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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-075

Filing Date: June 8, 2011

Docket No. 28,819 

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DARRICK SUBLET,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Denise Barela Shepherd, District Judge

Gary K. King, Attorney General

Andrew S. Montgomery, Assistant Attorney General

Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant Darrick Sublet appeals the court’s denial of his motion to suppress. An

undercover detective entered the apartment that Defendant occupied, engaged in a drug buy,

and signaled an awaiting police team which then entered the apartment and detained the

occupants. Defendant contends that after the occupants of the apartment were taken and

detained outside some members of the police team reentered the apartment without a warrant

resulting in an unlawful search that followed. We agree that the search was unlawful and

reverse the denial of the motion to suppress. 
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I. BACKGROUND

{2} We summarize the underlying events in the light most favorable to the ruling

rendered below. See State v. Flores, 2008-NMCA-074, ¶ 2, 144 N.M. 217, 185 P.3d 1067.

Detective Brett Lampiris-Tremba, working undercover and posing as a drug buyer, arranged

for a purchase of cocaine from Annette Salvato. The detective, Salvato, and a confidential

informant went inside an apartment to complete the undercover drug transaction. Defendant

was one of several others in the apartment at the time of the transaction. The detective and

the informant were taken to a back bedroom where the detective gave Salvato money to

purchase eleven stones of crack cocaine. There was another person in the bedroom sitting

on one of the beds with a pair of scissors beside him smoking what appeared to be crack

cocaine. The man offered the detective some crack cocaine, but he refused.

{3} Salvato left the bedroom, shut the door, returned a few minutes later, and gave

Detective Lampiris-Tremba what appeared to the detective to be cocaine, which the detective

put in his pocket. The detective then gave a prearranged arrest signal to surveillance

narcotics detectives, after which the detective heard commotion and people yelling and

“more banging on the door,” and the detective saw Defendant run into the bedroom where

the detective was located, yelling “[t]ask force, task force.” The detective “continue[d]

playing [his] role as a drug buyer” and acted like he was one of the suspects. The detective

saw Defendant run into the closet of the bedroom and “jump[] repeatedly up and down in

the closet, as if trying to push something [to] the top.” Detective Lampiris-Tremba testified

that Defendant appeared to be trying to hide something, possibly money or drugs, in the

upper right area of the closet. He also testified that he could not see what was in Defendant’s

hand, but that it was later determined that Defendant was stuffing the buy-money that

Defendant had given Salvato into what was characterized as both a hole and a crawl space

in the upper closet area that was large enough for a person.

{4} Occupants of the apartment, including Detective Lampiris-Tremba, were detained,

handcuffed, and escorted outside. Detective Lampiris-Tremba told his fellow officers,

including Detective Martinez, that he thought Defendant had hidden “something in the

ceiling” in the bedroom closet and that “[y]ou guys . . . need to look up there.” Detective

Martinez and the other officers went back into the apartment and when one of the officers,

who was “a pretty large guy” could not fit into the hole, two officers helped Detective

Martinez get into the hole where he found the buy-money. By this time, Defendant and

Salvato had been arrested.

{5} Defendant was charged with trafficking by distribution (cocaine), conspiracy to

commit trafficking by distribution (cocaine), and tampering with evidence. See NMSA

1978, § 30-31-20(A)(2) (2006); NMSA 1978, § 30-28-2 (1979); NMSA 1978, § 30-22-5

(2003). Defendant moved to suppress the evidence obtained from the closet as the fruit of

a warrantless and therefore an unlawful search in violation of the Fourth Amendment and

Article II, Section 10 of the New Mexico Constitution. He argued that the search was not

authorized by any exception to the warrant requirement and focused his argument on the

exigent-circumstances exception, as well as the protective-sweep exception.
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{6} In response, the State claimed that (1) Defendant did not have standing because he

had no legitimate expectation of privacy in the residence searched; (2) the evidence of a

crime was in plain view; (3) exigent circumstances, relating to safety concerns and the

likelihood that the evidence would be destroyed, justified the warrantless search; (4) the

search of the closet was authorized as a protective sweep incident to arrest; and

(5) Defendant abandoned the evidence by placing it where it could not be linked to or

associated with him.

{7} After a hearing, the district court found that Defendant had a legitimate expectation

of privacy to challenge the search of the apartment, but the court denied the motion to

suppress. The court determined that Detective Lampiris-Tremba was lawfully in the

apartment and that his observations did not impact Defendant’s constitutional rights. The

district court further found that “[e]xigent circumstances existed at the time of the officers’

entry into the apartment to justify both the entry and subsequent protective sweep of the

apartment. The protective sweep lawfully included the closet and the hole in the upper

closet area where a person could hide[.]” The district court also found that “[t]o the extent

that . . . [D]efendant had any standing or claim of an expectation of privacy in the

undercover buy-money used in the investigation, he abandoned any such claim when he

disposed of the money by throwing it in the hole in the upper closet area of the bedroom[.]”

After entering a conditional plea to trafficking by distribution (cocaine), Defendant appealed

the denial of his motion to suppress.

II. DISCUSSION

A. Standard of Review

{8} A motion to suppress evidence based on an alleged unlawful search or seizure

involves a mixed question of law and fact. Our review procedure is set out in State v. Leyva,

2011-NMSC-009, ¶ 30, __N.M. __, 250 P.3d 861, State v. Sewell, 2009-NMSC-033, ¶ 12,

146 N.M. 428, 211 P.3d 885, State v. Funderburg, 2008-NMSC-026, ¶ 10, 144 N.M. 37, 183

P.3d 922, and State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-19, 134 N.M. 566, 81 P.3d 19.

In the present case, we review de novo the constitutional reasonableness of the actions of the

officers. Vandenberg, 2003-NMSC-030, ¶ 19. We look at the totality of circumstances.

Leyva, 2011-NMSC-009, ¶¶ 30, 59; Vandenberg, 2003-NMSC-030, ¶ 19. We view the facts

in the light most favorable to the prevailing party. Sewell, 2009-NMSC-033, ¶ 12. 

B. Standing: Expectation of Privacy in the Apartment 

{9} The State argues that Defendant did not have standing to object to the search because

he did not have a reasonable expectation of privacy in the apartment. We disagree.

“Whether a defendant has standing involves two inquiries: (1) whether the defendant had

an actual, subjective expectation of privacy in the premises searched; and (2) whether the

defendant’s subjective expectation [is] one that society is prepared to recognize as

reasonable.” State v. Zamora, 2005-NMCA-039, ¶ 10, 137 N.M. 301, 110 P.3d 517

(alteration in original) (internal quotation marks and citation omitted).
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{10} In support of his expectation of privacy, Defendant testified that he had been staying

in the apartment for about three weeks, slept in both the living room and the bedrooms, and

had access to the kitchen and bathroom. Defendant testified that Ernesto Rodriguez was

allowed to stay in the apartment because Rodriguez paid rent, and Rodriguez allowed

Defendant to stay in the apartment because Defendant paid Rodriguez $50 per week.

Defendant further testified that he kept his clothes and personal hygiene items in the

apartment in a drawer in one of the bedrooms. Defendant’s testimony establishes that he had

a subjective expectation of privacy in the apartment. See id. ¶ 11.

{11} The State contends that even if Defendant had a subjective expectation of privacy,

that expectation is not one that society is prepared to recognize as reasonable because of the

complete absence of evidence that Rodriguez was a lawful owner or renter of the premises

and that Rodriguez had any right or authority to allow Defendant to stay in the apartment.

The State asserts that without such evidence Defendant could not establish standing because

he could not show that he was anything other than a trespasser. We are not persuaded.

{12} Defendant’s testimony was not rebutted by the State, and the State offered no

evidence questioning Defendant’s right to stay in the apartment. Cf. id. ¶ 13 (recognizing

that house guests have a right to challenge a search of the premises if they were permitted

“by the owner or occupant of the property to use a private part of the residence”). The

district court found that Defendant had an actual and subjective expectation of privacy in the

apartment and had standing to challenge the search. The court thought that the issue would

have been “a little closer had the State presented . . . some evidence to establish that Ernesto

Rodriguez didn’t have the lawful right to convey the right to . . . [D]efendant to stay or to

remain in the residence.”

{13} Given Defendant’s unrebutted testimony that he resided in the apartment based on

Rodriguez’s permission and his and Rodriguez’s payment of rent, we are unpersuaded that

the lack of any additional testimony regarding Rodriguez’s authority to allow Defendant’s

occupancy is fatal to Defendant’s claim to standing. Cf. State v. Ryan, 2006-NMCA-044,

¶¶ 22-27, 139 N.M. 354, 132 P.3d 1040 (recognizing that an individual’s privacy expectation

in a home is usually very high, but holding that any such expectation in the case with regard

to two searches and viewing one videotape was unreasonable given the evidence presented

by the prosecution rebutting the defendant’s claim to an expectation of privacy); State v.

Hensel, 106 N.M. 8, 9-10, 738 P.2d 126, 127-28 (Ct. App. 1987) (holding that the defendant

did not have standing to object to the search of a house where there was no evidence he had

the owner’s permission, explicit or implicit, to reside there, and no evidence that he was, in

fact, residing in or occupying the house), rev’d in part on other grounds by State v. Rivera,

2008-NMSC-056, 144 N.M. 836, 192 P.3d 1213. 

{14} We note that the State heavily relies on State v. Van Dang, 2005-NMSC-033, 138

N.M. 408, 120 P.3d 830, in support of its contention that Defendant needed to make an

affirmative showing of Rodriguez’s authority. In Van Dang, our Supreme Court held that

the driver of a rented vehicle failed to demonstrate a reasonable expectation of privacy in the

vehicle when the rental contract did not list him as the driver, and he presented no direct

evidence that a lawful owner or renter of the vehicle had given him permission to operate
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the vehicle. Id. ¶¶ 7, 11-12. We are unpersuaded that the holding in Van Dang required

Defendant to have introduced evidence beyond his own testimony in this case.

{15} In Van Dang, the defendant testified at the suppression hearing that he had a right to

drive the rental car, but he did not testify that the person who rented the car had given him

permission to drive it. Id. ¶ 2. In reaching its holding that the defendant lacked standing,

our Supreme Court relied on the fact that the defendant failed to present any direct evidence

that the person who rented the vehicle gave him permission to operate it. Id. ¶ 12. The

Court also specifically relied on the defendant’s failure to even claim he was authorized by

the renter to operate the vehicle. Id. As previously discussed, in the present case, unlike in

Van Dang, Defendant indicated that he paid rent to Rodriguez, had permission to stay in the

apartment, and Rodriguez himself paid rent to reside in the apartment.

{16} Furthermore, in Van Dang, our Supreme Court was considering a claimed privacy

interest in an automobile. Id. ¶¶ 7, 11-12. The present case involves a dwelling, and our

appellate courts have long recognized “[t]he constitutional distinction between vehicles and

homes turns on . . . privacy expectation. A lesser expectation of privacy attaches to a

vehicle.” State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d 1032; cf. State v.

Esguerra, 113 N.M. 310, 313-14, 825 P.2d 243, 246-47 (Ct. App. 1991) (recognizing that

the privacy interest in one’s dwelling place is entitled to “the highest degree of protection

from unreasonable intrusion by the government”). The State acknowledged as much in the

hearing in district court.

{17} Defendant presented evidence of his and Rodriguez’s permission to occupy the

apartment. A person’s subjective expectation of privacy in an apartment in which the person

is paying rent for occupancy and is residing is an expectation of privacy that society is

prepared to recognize as reasonable. See Zamora, 2005-NMCA-039, ¶¶ 10-14 (holding that

the defendant had a subjective expectation of privacy in a motel room that society is

prepared to recognize as reasonable based on the defendant’s testimony that he had an

expectation of privacy “because his ‘family’ was there and because he was going to spend

the night there”). The district court correctly ruled that Defendant had standing to seek

suppression of the buy-money evidence.

C. Expectation of Privacy in the Property Seized

{18} The State argues on appeal, as a related aspect of standing, that Defendant cannot

challenge the seizure of the buy-money and seek its suppression because he unlawfully

possessed it and therefore could have no reasonable expectation of privacy in it. The

argument appears to stem in part from the statement in Van Dang, cited by the State in its

answer brief, that “[g]enerally, one who owns, controls, or lawfully possesses property has

a legitimate expectation of privacy.” Van Dang, 2005-NMSC-033, ¶ 7. 

{19} In its answer brief on appeal, the State compares the buy-money in the present case

to property that a person steals, citing United States v. Caymen, 404 F.3d 1196, 1200 (9th

Cir. 2005), for the proposition that “[t]he Fourth Amendment does not protect a defendant

from a warrantless search of property that he stole” because any expectation to maintain
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privacy in the contents of stolen property “is not one that society is prepared to accept as

reasonable.” (Internal quotation marks and citation omitted.) We are not persuaded.

Caymen is limited to instances where a thief claims an expectation of privacy in stolen

goods. See id. (“Whatever possessory interest a thief may have, that interest is subordinate

to the rights of the owner[.]”). We will not, as the State wishes, tie Caymen and stolen goods

into Van Dang’s general language of “lawfully possesses property” to deny Defendant in the

present case a reasonable expectation of privacy. See State v. Tanner, 745 P.2d 757, 759

(Or. 1987) (en banc) (“An unlawful search that uncovers effects such as stolen goods or

contraband, which also may not be legally possessed, will nevertheless result in suppression

of those effects because the unlawfulness involves an infringement of rights apart from

possessory interests (or the lack thereof) in the stolen goods or contraband seized as a

consequence of the unlawful search.”). 

{20} The State’s reliance in oral argument on Bomboy is misplaced. In Bomboy, our

Supreme Court held that the defendant had no expectation of privacy in methamphetamine

he had placed in a highly visible area in a vehicle and in a police officer’s plain view. State

v. Bomboy, 2008-NMSC-029, ¶ 10, 144 N.M. 151, 184 P.3d 1045. The Court stated that the

officer reaching into the car was not an “infringement on a legitimate expectation of

privacy.” Id. The Court continued, saying, “[l]ikewise, there can be no infringement on [the

d]efendant’s possessory interest in the methamphetamine because an individual does not

have a lawful right to possess such contraband[,]” citing for support State v. Foreman, 97

N.M. 583, 642 P.2d 186 (Ct. App. 1982). Bomboy, 2008-NMSC-029, ¶ 10. In Foreman,

this Court held that the “[d]efendant’s privacy expectations in [a] cowboy boot box were

lawfully breached by [an] inventory search.” 97 N.M. at 585, 642 P.2d at 188 (emphasis

added). We are not willing to apply or expand either the holdings in these cases or the

language they use to the present case. The facts in Bomboy and Foreman are far removed

from those in the present case. In Foreman, the search was of the contents of a container,

and the search was lawful. Id. In Bomboy, it seems clear that because a vehicle was

involved, exigency permitted the officer’s breach of the vehicle plane to seize contraband

in plain view. 2008-NMSC-029, ¶ 2. Bomboy and Foreman did not directly address the

issue here, and their general statements were not made with any particular regard to their

general applicability. Furthermore, that Defendant’s possession of the buy-money in the

present case may not have been lawful does not deprive him of standing to seek its

suppression under the exclusionary rule. Tanner, 745 P.2d at 759. The search was for

suspected contraband in a residence, and the search was unlawful because the police did not

have a warrant and no circumstances excused the warrantless search. See United States v.

Carnes, 309 F.3d 950, 959-60 (6th Cir. 2002) (holding that the defendant had standing to

seek suppression of audiotape recordings of conversations obtained illegally and stating that

“illegally obtained objects, such as contraband, are often suppressed” and “[t]he legality of

a person’s possession cannot be the lynchpin of their Fourth Amendment standing”).

{21} In addition to mentioning Bomboy in oral argument, the State attempted to

distinguish the circumstance in the present case from others in which unlawful police

conduct precedes an otherwise lawful search for and seizure of contraband, such as when the

seized contraband is the fruit of a “poisonous,” unlawful detention or warrantless entry into

an apartment in violation of the knock-and-announce rule. The State argued that in cases in
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which an entry into a house is unlawful, it is the entry that constitutes the Fourth Amendment

violation and not the later seizure of contraband in the home. The State further argued that,

in the present case, the seizure of the buy-money was to be considered separate and apart

from the search and that the seizure in and of itself did not violate the Fourth Amendment.

The State argued that Defendant had no expectation of privacy in police buy-money used in

an unlawful drug transaction because society would not recognize such privacy expectation

as reasonable. Last, the State argued that Defendant could not sustain an expectation of

privacy based on assertion of a property interest in the buy-money because Defendant could

not be successful in a replevin action were he to attempt to obtain the buy-money from the

police.

{22} We see no valid distinction to be made between a suppression case in which

suppression of seized contraband is based on an earlier unlawful entry into a residence and

a case such as the present where the suppression of seized contraband is based on a

simultaneous unlawful search. See Tanner, 745 P.2d at 759 (stating that “[s]earches and

seizures are separate acts calling for separate analysis” and that “[i]f the police violated any

right of [the] defendant’s, it was a right against the search that uncovered the effects, not

some right in the effects themselves”). The following language in United States v. Jeffers,

342 U.S. 48, 52-54 (1951), makes the same point in regard to the government’s contention

in Jeffers regarding the seizure of contraband.

The significant act . . . is the seizure of the goods of the respondent without

a warrant. We do not believe the events are so easily isolable. Rather they

are bound together by one sole purpose—to locate and seize the narcotics of

respondent. The search and seizure are, therefore, incapable of being untied.

. . .

It is urgently contended by the [g]overnment that no property rights

within the meaning of the Fourth Amendment exist in the narcotics seized

here, because they are contraband goods in which [c]ongress has declared

that ‘no property rights shall exist’. . . .

. . . We are of the opinion that [c]ongress, in abrogating property rights in

such goods, merely intended to aid in their forfeiture and thereby prevent the

spread of the traffic in drugs rather than to abolish the exclusionary rule

formulated by the courts in furtherance of the high purposes of the Fourth

Amendment.

Since the evidence illegally seized was contraband[,] the respondent

was not entitled to have it returned to him. It being his property, for purposes

of the exclusionary rule, he was entitled on motion to have it suppressed as

evidence on his trial.

(Footnote omitted.) (Citations omitted.)
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{23} Here, the buy-money can be considered the fruit solely of a warrantless search

unexcused by an exception to the warrant requirement, no different from other unlawful

searches in which contraband such as buy-money or drugs, which a defendant has no lawful

right to possess, is ultimately found in a defendant’s possession or control and seized. For

the foregoing reasons, we reject the State’s contention and argument that Defendant lacked

standing to attack the seizure of the buy-money because Defendant lacked any expectation

of privacy in the money that society would accept as reasonable. 

D. The Earlier Warrantless Entry

{24} Defendant does not dispute that Detective Lampiris-Tremba lawfully entered the

apartment and had probable cause to arrest Defendant after receiving the cocaine from

Salvato in exchange for the controlled buy-money. Defendant challenges the warrantless

entry of the police team based on the detective’s pre-arranged arrest signal, arguing that no

exception to the warrant requirement was shown. We do not address this issue because we

hold in Defendant’s favor on the issue of the warrantless search and suppression and,

therefore, there exists no reason to address the issue.

E. The Entry to Search the Closet

{25} Defendant challenges as unlawful what he characterizes as a warrantless “reentry”

into the apartment by one or more officers culminating in the officers’ warrantless search of

the closet area for suspected stashed drugs or drug buy-money after the officers had already

detained the occupants and Detective Lampiris-Tremb outside. In response to the State’s

arguments made in the district court and on appeal to support denial of his suppression

motion, Defendant argues that no exigent-circumstances or protective-sweep exception

justified the reentry for the purpose of the hole-in-the-closet search that followed. He argues

that Detective Lampiris-Tremba could have left before he signaled the police team and could

have obtained a warrant and, as well, the officers who reentered could have sought a warrant

after detaining the occupants and securing the premises. Defendant further argues that no

buy-money was in Detective Lampiris-Tremba’s plain view as Defendant was placing it in

the closet and that no evidence supports an intent on Defendant’s part to abandon the

property left in his own place of residence. He argues that the evidence obtained from the

search should have been suppressed under the Fourth Amendment and, if not under the

Fourth Amendment, then under Article II, Section 10 of the New Mexico Constitution.

Because Defendant raised Article II, Section 10 in the district court and the pertinent

circumstances were before the district court at the hearing on the suppression motion,

Defendant preserved his Article II, Section 10 position. See Leyva, 2011-NMSC-009, ¶ 49

(stating the preservation requirements). We agree with Defendant.

1. Abandonment

{26} “The party seeking to prove abandonment must show this intent by clear,

unequivocal[,] and decisive evidence.” State v. Celusniak, 2004-NMCA-070, ¶ 26, 135

N.M. 728, 93 P.3d 10 (internal quotation marks and citation omitted). The State provided

no evidence of any subjective intent of Defendant to abandon any expectation of privacy in
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the buy-money. Nor has the State presented authority that persuades us that the stashing of

contraband by a defendant in his rented apartment during a police drug-bust constitutes an

abandonment of possession. 

{27} For its abandonment contention, the State relies primarily on State v. Clark, 105

N.M. 10, 727 P.2d 949 (Ct. App. 1986), in which the police approached a rented mobile

home without a search warrant to locate reported stolen goods and spoke to the landladyowner. Id. at 12, 727 P.2d at 951. At the time, the defendant’s rent was unpaid, one eviction

notice had been posted, the owner was set to post a second eviction notice, the owner had

heard that the defendant was incarcerated, the owner had been told by the defendant’s sister

to remove his possessions, and the owner gave permission for the police to enter and search.

Id. The circumstances in the present case are considerably different from those in Clark.

Furthermore, the circumstances here do not fit within the “several general factual scenarios

that give rise to a finding of abandonment[.]” Celusniak, 2004-NMCA-070, ¶ 28 (setting out

abandonment scenarios). There exists no disclaimer of ownership, discarding of evidence

out of a window of a moving vehicle, unsuccessful attempt to destroy the property, or having

left the property in vacated premises. See id.; Clark, 105 N.M. at 12-14, 727 P.2d at 951-53

(holding that the owner of a mobile home was able to consent to a search when the

defendant/tenant lacked a reasonable expectation of privacy in the mobile home when he

intended to abandon it as his residence). 

{28} We hold that, in the present case, Defendant did not abandon the buy-money that was

ultimately found stashed in the hole in the closet. See Celusniak, 2004-NMCA-070, ¶ 29

(holding that, even in the light most favorable to the district court’s ruling, the facts of the

case departed from this Court’s existing abandonment holdings and were too equivocal to

support a ruling of abandonment); cf. Commonwealth v. White, 327 A.2d 40, 43 (Pa. 1974)

(stating that, where the defendant’s effects were seized pursuant to an unlawful search while

the defendant was not physically present, “there is no evidence that [the defendant]

meaningfully abdicated his control, ownership, or possessory interest in the items seized[,]

[h]e did not sell them, give them away or abandon them[;] [i]nstead, he left them in the

apparent safety and security of his temporary residence, his mother’s apartment[, and] [o]ne

must, therefore, conclude that [the defendant] had a reasonable expectation that such items

would be free from government intrusion whether or not he was physically present”). 

2. Plain View

{29} Items may be seized under the plain-view exception to the warrant requirement when

the incriminating nature of the evidence is immediately apparent. State v. Ochoa, 2004-

NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. There exists no evidence that the buy-money

was in plain view of either Detective Lampiris-Tremba or the officers who conducted the

search. The detective was the only law enforcement officer who knew directly about

something being stashed by Defendant in the closet. But he did not see what was stashed;

he testified only that Defendant “jumped repeatedly up and down in the closet, as if trying

to push something into the top of the closet[,]” that he “thought maybe [Defendant] was

trying to put money in there or more drugs, trying to hide something[,]” that “it looked like[]

he was just hiding something[,]” and that he could not actually see what was in Defendant’s
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hand. That testimony is patently insufficient for application of the plain-view exception to

the warrant requirement. See State v. Rivera, 2010-NMSC-046, ¶¶ 28-29, 148 N.M. 659,

241 P.3d 1099 (holding under Article II, Section 10 of the New Mexico Constitution that

“[t]he plain[-]view doctrine did not authorize [the officer] to open the opaque bundle because

he thought he had probable cause to believe the bundles contained marijuana”). 

3. Exigency and Protective Sweep

{30} As to exigency, officers must have “knowledge of specific, articulable facts that

demonstrate that immediate action is necessary to prevent imminent danger to life or serious

damage to property, or to forestall the imminent escape of a suspect or destruction of

evidence.” State v. Moore, 2008-NMCA-056, ¶ 14, 144 N.M. 14, 183 P.3d 158 (internal

quotation marks and citation omitted). A protective sweep is allowed if incident to an arrest

and the officers have a reasonable belief that the area of the sweep harbors a person who

poses a danger to the officers or others. State v. Trudelle, 2007-NMCA-066, ¶ 21, 142 N.M.

18, 162 P.3d 173. The sweep must be “narrowly confined to a cursory visual inspection of

those places in which a person might be hiding.” Zamora, 2005-NMCA-039, ¶ 17 (internal

quotation marks and citation omitted).

{31} The State fails to present evidence of exigency facing the police officers or evidence

to support their protective-sweep theory. Nor is there evidence of lack of sufficient time to

obtain a warrant. There is simply a complete absence of evidence of circumstances to bring

the search and seizure of the buy-money within the reasonableness requirement of the Fourth

Amendment and Article II, Section 10 under these exceptions to the warrant requirement.

According to Detective Lampiris-Tremba, all occupants were detained outside. Nothing in

the record indicates that the officers did not have complete control of the apartment. There

obviously existed time to obtain a warrant under the circumstances, and the State relies on

no evidence from which one could reasonably conclude that a particular exigency or safety

concern required the warrantless search in question. That Detective Lampiris-Tremba felt

concerned about his safety while he was in the apartment and before he and the other

occupants were arrested and taken outside is irrelevant. 

{32} Further, the State’s argument that the search was lawful based on the fact that the

officers who searched the hole in the closet discovered that an officer of a certain size was

able to fit in the hole is not sustainable. No concern existed, subjectively or objectively,

before the search occurred about safety, destruction of evidence, or occupant escape in

relation to the dimensions of the place in the closet where Detective Lampiris-Tremba

thought Defendant was stashing something. The officers who conducted the search were not

aware of a hole beforehand, much less the size of any hole, before they entered the apartment

to conduct the particular search of the closet. They certainly were not informed regarding

any hole that was large enough for a person to fit in. They entered the apartment based

solely on the detective’s information for the purpose of searching the closet for stashed buymoney or drugs, not for humans. That the district court found, based on what occurred at

the time of the search, that a hole existed and that the hole was large enough for an officer

smaller in size to fit in it, is irrelevant, since that fact was learned only at the point that the
11

officers reached the closet and saw the hole and one of the officers was able to climb to some

extent into the hole. 

{33} We reject the State’s argument that, under the circumstances, and objectively, a

prudent, cautious, trained officer under the circumstances could have a safety concern,

concern for destruction of evidence, or concern about occupant escape, and would have

believed it appropriate to check all places in the apartment where suspects could be hiding,

including the hole in the closet, particularly given the district court’s finding that the hole

was large enough for a small officer to enter. The officers entered the apartment solely to

search the closet for any object(s) Defendant may have “tried to hide” therein. There exists

no evidence from which one can conclude that they subjectively or objectively had any

concerns related to safety, destruction of evidence, the presence of any suspect, or the size

of any hole in the closet. The State’s attempt to bootstrap the after-the-fact occurrence of

an officer being lifted up into a hole in the closet cannot in any way salvage the unjustified

warrantless search. We hold that the State failed to prove its claimed exigency and

protective-sweep justifications for the search of the hole in the closet. 

III. CONCLUSION

{34} We reverse the district court’s denial of Defendant’s motion to suppress, and we

remand this matter to the district court.

{35} IT IS SO ORDERED.

______________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

______________________________________

CYNTHIA A. FRY, Judge

______________________________________

TIMOTHY L. GARCIA, Judge

Topic Index for State v. Sublet, Docket No. 28,819

AE APPEAL AND ERROR

AE-SR Standard of Review

CT CONSTITUTIONAL LAW

CT-FA Fourth Amendment

CT-SU Suppression of Evidence

CL CRIMINAL LAW

CL-CL Controlled Substances
12

CA CRIMINAL PROCEDURE

CA-EC Exigent Circumstances

CA-MR Motion to Suppress

CA-SZ Search and Seizure

CA-WA Warrantless Arrest

CA-WS Warrantless Search