December 20, 2021- State of New Mexico v. Andrew Ontiveros, No. A-1-CA-37870

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INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number seen ed 12720021 11:53.
Filing Date: DECEMBER 20, 2021 Hue
No. A-1-CA-37870 Mark Reynolds
STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ANDREW ONTIVEROS,
Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean Jr., District Judge

Hector H. Balderas, Attomey General
Benjamin L. Lammons, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Victor E. Sanchez, Assistant Appellate Defender
Albuquerque, NM

for Appellant

IM

OPINION	1
HENDERSON, Judge.	2
{1} 	Defendant Andrew Ontiveros appeals the district court’s denial of his motion	3
to suppress evidence recovered from the vehicle he drove at the time of his arrest for	4
driving while his license was revoked. He maintains that the inventory search of the	5
vehicle offended his protections under the Fourth Amendment to the United States	6
Constitution. We agree and reverse.	7
BACKGROUND	8
{2} 	Farmington Police Officer Alvin Bencomo observed a moving vehicle with a	9
broken taillight and a cracked front windshield. He conducted a traffic stop of the	10
vehicle, which promptly pulled over at a nearby trailer park. Upon pulling over,	11
Defendant and his passenger (Passenger) exited the vehicle. Following commands	12
from Officer Bencomo, Defendant and Passenger reentered the vehicle. Officer	13
Bencomo then spoke with Defendant, asked him to again exit the vehicle, and	14
requested his driver’s license, which Defendant did not have.	15
{3} 	Officer Bencomo’s investigation revealed that Defendant’s driver’s license	16
was revoked. Defendant informed Officer Bencomo that the vehicle belonged to his	17
grandmother (Grandmother), who was not at the scene. Officer Bencomo verified	18
that Grandmother was the registered owner, though it is unclear if this verification	19
included her address. Defendant further informed Officer Bencomo that the trailer	20

2
next to Grandmother’s vehicle was Grandmother’s home, but Officer Bencomo did	1
not verify this information. Officer Bencomo arrested Defendant for driving with a	2
revoked license. Defendant and Passenger asked Officer Bencomo if the vehicle	3
could be left where it was, or if Grandmother could be contacted. Officer Bencomo	4
responded that towing the vehicle was “just policy.” Passenger left the scene on foot	5
after being told he was free to leave by Officer Bencomo.	6
{4} 	Officer Bencomo took inventory of the vehicle’s contents because he intended	7
to have the vehicle towed. The inventory search revealed a container with marijuana	8
inside, a digital scale with marijuana residue, and a pill bottle that contained	9
methamphetamine and other controlled substances. Defendant was charged with,	10
among other things, possession of a controlled substance, contrary to NMSA 1978,	11
Section 30-31-23(A) (2011, amended 2021), and driving while his license was	12
revoked, contrary to NMSA 1978, Section 66-5-39.1 (2013). Defendant filed a	13
motion to suppress the evidence obtained from the vehicle, arguing that such	14
evidence was obtained in violation of the Fourth Amendment to the United States	15
Constitution and Article II, Section 10 of the New Mexico Constitution.	16
{5} 	The district court held a hearing on the motion. Officer Bencomo testified that	17
Defendant’s car was towed “according to [Farmington Police Department] policy”	18
because 	“[Defendant] 	was 	under 	arrest.” 	A 	copy 	of 	the 	Farmington 	Police	19
Department’s policy for towing vehicles was admitted as an exhibit. Though Officer	20

3
Bencomo acknowledged that he was not required by policy to tow the vehicle	1
because the Farmington Police Department policy instructs officers to tow vehicles	2
only when it is “reasonably necessary[,]” he testified that it was his standard practice	3
to have the vehicle towed every time he arrests a driver. Officer Bencomo stated that	4
while he knew the vehicle was parked at the owner’s home, he felt towing it was	5
necessary to protect the vehicle.	6
{6} 	At the hearing, the district court made an oral finding that the vehicle was in	7
the parking space belonging to Grandmother’s trailer. However, it entered a written	8
order denying the motion to suppress, determining that “[i]t was reasonable for law	9
enforcement to tow [the] vehicle despite the vehicle’s location on private property[	10
and] the potential to release the vehicle to . . . [G]randmother, . . . because a vehicle	11
and it’s [sic] contents are items of value that could be damaged or stolen and subject	12
law enforcement to liability.” Defendant pleaded guilty to possession of a controlled	13
substance and driving on a revoked license, and admitted to violating his conditions	14
of probation in another case because of these charges. Both the guilty pleas and the	15
admissions were conditioned on his right to appeal the district court’s ruling on his	16
motion to suppress.	17

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DISCUSSION	1
The Inventory Search of the Vehicle Offended Defendant’s Fourth Amendment	2
Protections	3
{7} 	On appeal, Defendant maintains that the warrantless search of the vehicle	4
offended 	his 	protections 	under the Fourth 	Amendment 	to 	the United 	States	5
Constitution and Article II, Section 10 of the New Mexico Constitution. The State	6
argues that the search of the vehicle was a valid inventory search. For the reasons	7
that follow, we agree with Defendant. As we explain, because we reverse on Fourth	8
Amendment grounds, we need not analyze Defendant’s arguments made pursuant to	9
the New Mexico Constitution.	10
Standard of Review	11
{8} 	“Appellate courts review a district court’s decision to suppress evidence based	12
on the legality of a search as a mixed question of fact and law.” State v. Ryon, 2005-	13
NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032. We review the district court’s	14
factual findings under a substantial evidence standard in the light most favorable to	15
the prevailing party, and its conclusions of law de novo. State v. Lopez, 2009-	16
NMCA-127, ¶ 7, 147 N.M. 364, 222 P.3d 361. “Substantial evidence is that which	17
is acceptable to a reasonable mind as adequate support for a conclusion.” State v.	18
Sanchez, 2001-NMCA-109, ¶ 14, 131 N.M. 355, 36 P.3d 446.	19
{9} 	When parties raise arguments pursuant to both the United States and New	20
Mexico 	Constitutions, 	we 	take 	the 	interstitial 	approach 	to 	constitutional	21

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interpretation. State v. Gomez, 1997-NMSC-006, ¶¶ 20-21, 122 N.M. 777, 932 P.2d	1
1. Using this approach, “we ask first whether the right being asserted is protected	2
under the federal constitution. If it is, then the state constitutional claim is not	3
reached.” State v. Tapia, 2018-NMSC-017, ¶ 12, 414 P.3d 332 (internal quotation	4
marks and citation omitted). Where the federal constitution does not offer protection,	5
only then do we turn to the state constitutional claim. Id.	6
Inventory Search Exception	7
{10} 	The Fourth Amendment to the United States Constitution provides:	8
The right of the people to be secure in their persons, houses, papers, and	9
effects, 	against 	unreasonable searches 	and 	seizures, 	shall 	not 	be	10
violated, and no Warrants shall issue, but upon probable cause,	11
supported by Oath or affirmation, and particularly describing the place	12
to be searched, and the persons or things to be seized.	13
Warrantless searches are presumptively unreasonable. State v. Gutierrez, 2004-	14
NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18. The burden of proving that a warrantless	15
search was valid is borne by the State and is met by proving that an exception to the	16
warrant requirement applies. State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371,	17
188 P.3d 95. “Inventory searches are now a well-defined exception to the warrant	18
requirement of the Fourth Amendment.”1 State v. Davis, 2018-NMSC-001, ¶ 11, 408	19
P.3d 576 (alteration, internal quotation marks, and citation omitted).	20
1 Defendant’s Fourth Amendment argument concerns only the inventory
search exception to the warrant requirement. We limit our discussion accordingly.

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{11} 	Both Defendant and the State rely on Davis for their respective arguments	1
here. We agree with the parties that Davis governs our analysis. In that case, our	2
Supreme Court reaffirmed that a valid inventory search requires that “(1) the police	3
have control or custody of the object of the search; (2) the inventory search is	4
conducted in conformity with established police regulations; and (3) the search is	5
reasonable.” Id. ¶ 12. There, a law enforcement officer followed a motorcyclist who	6
the officer knew did not possess a valid driver’s license. Id. ¶ 3. The motorcyclist	7
parked in the driveway of his home, removed his backpack, and left it atop a parked	8
car in the motorcyclist’s open-air carport. Id. ¶¶ 3-4. Upon the motorcyclist’s arrest,	9
the officer 	performed 	an 	inventory search 	of 	the 	backpack, 	which 	revealed	10
marijuana. Id. ¶ 5.	11
{12} 	With regard to the first inventory search requirement, our Supreme Court held	12
that law enforcement had control or custody of the backpack, reasoning that it was	13
“made unsecure by the arrest” because the arrest prevented the motorcyclist “from	14
further controlling” it, regardless of the backpack’s location on the motorcyclist’s	15
private property. Id. ¶¶ 21-24, 26; see also id. ¶ 21 (“Police are rightly expected to	16
protect and secure not only those items on an arrestee’s person or within the	17
arrestee’s immediate control at the time of arrest, but any item belonging to the	18
arrestee that is rendered unsecure by the arrest.”). As to the second factor, the Court	19
held that the law enforcement policy at issue, i.e., taking inventory of all of the	20

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belongings in an arrestee’s possession, necessarily included “all of the belongings	1
of an arrestee made unsecure by an arrest[,]” not merely those on the arrestee’s	2
person. Id. ¶¶ 28-29. Finally, given the fact-specific inquiry that must govern an	3
inventory search analysis, the Court concluded that the search was reasonable in	4
light of law enforcement’s concern that the backpack may contain items of value	5
that should be secured. Id. ¶¶ 24, 31.	6
Police Control or Custody	7
{13} 	Davis instructs that the relevant question in assessing law enforcement’s	8
control or custody of a defendant’s possessions is “whether there is a reasonable	9
nexus between the arrest and the seizure of the object to be searched.” Id. ¶¶ 14, 15.	10
If a defendant possesses an object at the time of an arrest, “then a reasonable nexus	11
exist[s] between the arrest and the seizure and inventory search of the [object].” Id.	12
¶ 16. The State argues that the reasonable nexus requirement is satisfied because	13
Defendant could not have committed the crime for which he was arrested, i.e.,	14
driving on a revoked license, without the vehicle that was searched because “the	15
[vehicle] was the instrumentality used to commit the offense.” However, we disagree	16
that Davis supports the State’s proposition.	17
{14} 	Our Supreme Court held that “a defendant ‘possesses’ any object that the	18
defendant loses control over as a consequence of arrest and where that loss of control	19
gives rise to the possibility that the object might be lost, stolen, or destroyed and the	20

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police potentially held liable for the loss, theft, or destruction.” Id. ¶ 18 (emphasis	1
added). Through this lens, we ask “whether the object is made unsecure by the	2
arrest.” Id. ¶ 21. The answer here is no. While Defendant lost control of the vehicle	3
by virtue of his arrest, under the circumstances here, the loss of control did not result	4
in a heightened risk that the vehicle may go missing or otherwise become damaged	5
in his absence. Officer Bencomo testified, and the district court agreed, that the	6
vehicle Officer Bencomo confirmed was registered to Grandmother was parked in	7
the parking space that corresponded to Grandmother’s trailer. Although officers are	8
expected to protect and secure property in a defendant’s control, the risk to security	9
of the vehicle and its contents was no greater because of Defendant’s arrest than it	10
was at any other time the vehicle was parked at the trailer without the owner	11
immediately present.	12
{15} 	In light of these facts, we conclude that the vehicle was not rendered unsecure	13
by Defendant’s arrest, and that Defendant’s loss of control of the vehicle did not	14
increase the risk of loss, theft, or destruction to which the same vehicle was typically	15
exposed while parked in the same location—its proper space at the vehicle owner’s	16
home—on any other occasion.2
17
2 At the suppression hearing, Officer Bencomo testified that he did not verify
if Grandmother resided at the trailer and could not recall if his verification of her
vehicle registration provided him with her address. Regardless, Officer Bencomo
testified that he knew that the vehicle was parked at Grandmother’s home. The
district court’s written order acknowledged that Officer Bencomo did not remember

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Established Police Regulations	1
{16} 	As to the second inventory search requirement, we first look to the applicable	2
law enforcement regulations. The Farmington Police Department policy for towing	3
vehicles states, in relevant part, that	4
[i]t is the policy of the Farmington Police Department to remove	5
vehicles from the roadway or other property, public or private[,] by	6
towing, when it is reasonably necessary to: safeguard the vehicle and/or	7
its contents; to facilitate public safety and health in regards to unsafe	8
vehicles, unlawfully operated vehicles, traffic obstructions, abandoned	9
vehicles, or emergency situations; to lawfully seize a vehicle and its	10
contents for evidentiary purposes[.]	11
. . . .	12
Any vehicle towed at the direction of a law enforcement officer shall	13
have a complete inventory of the vehicle’s contents performed to	14
protect 	the 	Farmington 	Police 	Department 	from 	liability 	and 	to	15
safeguard the property rights of the owner of the vehicle’s contents.	16
. . . .	17
if Grandmother’s vehicle registration provided her address. The order further states
that the vehicle was parked “on private property[,]” and at the suppression hearing,
the district court stated its belief that the vehicle was parked in the appropriate
parking space for the trailer belonging to the registered owner of the vehicle, which,
according to Officer Bencomo’s testimony and the district court’s order, was
Grandmother. The parties do not dispute that the trailer belonged to Grandmother.
We therefore assume that the trailer was Grandmother’s home. See State v. Slayton,
2009-NMSC-054, ¶ 11, 147 N.M. 340, 223 P.3d 337 (stating that we deem as
conclusive factual findings that are undisputed and supported by the record); see also
Lebeck v. Lebeck, 1994-NMCA-103, ¶ 10, 118 N.M. 367, 881 P.2d 727 (noting that
while the district court’s oral remarks alone do not provide a basis for reversal, we
may employ them to understand the district court’s findings); Jeantete v. Jeantete,
1990-NMCA-138, ¶ 11, 111 N.M. 417, 806 P.2d 66 (providing that we “may
consider the [district] court’s verbal comments in order to clarify or discern the basis
for the order or action of the court below”).

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An officer may consider alternative methods of releasing the vehicle to	1
the licensed owner, other than removing of a vehicle by towing, under	2
situations wherein the volume of calls for service, roadway conditions,	3
or other circumstances or factors allow for an officer to research	4
alternative methods.	5
. . . .	6
An officer may consider towing a vehicle . . . [w]henever the operator	7
of the vehicle has been arrested[.]	8
Officer Bencomo’s testimony at the suppression hearing indicates that he did not	9
adhere to this policy, and instead made it his policy to always tow vehicles upon a	10
driver’s arrest.	11
{17} 	Defendant argues that this policy affords officers excessive discretion because	12
it allows an officer to conduct an inventory search any time a driver is arrested. The	13
State counters that, were we to accept Defendant’s argument, we would strip officers	14
of discretion and allow law enforcement to embrace an approach to inventory	15
searches that will result in policies instructing law enforcement, at the time of a	16
driver’s arrest, to tow, and subsequently search, every vehicle or no vehicles at all.	17
Neither argument is persuasive.	18
{18} 	We are mindful that “officers may exercise discretion in the course of deciding	19
whether to conduct an inventory search or not[,]” and that the policy outlined above	20
affords officers the discretion to decide whether a vehicle tow and inevitable	21
inventory search is necessary. Davis, 2018-NMSC-001, ¶ 22 (citing Florida v. Wells,	22
495 U.S. 1, 4 (1990)). However, the discretion afforded officers in these situations	23

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necessitates balance with the Fourth Amendment’s protections, which require that	1
“individual police officer[s] must not be allowed so much latitude that inventory	2
searches are turned into a purposeful and general means of discovering evidence of	3
crime[.]” Wells, 495 U.S. at 4 (internal quotation marks and citation omitted).	4
{19} 	While Defendant maintains that the Farmington Police Department policy	5
provides insufficient safeguards because officers can order a vehicle tow and	6
inventory merely by conducting an arrest, this is not supported by the record. The	7
policy itself states that “[a]n officer may consider towing a vehicle” in the instance	8
of arrest, and that “[a]n officer may consider alternative methods of releasing the	9
vehicle to the licensed owner, other than . . . towing[.]” (Emphasis added.)	10
Furthermore, Officer Bencomo testified that the policy does not require officers to	11
conduct a vehicle tow every time an individual is arrested. We decline Defendant’s	12
invitation to hold that the policy is facially violative of the Fourth Amendment	13
because it provides officers discretion to tow vehicles in the instance of arrest. As	14
our Supreme Court has explained, “officers may exercise discretion in the course of	15
deciding whether to conduct an inventory search or not” and “[t]he facts of the	16
particular case guide the inquiry as to the constitutionality of the inventory search.”	17
Davis, 2018-NMSC-001, ¶¶ 22, 24.	18
{20} 	As to the State’s argument that holding in favor of Defendant will result in an	19
“ ‘all or nothing’ ” approach to inventory searches, we note that the situation the	20

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State warns of is precisely what occurred in this case. Officer Bencomo testified that	1
it was his standard practice to “tow every car with any arrest . . . with drivers.” While	2
the State’s argument is primarily concerned with preserving officer discretion, it is	3
Officer Bencomo’s failure to exercise discretion as outlined in the policy that	4
contributes to our holding today. Indeed, discretion involves “cautious discernment;	5
. . . [i]ndividual judgment; [and] the power of free decision-making.” Discretion,	6
Black’s Law Dictionary (9th ed. 2009). Officer Bencomo’s practice of towing the	7
vehicle every time a driver is arrested involves no discernment or decision-making	8
based on the unique set of circumstances that he faces with every individual arrest.	9
In fact, we do not perceive, and the State does not offer, an explanation for this	10
generalized practice other than as a means to discover incriminating evidence, which	11
is not a permissible investigatory motive.3 See Wells, 495 U.S. at 4.	12
{21} 	In sum, Officer Bencomo’s testimony indicates that he did not “consider”	13
towing Defendant’s vehicle as required by the Farmington Police Department	14
policy. Rather, he would have had Defendant’s vehicle towed regardless of the	15
circumstances, without further consideration, simply because Defendant was under	16
3 Defendant argues that Officer Bencomo was actively seeking incriminating
evidence in this case. Given our disposition here, however, we need not address this.
See State v. French, 2021-NMCA-052, ¶ 13 n.3, 495 P.3d 1198 (declining to address
a question “unnecessary for the resolution of the case”).

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arrest. We therefore conclude that Officer Bencomo failed to adhere to established	1
law enforcement policy.	2
Reasonableness	3
{22} 	Turning 	to 	the 	final 	inventory 	search 	requirement, 	we 	employ 	three	4
considerations articulated by the Supreme Court of the United States in South	5
Dakota v. Opperman, 428 U.S. 364, 369 (1976), to assess if the inventory search	6
was reasonable. State v. Shaw, 1993-NMCA-016, ¶ 10, 115 N.M. 174, 848 P.2d	7
1101. Generally, an inventory search is reasonable if it is made in accordance with	8
established police regulations and in consideration of at least one of the following	9
government interests: “(1) to protect the arrestee’s property while it remains in police	10
custody; (2) to protect the police against claims or disputes over lost or stolen	11
property; or (3) to protect the police from potential danger.” Id. While we have	12
already 	concluded 	that 	Officer 	Bencomo 	did 	not 	adhere 	to 	established 	law	13
enforcement policy, in the interest of clarity, we nevertheless offer analysis on these	14
three considerations.	15
{23} 	Above, 	we 	concluded 	that 	the 	vehicle 	was 	not 	rendered 	unsecure 	by	16
Defendant’s arrest and loss of control over it, as it was parked in its typical parking	17
space at its owners home, and thus was in no heightened danger because of	18
Defendant’s arrest compared to any other time the vehicle was parked at the trailer	19
without the owner immediately present. With this in mind, as to the second	20

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consideration for reasonableness, we are unconvinced that an individual holds a	1
colorable claim against law enforcement for secured property that was lost or stolen	2
from the place it would remain whether or not the individual was arrested. Unlike	3
the backpack in Davis, an object so inherently portable that its presence in the open-	4
air carport on the defendant’s own property was insufficient to ensure its safety, we	5
see no such protection necessary for the vehicle in question here. See 2018-NMSC-	6
001, ¶ 25. Finally, we perceive no potential danger to police from a vehicle parked	7
in its proper space at the vehicle owner’s home. For these reasons, we conclude that	8
the inventory search of the vehicle was not reasonable under the circumstances.	9
CONCLUSION	10
{24} 	Concluding that the State did not bear its burden to demonstrate that the	11
warrantless search of the vehicle was valid, we reverse the district court’s order	12
denying 	Defendant’s 	motion 	to 	suppress. 	We 	therefore 	vacate 	Defendant’s	13
convictions for possession of a controlled substance and driving on a revoked	14
license. We further vacate the disposition of Defendant’s probation violations	15
premised on these charges. The case is remanded to the district court for proceedings	16
consistent with this opinion.	17
{25} 	IT IS SO ORDERED.	18
19
SHAMMARA H. HENDERSON, Judge	20

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2
WE CONCUR: e. MinDin
J. MILES HANISEE, Chief Judge
Kaskna Bogardus
KRISTINA BOGALDUS, Judge
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