The slip opinion is the first version of an opinion released by the Chief Clerk of the 

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number: __________________

3 Filing Date: December 18, 2023

4 NO. S-1-SC-39186

5 STATE OF NEW MEXICO,

6 Plaintiff-Petitioner,

7 v.

8 ANDREW ONTIVEROS,

9 Defendant-Respondent.

10 ORIGINAL PROCEEDING ON CERTIORARI

11 John Dean, District Judge

12 Hector H. Balderas, Attorney General

13 Benjamin L. Lammons, Assistant Attorney General

14 Santa Fe, NM

15 for Petitioner

16 Bennett J. Baur, Chief Public Defender

17 Allison H. Jaramillo, Assistant Appellate Defender

18 Santa Fe, NM

19 for Respondent
1 OPINION

2 ZAMORA, Justice.

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

4 Amendment to the United States Constitution when, incident to an arrest, police

5 conducted a warrantless inventory search of a vehicle that was lawfully parked at 

6 the registered owner’s home. We conclude on the facts of this case that the inventory 

7 search violated Defendant’s Fourth Amendment rights and affirm the Court of 

8 Appeals.

9 I. BACKGROUND

10 {2} Officer Alvin Bencomo of the Farmington Police Department was on patrol

11 when he observed a car with a broken taillight and a cracked front windshield drive 

12 past him. To initiate a traffic stop, Officer Bencomo activated his emergency lights 

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

14 a stop. There were two men in the car: Defendant, who was driving, and his 

15 passenger. When Officer Bencomo made contact with Defendant, he ran 

16 Defendant’s name through dispatch and discovered Defendant’s license had been 

17 revoked due to a prior conviction for driving while intoxicated. After Defendant 

18 informed Officer Bencomo that the car he was driving did not have an interlock 

19 device, the officer arrested him.
2

1 {3} During the traffic stop, Defendant told the officer that the car was registered 

2 to his grandmother and that he had parked it in front of her trailer. The grandmother 

3 did not appear at the scene at any time during the police investigation. After 

4 completing a license plate check, the officer confirmed that Defendant’s 

5 grandmother owned the car Defendant was driving. Officer Bencomo testified that 

6 although he did not independently verify who owned the trailer, he knew that the car 

7 was parked in front of the grandmother’s residence.

8 {4} After the arrest, Officer Bencomo asked Defendant whether his passenger had 

9 a valid driver’s license. Instead of directly answering the question, Defendant 

10 responded by suggesting to the officer that the car should stay parked where it was 

11 in front of his grandmother’s residence. Officer Bencomo rejected Defendant’s 

12 suggestion, deciding instead to tow and impound the car for safekeeping because it 

13 was parked in an “open area” and “the registered owner was not on-scene.” In 

14 anticipation of the impoundment, the Farmington police conducted a pre-tow 

15 inventory search of the interior and trunk of the grandmother’s car. Among other 

16 contraband, the search yielded controlled substances and drug paraphernalia.

17 {5} Officer Bencomo testified that the pre-tow search of the car was consistent 

18 with standard police procedures set out in the Department’s written tow and 

19 impoundment policy. Under the Department’s policy, officers may consider towing 
3

1 a vehicle when “reasonably necessary to[] safeguard the vehicle and/or its contents”

2 among other goals. This can occur in a variety of circumstances, including 

3 “[w]henever the operator of [a] vehicle has been arrested, injured, or otherwise 

4 incapacitated” or “[w]henever the operator of [a] vehicle is found to have suspended 

5 or revoked driving privileges and there exists no properly licensed driver, designated 

6 by the owner of the vehicle, readily available to drive the vehicle.” The Department’s 

7 policy also clarifies the mandatory nature of a police inventory search providing that 

8 “[a]ny vehicle towed at the direction of a law enforcement officer shall have a 

9 complete inventory of the vehicle’s contents performed to protect the [Department] 

10 from liability and to safeguard the property rights of the owner of the vehicle’s 

11 contents” (emphasis added).

12 {6} At the close of the suppression hearing, the district court found that the car 

13 was parked directly in front of the trailer that belonged to Defendant’s grandmother, 

14 the registered owner of the car. Nonetheless, the district court denied Defendant’s 

15 motion to suppress, concluding that, as a matter of law, both the impoundment and 

16 inventory search of the car were lawful. The district court determined that law 

17 enforcement (1) “was in lawful custody and control of the vehicle based on the traffic 

18 stop and arrest of Defendant,” (2) “followed the scope and procedure of the 

19 [Department’s policy]” given Defendant’s arrest, and (3) reasonably towed 
4

1 Defendant’s vehicle despite its location on private property. Defendant thereafter 

2 pleaded guilty to possession of a controlled substance and driving with a suspended 

3 or revoked license pursuant to a conditional guilty plea, reserving the right to appeal 

4 the denial of his suppression motion. On appeal, the Court of Appeals reversed, 

5 concluding that the State failed to satisfy any of the burdens it bears under State v.

6 Davis, 2018-NMSC-001, 408 P.3d 576, and that the warrantless inventory search of 

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

8 NMCA-019, ¶¶ 10-24, 508 P.3d 910.

9 {7} We granted the State’s petition for writ of certiorari to determine the 

10 lawfulness under the Fourth Amendment of the inventory search conducted by the 

11 police.

12 II. DISCUSSION

13 A. Standard of Review

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

15 fact. State v. Martinez, 2018-NMSC-007, ¶ 8, 410 P.3d 186. We examine whether 

16 there is substantial evidence to support the district court’s factual findings, deferring 

17 to the district court’s review of the testimony and other evidence presented and 

18 viewing the facts in the manner most favorable to the prevailing party. Id. ¶¶ 3, 8.

19 Here, there is no challenge to the district court’s factual findings, which we accept 
5

1 and view in the manner most favorable to the State, the prevailing party in the district 

2 court. Applying the law to the facts, we determine de novo the constitutional 

3 reasonableness of the search or seizure. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 

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

5 B. The Impoundment and Inventory Doctrine

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

7 searches. U.S. Const. amend. IV (“The right of the people to be secure in their 

8 persons, houses, papers, and effects, against unreasonable searches and seizures, 

9 shall not be violated, and no Warrants shall issue, but upon probable cause, 

10 supported by Oath or affirmation, and particularly describing the place to be 

11 searched, and the persons or things to be seized.”). The ultimate touchstone of any 

12 Fourth Amendment inquiry is reasonableness. Cady v. Dombrowski, 413 U.S. 433, 

13 439 (1973); State v. Yazzie, 2019-NMSC-008, ¶ 13, 437 P.3d 182. The application 

14 of the Fourth Amendment’s reasonableness standard depends on the facts and 

15 circumstances of each case. Cooper v. California, 386 U.S. 58, 59 (1967). The State 

16 bears the burden of establishing the validity of a warrantless search, which is 

17 presumed unreasonable under the Fourth Amendment. Davis, 2018-NMSC-001, ¶ 

18 11.
6

1 {10} To justify the warrantless inventory search of the vehicle Defendant was 

2 driving at the time of his arrest, the State relies on the impoundment and inventory 

3 doctrine, which is one of three recognized community caretaking exceptions to the 

4 warrant requirement of the Fourth Amendment. See State v. Ryon, 2005-NMSC-005, 

5 ¶ 25, 137 N.M. 174, 108 P.3d 1032. The impoundment and inventory doctrine allows 

6 law enforcement to impound a vehicle and perform a warrantless inventory search 

7 of the vehicle for public safety and other non-criminal, non-investigatory purposes. 

8 See State v. Byrom, 2018-NMCA-016, ¶ 10, 412 P.3d 1109 (citing Ryon, 2005-

9 NMSC-005, ¶¶ 13, 24; Cady, 413 U.S. at 441). It is the non-criminal nature of law 

10 enforcement’s contact with citizens that gives rise to this community caretaker 

11 exception. Id. ¶ 33; accord South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976).

12 {11} To meet its burden, the State must demonstrate that a police officer’s decision 

13 to conduct a warrantless inventory search serves a recognized community caretaking 

14 function. These functions may include removing the vehicle so it is not a traffic 

15 hazard or protecting it from theft or vandalism. Id. Although a police officer is not 

16 required to adopt the least intrusive means available to safeguard a vehicle and its 

17 contents, Colorado v. Bertine, 479 U.S. 367, 374-75 (1987), the inventory search 

18 must nonetheless be reasonable in light of all attendant facts and circumstances, 

19 Opperman, 428 U.S. at 375.
7

1 C. Impoundment and Inventory Search of This Vehicle Was Unreasonable

2 {12} Police inventory searches are constitutionally reasonable if (1) the object is 

3 lawfully in police control or custody, (2) the inventory of the object is made pursuant 

4 to established police regulations, and (3) the search of the object is reasonable. 

5 Davis, 2018-NMSC-001, ¶ 12; State v. Williams, 1982-NMSC-041, ¶ 4, 97 N.M. 

6 634, 642 P.2d 1093. This three-factor test has historically provided our courts with 

7 a functional framework for analyzing whether inventory searches are 

8 constitutionally reasonable. But as the Court of Appeals recognized, “the state of the 

9 law of the impoundment and inventory doctrine has evolved from the distinctive 

10 three-part test . . . and now focuses more generally on the reasonableness of the 

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

12 NMCA-016, ¶ 26; see Williams, 1982-NMSC-041, ¶¶ 5-7; State v. Boswell, 1991-

13 NMSC-004, ¶¶ 8-14, 111 N.M. 240, 804 P.2d 1059. In this context, reasonableness 

14 “is a function of an officer’s responsibility to safeguard the citizen’s property and a 

15 prudent officer’s need to insulate the police from liability should the citizen’s 

16 property be lost or stolen.” Byrom, 2018-NMCA-016, ¶ 34; see Opperman, 428 U.S. 

17 at 369; Boswell, 1991-NMSC-004, ¶¶ 9-10; State v. Ruffino, 1980-NMSC-072, ¶ 5, 

18 94 N.M. 500, 612 P.2d 1311.
8

1 1. Police Control or Custody

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

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

4 vehicle was lawfully in police control or custody. Davis, 2018-NMSC-001, ¶ 15. For 

5 the police to have lawful custody or control of a driver’s vehicle incident to an arrest, 

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

7 vehicle. Williams, 1982-NMSC-041, ¶ 6. As our search and seizure jurisprudence 

8 has developed, the proper focus of the reasonableness of impoundment and 

9 inventory is whether the object—here a vehicle—is made unsecure by the arrest. 

10 Davis, 2018-NMSC-001, ¶ 21. Properly applied, the community caretaking doctrine 

11 provides only a limited exception to the warrant requirements of the Fourth 

12 Amendment. It should not be countenanced as a broad catch-all justification for 

13 warrantless inventory searches.

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

15 Defendant was made unsecure due to an increased risk of theft or vandalism as a 

16 consequence of his arrest. Given the location of Defendant’s vehicle at the time of 

17 his arrest and relying on the uncontested facts from the suppression hearing, we 

18 conclude that it was not.
9

1 {15} At the time of his arrest, the vehicle driven by Defendant was legally parked 

2 at the registered owner’s home. There was no evidence and there were no findings 

3 that the vehicle created a hazard to other drivers where it was parked or that it was 

4 made less secure by Defendant’s arrest. The State nonetheless argues that the 

5 inventory search was reasonable because Defendant’s lawful arrest prevented him 

6 from driving the vehicle and because there was no one else who was immediately 

7 available or amenable to take possession of the vehicle given that the registered 

8 owner was not on the scene and that Defendant did not respond to Officer 

9 Bencomo’s inquiry about whether the passenger had a valid driver’s license.

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

11 officers may have a legitimate non-investigatory reason to impound a vehicle and 

12 conduct an inventory search, such as to protect a defendant’s property or to protect 

13 themselves from claims or disputes over lost or stolen property. See, e.g., Jaynes v. 

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

15 evaporate when, as here, law enforcement knows the vehicle is legally parked at the 

16 registered owner’s home. Leaving the vehicle where it was parked because no one 

17 else could immediately take possession of the vehicle did not subject the vehicle or 

18 Defendant’s property to an increased risk of theft or vandalism due to his arrest. Nor 

19 did the police have an increased risk of claims or disputes about lost or stolen 
10

1 property as they generally have no community-caretaking duty to protect a vehicle 

2 parked on the owner’s property. Cf. 3 Wayne R. LaFave, Search & Seizure: A 

3 Treatise on the Fourth Amendment § 7.3(c), at 840 (6th ed. 2020) (“If a person is 

4 arrested in or at his place of residence and his car is parked in the garage or lot or 

5 other place where that person ordinarily leaves his car, then the police cannot justify 

6 seizure of the car on the ground that such action is needed for the protection of the 

7 vehicle and its contents.”).

8 {17} In contrast, the State appears to rely on Officer Bencomo’s testimony that the 

9 vehicle was parked in an “open area” to argue that law enforcement did have a 

10 community-caretaking duty to protect the vehicle despite its being lawfully parked 

11 at the registered owner’s residence. However, the State’s support for such a legal 

12 duty is speculative and points to nothing in the factual record of the district court to 

13 demonstrate the necessary risk to the vehicle. See Davis, 2018-NMSC-001, ¶ 21. 

14 The record establishes that Officer Bencomo knew that Defendant’s grandmother 

15 was the registered owner of the vehicle and that the vehicle was lawfully parked at 

16 her residence. Under these facts, the State’s reliance on the officer’s unexplained 

17 characterization of the “open area” does not establish a legitimate, non-investigatory 

18 reason to impound the vehicle or conduct an inventory search.
11

1 {18} The State agues generally that the Court of Appeals erred by burdening law 

2 enforcement with a new “comparative risk assessment tool” that improperly focuses 

3 on the location of the vehicle and by concluding that Defendant’s arrest did not 

4 increase the risk of loss, theft, or destruction of the vehicle he was driving. We 

5 disagree. The Court of Appeals analysis falls squarely within the reasonableness 

6 parameters we most recently articulated in Davis, the case of principal reliance by 

7 the State, Defendant, and the Court of Appeals. One specific and important focus of 

8 the constitutional reasonableness inquiry in impoundment and inventory cases is 

9 “whether the object is made unsecure by the arrest.” Davis, 2018-NMSC-001, ¶ 21. 

10 That inquiry necessarily entails an assessment of whether the location of the vehicle 

11 subjects it to an increased risk of theft or vandalism because of the driver’s arrest, 

12 making the vehicle’s location an important and consistently recognized factor in 

13 determining whether the police have lawful control and custody of it.

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

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

16 cf. id. (“[I]t would be ‘clearly improper for the police to simply leave’ unattended at 

17 the scene of an arrest those objects belonging to an arrestee that are rendered 

18 unsecure by the arrest.” (citation omitted)).
12

1 2. Established Police Procedures

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

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

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

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

6 {21} The Department’s policy specifically requires that an officer’s impoundment

7 and inventory of a vehicle be “reasonably necessary” to “safeguard the vehicle 

8 and/or its contents” among other goals. That proviso sufficiently “circumscribe[s] 

9 the discretion of individual officers,” Bertine 479 U.S. at 376 n.7, and the Court of 

10 Appeals properly rejected Defendant’s argument that the Department’s policy was 

11 facially violative of the Fourth Amendment. Ontiveros, 2022-NMCA-019, ¶ 19.

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

13 adhere to the Department’s discretionary policy because he made it his own personal 

14 policy always to tow vehicles upon a driver’s arrest. Ontiveros, 2022-NMCA-019, ¶

15 16. In so concluding, the Court of Appeals failed to “indulge in all reasonable 

16 inferences in support of the district court’s decision and disregard all inferences or 

17 evidence to the contrary.” Martinez, 2018-NMSC-007, ¶ 15 (brackets and internal 

18 quotation marks omitted).
13

1 {23} Viewed in the manner most favorable to the State, the evidence was sufficient 

2 to support a finding that the impoundment of the car was not a foregone conclusion, 

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

4 Department’s tow and impound policy. These standardized criteria authorize the 

5 Department’s officers to consider towing and impounding a vehicle when it is 

6 “reasonably necessary to,” among other things, “safeguard the vehicle or its 

7 contents.” The policy also provides that an officer may consider towing a vehicle 

8 when its operator has been arrested.

9 {24} As confirmed by the dash-cam video of the encounter, Officer Bencomo’s 

10 pre-inventory questioning of Defendant included asking Defendant whether his 

11 passenger had a valid driver’s license. In asking Defendant whether his passenger 

12 had a valid driver’s license, it is reasonable to conclude that Officer Bencomo was 

13 exercising the discretion afforded him under the Department’s policy by trying to 

14 determine if someone else could take possession of the vehicle as an alternative to 

15 impoundment.

16 {25} The Court of Appeals concluded that Officer Bencomo’s testimony at the 

17 suppression hearing indicated that he did not adhere to the Department’s policy and 

18 instead made it his policy always to tow vehicles upon a driver’s arrest. Ontiveros, 

19 2022-NMCA-019, ¶ 16. The strongest support in the record for that conclusion is 
14

1 Officer Bencomo’s testimony that he “usually tr[ies] to conduct everything standard 

2 with all [his] arrests and tow every . . . car” whose driver is arrested (emphasis 

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

4 whether to impound a vehicle as sufficient evidence of a complete abandonment of 

5 the governing departmental tow and impound policy when, as here, his questioning 

6 of Defendant evidences the exercise of at least some consideration of whether it was 

7 reasonably necessary to impound the vehicle driven by Defendant. Considering the 

8 totality of the circumstances, indulging all reasonable inferences in support of the 

9 district court’s decision, and disregarding the contrary inference drawn by the Court 

10 of Appeals from the officer’s reference to his impoundment-related predilections, 

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

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

13 policy.

14 3. Reasonableness of the Impoundment and Inventory Search

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

16 is valid is that it be reasonable. Davis, 2018-NMSC-001, ¶ 12. An inventory search 

17 is reasonable if it furthers one of the following governmental interests: “(1) to protect 

18 the arrestee’s property while it remains in police custody; (2) to protect the police 

19 against claims or disputes over lost or stolen property; or (3) to protect the police 
15

1 from potential danger.” Id. ¶ 16 (internal quotation marks and citation omitted). An 

2 inventory search is not reasonable if police acted in bad faith or for the sole purpose 

3 of investigating a possible crime. See Bertine, 479 U.S. at 372.

4 {27} As analyzed above, we conclude that the vehicle Defendant was driving was 

5 not subject to a heightened risk of theft or vandalism due to his arrest compared to 

6 any other time when the vehicle was parked at the owner’s residence without the 

7 owner being immediately present. Given that there was no heightened risk to the 

8 vehicle, we conclude that the vehicle did not need to be impounded and searched to 

9 protect the police against possible claims or disputes over lost or stolen property. As 

10 to the third community caretaking justification for a warrantless inventory search, 

11 there is no claim that such an impoundment and search was needed to protect the 

12 police from potential danger and no evidence in the record of any potential danger 

13 to the police were an impoundment and search not performed. Accordingly, this 

14 rationale does not bear on our analysis.

15 {28} As a final observation, we note that often, as here, there may be analytical 

16 overlap between a challenge to the first or second Davis factor⸻whether the object 

17 was lawfully in police custody or control or whether the inventory was made 

18 pursuant to established police regulations⸻and a challenge to the third factor, 

19 whether the search itself was constitutionally reasonable. Davis, 2018-NMSC-001, 
16

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

2 into the first or second factor may effectively resolve the inquiry into the third factor, 

3 and little, if any, further analysis will be necessary. Id. ¶¶ 27-31; see also State v. 

4 Boswell, 1991-NMSC-004, ¶¶ 12-14, 111 N.M. 240, 804 P.2d 1059 (concluding that 

5 analysis of first Davis factor tracked facts relevant to third Davis factor). In other 

6 circumstances, such as when an individual is also or exclusively challenging the 

7 scope or manner of the inventory search, the core purposes of the inventory doctrine

8 will once again guide our analysis of that particular challenge. See, e.g., Ruffino, 

9 1980-NMSC-072, ¶¶ 1-2 (challenging the inventory search of locked car trunk upon 

10 the defendant’s arrest on a minor charge); State v. Shaw, 1993-NMCA-016, ¶¶ 1-3,

11 115 N.M. 174, 848 P.2d 1101 (challenging the taking of individual cigarettes out of 

12 their pack during a booking inventory search following the defendant’s arrest on a 

13 domestic disturbance charge); State v. Vigil, 1974-NMCA-065, ¶ 4, 86 N.M. 388, 

14 524 P.3d 1004 (challenging inventory search of closed paper bag in locked trunk

15 following the defendant’s arrest for assault). While potentially repetitive, this 

16 analytical overlap ensures that the impoundment and inventory search exception to 

17 the Fourth Amendment remains sharply focused on the non-criminal, non18 investigatory justifications for the community caretaking exemption for warrantless 

19 searches.
17

1 III. CONCLUSION

{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 proceedings consistent with this opinion.

2 {30} IT IS SO ORDERED.

3

4 BRIANA H. ZAMORA, Justice

5 WE CONCUR:

6

7 C. SHANNON BACON, Chief Justice

8

9 MICHAEL E. VIGIL, Justice

10

11 DAVID K. THOMSON, Justice