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Certiorari Denied, March 24, 2010, No. 32,254

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-035

Filing Date: January 29, 2010 

Docket No. 28,636

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ANDREW BENAVIDEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Teddy L. Hartley, District Judge

Gary K. King, Attorney General

Francine A. Chavez, Assistant Attorney General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Adrianne R. Turner, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

CASTILLO, Judge.

{1} Defendant, a parolee, appeals a search of his home that was conducted pursuant to

conditions of his parole. We conclude that the Fourth Amendment does not prohibit parole

searches that are based on reasonable suspicion of a parole violation and that in the present

case the parole officer had reasonable suspicion to conduct the contested search. We do not

address Defendant’s state constitutional claim because it was not properly preserved. Lastly,
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we do not consider whether there was sufficient evidence of constructive possession because

Defendant failed to reserve this argument in his plea agreement. For these reasons, we

affirm the district court.

I. BACKGROUND

{2} The following facts are derived from the record. On July 11, 2007, Defendant’s

parole officer observed Defendant driving a car. A short time later, the parole officer and

his supervisor arrived at Defendant’s house to conduct a routine visit. When the parole

officer arrived, he saw the same car that Defendant had been driving earlier. The parole

officer knocked on the door and announced himself but received no response. While he was

waiting for a response, the parole officer noticed the curtains and blinds moving in the room

that he knew to be Defendant’s.

{3} The parole officer called for police back up. During the twenty minutes that it took

for the police to arrive, the parole officer continued to knock and announce—and continued

to receive no response. When the police arrived, the door was kicked in, and the officers

searched the house room by room. Defendant was located in his bedroom, under his bed,

and when he came out, the parole officer asked why he had been hiding. Defendant

responded that he had missed a parole meeting with the officer. Defendant was taken

outside, and the officers continued to search the house. In a set of dresser drawers in the

same bedroom where Defendant was found, the parole officer located Defendant’s

identification card, a pipe, and a baggie with a small amount of methamphetamine.

{4} Defendant was charged by criminal information in district court for one count of

possession of a controlled substance and one count of possession of drug paraphernalia. He

filed a motion to suppress the drug evidence, which the district court denied. Defendant then

entered into a conditional plea agreement. He pled guilty to one count of possession of a

controlled substance, the paraphernalia charge was dropped, and he reserved the right to

appeal the legality of the search of his home.

II. DISCUSSION

{5} Defendant makes two basic arguments on appeal. He first contends that the district

court improperly denied his motion to suppress the drug evidence because the search of his

home was constitutionally unreasonable. He also argues that the evidence should have been

suppressed because there was insufficient evidence to submit the issue of constructive

possession to a jury. We begin with the validity of the search.

A. Validity of the Search

{6} Defendant raises four challenges to the search. First, he claims that the district court

erred in not requiring the parole officer to have reasonable suspicion of criminal activity

before conducting the warrantless search. Defendant also contends that it was not reasonable

to forcibly enter Defendant’s home under the circumstances of this case. Additionally,

Defendant challenges the legality of the continued search of the home after Defendant was
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located inside. In his last point, Defendant argues that Article II, Section 10 of the New

Mexico Constitution requires that parole officers obtain a warrant before conducting a

probation or parole search that is based on reasonable suspicion of a probation or parole

violation. We will first set out the general standard of review for suppression orders, and

then we will address each of Defendant’s points.

1. Standard of Review

{7} “The legality of a search questioned in a suppression hearing is generally tested as

a mixed question of law and fact wherein we review any factual questions under a substantial

evidence standard and we review the application of law to the facts de novo.” State v. Baca,

2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509 (internal quotation marks and citation

omitted). We indulge all reasonable inferences in support of the district court’s factual

determination, and we disregard all inferences or evidence to the contrary. State v. Jason

L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856.

2. Basis for Warrantless Search

{8} Pursuant to the Fourth Amendment, “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or things

to be seized.” U.S. Const. amend. IV. “Normally, the search of a home is only reasonable

for Fourth Amendment purposes if it is conducted pursuant to a warrant grounded in

probable cause.” Baca, 2004-NMCA-049, ¶ 21. The warrant requirement protects citizens’

reasonable expectations of privacy in their homes. Chavez v. Bd. of County Comm’rs,

2001-NMCA-065, ¶ 21, 130 N.M. 753, 31 P.3d 1027 (“[T]he Fourth Amendment . . . was

intended to protect the sanctity of an individual’s home and privacy.”).

{9} The privacy rights of parolees and probationers, however, are subject to limitations

which have been addressed by the United States Supreme Court in three cases: Griffin v.

Wisconsin, 483 U.S. 868 (1987); United States v. Knights, 534 U.S. 112 (2001); and Samson

v. California, 547 U.S. 843 (2006). We provide a brief overview of these cases because they

provide the basis for much of our analysis.

{10} In Griffin, the Court evaluated a Wisconsin policy and held that a warrantless search

of a probationer conducted pursuant to the policy did not violate the Fourth Amendment

because the state’s “special needs”—as articulated through its probation

policies—“‘justif[ied] departures from the usual warrant and probable-cause requirements.”

483 U.S. at 873-74. The Court observed that probationers “do not enjoy ‘the absolute liberty

to which every citizen is entitled, but only . . . conditional liberty properly dependent on

observance of special [probation] restrictions.’” Id. at 874 (alteration in original) (citation

omitted). Griffin held that Wisconsin’s policy requiring “reasonable grounds” to search

probationers for violations of probation conditions met the minimum standards required

under the Fourth Amendment. 483 U.S. at 880.
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{11} The Knights Court addressed the question of whether warrantless searches of

probationers by law enforcement officers, not probation officers, are constitutional when

such searches are supported by less than probable cause. In that case, the defendant’s

probation order required him to “[s]ubmit his . . . person, property, place of residence,

vehicle, [and] personal effects, to [a] search at anytime, with or without a search warrant,

warrant of arrest[,] or reasonable cause by any probation officer or law enforcement officer.”

534 U.S. at 114 (internal quotation marks omitted). Because the search at issue in Knights

was conducted by a law enforcement officer, the Court did not apply the special-needs

doctrine discussed in Griffin. Instead, the Knights Court used a totality of the circumstances

test to evaluate the reasonableness of the search “with the probation search condition being

a salient circumstance.” 534 U.S. at 118. The Court ultimately found that because

probationers have a lesser expectation of privacy than do free citizens, and because the

probation condition put the defendant on notice of his limited privacy rights, the defendant’s

“reasonable expectation of privacy” was “significantly diminished.” Id. at 119-20. As such,

a search based on reasonable suspicion did not violate the defendant’s Fourth Amendment

rights. Id. at 121-22.

{12} In Samson, the Court considered “whether a suspicionless search, conducted under

the authority of [a California statute], violates the Constitution.” 547 U.S. at 846. That case

involved a challenge by a parolee to a California law. Id. The defendant was a parolee, not

a probationer and, in this regard, the Samson Court stated that “parolees have fewer

expectations of privacy than probationers, because parole is more akin to imprisonment than

probation is to imprisonment.” Id. at 850. The Court applied the totality of the

circumstances approach, not the special needs rationale of Griffin, and concluded that

searches under the California law were constitutional because a parolee does “not have an

expectation of privacy that society would recognize as legitimate.” Samson, 547 U.S. at 852.

Further, the Court held that the state has an “overwhelming interest” in supervising parolees

because “parolees . . . are more likely to commit future criminal offenses.” Id. at 853

(internal quotation marks and citation omitted).

{13} The Court also acknowledged that a state’s interests in reducing recidivism and

thereby promoting reintegration and positive citizenship among probationers and parolees

warrant privacy intrusions that would not otherwise be tolerated under the Fourth

Amendment. Id. The Court balanced the parolee’s expectation of privacy against the State’s

interest in supervising parolees and held that “the Fourth Amendment does not prohibit a

police officer from conducting a suspicionless search of a parolee.” Id. at 848, 853, 857.

{14} Accordingly, as we address the question of a search of the home of a parolee, we look

to the Supreme Court’s two exceptions to the warrant requirement: (1) the special needs

exception and (2) the totality of the circumstances exception. United States v. Warren, 566

F.3d 1211, 1215 (10th Cir. 2009). Both apply to a parolee.

{15} In his parole agreement, Defendant agreed to comply with “Rules for Extreme Level

Supervision” and “Rules for Home Visits.” The home visit rules required Defendant to

promptly answer the door, assure that parole officers have “safe and open access” to his

home, and to general conditions regarding his behavior before and during the home visits.
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{16} As a further condition of parole, Defendant agreed to “submit to reasonable

[warrantless] searches per Probation and Parole Division [PPD] Policy.” The relevant PPD

Policy (PPD Policy) governs searches of “an offender’s person, home, or property by field

officers.” http://corrections.state.nm.us/policies/current/CD-050700.pdf. According to the

policy, a parole officer may search when there is reasonable suspicion to believe either (1)

that “the offender is in possession of prohibited items” or (2) that “a violation of [the]

conditions of probation or parole has occurred.” Id. There is no dispute as to the parole

violation. Defendant concedes that the failure to answer the door in response to the parole

officer’s knock was a parole violation. Even though he makes this concession, he argues that

the policy is unconstitutional, that the parole officer failed to comply with the policy, and

that Baca should be read to limit warrantless searches under the policies to only those cases

wherein the parole officer has reasonable suspicion of criminal activity.

a. Constitutionality of PPD Policy

{17} We turn to Samson, 547 U.S. 843, for direction in analyzing the constitutionality of

the PPD policy. Samson involved the suspicionless search of a parolee’s person under a

California statute that authorized the warrantless, suspicionless search. Defendant argues

that Samson is irrelevant because the Court simply approved California’s policy requiring

parolees to consent to warrantless, suspicionless searches. According to Defendant, Samson

does not apply because New Mexico’s parole policy requires reasonable suspicion, and

Samson “did not alter the requirement that the local government follow the regulatory system

that it has adopted for parole searches.” This argument, however, disregards the underlying

effect of the case: Samson sets the constitutional floor for permissible parole and probation

searches pursuant to a state’s policy. The California law discussed in Samson was held

constitutional, and it permits searches at any time, with or without a warrant or cause. Id.

at 846. Consequently, it follows that the New Mexico policy, which affords greater

protection than the California policy by allowing warrantless searches limited to those

supported by reasonable suspicion of parole violations, is constitutional as well.

b. Application of Policy

{18} Defendant next challenges the application of the PPD Policy. Citing to Coleman v.

Commonwealth, 100 S.W.3d 745 (Ky. 2002), Defendant asserts that the parole officer’s

entry into Defendant’s home was not authorized under the policy and was therefore

unconstitutional. Coleman is distinguishable. In Coleman, the parole officer claimed that

the search was based on reasonable suspicion of a probation violation. Id. at 754-55. The

facts, however, did not bear out his position. Id. The defendant in Coleman was not home

when the parole officer entered his home and, at that time, the parole officer had no grounds

to believe that the defendant had violated parole. The Coleman court ruled the search

unconstitutional because the parole officer had no reasonable suspicion of a parole violation

prior to entering the defendant’s residence. Id. Defendant here argues that the parole officer

did not go to Defendant’s house with any suspicion. That is true. But once the parole officer

arrived and Defendant did not open the door for a home visit, the situation changed.

Defendant concedes that the failure to answer the door in response to the parole officer’s

knocks “would amount to a parole violation.” It follows that once Defendant failed to
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answer the door as required by his parole agreement, the parole officer had reasonable

suspicion that there was a parole violation—a ruling made by the district court in this case.

Coleman does not support Defendant’s argument.

{19} Defendant also cites to Baca and urges us not to “expand the Baca holding to allow

the warrantless entry into a home based on less than reasonable suspicion of criminal

activity.” We agree that Baca holds that “warrantless probation searches can and must be

supported by reasonable suspicion as defined in New Mexico law to be an awareness of

specific articulable facts, judged objectively, that would lead a reasonable person to believe

criminal activity occurred or was occurring.” Baca, 2004-NMCA-049, ¶ 43. However, the

Baca Court specifically declined to address the breadth of the reasonable cause requirement

in a parole policy based on a violation of a condition of probation. Id. ¶ 38 n.3. This

unanswered question is squarely before us in the present appeal.

{20} Defendant relies on general Fourth Amendment law regarding the constitutional

safeguards protecting homes from warrantless searches and argues that it was not reasonable

to forcibly enter Defendant’s home based only on a suspicion that he might have violated his

parole agreement. Defendant does not provide any specific authority that would address the

holdings in Griffin, Knights, or Samson. The State relies on the special needs test enunciated

in Griffin and the totality of the circumstances test set forth in Knights.

{21} We rely on Griffin. The language contained in the PPD Policy and in the parole

agreement is clear. Defendant was required to answer the door when his parole officer

knocked. The language of the Wisconsin policy reviewed in Griffin is similar to the New

Mexico policy that authorizes reasonable warrantless searches when a parole officer has

reasonable suspicion to believe that a violation of the conditions of parole has occurred.

Griffin, 483 U.S. at 880 (holding that Wisconsin’s policy requiring “reasonable grounds” to

search probationers for violations of probation conditions met the minimum standards

required under the Fourth Amendment). The district court here ruled that there was

reasonable suspicion, and Defendant does not challenge that part of the ruling. Defendant’s

argument would have us ignore the conditions of parole and related PPD Policy. This we

cannot do. Thus, we hold that the initial warrantless search did not violate the Fourth

Amendment.

c. Consent to Search

{22} Defendant also argues that the parole officer’s failure to obtain Defendant’s consent

to enter the home rendered the officer’s forcible entry into the home unreasonable.

Specifically, Defendant maintains that in the parole agreement, he “agreed to consent to a

warrantless search if so requested by a parole officer” and that the agreement does not

“authorize a parole officer to search without first contacting the parolee and allowing him

to consent in accordance with his contract.” The out of state cases cited by Defendant do not

support his position.

{23} In Joubert v. State, 926 P.2d 1191 (Alaska Ct. App. 1996), a probation officer

conducted a warrantless search while the defendant was not at home. Id. at 1192. A
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probation condition required the probationer to “submit to a search of [his] . . . residence

upon request of a probation officer.” Id. at 1193 (alterations in original) (internal quotation

marks omitted). The Joubert court concluded that because the probation condition was

worded so that “the probation officer’s authority to search is premised on [the defendant]

receiving notice of the intended search,” the probation officer was required “to communicate

in some way with the probationer before conducting a search.” Id. at 1193-94. Joubert is

factually distinct from the present case. First, Defendant’s parole agreement simply states

“I will submit to reasonable warrantless searches,” and it does not require the parole officer

to make a request to search. Second, the defendant in Joubert was not present when the

probation officer arrived, was not given notice of the search, and was not given a chance to

refuse to submit to the search. Unlike the facts in Joubert, Defendant had an

opportunity—twenty minutes—to communicate with the parole officer and either grant or

refuse permission to search. Considering the evidence that Defendant was inside the house,

it was reasonable for the parole officer to conclude that Defendant’s failure to respond to the

knocking was not an expression of consent.

{24} Defendant also relies on another Alaska case, State v. James, 963 P.2d 1080 (Alaska

Ct. App. 1998), but James, like Joubert, is unavailing. In James, as a condition of probation,

the defendant was required to submit to a warrantless search of his home for the presence

of contraband upon the request of a probation officer. Id. at 1081. The officer requested to

search the defendant’s home, and he refused to consent. Id. The officer searched the home

nevertheless. Id. The defendant argued that the search violated the Fourth Amendment

because his refusal to honor the condition of probation could only result in a revocation, not

a warrantless search. Id. Although the James court observed that the Oregon courts have

interpreted this probation condition as James argued, it also concluded that the Oregon

courts appear to stand alone in their interpretation of the disputed language. Id. at 1083.

Thus, the court in James upheld the warrantless search concluding that Alaska would join

with other courts that “have consistently interpreted these provisions to authorize warrantless

searches by probation officers regardless of whether the probationer has consented . . . and

even in the face of refusal or resistance by the probationer.” Id. James does not advance

Defendant’s case.

{25} Defendant also points us to Oregon law and relies on State v. Davis, a case in which

the Oregon Court of Appeals stated that “a probation condition that requires a probationer

to submit to searches does not constitute a self-executing, prospective consent by the

probationer to a general warrantless search.” 891 P.2d 1373, 1378 (Or. Ct. App. 1995).

Despite this general statement, however, the court in Davis concluded that because the

defendant had “ample opportunity to refuse the search” as well as knowledge that he had

agreed to submit to searches as a condition of probation, the defendant’s failure to expressly

consent to the search did not require the suppression of the evidence discovered. Id. at 1378,

1379-80. In the present case, Defendant was aware of the conditions of his parole and, as

we have explained in the previous paragraph, Defendant had “ample” opportunity to refuse

entry. See id. Accordingly, even under Davis, Defendant’s motion to suppress would have

been properly denied.

3. Kicking in the Door
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{26} Defendant also challenges the parole officer’s manner of conducting the

search—kicking in the door and entering the home—as unreasonable. Defendant, however,

fails to cite any authority to support an argument that there were no grounds “to forcibly kick

in the door.” Nothing in the PPD Policy restricts the conduct of a parole search. See

http://corrections.state.nm.us/policies/current/CD-050700.pdf. As we have explained, the

parole officer knocked on the door and announced his identity for twenty minutes, and

Defendant refused to respond. In order to investigate the suspected parole violation—failure

to submit to a search—the officer was required to enter the premises. Because Defendant

did not answer the door, there appears to have been no alternative for the parole officer apart

from forced entry. See State v. Attaway, 117 N.M. 141, 147, 870 P.2d 103, 109 (1994) (“The

officer may break open any outer or inner door or window of a house, or any part of a house,

or any thing therein, to execute a search warrant, if, after notice of his authority and purpose,

he is refused admittance or when necessary to liberate himself or a person aiding him in the

execution of the warrant.” (internal quotation marks and citation omitted)), modified on other

grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80. In the absence of

authority, we conclude that the initial entry and search for Defendant was reasonable under

the Fourth Amendment.

4. Continued Search

{27} Defendant also challenges the scope of the search. According to Defendant, the

parole officer needed reasonable suspicion of a new parole violation or criminal activity to

continue to search after the initial suspicion regarding the parole violation was quelled and

after Defendant was removed from the home. There is general language banning routine

searches without reasonable suspicion: “This policy is in no way to be construed as giving

authority to PPD staff to conduct routine searches of offenders or their property without

reasonable suspicion, but specifically limits the occasions when such activities will occur.”

Probation and parole searches are thus strictly limited to those circumstances in which a

probation or parole officer has reasonable suspicion of a violation, contraband, or criminal

activity. See id.; Baca, 2004-NMCA-049, ¶ 43. There is nothing addressing whether once

evidence of contraband or a violation is discovered, a parole officer may continue to search

for evidence of further violations. The policy authorizing warrantless searches is silent

regarding the scope of authorized searches.

{28} We therefore consider, in the present case, whether the parole officer could continue

to search Defendant’s house after the officer confirmed his initial suspicion that Defendant

had violated his parole. Defendant argues that the parole officer did not articulate any

additional suspicion to support the continued search.

{29} The State relies on all of Defendant’s actions as grounds for the search. Reasonable

suspicion is evaluated under the totality of the circumstances. See State v. Talley,

2008-NMCA-148, ¶ 6, 145 N.M. 127, 194 P.3d 742 (analyzing the “reasonableness of the

law enforcement officers’ course of conduct . . . by examining the totality of the

circumstances”). Thus, we are inclined to evaluate the entire encounter and look to

Defendant’s behavior throughout the incident. This would include the movement of the

curtains, the failure to acknowledge the parole officer’s presence for twenty minutes,
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Defendant’s hiding under the bed to avoid an encounter, and Defendant’s response to the

parole officer’s question as to why he had not answered the door. Defendant stated that he

had missed a parole meeting. The parole officer found this response to be an unsatisfactory

explanation for refusing to answer the door and for hiding under the bed.

{30} Defendant characterizes the parole officer’s disbelief as “unsupported intuition.” We

disagree. The Supreme Court of the United States has explained that in the context of parole

and probation searches, the parole officer’s experiences with the client, as well as the

officer’s experiences in other similar circumstances, is relevant to the reasonable suspicion

inquiry. See Griffin, 483 U.S. at 878-79 (acknowledging the value of “an ongoing

supervisory relationship” between officer and client). Further, when evaluating whether

reasonable suspicion exists, we look to the facts presented “in light of common sense and

. . . human experience.” See United States v. Mendez, 118 F.3d 1426, 1431-32 (10th Cir.

1997) (evaluating the contradictory and implausible information given by the driver using

common sense and human experience). A reasonable person would question Defendant’s

reasons for refusing to answer the door and then for hiding under his bed, especially in light

of the fact that Defendant knew he was required to cooperate with home visits as a condition

of probation and that a probation violation would allow a warrantless search of his home.

Defendant’s reason was that he hid because he had missed a parole meeting. The parole

officer relied on his experience as well as his common sense in determining that based on

Defendant’s odd behavior, there was a likelihood that Defendant possessed contraband or

had violated his parole in some other way. This is more than “unsupported intuition.”

{31} “[W]hether a search is unreasonable is determined by balancing the degree of

intrusion into a probationer’s [or a parolee’s] privacy against the interest of the government

in promoting rehabilitation and protecting society.” Baca, 2004-NMCA-049, ¶ 32.

Defendant argues that the State’s interest in further investigation was minimal because there

was no reasonable suspicion of criminal activity. The statute authorizing parole, however,

dictates that the purpose of parole is to “treat persons convicted of crimes based on their

individual needs ‘when a period of institutional treatment is deemed essential in the light of

the needs of public safety and their own welfare.’” State v. Utley, 2008-NMCA-080, ¶ 9,

144 N.M. 275, 186 P.3d 904 (quoting NMSA 1978, § 31-21-4 (1963)). Thus, the purposes

of parole—and as a result, the State’s interest in the continued search—are twofold: the

protection of society as well as the rehabilitation of the individual, both of which could have

been threatened had Defendant violated the conditions of his parole.

{32} Defendant’s argument also disregards his own lessened expectation of privacy as a

result of his status as a parolee. The Supreme Court of the United States has acknowledged

the same limited expectation of privacy for parolees. Samson, 547 U.S. at 850 (“[P]arolees

have fewer expectations of privacy than probationers, because parole is more akin to

imprisonment than probation is to imprisonment.”).

{33} Defendant contends that because the California law of parole differs from the New

Mexico law of parole, New Mexico parolees have a heightened expectation of privacy.

Specifically, Defendant argues that parole is required by statute for certain offenses, while

in California, parole is an “early release system” and, as a result, “New Mexico parolees
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have a greater expectation of privacy than do California parolees.” We are unpersuaded.

{34} Samson did not rely on the consideration that in California parole can be construed

as “a privilege of early release.” Instead, the Court concluded that parole is more like

imprisonment than probation. 547 U.S. at 850. Looking to our own statutes, we see a

similar analogy between parole and imprisonment. According to NMSA 1978, Section

31-21-10(E) (2007) (amended 2009), “[e]very person while on parole shall remain in the

legal custody of the institution from which the person was released, but shall be subject to

the orders of the board.” An inmate is required to submit to “a written statement of the

conditions of parole” or the inmate will not be released. Id. Parole, therefore, is “an

established variation on imprisonment,” and “parolees have fewer expectations of privacy

than probationers.” Samson, 547 U.S. at 850 (internal quotation marks and citation omitted).

In New Mexico, “[p]robation status significantly reduces a probationer’s expectation of

privacy,” Baca, 2004-NMCA-049, ¶ 42. Because parolees have an even lower expectation

of privacy than a probationer, we are satisfied that under Samson and New Mexico law,

Defendant had a reduced expectation of privacy.

{35} We also look to New Mexico law. In State v. Ponce, we held that the search of the

defendant’s vehicle after his arrest for a parole violation was reasonable. 2004-NMCA-137,

¶ 28, 136 N.M. 614, 103 P.3d 54. In Ponce, we looked to the totality of the circumstances

as well as the defendant’s reduced expectation of privacy as a parolee. Id. The defendant

was under an excessively high assessment of risk of violation of probation and had agreed

to abide by a PPD policy that allowed staff of the PPD to conduct a search of an offender’s

home when there was reasonable cause to believe that evidence of a violation would be

found. Id. ¶¶ 12, 28. Before his arrest, the defendant had been subject to a pat-down search

which revealed a large sum of cash in small bills in spite of the parole officer’s

understanding that the defendant was unemployed. Id. ¶ 28. The defendant had lied about

how he had arrived at the probation office. Id. Based on these facts, we held that the

probation officers had a reasonable basis to search the defendant’s vehicle for evidence of

another probation violation. Id. Similarly, here Defendant’s behavior, his unsatisfactory

explanation for hiding under his bed, and Defendant’s reduced expectation of privacy all

support the scope of the search in the present case. Further, the parole officer’s obligations

to public safety and to Defendant’s rehabilitation outweighed Defendant’s privacy interest.

See People v. Young, 923 P.2d 145, 151 (Colo. Ct. App. 1995) (upholding a warrantless

parole search, which continued after the officers discovered evidence to verify the suspected

parole violation). In this case, based on the totality of the circumstances, we hold that the

parole officer had reasonable suspicion to continue the search.

5. New Mexico Constitution

{36} Defendant’s final argument relating to the propriety of the search is that the New

Mexico Constitution provides greater protection for searches of parolees than the United

States Constitution provides. The State argues that Defendant failed to preserve this

argument. We agree with the State.

{37} The New Mexico Supreme Court, in State v. Gomez, 1997-NMSC-006, 122 N.M.
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777, 932 P.2d 1, established the framework for assessing whether a state constitutional claim

with a federal analog was preserved. “If established precedent construes the [state

constitutional] provision to provide more protection than its federal counterpart, the claim

may be preserved by (1) asserting the constitutional principle that provides the protection

sought under the New Mexico Constitution, and (2) showing the factual basis needed for the

[district] court to rule on the issue.” Id. ¶ 22. Where there is no precedent interpreting a

state constitutional right differently than its federal equivalent a litigant must meet a higher

burden. Id. ¶ 23. In these cases, “a party also must assert in the [district] court that the state

constitutional provision at issue should be interpreted more expansively than the federal

counterpart and provide reasons for interpreting the state provision differently from the

federal provision.” Id. (emphasis omitted). Having set forth the appropriate framework to

evaluate whether Defendant’s state constitutional claim was preserved, we examine whether

he has satisfied these requirements.

{38} Defendant provided the following argument in his motion to suppress: 

In New Mexico, with regard to probationers, any search is

unreasonable unless an officer has a reasonable suspicion that a crime has

occurred. [Baca], 2004-NMCA-049, ¶ 37[.] Reasonable suspicion is to be

construed by New Mexico case law. Id. [] ¶ 38. The New Mexico

Constitution should be interpreted to extend this rule to parolees.

Defendant fails to direct us to any additional discussion of the issue, and we were unable to

locate in the record any further development of Defendant’s state constitutional argument.

No mention was made of this argument during the motion hearing.

{39} Defendant’s limited discussion of his state constitutional claim does not satisfy the

two requirements of the framework established in Gomez. With respect to the first of these

two requirements, Defendant’s motion fails to assert the constitutional principle that

provides the protection he seeks under the New Mexico Constitution. Defendant merely

cites Baca and, without identifying a specific article or section of the New Mexico

Constitution, claims that the New Mexico Constitution should be interpreted to provide

parolees the rights afforded to probationers in Baca. The holding in Baca was based on the

Fourth Amendment to the United States Constitution and explicitly rejected the state

constitutional arguments advanced therein. See Baca, 2004-NMCA-049, ¶¶ 30-35, 37

(holding that the federal case law construing the protections provided by the Fourth

Amendment guides our analysis of warrantless probation searches). Without more specific

guidance, we are unable to conclude that Defendant has identified a specific state

constitutional principle which provides the protection he seeks.

{40} Even if we were to infer that Defendant could only have been relying on Article 2,

Section 10 of the New Mexico Constitution for a claim that parolees should have more

protection under the state constitution than under its federal counterpart, Defendant has

failed to satisfy the second of the Gomez requirements—he did not establish the factual basis

for his claim. Instead, he merely cited Baca and claimed that the rights discussed in that case

should apply to him. Baca does not advance his arguments for additional protection under
12

the state constitution and, in any case, the cite to Baca does not, in our view, constitute the

establishment of a factual basis for a state constitutional claim. Accordingly, we do not

consider Defendant’s contention. See State v. Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M.

106, 151 P.3d 67 (filed 2006) (declining to address an unpreserved argument made pursuant

to the state constitution).

B. Constructive Possession

{41} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State

v. Boyer, 103 N.M. 655, 658-59, 658 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant argues that

the evidence could not have established that he was in constructive possession of the

methamphetamine discovered by the parole officer. The State contends that Defendant’s plea

agreement failed to reserve this issue for appeal. We agree with the State.

{42} Defendant’s plea and disposition agreement makes the following reservation: “The

defendant does not waive his right to an appeal on the issue of whether the search of his

home was unreasonable.” Although it is clear that Defendant preserved the issue of

constructive possession by filing a motion to suppress the evidence of contraband,

preservation is distinct from reservation. See State v. Chavarria, 2009-NMSC-020, ¶ 15,

146 N.M. 251, 208 P.3d 896 (explaining that preservation is “the failure to make the timely

assertion of a right, waiver is the intentional relinquishment or abandonment of a known

right” (internal quotation marks and citation omitted)). Defendant waived his right to appeal

whether there was sufficient evidence to support constructive possession. We therefore do

not consider the merits of the argument. See id. ¶¶ 10, 16 (refusing to reach the merits of a

claim that was waived pursuant to an unconditional guilty plea).

III. CONCLUSION

{43} We affirm the district court.

{44} IT IS SO ORDERED.

____________________________________

CELIA FOY CASTILLO, Judge

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

RODERICK T. KENNEDY, Judge

Topic Index for State v. Benavidez, No. 28,636

AE APPEAL AND ERROR
13

AE-PA Preservation of Issues for Appeal

AE-SR Standard of Review

CT CONSTITUTIONAL LAW

CT-FA Fourth Amendment

CA CRIMINAL PROCEDURE

CA-PL Parole

CA-RS Reasonable Suspicion

CA-SZ Search and Seizure

CA-WS Warrantless Search