(dissenting).
{41} To pass constitutional scrutiny, a search must be reasonable. See Attaway, 117 N.M. at 149, 870 P.2d at 111 (1994) (noting that “the ultimate question in all cases regarding alleged search and seizure violations is whether the search and seizure was reasonable”). The search of Defendant’s vehicle was not reasonable, in my opinion. I therefore dissent from that part of the majority opinion holding that the search of Defendant’s vehicle did not violate his constitutional rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution.
{42} The supervision of a person on probation “is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” Griffin, 483 U.S. at 875, 107 S.Ct. 3164. However, “[t]hat permissible degree is not unlimited.” Id. Consistent with these principles, we require that limitations of a probationer’s rights concerning searches be reasonable. See Marquart, 1997-NMCA-090, ¶ 19, 123 N.M. 809, 945 P.2d 1027 (stating that a court may impose 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”); Gardner, 95 N.M. at 174, 619 P.2d at 850 (“The requirement to submit to search ‘at any time’ is subject to the requirement that the ‘time’ be reasonable.”).
{43} In Knights, the Supreme Court held that the warrantless search of the probationer’s apartment, supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment. Knights, 534 U.S. at 122, 122 S.Ct. 587. Allowing a probation officer to perform a warrantless search under a reasonable suspicion standard rather than the more stringent probable cause standard appropriately balances the special need of a probation system to supervise individuals on probation with a probationer’s constitutional right to privacy. Id. at 121, 122 S.Ct. 587 (“Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable.”). A condition of probation which authorizes a probation officer to perform a warrantless search must be reasonably related to the probationer’s rehabilitation. See NMSA 1978, § 31-20-6(F) (2004) (authorizing conditions of probation reasonably related to rehabilitation); Gardner, 95 N.M. at 174, 619 P.2d at 850 (recognizing search requirement must be reasonably related to rehabilitation and concluding that requiring a prior narcotics offender to submit to search was proper). Thus, warrantless searches are restricted to those instances necessary to advance the purposes of probation. A warrantless search not reasonably related to the probationer’s rehabilitation is not “reasonable.” Requiring individualized, reasonable suspicion of a probation violation as a prerequisite for conducting a warrantless search protects against standardless and unconstrained discretion, thus insuring that such searches are reasonable and within constitutional limits.
{44} I therefore respectfully submit that the warrantless search of a probationer’s vehicle is not constitutionally reasonable unless: (1) it is authorized by the conditions of probation, and (2) there is a reasonable suspicion that evidence of a violation of probation will be found.
{45} Defendant was previously convicted of aggravated assault and aggravated battery, and he was on probation. One of the standard conditions of probation stated:
You will permit any Probation Officer to visit you at your home or place of employment at any time and you will permit a warrantless search, by a Probation Officer, of your person, automobile, residence, property and/or living quarters if he/she has reasonable cause to believe that such a search will produce evidence of a violation of your conditions of probation.
{46} Defendant was also required to serve his probation under a program of intensive supervision. See § 31-21-13.1(A) (defining “intensive supervision programs”). As part of his intensive supervision, Defendant agreed, “I will submit to a search of my person, residence and personal belongings, including automobile, by the Intensive Supervision Officer upon request.”
{47} Defendant’s probation officer decided she was going to arrest him when he came to the probation office for a regular visit because a three day old urinalysis was positive for alcohol, and Defendant was not allowed to consume alcohol under the conditions of his probation. He was arrested for the probation violation and handcuffed. A search of Defendant’s person incident to the arrest produced cash, two cell phones, and keys. None of these are contraband or evidence of a separate probation violation. Defendant was asked how he came to the probation office, and he replied that his friends had dropped him off. Again, whether friends dropped him off or whether he drove to the office had no bearing on any possible additional probation violation. Without Defendant’s consent, a second probation officer took Defendant’s keys to see if they fit vehicles parked in a parking lot across the street. There is no evidence of what probation violation the officer expected to find. How many vehicles were tried is unknown. He unlocked a Chevrolet Suburban with Defendant’s key and told Defendant’s probation officer.
{48} Defendant’s probation officer asked Defendant why he lied about how he came to the probation office. She could not remember what Defendant said, other than to admit that the Chevrolet Suburban was his. Defendant’s probation officer then requested fellow probation officers to search the vehicle. She told Defendant his vehicle was going to searched. When asked during the suppression hearing what authority she had to order the search, she said, “under the authority of the probation and parole policy that he signed a probation order stating that he will submit to a warrantless search if reasonable cause — if we believe it may produce evidence of a violation.” However, Defendant was already handcuffed and under arrest for violating his probation. Further, Defendant’s probation officer never said what violation she had reasonable cause to believe would be proven by the search. Without Defendant’s consent and without a warrant, probation officers then searched inside Defendant’s vehicle. What they were looking for is unknown. They did find cocaine, leading to Defendant’s conviction for trafficking by possession with intent to distribute cocaine and his status as a habitual offender.
{49} The first question is whether the searches of Defendant’s vehicle were authorized by Defendant’s standard condition of probation. It requires “reasonable cause” on the searching probation officer’s part that the search will produce evidence of a probation condition violation. I assume “reasonable cause” means “reasonable suspicion” as discussed later in this opinion, rather than the more stringent standard of “probable cause.” See Black’s Law Dictionary (8th ed.2004) (stating that “probable cause” is also termed “reasonable cause”).
{50} Whether reasonable suspicion exists is reviewed de novo on appeal by looking at the totality of the circumstances. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. Probation officers possess reasonable suspicion when they are aware of specific articulable facts which, judged objectively, would lead a reasonable person to believe a probation violation occurred or was occurring. See id. (describing a reasonable suspicion of criminal activity). Reasonable suspicion is not satisfied by unsupported intuition, an inarticulable hunch, a gut instinct, or unparticularized suspicion. See id. ¶ 10 (“A police officer cannot forcibly stop an individual for purposes of investigation merely on the basis of an inchoate and unparticularized suspicion or hunch that criminal activity may be afoot.” (internal quotation marks and citation omitted)); State v. Cohen, 103 N.M. 558, 562, 711 P.2d 3, 7 (1985) (“Unsupported intuition is insufficient.”); State v. Galvan, 90 N.M. 129, 132, 560 P.2d 550, 553 (Ct.App.1977) (“[A]n inarticulable hunch does not provide the basis for a reasonable suspicion.”). When a probation officer relies on her experience to establish a reasonable suspicion, she must provide more than a conclusion unsupported by any explanation as to the type of experience she has or how that experience provides a basis for her action. See id. Finally, reasonable suspicion must exist at the inception of the search; the probation officer cannot rely on facts which arise as a result of the search. See Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856. Tested by these standards, reasonable suspicion to search Defendant’s vehicle was lacking.
{51} I assume, as does the majority, that matching Defendant’s key with the Chevrolet Suburban constituted a search under the Fourth Amendment and Article II, Section 10. However, reasonable cause to believe that matching Defendant’s key with the Chevrolet Suburban would produce evidence of a violation of any condition of probation was absent. Reasonable cause to believe that a violation of probation would be discovered by searching the interior of the vehicle was also absent. Specifically, even if Defendant’s probation officer learned from the key matching search that Defendant lied about how he arrived at the probation office, this fact and her prior knowledge that he possessed cash, cell phones, and keys did not establish reasonable cause that a violation of a condition of probation would be discovered inside the vehicle. The State failed to establish what violation would be proven by the key matching search and subsequent search inside the vehicle, and it had the burden to prove the validity of these warrantless searches. See Gallegos, 2003-NMCA-079, ¶ 12, 133 N.M. 838, 70 P.3d 1277 (“It is the State’s burden to prove the existence of circumstances justifying a warrantless search.”). The searches of Defendant’s vehicle were not authorized by the general conditions of probation.
{52} Similarly, the searches were not authorized by the condition of Defendant’s intensive supervision. It states that Defendant will submit to a search “upon request.” Here, there was no “request” to search; the probation officers simply searched Defendant’s vehicle. Thus, the searches were invalid. See State v. Jeffers, 116 Ariz. 192, 568 P.2d 1090, 1093 (Ct.App.1977) (stating search invalid as outside scope of probation condition when probation officer conducted search without a request and probation condition allowed search “when so requested” by probation officer (internal quotation marks omitted)).
{53} Even if the requirement of a “request” is read out of the probation condition, the search violated the regulations of the New Mexico Probation and Parole Division. PPD Regulation 214, quoted by the majority in ¶ 12 specifically states its policy is that a search is allowed only when there is “reasonable cause” to believe the probationer is in possession of prohibited items or that evidence of a violation of the conditions of probation will be found. A “reasonable cause search” is in turn defined in Regulation 214 as “[a] search in which available evidence would lead a reasonable person to believe that the offender is in possession of prohibited items or that evidence of a violation will be found.” The preceding analysis of reasonable suspicion demonstrates that there was no “reasonable cause search” as required by the PPD’s own regulations. That resulted in a violation of Defendant’s constitutional rights.
{54} I am unable to agree with the majority that the searches of Defendant’s vehicle complied with the constitutional requirement of reasonableness. I therefore dissent,