Warrantless Searches and Seizures Introduction
Article II, § 10 of the New Mexico Constitution, and the Fourth Amendment to the United States Constitution, protect people from unreasonable searches and seizures. Thus, the general rule is that a warrant must be obtained prior to conducting a search or making an arrest.1 However, New Mexico recognizes several exceptions to that general rule. Those exceptions include searches and seizures conducted with consent, such as a consensual encounter with police and a consensual search of one’s home or vehicle.
New Mexico also recognizes exceptions to the warrant requirement that apply even when consent has not been granted. First, New Mexico recognizes exceptions for stops of individuals or vehicles, such as an investigatory stop based on reasonable suspicion, a border stop or roadblock, and community caretaking encounters. Second, New Mexico recognizes exceptions to the warrant requirement for searches of individuals, vehicles and places. Those exceptions include (1) a pat down justified by reasonable suspicion the individual is armed and dangerous, (2) a search incident to an arrest, (3) an inventory search, (4) a protective search justified by exigent circumstances, (5) a search of a home that is justified by both probable cause to believe evidence of a crime will be found and exigent circumstances justifying an immediate search, (6) a search of the home of probationer or parolee based on reasonable suspicion that evidence of a condition of probation or parole will be found, and (6) a search of a home under the emergency assistance doctrine. Finally, New Mexico also recognizes two exceptions to the warrant requirement for arrests: (1) an arrest for a misdemeanor committed in the officer’s presence and (2) an arrest for a felony when the officer has probable cause to believe a crime has been or is being committed and exigent circumstances exist to justify an immediate arrest.
Unless one of these exceptions applies, a search or seizure conducted without a warrant will be deemed illegal and any evidence obtained as a result of the search or seizure will be suppressed.
However, prosecutors should be aware of three possible defenses against the suppression of evidence obtained as a result of an illegal search or seizure.2 First, evidence obtained independently from the illegal search is admissible.3 This rule is often referred to as the independent source exception. It applies in situations in which an illegal search or seizure occurred, but the discovery or seizure of the evidence did not depend on the illegal police actions.4 Second, evidence that is obtained as a result of an illegal search or seizure but that would have inevitably been obtained through a legal search is also admissible.5 This rule is referred to as the inevitable discovery exception.6
Finally, an illegal search may not require suppression of the evidence if the defendant seeking suppression does not have standing to object to the illegal search. Standing requires that a person moving to suppress evidence must have an adversarial interest in the outcome.7 Given that interest, the determination of whether a person has standing hinges on whether that person had a reasonable expectation of privacy in the place entered.8 To establish standing, a defendant must demonstrate both that he had an actual, subjective expectation of privacy and that his expectation of privacy is one that society is prepared to recognize as reasonable.9 It is important for prosecutors to remember that the State is required to challenge the defendant’s standing to seek exclusion of evidence obtained as a result of a search or seizure, and that the failure to do so results in waiver of the defendant’s lack of standing.10
END NOTES
1 The warrant requirement applies only “if there has been a search or seizure.” State v. Van Cleave, 2001-NMSC-031, ¶ 11, 131 N.M. 82, 33 P.3d 633. “A search is an intrusion on a person’s “reasonable expectation of privacy.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 9 (1968)). In Van Cleave, the New Mexico Supreme Court held that a dog sniff in which the agents placed the dog downwind from the vehicle near the open trunk, but did not allow the dog to touch or enter the vehicle, was not a search. A dog sniff is a search only if the dog “intrudes on the private space of the suspect.” Id. ¶ 15.
2 Police officers should not be concerned with these defenses because they are at issue only after a search or seizure has been declared invalid. Therefore, a thorough discussion of these defenses is beyond the scope of this manual. They are mentioned here, with reference citations, only to assist prosecutors in preparing to defend against a motion to suppress.
3 State v. Corneau, 1989-NMCA-040, ¶ 37, 109 N.M. 81, 781 P.2d 1159 (citing Murray v. United States, 487 U.S. 533, 539 (1988)).
4 Id.; State v. Wagoner, 2001-NMCA-014, ¶ 21, 130 N.M. 274, 24 P.3d 306. The independent source exception cannot apply when illegally obtained information is included in an application for a search warrant, even if the remaining information, excluding the tainted information, was sufficient to establish probable cause for the warrant. If a warrant is obtained by the use of illegally obtained information, the warrant is tainted and any evidence obtained during the execution of the warrant must be suppressed. Wagoner, 2001-NMCA-014, ¶¶ 21, 32, 36, 41.
5 Corneau, 1989-NMCA-040, ¶ 37 (citing Nix v. Williams, 467 U.S. 431, 447 (1984)); Wagoner, 2001-NMCA-014, ¶ 15.
6 See State v. Romero, 2001-NMCA-046, ¶ 10, 130 N.M. 579, 28 P.3d 1120. “In order for the inevitable discovery doctrine to apply, the lawful means by which the evidence could have been attained must be wholly independent of the illegal actions.” Id. ¶ 10. In contrast to the independent source exception, which normally applies to situations where evidence is obtained during the execution of a warrant that was obtained by the use of tainted information, the inevitable discovery exception normally applies when evidence is obtained illegally without a warrant, but would have been obtained by some other legal means. At this point, the only legal means our courts have recognized as falling under the inevitable discovery exception is an inventory search. For an explanation of an inventory search, refer to “Searching a Person” and “Searching a Vehicle” in this manual.
7 Baker v. Carr, 369 U.S. 186 (1962).
8 State v. Leyba, 1997-NMCA-023, ¶ 9, 123 N.M. 159, 935 P.2d 1171.
9 Id. The following cases have discussed the requirements for standing: State v. Clark, 1986- NMCA-095, ¶ 11, 105 N.M. 10, 727 P.2d 949 (the fact that person rents rather than owns the property does not affect his legitimate expectation of privacy); State v. Hensel, 1987- NMCA-059, ¶ 9, 106 N.M. 8, 738 P.2d 125 (mere presence on the property is not enough to confer standing without permissive use), overruled on other grounds by State v. Rivera, 2008-NMSC-056, ¶ 22, 144 N.M. 836; Leyba, 1997-NMCA-023, ¶¶ 16-17 (a house guest on the premises with the owner’s permission who has a possessory interest in an item seized there has standing); State v. Wright, 1995-NMCA-016, ¶¶ 13-15, 119 N.M. 559, 893 P.2d 455 (a house guest who has been given permission to use a private part of the residence has standing to challenge the warrantless entry of that part of the residence); State v. Waggoner, 1981-NMCA-125, ¶¶ 15-16, 97 N.M. 73, 636 P.2d 892 (a passenger in a vehicle may not have standing to challenge the search of the vehicle or its contents); State v. Creech, 1991-NMCA-012, ¶ 7, 111 N.M. 490, 806 P.2d 1080 (a passenger has standing to challenge the validity of the initial stop of the vehicle); State v. Van Dang, 2005-NMSC-033, ¶ 12, 138 N.M. 408, 120 P.3d 830 (driver who lacks authority or permission to possess the car does not have standing to challenge the search of the car); State v. Ryan, 2006-NMCA-044, ¶ 21, 139 N.M. 354, 132 P.3d 1040 (park ranger does not have standing to challenge search of a bedroom in a “bunkhouse” to which he did not have exclusive access or use); State v. Crocco, 2014-NMSC-016, ¶¶ 22- 23, 327 P.3d 1068 (a person without authority or permission to occupy a dwelling does not have standing to challenge the search or seizure of his or her belongings found during a search of the dwelling).
10 State v. Guebara, 1995-NMCA-031, ¶ 9, 119 N.M. 662, 894 P.2d 1018.