May 28, 2015 – State of New Mexico v. Mark Sanchez, No. 33,587

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: May 28, 2015
NO. 33,587
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MARK SANCHEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Margaret McLean, Assistant Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Steven J. Forsberg, Assistant Appellate Defender
Santa Fe, NM

Sue Anne Herrmann, Adjunct Professor of Law
Santa Fe, NM
John Campbell, Practicing Law Student
Santiago Solis, Practicing Law Student
Albuquerque, NM
for Appellant

OPINION
HANISEE, Judge.
{1} 	Defendant appeals from the district court’s judgment and sentence convicting
him for trafficking methamphetamine by possession with the intent to distribute,
which was entered pursuant to a conditional plea agreement. In the plea agreement,
Defendant reserved the right to appeal the denial of his motion to suppress the
evidence obtained from Defendant’s vehicle beginning with the officer’s warrantless
seizure of a bag of pills that Defendant attempted to hide from the officer. We agree
with Defendant that the officer lacked probable cause to seize the bag of pills. We
reverse the district court’s denial of the motion to suppress and remand for further
proceedings.
I. 	BACKGROUND
{2} 	The following facts were established by Officer McCarty, the only witness who
testified at the suppression hearing. While on routine patrol during his graveyard shift,
Officer McCarty noticed a black Infiniti with Colorado license plates stopped at an
intersection. The officer “ran the number of the license plate, and it came back
expired.” On this basis, Officer McCarty initiated and completed a traffic stop. When
Officer McCarty approached the driver-side door, he asked for Defendant’s driver’s
license, registration, and proof of insurance. Defendant leaned over toward the

2
passenger’s seat, where a passenger was seated, and appeared to be searching for his
paperwork in the console or reaching for the glove box. During this time, the officer
shone his flashlight around the inside of the vehicle to make sure there were “no
weapons or anything.” The officer observed a clear, plastic bag on the floorboard of
the vehicle by Defendant’s right foot with what appeared to be “a capsule or a pill of
some kind in it.” Later in his testimony, Officer McCarty stated that he observed two
pills that were different kinds, but were similar. Defendant’s foot obscured the rest of
the bag from the officer’s view.
{3} 	The officer asked Defendant what the pills were in the bag at his feet.
Defendant placed his foot on top of the bag, tried to slide it underneath the driver’s
seat, and said, “What bag?” Officer McCarty immediately removed Defendant from
the vehicle, explaining that he was afraid Defendant would “damage [the pills] or get
[them] where [the officer could not] get a hold of them.” Officer McCarty then
reached into the vehicle and removed the bag, explaining that he did not want the
passenger to take it.
{4} 	The officer admitted that he could not identify the two pills he saw in the bag
before removing the bag from the vehicle. The officer testified that he had specific
training relevant to identification of pills while he was a full-time paramedic for
thirteen years prior to his employment as a law enforcement officer, and that he had

3
maintained his license because he continued to work part-time as a paramedic for the
San Juan County SWAT team. Based on this training, the officer determined that the
two pills he saw in the bag prior to seizing it were prescription medications. He could
not determine the type of prescription medications, however, and had not asked
whether Defendant was lawfully in possession of the prescription medications before
removing them from the vehicle. These are the facts that form the basis for our
analysis.
{5} 	We note that after the officer took the bag, he could see there were several
different kinds of pills in it. The officer began questioning Defendant about the pills.
Defendant stated that the pills were prescribed to him by his doctor for anxiety and a
back injury. Defendant stated that the prescription pill bottles were at his house.
Officer McCarty’s testimony does not clearly explain how he proceeded after
questioning Defendant in the patrol car. It appears that he arrested Defendant,
performed an inventory search, sealed Defendant’s vehicle, and obtained a search
warrant. Evidence discovered in the course of the subsequent searches of the vehicle
formed the basis for Defendant’s conviction for trafficking methamphetamine.
{6} 	Argument at the suppression hearing and in motions focused entirely on the
threshold seizure of the bag of pills and whether the seizure was supported by
probable cause and exigency. The parties agreed that the facts were appropriately

4
analyzed under the plain view doctrine and the need for exigency under New Mexico
case law. The defense focused on the lack of probable cause under the plain view
doctrine, arguing that the incriminating nature of the pills was not immediately
apparent to Officer McCarty. The State, apparently drawing inferences from Officer
McCarty’s testimony, argued that the officer suspected the pills were contraband and,
coupled with Defendant’s attempt to hide the pills, Officer McCarty had the requisite
probable cause. The State’s arguments strongly emphasized the presence of exigency.
The district court’s written ruling denying the suppression of evidence agreed with the
State that there were exigent circumstances and ruled that the officer’s experience and
observations, especially considering Defendant’s furtive attempt to hide the pills, gave
rise to probable cause.
II. 	DISCUSSION
The Parties’ Arguments
{7} 	On appeal, Defendant argues that the officer’s investigation into the pills was
not founded on reasonable suspicion of criminal activity and the officer’s warrantless
seizure of the pills was not based on probable cause and exigency. The State argues
that Defendant did not preserve a challenge to the officer’s reasonable suspicion to
inquire about the pills. The State contends that the district court properly concluded
that 	the 	seizure 	of 	the 	pills 	was 	supported 	by 	probable 	cause 	and 	exigent

5
circumstances and argues that Defendant’s focus on the plain view doctrine on appeal
renders the district court’s ruling on probable cause uncontested on appeal. The State
also takes issue with Defendant’s reference, without citation to the record, to statistical
information regarding the percentage of Americans taking prescription drugs.
{8} 	Initially, we clarify which matters are properly before this Court. Defendant
contends that although the officer’s lack of reasonable suspicion was not argued
below, the inquiry is relevant and necessary to determining the reasonableness of
Officer McCarty’s actions because, without a reasonable suspicion that the pills were
evidence of a crime, there can be no probable cause. “It is an enduring principle of
constitutional jurisprudence that courts will avoid deciding constitutional questions
unless required to do so.” Schieter v. Carlos, 1989-NMSC-037, ¶ 13, 108 N.M. 507,
775 P.2d 709. The arguments before the district court were narrowly and repeatedly
circumscribed to the warrantless seizure of the pills. Both the testimony elicited from
the officer and the district court’s ruling reflect this narrow issue. Consistent with our
policy of judicial restraint and our rule requiring preservation, we decide this case on
the preserved and narrowest possible grounds. See Rule 12-216(A) NMRA (“To
preserve a question for review it must appear that a ruling or decision by the district
court was fairly invoked[.]”); Allen v. Lemaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806
(citing Baca v. N.M. Dep’t of Pub. Safety, 2002-NMSC-017, ¶ 12, 132 N.M. 282, 47

6
P.3d 44 for the proposition that “courts exercise judicial restraint by deciding cases
on the narrowest possible grounds and avoid reaching unnecessary constitutional
issues”). Thus, we do not decide whether the officer had reasonable suspicion to
inquire about the pills before seizing them.
{9} 	We are not persuaded, however, by the State’s attempt to characterize the
district court’s ruling as a rejection of the applicability of the plain view doctrine. The
district court expressly found that the officer observed the bag in plain view. Nor are
we persuaded by the State’s attempt to distinguish the plain view analysis from the
probable cause inquiry in arguing that Defendant abandoned a probable cause
challenge. Below, we explain the relationship between the plain view doctrine and
probable cause.
{10} 	Lastly, we note that we do not consider matters that are not of record, including
the 	statistical 	information 	provided 	by 	Defendant 	on 	appeal. 	State 	v. 	Maez,
2009-NMCA-108, ¶ 8, 147 N.M. 91, 217 P.3d 104 (“This Court will not consider and
counsel should not refer to matters not of record in their briefs”). We acknowledge,
however, that many people are prescribed medication. See State v. Erikson K.,
2002-NMCA-058, ¶ 24, 132 N.M. 258, 46 P.3d 1258 (“A court may take judicial
notice of adjudicative facts that are not subject to reasonable dispute. Such facts must
be matters of common and general knowledge which are well established and

7
authoritatively settled.”) (alteration, internal quotation marks, and citation omitted)).
Standard of Review
{11} 	“The district court’s denial of Defendant’s motion to suppress evidence presents
a mixed question of fact and law.” State v. Alamanzar, 2014-NMSC-001, ¶ 9, 316
P.3d 183. “[W]e review any factual questions under a substantial evidence standard
and . . . review the application of the law to those facts, making a de novo
determination of the constitutional reasonableness of a search or seizure.” State v.
Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885; see also State v.
Williamson, 2009-NMSC-039, ¶ 28, 146 N.M. 488, 212 P.3d 376 (clarifying that in
the context of warrantless searches and seizures, we review the lower court’s
determination de novo).
Plain View and Probable Cause
{12} 	“Warrantless seizures are presumed to be unreasonable and the State bears the
burden of proving reasonableness.” State v. Weidner, 2007-NMCA-063, ¶ 6, 114 N.M.
582, 158 P.3d 1025. “In order to prove that a warrantless seizure is reasonable, the
State must prove that it fits into an exception to the warrant requirement.” Id. “Among
the recognized exceptions to the warrant requirement are exigent circumstances,
consent, searches incident to arrest, plain view, inventory searches, open field, and hot
pursuit.” State v. Leticia T., 2014-NMSC-020, ¶ 11, 329 P.3d 636. The relevant

8
justifications for the warrantless seizure of the bag from Defendant’s vehicle are the
plain 	view 	observation 	and 	the 	existence 	of 	probable 	cause 	with 	exigent
circumstances. See id. ¶ 12 (“A warrantless entry into a vehicle under the exigent
circumstances exception requires probable cause plus exigent circumstances.”).
{13} 	“Under the plain view exception to the warrant requirement, items may be
seized without a warrant if the police officer was lawfully positioned when the
evidence was observed, and the incriminating nature of the evidence was immediately
apparent, such that the officer had probable cause to believe that the article seized was
evidence of a crime.” State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d
1286. The requirement that the incriminating nature of the evidence be “immediately
apparent” does not require a more heightened level of certainty that an item is
contraband or evidence of a crime than is required by probable cause. See State v.
Williams, 1994-NMSC-050, ¶ 15, 117 N.M. 551, 874 P.2d 12, overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. The
“immediately apparent” language “essentially requires that there be probable cause,”
without the need for further search or an additional invasion of privacy and possessory
interests. See Williams, 1994-NMSC-050, ¶ 15.
{14} 	“Probable cause exists when the facts and circumstances warrant a belief that
the accused had committed an offense, or is committing an offense.” Ochoa, 2004-

9
NMSC-023, ¶ 9. “There are no bright line, hard-and-fast rules for determining
probable cause, but the degree of proof necessary to establish probable cause is more
than a suspicion or possibility but less than a certainty of proof.” State v. Evans, 2009-
NMSC-027, ¶ 11, 146 N.M. 319, 210 P.3d 216 (internal quotation marks and citation
omitted). Thus, the existence of probable cause is reviewed within the “realm of
probabilities rather than in the realm of certainty.” State v. Knight, 2000-NMCA-016,
¶ 20, 128 N.M. 591, 995 P.2d 1033. “[P]robable cause must be evaluated in relation
to the circumstances as they would have appeared to a prudent, cautious and trained
police officer.” Ochoa, 2004-NMSC-023, ¶ 9 (internal quotation marks and citation
omitted). An officer must acquire information establishing probable cause to believe
that an item is possessed unlawfully before seizing it. 	See 	State v. Moran,
2008-NMCA-160, ¶¶ 12-14, 145 N.M. 297, 197 P.3d 1079 (holding that although law
enforcement officers may have eventually acquired sufficient information for probable
cause, they did not have adequate grounds to believe that the evidence at issue was
possessed unlawfully to justify the initial entry).
Pills Not Inherently Unlawful
{15} 	In the instant case, we conclude that the existence of two pills contained within
a small bag on the floorboard of the car was insufficient to convey evidence of
criminality that would be apparent to the officer based upon mere observation. As we

10
have acknowledged, the possession of prescription pills is commonly lawful, and our
laws do not prohibit the possession of prescription pills in an aftermarket container.
Cf. Gay v. State, 138 So.3d 1106, 1110 (Fla. Dist. Ct. App. 2014) (stating that “the
mere observation of pills in an aftermarket container is equally consistent with
noncriminal activity as with criminal activity”). Rather, our laws declare it unlawful
to possess dangerous drugs or controlled substances unless they are obtained pursuant
to a valid prescription. NMSA 1978, §§ 26-1-16(E) (2013); 30-31-23(A) (2011).
Officer McCarty believed, based on his training and experience as a paramedic, that
the two pills were prescription medication, but he could not identify the pills and had
no information indicating whether they were prescribed to Defendant. Additionally,
the two pills the officer observed did not constitute an amount that might suggest that
they were possessed for an illegal purpose. Cf. People v. Humphrey, 836 N.E.2d 210,
213-15 (Ill. App. Ct. 2005) (holding that even where the officer observed a small,
clear plastic container holding several hundred white pills partially hidden under the
passenger seat, the incriminating nature of the pills was not immediately apparent to
the officer in a manner that satisfied the plain view doctrine to warrant the seizure of
the container); see People v. Carbone, 184 A.D.2d 648, 650 (N.Y. App. Div. 1992)
(stating that “the three pink and white pills could not have been seized under the plain
view doctrine since it was not ‘immediately apparent’ to [law enforcement] that the
pills were either evidence of criminality or contraband”).

11
{16} 	Where, as here, an officer observes an item in plain view that is often lawfully
possessed and used, the context in which the item is viewed may make it reasonably
apparent to the officer that the item is being possessed or used unlawfully with a
sufficient level of probability to satisfy probable cause. See Ochoa, 2004-NMSC-023,
¶ 13. The circumstances of the police encounter, relevant officer training and
experience, and specific facts known about the suspect and the particular item
observed are factors that may properly inform an officer’s determination that there is
probable cause to believe that the item in plain view is evidence of a crime. See id.
{17} 	Officer McCarty in the current case articulated no suspicious circumstances
surrounding the encounter. The officer stopped Defendant for driving with expired
registration. There is no indication from the officer’s testimony that Defendant’s
driving or demeanor suggested that he might have been under the influence of a drug,
nor did the officer testify that Defendant or his passenger displayed any suspiciously
nervous or aggressive behavior before the officer observed the pills. The officer’s
testimony did not indicate that he stopped Defendant in an area known for drug
trafficking or other criminal activity, and the officer gave no indication that he had any
prior knowledge of Defendant. In fact, the officer did not expressly state in his
testimony that his observation of the two pills in the bag was suspicious, nor did he
state why it might give rise to any suspicions. The officer’s testimony clarifies only

12
that his training and experience led him to believe that the two pills he observed were
similar and were prescription medication. We note that these items have common,
noncriminal uses. State v. Haidle, 2012-NMSC-033, ¶ 30, 285 P.3d 668 (“Mere
suspicion 	about 	ordinary, 	non-criminal 	activities, 	regardless 	of 	an 	officer’s
qualifications and experience, does not satisfy probable cause.”)(internal quotation
marks and citation omitted)). The officer indicated that he grabbed the bag of pills
because Defendant was trying to hide it.
Furtive Movements and the Need for Other Specific Circumstances for Probable
Cause
{18} 	As the officer’s testimony demonstrates, the only suspicious circumstance that
combined with the officer’s view of the two pills on the floorboard was Defendant’s
reaction to the officer’s question about what pills were in the bag—Defendant’s
attempt to slide the bag under the driver’s seat with his foot, and his verbal response,
“What bag?” Professor LaFave has offered his view on the role of furtive gestures in
the probable cause determination:

13
Observation of what reasonably appear to be furtive gestures is a
factor that may properly be taken into account in determining whether
probable cause exists.
. . . .
Thus, if the police see a person in possession of a highly suspicious
object or some object that is not identifiable but which because of other
circumstances is reasonably suspected to be contraband, and then
observe that person make an apparent attempt to conceal the object from
police view, probable cause is then present.
2 W. LaFave, Search and Seizure: A Treatise of the Fourth Amendment § 3.6(d), at
438 (5th ed. 2014); see also Sibron v. New York, 392 U.S. 40, 66-67 (1968) (stating
that “deliberately furtive actions and flight at the approach of strangers or law officers
are strong indicia of mens rea, and when coupled with specific knowledge on the part
of the officer relating the suspect to the evidence of crime, they are proper factors to
be considered in the decision to make an arrest”). LaFave’s compilation of numerous
cases that form the basis of his assessment of furtive gestures in the context of
probable cause demonstrates that where the criminal nature of an object is not
identifiable, other circumstances that indicate criminality have been required, in
addition to a suspect’s attempt to conceal the object from police, in order for probable
cause to exist. See 2 W. LaFave, supra, § 3.6(d) at 438-39 nn.182-83. Our review of
relevant caselaw generally supports this observation. See, e.g., United States v.
McGehee, 672 F.3d 860, 863-64, 869-70 (10th Cir. 2012) (holding that where an
officer observed a vehicle improperly parked in front of a house known for drug

14
trafficking, smelled PCP in the vehicle, noticed a vanilla-extract bottle—commonly
used to store PCP—in the driver-side door, and where the driver attempted to conceal
a handgun underneath the seat with his foot, police had probable cause to believe the
driver was involved in a narcotics-related offense); Ex parte Kelley, 870 So.2d 711,
715-18, 723-25 (Ala. 2003) (holding that the police had probable cause to seize a
matchbox from the defendant when she made several furtive movements in attempts
to conceal the matchbox from view when plainclothes, narcotics-investigation officers
approached her, having reasonably suspected that the object was part of a drug deal
they witnessed while investigating “numerous complaints” about drug activity, and
when the officers had previous experience with drug transactions in that location).
{19} 	We recognize, however, that the contexts in which defendants make furtive
movements vary widely, and courts view those contexts and the furtive movements
themselves differently, as we illustrate below. At least two courts have concluded that
there was probable cause with little more, if any, suspicious circumstances than those
before us now. One such case is Mavin v. Commonwealth, 521 S.E.2d 784 (Va. Ct.
App. 1999). There, a vehicle’s passenger was slumped down in the backseat,
attempting to hide his person and a prescription bottle without a label from law
enforcement. Id. at 786. The passenger denied knowledge of the bottle, which the
officer knew was often used to carry crack cocaine. Id. Additionally, the driver of the

15
vehicle was very nervous and immediately exited the vehicle upon being stopped. Id.
The Virginia court held, without much analysis or any citation to analogous authority,
that the officer had probable cause to believe a crime was being committed sufficient
to warrant seizure of the bottle. Id.; but see Royal v. Commonwealth, 558 S.E.2d 549,
550, 553-55 (Va. Ct. App. 2002) (requiring further suspicious circumstances beyond
the defendant’s “unusual behavior” – chewing and attempting to swallow a dollar bill
and refusing to spit it out – to support probable cause where the defendant was in a
vehicle reported to be suspicious and where the officer knew from experience that
drugs are often concealed in dollar bills and that individuals often attempt to swallow
drugs).
{20} 	The second case determining the existence of probable cause with relatively
minor suspicious circumstances, Ball v. United States, 803 A.2d 971, 973 (D.C. 2002),
involved an officer’s plain feel of a large medicine bottle during a patdown frisk for
weapons resulting from a traffic stop. The officer testified that the traffic stop was
becoming increasingly intense and the defendant, who was a passenger in the vehicle,
was sweating, getting excited and repeatedly attempting to conceal and access
something around his abdomen area despite the officer’s orders to stop. 	Id.
Additionally noting the officer’s experience and familiarity with drugs being stored
in similar packaging, the court determined that based on the circumstances, the officer

16
had probable cause from his plain feel patdown. Id. at 981-982. The court detailed
numerous cases that take different approaches to the immediately apparent/probable
cause determination under analogous circumstances, adding to our observation that
these cases turn on the smallest of facts, including a suspect’s behavior, the officer’s
testimony regarding particularized knowledge of the items at issue, criminality, and
the individuals involved in the encounter. See id. at 976-79, 976-77 nn.4-5.
{21} 	Ultimately, we are persuaded by statements made by the Massachusetts
Supreme Court in Commonwealth v. Alvarado, explaining that circumstances similar
to those before us fall short of probable cause and may, at most, give rise to
reasonable suspicion:
The view of an object which may be used for lawful as well as unlawful
purposes, even a container of the type commonly used to store controlled
substances, is not sufficient to provide the viewing officer with probable
cause to seize that object or arrest the individual possessing that object.
Nor does the observation of a furtive gesture, such as attempting to
conceal an object, give rise, in and of itself, to probable cause. We are of
the opinion that the combination of these two factors is more akin to a
situation giving rise to a reasonable suspicion based on articulable facts
justifying a threshold inquiry than to probable cause.
651 N.E.2d 824, 830 (Mass. 1995) (internal citations omitted). There, an officer
stopped a vehicle based upon “the peculiar maneuverings of the automobile and the
extremely slow speed at which it was traveling.” Id. at 828. Upon stopping the
vehicle, the officer shone his flashlight inside the car and observed the defendant, who

17
was the passenger, grasping what the officer believed to be a glassine bag in his fist
and placing it down the front of his pants. Id. The officer testified that in his training
and experience, he was aware that glassine bags are commonly used to store
controlled substances. Id. The defendant denied having put anything in his pants and
gave the officer false information about where he was from. Id. However, the
defendant later admitted that he was from a city in Colombia, which the officer knew
to be a major source for cocaine in the United States. Id. The Massachusetts Supreme
Court held that the officer did not have probable cause to arrest the defendant at that
time, comparing the facts to those of other cases that included a number or
combination of additional circumstances and emphasizing the need for a case-by-case
determination. Id. at 829-831.
{22} 	Consistent with the sentiment expressed by the Massachusetts Supreme Court
and the observation from Professor LaFave, we are of the opinion that Defendant’s
attempt to conceal the bag on the floorboard containing pills that may or may not have
been lawfully possessed, without any testimony from the officer indicating suspicious
circumstances or specific knowledge about Defendant or the item seized, is not an act
that supplied Officer McCarty with a suspicion that rose to the level of probable cause.
{23} 	We note that our decision is also informed by cases that examine the nature or

18
purpose of the suspect’s furtive movement and consider the item the suspect attempted
to conceal in making a probable cause determination. In Ex parte Tucker, 667 So.2d
1339, 1342 (Ala. 1995), the circumstances at issue revolved around an officer asking
the defendant to remove a large bulging item from his pocket, which the defendant
revealed to be a closed, opaque film canister. After the officer asked the defendant
about the contents of the canister, the defendant placed it behind his back, at which
point the officer requested to see the canister. Id. at 1342-43. The defendant obliged,
and the officer discovered drugs within the canister. Id. at 1343. The Alabama court
analyzed the mens rea behind the defendant’s action, drawing a distinction between
a suspect who attempted to flee or conceal an object from police view and a suspect
whose action manifested an expectation in the right to privacy in the object. Id. at
1347-48. With even considerably more suspicious circumstances surrounding the
police encounter than were present in our case, the Alabama court concluded that
because law enforcement was aware of the presence of the object and the defendant
did not try to truly conceal or remove the evidence, his action was not so definitive as
to suggest that the canister contained contraband, and it was more in the nature of an
assertion of privacy in the personal effect. Id.; see also Grantham v. City of
Tuscaloosa, 111 So.3d 174, 180-81 (Ala. Crim. App. 2012) (holding that based on the
lack of the articulable suspicion in the circumstances of the traffic stop, the
defendant/passenger’s reach over the console and refusal to exit the vehicle was

19
merely an assertion of the right to privacy by withholding consent rather than furtive
movements that might rise to the level of probable cause); State v. Lavender, 762 P.2d
1027, 1028-29 (Or. Ct. App. 1988) (holding that where the defendant—who had a
known history of drug offenses, appeared to be under the influence of drugs and was
screaming in a public park, claiming to be upset by the death of her father—attempted
to conceal the contents of her purse from police, there was no probable cause to
believe the purse contained contraband and the defendant acted with intent to protect
her right to privacy in the purse).
{24} 	Similarly, in the current case, where Officer McCarty had already seen and
identified that Defendant had a bag with pills, Defendant’s act of attempting to push
it under the seat and asking, “What bag?” does not necessarily demonstrate an attempt
to remove, destroy or truly conceal illegal contents from the officer. Defendant was
cooperative in exiting the vehicle and did not attempt to flee or further hide the bag.
Also, in this context, we believe it is appropriate to revisit and consider the items
observed and concealed—the prescription pills. Not only are pills not inherently
criminal, but their lawful use is to treat medical conditions, which our society
acknowledges in various ways to be a private matter. Thus, without other factors
suggestive of illegal drug possession, Defendant’s actions, at best, can be seen as
equally consistent with either an assertion of the right to privacy or an intent to

20
conceal contraband. Without more, we are not persuaded that Defendant’s actions or
the surrounding circumstances demonstrated with sufficient probability that Defendant
possessed the pills unlawfully.
{25} 	Based on the foregoing, we conclude that the officer’s seizure of the bag was
a hasty reaction to Defendant’s furtive movement that was not based on sufficient
information to satisfy probable cause to believe Defendant was in possession of
contraband.
Exigent Circumstances
{26} 	Finally, we briefly dismiss the State’s argument, citing only Leticia T., 2014-
NMSC-020, ¶ 19, and the statutory provisions making it unlawful to possess
“dangerous drugs” or a “controlled substance,” without a prescription, Section 26-1-
16(E) and Section 30-31-23(A), respectively, that the officer had probable cause to
believe that the bag of pills was evidence of a crime. In Leticia T., the Court focused
on the presence of exigent circumstances in support of a full search of a vehicle when
law enforcement had “reports of an armed subject pointing a ‘long gun’ at several
people from the window” of the vehicle, but where law enforcement was initially
unable to locate the weapon. 2014-NMSC-020, ¶¶ 3-4, 18-23. “A warrantless entry
into a vehicle under the exigent circumstances exception requires probable cause plus
exigent circumstances.” Id. ¶ 12 (Emphasis added.) Because we have already

21
determined that the officer lacked probable cause for the seizure of the bag, we need
not analyze the presence of exigency or its role in the analysis of the plain view
exception.
III. 	CONCLUSION
{27} 	The district court’s denial of Defendant’s motion to suppress is reversed. We
remand for further proceedings consistent with this disposition.
{28} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Judge
_________________________________
RODERICK T. KENNEDY, Judge