State v. Williams

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

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-030

Filing Date: February 8, 2010

Docket No. 28,034

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TERRY WILLIAMS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge

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

for Appellee

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

for Appellant

OPINION

ROBLES, Judge.

{1} Terry Williams (Defendant) challenges the district court’s denial of his motion to
suppress under the Fourth Amendment of the United States Constitution and Article II,
Section 10 of the New Mexico Constitution. Additionally, Defendant claims ineffective
assistance of counsel, and that his conditional plea was not entered into knowingly,

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voluntarily, or intelligently. We conclude that the Fourth Amendment requires suppression
and, accordingly, we do not reach Defendant’s other arguments.

I. BACKGROUND

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

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

{4} At the end of the suppression hearing, the district court found there was probable
cause for the officer to stop Defendant and found the search incident to his arrest was a

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lawful search. Five days following the district court’s denial of the motion to suppress,
Defendant entered a plea of no contest to trafficking by possession with intent to distribute,
reserving the right to appeal the denial of his motion to suppress.

II. DISCUSSION

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

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

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

{8} Because a warrantless search or seizure is presumed to be unreasonable, the State has
the burden of showing that the search or seizure was justified by an exception to the warrant
requirement. State v. Vasquez, 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct. App. 1991).
Recognized exceptions to the warrant requirement include exigent circumstances, consent,
searches incident to arrest, plain view, inventory searches, open field, and hot pursuit. State
v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807, modified by State v. Gallegos,

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2007-NMSC-007, 141 N.M. 185, 152 P.3d 828. While the immediate case falls within the
search incident to arrest exception, and Defendant does not challenge his arrest, he does
challenge the reasonableness of the search that was conducted pursuant to his arrest.

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

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

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

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

771 F.2d 556, 561 n.3 (1st Cir. 1985). Strip searches, therefore, have usually referred to the
removal of the arrestee’s clothing for inspection of the body. Black’s Law Dictionary
defines a strip search as “[a] search of a person conducted after that person’s clothes have
been removed, the purpose usu[ally] being to find any contraband the person might be
hiding.” Black’s Law Dictionary, 1378-79 (8th ed. 2004). Some courts have determined
that a “reach-in” search, where an individual remains clothed and the genitals are not
exposed to onlookers, is something less than a “strip search.” See United States v. Williams,
477 F.3d 974, 976-77 (8th Cir. 2007) (contrasting cases where a suspect is forced to expose
“private areas” in a public place, and holding that a reach-in search was permissible because
the police took “steps commensurate with the circumstances to diminish the potential
invasion of the suspect’s privacy,” and concluding that a reach-in search of a clothed suspect
is something less than a “full-blown strip search”); Jenkins v. State, 978 So. 2d 116, 126-28

4
(Fla. 2008) (concluding that where an officer “merely pulled the boxer shorts away from [the
suspect’s] body at the waist area and looked inside to discover the cocaine” and no body
parts were publicly exposed, the search was not a strip search); but see State v. Nieves, 861
A.2d 62, 70 (Md. 2004) (acknowledging that a strip search is “any search of an individual
requiring the removal or rearrangement of some or all clothing to permit the visual
inspection of the skin surfaces of the genital areas, breasts, and/or buttocks” (internal
quotation marks and citation omitted)); State v. Jenkins, 842 A.2d 1148, 1156 (Conn. App.
Ct. 2004) (stating that a “reach-in” search is a type of “strip search”).

{12} After a review of the case law, we conclude that this is not a strip search, and how
a reach-in search is categorized will not affect the analysis. The focus of our inquiry should
be on whether the search was reasonable under the circumstances. The touchstone of Fourth
Amendment analysis is the reasonableness of the governmental invasion of a citizen’s
personal security. Terry v. Ohio, 392 U.S. 1, 12 (1968). Although an officer of the law may
have the right to search a suspect following an arrest, the search must still be reasonable.
Fontaine v. State, 762 A.2d 1027, 1032-33 (Md. Ct. Spec. App. 2000) (“While the legal
arrest of a person should not destroy the privacy of his premises, it does for at least a
reasonable time and to a reasonable extent take his own privacy out of the realm of
protection from police interest in weapons, means of escape, and evidence. However, the
right of police to make an unqualified search of an arrestee’s person incident to an arrest is
nevertheless limited in that any such search must still be reasonable.” (internal quotation
marks and citation omitted)). Reasonableness determinations can be elusive because
“reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application.” Bell, 441 U.S. at 559. In determining the reasonableness of a
search, each case requires a balancing of the government’s need to conduct the search
against the invasion of the individual’s privacy rights. Id. Reviewing courts have
considered (1) the scope of the particular intrusion, (2) the manner in which it is conducted,
(3) the justification for initiating it, and (4) the place in which it is conducted. Id.
Accordingly, we follow other courts who have adopted the Bell factors in similar situations.
See Jenkins, 842 A.2d at 1157; Paulino v. State, 924 A.2d 308, 316-17 (Md. 2007); Nieves,
861 A.2d at 73; Fontaine, 762 A.2d at 1033.

{13} The justification for initiating the search in the instant case is inexorably tied with
the scope of the intrusion as it was conducted. Accordingly, we analyze these two factors
together. New Mexico courts have previously held that an officer needs no reason to
conduct a search incident to an arrest. Rowell, 2008-NMSC-041, ¶ 25 n.1 (“Given the
exigencies always inherent in taking an arrestee into custody, a search incident to arrest is
a reasonable preventative measure to eliminate any possibility of the arrestee’s accessing
weapons or evidence, without any requirement of a showing that an actual threat exists in
a particular case.”). However, other courts have concluded that a justified warrantless search
does not by itself give rise to the automatic right for a more intrusive search such as a reach-
in. See, e.g., United States v. Bazy, 1994 WL 539300, at *5 (D. Kan. 1994) (mem. and
order). A majority of courts have determined that an officer needs additional reasonable
suspicion in order to conduct the more intrusive search. See, e.g., Jenkins, 842 A.2d at 1156

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(“It has been recognized that under the [F]ourth [A]mendment to the [United States
C]onstitution, officers are permitted to strip[]search an individual when, subsequent to a
lawful arrest and patdown, they have a reasonable suspicion that the individual is carrying
a weapon or contraband.”). In People v. Jennings, the court concluded:

Strip searches of arrestees charged with misdemeanors or other minor
offenses violate the Fourth Amendment of the United States Constitution
unless there is a reasonable suspicion that the arrestee is concealing weapons
or contraband based on the crime charged, the particular characteristics of the
arrestee, or the circumstances of the arrest.

747 N.Y.S.2d 235, 236 (N.Y. App. Div. 2002); see Sarnicola v. County of Westchester, 229
F. Supp. 2d 259, 270 (S.D.N.Y. 2002) (“While the Second Circuit has not spoken directly
to the appropriate test for the validity of a strip search incident to a felony arrest, this [c]ourt
recently opined that the [c]ourt of [a]ppeals would apply the particularized reasonable
suspicion test to searches of felony arrestees as well, rather than permitting strip searches of
all felony arrestees solely because they had been arrested for a felony.”).

{14} In the instant case, Defendant asserts that “Officer Simbala lacked any reasonable
suspicion that [Defendant] was concealing evidence underneath his clothing and therefore
lacked any justification” for the search. We do not agree. “Reasonable suspicion must be
based on specific articulable facts and the rational inferences that may be drawn from those
facts.” State v. Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (internal
quotation marks omitted) (quoting State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920
P.2d 1038). “In determining whether reasonable suspicion exists, we examine the totality
of the circumstances.” Duran, 2005-NMSC-034, ¶ 23 (internal quotation marks and citation
omitted). “[I]n determining whether the officer acted reasonably in such circumstances, due
weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to
the specific reasonable inferences which he is entitled to draw from the facts in light of his
experience.” Terry, 392 U.S. at 27. In the instant case, Officer Simbala testified that he
observed Defendant moving in his vehicle as the officer approached. He testified further he
suspected Defendant was getting a weapon or hiding something, that when Defendant exited
the car, his pants were open with his shirt pulled through his zipper, and these actions led the
officer to believe that Defendant may have been hiding something on his person. Defendant,
however, testified in his own defense that his belt buckle may have been undone, but his
pants were not, and Officer Simbala stated, “[l]et’s see what you have” and lifted up his shirt
and unbuttoned and opened his pants. Under our standard of review, we defer to the factual
findings of the district court. The district court found the officer’s testimony credible, and
we are, therefore, unwilling to second-guess the district court’s finding. In ruling, the district
court was in a superior position to evaluate the credibility of the testimony. Although there
may have been conflicting factual evidence regarding the justification and scope of the
search, we will indulge all reasonable inferences that support the district court’s factual
findings and disregard all evidence that supports the contrary. Accordingly, we conclude

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that, under the circumstances, there was sufficient justification to search Defendant, and the
search was tailored to accommodate the reasons for the justification.

{15} Defendant also argues that the area searched was not within his immediate control
and that once he was placed in handcuffs the situation was neutralized and there was no need
for the search. However, the potential for the destruction of evidence may be diminished
when an individual is in custody, but it is not eliminated, and an officer may assume the
initiative by seizing contraband that an individual has chosen to hide in his underwear.
Williams, 477 F.3d at 975. Our cases have previously held:

Our search incident to arrest exception is a rule of reasonableness
anchored in the specific circumstances facing an officer [and d]eciding
whether there is a reasonable threat of a suspect being able to gain access to
an area to get a weapon or evidence is the kind of decision officers are
trained to make.

Rowell, 2008-NMSC-041, ¶ 24; State v. Martinez, 1997-NMCA-048, ¶ 7, 123 N.M. 405, 940
P.2d 1200 (“Even a handcuffed arrestee may be foolhardy enough to try to seize a nearby
firearm.”). In the immediate case, we cannot say that the reasons and justifications for the
search, and the narrow scope of the intrusion in direct response to those justifications, were
unreasonable under the unusual circumstances. Defendant’s own conduct gave rise to the
inference that something was hidden in the front of his pants.

{16} We next turn to the remaining Bell factors and consider the manner and place in
which the search of Defendant was conducted. Our scope of inquiry is a narrow one.
Specifically, we ask whether the facts as they were established in the district court justify the
search as it was conducted. Defendant argues that no measures were taken to ensure his
privacy interests, and the search was done in an unreasonable public location. The record
reveals that, following the traffic stop, the search took place between two cars at
approximately 4:25 p.m. We note that courts have taken into consideration whether
individuals had their “private areas” exposed to the public, United States v. Williams, 209
F.3d 940, 943 (7th Cir. 2000), the location of the search, United States v. Ashley, 37 F.3d
678, 682 (D.C. Cir. 1994), the exigent circumstances justifying conducting the search, Bazy,
1994 WL 539300, *6, and whether any steps were taken to protect the individual’s privacy,
State v. Smith, 454 S.E.2d 680, 687 (N.C. Ct. App. 1995), rev’d and dissent adopted, 464
S.E.2d 45 (N.C. 1995) (order), cert. denied, 517 U.S. 1189 (1996). We begin by noting that
Officer Simbala testified that nobody other than he and Defendant could see Defendant’s
genitals, and Defendant did not dispute this assertion. We therefore will focus our analysis
on the location of the search, exigent circumstances, and measures taken to preserve privacy.
Together, these factors attempt to balance the tension between the need for a particular
search and the invasion of personal rights. See Bell, 441 U.S. at 558.

{17} The State argues that steps were taken to protect Defendant’s privacy. However,
Defendant argues that Officer Simbala never testified that any measures were taken to ensure

7
that the search would be out of the view of passing cars. A review of the record reveals that
the issue of whether steps were taken to minimize Defendant’s exposure was never brought
up at the suppression hearing. We note, however, that Defendant admits he was placed
between two cars before the search began and testified that Officer Stephenson was not
nearby when the search took place.

{18} In Lafayette, the United States Supreme Court noted that police conduct “that would
be impractical or unreasonable[]or embarrassingly intrusive[]on the street[,] can more
readily[]and privately[]be performed at the station. For example, the interests supporting a
search incident to arrest would hardly justify disrobing an arrestee on the street.” 462 U.S.
at 645. Extra caution has been placed on strip searches because they can be degrading and
invasive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (en
banc) (noting that “strip searches involving the visual inspection of the anal and genital areas
[are] demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant,
embarrassing, [and] repulsive, signifying degradation and submission” (internal quotation
marks and citation omitted)); Deserly v. Dep’t of Corrections, 2000 MT 42, ¶ 19, 298 Mont.
328, ¶ 19, 995 P.2d 972, ¶ 19 (noting that being strip searched “is an embarrassing and
humiliating experience” (internal quotation marks and citation omitted)). While a reach-in
search may be something less than a strip search, it is clear that they are not a matter of
course for searches incident to an arrest, and they often do involve a visual inspection and/or
touching of intimate areas. The court in Bazy concluded that a search of two suspects on the
side of the road between parked police cars was a public search, and it was intrusive. 1994
WL 539300, at *8. The court confirmed that a public and intrusive search is not
commonplace and should be reserved for only the most unusual cases. Id. In that case,
earlier attempts by the detained suspects to conceal evidence by kicking multiple packages
of drugs out of their pants and under vehicles created sufficient exigencies that justified the
search. Id. at *3, 6. Additionally, the officers testified that the search was conducted
between two parked cars to protect the suspects’ modesty, and an officer obstructed the
public’s view. Id. at *7.

{19} We observe that other cases have taken into consideration the specific steps officers
have taken to protect a suspect’s modesty when exigent circumstances were lacking, or
where exigent circumstances were weighed against the location of the search. See Williams,
477 F.3d at 976-77 (allowing a reach-in search of a suspect where police drove him several
blocks to a parking lot in a residential area); Williams, 209 F.3d at 943 (holding that a reach-
in search on the side of the road at night where the suspect was never disrobed or exposed
to public view was no greater an intrusion than would have occurred at a police station);
United States v. Gordon, 2008 WL 3540007, at *1 (D. Utah 2008) (mem. and order) (finding
reasonable steps taken to protect privacy where a reach-in search occurred at night on the
passenger side of a vehicle); Jenkins, 842 A.2d 1148 (walking the suspect to the side of a
building and conducting a reach-in search struck the proper balance between the need for the
search, and the manner in which it was conducted); Smith, 454 S.E.2d at 682 (holding that
the search was not unreasonable where suspect’s pants were pulled down in between an
officer and an open car door at night); Ashley, 37 F.3d at 679 (determining that precautions

8
were taken to ensure that the suspect was not subjected to public embarrassment when a
reach-in search was conducted at the side of a bus station).

{20} In this case, we are mindful of the fact that the search was conducted in broad
daylight at rush hour on the side of a street. We cannot say that the search was not
witnessed, that the officers took steps commensurate with the circumstances to diminish the
potential invasion of Defendant’s privacy, or that the exigencies of the situation demanded
that the search be done in the moment and fashion that it was conducted. The district court
made no findings of fact regarding the location or the manner of the search, and the officer
did not testify about the reasonableness of the location. From the record, it is not clear to
this Court whether this intrusive and public search of Defendant was conducted in view of
the public, or whether members of the public observed the search. From the testimony, we
conclude that the facts of this case do not demonstrate the necessity for the immediate search
in public under the totality of the circumstances, and the record is devoid of any exigency
that would justify a search in this location. While the availability of less intrusive means
does not automatically transform an otherwise reasonable search into a Fourth Amendment
violation, the lack of a demonstrated exigency and the public location in broad daylight
during rush hour simply does not justify the reasonableness of this search’s location or
manner. Lafayette, 462 U.S. at 647. The State did not carry its burden to demonstrate that
this particular situation required or allowed the officers to conduct this particular search in
this particular manner because of exigency or location.

{21} In this case, it is not clear that the district court even considered the reasonableness
of the location, or the manner in which the search was conducted. There is no evidence in
the record regarding whether (1) Defendant was standing perpendicular or parallel to traffic,
(2) traffic was at a gridlock or passing by at a high rate of speed, or (3) there were
pedestrians in the vicinity. The only evidence regarding details of the location of the search
came from Defendant, who stated that it was a busy intersection, and there were hundreds
of people driving by. While we will indulge in reasonable, factual inferences that support
the district court’s decision, the inferences in this case are not reasonable and tend to support
the conclusion that passers-by witnessed this search. Whether the district court correctly
applied the facts to the law is reviewed under a de novo standard. Urioste,
2002-NMSC-023, ¶ 6. The United States Constitution protects individuals from
unreasonable and intrusive searches in public. Without evidence of an exigent situation, we
decline to interpret the Constitution in a manner that would allow public intrusive searches
as the norm. Government actors must have a healthy respect for a suspect’s privacy
interests. Under the circumstances, absent an affirmative showing of the reasonableness of
a search, the State has failed to carry its burden.

{22} As a final matter, we address the Dissent. The Dissent begins by questioning
whether this matter was preserved. Although it is noted that the State never questioned the
issue of preservation in its answer brief, and it is generally not appropriate for this Court to
raise preservation sua sponte, the Dissent nevertheless concludes that we should be hesitant

9
to make new law on a less than “fully developed” record. We make several observations
about this.

{23} First, it would appear from the record that Defendant believed that this particular
search violated his rights and that his counsel disagreed. The record reveals that Defendant
filed a pro se motion for new counsel and, at the hearing on that motion, the point of
contention was that Defendant thought his counsel should file a motion to suppress because
the search was an unreasonable strip search, and his counsel thought otherwise. His counsel
stated that she thought the search was a standard search incident to arrest, and there was no
merit in a suppression motion. In his own defense, Defendant stated to the court:

[My attorney] wants me to believe by me having a warrant that I don’t have
any rights and that the officer had the right to open my pants and go through
my underwear and put his hand down in my private areas searching for
contraband in front of hundreds of people. That’s not a reasonable search
and what an unreasonable search produces doesn’t make it reasonable.

So I’m not arguing that he didn’t have a right to search me. He can
search me, but he can’t open up my clothes and go inside my private areas
for contraband and do a strip search on a city street corner. And that’s the
difference between me and [my attorney].

{24} At the end of the hearing, the court allowed substitute counsel. Several months later,
Defendant’s new counsel filed a motion to suppress that was written by Defendant acting pro
se. The clearly worded motion expressed the substance of Defendant’s argument—that a
public strip search is unreasonable. We also note that the State filed a response to
Defendant’s pro se motion to suppress, in which the State argued directly on point that the
search was made pursuant to a lawful arrest. All parties should have been aware that the
heart of the motion to suppress was the extent to which the officer conducted his search, and
the extent to which such a search was reasonable in public.

{25} On appeal to this Court, one of Defendant’s contentions is that he received
ineffective assistance of counsel. His claims include that his attorney failed to file a motion
on his behalf, which forced Defendant to file his own pro se motion; and that his attorney
failed to argue the substance of his motion at the suppression hearing. Because we conclude
that the issue was clearly preserved and dispositive, we have declined to reach the ineffective
assistance of counsel claim.

{26} To the extent that the Dissent argues that the record is deficient and this Court should
therefore not address the issue, we disagree. The burden is on the State to make a sufficient
record. A defendant should not be required to spot the issues, file the motions, and direct
arguments of counsel. The lack of any development is testament to the State’s failure.

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{27} Next, the Dissent points out that the officer had reasonable suspicion to look in
Defendant’s pants; a point with which we agree. However, the officer testified that the
search into Defendant’s pants occurred after the pat-down and that the pat-down did not
reveal anything that led the officer to believe that he had a “weapon of any kind.” The facts
as established do not demonstrate a showing of exigent circumstances sufficient to justify
searching Defendant in the intrusive and public manner that occurred. No facts were
established by the State that Defendant was suspected of having a weapon after the pat-
down, or that he had attempted to destroy evidence. We therefore cannot hold that the mere
suspicion of possession of contraband, without more, is sufficient to create exigency that
would allow public searches of this nature.

III. CONCLUSION

{28} For the reasons stated above, we reverse the district court’s denial to suppress and
remand for further proceedings consistent with this Opinion.

{29} IT IS SO ORDERED.

____________________________________
ROBERT E. ROBLES, Judge

I CONCUR:

____________________________________
RODERICK T. KENNEDY, Judge

CYNTHIA A. FRY, Chief Judge, dissenting

FRY, Chief Judge (dissenting).

{30} I do not agree that the district court’s denial of Defendant’s suppression motion
should be reversed. I do not think that Defendant adequately preserved his argument that
the circumstances of the search were unreasonable. In addition, even if Defendant had
properly preserved his challenge, I would conclude that the search as undertaken struck the
appropriate balance between Defendant’s privacy interests and the public’s interest in safety
and the preservation of evidence.

{31} The transcript of the suppression hearing establishes that the litigants and the district
court did not focus on the reasonableness of the search. Instead, the testimony and counsel’s
arguments surrounded the validity of the traffic stop. The testimony comprises forty-three
pages of the transcript, and of those forty-three pages, only seven pages contain testimony
regarding the circumstances surrounding the search. Defense counsel’s closing argument

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comprises almost three pages of the transcript, yet the only argument made regarding the
search consisted of the following sentences: “The search, itself[,] was overly intrusive. . .
. [T]here was no reason for him to put his hand down [Defendant’s] pants, and fumble
around his private areas looking for drugs.” Defense counsel made no argument at all about
the area where the search took place, and he certainly did not contend that the officers failed
to take reasonable steps to protect Defendant’s privacy. Defense counsel did not cite a single
case on the issue of strip searches or reach-in searches.

{32} Generally speaking, I do not think it is appropriate for this Court to raise lack of
preservation on our own initiative because I view that to be the responsibility of the appellee,
and the State does not raise this issue in this case. However, on a record as deficient as this
one, I believe we should be reluctant to establish the constraints on the police officer’s
conduct that the majority has adopted. This is an issue of first impression in New Mexico
jurisprudence, and I think we should make new law only on the basis of a fully developed
record.

{33} That being said, even if Defendant’s offhand argument below could be deemed
adequate preservation, I would conclude that the search was reasonable under the
circumstances. The testimony of the only witness found to be credible, Officer Simbala,
established reasonable suspicion (acknowledged by the majority) that Defendant may have
concealed a weapon or contraband in his pants. Defendant was placed between the police
car and Defendant’s vehicle, and Officer Simbala then pulled the waistband of Defendant’s
pants out—not down. Defendant himself acknowledged that only he and Officer Simbala
could see Defendant’s genitals. Upon seeing the baggy in Defendant’s underwear, Officer
Simbala reached in with a gloved hand and removed the baggy. Given the possibility that
Defendant might have concealed a gun in his pants, it was reasonable for Officer Simbala
to find and remove the concealed item immediately after he arrested Defendant and certainly
before attempting to transport Defendant in the patrol car. See Rowell, 2008-NMSC-041,
¶ 13 (explaining that “searches incident to arrest have been considered reasonable because
of the practical need to prevent the arrestee from destroying evidence or obtaining access to
weapons”). In my view, this possibility constituted an exigency supporting the search as it
was conducted. Even if the officers could have walked Defendant to a more private location
before conducting the search, “[t]he reasonableness of any particular governmental activity
does not necessarily or invariably turn on the existence of alternative less intrusive means.”
Lafayette, 462 U.S. at 647 (internal quotation marks omitted). As the court noted in Bazy,
“[w]hile plainly more than a pat-down search, the intrusion here was still limited in scope.
[D]efendant . . . was not required to disrobe or to submit to a visual body cavity search.”
1994 WL 539300, *7. Consequently, I would hold that Officer Simbala’s search struck the
appropriate balance between Defendant’s privacy interests and concern for the public’s
safety and the preservation of evidence. I would affirm.

CYNTHIA A. FRY, Chief Judge

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Topic Index for State v. Williams, No. 28,034

AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal

CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment
CT-PR Privacy
CT-SU Suppression of Evidence

CL CRIMINAL LAW
CL-CL Controlled Substances

CA CRIMINAL PROCEDURE
CA-EC Exigent Circumstances
CA-MR Motion to Suppress
CA-SZ Search and Seizure
CA-SR Search Incident to Arrest
CA-WA Warrantless Arrest
CA-WS Warrantless Search

EV EVIDENCE
EV-SU Suppression of Evidence

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