(dissenting).
{34} I am unable to concur in the holding of the Majority’s opinion that the search of Defendant’s car was unreasonable. In addition, while I do agree that under New Mexico law there is a significant body of case law affording greater protection for search cases, I write separately because the real issue in this case is not whether the search incident to a lawful arrest was justified, but rather, whether the search by the arresting officer was justified under the circumstances when Defendant gave him the ear keys and he searched Defendant’s ear before delivering the keys to Defendant’s grandmother.
SEARCH BY DECEPTION
{35} As the Majority points out, Officer Tubbs arrested Defendant and put him in the rear seat of his patrol car, after which Defendant asked Officer Tubbs to give his car keys to his grandmother, who lived in the apartment complex. Officer Tubbs took the ear keys, but instead of taking the keys directly to Defendant’s grandmother, he first conducted an inventory search of Defendant’s car where he found a loaded .40-caliber handgun underneath the driver’s seat.
{36} Under Garcia, New Mexico’s state constitution “provides greater protection, requiring a warrant or the presence of exigent circumstances to remove evidence” to conduct a search incident to an arrest. 2005-NMSC-017, ¶ 29, 138 N.M. 1, 116 P.3d 72. As the Majority notes, Officer Tubbs testified that, at the time he searched the car, he did not feel he was in any danger, nor did he expect to find any evidence in the car related to the arrest. However, Officer Tubbs’ search stems basically from Defendant’s consent, not exigent circumstances. By voluntarily giving up his car keys to Officer Tubbs, any legitimate expectation of privacy to his car that Defendant may have had, ceased at that point.
{37} Arguably, Defendant was under the impression that Officer Tubbs was going to deliver the ear keys to his grandmother and, when Officer Tubbs searched his car, he may have exceeded the scope of Defendant’s consent. In other words, Officer Tubbs may have misrepresented his true intentions when he agreed to deliver Defendant’s car keys to his grandmother. It is reasonable to conclude that the reason Defendant did not want the police to get custody of his car by impounding it is that he did not want them to find his gun in the ear.
{38} Nonetheless, this Court has recognized that entry by deception does not violate the Fourth Amendment. See, e.g., State v. Allen, 114 N.M. 146, 835 P.2d 862 (Ct.App.1992). In Allen, this Court held that an undercover officer’s entry by deception into the home of the defendant convicted as an accessory in cocaine trafficking did not result in breach of privacy and, thus, did not violate the defendant’s rights under the state constitution or the Fourth Amendment. Id. at 147, 835 P.2d at 863. Allen reasoned that, since there was no forcible entry by the officer into Defendant’s residence, by taking the officer into the house, “there was no breach of defendant’s legitimate interest in privacy.” Id.
{39} Here, like in Allen, Officer Tubbs gained access to Defendant’s car through what might have amounted to deception, but certainly was not coercion or force. Furthermore, one’s reasonable expectation of a privacy interest does not extend to an arrestee like Defendant, who voluntarily gives up his ear keys to an arresting uniformed officer contemporaneously with his arrest. “[P]olice deception which [is] not coercive in nature will not invalidate a consent to search if the record otherwise shows the consent to have been voluntary.” Matthew Bender, 1 — 8 Search and Seizure § 8.17 at 258 n. 262 (2004). Here, the officer did not demand that Defendant give him the car keys. Defendant did this voluntarily with the request that the officer deliver the keys to his grandmother. Since entry by deception into one’s home does not violate the Fourth Amendment, it would not violate it by entry into a car where there is a lesser expectation of privacy. See State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d 1032 (stating that the constitutional distinction between vehicles and homes for purposes of search and seizure analysis turns on the privacy expectation; a lesser expectation of privacy attaches to a vehicle).
GOVERNMENT’S JUSTIFICATION OF AN INVENTORY SEARCH
{40} Furthermore, it has been held that officers may take reasonable steps to safeguard property in a vehicle which has not been seized. 3 Wayne R. LaFave, Search and Seizure § 7.4(b) at 658 n. 117 (4th ed.2004); see, e.g., United States v. Prazak, 500 F.2d 1216 (9th Cir.1974). In Prazak, the defendant was arrested for DWI. He requested that his car be parked and secured by an arresting officer. To secure the car, one officer, without arrestee’s request or consent, removed a sport coat from the rear seat, locked the car doors, and opened the locked trunk to place the coat inside. When he opened the trunk, the officer discovered a zip gun. That court held that this type of search was not unreasonable. Id. at 1217.
{41} Although the State raises this issue for the first time on appeal, I am compelled to address it because this case involves Defendant’s fundamental right of privacy and the reasonableness of Officer Tubbs’ search under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. See State v. Pacheco, 85 N.M. 778, 517 P.2d 1304 (Ct.App.1973); see also Rule 12-216(B)(l)-(2) NMRA 2005 (providing that questions involving jurisdiction, general public interest, fundamental error, or fundamental rights of a party are exceptions to the preservation requirement).
{42} When Defendant gave Officer Tubbs his ear keys, he received constructive possession of Defendant’s car and, therefore, it was under the control and custody of the officer, who is an agent of the city’s police department. The government interests that make an inventory search reasonable to safeguard the property from loss or theft, and to protect the police or city from liability and false claims, justified the officer to conduct an inventory search of Defendant’s vehicle. See State v. Williams, 97 N.M. 634, 637, 642 P.2d 1093, 1096 (1982) (holding that a warrantless inventory search of the defendant’s car, following his arrest for armed robbery, and after discovery that the defendant’s automobile was parked legally behind the grocery store, was reasonable). Furthermore, federal courts have adopted a similar rationale regarding inventory searches of vehicles seized after an arrest. See United States v. Scott, 665 F.2d 874 (9th Cir.1981) (holding that the police procedures, in conducting an inventory of arrestee’s legally parked car in order to protect the arrestee’s belongings, was an appropriate caretaking function); United States v. Staller, 616 F.2d 1284 (5th Cir.1980) (upholding that a search, subsequent to police taking custody of the defendant’s legally parked automobile, was a legitimate exercise of a caretaking function because of the risk to the car parked overnight in a mall parking lot).
{43} The Majority points out in Hall v. State, 399 So.2d 348, 353 (Ala.Crim.App.1981) that “a mere showing that an accused gave officers the keys to her car upon their request was insufficient to show a voluntary waiver of her Fourth Amendment rights.” I agree with this statement under the facts presented in Hall. However, in Hall, appellant had refused several requests to allow the officers to search the trunk of his car but, afterwards, involuntarily submitted to a search based on the officers’ threats. That court held that “[i]t is apparent that the appellant was submitting rather than consenting to the search.” Id. at 354 (emphasis in original). That court added “in examining all the surrounding circumstances to determine if, in fact, the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. (internal quotation marks omitted). Thus, Hall is completely distinguishable from our case because, in Hall, the officer used coercive and threatening techniques to acquire appellant’s consent or submission. In our case, Defendant voluntarily handed over his keys without any coercive actions from Officer Tubbs. Officer Tubbs never asked for the keys and never threatened Defendant, unlike Hall, where that defendant specifically refused a requested search. Here, Defendant’s consensual relinquishment of control over his vehicle by voluntarily giving his keys to Officer Tubbs is what makes the ensuing search reasonable.
{44} The events of this ease flow from one stage to another. Once Officer Tubbs received Defendant’s consent to possession and control of the car by the keys being turned over to him, he had an obligation to secure the car. In order to secure the vehicle, he had to check out its contents to avoid any liability from any claims that something valuable might be taken from the ear. Therefore, under Prazak, Officer Tubbs’ actions were justified and constituted “a reasonable means of rendering the ear and its contents secure.” 500 F.2d at 1217.
{45} Whether the Majority’s opinion labels this an inventory search, or a search incident to arrest, which I do not believe it was, does not really matter. At this point, the search was not constitutionally unreasonable and evidence of the gun seized should not be suppressed.
{46} I would affirm. I, therefore, respectfully dissent.