The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

ANNOTATIONS

Cross references. — See Kearny Bill of Rights, cl. 11, on NMOneSource.com.

For issuance, contents, execution and return of arrest warrant in district court, see Rules 5-208 and 5-210 NMRA.

For issuance, contents, execution and return of search warrants in district court see Rule 5-211 NMRA.

For issuance, contents, execution and return of arrest warrant in magistrate court, see Rules 6-203 and 6-206 NMRA.

For issuance, contents, execution and return of search warrant in magistrate court, see Rule 6-208 NMRA.

For issuance, contents, execution and return of arrest warrant in metropolitan court, see Rules 7-204 and 7-206 NMRA.

For issuance, contents, execution and return of search warrant in metropolitan court, see Rule 7-208 NMRA.

For issuance, contents, execution and return of arrest warrant in municipal court, see Rule 8-205 NMRA.

For issuance, contents, execution and return of search warrant in municipal court see Rule 8-207 NMRA.

Comparable provisions. — Idaho Const., art. I, § 17.

Iowa Const., art. I, § 8.

Montana Const., art. II, § 11.

Utah Const., art. I, § 14.

Wyoming Const., art. I, § 4.

I. GENERAL CONSIDERATION.

A. IN GENERAL.

Exceptions to the warrant requirement. — In the absence of a search warrant, a search must find its justification in one of the exceptions to the warrant requirement, namely plain view, probable cause plus exigent circumstances, search incident to arrest, consent, inventory and hot pursuit. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824.

"Good faith" exception invalid. — Evidence obtained by virtue of an invalid search warrant is not admissible under the exclusionary rule's "good faith" exception as articulated by the United States supreme court in United States v. Leon, since the good-faith exception is incompatible with the guarantees of the New Mexico constitution that prohibit unreasonable searches and seizures and that mandate the issuance of search warrants only upon probable cause. State v. Gutierrez, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052.

State and federal clauses compared. — The protections afforded under this section are more extensive than those under the fourth amendment of the United States constitution. In re Shon Daniel K., 1998-NMCA-069, 125 N.M. 219, 959 P.2d 553, cert. denied, 125 N.M. 147, 958 P.2d 105.

The fourth amendment does not protect personal bank records shared with a bank. — A person has no legitimate expectation of privacy under the fourth amendment in bank records which consist of information voluntarily shared with third parties. State v. Adame, 2020-NMSC-015.

Article II, Section 10 does not provide greater protection of privacy than the fourth amendment for bank records voluntarily shared with a bank. — Article II, Section 10 does not provide greater privacy protection than the fourth amendment for bank records that have been voluntarily shared with banks, because the federal analysis is not flawed and distinctive state characteristics do not support departure from federal jurisprudence. This section does not recognize a reasonable expectation of privacy in banking records that have been shared with banks, because a person generally has no legitimate expectation of privacy in information shared with third parties. State v. Adame, 2020-NMSC-015.

Where federal and state law enforcement suspected that defendants were involved in drug trafficking, and as part of the investigation, a federal grand jury issued subpoenas for and obtained defendants' personal banking records, and a state grand jury later issued two subpoenas for defendants' records at two banks, the district court did not err in denying defendants' motion to suppress the financial records obtained from their banks, because the bank records contained information exposed to bank employees in the ordinary course of business, and defendants, by sharing their bank records with their banks, did not exhibit an actual expectation of privacy. State v. Adame, 2020-NMSC-015.

Preservation of constitutional argument. — To preserve a state constitutional argument pursuant to Article II, Section 10, the party need not cite specific cases in support of a constitutional principle, so long as the party asserted the principle recognized in the cases and has developed the facts adequately to give the opposing party an opportunity to respond and to give the court an opportunity to rule on the issue, because a plethora of precedent already interprets Article II, Section 10 more expansively than the Fourth Amendment. State v. Bell, 2015-NMCA-028, cert. denied, 2014-NMCERT-012.

In DWI trial, defendant’s assertions that the officer that made the traffic stop lacked reasonable suspicion to conduct an investigation beyond the traffic infraction, together with defendant’s argument that the facts known to the officer were insufficient to justify prolonging the traffic stop for purposes of a DWI investigation, were sufficient to alert the trial court to the constitutional issue and to trigger protections pursuant to Article II, Section 10 of the New Mexico Constitution, and therefore defendant’s state constitutional argument was sufficiently preserved. State v. Bell, 2015-NMCA-028, cert. denied, 2014-NMCERT-012.

State constitutional claim not preserved. — Where defendant, who was a passenger in a vehicle that was involved in a crash, was arrested after defendant fled from the vehicle after the crash; defendant was handcuffed and arrested by a police officer who pursued defendant; after defendant was arrested, the officer saw defendant reach into his pocket and toss a piece of cardboard onto the ground; the cardboard contained methamphetamine; and in defendant’s motion to suppress the evidence, defendant made only a broad statement about the New Mexico constitution providing greater protection than the United States constitution and did not refer to any particular constitutional provision or principle or provide reasons for interpreting any provision in the New Mexico constitution differently from its federal counterpart, defendant failed to preserve the argument that the New Mexico constitution provides more protection than the United States constitution to a passenger of a vehicle who decides to run after the vehicle is involved in a crash. State v. Maez, 2009-NMCA-108, 147 N.M. 91, 217 P.3d 104, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940, rev'g 2007-NMCA-006, 140 N.M. 864, 149 P.3d 961.

A claim that an investigatory vehicle stop violated this section was not preserved where the court of appeals decided the case under the fourth amendment to the federal constitution and did not adequately articulate an interstitial analysis, as required by New Mexico law to support an independent claim under the state constitution. State v. Vandenberg, 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19, rev’g 2002-NMCA-066, 132 N.M. 354, 48 P.3d 92.

Not applicable to private intrusions. — The provisions of this section do not apply to intrusions by private persons. State v. Johnston, 1989-NMCA-063, 108 N.M. 778, 779 P.2d 556, cert. denied, 108 N.M. 771, 779 P.2d 549.

Statutory provisions read in pari materia. — This section and statutory provisions relative to issuance of warrants and verification of information are to be considered in pari materia. State v. Trujillo, 1928-NMSC-016, 33 N.M. 370, 266 P. 922 (1928).

The standard for a seizure under Article II, Section 10 of the New Mexico constitution is whether a reasonable person would feel free to leave. State v. Garcia, 2009-NMSC-046, 147 N.M. 134, 217 P.3d 1032, rev'g 2008-NMCA-044, 143 N.M. 765, 182 P.3d 146.

New Mexico standard of seizure. — Where a police officer, who was responding to a domestic call to remove a person from the callers’ home, saw defendant walking across the street in the vicinity of the callers’ home; the officer was not acquainted with the defendant and had no information that defendant was the person to whom the caller was referring; the officer stopped the officer’s marked patrol vehicle in the intersection near defendant, shone a light on defendant and told defendant to stop; defendant did not stop; defendant appeared to be fumbling with something in his pocket, and the officer feared that defendant had a weapon; the officer pulled the officer’s gun and ordered defendant to stop; the defendant did not stop and the officer sprayed defendant with pepper spray; and the officer saw something fall from defendant’s pocket and the officer then tackled defendant, defendant was seized under the standard of Article II, Section 10 of the New Mexico constitution when the officer stopped his patrol car in the intersection, shone the light on defendant and told defendant to stop. State v. Garcia, 2009-NMSC-046, 147 N.M. 134, 217 P.3d 1032.

Search and seizure is constitutionally lawful under either of three instances: if conducted pursuant to a legal search warrant, by consent or incident to a lawful arrest. State v. Sedillo, 1968-NMCA-035, 79 N.M. 289, 442 P.2d 601.

A search and seizure may be by consent, as an incident to a lawful arrest or pursuant to a legal search warrant. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

A search and seizure may be by consent as an incident to a lawful arrest or pursuant to a legal search warrant. State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890.

Reasonableness is the touchstone of any search. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851.

If a search and seizure is reasonable, as that term is defined and understood, it will not violate the constitutional mandate, but reasonableness must be determined by the facts and circumstances of each case. State v. Kennedy, 1969-NMCA-022, 80 N.M. 152, 452 P.2d 486.

The reasonableness of the search depends on the facts and circumstances of each case. State v. Sedillo, 1968-NMCA-035, 79 N.M. 289, 442 P.2d 601.

Whether the search and seizure was reasonable must be determined on the basis of the facts of the case. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

The standard by which all search and seizure cases are to be determined is reasonableness. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev’d in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971.

The reasonableness of each search and seizure is to be decided upon its own facts and circumstances in light of general standards. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev’d, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

Unreasonable search. — An unreasonable search and seizure cannot be made reasonable by what is discovered. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

United States Const., amend. IV, by its words, protects only against unreasonable searches and seizures, and what is reasonable depends upon the facts and circumstances of each case. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Probation revocation hearings. — The exclusionary rule of this section applies in probation revocation hearings. State v. Marquart, 1997-NMCA-090, 123 N.M. 809, 945 P.2d 1027, cert. denied, 123 N.M. 626, 944 P.2d 274.

Applicability to juvenile proceedings. — United States Const., amend. IV, has been expressly applied to juvenile proceedings in this state by former 32-1-27 NMSA 1978. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Where a search is sought to be justified on either of two grounds and the search is lawful under one of the asserted grounds, the search does not become unlawful because not sustainable under the other asserted ground. State v. Sedillo, 1968-NMCA-035, 79 N.M. 289, 442 P.2d 601.

Plea of guilty. — Irregularities in connection with defendant's arrest and detention cannot be raised after the entry of a voluntary plea of guilty. State v. Marquez, 1968-NMSC-046, 79 N.M. 6, 438 P.2d 890.

Distinction and instrumentalities. — Nothing in the language of the fourth amendment supports the distinction between "mere evidence" and instrumentalities, fruits of crime or contraband. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit or contraband. State v. Williamson, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968).

No good faith exception to exclusionary rule. — There is no good faith exception to the exclusionary rule under this section. State v. Gutierrez, 1991-NMCA-059, 112 N.M. 774, 819 P.2d 1332, aff'd, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052.

Exclusionary rule not applicable. — Even if officers violated the rights of defendant and his family by entering their apartment without a warrant, the exclusionary rule does not foreclose the use of evidence obtained by the officers of defendant’s actions attacking the officers within the apartment. State v. Traverson B., 2006-NMCA-146, 140 N.M. 783, 149 P.3d 99, cert. denied, 2006-NMCERT-011, 140 N.M. 845, 149 P.3d 942.

Serial number check of lawfully seized weapon. — Where police officer was legally in possession of a gun, running a search on the serial number was not an additional intrusion under the U.S. constitution because defendant no longer had a reasonable expectation of privacy in the weapon and the N.M. constitution does not provide him with more protection than does the U.S. constitution in connection with serial number checks of lawfully seized objects. State v. Gutierrez, 2004-NMCA-081, 136 N.M. 18, 94 P.3d 18, cert. denied, 2004-NMCERT-006, 135 N.M. 788, 93 P.3d 1293.

Remedies of persons aggrieved by unlawful search and seizure. — A person aggrieved by an unlawful search and seizure may move for the return of the property and to suppress the use of evidence so obtained on the ground that the property seized is not that described in the warrant. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, cert. denied, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970), overruled by State v. Gunzelman, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55.

Denial of motion to suppress. — In viewing the facts to determine the propriety of denying a motion to suppress, controverted questions of fact will not be resolved, but the facts found by the trial court will be weighed against the standards of reasonableness. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Defendants were prejudiced by the unconstitutional denial of a hearing on their motion to suppress when the trial court refused to guarantee that none of the testimony elicited from them therein would be admitted at their subsequent trial; a defendant cannot be required to elect between a valid fourth amendment claim or, in legal effect, a waiver of his fifth amendment privilege against self-incrimination. State v. Volkman, 1974-NMCA-079, 86 N.M. 529, 525 P.2d 889, superceded by rule, State v. Roybal, 1992-NMCA-114, 115 N.M. 27, 846 P.2d 333.

Consideration of suppression issue following second appeal. — The law of the case doctrine leaves considerable discretion to appellate courts to interpret what, precisely, the law of the case is; application of the doctrine is a matter of discretion and it is not an inflexible rule of jurisdiction. State v. Martinez, 2015-NMCA-013.

When the trial court’s decision to suppress evidence obtained during an illegal search was affirmed by the court of appeals, the law of the case doctrine did not bar, on a motion for reconsideration, the district court from considering the state’s motion that was based on a new argument and new authority. State v. Martinez, 2015-NMCA-013.

Police officers cannot just ask anyone for permission to search his effects. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971.

The facts to be examined on appeal are those facts elicited before the trial court on the hearing on the motion to suppress. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

B. STANDING TO CHALLENGE SEARCH AND SEIZURE.

Defendant was not the owner or a guest in a house where defendant was searched and seized. — Where police, who were looking for an intoxicated driver, found defendant’s car, which matched the description of the car of the intoxicated driver, parked in front of a house; the police entered the house, found defendant sleeping on a couch, and administered field sobriety tests and a breath test which indicated that defendant was intoxicated; defendant was arrested for aggravated DWI; and defendant was not the owner of the house or a guest and did not have permission to be in the house, the police entry into the other person’s house did not violate defendant’s own reasonable expectation of privacy in the house and defendant did not have standing to suppress the evidence obtained as a result of defendant's warrantless arrest in the other person’s house. State v. Crocco, 2014-NMSC-016, rev'g 2013-NMCA-033, 296 P.3d 1224.

Seizure of evidence related to pretextual stop of an automobile. — Where police officers, who were monitoring drug activity at a motel and who were under orders to stop every vehicle leaving the motel, followed a vehicle in which defendant’s co-conspirator was a passenger looking for probable cause to stop the vehicle; the officers stopped the vehicle for failure to use a turn signal; the co-conspirator left the vehicle and went to a motel room; the co-conspirator returned to the vehicle with methamphetamine and told the officers that the co-conspirator had purchased the methamphetamine from defendant earlier in the day at defendant’s motel room; no evidence was seized from the vehicle; and defendant had no possessory interest in the vehicle, was not riding in the vehicle, was not present at the scene of the stop, and played no role in the stop and seizure of the evidence from the co-conspirator, defendant did not have standing to argue a motion to suppress evidence that resulted from the pretextual stop of the vehicle. State v. Silvas, 2013-NMCA-093, cert. granted, 2013-NMCERT-009.

C. STATE ACTION.

Standing to challenge search and seizure. — Where an undercover police officer entered an apartment that defendant occupied to buy cocaine; after the officer completed the transaction, the officer signaled surveillance officers who entered the apartment and detained the occupants outside the apartment; the officer saw defendant trying to hide something in the top part of a closet; the officers found the drug buy-money in the crawl space above the closet; and defendant testified that he had been staying in the apartment for three weeks, slept in the apartment, used the kitchen and bathroom, kept clothes and hygiene items in a bedroom, and paid another person, who stayed in the apartment and paid the rent, $50 per week, defendant had an expectation of privacy in the apartment and in the drug buy-money and standing to seek suppression of the drug buy-money evidence. State v. Sublet, 2011-NMCA-075, 150 N.M. 378, 258 P.3d 1170.

Where police officers seized a digital camera pursuant to a search of defendant’s home; defendant testified that defendant and the co-defendant had purchased the camera at a Wal-Mart for the two of them using a credit card and that defendant paid the co-defendant cash to cover the purchase; and the state’s evidence showed that during the search, the officers found several credit cards that did not belong to the co-defendant, that one credit card, which belonged to a victim of identity theft, listed the co-defendant as the card holder, that the co-defendant had used the fraudulent credit card to purchase a memory stick for the camera at an Office Max store, and that the camera had been distributed by an Office Max store in Las Vegas, Nevada, the district court could conclude that the camera had been lawfully purchased and that defendant had standing to challenge the seizure of the camera. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, rev’d, 2013-NMSC-025, 303 P.3d 838.

Purse. — Society recognizes a reasonable expectation of privacy in an individual’s purse and defendant, who had not disclaimed or abandoned ownership of defendant’s purse, had standing to challenge the search of the purse. State v. Bond, 2011-NMCA-036, 150 N.M. 451, 261 P.3d 599.

Motel room. — Defendant had standing to challenge a search as violative of the federal and state constitutions where defendant's testimony established that he had an actual and subjective expectation of privacy in a motel room. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, cert. quashed, 2005-NMCERT-012.

Right of privacy must be invaded. — Constitutional provisions prohibiting unreasonable searches and seizures are personal rights, and they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. To have standing one must be the victim of the search in the sense that one's right of privacy was invaded. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Evidence must be an element of the offense. — Defendant had no standing to exclude evidence on grounds of unreasonable search where the evidence seized was not an essential element of any of the offenses with which defendant was charged, and where defendant never claimed a connection with any of the seized evidence - either at the suppression hearing or at trial. State v. Ellis, 1975-NMCA-076, 88 N.M. 90, 537 P.2d 698, overruled on other grounds by State v. Espinosa, 1988-NMSC-050, 107 N.M. 293, 756 P.2d 573.

Where a U-Haul dealer stated that he was holding a van leased by defendant until paid what was owing and if defendant did not pay he was going to keep the contents of the van, and he was waiting for the money owing at the time of the inventory search, this recognition of defendant's right to the vehicle by the U-Haul representative was sufficient to give defendant standing to object to an inventory search and seizure. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851.

Possession of the evidence is required. — All that is necessary to give a defendant standing to challenge search and seizure is "possession" of the seized evidence which is itself an essential element of the offense with which the defendant is charged. State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885, overruled by State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004.

Owner of a house. — Arrestee's spouse, co-owner of home, present at time of husband's invalid arrest, had a reasonable expectation of privacy in the couple's home and was entitled to summary judgment on a claim under this section. Montes v. Gallegos, 812 F. Supp. 1165 (D.N.M. 1992).

Expectation of privacy of a visitor. — Since the defendant, by permission of the owner, was in the bedroom of a residence with the door closed, she had a reasonable expectation of privacy. State v. Wright, 1995-NMCA-016, 119 N.M. 559, 893 P.2d 455, cert. denied, 119 N.M. 389, 890 P.2d 1321.

To establish his standing to challenge a search and seizure, a visitor must show subjectively, by his conduct, that he had an expectation of privacy, and objectively that his expectation was reasonable; defendant did not make any specific showing concerning his expectation of privacy where he was among a group of people in the living room in the presence of marijuana. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Evidence taken from a vehicle. — Where a car that was searched and from which evidence was seized did not belong to defendant nor did the record show that he claimed any possessory interest in the car, the fact that the car was parked on defendant's property when it was searched did not give defendant standing to challenge the search and seizure. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Argument that since defendant did not own but only rented a car that was searched, he did not have standing to question the validity of the application for the search warrant, where there was no question that defendant was one against whom the search was directed, was without merit. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Evidence taken from a vehicle. — Even though the defendant did not own the vehicle and was not an occupant at the time of the search, she had standing to challenge a search by virtue of her status as a permissive user who had an ongoing relationship with the owner through which she exerted control over both the vehicle and its contents. State v. Leyba, 1997-NMCA-023, 123 N.M. 159, 935 P.2d 1171.

Detention by a police service aide is state action. — Where defendant was detained and handcuffed by a police service aide pending the arrival of police officers to investigate defendant’s involvement in a rear-end accident; the police service aide was employed by the police department as a non-commissioned officer to do some of the same work that a certified officer would do, including investigating traffic accidents and crime scenes; and the police service aide wore a uniform and drove a marked patrol car, the police service aide’s actions were state actions because the police service aide was acting as the agent of the police department when the police service aide detained defendant. State v. Slayton, 2009-NMSC-054, 147 N.M. 340, 223 P.3d 337.

Probation search in aid of police investigation is unlawful. — The authority of probation officers to conduct searches and seizures upon probationers without a warrant may not be used as a proxy or surrogate for police investigations. When police participate in searches with probation officers, the courts must determine that the probation officers acted independently. The decisive inquiry is whether the probation officers acted with a probationary purpose. State v. Bolin, 2010-NMCA-066, 148 N.M. 489, 238 P.3d 363, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

Where defendant was on probation; police officers wanted to execute a warrant on a third person in an ongoing narcotics investigation; the police officers had information that defendant and the third person had been seen together and speculated that the third person might be at defendant’s home; the police officers asked defendant’s probation officers to assist the police officers; the police officers and the probation officers went to defendant’s home; defendant informed the police officers that the third person was not at defendant’s home; defendant’s physical appearance indicated to the police officers and the probation officers that defendant was using drugs; defendant admitted to taking drugs the previous evening; defendant tested positive to a drug test administered by the probation officers; the police officers held defendant in custody and interrogated defendant about the third person and about whether defendant had been dealing in drugs; the probation officers conducted a search of defendant’s immediate area and found contraband items; the police officers then halted the search to obtain a search warrant; when the search warrant was approved, the police officers conducted a second search that revealed additional contraband; and the district court found that the only reason the police officers were at defendant’s home was to find the third person, and the only reason the probation officers were at defendant’s home was to aid the police investigation, the searches were not conducted for a probationary purpose, the police officers improperly used the probation officers to search defendant’s home to effectuate their narcotics investigation, and the district court properly suppressed all evidence produced after defendant informed the officers that the third person was not at defendant’s home. State v. Bolin, 2010-NMCA-066, 148 N.M. 489, 238 P.3d 363, cert. denied, 2010-NMCERT-006, 148 N.M. 583, 241 P.3d 181.

Indian tribal law. — Because there is nothing in either the Zuni constitution or the Zuni tribal law and order code which authorizes the Zuni tribal court to issue a search warrant, the evidence seized from a house on the Zuni reservation pursuant to such a warrant is inadmissible at trial in a New Mexico court, and the motion to suppress the evidence obtained during the search should have been granted. State v. Railey, 1975-NMCA-019, 87 N.M. 275, 532 P.2d 204.

Questioning by school official is state action. — Questioning of a 13-year-old student by his assistant principal in an empty classroom in the presence of a teacher is "state action," rendering U.S. Const., amend. IV, applicable through amend. XIV. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Agency test to determine state action. — To determine whether a private person is acting as an agent or instrumentality of the government in conducting a search, the court must determine both that the government knew of and acquiesced in the intrusive conduct, and that the party performing the search intended to assist law enforcement efforts. State v. Santiago, 2009-NMSC-045, 147 N.M. 76, 217 P.3d 89, rev'g 2008-NMCA-041, 143 N.M. 756, 182 P.3d 137.

Search by private security guards was not state action under the agency test. — Where defendant was involved in a verbal altercation at a shopping mall, private security guards that were employed by the mall responded to the fight and attempted to stop defendant as defendant was leaving the mall; a security guard stopped and handcuffed defendant; the security guards searched defendant and discovered a pill bottle containing baggies of white powder; after the security guards subdued and searched defendant, police officers arrived at the scene and took defendant into custody; the officers tested the white powder and confirmed that it was cocaine; the security guards were employed by a private security company and were not also police officers; the police were not present during or before and did not request or otherwise participate in the search, the evidence did not support a finding that the security guards were the agents of the government in conducting the search and the fourth amendment did not apply to the search. State v. Santiago, 2009-NMSC-045, 147 N.M. 76, 217 P.3d 89, rev'g 2008-NMCA-041, 143 N.M. 756, 182 P.3d 137.

II. UNREASONABLE SEARCHES AND SEIZURES.

A. IN GENERAL.

Parole search. — The fourth amendment does not prohibit parole searches that are based on reasonable suspicion of a parole violation. State v. Benavidez, 2010-NMCA-035, 148 N.M. 190, 231 P.3d 1132, cert. denied, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15.

Where defendant’s parole officer observed defendant driving a car; a short time later, the parole officer went to defendant’s house to conduct a routine visit; when the parole officer arrived at defendant’s house, the parole officer saw the same car that defendant had been driving earlier; the parole officer knocked on the door and announced the parole officer’s presence but received no response; the parole officer noticed curtains and blinds moving in the room that the parole officer knew to be defendant’s room; the parole officer called for police backup and continued to knock and announce for twenty minutes; when the police arrived, the parole officer kicked in the door; the parole officer found defendant under a bed in defendant’s room; defendant stated that defendant was hiding because defendant had missed a parole meeting; after defendant was taken outside the house, the parole officer continued to search the house; and the parole officer found methamphetamine in defendant’s room, the search and seizure of the drug evidence did not violate defendant’s fourth amendment rights because the parole officer had reasonable suspicion to believe that defendant had violated the conditions of defendant’s parole, which required defendant to promptly respond to the parole officer’s knock on the door, and because defendant’s odd behavior reasonably led the parole officer to believe that defendant possessed contraband or had violated parole in some other way. State v. Benavidez, 2010-NMCA-035, 148 N.M. 190, 231 P.3d 1132, cert. denied, 2010-NMCERT-003, 148 N.M. 560, 240 P.3d 15.

Warrantless probation searches must be supported by reasonable suspicion as defined in New Mexico law to be an awareness of specific articulable facts, judged objectively, that would lead a reasonable person to believe criminal activity occurred or was occurring. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

The state constitution is not construed to require any higher degree of probability than reasonable suspicion as long as the suspected probation violation on which a warrantless search is based is reasonably related to the probationer’s rehabilitation or to community service. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

Warrantless search without seizure of evidence. — Where police officers, who were monitoring drug activity at a motel, stopped a vehicle in which defendant’s co-conspirator was a passenger; the co-conspirator left the vehicle, entered a motel room, returned to the vehicle with methamphetamine, and told the officers that the co-conspirator had purchased the methamphetamine from defendant earlier in the day at defendant’s motel room; and the officers forced their way into defendant’s motel room without a search warrant while defendant was away from the room; no evidence was seized during the search of the motel room, defendant did not suffer any prejudice as a result of the warrantless search of the motel room and the district court did not err in denying defendant’s motion to suppress evidence seized during the police investigation. State v. Silvas, 2013-NMCA-093, cert. granted, 2013-NMCERT-009.

Protective search was not necessary. — Where an undercover police officer entered an apartment that defendant occupied to buy cocaine; after the officer completed the transaction, the officer signaled surveillance officers who entered the apartment; the officer saw defendant trying to hide something in the top part of a closet; the undercover officer was the only officer who knew that defendant tried to stash something in the closet and the officer could not see what defendant was trying to stash; the occupants were handcuffed and detained outside the apartment; the officers reentered the apartment without a warrant to search the closet; the officers found a hole in the ceiling of the closet and the drug buy-money in the crawl space above the closet; there was no evidence that defendant had abandoned the drug buy-money; the drug buy-money was not in plain view; and because the occupants were detained outside the apartment, there was no exigency facing the officers or necessity to conduct a protective sweep, the search was unlawful. State v. Sublet, 2011-NMCA-075, 150 N.M. 378, 258 P.3d 1170.

Consensual encounter transformed into a criminal investigation. — Where a police officer observed defendant running though a back parking lot of a motel late at night; defendant did not have a shirt on and defendant’s hand appeared to be bleeding; defendant walked past the officer’s car; the officer drove around the motel and observed defendant running across the parking lot of a closed business; the officer stopped and questioned defendant; the officer asked defendant for identification to determine if defendant was involved in a domestic disturbance or fight at the motel; the officer asked dispatch to run a local check on defendant; when the officer asked defendant how defendant had cut defendant’s hand, defendant responded the defendant’s hand had been cut on a light bulb; the officer knew that people who smoke methamphetamine use light bulbs to ingest the drug; when dispatch reported that defendant had an outstanding warrant for his arrest, the officer placed defendant under arrest; the officer then searched defendant and found methamphetamine on defendant’s person; and during the entire time up to defendant’s arrest, the officer failed to inquire regarding defendant’s physical or mental condition or to act in a way that indicated any concern for defendant’s welfare, any consensual encounter that existed ceased and was transformed into a criminal investigation when the officer requested and obtained defendant’s identification and the evidence should have been suppressed. State v. Montano, 2009-NMCA-130, 147 N.M. 379, 223 P.3d 376.

Motion to suppress properly denied where initial contact with defendant was consensual. — Where defendant was charged with driving while intoxicated (DWI) and driving on a revoked license after a law enforcement officer approached defendant's vehicle, which was parked at a city park after the park's official closing time, and tapped on the window of defendant's vehicle as defendant started to drive away, and where defendant stopped and rolled down her window, whereupon the officer quickly detected a strong odor of alcohol which led to a DWI investigation and defendant's eventual arrest, the district court did not err in denying defendant's motion to suppress evidence of DWI, because the police officer's initial contact with defendant was consensual, and therefore there was no seizure at the time defendant rolled down her window and the officer observed a strong odor of alcohol emanating from inside the vehicle. State v. Simpson, 2019-NMCA-029, cert. denied.

Proximity to criminal activity in conjunction with all the surrounding circumstances gave rise to reasonable suspicion. — Where law enforcement officer, while on patrol in his marked vehicle, at 1:00 a.m. on a cold January morning, observed at least two individuals appearing to dump a large piece of trash from the back of a truck in an empty lot that was known for this type of criminal activity, and where the officer turned around and drove toward the empty lot and found that the truck was gone but that defendant was there walking a bicycle, and where the officer, without activating his patrol lights or telling defendant to stop, approached defendant and asked him about the activity in the lot, and where defendant admitted to dumping trash there, and where, after obtaining defendant's name and date of birth, the officer learned of an outstanding warrant for defendant's arrest, and where, upon defendant's arrest, methamphetamine and drug paraphernalia were found on defendant's person, and where defendant moved to suppress both the evidence found on his person and a statement he made when officers discovered the methamphetamine, the district court did not err in denying defendant's motion to suppress, because defendant's proximity to the scene of a recent crime, in conjunction with all the surrounding circumstances including the time of day and conditions, gave rise to reasonable suspicion that defendant was involved in criminal activity. State v. Wing, 2022-NMCA-016, cert. denied.

Search of garbage bags in a motel dumpster. — Article II, Section 10 of the New Mexico Constitution prohibits a warrantless search of garbage left for collection in a motel dumpster. State v. Crane, 2014-NMSC-026, aff'g 2011-NMCA-061,149 N.M. 674, 254 P.3d 117.

Where a guest at a motel reported that a stong chemical odor was coming from a particular room at a motel; the police officers who were dispatched to investigate the report observed an individual leave the motel room and discard a box in the motel’s dumpster; while the officer was inspecting the box, the officer heard two more items being deposited in the dumpster; the officer retrieved the bags from the dumpster and noticed a strong chemical odor when the officer opened the bags; and the officer found evidence of methamphetamine production inside the bags, defendant had a reasonable expectation that the contents of the garbage bags that were placed in the dumpster would remain private which required the police officer to obtain a warrant before searching the garbage bags. State v. Crane, 2014-NMSC-026, aff'g 2011-NMCA-061,149 N.M. 674, 254 P.3d 117.

Where police officers were investigating suspected methamphetamine production in a motel room; an occupant of the room left the room, walked to the dumpster, and threw something in the dumpster; the officers checked the dumpster and identified two garbage bags that emanated a strong chemical odor; and without obtaining a search warrant, the officers opened and searched the bags where they found items used to manufacture methamphetamine, defendant had a reasonable expectation of privacy in the motel room and the garbage discarded from it and the warrantless search of defendant’s garbage was unreasonable under Article II, Section 10 of the New Mexico constitution. State v. Crane, 2011-NMCA-061, 149 N.M. 674, 254 P.3d 117, aff’d, 2014-NMSC-026.

Recordings of telephone calls from jail. — Where defendant made telephone calls from jail requesting that defendant’s friends be present at defendant’s trial ostensibly to influence the testimony of the state’s witnesses; and when a call was placed at the jail, a digital message informed both parties to the call that the call may be recorded and monitored, the recording of the telephone calls did not violate the prohibition against unreasonable searches and seizures. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.

Where the defendant received notice that his telephone calls from jail might be monitored or recorded before the defendant made the calls, the admission of a tape recording of the defendant’s calls made in jail do not violate the defendant’s right to be free from unreasonable searches. State v. Templeton, 2007-NMCA-108, 142 N.M. 369, 165 P.3d 1145.

Monitored telephone calls from jail. — The defendant's right to Miranda warnings was not implicated by the monitoring of his phone calls from jail because there was no evidence that he was compelled, coerced, or improperly influenced into making calls. State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 351.

Rights not violated by monitoring telephone calls. — The monitoring of the defendant's phone calls from jail did not violate his attorney-client privilege, his privilege against self-incrimination, protections against unreasonable searches and seizure, or his right of privacy. State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M. 168, 936 P.2d 337.

Search and seizure were reasonable. — Where police officers arrived at a third party’s residence to execute a search warrant which contained a no-knock provision for officer safety based on an affidavit that the property contained drugs, guns and money and that the occupant was not afraid to shoot if necessary; the officers encountered defendant who was leaving the adjacent property and entering the third party’s property to return to defendant’s vehicle; defendant was approximately twenty feet from the third party’s house; the officers ordered defendant to the ground at gun point; defendant remained unsecured on the ground for approximately fifteen minutes while the officers executed the warrant; after searching the house, one of the officers placed handcuffs on defendant and noticed a knife in defendant’s back pocket that was plainly visible; defendant gave the officer permission to search defendant for other knives; and during the search, the officer found methamphetamine on defendant, defendant’s fourth amendment rights were not violated. State v. Winton, 2010-NMCA-020, 148 N.M. 75, 229 P.3d 1247, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.

Where the child was arrested and held in detention in Nevada pursuant to a New Mexico warrant for murder; the New Mexico police told the arresting Nevada officer that the child was suspected of wearing a white pair of shoes with a circle on the bottom at the time of the murder; the Nevada officer confirmed that the description matched the shoes the child was wearing; the child’s shoes were seized when the child was booked into the detention center; and the standard detention facility’s booking procedure required the taking of a detainee’s clothes if they were determined to have evidentiary value, the shoes were admissible into evidence, because they were taken during a constitutional inventory search. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Detention of visitor for investigation. — A visitor may be detained where there is a reasonable basis to believe that the visitor is connected to the premises or to criminal activity based on the totality of the circumstances; defendant's proximity to marijuana and drug paraphernalia in the living room gave officers a reasonable basis to believe that he had a connection to the presence of the marijuana and drug paraphernalia so as to reasonably detain him as part of the investigation. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Expansion of investigation. — Although the investigation did not originally involve drugs, officers could reasonably expand the scope of the investigation based on the reasonable suspicion of criminal activity. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Search by private parties. — When the state seeks to justify a search on the basis that it was merely repeating a search previously undertaken by private parties without state involvement, the question is whether the prior search actually took place as alleged. If it did, the defendant lacked a reasonable expectation of privacy. If not, the defendant’s reasonable expectation of privacy remained intact and a subsequent search by law enforcement would not be reasonable unless a warrant was obtained or an exception to the warrant requirement was met. State v. Rivera, 2007-NMCA-104, 142 N.M. 427, 166 P.3d 488, rev'd, 2008-NMSC-056, 144 N.M. 836, 192 P.3d 1213.

Police search beyond the scope of a private search. — Under Article II, Section 10 of the New Mexico constitution, an officer may seize a package that has already been searched by a private party and turned over to the officer. Absent an exception to the warrant requirement, the officer may not exceed the scope of the private party search without a warrant. State v. Rivera, 2010-NMSC-046, 148 N.M. 659, 241 P.3d 1099, rev'g 2009-NMCA-049, 146 N.M. 194, 207 P.3d 1171.

Where a sealed package, which was shipped to defendant in Albuquerque on a commercial bus, was opened by an employee of the bus company in Denver; the package contained a tool box that held bundles wrapped in brown plastic; the employee called a DEA agent in Albuquerque who told the employee to reseal the package and ship it to Albuquerque; when the package arrived in Albuquerque, the agent and the bus station manager opened the package and found the opaque bundles in the tool box; the agent concluded, based on training and experience, that the agent had probable cause to believe that the bundles contained marijuana; and the agent cut into one of the bundles, the agent’s action in opening a bundle exceeded the scope of the private search and without a warrant violated Article II, Section 10 of the New Mexico constitution. State v. Rivera, 2010-NMSC-046, 148 N.M. 659, 241 P.3d 1099, rev'g 2009-NMCA-049, 146 N.M. 194, 207 P.3d 1171.

Officers’ search of locked safe did not exceed the scope of the search warrant. — Where law enforcement officers obtained an arrest warrant and a search warrant on defendant at his home as part of an investigation into a shooting, and where the search warrant authorized police to search defendant’s home for firearms, ammunition, weapons or tools, cell phones, illegal narcotics and paraphernalia, and where officers discovered a locked safe that, when handled, sounded like it had a metal object inside, had some weight to it, and was large enough to hold a firearm, the opening of the safe did not exceed the scope of the search warrant even though the search warrant did not specify that a lockbox or a safe was an item to be seized, because it was a container that a reasonable officer could conclude was likely to contain any number of the items described with particularity in the search warrant. State v. Cummings, 2018-NMCA-055, cert. denied.

If an individual’s expectation of privacy is breached by a private actor, then subsequent investigation by the state is not an unreasonable search or seizure under the fourth amendment, so long as the investigation does not expand upon the scope of the original breach. State v. Rivera, 2009-NMCA-049, 146 N.M. 194, 207 P.3d 1171, rev’d, 2010-NMSC-046, 148 N.M. 659, 241 P.3d 1099.

Expectation of privacy was waived. — Where defendant took defendant’s computer and hard drives to a coworker to install a software upgrade; defendant told the coworker that defendant had child pornography on one of the hard drives and asked the coworker to erase the memory; the coworker viewed the pornography and made the computer and the hard drives available to the police for viewing, defendant lost defendant’s expectation of privacy by voluntarily relinquishing possession of the computer and hard drives to the coworker and asking the coworker to destroy the child pornography stored on the hard drive and the seizure and search of the computer and hard drives, without a warrant, was reasonable and lawful under the fourteenth amendment and under Article II, Section 10 of the New Mexico constitution. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, rev’d, State v. Olsson, 2014-NMSC-012.

Patdown justified. — Where a 911 caller reported criminal activity involving the firing of weapons from two vehicles; the caller’s address was across from the area where the activity was occurring; the caller described the vehicles and gave an address where one of the drivers lived; one of the investigating officers identified defendant as one of the drivers from the address the caller gave to the 911 operator; the officer had prior dealings with defendant and knew that defendant was aggressive and anti-police; the officers located a vehicle that matched the description of one of the vehicles in the area where the caller had stated the shooting occurred; the officers approached the vehicle with weapons drawn; the officer recognized defendant as the passenger in the vehicle; and the officers ordered the driver and defendant to exit the vehicle and to keep their hands visible, the officers had a lawful basis on which to initiate their investigation and to conduct a protective patdown of defendant. State v. Johnson, 2010-NMCA-045, 148 N.M. 237, 233 P.3d 371.

Expansion of pat-down not justified. — Where a police officer was dispatched to investigate a domestic violence incident between defendant and defendant’s live-in friend; when the officer approached defendant, defendant put defendant’s hands into defendant’s pockets and refused to remove defendant’s hands; the officer conducted a pat-down search for weapons; defendant was cooperative and non-threatening during the search; the officer did not locate any weapons during the search; the officer felt a hard golf ball-size object in defendant’s pants pocket; the officer did not believe that the object felt like a knife; the officer removed the object from defendant’s pants pocket because the officer wanted to know what the object was; and the object was cocaine, the removal of the object from defendant’s pants pocket exceeded the proper scope of the pat-down search for weapons. State v. Almanzar, 2012-NMCA-111, 288 P.3d 238, cert. granted, 2012-NMCERT-011, rev'd, 2014-NMSC-001.

Pat-down not justified. — Where the sole rationale offered for the search was police officer’s testimony that he considers any person with whom he comes into contact to be an unknown threat, although this may be a prudent assumption, this assumption alone cannot justify a pat-down. State v. Boblick, 2004-NMCA-078, 135 N.M. 754, 93 P.3d 775, cert. denied, 2004-NMCERT-006, 135 N.M. 787, 93 P.3d 1292.

Where premises of disturbance resembled battle scene, numerous participants had fled scene, and those detained defendants acted aggressively, police officer's conclusion that 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, and the police officer was justified in conducting a pat down of defendant's person. State v. Sanchez, 2005-NMCA-081, 137 N.M. 759, 114 P.3d 1075, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Forcibly abandoned property. — Where defendant's abandonment of property was a direct result of an actual illegal police search, defendant did not act voluntarily in abandoning property, and the evidence must be suppressed. State v. Ingram, 1998-NMCA-177, 126 N.M. 426, 970 P.2d 1151, cert. denied, 126 N.M. 533, 972 P.2d 352.

Abandonment of duffel bag. — Where drug enforcement administration agents, who boarded a bus to investigate narcotics trafficking, had no information that there were any drugs on the bus or information that would lead them to suspect that any of its passengers were trafficking in drugs, defendant’s failure to respond to the agents’ questions to passengers about their baggage did not constitute an abandonment of defendant’s privacy interest in his duffel bag and the warrantless search of the duffel bag violated the defendant’s fourth amendment rights. State v. McNeal, 2008-NMCA-004, 143 N.M. 239, 175 P.3d 333.

No expectation of privacy. — Where defendant knew others used his bedroom in a trailer, defendant gave permission to visitors to use other rooms in the trailer, the trailer was owned by defendant's employer and used for a base of operations for a bear study; the trailer was frequently unlocked and a number of people had keys, defendant made the trailer available to acquaintances for unlimited purposes, the central part of the trailer was used for work-related activities, work-related equipment and supplies were stored in defendant's bedroom, defendant encouraged a search of the trailer for sources of the illness of the victim who shared the trailer with defendant, and defendant did not protect his privacy rights, defendant did not have an actual, subjective expectation of privacy or a reasonable subjective expectation of privacy in the bedroom and common area of the trailer. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120, cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172.

No seizure by use of pepper spray. — Where the defendant walked away and refused to comply with a police officer’s repeated attempts to detain him; the defendant was fumbling with something in his pocket; the defendant failed to comply when the police officer drew his weapon and ordered the defendant to remove his hands from his pocket; the officer sprayed the defendant with pepper spray; the defendant continued to walk away and dropped a baggie of cocaine; the officer tackled the defendant and placed him in handcuffs, the defendant was not seized before he threw away the baggie of cocaine and he voluntarily abandoned the cocaine. State v. Garcia, 2008-NMCA-044, 143 N.M. 765, 182 P.3d 146, rev'd, 2009-NMSC-046, 147 N.M. 134, 217 P.3d 1032.

Detention was not a seizure. — Detectives were discharging a legitimate investigative function when they identified themselves to defendant and asked him about items he attempted to pawn, and under circumstances where they had reports that similar items had been stolen, defendant's answers were vague, and in identifying himself he had an extra social security card bearing a name other than defendant's, detectives' questioning, request for identification, and request that defendant go to the police station to check the items attempted to be pawned did not amount to an unreasonable seizure of defendant. Therefore, the detention of defendant from the initial question until he entered the police car did not bar the admission of the evidentiary items. State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478.

Seizure occurred when officer ordered occupants out of a vehicle. — Where two police officers approached a parked car in which defendant was a passenger to see what was going on; the officers became suspicious and concerned about their safety when they noticed the driver and defendant make abrupt movements; and instead of questioning the occupants, one officer ordered the driver to open the door of the car, defendant was seized by the police when the officer ordered the driver to open the door. State v. Murry, 2014-NMCA-021.

Arrest pursuant to outstanding warrant after seizure. — Where police officers seized the defendant without reasonable suspicion of criminal activity and then discovered that there was an outstanding warrant against the defendant, the arrest of the defendant pursuant to the warrant did not justify the detention of the defendant and the district court properly suppressed evidence obtained as a result of the defendant’s detention. State v. Soto, 2008-NMCA-032, 143 N.M. 631, 179 P.3d 1239, cert. quashed, 2009-NMCERT-005, 146 N.M. 728, 24 P.3d 793.

Assistance to bail bondsman. — Absent a warrant or the existence of a recognized exception to the warrant requirement, merely accompanying a bail bondsman to apprehend a bonded accused does not automatically give police officers constitutional authority to enter private homes. State v. Gutierrez, 2008-NMCA-018, 143 N.M. 422, 176 P.3d 1154, cert. quashed, 2008-NMCERT-011, 145 N.M. 532, 202 P.3d 125.

Curfews. — Where a child was taken into custody for a curfew violation but not arrested, the fact that the ordinance mandated that the officer take the child into custody supplied the necessary justification for a pat-down search of his person; however, there were no grounds for an expanded protective search of his pockets. State v. Paul T., 1999-NMSC-037, 128 N.M. 360, 993 P.2d 74, rev'g 1997-NMCA-071, 123 N.M. 595, 943 P.2d 1048.

Presence of defendant during search. — The fact that defendant is not present when a search occurs does not make the search unreasonable. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

Where search for one thing reveals another. — Where search is for one drug and a second drug is discovered, seizure of the second drug is lawful. State v. Alderete, 1976-NMCA-001, 88 N.M. 619, 544 P.2d 1184.

Evidence discovered through legally seized camera. — Where a police officer seized a digital camera during a search of defendant’s residence for child pornography; the officer had probable cause, based on the officer’s training and experience, to believe that the camera contained child pornography; by searching the digital information in the camera, the officer discovered a witness to testify against defendant whose existence would not have known but for the search of the camera; and the district court erroneously determined that the seizure and search of the camera was not supported by probable cause and excluded the witness’ testimony under the fruit of the poisonous tree doctrine, the district court erred in excluding the witness’s testimony. State v. Gurule, 2013-NMSC-025, rev’g 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992.

Exclusion of evidence discovered through illegally seized camera. — Where police officer’s seized a digital camera during a legal search of defendant’s residence for child pornography; the officers did not have probable cause to seize the camera; by searching the digital information in the camera, the officers discovered a witness to testify against defendant; and the officers would not have known about the witness but for the illegal search of the camera, the trial court did not err in suppressing the testimony of the witness under the fruit of the poisonous tree doctrine. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, rev’d, 2013-NMSC-025.

Open fields or lots. — This section uses the word "homes", while the federal constitution uses the word "houses". The difference in wording between the federal and state constitutions is some evidence that the state constitutional provision may be interpreted as extending to open fields, providing broader protection than the federal. State v. Sutton, 1991-NMCA-073, 112 N.M. 449, 816 P.2d 518, cert. denied, 112 N.M. 308, 815 P.2d 161, modified, State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Defendant did not demonstrate a reasonable expectation of privacy in marijuana plots located more than one hundred yards from his cabin, where he placed no signs declaring the property to be private property or declaring the land to be off-limits to trespassers and did not erect any substantial fences around the plots. State v. Sutton, 1991-NMCA-073, 112 N.M. 449, 816 P.2d 518, cert. denied, 112 N.M. 308, 815 P.2d 161, modified, State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Where heroin was found in the lot next to defendant's home and was on unoccupied property, the defendant had no reasonable expectation of privacy as to this location, and thus the constitutional prohibition against unreasonable searches and seizures did not apply. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Aerial surveillance. — Where defendant's property lies within two or three miles of a municipal airport, and crop dusters fly in the area at will, the defendant had no reasonable expectation of privacy in his field to the extent of visibility from the air, and the aerial surveillance of the property did not violate defendant's fourth amendment rights. State v. Bigler, 1983-NMCA-114, 100 N.M. 515, 673 P.2d 140, cert. quashed, 100 N.M. 505, 672 P.2d 1136.

Visibility from the air. — A defendant does not have a justifiable expectation of privacy with respect to marijuana plants protruding through holes in his greenhouse roof, to the extent of their visibility from the air. State v. Rogers, 1983-NMCA-115, 100 N.M. 517, 673 P.2d 142, cert. denied, 100 N.M. 439, 671 P.2d 1150.

Aerial surveillance. — The fourth amendment affords citizens no reasonable expectation of privacy from aerial surveillance conducted in a disciplined manner such as mere observation from navigable airspace of an area left open to public view with minimal impact on the ground. When aerial surveillance, however, creates a hazard or a physical disturbance on the ground or unreasonable interference with a resident’s use of his property, such surveillance creates a physical invasion of privacy in violation of the fourth amendment and its prohibition against unreasonable searches and seizures. State v. Davis, 2015-NMSC-034, rev’g in part, aff’g in part, 2014-NMCA-042, 321 P.3d 955.

Where state police conducted a comprehensive aerial surveillance of defendant’s property and the surrounding area that allegedly discovered marijuana plants growing on defendant’s property, evidence that the helicopter used in the surveillance swooped in low enough to cause panic among the residents, caused property damage on nearby properties, produced excessive noise and kicked up dust and debris, and in the process of providing aerial protection for the officers on the ground, increased the risk of actual physical intrusion, the aerial surveillance and the manner in which it was conducted transformed the surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into defendant’s expectation of privacy and constituted an unwarranted search in violation of the fourth amendment. State v. Davis, 2015-NMSC-034, rev’g in part, aff’g in part, 2014-NMCA-042, 321 P.3d 955.

Aerial surveillance under the New Mexico Constitution. — Aerial surveillance constitutes a search under Article II, Section 10 of the New Mexico Constitution if the government agents involved intend to obtain information from a target through aerial surveillance and if the information to be obtained through aerial surveillance could not otherwise be obtained without physical intrusion into the target’s home or curtilage. If the surveillance constitutes a search, then the government agents must obtain a search warrant before conducting the surveillance, absent an exception to the warrant requirement. State v. Davis, 2014-NMCA-042, cert. granted, 2014-NMCERT-003.

Where the state police and national guard were seeking to locate marijuana plantations by aerial surveillance; a spotter in a helicopter alerted a ground team to the presence of a greenhouse and vegetation in defendant’s backyard; the officers did not have a warrant to search defendant’s property; the officers made contact with defendant and asked permission to search the residence; defendant voluntarily consented to the search; during the search, the officers found marijuana and drug paraphernalia; and the evidence indicating that defendant was growing marijuana in the greenhouse could not have been obtained without aerial surveillance unless the officers physically invaded the greenhouse, the search violated Article II, Section 10 of the New Mexico constitution because the helicopter surveillance constituted a search requiring probable cause and a warrant. State v. Davis, 2014-NMCA-042, cert. granted, 2014-NMCERT-003.

Suppression of marijuana evidence observed in shielded garden. State v. Chort, 1978-NMCA-037, 91 N.M. 584, 577 P.2d 892.

Administrative inspection of business premises. — A nonconsensual, warrantless administrative inspection of business premises can be made only when the enterprise sought to be inspected is engaged in a business pervasively regulated by state or federal government; the inspection will pose only a minimal threat to justifiable expectations of privacy; the warrantless inspection is a crucial part of a regulatory scheme designed to further an urgent government interest; and the inspection is carefully limited as to time, place and scope. Where a publishing company was not engaged in a pervasively-regulated business, and the state agency, in the absence of consent, must obtain a search warrant based upon a preliminary finding of probable cause by a judicial officer. State ex rel. Environmental Imp. Agency v. Albuquerque Publishing Co., 1977-NMSC-083, 91 N.M. 125, 571 P.2d 117, cert. denied, 435 U.S. 956, 98 S. Ct. 1590, 55 L. Ed. 2d 808 (1978).

Where officers followed building owner into defendant's room after owner knocked on the door and was invited in, such entry is not constitutionally unreasonable even where defendant did not know of the presence of the officers when he gave the invitation to enter. State v. Chavez, 1974-NMCA-148, 87 N.M. 180, 531 P.2d 603, cert. denied, 87 N.M. 179, 531 P.2d 602 (1975), cert. denied, 422 U.S. 1011, 95 S. Ct. 2635, 45 L. Ed. 2d 675 (1975).

The rule excluding illegally obtained evidence does not apply to a school disciplinary proceeding. Scanlon v. Las Cruces Public Schools, 2007-NMCA-150, 143 N.M. 48, 172 P.3d 185.

Search by school officials was reasonable. — Search of a 13-year-old boy who was seen by a school official smoking a pipe on school property against school regulations was based upon cause to believe that the search was necessary in the aid of maintaining school discipline, and the trial court was accordingly correct in admitting into evidence the fruits of that search. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Searches by school officials. — School officials may conduct a search of a student's person if they have a reasonable suspicion that a crime is being or has been committed or they have reasonable cause to believe that the search is necessary in the aid of maintaining school discipline; among the factors to be considered in determining the sufficiency of cause to search a student are the child's age, history and record in the school, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay and the probative value and reliability of the information used as a justification for the search. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Something less than the strict standards to which police officers are held is appropriate given the facts and circumstances of school searches, since crime in the schools is reaching epidemic proportions, ordinary school discipline is essential if the educational function is to be performed, events calling for discipline are frequent and sometimes require immediate action, and the normal exceptions to the warrant requirement would have little application in the school situation. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

A student's voluntary, direct statement to a person in authority, indicating personal knowledge of facts which establish that another student is engaging in illegal conduct, may provide school authorities reasonable grounds to search the second student's locker. However, a student's mere relaying of rumors or suspicions about another student is not sufficient to provide reasonable grounds. State v. Michael G., 1987-NMCA-142, 106 N.M. 644, 748 P.2d 17, cert. denied, 106 N.M. 627, 747 P.2d 922.

Individualized suspicion is required for search by school officials. — The search by school officials of a student is warranted only if the circumstances create an individualized suspicion that a particular rule of the school has been violated and that the search will serve to produce evidence of that violation. Some articulable facts that focus suspicion on a specific student must be demonstrated before any school search can be carried out. State v. Gage R., 2010-NMCA-104, 149 N.M. 14, 243 P.3d 453.

A student’s mere association with or presence among suspected wrongdoers without more does not provide a sufficient basis for a search of the student by school official. State v. Gage R., 2010-NMCA-104, 149 N.M. 14, 243 P.3d 453.

Where a school security officer observed the child in a group of students in an area outside the school known as the "smoker’s corner"; the officer saw some of the students smoking, but could not remember if the child was smoking; when the school bell rang, the students entered school property; the officer detained all of the students, including the child, patted them down and searched their backpacks for tobacco and tobacco products; during the search of the child, the officer found a lighter, a pipe and a knife in the child’s backpack; school policy prohibited smoking, tobacco product, lighters, and cigarettes on school property; and the officer suspected that the child might have tobacco or tobacco products based on the child’s presence at the "smoker’s corner", the search of the child was not justified at its inception because the officer did not have an individualized and particularized suspicion that the child had violated school policy. State v. Gage R., 2010-NMCA-104,149 N.M. 14, 243 P.3d 453.

Where school officials did not suspect child of engaging in any criminal activity, did not smell marijuana on him and had no knowledge or information concerning any wrong-doing by child, other than being out of class without a pass, 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, search of child and his jacket was not supported by reasonable suspicion and was not justified at its inception. State v. Pablo R., 2006-NMCA-072, 139 N.M. 744, 137 P.3d 1198, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Informer's use of electronic device. — Where informer making purchases of heroin from defendants had an electronic device concealed on his person that transmitted sounds to a receiver in a police car and the sounds were recorded on tape, defendants' contention that the tapes were erroneously admitted as evidence, that they were victims of an illegal search and seizure, and that their privilege against self-incrimination was violated was without merit. The informer having testified as to the conversations, the tapes were admissible to corroborate the informer's testimony. State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309.

Search of defendant’s purse was not reasonable. — Where police officers, who were looking for a stolen vehicle, stopped a vehicle in which defendant was a passenger; an officer handcuffed defendant, read Miranda rights to defendant, placed defendant in the police patrol unit, and asked defendant for identification; defendant informed the officer that defendant’s identification was in a wallet in defendant’s purse in the stolen vehicle; the officer retrieved a brown purse which defendant identified as belonging to defendant; defendant informed the officer that a black pencil bag inside the purse did not belong to defendant; the officer removed the black bag from the purse and opened it to determine if it contained any owner identification; the black bag contained methamphetamine; and the state did not claim that the search of the purse was pursuant to a valid arrest, the officer unreasonably searched defendant’s purse and seized its contents without consent. State v. Bond, 2011-NMCA-036, 150 N.M. 451, 261 P.3d 599.

Request to empty pockets. — After stopping a vehicle based on violations of the seat-belt law and before making an arrest, an officer violated the constitutionally permissible bounds of a pat-down search when he did not feel the outside of defendant's pocket but asked him to empty his pockets at a time when the defendant was not free to leave and in a manner that the officer admitted was directive. State v. Ingram, 1998-NMCA-177, 126 N.M. 426, 970 P.2d 1151, cert. denied, 126 N.M. 533, 972 P.2d 352.

Drug sniffing dog not inventory search. — Because the officers were not following a routine procedure established by police regulations, the use of drug sniffing dog cannot be justified under the inventory-search exception. State v. Ramzy, 1993-NMCA-140, 116 N.M. 748, 867 P.2d 418, cert. denied, 116 N.M. 801, 867 P.2d 1183 (1994).

Warrant cannot validate prior illegal search. — If a search which discovers evidence is unreasonable, then the subsequent seizure is the fruit of that illegal search and a search warrant cannot validate a prior illegal search. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

Blood alcohol tests. — The doctrine of search and seizure is not applicable to a blood test made at the sole request of the surgeon, a private individual. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.

Absent a valid warrant or consent by the defendant, an arrest prior to the taking of a blood alcohol test is an essential element in order to constitute a reasonable search and seizure. Admission into evidence of the results of a blood test which does not meet this standard is reversible error. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.

Breath tests and blood tests are searches with each test implicating varying privacy concerns. — The fourth amendment permits warrantless breath tests incident to legal arrests because noninvasive breath tests only slightly impact a subject’s privacy and because the state has an interest in testing breath alcohol content to maintain highway safety and deter drunk driving, but blood tests bear too heavily on a subject’s privacy interests to permit the state to seize warrantless samples at all DWI stops. Therefore, when a subject does not consent to a blood draw, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff’g 2017-NMCA-023, 389 P.3d 1080.

A driver cannot be subjected to criminal penalties for refusing to submit to a warrantless blood draw. — Where defendant consented to provide two breath test samples at a DWI checkpoint, but refused to submit to a blood test, her conviction for aggravated DWI was improper, because blood tests bear too heavily on a subject’s privacy interests to permit the state to seize warrantless samples at all DWI stops, and when a subject does not consent to such a search, officers must obtain a warrant or establish probable cause and exigent circumstances to justify a warrantless search. State v. Vargas, 2017-NMSC-029, aff’g 2017-NMCA-023, 389 P.3d 1080.

Refusing to submit to a warrantless blood test cannot be the basis for aggravating a DWI sentence. — Where defendant was charged with aggravated driving while intoxicated, and where defendant’s DWI charge was aggravated based on her refusal of a warrantless blood test, defendant’s conviction for aggravated DWI was reversed because a driver may be deemed to have consented to a warrantless blood test under a state implied consent statute, but the driver may not be subject to a criminal penalty for refusing to submit to such a test, and therefore where defendant was threatened with an unlawful search, her refusal to submit to the search cannot be the basis for aggravating her DWI sentence. State v. Vargas, 2017-NMCA-023, cert. granted.

Constitutionality of punishment for refusing to submit to a warrantless blood draw under the Implied Consent Act. — The fourth amendment to the United States constitution does not support an enhanced criminal penalty based upon a defendant’s refusal to consent to a blood test for the presence of drugs, and therefore 66-8-102(D)(3) NMSA 1978 is unconstitutional to the extent violation of it is predicated on refusal to consent to a blood draw to test for the presence of any drug in the defendant’s blood. State v. Storey, 2018-NMCA-009, cert. denied.

Where defendant was charged with aggravated driving while under the influence of intoxicating drugs, and where defendant’s DUI charge was aggravated based on his refusal to consent to a warrantless blood test, defendant’s conviction for aggravated DUI was reversed because the fourth amendment does not support an enhanced criminal penalty based upon a defendant’s refusal to consent to a blood test for the presence of drugs, and therefore a driver cannot be criminally punished for his refusal to submit to a blood test after being arrested on suspicion of driving under the influence of intoxicating liquor or drugs. State v. Storey, 2018-NMCA-009, cert. denied.

Prosecutor’s comment on defendant’s refusal to consent to a blood test did not violate the fourth amendment. — Where defendant was charged with aggravated driving while under the influence of intoxicating liquor or drugs after being arrested on suspicion of driving under the influence of marijuana and refusing to submit to a warrantless blood draw, the prosecutor’s commentary at trial on defendant’s refusal to consent to a blood test did not violate his constitutional rights under the fourth amendment, because the refusal to submit is a physical act rather than a communication, and therefore not protected as a privileged communication, and a refusal reflects consciousness of guilt that is relevant and admissible. State v. Storey, 2018-NMCA-009, cert. denied.

Sex offender DNA testing and dental imprinting. — The provision of the Albuquerque Sex Offender Registration and Notification Act ordinance that requires sex offenders to submit to compulsory DNA testing and dental imprinting is an unreasonable governmental invasion into the individual's personal security or privacy and violates the fourth amendment guarantee against unreasonable searches and seizures. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Constitutionality of New Mexico’s DNA Identification Act. — New Mexico’s DNA Identification Act, §§ 29-16-1 to -13 NMSA 1978, which requires all persons arrested for certain crimes to provide a DNA sample, is not unconstitutional on its face, because weighing the law enforcement need to identify all persons it has arrested for committing a felony, and the sample’s subsequent use in a database, against the minimally invasive means for securing the DNA sample from a defendant’s cheek weighs in favor of concluding that the search is reasonable under the fourth amendment to the U.S. Constitution and the N.M. Const., art. II, § 10. State v. Blea, 2018-NMCA-052, cert. denied.

Where defendant was convicted of multiple counts of first degree criminal sexual penetration and first degree kidnapping involving four separate victims, and where defendant claimed that New Mexico’s DNA Identification Act, which requires all persons arrested for certain crimes to provide a DNA sample, is unconstitutional on its face, defendant’s claim was denied, because weighing the law enforcement need to identify all persons it has arrested for committing a felony, and the sample’s subsequent use under the combined DNA index system database, against the minimally invasive means for securing the DNA sample from a defendant’s cheek weighs in favor of concluding that the search is reasonable under the fourth amendment to the U.S. Constitution and of the N.M. Const., art. II, § 10. State v. Blea, 2018-NMCA-052, cert. denied.

Entry under defendant's trailer and severing of a sewer pipe before executing a search warrant for narcotics did not amount to an unconstitutional search under the circumstances since testimony indicated that heroin is often disposed of by flushing and that upon a prior arrest of one defendant she attempted to dispose of heroin in this fashion. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

Dog sniff of defendant's closed luggage in the common baggage compartment of a common carrier did not violate a reasonable expectation of privacy on the part of the defendant, and did not constitute a search within the meaning of this section. State v. Villanueva, 1990-NMCA-051, 110 N.M. 359, 796 P.2d 252, cert. denied, 100 N.M. 260, 794 P.2d 734.

Nighttime searches. — Where defendant challenged the denial of his motion to suppress evidence from a nighttime search, since the search was conducted on people who were seen to be active in nighttime, and probable cause was developed in the nighttime, the search was constitutional. State v. Garcia, 2002-NMCA-050, 132 N.M. 180, 45 P.3d 900, cert. denied, 132 N.M. 193, 46 P.3d 100.

Statute requiring any person killing bovine to preserve its hide unmutilated for 30 days did not violate constitutional immunities from self-incrimination and unreasonable searches and seizures. State v. Walker, 1929-NMSC-050, 34 N.M. 405, 281 P. 481.

Reasonable suspicion required to conduct secondary strip search in detention facility. — Where defendant was arrested and booked into the Santa Fe county adult detention facility (SFCADF) on charges that included trafficking a controlled substance, and where it was SFCADF’s policy to strip search all individuals arrested for certain charges, including drug trafficking charges, and where, pursuant to the policy, defendant was strip searched during the booking process, and where, the following day, there was an anonymous tip that inmates in the orientation pod where defendant was housed had drugs, and where defendant and other inmates were seen engaging in suspicious behavior in the area of a cell where drugs were discovered, and where detention officers strip searched defendant, along with other detainees, discovering a rock of heroin wrapped in plastic in defendant’s anal cavity, the district court did not err in finding that the second strip search was supported by reasonable suspicion and was therefore not unconstitutional, because the facts and inferences viewed in the light most favorable to the district court’s ruling establish a constitutionally sufficient reasonable suspicion to support the second strip search of defendant. State v. Chacon, 2018-NMCA-065, cert. denied.

Strip searches of prison visitors can be justified on basis of reasonable suspicion, but only if such searches are conducted as part of a prison procedure that informs visitors before being searched that they have the right to refuse to be searched, in which case they will be escorted off the prison grounds. State v. Garcia, 1993-NMCA-105, 116 N.M. 87, 860 P.2d 217.

B. EXIGENT CIRCUMSTANCES DOCTRINE.

A warrantless arrest supported by probable cause is reasonable if exigency exists. — The overarching inquiry in reviewing warrantless arrests is whether it was reasonable for the officer not to procure an arrest warrant; a warrantless arrest supported by probable cause is reasonable if some exigency existed that precluded the officer from securing a warrant. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Where defendant was detained after store personnel observed him shoplifting flashlights, defendant was frisked and his possessions and the stolen flashlights were displayed on a table to present to law enforcement; officers arrived at the scene and developed probable cause to arrest defendant based on their review of the store surveillance video-tape and the evidence of shoplifting displayed on the table before them. The officers arrested defendant without a warrant, pursuant to 30-16-23 NMSA 1978, and searched defendant’s belongings incident to the arrest, finding hypodermic needles and heroin. The supreme court held that it was reasonable for the officers to make a warrantless arrest where they had probable cause, and when securing a warrant was not reasonably practical before responding to the scene, because the officers did not have the information supporting probable cause or the time to act on it prior to arriving on scene, and that an on-the-scene arrest supported by probable cause supplied the requisite exigency. The subsequent search of defendant was therefore a lawful search incident to arrest. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Dissipation of alcohol is a factor that may create an exigent circumstance. — Although dissipation of alcohol does not per se justify a warrantless entry into a home, it is a factor to consider in analyzing the reasonableness of police action in effecting a warrantless arrest. State v. Nance, 2011-NMCA-048, 149 N.M. 644, 253 P.3d 934, cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.

Exigent circumstances justified warrantless arrest of defendant at defendant’s home for DWI. — Where defendant’s vehicle collided with the victim’s vehicle in a parking lot; the victim detected that defendant had a strong odor of liquor; the victim, who was following defendant’s vehicle, observed defendant drive out of the parking lot in front of oncoming traffic, pull out in front of traffic, speeding, and running stop signs; the victim followed defendant to defendant’s home and waited for the police; defendant did not respond to the police officers knocking on defendant’s front door for fifteen minutes; defendant subsequently blew a 0.29 and 0.27 on a breathalyzer test; the officers did not enter defendant’s home or draw their weapons or search defendant’s home; the evidence material to the DWI case was dissipating; and the police officers arrested defendant for DWI at defendant’s home without a warrant, exigent circumstances justified the officer’s actions. State v. Nance, 2011-NMCA-048, 149 N.M. 644, 253 P.3d 934, cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264 P.3d 1171.

Exigent circumstances and search incident to arrest exceptions not applicable. — Where a police officer stopped the defendant for speeding in a school zone; the defendant was the only person in the vehicle; the officer lawfully seized marijuana in the defendant’s possession, arrested the defendant, handcuffed the defendant and placed the defendant in the patrol vehicle; the defendant told the officer that there was a shotgun in the defendant’s vehicle; the officer conducted an inventory of the defendant’s vehicle pending impoundment of the vehicle and discovered the shotgun, a revolver and other weapons in the vehicle, the seizure of the shotgun and the revolver was not lawful under the exigent circumstances and search incident to arrest exceptions to the warrant requirement. State v. Rowell, 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280, rev'd, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95.

Exigent circumstances. — The court will not assume that an individual is dangerous or inclined to harm an officer in the course of a routine traffic stop simply because a loaded weapon is present in the vehicle in order to justify entry into a vehicle to seize a weapon based on the exigent circumstances doctrine. State v. Rowell, 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280, rev'd, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95.

For a finding of exigent circumstances, so as to justify a warrantless search, the following criteria must be met: (1) there must be a real possibility that evidence will be destroyed if law enforcement officers cannot enter the premises before they obtain a search warrant; (2) the exigency must not be one improperly created by law enforcement officers; and (3) any intrusion by law enforcement officers should minimize the imposition on privacy and possessory interests protected by the fourth amendment and this section. State v. Wagoner, 1998-NMCA-124, 126 N.M. 9, 966 P.2d 176, cert. denied, 125 N.M. 654, 964 P.2d 818, overruled by State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, cert. denied, 130 N.M. 213, 22 P.3d 681.

Weapon in a vehicle on school grounds. — The mere existence of a weapon in a vehicle belonging to a person at least nineteen years old on school grounds during school hours does not automatically create an inherent exigency justifying a warrantless search of the vehicle under the exigent circumstances exception or a presumption of immediate control under the search incident to arrest exception. State v. Rowell, 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280, rev'd, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95.

Exigent circumstances are not required in connection with warrantless probation search supported by reasonable suspicion. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

Where pat down search was lawful once police officer knew defendant had rocks of cocaine in his pocket, there was no need for exigent circumstances to allow their seizure without a warrant. State v. Sanchez, 2005-NMCA-081, 137 N.M. 759, 114 P.3d 1075, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229 .

The exigent circumstances exception means that if, prior to entry, a police officer in good faith believes that the person whose home is to be searched and/or the person inside to be arrested is fleeing or is attempting to destroy evidence, the police officer may enter without fulfilling the usual requirements. A good faith belief is meant reasonable belief, resting on a reasonable assessment of the facts available to the police officer prior to entry. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

The burden of showing the existence of exigent circumstances rests on the state. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

An exigent circumstance exists if, prior to entry, officers in good faith believe that the contraband, or other evidence, for which search is to be made is about to be destroyed, and the question of exigent circumstances is one of fact. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

A search for weapons in the absence of probable cause to arrest must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus, it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. State v. Washington, 1971-NMCA-005, 82 N.M. 284, 480 P.2d 174.

An officer armed with a search warrant prior to forcible entry must give notice of authority and purpose, and be denied admittance; this is a general standard, and noncompliance with this standard is justified if exigent circumstances exist. An exigent circumstance exists if, prior to entry, officers in good faith believe that the contraband, or other evidence, for which the search is to be made is about to be destroyed. State v. Sanchez, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

The exigency of the circumstances, as with the probable cause required to make a search reasonable under the circumstances, depends on practical considerations. The circumstances must be evaluated from the point of view of a prudent, cautious and trained police officer. State v. Sanchez, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

Absent a search warrant or valid consent to enter, intrusion into a private residence by law officers must be supported by a showing, by a preponderance of the evidence, that the entry was justified by exigent circumstances; and whether exigent circumstances exist is within the fact finding function of the trial court. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313, cert. denied, 100 N.M. 192, 668 P.2d 308.

An individual in a car with a weapon, by itself, does not create exigent circumstances. State v. Garcia, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72, aff'g in part, rev'g in part 2004-NMCA-066, 135 N.M. 595, 92 P.3d 41.

Exigent circumstances to search meth labs. — Where officers possess particularized information suggesting that a meth lab is active, that knowledge is sufficient to support a determination that exigency exists due to the dangerous nature of meth production and the very real possibility of explosion or fire inherent in the meth production process. State v. Allen, 2011-NMCA-019, 149 N.M. 267, 247 P.3d 1152, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901.

A statement to a police officer that an active meth lab is present in a home when made by a person who just exited the home provides the particularized information necessary to conclude that there are exigent circumstances justifying a warrantless entry into the home. State v. Allen, 2011-NMCA-019, 149 N.M. 267, 247 P.3d 1152, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901.

Where an officer was questioning defendant and defendant’s relative outside a mobile home in connection with the theft of antifreeze from an auto parts store; the officer noticed a white powdery crystallized substance protruding from defendant’s pocket which the officer identified as methamphetamine; a third person emerged from the mobile home and asked to speak to the officer; and the third person told the officer that there was a meth lab active in the house, exigent circumstances justified the warrantless search of the mobile home. State v. Allen, 2011-NMCA-019, 149 N.M. 267, 247 P.3d 1152, cert. denied, 2011-NMCERT-001.

Exigent circumstances not found. — In determining whether exigent circumstances exist, the test is whether under the objective test exigent circumstances were shown to exist at the time of injury and that the particular defendant presents a danger, may flee, or is destroying evidence; there was no evidence of the existence of exigent circumstances where although numerous individuals were present on the premises, at the time of execution of the search warrant nothing indicated that anyone threatened the officers or that they were placed in fear by persons either inside or outside the residence. State v. Williams, 1992-NMCA-106, 114 N.M. 485, 840 P.2d 1251.

The state failed to prove the existence of exigent circumstances justifying a warrantless search of an automobile where border agents conducted the search at a checkpoint thirty miles away from the location of the nearest magistrate, the magistrate was available at the time of the stop, there was a telephone at the checkpoint and a fax machine at the main border patrol office, and there were three border patrol agents on duty at the checkpoint at the time of the stop. State v. Gallegos, 2003-NMCA-079, 133 N.M. 838, 70 P.3d 1277, cert. quashed, 2005-NMCERT-012, 138 N.M. 773, 126 P.3d 1137.

Exigent circumstances did not exist. — Exigent circumstances justifying a warrantless search did not exist where defendant's car was parked outside the sheriff's office and the defendant and the two other occupants were in the sheriff's office under arrest. State v. Coleman, 1974-NMCA-147, 87 N.M. 153, 530 P.2d 947.

Exigent circumstances do not exist where the only fact known to the police is the readily disposable nature of the contraband that is the object of the search. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

Exigent circumstances found. — Where a police officer was dispatched to investigate a trash fire; the officer observed bottles of acetone in the burnt trash pile; the officer detected a strong chemical smell coming from the house near the trash fire; the officer heard someone walking in the house, and after the officer knocked on the door of the house, the officer heard someone running in the house; the officer entered the house and observed that the master bedroom was padlocked from the outside, and the chemical odor was especially strong near the door; the officer was concerned that someone was hiding in the room who would pose a risk to the police officers, destroy evidence, or turn the scene into a deadly situation; the officer broke the padlock, and when the officer opened the door, the officer was confronted with a strong chemical odor that pushed the officer back from the door and made another officer dizzy; and a meth lab expert entered the house prior to obtaining a search warrant to determine whether there was anything that would explode or start a fire, because the officer had particularized information suggesting that there might be someone hiding in the house who could pose a threat or destroy evidence and a concern that the meth lab might explode or cause a fire, exigent circumstances justified the warrantless search of the house for the limited purpose of a safety and welfare check. State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, cert. denied, 2010-NMCERT-007.

Where a police officer, who was responding to a report of a disturbance at a room in a motel, observed from outside the room, through a gap between the curtains, defendant using a lighter under a spoon attempting to heat up an unknown substance and then attempting to draw the substance into a syringe; the officer believed that defendant was preparing illegal drugs for injection; the officer obtained a key to the room; the officer was concerned that if the police did not enter the room immediately, the substance would be lost or destroyed; the officers entered the room and collected the spoon with the substance in it, a loaded syringe, and a bag as evidence; and field testing of the substance indicated that the substance was methamphetamine, the officers’ entry was justified based on the destruction-of-evidence exigency. State v. Huettl, 2013-NMCA-038, 305 P.3d 956, cert. granted, 2013-NMCERT-003.

Where an officer saw methamphetamine in plain view in a vehicle occupied only by the defendant who was the driver; the drugs were within defendant’s reach and immediate control; and the defendant was in control of the vehicle and able to drive away, the officer instantly had probable cause to believe that defendant was committing a crime and the seizure of the drugs was justified by exigent circumstances. State v. Weidner, 2007-NMCA-063, 141 N.M. 582, 158 P.3d 1025.

Where the officers received a report that the defendant had fired a firearm at others and some of the officers heard the shots, and the officers observed the defendant lying on a bed holding a firearm and were concerned about the safety of others in the area if the defendant were to begin shooting again, substantial evidence supported the trial court's finding of exigent circumstances justifying a warrantless seizure of the gun. State v. Calvillo, 1990-NMCA-046, 110 N.M. 114, 792 P.2d 1157, cert. denied, 110 N.M. 72, 792 P.2d 49.

Where police officers armed with a search warrant had probable cause to believe and in good faith did believe that defendant was selling heroin from his home and that there was heroin therein, they had received information from an informant who had assisted in the investigation leading to the issuance of the warrant, that defendant kept a weapon in the house and that the officers would have to move rapidly or defendant would flush the heroin down the toilet, the officers were all experienced and knew from their experience that normally there is an attempt to get rid of heroin before police officers get into a house, and after knocking on the door and announcing that they were police officers, they could see people moving and hear the sound of voices coming from inside the house, one of which was yelling or screaming as if someone was calling to another for the purpose of getting attention, the circumstances justified the officers in entering after knocking and announcing that they were police officers without waiting to be invited or denied entry. State v. Sanchez, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103, rev'g 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858.

Where, after plainclothes officer stated he was a police officer and showed his badge and gun, defendant disappeared from the door, turned out the lights and was heard running, exigent circumstances justified a forcible entry by the officer, since the officer, in good faith prior to entry, believed that defendant was fleeing. State v. Kenard, 1975-NMCA-077, 88 N.M. 107, 537 P.2d 1003, cert. denied, 88 N.M. 318, 540 P.2d 248, cert. denied, 423 U.S. 1024, 96 S. Ct. 468, 46 L. Ed. 2d 398 (1975).

Where the presence of possibly hazardous chemicals provided the exigent circumstances necessary for a warrantless entry of defendant's residence, seizure of glassware and handguns was lawful because they were in plain view, and the exigencies of the situation permitted the opening of a briefcase without a warrant to search for other weapons or explosives. State v. Calloway, 1990-NMCA-110, 111 N.M. 47, 801 P.2d 117, cert. denied, 111 N.M. 77, 801 P.2d 659.

Application to border searches. — The requirement of exigent circumstances under this section applied to federal border patrol agent's search of defendant's truck at a checkpoint in New Mexico where the state sought to introduce evidence resulting from that search in a New Mexico state court. State v. Snyder, 1998-NMCA-166, 126 N.M. 168, 967 P.2d 843, cert. denied, 126 N.M. 533, 972 P.2d 352.

Truck at border checkpoint presented exigent circumstance. — Border-patrol agents at checkpoint had an objectively reasonable basis for believing that exigent circumstances justified an immediate warrantless search of defendant's truck, and, therefore, marijuana seized pursuant to such search was not subject to the exclusionary rule. State v. Snyder, 1998-NMCA-166, 126 N.M. 168, 967 P.2d 843, cert. denied, 126 N.M. 533, 972 P.2d 352.

No exigent circumstances. — Anhydrous ammonia leaking from the defendant’s garage did not, by itself, provide exigent circumstances to justify a warrantless entry into the defendant’s home that was located in a separate building thirty to forty feet away. State v. Moore, 2008-NMCA-056, 144 N.M. 14, 183 P.3d 158.

Attempt to flee. — Where defendant was suspected of a murder, and his attempt to move toward back of mobile home indicated an attempt to flee, officers' warrantless arrest on grounds of exigent circumstances was justified. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

Exigent circumstances exception applicable. — Where a police officer stopped the defendant for speeding in a school parking lot; the officer observed in plain sight a bag of marijuana in the defendant’s shirt pocket; the officer removed the defendant from the vehicle, handcuffed him, placed him under arrested, and secured him in the officer’s patrol car; the defendant admitted that he had a shotgun in his vehicle; and the officer then searched the vehicle for weapons, the seizure of weapons from the defendant’s vehicle was justified the exigent circumstances exception to the warrant requirement. State v. Rowell, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95, rev'g 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280.

Exigent circumstances and arrest incident to arrest. — Where a police officer seized marijuana on defendant’s person while defendant was behind the wheel of the vehicle, the marijuana was in plain view in the defendant’s pocket, defendant could drive away with the marijuana, and the officer contemporaneously arrested the defendant for possession of drugs, the seizure of the marijuana was lawful based on the exigent circumstances and arrest incident to arrest exceptions to the warrant requirement. State v. Rowell, 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280, rev'd, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95.

C. KNOCK AND ANNOUNCE DOCTRINE.

Knock and talk procedure. — A police officer, who is engaged in a "knock and talk" investigation, is not required, as a prerequisite to obtaining a valid consent to search a home, to advise the occupant that consent to the search may be withheld. State v. Flores, 2008-NMCA-074, 144 N.M. 217, 185 P.3d 1067, cert. denied, 2008-NMCERT-004, 144 N.M. 48, 183 P.3d 933.

Futility exception to the knock-and-announce rule. — Where the defendant opened the door of his apartment at the same time police officers were about to knock on the door, recognized the officers, and attempted to shut the door, the officers were justified in dispensing with the knock-and-announce rule, because compliance would have been futile. State v. Vargas, 2008-NMSC-019, 143 N.M. 692, 181 P.3d 684, rev'g 2007-NMCA-006, 140 N.M. 864, 149 P.3d 961.

Time sufficient to infer refusal of consent to enter. — Where police officers served a search warrant on the defendant’s trailer; knocked on two doors; announced their identity and purpose approximately twenty times; and heard a person moving back and forth within the trailer, but never toward the door, the officer’s wait of ten to twenty seconds before entering the trailer was a reasonable length of time for them to conclude that they were being denied admission and the search of the trailer was constitutional. State v. Hand, 2008-NMSC-014, 143 N.M. 530, 178 P. 3d 165.

Time sufficient to infer refusal of consent to enter. — Where the size of defendant’s motel room was no larger than twelve feet by twelve feet; the bed was within three or four feet of the door; the officers knocked while announcing notice of their presence, identification of authority, and statement of lawful purpose for at least ten seconds before using a battering ram to forcibly enter the motel room; and there was no response from inside the room during the time the officers were knocking and announcing, the ten second interval was a reasonable length of time for the officers to conclude that they were being denied admittance and the officers did not violate the knock-and-announce rule prior to forcefully entering the motel room to serve a search warrant. State v. Johnson, 2006-NMSC-049, 140 N.M. 653, 146 P.3d 298, aff'g in part, rev'g in part, 2004-NMCA-064, 135 N.M. 615, 92 P.3d 61.

Knock-and-announce requirement inherent. — Article II, § 10 incorporates a knock-and-announce requirement. The requirement that officers executing a search warrant announce their identity and purpose and be denied admission is a critical component of a reasonable search under this section. State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103, aff'g 1992-NMCA-043, 114 N.M. 83, 835 P.2d 81.

Exclusion of evidence for failure to knock-and-announce. — If an officer does not knock-and-announce prior to forcible entry and exigent circumstances are not present, the fruits of that search would be excluded as a violation of the general constitutional reasonableness requirement. State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103, aff'g 1992-NMCA-043, 114 N.M. 83, 835 P.2d 81.

Factors to be considered in following the knock-and-announce rule. — An objectively reasonable officer should consider the time at which a search warrant is executed, the identity of the occupants likely to be within the dwelling at the time of the search, and the size of the dwelling to be searched in assessing whether a period of nonresponsiveness following a knock-and-announce signals constructive refusal. State v. Ulibarri, 2010-NMCA-084, 148 N.M. 576, 240 P.3d 1050, cert. denied, 2010-NMCERT-008.

Time insufficient to conclude refusal to answer knock on door. — Where defendant and others were the target of an investigation of drug trafficking; after defendant had been arrested, police officers executed a search warrant of defendant’s house at 10:00 p.m.; defendant shared the house with defendant’s elderly grandparent; the grandparent was not suspected of any wrongdoing; the lead officer knew that neither defendant nor any other individual targeted in the investigation was in the house and that only defendant and the grandparent lived in the house; the officers knocked and announced, waited ten to twelve seconds during which time they heard no response or any other noise in the house, and then forced entry into the house; and as the door swung inward, the door hit the grandparent who was walking toward the door, under the totality of the circumstances, the wait of ten to twelve seconds was not reasonable and the knock-and-announce rule was violated. State v. Ulibarri, 2010-NMCA-084, 148 N.M. 576, 240 P.3d 1050, cert. denied, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.

Because ten seconds is such a short interval of time to wait for a person to answer a door at 6:15 a.m. on a weekend morning, and because the officers heard no sounds suggesting that defendant was awake, either to answer the door or to destroy evidence, under these circumstances and in the absence of exigency, ten seconds was not a sufficient interval to conclude that defendant refused to answer the door. Therefore, the search was not constitutionally reasonable, and the results of the search should have been suppressed. State v. Johnson, 2004-NMCA-064, 135 N.M. 615, 92 P.3d 61, aff'd in part, rev'd in part, 2006-NMSC-049, 140 N.M. 653, 146 P.3d 298.

Danger to law enforcement exception to knock-and-announce. — There is a general exception to the rule of announcement based on an officer's objectively reasonable belief that full or partial compliance with the rule of announcement would increase the risk of danger to the officers effectuating the warrant. State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103, aff'g 1992-NMCA-043, 114 N.M. 83, 835 P.2d 81.

The 10 to 15 second pause after knocking and announcing in this case was sufficient time for the officers to wait before executing their forcible entry into the house. The time interval, while extremely short for 6:00 a.m. on a Saturday morning, was sufficiently long given the highly specific indicia that the defendant posed a menace to police executing the warrant, since he was known to possess many weapons and had made threats against police. State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103, aff'g 1992-NMCA-043, 114 N.M. 83, 835 P.2d 81.

Evidence that police officers had received previous information that the occupants of the residence had access to firearms amply supported the trial court's rejection of defendant's argument concerning their violation of the knock-and-announce rule. State v. Steinzig, 1999-NMCA-107, 127 N.M. 752, 987 P.2d 409, cert. denied, 128 N.M. 149, 990 P.2d 823.

Destruction of evidence exception to knock-and-announce. — If an officer has good reason to believe that evidence will be destroyed, that officer is justified in making an unannounced entry into a person's residence. "Good reason" will be defined by whether it was objectively reasonable for the officer to believe that evidence is being or will be destroyed based upon the particular circumstances surrounding the search. State v. Ortega, 1994-NMSC-013, 117 N.M. 160, 870 P.2d 122, aff'g 1992-NMCA-029, 114 N.M. 193, 836 P.2d 639.

Futility exception to the knock and announce requirement. — If the police observe that a person has seen them as they approach a residence, then, unless the police have information at the time of entry that leads to a reasonable belief that the person who saw them knows both that they are officers and that they have authority to enter pursuant to a warrant, the futility exception does not apply to the knock-and-announce requirement. The fact that someone has simply seen the police does not generally provide a factual basis for a reasonable suspicion that the occupant knows that the officers have authority to enter pursuant to a warrant. State v. Jean-Paul, 2013-NMCA-032, 295 P.3d 1072.

Exigent circumstances exception to the knock and announce requirement. — The fact that the police observe that a person has seen them approach a residence and moves about the residence knowing that the police are outside, but not knowing that the police are there to execute a warrant, does not create the kind of exigent circumstances that excuse the knock-and-announce requirement based on a suspicion that evidence will be destroyed. State v. Jean-Paul, 2013-NMCA-032, 295 P.3d 1072.

If exigent circumstances do not excuse the knock-and-announce requirement, then under the New Mexico constitution, the assessment of how long officers must reasonably wait between knocking and announcing and a forcible entry is made by reference to the time that it would take someone to voluntarily respond or for the police to infer constructive refusal, not by the time that it would take for the occupants to engage in the behavior that the exigent circumstances exception seeks to prevent. State v. Jean-Paul, 2013-NMCA-032, 295 P.3d 1072.

The starting point of the waiting period of the knock and announce requirement is from the time that the first announcement of the police’s presence and purpose to execute a search warrant has been completed. The time period cannot begin when the police start to knock or when they announce they are the police, because until the occupants are notified that the police are there to execute a search warrant, they have no reason to believe that they are required to either open the door or suffer a forcible entry. State v. Jean-Paul, 2013-NMCA-032, 295 P.3d 1072.

Two to five seconds wait did not satisfy the knock and announce requirement. — Where police officers, who were executing a search warrant at defendant’s home, saw a person standing near the window, looking in the direction of the officers, and then moving from the window as the officers reached the door, and the officers knocked and announced their presence and authority pursuant to a search warrant, waited one to five seconds, and then forcibly entered the home using a battering ram, the one to five second wait was not justified by either the exigent circumstance exception or the futility exception to the knock-and-announce requirement because the one-to-five-second wait was too short to permit the occupants either to answer the door or from which to infer that they had refused to voluntarily admit the police and the entry violated Article II, Section 10 of the New Mexico constitution. State v. Jean-Paul, 2013-NMCA-032, 295 P.3d 1072.

Knock-and-announce rule violated. — Where police officers executed a search warrant at defendant’s residence looking for drugs; there was no evidence of any exigency or that defendant presented a danger; and the belt tape recording of one officer indicated that the officers announced for eight seconds, never knocked and never waited to give defendant an opportunity to open the door and that after eight seconds, the officers battered the door down with a battering ram, the belt tape recording was substantial evidence that the officers violated the knock-and-announce rule and that the entry into defendant’s residence was illegal. State v. Gonzales, 2010-NMCA-023, 147 N.M. 735, 228 P.3d 519.

The knock-and-announce rule applies to the execution of arrest warrants. State v. Vargas, 2008-NMSC-019, 143 N.M. 692, 181 P.3d 684, rev'g 2007-NMCA-006, 140 N.M. 864, 149 P.3d 961.

Time of use of battering ram to force entry excluded from time to infer refusal to enter. — When officers began hitting the door of defendant's motel room with a battering ram, they ceased "knocking" and began "entering" and the time during which the officers hit the door with the battering ram must be excluded from the time the officers waited for consent to enter after they knocked and announced their identity and purpose under the knock-and-announce rule. State v. Johnson, 2006-NMSC-049, 140 N.M. 653, 146 P.3d 298, aff'g in part, rev'g in part, 2004-NMCA-064, 135 N.M. 615, 92 P.3d 61.

Destruction of evidence exception. — Where the affidavit for the search warrant established a good faith belief on the part of the officers that heroin was to be found on the premises; the officers knocked on the door, identified themselves as police officers, and announced their purpose, and while awaiting a response heard commotion within, the officers were justified in not delaying further. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

Search warrant does not abrogate knock-and-announce requirement and since officers, equipped with a valid warrant during the conduct of a drug raid, failed to give notice of their authority and purpose prior to entering a motel room with a pass key, evidence seized pursuant to this warrant was required to be suppressed. State v. Rogers, 1993-NMCA-104, 116 N.M. 217, 861 P.2d 258.

Ruse exception to the announcement rule. — For a ruse to be a reasonable and constitutional alternative to knocking and announcing, the state must demonstrate that, at the time of execution of the warrant, the police had a reasonable suspicion, based upon the particular circumstances of the case at hand, that exigent circumstances exist to believe that announcing would increase the risk of injury to the officers or increase the risk that evidence would be destroyed. State v. Reynaga, 2000-NMCA-053, 129 N.M. 257, 5 P.3d 579, cert. denied, 129 N.M. 208, 4 P.3d 36.

Procedure used prior to forcible entry. — In executing a search warrant or making an arrest on probable cause, an officer, prior to forcible entry, must give notice of authority and purpose and be denied admittance. Noncompliance with this standard is justified, however, if exigent circumstances exist, which may include good faith belief that the officers or someone within is in peril of bodily harm or that the person to be arrested is fleeing or attempting to destroy evidence. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649.

The general standard for executing a search is that prior to forcible entry, an officer must give notice of authority and purpose and be denied admittance, but noncompliance with the standard may be justified by exigent circumstances known to the officer beforehand, as, for example, when the officer, in good faith, believes that a person is attempting to destroy evidence. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992.

An officer, prior to forcible entry, must give notice of authority and purpose, and be denied admittance although noncompliance with this standard is justified if exigent circumstances exist, as, for example, when prior to entry officers in good faith believe that the person to be arrested is fleeing or attempting to destroy evidence. This rule allows the police to act fast and without warning under exigent circumstances when to do otherwise might allow a guilty person to escape conviction, but at the same time, prevents unwarranted intrusion into private dwellings by overzealous police officers eager to execute a search. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

There are no set rules as to the time an officer must wait before using force to enter a house; the answer will depend upon the circumstances of each case. However, simultaneous identification and entry is unreasonable and demands the suppression of evidence. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

Where a police officer knocked on defendant's door and announced his authority in an audible manner, but did not wait for anyone to come to the door, nor did he state his purpose for being present, or request permission to enter and serve the warrant, he did not properly give notice of his authority and purpose. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

"Forcible entry". — Forcible entry is not restricted to breaking down a door or window; entry through a closed but unlocked door, absent consent, is a forcible entry, as is entry through an open door, absent consent. In essence, forcible entry refers to an unannounced intrusion. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

The phrase "refused admittance" has been generally interpreted not to mean an affirmative refusal, and an officer may justifiably conclude that he has been refused entry where after announcement he either becomes aware of activity by the occupants which is inconsistent with action deemed reasonably necessary to open the door, or where a reasonable interval of time has elapsed without any response by the occupants, although an entry made too soon after announcement precludes any opportunity by the occupant to refuse the officer admittance. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

Where a police officer knocked loudly on the door, stated his identity as a police officer and that he had a search warrant, demanded entry and repeated this two or more times, waiting 30 to 60 seconds before breaking in, the officer could reasonably infer that he had been denied admittance. State v. Sanchez, 1975-NMCA-079, 88 N.M. 378, 540 P.2d 858, rev'd, 1975-NMSC-059, 88 N.M. 402, 540 P.2d 1291, latter decision overruled by State v. Attaway, 1994-NMSC-011, 117 N.M. 141, 870 P.2d 103.

D. COMMUNITY CARETAKER DOCTRINE.

Community caretaker exception embodies three distinct doctrines. — The community caretaker exception to the warrant requirement embodies three distinct doctrines: the emergency aid doctrine which applies specifically to warrantless intrusions into the home, the automobile impoundment and inventory doctrine, and the public servant doctrine which deals primarily with warrantless searches and seizures of automobiles; each doctrine involves separate types of intrusions involving distinct expectations of privacy, and each is analyzed by different standards. State v. Sheehan, 2015-NMCA-021, cert. denied, 2015-NMCERT-002.

Standards under the community caretaker doctrines. — The burden for justifying a warrantless entry into a private residence under the emergency aid doctrine is significantly higher than the standards under the other community caretaker doctrines because the expectation of privacy in the home is strongest and a warrantless entry into a home presents unique concerns; under the emergency aid doctrine, police may make a warrantless entry into a home if they have reasonable grounds to believe that there is an emergency at hand and that there is an immediate need for their assistance for the protection of life or property; under the public servant doctrine, a police officer may stop a vehicle for a specific, articulable safety concern, even in the absence of reasonable suspicion that a violation of law has occurred or is occurring. State v. Sheehan, 2015-NMCA-021, cert. denied, 2015-NMCERT-002.

Wrong community caretaker doctrine applied. — Where officer, while patrolling a state highway, noticed a vehicle parked on the shoulder of the road with the driver’s side door open and interior lights on, and inside the vehicle were two people, one of which was a woman who appeared unconscious and in an unnatural position; at trial, officer sufficiently articulated a specific concern for the safety of the female passenger to permit him to detain the vehicle to alleviate his safety concern pursuant to the public servant doctrine; the trial court erred in granting a motion to suppress, concluding that the officer’s concerns were not sufficient to meet the higher standard of the emergency assistance doctrine. State v. Sheehan, 2015-NMCA-021, cert. denied, 2015-NMCERT-002.

Emergency aid doctrine. — Under the emergency aid doctrine, the state has the burden of establishing that the police have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, that the search is not primarily motivated by intent to arrest and seize evidence, and that there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Byrom, 2018-NMCA-016, cert. denied.

Impoundment and inventory doctrine. — The law of impoundment and inventory doctrine focuses generally on the reasonableness of the officer’s asserted custody or control of the item seized and searched, and insofar as the officer’s decision to impound the vehicle or seize the item stems from concerns that the vehicle or item could be lost or stolen and the officer could be liable for such loss or theft as a result of the officer having separated the owner from the vehicle or item, the officer may impound or seize regardless of whether the vehicle or item could remain in its location legally if not seized, whether another person could acquire the item on the defendant’s behalf, or whether the item is valuable. State v. Byrom, 2018-NMCA-016, cert. denied.

Where a law enforcement officer was dispatched to assist emergency medical personnel concerning defendant, who was found slumped over the steering wheel of his vehicle in an unresponsive state, and where the officer, after defendant was taken to the hospital for medical attention, inventoried defendant’s vehicle pursuant to department policy, finding drugs in the vehicle, the officer's decision to impound and inventory defendant's vehicle was reasonable under the impoundment and inventory doctrine, because it was the officer that was responsible for separating defendant from his vehicle and therefore the officer must also be the person responsible for safeguarding the vehicle and for taking precautionary measures to protect himself from suit should he fail to do so effectively, and the fact that the inventory search was not incident to arrest is immaterial. State v. Byrom, 2018-NMCA-016, cert. denied.

Emergency assistance doctrine applied under the United States Constitution. — A warrantless entry and search of a home is permitted under the emergency assistance doctrine of the fourth amendment if the state establishes two elements, that police have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, and that there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Yazzie, 2019-NMSC-008, rev'g No. 34,537, mem. op. (N.M. Ct. App. May 11, 2017) (non-precedential).

Where a law enforcement officer entered defendant's apartment without a warrant and discovered evidence of child abuse, the district court did not err in denying defendant's motion to suppress evidence where the facts established that the officer was dispatched to defendant's residence to conduct a welfare check based on a report from a concerned neighbor, that the officer knocked on the apartment door multiple times very loudly and announced himself as a police officer over the course of eight to ten minutes, that the only response to the officer's knocking was an infant crying continuously and a young child yelling “Mommy, wake up”, that the officer observed the doorknob to the apartment door rattle as though someone was trying, but unable, to open the door from the inside, that the officer believed that someone in the apartment was hurt or otherwise incapacitated, leaving the children unattended, and based on these circumstances, the officer opened the unlocked door and entered the apartment where he observed defendant and an adult woman lying on the floor with two children under six years of age and an infant in the same room; the officer's observations and first-hand knowledge about the presence of small children, who were apparently unsupervised and unable to rouse their parents, supports the objective reasonableness of the officer's conclusion that he needed to take action to protect life or property. The officer's entry and subsequent search were objectively reasonable and thus permissible under the emergency assistance doctrine of the fourth amendment to the United States constitution. State v. Yazzie, 2019-NMSC-008, rev'g No. 34,537, mem. op. (N.M. Ct. App. May 11, 2017) (non-precedential).

The New Mexico constitution provides broader protection when applying the emergency assistance doctrine. — Inquiry into an officer's primary motivation for a warrantless entry affords individuals broader protection against baseless, warrantless intrusions into their homes, and therefore, for the emergency assistance doctrine to apply under the New Mexico constitution, police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, that the search is primarily motivated by a strong sense of emergency and is not primarily motivated by an intent to arrest a suspect or to seize evidence, and that there is some reasonable basis, approximating probable cause to associate the emergency with the area or place to be searched. State v. Yazzie, 2019-NMSC-008, rev'g No. 34,537, mem. op. (N.M. Ct. App. May 11, 2017) (non-precedential).

Where a law enforcement officer entered defendant's apartment without a warrant and discovered evidence of child abuse, the district court did not err in denying defendant's motion to suppress evidence where the facts established that the officer was dispatched to defendant's residence to conduct a welfare check based on a report from a concerned neighbor, that the officer knocked on the apartment door multiple times very loudly and announced himself as a police officer over the course of eight to ten minutes, that the only response to the officer's knocking was an infant crying continuously and a young child yelling “Mommy, wake up”, that the officer observed the doorknob to the apartment door rattle as though someone was trying, but unable, to open the door from the inside, that the officer believed that someone in the apartment was hurt or otherwise incapacitated, leaving the children unattended, and based on these circumstances, the officer opened the unlocked door and entered the apartment where he observed defendant and an adult woman lying on the floor with two children under six years of age and an infant in the same room; the officer had objectively reasonable grounds to believe that there was an emergency that required his immediate assistance to protect the children and their mother, and that there was a reasonable basis for the officer to associate the emergency with the apartment he ultimately entered and searched, and there was substantial evidence to support the district court's conclusion that the officer's primary motivation for entry was to render aid and protection from harm. State v. Yazzie, 2019-NMSC-008, rev'g No. 34,537, mem. op. (N.M. Ct. App. May 11, 2017) (non-precedential).

Emergency assistance doctrine. — Under the emergency assistance doctrine, an officer’s warrantless entry into a home is justified if the state can establish that the police have reasonable grounds to believe that there is an emergency at hand and that there is an immediate need for their assistance for the protection of life or property, that the search is not primarily motivated by intent to arrest and seize evidence, and that there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. State v. Cordova, 2016-NMCA-019, cert. granted, 2015-NMCERT-008.

Where officers entered defendant’s home without a warrant following a collision between defendant’s vehicle and a motorcyclist, where the motorcyclist was killed and the driver and occupants of defendant’s vehicle fled the scene, the state failed to establish that the officers had reasonable grounds to believe that defendant might have been injured to an extent requiring the officers’ immediate entry and assistance where there was no concrete evidence that defendant was the driver involved in the accident, and assuming the officers knew that defendant was the driver, they had no specific evidence that defendant was seriously injured and in need of immediate aid, such as blood in the vehicle, impacts to the windshield from the inside of the vehicle, or information from witnesses that the occupants of the vehicle appeared injured when they fled the scene, and the officers had no specific information that defendant was even at home when the officers made the warrantless entry of defendant’s home, and there were no signs of injury, such as blood, noted on defendant’s property. State v. Cordova, 2016-NMCA-019, cert. granted, 2015-NMCERT-008.

Only a genuine emergency will justify entering and searching a home under the community caretaker doctrine. — Where officers responded to a domestic violence call made by defendant’s girlfriend, who had been staying at defendant’s apartment for a few days, the officers’ entry into the apartment and subsequent discovery and seizure of drug paraphernalia was not valid under the community caretaker doctrine, because defendant had already left the apartment and the officers did not have credible and specific information that a victim was very likely to be located at that particular place and in need of immediate aid to avoid great bodily harm or death, and although the Family Violence Protection Act, Chapter 40, Article 13 NMSA 1978, contemplates law enforcement assistance to protect a victim of domestic violence from further abuse when retrieving items from inside the victim’s residence, it does not circumvent the requirement that only a genuine emergency will justify entering and searching a residence without a warrant and without consent, and in this case there was no indication of an emergency inside the apartment justifying a warrantless entry. State v. Ramos, 2017-NMCA-041.

Community caretaker doctrine. — The test of legitimacy under the community caretaker doctrine is whether the officers' actions were objectively reasonable and in good faith. State v. Nemeth, 2001-NMCA-029, 130 N.M. 261, 23 P.3d 936, overruled by State v. Ryan, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032.

A response by law enforcement officers to a call seeking assistance in regard to a possible suicide inside a home can be characterized both as the rendering of emergency aid or assistance and the rendering of assistance out of a concern for a person's safety and welfare for purposes of application of the community caretaker exception to the fourth amendment warrant requirement. State v. Nemeth, 2001-NMCA-029, 130 N.M. 261, 23 P.3d 936, overruled by State v. Ryan, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032.

An officer who acts in the community caretaker capacity is still subject to state and federal constitutional constraints with respect to a weapons frisk because it is distinct from a welfare check. State v. Boblick, 2004-NMCA-078, 135 N.M. 754, 93 P.3d 775, cert. denied, 2004-NMCERT-006.

Officer was not acting as a community caretaker. — The search undertaken by the police officer was not a community caretaking encounter with defendant, consensual or otherwise, but rather, it was a search of his property while defendant was incapacitated. As police officer looked in the ER examination room, saw the clothes lying on the floor, and of his own volition entered the room, picked up the pants, and searched the pockets, the state did not present substantial evidence as to the reasonableness of police officer's belief that his aid and assistance was necessary, and police officer's search of defendant's clothes was done for the purpose of investigating possible criminal activity or obtaining incriminatory evidence, rather than pursuant to a community caretaking function. State v. Gutierrez, 2005-NMCA-015, 136 N.M. 779, 105 P.3d 332, cert. quashed, 2005-NMCERT-006, 137 N.M. 768, 115 P.3d 231.

E. PLAIN VIEW DOCTRINE.

Plain view doctrine. — It is not a search to observe that which occurs openly in a public place and which is fully disclosed to visual observation, and there is no seizure in disregard of any lawful right when officers retrieve and examine the packets which have been dropped in a public place. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210.

The constitutional prohibition is directed to unreasonable searches and seizures so that people may be secure in their persons, houses, papers and effects, and does not apply to items viewed in an open field. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Seizure of contraband observed in plain view. — The seizure of contraband observed in plain view inside an automobile, by an officer who observed it during a lawful traffic stop, is justified by the exigent circumstances exception to the warrant requirement, because the contraband is in plain view not only to the officer, but also to the public at large and therefore, if left alone, it can easily be tampered with or destroyed. State v. Bomboy, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045, rev'g 2007-NMCA-081, 141 N.M. 853, 161 P.3d 898.

Affidavit submitted after suppression hearing provided sufficient evidence to support probable cause for seizure of fentanyl pills. — Where defendant was charged with possession of a controlled substance when a police officer seized fentanyl pills that he observed in plain view on defendant's lap while defendant was sitting in his vehicle, the district court correctly concluded that because the record was void of any facts or circumstances indicating that the officer had a reasonable belief that defendant was in possession of fentanyl, at the moment of seizure, without prescription or order of a practitioner, the state failed to carry its burden of establishing probable cause that a crime was being committed, but the affidavit of the officer, submitted after the suppression hearing, provided sufficient evidence that he had probable cause to believe that defendant did not possess the fentanyl pills pursuant to a prescription or practitioner's order and were contraband prior to the seizure. State v. Frazier, 2026-NMCA-017, cert. granted.

Plain view exception to the warrant requirement. — Under the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime. The “immediately apparent” language requires that there be probable cause without the need for further search or an additional invasion of privacy and possessory interests. Probable cause exists when the facts and circumstances warrant a belief that the accused had committed an offense, or is committing an offense, and must be evaluated in relation to the circumstances as they would have appeared to a prudent, cautious and trained police officer. An officer must acquire information establishing probable cause to believe that an item is possessed unlawfully before seizing it. State v. Sanchez, 2015-NMCA-084.

Where police officer initiated a traffic stop after discovering that defendant’s vehicle registration had expired, the officer observed a clear, plastic bag on the floorboard of the vehicle containing capsules or pills, and where defendant attempted to conceal the bag on the floorboard by trying to slide it underneath the driver’s seat, the New Mexico court of appeals held that the existence of two pills contained within a small bag on the floorboard of the car was insufficient to convey evidence of criminality that would be apparent to the officer based upon mere observation, and defendant’s attempt to conceal the bag containing pills that may or may not have been lawfully possessed, without any testimony from the officer indicating suspicious circumstances or specific knowledge about defendant or the item seized, is not an act that supplied the officer with a suspicion that rose to the level of probable cause. State v. Sanchez, 2015-NMCA-084.

Plain view doctrine applied. — There is no seizure in the sense of the law when the officers examined the contents of a napkin after it had been dropped to the street. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210.

Where police officer testified that when he knocked on the door and entered at the invitation of the defendant, he did so only for the purpose of talking to whoever was present concerning blood found in a car parked outside, but where at that time he had been advised of the assault on the complaining witness in the case and when he saw the defendant and the bloody clothes, both on him and in the room, defendant was placed under arrest and the clothes were gathered up and taken to the police station along with defendant, there was no illegal search and seizure, and, accordingly, the clothing taken from defendant's room was admissible in the trial of the charges against him. State v. Blackwell, 1966-NMSC-088, 76 N.M. 445, 415 P.2d 563.

A package thrown from a car as it stops is not procured through a search; neither is there a seizure, and the contents thereof are admissible evidence. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210.

Where stolen rings and clothes were seen next to codefendant at the time he was discovered hiding in the closet, the items were in plain view, and there was no subsequent search. State v. Hansen, 1974-NMCA-131, 87 N.M. 16, 528 P.2d 660.

Where police officer saw a gun in plain view from outside a car as the driver was being given a traffic citation, the requirements of the plain view doctrine are met. However, under New Mexico constitution, even with gun in plain view, officer may not enter vehicle and seize gun without consent, warrant or exigent circumstances. State v. Garcia, 2005-NMSC-017, 138 N.M. 1, 116 P.3d 72, aff'g in part, rev'g in part, 2004-NMCA-066, 135 N.M. 595, 92 P.3d 41.

Where heroin seized during a search pursuant to a warrant was physically located on property upon which there was an unoccupied house, and not within the curtilage as specified in the warrant, it was held that although the warrant did not authorize a search outside the curtilage, the can containing the heroin was viewed from a place the officer had a right to be under the warrant, and consequently, it was not discovered as a result of an illegal search. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Officer entitled to look into parked vehicle once investigatory stop completed. — Once the purpose of an investigatory stop is completed, an officer still has the right to look into a vehicle parked on a public road, and may then seize contraband which is in plain view. State v. Powell, 1983-NMCA-004, 99 N.M. 381, 658 P.2d 456, cert. denied, 99 N.M. 358, 658 P.2d 433.

Plain view doctrine did not apply. — Where law enforcement officers who were executing a valid warrant authorizing the search of the defendant’s home for evidence of criminal sexual penetration observed parts of protected game animals in the defendant’s home and called in a conservation officer to determine whether the defendant was in violation of game and fish laws, the conservation officer’s entry into the defendant’s home to look for evidence of violations of game and fish laws and the conservation officer’s subsequent seizure of items of the defendant’s personal property was not a legitimate extension of the plain view observations of the officers executing the search warrant because the incriminating nature of the animal parts would not be immediately apparent unless and until the investigating officer has probable cause that the animal parts are unaccompanied by proper documentation, the conservation officer’s entry into the defendant’s home was unlawful, and the items of personal property seized by the conservation officer were the fruits of an unlawful entry. State v. Moran, 2008-NMCA-160, 145 N.M. 297, 197 P.3d 1079.

The plain view doctrine does not apply to marijuana found in defendant's car, which marijuana was enclosed in a burlap-like sack, where neither of the police officers involved can testify that he was able to see inside the bag. State v. Coleman, 1974-NMCA-147, 87 N.M. 153, 530 P.2d 947.

Where the marijuana seized was not in plain view until the officers ordered the defendants out of the car and proceeded to enter the car themselves, the plain view doctrine did not apply since in order for the plain view rule to be applicable, the officers must lawfully be in the position that enabled them to see what is allegedly in plain view. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824.

Where contraband was discovered when officers opened a cedar chest, a metal pill box in a purse in an overnight case while searching for heroin, the "plain view" doctrine did not justify its seizure of the contraband. However, seizure of the contraband was permissible under the facts of the case because where permission has been given to search for a particular object, the ensuing search remains valid as long as its scope is consistent with an effort to locate that object and other evidence observed in the course of such a lawful search may also be seized. State v. Alderete, 1976-NMCA-001, 88 N.M. 619, 544 P.2d 1184.

F. OTHER EXCEPTIONS.

A warrantless arrest supported by probable cause is reasonable if exigency exists. — The overarching inquiry in reviewing warrantless arrests is whether it was reasonable for the officer not to procure an arrest warrant; a warrantless arrest supported by probable cause is reasonable if some exigency existed that precluded the officer from securing a warrant. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Where defendant was detained after store personnel observed him shoplifting flashlights, defendant was frisked and his possessions and the stolen flashlights were displayed on a table to present to law enforcement; officers arrived at the scene and developed probable cause to arrest defendant based on their review of the store surveillance video-tape and the evidence of shoplifting displayed on the table before them. The officers arrested defendant without a warrant, pursuant to 30-16-23 NMSA 1978, and searched defendant’s belongings incident to the arrest, finding hypodermic needles and heroin. The supreme court held that it was reasonable for the officers to make a warrantless arrest where they had probable cause, and when securing a warrant was not reasonably practical before responding to the scene, because the officers did not have the information supporting probable cause or the time to act on it prior to arriving on scene, and that an on-the-scene arrest supported by probable cause supplied the requisite exigency. The subsequent search of defendant was therefore a lawful search incident to arrest. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Inevitable discovery doctrine did not apply. — Where the loss prevention personnel of a store observed defendant place flashlights under defendant’s jacket and leave the store without paying for the them; defendant was detained in the loss prevention office; when the police officers arrived, they spoke with the loss prevention personnel and learned the facts leading up to defendant’s detention; the officers entered the office and immediately handcuffed defendant and conducted a pat down search; the officers searched defendant’s backpack and discovered hypodermic needles and heroin; defendant’s warrantless arrest was illegal because the state failed to show exigent circumstances to support the arrest; and the state argued that the evidence would have been inevitably discovered in an inventory search, the evidence would not have been inevitably discovered because an inventory search would not have been independent of the illegal arrest. State v. Paananen, 2014-NMCA-041, cert. granted, 2014-NMCERT-003.

State did not meet its burden to establish the validity and reasonableness of the search under the inevitable discovery doctrine. — Where police officers went to defendant’s house to execute an arrest warrant for criminal trespass, and where, upon arriving, found defendant in an alley behind her house with a purse hanging over her shoulder, and where, after placing defendant under arrest, the officers took possession of defendant’s purse and searched it, locating a small knife and two flashlights, one of which contained .14 grams of methamphetamine, and where defendant moved to suppress all controlled substances seized by officers, and where the district court sua sponte took judicial notice of the inventory policies and procedures of the Curry County detention center in concluding that the evidence would have been inevitably discovered during the jail’s inventory process, but the district court did not properly take judicial notice of the jail’s inventory process because it failed to establish on the record how the inventory process is the subject of common and general knowledge or is well established and settled. Therefore, there is no evidence in the record to establish the jail’s inventory process and whether it would have inevitably discovered the methamphetamine in defendant’s purse. State v. Ortiz, 2023-NMSC-026, aff’g A-1-CA-34703, mem. op. (N.M. Ct. App. Sept. 10, 2018) (nonprecedential).

"Hot pursuit" doctrine. — Where shortly after an armed robbery an officer saw defendant, who fit the description of one of the robbers, enter a house and after about ten minutes the officers actually entered the house, the doctrine of "hot pursuit" applied and the entry by the officers was a valid intrusion. State v. Hansen, 1974-NMCA-131, 87 N.M. 16, 528 P.2d 660.

Search of wallet seized during arrest. — Where the defendant’s wallet was seized incident to his lawful arrest, the inventory search exception justified the search of the defendant’s wallet. State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521, abrogated, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

Governmental interests supporting inventory search exception. — Three governmental interests support the existence of the inventory search exception: to protect the arrestee’s property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, or to protect the police from danger. State v. Davis, 2018-NMSC-001, rev’g 2016-NMCA-073, 387 P.3d 274.

Valid inventory search. — An inventory search is valid if the police have lawful control or custody of the object of the search, which demands an inquiry into whether there is a reasonable nexus between the arrest and the seizure of the object to be searched, if the inventory search is conducted in conformity with established police regulations, and if the search is reasonable. State v. Davis, 2018-NMSC-001, rev’g 2016-NMCA-073, 387 P.3d 274.

Where patrol officer began to follow defendant on suspicion of driving on a revoked license, and where defendant drove his motorcycle into the driveway of his home, parked the motorcycle, took off his backpack and placed it on top of a vehicle that was parked in the carport of the home, and where the officer, after confirming that defendant was driving on a revoked license, arrested defendant and seized and searched defendant’s backpack, finding three bags of marijuana, the warrantless search of defendant’s backpack was a valid inventory search, because defendant possessed the backpack at the time of the arrest and a reasonable nexus existed between the arrest and the seizure and inventory search of the backpack; a defendant is in “possession” of any object that the defendant loses control over as a consequence of arrest and where that loss of control gives rise to the possibility that the object might be lost, stolen or destroyed and the police potentially held liable for the loss, theft, or destruction. State v. Davis, 2018-NMSC-001, rev’g 2016-NMCA-073, 387 P.3d 274.

Inventory search exception. — For a constitutional, lawful inventory search, the police must have control or custody of the object of the search, the inventory must be carried out pursuant to established police regulations, and the search must be reasonable and conducted in good faith. To be a reasonable search, it must be made pursuant to an established procedure and further any one of the following three purposes: to protect the arrestee’s property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, or to protect the police from potential danger. State v. Davis, 2016-NMCA-073, cert. granted.

Seach of zipped backpack was not justified as a valid inventory search. — Where defendant, who had an outstanding warrant for failure to appear in court, was found and arrested in a back room of an apartment, where defendant's backpack was also found, and where the police searched the closed backpack as part of an inventory search and found drugs and drug paraphernalia, the district court erred in denying defendant's motion to suppress the contents of the backpack, because no government interest justified the warrantless inventory search of the zipped backpack. Opening the backpack was not reasonably necessary to protect the police from potential danger, that is, that opening and searching the backpack was safer than leaving it closed. Moreover, defendant's property was adequately protected from damage or loss by inventorying the closed backpack as a unit. State v. Marquez, 2026-NMCA-020, cert. granted.

Where patrol officer began to follow defendant, who was driving a motorcycle, on suspicion of driving with a revoked driver’s license, and where defendant pulled into the driveway of his home, parked his motorcycle, took off his backpack and placed it on top of his car that was parked in his carport, and where the officer, after confirming that defendant was driving on a revoked license, arrested defendant, the warrantless search of defendant’s backpack was not a lawful inventory search because a reasonable nexus between the arrest and the seizure was absent because defendant did not have physical possession of the backpack at the time of his arrest and because it was seized at defendant’s home, and the state failed to satisfy the requirement that the purported inventory search was made in accordance with police guidelines where the officer testified that the sheriff’s department only inventoried items on the person of an arrestee at the time of the arrest, and, as noted, defendant did not have physical possession of the backpack when he was arrested. State v. Davis, 2016-NMCA-073, cert. granted.

Search not permissible under the plain-feel doctrine. — Where, during a lawful protective patdown of defendant for a weapon, the officer felt a hard object in defendant’s jacket pocket; it was immediately apparent to the officer that the object was not a weapon; and the officer had to manipulate the object to determine that the object was a glass drug pipe, the officer went beyond the lawful parameters of a protective patdown and the seizure of the glass pipe was not permissible under the plain-feel doctrine. State v. Johnson, 2010-NMCA-045, 148 N.M. 237, 233 P.3d 371.

Inevitable discovery exception. — The inevitable discovery doctrine applies where evidence may have been seized illegally, but where an alternative legal means of discovery such as a routine police inventory search would inevitably have led to the same result. State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, cert. denied, 130 N.M. 213, 22 P.3d 681.

For the doctrine to apply, the alternate source of evidence must be pending, but not yet realized. If the alternate source has been realized, and the evidence seized or "reseized" according to this alternate source, the inevitable discovery doctrine is no longer applicable. Instead, the admissibility of the evidence must be evaluated under the independent source doctrine. State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, cert. denied, 130 N.M. 213, 22 P.3d 681.

Independent source doctrine. — The independent source doctrine (an exception to the exclusionary rule where evidence is legally seized after an illegal search) is inapplicable to a search conducted pursuant to a warrant based partially on tainted information gathered during a prior illegal search. State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, cert. denied, 130 N.M. 213, 22 P.3d 681.

Sufficient attenuation of live witness testimony as exception to the exclusionary rule. — Witness testimony, though causally related to an illegal search, may become sufficiently attenuated from the illegality, considering whether the witness is willing to testify and whether the purpose served by excluding the witness testimony outweighs the cost of forever precluding the witness from testifying. State v. Martinez, 2015-NMCA-013.

Where defendant was charged with numerous sex offenses and drug offenses, and where the court of appeals affirmed the trial court’s decision to suppress all physical evidence seized from the defendant’s home and vehicle, all statements made by defendant and the testimony of the victim; on motion for reconsideration following the first appeal, the court of appeals determined that it was appropriate for the trial court to consider the state’s motion for reconsideration that was based on a new argument and new authority; the court of appeals held that live witness testimony, though causally related to an illegal search may become sufficiently attenuated from the illegality if the witness is willing to testify; the state, however, failed to present testimony in person, or by affidavit, to show the willingness of the witness to testify and therefore the district court properly denied the motion for reconsideration. State v. Martinez, 2015-NMCA-013.

Evidence obtained during second traffic stop need not be excluded where sufficient attenuation existed between two traffic stops. — Where police officers received information supporting an investigation into ownership of a van that defendant was towing after an initial unconstitutional stop of defendant’s vehicle had ended, sufficient attenuation existed between the first and second stop of defendant’s vehicle to purge any taint resulting from the illegal first stop, where there was a complete end to the first stop and a clear beginning to the subsequent stop, there existed an intervening circumstance between the two stops, and there was no showing of flagrant misconduct on the part of the law enforcement officers. State v. Monafo, 2016-NMCA-092, cert. denied.

Police officer's unconstitutional conduct was not sufficiently attenuated by a preexisting arrest warrant. — Where defendant was stopped by a Silver City police officer simply because he was walking along a street late at night, pursuant to a Silver City police department practice whereby officers routinely pull up to unknown individuals walking at night and ask for their names and dates of birth for the purpose of assisting officers in potentially solving crimes that occurred later in the night, and where the police officer later learned that defendant had an outstanding warrant for his arrest, pulled up to defendant again, arrested defendant on the warrant, and while conducting a search incident to arrest, discovered methamphetamine on defendant's person, under the totality of the circumstances, defendant was seized under the fourth amendment because a reasonable person, based on the officer's actions of stopping defendant who was simply walking alone at night, shining his patrol vehicle headlights on defendant, and asking defendant his name, where he lived, and his date of birth, would not have felt free to disregard the officer's questions and walk away. The officer's actions were investigatory in design and purpose, and therefore the evidence discovered on defendant's person was inadmissible because the seizure was not sufficiently attenuated by the preexisting arrest warrant. State v. Ramey, 2020-NMCA-041.

New crimes exception attenuation analysis. — A court, when determining whether seized evidence has been purged of the taint of the original illegality, must consider the lapsed time between the illegality and the acquisition of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. State v. Tapia, 2018-NMSC-017, rev’g 2015-NMCA-055, 348 P.3d 1050.

New crimes exception may apply to both violent and non-violent crimes. — The new crime exception to the exclusionary rule may apply to both violent and non-violent crimes committed in response to unlawful police actions. State v. Tapia, 2018-NMSC-017, rev’g 2015-NMCA-055, 348 P.3d 1050.

Where defendant was charged with forgery and concealing identity after the vehicle in which he was a passenger was stopped by a state police officer for travelling at forty miles per hour in a fifty-five mile per hour zone and because the officer was unable to read the license plate, and where defendant, after being given a “no seat belt” citation, gave a false name and signed his brother’s name to the citation, and where, at the scene, the officer later discovered defendant’s real identity, the officer lacked reasonable suspicion to initiate the traffic stop because there was no violation of the traffic laws, but the district court did not err in denying defendant’s motion to suppress evidence of the forgery and concealing identity, because defendant’s misrepresentation of his identity was an intervening circumstance, there was nothing in the record to indicate that the officer initiated the traffic stop for the specific purpose of investigating defendant or for some other pretextual reason, and the benefits of deterrence in this case are not outweighed by the cost of excluding the evidence of defendant’s crimes. Therefore defendant’s attempts to conceal his identity after the unlawful traffic stop sufficiently purged the taint of the initial illegality so as to render the exclusionary rule inapplicable under both the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution. State v. Tapia, 2018-NMSC-017, rev’g 2015-NMCA -055, 348 P.3d 1050.

Defendant's actions following unlawful seizure constituted a new crime. — Where a law enforcement officer, in response to a "fight in progress" report, approached defendant in the middle of the night, and where defendant attempted to flee but was pursued by and caught by the officer, who had not yet identified himself as a police officer, and where defendant and others tackled and restrained the officer, who then identified himself as an officer, but despite this identification, defendant continued to restrain the officer until additional officers arrived, and where defendant was arrested and charged with aggravated battery of a police officer, false imprisonment, and two counts of criminal damage to property, and where defendant filed a motion to suppress all evidence resulting from the altercation with the officer, asserting that he was unlawfully seized because the officer lacked reasonable suspicion, and where the district court found that defendant was unlawfully seized because law enforcement lacked reasonable suspicion that he was involved in criminal activity, the district court erred in granting defendant's motion to suppress, because defendant's actions, failing to end his restraint of the officer and failure to comply with the officer's commands after the officer had clearly identified himself as a law enforcement officer were unrelated to the initial action on the part of the police, and constituted an intervening circumstance sufficient to attenuate the taint of the unlawful seizure. Defendant's acts were a new crime and thus the evidence of defendant's battery on a peace officer, false imprisonment, and criminal damage to property charges were sufficiently attenuated from the initial illegal seizure to be admissible. State v. Morgan, 2024-NMCA-057, cert. granted.

The new crime exception to the exclusionary rule applied where the new crime committed by defendant was sufficiently attenuated from the unconstitutional police conduct. — The district court did not err in admitting evidence that defendant attempted to elude arrest through a physical altercation with a law enforcement officer, which supported charges of battery upon a peace officer, assault upon a peace officer, and resisting, evading, or obstructing an officer, even though the initial stop of defendant was not supported by reasonable suspicion and was therefore unconstitutional due to the arresting officer's mistaken belief that defendant was violating the pedestrians on roadways statute, 66-7-339 NMSA 1978, because defendant's new crimes created sufficient intervening circumstances to purge the taint of the initial, unconstitutional stop. Evidence obtained from a constitutionally unreasonable search is generally suppressed, but where a defendant commits a new crime that is sufficiently attenuated from the unconstitutional police conduct such that the connection between that conduct and the evidence is remote, the evidence can be used against the defendant. State v. Penman, 2024-NMSC-024, rev'g in part 2022-NMCA-065, 521 P.3d 96, and overruling State v. Phillips, 2009-NMCA-021, 145 N.M. 615, 203 P.3d 146.

New crime exception to the exclusionary rule. — Where defendant was initially detained for violating the pedestrians on roadways statute, § 66-7-339(A) NMSA 1978, and was later arrested for resisting, evading or obstructing an officer, and where, following defendant’s arrest, baggies containing cocaine, marijuana, and methamphetamine were found where defendant was arrested and in the patrol vehicle where defendant was placed, and where defendant was charged with two counts of possession of a controlled substance, one count of battery upon a peace officer, one count of assault upon a peace officer, one count of resisting, evading or obstructing an officer, one count of pedestrians on roadways, and one count of possession of marijuana, and where defendant claimed that all evidence and statements flowing from the stop should be suppressed because the arresting officer lacked reasonable suspicion to investigate him for violating § 66-7-339, the district court did not err in denying defendant’s motion to suppress, because although the arresting officer lacked reasonable suspicion to stop defendant for a violation of § 66-7-339 because there was no testimony that defendant was walking along and upon the road when the officer stopped him, defendant’s physical altercation with the arresting officer created an exception as a new crime, allowing the evidence of defendant’s other charges to be admissible. The evidence of defendant’s battery, assault, and resisting, evading or obstructing charges were sufficiently attenuated to purge the taint of the initial illegality and were therefore admissible. State v. Penman, 2022-NMCA-065, 521 P.3d 96, rev’d in part on other grounds by 2024-NMSC-024.

New crime exception to the exclusionary rule is limited. — The purpose of the exclusionary rule is to deter police misconduct; when a defendant commits a new crime that endangers the safety of a police officer or endangers public safety following an improper detention, the need to protect law enforcement officers outweighs the deterrent to police misconduct provided by immunizing the defendant’s actions from criminal liability, but the policy reasons for recognizing a new crime exception to the exclusionary rule do not exist when a non-violent, identity-related offense is committed in response to unconstitutional police conduct. State v. Tapia, 2015-NMCA-055, cert. granted, 2015-NMCERT-005.

Where defendant was a passenger in a vehicle that was stopped without reasonable suspicion, the police officer observed defendant committing a seatbelt violation and asked defendant for identification, and where defendant concealed his identity by giving the officer a false name and committed forgery by signing the citation issued by the officer in the false name defendant had given to the officer, the court of appeals held that the commission of a non-violent, identity-related offense in response to unconstitutional police conduct does not automatically purge the taint of the unlawful police conduct under federal law, and that suppression of the evidence of defendant’s new crimes was appropriate because evidence of the new crimes flowed directly from observing an alleged seat belt violation during the unlawful seizure. State v. Tapia, 2015-NMCA-055, cert. granted, 2015-NMCERT-005.

Meaning of the phrase "at the scene". — The phrase "at the scene" as used in 31-1-7(A) NMSA 1978 must be read broadly to enable a police officer to make a warrantless arrest within a reasonable time and distance from when and where a domestic disturbance occurred. State v. Almanzar, 2014-NMSC-001, rev'g 2012-NMCA-111, 288 P.3d 238.

Where defendant and the victim began quarreling in a parking lot; defendant kicked the victim; and the police arrested defendant for domestic violence at a store across the street from the parking lot within minutes after the victim called 911, defendant's warrantless arrest was lawful under 31-1-7(A) NMSA 1978 because the arrest was make in close proximity to when and where the incident occurred. State v. Almanzar, 2014-NMSC-001, rev'g 2012-NMCA-111, 288 P.3d 238.

Evidence from a warrantless arrest incident to domestic disturbance. — Where police officers responded to a domestic violence incident that had occurred in a parking lot between defendant and defendant’s live-in friend; after the incident, defendant and defendant’s friend had both left the parking lot and had gone to two separate locations away from the parking lot; the officers found defendant at a convenience store that was near the parking lot; and the officers conducted a pat-down search of defendant and discovered cocaine in defendant’s pants pocket, the district court erred in holding that the evidence would have been inevitably discovered during a search incident to a legal arrest for misdemeanor domestic battery because an arrest could only have been effectuated at the parking lot where the domestic battery had occurred. State v. Almanzar, 2012-NMCA-111, 288 P.3d 238, cert. granted, 2012-NMCERT-011, rev'd, 2014-NMSC-001.

A protective search or sweep. — A protection search or sweep is only allowed incident to a lawful arrest; thus, since the officers entered and searched a bedroom before they arrested the defendant, the search and seizure could not be upheld as a protective sweep. State v. Wright, 1995-NMCA-016, 119 N.M. 559, 893 P.2d 455, cert. denied, 119 N.M. 389, 890 P.2d 1321.

Search of medicine cabinet cannot be upheld as a protective sweep, and motion to suppress the contents of the medicine cabinet and all the fruits of the search of the medicine cabinet should be granted. State v. Zamora, 2005-NMCA-039, 137 N.M. 301, 110 P.3d 517, cert. quashed, 2005-NMCERT-012, 138 N.M. 773, 126 P.3d 1137.

A protective sweep is allowed only incident to a lawful arrest. — Where officers responded to a domestic violence call made by defendant’s girlfriend, who had been staying at defendant’s apartment for a few days, the officers’ entry into the apartment and subsequent discovery and seizure of drug paraphernalia was not a valid protective sweep, because although the officers testified that they cleared the apartment to ensure their safety and that they only looked where a person may be located or hiding, the sweep was not done incident to a lawful arrest because defendant had already left the apartment, and the officers did not articulate facts that would justify a protective sweep. State v. Ramos, 2017-NMCA-041.

The district court's failure to suppress defendant's un-Mirandized admission that he had a syringe in his motel room did not result in fundamental error. — Where defendant was arrested outside a motel in Alamogordo, New Mexico based on an outstanding warrant, and where arresting officers conducted a sweep of defendant's motel room following questioning by police incident to his arrest, during which defendant stated that he had a loaded syringe in the motel room, which was later determined to contain methamphetamine, and where defendant argued that the state failed to show that the officers had an objectively reasonable need to protect the police or the public from immediate danger and that the district court erred in refusing to suppress his response to the officer's question about the contents of his motel room, the district court erred in failing to suppress defendant's un-Mirandized admission, because there was no evidence presented that defendant possessed a weapon or that he had any dangerous objects on his person at the time he was arrested and there was no evidence affirmatively establishing the presence of another person inside the motel room, and therefore, under the totality of the circumstances, questioning defendant about the contents of his motel room was not objectively reasonable based on a need to protect either the police or the public from an immediate danger; the admission of defendant's statement, however, did not result in fundamental error because defendant did not move to suppress the syringe or its contents and the jury would have heard testimony that officers found a syringe loaded with methamphetamine in plain sight in defendant's motel room. State v. Dirickson, 2024-NMCA-040, cert. denied.

G. TRAFFIC STOPS.

Unknown liability insurance compliance status provides reasonable suspicion to make investigatory stop. — Where police officer, on routine patrol, entered the license plate number of the vehicle defendant was driving into the patrol car’s mobile data terminal, which remotely accesses records maintained by the motor vehicle department regarding the insurance compliance status of vehicles registered in New Mexico, and where the query returned a result indicating that the compliance status of the vehicle was unknown, there was a reasonable basis for suspecting that defendant’s vehicle was probably uninsured in violation of 66-5-205(B) NMSA 1978, and therefore the officer had reasonable suspicion to stop defendant’s vehicle. State v. Yazzie, 2016-NMSC-026, rev’g 2014-NMCA-108, 336 P.3d 984.

Traffic stop based on the unknown insurance status of a vehicle. — Where defendant was driving a vehicle when a police officer entered the vehicle’s license plate number into the mobile data terminal in the police car which informed the officer that defendant’s vehicle insurance status was "unknown"; the officer then stopped defendant’s vehicle; and the only basis for the stop was the information that the vehicle’s insurance status was unknown, the stop was not constitutionally authorized because the information known to the officer did not provide any specific articulable facts to support a suspicion that defendant was committing a crime by driving an uninsured vehicle. State v. Yazzie, 2014-NMCA-108, cert. granted, 2014-NMCERT-010.

Traffic stop cannot be based on a probability. — Where defendant was driving a vehicle when a police officer entered the vehicle’s license plate number into the mobile data terminal in the police car which informed the officer that defendant’s vehicle insurance status was "unknown"; and based on the testimony of a witness from the motor vehicle division, the district court concluded that because there was an 80% to 90% chance that the owner of a vehicle with an unknown insurance status had not obtained insurance, its was reasonable for the officer to suspect that defendant did not have insurance, a strong correlation between "unknown" status and being uninsured was insufficient by itself to support a traffic stop because evidence must be particularized to the person who is stopped for a violation and those facts must be articulated, rather than based solely on probability. State v. Yazzie, 2014-NMCA-108, cert. granted, 2014-NMCERT-010.

Reasonable basis to stop defendant for failing to stop at a stop sign. — Where a patrol officer observed defendant’s vehicle approach a four-way intersection at a high rate of speed, and upon reaching the intersection, defendant’s vehicle went past the stop sign and into the intersection before coming to a complete stop, and where the officer activated his emergency lights and pulled defendant over for failing to stop at the stop sign, and as a result, obtained evidence that led to defendant’s arrest and conviction for driving while intoxicated, the district court did not err in finding that there was reasonable suspicion for the officer to pull defendant over for a traffic violation, because the record, viewed in the light most favorable to the district court’s ruling, includes sufficient evidence to support the district court’s finding that the officer had an objectively reasonable basis to stop defendant for violating 66-7-345(C) NMSA 1978. State v. Martinez, 2018-NMSC-007, rev’g 2015-NMCA-051, 348 P.3d 1022.

Traffic stop must be based on reasonable suspicion or probable cause. — To conduct a constitutionally valid traffic stop, a police officer must have reasonable suspicion of criminal activity or probable cause that the traffic code has been violated; a reasonable suspicion is a particularized suspicion, based on all the circumstances that the person being detained is breaking or has broken the law. An appellate court will find reasonable suspicion if the officer is aware of specific articulable facts, together with rational inferences from those facts, that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring. State v. Martinez, 2015-NMCA-051, cert. granted, 2015-NMCERT-005.

In DWI trial, where the police officer testified that he observed defendant approach an intersection with a four-way stop sign at a high rate of speed, slam on the brakes and come to a complete stop after passing the stop sign and entering the lane of traffic, and where the district court made an express finding after viewing the officer’s dashboard camera video that defendant did not enter the intersection before coming to a complete stop, which was directly contrary to the officer’s testimony, the state failed in its burden of showing that the officer had a reasonable suspicion to believe defendant’s vehicle failed to stop at the point nearest the intersecting roadway before entering the intersection as required by 66-7-345(C) NMSA 1978. State v. Martinez, 2015-NMCA-051, cert. granted, 2015-NMCERT-005.

Officer’s belief that defendant had an active arrest warrant was based on unreliable information insufficient to form reasonable suspicion. — Where a law enforcement officer on routine patrol noticed an individual whom he recognized as defendant driving a vehicle, and, believing defendant had an active warrant for his arrest, performed a traffic stop, and, after confirming that there was an active warrant, arrested defendant on the warrant and performed a search incident to arrest, finding two small blue pills in defendant’s jacket pocket, and where defendant filed a motion to suppress the evidence obtained in the search, alleging that the officer lacked reasonable suspicion to make the traffic stop, the district court did not err in granting defendant’s motion to suppress on the grounds that the officer could not recall how long it had been since he had seen defendant’s name on the active warrant list. The officer’s belief that defendant had an active arrest warrant was based on unreliable information insufficient to form reasonable suspicion. State v. Robles, 2026-NMCA-045, cert. granted.

Officer had reasonable suspicion to initiate investigatory stop. — Where defendant was convicted of two counts of attempted first degree murder with a firearm and two counts of shooting at or from a motor vehicle, and where defendant claimed that the officer in the case lacked reasonable suspicion to conduct a traffic stop and investigatory detention of him on the night of the shooting, and consequently, all evidence obtained after the stop should have been suppressed, the district court did not err in denying defendant’s motion to suppress, because a police officer may initiate an investigatory stop without infringing on a defendant’s constitutional rights if the officer has a reasonable suspicion that the law is being or has been broken, and in this case, the officer’s testimony clearly demonstrated that he believed a crime had occurred, including the facts that he responded to reports of a shooting at a house in La Luz, New Mexico, that he learned the identities of the victims from other officers, that the victims identified defendant as the shooter and reported that the shots were fired from an Oldsmobile Cutlass, that the officer was familiar with defendant and was aware that defendant drove a vehicle similar to the one described, that within thirty minutes of the shooting, the officer observed defendant driving a brown Oldsmobile Cutlass near the house of a known associate of defendant, and, after confirming ownership of the vehicle, the officer initiated the traffic stop and identified defendant as the driver. State v. Bryant, 2023-NMCA-016, cert. denied.

Investigative detention was warranted for the purpose of investigating the possibility that defendant was riding a bicycle without a reflector or with a reflector that was not reflective enough. — Where a police officer seized defendant for violating this section by riding a bicycle at night without a rear deflector, and where the district court suppressed drugs found during the stop, concluding that the arresting officer did not have reasonable suspicion to seize defendant for violating 66-3-707(A) NMSA 1978, finding that this section applies only to bicycles ridden in areas reserved for vehicular travel, and that sidewalks are not such an area and that an officer may only form reasonable suspicion of a violation of 66-3-707(A) NMSA 1978 if the officer was able to observe the bicycle from directly behind it, and that the arresting officer was never in a position to do so, the district court erred in suppressing the drugs, because, based on the officer's testimony, a person of reasonable caution would believe that the bicycle either had no reflector at all or had a reflector that was inadequate, considering objectively all the observation made by the officer, from whatever vantage points he had and with the light available from his headlights and any other available sources, together with rational inferences supported by those observations. State v. Billey, 2026-NMCA-027, cert. granted.

The district court did not err in denying defendant's motion to suppress evidence of a traffic violation. — Where defendant was charged with driving while under the influence of intoxicating liquor or drugs, and where defendant filed a motion to suppress, arguing that the initial stop was not justified at its inception, that there were not specific, articulable facts that defendant was driving while intoxicated or committing a traffic violation, the district court did not err in denying defendant's motion to suppress because there was substantial evidence to support the court's finding, based on the arresting officer's testimony, that defendant's vehicle was swerving within the traffic lane and swerving over the fog line; the totality of circumstances gave the officer reasonable suspicion to believe that defendant failed to maintain his lane as nearly as practicable. State v. Multine, 2025-NMCA-013, cert. denied.

The totality of the circumstances supported the officers’ reasonable suspicion of criminal activity. — In defendant’s trial for possession of a controlled substance, law enforcement officers had reasonable suspicion to make an investigatory stop of the vehicle in which defendant was a passenger, based on law enforcement’s observations of the vehicle’s presence at two locations at which people cooperating with the police purchased heroin, on the fact that the vehicle was registered to a resident of one of the locations, and on the fact that the vehicle followed a particular pattern known to the officers to be associated with heroin purchases from one of the locations. Under the totality of the circumstances, the information known to the officers provided an objective basis upon which the officers could reasonably suspect criminal activity and conduct a lawful investigatory stop. State v. Hernandez, 2016-NMCA-008, cert. denied, 2015-NMCERT-012.

The totality of the circumstances supported the conclusion that the officer had reasonable, articulable suspicion to perform the Terry stop. — Where law enforcement officer who had been with the New Mexico state police for twenty years and had significant training and experience in narcotics investigations was conducting surveillance of a gas station and convenience store, a location at which the officer knew drugs were purchased and sold with frequency, and observed defendant undertake the type of conduct in which those selling drugs engage, the officer's training, experience and observations produced reasonable, articulable suspicion of possible criminality to perform a Terry stop. The test is reasonable suspicion, not probable cause; the officer performed a Terry stop to inquire exactly what was going on and resolve the reasonable suspicion he formed. State v. Martinez, 2020-NMSC-005, rev'g No. 35,402, mem. op. (N.M. Ct. App. June 5, 2017) ( non-precedential).

Traffic stop based on anonymous caller was reasonable. — Where defendant was stopped by a police officer after a concerned citizen called the central dispatch of the Deming police department to report that a big gray or silver Ford Crown Victoria, with a male driver, was unable to control his lanes and was driving recklessly, and the caller believed the driver was possibly under the influence of alcohol or drugs, and where the officer, in the same area, saw defendant’s vehicle, which matched the description sent out by dispatch, there were sufficient facts to support the stop, because the anonymous tip given to the police provided sufficient information describing the color and model of the vehicle and its location and direction on a specific street so that the officer could reliably identify defendant’s vehicle moments later, and therefore under the totality of the circumstances, the stop of defendant’s vehicle was reasonable as there were articulable facts that defendant was engaged in criminal behavior by driving while under the influence. State v. Tidey, 2018-NMCA-014, cert. denied.

Test for whether officer had reasonable suspicion to stop motor vehicle is objective; it is the evidence known to the officer that is important, not his view of the governing law. State v. Munoz, 1998-NMCA-140, 125 N.M. 765, 965 P.2d 349.

Stop for suspended driver’s license. — Police officers, who are informed that the owner of a car observed under suspicious circumstances has a suspended driver’s license, have reasonable suspicion to initiate a traffic stop. State v. Candelaria, 2011-NMCA-001, 149 N.M. 125, 245 P.3d 69, cert. denied, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143.

Where, as police officers pulled into a parking lot where a car and a pickup were parked, the vehicles sped away; the officers followed the car which they recognized from a previous investigation; a records search of the license plate on the car indicated that the car was owned by a person known to the officers; and a records search of the owner’s driving record revealed that the driving privileges of the owner had been suspended, the officers had reasonable suspicion to initiate a traffic stop of the car. State v. Candelaria, 2011-NMCA-001, 149 N.M. 125, 245 P.3d 69, cert. denied, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143.

Reasonable suspicion supports a traffic stop when it is based on an officer’s knowledge that the driver’s license of the driver was suspended or revoked. — Where a police officer made a traffic stop of defendant’s vehicle based solely on his belief that defendant had a suspended driver’s license, which was based on two prior encounters with defendant where defendant was driving with a revoked or suspended driver’s license and having heard on the police radio three or four weeks earlier that defendant was arrested for driving with a suspended or revoked driver’s license and DWI, the district court erred in granting defendant’s motion to suppress, because the officer’s stop of defendant was supported by a constitutionally sufficient reasonable suspicion that defendant was driving with a suspended or revoked driver’s license. State v. James, 2017-NMCA-053, cert. denied.

Expansion of the scope of a traffic stop. — As the circumstances of a lawful traffic stop develop, police officers may expand the investigation to answer any new reasonable and articulable suspicions that arise during the course of their lawful activity. State v. Candelaria, 2011-NMCA-001, 149 N.M. 125, 245 P.3d 69, cert. denied, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143.

Where police officers lawfully stopped defendant’s car; defendant told the officers that defendant had been stopped by police earlier in the day with a firearm; the officers observed an empty handgun holster and a box of ammunition in the back seat of the car; defendant consented to a pat-down search for weapons; the officers also noticed the odor of marijuana coming from the car; defendant stated that defendant had smoked marijuana earlier in the day; and based on the odor of marijuana and defendant’s statement, the officers requested permission to search the car and defendant consented to the search both verbally and in writing, the detention of defendant after the initial traffic stop was supported by reasonable suspicion. State v. Candelaria, 2011-NMCA-001, 149 N.M. 125, 245 P.3d 69, cert. denied, 2010-NMCERT-011, 150 N.M. 490, 262 P.3d 1143.

Reasonable suspicion of criminal activity to expand the scope of the traffic stop. — Where defendant was charged with possession of burglary tools following a traffic stop of a vehicle in which he was a passenger, and where the officer testified that as he approached the vehicle, he saw a partially open backpack in the back seat with bolt cutters, protective eyeglasses, two pairs of gloves, and a face mask sticking out of the backpack, and that he became suspicious that the tools may have been burglary tools because the driver was very nervous, was hesitant to give any kind of identifiers, and seemed confused about his age, and, after the officer determined that the driver of the vehicle was an unlicensed minor, he asked defendant if he had a driver's license in an attempt to determine whether defendant could drive the vehicle or whether the vehicle had to be impounded, and where defendant, in response to the officer's questions, gave false information regarding his name and age and, after further questioning, was arrested for possession of burglary tools, and where, at trial, defendant moved to suppress the items found in his backpack, claiming that the officer's expansion of the traffic stop by asking defendant for his identifiers constituted an unlawful seizure, the district court did not err in denying defendant's motion to suppress, because the officer's questions concerning defendant's identifiers did not measurably extend the length of the stop, and the officer was compelled to ask defendant additional questions to complete the stop because the driver did not have a driver's license and could not drive the car away, and, supported by his experience in investigating numerous burglaries, the officer's observations of the alleged burglary tools in the back seat, the driver's and defendant's nervous and unusual behavior, the fact that neither the driver nor defendant had a driver's license, and the driver's confusion about his own age gave the officer further justification to expand the search and satisfy his suspicion by asking defendant's age; defendant's untruthful response to this question provided yet more justification for the officer to ask defendant his name and date of birth. Under the totality of the circumstances, the officer had reasonable suspicion of criminal activity to support the expansion of the otherwise valid traffic stop. State v. Vasquez-Salas, 2023-NMSC-023, aff'g A-1-CA-37856, mem. op. (N.M. Ct. App. May 17, 2021) (nonprecedential) and overruling State v. Affsprung, 2004-NMCA-038, 135 N.M. 798, 810 P.2d 817.

Extension of traffic stop for field sobriety texts. — An officer may administer field sobriety tests if the officer has developed independent reasonable suspicion that would support the extension of the traffic stop to conduct the field sobriety tests. State v. Candace S., 2012-NMCA-030, 274 P.3d 774, cert. denied, 2012-NMCERT-002.

Illegal expansion of stop. — Where a police officer received complaints from a woman that her brother had been harassing her; the officer parked the officer’s vehicle near the woman’s house to be able to observe any additional problems; the officer observed a truck drive up and stop in front of the house and defendant go inside the house; when defendant came out of the house, the officer asked defendant why defendant was at the house, asked for defendant’s identification, and ran a check on defendant and found nothing; the officer returned defendant’s identification and advised defendant to leave and then immediately asked defendant if defendant had any drugs or weapons; defendant said no; the officer then asked if the officer could pat defendant down; defendant agreed; the officer placed defendant in a secure, spread-eagle position and patted defendant down; the officer asked defendant if the officer could remove what the officer felt in defendant’s pocket; defendant agreed; the officer removed a bindle of drugs; and there was no indication that drug trafficking was occurring at the house, the officer was justified in making brief inquires to find out what defendant was doing in the house in connection with the officer’s investigation of domestic violence at the house, the officer was not justified in asking further questions about drugs and weapons or in placing defendant in a secure, spread-eagle position and patting defendant down, the encounter did not become consensual after the officer told defendant that defendant was free to leave, and the illegal expansion of the stop tainted defendant’s subsequent consent to search. State v. Figueroa, 2010-NMCA-048, 148 N.M. 811, 242 P.3d 378, cert. quashed, 2011-NMCERT-012, 291 P.3d 159.

Unreasonable expansion of traffic stop. — Where defendant was stopped by Las Cruces police officers for failing to use his turn signal and failing to stop at a stop sign, and where, before defendant had signed the citation, the officer questioned defendant about where he had come from, and upon learning that he had come from a friend's house, asked about the friend's name, and upon learning the friend's name, requested consent to search because defendant's friend was a person the officer believed to be involved in drug trafficking, and where, during the search of defendant's person, drugs were discovered, the questioning at issue unreasonably expanded the scope of the traffic stop because, under the New Mexico constitution, the officer's questions were only allowed if those questions were either reasonably related to the reason for the stop or based on reasonable suspicion that defendant might have committed some other offense, and the state failed to establish that the officer's questions were reasonably related to the traffic offenses under investigation or that the questions were based on reasonable suspicion of defendant's involvement in any other offenses. State v. Tuton, 2020-NMCA-042.

Under the New Mexico constitution, a police officer cannot use a valid traffic stop as a pretext to pursue an investigation of another offense that is not supported by reasonable suspicion or probable cause. State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143, cert. quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794.

Pretextual traffic stop. — Where a narcotics agent was surveilling a residence for drug traffic; the agent saw an unfamilar vehicle that was driven by the defendant; the agent wanted to identify and question the defendant; when the defendant drove away from the residence, the agent saw that the defendant was not wearing a seatbelt; the agent asked a patrol officer to stop the vehicle; the patrol officer followed the defendant but could not determine whether or not the defendant was wearing a seatbelt; relying on the information provided by the agent, the patrol officer stopped the defendant, the stop for the seatbelt violation was a pretext for the investigation of the agent’s unsupported hunch that the defendant was involved in drug activity and was not constitutionally reasonable under the New Mexico constitution. State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143, cert. quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794.

Traffic stop to execute a warrant for arrest. — The pretext rule of State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143 does not apply when a traffic stop occurs during a criminal investigation that does not involve a reasonable suspicion, but the sole reason for the stop is to execute an outstanding arrest warrant. State v. Peterson, 2014-NMCA-008, cert. denied, 2013-NMCERT-012.

Where law enforcement officers, who were investigating defendant for possible drug activity, discovered that defendant had an outstanding misdemeanor warrant; the officers stopped defendant’s vehicle to execute the warrant; and after arresting defendant, the officers found heroin in defendant’s pocket and crack cocaine in the vehicle, the decision to stop defendant in order to execute the arrest warrant was not an improper pretextual stop prohibited by the New Mexico constitution and State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143 because the officers did not need reasonable suspicion to stop defendant when they had a valid outstanding arrest warrant. State v. Peterson, 2013-NMCA-012, cert. denied, 2013-NMCERT-012.

Officer had reasonable suspicion to make traffic stop. — Where a police officer attempted to stop a distinctive-looking vehicle after running a license plate search and learning that there was an outstanding warrant for defendant, who was the vehicle’s registered owner, and where the officer, in a fully marked police vehicle, engaged his lights and sirens in an attempt to stop defendant, the driver of the vehicle fled at a high rate of speed, running multiple red lights in moderately heavy traffic, and where the officer pursued the vehicle until it entered an industrial area, but decided it would be unsafe to continue his pursuit, and where, approximately six weeks later, the officer recognized defendant’s vehicle, based on its distinctive markings as the same vehicle that had fled from his attempted stop six weeks earlier, and where the officer pulled the vehicle over and discovered that defendant did not have valid registration or insurance, and in accordance with standard operating procedure regarding uninsured vehicles, arranged for the vehicle to be towed, and also in accordance with standard procedure, initiated an inventory of the contents of the vehicle in preparation for towing, and during the inventory search discovered a backpack containing a substantial amount of methamphetamine, and where defendant moved to suppress the evidence found in her vehicle, claiming that the officer’s stop, which led to the discovery of the evidence, was not supported by reasonable suspicion, the district court did not err in denying defendant’s motion, because, based on the officer’s testimony that defendant fled in a manner that endangered the lives of others with the knowledge that the officer had signaled for her to stop, the officer had reasonable suspicion that defendant committed the felony offense of aggravated fleeing a law enforcement officer during the first encounter. State v. Ortega, 2023-NMCA-032, cert. denied.

Pretextual traffic stop was based on an unrelated motive that was supported by reasonable suspicion. — Where police officers conducted surveillance of a home based on reliable information from a confidential informant that the home was a stash house for marijuana and that a large quantity of marijuana would be delivered to the house; a pickup truck arrived at the house and the driver and a person from the house moved three boxes from the truck to the house; at the same time, the confidential informant informed the officers that based on conversations with the residents of the house, a large quantity of marijuana was currently stored at the residence; the officers saw defendant’s spouse load one of the boxes into a vehicle and drive away; defendant’s spouse was stopped for a vehicle violation and the stopping officer found packages of marijuana in the box; defendant later drove away from the house; the officers asked another officer to stop defendant’s vehicle; defendant’s vehicle was stopped for making two sudden lane changes without signaling; and the officer found packages of marijuana in two boxes in defendant’s vehicle, the pretextual stop of defendant was valid, because the underlying motive to investigate defendant’s involvement in drug activity was supported by reasonable suspicion. State v. Alderete, 2011-NMCA-055, 149 N.M. 799, 255 P.3d 377.

Reasonable suspicion to expand scope of stop. — Where a police officer stopped defendant for failure to stop at a stop sign; the officer detected the strong odor of "burnt marijuana" coming from the vehicle; and when the defendant exited the vehicle, the officer smelled "burnt marijuana" on defendant’s person, the odor of marijuana emanating from the vehicle and on defendant’s person provided objective, articulable facts that would lead a reasonable officer to suspect that defendant was driving under the influence and supported the expansion of the scope of the stop to investigate a possible DUI. State v. Randy J., 2011-NMCA-105, 150 N.M. 683, 265 P.3d 734, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Reasonable mistake of law. — An officer’s reasonable mistake of law can support a finding of reasonable suspicion to conduct a lawful traffic stop under the fourth amendment. The fourth amendment, however, tolerates only reasonable mistakes, and those mistakes, whether of fact or of law, must be objectively reasonable. State v. Dopslaf, 2015-NMCA-098, cert. denied, 2015-NMCERT-008.

Where police officer stopped defendant’s vehicle after observing defendant perform a U-turn across the middle of the street, believing that defendant had violated 66-7-319 NMSA 1978 (driving on divided highways) when he made the U-turn, it was objectively reasonable for the officer to believe that crossing over the painted median was a violation of 66-7-319 NMSA 1978, because it was objectively reasonable for the officer to believe that the painted median was constructed to impede vehicular traffic and designed to prohibit maneuvers such as defendant’s U-turn, especially when 66-7-319 NMSA 1978 lacks definitive guidance as to what constitutes an intervening space or a clearly indicated divided section. Assuming without deciding that the officer was mistaken as to the law, the court of appeals determined that the officer had reasonable suspicion to make the traffic stop. State v. Dopslaf, 2015-NMCA-098, cert. denied, 2015-NMCERT-008.

Mistake of law. — Where a traffic stop was initiated based on the officer’s mistaken understanding of law, the officer did not have reasonable suspicion or probable cause to stop the defendant’s vehicle. State v. Anaya, 2008-NMCA-020, 143 N.M. 431, 176 P.3d 1163, cert. denied, 2008-NMCERT-001, 143 N.M. 398, 176 P.3d 1130.

Where defendant was stopped by police for making a left turn without ending up in the left most lane of the roadway defendant turned into, the traffic stop was without a reasonable basis in law, because Subsection B of 66-7-322 NMSA 1978 does not specify a particular lane that a driver who makes a left turn must end up in once the turn is completed and permits the driver discretion to choose a lane after completion of a turn. State v. Almeida, 2011-NMCA-050, 149 N.M. 651, 253 P.3d 941, cert. denied, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.

Unreasonable mistake of law. — Where a police officer stopped defendant for obstructing traffic, in violation of a city ordinance, after defendant’s vehicle was stopped at a red traffic light and when the light turned green, defendant waited between five and fifteen seconds before proceeding through the intersection, the trial court erred in denying defendant’s motion to suppress, because the city ordinance, which prohibits obstructing free use of a public way, did not provide a standard by which the officer might judge what would be an impermissible delay, and the standard by which the officer decided the violation occurred was entirely ad hoc, subjective and arbitrary, and the officer’s mistaken belief that the ordinance prohibiting obstructing traffic had been broken did not provide reasonable suspicion to conduct the traffic stop. State v. Goodman, 2017-NMCA-010.

No reasonable suspicion to stop vehicle for touching shoulder line. — Where police officer stopped defendant’s vehicle after defendant’s left tires touched the yellow shoulder line of the left passing lane while attempting to pass two semi-trucks that were in the right lane of the highway, defendant’s single, momentary touching of the shoulder line did not constitute a violation of 66-7-317(A) NMSA 1978, and did not give rise to a reasonable suspicion that defendant had broken the law, and therefore the district court did not err in finding that the traffic stop was invalid and did not err in suppressing evidence discovered as a result of the exploitation of the illegal seizure. State v. Siqueiros-Valenzuela, 2017-NMCA-074, cert. denied.

Traffic stop based on defective tail lamp. — Where defendant was charged with driving while intoxicated following a traffic stop based on a defective tail lamp, and where, at trial, the law enforcement officer testified that defendant's right tail lamp was "working properly" but the large upper bulb in the left tail lamp was not illuminated, and where defendant argued that the officer did not have a reasonable suspicion to stop him because the facts and circumstances of the case did not support a conclusion that he was breaking the law or had broken the law at the time he was stopped, rendering the stop unconstitutional and the resulting evidence inadmissible, the New Mexico supreme court concluded that the "good working order" requirement set out in § 66-3-901 NMSA 1978, does not require equipment to function one hundred percent perfectly if it is suitable or functioning for its intended use, and that tail lamps do not violate § 66-3-901 when they comply with the specific statutory equipment requirements set out in §§ 66-3-801 through 66-3-888 NMSA 1978. State v. Farish, 2021-NMSC-030, rev'g 2018-NMCA-003, 410 P.3d 239.

Reasonable to make a traffic stop of a vehicle with a malfunctioning taillight. — Where a police officer made a traffic stop of defendant’s vehicle after seeing defendant’s vehicle swerve within the traffic lane twice in a manner that nearly drove over the lane markings and observing that the vehicle had an improperly functioning left taillight, the officer had a reasonable suspicion that defendant was in violation of 66-3-901 NMSA 1978 to justify the ensuing stop. State v. Farish, 2018-NMCA-003, cert. granted.

Probable cause not shown. — Where a police officer stopped a vehicle for a speeding violation; defendant was a passenger in the vehicle; while the officer was questioning the driver, defendant looked straight ahead, avoiding eye contact with the officer except for a single furtive glance at the officer; defendant’s behavior caused the officer to suspect that narcotics or weapons were in the vehicle; after the officer issued a citation to the driver, the officer asked if there were any illegal drugs or weapons in the vehicle; defendant granted the officer permission to search the vehicle; and the officer found illegal narcotics in the vehicle which defendant admitted owning, defendant’s behavior alone was insufficient to give rise to a reasonable suspicion of criminal activity, defendant was illegally detained when the stop was extended by the officer’s questions concerning illegal drugs and weapons, and the illegal drugs were discovered as a result of the illegal detention. State v. Portillo, 2011-NMCA-079, 150 N.M. 187, 258 P.3d 466, cert. denied, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633.

Where the police officer observed the defendant sitting in his vehicle in front of a house that was under drug investigation; a man who was a convicted felon was leaning into the vehicle talking to the defendant; when the defendant drove away from the house, the officer stopped the defendant for a cracked windshield; the defendant appeared nervous when he was stopped and wanted to leave; the defendant refused consent to search the vehicle; and the officer detained the defendant’s vehicle for approximately ten minutes to await a drug dog to perform a perimeter sniff of the vehicle while permitting the defendant to leave the vehicle, the officer did not have reasonable suspicion to detain the vehicle beyond that necessary to issue a citation for the cracked windshield and evidence seized from the vehicle was inadmissible as the fruit of an illegal search and seizure. State v. Neal, 2007-NMSC-043, 142 N.M. 176, 164 P.3d 57.

Constitutionality of sobriety checkpoint. — A sobriety checkpoint is constitutionally permissible so long as it is reasonable within the meaning of the fourth amendment as measured by its substantial compliance with eight guidelines, which include the role of supervisory personnel, restrictions on discretion of field officers, safety, reasonable location, time and duration, indicia of official nature of the roadblock, length and nature of detention, and advance publicity. No one guideline is necessarily dispositive of the issue. State v. Swain, 2016-NMCA-024.

Where a New Mexico state police sergeant prepared a plan and supervised a DWI checkpoint in De Baca county and sent an e-mail to a radio station a month before the scheduled checkpoint with a request to publicize the roadblock, but did not request confirmation of the radio station’s receipt of his e-mail, did not know whether the station received his e-mail, did not listen to the radio station to confirm the checkpoint was publicized, and did not seek publication in the county newspaper, the DWI checkpoint was constitutional where the evidence established that the checkpoint plan complied with all the established guidelines except the advance publicity factor; the lack of advance publicity, without more, is not sufficient to find that a DWI checkpoint constitutes an illegal seizure. The district court erred in determining that the state did not substantially comply with the DWI checkpoint factors, and erred in granting defendant’s motion to suppress. State v. Swain, 2016-NMCA-024.

DWI checkpoint was constitutional. — Where a DWI checkpoint had been planned by the DWI unit supervisor for the Bernalillo county sheriff’s office, approved by his lieutenant, where an approved tactical plan laid out the parameters of the checkpoint, including the placement of signs, cones, reflective tape, and emergency lighting at the checkpoint site, where the checkpoint location was selected on the basis of prior arrest statistics and on the successful deterrent effect of past checkpoints at the same location, and where testimony that the advance publicity factor was complied with, the trial court did not err in determining that the checkpoint was reasonable. State v. Hall, 2016-NMCA-080.

Roadblock was constitutional since the selection of the roadblock and procedures for conducting it were approved by police supervisory personnel; officers had no discretion as to which vehicles were stopped; pylons, special stop signs, room for safe stopping distance and other safeguards were provided; the location was chosen because of the number of DWI-related accidents in the area; the roadblock was conducted between the hours of 12:00 a.m. and 3:00 a.m. on a Saturday morning; the officers wore uniforms and police cars with flashing lights were parked at the roadblock; the total detention time was no more than five minutes per vehicle; and the roadblock had been publicized in advance. State v. Madalena, 1995-NMCA-122, 121 N.M. 63, 908 P.2d 756.

Where the guidelines for the roadblock limited field officers to no more than two minutes of conversation with motorists, the officers were not permitted to ask questions unrelated to a driver's sobriety, and the supervising officer provided the guidelines to the officers at a briefing before the roadblock, the roadblock was constitutional. State v. Rivera, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944, aff’d in part, rev’d in part, 2012-NMSC-003, 268 P.3d 40.

State was required to establish the constitutionality of the DWI roadblock. — Where defendant was arrested and charged with driving while under the influence of intoxicating liquor (DWI) and possession of an open container of alcohol in a motor vehicle after law enforcement witnessed defendant approach a DWI roadblock at a high rate of speed and strike at least one of the traffic cones set up to demarcate the roadblock before coming to a stop, and observed that defendant had bloodshot, watery eyes and smelled of alcohol, and where defendant moved to suppress evidence obtained by law enforcement at the sobriety roadblock, challenging the constitutionality of the roadblock under the fourth amendment, and where the state argued that establishing the constitutionality of the roadblock was unnecessary because individualized reasonable suspicion had already developed prior to the stop, and where the metropolitan court granted defendant's motion to suppress, finding that defendant was seized upon entering the roadblock and that the state failed to prove the constitutionality of the seizure by establishing the factors in Betancourt were satisfied, the metropolitan court did not err in suppressing the evidence, because, given the circumstances, including the show of law enforcement authority at the roadblock , a reasonable person would not have felt free to leave the roadblock, and therefore defendant was seized when he entered the roadblock, and because the state did not prove that it had individualized reasonable suspicion at the inception of the seizure, the fourth amendment required the state to prove that the roadblock was reasonable under Betancourt, which it failed to do. State v. Varela-Coronado, 2024-NMCA-012.

Defendant's attempts to evade a DWI checkpoint provided reasonable suspicion for a traffic stop. — Where law enforcement officer conducted a traffic stop of defendant's vehicle after the officer observed defendant try to evade a DWI checkpoint, the district court did not err in denying defendant's motion to suppress where defendant's driving behavior, which included driving to the shoulder of the road as he approached the DWI checkpoint, pausing for a period of time, making a U-turn and accelerating away from the checkpoint, viewed in conjunction with the testimony regarding the checkpoint's visibility, the daylight remaining, the absence of any intervening traffic, and the vehicle's distance from the checkpoint supported inferences that the defendant was aware of the checkpoint and tried to evade it. Under the totality of the circumstances, the officer had a reasonable suspicion to believe that defendant was driving while intoxicated. State v. Salazar, 2019-NMCA-021, cert. denied.

Defendant's arrest by a noncommissioned, volunteer reserve deputy sheriff was unconstitutional. — Where defendant was detained by a noncommissioned, volunteer reserve deputy sheriff in violation of § 66-8-124 NMSA 1978, after the reserve deputy observed defendant weaving repeatedly in a roadway, the reserve deputy's actions violated defendant's constitutional right to be free from unreasonable seizures, because the reserve deputy's actions in temporarily detaining defendant amounted to an arrest, the reserve deputy was not a commissioned, salaried peace officer as required by § 66-8-124, and therefore acted without statutory authority, and in balancing the degree to which the arrest intruded upon defendant's privacy with the degree to which the arrest was needed to promote legitimate governmental interests, defendant's privacy interests outweigh the State's interest because the unauthorized arrest, in this case, did not promote the State's interests in deterring drunk driving or in maintaining highway safety. State v. Wright, 2022-NMSC-009, rev'g 2019-NMCA-026, 458 P.3d 604.

Arrest by reserve deputy sheriff not unconstitutional. — Where reserve deputy sheriff's officer followed defendant home after seeing her truck driving erratically on the highway, striking a parked vehicle, and almost hitting the reserve deputy's vehicle, and where the reserve deputy approached defendant's truck and, after she admitted to having drunk four beers, advised her to "hang tight" until a regular commissioned deputy sheriff arrived to continue the investigation, the district court erred in finding that the reserve deputy's action was unconstitutional and in suppressing all evidence obtained by law enforcement after the reserve deputy directed defendant to "hang tight," because the state's strong interest in apprehending and prosecuting drunk drivers outweighed the minor intrusion on defendant's privacy rights. State v. Wright, 2019-NMCA-026, 458 P.3d 604, rev'd by 2022-NMSC-009.

Fourth amendment standard for questioning during a traffic stop. — Under the fourth amendment the reasonableness of a traffic stop is limited only by the time required to conduct a reasonable investigation into the initial justification for the stop. Questioning by an officer does not have to be reasonably related to the initial justification for the stop to be permissible. If the questioning measurably extends the detention, the officer must have a reasonable suspicion of criminal activity or concern for police safety to support further questioning or the encounter must have evolved into a consensual encounter. State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861, overruling State v. Duran, 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836.

New Mexico constitution standard for questioning during a traffic stop. — The New Mexico constitution provides greater protection against unreasonable searches and seizures than does the fourth amendment. The subject matter limitations set forth in State v. Duran, 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836 is a valid test for the reasonableness of police questioning under Article II, Section 10. Under Article II, Section 10, the reasonableness of a traffic stop is limited only by the time required to conduct a reasonable investigation into the initial justification for the stop. All questions asked by an officer must be reasonably related to the initial justification for the stop. Unrelated questions are permissible only if they are supported by independent reasonable suspicion, if they are related to officer safety, or if the interaction has developed into a consensual encounter. State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861.

Questioning defendant during a traffic stop was reasonable. — Where a police officer stopped defendant for speeding; before defendant stopped, the officer observed defendant lean over as if defendant were placing something under the passenger seat; the officer found that defendant’s license was suspended; at the officer’s direction, defendant arranged to have someone pick up defendant’s vehicle; the officer did not observe any suspicious activity during the stop; the officer issued three citations to defendant; the officer then asked defendant if there were any weapons or drugs in the vehicle; defendant responded that there was marijuana in the vehicle; at the officer’s request, defendant consented to a search of the vehicle; and the officer discovered marijuana under the passenger seat and methamphetamine in the passenger compartment, the officer’s questioning of defendant after the traffic investigation was completed did not violate defendant’s rights under the fourth amendment because the questions were a de minimis extension of the detention and reasonable under the circumstances and did not violate defendant’s rights under Article II, Section 10 or the New Mexico constitution because the officer had independent and articulable reasonable suspicion to expand the officer’s questioning of defendant. State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861.

Further questioning not permissible. — Where an officer stopped defendant's vehicle because of the lack of a license plate, the officer could lawfully ask for driver documentation, but an additional question whether defendant had any weapons in the car, and the officer's subsequent detention and search were not permissible. City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, overruled by State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861.

Warrantless entry into vehicle was unreasonable and impermissible. — Where a traffic officer, after observing defendant driving ten miles per hour over the speed limit, pulled behind defendant's vehicle and activated his emergency lights, and where defendant failed to pull over for a couple of miles over the course of approximately two minutes, and where, after defendant finally pulled over and within three second of initial contact, the officer opened the front passenger side door of defendant's vehicle in order to speak with defendant and prevent him from possibly fleeing, observed an unopened bottle of beer in the back seat, initiated a DWI investigation, and arrested defendant for DWI, defendant's right to be free from unreasonable searches was violated, because the state failed to present evidence of additional articulable facts of potential danger as well as the suspicion of criminal activity to support a protective search as part of defendant's traffic stop; the officer's conduct in opening defendant's door amounted to a search that required a warrant. State v. Martinez, 2019-NMCA-063.

Lack of reasonable suspicion to expand traffic stop. — Article II, Section 10 of the New Mexico Constitution requires a reasonable justification for the initial stop and that all questions asked during the stop be reasonably related to the reason for the stop or otherwise be supported by reasonable suspicion; inquiries unsupported by reasonable suspicion during a vehicle stop makes the continuing detention of the person illegal and any evidence discovered as a result of an illegal seizure must be suppressed. State v. Bell, 2015-NMCA-028, cert. denied, 2014-NMCERT-012.

Where a law enforcement officer stopped defendant for speeding, the officer’s questions regarding weapons and dead bodies, asked for the sole purpose of trying to elicit truthful responses from defendant, improperly expanded the scope of the traffic stop because the non-traffic inquires were unsupported by reasonable suspicion; the district court properly determined that all evidence acquired after the improper questions were asked during the illegal detention should be suppressed. State v. Bell, 2015-NMCA-028, cert. denied, 2015-NMCERT-012.

Reasonable suspicion to detain. — Where a police officer stopped defendant’s vehicle based on his suspicion that the passenger in the vehicle had forged a check, the officer had no suspicion that the defendant had committed or was committing an offense, and the officer found drugs and drug paraphernalia in the possession of the passenger, the officer had reasonable suspicion about the contents of the vehicle and authority to detain and question the defendant about the contents of the vehicle and then to ask for consent to search the vehicle. State v. Funderburg, 2008-NMSC-026, 144 N.M. 37, 183 P.3d 922, rev'g 2007-NMCA-021, 141 N.M. 139, 151 P.3d 911.

No reasonable suspicion to detain. — Where a police officer, who was parked in an alley, saw defendant pull into the alley and immediately back out; because the officer thought defendant’s behavior was suspicious, the officer followed and stopped defendant, because the temporary registration tag on defendant’s vehicle had expired; defendant had a passenger who was known to the officer to be a prostitute; the officer asked defendant to exit the vehicle so that the officer could interview defendant about the prostitute; the officer did not have sufficient independent articulable and reasonable suspicion to expand the scope of the initial detention for the further inquiry regarding defendant’s relationship with the prostitute. State v. Olson, 2011-NMCA-056, 150 N.M. 348, 258 P.3d 1140, rev’d, 2012-NMSC-035, 285 P.3d 1066.

Reasonable suspicion to expand the traffic stop. — Where the police officer was parked late at night in a marked police car in an alley where the officer had previously seen prostitutes at work; the officer saw defendant enter the alley, recognize the police vehicle, immediately back out of the alley, and drive away; the officer stopped defendant for driving with an expired registration; the driver avoided eye contact with the officer; the officer recognized the passenger in the vehicle as a known prostitute; and based on the passenger’s clothing and makeup, the officer thought the passenger was currently working as a prostitute, the officer had reasonable suspicion to expand the traffic stop to investigate prostitution solicitation. State v. Olson, 2012-NMSC-035, 285 P.3d 1066, rev'g 2011-NMCA-056, 150 N.M. 348, 258 P.3d 1140.

Information supplied by confidential informant may support reasonable suspicion. — Detailed information, provided by a confidential informant and verified by officers, supported a reasonable suspicion of criminal activity, thereby justifying an investigatory stop of defendant’s vehicle. State v. Skippings, 2014-NMCA-117.

Length of investigatory detention. — Temporal duration is neither the controlling nor the only factor to be considered in assessing the reasonableness of the extent of an investigatory detention. State v. Sewell, 2009-NMSC-033, 146 N.M. 428, 211 P.3d 885, rev'g, 2008-NMCA-027, 143 N.M. 485, 177 P.3d 536.

Where police officers lawfully stopped the defendant’s car to investigate suspected drug trafficking; the officers failed to find drugs in the car; a passenger in the car appeared nervous and afraid and tried to indicate to the officers that the passenger was afraid of something that the officers needed to investigate; the officers separated the defendant and the passenger after the car search to talk to the passenger privately; the passenger told one officer that the passenger could not talk in front of the defendant and that the defendant was making a crack deal; the passenger told the officer that the passenger had the drugs; and the time that elapsed between the initial traffic stop and the discovery of the drugs was not more than ten minutes, the brief additional time to talk with the passenger was justified under the totality of the circumstances and was not an unreasonable extension of the roadside detention. State v. Sewell, 2009-NMSC-033, 146 N.M. 428, 211 P.3d 885, rev'g, 2008-NMCA-027, 143 N.M. 485, 177 P.3d 536.

Detention of vehicle based on reasonable suspicion was reasonable, where defendant's freedom of movement was not severely restricted, officers immediately requested assistance of drug dog when defendant refused consent to search, canine unit arrived within thirty-five to forty minutes after officers stopped the vehicle and tried to obtain consent to search, and off-duty officer on call with the drug dog lived approximately ten miles from the stop. State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570, cert. denied, 2006-NMCERT-005, 139 N.M. 568, 136 P.3d 569.

Investigatory detention as a de facto arrest. — Where officers lawfully stopped defendant’s vehicle to investigate suspected drug trafficking, and where defendant was patted down, hand-cuffed and read Miranda warnings, the ten-minute detention did not transform the seizure from an investigatory detention into a de facto arrest when officers detained defendant no longer than necessary to verify or quell their suspicion of criminal activity. State v. Skippings, 2014-NMCA-117.

Establishment of DWI roadblock did not require warrant since the evils that a warrant is designed to prevent were addressed by the requirement that the decision to set up a roadblock be made by supervisory personnel and by restrictions on the discretion of field officers in conducting the roadblock. State v. Bates, 1995-NMCA-080, 120 N.M. 457, 902 P.2d 1060, cert. denied, 120 N.M. 213, 900 P.2d 962.

Border patrol stops at international border checkpoints. — Article II, Section 10 does not afford greater protections than the federal constitution at an international border checkpoint because unlike motorists who are stopped at interior border checkpoints, all motorists stopped at international fixed checkpoints are known to be international travelers who are not entitled to the heightened privacy expectations enjoyed by domestic travelers. New Mexico constitutional law, therefore, does not depart from the federal border search doctrine, and thus U.S. customs and border protection officers may conduct routine searches, including referral to a secondary checkpoint, of persons and effects crossing the border even in the absence of individualized suspicion. State v. Sanchez, 2015-NMSC-018, rev’g No. 32,994, mem. op. (N.M. Ct. App. Nov. 6, 2013) (non-precedential).

Where defendant motorist was stopped by U.S. customs and border protection officers at an international border checkpoint, and where defendant produced valid documentation of her legal status as a permanent resident, the border protection officers did not violate defendant’s state constitutional right to be free of unreasonable searches and seizures when defendant was referred to a secondary area to have her vehicle inspected, even though the border patrol officers did not suspect any criminal activity, because a citizen’s state constitutional rights, and expectation of privacy, at a checkpoint located on the border are significantly less than inside the border, and the federal government’s interest in preventing the entry of unwanted persons and effects is greater at the international border. State v. Sanchez, 2015-NMSC-018, rev’g No. 32,994, mem. op. (N.M. Ct. App. Nov. 6, 2013) (non-precedential).

Border patrol stops. — Under the New Mexico constitution, after a federal border patrol agent has asked about a motorist's citizenship and immigration status, and has reviewed the motorist's documents, any further detention requires reasonable suspicion of criminal activity. State v. Cardenas-Alvarez, 2001-NMSC-017, 130 N.M. 386, 25 P.3d 225, aff'g 2000-NMCA-009, 128 N.M. 570, 995 P.2d 492.

The misdemeanor arrest rule does not apply to investigatory traffic stops. State v. Ochoa, 2008-NMSC-023, 143 N.M. 749, 182 P.3d 130, rev'g 2006-NMCA-131, 140 N.M. 573, 144 P.3d 132, on remand, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143, cert. quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794.

An officer may reasonably rely on information from another officer that a crime has been or is being committed to justify an investigatory traffic stop. State v. Ochoa, 2008-NMSC-023, 143 N.M. 749, 182 P.3d 130, rev'g 2006-NMCA-131, 140 N.M. 573, 144 P.3d 132, on remand, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143, cert. quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794.

Pretextual traffic stop. — State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143 requires a determination whether the real reason for a traffic stop is supported by objective evidence of reasonable suspicion and holds that if the stop is supported by objective evidence of reasonable suspicion, the traffic stop is constitutional. State v. Gonzales, 2011-NMSC-012, 150 N.M. 74, 257 P.3d 894.

Where a confidential informant told a police officer that an individual with defendant’s name would be transporting a large amount of methamphetamine; the informant gave the officer the name of the street on which the person lived; the officer set up a surveillance of defendant’s residence, coordinated a traffic stop of defendant for a window tint violation, and arranged for a canine unit to be present at the time of the traffic stop; and the officer admitted that the traffic stop was a pretext for a drug investigation, the trial court was required to determine whether the real reason for the traffic stop was objectively supported by reasonable suspicion before the court could rule on defendant’s motion to suppress methamphetamine evidence seized at the traffic stop. State v. Gonzales, 2011-NMSC-012, 150 N.M. 74, 257 P.3d 894.

H. AUTOMOBILE SEARCHES.

Reasonableness of an inventory search. — The reasonableness of an inventory search under Article II, Section 10 of the New Mexico constitution is determined by balancing the need for the search in a particular case against the intrusion upon an individual's privacy interest. State v. Jim, 2022-NMCA-022.

Inventory search was unreasonable. — Where defendant was arrested for criminal trespass and later charged with possession of a controlled substance and possession of drug paraphernalia after a warrantless search of a locked gun safe during the course of an automobile inventory search revealed heroin and a methamphetamine pipe, and where defendant moved to suppress evidence obtained during the warrantless search, the district court erred in denying defendant's motion to suppress, because defendant had an expectation of privacy with respect to the contents of his locked safe, an expectation that was not diminished because the safe was found inside an automobile, and defendant's privacy interest outweighed the governmental need for the search when the officer in this case removed the gun safe from the vehicle and took it into police custody. The intrusion into the locked safe was not necessary to carry out the government's interest in safeguarding defendant's property. State v. Jim, 2022-NMCA-022.

Search of sealed canister was not reasonably necessary to accomplish governmental purposes justifying warrantless inventory of vehicle's contents. — Where defendant was stopped and arrested on an outstanding misdemeanor arrest warrant for a traffic matter, and where the arresting officers decided to impound defendant's vehicle because defendant was not the registered owner and there was no one else available to whom they could release the vehicle, and where, during an inventory search, the deputies found an open backpack on the vehicle's floorboard in front of the driver's seat that defendant stated belonged to him and inside the backpack found a closed cylindrical corn chip cannister, which, upon further inspection, had a false bottom containing six hundred fentanyl pills, and where the district court granted defendant's motion to suppress evidence of the fentanyl pills as a violation of his constitutional protection against unreasonable searches and seizures, finding that a search of defendant's backpack was reasonably related to an inventory of valuable items in the vehicle, but searching the cannister was unreasonable, the district court did not err in granting defendant's motion to suppress, because defendant had a constitutionally protected expectation of privacy in the contents of the cannister because defendant plainly took steps to keep the canister's contents from plain view and this subjective expectation of privacy in the contents of the canister was objectively reasonable, and, because the state failed to provide sufficient bases to justify opening it for the purpose of inventory, defendant's privacy interests in the canister outweighed the government's interest in searching it. State v. Huerta, 2025-NMCA-032, cert. granted.

Defendant had standing to contest inventory search despite denying ownership of drugs found in his vehicle. — Where officers stopped defendant for driving on a suspended license and placed him under arrest, and where, pursuant to police policy requiring officers to tow vehicles after traffic stops when the driver is arrested and there is no one else to take control of the vehicle, the officers called a tow truck and conducted an inventory search of the vehicle, during which a zipped-up black bag containing methamphetamine and drug paraphernalia were found, defendant had standing to contest the search of the black bag located inside the vehicle despite denying that the black bag, containing drugs and drug paraphernalia, was his because the uncontested facts were that defendant was a regular, permissive user of the vehicle and exerted control over the vehicle and its contents, including the black bag. Defendant therefore demonstrated that he had a subjective expectation of privacy in items found in his vehicle. State v. Sanders, 2024-NMCA-030, cert. denied.

Search of zipped-up bag during inventory search of vehicle violated defendant's constitutional rights. — Where officers stopped defendant for driving on a suspended license and placed him under arrest, and where, pursuant to police policy requiring officers to tow vehicles after traffic stops when the driver is arrested and there is no one else to take control of the vehicle, the officers called a tow truck and conducted an inventory search of the vehicle, during which a zipped-up black bag containing methamphetamine and drug paraphernalia was found, and where defendant moved to suppress the evidence, claiming that although the search and seizure of the black bag was reasonable, the search of the zipped bag and seizure of its contents during the inventory search violated the New Mexico constitution, the district court erred in denying defendant's motion to suppress, because, when weighing the governmental and societal interest advanced to justify the intrusion against the constitutionally protected interest of the individual citizen in the privacy of their effects, defendant's expectation of privacy in the zipped bag outweighed the government's interest in protecting defendant's property and protecting the police from liability. By taking the vehicle into custody, the officers sufficiently protected defendant's property without needing to search the zipped bag, and the state failed to explain how searching the closed bag provided greater protections against liability when securing the closed bag would have satisfied the government's interest of protecting the police from liability. State v. Sanders, 2024-NMCA-030, cert. denied.

Warrantless search of automobile was justified by exigent circumstances. — Where police officers, who were dispatched to a drive-in in response to reports of an armed subject pointing a rifle at several people from the window of a vehicle, stopped defendant’s vehicle and conducted a standard felony stop procedure; after defendant and two minors exited the vehicle and were restrained, the officers conducted a warrantless search of the vehicle; the officers found a rifle in the trunk of the vehicle; the officers were trained to check the trunk of a vehicle during a felony stop because the trunk could conceal a person; during the stop, a group of onlookers had gathered near the vehicle; and the officers had probable cause to believe that an assault with a deadly weapon had occurred and that a gun used in the commission of a crime was in a vehicle that was accessible to a group of people even if it was not accessible to defendant, exigent circumstances justified the warrantless search of the vehicle. State v. Leticia T., 2014-NMSC-020, rev'g 2012-NMCA-050, 278 P.3d 553.

Search of automobile pursuant to standard operating procedures. — Where an armed suspect was reported to have pointed a rifle from the passenger side window of a vehicle at several persons standing in a parking lot; a police officer stopped a vehicle that matched the description of the vehicle; the officer decided to conduct a felony stop and called for backup; the child stepped out of the front passenger door of the vehicle; two other children were ordered out of the vehicle; based on the officer’s training and standard operating procedures for felony stops, the officers conducted a warrantless search of the trunk and found a rifle; and the officers did not testify about any facts that led them to suspect that anyone was actually hiding in the truck of the vehicle, the search of the trunk was not justified by standard operating procedures or exigent circumstances or as a protective sweep. State v. Leticia T., 2012-NMCA-050, 278 P.3d 553, rev’d, 2014-NMSC-020.

A warrantless search of an automobile and its contents requires a particularized showing of exigent circumstances, and a warrantless search is valid where the officer reasonably has determined that exigent circumstances exist. State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.

Under N.M. Const., art. II, § 10, there are no "automatic" exigent circumstances justifying the warrantless search of an automobile; rather, a warrantless search of an automobile is valid only where the officer has reasonably determined that exigent circumstances exist. State v. Jones, 2002-NMCA-019, 131 N.M. 586, 40 P.3d 1030, cert. denied, 131 N.M. 619, 41 P.3d 345, abrogated, State v. Bombay, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045.

Before evidence seen in plain view inside an automobile may be seized, a warrant is required to enter the automobile unless the state can satisfy its burden to show that exigent circumstances existed justifying the warrantless entry or that another applicable exception to the warrant requirement applies. State v. Jones, 2002-NMCA-019, 131 N.M. 586, 40 P.3d 1030, cert. denied, 131 N.M. 619, 41 P.3d 345, abrogated, State v. Bombay, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045.

The state must justify the warrantless search of an automobile incident to an arrest through articulated facts in the record showing a reasonable likelihood of either a potential danger or the concealment or destruction of evidence. State v. Pittman, 2006-NMCA-006, 139 N.M. 29, 127 P.3d 1116, cert. quashed, 2007-NMCERT-001, 141 N.M. 165, 152 P.3d 152.

Search was unlawful. — Article II, § 10 requires both probable cause and exigent circumstances for the warrantless search of an automobile. No exigent circumstances existed for a search of the trunk when the vehicle was in an impound lot, was to remain there for several days, and the lot had numerous security measures. State v. Warsaw, 1998-NMCA-044, 125 N.M. 8, 956 P.2d 139, cert. denied, 125 N.M. 147, 958 P.2d 105.

The presence of a gun in defendant's locked car parked in the parking area of his grandmother's apartment complex, without more, did not create a danger to the public or exigent circumstances justifying a search of the car. State v. Pittman, 2006-NMCA-006, 139 N.M. 29, 127 P.3d 1116, cert. quashed, 2007-NMCERT-001, 141 N.M. 165, 152 P.3d 152.

Search of vehicle was lawful. — Where police officers searched the car and seized the gun, not as evidence of a crime, but in a reasonable effort to secure the scene, under these facts, the officers 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, aff'g in part, rev'g in part, 2004-NMCA-006, 135 N.M. 595, 92 P.3d 41.

Defendant's expectations of privacy, particularly to his vehicle parked outside the probation office, were necessarily reduced by his status and by the provisions in the probation order and intensive supervision program agreement regarding warrantless arrests and searches where he was under arrest and had undergone a patdown search that aroused suspicions and a key-lock match that caught him in a lie. Defendant's probation status, together with his prior convictions and the current probation violation for which he was arrested, the patdown discovery of a large sum of cash in small bills, and defendant's lie about how he arrived at the probation office were sufficient to give the officers a reasonable basis to search the vehicle for evidence of another violation of his probation conditions. State v. Ponce, 2004-NMCA-137, 136 N.M. 614, 103 P.3d 54, cert. quashed, 2006-NMCERT-004, 139 N.M. 430, 134 P.3d 121.

Inventory search. — Where a police officer initiated a traffic stop after observing defendant towing a trailer that was missing a tail light and a license plate; the officer noticed that defendant was nervous and that defendant's responses were inconsistent; the officer discovered that defendant’s driver’s license had been revoked and arrested defendant; the officer conducted an inventory search of defendant’s vehicle; in the center console of the vehicle, the officer discovered a cell phone case containing a glass pipe wrapped in a napkin; the pipe contained a white powdery residue; and it was apparent to the officer that the pipe was used for the consumption of narcotics, the inventory search provided a valid basis for the warrantless entry of defendant’s vehicle and the subsequent seizure of the pipe was justified by the plain view doctrine. State v. Lopez, 2009-NMCA-127, 147 N.M. 364, 223 P.3d 361, cert. denied, 2009-NMCERT-010, 147 N.M. 452, 224 P.3d 1257.

Three-factor test for constitutionally reasonable inventory searches. — Police inventory searches are constitutionally reasonable if the object is lawfully in police control or custody, the inventory of the object is made pursuant to established police regulations, and the search of the object is reasonable. State v. Ontiveros, 2024-NMSC-001, aff'g 2022-NMCA-019, 508 P.3d 910.

Where defendant was arrested following a traffic stop and where the arresting officer decided to impound defendant's vehicle and perform a warrantless inventory search even though the car was legally parked at the registered owner's home, the warrantless inventory search, although consistent with the standardized criteria contained in the police department's tow and impound policy, was unreasonable where there was no evidence or findings that the vehicle created a hazard to other drivers where it was parked or that it was made less secure by defendant's arrest, and therefore did not need to be impounded and searched to protect the police against possible claims or disputes over lost or stolen property. The state failed to meet its burden under the fourth amendment to demonstrate the reasonableness of the impoundment and warrantless inventory search of the vehicle driven by defendant at the time of his arrest. State v. Ontiveros, 2024-NMSC-001, aff'g 2022-NMCA-019, 508 P.3d 910.

Inventory search was unreasonable. — Where a police officer, after observing a moving vehicle with a broken taillight and a cracked front windshield, conducted a traffic stop of the vehicle, which promptly pulled over and parked at a nearby trailer park, and where the driver was subsequently arrested for driving while his license was revoked, and where, following the arrest, the officer took inventory of the vehicle's contents because he intended to have the vehicle towed, and where the inventory search revealed a container with marijuana inside, a digital scale with marijuana residue, and a pill bottle that contained methamphetamine and other controlled substances, and where defendant filed a motion to suppress the evidence obtained from his vehicle, arguing that such evidence was obtained in violation of the fourth amendment to the United States constitution, and where, at the hearing on defendant's motion, the arresting officer testified that although he was not required by department policy to tow the vehicle, it was his standard practice to have the vehicle towed every time he arrests a driver, and where the district court made a finding that the vehicle was parked at the trailer park where defendant's grandmother, the owner of the vehicle, lived and in the parking space belonging to the grandmother's trailer, the district court erred in denying defendant's motion to suppress because the vehicle was not rendered unsecure by the defendant's arrest and loss of control over it, as it was parked in its typical parking space at its owner's home, defendant's loss of control of the vehicle did not increase the risk of loss, theft, or destruction to which the same vehicle was typically exposed while parked in the same location on any other occasion, and the inventory search was not conducted in conformity with established police regulations as the officer failed to adhere to department policy regarding towing vehicles. State v. Ontiveros, 2022-NMCA-019, cert. granted.

Search of a moving object. — The courts have long recognized another exception to the requirement that searches and seizures be undertaken by officers only after obtaining a warrant, that is, the search of a moving object, particularly an automobile, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968).

Following a valid investigatory stop, an officer was justified, on the basis of a reasonable suspicion that defendant had recently used a handgun to commit an aggravated assault, in conducting a protective search of the floor and adjacent area of defendant's vehicle; however, a search of a small hole in the dashboard exceeded the scope of the search. State v. Arredondo, 1997-NMCA-081, 123 N.M. 628, 944 P.2d 276, overruled by State v. Steinzig, 1999-NMCA-107, 127 N.M. 752, 987 P.2d 409.

Vehicle trunk is protected place. — Entry into the trunk of a vehicle, even an open trunk, is an intrusion governed by the fourth and fourteenth amendments because, at least in New Mexico, persons have a reasonable expectation of freedom from intrusion in that area. State v. Ramzy, 1993-NMCA-140, 116 N.M. 748, 867 P.2d 418, cert. denied, 116 N.M. 801, 867 P.2d 1183 (1994).

An inventory search of an automobile in lawful custody of the police can be made and items in the trunk can be inventoried. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975).

An inventory search of an automobile does not violate U.S. Const., amend. IV, when that automobile is in the lawful custody of the police in a reasonable exercise of its caretaking function. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851.

Where the initial intrusion into a vehicle which is lawfully in police custody is justified, an inventory of the contents of closed containers is also justified. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975).

An inventory search is not constitutionally permissible absent a search warrant after police have relinquished possession, custody and control of a vehicle to a third party who has the legal right to possession, custody and control of the vehicle, and the trial court should have granted defendant's motion to suppress. State v. Clark, 1976-NMCA-109, 89 N.M. 695, 556 P.2d 851.

Unreasonable search. — Where police officer engaged in exploratory rummaging in the automobile after receiving keys from defendant that were to be delivered to defendant's grandmother, the officer was not concerned about any danger defendant might pose; in fact, defendant posed no danger; the state did not demonstrate that the car would contain any evidence related to defendant's warrant for failure to appear and nothing in the record reflected any knowledge on the officer's part of defendant's felony record before the officer searched defendant's vehicle, the search cannot be characterized as reasonable under this section. State v. Pittman, 2006-NMCA-006, 139 N.M. 29, 127 P.3d 1116, cert. quashed, 2007-NMCERT-001, 141 N.M. 165, 152 P.3d 152.

Actions of officers. — Where, following an accident, defendant sought to preserve the contents of the trunk of his car as private, actions of officers in encouraging a narcotics dog to jump into the trunk and bending their heads into the trunk to view the object of the dog's alert, constituted an illegal search. State v. Warsaw, 1998-NMCA-044, 125 N.M. 8, 956 P.2d 139, cert. denied, 125 N.M. 147, 958 P.2d 105.

Leaving car unattended before search. — Where the officer went by a grocery store before returning to the car that was to be searched, and the officer's trip by the grocery store before returning to the car was part of a continuing series of events, the fact that the car was unattended for 10 minutes did not make the search unreasonable, but the fact that the car had been unattended might raise questions in connecting defendant with items found in the search. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

"Visual search" by the officer of car of defendant to search for weapons, wherein he saw a shaving kit, a pair of shoes and a prybar, was not unreasonable. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

I. LICENSE, REGISTRATION AND LICENSE PLATE CHECK.

An individual has no reasonable expectation of privacy in a vehicle license plate number or vehicle identification number and a police officer does not need reasonable suspicion to conduct a license plate check or a vehicle identification number search. State v. Herrera, 2010-NMCA-006, 147 N.M. 441, 224 P.3d 668, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

In conducting general license and registration checks under former 64-13-49, 1953 Comp. (similar to 66-5-16 NMSA 1978) and 66-3-13 NMSA 1978, the actions of the police must be in conformity with the constitutional requirements of the U.S. const., amend. 4; and when the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful, the actions then become unreasonable and fail to meet the constitutional requirement. State v. Bloom, 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925, rev'd in part, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465.

Request for driver's license. — Where a law enforcement officer, without preamble, requests a driver's license from the driver of a parked vehicle, the driver is not free to leave, the encounter is not consensual, and the detention must be justified by individualized reasonable suspicion. State v. Williams, 2006-NMCA-062, 139 N.M. 578, 136 P.3d 579, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

License plate check. — Where a law enforcement officer, who was informed that there was a potential incident with regard to defendant’s car, but who did not observe the incident, ran a check on the car’s license plate number; the license plate check showed that the plate did not match the car; the officer returned to the car with defendant to obtain the vehicle identification number; when defendant opened the door of the car, the officer observed a handgun inside the car; the vehicle identification number search revealed that there was no current valid registration for the car in New Mexico; defendant admitted that defendant was a convicted felon; the officer placed defendant under arrest; and during an inventory search of the car, the officer found cocaine and drug paraphernalia, the court erroneously held that the officer was required to have a reasonable suspicion to conduct the license plate check. State v. Herrera, 2010-NMCA-006, 147 N.M. 441, 224 P.3d 668, cert. denied, 2009-NMCERT-012, 147 N.M. 600, 227 P.3d 90.

General license and registration check. — Officer's activities in asking defendant, who was a passenger and owner of the vehicle, for identification, registration and insurance documentation, and in pursuing a computer warrants check based on the identification supplied by defendant, were constitutionally permissible and did not constitute valid grounds on which to suppress evidence seized in search of the vehicle after defendant's arrest. State v. Rubio, 2006-NMCA-067, 139 N.M. 612, 136 P.3d 1022, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Where defendant's car was stopped during a general license and registration check, and after a police request, defendant opened the trunk, at which point the officer smelled marijuana, and subsequently the defendant opened a suitcase (also at the officer's request), it was held that the seizure of the marijuana residue found in the suitcase was not unlawfully accomplished. State v. Bloom, 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925, rev'd in part, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465.

J. IN CASES OF ARREST.

Lawful expansion of initial detention. — Where police officers were investigating an aggravated battery; the victim informed the police that the perpetrators were defendant and defendant’s friend, and that defendant drove a red Isuzu and identified the location of the battery; the officers went to the house; a red Isuzu was parked outside the house; the officers noticed the odor of burnt marijuana when the front door of the house was opened; the officers asked the occupants of the house, including defendant, if they had any weapons and patted them down; with the consent of a person who lived in the house the officers conducted a protective sweep of the house but did not see any drugs in plain view; defendant indicated that defendant owned the red Isuzu; the officers asked defendant if there were any drugs or weapons in the Isuzu and defendant indicated that there was a pry bar in the Isuzu; the officers asked defendant if they could retrieve the pry bar from the Isuzu as part of the aggravated assault investigation; defendant declined but offered to retrieve the pry bar; the officers noticed the odor of marijuana emanating from the Isuzu and called a canine unit; the canine alerted indicating the presence of drugs; the officers obtained a search warrant, searched the Isuzu, and found cocaine; prior to arriving at the house, the officers had been informed that defendant was dealing drugs in the neighborhood and that defendant’s friend had been seen carrying a handgun, the officers lawfully detained defendant in relation to the aggravated battery investigation and lawfully expanded the initial detention to a pat down of defendant and to await a search of the Isuzu for drugs. State v. Martinez, 2010-NMCA-051, 148 N.M. 262, 233 P.3d 791, cert. denied, 2010-NMCERT-005, 148 N.M. 574, 240 P.3d 1048.

An arrest made by a state actor in violation of a statute is not per se a violation of the fourth amendment to the United States constitution. State v. Slayton, 2009-NMSC-054, 147 N.M. 340, 223 P.3d 337.

Contemporaneous seizure of drugs and arrest. — Where an officer saw methamphetamine in plain view in a vehicle occupied by only the defendant who was the driver; the drugs were within defendant’s reach and immediate control; the defendant was in control of the vehicle and able to drive away; and the officer first seized the drugs and then immediately arrested the defendant, the seizure and the arrest were contemporaneous, and the seizure was justified as a search incident to arrest. State v. Weidner, 2007-NMCA-063, 141 N.M. 582, 158 P.3d 1025.

Warrantless pat-down was reasonable and lawful as incident to the lawful arrest of defendant for a violation of a condition of the probation order and a condition of his intensive supervision program agreement. State v. Ponce, 2004-NMCA-137, 136 N.M. 614, 103 P.3d 54, cert. quashed, 2006-NMCERT-004, 139 N.M. 430, 134 P.3d 121.

A search without a warrant is lawful when the search is incident to a lawful arrest. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

The right to search incident to a lawful arrest is deeply rooted in the law. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986.

District court did not err in admitting evidence seized incident to a lawful arrest. — Where defendant was placed in custody after having been found trying to start a scooter with an ignition that appeared to be tampered with, which indicated to the officers that the scooter may have been stolen, and after officers received notification through the national crime information center that defendant had two outstanding felony warrants for his arrest, and where, prior to being advised of his Miranda rights, an officer asked defendant, "Is there anything on your person that I should know about?", to which defendant responded "I have meth", resulting in the seizure of a white powder inside a pill container hanging from defendant's belt loop, and where defendant moved to suppress the evidence and statements resulting from the search incident to the arrest, claiming that his arrest was unlawful because local police department policy prohibited officers from making an arrest based on dispatch's preliminary report regarding the existence of an outstanding warrant until such warrant is confirmed, the district court did not err in denying defendant's motion to suppress because the arrest was lawful, regardless of police department policy regarding secondary confirmation of the accuracy of the arrest warrant, and our jurisprudence permits a contemporaneous search incident to an arrest when an outstanding warrant forms the basis of the arrest. State v. Widmer, 2021-NMCA-003, cert. denied.

Right is exception to warrant requirement. — In the case of a lawful custodial arrest, a full search of the person is an exception to the warrant requirement. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975).

Reason for right to search. — A police officer must have power to conduct an immediate search following an arrest in order to remove weapons and to prevent the suspect from destroying evidence. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986.

Search incident to arrest is "reasonable". — In the case of a lawful custodial arrest, a full search of the person is a "reasonable" search. State v. Vigil, 1974-NMCA-065, 86 N.M. 388, 524 P.2d 1004, cert. denied, 86 N.M. 372, 524 P.2d 988, cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975).

An arrest will not be validated by what it turns up. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Where evidence is not fruit of the arrest. — When it is clear that the trial court had jurisdiction of the defendant and of the cause, it makes no difference if defendant's presence was obtained through illegal arrest, when the evidence utilized at the trial was not a fruit of the arrest. State v. Garcia, 1966-NMSC-063, 76 N.M. 171, 413 P.2d 210.

Seizure of items incidental to unrelated offense. — Officers who search incidental to a lawful arrest may seize things incidental to another and wholly unrelated offense which may be uncovered by such a search. State v. Adams, 1969-NMCA-059, 80 N.M. 426, 457 P.2d 223; State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478; State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986.

Although the checks seized from defendant were unrelated to the assault and battery charge, their seizure was not an unreasonable seizure violative of the constitutional prohibition because they were taken as an incident to the arrest on the assault and battery charge. State v. Adams, 1969-NMCA-059, 80 N.M. 426, 457 P.2d 223.

Although certain evidentiary items were unrelated to car registration offense, with which defendant was charged, their seizure was not an unreasonable seizure violative of the constitutional prohibition where they were taken as an incident to the arrest for that offense. State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478.

Warrantless seizure of weapon. — Based on a police officer's reasonable safety concern, a warrantless seizure of a weapon within the area of immediate control of a person who is present during a custodial arrest does not violate the rights of the arrestee under the New Mexico constitution. State v. Gutierrez, 2004-NMCA-081, 136 N.M. 18, 94 P.3d 18, cert. denied, 2004-NMCERT-006, 135 N.M. 788, 93 P.3d 1293.

Search of premises not prohibited. — A search and seizure is permissible when made contemporaneous with the arrest, and the constitution does not prohibit a search of the arrested person's premises for evidence related to the crime, under appropriate circumstances. State v. Sedillo, 1968-NMCA-035, 79 N.M. 289, 442 P.2d 601.

Search delayed after arrest. — Where there was probable cause for the arrest and detention of the vehicle, and officers looked in the car approximately one-half hour after the defendants were taken into custody and the presence of one of the television sets was noted, the search was reasonably incident to the arrest. State v. Warner, 1972-NMCA-042, 83 N.M. 642, 495 P.2d 1089, cert. denied, 83 N.M. 631, 495 P.2d 1078.

A search that occurred around two hours after the arrest when the evidence is sufficient to show that the police officers had reasonable or probable cause to search the automobile at the place of arrest was valid, because the authority to search continued to authorize a search at the police station shortly thereafter. The search was not remote; therefore, the evidence seized from the car was properly admitted. State v. Courtright, 1972-NMCA-009, 83 N.M. 474, 493 P.2d 959.

Examination of contents of briefcase. — Where taking into custody of briefcase and the examination of its contents constituted a seizure and search, and this seizure and search were incident to the lawful arrest of the defendant, they were also lawful. State v. Barton, 1968-NMSC-065, 79 N.M. 70, 439 P.2d 719.

Nothing stated in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), compels, or even strongly suggests, that the taking of a briefcase and its contents, incident to a lawful arrest, constituted an unreasonable search and seizure contrary to the guarantees of U.S. Const., amend. IV and XIV, and of this section. State v. Barton, 1968-NMSC-065, 79 N.M. 70, 439 P.2d 719.

Search incident to arrest shown. — Where probable cause existed for child's arrest after examination of a cigarette containing marijuana was lawfully taken from the child's shirt pocket, the subsequent emptying of the child's pockets and the formal arrest were substantially contemporaneous events, the child having been deprived of freedom of movement prior to those two events, and the seizure of the lid of marijuana was thus incident to a lawful arrest. In re Doe, 1976-NMCA-011, 89 N.M. 83, 547 P.2d 566, cert. denied, 89 N.M. 206, 549 P.2d 284.

Police officers were not required to obtain a search warrant prior to searching defendant's car for a gun in situation where police arrived on scene minutes after being called and told that a shooting was in progress, were directed by friends of alleged victim to defendant's car, arrested defendant and advised him of his rights, whereupon defendant stated that he didn't mean to shoot anyone and then told officers that the gun was under the front seat of the car. State v. Gurule, 1972-NMCA-104, 84 N.M. 142, 500 P.2d 427.

Search incident to arrest not shown. — Where the warrantless search of the car and seizure of marijuana seeds and marijuana were unlawful because consent was not given and the search was not pursuant to an arrest, there was no probable cause to warrant a search. State v. Brubaker, 1973-NMCA-152, 85 N.M. 773, 517 P.2d 908.

Where there was no arrest for any charge at the time of the search of defendant's car for beer, and defendant was not taken into custody for his driving violation, the search could not be justified by the search incident to arrest theory. The scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824.

Where defendants placed their belongings on the table, and it was thus evident that they were not armed, search was at an end, and since defendants were not under arrest, a search and seizure incident to arrest was not involved, and, therefore, where the officers continued search, discovery of marijuana constituted an illegal search and seizure. State v. Washington, 1971-NMCA-005, 82 N.M. 284, 480 P.2d 174.

Bondsman arresting third party. — Neither the common-law nor statutory authority of a bondsman to make a warrantless arrest of his principal absolves a bondsman of criminal responsibility ensuing from the armed, unauthorized, and forcible entry into the residence of a third party. State v. Lopez, 1986-NMCA-094, 105 N.M. 538, 734 P.2d 778, cert. denied, 479 U.S. 1092, 107 S. Ct. 1305, 94 L. Ed. 2d 160 (1987), cert. quashed, 105 N.M. 521, 734 P.2d 761, modified, State v. Baca, 1992-NMSC-055, 114 N.M. 668, 845 P.2d 762.

Arrest for driving with suspended license.— Where defendant was stopped for driving with suspended license, there was no evidence that the suspension was DWI-related, and 66-8-122 and 66-8-123 NMSA 1978 required the officer to cite and release defendant, defendant's custodial arrest for driving with a suspended license was unlawful, search of defendant after arrest was unlawful, and seizure of drug-related evidence was unreasonable and should have been suppressed. State v. Bricker, 2006-NMCA-052, 139 N.M. 513, 134 P.3d 800, cert. quashed, 2007-NMCERT-002, 141 N.M. 339, 154 P.3d 1239.

Seizure of drugs as incident to arrest for DWI. — Where defendant’s vehicle was stopped after almost striking a police vehicle; the police officer smelled alcohol on defendant’s breath, conducted field sobriety tests and placed defendant under arrest for DWI; during a search incident to the arrest, the officer found a dollar bill in defendant’s pocket that was folded in a unique way which the officer recognized as packaging for cocaine; and the officer opened the dollar bill and discovered a white, powdery substance that was later confirmed to be cocaine, the seizure and search of the dollar bill was reasonable. State v. Armendariz-Nunez, 2012-NMCA-041, 276 P.3d 963, cert. denied, 2012-NMCERT-003.

Incident to arrest. — The state must prove the ability of the suspect to gain possession of a weapon to use against the officer or to gain possession of evidence and conceal or destroy it to justify seizure of a weapon as an incident to arrest. State v. Rowell, 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280, rev'd, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95.

Search incident to arrest exception not applicable. — Where a police officer stopped the defendant for speeding in a school parking lot; the officer observed in plain sight a bag of marijuana in the defendant’s shirt pocket; the officer removed the defendant from the vehicle, handcuffed him, placed him under arrested, and secured him in the officer’s patrol car; the defendant admitted that he had a shotgun in his vehicle; and the officer then searched the vehicle for weapons, the seizure of weapons from the defendant’s vehicle was not justified by the search incident to arrest exception to the warrant requirement. State v. Rowell, 2008-NMSC-041, 144 N.M. 371, 188 P.3d 95, rev’g 2007-NMCA-075, 141 N.M. 783, 161 P.3d 280.

State did not meet its burden in demonstrating the reasonableness of the warrantless search pursuant to the search incident to arrest exception. — Where police officers went to defendant’s house to execute an arrest warrant for criminal trespass, and where, upon arriving, found defendant in an alley behind her house with a purse hanging over her shoulder, and where, after placing defendant under arrest, the officers took possession of defendant’s purse and searched it, locating a small knife and two flashlights, one of which contained .14 grams of methamphetamine, and where defendant moved to suppress all controlled substances seized by the officers, the district court erred in denying defendant’s motion to suppress, because a search incident to arrest may only include the arrestee’s person and the area within their immediate control in order to prevent the arrestee from obtaining a weapon or destroying evidence, and in this case, the search of a carried purse does not qualify as a search of a person and the state failed to put forth any evidence that the purse was within the defendant’s immediate control such that defendant presented a danger of gaining possession of a weapon or was in a position to destroy evidence of her arrest. State v. Ortiz, 2023-NMSC-026, aff’g A-1-CA-34703, mem. op. (N.M. Ct. App. Sept. 10, 2018) (nonprecedential).

Attenuation doctrine applied under the fourth amendment. — Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained. State v. Edwards, 2019-NMCA-070, cert. denied.

Defendant's arrest warrant was an intervening cause that attenuated his unlawful seizure from evidence obtained after his arrest. — Where a law enforcement officer began an investigative detention at the scene of a "shots fired" call, during which the officer requested identification from certain people acting suspiciously, and where the officer discovered that defendant had an outstanding warrant for his arrest, arrested defendant, and discovered narcotics on defendant's person during a search incident to that arrest, the district court did not err in denying defendant's motion to suppress, because defendant's arrest warrant was an intervening cause that broke the causal chain between the officer's unlawful detention of defendant and the seizure of evidence from defendant after his arrest. State v. Edwards, 2019-NMCA-070, cert. denied.

Under-clothing search. — A search incident to arrest that involves an officer removing or looking under any part of an arrestee’s clothing requires, at a minimum, particularized reasonable suspicion that the arrestee is concealing a weapon or evidence that is susceptible to destruction before arriving at the police station. State v. Williams, 2011-NMSC-026, 149 N.M. 729, 255 P.3d 307, rev'g 2010-NMCA-030, 148 N.M. 160, 231 P.3d 616.

Under-clothing search was reasonable. — Where defendant was stopped for a traffic violation; as the officer approached the vehicle, the officer saw defendant engage in acts that, based on the officer’s experience, were consistent with concealing contraband or searching for a weapon; when defendant exited the vehicle, defendant’s pants were unzipped and defendant’s belt was unbuckled; defendant was placed under arrest on an outstanding felony warrant; with defendant standing between two officers and between two police cars parked bumper-to-bumper, the arresting officer patted defendant down, shook the waistband of defendant’s pants, pulled the waistband of defendant’s pants and underpants outward, looked down and saw a plastic bag underneath defendant’s underpants, and with a gloved hand reached down and removed the bag which contained illegal substances; and there was no evidence that any other person could see underneath defendant’s clothing, the officer had particularized reasonable suspicion to conduct an under-clothing search and the seizure of the bag was reasonable under the fourth amendment. State v. Williams, 2011-NMSC-026, 149 N.M. 729, 255 P.3d 307, rev'g 2010-NMCA-030, 148 N.M. 160, 231 P.3d 616.

Reach-in search was unreasonable. — Where defendant was stopped for driving through a stop sign; the police officer observed defendant fumbling around in the car as the officer approached the defendant’s car; the officer confirmed that defendant had an outstanding felony warrant; defendant was placed under arrest and handcuffed; the officer noticed that defendant’s pants were unzipped and part of defendant’s shirt was pulled through the zipper opening; the officer preformed a pat-down search of defendant which did not reveal anything that the officer believed was a weapon; the officer pulled the front of defendant’s pants outward, looked down and observed and seized a plastic bag containing crack cocaine and heroin next to defendant’s genitals; and the search was conducted between two police cars in broad daylight at rush hour on the side of a street, the search was unreasonable and violated defendant’s right to be free from unreasonable searches and seizures. State v. Williams, 2010-NMCA-030, 148 N.M. 160, 231 P.3d 616, rev’d, 2011-NMSC-026, 149 N.M. 729, 255 P.3d 307.

III. WARRANT REQUIREMENTS.

A. IN GENERAL.

A blank or alias warrant is void. If name in warrant is not given, the warrant must contain the best description possible, sufficient to indicate clearly the person to be arrested. It should state his occupation, personal appearance, place of residence or other means of identifying him. 1960 Op. Att'y Gen. No. 60-145.

Search illegal if probable cause not in affidavit for warrant. — Search of premises was illegal where there was no probable cause to search premises for evidence of murder since there was no evidence presented in the affidavit from which a magistrate could properly infer that the place to be searched was defendant's residence. State v. Herrera, 1985-NMSC-005, 102 N.M. 254, 694 P.2d 510, cert. denied, 471 U.S. 1103, 105 S. Ct. 2332, 85 L. Ed. 2d 848 (1985).

Where the only allegations of criminality in an affidavit for a search warrant were hearsay from persons who were not law-enforcement officers, the affidavit did not establish probable cause because it did not establish either (1) that the informants were truthful persons, (2) that the informants had particular motives to be truthful about their specific allegations, or (3) that the allegations of criminality had been sufficiently corroborated. State v. Therrien, 1990-NMCA-060, 110 N.M. 261, 794 P.2d 735, overruled in part on other grounds by State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839.

The standards for the sufficiency of search warrants are: (1) only a probability of criminal conduct need be shown; (2) there need be less vigorous proof than the rules of evidence require to determine guilt of an offense; (3) common sense should control; (4) great deference should be shown by courts to a magistrate's determination of probable cause. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300.

Application failing to state basis for statement. — Where application for search warrant gave no clue as to the basis for the statement that a packet of marijuana had been found in the car, it did not state probable cause and was constitutionally inadequate. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled on other grounds by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Oral representations to the judge who issues the search warrant are insufficient, because this section requires a written showing of probable cause. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled on other grounds by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Information in affidavit not stale. — Trial court erred in granting motion to suppress evidence seized in search pursuant to a warrant on the basis that the information in the affidavit for the warrant was stale where affidavit recited informant's month-old purchase of heroin, his past observations of heroin on the premises and his observations of sales from the premises during the month prior to issuance of the search warrant, and also gave statements of three reliable informants that defendant was a daily heroin user. State v. Garcia, 1977-NMCA-056, 90 N.M. 577, 566 P.2d 426, cert. denied, 90 N.M. 636, 567 P.2d 485.

Affidavit held insufficient. — Affidavit did not establish a substantial basis for believing an informant's report was based on reliable information, where, although the informant reportedly stated that defendant had brought heroin into town and was selling it at the house in question, the affidavit was devoid of any indication of how the informant gathered this information. State v. Cordova, 1989-NMSC-083, 109 N.M. 211, 784 P.2d 30.

Magistrate to be interposed between arresting force and citizen. — Before a warrant for arrest may be issued, the judicial officer issuing it must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant, so as to allow a relatively independent magistrate to be interposed between the arresting force, and the citizen, whose right not to be arrested without cause is guaranteed by U.S. Const., amend. IV. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256.

De novo review of probable cause. — An issuing court’s determination of probable cause to issue a search warrant should not be reviewed de novo, but, rather, must be upheld if the affidavit provides a substantial basis to support a finding of probable cause. State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376, rev'g 2008-NMCA-096, 144 N.M. 522, 188 P.3d 1273.

Probable cause analysis. — Probable cause to believe a defendant committed a crime and probable cause to believe the home of the accused or another particular location will contain evidence of the crime does not follow ineluctably from an allegation of crime. The link between the two conclusions must be made on a case-by-case basis by the reviewing judge or magistrate who is asked to issue a search warrant. State v. Evans, 2009-NMSC-027, 146 N.M. 319, 210 P.3d 216.

No probable cause to expand search to defendant’s residence. — Where police officers conducted surveillance of defendant’s house in preparation for executing an arrest warrant on defendant and defendant’s spouse; the officers did not see anyone enter or leave the house, other than defendant and defendant’s spouse; the officers did not have any facts to suggest that anyone, other than defendant and defendant’s spouse, was in the house; the officers found defendant and defendant’s spouse sitting at a patio table in defendant’s back yard about ten feet from an open sliding door to the house; and after defendant and defendant’s spouse were arrested, the officers conducted a protective sweep of the house and found trash bags that smelled of marijuana; the officers obtained a search warrant based on the discovery of the trash bags and seized the trash bags, the search of the house was unwarranted because there was no evidence to support any specific safety concerns involving any other persons at the arrest scene and the search warrant was invalid because it was based upon evidence tainted by the illegal entry. State v. Eckard, 2012-NMCA-067, 281 P.3d 1248.

Standards for testing affidavits of probable cause. — Affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Informant information. — Information supplied by an informer, verified by police, was sufficient to constitute probable cause for issuance of a search warrant. State v. Mireles, 1972-NMCA-105, 84 N.M. 146, 500 P.2d 431.

Showing of probable cause is not limited to written statements. — A "showing" of probable cause required under Article II, Section 10 of the New Mexico constitution is not limited to a writing that the issuing judge sees rather than hears or ascertains by other means. Rather, the plain meaning of "showing" as used in Article II, Section 10 is a presentation or statement of facts or evidence that may be accomplished through visual, audible or other sensory means. State v. Boyse, 2013-NMSC-024, rev’g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285.

A search warrant may be obtained by telephone. — Where a police officer, who was investigating cruelty to animals, prepared a detailed, type-written affidavit as part of an application for a search warrant of defendant’s property; the officer contacted the on-call magistrate judge by telephone; over the telephone, the judge administered an oath to the officer who then read the written affidavit to the judge; the judge approved the search warrant over the telephone; and the officer noted the judge’s approval on the search warrant form and executed the search warrant, the search warrant was valid because the Article II, Section 10 of the New Mexico constitution allows for requesting and approving search warrants by telephone. State v. Boyse, 2013-NMSC-024, rev’g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285.

Telephonic warrants are not permitted under the New Mexico constitution. — Article II, Section 10 of the New Mexico constitution requires that a sworn writing must be shown to and considered by the issuing court before a warrant issues. The requirement is not satisfied when an investigator makes a writing but does not show it to the judge. State v. Boyse, 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285, rev’d, 2013-NMSC-024.

Where an investigator prepared a typewritten affidavit for a search warrant; the investigator then spoke over the telephone with a judge; the judge administered an oath to the investigator; the investigator read the statement of facts in support of the search warrant to the judge; the judge orally approved the warrant; and the investigator signed the judge’s name to the warrant, the warrant was invalid under Art. II, Section 10 of the New Mexico constitution. State v. Boyse, 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285, rev’d, 2013-NMSC-024.

Failure to return warrant. — Where the defendant received notice of a search warrant of the defendant’s home and signed the inventories, the defendant was aware of what was seized and had a copy of the warrant, and the defendant did not assert a substantive problem with the execution of the warrant or the evidence seized under the warrant, the failure to return the warrant, to file the warrant with the court, or to have a judge or clerk sign the warrant was not fundamental error. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29, overruled in part by State v. Marquez, 2021-NMCA-046.

Nineteen-day delay in obtaining a warrant to search seized computer was not unreasonable under the circumstances. — Where law enforcement seized defendant's computer tablet based on probable cause that it contained child pornography and in order to prevent defendant from accessing and removing files contained on the computer, and where, after a nineteen-day delay, the investigating agent executed a warrant to search the computer, the contents of the which led investigators to discover additional evidence of child sexual abuse and charge defendant with numerous counts of child sexual abuse and exploitation, and where, prior to trial, defendant filed a motion to suppress the contents of the computer, claiming violations of both the federal and state constitutions based on the state's nineteen-day delay in obtaining a search warrant, the nineteen-day delay was constitutionally reasonable under the circumstances, because the facts showed that defendant displayed a general disregard for both his possessory interest in the computer tablet and the privacy of its content, and the facts also showed that the investigating agent acted diligently to investigate and to confirm the accuracy of the evidence included in his warrant application throughout the nineteen-day period and was not simply indifferent to defendant's constitutional rights. In balancing the state's interests and defendant's possessory interest in the computer, the state's diligence in pursuit of its investigation outweighed defendant's diminished possessory interest in the computer. State v. Padilla, 2024-NMCA-073, cert. denied.

Tainted information. — A judge may not validate illegal police conduct by issuing a warrant that is based on tainted information, even if the judge makes a notation that the warrant should have been issued without the tainted information. State v. Trudelle, 2007-NMCA-066, 142 N.M. 18, 162 P.3d 173, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.

Tainted evidence. — Where police officers smelled a chemical odor that is associated with methamphetamine production as they approached defendants’ home; one defendant had yellowed and scorched fingers that are typical of persons who cook methamphetamine; the officers did not observe any other persons in the house who may have posed a threat or destroyed evidence; the officers did not have any information about the presence of possible victims in the house; the officers did not have any information that the defendants had weapons or were prone to violence; the officers entered the defendants’ home before deciding to obtain a search warrant and conducted a protective sweep of the house prior to arresting one defendant pursuant to an unrelated, outstanding warrant; the officers did not remain in the house while waiting for a search warrant to issue; the officers were not concerned about their safety and allowed one defendant to reenter the house unaccompanied by an officer; the officers searched a detached garage based on one officer’s observations from the home during the initial entry; and the officers were not entitled to enter the defendants’ home under the protective sweep, exigent circumstances or community caretaker exceptions, the search warrant that was based on information obtained by the officers from the initial entry of the house was invalid. State v. Trudelle, 2007-NMCA-066, 142 N.M. 18, 162 P.3d 173, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.

Affidavit failed to establish the veracity of a confidential informant. — Where a magistrate issued a search warrant of defendant’s residence that was supported by an affidavit in which a police officer stated that within the past 48 hours an informant observed defendant handling marijuana at the residence; on several earlier occasions, the officer observed activity at defendant’s residence that was consistent with drug trafficking; and the informant had cooperated with officers while under supervision to make at least two purchases of controlled substances; the affidavit did not indicate that the informant had provided reliable information in the past; and the officer’s observations were not made in the same time period as that addressed by the informant, the affidavit did not sufficiently establish the informant’s veracity and the observations by the officer of activity consistent with drug trafficking at defendant’s residence did not sufficiently corroborate the informant’s observations of drug activity to justify the issuance of a warrant. State v. Vest, 2011-NMCA-037, 149 N.M. 548, 252 P.3d 772, cert. quashed, 2012-NMCERT-004, 293 P.3d 887.

Liability for wrongful issuance and service of warrant. — Police officers and assistant district attorney were immune from liability for alleged wrongful issuance and service of a search warrant which was valid on its face in which court ordered police officers to search for child, take him into custody, keep him safely and make a return of the proceedings on the warrant. Torres v. Glasgow, 1969-NMCA-053, 80 N.M. 412, 456 P.2d 886.

Where warrantless arrest based upon communication from superiors. — When an officer has no warrant and arrests are based upon a communication from superiors, the officer or his superior must later be prepared to meet the twofold test of requiring that the source of the communication be credible, and the underlying circumstances which formed the basis of the communication be shown. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256.

Requirements for investigative demands under Antitrust Act. — Constitutional restrictions on government searches and seizures do not impose a requirement that civil investigative demands (CID) issue only upon a reasonable cause to believe that the Antitrust Act, Chapter 57, Article 1 NMSA 1978, has been or is being violated. The federal constitution requires only that for the issuance of an administrative subpoena the inquiry must be within the authority of the agency, the demand must not be too indefinite, and the information must be reasonably relevant to the purposes of the investigation; also, N.M. Const., art. II, § 10 does not require a "probability" showing that the federal constitution does not. Moreover, probable cause does not have the same meaning in the context of administrative searches as it does in the context for searches for evidence of crimes. Wilson Corp. v. State ex rel. Udall, 1996-NMCA-049, 121 N.M. 677, 916 P.2d 1344, cert. denied, 121 N.M. 644, 916 P.2d 844, cert. denied, 519 U.S. 964, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

B. PROBABLE CAUSE FOR WARRANT.

Affidavit failed to establish the veracity and reliability of informants. — Where the victim, whose decomposed body was found in a remote area, was killed by violent blunt-force trauma to the head; the victim was a local transient and drug user who had a history of stealing from those who invited the victim into their homes; the search warrant affidavit that the police submitted to obtain a warrant to search defendant’s property stated that the police had received tips from a confidential source and two concerned citizens that defendant had admitted to at least one person that defendant killed the victim for stealing and that defendant admitted to the killing prior to the discovery of the victim’s body; the affidavit did not allege that the sources heard defendant’s admission directly and did not indicate why the sources believed defendant’s admission; the affidavit did not indicate that any of the sources had provided reliable information to police in the past or made the statements against their interest; the affidavit did not provide information to discount the possibility that the sources might have been involved in the killing or had a reason to fabricate the story; and the sources provided only the independently corroborated fact that the victim stole from defendant, the affidavit did not establish probable cause because it failed to provide any basis upon which the veracity of the sources or the reliability of their information could be determined. State v. Haidle, 2012-NMSC-033, 285 P.3d 668.

Non-hearsay allegations in affidavit failed to establish probable cause. — Where the victim, whose decomposed body was found in a remote area, was killed by violent blunt-force trauma to the head; the victim was a local transient and drug user who had a history of stealing from those who invited the victim into their homes; the search warrant affidavit that the police submitted to obtain a warrant to search defendant’s property stated that defendant admitted that defendant had sex with the victim, that the victim’s blood would be found in defendant’s bathroom, that the victim stole from defendant, and that defendant owned a baseball bat for protection; and the affidavit stated that defendant’s home was near the place where the victim’s body was discovered, the affidavit did not establish probable cause. State v. Haidle, 2012-NMSC-033, 285 P.3d 668.

Probable cause for warrant. — Where a police officer stated in an affidavit for a search warrant of the defendant’s home that a citizen-informer, who was named in the affidavit, who had lived with the defendant and who was a suspect in the investigation of the alleged burglary of the defendant’s home, told the officer that when the informer was a minor, the defendant tried to rape the informer, that the defendant had sodomized the informer and that the defendant took sexually explicit pictures of the informer; that employees of state agencies corroborated accounts by the informer that the defendant engaged in inappropriate conduct with juvenile males; that the informer’s girlfriend alleged that the defendant intended to use drugs to facilitate sex with the informer; and where all persons to whom the police officer spoke were identified in the affidavit by name or position, the affidavit was supported by probable cause. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29, overruled in part by State v. Marquez, 2021-NMCA-046.

Probability for issuance of warrant shown. — Where the affidavits presented to the magistrate indicated that the affiants personally inspected two cars rented previously by the defendants and found significant traces of marijuana, that the defendants lived together, spent large amounts of cash for purchases, had no visible means of support, rented numerous automobiles for trips and flew on airplanes during the period of surveillance, the magistrate could assure himself that the affidavits were not based on rumors or merely on the defendants' reputation; there was sufficient information for him to be satisfied that the circumstances by which the affiants came by their information demonstrated probability for the issuance of a search warrant. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300.

Where the application for search warrant clearly showed how the officer concluded that the specific item for which they were looking might be in a certain car and where it affirmatively showed that two sources of information spoke with personal knowledge, the application was sufficient, and the district judge who found that the affidavit showed probable cause and who issued the search warrant did not err in so doing. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151.

Statements in the affidavit that the informant saw the defendant in possession of heroin and that the affiant knows the informant to be reliable because he has provided him with reliable information concerning narcotics violations in the past were sufficient to support the issuance of the search warrant. State v. Ramirez, 1980-NMCA-108, 95 N.M. 202, 619 P.2d 1246.

Probable cause found. — Where an affidavit for a search warrant alleged that the defendant brought a package into a UPS store; the defendant appeared to be nervous and did not know what was inside the package; when the store manager told the defendant that the package would have to be opened to ascertain its contents, the defendant stated that the package contained a book; although the defendant had mailed packages before, this was the first time the defendant appeared nervous and did not know what was in the package; after the defendant left, the store manager opened the package and discovered a clear plastic bag, which appeared to be vacuum sealed, containing a Crystal Light cylinder and a Ferrero candy box, both wrapped in duct tape; a narcotics detection dog sniffed the package, but failed to indicate a positive response to narcotics; and a law enforcement officer with eleven years of experience who was assigned to the narcotics task force division of the police department averred that often times narcotics are packaged in unusual containers, wrapped in duct tape and vacuum sealed to make the narcotics less detectable by narcotic detection dogs, the facts alleged in the affidavit were sufficient to explain the narcotic detection dog’s failure to alert to the presence of narcotics and to support a reasonable inference that the package contained narcotics. State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376, rev'g 2008-NMCA-096, 144 N.M. 522, 188 P.3d 1273.

Where an investigating officer's affidavit, when read as a whole, clearly indicated that the reports of informants were based on seeing stolen items at the locations indicated and on overhearing a conversation referring to a burglary, the information in the affidavit was sufficient to support the magistrate's issuance of the search warrant and necessarily his determination as to the informant's credibility. State v. Wisdom, 1990-NMCA-099, 110 N.M. 772, 800 P.2d 206, overruled by State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839.

Probable cause to believe that the accused committed a crime and that the home of the accused contained evidence of the crime. — Where the murder victim’s body was found wrapped in sheets and tied with electrical wire; the defendant’s friend told police that the friend saw the defendant with the victim shortly before the victim died; during a consensual search of the defendant’s bedroom, officers observed numerous electrical wires of different sizes and colors and two mattresses without linens or other bedding materials; the defendant’s mother told the police that the defendant told conflicting stories about the defendant’s activities the night the defendant borrowed the defendant’s mother’s van around the time the victim disappeared; a probation officer told the police that the probation officer overheard the defendant say to the defendant’s friend that "I guess I am a murderer"; and the defendant’s statements and the defendant’s mother’s statements placed the victim and the defendant at the defendant’s residence on the night the victim died, the magistrate judge was justified in finding a probability that the defendant was involved in the victim’s disappearance and death and that evidence of the murder would be found in the defendant’s bedroom. State v. Evans, 2009-NMSC-027, 146 N.M. 319, 210 P.3d 216.

Search warrant based on information provided by internet providers was supported by probable cause. — Where defendant was charged with one count of possession of child pornography following two independent reports from two internet providers to the national center for missing and exploited children (NCMEC) that a user had posted child pornography onto their internet platforms, and where defendant filed a motion to suppress evidence recovered during a search of his house, arguing that the affidavit supporting the search warrant was insufficient to establish probable cause because it failed to contain either adequate descriptions of the images that purportedly constituted child pornography or independent verification that such images violated New Mexico's child pornography statute, the district court erred in granting defendant's motion to suppress, because the search warrant was supported by probable where the two internet providers functioned as credible hearsay sources akin to identified citizen informants and who, by first-hand knowledge, gathered their reported information regarding the transmission or receipt of child pornography in a reliable fashion, given federal requirements compelling their respective reporting to NCMEC, and where the affidavit supporting the request for a search warrant provided reasonable grounds for the issuing court to conclude that a search of defendant's home would uncover evidence of wrongdoing, stating that an identified user posted six images that contained explicit images of children in sexual acts or positions. The description of "sexual acts" was sufficiently detailed to be identifiable as depicting child pornography under either the New Mexico or federal definition of child pornography. State v. Henz, 2022-NMCA-031, cert. granted.

Mere suspicion of trained officers. — While events appropriately may be suspicious to an officer trained in the detection and interdiction of clandestine methamphetamine manufacturing, that suspicion does not necessarily equate to probable cause. Mere suspicion about ordinary, non-criminal activities, regardless of an officer's qualifications and experience, does not satisfy probable cause. However, ordinary, innocent facts alleged in an affidavit may be sufficient if, when viewed together with all the facts and circumstance, they make it reasonably probable that a crime is occurring in the place to be searched. State v. Nyce, 2006-NMSC-026, 139 N.M. 647, 137 P.3d 587.

Suspicious purchases. — Allegations in affidavit of police officers that defendant purchased four one ounce bottles of tincture of iodine, which was the entire stock of iodine on the store shelf, covered the iodine in her shopping cart, attempted to use the self-pay register and exhibited a hurried pace, and purchased a one pint bottle of hydrogen peroxide at a different store, did not give rise to probable cause that defendant was manufacturing methamphetamine. State v. Nyce, 2006-NMSC-026, 139 N.M. 647, 137 P.3d 587.

Nexus between purchase of drug ingredients and residential manufacturing of drugs. — When officers believe that controlled substances are being manufactured in a residence, there must be sufficient nexus in the affidavit for a search of drugs to occur in that home. The mere fact that defendant purchased and brought tincture of iodine, in a quantity that is inconsistent with personal use, and hydrogen peroxide, both of which are ingredients in the manufacture of methamphetamine, did not establish a sufficient nexus between the purchases and the officer's belief that methamphetamine was being manufactured at the home to support probable cause for the issuance of a search warrant of the house. State v. Nyce, 2006-NMSC-026, 139 N.M. 647, 137 P.3d 587.

Nexus between criminal activity at two different properties. — Where defendant’s co-conspirator was arrested while driving a vehicle registered in the co-conspirator’s name, but bearing the VIN of a different vehicle that had been reported stolen; based on information that the co-conspirator was engaged in criminal activity and surveillance of the co-conspirator’s property, the police obtained a search warrant of the co-conspirator's property which confirmed the factual basis of the officer’s search warrant affidavit and revealed several stolen vehicles and VIN-altered vehicles; the officer also received information that the co-conspirator did business at defendant’s property; the officer obtained a search warrant of defendant’s property based on an affidavit that contained all of the factual information used to establish probable cause to search the co-conspirator’s property and the additional facts that the officer had observed the co-conspirator and several suspicious vehicles at defendant’s property; and the affidavit also stated that the officer had learned that the conspirator was engaged in criminal activity at defendant’s property, but was silent regarding the source and substance of the information, the affidavit did not provide sufficient probable cause to support the search warrant because the information attributable to defendant’s property failed to show a nexus between the co-conspirator’s criminal activity at the co-conspirator's property and defendant’s property and the affidavit did not contain sufficient facts to permit the issuing judge to conclude that the information learned by the officer regarding criminal activity at defendant’s property was credible or reliable. State v. Sabeerin, 2014-NMCA-110, cert. granted, 2014-NMCERT-010.

Statements of undisclosed informants. — Affidavit in support of search warrant, which was based primarily upon information provided by undisclosed informants but which failed to set out sufficient facts to determine the reliability of such informants, was insufficient to establish probable cause, and thus a search predicated on such warrant violated this section and the fourth amendment to the United States constitution. In re Shon Daniel K., 1998-NMCA-069, 125 N.M. 219, 959 P.2d 553, cert. denied, 125 N.M. 147, 958 P.2d 105.

Informant information. — Where affidavit for search warrant stated that informant had signed statement from person willing to testify in court which stated that that person had personal knowledge that heroin was kept inside a certain house and that he had received heroin from that place on approximately 10 different occasions, such was sufficient for judge to whom affidavit was presented to find probable cause for issuance of a search warrant. State v. Archuleta, 1973-NMCA-062, 85 N.M. 146, 509 P.2d 1341, cert. denied, 85 N.M. 145, 509 P.2d 1340, cert. denied, 414 U.S. 876, 94 S. Ct. 85, 38 L. Ed. 2d 121 (1973) overruled by State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839.

The confidential informant’s first-hand observations of illegal activity established sufficient detail of personal knowledge to support the magistrate court’s determination of probable cause. — Where an agent assigned to the Otero County Narcotics Enforcement Unit of the Alamogordo Police department submitted an affidavit for search warrant, which relied on information provided by a confidential informant (CI), and where a magistrate judge issued a search warrant for evidence of trafficking controlled substances which was executed by law enforcement and which resulted in defendant’s arrest and indictment for possessing methamphetamine and drug paraphernalia, and where defendant filed a motion to suppress, arguing that the affidavit failed to demonstrate the basis of the CI’s knowledge, and where the district court granted defendant’s motion, acknowledging the CI’s veracity but finding the basis-of-knowledge prong was not satisfied, the district court erred in granting the motion to suppress, because the affidavit, which stated the CI personally observed, within the last 72 hours, a quantity of methamphetamine consistent with trafficking inside defendant’s home, was sufficient to establish probable cause for the warrant issued in this case. State v. Perea, 2025-NMSC-035.

Falsehoods and omissions in search warrant affidavit. — To suppress evidence based on alleged falsehoods and omissions in a search warrant affidavit, the defendant must show either deliberate falsehood or a reckless disregard for the truth as to a material fact; a merely material misrepresentation or omission is insufficient. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.

Where the affidavit to support a search warrant contained a false statement that defendant was under arrest, and where the officer testified that he used a standard form affidavit and did not remove the stock language that the defendant was under arrest, and that he did not intend to mislead the issuing judge by the mistaken inclusion of this language, the district court, being in the best position to resolve questions of fact and to evaluate the credibility of witnesses, did not err in upholding the search warrant following a finding that the misstatement was not deliberate or reckless. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001.

C. DESCRIPTION OF ITEMS.

General warrant. — Where a search warrant did not describe with particularity the things to be searched or seized; and the affidavit for the search warrant stated that the law enforcement officer requested a search warrant to "examine the scene for any and all evidence which may lead investigators to the offender and or possible witnesses", the search warrant was invalid as an impermissible general warrant. State v. Sabeerin, 2014-NMCA-110, cert. granted, 2014-NMCERT-010.

Authority to seize computer hard drive. — A search warrant that authorized police to seize computers and computer diskettes containing child pornography is sufficient to authorize the police to seize the computer’s hard drive. State v. Hinahara, 2007-NMCA-116, 142 N.M. 475, 166 P.3d 1129, cert. denied, 2007-NMCERT-008.

Authority to search computer hard drive. — A search warrant that authorized police to search computers and computer diskettes containing child pornography is sufficient to authorize the police to search the computer’s hard drive and all files within the computer for illegal images and to seize any unlawful images within the computer. State v. Hinahara, 2007-NMCA-116, 142 N.M. 475, 166 P.3d 1129, cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089.

Description of items to be seized. — Where defendant was charged with willfully discharging a firearm at a motor vehicle; pursuant to a search warrant, the police seized a pistol, ammunition and a cell phone, all of which were specifically listed in the warrant; defendant claimed that defendant was entitled to a blanket suppression of all evidence seized because the warrant authorized the police to search for "finger prints" and "photography of the residence and evidence", which did not satisfy the particularity requirement of the fourth amendment; and the police did not seize any fingerprints or make photographs of any evidence not listed in the warrant, even if the authorization to search for "finger prints" and "photography of the residence and evidence" was overly broad, the lack of particularity did not entitle defendant to blanket suppression of all the evidence seized pursuant to the warrant. State v. Casares, 2014-NMCA-024, cert. denied, 2014-NMCERT-001.

Where a search warrant specified the seizure of controlled substances kept contrary to law the items to be searched for and seized were as precisely identified as the situation permitted considering the wide variety of drugs used by addicts, the words used in the warrant having a definite meaning in that they referred to certain and definite lists of drugs and their derivatives. Nothing was left to the discretion of the officers. Heroin is one of the drugs listed, and it was heroin that they seized. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 29, 536 P.2d 1084, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975).

A description in a search warrant is sufficient if the officer can, with reasonable effort, ascertain and identify the place intended to be searched; the description, however, must be such that the officer is enabled to locate the place to be searched with certainty. It should identify the premises in such manner as to leave the officer no doubt and no discretion as to the premises to be searched. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, cert. denied, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970).

A search warrant was not overly broad where the items described therein to be searched and seized were described with sufficient particularity to be specifically related to the counterfeiting activity believed to be occurring at defendant's residence. State v. Steinzig, 1999-NMCA-107, 127 N.M. 752, 987 P.2d 409, cert. denied, 128 N.M. 149, 990 P.2d 823.

Sufficiency of the description of the place to be searched. — Where the address to be searched was listed on each page of the police officer’s affidavit; based on the officer’s interview of the victim at "the address", the narrative in the affidavit described numerous acts of sexual molestation of the victim by defendant that had occurred in defendant’s bedroom, stated that the victim and defendant resided in the same house, described the address in great detail, and described the evidence of the molestation that would be found at "the address", "the residence" and "the Trujillo home"; and the narrative did not explicitly state that "the residence" and the address were one and the same, that the address was the place where the events occurred, or that the address was where the evidence would be found, a reviewing judge could reasonably infer that the residence described by the address was the same as the residence where the evidence would be found. State v. Trujillo, 2011-NMSC-040, 150 N.M. 721, 266 P.3d 1.

Where the search warrant described the place to be searched as "a residence" located at a specified address "along with surrounding curtilage" and described the residence in detail; when the police officers entered the residence, they noticed defendant exiting a detached guesthouse in the backyard of the residence; the officers found drugs in the guesthouse but not in the residence; when the officers obtained the search warrant, they did not know about the existence of the guesthouse; the guesthouse was located a few feet from the residence; the residence and the guesthouse were owned as a common unit and were surrounded by a wall; the guesthouse had separate utilities and was a self-sufficient residential structure; and defendant lived in the guesthouse and defendant’s parent lived in the residence, the guesthouse was not part of the curtilage of the residence, but was being used as a separate residence by defendant and required independent probable cause for its search. State v. Hamilton, 2012-NMCA-115, 290 P.3d 271.

Where warrant contained two errors, in that the color of the residence was wrong, and the street number of the residence was wrong, but the warrant properly described the roof of the residence, located the house with specificity and stated that the residence was the only one in the immediate area which had a chicken coop containing pigeons (plainly visible from the road), the requirements of a sufficient description were met. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

Warrant allowing a search of "all persons" was impermissibly broad. — Where the police had information that the owner of a theater hosted rave parties where drugs were sold and consumed and underage persons consumed alcohol; the theater was a public theater that anyone could enter; a police officer, who attended a rave party at the theater, observed underage people drinking alcohol and people smoking marijuana and taking ecstasy; other than identifying the owner of the theater and three persons by name, the officer gave no description of any of the people the officer observed; based on the officer’s report, the police obtained a search warrant, which authorized a search of the owner and any persons in the theater; an officer searched defendant, but did not find any illegal drugs on defendant’s person; when the officer searched defendant’s purse, the officer found a container containing methamphetamine; and before the officer opened the purse, the officer had no particularized suspicion that the purse contained contraband, the purse had no odors, and after opening the purse, the officer saw no obvious evidence of contraband or anything suspicious, the "all persons" warrant impermissibly authorized a search of defendant’s person because it was not supported by information establishing a particularized suspicion that defendant or "all persons" in the theater were involved in criminal activity or in possession of contraband, the search of defendant’s purse was not supported by probable cause, and there was nothing to suggest that the purse was connected to the theater or the illegal activity occurring at the theater. State v. Light, 2013-NMCA-075.

Probable cause existed to seize a camera pursuant to a search warrant. — Where a police officer, who was investigating the distribution of child pornography over the internet, discovered that a computer located at defendant’s address contained child pornography; the officer’s affidavit for a search warrant stated that a computer at defendants’ address was being used to share child pornography and that based on the officer’s training and experience, there is a high probability that online child predators possess collections of child pornography in various forms, making it necessary to seize computers and photographic equipment; the warrant authorized the officer to search for photographs of child pornography; and in the search of defendants’ resident, the officer seized a digital camera that contained child pornography, the officer had probable cause to seize and search the digital camera because there was a sufficient nexus between the suspected crime of distributing child pornography over the internet and the digital camera where child pornography might be stored and the search warrant authorized the officer to search every container and location within defendants’ residence in which the evidence could be stored, including the digital camera. State v. Gurule, 2013-NMSC-025, rev’g 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992.

No probable cause to seize camera pursuant to search warrant. — Where a police officer was investigating the distribution of child pornography on an ultra-peer internet site; the officer obtained a search warrant of defendant's residence based on the officer’s affidavit that the officer had reason to believe that someone using a computer in defendant's home was receiving, processing and distributing child pornography; nothing in the affidavit provided any evidence that anyone was taking pornographic photographs of children; during the search of defendant’s residence the officers seized a digital camera, which the search warrant expressly authorized the officers to seize and search; there was no indication that the camera was being used for the storage of internet child pornography or for the independent manufacture of pornography; and months after the camera was seized, the officer performed a forensic analysis of the camera’s digital information seized and discovered defendant engaging in sexual acts with a child, there was no probable cause to support the seizure of the camera. State v. Gurule, 2011-NMCA-063, 150 N.M. 29, 256 P.3d 992, rev’d, 2013-NMSC-025.

IV. PROBABLE CAUSE.

A. IN GENERAL.

Reasonable suspicion. — An investigatory detention requires individualized suspicion. Individualized suspicion requires the articulation of the suspicion in a manner that is particularized with regard to the individual who is stopped. State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286, cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

Probable cause for arrest not necessary for investigation. — In appropriate circumstances and in an appropriate manner, a police officer may approach a person to investigate possibly criminal behavior even though the officer may not have probable cause for an arrest. To justify such an invasion of a citizen's personal security, the police officer must be able to specify facts which, together with rational inferences therefrom, reasonably warrant the intrusion. These facts are to be judged by an objective standard - would the facts available to the officer warrant a person of reasonable caution to believe the action taken was appropriate? State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971; State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478.

A police officer making a lawful stop of a motorist is not precluded from making reasonable inquiries concerning the purpose or purposes for the stop, nor is an inquiry by an officer automatically violative of the right of security of a motorist, because the officer lacks probable cause to secure a warrant, or even because he lacks reasonable grounds for suspecting the motorist to be guilty of a crime. There is nothing wrong with an officer asking for information or asking for permission to make a search. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971, rev'g in part, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864.

Public safety may be factor in investigatory stop of vehicle. — The exigency of the possible threat to public safety that a drunk driver poses, New Mexico's grave concern about the dangers of drunk drivers, and the minimal intrusion of a brief investigatory stop may tip the balance in favor of the stop. State v. Contreras, 2003-NMCA-129, 134 N.M. 503, 79 P.3d 1111, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971.

In determining whether search and seizure was unreasonable, the absence of probable cause for arrest is not determinative. The inquiry is the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The facts must be judged against an objective standard: Would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? State v. Slicker, 1968-NMCA-085, 79 N.M. 677, 448 P.2d 478.

Probable cause cannot be established or justified by what is revealed by the search. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485.

Defective information cannot provide probable cause. — An aggregate of discrete bits of information, each defective, cannot add up to probable cause. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485.

Reasonable suspicion based on report by citizen informant. — Where an officer had reasonable suspicion, based on a concerned citizen's report, that juveniles might have a gun or guns, and he reasonably subjected them to a limited search to protect his own safety, there was no violation of either the New Mexico or the United States constitution. State v. Jimmy R., 1997-NMCA-107, 124 N.M. 45, 946 P.2d 648, cert. denied, 123 N.M. 802, 945 P.2d 1020.

Reliability of citizen informant. – In New Mexico, a citizen-informant is regarded as more reliable than a police informant or a crime-stoppers informant, because citizens presumably have nothing to gain by fabrication. State v. Contreras, 2003-NMCA-129, 134 N.M. 503, 79 P.3d 1111, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

Case-by-case examination of probable cause. — The existence of "probable cause," whether for issuance of a search warrant or warrant of arrest, or for arrest without a warrant, or for search and seizure without a warrant, involves a case-by-case examination of the facts, and no two cases are precisely alike. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968).

Expansion of investigation. — Although the investigation did not originally involve drugs, officers could reasonably expand the scope of the investigation based on the reasonable suspicion of criminal activity. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

The burden is on the state to show the requisite probable cause to justify a warrantless arrest. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256.

There is no reason to equate reasonable cause with probable cause. State v. Baca, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.

The question of probable cause is one of law to be determined by the trial court by way of voir dire examination. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

It is for a neutral and detached judge to determine from the affidavit whether probable cause exists. A police officer is not vested with that authority. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485.

Hearsay can establish probable cause. — That information was hearsay does not destroy its role in establishing probable cause. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

B. INVESTIGATORY STOP.

Reasonable suspicion based on mistake of law justified by violation a different law. — If an officer mistakenly believes that certain conduct violates one statute, but that conduct in fact violates a different statute, reasonable suspicion exists to stop the suspect despite the officer’s mistake of law. State v. Moseley, 2014-NMCA-033, cert. denied, 2014-NMCERT-002.

Where defendant was driving at a speed of thirty-five miles per hour in an area that contained both residences and businesses; no speed limit signs were posted in the area; a police officer, who was under the mistaken belief that the applicable speed limit was twenty-five miles per hour, stopped defendant for speeding; and defendant was not driving erratically or improperly, despite the officer’s mistaken belief as to the applicable speed limit, the officer had reasonable suspicion to stop defendant, because the applicable speed limit under 66-7-301(A)(2) NMSA 1978 was thirty miles per hour. State v. Moseley, 2014-NMCA-033, cert. denied, 2014-NMCERT-002.

Reasonable suspicion based on tip. — Where a tip was provided by an informant whose identity was known by officers, tip correctly predicted the future movement of defendant, and other significant facts provided in tip were collaborated by officers, the tip was sufficiently complete and reliable to provide reasonable suspicion for an investigatory stop regarding drugs. State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570, cert. denied, 2006-NMCERT-005, 139 N.M. 568, 136 P.3d 569.

Reasonable suspicion based on tip and public safety considerations. — Under Fourth Amendment analysis, the New Mexico court of appeals held that moving vehicles with intoxicated drivers pose a serious threat of injury or death to innocent citizens, and that the minimal intrusiveness of an investigatory stop based on an anonymous tip is outweighed by the gravity of the public concern and the public interest served by the stop. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010.

Where officer pursued and stopped truck after being informed by another driver of another vehicle that the driver of the truck was intoxicated, the New Mexico court of appeals determined, based on Fourth Amendment analysis, that the minimal intrusiveness of an investigatory stop based on an anonymous tip is justified where information provided by the tip such as a description and location of the vehicle was corroborated. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010.

Stop for revoked driver’s license. — Where a police officer ran the license plate of the vehicle defendant was driving through the motor vehicle department and determined that the driving privileges of the registered owner of the vehicle had been revoked; and the officer made no effort to determine, prior to stopping the vehicle, whether the driver of the vehicle was the registered owner, the stop did not violate Article II, Section 10 of the New Mexico constitution because the officer had reasonable suspicion to stop defendant’s vehicle. State v. Hicks, 2013-NMCA-056, 300 P.3d 1183, cert. denied, 2013-NMCERT-004.

Vehicle in unsafe condition may be stopped. — A motor vehicle with a cracked windshield, if in an unsafe condition, may be constitutionally stopped, because 66-3-801 NMSA 1978 makes it a crime to drive a vehicle that is in an unsafe condition. State v. Munoz, 1998-NMCA-140, 125 N.M. 765, 965 P.2d 349.

Warrantless stop for safety concern. — Since the officer testified that the reason he stopped the truck was a concern for the safety of the passengers on the back tailgate, even though when asked if the truck was violating any state, municipal, or federal law, the officer said that it was not. Under these facts, the detention of the truck and the request for the license of the driver, registration, and proof of insurance did not violate the fourth amendment requirement of reasonableness. State v. Reynolds, 1995-NMSC-008, 119 N.M. 383, 890 P.2d 1315, rev'g 1993-NMCA-162, 117 N.M. 23, 868 P.2d 668.

Reasonable suspicion to detain. — Where a police officer stopped defendant’s vehicle based on his suspicion that the passenger in the vehicle had forged a check; the officer had no suspicion that the defendant had committed or was committing an offense; and the officer found drugs and drug paraphernalia in the possession of the passenger, the officer had reasonable suspicion about the contents of the vehicle and authority to detain and question the defendant about the contents of the vehicle and then to ask for consent to search the vehicle. State v. Funderburg, 2008-NMSC-026, 144 N.M. 37, 183 P.3d 922, rev'g, 2007-NMCA-021, 141 N.M. 139, 151 P.3d 911.

No reasonable suspicion to seize defendant. — Where two police officers approached a parked car in which defendant was a passenger to see what was going on; the officers did not observe the occupants in the car doing anything illegal or violating any law and they had not received any reports or dispatches regarding suspicious or criminal activity in the area; the officers became suspicious and concerned about their safety when they noticed the driver and defendant make abrupt movements; and instead of questioning the occupants, one officer ordered the driver to open the door of the car; and defendant was seized by the police when the officer ordered the driver to open the door; the officers did not have reasonable suspicion to seize defendant. State v. Murry, 2014-NMCA-021.

Lack of reasonable individualized suspicion. — Where a police officer had a general suspicion arising from the fact that a car in which defendant was a passenger was parked for thirty minutes on a street late at night in a neighborhood where recent burglaries, but none that night, had occurred, the officer did not have a reasonable individualized suspicion that defendant was committing or had committed a crime that justified detaining defendant or demanding identification from defendant. City of Roswell v. Hudson, 2007-NMCA-034, 141 N.M. 261, 154 P.3d 76.

No individualized suspicion. — Where police officer stopped defendant, who was driving a vehicle at 2 a.m. with temporary dealer plates that are for use only when demonstrating a vehicle, and the officer knew that temporary dealer plates are often misused or stolen, the officer did not have a particularized reasonable suspicion that defendant may have been engaged in misuse of the temporary demonstration plate to justify a traffic stop. State v. Aguilar, 2007-NMCA-040, 141 N.M. 364, 155 P.3d 769, cert. denied, 2007-NMCERT-003, 141 N.M. 401, 156 P.3d 39.

No individualized reasonable suspicion to justify detention. — Where defendant's vehicle was legally parked on side of street, officer did not observe any illegal activity, but was suspicious because of the late hour and a person was leaning into a vehicle that was parked in front of a residence belonging to an individual with outstanding warrants, the detention of the defendant was not justified by individualized reasonable suspicion. State v. Williams, 2006-NMCA-062, 139 N.M. 579, 136 P.3d 579, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Reasonable suspicion shown. — Where an off-duty police officer witnessed a vehicle straddling the lane-divider line, splitting traffic and hitting vehicles out of its way; the officer turned on the emergency lights and siren of the officer’s unmarked police car; the vehicle came to a stop and the driver exited the vehicle and ran away; defendant exited the vehicle and ran in the opposite direction; the officer testified based on experience that in circumstances where the occupants of a vehicle flee after a crash, there is reason to believe that the occupants committed or were committing a crime or were subject to pending warrants; and defendant’s behavior would not be considered by a reasonable layperson to be merely innocuous or innocent, the officer had reasonable suspicion to stop and detain defendant for purposes of investigating the incident. State v. Maez, 2009-NMCA-108,147 N.M. 91, 217 P.3d 104, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Evading a DWI checkpoint. — Where police officers set up a DWI checkpoint at the top of a hill; cones, droplights and flashing emergency lights at the checkpoint were visible to the surrounding area indicating police activity to approaching motorists; the officers placed signs that alerted motorists to the upcoming checkpoint; one sign was placed in the median visible to motorists traveling toward the checkpoint; the checkpoint lights were visible from the sign in the median; at 2:00 a.m., an officer observed defendant approach the checkpoint, make a legal U-turn in front of the sign in the median and drive away in the opposite direction from the checkpoint; and the officer pursued and stopped defendant on the suspicion that defendant was driving while intoxicated, the officer could have reasonably believed that defendant was attempting to evade the checkpoint and the officer had reasonable suspicion to stop defendant. State v. Anaya, 2009-NMSC-043, 147 N.M. 100, 217 P.3d 586, rev'g 2008-NMCA-077, 144 N.M. 246, 185 P.3d 1096.

Probable cause not shown. — Where a 911 caller reported that someone pulled a gun and took the caller’s money during a drug transaction in the vicinity of a school; the dispatcher relayed information to a police officer that there was an armed subject in the area of the school; the officer had no other description of the person with the gun or a specific location where the incident occurred; the officer observed defendant and another person walking from the direction of the school toward the backdoor of a laundromat that was within two blocks of the location of the alleged drug transaction; defendant and the other person had their hands in the pockets of their jackets; when the officer yelled at defendant and the other person, defendant darted into the laundromat; defendant later came out of the laundromat; the officer directed defendant to take defendant’s hands out of the pockets of defendant’s jacket; and when the officer performed a pat down search of defendant, the officer discovered a revolver and a marijuana pipe in defendant’s pocket, defendant was seized when the officer requested defendant to take defendant’s hands out of defendant’s pockets and the seizure was without an articulable, reasonable suspicion that defendant had engaged in criminal activity. State v. Eric K., 2010-NMCA-040, 148 N.M. 469, 237 P.3d 771.

Where the defendant was walking down a residential street while carrying a pair of pants; when police officers drove by, the defendant gave them a look of surprise; after the officers passed, the defendant moved out of the street onto the sidewalk; the defendant appeared nervous; as the officers approached and displayed their badges, the defendant lowered the arm upon which he was carrying the pants so that it was positioned next to his hip; and defendant took steps back, the defendant’s actions were not enough to create reasonable suspicion to detain him and the search of the defendant that revealed a firearm was illegal. State v. Gutierrez, 2008-NMCA-015, 143 N.M. 522, 177 P.3d 1096, cert. quashed, 2009-NMCERT-001, 145 N.M. 657, 203 P.3d 872.

Where two officers who had stopped defendant's car for carelessly leaving the curb saw alcoholic beverages therein (not a crime in and of itself) and neither officer ever explained why either of them believed any of the three occupants (all of whom had reached their majority) were under 21 (so as to make possession of the alcohol illegal), the officers had no probable cause to search the car, since to justify such an invasion of a citizen's personal security, the police officer must be able to specify facts which, together with rational inferences therefrom, reasonably warrant the intrusion, and defendant's motion to suppress should have been granted as being conducted without a warrant and not pursuant to any exception to the warrant requirement. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824.

Officers lacked sufficient detail to properly detain and search a vehicle based on the race and number of its occupants and the color of the car, since the car stopped included a six-year-old girl, was not travelling from the area of the disturbance, and nothing about the appearance or operation of the vehicle aroused the officer's suspicions or contributed to the justification for the stop. U.S. v. Jones, 998 F.2d 883 (10th Cir. 1993).

Valid investigatory stop. — Where defendant was driving southbound on a highway that consisted of two lanes in each direction with a median in between; police officers observed defendant’s car cross over the dashed lines on the road, make a sudden left turn from the far right lane into a driveway, without using a turn signal, and while making the turn, crossing over the other southbound lane, the median and both northbound lanes; the officers stopped defendant and issued a warning citation for failing to maintain defendant’s lane contrary to 66-7-317(A) NMSA 1978 which defendant signed; the officers believed that defendant’s driving was indicative of possible impairment; and defendant was ultimately arrested for DWI, under the totality of circumstances, after observing defendant’s erratic driving, the officers lawfully stopped defendant, based on traffic offenses they observed, to investigate whether defendant was impaired and a danger on the road. State v. Salas, 2014-NMCA-043, cert. denied, 2014-NMCERT-003.

Even in the absence of probable cause, an informant's tip combined with the officers' investigation and independent knowledge gave rise to a reasonable suspicion to stop the defendant's vehicle, and the defendant's actions in response to the officers' lawful attempt to execute a protective search provided both the probable cause and exigent circumstances to justify a warrantless search. State v. Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502.

Where driver did not have a valid registration for his car and the license plate did not match with his vehicle, it was reasonable for a police officer to open the driver's door of defendant's car to attempt to verify the primary vehicle identification number (VIN); thus, the officer's act of opening the door to look for a secondary VIN did not constitute an unreasonable search of the car without probable cause. State v. Romero, 2002-NMCA-064, 132 N.M. 364, 48 P.3d 102, cert. denied, 132 N.M. 397, 49 P.3d 76.

Under the totality of circumstances, an investigatory stop of a vehicle was reasonable where the facts allowed the inference that the anonymous caller was a reliable concerned motorist, the information given was detailed enough for the deputies to find the vehicle in question and confirm the description, and the caller was an apparent eyewitness to the defendant's erratic driving. State v. Contreras, 2003-NMCA-129, 134 N.M. 503, 79 P.3d 1111, cert. denied, 2003-NMCERT-002, 134 N.M. 723, 82 P.3d 533.

A police officer who testified he had been working in narcotics for approximately four years, had made numerous arrests in the area, for the year prior to defendant's arrest had spent almost every day in the area, and was acquainted with many addicts and had discussed methods of carrying and hiding small quantities of narcotics, had reasonable grounds for belief that defendant, based on the officer's observance of his conduct, was in possession of heroin and therefore had probable cause for the detention, and search and seizure which disclosed the heroin. State v. Blea, 1975-NMCA-129, 88 N.M. 538, 543 P.2d 831, cert. denied, 89 N.M. 5, 546 P.2d 70.

An officer's observation of a car operating on a public street without lights provided a sufficient basis for him to stop it, whether or not he thought it might be the car he was looking for in connection with a drive-by shooting. State v. Vargas, 1995-NMCA-091, 120 N.M. 416, 902 P.2d 571, cert. denied, 120 N.M. 213, 900 P.2d 962.

Valid investigatory detention. — Where an officer received a dispatch that a caller had reported a “parked DWI in the parking lot” of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a vehicle matching the caller’s description, the officer could reasonably infer that the car was the subject of the dispatch, and could reasonably suspect that the man described by the caller might be in the car and that he might have engaged in the criminal activity of driving while intoxicated; an investigatory detention and seizure of the car and its occupants was justified because the information provided by dispatch and the officer’s own corroborating observation identifying the subject car would lead a person of reasonable caution to suspect criminal activity involving the car and its occupants. State v. Simpson, 2016-NMCA-070, cert. denied.

Investigatory detention supported by sufficient reasonable suspicion. — Where law enforcement officer was dispatched to an apartment complex following a 911 call in which the caller reported that defendant was banging on her door and was sliding notes under the door, that defendant was wearing shorts and no shirt and drove a Ford F-150 truck, and where the officer arrived within two minutes of a second 911 call in which the caller reported that defendant was leaving the apartment complex, and where the arresting officer observed a black Ford F-150 truck being driven towards the only point of entry or exit out of the apartment complex by shirtless man, the officer had specific, identifying information regarding defendant’s physical appearance and vehicle, and given the short amount of time that had passed from the 911 call until the officer observed defendant, the officer had sufficient information to form a reasonable inference that defendant was breaking, or had broken, the law by committing criminal trespass or disorderly conduct, and it was reasonable for the officer to infer that defendant was the same man whom the caller identified. The officer’s investigatory detention of defendant was supported by a constitutionally sufficient reasonable suspicion. State v. Garcia, 2017-NMCA-068, cert. denied.

Officer’s conduct in opening the door of a vehicle did not transform a lawful investigatory detention into a search requiring a warrant. — Where an officer received a dispatch that a caller had reported a "parked DWI in the parking lot" of a restaurant, described the subject vehicle, gave a partial license plate number for the vehicle, reported that a male subject who smelled of alcohol had entered the restaurant, passed out in the bathroom for a period of time, left the restaurant and then got into a dark blue vehicle, and then drove the vehicle from one parking space to another, almost striking several other vehicles in the parking lot, and where the officer, upon arriving on the scene minutes after receiving the dispatch call, found a matching vehicle, with very dark tinted windows preventing the officer from seeing inside the vehicle to determine what the occupants were doing, an investigatory detention and seizure of the car and its occupants was justified and the officer’s conduct in opening the door did not transform a lawful investigatory detention into a search requiring a warrant, because it was the safest way to make contact with the car’s occupants, and under the circumstances, it was reasonable for the officer to open the car door, enabling the officer to see both occupants and remain outside while conducting his investigation. State v. Simpson, 2016-NMCA-070, cert. denied.

C. SEARCHES.

Warrantless search not justified. — The circumstances did not justify a warrantless search of defendant's home, where the deputies had no reason to believe someone else was in the home or that the evidence was likely to be destroyed before a deputy could return with a warrant. State v. Wagoner, 1998-NMCA-124, 126 N.M. 9, 966 P.2d 176, cert. denied, 125 N.M. 654, 964 P.2d 818, overruled by State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306, cert. denied, 130 N.M. 213, 22 P.3d 681.

Reasonable belief that offense committed. — Probable cause for a warrantless search means a reasonable ground for belief of guilt and exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. State v. Ledbetter, 1975-NMCA-107, 88 N.M. 344, 540 P.2d 824.

Reasonable suspicion. — Where police officers executed a search warrant at a home based on a tip that methamphetamine was for sale at the home; the warrant covered the home, curtilage and vehicles at the home; defendant, who was a visitor at the home, was on probation for an earlier conviction; the conditions of defendant’s probation were that defendant would submit to warrantless searches of defendant’s person, residence and vehicles at the direction of defendant’s probation officer or any law enforcement officer; the officers tried to reach defendant’s probation officer without success and then searched defendant’s vehicle where the officers found drug paraphernalia which defendant admitted belonged to defendant; and the officers then searched defendant’s purse inside the home where they discovered methamphetamine, the officers had reasonable suspicion that defendant was committing or had committed a crime and that defendant’s vehicle or purse contained evidence of the crime sufficient to support a warrantless search. State v. Brusuelas, 2009-NMCA-111, 147 N.M. 233, 219 P.3d 1, cert. denied, 2009-NMCERT-009, 147 N.M. 421, 224 P.3d 648.

Where a police officer stopped the vehicle in which the defendant was a passenger for speeding; the officer noticed a heavy odor of air freshener, heavy perfume or after shave in the vehicle; the driver could not produce a driver’s license; the driver was uncommonly nervous; the name of the registered owner of the vehicle did not match the name of the driver; the driver did not know the name of the registered owner of the vehicle or the person who had given him permission to use the vehicle; and the driver and the defendant gave the officer conflicting travel plans, the totality of the circumstances provided the officer an articulable and reasonable basis to inquire about drugs and justified his request for consent to search the vehicle. State v. Pacheco, 2008-NMCA-131, 145 N.M. 40, 193 P.3d 587.

Probable cause shown. — Officer's observation of tobacco and marijuana seeds at a location where child had been and of a commercial cigarette which had been twisted at the end in child's pocket provided probable cause for seizure of the cigarette. In re Doe, 1976-NMCA-011, 89 N.M. 83, 547 P.2d 566, cert. denied, 89 N.M. 206, 549 P.2d 284.

Information regarding the sale by defendant of "dexedrine pills" from a suitcase at a truck stop, 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, considered together with the testimony concerning informant's reliability, furnished adequate basis for the trial court's finding of probable cause, and such finding, combined with exigent circumstances which existed due to fact that drugs were kept in a vehicle provided the required foundation for the warrantless search of defendant's tractor and trailer. State v. One 1967 Peterbilt Tractor, 1973-NMSC-025, 84 N.M. 652, 506 P.2d 1199.

While the underlying facts, if any, known by the officer regarding defendant's reputation as a safeman were not brought out, the officer had knowledge that a "peeled" safe had been found nearby after a neighbor thrice had complained of loud hammering noises, that defendant's car contained tools well suited to such work (which tools he could see through the car window), and that defendant's car was the only one moving in the area at 3:00 a.m. and these facts supplied probable cause for searching the car, without regard to defendant's reputation as a safeman. State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968).

Police officer's experience of vials as drug paraphernalia and knowledge of defendant's prior involvement with drugs established probable cause to seize vial in plain view in defendant's pants pocket as he was patting down defendant. State v. Ochoa, 2004-NMSC-023, 135 N.M. 781, 93 P.3d 1286.

Search was supported by probable cause. — Where defendant was charged with resisting, evading or obstructing an officer, failure to yield right-of-way while entering a highway, possession of a controlled substance, possession of drug paraphernalia, and two counts of nonresidential burglary, and where defendant claimed that the district court erred in denying his motion to suppress evidence discovered in the search of his home, claiming that the search warrant was unsupported by probable cause because the description of the burglary suspect in the affidavit supporting the search warrant did not match defendant's appearance, the district court did not err in denying defendant's motion to suppress, because the affidavit established that the affiant officer witnessed an individual who fit defendant's description flee the scene of the burglary, that the officer was able to confirm through a booking photo that the individual was defendant, and that the vehicle in which the burglary suspect used to flee the scene of the burglary was registered to defendant's father and was found parked in the driveway of the house for which the warrant was issued. The affidavit presented sufficient facts upon which to conclude that there was a reasonable probability that evidence of a crime would be found in the place to be searched. State v. Wood, 2022-NMCA-009.

The smell of marijuana alone can satisfy the probable cause requirement for a warrantless search in the post-decriminalization, pre-legalization setting. — The smell of marijuana alone can satisfy the probable cause requirement for a warrantless search in the post-decriminalization, pre-legalization setting under Article II, Section 10 of the New Mexico constitution. State v. Perry, 2026-NMCA-032, cert. denied.

Where a police officer stopped defendant’s truck after observing defendant commit a series of traffic offenses, and where, upon approaching the vehicle, the officer detected a strong odor of marijuana emanating from the vehicle, and where the officer, after receiving consent to search the vehicle, found drugs and drug paraphernalia, and where defendant moved to suppress the evidence, claiming that the officer did not have probable cause to obtain a search warrant because the smell of marijuana could not support a finding of probable cause when possession of less than one-half ounce of marijuana was a penalty assessment rather than a criminal offense, the district court did not err in denying defendant’s motion to suppress, because the officer’s assertion that she would obtain a search warrant if defendant did not let the officer search defendant’s truck was supported by actual probable cause based on the smell of marijuana, and therefore, because the officer had probable cause, defendant’s subsequent consent was sufficient to satisfy a warrantless search of the vehicle. State v. Perry, 2026-NMCA-032, cert. denied.

D. ARREST.

Investigatory stop as invalid arrest. — Under the totality of the circumstances, the detention of the defendant in the locked patrol car over 45 minutes and probably longer prior to being arrested, presented a significant intrusion and resulted in a de facto arrest with no probable cause. State v. Werner, 1994-NMSC-025, 117 N.M. 315, 871 P.2d 971 (1994), rev'g 115 N.M. 131, 848 P.2d 1 (Ct. App. 1992).

Investigatory detention ripened into a de facto arrest. — Where defendant was suspected of committing criminal trespass on the property of a casino after it was determined that a person with the same name had been permanently banned from the casino several years earlier, and where defendant was patted down, handcuffed, and put in the back of a police vehicle while the officers attempted to confirm the report that defendant was the person banned from the casino, the government’s interest in investigating and stopping criminal trespass was far outweighed by the significant intrusion on defendant’s fourth amendment interests. State v. Ortiz, 2017-NMCA-062, cert. denied.

Defendant was not subject to a de facto arrest and detention was reasonable. — Where officers responded to a nighttime domestic violence report, involving a woman screaming from inside a truck, but were unable to locate a woman or the truck at the reported location, and then responded to a second call reporting gunshots a couple of streets away, and where, upon arriving at the reported location, observed an unoccupied truck, with the engine running, parked in the road in front of a house and also observed defendant emerge from the side yard of the house, and where the officers approached defendant and told him that he was going to be patted down, during which the officers recovered two knives, but no firearm, and where defendant told the officers that he too heard the gunshots, but gave confusing and contradictory answers to the officers' questions about the truck, and where the officers, during their investigation, found a shell casing in the yard of the house, received a statement from one of the neighbors who stated that he heard gunshots and saw a woman run into the house and a man run to the side of the house, and where the officers made the decision that due to the nature of the separate calls about a domestic disturbance and shots fired, defendant would be handcuffed and placed in the back of a patrol car for the pendency of the investigation, and where officers subsequently spoke with the owner of the truck, defendant's father, who told officers that his truck, as well as two firearms, were missing, that defendant did not have permission to take his truck, and that the father wanted to press charges, and where defendant was formally arrested approximately one hour after he was handcuffed and placed in the patrol car, and where defendant moved to suppress his statements to police on the grounds that he was subjected to a de facto arrest not supported by probable cause, the district court did not err in denying defendant's motion to suppress, because although the intrusion upon defendant's privacy rights was considerable, it did not outweigh the government's substantial justification for the intrusion, considering the offenses being investigated and the potential danger faced by officers, and viewing the facts in the light most favorable to the district court's ruling, the amount of time defendant spent handcuffed and in the back of the patrol car before probable cause arose was approximately ten minutes. State v. Buecker, 2024-NMCA-007, cert. denied.

Fruit of the poisonous tree doctrine. — Where probable cause for an arrest warrant was founded on evidence that had been seized fifteen days earlier when police officers improperly entered defendant’s home, drug evidence discovered in the course of a search incident to defendant’s arrest on the warrant was the fruit of the poisonous tree and should have been suppressed. State v. Lujan, 2008-NMCA-003, 143 N.M. 233, 175 P.3d 327.

Unsigned warrant invalid. — Since the bench warrant upon which the defendant was arrested was not properly signed by the court, the warrant was invalid and evidence seized thereunder was suppressed. State v. Gurrola, 1995-NMCA-138, 121 N.M. 34, 908 P.2d 264.

Where physical possession of warrant not essential. — Physical possession of the arrest warrant is not essential to a lawful arrest when the validity of the warrant is not involved. State v. Grijalva, 1973-NMCA-061, 85 N.M. 127, 509 P.2d 894.

Federal and state standards must be met. — Having found the arrest to be valid under the federal standards, the arrest without a warrant must still be tested by New Mexico standards. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Conviction not void for illegal arrest. — Where defendant was properly before the court under the information filed against him and his plea thereto, and there is no contention made that he did not receive a fair trial, or that the verdict of guilty upon which his conviction was entered was not supported by the evidence, his conviction was not thereby rendered void even where the warrant was unlawfully issued and his arrest illegal. State v. Halsell, 1970-NMCA-021, 81 N.M. 239, 465 P.2d 518.

A police officer may arrest without a warrant if the circumstances would warrant a reasonable person in believing that an offense had been committed by the person whom he then arrests. State v. Trujillo, 1973-NMCA-076, 85 N.M. 208, 510 P.2d 1079.

An officer may legally arrest one whom he reasonably believes is committing a criminal offense in his presence. State v. Ramirez, 1968-NMSC-148, 79 N.M. 475, 444 P.2d 986.

Officer arresting without warrant need not have actual knowledge that an offense is being committed in his presence; a bona fide belief on the part of the officer is sufficient. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258.

Probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967); State v. Ramirez, 1980-NMCA-108, 95 N.M. 202, 619 P.2d 1246.

Where defendant had a strong smell of liquor on his breath immediately after accident, had a "half gone" bottle of wine in the car, and had been driving the car, circumstances warranted the arresting officer, as a reasonable person, to believe that defendant had been driving while intoxicated and provided a probable cause for defendant's arrest without a warrant. State v. Trujillo, 1973-NMCA-076, 85 N.M. 208, 510 P.2d 1079.

Where police officer testified that he knew that the appellant "was on revocation" and that he stopped the appellant "to check his driving privileges," and where appellant did not testify, arresting officer was justified in making the arrest without a warrant for violation of 64-13-68, 1953 Comp., a misdemeanor committed in his presence. State v. Gutierrez, 1966-NMSC-119, 76 N.M. 429, 415 P.2d 552.

Where the officer makes an arrest without any knowledge of the commission of a crime except from an informer whom he does not know to be reliable, the courts have consistently held there is no reasonable grounds for the arrest. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Investigatory stop made by police who were called to assist motel owner in evicting the defendant was unlawful since failure of defendant to pay rent did not constitute a criminal offense. Since there was no justified official intrusion upon the constitutionally protected interest of defendant, her resistance did not provide probable cause for the arrest, and even though she fled from the officer, evidence recovered as a result thereof was tainted and properly suppressed. State v. Frazier, 1975-NMCA-074, 88 N.M. 103, 537 P.2d 711.

The legality of an arrest without a warrant depends upon whether the arrest was based upon probable cause. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Trial court's decision as to reasonableness of arrest will not be disturbed if facts found to make the arrest constitutionally reasonable are supported by substantial evidence. State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Same standard for arrest with or without warrant. — The probable cause standard for an arrest must be at least as stringently applied in the case of warrantless arrests as in the instance of an arrest with a warrant. State v. Gorsuch, 1974-NMCA-143, 87 N.M. 135, 529 P.2d 1256.

Reasonable suspicion or exigent circumstances must exist. — In the absence of reasonable suspicion or exigent circumstances, even if some other reasonable ground may exist, an officer may not restrain a person in order to question him. State v. Burciaga, 1993-NMCA-151, 116 N.M. 733, 866 P.2d 1200.

No individualized reasonable suspicion. — Where police officers saw the defendant riding his bicycle near a secured area and decided to see where the defendant was headed; the officers pulled their patrol car up next to the defendant’s bicycle; the defendant stopped his bicycle; the officers began questioning the defendant about his activities, asked the defendant for his driver’s license and retained the license to run a warrant check, the seizure of the defendant was not justified by reasonable suspicion of criminal activity. State v. Soto, 2008-NMCA-032, 143 N.M. 631, 179 P.3d 1239, cert. quashed, 2009-NMCERT-005, 46 N.M. 728, 214 P.3d 793.

Probable cause for arrest shown. — Where an off-duty police officer witnessed a vehicle straddling the lane-divider line, splitting traffic and hitting vehicles out of its way; the officer turned on the emergency lights and siren of the officer’s unmarked police car; the vehicle came to a stop and the driver exited the vehicle and ran away; defendant exited the vehicle and ran in the opposite direction; the officer ran after defendant, yelled "Police, stop" several times; defendant refused to obey the officer’s command; after running further, defendant stopped; the officer brandished his gun and badge; the officer told defendant that the officer was a police officer and ordered defendant on the ground; defendant refused to obey the command, the officer had probable cause to arrest defendant for evading and resisting a police officer. State v. Maez, 2009-NMCA-108, 147 N.M. 91, 217 P.3d 104, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Where arresting officer testified that he was contacted by car radio by a second officer and, after getting together with him, learned of the shooting, who the suspect was, that defendant was identified as the suspect by several persons present at the shooting, and that the suspect was on foot when he left the house where the shooting occurred, whereupon the officer drove up and down the streets checking for defendant, and, having no success, staked out the apartment of defendant, subsequent arrest and frisk search at defendant's apartment was based on probable cause. State v. Riggsbee, 1973-NMSC-109, 85 N.M. 668, 515 P.2d 964.

Where appellant was arrested by drugstore owner who apprehended appellant outside his store in early morning, appellant was properly arrested without warrant on probable cause, and appellant was properly before the justice of the peace regardless of validity of final complaint of the store owner. State v. Hudson, 1967-NMSC-164, 78 N.M. 228, 430 P.2d 386.

Police had probable cause to arrest and search defendant where police observed defendant engage in what appeared to be a drug transaction just prior to his arrest, police clocked the vehicle driven by defendant going approximately 50 miles an hour in a 35 mile-per-hour zone, and defendant, when asked for his driver's license, stated that he had none. State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688.

The Philadelphia police were entitled to act on the Phoenix police department's telephone request and to assume that Phoenix had probable cause for making it, and since defendant did not contend that the Phoenix police lacked probable cause to arrest him for crimes committed in Arizona, defendant's arrest by the Philadelphia police was lawful, and the confession thereafter obtained from him was admissible. State v. Carter, 1975-NMCA-115, 88 N.M. 435, 540 P.2d 1324.

When the arresting officer saw a pistol in defendant's pocket, he thereby had all the probable cause needed to make an arrest, regardless of whether the weapon later was found to be unloaded. Ramirez v. Rodriguez, 467 F.2d 822 (10th Cir. 1972), cert. denied, 410 U.S. 987, 93 S. Ct. 1518, 36 L. Ed. 2d 185 (1973).

No probable cause. — Where police officers set up a drug buy with a dealer; the dealer, the defendant and two other people drove to the designated meeting place; the dealer left the vehicle, entered the police vehicle and made a drug deal with the police agent; the defendant remained in the vehicle; the police were ordered to arrest all people in the vehicle; the defendant complied with police orders; prior to his arrest, the defendant had not made any furtive or sudden movements and he did not exhibit any nervousness or suspicious behavior, the officers did not have probable cause to arrest the defendant. State v. Morales, 2008-NMCA-102, 144 N.M. 537, 189 P.3d 670, cert. denied, 2008-NMCERT-006, 144 N.M. 380, 188 P.3d 104.

Warrantless arrest justified by probable cause and exigent circumstances. — Where the police located the defendant on the day after the defendant and the murder victim had been last seen together; the evidence pointed overwhelmingly to the defendant’s having assaulted the victim and having removed her body from the location of the assault; the defendant had been eluding detection and aggressively destroying and concealing evidence of the crime, the warrantless arrest of the defendant was supported by probable cause and exigent circumstances. State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521, abrogated, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

No reasonable suspicion. – In companion cases, defendants were illegally seized because findings of individualized suspicion that defendants were or had violated the law were not justified where in one case, the finding by an officer of drug paraphernalia in the possession of another occupant of the car in which defendant had been riding and an open container of beer in the car did not point to any facts particular to the defendant that would lead to individualized suspicion that defendant was violating a law and where in the other case, the officer stated that defendant acted nervous without an articulation of specific reasons of concern that defendant had knowledge of criminal activity on the part of the other occupants of the automobile in which defendant had been riding. State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286, cert. denied, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

The misdemeanor arrest rule does not apply to DWI investigations, and an investigating officer need not observe the offense in order to make a warrantless arrest. Instead, the warrantless arrest of one suspected of committing DWI is valid when supported by both probable cause and exigent circumstances. City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275.

Misdemeanor arrest rule does not apply to DWI investigations. — Where a shopping mall employee saw a person staggering around the mall parking lot attempting to unlock different vans; the person eventually unlocked the door to a van and drove away; the employee gave the police a description of the van and the van’s license plate number; a police officer went to the van’s registered owner’s address and observed a van that matched the employee’s description in the driveway; the van’s engine was warm; the officer knocked at the front door of the residence; the officer observed defendant stagger past the doorway, strike defendant’s head on the wall next to the door, and fall; defendant staggered to the door a second time, fell, and opened the door from a sitting position; defendant told the officer that defendant had been driving the van earlier; and defendant had a strong odor of alcohol in defendant’s breath, slurred speech, blood-shot eyes, and was unsteady, defendant’s arrest for DWI was valid. City of Santa Fe v. Martinez, 2010-NMSC-033, 148 N.M. 708, 242 P.3d 275.

Police-team concept. — The police-team concept will apply if there has been cooperate work between police officers. State v. Mitchell, 2010-NMCA-059, 148 N.M. 842, 242 P.3d 409, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Where the first police officer stopped defendant for a traffic violation; the first officer noticed an odor of alcohol coming from defendant and that defendant had bloodshot, watery eyes; defendant admitted to drinking; the first officer called a second officer to complete the investigation; the first officer reported to the second officer what the first officer had observed; the second officer noticed an odor of alcohol coming from defendant’s vehicle and that defendant had bloodshot watery eyes and slurred speech; and the second officer performed a field sobriety test and arrested defendant for DWI, the first officer’s primary duty was to patrol the streets, not to perform DWI investigations, the two officer’s investigations together constituted a cooperative effort that permitted the second officer to investigate the possibility of DWI and to support probable cause for the warrantless arrest of defendant for DWI. State v. Mitchell, 2010-NMCA-059,148 N.M. 842, 242 P.3d 409, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Probable cause that non-jailable offense has been committed does not automatically make an arrest reasonable under this section. State v. Rodarte, 2005-NMCA-141, 138 N.M. 668, 125 P.3d 647, cert. quashed, 2006-NMCERT-007, 140 N.M. 280, 142 P.3d 361.

Arrests for non-jailable offenses are unreasonable under this section in the absence of specific and articulable facts that warrant an arrest. State v. Rodarte, 2005-NMCA-141, 138 N.M. 668, 125 P.3d 647, cert. quashed, 2006-NMCERT-007, 140 N.M. 280, 142 P.3d 361.

Probable cause to extend traffic stop for field sobriety texts. — Where the officer observed defendant’s erratic driving, smelled the odor of alcohol on defendant’s person, and saw defendant sway as defendant walked to the back of defendant’s vehicle, the officer had reasonable suspicion to administer field sobriety tests to defendant. State v. Candace S., 2012-NMCA-030, 274 P.3d 774, cert. denied, 2012-NMCERT-002.

Warrantless arrests in public. — Statutory provisions regarding warrants must be considered in para materia with this section. 30-31-30 B NMSA 1978 cannot establish conclusively that an arrest based on such authority comports with the constitutional protection afforded by this section. Warrantless arrests made under the authority of the statute may be presumed reasonable but that presumption may be rebutted under an interpretation of what is constitutional. Campos v. State, 1994-NMSC-012, 117 N.M. 155, 870 P.2d 117, rev'g 1991-NMCA-119, 113 N.M. 421, 827 P.2d 136.

For a warrantless arrest to be reasonable, the arresting officer must show that the officer had probable cause to believe that the person arrested had committed or was about to commit a felony and some exigency existed that precluded the officer from securing a warrant. If an officer observes the person arrested committing a felony, exigency will be presumed. Campos v. State, 1994-NMSC-012, 117 N.M. 155, 870 P.2d 117, rev'g 1991-NMCA-119, 113 N.M. 421, 827 P.2d 136.

A warrantless arrest supported by probable cause is reasonable if exigency exists. — The overarching inquiry in reviewing warrantless arrests is whether it was reasonable for the officer not to procure an arrest warrant; a warrantless arrest supported by probable cause is reasonable if some exigency existed that precluded the officer from securing a warrant. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Where defendant was detained after store personnel observed him shoplifting flashlights, defendant was frisked and his possessions and the stolen flashlights were displayed on a table to present to law enforcement; officers arrived at the scene and developed probable cause to arrest defendant based on their review of the store surveillance video-tape and the evidence of shoplifting displayed on the table before them. The officers arrested defendant without a warrant, pursuant to 30-16-23 NMSA 1978, and searched defendant’s belongings incident to the arrest, finding hypodermic needles and heroin. The supreme court held that it was reasonable for the officers to make a warrantless arrest where they had probable cause, and when securing a warrant was not reasonably practical before responding to the scene, because the officers did not have the information supporting probable cause or the time to act on it prior to arriving on scene, and that an on-the-scene arrest supported by probable cause supplied the requisite exigency. The subsequent search of defendant was therefore a lawful search incident to arrest. State v. Paananen, 2015-NMSC-031, rev’g 2014-NMCA-041.

Warrantless misdemeanor arrest requires probable cause and exigent circumstances. — For a warrantless misdemeanor arrest to be reasonable under Article II, Section 10 of the New Mexico constitution, the arrest must be based on both probable cause and exigent circumstances. The arresting officer must show that the officer had probable cause to believe that the person arrested had committed or was about to commit a misdemeanor and that some exigency existed that precluded the officer from securing a warrant. The necessity for both probable cause and exigent circumstances applies even if statutory authority for the arrest only requires probable cause. State v. Paananen, 2014-NMCA-041, cert. granted, 2014-NMCERT-003.

Where the loss prevention personnel of a store observed defendant place flashlights under defendant’s jacket and leave the store without paying for the them; defendant was detained in the loss prevention office, but was not restrained in any way, and was told that the police had been called; when the police officers arrived, they spoke with the loss prevention personnel and learned the facts leading up to defendant’s detention; when the officers entered the loss prevention office, they immediately handcuffed defendant; and defendant was compliant and cooperative when defendant first encountered the officers and presented no imminent threat to escape or destroy evidence, the warrantless arrest of defendant was not valid under the New Mexico constitution, because although the officers had probable cause to arrest defendant, the state failed to show any exigent circumstances to support the arrest. State v. Paananen, 2014-NMCA-041, cert. granted, 2014-NMCERT-003.

Warrantless arrest made under the authority of § 30-3-6 NMSA 1978 was not unconstitutional. — Where defendant, charged with petty misdemeanor battery in magistrate court, filed a motion to dismiss or in the alternative to suppress evidence, arguing that his arrest violated the misdemeanor arrest rule and that the evidence was tainted by the unlawful arrest, and where the magistrate court dismissed the criminal complaint, and where the district court, on the state's appeal, determined that defendant's arrest was illegal and remanded the case to magistrate court for imposition of the court's dismissal order, defendant's warrantless arrest was valid under the New Mexico constitution, because an on-the-scene arrest supported by probable cause will usually supply the requisite exigency, and in this case, the responding officer was dispatched to the scene based on a call that defendant was attacking the victim, arrived at the scene, interviewed witnesses, and determined based on his investigation that he had probable cause to arrest defendant for battery. The officer did not have information to act on before he arrived at the scene and investigated, and he did not have time to secure a warrant before responding; the officer developed probable cause to arrest based on his review of the evidence at the scene. State v. Veith, 2022-NMCA-039, cert. denied.

V. CONSENT TO SEARCH.

A. IN GENERAL.

Probation search by law enforcement officer. — Where police officers executed a search warrant at a home based on a tip that methamphetamine was for sale at the home; the warrant covered the home, curtilage and vehicles at the home; defendant, who was a visitor at the home, was on probation for an earlier conviction; the conditions of defendant’s probation were that defendant would submit to warrantless searches of defendant’s person, residence and vehicles at the direction of defendant’s probation officer or any law enforcement officer; the officers tried to reach defendant’s probation officer without success and then searched defendant’s vehicle where the officers found drug paraphernalia which defendant admitted belonged to defendant; and the officers then searched defendant’s purse inside the home where they discovered methamphetamine, the officers were authorized to conduct the searches of defendant’s vehicle and purse by the conditions of defendant’s probation. State v. Brusuelas, 2009-NMCA-111, 147 N.M. 233, 219 P.3d 1, cert. denied, 2009-NMCERT-009, 147 N.M. 421, 224 P.3d 648.

The scope of a consent search is limited and determined by the actual consent given. State v. Alderete, 1976-NMCA-001, 88 N.M. 619, 544 P.2d 1184.

The search did not exceed defendant's consent where the defendant affirmatively volunteered to be searched 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, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Scope of consent. — The search did not exceed defendant's consent where the defendant affirmatively volunteered to be searched 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, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Where the owner of the vehicle gave an unrestricted consent to its search, it is established law in New Mexico that if officers, conducting a lawful search for property illegally possessed, discover other property illegally possessed, the latter may be seized also. State v. Warner, 1972-NMCA-042, 83 N.M. 642, 495 P.2d 1089, cert. denied, 83 N.M. 631, 495 P.2d 1078.

Suppression is required where officer impermissibly expands the scope of consent. — Where, during a traffic stop of defendant’s vehicle in an investigation concerning the ownership of a van that defendant was towing, the officer made a specific request to see the receipt for a specific vehicle, and where defendant complied with that request by opening the receipt book to the relevant page, a reasonable person in that situation would have understood defendant’s consent to have been limited to that specific page or document, and therefore it was not reasonable for the officer to assume that physical possession of the receipt book, which was given to facilitate a close inspection of the information on the receipt, allowed him to flip through the entire receipt book and examine the contents of all pages; defendant’s consent was limited to the receipt for the van, and the officer impermissibly expanded the scope of that consent. State v. Monafo, 2016-NMCA-092, cert. denied.

The question of the voluntariness of a consent is one of fact to be determined by the trial court from all the evidence adduced upon this issue; that court must weigh the evidence, determine its credibility or plausibility, determine the credibility of the witnesses, and decide whether the evidence was sufficient to clearly and positively, or clearly and convincingly, establish that the consent was voluntarily given. State v. Bloom, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465, rev'g in part 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925; State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971, rev'g in part 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864.

The question of whether consent to a search has been given is a question of fact subject to the limitations of judicial review. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078.

The question of consent to search is to be determined by the court and is not an issue to be submitted to the jury. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078.

Consent to the search must be freely and intelligently given, must be voluntary and not the product of duress or coercion, actual or implied. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078; State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890; State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968); State v. Sneed, 1966-NMSC-104, 76 N.M. 349, 414 P.2d 858.

Where without force or threat, an officer stated that he intended to seek a search warrant and may have offered the opportunity to consent to a search before the warrant was obtained, and the defendant stated that he wished to be searched so that he could leave the premises, his consent was not obtained by duress where a warrant was ultimately issued. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.

Propriety of search eliminated by consent. — A consent freely and intelligently given by the proper person may operate to eliminate any question otherwise existing as to the propriety of a search. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078.

Miranda warnings need not necessarily be given before there can be a valid consent to search. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078.

Permission need not be initially volunteered to constitute consent. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971.

There is nothing wrong with an officer asking for information or asking for permission to make a search, and permission need not be initially volunteered to constitute consent. State v. Bloom, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465, rev'g in part 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925.

Consent is exception to requirements of warrant and probable cause. — The probable cause required to secure a warrant or to justify a warrantless search is not a prerequisite to a consent search or to a request for consent to search. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971, rev'g in part 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864.

A search authorized by consent is an exception to the requirements of both a warrant and probable cause and is wholly valid. State v. Bloom, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465, rev'g in part 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925; State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971, rev'g in part 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864.

Consent must be proven by clear and positive evidence. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971; State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078; State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890; State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968); State v. Sneed, 1966-NMSC-104, 76 N.M. 349, 414 P.2d 858.

The burden of proving consent is on the state. State v. Bidegain, 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864, rev'd in part, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971; State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078; State v. Harrison, 1970-NMCA-025, 81 N.M. 324, 466 P.2d 890; State v. Kennedy, 1969-NMCA-022, 80 N.M. 152, 452 P.2d 486; State v. Aull, 1967-NMSC-233, 78 N.M. 607, 435 P.2d 437, cert. denied, 391 U.S. 927, 88 S. Ct. 1829, 20 L. Ed. 2d 668 (1968); State v. Sneed, 1966-NMSC-104, 76 N.M. 349, 414 P.2d 858.

Acquiescence is not consent. — Where officer who applied for the search warrant for seized automobile interviewed defendant a short time prior to making the application, where officer testified that defendant had no objection to a search of the car because officer had told him that he was going to get a search warrant for it anyway, and where defendant then affirmatively consented to a search of the car, this consent did not justify the search since it was no more than acquiescence to a claim of lawful authority. State v. Lewis, 1969-NMCA-041, 80 N.M. 274, 454 P.2d 360, overruled by State v. Nemrod, 1973-NMCA-059, 85 N.M. 118, 509 P.2d 885.

Police officer's threat to obtain a search warrant, absent probable cause, rendered defendant's consent to search involuntary. — Where defendant was approached by a police officer in reference to alleged complaints from neighbors that defendant was dealing drugs on his property, and where the police officer threatened to obtain a search warrant unless defendant consented to the search, and that defendant would be kicked out of his residence pending the arrival of the warrant, the district court erred in denying defendant's motion to suppress evidence discovered during the search, because absent a showing of probable cause, a defendant's mere acquiescence to an assertion of lawful authority renders a subsequent search unlawful, and in this case the state did not meet its burden of proving that its assertion of lawful authority was supported by probable cause. State v. Lovato, 2021-NMSC-004, rev'g A-1-CA-36312 mem. op. (July 18, 2019) (non-precedential).

Validity of consent after evidence obtained unlawfully. — In order for evidence obtained after an illegality, but with the voluntary consent of the defendant, to be admissible, there must be a break in the causal chain from the illegality to the search. In deciding whether the consent is sufficiently attenuated from the fourth amendment violation, courts must consider the temporal proximity of the illegal act and the consent, the presence or absence of intervening circumstances, and the purpose and flagrancy of the official misconduct. State v. Davis, 2015-NMSC-034, rev’g in part, aff’g in part 2014-NMCA-042, 321 P.3d 955.

Where state police consensually searched defendant’s greenhouse and seized fourteen marijuana plants after conducting a comprehensive aerial surveillance of defendant’s property and the surrounding area, evidence that the helicopter used in the surveillance swooped in low enough to cause panic among the residents, caused property damage on nearby properties, produced excessive noise and kicked up dust and debris, and in the process of providing aerial protection for the officers on the ground, increased the risk of actual physical intrusion, the aerial surveillance and the manner in which it was conducted transformed the surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into defendant’s expectation of privacy and constituted an unwarranted search in violation of the fourth amendment. Evidence that the officers’ contact with defendant and the officer’s subsequent request to search defendant’s greenhouse were made in direct response to, and simultaneously with, the information provided by the helicopter spotter, information obtained as a result of the illegal helicopter search. There were no intervening circumstances between the aerial search and defendant’s consent, and as a result, there was insufficient attenuation to purge defendant’s consent of the taint resulting from the warrantless aerial search. State v. Davis, 2015-NMSC-034, rev’g in part, aff’g in part, 2014-NMCA-042, 321 P.3d 955.

Consent to search was not sufficiently attenuated from illegal search. — Where the state police and national guard were seeking to locate marijuana plantations by aerial surveillance; a spotter in a helicopter alerted a ground team to the presence of a greenhouse and vegetation in defendant’s backyard; the officers did not have a warrant to search defendant’s property; the officers made contact with defendant and asked permission to search the residence; defendant voluntarily consented to the search; during the search, the officers found marijuana and drug paraphernalia; the search of defendant’s property violated Article II, Section 10 of the New Mexico constitution because the helicopter surveillance of defendant’s property constituted a search requiring probable cause and a warrant; and the officer who obtained defendant’s consent entered defendant’s property solely as a result of information obtained in the helicopter search and there were no intervening circumstances between the aerial search and defendant’s consent, there was insufficient attenuation to purge defendant’s consent of the taint of the unconstitutional aerial surveillance and evidence obtained through the search was inadmissible. State v. Davis, 2014-NMCA-042, cert. granted, 2014-NMCERT-003.

Consent to search was valid. — Where a helicopter pilot observed a possible marijuana plantation in defendant’s yard; six police officers, armed with service weapons and government vehicles created a secure premise around defendant’s property; while the other officers remained outside defendant’s property, one officer approached defendant, identified the officer as an officer, stated that the helicopter had identified marijuana on defendant’s property and asked defendant for permission to search defendant’s property; the officer told defendant several times that defendant was not required to provide consent, that the decision was up to defendant, that the officers would begin a search only if defendant consented to the search, that if defendant refused, the officer would secure the property and try to obtain a search warrant and that the other officers were present for safety; defendant did not object to or protest the request to search; defendant was not detained and was allowed to move about freely; the officer’s and defendant’s tone of voice were calm and normal; and defendant signed a consent form, there was substantial evidence that defendant voluntarily consented to the search. State v. Davis, 2013-NMSC-028, rev’g 2011-NMCA-102, 150 N.M. 611, 263 P.3d 953.

Consent invalid. — Where the spotter in a surveillance helicopter directed police to defendant’s property to investigate whether vegetation in defendant’s greenhouse and behind the house was marijuana; at least six armed police officers and five government vehicles entered defendant’s property as the helicopter hovered overhead; the officers spread out across the property; an officer asked defendant to consent to a search of the property; the officer told defendant that the if defendant did not consent to the search, the police would secure the property and obtain a search warrant; and after hesitating, defendant gave the officer defendant’s oral and written consent to search the property, because defendant thought that a refusal to consent to the search was futile and thought the police were already searching the property, defendant’s consent was given under duress and coercive circumstances and was not voluntary. State v. Davis, 2011-NMCA-102, 150 N.M. 611, 263 P.3d 953, rev’d, 2013-NMSC-028.

Consent of minor to vehicle search. — A police officer need not advise a minor of the right to refuse to consent in order to obtain the valid consent of the minor to search the minor’s vehicle. State v. Carlos A., 2012-NMCA-069, 284 P.3d 384, cert. denied, 2012-NMCERT-006.

Where the minor, who was seventeen years of age, was stopped by a police officer for a traffic violation; the officer smelled the odor of marijuana; the minor consented to the search of the minor’s vehicle; the officer did not advise the minor and the minor did not know that the minor had a right to refuse to consent; the contact between the minor and the officer was low-key, polite, cooperative, and not hostile; the officer did not exert any unusual pressure on the minor; and the encounter lasted about ten minutes from the time of the stop to the end of the vehicle search, there was substantial evidence that the minor voluntarily consented to the search of the vehicle. State v. Carlos A., 2012-NMCA-069, 284 P.3d 384, cert. denied, 2012-NMCERT-006.

Consent shown. — Defendant's statement that he was going to open the trunk of his car when asked by the officer, even before the officer indicated that he would secure a search warrant, together with the evidence of the officer concerning his request to look into the trunk of the vehicle, could properly be construed as consent on this defendant's part to look into and make a search of the trunk. State v. Bloom, 1977-NMSC-016, 90 N.M. 192, 561 P.2d 465, rev'g in part 1976-NMCA-035, 90 N.M. 226, 561 P.2d 925.

Evidence that during a routine check of driver's licenses and vehicle registrations, defendant was routinely stopped and that after defendant, who resided in Arizona, had produced an Arizona's driver's license issued to him and a Connecticut certificate of registration showing the vehicle to be registered in the name of another person, the officers unsuccessfully attempted a computer check to determine if the car was stolen, and then asked what was in the trunk of the vehicle, and if defendant minded if they looked in the trunk, to which defendant replied that he did not mind, got out of the vehicle and personally unlocked and opened the trunk, supported the trial court's finding that defendant voluntarily consented to the opening of the trunk. State v. Bidegain, 1975-NMSC-060, 88 N.M. 466, 541 P.2d 971, rev'g in part 1975-NMCA-065, 88 N.M. 384, 540 P.2d 864.

B. CONSENT BY THIRD PARTY.

Consent by third party. — A third party cannot consent to a search of a part of the premises within defendant's exclusive use and control. State v. Johnson, 1973-NMCA-119, 85 N.M. 465, 513 P.2d 399.

While the original entry was with the permission of defendant's relative and homeowner, he could not validly consent to a search of the defendant's personal effects which were not exposed to open view. State v. Johnson, 1973-NMCA-119, 85 N.M. 465, 513 P.2d 399.

A defendant may object to a search consented to by another where the defendant has exclusive control over a part of the premises searched or over an effect on the premises which is itself capable of being searched. Enclosed spaces over which a nonconsenting party has a right to exclude others, whether rooms or effects, are protected. State v. Johnson, 1973-NMCA-119, 85 N.M. 465, 513 P.2d 399.

Common authority over work spaces. — Regional supervisor for defendant's employer, who had free access to employer's trailer that was used as a base of operations for a bear study, had common authority over the work spaces within the trailer and the crawlspace underneath it, could consent to a search of those areas of the trailer. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120, cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172 (2006).

Where victim and defendant lived and worked in a trailer that was owned by their employer and used as a base of operations for a bear study, victim and defendant at times stayed together in defendant's bedroom, victim's access to defendant's bedroom was never restricted, and victim stored her equipment and business materials in defendant's bedroom and where victim and defendant both used a video camera in their bear research, victim sometimes entered defendant's bedroom to get the camera and videotapes, defendant had given victim authority to enter his bedroom to get and view the videotapes, videotapes that contained scenes of defendant committing the crime were not hidden, the victim had a sufficient relationship to defendant's bedroom to consent to a search of the bedroom and victim had a sufficient relationship to the videotapes found in the bedroom to authorize police officers to view the videotapes. State v. Ryan, 2006-NMCA-044, 139 N.M. 354, 132 P.3d 1040, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120, cert. denied, 549 U.S. 899, 127 S. Ct. 215, 166 L. Ed. 2d 172 (2006).

Consent by spouse. — Where there is no showing that defendant's personal effects were taken from an area reserved to defendant's exclusive use, and the wife, as a joint possessor of the premises, consents to the taking of the personal effects, the consent is valid. State v. Kennedy, 1969-NMCA-022, 80 N.M. 152, 452 P.2d 486.

Where there is no claim that the wife's consent to search resulted from fraud, coercion or threat by the police, the wife's consent under the facts was sufficient. State v. Kennedy, 1969-NMCA-022, 80 N.M. 152, 452 P.2d 486.

The wife, as a joint possessor, may consent to a search in her own right and the items taken by her consent can be used in evidence against the other joint possessor. State v. Kennedy, 1969-NMCA-022, 80 N.M. 152, 452 P.2d 486.

When a spouse, who has common authority over premises and other community property within it, finds incriminating evidence and voluntarily delivers it to the police and consents to an examination of that evidence, neither the fourth amendment nor this section of the New Mexico constitution prohibits the admission of the evidence at trial. State v. Cline, 1998-NMCA-154, 126 N.M. 77, 966 P.2d 785, cert. denied, 126 N.M. 532, 972 P.2d 351, cert. denied, 526 U.S. 1041, 119 S. Ct. 1338, 143 L. Ed. 2d 502 (1999).

Consent by parent. — Where trial court specifically found and properly ruled that permission to search house was voluntarily given by defendant's mother, and where defendants were single and living with their parents in their parents' home, it follows that the defendants' boots were seized as a result of a lawful search and were properly received in evidence, and mere irregularity as might appear on the consent form used by the officers was not deemed controlling. State v. Williamson, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968).

Consent by home owner. — A search after permission is given by one who has authority, such as the owner of a house, is valid. State v. Mosier, 1971-NMCA-138, 83 N.M. 213, 490 P.2d 471.

Even assuming defendant was living in mobile home, a fact that was in dispute, the home's owners and co-inhabitants could lawfully consent to search of the home. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807, modified, State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.2d 828, overruled by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110..

Consent by third party invalid. — Where the defendant was stopped because the vehicle he was driving had a cracked windshield; the defendant refused to consent to a search of the vehicle; the police officer did not have reasonable suspicion to detain the vehicle; the defendant’s father, who owned the vehicle, arrived at the scene in response to a call from the defendant immediately following the police officer’s detention of the vehicle; the father gave consent to search the vehicle, there was no attenuation between the illegal detention of the vehicle and the father’s consent to the search and the father’s consent was tainted and invalid to support the search of the vehicle. State v. Neal, 2007-NMSC-043, 142 N.M. 176, 164 P.3d 57.

Parent cannot consent for adult child. — Under the facts and circumstances of this case, a third party's status as a parent did not, without more, empower him to consent to a search of his 29-year-old son's room. State v. Diaz, 1996-NMCA-104, 122 N.M. 384, 925 P.2d 4.

State must show control. — To establish a third party's common authority to consent to a search, the state is required to show more than ownership of the house. The evidence had to demonstrate that the third party had "joint access or control for most purposes" over an area of "mutual use". State v. Diaz, 1996-NMCA-104, 122 N.M. 384, 925 P.2d 4.

Actual common authority to consent to search. — Common authority refers to the mutual use of the property by persons generally having joint access or control of the property for most purposes, and may be established by showing a right to occupy the premises, unrestricted access to the premises, and storage of property on the premises. State v. Ramos, 2017-NMCA-041.

Apparent authority insufficient to consent to a search. — Where officers responded to a domestic violence call made by defendant’s girlfriend, who had been staying at defendant’s apartment for a few days, defendant’s girlfriend did not have actual common authority to consent to a search of defendant’s apartment, because defendant’s girlfriend did not have unrestricted access to the apartment, did not have her own key to the apartment, and did not have her property stored on the premises, but had her personal items stored in a box in the hallway of the apartment and was simply a houseguest for a few days. State v. Ramos, 2017-NMCA-041.

No "apparent authority" exception. — When the state relies upon consent to justify a warrantless search of a residence, there is no "apparent authority" exception under the New Mexico constitution. State v. Wright, 1995-NMCA-016, 119 N.M. 559, 893 P.2d 455, cert. denied, 119 N.M. 389, 890 P.2d 1321.

The state is required to show actual authority of the third party for his consent to be valid; apparent authority is not sufficient. State v. Diaz, 1996-NMCA-104, 122 N.M. 384, 925 P.2d 4.

A deputy game warden may patrol privately owned land for the purpose of looking out for wild game interests upon such land. 1947 Op. Att'y Gen. No. 47-4974.

Search warrant for intoxicating liquor. — No statute authorizes issuance of search warrant for intoxicating liquor, and any such authority is to be found in this constitutional provision. 1934 Op. Att'y Gen. No. 34-737.

Law reviews. — For note, "The Investigatory Stop of Motor Vehicles in New Mexico," see 8 N.M. L. Rev. 223 (1978).

For note, "Search and Seizure: The Automobile Exception to the Fourth Amendment Warrant Requirement - A Further Exception to the Fourth: State v. Capps," see 14 N.M. L. Rev. 239 (1984).

For note, "Criminal Procedure - Search and Seizure - Expectations of Privacy in the Open Fields and an Evolving Fourth Amendment Standard of Legitimacy: Oliver v. United States," 16 N.M. L. Rev. 129 (1986).

For note, "Criminal Procedure - Search and Seizure of Person and Property: State v. Lovato, " see 23 N.M. L. Rev. 323 (1993).

For note, "New Mexico Requires Exigent Circumstances for Warrantless Public Arrests: Campos v. State," see 25 N.M. L. Rev. 315 (1995).

For article, "State Constitutional Interpretation and Methodology," see 28 N.M. L. Rev. 199 (1998).

For note, "Constitutional Law - The Effect of State Constitutional Interpretation on New Mexico's Civil and Criminal Procedure - State v. Gomez," see 28 N.M. L. Rev. 355 (1998).

For article, "New Mexico State Constitutional Law Comes of Age," see 28 N.M. L. Rev. 379 (1998).

For article, "State v. Gomez and the Continuing Conversation over New Mexico's State Constitutional Rights Jurisprudence," see 28 N.M. L. Rev. 387 (1998).

For note, "Police Searches on Public School Campuses in New Mexico," see 30 N.M. L. Rev. 141 (2000).

For article, "New Developments in Fourth, Fifth and Sixth Amendment Law," see 31 N.M. L. Rev. 175 (2001).

For note, "Criminal Procedure - Supreme Court Update on Reasonable Suspicion Analysis: A Review on the Supreme Court Decisions in Illinois v. Wardlow and Florida v. J.L.," see 31 N.M. L. Rev. 421 (2001).

For note, "Constitutional Law: State v. Nemeth - The Community Caretaker Exception to the Fourth Amendment," see 32 N.M. L. Rev. 291 (2002).

For note, "Search and Seizure Law: State v. Cardenas-Alvarez: The Jurisdictional Reach of State Constitutions - Applying State Search and Seizure Standards to Federal Agents," see 32 N.M. L. Rev. 531 (2002).

For article, "State v. Urioste: A Prosecutor's Dream and Defender's Nightmare", see 34 N.M. L. Rev. 517 (2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Searches and Seizures §§ 2 to 6.

Admissibility, in civil case, of evidence obtained by unlawful search and seizure, 5 A.L.R.3d 670.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Validity of consent to search given by one in custody of officers, 9 A.L.R.3d 858.

Traffic violation: lawfulness of search of motor vehicle following arrest for traffic violation, 10 A.L.R.3d 314.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant, 10 A.L.R.3d 359.

Criminal liability for obstructing process as affected by invalidity or irregularity of the process, 10 A.L.R.3d 1146.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure, 11 A.L.R.3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search, 19 A.L.R.3d 727.

Plea of guilty as waiver of claim of unlawful search and seizure, 20 A.L.R.3d 724.

Private individual: admissibility, in criminal case, of evidence obtained by search by private individual, 36 A.L.R.3d 553.

"Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search, 43 A.L.R.3d 385.

"Furtive" movement or gesture as justifying police search, 45 A.L.R.3d 581.

Observation through binoculars as constituting unreasonable search, 48 A.L.R.3d 1178.

Censorship and evidentiary use of unconvicted prisoner's mail, 52 A.L.R.3d 548.

Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172.

Admissibility, in state probation revocation proceedings, of evidence obtained through illegal search and seizure, 77 A.L.R.3d 636.

Validity of requirement that, as a condition of probation, defendant submit to warrantless searches, 79 A.L.R.3d 1083.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child - state cases, 99 A.L.R.3d 598.

Admissibility of evidence discovered in search of defendant's property or residence authorized by domestic employee or servant, 99 A.L.R.3d 1232.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 1 A.L.R.4th 673.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property - state cases, 2 A.L.R.4th 1173.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse - state cases, 4 A.L.R.4th 196.

Admissibility of evidence discovered in search of defendant's property or residence authorized by one, other than relative, who is cotenant or common resident with defendant - state cases, 4 A.L.R.4th 1050.

Odor of narcotics as providing probable cause for warrantless search, 5 A.L.R.4th 681.

Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure, 10 A.L.R.4th 376.

Adequacy of defense counsel's representation of criminal client regarding search and seizure issues, 12 A.L.R.4th 318.

Admissibility in criminal case of blood-alcohol test where blood was taken despite defendant's objection or refusal to submit to test, 14 A.L.R.4th 690.

Use, in attorney or physician disciplinary proceeding, of evidence obtained by wrongful police action, 20 A.L.R.4th 546.

Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer, 24 A.L.R.4th 1208.

Disputation of truth of matters stated in affidavit in support of search warrant - modern cases, 24 A.L.R.4th 1266.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search, 27 A.L.R.4th 532.

Search and seizure: suppression of evidence found in automobile during routine check of vehicle identification number (VIN), 27 A.L.R.4th 549.

Reasonable expectation of privacy in contents of garbage or trash receptacle, 28 A.L.R.4th 1219.

Validity of searches conducted as condition of entering public premises - state cases, 28 A.L.R.4th 1250.

Lawfulness of warrantless search of purse or wallet of person arrested or suspected of crime, 29 A.L.R.4th 771.

Admissibility, in criminal case, of evidence discovered by warrantless search in connection with fire investigation - post-Tyler cases, 31 A.L.R.4th 194.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 32 A.L.R.4th 378.

Validity of routine roadblocks by state or local police for purpose of discovery of vehicular or driving violations, 37 A.L.R.4th 10.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone, 38 A.L.R.4th 1145.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

Search and seizure: What constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonable - modern cases, 40 A.L.R.4th 381.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person's body, 41 A.L.R.4th 60.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking, 44 A.L.R.4th 366.

Propriety of governmental eaves-dropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Validity of arrest made in reliance upon uncorrected or outdated warrant list or similar police records, 45 A.L.R.4th 550.

Officer's ruse to gain entry as affecting admissibility of plain-view evidence - modern cases, 47 A.L.R.4th 425.

Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person, 47 A.L.R.4th 501.

Eavesdropping on extension telephone as invasion of privacy, 49 A.L.R.4th 430.

Propriety of state or local government health officer's warrantless search - post-Camara cases, 53 A.L.R.4th 1168.

Seizure of books, documents, or other papers under search warrant not describing such items, 54 A.L.R.4th 391.

Search and seizure: reasonable expectation of privacy in public restroom, 74 A.L.R.4th 508.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber's constitutional rights, 76 A.L.R.4th 536.

Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement, 11 A.L.R.5th 52.

Prisoner's rights as to search and seizure under state law or constitution - post-Hudson cases, 14 A.L.R.5th 913.

State constitutional requirements as to exclusion of evidence unlawfully seized - post- Leon cases, 19 A.L.R.5th 470.

Search and seizure: lawfulness of demand for driver's license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist, 19 A.L.R.5th 884.

Admissibility, in motor vehicle license suspension proceedings, of evidence obtained by unlawful search and seizure, 23 A.L.R.5th 108.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.

Search and seizure of bank records pertaining to customer as violation of customer's rights under state law, 33 A.L.R.5th 453.

Propriety of stop and search by law enforcement officers based solely on drug profile, 37 A.L.R.5th 1.

Propriety of execution of search warrant at nighttime, 41 A.L.R.5th 171.

Sufficiency of description in warrant of person to be searched, 43 A.L.R.5th 1.

Application of "plain-feel" exception to warrant requirements-state cases, 50 A.L.R.5th 581.

Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 A.L.R.5th 375.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child-state cases, 51 A.L.R.5th 425.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse-state cases, 55 A.L.R. 5th 125.

Observation through binoculars as constituting unreasonable search, 59 A.L.R.5th 615.

Search and seizure: reasonable expectation of privacy in driveways, 60 A.L.R.5th 1.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property - state cases, 61 A.L.R.5th 1.

Searches and seizures: Reasonable expectation of privacy in contents of garbage or trash receptacle, 62 A.L.R.5th 1.

Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises, 64 A.L.R.5th 637.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 65 A.L.R.5th 407.

Search and seizure: reasonable expectation of privacy in tent or campsite, 66 A.L.R.5th 373.

Validity of anticipatory search warrants - state cases, 67 A.L.R.5th 361.

Admissibility of evidence discovered in search of defendant's property or residence authorized by one, other than relative, who is cotenant or common resident with defendant - state cases, 68 A.L.R.5th 343.

Civilian participation in execution of search warrant as affecting legality of search, 68 A.L.R.5th 549.

Effect of retroactive consent on legality of otherwise unlawful search and seizure, 76 A.L.R.5th 563.

Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.), 78 A.L.R.5th 309.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 A.L.R.5th 103.

Validity of search or seizure of computer, computer disk, or computer peripheral equipment, 84 A.L.R.5th 1.

What constitutes compliance with knock-and-announce rule in search of private premises - state cases, 85 A.L.R.5th 1.

Federal and state constitutions as protecting prison visitor against unreasonable searches and seizures, 85 A.L.R.5th 261.

Constitutionality of secret video surveillance, 91 A.L.R.5th 585.

Expectation of privacy in internet communications, 92 A.L.R.5th 15.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid, 103 A.L.R.5th 463.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches, 99 A.L.R.5th 557.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale – state cases, 109 A.L.R.5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale – state cases, 111 A.L.R.5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance – state cases, 112 A.L.R.5th 429.

Validity of warrantless search of motor vehicle based on odor of marijuana — state cases, 114 A.L.R. 5th 173.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics, 115 A.L.R. 477.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — state cases 113 A.L.R. 5th 517.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions, 117 A.L.R. 5th 407.

Validity of warrantless search of other than motor vehicle or occupant of motor vehicle based on odor of marijuana — state cases 122 A.L.R. 5th 439.

Validity of warrentless search of motor vehicle driver based on odor of marijuana — state cases, 123 A.L.R. 5th 179.

Validity of search conducted pursuant to parole warrant, 123 A.L.R. 5th 221.

Admissibility of ion scan evidence, 124 A.L.R. 5th 691.

Validity of warrantless search of motor vehicle passenger based on odor of marijuana, 1 A.L.R. 6th 371.

Application of Leon good faith exception to exclusionary rules where police fail to comply with knock and announce requirement during execution of search warrant, 2 A.L.R. 6th 169.

When are facts offered in support of search warrant for evidence of nondrug, nonsexual offense so untimely as to be stale — state cases, 6 A.L.R. 6th 533.

Narcotics and drugs: use of trained dogs to detect narcotics or drugs as unreasonable search in violation of fourth amendment, 31 A.L.R. Fed. 931.

Fourth amendment as protecting prisoner against unreasonable searches or seizures, 32 A.L.R. Fed. 601.

Construction and application of "national security" exception to fourth amendment search warrant requirement, 39 A.L.R. Fed. 646.

Authority of United States officials to conduct inspection or search of American registered vessel located outside territorial waters of United States, 40 A.L.R. Fed. 402.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's relative, 48 A.L.R. Fed. 131.

Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative, 49 A.L.R. Fed. 511.

Sufficiency of description of business records under fourth amendment requirement of particularity in federal warrant authorizing search and seizure, 53 A.L.R. Fed. 679.

Validity, under federal constitution, of search conducted as condition of entering public building, 53 A.L.R. Fed. 888.

Aerial observation or surveillance as violative of fourth amendment guaranty against unreasonable search and seizure, 56 A.L.R. Fed. 772.

Defense of good faith in action for damages against law enforcement official under 42 USC § 1983, providing for liability of person who, under color of law, subjects another to deprivation of rights, 61 A.L.R. Fed. 7

Propriety, under § 287(a)(1) of Immigration and Nationality Act (8 USCS § 1357(a)(1)), of warrantless interrogation of alien, or person believed to be alien, as to alien's right to be or to remain in United States, 63 A.L.R. Fed. 180.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force, 66 A.L.R. Fed. 119.

Admissibility of evidence obtained by unconstitutional search in proceedings under Occupational Safety and Health Act (29 USCS § 651 et seq.), 67 A.L.R. Fed. 724.

When do facts shown as probable cause for wiretap authorization under 18 USC § 2518(3) become "stale," 68 A.L.R. Fed. 953.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant, 69 A.L.R. Fed. 522.

Use of electronic tracking device (beeper) to monitor location of object or substance other than vehicle or aircraft as constituting search violating Fourth Amendment, 70 A.L.R. Fed. 747.

Fourth amendment as prohibiting strip searches of arrestees or pretrial detainees, 78 A.L.R. Fed. 201.

Validity of warrantless search under extended border doctrine, 102 A.L.R. Fed. 269.

Warrantless detention of mail for investigative purposes as violative of fourth amendment, 115 A.L.R. Fed. 439.

Permissibility under Fourth Amendment of detention of motorist by police, following lawful stop for traffic offense, to investigate matters not related to offense, 118 A.L.R. Fed. 567.

When is consent voluntarily given so as to justify search conducted on basis of that consent - Supreme Court cases, 148 A.L.R. Fed. 271.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of Fourth Amendment, 150 A.L.R. Fed. 399.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor relative, 152 A.L.R. Fed. 475.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse, 160 A.L.R. Fed. 165.

Sufficiency of information provided by anonymous informant to provide probable cause for federal search warrant - cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), 178 A.L.R. Fed. 487.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), 182 A.L.R. Fed. 467.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale, 187 A.L.R. Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana — federal cases, 188 A.L.R. Fed. 487.

Validity of warrantless search of motor vehicle occupant based on odor of marijuana — federal cases, 192 A.L.R. Fed. 391.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past — cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 529 (1983), 196 A.L.R. Fed 1.

79 C.J.S. Searches and Seizures § 3 et seq.