to arbitrarily apply state constitutional provisions.” Jennifer Cutcliffe Juste, Constitutional Law — The Effect of State Constitutional Interpretation on New Mexico’s Civil and Criminal Procedure-State v. Gomez, 28 N.M.L.Rev. 355, 362 (Spring 1998) (citing John W. Shaw, Comment, Principled Interpretations of State Constitutional Law — Why Don’t the “Primacy” States Practice What They Preach?, 54 U. Pitt. L.Rev. 1019, 1025, note 17 (1993)). I believe it is the Court’s duty to provide a principled basis for its interpretation' of Article II, Section 10. A mоre comprehensive treatment would aid in the development of New Mexico’s state constitutional jurisprudence, help further refine the application of the interstitial approach, and provide the bar and other jurists in New Mexico with structured guidance.
{38} Finally, because I would hold that Officer Serna’s search was reasonable, I would not reach the issue of consent and would thus affirm the conviction without a remand.
. In State, v. Hunt, the New Jersey Supreme Court suggested additional reasons to justify the divergence from federal constitutional interpretation: 1) differences in textual language; 2) legislative history; 3) preexisting state law; 4) structural differences between state and federal constitutions; 5) matters of particular state interest or local concern; 6) state traditions; and 7) public attitudes.