State v. PAUL T., No. 24492.

• Docket Nº: No. 24492.
• Citation: 128 N.M. 360, 993 P.2d 74, 1999 NMSC 37
• Case Date: August 31, 1999
• Court: Supreme Court of New Mexico

993 P.2d 74
128 N.M. 360
1999 NMSC 37

STATE of New Mexico, Plaintiff-Respondent,
v.
PAUL T., a child, Defendant-Petitioner

No. 24492.

Supreme Court of New Mexico.

August 31, 1999.

Rehearing Denied October 18, 1999.

993 P.2d 76

Phyllis H. Subin, Chief Public Defender, Lisabeth L. Occhialino, Assistant Appellant Defender, Albuquerque, for Petitioner

Hon. Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for Respondent.

OPINION

FRANCHINI, Justice.

{1} Paul T. contests the children's court's denial of his motion to suppress certain evidence used against him in a delinquency proceeding. The Court of Appeals affirmed

993 P.2d 77

the children's court, holding that the initial pat down of Paul's person was a valid protective search and that the subsequent search of Paul's pockets was reasonable under the circumstances. The Court of Appeals rejected Paul's argument that the pat-down search was pretextual, deciding that the argument depended on determinations of credibility and weight on which the appellate court should defer to the trier of fact. Because the Court of Appeals found the search of Paul's pockets reasonable under the circumstances, it did not reach the issue of whether Paul's alleged consent was voluntary

{2} We affirm the Court of Appeals on the issue of whether the initial pat down was a valid protective search, though we base our holding on an objective standard instead of an analysis of whether the search was pretextual. We reverse the Court of Appeals on the issue of whether the subsequent search of Paul's pockets was reasonable under the circumstances. We also reject the State's argument that the searches could be sustained as a search incident to an arrest. We hold that the search of Paul's pockets was unlawful without his valid consent, and therefore we remand to the children's court for a factual determination of voluntariness and full consideration of the validity of Paul's consent.

FACTS AND PROCEDURAL POSTURE

{3} Shortly after midnight on September 9, 1995, Officer John Serna of the Alamagordo Department of Public Safety stopped an automobile operating with only one headlight. While conferring with the driver, Officer Serna recognized Paul, who he knew was under the age of sixteen, in the rear passenger seat. Since it was a Saturday, Alamagordo's juvenile curfew ordinance had gone into effect at midnight. See Alamagordo, N.M., Code of Ordinances, § 11-03-040 (1960).

{4} Paul confirmed for Officer Serna his name and that he was fifteen years old. He told Officer Serna that he lived six blocks away, that he was on his way home, and that his sister was his guardian that evening. Officer Serna attempted to reach Paul's parents at the phone number Paul gave him, but was unable to do so. Serna cited the driver for the headlight infraction, determined Paul was in violation of curfew, and asked Paul to step out of the car. Paul complied.

{5} Section 11-03-040(c) of the curfew ordinance provides: "It shall be the duty of peace officers to apprehend and take into custody any minor found in violation of this section." The ordinance requires the officer to attempt to notify the parent or guardian of the juvenile and mandates that "such parent or guardian shall be deemed guilty of permitting a violation of this section." Id. The juvenile is released to the "parent or guardian or other person having care or custody of the minor, upon written promise that such parent or guardian will assume the responsibility that said child will comply with [the curfew ordinance]." Section 11-03-040(e).

{6} Before placing Paul in his police cruiser, Officer Serna patted him down. During the pat-down search, Officer Serna felt several items in Paul's pockets, "some of which were solid and others softer." He asked for and received Paul's permission to empty his pockets. The subsequent search revealed a sandwich-sized plastic bag containing a small amount of marijuana, a package of cigarette rolling papers, and several coins wrapped in pink tissue paper. Following this discovery, Officer Serna took Paul to the police station, completed an Incident Report, and then released Paul to his sister's custody. Later, Officer Serna contacted Paul's mother and issued her a citation for the curfew violation.

{7} On October 10, 1995, the State filed a delinquency petition in children's court charging Paul with possession of one ounce or less of marijuana, contrary to NMSA 1978, § 30-31-23 (1990), as well as possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1(A) (1981, prior to 1997 amendment). Paul moved to suppress the evidence seized as a result of the pat-down search and the search of his pockets, contending that the searches were unlawful. The children's court denied Paul's motion, whereupon he entered a no contest plea to both charges, reserving the right to appeal the suppression ruling. After the Court of Appeals affirmed the ruling, we granted certiorari and now affirm in part, reverse in part, and remand.

993 P.2d 78

DISCUSSION

{8} "The issue of suppression ... raises a mixed question of law and fact and our review on appeal is de novo." State v. Duffy, 1998-NMSC-014, ¶ 62, 126 N.M. 132, 967 P.2d 807.

{9} Paul contends that the evidence against him was obtained in violation of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Both provisions proscribe unreasonable searches by state officials. See Mapp v. Ohio, 367 U.S. 643, 648, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Gutierrez, 116 N.M. 431, 444, 863 P.2d 1052, 1065 (1993). The United States Supreme Court has held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted). Similarly, while this Court has avoided bright-line, per se rules in determining the reasonableness of searches under Article II, Section 10, see Gomez, 1997-NMSC-006, ¶¶ 44-46, 122 N.M. 777, 932 P.2d 1, we have "consistently ... expressed a strong preference for warrants." Id. ¶ 36.

{10} The State attempts to justify the warrantless search of Paul's person on three independent grounds, arguing first that it was "akin" to a search incident to arrest, second, that it was no more than a protective search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and third, that Paul validly consented to Officer Serna's search of his pockets. "[T]he State bears the burden of proving facts that justify a warrantless search and seizure." State v. Martinez, 1997-NMCA-048, ¶ 9, 123 N.M. 405, 940 P.2d 1200. We hold that the facts of this case do not support the State's first two arguments.¹

{11} The State analogizes the search of Paul's pockets in this case to a search incident to arrest, thereby obviating the need for a warrant or valid consent from Paul. Under the Fourth Amendment, the police may lawfully conduct a full, warrantless search of the arrestee's person without his or her permission. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This exception to the warrant requirement arose out of the possible danger that a person who is arrested might be hiding a weapon or that evidence of a crime might be destroyed or concealed. See id.; see also State v. Arredondo, 1997-NMCA-081, ¶ 29, 123 N.M. 628, 944 P.2d 276 (utilizing both rationales to evaluate a search incident to arrest under Article II, § 10).

{12} In United States v. Robinson, a case involving an arrest for a traffic violation, the United States Supreme Court concluded that the authority to conduct a full field search incident to a "custodial arrest" was a bright-line rule that did not depend in every case upon the existence of a concern for officer safety or the destruction or loss of evidence. See 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). It is not clear whether that Court would extend the holding of Robinson to this case, where Paul was taken into custody but not formally arrested. See People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099, 1110 n. 14 (1975) (in bank) (lamenting ambiguity of the phrase "custodial arrest" in Robinson). On one hand, the Robinson Court noted the "danger to an officer ... in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station," and concluded: "This is an adequate basis for treating all

993 P.2d 79

custodial arrests alike for purposes of search justification." 414 U.S. at 234-35, 94 S.Ct. 467. On the other hand, the Court seemed swayed by the existence of empirical studies indicating the mortal danger to police officers in making arrests after routine traffic stops, see id. at 234 n. 5, 94 S.Ct. 467 whereas no such evidence exists in this case regarding curfew violations by juveniles. Neither Paul nor the State have brought to our attention any cases under the federal constitution involving a factual scenario similar to the instant one. Cf. People v. Maher, 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044, 1047 (1976) (holding under state constitution that "a full body search incident to arrest is impermissible when the person is arrested for an offense for which he will merely be cited or released on bail"). Because of this gap in Fourth Amendment jurisprudence, together with the possibility that the Fourth Amendment does not protect Paul in the circumstances of this case, we turn to Article II, Section 10 to resolve the issue of whether Officer Serna's emptying of Paul's pockets was lawful as analogous to a search incident to arrest. See Gomez, 1997-NMSC-006, ¶¶ 19-20, 22-23, 122 N.M. 777, 932 P.2d 1 (holding that interstitial...