The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA , authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number:

__________________ 2

F iling Date: December 18, 2023 3

NO. S

- 1

- SC

- 39186 4

STATE OF NEW MEXICO, 5

Plaintiff

- Petitioner, 6

v. 7

ANDREW ONTIVEROS, 8

Defendant

- Respondent. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 John Dean , District Judge 11
Hector H. Balderas, Attorney General 12 Benjamin L. Lammons , Assistant Attorney General 13 Santa Fe, NM 14

for Petitioner 15

Bennett J. Baur, Chief Public Defender 16 Allison H. Jaramillo , Assistant Appellate Defender 17 Santa Fe, NM 18
for Respondent 19OPINION 1

ZAMORA , Justice. 2

{1} The issue before us is whether law enforcement violated the Fourth 3

Amendment to the United States Constitution when, incident to an arrest, police 4
conducted a warrantless inventory search of a vehicle that was lawfully parked at 5
the registered owner’s home. We conclude on the facts of this case that the inventory 6
search violated Defendant’s Fourth Amendment rights and affirm the Court of 7
Appeals. 8

I. BACKGROUND 9

{2} Officer Alvin Bencomo of the Farmington Police Department was on patrol 10
when he observed a car with a broken taillight and a cracked front windshield drive 11
past him. To initiate a traffic stop, Officer Bencomo activated his emergency lights 12

and followed the car a short distance before it turned into a trailer park and came to 13

a stop

. The re were two men in the car: Defendant, who was driving, and his 14
passenger. When Officer Bencomo made contact with Defendant, he ran 15
Defendant’s name through dispatch and discovered Defendant’s license had been 16
revoked due to a prior conviction for driving while intoxicated. After Defendant 17
informed Officer Bencomo that the car he was driving did not have an interlock 18

device, the officer arrested him. 192 {3} During the traffic stop, Defendant told the officer that the car was registered 1
to his grandmother and that he had park ed it in front of her trailer. The grandmother 2
did not appear at the scene at any time during the police investigation. After 3
completing a license plate check , the officer confirmed that Defendant’s 4
grandmother owned the car Defendant was driving. Officer Bencomo testified that 5
although he did not independently verify who owned the trailer, he knew that the car 6
was parked in front of the grandmother’s residence. 7

{4} After the arrest, Officer Bencomo asked Defendant whether his passenger had 8
a valid driver’s license. Instead of directly answering the question, Defendant 9
responded by suggesting to the officer that the car should stay parked where it was 10
in front of his grandmother’s residence. Officer Bencomo rejected Defendant’s 11
suggestion, deciding instead to tow and impound the car for safekeeping because it 12
was parked in an “open area” and “the registered owner was not on

- scene.” In 13
anticipation of the impoundment, the Fa rmington police conducted a pre

- tow 14
inventory search of the interior and t runk of the grandmother’s car. Among other 15
contraband, the search yielded controlled substances and drug paraphernalia. 16

{5} Officer Bencomo testified that the pre

- tow search of the car was consistent 17
with standard police procedures set out in the Department’s written tow and 18
impound ment policy

. Under the Department’s policy, officers may consider towing 193 a vehicle when “reasonably necessary to [] safeguard the vehicle and/or its contents” 1
among other goals. This can occur in a variety of circumstances, including 2
“[w]henever the operator of [a] vehicle has been arrested , injured, or otherwise 3
incapacitated” or “[w]henever the operator of [a] vehicle is found to have suspended 4

or revoked driving privileges and there exists no properly licensed driver, designated 5
by the owner of the vehicle, readily available to drive the vehicle.” The Department’s 6
policy also clarifies the mandatory nature of a police inventory search providing that 7
“[a]ny vehicle towed at the direction of a law enforcement officer shall have a 8
complete inventory of the vehicle’s contents performed to protect the [ Department ] 9
from liability and to safeguard the property rights of the owner of the vehicle’s 10
contents” ( e mphasis added)

. 11

{6} At the close of the suppression hearing, the district court found that the car 12
was parked directly in front of the trailer that belonged to Defendant’s grandmother, 13
the registered owner of the car. Nonetheless, the district court denied Defendant’s 14
motion to suppress, concluding that, as a matter of law, both the impoundment and 15
inventory search of the car were lawful. The district court determined that law 16
enforcement (1) “ was in lawful custody and control of the vehicle based on the traffic 17
stop and arrest of Defendant, ” (2) “ followed the scope and procedure of the 18

[ Department ’s policy ]” given Defendant’s arrest
, and (3) reasonably towed 194 Defendant’s vehicle despite its location on private property. Defendant thereafter 1
pleaded guilty to possession of a controlled substance and driving with a suspended 2
or revoked license pursuant to a conditional guilty plea, reserving the right to appeal 3
the denial of his suppression motion. On appeal, the Court of Appeals reversed, 4
concluding that the State failed to satisfy any of the burdens it bears under State v. 5

Davis , 2018

- NMSC

- 001, 408 P.3d 576, and that the warrantless inventory search of 6

the vehicle was unlawful under the Fourth Amendment. State v. Ontiveros , 2022

- 7

NMCA

- 019, ¶¶ 10

- 2 4 , 508 P.3d 910. 8

{7} We granted the State’s petition for writ of certiorari to determine the 9
lawfulness under the Fourth Amendment of the inventory search conducted by the 10
police. 11

II. DISCUSSION 12

A. Standard of Review 13

{8} Appellate review of motions to suppress presents mixed questions of law and 14

fact. State v. Martinez , 2018

- NMSC

- 007, ¶ 8, 410 P.3d 186. We examine whether 15
there is substantial evidence to support the district court’s factual findings, deferring 16
to the district court’s review of the testimony and other evidence presented and 17

view ing the facts in the manner most favorable to the prevailing party

. Id. ¶¶ 3, 8. 18
Here, there is no challenge to the district court’s factual findings, which we accept 195 and view in the manner most favorable to the State, the prevailing party in the district 1
court. Applying the law to the facts, we determine de novo the constitutional 2

reasonableness of the search or seizure. State v. Urioste , 2002

- NMSC

- 023, ¶ 6, 132 3

N.M. 592, 52 P.3d 964. 4

B. The Impoundment and Inventory Doctrine 5

{9} The Fourth Amendment protects individuals from unreasonable government 6

searches. U.S. Const. amend. IV (“ The right of the people to be secure in their 7
persons, houses, papers, and effects, against unreasonable searches and seizures, 8
shall not be violated, and no Warrants shall issue, but upon probable cause, 9
supported by Oath or affirmation, and particularly describing the place to be 10
searched, and the persons or things to be seized. ”) . The ultimate touchstone of any 11

Fourth Amendm ent inquiry is reasonableness. Cady v. Dombrowski , 413 U.S. 433, 12
439 (1973); State v. Yazzie , 2019

- NMSC

- 008, ¶ 13, 437 P.3d 182. The application 13
of the Fourth Amendment’s reasonableness standard depends on the facts and 14

circumstances of each case. Cooper v. California , 386 U.S. 58, 59 (1967). The State 15
bears the burden of establishing the validity of a warrantless search, which is 16
presumed unreasonable under the Fourth Amendment. Davis , 2018

- NMSC

- 001, ¶ 17

11. 186 {10} To justify the warrantless inventory search of the vehicle Defendant was 1
driving at the time of his arrest, the State relies on the impoundment and inventory 2
doctrine, which is one of three recognized community caretaking exceptions to the 3
warrant requirement of the Fourth Amendment. See State v. Ryon , 2005

- NMSC

- 005, 4
¶ 25, 137 N.M. 174, 108 P.3d 1032. The impoundment and inventory doctrine allows 5
law enforcement to impound a vehicle and perform a warrantless inventory search 6
of the vehicle for public safety and other non

- criminal, non

- investigatory purposes. 7

See State v. Byrom , 2018

- NMCA

- 016, ¶ 10
, 412 P.3d 1109 (citing Ryon , 2005

- 8

NMSC

- 005, ¶¶ 13, 24; Cady , 413 U.S. at 441) . It is the non

- criminal nature of law 9
enforcement’s contact with citizens that gives rise to this community caretaker 10
exception. Id. ¶ 33 ; accord South Dakota v. Opperman , 428 U.S. 364, 368

- 69 (1976). 11

{11} To meet its burden, the State must demonstrate that a police officer’s decision 12
to conduct a warrantless inventory search serves a recognized community caretaking 13
function. These functions may include removing the vehicle so it is not a traffic 14
hazard or protecting it from theft or vandalism. Id. Although a police officer is not 15
required to adopt the least intrusive means available to safeguard a vehicle and its 16

contents , Colorado v. Bertine , 479 U.S. 367, 374

- 75 (1987), the inventory search 17
must nonetheless be reasonable in light of all atte ndant facts and circumstances, 18

Opperman , 428 U.S. at 375. 197 C. Impoundment and Inventory Search of Thi s Vehicle W as Unreasonable 1

{12} Police inventory searches are constitutionally reasonable if (1) the object is 2
lawfully in police control or custody, (2) the inventory of the object is made pursuant 3
to established police regulations, and (3) the search of the object is reasonable. 4

Davis , 2018

- NMSC

- 001, ¶ 12 ; State v. Williams , 1982

- NMSC

- 041, ¶ 4, 97 N.M. 5

634, 642 P.2d 1093. This three

- factor test has historically provided our courts with 6
a functional framework for analyzing whether inventory searches ar e 7
constitutionally reasonable. But as the Court of Appeals recognized, “the state of the 8
law of the impoundment and inventory doctrine has evolved from the distinctive 9

three

- part test

. . . and now focuses more generally on the reasonableness of the 10

officer ’ s asserted custody or control of the item seized and searched.” Byrom , 2018

- 11

NMCA

- 016, ¶ 26 ; see Williams , 1982

- NMSC

- 041, ¶¶ 5

- 7; State v. Boswell , 1991

- 12

NMSC

- 004, ¶¶ 8

- 14
, 111 N.M. 240
, 804 P.2d 1059

. In this context, reasonableness 13
“is a function of an officer’s responsibility to safeguard the citizen’s property and a 14
prudent officer’s need to insulate the police from liability should the citizen’s 15

prope rty be lost or stolen.” Byrom , 2018

- NMCA

- 016, ¶ 34 ; see Opperman , 428 U.S. 16

at 369; Boswell , 1991

- NMSC

- 004, ¶¶ 9

- 10; State v. Ruffino , 1980

- NMSC

- 072, ¶ 5, 17

94 N.M. 500, 612 P.2d 1311. 188 1. Police Control or Custody 1

{13} To determine whether an inventory search pursuant to a law enforcement 2

decision to tow a vehicle was reasonable, we look first to whether Defendant’s 3

vehicle was lawfully in police control or custody. Davis , 2018

- NMSC

- 001, ¶ 15. For 4
the police to have lawful custody or control of a driver’s vehicle incident to an arrest, 5

there must be a reasonable nexus between the arrest and the reason for searching the 6

vehicle. Williams , 1982

- NMSC

- 041
, ¶ 6. As our search and seizure jurisprudence 7

has developed , the proper focus of the reasonable ness of impoundment and 8
inventory is whether the object

— here a vehicle

— i s made unsecure by the arrest. 9

Davis , 2018

- NMSC

- 001, ¶ 21. Properly applied, the community caretaking doctrine 10
provides only a limited exception to the warrant requirements of the Fourth 11

Amendment. It should not be countenanced as a broad catch

- all justification for 12
warrantless inventory searches. 13

{14} We begin our analysis by determining whether the vehicle driven by 14

Defendant was made unsecure due to an increased risk of theft or vandalism as a 15
consequence of his arrest. Given the location of Defendant’s vehicle at the time of 16
his arrest and relying on the uncontested facts from the suppression hearing, we 17

conclude that it was not. 189 {15} At the time of his arrest, the vehicle driven by Defendant was legally parked 1
at the registered owner’s home. There was no evidence and there were no findings 2

that the vehicle created a hazard to other drivers where it was parked or that it was 3
made less secure by Defendant’s arrest. The State nonetheless argues that the 4
inventory search was reasonable because Defendant’s lawful arrest prevented him 5
from driving the vehicle and because there was no one else who was immediately 6
available or amenable to take possession of the vehicle given that the registered 7

owner was not on the scene and that Defendant did not respond to Officer 8
Bencomo’s inquiry about whether the passenger had a valid driver’s license. 9

{16} When no one is immediately available to take possession of a vehicle, law 10

officers may have a legitimate non

- investigatory reason to impound a vehicle and 11
conduct an inventory search , such as to protect a defendant’s property or to protect 12
themselves from claims or disputes over lost or stolen property. See, e.g.

, Jaynes v. 13

Mitchell , 824 F.3d 187, 197 (1st Cir. 2016). But those non

- investigatory reasons 14
evaporate when, as here, law enforcement knows the vehicle is legally parked at the 15
registered owner’s home. Leaving the vehicle where it was parked because no one 16

else could immediately take possession of the vehicle did not subject the vehicle or 17
Defendant’s property to an increased risk of theft or vandalism due to his arrest. Nor 18
did the police have an increased risk of claims or disputes about lost or stolen 1910 property as they generally have no community

- caretaking duty to protect a vehicle 1
parked on the owner’s property. Cf

. 3 Wayne R. LaFave, Search & Seizure: A 2

Treatise on the Fourth Amendment § 7.3(c), at 840 (6 th ed. 2020) (“If a person is 3
arrested in or at his place of residence and his car is parked in the garage or lot or 4
other place where that person ordinarily leaves his car, then the police cannot justify 5
seizure of the car on the ground that such action is needed for the protection of t he 6
vehicle and its contents.”). 7

{17} In contrast, the State appears to rely on Officer Bencomo’s testimony that the 8
vehicle was parked in an “open area” to argue that law enforcement did have a 9
community

- caretaking duty to protect the vehicle despite its being lawfully parked 10
at the registered owner’s residence. However, the State’s support for such a legal 11
duty is speculative and points to nothing in the factual record of the district court to 12
demonstrate the necessary risk to the vehicle. See Davis , 2018

- NMSC

- 001, ¶ 21. 13
The record establishes that Officer Bencomo knew that Defendant’s grandmother 14
was the registered owner of the vehicle and that the vehicle was lawfully parked at 15
her residence. Under these facts, the State’s reliance on the officer’s unexplained 16
characterization of the “open area” does not establish a legitimate
, non

- investigatory 17
reason to impound the vehicle or conduct an inventory search. 1811 {18} The State agues generally that the Court of Appeals erred by burdening law 1
enforcement with a new “comparative risk assessment tool” that improperly focuses 2
on the location of the vehicle and by concluding that Defendant’s arrest did not 3
increase the risk of loss, theft, or destruction of the vehicle he was driving

. We 4
disagree. The Court of Appeals analysis falls squarely within the reasonableness 5
parameters we most recently articulated in Davis , the case of principal reliance by 6

the State, Defen dant
, and the Court of Appeals. One specific and important focus of 7
the constitutional reasonableness inquiry in impoundment and inventory cases is 8
“whether the object is made unsecure by the arrest.” Davis , 2018

- NMSC

- 001, ¶ 21. 9
That inquiry necessarily entails an assessment of whether the location of the vehicle 10
subjects it to an increased risk of theft or vandalism because of the driver’s arrest, 11
making the vehicle’s location an important and consistently recognized factor in 12
determining whether the police have la wful control and custody of it. 13

{19} For the reasons discussed above, we conclude that th is vehicle parked at its 14

owner’s residence was not under lawful custody or control by law enforcement

. But 15

c f

. id. (“ [I] t would be ‘clearly improper for the police to simply leave’ unattended at 16
the scene of an arrest those objects belonging to an arrestee that are rendered 17
unsecure by the arrest

. ” (citation omitted) ). 1812 2. Established Police Procedures 1

{20} We next address the challenge to established police procedures. T he district 2

court’s finding that the police followed the standardized procedure set out in the 3

Department’s policy in inventorying and impounding the c ar following Defendant’s 4

arrest is supported by the record below and applicable law. 5

{21} The Department’s poli cy specifically requires that an officer’s impound ment 6
and inventory of a vehicle be “reasonably necessary” to “safeguard the vehicle 7

and/or its contents” among other goals

. That proviso sufficiently “circumscribe[s] 8

the discretion of individual officers,” Bertine 479 U.S. at 376 n.7, and the Court of 9
Appeals properly r ejected Defendant’s argument that the Department’s policy was 10
facially vio lative of the Fourth Amendment. Ontiveros , 2022

- NMCA

- 019, ¶ 19. 11

{22} However, the Court of Appeals also determined that the officer failed to 12

adhere to the Department ’s discretionary policy because he made it his own personal 13
policy always to tow v ehicles upon a driver’s arrest. Ontiveros , 2022

- NMCA

- 01 9 , ¶ 14

16. In so concluding, the Court of Appeals failed to “indulge in all reasonable 15
inferences in support of the district court’s decision and disregard all inferences or 16
evidence to the contrary.” Martinez , 2018

- NMSC

- 007, ¶ 15 (brackets and internal 17
quotati on marks omitted). 1813 {23} View ed in the manner most favorable to the State, the evidence was sufficient 1
to support a finding that the impoundment of the car was not a foregone conclusion, 2

but instead was consistent with the standardized criteria contained in the 3

Department’s tow and impound policy . These standardized criteria authorize the 4
Department’s officers to consider towing and impounding a vehicle when it is 5
“reasonably necessary to, ” among other things, “ safeguard the vehicle or its 6

contents. ” The policy also provides that an officer may consider towing a vehicle 7
when its operator has been arrested. 8

{24} As confirmed by the dash

- cam video of the encounter, Officer Bencomo’s 9

pre

- inventory questioning of Defendant included asking Defendant whether his 10
passenger had a valid driver’s license. In asking Defendant whether his passenger 11

had a valid driver’s license, it is reasonable to conclude that Officer Bencomo was 12
exercising the discretion afforded him under the Department’s policy by trying to 13
determine if someone else could take possession of the vehicle as an alternative to 14

im poundment. 15

{25} The Court of Appeals concluded that Officer Bencomo’s testimony at the 16
suppression hearing indicated that he did not adhere to the Department’s policy and 17
instead made it his policy always to tow ve hicles upon a driver’s arrest. Ontiveros
, 18

2022

- NMCA

- 019, ¶ 16. The strongest support in the record for that conclusion is 1914 Officer Bencomo’s testimony that he “ usually tr[ies] to conduct everything standard 1
with all [his] arrests and tow every

. . . car” whose driver is arrested ( e mphasis 2
added)

. But we do not view the officer’s reference to his usual approach in deciding 3

whether to impound a vehicle as sufficient evidence of a complete abandonment of 4
the governing departmental tow and impound policy when, as here, his questioning 5

of Defendant evidences the exercise of at least some consideration of whether it was 6
reasonably necessary to impound the vehicle driven by Defendant . Considering the 7
totality of the circumstances , indulging all reasonable inferences in support of the 8

district court’s decision
, and disregarding the contrary inference drawn by the Court 9
of Appeals from the officer’s reference to his impoundment

- related predilections
, 10

we conclude the police decision to impound and inventory the vehicle was consistent 11

with the standardized criteria contained in the Department’s tow and impound 12
policy. 13

3. Reasona bleness of the Impoundment and Inventory Search 14

{26} The third factor in determining whether an impoundment and inventory search 15

is valid is that it be reasonable. Davis , 2018

- NMSC

- 001, ¶ 12. An inventory search 16
is reasonable if it furthers one of the following governmental interests: “(1) to protect 17
the arrestee’s property while it remains in police custody; (2) to protect the police 18
against claims or disputes over lost or stolen property; or (3) to protect the police 1915 from potential danger.” Id. ¶ 16 (internal quotation marks and citation omitted). An 1
inventory search is not reasonable if police acted in bad faith or for the sole purpose 2
of investigating a possible crime. See Bertine , 479 U.S. at 372. 3

{27} As analyzed above, we conclude that the vehicle Defendant was driving was 4
not subject to a heightened risk of theft or vandalism due to his arrest compared to 5
any other time when the vehicle was parked at the owner’s residence without the 6

owner being immediately present. Given that there was no heightened risk to the 7
vehicle, we conclude that the vehicle did not need to be impounded and searched to 8
protect the police against possible claims or disputes over lost or stolen property. As 9
to the third community caretaking justification for a warrantless inventory search, 10

there is no claim that such a n impoundment and search was needed to protect the 11
police from potential danger and no evidence in the record of any potential danger 12
to the police were an impoundment and search not performed. Accordingly, this 13

rationale does not bear on our analysis. 14

{28} As a final observation, we note that often, as here, there may be analytical 15
overlap between a challenge to the first or second Davis factor

⸻ whether the object 16
was lawfully in police custody or control or whether the inventory was made 17
pursuant to established police regulations

⸻ and a challenge to the third factor, 18

whether the search itself wa s constitutionally reasonable. Davis , 2018

- NMSC

- 001, 1916 ¶ 27. In some circumstances, as in Davis regarding custody or control , the inquiry 1

into the first or second factor may effectively resolve th e inquiry into the third factor, 2
and little, if any, further analysis will be necessary. Id

. ¶¶ 27

- 31 ; see also State v. 3

Boswell
, 1991

- NM SC

- 0 04 , ¶ ¶ 12

- 14, 111 N.M. 240, 804 P.2d 1059 ( concluding that 4
analysis of first Davi s factor tracked facts relevant to third Davi s factor). In other 5
circumstances, such as when an individual is also or exclusively challenging the 6
scope or manner of the inventory search, the core purposes of the inventory doctrine 7
will once again guide our analysis of that particular challenge. See, e.g.
, Ruffino
, 8

1980

- NMSC

- 072 , ¶¶ 1

- 2 (challenging the inventory search of locked car trunk upon 9
the defendant’s arrest on a minor charge ); State v. Shaw , 1993

- NMCA

- 016, ¶¶ 1

- 3, 10

115 N.M. 174 , 848 P.2d 1101 (challenging the taking of individual cigarettes out of 11
their pack during a booking inventory search following the defendant’s arrest on a 12
domestic disturbance charge ); State v. Vigil , 1974

- NMCA

- 065, ¶ 4, 86 N.M. 388, 13
524 P.3d 1004 (challenging inventory search of closed paper bag in locked trunk 14
following the defendant’s arrest for assault ). While potentially repetitive, this 15
analytical overlap ensures that the impoundment and inventory search exception to 16
the Fourth Amendment remains sharply focused on the non

- criminal, non

17
investigatory justifications for the community caretaking exemption for warrantless 18

searches. 1917 III. CONCLUSION 1

{29} 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. Accordingly, we
affirm the Court of Appeals in granting Defendant’s motion to suppress
, and we

remand to the district court for further proceeding s consistent with this opinion.

{30} IT IS SO ORDERED. 2

3 BRIANA H. ZAMORA , Justice 4

WE CONCUR: 5

6 C. SHANNON BACON, Chief Justice 7

8 MICHAEL E. VIGIL , Justice 9

10 DAVID K. THOMSON , Justice 11