State Of N.M. v. Williams

• Decision Date: 08 February 2010
• Docket Number: No. 28,034.,28
• Citation: 148 N.M. 160,231 P.3d 616,2010 NMCA 030
• Parties: STATE of New Mexico, Plaintiff-Appellee,v.Terry WILLIAMS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

148 N.M. 160

231 P.3d 616

2010 NMCA 030

STATE of New Mexico, Plaintiff-Appellee,v.Terry WILLIAMS, Defendant-Appellant.

No. 28,034.

Court of Appeals of New Mexico.

Feb. 8, 2010.

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

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Eleanor Brogan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ROBLES, Judge.

{1} Terry Williams (Defendant) challenges the district court's denial of his motion to suppress under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Additionally, Defendant claims ineffective assistance of counsel, and that his conditional plea was not entered into knowingly, voluntarily, or intelligently. We conclude that the Fourth Amendment requires suppression and, accordingly, we do not reach Defendant's other arguments.

I. BACKGROUND

{2} At the hearing on Defendant's motion to suppress, Officer Simbala testified that, on September 7, 2006, at approximately 4:00 p.m. while on patrol, he conducted a license plate check on Defendant's vehicle as it was parked in front of a residence. The check indicated that Defendant was the owner. The officer knew Defendant from “three or four” previous contacts, though he did not know it was Defendant's car at the time he checked the license plate. The officer then conducted a check on Defendant's name and discovered he had an outstanding felony warrant for his arrest. The officer then positioned himself nearby on another street and, after waiting approximately twenty minutes, observed Defendant in his car making a right-hand turn and driving through a stop sign without making a complete stop. Although the windows on Defendant's car were tinted, the officer identified Defendant as the operator of the vehicle by seeing through the untinted front windshield as Defendant drove toward the officer and by seeing Defendant through the driver's side window, which was down as Defendant passed by.

{3} Officer Simbala testified that, after pulling Defendant over and approaching his vehicle, he noticed that Defendant's shoulders were moving, his hands were not up on the steering wheel, but were down low, and he appeared to be “fumbling around.” He testified further that he thought Defendant was hiding something or grabbing a weapon. After making contact with Defendant and obtaining his “information,” the officer again conducted a background check and confirmed the existence of an outstanding felony warrant. Officer Stephenson arrived on the scene. Officer Simbala asked Defendant to step out of the vehicle, placed him under arrest, and then handcuffed him. At that time, Officer Simbala noticed that Defendant's pants were unzipped, and “half of his shirt was sort of pulled through it.” Defendant was placed between the two police cars on the side of the street, and Officer Simbala performed a search of Defendant. Officer Simbala testified that, although he performed a pat-down of Defendant, which did not reveal anything he believed was a weapon, he faced Defendant, grabbed and shook his waistband, pulled the front of his pants outward six to eight inches, looked down, and observed and seized a plastic bag containing crack cocaine and heroin next to Defendant's genitals. At the time of the search, Officer Simbala was wearing gloves, and Officer Stephenson, a female, was standing behind Defendant and had “no way of seeing anything.” Officer Simbala did not testify about the traffic conditions on the street at the time, whether there were members of the public watching the incident, or whether the public's view was obstructed during the search. Defendant testified on his own behalf and stated that the search was conducted around 4:25 in the afternoon at a “very busy intersection” with “hundreds and hundreds of people driving by.”

{4} At the end of the suppression hearing, the district court found there was probable cause for the officer to stop Defendant and found the search incident to his arrest was a lawful search. Five days following the district court's denial of the motion to suppress, Defendant entered a plea of no contest to trafficking by possession with intent to distribute, reserving the right to appeal the denial of his motion to suppress.

II. DISCUSSION

{5} On appeal, Defendant argues that (1) the search incident to his arrest was unreasonable under the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution; (2) his trial counsel was ineffective; (3) his plea was not entered into knowingly or voluntarily; and (4) this Court should allow him to withdraw his plea and proceed to trial instead. We agree that the search was unreasonable under the Fourth Amendment, and we will not discuss Defendant's other issues.

{6} An appellate court's review of a district court's ruling on a motion to suppress represents a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95. This Court will indulge all reasonable inferences that support the district court's decision, and all contrary evidence and inferences will be dismissed. State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-18, 134 N.M. 566, 81 P.3d 19. However, whether the district court correctly applied the facts to the law is reviewed under a de novo standard. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

{7} The Fourth Amendment of the United States Constitution, made applicable to the State of New Mexico through the Fourteenth Amendment, guarantees individuals the right to be secure in “their persons, houses, papers, and effects, against all unreasonable searches and seizures.” Mapp v. Ohio, 367 U.S. 643, 646-47, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (internal quotation marks and citation omitted); see Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“The Fourth Amendment prohibits only unreasonable searches[.]”). Likewise, Article II, Section 10 of the New Mexico Constitution protects the right of the people to be free from unreasonable searches and seizures. State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18. Both the New Mexico and United States Constitutions provide overlapping protection against unreasonable searches, so we apply the interstitial approach. Rowell, 2008-NMSC-041, ¶ 12, 144 N.M. 371, 188 P.3d 95. Under this approach, we first consider whether the United States Constitution “makes the challenged police procedures unlawful under the United States Constitution [and i]f so, the fruits usually must be suppressed [and i]f not, we next consider whether the New Mexico Constitution makes the search unlawful.” Id. (citations omitted). We conclude that this search was unreasonable under the United States Constitution, and we therefore do not analyze the issue under our state constitution.

{8} Because a warrantless search or seizure is presumed to be unreasonable, the State has the burden of showing that the search or seizure was justified by an exception to the warrant requirement. State v. Vasquez, 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct.App.1991). Recognized exceptions to the warrant requirement include exigent circumstances, consent, searches incident to arrest, plain view, inventory searches, open field, and hot pursuit. State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807 modified by State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828. While the immediate case falls within the search incident to arrest exception, and Defendant does not challenge his arrest, he does challenge the reasonableness of the search that was conducted pursuant to his arrest.

{9} Full warrantless searches of persons and their clothing, incident to any lawful arrest, regardless of the circumstances leading up to the arrest, are not unreasonable. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The justification for such broad searches incident to an arrest has been to allow officers to disarm arrestees in order to take them into custody and to prevent the destruction or concealment of evidence. Id. at 234, 94 S.Ct. 467; see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, even in searches such as this, the Fourth Amendment protects an arrestee's privacy interests in his person and prohibits intrusions that are not justified under the circumstances. See Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (concluding that the Fourth Amendment to the United States Constitution prohibits unreasonable searches and requires a consideration of the circumstances in relation to the need for the particular search).

{10} In the instant case, Defendant asserts that the search underneath his clothing was not justified under the circumstances and was an unreasonable strip search. At the outset, we note that the United States Supreme Court has yet to address strip searches incident to an arrest. In Illinois v. Lafayette, the Court explicitly stated that “[w]e were not addressing ... and do not discuss here, the circumstances in which a strip search of an arrestee may or may not be appropriate.” 462 U.S. 640, 646 n. 2, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).

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

A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject's body cavities. A “visual body cavity search” extends to visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities.

771 F.2d 556, 561 n. 3 (1st Cir.1985). Strip searches, therefore, have usually referred to the removal of the arrestee's clothing for inspection of the body. Black's Law Dictionary...