1

Certiorari Granted, April 1, 2010, No. 32,263

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-030

Filing Date: February 8, 2010

Docket No. 28,034

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TERRY WILLIAMS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Ross C. Sanchez, District Judge

Gary K. King, Attorney General

Nicole Beder, Assistant Attorney General

Santa Fe, NM

for Appellee 

Hugh W. Dangler, Chief Public Defender

Eleanor Brogan, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

ROBLES, Judge.

{1} Terry Williams (Defendant) challenges the district court’s denial of his motion to

suppress under the Fourth Amendment of the United States Constitution and Article II,

Section 10 of the New Mexico Constitution. Additionally, Defendant claims ineffective

assistance of counsel, and that his conditional plea was not entered into knowingly,
2

voluntarily, or intelligently. We conclude that the Fourth Amendment requires suppression

and, accordingly, we do not reach Defendant’s other arguments.

I. BACKGROUND

{2} At the hearing on Defendant’s motion to suppress, Officer Simbala testified that, on

September 7, 2006, at approximately 4:00 p.m. while on patrol, he conducted a license plate

check on Defendant’s vehicle as it was parked in front of a residence. The check indicated

that Defendant was the owner. The officer knew Defendant from “three or four” previous

contacts, though he did not know it was Defendant’s car at the time he checked the license

plate. The officer then conducted a check on Defendant’s name and discovered he had an

outstanding felony warrant for his arrest. The officer then positioned himself nearby on

another street and, after waiting approximately twenty minutes, observed Defendant in his

car making a right-hand turn and driving through a stop sign without making a complete

stop. Although the windows on Defendant’s car were tinted, the officer identified Defendant

as the operator of the vehicle by seeing through the untinted front windshield as Defendant

drove toward the officer and by seeing Defendant through the driver’s side window, which

was down as Defendant passed by.

 

{3} Officer Simbala testified that, after pulling Defendant over and approaching his

vehicle, he noticed that Defendant’s shoulders were moving, his hands were not up on the

steering wheel, but were down low, and he appeared to be “fumbling around.” He testified

further that he thought Defendant was hiding something or grabbing a weapon. After

making contact with Defendant and obtaining his “information,” the officer again conducted

a background check and confirmed the existence of an outstanding felony warrant. Officer

Stephenson arrived on the scene. Officer Simbala asked Defendant to step out of the vehicle,

placed him under arrest, and then handcuffed him. At that time, Officer Simbala noticed that

Defendant’s pants were unzipped, and “half of his shirt was sort of pulled through it.”

Defendant was placed between the two police cars on the side of the street, and Officer

Simbala performed a search of Defendant. Officer Simbala testified that, although he

performed a pat-down of Defendant, which did not reveal anything he believed was a

weapon, he faced Defendant, grabbed and shook his waistband, pulled the front of his pants

outward six to eight inches, looked down, and observed and seized a plastic bag containing

crack cocaine and heroin next to Defendant’s genitals. At the time of the search, Officer

Simbala was wearing gloves, and Officer Stephenson, a female, was standing behind

Defendant and had “no way of seeing anything.” Officer Simbala did not testify about the

traffic conditions on the street at the time, whether there were members of the public

watching the incident, or whether the public’s view was obstructed during the search.

Defendant testified on his own behalf and stated that the search was conducted around 4:25

in the afternoon at a “very busy intersection” with “hundreds and hundreds of people driving

by.”

 

{4} At the end of the suppression hearing, the district court found there was probable

cause for the officer to stop Defendant and found the search incident to his arrest was a
3

lawful search. Five days following the district court’s denial of the motion to suppress,

Defendant entered a plea of no contest to trafficking by possession with intent to distribute,

reserving the right to appeal the denial of his motion to suppress.

 

II. DISCUSSION

{5} On appeal, Defendant argues that (1) the search incident to his arrest was

unreasonable under the Fourth Amendment and Article II, Section 10 of the New Mexico

Constitution; (2) his trial counsel was ineffective; (3) his plea was not entered into

knowingly or voluntarily; and (4) this Court should allow him to withdraw his plea and

proceed to trial instead. We agree that the search was unreasonable under the Fourth

Amendment, and we will not discuss Defendant’s other issues.

{6} An appellate court’s review of a district court’s ruling on a motion to suppress

represents a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8, 144

N.M. 371, 188 P.3d 95. This Court will indulge all reasonable inferences that support the

district court’s decision, and all contrary evidence and inferences will be dismissed. State

v. Vandenberg, 2003-NMSC-030, ¶¶ 17-18, 134 N.M. 566, 81 P.3d 19. However, whether

the district court correctly applied the facts to the law is reviewed under a de novo standard.

State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

{7} The Fourth Amendment of the United States Constitution, made applicable to the

State of New Mexico through the Fourteenth Amendment, guarantees individuals the right

to be secure in “their persons, houses, papers, and effects, against all unreasonable searches

and seizures.” Mapp v. Ohio, 367 U.S. 643, 646-47 (1961) (internal quotation marks and

citation omitted); see Bell v. Wolfish, 441 U.S. 520, 558 (1979) (“The Fourth Amendment

prohibits only unreasonable searches[.]”). Likewise, Article II, Section 10 of the New

Mexico Constitution protects the right of the people to be free from unreasonable searches

and seizures. State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18. Both the

New Mexico and United States Constitutions provide overlapping protection against

unreasonable searches, so we apply the interstitial approach. Rowell, 2008-NMSC-041, ¶

12. Under this approach, we first consider whether the United States Constitution “makes

the challenged police procedures unlawful under the United States Constitution [and i]f so,

the fruits usually must be suppressed [and i]f not, we next consider whether the New Mexico

Constitution makes the search unlawful.” Id. (citations omitted). We conclude that this

search was unreasonable under the United States Constitution, and we therefore do not

analyze the issue under our state constitution.

 

{8} Because a warrantless search or seizure is presumed to be unreasonable, the State has

the burden of showing that the search or seizure was justified by an exception to the warrant

requirement. State v. Vasquez, 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct. App. 1991).

Recognized exceptions to the warrant requirement include exigent circumstances, consent,

searches incident to arrest, plain view, inventory searches, open field, and hot pursuit. State

v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807, modified by State v. Gallegos,
4

2007-NMSC-007, 141 N.M. 185, 152 P.3d 828. While the immediate case falls within the

search incident to arrest exception, and Defendant does not challenge his arrest, he does

challenge the reasonableness of the search that was conducted pursuant to his arrest.

 

{9} Full warrantless searches of persons and their clothing, incident to any lawful arrest,

regardless of the circumstances leading up to the arrest, are not unreasonable. United States

v. Robinson, 414 U.S. 218, 235 (1973). The justification for such broad searches incident

to an arrest has been to allow officers to disarm arrestees in order to take them into custody

and to prevent the destruction or concealment of evidence. Id. at 234; see Chimel v.

Calfornia, 395 U.S. 752 (1969). However, even in searches such as this, the Fourth

Amendment protects an arrestee’s privacy interests in his person and prohibits intrusions that

are not justified under the circumstances. See Bell v. Wolfish, 441 U.S. 520, 558-59 (1979)

(concluding that the Fourth Amendment to the United States Constitution prohibits

unreasonable searches and requires a consideration of the circumstances in relation to the

need for the particular search).

{10} In the instant case, Defendant asserts that the search underneath his clothing was not

justified under the circumstances and was an unreasonable strip search. At the outset, we

note that the United States Supreme Court has yet to address strip searches incident to an

arrest. In Illinois v. Lafayette, the Court explicitly stated that “[w]e were not addressing .

. . and do not discuss here, the circumstances in which a strip search of an arrestee may or

may not be appropriate.” 462 U.S. 640, 646 n.2 (1983).

 

{11} The First Circuit in Blackburn v. Snow noted that there are generally three types of

strip searches:

 

A “strip search,” though an umbrella term, generally refers to an

inspection of a naked individual, without any scrutiny of the subject’s body

cavities. A “visual body cavity search” extends to visual inspection of the

anal and genital areas. A “manual body cavity search” includes some degree

of touching or probing of body cavities. 

771 F.2d 556, 561 n.3 (1st Cir. 1985). Strip searches, therefore, have usually referred to the

removal of the arrestee’s clothing for inspection of the body. Black’s Law Dictionary

defines a strip search as “[a] search of a person conducted after that person’s clothes have

been removed, the purpose usu[ally] being to find any contraband the person might be

hiding.” Black’s Law Dictionary, 1378-79 (8th ed. 2004). Some courts have determined

that a “reach-in” search, where an individual remains clothed and the genitals are not

exposed to onlookers, is something less than a “strip search.” See United States v. Williams,

477 F.3d 974, 976-77 (8th Cir. 2007) (contrasting cases where a suspect is forced to expose

“private areas” in a public place, and holding that a reach-in search was permissible because

the police took “steps commensurate with the circumstances to diminish the potential

invasion of the suspect’s privacy,” and concluding that a reach-in search of a clothed suspect

is something less than a “full-blown strip search”); Jenkins v. State, 978 So. 2d 116, 126-28
5

(Fla. 2008) (concluding that where an officer “merely pulled the boxer shorts away from [the

suspect’s] body at the waist area and looked inside to discover the cocaine” and no body

parts were publicly exposed, the search was not a strip search); but see State v. Nieves, 861

A.2d 62, 70 (Md. 2004) (acknowledging that a strip search is “any search of an individual

requiring the removal or rearrangement of some or all clothing to permit the visual

inspection of the skin surfaces of the genital areas, breasts, and/or buttocks” (internal

quotation marks and citation omitted)); State v. Jenkins, 842 A.2d 1148, 1156 (Conn. App.

Ct. 2004) (stating that a “reach-in” search is a type of “strip search”).

{12} After a review of the case law, we conclude that this is not a strip search, and how

a reach-in search is categorized will not affect the analysis. The focus of our inquiry should

be on whether the search was reasonable under the circumstances. The touchstone of Fourth

Amendment analysis is the reasonableness of the governmental invasion of a citizen’s

personal security. Terry v. Ohio, 392 U.S. 1, 12 (1968). Although an officer of the law may

have the right to search a suspect following an arrest, the search must still be reasonable.

Fontaine v. State, 762 A.2d 1027, 1032-33 (Md. Ct. Spec. App. 2000) (“While the legal

arrest of a person should not destroy the privacy of his premises, it does for at least a

reasonable time and to a reasonable extent take his own privacy out of the realm of

protection from police interest in weapons, means of escape, and evidence. However, the

right of police to make an unqualified search of an arrestee’s person incident to an arrest is

nevertheless limited in that any such search must still be reasonable.” (internal quotation

marks and citation omitted)). Reasonableness determinations can be elusive because

“reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application.” Bell, 441 U.S. at 559. In determining the reasonableness of a

search, each case requires a balancing of the government’s need to conduct the search

against the invasion of the individual’s privacy rights. Id. Reviewing courts have

considered (1) the scope of the particular intrusion, (2) the manner in which it is conducted,

(3) the justification for initiating it, and (4) the place in which it is conducted. Id.

Accordingly, we follow other courts who have adopted the Bell factors in similar situations.

See Jenkins, 842 A.2d at 1157; Paulino v. State, 924 A.2d 308, 316-17 (Md. 2007); Nieves,

861 A.2d at 73; Fontaine, 762 A.2d at 1033.

{13} The justification for initiating the search in the instant case is inexorably tied with

the scope of the intrusion as it was conducted. Accordingly, we analyze these two factors

together. New Mexico courts have previously held that an officer needs no reason to

conduct a search incident to an arrest. Rowell, 2008-NMSC-041, ¶ 25 n.1 (“Given the

exigencies always inherent in taking an arrestee into custody, a search incident to arrest is

a reasonable preventative measure to eliminate any possibility of the arrestee’s accessing

weapons or evidence, without any requirement of a showing that an actual threat exists in

a particular case.”). However, other courts have concluded that a justified warrantless search

does not by itself give rise to the automatic right for a more intrusive search such as a reachin. See, e.g., United States v. Bazy, 1994 WL 539300, at *5 (D. Kan. 1994) (mem. and

order). A majority of courts have determined that an officer needs additional reasonable

suspicion in order to conduct the more intrusive search. See, e.g., Jenkins, 842 A.2d at 1156
6

(“It has been recognized that under the [F]ourth [A]mendment to the [United States

C]onstitution, officers are permitted to strip[]search an individual when, subsequent to a

lawful arrest and patdown, they have a reasonable suspicion that the individual is carrying

a weapon or contraband.”). In People v. Jennings, the court concluded:

Strip searches of arrestees charged with misdemeanors or other minor

offenses violate the Fourth Amendment of the United States Constitution

unless there is a reasonable suspicion that the arrestee is concealing weapons

or contraband based on the crime charged, the particular characteristics of the

arrestee, or the circumstances of the arrest.

747 N.Y.S.2d 235, 236 (N.Y. App. Div. 2002); see Sarnicola v. County of Westchester, 229

F. Supp. 2d 259, 270 (S.D.N.Y. 2002) (“While the Second Circuit has not spoken directly

to the appropriate test for the validity of a strip search incident to a felony arrest, this [c]ourt

recently opined that the [c]ourt of [a]ppeals would apply the particularized reasonable

suspicion test to searches of felony arrestees as well, rather than permitting strip searches of

all felony arrestees solely because they had been arrested for a felony.”).

 

{14} In the instant case, Defendant asserts that “Officer Simbala lacked any reasonable

suspicion that [Defendant] was concealing evidence underneath his clothing and therefore

lacked any justification” for the search. We do not agree. “Reasonable suspicion must be

based on specific articulable facts and the rational inferences that may be drawn from those

facts.” State v. Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (internal

quotation marks omitted) (quoting State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920

P.2d 1038). “In determining whether reasonable suspicion exists, we examine the totality

of the circumstances.” Duran, 2005-NMSC-034, ¶ 23 (internal quotation marks and citation

omitted). “[I]n determining whether the officer acted reasonably in such circumstances, due

weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to

the specific reasonable inferences which he is entitled to draw from the facts in light of his

experience.” Terry, 392 U.S. at 27. In the instant case, Officer Simbala testified that he

observed Defendant moving in his vehicle as the officer approached. He testified further he

suspected Defendant was getting a weapon or hiding something, that when Defendant exited

the car, his pants were open with his shirt pulled through his zipper, and these actions led the

officer to believe that Defendant may have been hiding something on his person. Defendant,

however, testified in his own defense that his belt buckle may have been undone, but his

pants were not, and Officer Simbala stated, “[l]et’s see what you have” and lifted up his shirt

and unbuttoned and opened his pants. Under our standard of review, we defer to the factual

findings of the district court. The district court found the officer’s testimony credible, and

we are, therefore, unwilling to second-guess the district court’s finding. In ruling, the district

court was in a superior position to evaluate the credibility of the testimony. Although there

may have been conflicting factual evidence regarding the justification and scope of the

search, we will indulge all reasonable inferences that support the district court’s factual

findings and disregard all evidence that supports the contrary. Accordingly, we conclude
7

that, under the circumstances, there was sufficient justification to search Defendant, and the

search was tailored to accommodate the reasons for the justification.

 

{15} Defendant also argues that the area searched was not within his immediate control

and that once he was placed in handcuffs the situation was neutralized and there was no need

for the search. However, the potential for the destruction of evidence may be diminished

when an individual is in custody, but it is not eliminated, and an officer may assume the

initiative by seizing contraband that an individual has chosen to hide in his underwear.

Williams, 477 F.3d at 975. Our cases have previously held:

 

Our search incident to arrest exception is a rule of reasonableness

anchored in the specific circumstances facing an officer [and d]eciding

whether there is a reasonable threat of a suspect being able to gain access to

an area to get a weapon or evidence is the kind of decision officers are

trained to make. 

Rowell, 2008-NMSC-041, ¶ 24; State v. Martinez, 1997-NMCA-048, ¶ 7, 123 N.M. 405, 940

P.2d 1200 (“Even a handcuffed arrestee may be foolhardy enough to try to seize a nearby

firearm.”). In the immediate case, we cannot say that the reasons and justifications for the

search, and the narrow scope of the intrusion in direct response to those justifications, were

unreasonable under the unusual circumstances. Defendant’s own conduct gave rise to the

inference that something was hidden in the front of his pants.

{16} We next turn to the remaining Bell factors and consider the manner and place in

which the search of Defendant was conducted. Our scope of inquiry is a narrow one.

Specifically, we ask whether the facts as they were established in the district court justify the

search as it was conducted. Defendant argues that no measures were taken to ensure his

privacy interests, and the search was done in an unreasonable public location. The record

reveals that, following the traffic stop, the search took place between two cars at

approximately 4:25 p.m. We note that courts have taken into consideration whether

individuals had their “private areas” exposed to the public, United States v. Williams, 209

F.3d 940, 943 (7th Cir. 2000), the location of the search, United States v. Ashley, 37 F.3d

678, 682 (D.C. Cir. 1994), the exigent circumstances justifying conducting the search, Bazy,

1994 WL 539300, *6, and whether any steps were taken to protect the individual’s privacy,

State v. Smith, 454 S.E.2d 680, 687 (N.C. Ct. App. 1995), rev’d and dissent adopted, 464

S.E.2d 45 (N.C. 1995) (order), cert. denied, 517 U.S. 1189 (1996). We begin by noting that

Officer Simbala testified that nobody other than he and Defendant could see Defendant’s

genitals, and Defendant did not dispute this assertion. We therefore will focus our analysis

on the location of the search, exigent circumstances, and measures taken to preserve privacy.

Together, these factors attempt to balance the tension between the need for a particular

search and the invasion of personal rights. See Bell, 441 U.S. at 558.

{17} The State argues that steps were taken to protect Defendant’s privacy. However,

Defendant argues that Officer Simbala never testified that any measures were taken to ensure
8

that the search would be out of the view of passing cars. A review of the record reveals that

the issue of whether steps were taken to minimize Defendant’s exposure was never brought

up at the suppression hearing. We note, however, that Defendant admits he was placed

between two cars before the search began and testified that Officer Stephenson was not

nearby when the search took place.

 

{18} In Lafayette, the United States Supreme Court noted that police conduct “that would

be impractical or unreasonable[]or embarrassingly intrusive[]on the street[,] can more

readily[]and privately[]be performed at the station. For example, the interests supporting a

search incident to arrest would hardly justify disrobing an arrestee on the street.” 462 U.S.

at 645. Extra caution has been placed on strip searches because they can be degrading and

invasive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (en

banc) (noting that “strip searches involving the visual inspection of the anal and genital areas

[are] demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant,

embarrassing, [and] repulsive, signifying degradation and submission” (internal quotation

marks and citation omitted)); Deserly v. Dep’t of Corrections, 2000 MT 42, ¶ 19, 298 Mont.

328, ¶ 19, 995 P.2d 972, ¶ 19 (noting that being strip searched “is an embarrassing and

humiliating experience” (internal quotation marks and citation omitted)). While a reach-in

search may be something less than a strip search, it is clear that they are not a matter of

course for searches incident to an arrest, and they often do involve a visual inspection and/or

touching of intimate areas. The court in Bazy concluded that a search of two suspects on the

side of the road between parked police cars was a public search, and it was intrusive. 1994

WL 539300, at *8. The court confirmed that a public and intrusive search is not

commonplace and should be reserved for only the most unusual cases. Id. In that case,

earlier attempts by the detained suspects to conceal evidence by kicking multiple packages

of drugs out of their pants and under vehicles created sufficient exigencies that justified the

search. Id. at *3, 6. Additionally, the officers testified that the search was conducted

between two parked cars to protect the suspects’ modesty, and an officer obstructed the

public’s view. Id. at *7.

 

{19} We observe that other cases have taken into consideration the specific steps officers

have taken to protect a suspect’s modesty when exigent circumstances were lacking, or

where exigent circumstances were weighed against the location of the search. See Williams,

477 F.3d at 976-77 (allowing a reach-in search of a suspect where police drove him several

blocks to a parking lot in a residential area); Williams, 209 F.3d at 943 (holding that a reachin search on the side of the road at night where the suspect was never disrobed or exposed

to public view was no greater an intrusion than would have occurred at a police station);

United States v. Gordon, 2008 WL 3540007, at *1 (D. Utah 2008) (mem. and order) (finding

reasonable steps taken to protect privacy where a reach-in search occurred at night on the

passenger side of a vehicle); Jenkins, 842 A.2d 1148 (walking the suspect to the side of a

building and conducting a reach-in search struck the proper balance between the need for the

search, and the manner in which it was conducted); Smith, 454 S.E.2d at 682 (holding that

the search was not unreasonable where suspect’s pants were pulled down in between an

officer and an open car door at night); Ashley, 37 F.3d at 679 (determining that precautions
9

were taken to ensure that the suspect was not subjected to public embarrassment when a

reach-in search was conducted at the side of a bus station).

{20} In this case, we are mindful of the fact that the search was conducted in broad

daylight at rush hour on the side of a street. We cannot say that the search was not

witnessed, that the officers took steps commensurate with the circumstances to diminish the

potential invasion of Defendant’s privacy, or that the exigencies of the situation demanded

that the search be done in the moment and fashion that it was conducted. The district court

made no findings of fact regarding the location or the manner of the search, and the officer

did not testify about the reasonableness of the location. From the record, it is not clear to

this Court whether this intrusive and public search of Defendant was conducted in view of

the public, or whether members of the public observed the search. From the testimony, we

conclude that the facts of this case do not demonstrate the necessity for the immediate search

in public under the totality of the circumstances, and the record is devoid of any exigency

that would justify a search in this location. While the availability of less intrusive means

does not automatically transform an otherwise reasonable search into a Fourth Amendment

violation, the lack of a demonstrated exigency and the public location in broad daylight

during rush hour simply does not justify the reasonableness of this search’s location or

manner. Lafayette, 462 U.S. at 647. The State did not carry its burden to demonstrate that

this particular situation required or allowed the officers to conduct this particular search in

this particular manner because of exigency or location.

{21} In this case, it is not clear that the district court even considered the reasonableness

of the location, or the manner in which the search was conducted. There is no evidence in

the record regarding whether (1) Defendant was standing perpendicular or parallel to traffic,

(2) traffic was at a gridlock or passing by at a high rate of speed, or (3) there were

pedestrians in the vicinity. The only evidence regarding details of the location of the search

came from Defendant, who stated that it was a busy intersection, and there were hundreds

of people driving by. While we will indulge in reasonable, factual inferences that support

the district court’s decision, the inferences in this case are not reasonable and tend to support

the conclusion that passers-by witnessed this search. Whether the district court correctly

applied the facts to the law is reviewed under a de novo standard. Urioste,

2002-NMSC-023, ¶ 6. The United States Constitution protects individuals from

unreasonable and intrusive searches in public. Without evidence of an exigent situation, we

decline to interpret the Constitution in a manner that would allow public intrusive searches

as the norm. Government actors must have a healthy respect for a suspect’s privacy

interests. Under the circumstances, absent an affirmative showing of the reasonableness of

a search, the State has failed to carry its burden.

 

{22} As a final matter, we address the Dissent. The Dissent begins by questioning

whether this matter was preserved. Although it is noted that the State never questioned the

issue of preservation in its answer brief, and it is generally not appropriate for this Court to

raise preservation sua sponte, the Dissent nevertheless concludes that we should be hesitant
10

to make new law on a less than “fully developed” record. We make several observations

about this.

{23} First, it would appear from the record that Defendant believed that this particular

search violated his rights and that his counsel disagreed. The record reveals that Defendant

filed a pro se motion for new counsel and, at the hearing on that motion, the point of

contention was that Defendant thought his counsel should file a motion to suppress because

the search was an unreasonable strip search, and his counsel thought otherwise. His counsel

stated that she thought the search was a standard search incident to arrest, and there was no

merit in a suppression motion. In his own defense, Defendant stated to the court:

[My attorney] wants me to believe by me having a warrant that I don’t have

any rights and that the officer had the right to open my pants and go through

my underwear and put his hand down in my private areas searching for

contraband in front of hundreds of people. That’s not a reasonable search

and what an unreasonable search produces doesn’t make it reasonable. 

So I’m not arguing that he didn’t have a right to search me. He can

search me, but he can’t open up my clothes and go inside my private areas

for contraband and do a strip search on a city street corner. And that’s the

difference between me and [my attorney].

{24} At the end of the hearing, the court allowed substitute counsel. Several months later,

Defendant’s new counsel filed a motion to suppress that was written by Defendant acting pro

se. The clearly worded motion expressed the substance of Defendant’s argument—that a

public strip search is unreasonable. We also note that the State filed a response to

Defendant’s pro se motion to suppress, in which the State argued directly on point that the

search was made pursuant to a lawful arrest. All parties should have been aware that the

heart of the motion to suppress was the extent to which the officer conducted his search, and

the extent to which such a search was reasonable in public.

 

{25} On appeal to this Court, one of Defendant’s contentions is that he received

ineffective assistance of counsel. His claims include that his attorney failed to file a motion

on his behalf, which forced Defendant to file his own pro se motion; and that his attorney

failed to argue the substance of his motion at the suppression hearing. Because we conclude

that the issue was clearly preserved and dispositive, we have declined to reach the ineffective

assistance of counsel claim.

{26} To the extent that the Dissent argues that the record is deficient and this Court should

therefore not address the issue, we disagree. The burden is on the State to make a sufficient

record. A defendant should not be required to spot the issues, file the motions, and direct

arguments of counsel. The lack of any development is testament to the State’s failure.
11

{27} Next, the Dissent points out that the officer had reasonable suspicion to look in

Defendant’s pants; a point with which we agree. However, the officer testified that the

search into Defendant’s pants occurred after the pat-down and that the pat-down did not

reveal anything that led the officer to believe that he had a “weapon of any kind.” The facts

as established do not demonstrate a showing of exigent circumstances sufficient to justify

searching Defendant in the intrusive and public manner that occurred. No facts were

established by the State that Defendant was suspected of having a weapon after the patdown, or that he had attempted to destroy evidence. We therefore cannot hold that the mere

suspicion of possession of contraband, without more, is sufficient to create exigency that

would allow public searches of this nature.

III. CONCLUSION

{28} For the reasons stated above, we reverse the district court’s denial to suppress and

remand for further proceedings consistent with this Opinion.

{29} IT IS SO ORDERED.

____________________________________

ROBERT E. ROBLES, Judge

I CONCUR:

____________________________________

RODERICK T. KENNEDY, Judge

CYNTHIA A. FRY, Chief Judge, dissenting

FRY, Chief Judge (dissenting).

{30} I do not agree that the district court’s denial of Defendant’s suppression motion

should be reversed. I do not think that Defendant adequately preserved his argument that

the circumstances of the search were unreasonable. In addition, even if Defendant had

properly preserved his challenge, I would conclude that the search as undertaken struck the

appropriate balance between Defendant’s privacy interests and the public’s interest in safety

and the preservation of evidence.

{31} The transcript of the suppression hearing establishes that the litigants and the district

court did not focus on the reasonableness of the search. Instead, the testimony and counsel’s

arguments surrounded the validity of the traffic stop. The testimony comprises forty-three

pages of the transcript, and of those forty-three pages, only seven pages contain testimony

regarding the circumstances surrounding the search. Defense counsel’s closing argument
12

comprises almost three pages of the transcript, yet the only argument made regarding the

search consisted of the following sentences: “The search, itself[,] was overly intrusive. . .

. [T]here was no reason for him to put his hand down [Defendant’s] pants, and fumble

around his private areas looking for drugs.” Defense counsel made no argument at all about

the area where the search took place, and he certainly did not contend that the officers failed

to take reasonable steps to protect Defendant’s privacy. Defense counsel did not cite a single

case on the issue of strip searches or reach-in searches.

{32} Generally speaking, I do not think it is appropriate for this Court to raise lack of

preservation on our own initiative because I view that to be the responsibility of the appellee,

and the State does not raise this issue in this case. However, on a record as deficient as this

one, I believe we should be reluctant to establish the constraints on the police officer’s

conduct that the majority has adopted. This is an issue of first impression in New Mexico

jurisprudence, and I think we should make new law only on the basis of a fully developed

record.

{33} That being said, even if Defendant’s offhand argument below could be deemed

adequate preservation, I would conclude that the search was reasonable under the

circumstances. The testimony of the only witness found to be credible, Officer Simbala,

established reasonable suspicion (acknowledged by the majority) that Defendant may have

concealed a weapon or contraband in his pants. Defendant was placed between the police

car and Defendant’s vehicle, and Officer Simbala then pulled the waistband of Defendant’s

pants out—not down. Defendant himself acknowledged that only he and Officer Simbala

could see Defendant’s genitals. Upon seeing the baggy in Defendant’s underwear, Officer

Simbala reached in with a gloved hand and removed the baggy. Given the possibility that

Defendant might have concealed a gun in his pants, it was reasonable for Officer Simbala

to find and remove the concealed item immediately after he arrested Defendant and certainly

before attempting to transport Defendant in the patrol car. See Rowell, 2008-NMSC-041,

¶ 13 (explaining that “searches incident to arrest have been considered reasonable because

of the practical need to prevent the arrestee from destroying evidence or obtaining access to

weapons”). In my view, this possibility constituted an exigency supporting the search as it

was conducted. Even if the officers could have walked Defendant to a more private location

before conducting the search, “[t]he reasonableness of any particular governmental activity

does not necessarily or invariably turn on the existence of alternative less intrusive means.”

Lafayette, 462 U.S. at 647 (internal quotation marks omitted). As the court noted in Bazy,

“[w]hile plainly more than a pat-down search, the intrusion here was still limited in scope.

[D]efendant . . . was not required to disrobe or to submit to a visual body cavity search.”

1994 WL 539300, *7. Consequently, I would hold that Officer Simbala’s search struck the

appropriate balance between Defendant’s privacy interests and concern for the public’s

safety and the preservation of evidence. I would affirm.

 

CYNTHIA A. FRY, Chief Judge
13

Topic Index for State v. Williams, No. 28,034

AE APPEAL AND ERROR

AE-PA Preservation of Issues for Appeal

CT CONSTITUTIONAL LAW

CT-FA Fourth Amendment

CT-PR Privacy 

CT-SU Suppression of Evidence

CL CRIMINAL LAW

CL-CL Controlled Substances

CA CRIMINAL PROCEDURE

CA-EC Exigent Circumstances

CA-MR Motion to Suppress

CA-SZ Search and Seizure

CA-SR Search Incident to Arrest

CA-WA Warrantless Arrest

CA-WS Warrantless Search

EV EVIDENCE

EV-SU Suppression of Evidence