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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:48:39 2011.07.11
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMSC-026
Filing Date: June 15, 2011
Docket No. 32,263
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
TERRY WILLIAMS,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Ross C. Sanchez, District Judge
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Petitioner
Jacqueline Cooper, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM
for Respondent
OPINION
SERNA, Justice.
{1} We granted certiorari to resolve the question of whether the Fourth Amendment to
the United States Constitution prohibits an under-clothing search as part of a search incident
to arrest when the arresting officer has reason to suspect that the arrestee is concealing a
weapon or contraband under his or her clothing. The State appeals the holding of the Court
of Appeals that the roadside search of Defendant Terry Williams, incident to his arrest on
an outstanding felony warrant, violated the Fourth Amendment. We adopt and apply the
reasonableness factors articulated in Bell v. Wolfish, 441 U.S. 520 (1979), and conclude the
1
officer had reasonable suspicion to conduct an under-clothing search and the search was
reasonable under the Fourth Amendment. The Court of Appeals’ opinion is reversed.
I. BACKGROUND
{2} Defendant was stopped for a traffic violation and subsequently arrested on an
outstanding felony warrant. The Second Judicial District Court held a suppression hearing
at which both the arresting officer and Defendant testified. The district court ruled from the
bench that it found the officer’s testimony credible. Because this Court defers “to the district
court’s review of the testimony and other evidence presented,” State v. Leyva,
2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861, unless otherwise noted, the factual
background presented below is drawn from the testimony of the arresting officer at the
suppression hearing.
{3} The traffic stop occurred in Albuquerque, on University near Gibson, across the
street from a church parking lot. As the officer who conducted the stop approached the
vehicle, he saw through the open window that Defendant’s hands were removed from the
steering wheel and his shoulders were moving as if he were “fumbling around” with an
object. Based on his ten years of training and experience, the officer found these actions to
be consistent with concealing contraband or searching for a weapon. After obtaining
Defendant’s information and running a background check, the officer confirmed that an
outstanding felony arrest warrant existed for Defendant.
{4} A female backup officer arrived at the scene of the stop. The arresting officer asked
Defendant to exit the vehicle; when Defendant did so, his pants were unzipped and his belt
unbuckled. Pursuant to the warrant, Defendant was placed under arrest and handcuffed.
Defendant was placed between the two police cars parked bumper-to-bumper on the side of
University, with the female officer standing between the two cars, facing away from
Defendant, and Defendant standing between the two officers. The arresting officer patted
Defendant down incident to the arrest, and then shook the waistband of Defendant’s pants.
The officer pulled the waistband of Defendant’s pants and underpants outward six to eight
inches, looked down, and saw a plastic bag underneath Defendant’s underpants. The officer,
with a gloved hand, reached down and removed the bag; the bag’s contents later tested
positive as illegal substances.
{5} The female officer did not observe the search of Defendant. Although Defendant
testified that the search occurred on a busy street, there was no testimony by either the
officer or Defendant that any other individual, such as a pedestrian or passing driver, could
see underneath Defendant’s clothing.
{6} The district court concluded that the search of Defendant was a lawful search incident
to arrest and denied the suppression motion. Defendant entered a plea of no contest to
trafficking by possession with intent to distribute, reserving his right to appeal the denial of
the motion to suppress.
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{7} To the Court of Appeals, Defendant alleged four points of error: (1) that the under-
clothing search incident to his arrest was unreasonable under the Fourth Amendment of the
United States Constitution and Article II, Section 10 of the New Mexico Constitution; (2)
that he received ineffective assistance of counsel; (3) that his plea agreement was not entered
into knowingly or voluntarily; and (4) that his plea should be withdrawn and his case should
proceed to trial. State v. Williams, 2010-NMCA-030, ¶ 5, 148 N.M. 160, 231 P.3d 616. The
Court of Appeals determined that the search was unreasonable under the Fourth Amendment
and did not reach Defendant’s other issues. Id. ¶¶ 1, 21. Judge Fry dissented on the grounds
that Defendant had not preserved the argument that the search was unreasonable, but, if the
issue was preserved, then the search did not run afoul of the Fourth Amendment because the
officer had developed reasonable suspicion that Defendant had concealed a weapon in his
pants and the search was limited in scope. Id. ¶ 30.
II. DISCUSSION
A. Standard of Review
{8} The review of a denial of a motion to suppress presents a mixed question of fact and
law. Leyva, 2011-NMSC-009, ¶ 30. We review the factual basis of the court’s ruling for
substantial evidence, deferring to the district court’s view of the evidence. Id. When, as
here, there are no findings of fact and conclusions of law, we “draw all inferences and
indulge all presumptions in favor of the district court’s ruling.” State v. Jason L.,
2000-NMSC-018, ¶ 11, 129 N.M. 119, 2 P.3d 856. Our review of the legal conclusions of
the district court, however, is de novo. State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M.
371, 188 P.3d 95. “Warrantless seizures are presumed to be unreasonable and the State
bears the burden of proving reasonableness.” Id. ¶ 10 (internal quotation marks and citation
omitted).
B. Preservation
{9} Under Rule 12-216(A) NMRA, “[t]o preserve a question for review it must appear
that a ruling or decision by the district court was fairly invoked[.]” In his pro se motion to
suppress, on which we commend Defendant, Defendant argued that the search under his
clothing violated the Fourth Amendment. Although the parties did not, as noted by Judge
Fry in her dissent, “focus on the reasonableness of the search” at the suppression hearing,
Williams, 2010-NMCA-030, ¶ 31, Defendant’s motion to suppress properly preserved the
Fourth Amendment argument. See State v. Javier M., 2001-NMSC-030, ¶ 9, 131 N.M. 1,
33 P.3d 1.
C. Fourth Amendment Reasonableness of Under-Clothing Searches
{10} The Fourth Amendment requires all searches and seizures be executed in a
reasonable manner. See Leyva, 2011-NMSC-009, ¶ 9. Reasonableness depends “on a
3
balance between the public interest and the individual’s right to personal security free from
arbitrary interference by law officers.” Penn. v. Mimms, 434 U.S. 106, 109 (1977) (internal
quotation marks and citation omitted). It is well established that the Fourth Amendment is
not violated when an officer conducts a warrantless pat-down incident to arrest to ensure
officer safety and prevent the destruction of evidence, and Defendant does not challenge the
constitutionality of the initial pat-down he received. See United States v. Robinson, 414 U.S.
218, 234 (1973); Rowell, 2008-NMSC-041, ¶ 13. It is undisputed, however, that the search
in this case extended beyond a pat-down of Defendant’s outer clothing. When a more
invasive search is conducted, it is not presumed to be reasonable simply because it occurs
incident to an arrest. See Amaechi v. West, 237 F.3d 356, 361 (4th Cir. 2001); United States
v. Scott, 987 A.2d 1180, 1195 (D.C. 2010).
{11} To guide the reasonableness analysis of more intrusive searches, such as the under-
clothing search that occurred in this case, courts review the factors articulated by the United
States Supreme Court in Bell: “the scope of the particular intrusion, the manner in which
it is conducted, the justification for initiating it, and the place in which it is conducted.” 441
U.S. at 559 (setting forth the factors to determine the reasonableness of strip and visual body
cavity searches of detainees). See, e.g., Amaechi, 237 F.3d at 361; Hill v. Bogans, 735 F.2d
391, 393-94 (10th Cir. 1984); Scott, 987 A.2d at 1195; State v. Nieves, 861 A.2d 62, 71 (Md.
2004); People v. Hall, 886 N.E.2d 162, 166 (N.Y. 2008); State v. Battle, 688 S.E.2d 805, 812
(N.C. Ct. App. 2010). We approve the Court of Appeals’ incorporation of the Bell factors
into New Mexico jurisprudence to consider whether the search of Defendant was reasonable
under the Fourth Amendment. Williams, 2010-NMCA-030, ¶ 12.
{12} Before discussing the Bell factors in the context of Defendant’s search, we resolve
the question of the minimum quantum of suspicion required to justify an under-clothing
search conducted incident to an arrest.1 Although the United States Supreme Court has not
addressed directly the question of the level of proof necessary to justify a search more
intrusive than a pat-down,2 the weight of authority supports a requirement of reasonable
1
The parties and the Court of Appeals, 2010-NMCA-030, ¶ 11, spend a good deal
of time discussing the proper nomenclature for the search of Defendant. Although we cite
cases that do so, we do not feel it necessary to label the search a “reach-in,” “strip search,”
or something else, as the Bell test is inherently one of reasonableness under the
circumstances. See Stanley v. Henson, 337 F.3d 961, 964 n.2 (7th Cir. 2003) (“Whether the
procedure at issue here was a ‘strip search’ or just a ‘search’ more appropriately goes to the
question of the scope or manner of the intrusion involved.”).
2
In Bell, the searches were found to be permissible “on less than probable cause,”
441 U.S. at 560, though three dissents would have required a specific justification, see id.
at 563 (Powell, J., concurring in part and dissenting in part) (“at least some level of cause,
such as reasonable suspicion”); id. at 578 (Marshall, J., dissenting) (requiring a showing of
compelling necessity); id. at 595 (Stevens, J., dissenting) (requiring a showing of probable
4
suspicion that the arrestee is concealing a weapon or contraband underneath his or her
clothing before an under-clothing search is conducted. See State v. Jenkins, 842 A.2d 1148,
1156 (Conn. App. Ct. 2004) (adopting the requirement that an officer have reasonable
suspicion “that the individual is carrying a weapon or contraband” prior to conducting a strip
search); Scott, 987 A.2d at 1196-97 (stating that the majority of courts which have
considered the issue require at least reasonable suspicion of an attempt to hide contraband
or a weapon before permitting a strip search).
{13} A search incident to arrest is a reasonable warrantless search because courts have
long acknowledged that the societal interest in preventing the destruction of evidence and
protecting the arresting officer outweighs the minimal intrusion of a pat-down. Rowell,
2008-NMSC-041, ¶¶ 13-14 (stating that the search incident to arrest traditionally is limited
by “the exigencies which justify its initiation” (quoting Terry v. Ohio, 392 U.S. 1, 26
(1968)). An under-clothing search, however, is different. See Safford United Sch. Dist. #1
v. Redding, ___ U.S. ___, ___, 129 S. Ct. 2633, 2641 (2009) (discussing an under-clothing
search of a student and stating that “both subjective and reasonable societal expectations of
personal privacy support the treatment of such a search as categorically distinct, requiring
distinct elements of justification on the part of school authorities for going beyond a search
of outer clothing and belongings”); see also Schmerber v. Cal., 384 U.S. 757, 769-70 (1966)
(distinguishing a warrantless blood draw from a pat-down and stating that “[t]he interests
in human dignity and privacy which the Fourth Amendment protects forbid any such
intrusions on the mere chance that desired evidence might be obtained”). In the context of
a strip search of a visitor to a prison, our Court of Appeals determined that reasonable
suspicion of the presence of weapons or contraband on the visitor’s body was necessary to
justify an “embarrassing and humiliating” strip search. State v. Garcia, 116 N.M. 87, 89,
860 P.2d 217, 219 (Ct. App. 1993) (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.
1982)). The Court stated that the reasonable suspicion standard “is flexible enough to afford
the full measure of fourth amendment protection without posing an insuperable barrier to the
exercise of all search and seizure powers.” Id. (quoting Hunter, 672 F.2d at 674).
{14} While we acknowledge that some courts have required probable cause before an
invasive search is conducted, see, e.g., United States v. Bazy, 1994 WL 539300, *6 (D. Kan.
1994), aff’d, 82 F.3d 427 (10th Cir. 1996); Battle, 688 S.E.2d at 815, we conclude that
reasonable suspicion is the proper standard to justify an under-clothing search. We hold that
a search incident to arrest that involves an officer removing or looking under any part of an
arrestee’s clothing requires, at a minimum, particularized reasonable suspicion that the
arrestee is concealing a weapon or evidence that is susceptible to destruction before arriving
at the police station.
{15} We now apply the Bell factors to address the reasonableness of the under-clothing
search of Defendant. These factors—justification, scope, manner, and place—are reviewed
cause).
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within the context of the totality of the circumstances surrounding the under-clothing
roadside search of Defendant. See State v. Sewell, 2009-NMSC-033, ¶ 1, 146 N.M. 428,
211 P.3d 885. The determination of whether a search was reasonable is based on what did
happen, not whether the officers could have conducted the search differently. See United
States v. Sharpe, 470 U.S. 675, 686-87 (1985) (“A creative judge engaged in post hoc
evaluation of police conduct can almost always imagine some alternative means by which
the objectives of the police might have been accomplished. But the fact that the protection
of the public might, in the abstract, have been accomplished by less intrusive means does
not, itself, render the search unreasonable.” (internal quotation marks, citation, and alteration
omitted)).
{16} As discussed above, the minimum justification to conduct an under-clothing search
as part of a search incident to arrest is reasonable suspicion that the arrestee is armed or
hiding contraband.3 The Court of Appeals determined that the officer had reasonable
suspicion that Defendant was hiding a weapon or contraband in his underpants based on the
officer’s observations of Defendant’s furtive movements after stopping and Defendant’s
exiting the car with his pants in disarray. Williams, 2010-NMCA-030, ¶ 14. After reviewing
the record, deferring, as did the Court of Appeals, to the district court’s determination that
the officer’s testimony was credible, we agree that substantial evidence supports this
conclusion. Compare Jenkins v. State, 978 So. 2d 116, 127-28 (Fla. 2008) (deferring to the
trial court’s factual findings, supported by the record, that the officer was justified in
conducting a search of a suspect’s underpants for drugs after a pat-down revealed no drugs
but the officer had reasonable suspicion that the defendant was secreting drugs on his body),
with Paulino v. State, 924 A.2d 308, 319 (Md. 2007) (concluding the record did not contain
sufficient evidence to support the existence of exigent circumstances justifying a more
intrusive search, as there was no testimony that the defendant was attempting to destroy
evidence or in possession of a weapon, particularly as the officers did not conduct a pat-
down before proceeding to the strip search).
{17} The Court of Appeals concluded that the scope of the search was narrowly tailored
based on the officer’s reasonable suspicion that Defendant was concealing a weapon or
contraband. Williams, 2010-NMCA-030, ¶ 14. We agree. The officer had reasonable
suspicion that Defendant was concealing an object in his underpants; the officer limited his
under-clothing search to the specific area in which he suspected a weapon or contraband was
hidden. See United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007) (concluding that
the scope of the search was not unreasonably intrusive because the officers believed that the
defendant was hiding something in his underpants and limited the search to that area of the
3
The justification for the initial stop is not necessarily a part of this analysis, though
it may be. We reject Defendant’s suggestion that we never permit invasive searches when
the initial stop was for a crime for which no evidence could be hidden, e.g., a traffic stop.
Such a per se rule would ignore the fact that officers must be able to adjust their
investigation as the circumstances of the stop evolve. See Leyva, 2011-NMSC-009, ¶ 10.
6
body, and though the defendant’s genitals were touched in the search, “it involved no
penetration or public exposure of genitals”).
{18} The Court of Appeals determined that the State did not carry its burden to prove that
the manner of the search was reasonable. Williams, 2010-NMCA-030, ¶ 21. The district
court credited the officer’s testimony that he pulled Defendant’s waistband outwards, saw
a plastic bag, and used a gloved hand to remove the bag, and that no other person saw down
Defendant’s pants. The manner of the search was reasonable under the circumstances. See
Williams, 477 F.3d at 977 (“[A] reach-in search of a clothed suspect does not display a
suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate
with the circumstances to diminish the potential invasion of the suspect’s privacy.”); Bazy,
1994 WL 539300, *7 (finding a search reasonable when the officer wore gloves, pulled the
defendant’s pants outward, and reached in to the underpants to remove drugs). We disagree
with the Court of Appeals’ inference that “passers-by witnessed [the] search.” Williams,
2010-NMCA-030, ¶ 21. The evidence presented, viewed in the light most favorable to the
district court’s ruling, supports the inference that no one other than Defendant and the
searching officer saw underneath Defendant’s clothes; any occupant of a passing car would
have caught a glimpse of a search incident to arrest, as the more invasive aspect of the search
was conducted with adequate steps to preserve Defendant’s privacy. While we recognize
that the Fourth Amendment analysis does not turn on whether a search had witnesses, see
Battle, 688 S.E.2d at 814, the scope of the search of Defendant properly minimized the
invasion of Defendant’s privacy.
{19} The final Bell factor, the location of the search, also was found to be unreasonable
by the Court of Appeals. Williams, 2010-NMCA-030, ¶ 20. Defendant was searched on the
side of the road, protected from the public’s eye by the police cars and the officers
themselves. In Bazy, a case relied upon by the Court of Appeals, Williams, 2010-NMCA-
030, ¶ 18, the court determined that the location of the search was reasonable under the
circumstances and properly limited the intrusion into the defendant’s privacy rights. Bazy,
1994 WL 539300, *7. The search in Bazy was conducted in a location similar to the one at
issue in this appeal, and the officers acted to ensure that “[p]ublic view was blocked by the
defendant’s clothes, a trooper, and the cars” on the side of the road where the stop occurred.
Id. The justification for the search of Defendant, reasonable suspicion of destructible
evidence or weapons, required an immediate search, and the officers took adequate steps to
minimize the invasion of Defendant’s privacy. The Court of Appeals erred by concluding
that further evidence of an exigent circumstance is necessary, Williams, 2010-NMCA-030,
¶ 21, when the arresting officers have reasonable suspicion that the arrestee is concealing
weapons or evidence underneath her or his clothing and the search is conducted in a location
that minimizes the invasion of the arrestee’s privacy interests.
{20} While analysis of the Bell factors support the conclusion that the search of Defendant
was reasonable, the ultimate determination of Fourth Amendment reasonableness depends
on the balance between the public and private interests at stake. The public interest in this
case is that which justifies the search incident to arrest power as a “reasonable preventative
7
measure to eliminate any possibility of the arrestee’s accessing weapons or evidence.”
Rowell, 2008-NMSC-041, ¶ 25 n.1; see also State v. Ketelson, 2011-NMSC-023, ¶ 19, ___
N.M. ___, ___ P.3d ___ (No. 32,170, May 20, 2011) (concluding that the Fourth
Amendment is not violated by an officer’s temporary removal of a gun from a vehicle when
the officer possesses a reasonable belief that an occupant’s ready access to the gun during
a traffic stop poses a danger to officer safety). Defendant’s interest is, of course, the
expectation of privacy in his genitalia, and “the Fourth Amendment protects against the
infringement of ‘an expectation of privacy that society is prepared to consider reasonable.’”
State v. Rivera, 2010-NMSC-046, ¶ 16, 148 N.M. 659, 241 P.3d 1099 (quoting United States
v. Jacobsen, 446 U.S. 109, 113 (1984)); see Battle, 688 S.E.2d at 813 (“[D]eeply imbedded
in our culture is the belief that people have a reasonable expectation not to be unclothed
involuntarily, to be observed unclothed or to have their private parts observed or touched by
others.” (internal quotation marks, citations, and ellipsis omitted)). Based on our review of
the Bell factors, the under-clothing search of Defendant protected the public interest at stake
without unreasonably violating Defendant’s expectation of privacy under the Fourth
Amendment. See Jenkins, 978 So. 2d at 128 (applying the Bell factors to conclude that “the
very limited intrusion into [the defendant’s] clothing was clearly outweighed by the need for
law enforcement to retrieve the contraband before it could be discarded or destroyed”).
Although the district court ruled that the search was a reasonable search incident to arrest
and did not review the under-clothing search separately for reasonableness, the district court
reached the correct result and must be affirmed. See State v. Wilson, 2011-NMSC-001, ¶ 20,
149 N.M. 273, 248 P.3d 315.
{21} We hold that the under-clothing search of Defendant passes constitutional muster
because the officer had particularized reasonable suspicion that Defendant was concealing
a weapon or evidence, and the location, manner, and scope of the search were reasonable
under the circumstances. Invasive, under-clothing searches remain the exception, and this
Opinion is not to be read as an approval of the incorporation of an under-clothing search into
the typical search incident to arrest. We reject any suggestion that our holding would permit
invasive searches for all felony drug offenses, as such would be inconsistent with our
preference for case-by-case reasonableness analyses based on the totality of the
circumstances. See, e.g., Leyva, 2011-NMSC-009, ¶ 54.
III. CONCLUSION
{22} For the foregoing reasons, we reverse the opinion of the Court of Appeals. Because
we granted certiorari only on the issue of whether the search violated Defendant’s rights
under the Fourth Amendment, we remand this case to the Court of Appeals for consideration
of the other issues Defendant raised on appeal.
{23} IT IS SO ORDERED.
____________________________________
PATRICIO M. SERNA, Justice
8
WE CONCUR:
____________________________________
CHARLES W. DANIELS, Chief Justice
____________________________________
PETRA JIMENEZ MAES, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
Topic Index for State v. Williams, Docket No. 32,263
CT Constitutional Law
CT-FA Fourth Amendment
CA Criminal Procedure
CA-RS Reasonable Suspicion
CA-SZ Search and Seizure
CA-WS Warrantless Search
9