State v. WilliamsState v. Williams
Lead Opinion
OPINION
{1} Tеrry Williams (Defendant) challenges the district court’s denial of his motion to suppress under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Additionally, Defendant claims ineffective assistance of counsel, and that his conditional plea was not entered into knowingly, voluntarily, or intelligently. We conclude that the Fourth Amendment requires suppression and, accordingly, we do not reach Defendant’s other arguments.
I. BACKGROUND
{2} At the hearing on Defendant’s motion to suppress, Officer Simbala testified that, on September 7, 2006, at approximately 4:00 p.m. while on patrol, he conducted a license plate check on Defendant’s vehicle as it was parked in front of a residence. The cheek indicated that Defendant was the owner. The officer knew Defendant from “three or four” previous contacts, though he did not know it was Defendant’s car at the time he checked the license plate. The officer then conducted a check on Defendant’s name and discovered he had an outstanding felony warrant for his arrest. The officer then positioned himself nearby on another street and, after waiting approximately twenty minutes, observed Defendant in his car making a right-hand turn and driving through a stop sign without making a complete stop. Although the windows on Defendant’s car were tinted, the officer identified Defendant as the operator of the vehicle by seeing through the untinted front windshield as Defendant drove toward the officer and by seeing Defendant through the driver’s side window, which was down as Defendant passed by.
{3} Officer Simbala testified that, after pulling Defendant over and approaching his vehicle, he noticed that Defendant’s shoulders were moving, his hands were not up on the steering wheel, but were down low, and he appeared to be “fumbling around.” He testified further that he thought Defendant was hiding something or grabbing a weapon. After making contact with Defendant and obtaining his “information,” the officer again conducted a background check and confirmed the existence of an outstanding felony warrant. Officer Stephenson arrived on the scene. Officer Simbala asked Defendant to step out of the vehiсle, placed him under arrest, and then handcuffed him. At that time, Officer Simbaia noticed that Defendant’s pants were unzipped, and “half of his shirt was sort of pulled through it.” Defendant was placed between the two police cars on the side of the street, and Officer Simbaia performed a search of Defendant. Officer Simbaia testified that, although he performed a pat-down of Defendant, which did not reveal anything he believed was a weapon, he faced Defendant, grabbed and shook his waistband, pulled the front of his pants outward six to eight inches, looked down, and observed and seized a plastic bag containing crack cocaine and heroin next to Defendant’s genitals. At the time of the search, Officer Simbaia was wearing gloves, and Officer Stephenson, a female, was standing behind Defendant and had “no way of seeing anything.” Officer Simbaia did not testify about the traffic conditions on the street at the time, whether there were members of the public watching the incident, or whether the public’s view was obstructed during the search. Defendant testified on his own behalf and stated that the search was conducted around 4:25 in the afternoon at a “very busy intersection” with “hundreds and hundreds of people driving by.”
{4} At the end of the suppression hearing, the district court found there was probable cause for the officer to stop Defendant and found the search incident to his arrest was a lawful search. Five days following the district court’s denial of the motion to suppress, Defendant entered a plea of no contest to trafficking by possession with intent to distribute, reserving the right to appeal the denial of his motion to suppress.
II. DISCUSSION
{5} On appeal, Defendant argues that (1) the search incident to his arrest was unreasonable under the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution; (2) his trial counsel was ineffective; (3) his plea was not entered into knowingly or voluntarily; and (4) this Court should allow him to withdraw his plea and proceed to trial instead. We agree that the search was unreasonable under the Fourth Amendment, and we will not discuss Defendant’s other issues.
{6} An appellate court’s review of a district court’s ruling on a motion to suppress represents a mixed question of fact and law. State v. Rowell,
{7} The Fourth Amendment of the United States Constitution, made applicable to the State of New Mexico through the Fourteenth Amendment, guarantees individuals the right to be secure in “their persons, houses, papers, and effects, against all unreasonable searches and seizures.” Mapp v. Ohio,
{8} Because a warrantless search or seizure is presumed to be unreasonable, the State has the burden of showing that the search or seizure was justified by an exception to the warrant requirement. State v. Vasquez,
{9} Full warrantless searches of persons and their clothing, incident to any lawful arrest, regardless of the circumstances leading up to the arrest, are not unreasonable. United States v. Robinson,
{10} In the instant case, Defendant asserts that the search underneath his clothing was not justified under the circumstances and was an unreasonable strip search. At the outset, we note that the United States Supreme Court has yet to address strip searches incident to an arrest. In Illinois v. Lafayette, the Court explicitly stated that “[w]e were not addressing ... and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.”
{11} The First Circuit in Blaсkburn v. Snow noted that there are generally three types of strip searches:
A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A “visual body cavity search” extends to visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities.
{12} After a review of the case law, we conclude that this is not a strip search, and how a reach-in search is categorized will not affect the analysis. The focus of our inquiry should be on whether the search was reasonable under the circumstances. The touchstone of Fourth Amendment analysis is the reasonableness of the governmental invasion of a citizen’s personal security. Terry v. Ohio,
{13} The justification for initiating the search in the instant case is inexorably tied with the scope of the intrusion as it was conducted. Accordingly, we analyze these two factors together. New Mexico courts have previously held that an officer needs no reason to conduct a search incident to an arrest. Rowell,
Strip searches of arrestees charged with misdemeanors or other minor offenses violate the Fourth Amendment of the United States Constitution unless there is a reasonable suspicion that the arrestee is concealing weapons or contraband based on the crime charged, the particular characteristics of the arrestee, or the circumstances of the arrest.
{14} In the instant case, Defendant asserts that “Officer Simbala lacked any reasonable suspicion that [Defendant] was concealing evidence underneath his clothing and therefore lacked any justification” for the search. We do not agree. “Reasonable suspicion must be based on specific articulable facts and the rational inferences that may be drawn from those facts.” State v. Duran,
{15} Defendant also argues that the area searched was not within his immediate control and that once he was placed in handcuffs the situation was neutralized and there was no need for thе search. However, the potential for the destruction of evidence may be diminished when an individual is in custody, but it is not eliminated, and an officer may assume the initiative by seizing contraband that an individual has chosen to hide in his underwear. Williams,
Our search incident to arrest exception is a rule of reasonableness anchored in the specific circumstances facing an officer [and d]eeiding whether there is a reasonable threat of a suspect being able to gain access to an area to get a weapon or evidence is the kind of decision officers are trained to make.
Rowell,
{16} We next turn to the remaining Bell factors and consider the manner and place in which the search of Defendant was conducted. Our scope of inquiry is a narrow one. Specifically, we ask whether the facts as they were established in the district court justify the search as it was conducted. Defendant argues that no measures were taken to ensure his privacy interests, and the search was done in an unreasonable public location. The record reveals that, following the traffic stop, the search took place between two ears at approximately 4:25 p.m. We note that courts have taken into consideration whether individuals had their “private areas” exposed to the public, United States v. Williams,
{17} The State argues that steps were taken to protect Defendant’s privacy. However, Defendant argues that Officer Simbala never testified that any measures were taken to ensure that the search would be out of the view of passing cars. A review of the record reveals that the issue of whether steps were taken to minimize Defendant’s exposure was never brought up at the suppression hearing. We note, howеver, that Defendant admits he was placed between two cars before the search began and testified that Officer Stephenson was not nearby when the search took place.
{18} In Lafayette, the United States Supreme Court noted that police conduct “that would be impractical or unreasonable} ]or embarrassingly intrusive} ]on the street},] can more readily} ]and privately[ ]be performed at the station. For example, the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street.”
{19} We observe that other eases have taken into consideration the specific steps officers have taken to protect a suspect’s modesty when exigent circumstances were lacking, or where exigent circumstances were weighed against the location of the search. See Williams,
{20} In this ease, we are mindful of the fact that the search was conducted in broаd daylight at rush hour on the side of a street. We cannot say that the search was not witnessed, that the officers took steps commensurate with the circumstances to diminish the potential invasion of Defendant’s privacy, or that the exigencies of the situation demanded that the search be done in the moment and fashion that it was conducted. The district court made no findings of fact regarding the location or the manner of the search, and the officer did not testify about the reasonableness of the location. From the record, it is not clear to this Court whether this intrusive and public search of Defendant was conducted in view of the public, or whether members of the public observed the search. From the tеstimony, we conclude that the facts of this case do not demonstrate the necessity for the immediate search in public under the totality of the circumstances, and the record is devoid of any exigency that would justify a search in this location. While the availability of less intrusive means does not automatically transform an otherwise reasonable search into a Fourth Amendment violation, the lack of a demonstrated exigency and the public location in broad daylight during rush hour simply does not justify the reasonableness of this search’s location or manner. Lafayette,
{21} In this case, it is not clear that the district court even considered the reasonableness of the location, or the manner in which the search was conducted. There is no evidence in the record regarding whether (1) Defendant was standing perpendicular or parallel to traffic, (2) traffic was at a gridlock or passing by at a high rate of speed, or (3) there were pedestrians in the vicinity. The only evidence regarding details of the location of the search came from Defendant, who stated that it was a busy intersection, and there were hundreds of people driving by. While we will indulge in reasonable, factual inferenсes that support the district court’s decision, the inferences in this case are not reasonable and tend to support the conclusion that passers-by witnessed this search. Whether the district court correctly applied the facts to the law is reviewed under a de novo standard. Urioste,
{22} As a final matter, we address the Dissent. The Dissent begins by questioning whether this matter was preserved. Although it is noted that the State never questioned the issue of preservation in its answer brief, and it is generally not appropriate for this Court to raise preservation sua sponte, the Dissent nevertheless concludes that we should be hesitant to make new law on a less than “fully developed” record. We make several observations about this.
{23} First, it would appear from the record that Defendant believed that this particular search violated his rights and that his counsel disagreed. The record reveals that Defendant filed a pro se motion for new counsel and, at the heаring on that motion, the point of contention was that Defendant thought his counsel should file a motion to suppress because the search was an unreasonable strip search, and his counsel thought otherwise. His counsel stated that she thought the search was a standard search incident to arrest, and there was no merit in a suppression motion. In his own defense, Defendant stated to the court:
[My attorney] wants me to believe by me having a warrant that I don’t have any rights and that the officer had the right to open my pants and go through my underwear and put his hand down in my private areas searching for contraband in front of hundreds of people. That’s not a reasonable search and what an unreasonable search produces doesn’t make it reasonable.
So I’m not arguing that he didn’t have a right to search me. He can search me, but he can’t open up my clothes and go inside my private areas for contraband and do a strip search on a city street corner. And that’s the difference between me and [my attorney].
{24} At the end of the hearing, the court allowed substitute counsel. Several months later, Defendant’s new counsel filed a motion to suppress that was written by Defendant acting pro se. The clearly worded motion expressed the substance of Defendant’s argument — that a public strip search is unreasonable. We also note that the State filed a response to Defendant’s pro se motiоn to suppress, in which the State argued directly on point that the search was made pursuant to a lawful arrest. All parties should have been aware that the heart of the motion to suppress was the extent to which the officer conducted his search, and the extent to which such a search was reasonable in public.
{25} On appeal to this Court, one of Defendant’s contentions is that he received ineffective assistance of counsel. His claims include that his attorney failed to file a motion on his behalf, which forced Defendant to file his own pro se motion; and that his attorney failed to argue the substance of his motion at the suppression hearing. Because we conclude that the issuе was clearly preserved and dispositive, we have declined to reach the ineffective assistance of counsel claim.
{26} To the extent that the Dissent argues that the record is deficient and this Court should therefore not address the issue, we disagree. The burden is on the State to make a sufficient record. A defendant should not be required to spot the issues, file the motions, and direct arguments of counsel. The lack of any development is testament to the State’s failure.
{27} Next, the Dissent points out that the officer had reasonable suspicion to look in Defendant’s pants; a point with which we agree. However, the officer testified that the search into Defendant’s pants occurred after the рat-down and that the pat-down did not reveal anything that led the officer to believe that he had a “weapon of any kind.” The facts as established do not demonstrate a showing of exigent circumstances sufficient to justify searching Defendant in the intrusive and public manner that occurred. No facts were established by the State that Defendant was suspected of having a weapon after the patdown, or that he had attempted to destroy evidence. We therefore cannot hold that the mere suspicion of possession of contraband, without more, is sufficient to create exigency that would allow public searches of this nature.
III. CONCLUSION
{28} For the reasons stated above, we reverse the district сourt’s denial to suppress and remand for further proceedings consistent with this Opinion.
{29} IT IS SO ORDERED.
Dissenting Opinion
dissenting.
{30} I do not agree that the district court’s denial of Defendant’s suppression motion should be reversed. I do not think that Defendant adequately preserved his argument that the circumstances of the search were unreasonable. In addition, even if Defendant had properly preserved his chailenge, I would conclude that the search as undertaken struck the appropriate balance between Defendant’s privacy interests and the public’s interest in safety and the preservation of evidence.
{31} The transcript of the suppression hearing establishes that the litigants and the district court did not focus on the reasonаbleness of the search. Instead, the testimony and counsel’s arguments surrounded the validity of the traffic stop. The testimony comprises forty-three pages of the transcript, and of those forty-three pages, only seven pages contain testimony regarding the circumstances surrounding the search. Defense counsel’s closing argument comprises almost three pages of the transcript, yet the only argument made regarding the search consisted of the following sentences: “The search, itself},] was overly intrusive____ [T]here was no reason for him to put his hand down [Defendant’s] pants, and fumble around his private areas looking for drugs.” Defense counsel made no argument at all about the area where the searсh took place, and he certainly did not contend that the officers failed to take reasonable steps to protect Defendant’s privacy. Defense counsel did not cite a single case on the issue of strip searches or reach-in searches.
{32} Generally speaking, I do not think it is appropriate for this Court to raise lack of preservation on our own initiative because I view that to be the responsibility of the appellee, and the State does not raise this issue in this case. However, on a record as deficient as this one, I believe we should be reluctant to establish the constraints on the police officer’s conduct that the majority has adopted. This is an issuе of first impression in New Mexico jurisprudence, and I think we should make new law only on the basis of a fully developed record.
{33} That being said, even if Defendant’s offhand argument below could be deemed adequate preservation, I would conclude that the search was reasonable under the circumstances. The testimony of the only witness found to be credible, Officer Simbala, established reasonable suspicion (acknowledged by the majority) that Defendant may have concealed a weapon or contraband in his pants. Defendant was placed between the police car and Defendant’s vehicle, and Officer Simbala then pulled the waistband of Defendant’s pants out — not down. Defendant himself acknowledged that only he and Officer Simbala could see Defendant’s genitals. Upon seeing the baggy in Defendant’s underwear, Officer Simbala reached in with a gloved hand and removed the baggy. Given the possibility that Defendant might have concealed a gun in his pants, it was reasonable for Officer Simbala to find and remove the concealed item immediately after he arrested Defendant and certainly before attempting to transport Defendant in the patrol car. See Rowell,