IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filing Date: March 25, 2009 2 NO. 31,049 3 STATE OF NEW MEXICO , 4 Plaintiff-Appellee, 5

v. 6 KAREN SMALLWOOD , 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 9 Michael Eugene Vigil, District Judge 10 Hugh W. Dangler, Chief Public Defender 11 Lelia Lorraine Hood, Assistant Public Defender 12 Santa Fe, NM 13 for Appellant 14 Gary K. King, Attorney General 15 Nicole Beder, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 DECISION 19 SERNA, Justice. 20 {1} Karen Smallwood (Defendant) pled no contest to felony murder, NMSA 1978, 21 § 30-2-1(A)(2) (1963), though she reserved her right to appeal the district court’s 222 denial of her motion to suppress. She ar gues that the warrantless seizure of her car 1 was unreasonable under both the New Mexico and federal constitutions and that the 2 warrant authorizing the search of her car was not supported by probable cause. See 3 U.S. Const. amend IV; N.M. Const. Art. II, § 10. We affirm. 4 I. FACTS 5 {2} On October 13, 2004, UrsulaDuran (Victim) was found shot to death at her 6 aunt and uncle’s house in Santa Fe. Ni ne millimeter projectiles and casings were 7 found at the scene. Victim’s purse, chec kbook, ATM card, keys, and a roll of quarters 8 were missing from the house. 9 {3} When Detective Bill Johnson obtained Vic tim’s bank records, they showed that 10 there had been multiple ATM withdrawals s ubsequent to the time of Victim’s death, 11 one just minutes after the time that police su spected Victim was shot. In viewing the 12 surveillance videos from three ATM machin es, police identified Defendant as the 13 individual using Victim’s ATM card. Inone of the videos , Defendant was seen 14 driving a silver 1997 Saturn with Arizona license plate 390KMM. 15 {4} An informer, Sharon Clahchischillage, told Detective Johnson that Defendant 16 had a storage unit in Santa Fe and that she possibly had been sleeping in it. 17 Clahchischillage also told police that whenshe knew Defendant inthe past, Defendant 18 had shown her a semi-automaticpistol that she owned. Another informer, Elizabeth 19 Findling, told Detective Johnson that Defe ndant had mentioned th at “she would live 20 in a storage shed if she could get away with it.” 213 {5} Investigators confirmed that Defendant had a storage unit and identified its 1 location. The storage facility’s records show ed that Defendant entered the storage unit 2 approximately one-half hour after the time th at police suspected Victim was shot and 3 when Defendant first used Victim’s ATM card. At that time, De fendant paid several 4 months’ rental fee for her unit in cash. The records also showed that Defendant 5 entered the storage unit early the followi ng morning after another use of Victim’s 6 ATM card. 7 {6} After obtaining a search warrant for Defendant’s storage unit, Detective 8 Johnson entered it and found nearly two hundred spent nine millimeter casings and 9 projectiles. He also found information leading to a relative of Defendant in New York 10 who provided an address where Defendant wa s staying with other family members in 11 Florida. 12 {7} Detective Johnson contacted Florida law enforcement and requested assistance 13 in locating and arresting Defendant pursuant to an outstanding arrest warrant for the 14 fraudulent use of Victim’s ATM card. 15 {8} At 8:00 p.m. on Friday, October 29, 2004, Florida law enforcement officers 16 went to the address where they believed De fendant was staying to check whether her 17 vehicle was there. The vehicle was there, though it is unclear from the record whether 18 it was located on the street or on Defendant’s relatives’ property. There is no 19 evidence that the vehicle was parked illegallyor otherwise subject to removal. When 20 the officers consulted vehicle registration records, the car was listed as belonging to 214 Defendant. 1 {9} The officers knocked on the door of the residence and Defe ndant’s relative 2 answered. The relative confirmed that Defe ndant was inside and gave his consent for 3 the officers to enter and arrest Defendant and to search and seize her belongings in the 4 home. 5 {10} At 9:40 p.m., though they did not have a warrant to seize Defendant’s vehicle, 6 the officers had the vehicle towed to the county sheriff’s office, per the request of 7 Detective Johnson from Santa Fe. Detective Johnson later testified that he directed 8 the Florida police to seize the vehicle w ithout a warrant because he was unfamiliar 9 with the process of obtaining a warrant over the weekend in Florida and he wanted to 10 be present when the vehicle was searched. The vehicle was apparently not searched 11 over the weekend. Detective Johnson flew to Florida and, on the morning of Monday, 12 October 31, 2004, assisted the Florida po lice with obtaining a search warrant for 13 Defendant’s car. The ensuing search produced evidence inculpating Defendant in 14 both Victim’s murder and the unauthorized use of Victim’s ATM card, including a 15 nine millimeter pistol, ammunition, and eight hundred dollars in twenty dollar bills. 16 {11} Defendant was indicted for murder, aggravated burglary, two counts of 17 unauthorized ATM withdrawl, and tamperi ng with evidence. Defendant moved to 18 suppress the evidence that the police obt ained through the warrantless seizure and 19 subsequent search of her car. The district court denied the motion, concluding that the 20 seizure and search were reasonable. De fendant entered a conditional no contest plea 215 to felony murder and reserved her right toappeal the suppression issue. She was 1 sentenced to life. 2 II. DISCUSSION 3 A. The Warrantless Seizure of Defendant’s Car Was Reasonable 4 {12} Defendant argues that the seizure of her car was unreasonable under both the 5 Fourth Amendment of the U.S. Constituti on and Art. II, Section 10 of the New 6 Mexico Constitution because police did not have a warrant and no exception applies. 7 {13} The State has the burden of showing thata particular seizure was reasonable. 8 State v. Vasquez , 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct. App. 1991). Warrantless 9 seizures are per se unreasonable unless an exception to the warrant requirement 10 applies. Id. at 367, 815 P.2d at 663. The exception applicable here is the automobile 11 exception, which allows warrantless seizures or searches of vehicles under exigent 12 circumstances when police have probabl e cause to believe that the fruits or 13 instrumentalities of crimes are contained therein. See Carroll v. United States , 267 14 U.S. 132, 149 (1925). Thus, there are two prongs to the automobile exception: 15 probable cause and exigent circumstances. 16 {14} Since the automobile exception exists insome manner in the jurisprudence of 17 both the Fourth Amendment and Article II, Section 10 and Defendant preserved her 18 argument under both provisions, our interstitial approach to constitutional 19 interpretation requires that we first address Defendant’s claims under the federal 20 constitution and then, if she is not protected thereunder, we analyze whether she is 216 protected under the New Mexico Constitution. See State v. Gomez , 1997-NMSC-006, 1 ¶ 19, 122 N.M. 777, 932 P.2d 1. 2 1. The Warrantless Seizure of Defendant’s Car Was Reasonable Under the 3 Fourth Amendment 4 a. There Was Probable Cause to Search Defendant’s Car 5 {15} First, in order to justify the warrantle ss seizure of Defendant’s car, the police 6 must have had probable cause to believe th at it contained lawfully seizable items. See 7 Carroll , 267 U.S. at 149. Probable cause exists when there are reasonable grounds to 8 believe an offense has been committed or seizable evidence exists in the particular 9 place. See, e.g. , Husty v. U.S. , 282 U.S. 694, 701 (1931). Whether there was 10 sufficient probable cause to make a warrantle ss search or seizure is reviewed de novo. 11 Ornelas v. United States , 517 U.S. 690, 699 (1996). 12 {16} The strongest fact supporting probable cau se that there was seizable evidence 13 in Defendant’s car was that she was seen inher car in one of the incriminating ATM 14 surveillance videos. While th e record is not clear whether Defendant simply drove to 15 the banks to make the unauthorized withdrawals from Victim’s account in her 16 automobile or whether she utilized the drive-through ATM service and thus made the 17 unauthorized withdrawals from within her automobile, either way it was plainly 18 reasonable for the police to conclude that Defendant’s car contained evidence of the 19 unauthorized withdrawals. Further, si nce the use of Victim’s ATM card was so 20 closely tied to her murder, indeed access to Victim’s money may have been the motive 217 behind her murder, any belief that eviden ce of the use of the ATM card would have 1 also tied Defendant to th e murder was reasonable and supported the ultimate 2 determination of probable cause. 3 {17} An additional factor supporting the poli ce determination that Defendant’s car 4 may have contained seizable evidence came from the fact that they suspected that she 5 did not have a home apart from the storage unit and had just driven all the way from 6 Santa Fe to Florida in her car. Thus, it was reasonable for the police to suspect that 7 the car was the main repository of Defendant’s personal effects. Since there was 8 strong evidence linking Defendant to Victim’s murder (most notably the use of 9 Victim’s ATM card after her death and the spent ammunition in the storage unit of the 10 same kind used to kill Victim), but the gun used to kill Victim was still missing, it was 11 reasonable for the police to suspect that the weapon was in the car. Because there 12 were reasonable grounds to believe that se izable evidence was located in Defendant’s 13 car, the police had probable cause to search it. 14 b. The Exigent Circumstances Prong of theAutomobile Exception is Satisfied 15 Under the Fourth Amendment 16 {18} The second traditional requirement for satisfaction of the automobile exception 17 is that there must exist exigent circumst ances to justify the warrantless search or 18 seizure. The requirement of exigent circ umstances comes from th e original rationale 19 for the automobile exception, that cars may be quickly removed from the particular 20 jurisdiction and the efforts of law enforcement thereby thwarted. See, e.g. , Cooper v. 218 California , 386 U.S. 58, 59 (1967); Preston v. United States , 376 U.S. 364, 366-67 1 (1964). While the idea that exigency inhered in the mobility of automobiles was 2 prominent in the early au tomobile exception cases, see, e.g. , Chambers v. Maroney , 3 399 U.S. 42, 51 (1970); Cooper , 386 U.S. at 59; Carroll , 267 U.S. at 153-54, the 4 subsequent cases justify warrantless searches and seizures of automobiles not only on 5 the mobility of automobiles but also on a car owner or occupant’s diminished 6 expectation of privacy. See California v. Carney , 471 U.S. 386, 393 (1985) (holding 7 that the warrantless search of a mobile home comports with the Fourth Amendment 8 because mobile homes are readily capab le of mobility and because the heavy 9 government regulation of vehicles results in a reduced expectation of privacy). 10 {19} The growing reliance on the diminished expectation of privacy and the 11 concomitant lessening reliance on the i nherent mobility of automobiles for 12 justification of warrantless searches has meant that federal courts have relaxed the 13 required showing of exigency. See id. Thus, under the Fourth Amendment, exigent 14 circumstances may now be found, and the au tomobile exception applied, based solely 15 on the fact that an automobile is involve d, without a separate showing that the 16 automobile was likely to be moved or the evidence inside subject to destruction. See 17 id. ; South Dakota v. Opperman , 428 U.S. 364, 376 (1976) (concluding that the 18 warrantless inventory search of animpounded vehicle was reasonable); United States 19 v. Graham , 275 F.3d 490, 509 (6th Cir. 2001) (holding that, since Carney , “the 20 necessity of a special exigency has waned”); United States v. Mercado , 307 F.3d 219 1226, 1231 (10th Cir. 2002) (“[W]hen probabl e cause exists, the agents’ time and 1 opportunity to obtain a warrant are irrelevant.”) (internal citati on and quotation marks 2 omitted). In light of the foregoing, the warrantless seizure of Defendant’s vehicle 3 satisfies Fourth Amendment scrutiny. 4 2. The Warrantless Seizure of Defendant’s Car Was Reasonable Under 5 Article II, Section 10 of the New Mexico Constitution 6 a. There Was Probable Cause to Search Defendant’s Car 7 {20} Next, we consider whether the warrantless seizure of Defendant’s car was 8 reasonable under Article II, Section 10 of the New Mexico Constitution. Like the 9 federal automobile exception, the first prong of the exception in New Mexico hinges 10 on whether there was probable cause to belie ve that lawfully seizable items were 11 present in the automobile. See, e.g. , State v. Rowell , 2008-NMSC-041, ¶ 26, 144 N.M. 12 371, 188 P.3d 95. In this respect, it is iden tical to the federal automobile exception 13 and warrants no discussion apart from that above. Because police had reasonable 14 grounds to believe that there was evidence of the unauthorized ATM withdrawals and 15 the murder in Defendant’s car, ther e was probable cause to search it. 16 b. There Were Exigent Circumstances to Seize Defendant’s Car Under 17 Article II, Section 10 of the New Mexico Constitution 18 {21} It is the exigent circumstances prong where Article II, Section 10 precedent 19 differs from that of the Fourth Amendment. In New Mexico, we have rejected the 20 federal bright-line rule and instead require that the State make a particularized 21 showing of exigent circumstances to justif y the warrantless search of an automobile. 221 While the record seems to reflect that Defendant’s relatives were cooperative 19 with police, this fact does not undermine the ultimate judgment of police that the 20 integrity of the evidence may have been at risk. 21 10 Gomez , 1997-NMSC-006, ¶ 39. The purpose of Gomez“was to keep intact the fact1 specific nature of reasonableness determinations under search and seizure principles.” 2 State v. Bomboy , 2008-NMSC-029, ¶ 6, 144 N.M . 151, 184 P.3d 1045. “The 3 reasonableness inquiry looks at the particularfacts of a situation to evaluate whether 4 an objectively reasonable, well-trained officer could have determin ed that swift action 5 was called for to prevent destru ction of evidence . . . .” Rowell , 2008-NMSC-041, ¶ 6 30. Thus, in the instant case, we ask whether the arresti ng officers could have 7 objectively and reasonably determined that seizing Defendant’s car was necessary to 8 prevent the destruction of evidence therein. 9 {22} It would have been objectively reasonabl e for the officers to have believed that 10 the warrantless seizure was n ecessary to preserve eviden ce because the car was parked 11 outside the home of Defendant’s relatives and they may have atte mpted to destroy or 12 remove evidence to protect her. 1 In Gomez , this Court upheld the warrantless search 13 of an automobile where the officer believed that the search was necessary to prevent 14 the destruction or removal of th e evidence by the surrounding crowd. See Gomez , 15 1997-NMSC-006, ¶¶ 8, 41-42; cf. Bomboy , 2008-NMSC-029, ¶ 2 (concluding that the 16 warrantless seizure of contraband evidence in plain view inside an automobile is 17 justified by the exigent circumstances exception). Because Defendant’s car was 1811 parked outside the home of her relatives and was potentially subject to their control, 1 an objectively reasonable, well-trained of ficer could have determined that the 2 warrantless seizure of Defendant’s car was necessary to prevent the destruction of 3 evidence therein. See Rowell , 2008-NMSC-041, ¶ 30. 4 {23} Moreover, a seizure affects an individual’s possessory interest while a search 5 affects an individual’s privacy interest. Police encroachment on the privacy interest 6 is the greater intrusion. We conclude thatthe officers’ decision to seize the car until 7 they could obtain a warrant for the greaterintrusion was the prudent, and thereby 8 proper, course of action. Weare particularly persuaded that the warrantless seizure 9 of Defendant’s car was reasonable in light of our previous pronouncement in Gomez : 10 It would have been reasonable— and perhaps preferable—for [the 11 officer] to have refrained from searching the vehicle and closed 12 containers within it until after it wa s impounded, at which point he could 13 have obtained a warrant. This cour se of action woul d have shown more 14 deference to the warrant process. 15 Gomez , 1997-NMSC-006, ¶ 43. Because the po lice in the instant case followed our 16 guidance and took the “preferabl e” course of action, we decline to find fault with their 17 actions. 18 {24} Defendant argues that the police could have stationed an officer at her car to 19 prevent the removal or destruction of ev idence while another officer attempted to 20 secure the warrant. However, this procedure also may have given rise to a seizure 21 because posting a guard at the car would only have been effective if the guard would 22 have excluded anyone attempti ng to enter or move the car. Thus, posting a guard to 2312 exclude Defendant’s family members from her car would have been constitutionally 1 indistinguishable from the impoundment which actually occurred. 2 {25} Article II, Section 10 requires a “f act-specific . . . reasonableness 3 determination[]” to determine the appli cability of the automobile exception to a 4 particular warrantless seizure. See Bomboy , 2008-NMSC-029, ¶ 6. Having reviewed 5 the facts, we conclude that there were ex igent circumstances sufficient to justify the 6 warrantless seizure of Defendant’s car. Sp ecifically, it was objectively reasonable for 7 the police to determine that swift action, in the form of a seizure, was needed to 8 prevent the potential destruction of incriminating evidence by Defendant’s nearby 9 relatives. 10 c. The Warrant to Search Defendant’sCar Was Supported by Probable 11 Cause 12 {26} “[N]o Warrants shall issue, but upon probable cause, supported by Oath or 13 affirmation, and particularlydescribing the place to be searched, and the persons or 14 things to be seized.” U.S. Const. amend. IV; accord N.M. Const. Art. II, Sec. 10; see 15 also Rule 5-211(E) NMRA (requiring probabl e cause to be based on substantial 16 evidence). There is a strong preference that searches be conducted pursuant to 17 warrants. See, e.g. , Illinois v. Gates , 462 U.S. 213, 236 (1983). 18 {27} The facts supporting the affidavit for searchwarrant were largely the same facts 19 underlying the probable cause determination made predicate to the warrantless seizure 20 of Defendant’s car. Having reviewed and accepted the probable cause determination 2113 made by the officers in our above an alysis, we necessarily accept the same 1 determination made by the magistrate. Th e search warrant for Defendant’s car was 2 supported by probable cause and does not require suppressing the evidence found 3 pursuant to it. 4 III. CONCLUSION 5 {28} For all of the above reasons, we affirm the district court in the denial of 6 Defendant’s motion to suppress. 7 {29} IT IS SO ORDERED. 8

_________________________________ 9 PATRICIO M. SERNA, Justice 10

WE CONCUR: 11

_________________________________ 1214 EDWARD L. CHÁVEZ, Chief Justice 1

_________________________________ 2 PETRA JIMENEZ MAES, Justice 3

_________________________________ 4 RICHARD C. BOSSON, Justice 5

_________________________________ 6 CHARLES W. DANIELS, Justice 7