August 14, 2014 – State of New Mexico v. Rene Hermosillo, No. 32,891

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: August 14, 2014

NO. 32,891

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

RENE HERMOSILLO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge
Gary K. King, Attomey General

Becca Salwin, Assistant Attomey General
Santa Fe, NM

for Appellee

Templeman & Crutchfield, P.C.
C. Barry Crutchfield
Lovington, NM

for Appellant

OPINION
GARCIA, Judge.
{1} 	Defendant, a probationer, pled no contest to trafficking controlled substances
and delivery or manufacture of drug paraphernalia, reserving the right to appeal from
the district court’s denial of his motion to suppress. In this opinion, we determine
whether Defendant’s Fifth Amendment rights were violated when he was not given
the warnings required by Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), while
handcuffed and questioned in his home by his probation officer during a random home
visit. We hold that, under the specific facts of this case, Defendant was not “in
custody” for Fifth Amendment purposes and, therefore, no Miranda warnings were
required. We affirm the district court’s denial of Defendant’s motion to suppress.
A. 	Standard of Review
{2} 	In conducting our review, “we bear in mind that there is a distinction between
factual determinations which are subject to a substantial evidence standard of review
and application of law to the facts, which is subject to de novo review.” State v.
Munoz, 1998-NMSC-048, ¶ 39, 126 N.M. 535, 972 P.2d 847 (alteration, internal
quotation marks and citation omitted); see State v. Nieto, 2000-NMSC-031, ¶ 19, 129
N.M. 688, 12 P.3d 442 (reviewing de novo whether a defendant is subject to a
custodial interrogation). In other words, “[w]e determine whether the law was

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correctly applied to the facts, viewing the facts in the light most favorable to the
prevailing party[,] . . . indulg[ing] in all reasonable inferences in support of the [trial]
court’s ruling and disregard[ing] all evidence and inferences to the contrary.” State v.
Bravo, 2006-NMCA-019, ¶ 5, 139 N.M. 93, 128 P.3d 1070.
B. 	Background and Procedural Facts
{3} 	Although Defendant challenges the district court’s conclusions, he does not
argue that the district court’s findings were not supported by substantial evidence. In
accordance with the standard of review, we accept the district court’s findings, as
follows, and view them in the light most favorable to the State.
{4} 	Defendant was on supervised probation after pleading no contest to possession
of a controlled substance (felony—narcotic drug), resisting, evading or obstructing an
officer (refusal to stop), and reckless driving in Lea County District Court Cause No.
D-506-CR-2012-086. Defendant’s supervising probation officer went over the
probation order with Defendant, who acknowledged that he read and understood it,
initialing each paragraph. The district court judge signed the probation order, and it
was filed in the district court. Under its terms, among other things, Defendant was
required: (1) to report to his probation officer as often as required; to submit
completed and truthful reports; and to be truthful, accurate, and prompt in all
communications with his probation officer; (2) not to associate with any persons

3
having a criminal record or other probationers and parolees; and (3) to permit his
probation officer to visit him at home or his place of employment at any time; and to
permit a warrantless search of his person, automobile, and residence, if the probation
officer has reasonable cause to believe the search would produce evidence of a
probation violation. In addition, as part of the probation intake process, Defendant
entered into a “rules for home visits” agreement, agreeing among other things: (1) to
promptly answer the door and invite the officers in; and (2) to be courteous and
cooperative with the officers.
{5} 	On the evening of October 18, 2012, the probation officer was conducting home
visits of various probationers under his supervision. Defendant’s home was not
originally on the list but was added because Defendant had recently been testing
positive for drugs. The probation officer routinely has law enforcement officers
accompany 	him 	on 	evening/night 	home 	visits, 	and 	on 	this 	evening 	he 	was
accompanied by a drug task force officer.
{6} 	The probation officer and drug task force officer went to Defendant’s front door
and knocked. The probation officer saw Defendant look out a window and observe the
probation officer, then disappear. The probation officer heard activity in the house,
and he became suspicious when Defendant did not promptly answer the door and
decided he would search Defendant’s residence for evidence of a probation violation.

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The probation officer continued to knock and announce his presence, and after a while
Defendant’s wife answered the door and let the officers inside. The probation officer
found that Defendant had gone into a bathroom and locked the door. When he
knocked on the bathroom door and announced his presence, Defendant refused to
come out, saying he was going to the bathroom. During a quick and cursory protective
sweep, the officers saw a known felon and fellow probationer leaving through the
back door. The officers stopped this person who said that he and Defendant had been
drinking beer in Defendant’s house.
{7} 	After a while, Defendant came out of the bathroom. Defendant was searched,
and $580 cash was found on his person. The probation officer became suspicious
because Defendant had previously reported his income was less than that amount. “As
a result of what had transpired and the uncertainty of the situation, Defendant was
immediately handcuffed for officer safety reasons.” Defendant was ordered to sit
down and remain there, but “was not placed under arrest.” Defendant was not told of
his right to remain silent or of his right against self-incrimination pursuant to Miranda.
{8} 	The probation officer asked the drug task force officer, in Defendant’s presence,
whether a drug dog was available to search Defendant’s residence. 	Defendant
admitted to drinking alcohol with the other probationer. Defendant then asked to talk
privately with his probation officer “to explain himself” and led the officer into the

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laundry room. The probation officer saw empty beer cans in the trash basket, and
Defendant again admitted to drinking alcohol with the other probationer. The
probation officer told Defendant he intended to search the house and asked Defendant
“if there was [anything] in his residence he was not supposed to have.” Defendant
responded, saying, “Yeah, can I show you?” Defendant took the probation officer to
a cabinet in the “party room” of his house, and said, “it’s up there.” The probation
officer looked at the area Defendant referred to and observed what appeared to be
drugs.
{9} 	The probation officer notified the drug task force officer of “what [he] had
observed[,]” and the drug task force officer contacted another officer to obtain a
search warrant. In the course of the search, it was confirmed that the probation officer
had observed drugs, and the drugs were seized along with digital scales. Defendant
was arrested and charged with trafficking a controlled substance and possession of
drug paraphernalia.
{10} 	Defendant moved to suppress all statements he made while handcuffed, and all
evidence that was seized as a result of the statements he made while handcuffed,
arguing that he was interrogated while in custody without being advised of his
Miranda rights. The State responded. After conducting a hearing and entering findings
and conclusions, the district court denied the motion to suppress. Defendant entered

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a conditional plea agreement reserving his right to appeal the denial of his motion to
suppress. This appeal followed.
C. 	The Miranda Test
{11} 	The Fifth Amendment protections provided under Miranda apply only to
“custodial interrogation[s].” 384 U.S. at 444; see State v. Smile, 2009-NMCA-064, ¶
24, 146 N.M. 525, 212 P.3d 413. In determining whether a defendant is in custody for
purposes of the Fifth Amendment, “the court must apply an objective test to resolve
the ultimate inquiry: was there a formal arrest or restraint on freedom of movement
of the degree associated with a formal arrest[?]” State v. Wilson, 2007-NMCA-111,
¶ 14, 142 N.M. 737, 169 P.3d 1184 (internal quotation marks and citation omitted).
Because the Miranda test is an objective one, we do not consider the subjective beliefs
of the defendant or the officer about whether the defendant was in custody. Wilson,
2007-NMCA-111 ¶ 14. Rather, we consider “how a reasonable man in the suspect’s
position would have understood his situation.” 	Id. (internal quotation marks and
citations omitted). If no formal arrest occurred prior to questioning, our appellate
courts engage in a fact-specific analysis of the totality of the circumstances under
which the questioning took place in order to decide whether the custody requirement
is met. See, e.g., Smile, 2009-NMCA-064, ¶ 27. The following factors guide our
inquiry: “the purpose, place, and length of interrogation[,]. . . the extent to which the

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defendant is confronted with evidence of guilt, the physical surroundings of the
interrogation, the duration of the detention, and the degree of pressure applied to the
defendant.” Munoz, 1998-NMSC-048, ¶ 40 (internal quotation marks and citations
omitted). In determining whether a person is being interrogated, we consider whether
the officer’s questioning is reasonably likely to elicit an incriminating response or has
that effect. State v. Ponce, 2004-NMCA-137, ¶ 37, 136 N.M. 614, 103 P.3d 54.
D. 	The Miranda Test and Probationers
{12} 	We have often noted that “[p]robation is the release by the court without
imprisonment of an adult defendant convicted of a crime.” Id. ¶ 8 (emphasis in
original) (internal quotation marks and citation omitted). As such, probation is an act
of clemency with the goal of education and rehabilitation, and it is not painless. See
State v. Donaldson, 1983-NMCA-064, ¶ 32, 100 N.M. 111, 666 P.2d 1258. In order
to effectuate a probationer’s rehabilitation, a sentencing court may impose conditions
that have as their objective the deterrence of further misconduct. Ponce, 2004-NMCA-
137, ¶ 8. As a result, probation status significantly reduces a probationer’s expectation
of privacy. See, e.g., State v. Baca, 2004-NMCA-049, ¶ 42, 135 N.M. 490, 90 P.3d
509.
{13} 	Although a probationer does not lose the privilege against self-incrimination,
the United States Supreme Court has refused to extend the requirements of Miranda

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warnings to prearranged routine probation interviews with probation officers. See
Minnesota v. Murphy, 465 U.S. 420, 430 (1984) (holding that a probationer meeting
with his probation officer was not “in custody” for purposes of receiving Miranda
warnings even though he was “subject to a number of restrictive conditions governing
various aspects of his life,” and “in custody for purposes of federal habeas corpus”)
(internal quotation marks and citation omitted). In Murphy, the defendant’s confession
to new crimes to his probation officer did not require Miranda warnings even though
(1) the probation officer could compel the defendant’s attendance and truthful
answers; (2) the probation officer consciously sought incriminating evidence; (3) the
defendant did not expect investigatory questions and could not seek counsel before
the meeting; and (4) there were no other individuals present to guard against abuse or
trickery. Id. at 431-32; see United States v. Manning, 2008 WL 4915991, *5 (N.D.
Okla. 2008) (summarizing the circumstances under which the Supreme Court did not
require Miranda warnings for the probationer in Murphy and holding that no Miranda
warnings were required under such precedent and in this case where neither meeting
of the probationer with his probation officer created the coercive environment or
involved restraint, isolation, or threatening behavior sufficient to create a custodial
situation). In holding that no Miranda warnings were required in Murphy, the United
States Supreme Court emphasized that the incriminating statements were obtained in

9
a prearranged routine probation interview that was not a custodial setting; there was
no formal arrest or restraint on freedom of movement of the degree associated with
a formal arrest; and the defendant was free to leave at the end of the meeting. Murphy,
465 U.S. at 430-31. In a footnote, the United States Supreme Court further
emphasized that “[a] different question would be presented if [the defendant] had been
interviewed by his probation officer while being held in police custody or by the
police themselves in a custodial setting.” Id. at 430, n.5.
{14} 	This Court applied the Miranda test in the probation context in Ponce. 2004-
NMCA-137, ¶¶ 37-38. In that case, we held that the defendant probationer was not
entitled to Miranda warnings because (1) he was interviewed at the probation office
during a standard probation meeting, a setting that should not be characterized as
unfamiliar or an interrogation environment; (2) although he was arrested upon arrival
at the meeting, the arrest was not for independent criminal activity, but rather for
noncriminal conduct that nevertheless was a violation of the defendant’s probation
conditions (the defendant had tested positive for alcohol under a no-alcohol probation
condition); and (3) the probation officer’s question about how the defendant arrived
at the probation office was not designed to elicit an incriminating response or likely
to have that effect. Ponce, 2004-NMCA-137 ¶¶ 37-38. Referring to the footnote in
Murphy quoted above, we stated in Ponce that “the issue might be different if the

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defendant were under formal, custodial arrest” meaning, “an arrest for criminal
activity in a custodial interrogation setting.” Ponce, 2004-NMCA-137 ¶ 38.
E. 	Once Handcuffed, Was Defendant in Custody for Fifth Amendment
Purposes?
{15} 	Defendant argues that once handcuffed, he was in custody, and since he was
subsequently 	interrogated 	without 	Miranda 	warnings, 	his 	responses 	must 	be
suppressed. In responding to Defendant’s arguments, we recognize this Court’s
methodology for analyzing the Miranda issue in Wilson to be useful and instructive.
In Wilson, this Court examined the handcuffing of a defendant during a traffic stop,
parsing the relevant Fourth Amendment inquiry from the Miranda/Fifth Amendment
inquiry in order to correctly apply the relevant legal tests to the facts.
1. 	Handcuffing and Reasonableness Under the Fourth Amendment
{16} 	In Wilson, when the defendant failed to cooperate with the traffic stop and acted
defensively and threateningly, the officer used force to handcuff him, causing the
defendant to drop to his knees, and then placed the defendant in the back of a police
vehicle where he was questioned by police. 2007-NMCA-111, ¶¶ 3-4. We observed
that the amount of force used by the officer was reasonable under a Fourth
Amendment analysis and did not transform the traffic stop into a de facto arrest. See
Id. ¶¶ 18-19, 35 (discussing the difference between Fourth and Fifth Amendment

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analysis and noting that the Fourth Amendment inquiry is one of reasonableness); see
also State v. Paananen, 2014-NMCA-041, 	¶¶ 19-25, 321 P.3d 945, cert. granted,
2014-NMCERT-003, 324 P.3d 376 (No. 31,982, Mar. 28, 2014) (discussing
authorities that determine the objective indicia of formal arrest under the Fourth
Amendment, including handcuffing for officer and public safety, and verbal notice to
the suspect).
{17} 	Under a Fourth Amendment analysis in this case, the probation officer acted
reasonably in performing a pat down search of Defendant and handcuffing him when
he came out of the bathroom. Handcuffing Defendant was objectively reasonable due
to the “uncertainty of the situation” occasioned by Defendant’s running and hiding
and “for officer safety” purposes. Up to that point, Defendant had failed to comply
with his obligation to cooperate with the home visit. In addition, no de facto arrest
occurred at that point. See, e.g., State v. Lovato, 1991-NMCA-083, ¶¶ 24, 32, 112
N.M. 517, 817 P.2d 251 (holding that officers used reasonable force in effectuating
an investigatory detention and thus the stop did not amount to an arrest where the
officers stopped a vehicle suspected in a recent drive-by shooting and, with guns
drawn, ordered the occupants to exit the vehicle with the fingers laced behind their
necks, then handcuffed the occupants). The probation officer testified that he told
Defendant he was not under arrest, and the district court specifically found that when

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handcuffed, “Defendant was not placed under arrest.” Defendant does not contend that
this finding is not supported by substantial evidence. See, e.g., Paananen, 2014-
NMCA-041, ¶ 19 (discussing that exactly when an arrest has taken place is for the
district court to determine in the first instance, and if contested on appeal, is reviewed
for substantial evidence).
2. 	Miranda Warnings Are Not Required During Routine Traffic Stops or
Routine Probation Visits
{18} 	In Wilson, we noted that “generally, routine traffic stops do not require that a
detainee be given Miranda [Fifth Amendment] warnings before interrogation.”
Wilson, 2007-NMCA-111, ¶¶ 15, 20 (relying on Berkemer v. McCarty, 468 U.S. 420,
440-42 (1984); see State v. Sanchez, 2001-NMCA-109, ¶ 22, 131 N.M. 355, 36 P.3d
446; Armijo v. State ex rel. Transp. Dep’t, 1987-NMCA-052, ¶ 6, 105 N.M. 771, 737
P.2d 552 (requiring Miranda warnings only when a “defendant can demonstrate that,
at any time between the initial stop and the arrest, he was subjected to restraints
comparable to those associated with a formal arrest” (internal quotation marks and
citation omitted)).
{19} 	In this case, the probation order and home visits agreement required Defendant
to fully cooperate with officers during home visits. Murphy informs us that a routine
visit of a probationer by his probation officer, like a routine traffic stop, does not

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ordinarily present a Fifth Amendment situation that will be recognized as an in-
custody interrogation. 465 U.S. at 430.
3. 	A Routine Stop for Questioning, not Requiring Miranda Warnings, may
Evolve Into a Custodial Interrogation Situation
{20} 	In Wilson, we concluded that a routine traffic stop that initially did not require
Miranda warnings subsequently evolved into a custodial interrogation equivalent to
a formal arrest when the defendant was forcibly handcuffed, dropped to his knees, and
then placed in a police vehicle for questioning. Wilson, 2007-NMCA-111, ¶ 35. In
concluding that Miranda warnings were required, we relied on United States v.
Newton, 369 F.3d 659, 675-76 (2d Cir. 2004). Wilson, 2007-NMCA-111, ¶¶ 32-33.
{21} 	In Newton, the Second Circuit Court of Appeals concluded that the defendant-
parolee was in custody for purposes of the Fifth Amendment when, based on a
telephone call from the defendant’s mother informing authorities that the defendant
had a gun and was threatening to kill her and her husband, three parole officers and
three police officers entered the defendant’s home and immediately handcuffed him,
even though the defendant was told that he was not being placed under arrest and that
the handcuffs were being used only to ensure his own safety and that of the officers.
369 F.3d at 663-64. In so holding, the Second Circuit observed that “[h]andcuffs are
generally recognized as a hallmark of a formal arrest.” Id. at 676; see also, United

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States v. Alvelo-Ramos, 945 F. Supp. 19, *22 (D. Puerto Rico 1996) (during the
execution of a search warrant of the defendant’s house for illegal weapons, where five
police officers were present and the defendant was handcuffed for the duration the
defendant was in custody for purposes of Miranda).
{22} 	In Wilson, we also discussed several New Mexico cases that buttressed our
conclusion that the defendant was not in custody for Fifth Amendment purposes by
noting that the defendant was not restrained or handcuffed during the police
encounter. 2007-NMCA-111, ¶¶ 25-29; see State v. Bravo, 2006-NMCA-019, ¶ 11,
139 N.M. 93, 128 P.3d 1070 (holding that the defendant was not in custody in part
because “[h]er movements were not restricted in any way by the officers” and she
could move freely throughout her home during the interview); Munoz, 1998-NMSC-
048, ¶ 43 (holding that the defendant was not in custody when he willingly went with
police to be questioned, was not handcuffed or searched, was not interviewed in a
locked space, and was taken back home when the interview was completed). Recently,
we relied on Wilson in part to hold that the defendant was in custody for Fifth
Amendment purposes, despite agreeing to meet with officers, when he was
handcuffed, transported in a police vehicle, and interrogated at the district attorney’s
office without handcuffs but under other conditions indicating restraint. State v.
Olivas, 2011-NMCA-030, ¶¶ 11-12, 15, 149 N.M. 498, 252 P.3d 722.

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4. 	Handcuffing Defendant did not Transform the Probationary Home Visit
Into a Custodial Interrogation Situation
{23} 	Applying Wilson and Olivas, this Court must now determine whether Miranda
warnings are required whenever a defendant-probationer is handcuffed while being
questioned by his probation officer during a random home visit. Rather than embrace
a bright-line rule, we consider the totality of the circumstances presented by the
specific facts of the case. See Olivas, 2011-NMCA-030, ¶ 10 (stating that “our
appellate courts engage in a fact-specific analysis of the totality of the circumstances
under which the questioning took place in order to decide whether the custody
requirement is met”). In considering the totality of the circumstances, we find Murphy
and Ponce to be more instructive than Wilson and Olivas.
{24} 	First, Murphy and Ponce directly address the application of Miranda in a
probationary context. Wilson and Olivas, as well as the New Mexico cases discussed
in Wilson, do not. In Murphy, the United States Supreme Court stated that “we decline
to require [Miranda warnings] here since the totality of the circumstances is not such
as to overbear a probationer’s free will.” Murphy, 465 U.S. at 431. It reasoned that the
general obligation of probationers to appear and answer questions truthfully did not
in itself convert the defendant’s otherwise voluntary statements into compelled ones.
Id. It also recognized that the nature of probation is such that probationers should

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expect to be questioned on a wide range of topics relating to their past criminality. Id.
at 432. Further, the fact that the investigation was focused on the defendant as a
suspect of a separate rape and murder did not trigger the need for
Miranda warnings in a noncustodial setting. Murphy, 465 U.S. at 431. In Murphy, no
Miranda warnings were required because the regular probation meeting presented a
noncustodial setting and because the probationer was not arrested and was allowed to
leave after the meeting. Murphy, 465 U.S. at 430, n.5.
{25} 	In Ponce, the defendant probationer was immediately arrested for a violation
of his probation agreement when he arrived at the probation meeting. 2004-NMCA-
137, ¶ 2. While the Ponce opinion does not state that the defendant probationer was
handcuffed when he was arrested, the defendant recognized that he was restrained to
the degree associated with a formal arrest. This Court held that no Miranda warnings
were required because the defendant was arrested for a noncriminal probation
violation rather than for independent criminal activity, and the only issue preserved
for review on appeal involved a question by an officer which was not designed to
elicit an incriminating response. Ponce, 2004-NMCA-137 ¶¶ 37-38.
{26} 	In the present case, Defendant’s probation meeting was a random home visit
rather than a regularly scheduled office visit. Although not prearranged, the visit took
place in Defendant’s home, a noncustodial setting. Even though the date and time

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were not prearranged, random home visits are specifically authorized under the
probation order and the home visit agreement, and a probationer accepts and expects
that random home visits may occur in the ordinary course of probation. In this case,
Defendant had already tested positive for drugs at previous office visits. Therefore,
Defendant could reasonably expect that his probation officer might conduct a home
visit to investigate these violations. Thus, the fact that the home visit was unscheduled
does not, in and of itself, transform this case out of the ambit of Murphy and Ponce
or otherwise automatically indicate that Defendant was in custody when the officers
made their random home visit.
{27} 	Second, Defendant was not isolated or overwhelmed by the police presence.
Defendant’s wife and another probationer were at Defendant’s house at the time of the
visit. Even though a drug task force officer accompanied the probation officer, the
district court specifically found that the officer was selected to accompany the
probation officer that evening “because of his availability and county wide jurisdiction
and not because of any expertise in dealing with drug offenses.” The district court
further found that the probation officer “was in charge of, directed and conducted the
encounter” with minimal involvement from the drug task force officer, and that the
probation officer’s questions and conduct “were in furtherance of his duties. . . [and]
the legitimate ends of his role” as Defendant’s probation officer rather than as an

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agent of the drug task force. Under these circumstances, the presence of the drug task
force officer does not mandate that Defendant was in custody for Fifth Amendment
purposes. See generally, State v. Bolin, 2010-NMCA-066, ¶¶ 14-15, 148 N.M. 489,
238 P.3d 363 (observing that the presence of law enforcement officers does not alter
the authority of a probation officer so long as the probation officer is acting “with a
probationary 	purpose” 	rather 	than 	merely 	as 	“a 	subterfuge 	for 	criminal
investigations”).
{28} 	Third, the totality of the circumstances that occasioned the handcuffing of the
defendants in Wilson, Newton, and Olivas on the one hand, and Defendant in this case,
are quite different. In Wilson, the defendant was forcibly handcuffed and dropped to
his knees, then immediately placed in the back of a police car for questioning. 2007-
NMCA-111 ¶ 35. In Newton, in order to investigate parole violations that also
constituted new crimes, six officers entered the defendant’s home intending to arrest
him, handcuffed him, and searched his home. 369 F.3d at 663-64. In Olivas, once the
defendant agreed to meet with officers, they secured him in handcuffs at the
rendezvous location and transported him in the back of a marked police car to the
district attorney’s office for questioning; the interrogating officers at the district
attorney’s office did not inform the defendant at any time that he was not under arrest
or that he was free to leave the room or that he could terminate the interview by

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choice. 2011-NMCA-030, ¶¶ 11-12, 15. While at the district attorney’s office, the
defendant was not handcuffed but he was escorted at all times, including during
smoke breaks outside the building; he was interrogated in a small room with the door
closed and with two officers present at all times, one of whom sat between the
defendant and the door; and the questioning officer interrogated the defendant by
accusing him of the victim’s murder and by repeatedly directing him to confess. Id.
{29} 	In this case, there is no evidence of force in relation to the handcuffing, or
isolation in a secure location, or confinement as in Wilson, or of overwhelming police
presence as in Newton, or of confinement and coercion as in Olivas. For identified
safety concerns, Defendant was handcuffed when he came out of the locked bathroom
and, in accordance with his home visits agreement, told to remain seated in a room of
his home. Thereafter, Defendant demonstrated that he felt relatively unrestrained and
familiar enough with his probation officer to ask to speak privately with the probation
officer “to explain himself.” Defendant then took the probation officer into another
room of his house, the laundry room, where the probation officer saw empty beer cans
in the trash can, and Defendant admitted to drinking alcohol with the other
probationer. When the probation officer told Defendant he was going to search the
house and asked Defendant if he had anything he was not supposed to have, the
probation officer was continuing to investigate various probation violations and was

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proceeding in a reasonable manner. Defendant’s admission and subsequent referral
to a cabinet in the “party room” was not coerced in any manner and was the first
instance that potentially transformed the home visit into an investigation of new
unrelated criminal activity. Any Fifth Amendment protections arose after Defendant
showed his probation officer the “party room” cabinet containing the drugs.
{30} 	The fact that Defendant was handcuffed does not automatically establish that
he was in custody for Fifth Amendment purposes. Rather, the fact that Defendant was
handcuffed is one of many factors that must be considered under the totality of the
circumstances. In this case, the handcuffing exerted a level of restraint but was only
utilized after Defendant created an insecure and problematic home visit environment.
It was reasonable for the probation officer to temporarily restrain Defendant in order
to obtain compliance with the terms and conditions of the probation order and the
home visits agreement. As a result, the use of handcuffs on Defendant did not, by
itself, rise to the level of an arrest or a custodial interrogation for Fifth Amendment
purposes.
{31} 	It is also worth noting that the officers did not arrive at Defendant’s home with
the intention of threatening, coercing, or tricking Defendant into admitting to an
unrelated and independent crime. At the outset, the probation officer knew Defendant
had recently tested positive for drugs at prior office visits, and the home visit was

21
specifically undertaken to investigate these prior violations. After Defendant ran and
hid from the officers, their reasonable suspicions were justifiably heightened. When
Defendant came out of the bathroom and the probation officer conducted a protective
pat down and found a large amount of cash on Defendant, the officer’s reasonable
suspicions were justifiably heightened regarding potential drug use. At that point, the
officer appropriately proceeded to ask the drug task force officer about the availability
of a drug dog, and he told Defendant he intended to search the residence. Thus, the
home visit evolved into an investigation of a probation violation that focused on the
possession of drugs inside Defendant’s residence. Coercion, threatening tactics, and
tricks were not used to investigate Defendant’s potential probation violations,
including the possibility of drugs within Defendant’s residence.
{32} 	As a result, the officer’s actual question regarding whether “there was
[anything] in [Defendant’s] residence he was not supposed to have” was objectively
related to the home visit for probation violation purposes and was not specifically
designed to elicit admission of an unrelated and independent crime. The probation
officer did not accuse Defendant of possessing or trafficking in drugs and did not
badger him into admitting such activity.
F. 	Conclusion
{33} 	Under the totality of the circumstances, Defendant was not in custody or

22
formally arrested for Fifth Amendment purposes when he answered the question from
his probation officer and escorted the probation officer to the drugs inside his home.
Because the officers did not obtain the drugs and drug paraphernalia unlawfully, we
do not address the application of the inevitable discovery doctrine. See State v. Haidle,
2012-NMSC-033, ¶¶ 9, 39, 285 P.3d 668 (stating that the inevitable discovery
analysis is unnecessary unless we first determine that evidence was obtained through
unlawful police conduct). Finally, because Defendant failed to develop and preserve
his mere assertion on appeal that the New Mexico constitution was violated, there is
no need to address this issue. See State v. Quinones, 2011-NMCA-018, ¶ 17, 149
N.M. 294, 248 P.3d 336 (declining to engage in the interstitial approach where the
defendant failed to establish that the federal analysis is flawed, that there are structural
differences between the state and federal governments, or that there are distinctive
New Mexico characteristics warranting a departure from federal analysis).
{34} 	We affirm the district court’s order denying Defendant’s motion to suppress.
{35} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

J. MILES HANISEE, Judge

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