IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 27,144 4 ALICIA KAY TURNBULL-PHILLIPS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 Thomas J. Hynes, District Judge 8 Gary K. King, Attorney General 9 Katherine Zinn, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Hugh W. Dangler, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16

MEMORANDUM OPINION 17 BUSTAMANTE, Judge. 18 Defendant appeals her convictions fo r possession of methamphetamine and 19 tampering with evidence. In the districtcourt, Defendant unsuccessfully moved to 20 suppress evidence seized when a probation officer and a police officer entered and 212 searched the residence where Defendant wa s arrested. Defendant entered into a 1 conditional plea of guilt, reserving the rightto appeal the denial of her motion to 2 suppress evidence. We affirm the districtcourt’s denial of Defendant’s motion to 3
suppress. 4 BACKGROUND 5 Officer Current received a tip from an unnamed citizen-informant that 6 Defendant was using and selling methamphetamine from the residence of Brian 7 Werner (Werner). According to the in formant, Defendant was staying at the 8 residence, there was a lot of traffic at the residence, and both Defendant and Werner 9 had a lot of money but no le gitimate employment. OfficerCurrent had also received 10 complaints from the Farmington Public Sc hools about possible drug activity at the 11 residence. Officer Current discovered that both Defendant and Werner were currently 12 on probation for narcotics-re lated offenses. Based on that information, Officer 13 Current contacted the probation office. De fendant was under the supervision of Tami 14 Danielli, who was not in the probation office at the time of Officer Current’s 15 telephone call. Officer Current was ableto speak with Candace Montoya (Officer 16 Montoya), the probation officer supervis ing Werner, about the information he 173 received. Officer Current also informed Officer Montoya that Defendant had active 1 warrants for her arrest. 2 Officer Montoya testified that she had been experiencing difficulty locating 3 Werner, she was unable to contact him at his reported residen ce, he had submitted 4 “dirty UAs” in the past, and sh e needed to see Wern er at the residence as part of her 5 duties as his probation officer. Officer M ontoya asked Officer Current and another 6 officer to assist her in her search, and made it clear to the accompanying officers that 7 this was her search. Officer Montoya as ked the assisting officers to clear the 8 residence and place everyone into the livi ng room, if such action was necessary. 9 Upon arriving at the residence, Officer Curre nt noticed a car parked in front of the 10 residence that he recognized as belongi ng to Defendant. Officer Montoya knocked 11 on the door, opened it, and announced, “Probati on and Parole.” She heard a woman’s 12 voice coming from the bedroom and asked who was there. Defendant identified 13 herself, and Officer Montoya recognized her to be Werner’s cousin, who had 14 accompanied Werner to the probation offi ce in the past. Officer Montoya told 15 Defendant to come out of the bedroom, to which Defendant responded that she needed 16 to get dressed. Based on Officer Montoya ’s experience, she be lieved that Defendant 17 may have been attempting to hide something so she proceeded to the bedroom with 184 Officer Current following. Once there, Defe ndant stated that sh e needed to get her 1 shoe. She leaned down and pulled a plasticbaggie containing a white substance from 2 the mattress and threw a plastic bag of needles at Officers Montoya and Current. 3 Defendant put the baggie into her pants and “appeared to beshoving the items into her 4 vagina.” Officer Current attempted to handcuff Defendant and began to read her 5 Miranda rights. Defendant fought against Officer Current, but was eventually placed 6 into handcuffs. Officer Montoya noticed th at Defendant was staring at another baggie 7 that was on the mattress. Defendant ju mped and landed on top of the baggie and 8 attempted to swallow it. O fficer Current held Defendant’s throat to prevent her from 9 swallowing the baggie, and eventually De fendant spit it out. The baggie contained 10 methamphetamine. 11 Defendant filed a motion to suppress th e evidence seized from her and from the 12 residence. After hearing testimony fro m Officer Montoya and argument by the 13 parties, the district court denied the motion to suppress. Defendant appeals. 14 DISCUSSION 15 Defendant contends that the districtcourt erred in denying her suppression 16 motion. “We review the district court’s ruling on a motion to suppress to determine 17 whether the law was correctly applied to the facts, viewing the facts in the light most 185 favorable to the prevailing party.” State v. Cline , 1998-NMCA-154, ¶ 6, 126 N.M. 77, 1 966 P.2d 785. Defendant’s arguments on appeal are as follows: (1) there was no 2 probable cause or exigent circumstances to justify the warrantless entry of the 3 residence, (2) the officers failed to comp ly with the knock-and-announce rule before 4 entering the residence, (3) an unlocke d door does not eliminate the knock-and5 announce requirement, (4) an arrest warrant provides only limited authority to enter 6 a residence and the necessary factors allowi ng entry were not established in this case, 7 (5) our state constitution provides greater protection than its federal counterpart in that 8 it requires a showing of reasonable suspicion and exigent circumstances to justify 9 entry and search of the residence, and (6 ) the officers did not have reasonable cause 10 to conduct a probation search particularly where Werner was not asked for permission 11 to search the residence. 12 Argument Presented and Rulings Made in the District Court 13 In her motion to suppress, Defendantlisted a number of points, including: 14 (6) Officer Montoya was the probation officer for . . . Werner, but not the 15 Defendant; 16

. . . . 17 (26) The actions of [Officer] Current and Officer Montoya violate 18 Defendant’s IV Amendment rights under the Constitution of the United 19 States and Article II[,] Section [10] of the Constitution [of] New Mexico; 206 . . . . 1 (31) [Officer] Current contacted the Pr obation Officer for . . . Werner and not 2 the Defendant’s Probation Officer; 3

. . . . 4 (33) . . . Werner was not at the re sidence when [Officers] Current and 5 Montoya arrived; 6 (34) Officer[s] Montoya and Current entered the residence without 7 reasonable and articulative (sic) su spicion that . . . Werner was 8 there and that illegal activity was occurring; 9 (35) [Officer] Current went along w ith Officer Montoya for the sole 10 purpose of investigating Defendant; 11 (36) [Officer] Current’s activities of involving Probation was (sic) 12 merely a rouse (sic) in an atte mpt to circumve nt constitutional 13 rights which prevent state actor’s (sic) from conducting 14 warrantless searches; 15

. . . . 16 (39) [Officer] Current violated [D efendant’s] right[s] and used a 17 probation officer to attempt to circumvent the rules requiring him 18 to obtain a search warrant; 19

. . . . 20 (41) The probation officer has (sic) no evidence of criminal 21 wrongdoing by . . . Werner and [Offi cer] Current even states that 22 he saw Defendant’s car at the residence, however, no such 23 statement was made regarding . . . Werner’s vehicle. 247 As indicated, Defendant’s primary arguments were that the authority of Officer 1 Montoya, who was not the probation officer a ssigned to Defendant, was used as a ruse 2 for the sole purpose of allowing Officer Cu rrent to investigate Defendant; Officer 3 Current did not state that he saw Werner’s car at the residence; and the officers had 4 no reasonable suspicion that Werner was at the residence or that illegal activity was 5 occurring at the residence. 6 The district court convened on two di fferent dates to address Defendant’s 7 motion to suppress. Defendant was not present at the first setting, so the hearing was 8 continued in order to allow defense counselto locate Defendant and to contact Officer 9 Montoya in order to have her testify. De fendant was not present at the second setting. 10
11 Throughout both hearings, the parties and the district court focused primarily 12 on the question of whether Officer Montoya was acting in her capacity as a probation 13 officer or whether she was acting as a po lice agent when she entered the residence. 14 At the first hearing, the issue discussed was whether Officers Montoya and Current 15 made a legal entry of the residence. The district judge outlined the requirements for 16 allowing a probation officer to conduct a warrantless search of a probationer’s 17 residence, stating that evenwhen there is a probation agreement, a probation officer 188 must have reasonable suspicion and must be acting in his or her role as a probation 1 officer. See State v. Baca , 2004-NMCA-049, ¶¶ 43, 55, 135 N.M. 490, 90 P.3d 509. 2 Both parties agreed that the district judge’s description of the applicable standard was 3 correct. During that hearing, defense c ounsel commented that “[Officers Montoya 4 and Current] go to the home, the vehicle of the probationee (sic) is not there, they 5 don’t know if he’s even home and there’s no indication that he is home,” and later 6 commented, “It doesn’t say, ‘you can come in, whether I’m home or not, and search 7 my home.’” After confirming from the State that the home was Werner’s residence, 8 the district court stated, “Okay, well, no, it says they have to have reasonable 9 suspicion,” to which defense counsel re sponded, “Okay.” Defense counsel then 10 commented that there is “potentially reasonable suspicion . . . to go look into what 11 [Defendant] is doing,” but argued that it was not Defendant that they were looking for 12 at the residence. The district court and the prosecutor then en gaged in a discussion 13 regarding whether Officer Current contacted Officer Montoya in order to gain entry 14 to the residence, or whether Officer Montoya considered Werner to be an absconder 15 and wished to locate him and perform a urinalysis test on him. 16 The hearing on the motion to suppress was continued after the parties stipulated 17 to the facts contained in Officer Current’s report, but agreed that it was necessary to 189 hear the testimony of Officer Montoya. Du ring the second phase of the hearing, the 1 testimony from Officer Montoya and the argument of counsel focused on whether 2 Officer Montoya was acting on behalf of O fficer Current or was acting in accordance 3 with her position as a probation officer. The district court found that she had 4 reasonable suspicion that Werner was viol ating his probation agreement based on his 5 failure to report his current residence, and the reasonable suspicion was not solely 6 generated by the call from Officer Current. The district j udge commented that, if the 7 only suspicion of illegal ac tivity was based on information from Officer Current, he 8 would have found that Officer Montoya was acting as a police officer and not a 9 probation officer. Defense counsel then stated that “the probation agreement says that 10 they will give permission to search their home, to me the reading of it requires that 11 [the] probation officer comes if you givepermission, not [the] probation officer 12 comes, the door’s unlocked, let’s go in.” The district judge responded that the Court 13 of Appeals has ruled that a probation offi cer cannot enter a house based solely on the 14 agreement. Rather, the probation officer needs reasonable suspicion that defendant 15 or someone in the house was violating probation. 16 Search By Probation Officer 1710 As noted above, Defendant raises six issues on appeal. However, the rulings 1 made by the district court mainly addresse d the probation officer’s authority to enter 2 the residence. The partie s agreed that, even though th ere was a probation agreement 3 in place, Officer Montoya was required tohave reasonable suspicion that her 4 probationer had engaged in somebehavior that constituted a violation of his probation 5 agreement, and Officer Montoya’s actions mu st have been undertaken as part of her 6 role as a probation officer. Defense counsel’s argument and cross-examination of 7 Officer Montoya centered on the idea that O fficer Montoya went to the residence only 8 at the behest of Officer Current and not as a probation officer checking on her 9 probationer. For example, during cross- examination of Officer Montoya, defense 10 counsel phrased his questions in terms of Officer Current “initiating” contact with 11 Officer Montoya, and Officer Current needing “assistance” from Officer Montoya. 12 At the end of the suppression hearing, the district judge stated that this might be a 13 good case for appeal based on Officer Montoya’s visit to the residence occurring after 14 she received a call from a police officer, to which defense counselresponded, “Okay.” 15 In other words, the issue argued, discu ssed, agreed to, and determined at the 16 suppression hearing was whether Officer Montoya’s visit to the residence was simply 17 a ruse or subterfuge in order to allow Officer Current to conduct an investigatory 1811 search based on the information he receive d that illegal activity had occurred at the 1 residence. Therefore, we address the distri ct court’s rulings that Officer Montoya had 2 reasonable suspicion to conduct a warrantless search of the residence, was acting in 3 her role as a probation officer, and Officer Montoya’s actions did not amount to a ruse 4 or subterfuge. 5 Probation is an “act of clemency” and “is not meant to be painless.” Id. ¶ 42 6 (internal quotation marks and citations omitte d). Under either fe deral or New Mexico 7 law, the purposes of probation are rehabilitation and deterrence of further misconduct 8 by the probationer. Id. ¶ 36. As part of Werner’s probation conditions, he agreed to 9 “permit any Probation/Parole Officer to visit me at myhome or place of employment 10 at any time,” and “will permit a [warrantless] search by the Officer of my person, 11 automobile, residence, property and/or liv ing quarters if he/she has reasonable cause 12 to believe the search will produce evidence of a violation of my conditions of 13 probation.” 14 The regulations of the Probation and Parole Division require reasonable cause 15 to conduct a search, and limit warrantless s earches to the probation condition allowing 16 a search when available evid ence would cause a reasonable person to believe that the 17 probationer is in possession of forbidden items or evidence of a violation of probation 1812 will be discovered. Id. ¶ 38. Probation searches do not require probable cause or 1 exigent circumstances. Id. ¶¶ 41, 49. However, reasona ble suspicion is required to 2 support a warrantless probation search. Id. ¶ 43. 3 Officer Montoya testified that Wern er, one of her highest maintenance 4 offenders, had reported that he was living at a particular address, and was working on, 5 but not living at, another home for which he provided the address. Approximately two 6 weeks prior to the search inthis case, Officer Montoya conducted a field visit and 7 discovered that Werner was not living at hi s reported address. Officer Montoya made 8 a second attempt to locate Werner by visiting the home that Werner was reportedly 9 working on, but she was unable to make contact with him at that home. As part of his 10 probation agreement, Werner was required to get permission before changing his 11 residence, and to submit urine or breath samples for analysis upon request of his 12 probation officer. Officer Montoya testif ied that she believed she had reasonable 13 suspicion to conduct a search based on her in ability to verify Werner’s residence, and 14 because the last urinalysis test conducted on Werner was positive. Approximately five 15 days after her second attemp t to locate Werner, Officer Montoya received information 16 from Officer Current that Werner was living at the home he claimed to be working on, 17 and that he and Defendant were selling drugs out of the residence. Officer Montoya 1813 testified that Officer Current never asked her to “do a search for him, to open the 1 home to do a search.” She emphasized thatshe had made prior attempts to contact 2 Werner, and she “was going to make a fu ll contact of (sic) him at his reporting 3 residence,” whether or not Officer Current had contacted her. 4 The testimony by Officer Montoya establis hes that she had reasonable suspicion 5 that Werner was or may have been in vi olation of a condition of his probation, both 6 because she discovered he was not living at the address heprovided as his residence, 7 and because he had given a “dirty” urine sample and she was unable to locate him to 8 procure a urine sample for testing. Th erefore, Officer Montoya had reasonable 9 suspicion to support a warrantless search ba sed on the probation agreement before she 10 received any information from Officer Current. In addition, while Officer Montoya 11 was attempting to locate Wern er, Officer Current provided her with information that 12 Werner was living at an address that he had not reported and th at he was engaged in 13 selling drugs, which would also have been in violation of his probation agreement. 14 Furthermore, Officer Montoya clearly testif ied that she would have made contact with 15 Werner at the residence even if she had not received the additional information from 16 Officer Current, and that she was not asked to use her authority to allow a search of 17 the residence by Officer Current. We hol d that the evidence supports the district 1814 court’s determinations that Officer Montoya , acting in her role as a probation officer, 1 had the requisite reasonable suspicion to conduct a warrantless search of Werner’s 2 residence, and the use of her authority as a probation officer was not a ruse or 3 subterfuge to allow police to conduct an investigatory search of the residence. 4 Because Officer Montoya had the authority to enter and search Werner’s residence 5 without a warrant, we need not address any claim concerning Officer Current’s entry 6 into the residence, such as the contention that the requirements for executing an arrest 7 warrant were not met in this case. 8 Arguments Not Preserved 9 In addition to the argument discussed above, Defendant’s brief-in-chief raises 10 several other contentions. As discusse d below, however, these arguments were not 11 properly preserved, including Defendant’s argument regarding compliance with the 12 knock-and-announce rule prior to entry of the residence, her contention that our state 13 constitution requires reasonable suspicion and exigent circumstances in this case, or 14 her contention that reasonable cause to s earch the residence did not exist because 15 Officer Montoya did not ask Werner for permission to search. 16 In order to preserve an issue for appeal , Defendant must have made a timely and 17 specific objection that apprises the district c ourt of the nature of the claimed error and 1815 allows the district court to makean intelligent ruling thereon. See State v. Varela , 1 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280; Rule 12-216(A) NMRA 2 (requiring that “it must appear that a ruling or decision by the district court was fairly 3 invoked” in order to preserve a question for review); see also State v. Granillo4
Macias , 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 P.3d 1187 (holding that the 5 defendant’s argument on appeal was not properly preserved where the defendant made 6 no mention of compliance with NHTSA requirements or standards and cited to no 7 case law on those issues), cert. denied , 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 8 672; State v. Shirley , 2007-NMCA-137, ¶¶ 31-32, 142 N.M. 765, 170 P.3d 1003 9 (determining that a defendant’s argument on appeal pertaining to a police officer 10 tailoring testimony to that of other witn esses was not properly preserved for appeal 11 where the defendant’s argument below centere d on conflict of intere st, and the district 12 court was not alerted with sufficient specifi city to the argument raised on appeal so 13 that an intelligent ruling could be made), cert. denied , 2007-NMCERT-010, 143 N.M. 14 73, 172 P.3d 1285. The primary purposes fo r the preservation rule are: (1) to 15 specifically alert the trial court to a claim of error so that any mi stake can be corrected 16 at that time, (2) to allow the opposing party a fair opportunity to respond to the claim 17 of error and to show why the district court should rule against that claim, and (3) to 1816 create a record sufficient to allow this Court to make an informed decision regarding 1 the contested issue. See State v. Lopez , 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 2 P.3d 942, cert. denied , NMCERT , N.M. , P.3d. (No. 30,759, 3 Dec. 19, 2007). Where a party, such as Defendant, has a number of theories for why 4 evidence should be suppressed, she was required to alert the district court to those 5 theories to permit the district c ourt to make rulings accordingly. See State v. Janzen , 6 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768. 7 On appeal, Defendant claims that the officers did not comply with our knock8 and-announce rule when they knocked, opened the door, walked in, and then 9 announced their presence. Defendant did not include this argument in her motion to 10 suppress, and at the hearing below, defense counsel stated only that the officers “come 11 up to the door, do like a knock and announce, co me in and [Defendant] is in the back 12 bedroom.” This argument was plainly not made below, and cannot be raised for the 13 first time on appeal. 14 Defendant appears to argue that the New Mexico Constitution requires the 15 existence of not only reasonable suspicion, but also exigent circumstances, in order 16 to allow probation officers to conduct a warrantless search, including a search based 17 on a probation agreement. Defendant clai ms that she preserved this argument by 1817 asserting “the greater protections affordedunder Article II, Sec tion 10 and cit[ing] to 1 Gomez .” Defendant does not provide a reference to the record for her claims. 2 Furthermore, we find nothing in the record indicating that Defendant made the 3 specific argument below that she now assert s on appeal, or that she provided the 4 district court with facts to support the argument. See In re Estate of Heeter , 113 N.M. 5 691, 694, 831 P.2d 990, 993 (Ct. App. 1992) (holding that anappellate court will not 6 search the record to find support for appellant’s claims). Moreover, as discussed 7 earlier in this opinion, this Court has already decided that under the New Mexico 8 Constitution a warrantless probation search does not require exigent circumstances. 9 At the hearing below, defense counsel poi nted out that Werner was not at the 10 residence at the time of the search, Officer Current did not state that he saw Werner’s 11 car at the residence, and there was nothing to indicate that Werner was “even home.” 12 Defense counsel did not, however, explain the possible legal significance of these 13 facts to the district court, and never attemp ted to cite any authority that might indicate 14 why it mattered whether Werner was home or not at the time of the search. On 15 appeal, Defendant argues for the first time that under the probation agreement, as well 16 as the regulations of the Probation and Paro le Division, Officer Montoya was required 17 to seek permission for the search from Werner. Since Werner was not at the 1818 residence, he was never aske d for such permission and Defendant claims the entry was 1 therefore illegal. 2 We hold that this argument was not raised in the district court with sufficient 3 specificity as to alert the district judgeto the claim, and allow him to make an 4 intelligent ruling on the specific issue. Belo w, the only possible reference to the claim 5 occurred when defense counsel stated that“the probation agreement says that they 6 will give permission to search their home, to me the reading of it requires that the 7 probation officer comes if you give permissi on, not [the] probation officer comes, the 8 door’s unlocked, let’s go in.” Based on the di strict court’s response, that the case law 9 requires more than just a probation agreement to authorize entry into a probationer’s 10 home, it is obvious the district court was not alerted to the argument Defendant now 11 makes on appeal. Defendant did not follow up on her argument, and did not cite any 12 authority in support of it. In addition, a revi ew of the entirety of the discussions at the 13 bifurcated hearing clearly shows that the district court was never alerted to the 14 argument now made by Defendant, that Offi cer Montoya was required to meet with 15 Werner, and be granted or denied permissi on to search his residence. Instead, the 16 primary focus of the hearing was Defendant’s claim that the entry into the residence 17 was accomplished by subterfuge or ruse. Because the argument was not properly 1819 raised below, the State was denied the opportunity to respond to the argument, the 1 district court was denied the opportunity toprovide an informed and intelligent ruling 2 on the argument, and this Court is left without an adequate record to review the issue. 3
4 We hold that the arguments discussed in this section of our opinion were not 5 properly preserved for purposes of appeal. Therefore, we do not address the merits 6 of those arguments. 7 CONCLUSION 8 We affirm the district court’s decisi on to deny Defendant’s motion to suppress 9 evidence. 10 IT IS SO ORDERED. 11
12 MICHAEL D. BUSTAMANTE, Judge 13 WE CONCUR: 14

15 RODERICK T. KENNEDY, Judge 16
17 MICHAEL E. VIGIL, Judge 18