State v. Brusuelas

Certiorari Denied, No. 31,701, September 2, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-111

Filing Date: June 4, 2009

Docket No. 27,107

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DANA BRUSUELAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Frank K. Wilson, District Judge

Gary K. King, Attorney General
Francine A. Chavez, Assistant Attorney General
Santa Fe, NM

for Appellee

Jennifer R. Albright
Albuquerque, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Dana Brusuelas (Defendant) appeals her conviction for possession of
methamphetamine in violation of NMSA 1978, Section 30-31-23(D) (1990) (amended
2005). She raises two issues arising from the district court’s denial of her motion to suppress
evidence: (1) whether law enforcement officers may conduct warrantless searches of a
probationer outside the direction of a probation officer or without the probationer’s consent,
and (2) whether the law enforcement agents had reasonable suspicion that Defendant was

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committing or had committed a crime and that her vehicle or purse contained evidence of
the crime sufficient to support a warrantless search. We affirm Defendant’s conviction.

BACKGROUND AND FACTS

{2} On January 6, 2005, law enforcement agents executed a search warrant at a home in
Alamogordo, New Mexico, based on a tip that methamphetamine was for sale there. The
warrant covered the home, curtilage, and vehicles at the home. Defendant, who was on
probation as a result of an earlier conviction, happened to be present at the home as a visitor.
One of the conditions of her probation (Paragraph 9) was that she would “submit to
warrantless searches of [her] person, residence and vehicle at the discretion or direction of
[her] probation officer or any law enforcement officer.”

{3} Before searching the only vehicle at the scene, the agents determined that it belonged
to Defendant. At some point, they also learned that she was on probation and unsuccessfully
tried to reach her probation officer. Upon searching the vehicle, the agents found drug
paraphernalia, which Defendant admitted was hers. Shortly after searching the vehicle, the
agents searched Defendant’s purse inside the home and discovered the methamphetamine
on which her conviction was based. The district court denied Defendant’s motion to
suppress the evidence discovered in the searches.

{4} The district court made several relevant findings of fact and conclusions of law in
connection with its denial of the motion to suppress. The court concluded that there was no
probable cause to search Defendant’s purse, the search of the purse was not a search incident
to arrest, the searches of Defendant’s purse and vehicle were not within the scope of the
warrant being executed, Defendant was on the premises as a visitor, and the search of
Defendant’s purse went beyond what was arguably necessary to check for weapons. The
court concluded, however, that “[P]aragraph 9 in the Judgment and Sentence was intended
to apply to situations exactly like this one, in which Defendant is found at a premises where
law enforcement agents are conducting a search for illegal drugs.” Accordingly, the district
court concluded that the searches of Defendant’s vehicle and purse were reasonable and
denied her motion to suppress.

PROBATION SEARCH BY LAW ENFORCEMENT OFFICER

Standard of Review

{5} “The standard of review for suppression rulings is whether the law was correctly
applied to the facts, viewing them in a manner most favorable to the prevailing party.” State
v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and
citation omitted). “We review factual determinations by the trial court under a substantial
evidence standard” and legal questions de novo. State v. Duran, 2005-NMSC-034, ¶ 19, 138
N.M. 414, 120 P.3d 836. “[A]ll reasonable inferences in support of the [district] court’s
decision will be indulged in, and all inferences or evidence to the contrary will be
disregarded.” Jason L., 2000-NMSC-018, ¶ 10 (alterations in original) (internal quotation
marks and citation omitted). Conflicts in the evidence, even within the testimony of a
witness, are to be resolved by the fact finder at trial. Id.

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{6} “We review whether a court’s imposition of a condition of probation is lawful under
an abuse of discretion standard.” State v. Baca, 2004-NMCA-049, ¶ 13, 135 N.M. 490, 90
P.3d 509. “The court has broad discretion to effect rehabilitation and may impose conditions
[of probation] designed to protect the public against the commission of other offenses during
the term, and which have as their objective the deterrence of future misconduct.” State v.
Garcia, 2005-NMCA-065, ¶ 11, 137 N.M. 583, 113 P.3d 406 (internal quotation marks and
citation omitted).

Discussion

{7} As an initial matter, the State argues that Defendant did not preserve the issue of
whether Paragraph 9 was constitutionally permissible because she did not invoke a ruling
on the question in district court as required by Rule 12-216(A) NMRA. We conclude that
the issue was adequately preserved. First, Defendant’s motion to suppress evidence makes
several assertions that implicitly argue that the “any law enforcement officer” provision in
Paragraph 9 would be enforceable only if it were interpreted as requiring that certain
circumstances be present, such as exigent circumstances, probable cause, or a need for an
inventory search, and that, in the absence of such circumstances, the provision was not
enforceable. Second, as argued in Defendant’s reply brief, if Paragraph 9 includes an
unconstitutional requirement, it amounted to an illegal sentence. A challenge to an illegal
sentence raises a jurisdictional question. See, e.g., State v. Shay, 2004-NMCA-077, ¶ 6, 136
N.M. 8, 94 P.3d 8. This Court may consider jurisdictional questions even if no ruling on the
issue was fairly invoked in district court. Rule 12-216(B). Accordingly, we proceed to the
merits of Defendant’s argument.

{8} In her motion to suppress evidence, Defendant contended that her rights were
violated under the Fourth Amendment of the United States Constitution and Article II,
Section 10 of the New Mexico Constitution. Defendant does not argue that the New Mexico
Constitution should be interpreted differently from the United States Constitution in the
context of this appeal. “Thus, we assume without deciding that both constitutions afford
equal protection to individuals against unreasonable seizures in this context, and we analyze
the constitutionality of the seizure under one uniform standard.” State v. Ochoa,
2004-NMSC-023, ¶ 6, 135 N.M. 781, 93 P.3d 1286.

{9} “The federal and New Mexico Constitutions are not a guarantee against all searches
and seizures, only unreasonable ones.” State v. Rowell, 2008-NMSC-041, ¶ 29, 144 N.M.
371, 188 P.3d 95. “Warrantless probation searches and seizures must comply with the
reasonableness components of the Fourth Amendment and of Article II, Section 10, of the
New Mexico Constitution.” State v. Ponce, 2004-NMCA-137, ¶ 16, 136 N.M. 614, 103 P.3d
54. “‘[T]he reasonableness of a search is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate governmental interests.’” Baca, 2004-
NMCA-049, ¶ 26 (quoting United States v. Knights, 534 U.S. 112, 118-19 (2001)). “A
search and seizure conducted without a warrant is unreasonable unless it is shown to fall
within one of the exceptions to the warrant requirement.” State v. Diaz, 1996-NMCA-104,

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¶ 8, 122 N.M. 384, 925 P.2d 4. “A valid consensual search has been acknowledged as an
exception to the warrant requirement.” Id. ¶ 9.

{10} A condition of probation must be “reasonably related to [the probationer’s]
rehabilitation.” NMSA 1978, § 31-20-6(F) (2007). “To be reasonably related, the probation
condition must be relevant to the offense for which probation was granted.” State v.
Gardner, 95 N.M. 171, 174, 619 P.2d 847, 850 (Ct. App. 1980).

{11} We have not previously considered whether a condition of probation allowing
warrantless searches by law enforcement agents without the participation of probation
officers is inherently unreasonable and thus impermissible. In State v. Gallagher, 100 N.M.
697, 699, 675 P.2d 429, 431 (Ct. App. 1984), we specifically declined to reach the question.
In Gallagher, which concerned consent to searches by a probation officer, we stated, “[w]e
do not reach the question in this case whether probationary search conditions may be
extended to allow searches by any law enforcement officials.” Id. In the present case,
although we again decline to establish a general rule, we conclude that the searches of
Defendant’s vehicle and purse were reasonable under existing law.

{12} Citing Gardner, Defendant argues that warrantless searches of probationers must be
conducted by or under the direction of probation officers, unless the probationer consents
to the search. In Defendant’s case, the search was conducted by agents of the Otero County
Narcotics Enforcement Unit and the Alamogordo Department of Public Safety. We do not
interpret Gardner as narrowly as Defendant. In Gardner, a condition of the defendant’s
probation was that he “shall submit to a search of his car, person or residence at anytime
upon request of his probation officer.” 95 N.M. at 172, 619 P.2d at 848. Thus, language in
Gardner suggesting that the search by a law enforcement officer was proper “because it was
requested by the probation officer” relates to the fact that the defendant there, unlike
Defendant here, had not agreed to be searched by any law enforcement officer. Id. at 175,
619 P.2d at 851.

{13} In State v. Marquart, 1997-NMCA-090, 123 N.M. 809, 945 P.2d 1027, where the
central issue was whether the exclusionary rule applied in probation revocation hearings, the
defendant was searched by a law enforcement officer in the course of a traffic stop. The
defendant was on probation but had not agreed to warrantless searches. Holding that the
exclusionary rule applied, we observed that our holding “does not prevent a court from
imposing as a condition of probation that the probationer give his or her consent to
reasonable warrantless searches by a probation officer to ensure compliance with the
conditions of probation.” Id. ¶ 19. In limiting this observation to probation officers, we
again indicated our disinclination to rule on whether consent to warrantless searches by any
law enforcement officer was a permissible condition of probation, while at the same time
indicating our continued approval of conditions such as the one in Gardner, which limited
warrantless searches to ones involving probation officers.

{14} In Knights, the United States Supreme Court upheld a warrantless search of a
probationer’s home in circumstances similar to those before us. The defendant, on probation
for a drug offense, had agreed to submit to searches by any probation or law enforcement

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officer as a condition of his probation. 534 U.S. at 114. A detective investigating an arson
observed suspicious items in a truck belonging to an individual who had just left the
defendant’s home. Id. at 115. Based on these observations, the detective, aware of the
condition of probation in the defendant’s probation order, returned to the defendant’s home
and conducted a warrantless search, which revealed incriminating evidence. Id. In holding
that the search was reasonable, the Supreme Court balanced the degree of intrusion on the
defendant’s privacy against the protection of legitimate government interests. Regarding the
intrusion on the defendant’s privacy, the Court stated, “[i]nherent in the very nature of
probation is that probationers do not enjoy the absolute liberty to which every citizen is
entitled.” Id. at 119 (internal quotation marks and citation omitted). The Court also found
that two government interests were served, stating, “[i]t was reasonable to conclude that the
search condition [of probation] would further the two primary goals of
probation—rehabilitation and protecting society from future criminal violations.” Id.
Balancing these considerations, the Court found that the lesser standard of reasonable
suspicion, not probable cause, “satisfies the Constitution when the balance of governmental
and private interests makes such a standard reasonable.” Id. at 121. We have cited the
Knights approach with approval. “In New Mexico, as well, whether a search is unreasonable
is determined by balancing the degree of intrusion into a probationer’s privacy against the
interest of the government in promoting rehabilitation and protecting society.” Baca, 2004-
NMCA-049, ¶ 32.

{15} Applying the above principles to the circumstances of Defendant’s case, we conclude
that Paragraph 9 was consistent with our prior cases and constitutionally permissible. First,
as discussed below, the presence of Defendant at a home being searched for evidence of drug
sales met the standard of reasonable suspicion. Knights, 534 U.S. at 121; Baca, 2004-
NMCA-049, ¶ 41. Second, Defendant agreed to the condition of probation in Paragraph 9
that required her to submit to warrantless searches by any law enforcement officer. See
Gallagher, 100 N.M. at 699, 675 P.2d at 431 (rejecting the defendant’s argument that a
choice between a consent-to-search provision and going to prison was not really a choice and
thus consent was not voluntary). Third, Paragraph 9 appears to be reasonably related to
Defendant’s rehabilitation. The record indicates that the offense for which Defendant was
on probation was child abuse (negligently caused, no great bodily harm). The warrantless
search condition appears to indirectly further the goal of preventing another incident of child
abuse. We observe that the judgment and sentence in which Paragraph 9 appears contains
indications that alcohol was involved, as another condition of probation required Defendant
to complete a two-year inpatient program and to avoid alcohol. Requiring Defendant to
submit to searches would tend to advance her rehabilitation by ensuring that she did not
possess alcohol. In addition, though the probationary strictures emphasize alcohol use, they
are not limited to alcohol. The requirement under Paragraph 5 that Defendant “submit to
substance abuse screening and any recommendations from that screening” are broader and
could cover methamphetamine or other drug use. Fourth, because the agents were aware that
Defendant was on probation at the time of the searches, in the circumstances—the agents
were executing a search warrant at an alleged drug home—the search was reasonably related
to “[t]he general purposes of probation, under federal or New Mexico law, [of] rehabilitation
and deterrence for community safety.” Baca, 2004-NMCA-049, ¶ 36. Fifth, there is no
indication that the agents knew beforehand that Defendant would be present at the home, and

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thus the search cannot be considered “a subterfuge for criminal investigation[].” Gardner,
95 N.M. at 175 (internal quotation marks and citation omitted). The presence of these
factors distinguishes the circumstances of this search from those where reasonableness is
questionable or absent, such as one where a police officer stops a probationer on the street
with no indication that anything criminal is afoot. We conclude that Paragraph 9 was
properly applied.

{16} We acknowledge the point made by the dissent with regard to the potential difficulty
raised by the likelihood that the agents here were not aware of the probation condition
allowing them to conduct a warrantless search of Defendant. Had it been made below it
might well be dispositive. The difficulty is that the argument was not made to the district
court. We see no way to address the argument substantively in this case.

REASONABLE SUSPICION

Standard of Review

{17} We have held that “warrantless probation searches can and must be supported by
reasonable suspicion as defined in New Mexico law to be an awareness of specific
articulable facts, judged objectively, that would lead a reasonable person to believe criminal
activity occurred or was occurring.” Baca, 2004-NMCA-049, ¶ 43. “Determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal.” State v.
Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

Discussion

{18} The district court concluded without elaboration that the searches of Defendant’s
vehicle and purse were not done pursuant to the search warrant the agents were executing.
Rather, the district court relied on the plain language of Paragraph 9 and Defendant’s
agreement to it, and observed that the officer was aware of Defendant’s probation status.
The district court’s decision letter states:

The Court finds that these searches were reasonable under the
circumstances. The Court concludes that paragraph 9 in the Judgment and
Sentence was intended to apply to situations exactly like this one, in which
Defendant is found at a premises where law enforcement officers are
conducting a search for illegal drugs. This provision is consistent with the
goals and objectives of probation . . . .

{19} The context of the searches of Defendant’s vehicle and purse includes the fact that
a warrant was being executed pursuant to information that drugs were being sold at the
home. In State v. Williamson, 2000-NMCA-068, 129 N.M. 387, 9 P.3d 70, the defendant’s
vehicle was stopped for a traffic violation. Smelling alcohol, the officer administered the
HGN test and was considering whether to conduct additional tests. Id. ¶ 2. At that point,
a second officer told the first officer that he had found drugs on the defendant’s passenger.
Id. ¶ 4. The first officer asked the defendant whether he also had drugs on him. The

6
defendant consented to a search, during which the officer found drugs. Id. The defendant
argued that there was no reasonable suspicion to support the expansion of the traffic stop
into a drug investigation. Id. ¶ 5. We concluded that “[t]he presence of drugs in the car,
even though in the passenger’s possession, was sufficient to reasonably arouse [the officer’s]
suspicion that [the d]efendant also had drugs[,]” given the defendant’s indications of possible
impairment. Id. ¶ 10.

{20} We consider the circumstances of the present case analogous to Williamson. As
discussed above, the agents needed only reasonable suspicion that Defendant was involved
in criminal activity, not probable cause to search. As in Williamson, there was an additional
factor supporting reasonable suspicion beyond mere presence. The additional factor in
Williamson was the defendant’s own possible impairment. Here, the additional factor was
the agents’ knowledge that Defendant was on probation. The alleged presence of drugs in
the home being searched—an allegation presumably supported by probable cause, because
a court had issued the search warrant—made it reasonable for the agents to suspect that
Defendant, on probation, was somehow involved in the drug activity. “[I]t must be
remembered that the very assumption of the institution of probation is that the probationer
is more likely than the ordinary citizen to violate the law.” Knights, 534 U.S. at 120
(internal quotation marks and citation omitted). Accordingly, we conclude that the searches
of Defendant’s vehicle and purse were based on reasonable suspicion, and thus were
constitutionally permissible.

{21} Finally, Defendant argues that her purse was not on her “person” at the time it was
searched, and thus was not covered by Paragraph 9’s requirement that she consent to
searches of her “person.” The district court’s decision letter made no findings regarding the
location of the purse at the time it was searched. Defendant’s motion to suppress does not
raise this issue, although it was addressed at the hearing. Our own review of the suppression
hearing transcript indicates that there was conflicting evidence on this question. Defendant
herself testified that at the time the purse was searched, she was standing on a step next to
the bar where her purse was, and that the purse was between one and two feet away from her.
Defendant testified that she was not handcuffed, while Agent House, who searched the
purse, testified that she was. Agent House testified that Defendant had told him the purse
was hers. There was also some inconclusive testimony by Agent House, Agent Guthrie, and
Defendant regarding whether, before the purse was searched, she would have been allowed
to leave with a citation for the paraphernalia without a custodial arrest. We find no
testimony definitively establishing whether the purse was ever in Defendant’s physical
possession during the relevant times.

{22} At the hearing, Defendant’s counsel argued both that the purse was not on her person,
and that a person has a heightened expectation of privacy in items such as purses or wallets.
The State’s brief analogizes purses to pockets in clothing used to carry personal effects,
which presumably could be searched in a search of the “person.” Defendant having cited
no authority to the contrary, and having acknowledged that the purse was within one to two
feet of her at one point, we conclude that the purse was sufficiently part of her person so as
to come within a search pursuant to Paragraph 9.

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{23} The dissent does not take direct issue with our analysis. Rather it argues that there
could be no reasonable suspicion of anything absent the material found in the vehicle and
the search of the vehicle was improper because it was not proper under the warrant. The
dissent fails to recognize that all of the factors supporting reasonable suspicion in this case
apply with equal vigor to the vehicle search. That search cannot be isolated from the rest of
the case.

CONCLUSION

{24} For the reasons set forth above, we conclude that in the circumstances of her case,
the condition of Defendant’s probation that she consent to searches by “any law enforcement
officer” was applied consistent with federal and state constitutional principles in the searches
of her vehicle and purse. We affirm Defendant’s conviction.

{25} IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

I CONCUR:

ROBERT E. ROBLES, Judge

MICHAEL E. VIGIL, Judge, dissenting

Vigil, Judge (dissenting).

{26} I ultimately agree that a warrantless search of a probationer by a police officer which
is undertaken pursuant to a condition of probation which authorizes that search is reasonable
under the Fourth Amendment, and therefore constitutional, provided that the police officer
has reasonable suspicion for the search. However, I dissent for two reasons. First, I cannot
conclude that these searches were undertaken pursuant to, and under the authority of,
Defendant’s condition of probation. This is because the police officers did not know that
Defendant’s probation conditions allowed for warrantless searches by police officers in
addition to probation officers. Secondly, I disagree with the majority’s conclusion that the
searches in this case were supported by reasonable suspicion.

FACTS

{27} Defendant was visiting a house in Alamogordo, New Mexico, when officers arrived
in the afternoon to execute a search warrant at the house. The officers knew that the only
vehicle parked at the house belonged to Defendant, and that she was not an object of the
search warrant; nevertheless, they searched her vehicle without her consent. They asserted
authority to do so because the warrant included the residence, curtilage, and vehicles on the
curtilage. The officers found drug paraphernalia inside Defendant’s vehicle. After being

8
advised of the discovery and her constitutional rights, Defendant admitted she owned the
drug paraphernalia and that she had smoked methamphetamine earlier in the day. Agent
House then proceeded to search Defendant’s purse without her consent and cocaine was
found inside the purse. While executing the search warrant, the officers became aware at
some point that Defendant was on probation. The cocaine found in Defendant’s purse was
the basis for the fourth degree felony charge in Count I, possession of cocaine, a controlled
substance; and the drug paraphernalia was the basis for the misdemeanor charge in Count
II, possession of drug paraphernalia.

{28} Defendant’s motion to suppress the evidence discovered in the searches of her
vehicle and purse was denied. Pertinent to this appeal, the district court made findings of
fact and conclusions of law that:

(1) Neither the search of the purse nor the search of the vehicle was within the
scope of the warrant. Defendant was at the premises as a visitor;
(2) There was no probable cause to search the purse;
(3) The search of the purse was not a search incident to arrest;
(4) The scope of the search of the purse went beyond that which would arguably
be necessary to check it for weapons;
(5) Defendant was on probation at the time of the searches, and the officers were
aware she was on probation;
(6) One condition of Defendant’s probation was, “Defendant will submit to
warrantless searches of his/her person, residence and vehicle at the discretion and direction
of his/her probation officer or any law enforcement officer”;
(7) There was no attack on the appropriateness of the condition of probation as
written and ordered, under which the authority to conduct warrantless searches is extended
beyond probation officers to include law enforcement officers;
(8) The officer did have a reasonable, articulable suspicion that the purse may
contain evidence of a violation of law, and thus a violation of probation, although that
suspicion did not rise to the level of probable cause;
(9) The condition of probation allowing warrantless searches “was intended to
apply to situations exactly like this one, in which Defendant is found at a premises where law
enforcement officers are conducting a search for illegal drugs.” Defendant thereupon
entered into a conditional plea with the State, reserving her right to appeal the denial of her
motion to suppress.

DISCUSSION

{29} Defendant did not preserve for our review whether the condition of her probation
allowing a warrantless search by a police officer in addition to a probation officer is
reasonably related to her rehabilitation. As the majority notes, in order to be valid, a
condition of probation must be “reasonably related to the defendant’s rehabilitation,” Section
31-20-6(F), and “[t]o be reasonably related, the probation condition must be relevant to the
offense for which probation was granted.” Gardner, 95 N.M. at 174, 619 P.2d at 850,
discussed in the Majority Opinion at ¶ 10. However, Defendant did not present any evidence
or argument to the district court that the warrantless search condition of her probation was

9
not “reasonably related” to the offense of child abuse (no great bodily harm), the offense for
which she was granted probation. Therefore, any argument concerning the lack of a
reasonable relationship fails due to a lack of proof. See Baca, 2004-NMCA-049, ¶ 19
(stating that the trial court properly concluded a warrantless search condition of probation
was valid where the defendant presented no evidence establishing the lack of a reasonable
relationship between the probation condition and the underlying offense); Ponce, 2004-
NMCA-137, ¶ 7 (stating that a defendant moving to suppress evidence has the burden to
come forward with evidence to raise an issue as to an illegal search and seizure, and once
she has done so, the burden shifts to the state to justify the warrantless search or seizure).
I therefore assume that the warrantless search condition of Defendant’s probation is
reasonably related to Defendant’s rehabilitation.

{30} However, Defendant argues on appeal that the condition of her probation which
requires her to submit to warrantless searches of her person, residence, and vehicle at the
discretion or direction of her probation officer or any law enforcement officer is
unconstitutional. I agree with the majority that we must address Defendant’s constitutional
argument, even if she did not preserve that issue in the district court. We must address this
contention because if the condition is unconstitutional, it results in an illegal sentence. See
Shay, 2004-NMCA-077, ¶ 6 (noting that we have allowed both the state and defendants to
challenge illegal sentences for the first time on appeal based on the rationale that the district
court does not have jurisdiction to impose an illegal sentence and the appellate rules allow
jurisdictional issues to be raised for the first time on appeal).

{31} Defendant first argues that a probation condition, which allows for warrantless
searches, is unconstitutional unless the warrantless searches are “probation searches” that
are “conducted as part of the probationary process” for a probation violation. However, this
argument has already been rejected by the United States Supreme Court. See Knights, 534
U.S. at 116 (rejecting the argument that a warrantless probation search condition must be
conducted for “probationary” purposes and not for “investigatory” purposes or it is
unconstitutional under the Fourth Amendment). Defendant does not argue that the New
Mexico Constitution affords greater protection than the United States Constitution in this
context, and we therefore assume that the protection afforded by both constitutions is
identical. Ochoa, 2004-NMSC-023, ¶ 6.

{32} Defendant next asserts that an unconstitutional search occurs where a police officer
performs a warrantless probation search and it is not “at the direction of a probation officer.”
This argument was also rejected in Knights in which a police officer performed a warrantless
search of the defendant’s apartment without the involvement of any probation officer, but
the police officer was aware of the defendant’s probation condition allowing for a
warrantless search “by any probation officer or law enforcement officer.” 534 U.S. at 114-
15, 117.

A. Knowledge of the Probation Condition

{33} In this case, the police officers became aware at some point that Defendant was on
probation. However, there is no evidence that the police officers were aware that a term of

10
her condition was that she would “submit to warrantless searches of [her] person, residence
and vehicle at the discretion or direction of [her] probation officer or any law enforcement
officer.” This is unlike Knights, in which the police officer who conducted the search of the
defendant’s apartment knew of the search condition providing for a warrantless search “by
any probation officer or law enforcement officer.” Id. at 114-15. Defendant argues that the
search is unconstitutional and cannot be validated under the condition of probation unless
the police officer knows of the probation condition at the time of the search. This presents
an issue of first impression under New Mexico law.

{34} The constitutionality of a probation search conducted by a police officer who does
not know of a probation condition allowing a search has been fully developed in California.
In In re Martinez, 463 P.2d 734 (Cal. 1970) (in bank), the California Supreme Court held
that the warrantless search of a home could not be justified as a parole search, and was
therefore unconstitutional, where the police did not know of the defendant’s parole status
when they conducted the search. Id. at 737-38. People v. Robles, 3 P.3d 311 (Cal. 2000)
followed, in which the California Supreme Court held that the search of a home was
unconstitutional even though the defendant’s brother who lived in the home was on
probation and was subject to a search condition, because the police were unaware of the
condition at the time of the search. Id. at 314. People v. Sanders, 73 P.3d 496 (Cal. 2003)
followed, in which the police searched the home of two persons, one of whom was on parole
and subject to a search condition. However, the police were unaware of the search condition
at the time of the search. The California Supreme Court held that the search was
unconstitutional. Id. at 498. The reasoning of these decisions was subsequently extended
to searches of individuals on probation by police officers where the police officer did not
know of the probation condition at the time of the search. See People v. Bowers, 13 Cal.
Rptr. 3d 15, 17 (Ct. App. 2004); People v. Hoeninghaus, 16 Cal. Rptr. 3d 258 (Ct. App.
2004). This reasoning was then extended to searches of juveniles by police officers in In re
Jaime P., 146 P.3d 965, 966 (Cal. 2006), overruling In re Tyrell J., 876 P.2d 519 (Cal.
1994).

{35} The reasoning of the California courts is succinctly stated in Sanders. Unlawful
police conduct is legitimized if evidence obtained during a search which would otherwise
violate the Fourth Amendment is admitted into evidence merely because it was later
discovered that the suspect was subject to a probation or parole search condition. Sanders,
73 P.3d at 507-08. Furthermore, such a search cannot be justified as a probation or parole
search because the officer is not acting pursuant to the conditions of probation or parole. Id.
at 506. The California Supreme Court further pointed out that almost without exception in
evaluating alleged violations of the Fourth Amendment, the United States Supreme Court
has undertaken an objective assessment of the circumstances known to the officer at the time
the search was conducted. Id. at 507.

{36} We have held that warrantless probation searches and seizures must comply with the
reasonableness components of the Fourth Amendment and Article II, Section 10 of the New
Mexico Constitution. Ponce, 2004-NMCA-137, ¶ 16. In assessing reasonableness under the
Fourth Amendment, our essential inquiry, involves two questions: “whether the officer’s
action was justified at its inception, and whether it was reasonably related in scope to the

11
circumstances which justified the interference in the first place.” State v. Neal, 2007-
NMSC-043, ¶ 18, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citations
omitted) (emphasis added); State v. Robbs, 2006-NMCA-061, ¶ 12, 139 N.M. 569, 136 P.3d
570 (same). Whether reasonable suspicion to detain a person to investigate possible criminal
activity is consistent with the Fourth Amendment is measured by whether the facts give rise
to a reasonable suspicion at the inception of the detention. State v. Ochoa, 2008-NMSC-
023, ¶¶ 17, 19, 143 N.M. 749, 182 P.3d 130; City of Roswell v. Hudson, 2007-NMCA-034,
¶ 15, 141 N.M. 261, 154 P.3d 76. Searches of high school students do not require probable
cause, but school officials must have reasonable grounds for suspecting that a search will
turn up evidence that the student has violated, or is violating, the law or the rules of the
school. Such reasonable grounds must exist at the inception of the search. State v. Pablo
R., 2006-NMCA-072, ¶ 11, 139 N.M. 744, 137 P.3d 1198.

{37} The majority contends that this issue was not preserved for our review. Majority
Opinion ¶ 16. I disagree. Defendant’s written motion to suppress alleged in part that the
search of her vehicle and purse were without her consent and beyond the scope of the search
warrant the officers were executing for the premises she was visiting. Defendant therefore
asserted that these searches violated her Fourth Amendment rights. This was sufficient to
place burden on the State to justify these warrantless searches. Ponce, 2004-NMCA-137,
¶ 7 (“In the face of a defendant’s challenge to the constitutionality of a warrantless arrest or
search, the State is required to present testimony or other evidence showing that the arrest
or search met constitutional muster.”). At the hearing on the motion, the State asserted it
would rely, in part, upon Paragraph 9 of Defendant’s condition of probation as justification
for the searches, and the judgment and sentence setting forth Defendant’s conditions of
probation was admitted into evidence specifically for this purpose. The State elicited from
Defendant her knowledge of the Paragraph 9 condition of her probation, but it failed to
introduce any evidence that the police officers who searched her vehicle and purse had any
knowledge of this condition of her probation before the searches. As the authorities
discussed above make clear, the State cannot rely on information discovered after a search
to justify the search. While the specific context of a warrantless probation search by police
officers has not heretofore been addressed, the general principle that the facts known to the
officer to justify the search must be known at the inception of the search is well settled.
Thus, the State was on notice that it was required to present all the facts known to the
officers before they searched Defendant’s vehicle and purse which it contended justified
these warrantless searches.

{38} I am unaware of any cases in New Mexico (or elsewhere) in which the constitutional
validity of a search was justified by information discovered after the search was completed.
Under these circumstances, the logic and reasoning of the California authorities cited above
is compelling. Although the police officers in this case knew that Defendant was on
probation, there is no evidence that they knew Defendant’s probation was subject to a
warrantless search by police officers. We cannot assume that they had such knowledge. I
therefore conclude that the search of Defendant’s automobile and her purse was
unconstitutional for this reason alone.

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B. No Reasonable Suspicion

{39} Defendant also argues that the officers did not possess reasonable suspicion to search
either her car or her purse. I agree with Defendant on this question as well.

{40} Knights acknowledges the needs of the state to monitor the conduct of individuals
on probation consistent with the Fourth Amendment and holds, “[w]hen an officer has
reasonable suspicion that a probationer subject to a search condition is engaged in criminal
activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the
probationer’s significantly diminished privacy interests is reasonable.” 534 U.S. at 121.
Thus, the officers were required to possess reasonable suspicion that Defendant was engaged
in criminal activity when they searched her vehicle and her purse. Our own Supreme Court
has recently repeated:

A reasonable suspicion is a particularized suspicion, based on all the
circumstances that a particular individual, the one detained, is breaking, or
has broken, the law. The test is an objective one. The subjective belief of
the officer does not in itself affect the validity of the stop; it is the evidence
known to the officer that counts, not the officer’s view of the governing law.
We objectively examine whether the facts available to the officer warrant the
officer, as a person of reasonable caution, to believe the action taken was
appropriate. We will find reasonable suspicion if the officer is aware of
specific articulable facts, together with rational inferences from those facts,
that, when judged objectively, would lead a reasonable person to believe
criminal activity occurred or was occurring.

State v. Hubble, 2009-NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579 (internal quotation marks
and citations omitted). Again, the facts establishing reasonable suspicion must exist at the
inception of the searches. Id. ¶ 7.

{41} The officers searched Defendant’s vehicle without her consent simply because it was
parked at the house where they were executing the search warrant. The district court
concluded that the search of the vehicle was not within the scope of the warrant and I agree.
Furthermore, there is absolutely no evidence linking Defendant’s vehicle to any suspected
criminal activity at the home where the search warrant was being executed. Any assertion
of reasonable suspicion related to the vehicle fails.

{42} With regard to the purse, the district court made a finding that the officer had a
reasonable articulable suspicion that the purse may contain a violation of the law. This
finding was apparently based upon what was discovered in the search of the vehicle, coupled
with Defendant’s admission that she owned the drug paraphernalia and that she had smoked
methamphetamine earlier in the day. However, since the initial search of Defendant’s
vehicle was unconstitutional, all evidence obtained as a result of that search cannot form the
basis for reasonable suspicion. See State v. Harris, 116 N.M. 234, 238, 861 P.2d 275, 279

13
(Ct. App. 1993) (applying fruit of the poison tree doctrine to out-of-court identification
following illegal stop); State v. Rivas, 2007-NMCA-020, ¶ 16, 141 N.M. 87, 150 P.3d 1037
(filed 2006) (noting that consent to search which is tainted by a Fourth Amendment violation
is invalid).

{43} The only facts which remain to justify searching Defendant’s purse are: (1)
Defendant was visiting a home where the officers were executing a search warrant for drugs,
and (2) Defendant was on probation. The majority concludes that this constitutes sufficient
reasonable suspicion to search the purse. Majority Opinion ¶¶ 19-20. Respectfully, I
disagree. If this were so, these two factors alone would constitute reasonable suspicion.
Thus, mere presence where a crime is being investigated coupled with the fact of probation
would negate the requirement of reasonable suspicion. Our case law is very clear that mere
presence alone at a residence where a search warrant is being executed for drugs does not
justify the arrest or detention of the mere visitor. State v. Graves, 119 N.M. 89, 94, 888 P.2d
971, 976 (Ct. App. 1994). In State v. Martinez, 1996-NMCA-109, ¶ 34, 122 N.M. 476, 927
P.2d 31, we specifically stated that police officers cannot detain a non-resident who is
present during a drug raid on a home on the basis of his presence alone. There must be
“presence plus” facts that would make detaining or searching a non-resident reasonable
under the circumstances. Id. (internal quotation marks and citation omitted).

{44} In this case, Defendant was not shown to have any connection with the drugs being
sought under the search warrant; there are no facts showing that the officers had grounds to
suspect such a connection; there were no circumstances presented to give rise to a reasonable
suspicion that Defendant was involved in criminal activity; there was no evidence of any
attempts by Defendant to flee; there was no evidence of furtive gestures or sudden
movements made by Defendant towards a weapon; there was no evidence of any threats
made by Defendant; there was no evidence that Defendant resisted detention; there was no
evidence that Defendant would destroy evidence; and there was no evidence that Defendant
was the target of the search warrant. See Graves, 119 N.M. at 94, 888 P.2d at 976
(concluding that under similar circumstances, it was not reasonable for police officers to
detain a visitor of premises which were being searched pursuant to a search warrant). The
evidence fails to establish reasonable suspicion that Defendant was committing or about to
commit any criminal offense. Under these circumstances, there is no reasonable suspicion.

{45} Notwithstanding the assertion of the majority to the contrary (Majority Opinion, ¶
23), I completely disagree with the majority’s analysis of reasonable suspicion as it concerns
both the vehicle and the purse. In addition, I do not engage in any analysis of whether
Defendant’s purse was justified as being on her “person” as the majority does. Majority
Opinion, ¶ 21.

CONCLUSION

{46} The search of Defendant’s vehicle and purse was not justified by Defendant’s
probation condition at the commencement of the search. These searches were not

14
undertaken pursuant to, and under the authority of, Defendant’s condition of probation.
Since the officers were unaware of Defendant’s condition of probation when they
commenced the search, I would reverse the order of the district court denying Defendant’s
motion to suppress on this basis alone. In the alternative, I respectfully submit that the
evidence totally fails to demonstrate reasonable suspicion to search Defendant’s vehicle and
purse. On this alternative basis, I would also reverse the order of the district court. Since
the majority disagrees, I dissent.

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Brusuelas, No. 27,107

AE APPEAL AND ERROR
AE-SB Substantial or Sufficient Evidence
AE-SR Standard of Review
AE-RM Remand

CL CRIMINAL LAW
CL-CL Controlled Substances

CA CRIMINAL PROCEDURE
CA-CR Conditions of Probation
CA-MR Motion to Suppress
CA-SZ Search and Seizure
CA-RS Reasonable Suspicion
CA-WS Warrantless Search

CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment

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