JEC Municipal Benchbook

This chapter covers:

The constitutional right against unreasonable searches and seizures.
Searches with warrants, including issuance, execution and return.
Searches without warrants, including evidence in plain view, searches incident to arrest, exigent circumstances, consent, motor vehicle searches, roadblocks, and inventory searches.
Motions to suppress evidence, including who may file and grounds for suppression.

4.1 General

The U.S. and New Mexico Constitutions guarantee citizens the right to be free of unreasonable searches and seizures. U.S. Const., Amend. IV and N.M. Const., Art II, Sec. 10. These provisions give a judge the responsibility to determine when law enforcement officers may reasonably conduct searches.

Some aspects of the law governing search and seizure are unsettled or evolving. This chapter provides general guidelines for judges, but is not intended to address all issues that may arise.

4.2 Search Warrants

Municipal judges have authority to issue search warrants to law enforcement officers to search premises located within the municipality, but only related to offenses within the court’s jurisdiction. Rule 8-207(A). Before issuing a search warrant, the judge must make an independent determination of whether there is probable cause to believe that evidence relating to the commission of a crime exists on the premises or person to be searched. Rule 8-207(F).

Search warrants should not be issued routinely or “rubber stamped.” They should be issued only after the judge carefully and impartially reviews the facts of each case as presented in the affidavit supporting the request for the warrant. See Criminal Form 9-213, Affidavit for Search Warrant, and Criminal Form 9-214, Search Warrant.

4.2.1 Issuance
Under Rule 8-207(A), the court may issue a warrant to search for and seize the following type of property:

Property that has been obtained or is possessed in a manner that constitutes a violation of a municipal ordinance.
Property designed or intended for us, or which is or has been used, as the means of committing a violation of a municipal ordinance.
Property that would be material evidence in a prosecution for a violation of a municipal ordinance.

The warrant must contain or have attached a sworn written statement of facts showing probable cause for its issuance and the name of any person whose sworn written statement has been taken in support of the warrant. Rule 8-207(B). The probable cause must be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Rule 8-207(F). Before ruling on a request for a warrant, the court may require the person making the affidavit, and any supporting witnesses, to appear personally and testify before the court. In that case, the additional evidence must be put in writing under oath or affirmation and served with the warrant. Rule 8-207(F).

The judge’s review is almost always ex parte; the subject of the search warrant does not usually receive notice.

4.2.2 Execution and Return
A municipal search warrant must be executed by a municipal police officer, a full-time salaried state or county law enforcement officer, a campus security officer, an Indian tribal or pueblo law enforcement officer or a federal civil officer authorized to enforce or assist in enforcing any federal law. Rule 8-207(B).

The warrant must be executed within 10 days from its issuance. Rule 8-207(D). It must be served between the hours of 6:00 a.m. and 10:00 p.m. unless the issuing judge, for reasonable cause shown, authorizes its execution at any time. Rule 8-207(B).

The officer who seizes property under the search warrant must give the person from whose possession or premises the property was taken a copy of the affidavit, the search warrant and an inventory of the property taken. Or the officer must leave these copies at the place from which the property was taken. Rule 8-207(D).

The inventory of property must be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken. The inventory shall be signed by the officer and the person or persons in whose presence the inventory was taken. Rule 8-207(E).

The return to the municipal court must be made promptly after execution of the warrant. The return is accompanied by a written inventory of any property taken.

4.3 Searches Without Warrants

4.3.1 General
The law permits law enforcement officers to conduct searches without warrants in certain limited circumstances listed below, where the need or the opportunity for the officer to search immediately is especially obvious. Searches without warrants generally come to the attention of a judge in the form of motions made by defendant to suppress evidence. If the prosecutor attempts to introduce evidence that was seized after a warrantless search, the defendant may seek to have the evidence suppressed on the grounds that a warrant should have been obtained.

4.3.2 Evidence in Plain View
If an officer sees contraband or other incriminating evidence in plain view while he or she is conducting a lawful investigation, the officer may seize such property without benefit of a warrant, and if the seized property establishes probable cause, may make a warrantless arrest. Seeing contraband in plain view does not constitute a search.

4.3.3 Searches of Persons and Places

Incident to Arrest
An arresting officer may make a valid warrantless search of the person whom he or she is arresting and the portion of the premises within the arrestee's control.

The search and seizure will be invalid if the arrest is invalid.
The arrest should be made before the search.
The search should be made immediately after the arrest.
An arrest is not valid if it is merely used as an excuse to search a person or place.

A valid warrantless arrest may be made if based upon information obtained from an unidentified informant, if the information is corroborated by other information such as police reports or verification of informant's description by the police.

Exigent Circumstances
Premises may be searched without a warrant if exceptional circumstances exist (also known as "exigent circumstances”).

A situation requiring swift action to prevent imminent danger of life or serious damage to property: The claim of an extraordinary situation is measured by the facts known to the officers at the time they are called upon to act.
Imminent escape: This situation is not limited to a chase but also includes those situations where swift action is needed to prevent an escape. The "imminent escape" emergency justifies a warrantless entry into the residence of a suspect for the purpose of an arrest.
Contraband: An officer may search without a warrant when he or she has cause to believe that contraband may be immediately removed or destroyed.

Even if a law enforcement officer has legal possession of sealed boxes, the officer may not conduct a warrantless search by opening those boxes without exigent circumstances.

Voluntary Consent
A person may voluntarily consent to a search. By voluntarily consenting the person waives the right to be free from a search without a warrant. Any evidence found during a consensual search may be lawfully seized.

The person who consents must know that he or she has a right to refuse a warrantless search.
The consent must be given voluntarily; that is, the person must not be under duress or be coerced by the officer requesting the search.
The consent must be clearly and explicitly given. Permission to enter premises is not permission to search the premises.
The scope of the search must be limited to the consent given.

Consent of Co-Possessor
Where two or more people have common use of or joint access to the premises, a relationship to the premises based on right of occupancy, possession of a key to premises, individually owned property on the premises, or community property interests, and where only the consent of one of these people has been given, the search is a valid consensual search. The police cannot, however, search an area reserved for a non-consenting individual’s exclusive use. In other words, if several people live in a house, any one of those people could consent to a search of the “common area” of the house and any area under that person’s exclusive control, such as a kitchen or living room, but not another person’s bedroom.

Private Person Conducts Search
A private person who conducts a search for private purposes does not need a search warrant. Security searches made by airline employees acting under federal tariff regulations, for example, are private searches and do not require a search warrant.

Public Schools
Public school officials may conduct a warrantless search of a student's person if he or she has a reasonable suspicion that a crime has been committed or the official has reasonable cause to believe that the search will reveal evidence of the student's violation of school laws or rules.

4.3.4 Searches of Motor Vehicles
Probable cause is always needed to search a motor vehicle, whether the vehicle is parked, stopped for a license and registration check, or stopped for an investigation. Because a motor vehicle differs inherently from a residence or office due to its mobility and possibility of movement outside an officer's jurisdiction, a motor vehicle may be searched without a warrant on facts that would not necessarily justify a warrantless search of a residence or office.

The scope of a warrantless search based on probable cause is no narrower and no broader than what would be authorized by a warrant. The scope of a search must be supported by probable cause. If an officer has probable cause to search an automobile for contraband, the officer can search every part of the vehicle (including the trunk), including all containers and packages, where the contraband might be found. The scope of a warrantless search of an automobile for contraband is not defined by the nature of the container (e.g. luggage or paper bag) in which the contraband is secreted. The object of the search and the places in which there is probable cause to believe that the object may be found define the scope of the search.

Before a vehicle can be stopped, the officer must have an articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is unregistered, or that either the vehicle or occupant is otherwise in violation of the law. The stopping of only certain automobiles and the detaining of the driver in order to check license or registration constitute an infringement of a person's Fourth Amendment rights. The random stopping of vehicles does not constitute a general roadblock.

Random stopping and detaining constitute a "seizure," even if the purpose of the stop is limited and the detention brief.
At the same time that an automobile may be subject to governmental regulations, a person operating or traveling in an automobile does not lose his or her reasonable expectation of privacy.

For a warrantless search of a vehicle to be valid, there must first be a justifiable reason for stopping the vehicle.

An officer may stop a vehicle for the lawful arrest of the driver for a violation of the Motor Vehicle Code. Once the defendant is arrested, the officer may search the defendant and that portion of the vehicle that is within the defendant’s reach. In other words, the officer may search the passenger compartment of the vehicle and any containers within the passenger compartment without a warrant. This is known as a search incident to a lawful arrest. (The arresting officer may broaden the search to the entire vehicle if the officer is going to impound the vehicle. This broadened search is an inventory search, not a search incident to a lawful arrest, and may include the trunk as well as the passenger compartment of the vehicle. See below for more information on inventory searches.) The existence of a Motor Vehicle Code violation must not be used as an excuse for searching the vehicle for evidence of another crime.
As long as an officer has a reasonable suspicion, not merely a hunch, that a crime has been or is being committed, the officer may stop a vehicle for the purpose of investigating possible criminal activity, even though there is no probable cause to make an arrest. Radio dispatches from investigating officers or an eyewitness description of a vehicle at the scene of a crime are examples of cause for making a valid investigatory stop of a vehicle. When a car is being driven erratically near a border patrol check point where it is common to let illegal aliens out to walk around the check point, and where occupants of the car give evasive answers to the officer's questions, there is sufficient probable cause to search an auto without a search warrant.

Roadblocks
Officers have authority to set up general roadblocks for purposes of checking sobriety, licenses and vehicle registrations. In this situation, all vehicles are stopped at the roadblock. However, this may not be used as an excuse for searching the vehicle for evidence of another crime. In City of Las Cruces v. Betancourt, 105 N.M. 655 (Ct. App. 1987), the New Mexico Court of Appeals set forth eight standards for determining the validity of roadblocks and guidelines useful in testing that standard. These guidelines must be used in determining the reasonableness of a roadblock. No one guideline is necessarily controlling as to whether or not a search was reasonable. Those guidelines are as follows:

Role of supervisory personnel. The selection of the site and procedures for conducting the roadblock must be made by supervisory law enforcement personnel rather than officers in the field. Ideally, roadblock decisions should be made by the chief of police or other high ranking supervisory officials.
Restrictions on discretion of field officers. For a valid roadblock, it is important that the discretion of field officers be restricted. Automobiles should not be stopped randomly. It would be proper to stop every automobile. Alternatively, the procedural plan may include a mathematical selection formula, for example, stopping every third automobile. It is also wise to instruct officers orally or in writing on uniform procedures to be utilized when stopping motorists. As nearly as possible, each motorist should be dealt with in precisely the same manner.
Safety. The safety of the motoring public and the field officer should also be given proper consideration. This includes safety measures aimed at warning approaching traffic, the degree to which the roadblock causes traffic congestion, and whether the roadblock is set up in such a way so as to put the motoring public and officers in unnecessary peril.
Reasonable location. The location of the roadblock is significant in determining the degree of intrusiveness and safety of the public and police. It will also impact on the deterrent effect of the sobriety roadblock and its detection value. Obviously, a location chosen with the actual intent of stopping and searching only a particular group of people, e.g., Hispanics, African-Americans, etc., would not be tolerated.
Time and duration. This factor also bears on the intrusiveness and effectiveness of the roadblock. Reasonableness is the standard. For example, sobriety checkpoints established during the late evening hours on a weekend may be reasonable to detect drunk drivers, while continuing the roadblock through Monday morning during rush hour might not be reasonable.
Indications of official nature. The official nature of the roadblock should be immediately apparent. Officers in the field should be uniformed, police cars should be marked, and warning or stop signs, flares and pylons are advisable.

The scene should strike an appropriate balance to provide for high visibility at the roadblock, yet minimize the potential fear and apprehension to the public. In addition to being important for safety reasons, these indications will reassure motorists that the stop is duly authorized.
Length and nature of detention. The average length of time that a motorist is detained at the roadblock and the degree of intrusiveness should be minimized. This will avoid lengthy delays and traffic congestion. Initially, motorists should be detained only long enough to be informed of the purpose of the stop and to look into the vehicle for signs of intoxication. Where facts within the observation of the officer warrant further investigation, the suspected motorist should be asked to pull into a separate testing area to avoid inhibiting the flow of traffic.
Advance publicity. The deterrence value of any roadblock and its reasonableness for sobriety checks will be enhanced if given widespread advance publicity. See also State v. Clark, 112 N.M. 500 (Ct. App. 1991).

Arrest for Motor Vehicle Code Violation

After a valid license or registration check or a valid investigatory stop, there is probable cause for a warrantless search of the vehicle if the officer:
Sees contraband or other evidence of a crime in plain view.
Smells marijuana and there are exigent circumstances necessitating immediate action. The mobility of a vehicle is not enough to establish exigency.
Observes conduct reasonably related to illegal use of drugs.

As in other searches, if the driver of a vehicle gives consent and consent is unlimited in scope, and if the stop and/or arrest is initially valid, there is no issue of illegal search and any contraband found can be properly seized.

Generally, if it is practical to obtain a warrant to search a vehicle, a search warrant must be obtained. The following situations illustrate when a warrant should be obtained.

The vehicle is regularly parked in a specific location, like a person's driveway.
The vehicle travels a regular route, for example, a delivery truck.
The vehicle is in a garage for repairs.
Probable cause to search has developed after a vehicle has been impounded.

Inventory Search
An inventory search is performed to protect the contents of the vehicle. It is done to ensure that anything the driver has in the vehicle is returned to the driver when the vehicle is released (assuming the items in the vehicle are not contraband). A warrantless inventory search of a vehicle is lawful if all of the following requirements are met:

The vehicle is in police control and custody.
The inventory is made pursuant to established police regulations.
The search is reasonable, to protect the owner's property or to protect the law enforcement officer from false claims or potential danger.

If the evidence of crime that is discovered is property, the possession of which is prohibited by law, no search warrant is required before seizing the property. Inventory searches must be limited to the extent necessary to carry out the caretaking function. If the vehicle is left on the road for a long time before being taken into custody, a warrantless search is not authorized.

An inventory search of a defendant's automobile, lawfully parked at the scene of the crime, made after defendant has been arrested and booked, is lawful. The evidence obtained from the parked car will not be suppressed even if the only connection between the car, the defendant and the crime is that the defendant is the owner of the car and the keys are found in the defendant's possession during booking.

A warrantless search of an automobile is permissible when it reveals evidence of a crime by a passenger who does not own the vehicle because the defendant/passenger does not have a legitimate expectation of privacy in an automobile belonging to another. In other words, the defendant/passenger has no standing to object to a warrantless search of the driver’s vehicle, even though the passenger was being transported in the automobile.

4.4 Motion To Suppress

4.4.1 General
A person contesting a search and seizure may make a motion for return of the property and suppression of its use as evidence. Rule 8-304(C)(1). A municipal judge may hear and decide a motion to suppress only if the search and seizure was in connection with a petty misdemeanor case, otherwise the motion must be filed in the appropriate court.

At a hearing on a motion to suppress, the judge may receive evidence on any fact related to the motion. Hearsay is admissible. Rules 11-1101(d)(1) and 11-104(a). A defendant's testimony at a hearing on a motion to suppress cannot be used as substantive evidence against the defendant at trial, unless it is used to impeach his or her testimony at trial.

In cases where the search and seizure occurred without a warrant and a motion to suppress is made, the prosecution has the burden of proving by a preponderance of the evidence that circumstances existed which justified the officer's acting without a warrant.

If after a hearing the judge grants a motion to suppress, the property is returned unless otherwise subject to lawful detention, such as illegal drugs or other contraband. Charges may or may not be dismissed based upon the granting of the motion. It is up to the prosecution to determine whether they can prove their case beyond a reasonable doubt without the suppressed evidence.

4.4.2 Who May File Motion
Filing a motion to suppress the use of seized property as evidence challenges the legality of the search and seizure. Not everyone who claims an illegal search and seizure has a right to challenge it. The constitutional right for a person to be secure from unreasonable searches and seizures is a personal right. Therefore, only a person whose right to privacy has been infringed by a search and seizure has the right to challenge the search and seizure.

Property ownership or possession is a factor to be considered, but it is not a substitute for a factual finding that the owner or possessor had a legitimate expectation of privacy in the area searched. For example, passengers in a borrowed automobile who can show no legitimate expectation of privacy in the glove compartment or the area under the seat cannot challenge the seizure of property belonging to another found in these areas.

A motion to suppress should not be granted if the person making the motion had no reasonable expectation of privacy in the area searched. If the person making the motion to suppress had no legitimate expectation of privacy, then the person's right to privacy under the Fourth Amendment has not been violated.

4.4.3 Grounds for Suppression

With a Warrant
When the search was made pursuant to a search warrant, and the "good faith" exception to the exclusionary rule does not apply (see below), the following may be grounds for granting a motion to suppress:

The search and seizure was not conducted within the limits and for the reasons stated in the search warrant.
The search and seizure was conducted in an unreasonable manner.
The property obtained was not described in the warrant.
The search was made more than ten days after the warrant was issued.
The search and seizure was conducted between 10:00 p.m. and 6:00 a.m. without having been authorized.
There was no substantial basis established by the affidavit for determining the existence of probable cause, or the affidavit upon which the warrant was based is proved to be false and the falsity is known or should have been known by the person making the affidavit.

The U.S. Supreme Court has adopted a "good faith" exception to the exclusionary rule to the effect that evidence seized by police officers who are acting in reasonable reliance upon a search warrant issued by a detached and neutral judge, but ultimately found to be invalid, is admissible at trial. Suppression of evidence should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.

Without a Warrant
Wh en the search was made without a warrant, the following may be grounds for granting a motion to suppress:

The arrest preceding the search, whether with or without an arrest warrant, was invalid.
The search following the arrest was made too long after the arrest.
The search following the arrest extended beyond that portion of the premises within the arrestee's control.
The circumstances surrounding the warrantless search were not "exceptional.” For example, there was no imminent peril to life or limb.
Consent to search was not voluntarily given.
It was practical under the circumstances to obtain a search warrant to search a motor vehicle.
The initial stop of the motor vehicle was invalid.
The initial stop of the motor vehicle was invalid.