State v. Benavidez

Certiorari Denied, March 24, 2010, No. 32,254

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-035

Filing Date: January 29, 2010

Docket No. 28,636

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ANDREW BENAVIDEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge

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

for Appellee

Hugh W. Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

CASTILLO, Judge.

{1} Defendant, a parolee, appeals a search of his home that was conducted pursuant to
conditions of his parole. We conclude that the Fourth Amendment does not prohibit parole
searches that are based on reasonable suspicion of a parole violation and that in the present
case the parole officer had reasonable suspicion to conduct the contested search. We do not
address Defendant’s state constitutional claim because it was not properly preserved. Lastly,

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we do not consider whether there was sufficient evidence of constructive possession because
Defendant failed to reserve this argument in his plea agreement. For these reasons, we
affirm the district court.

I. BACKGROUND

{2} The following facts are derived from the record. On July 11, 2007, Defendant’s
parole officer observed Defendant driving a car. A short time later, the parole officer and
his supervisor arrived at Defendant’s house to conduct a routine visit. When the parole
officer arrived, he saw the same car that Defendant had been driving earlier. The parole
officer knocked on the door and announced himself but received no response. While he was
waiting for a response, the parole officer noticed the curtains and blinds moving in the room
that he knew to be Defendant’s.

{3} The parole officer called for police back up. During the twenty minutes that it took
for the police to arrive, the parole officer continued to knock and announce—and continued
to receive no response. When the police arrived, the door was kicked in, and the officers
searched the house room by room. Defendant was located in his bedroom, under his bed,
and when he came out, the parole officer asked why he had been hiding. Defendant
responded that he had missed a parole meeting with the officer. Defendant was taken
outside, and the officers continued to search the house. In a set of dresser drawers in the
same bedroom where Defendant was found, the parole officer located Defendant’s
identification card, a pipe, and a baggie with a small amount of methamphetamine.

{4} Defendant was charged by criminal information in district court for one count of
possession of a controlled substance and one count of possession of drug paraphernalia. He
filed a motion to suppress the drug evidence, which the district court denied. Defendant then
entered into a conditional plea agreement. He pled guilty to one count of possession of a
controlled substance, the paraphernalia charge was dropped, and he reserved the right to
appeal the legality of the search of his home.

II. DISCUSSION

{5} Defendant makes two basic arguments on appeal. He first contends that the district
court improperly denied his motion to suppress the drug evidence because the search of his
home was constitutionally unreasonable. He also argues that the evidence should have been
suppressed because there was insufficient evidence to submit the issue of constructive
possession to a jury. We begin with the validity of the search.

A. Validity of the Search

{6} Defendant raises four challenges to the search. First, he claims that the district court
erred in not requiring the parole officer to have reasonable suspicion of criminal activity
before conducting the warrantless search. Defendant also contends that it was not reasonable
to forcibly enter Defendant’s home under the circumstances of this case. Additionally,
Defendant challenges the legality of the continued search of the home after Defendant was

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located inside. In his last point, Defendant argues that Article II, Section 10 of the New
Mexico Constitution requires that parole officers obtain a warrant before conducting a
probation or parole search that is based on reasonable suspicion of a probation or parole
violation. We will first set out the general standard of review for suppression orders, and
then we will address each of Defendant’s points.

1. Standard of Review

{7} “The legality of a search questioned in a suppression hearing is generally tested as
a mixed question of law and fact wherein we review any factual questions under a substantial
evidence standard and we review the application of law to the facts de novo.” State v. Baca,
2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509 (internal quotation marks and citation
omitted). We indulge all reasonable inferences in support of the district court’s factual
determination, and we disregard all inferences or evidence to the contrary. State v. Jason
L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856.

2. Basis for Warrantless Search

{8} Pursuant to the Fourth Amendment, “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV. “Normally, the search of a home is only reasonable
for Fourth Amendment purposes if it is conducted pursuant to a warrant grounded in
probable cause.” Baca, 2004-NMCA-049, ¶ 21. The warrant requirement protects citizens’
reasonable expectations of privacy in their homes. Chavez v. Bd. of County Comm’rs,
2001-NMCA-065, ¶ 21, 130 N.M. 753, 31 P.3d 1027 (“[T]he Fourth Amendment . . . was
intended to protect the sanctity of an individual’s home and privacy.”).

{9} The privacy rights of parolees and probationers, however, are subject to limitations
which have been addressed by the United States Supreme Court in three cases: Griffin v.
Wisconsin, 483 U.S. 868 (1987); United States v. Knights, 534 U.S. 112 (2001); and Samson
v. California, 547 U.S. 843 (2006). We provide a brief overview of these cases because they
provide the basis for much of our analysis.

{10} In Griffin, the Court evaluated a Wisconsin policy and held that a warrantless search
of a probationer conducted pursuant to the policy did not violate the Fourth Amendment
because the state’s “special needs”—as articulated through its probation
policies—“‘justif[ied] departures from the usual warrant and probable-cause requirements.”
483 U.S. at 873-74. The Court observed that probationers “do not enjoy ‘the absolute liberty
to which every citizen is entitled, but only . . . conditional liberty properly dependent on
observance of special [probation] restrictions.’” Id. at 874 (alteration in original) (citation
omitted). Griffin held that Wisconsin’s policy requiring “reasonable grounds” to search
probationers for violations of probation conditions met the minimum standards required
under the Fourth Amendment. 483 U.S. at 880.

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{11} The Knights Court addressed the question of whether warrantless searches of
probationers by law enforcement officers, not probation officers, are constitutional when
such searches are supported by less than probable cause. In that case, the defendant’s
probation order required him to “[s]ubmit his . . . person, property, place of residence,
vehicle, [and] personal effects, to [a] search at anytime, with or without a search warrant,
warrant of arrest[,] or reasonable cause by any probation officer or law enforcement officer.”
534 U.S. at 114 (internal quotation marks omitted). Because the search at issue in Knights
was conducted by a law enforcement officer, the Court did not apply the special-needs
doctrine discussed in Griffin. Instead, the Knights Court used a totality of the circumstances
test to evaluate the reasonableness of the search “with the probation search condition being
a salient circumstance.” 534 U.S. at 118. The Court ultimately found that because
probationers have a lesser expectation of privacy than do free citizens, and because the
probation condition put the defendant on notice of his limited privacy rights, the defendant’s
“reasonable expectation of privacy” was “significantly diminished.” Id. at 119-20. As such,
a search based on reasonable suspicion did not violate the defendant’s Fourth Amendment
rights. Id. at 121-22.

{12} In Samson, the Court considered “whether a suspicionless search, conducted under
the authority of [a California statute], violates the Constitution.” 547 U.S. at 846. That case
involved a challenge by a parolee to a California law. Id. The defendant was a parolee, not
a probationer and, in this regard, the Samson Court stated that “parolees have fewer
expectations of privacy than probationers, because parole is more akin to imprisonment than
probation is to imprisonment.” Id. at 850. The Court applied the totality of the
circumstances approach, not the special needs rationale of Griffin, and concluded that
searches under the California law were constitutional because a parolee does “not have an
expectation of privacy that society would recognize as legitimate.” Samson, 547 U.S. at 852.
Further, the Court held that the state has an “overwhelming interest” in supervising parolees
because “parolees . . . are more likely to commit future criminal offenses.” Id. at 853
(internal quotation marks and citation omitted).

{13} The Court also acknowledged that a state’s interests in reducing recidivism and
thereby promoting reintegration and positive citizenship among probationers and parolees
warrant privacy intrusions that would not otherwise be tolerated under the Fourth
Amendment. Id. The Court balanced the parolee’s expectation of privacy against the State’s
interest in supervising parolees and held that “the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” Id. at 848, 853, 857.

{14} Accordingly, as we address the question of a search of the home of a parolee, we look
to the Supreme Court’s two exceptions to the warrant requirement: (1) the special needs
exception and (2) the totality of the circumstances exception. United States v. Warren, 566
F.3d 1211, 1215 (10th Cir. 2009). Both apply to a parolee.

{15} In his parole agreement, Defendant agreed to comply with “Rules for Extreme Level
Supervision” and “Rules for Home Visits.” The home visit rules required Defendant to
promptly answer the door, assure that parole officers have “safe and open access” to his
home, and to general conditions regarding his behavior before and during the home visits.

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{16} As a further condition of parole, Defendant agreed to “submit to reasonable
[warrantless] searches per Probation and Parole Division [PPD] Policy.” The relevant PPD
Policy (PPD Policy) governs searches of “an offender’s person, home, or property by field
officers.” http://corrections.state.nm.us/policies/current/CD-050700.pdf. According to the
policy, a parole officer may search when there is reasonable suspicion to believe either (1)
that “the offender is in possession of prohibited items” or (2) that “a violation of [the]
conditions of probation or parole has occurred.” Id. There is no dispute as to the parole
violation. Defendant concedes that the failure to answer the door in response to the parole
officer’s knock was a parole violation. Even though he makes this concession, he argues that
the policy is unconstitutional, that the parole officer failed to comply with the policy, and
that Baca should be read to limit warrantless searches under the policies to only those cases
wherein the parole officer has reasonable suspicion of criminal activity.

a. Constitutionality of PPD Policy

{17} We turn to Samson, 547 U.S. 843, for direction in analyzing the constitutionality of
the PPD policy. Samson involved the suspicionless search of a parolee’s person under a
California statute that authorized the warrantless, suspicionless search. Defendant argues
that Samson is irrelevant because the Court simply approved California’s policy requiring
parolees to consent to warrantless, suspicionless searches. According to Defendant, Samson
does not apply because New Mexico’s parole policy requires reasonable suspicion, and
Samson “did not alter the requirement that the local government follow the regulatory system
that it has adopted for parole searches.” This argument, however, disregards the underlying
effect of the case: Samson sets the constitutional floor for permissible parole and probation
searches pursuant to a state’s policy. The California law discussed in Samson was held
constitutional, and it permits searches at any time, with or without a warrant or cause. Id.
at 846. Consequently, it follows that the New Mexico policy, which affords greater
protection than the California policy by allowing warrantless searches limited to those
supported by reasonable suspicion of parole violations, is constitutional as well.

b. Application of Policy

{18} Defendant next challenges the application of the PPD Policy. Citing to Coleman v.
Commonwealth, 100 S.W.3d 745 (Ky. 2002), Defendant asserts that the parole officer’s
entry into Defendant’s home was not authorized under the policy and was therefore
unconstitutional. Coleman is distinguishable. In Coleman, the parole officer claimed that
the search was based on reasonable suspicion of a probation violation. Id. at 754-55. The
facts, however, did not bear out his position. Id. The defendant in Coleman was not home
when the parole officer entered his home and, at that time, the parole officer had no grounds
to believe that the defendant had violated parole. The Coleman court ruled the search
unconstitutional because the parole officer had no reasonable suspicion of a parole violation
prior to entering the defendant’s residence. Id. Defendant here argues that the parole officer
did not go to Defendant’s house with any suspicion. That is true. But once the parole officer
arrived and Defendant did not open the door for a home visit, the situation changed.
Defendant concedes that the failure to answer the door in response to the parole officer’s
knocks “would amount to a parole violation.” It follows that once Defendant failed to

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answer the door as required by his parole agreement, the parole officer had reasonable
suspicion that there was a parole violation—a ruling made by the district court in this case.
Coleman does not support Defendant’s argument.

{19} Defendant also cites to Baca and urges us not to “expand the Baca holding to allow
the warrantless entry into a home based on less than reasonable suspicion of criminal
activity.” We agree that Baca holds 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. However, the
Baca Court specifically declined to address the breadth of the reasonable cause requirement
in a parole policy based on a violation of a condition of probation. Id. ¶ 38 n.3. This
unanswered question is squarely before us in the present appeal.

{20} Defendant relies on general Fourth Amendment law regarding the constitutional
safeguards protecting homes from warrantless searches and argues that it was not reasonable
to forcibly enter Defendant’s home based only on a suspicion that he might have violated his
parole agreement. Defendant does not provide any specific authority that would address the
holdings in Griffin, Knights, or Samson. The State relies on the special needs test enunciated
in Griffin and the totality of the circumstances test set forth in Knights.

{21} We rely on Griffin. The language contained in the PPD Policy and in the parole
agreement is clear. Defendant was required to answer the door when his parole officer
knocked. The language of the Wisconsin policy reviewed in Griffin is similar to the New
Mexico policy that authorizes reasonable warrantless searches when a parole officer has
reasonable suspicion to believe that a violation of the conditions of parole has occurred.
Griffin, 483 U.S. at 880 (holding that Wisconsin’s policy requiring “reasonable grounds” to
search probationers for violations of probation conditions met the minimum standards
required under the Fourth Amendment). The district court here ruled that there was
reasonable suspicion, and Defendant does not challenge that part of the ruling. Defendant’s
argument would have us ignore the conditions of parole and related PPD Policy. This we
cannot do. Thus, we hold that the initial warrantless search did not violate the Fourth
Amendment.

c. Consent to Search

{22} Defendant also argues that the parole officer’s failure to obtain Defendant’s consent
to enter the home rendered the officer’s forcible entry into the home unreasonable.
Specifically, Defendant maintains that in the parole agreement, he “agreed to consent to a
warrantless search if so requested by a parole officer” and that the agreement does not
“authorize a parole officer to search without first contacting the parolee and allowing him
to consent in accordance with his contract.” The out of state cases cited by Defendant do not
support his position.

{23} In Joubert v. State, 926 P.2d 1191 (Alaska Ct. App. 1996), a probation officer
conducted a warrantless search while the defendant was not at home. Id. at 1192. A

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probation condition required the probationer to “submit to a search of [his] . . . residence
upon request of a probation officer.” Id. at 1193 (alterations in original) (internal quotation
marks omitted). The Joubert court concluded that because the probation condition was
worded so that “the probation officer’s authority to search is premised on [the defendant]
receiving notice of the intended search,” the probation officer was required “to communicate
in some way with the probationer before conducting a search.” Id. at 1193-94. Joubert is
factually distinct from the present case. First, Defendant’s parole agreement simply states
“I will submit to reasonable warrantless searches,” and it does not require the parole officer
to make a request to search. Second, the defendant in Joubert was not present when the
probation officer arrived, was not given notice of the search, and was not given a chance to
refuse to submit to the search. Unlike the facts in Joubert, Defendant had an
opportunity—twenty minutes—to communicate with the parole officer and either grant or
refuse permission to search. Considering the evidence that Defendant was inside the house,
it was reasonable for the parole officer to conclude that Defendant’s failure to respond to the
knocking was not an expression of consent.

{24} Defendant also relies on another Alaska case, State v. James, 963 P.2d 1080 (Alaska
Ct. App. 1998), but James, like Joubert, is unavailing. In James, as a condition of probation,
the defendant was required to submit to a warrantless search of his home for the presence
of contraband upon the request of a probation officer. Id. at 1081. The officer requested to
search the defendant’s home, and he refused to consent. Id. The officer searched the home
nevertheless. Id. The defendant argued that the search violated the Fourth Amendment
because his refusal to honor the condition of probation could only result in a revocation, not
a warrantless search. Id. Although the James court observed that the Oregon courts have
interpreted this probation condition as James argued, it also concluded that the Oregon
courts appear to stand alone in their interpretation of the disputed language. Id. at 1083.
Thus, the court in James upheld the warrantless search concluding that Alaska would join
with other courts that “have consistently interpreted these provisions to authorize warrantless
searches by probation officers regardless of whether the probationer has consented . . . and
even in the face of refusal or resistance by the probationer.” Id. James does not advance
Defendant’s case.

{25} Defendant also points us to Oregon law and relies on State v. Davis, a case in which
the Oregon Court of Appeals stated that “a probation condition that requires a probationer
to submit to searches does not constitute a self-executing, prospective consent by the
probationer to a general warrantless search.” 891 P.2d 1373, 1378 (Or. Ct. App. 1995).
Despite this general statement, however, the court in Davis concluded that because the
defendant had “ample opportunity to refuse the search” as well as knowledge that he had
agreed to submit to searches as a condition of probation, the defendant’s failure to expressly
consent to the search did not require the suppression of the evidence discovered. Id. at 1378,
1379-80. In the present case, Defendant was aware of the conditions of his parole and, as
we have explained in the previous paragraph, Defendant had “ample” opportunity to refuse
entry. See id. Accordingly, even under Davis, Defendant’s motion to suppress would have
been properly denied.

3. Kicking in the Door

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{26} Defendant also challenges the parole officer’s manner of conducting the
search—kicking in the door and entering the home—as unreasonable. Defendant, however,
fails to cite any authority to support an argument that there were no grounds “to forcibly kick
in the door.” Nothing in the PPD Policy restricts the conduct of a parole search. See
http://corrections.state.nm.us/policies/current/CD-050700.pdf. As we have explained, the
parole officer knocked on the door and announced his identity for twenty minutes, and
Defendant refused to respond. In order to investigate the suspected parole violation—failure
to submit to a search—the officer was required to enter the premises. Because Defendant
did not answer the door, there appears to have been no alternative for the parole officer apart
from forced entry. See State v. Attaway, 117 N.M. 141, 147, 870 P.2d 103, 109 (1994) (“The
officer may break open any outer or inner door or window of a house, or any part of a house,
or any thing therein, to execute a search warrant, if, after notice of his authority and purpose,
he is refused admittance or when necessary to liberate himself or a person aiding him in the
execution of the warrant.” (internal quotation marks and citation omitted)), modified on other
grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80. In the absence of
authority, we conclude that the initial entry and search for Defendant was reasonable under
the Fourth Amendment.

4. Continued Search

{27} Defendant also challenges the scope of the search. According to Defendant, the
parole officer needed reasonable suspicion of a new parole violation or criminal activity to
continue to search after the initial suspicion regarding the parole violation was quelled and
after Defendant was removed from the home. There is general language banning routine
searches without reasonable suspicion: “This policy is in no way to be construed as giving
authority to PPD staff to conduct routine searches of offenders or their property without
reasonable suspicion, but specifically limits the occasions when such activities will occur.”
Probation and parole searches are thus strictly limited to those circumstances in which a
probation or parole officer has reasonable suspicion of a violation, contraband, or criminal
activity. See id.; Baca, 2004-NMCA-049, ¶ 43. There is nothing addressing whether once
evidence of contraband or a violation is discovered, a parole officer may continue to search
for evidence of further violations. The policy authorizing warrantless searches is silent
regarding the scope of authorized searches.

{28} We therefore consider, in the present case, whether the parole officer could continue
to search Defendant’s house after the officer confirmed his initial suspicion that Defendant
had violated his parole. Defendant argues that the parole officer did not articulate any
additional suspicion to support the continued search.

{29} The State relies on all of Defendant’s actions as grounds for the search. Reasonable
suspicion is evaluated under the totality of the circumstances. See State v. Talley,
2008-NMCA-148, ¶ 6, 145 N.M. 127, 194 P.3d 742 (analyzing the “reasonableness of the
law enforcement officers’ course of conduct . . . by examining the totality of the
circumstances”). Thus, we are inclined to evaluate the entire encounter and look to
Defendant’s behavior throughout the incident. This would include the movement of the
curtains, the failure to acknowledge the parole officer’s presence for twenty minutes,

8
Defendant’s hiding under the bed to avoid an encounter, and Defendant’s response to the
parole officer’s question as to why he had not answered the door. Defendant stated that he
had missed a parole meeting. The parole officer found this response to be an unsatisfactory
explanation for refusing to answer the door and for hiding under the bed.

{30} Defendant characterizes the parole officer’s disbelief as “unsupported intuition.” We
disagree. The Supreme Court of the United States has explained that in the context of parole
and probation searches, the parole officer’s experiences with the client, as well as the
officer’s experiences in other similar circumstances, is relevant to the reasonable suspicion
inquiry. See Griffin, 483 U.S. at 878-79 (acknowledging the value of “an ongoing
supervisory relationship” between officer and client). Further, when evaluating whether
reasonable suspicion exists, we look to the facts presented “in light of common sense and
. . . human experience.” See United States v. Mendez, 118 F.3d 1426, 1431-32 (10th Cir.
1997) (evaluating the contradictory and implausible information given by the driver using
common sense and human experience). A reasonable person would question Defendant’s
reasons for refusing to answer the door and then for hiding under his bed, especially in light
of the fact that Defendant knew he was required to cooperate with home visits as a condition
of probation and that a probation violation would allow a warrantless search of his home.
Defendant’s reason was that he hid because he had missed a parole meeting. The parole
officer relied on his experience as well as his common sense in determining that based on
Defendant’s odd behavior, there was a likelihood that Defendant possessed contraband or
had violated his parole in some other way. This is more than “unsupported intuition.”

{31} “[W]hether a search is unreasonable is determined by balancing the degree of
intrusion into a probationer’s [or a parolee’s] privacy against the interest of the government
in promoting rehabilitation and protecting society.” Baca, 2004-NMCA-049, ¶ 32.
Defendant argues that the State’s interest in further investigation was minimal because there
was no reasonable suspicion of criminal activity. The statute authorizing parole, however,
dictates that the purpose of parole is to “treat persons convicted of crimes based on their
individual needs ‘when a period of institutional treatment is deemed essential in the light of
the needs of public safety and their own welfare.’” State v. Utley, 2008-NMCA-080, ¶ 9,
144 N.M. 275, 186 P.3d 904 (quoting NMSA 1978, § 31-21-4 (1963)). Thus, the purposes
of parole—and as a result, the State’s interest in the continued search—are twofold: the
protection of society as well as the rehabilitation of the individual, both of which could have
been threatened had Defendant violated the conditions of his parole.

{32} Defendant’s argument also disregards his own lessened expectation of privacy as a
result of his status as a parolee. The Supreme Court of the United States has acknowledged
the same limited expectation of privacy for parolees. Samson, 547 U.S. at 850 (“[P]arolees
have fewer expectations of privacy than probationers, because parole is more akin to
imprisonment than probation is to imprisonment.”).

{33} Defendant contends that because the California law of parole differs from the New
Mexico law of parole, New Mexico parolees have a heightened expectation of privacy.
Specifically, Defendant argues that parole is required by statute for certain offenses, while
in California, parole is an “early release system” and, as a result, “New Mexico parolees

9
have a greater expectation of privacy than do California parolees.” We are unpersuaded.

{34} Samson did not rely on the consideration that in California parole can be construed
as “a privilege of early release.” Instead, the Court concluded that parole is more like
imprisonment than probation. 547 U.S. at 850. Looking to our own statutes, we see a
similar analogy between parole and imprisonment. According to NMSA 1978, Section
31-21-10(E) (2007) (amended 2009), “[e]very person while on parole shall remain in the
legal custody of the institution from which the person was released, but shall be subject to
the orders of the board.” An inmate is required to submit to “a written statement of the
conditions of parole” or the inmate will not be released. Id. Parole, therefore, is “an
established variation on imprisonment,” and “parolees have fewer expectations of privacy
than probationers.” Samson, 547 U.S. at 850 (internal quotation marks and citation omitted).
In New Mexico, “[p]robation status significantly reduces a probationer’s expectation of
privacy,” Baca, 2004-NMCA-049, ¶ 42. Because parolees have an even lower expectation
of privacy than a probationer, we are satisfied that under Samson and New Mexico law,
Defendant had a reduced expectation of privacy.

{35} We also look to New Mexico law. In State v. Ponce, we held that the search of the
defendant’s vehicle after his arrest for a parole violation was reasonable. 2004-NMCA-137,
¶ 28, 136 N.M. 614, 103 P.3d 54. In Ponce, we looked to the totality of the circumstances
as well as the defendant’s reduced expectation of privacy as a parolee. Id. The defendant
was under an excessively high assessment of risk of violation of probation and had agreed
to abide by a PPD policy that allowed staff of the PPD to conduct a search of an offender’s
home when there was reasonable cause to believe that evidence of a violation would be
found. Id. ¶¶ 12, 28. Before his arrest, the defendant had been subject to a pat-down search
which revealed a large sum of cash in small bills in spite of the parole officer’s
understanding that the defendant was unemployed. Id. ¶ 28. The defendant had lied about
how he had arrived at the probation office. Id. Based on these facts, we held that the
probation officers had a reasonable basis to search the defendant’s vehicle for evidence of
another probation violation. Id. Similarly, here Defendant’s behavior, his unsatisfactory
explanation for hiding under his bed, and Defendant’s reduced expectation of privacy all
support the scope of the search in the present case. Further, the parole officer’s obligations
to public safety and to Defendant’s rehabilitation outweighed Defendant’s privacy interest.
See People v. Young, 923 P.2d 145, 151 (Colo. Ct. App. 1995) (upholding a warrantless
parole search, which continued after the officers discovered evidence to verify the suspected
parole violation). In this case, based on the totality of the circumstances, we hold that the
parole officer had reasonable suspicion to continue the search.

5. New Mexico Constitution

{36} Defendant’s final argument relating to the propriety of the search is that the New
Mexico Constitution provides greater protection for searches of parolees than the United
States Constitution provides. The State argues that Defendant failed to preserve this
argument. We agree with the State.

{37} The New Mexico Supreme Court, in State v. Gomez, 1997-NMSC-006, 122 N.M.

10
777, 932 P.2d 1, established the framework for assessing whether a state constitutional claim
with a federal analog was preserved. “If established precedent construes the [state
constitutional] provision to provide more protection than its federal counterpart, the claim
may be preserved by (1) asserting the constitutional principle that provides the protection
sought under the New Mexico Constitution, and (2) showing the factual basis needed for the
[district] court to rule on the issue.” Id. ¶ 22. Where there is no precedent interpreting a
state constitutional right differently than its federal equivalent a litigant must meet a higher
burden. Id. ¶ 23. In these cases, “a party also must assert in the [district] court that the state
constitutional provision at issue should be interpreted more expansively than the federal
counterpart and provide reasons for interpreting the state provision differently from the
federal provision.” Id. (emphasis omitted). Having set forth the appropriate framework to
evaluate whether Defendant’s state constitutional claim was preserved, we examine whether
he has satisfied these requirements.

{38} Defendant provided the following argument in his motion to suppress:

In New Mexico, with regard to probationers, any search is
unreasonable unless an officer has a reasonable suspicion that a crime has
occurred. [Baca], 2004-NMCA-049, ¶ 37[.] Reasonable suspicion is to be
construed by New Mexico case law. Id. [] ¶ 38. The New Mexico
Constitution should be interpreted to extend this rule to parolees.

Defendant fails to direct us to any additional discussion of the issue, and we were unable to
locate in the record any further development of Defendant’s state constitutional argument.
No mention was made of this argument during the motion hearing.

{39} Defendant’s limited discussion of his state constitutional claim does not satisfy the
two requirements of the framework established in Gomez. With respect to the first of these
two requirements, Defendant’s motion fails to assert the constitutional principle that
provides the protection he seeks under the New Mexico Constitution. Defendant merely
cites Baca and, without identifying a specific article or section of the New Mexico
Constitution, claims that the New Mexico Constitution should be interpreted to provide
parolees the rights afforded to probationers in Baca. The holding in Baca was based on the
Fourth Amendment to the United States Constitution and explicitly rejected the state
constitutional arguments advanced therein. See Baca, 2004-NMCA-049, ¶¶ 30-35, 37
(holding that the federal case law construing the protections provided by the Fourth
Amendment guides our analysis of warrantless probation searches). Without more specific
guidance, we are unable to conclude that Defendant has identified a specific state
constitutional principle which provides the protection he seeks.

{40} Even if we were to infer that Defendant could only have been relying on Article 2,
Section 10 of the New Mexico Constitution for a claim that parolees should have more
protection under the state constitution than under its federal counterpart, Defendant has
failed to satisfy the second of the Gomez requirements—he did not establish the factual basis
for his claim. Instead, he merely cited Baca and claimed that the rights discussed in that case
should apply to him. Baca does not advance his arguments for additional protection under

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the state constitution and, in any case, the cite to Baca does not, in our view, constitute the
establishment of a factual basis for a state constitutional claim. Accordingly, we do not
consider Defendant’s contention. See State v. Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M.
106, 151 P.3d 67 (filed 2006) (declining to address an unpreserved argument made pursuant
to the state constitution).

B. Constructive Possession

{41} Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State
v. Boyer, 103 N.M. 655, 658-59, 658 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant argues that
the evidence could not have established that he was in constructive possession of the
methamphetamine discovered by the parole officer. The State contends that Defendant’s plea
agreement failed to reserve this issue for appeal. We agree with the State.

{42} Defendant’s plea and disposition agreement makes the following reservation: “The
defendant does not waive his right to an appeal on the issue of whether the search of his
home was unreasonable.” Although it is clear that Defendant preserved the issue of
constructive possession by filing a motion to suppress the evidence of contraband,
preservation is distinct from reservation. See State v. Chavarria, 2009-NMSC-020, ¶ 15,
146 N.M. 251, 208 P.3d 896 (explaining that preservation is “the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment of a known
right” (internal quotation marks and citation omitted)). Defendant waived his right to appeal
whether there was sufficient evidence to support constructive possession. We therefore do
not consider the merits of the argument. See id. ¶¶ 10, 16 (refusing to reach the merits of a
claim that was waived pursuant to an unconditional guilty plea).

III. CONCLUSION

{43} We affirm the district court.

{44} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
RODERICK T. KENNEDY, Judge

Topic Index for State v. Benavidez, No. 28,636

AE APPEAL AND ERROR

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AE-PA Preservation of Issues for Appeal
AE-SR Standard of Review

CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment

CA CRIMINAL PROCEDURE
CA-PL Parole
CA-RS Reasonable Suspicion
CA-SZ Search and Seizure
CA-WS Warrantless Search

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