July 01, 2014 – State of New Mexico v. Bradley Mosley, No. 32,653

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: July 1, 2014
NO. 32,653
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRADLEY MOSLEY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Bradley Mosley pleaded no contest to trafficking by possession with
intent 	to 	distribute 	cocaine. 	The 	incriminating 	evidence 	was 	discovered 	in
Defendant’s apartment by police who had gained entry by means of a “knock-and-
talk.” Defendant’s trial counsel moved to suppress the evidence on the grounds that
police entered Defendant’s apartment without consent or a warrant and that they
lacked probable cause to conduct a knock-and-talk. 	The district court denied the
motion, and in his plea agreement, Defendant reserved the right to appeal the
suppression ruling.
{2} 	Different from what he argued in the district court, Defendant argues on appeal
that the district court should have suppressed the evidence on the ground that the
police exceeded the scope of his consent. 	As an alternative to his suppression
argument, Defendant raises an ineffective assistance of counsel claim related to his
counsel’s failure to move for suppression on the ground that the police exceeded the
scope of his consent to the entry by traversing the hallway and the bedroom. 	We
conclude that Defendant’s argument regarding the scope of consent was not preserved.
We further conclude that Defendant has made a prima facie showing of ineffective
assistance of counsel. Accordingly, we remand this matter to the district court for a

1 Officer Joslyn Archuleta was married sometime between the incident and the
time of her testimony at the suppression hearing. This Opinion will refer to her as
Officer Archuleta.
2
hearing on Defendant’s claim of ineffective assistance of counsel and any further
proceedings consistent with the district court’s determination on that claim.
BACKGROUND
{3} 	The following factual background is based on testimony presented at the
hearing on Defendant’s motion to suppress. 	Sergeant Farrah Simmons of the
Albuquerque Police Department, a training officer, and her trainee, Officer Joslyn
Archuleta, 1 responded to a reported disturbance at Defendant’s apartment. Because
Officer Archuleta was relatively inexperienced, Sergeant Simmons requested a third
officer act as her backup and was joined by Officer Brian Price. The disturbance had
been reported by Defendant’s neighbor, who wished to remain anonymous, but did
speak with Sergeant Simmons about the circumstances that led to the report.
According to Sergeant Simmons, the neighbor said that Defendant’s apartment had
“a lot of foot traffic . . . all night long” and that people had mistaken her apartment for
Defendant’s and knocked on her door asking to buy narcotics. 	The neighbor also
reportedly told Sergeant Simmons that she believed that she had observed prostitution
and drug use at Defendant’s apartment, among other things.

2 At this point in Sergeant Simmons’s 	testimony, apparently because the
motion to suppress focused on the consent of the police entry into the apartment, the
prosecutor asked Sergeant Simmons to focus on “the actual knocking on the door, the
opening of the door, and [Defendant] coming to the door.”
3 The question or significance of officer safety was not raised in the district
court, nor was it raised on appeal. Accordingly, we do not consider it in this Opinion.
3
{4} 	Sergeant Simmons determined that she did not have sufficient information to
obtain a warrant to search Defendant’s apartment, so she conducted a knock-and-talk.
A knock-and-talk, according to Sergeant Simmons’s description, involves knocking
on the door to ask to speak with the person who answers “about any concerns that you
might have.” One of the officers knocked on Defendant’s door, the door was opened
within seconds, and Sergeant Simmons “told [Defendant] that [she] had some
concerns that [she] would like to speak with him about and asked him if [she and
Officers Archuleta and Price] could come in.” 	According to Sergeant Simmons,
Defendant opened the door and allowed her and the other officers to go into the
apartment and speak with him. 2 Once the officers were inside the apartment, Sergeant
Simmons began her conversation with Defendant.
{5} 	Sergeant Simmons observed a gentleman sitting on the couch and asked if
anyone else was inside the apartment. At the suppression hearing, Sergeant Simmons
explained that she asked this question “for the purpose of officer safety” 3 and to
ensure that, while she was conversing with Defendant, “nobody was going to jump out

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and surprise us or injure us or harm us in anyway.” 	Almost immediately after
Defendant said that no one else was in the apartment, Sergeant Simmons testified, “the
bathroom door [flew] open and . . . a very big guy” came out. 	Sergeant Simmons
asked again whether anyone else was in the apartment, to which the person who had
just left the bathroom said, “ ‘My girlfriend is here. . . . She’s in the back bedroom,
but she’s asleep.’ ”
{6} 	Upon learning of the girlfriend’s presence in the bedroom, Sergeant Simmons
stated that she “would go wake” the sleeping woman, noting that she “didn’t want to
send Officer Price [to do so] because he’s a male[.]” As Sergeant Simmons continued
her narrative in this vein, defense counsel objected, stating “None of it is relevant . . . .
We are talking about a knock-and-talk with a contact at the front door. We’re beyond
anything at this point that is relevant.” The district court permitted the testimony, and
Sergeant Simmons testified that she “walked back to clear the rest of the apartment,
make sure there [were] no other people, and [to] contact the female that was asleep on
the bed.” Sergeant Simmons testified that she woke the sleeping woman, asked her
to get dressed, helped her find something to wear, then walked into the living room
where the other occupants of the apartment, were waiting.
{7} 	As she walked down the hallway toward the bedroom, Sergeant Simmons
passed the “galley-style kitchen” in which she observed “a razorblade that had a white

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crusty substance on it” and “a blue plastic scale . . . that also had a white powdery
residue on it.” Based on her training and experience, Sergeant Simmons believed the
substance to be cocaine, and a test of the substance confirmed that it was.
{8} 	After conducting a warrants search on each of the occupants of the apartment
and confirming that none of the non-residents “want[ed] to claim” the cocaine,
Sergeant Simmons let them leave, and then arrested Defendant for possession of
cocaine. Defendant asked for his jacket, and as Sergeant Simmons checked the jacket
for “weapons or anything[,]” she found a “sack of rock cocaine.” 	A grand jury
indicted Defendant on charges of trafficking by possession with intent to distribute
cocaine and possession of drug paraphernalia.
{9} 	Defendant did not testify at the hearing on his motion to suppress. 	His sole
witness at the hearing, Jeffrey Manning, was in Defendant’s apartment on the day in
question. 	Mr. Manning testified that when the officers knocked on the door and
Sergeant Simmons asked if she could go into the apartment, Defendant said, “No[,]”
followed by the officer’s question, why, to which Defendant responded, “This is [my]
space. I don’t want you to come in unless you have a search warrant[.]” He testified
further that the officers “just came in” after Defendant had told them no. According
to Mr. Manning, the officers did not ask to discuss the neighbor’s complaint, but
rather, Sergeant Simmons asked to speak with Defendant about a cab driver who “had

6
been shot or killed” because someone had called the cab driver from Defendant’s
address.
{10} 	In closing argument, defense counsel argued that the officers lacked probable
cause to perform the knock-and-talk and that they entered Defendant’s apartment
despite Defendant having said “No” to their requested entry. 	It is clear from the
transcript of the hearing that the district court and the prosecutor understood defense
counsel’s argument to be limited to the issues of probable cause to conduct a knock-
and-talk and whether Defendant consented to the officers’ initial entry into his
apartment. In its oral ruling from the bench, the district court denied the motion to
suppress, providing the following rationale.
I am not comfortable with the knock-and-talk. I am concerned about it.
However, at least based on the testimony of the [s]ergeant, and I did find
her to be more credible than the [d]efense witness, she was allowed in
and she saw the paraphernalia, et cetera, in plain view. 	From that
perspective, I believe the arrest was lawful and the evidence will not be
suppressed.
{11} 	Different from what he argued in the district court, Defendant argues on appeal
that his consent to the knock-and-talk permitted the police to enter his living room but
not other areas of the apartment, including the hallway from where Sergeant Simmons
observed the incriminating evidence. 	Defendant argues that the district court’s
suppression ruling should be reversed on this basis. Acknowledging, however, the
possibility that the scope-of-consent argument was not preserved for our review,

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Defendant argues in the alternative that his counsel’s failure to move for suppression
on the basis that Sergeant Simmons exceeded the scope of consent constituted
ineffective assistance of counsel.
{12} 	We hold that Defendant failed to preserve his argument regarding the scope of
his consent to search the apartment. We also hold that the record in this case contains
sufficient facts to establish a prima facie case that Defendant’s counsel was ineffective
for failing to move to suppress the evidence on that basis. Accordingly, we remand
this matter to the district court for a hearing on Defendant’s ineffective assistance of
counsel claim and any further proceedings consistent with the district court’s
determination on that issue.
DISCUSSION
I. 	Preservation
{13} 	“In order to preserve an issue for appeal, it must appear that a ruling or decision
by the district court was fairly invoked” in a manner that specifically apprised the
district court of the issue and resulted in an intelligent ruling thereon. State v. Lopez,
2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942 (internal quotation marks and
citation omitted). Among other things, the preservation rule ensures that the opposing
party has “a fair opportunity to show why the court should rule in its favor” and it
“creates a record from which this Court may make informed decisions.” Id. (internal

8
quotation marks and citation omitted). This Court “will not reverse the trial court on
grounds [that] the trial court was neither asked to consider nor had the opportunity to
review.” State v. Aguilar, 1982-NMCA-116, ¶ 9, 98 N.M. 510, 650 P.2d 32.
{14} 	The State and Defendant agree that the issue of the scope of Defendant’s
consent was not raised in the district court. Furthermore, the State contends that it
“did not have an opportunity to develop a record specific to [Defendant’s] claim” that
the officers exceeded the scope of Defendant’s consent. Nevertheless, the State argues
that the record is sufficient for this Court to review Defendant’s claim on the basis that
“the State is not prejudiced” by the fact that it was not given an opportunity to refute
this claim in the district court.
{15} 	Specifically, the State argues that because the record includes testimony
“regarding the officers’ request to enter the apartment, and the reason for their request,
as well as Defendant’s response[,]” this Court may determine the scope of
Defendant’s consent and whether Sergeant Simmons acted within the scope of that
consent. At the same time, however, the State attempts to rely, to its own advantage,
on the absence of factual development in the record in regard to the scope of
Defendant’s consent. To that end, the State argues that testimony at the suppression
hearing did not “clarify the scope of Defendant’s consent” and that Defendant did not
object when Sergeant Simmons “announced her intention of going into the bedroom

9
to retrieve the sleeping woman.” Based on the absence of testimony in regard to the
scope of Defendant’s consent or whether Defendant objected to Sergeant Simmons’s
expanded entry into the apartment, the State argues that Defendant “acquiesce[d] in
the officer’s actions,” thus establishing that those actions “were within the scope of
Defendant’s consent.” We are not persuaded by the State’s self-serving attempt to
benefit from Defendant’s failure to preserve the scope-of-consent argument by
encouraging this Court to consider the matter while simultaneously assuming and
relying upon facts that are not in the record.
{16} 	Under some circumstances, a narrow suppression argument in the district court
will not preclude review of a more broad argument on appeal. 	See, e.g., State v.
Figueroa, 2010-NMCA-048, ¶¶ 8-13, 148 N.M. 811, 242 P.3d 378 (considering the
defendant’s suppression argument notwithstanding the fact that the suppression
argument made in the district court was more narrow than that made on appeal
because the defendant’s arguments were such that the district court and the
prosecution had a fair opportunity to address the issue). 	Under the circumstances
here, however, not only did the district court not have an opportunity to rule upon the
issue whether Sergeant Simmons exceeded the scope of Defendant’s consent, the
absence of evidence from the record in regard to what, if anything, Defendant said or
did in response to Sergeant Simmons’s announcement that she would go wake the

10
sleeping female in the bedroom precludes effective review of the State’s argument.
See Lopez, 2008-NMCA-002, ¶ 8 (explaining that preservation requires a showing that
a ruling or decision by the district court was fairly invoked and that preservation
serves to create “a record from which this Court may make informed decisions”
(internal quotation marks and citation omitted)).
{17} 	In sum, we conclude that the issue of the scope of Defendant’s consent was not
preserved for our review, and we do not consider it on appeal. Because Defendant
does not argue that the district court erred in determining that he consented to the
officers’ initial entry, we do not consider the propriety of the district court’s denial of
his motion to suppress in that regard.
II. 	Ineffective Assistance of Counsel
{18} 	The Sixth Amendment to the United States Constitution guarantees the right to
the effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16,
130 N.M. 179, 21 P.3d 1032. Defendant argues that his trial counsel’s failure to move
to suppress the evidence on the ground that Sergeant Simmons exceeded the scope of
his consent by entering the hallway and the bedroom rendered his counsel’s assistance
ineffective. He argues that his plea should be vacated and the matter remanded for an
evidentiary hearing on his ineffective assistance of counsel claim. 	We review

11
Defendant’s ineffective assistance of counsel claim de novo. State v. Dylan J., 2009-
NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.
{19} 	Remand for an evidentiary hearing on a claim of ineffective assistance of
counsel “is appropriate only when the record on appeal establishes a prima facie case
of ineffective assistance of counsel.” State v. Herrera, 2001-NMCA-073, ¶ 35, 131
N.M. 22, 33 P.3d 22. 	A prima facie case is made by showing (1) “that defense
counsel’s performance fell below the standard of a reasonably competent attorney[,]”
and (2) that “due to the deficient performance, the defense was prejudiced.”
Patterson, 2001-NMSC-013, ¶ 17 (internal quotation marks and citation omitted).
The two prongs of this test are known as “the reasonableness prong and the prejudice
prong.” Id.
A. 	The Reasonableness Prong
{20} 	Where, as here, the ineffective assistance of counsel claim is premised on
counsel’s failure to move to suppress evidence, Defendant “must establish that the
facts support the motion to suppress and that a reasonably competent attorney could
not have decided that such a motion was unwarranted.” Id. ¶ 19.
{21} 	Defendant argues that in light of Sergeant Simmons’s testimony that she asked
if she and the other officers could go into Defendant’s apartment to discuss the
neighbor’s 	complaints, 	social 	norms 	dictated 	that 	she 	ask 	permission 	before

12
proceeding to the bedroom. In other words, Defendant argues that his consent to the
officers’ entry into his apartment permitted the officers to enter the living room, which
was adjacent to the front door, but “[i]t was not an invitation for the officers to walk
down the hall and go into his bedroom.” 	Defendant argues that when Sergeant
Simmons, in fact, walked down the hall, she exceeded the scope of Defendant’s
consent; therefore, his counsel should have moved to suppress the evidence on the
basis that Sergeant Simmons was not lawfully permitted to be in the hallway from
where she saw the evidence in plain view.
{22} 	Defendant’s argument implicates two exceptions to the warrant requirement,
plain view and consent. 	See State v. Bond, 2011-NMCA-036, ¶ 11, 150 N.M. 451,
261 P.3d 599 (recognizing that warrantless searches and seizures are unconstitutional
except in cases involving recognized exceptions including plain view and consent.
“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. In
this case, the incriminating nature of the evidence and whether Sergeant Simmons had
probable cause to believe that it was evidence of a crime are not at issue. The relevant

13
question under the plain view doctrine is whether Sergeant Simmons was lawfully in
the hallway when she saw the drug-related evidence.
{23} 	Defendant does not appeal the district court’s conclusion that Sergeant
Simmons “was allowed in” to Defendant’s apartment. We interpret the court’s ruling
and Defendant’s failure to challenge it on appeal as conclusively establishing that
Defendant voluntarily consented to the officers’ entry into his apartment. The relevant
issue 	is 	whether 	Sergeant 	Simmons 	could 	have 	reasonably 	interpreted 	that
Defendant’s consent, given in response to the officers’ request to “come in” to speak
about “some concerns[,]” encompassed consent to walking through the apartment’s
hallway and into the bedroom.
{24} 	“The scope of . . . consent is constrained by the bounds of reasonableness[.]”
State v. Garcia, 1999-NMCA-097, ¶ 13, 127 N.M. 695, 986 P.2d 491 (internal
quotation marks and citation omitted). Thus, we consider “what a police officer could
reasonably interpret the consent to encompass.” 	Id. (internal quotation marks and
citation omitted). Conversely, we consider “what the typical reasonable person would
have understood to be the scope of his or her consent under the circumstances.”
United States v. Pena, 143 F.3d 1363, 1367-68 (10th Cir. 1998) 	Reasonableness is
measured objectively. See State v. Ryan, 2006-NMCA-044, ¶ 30, 139 N.M. 354, 132

14
P.3d 1040 (noting that “the scope of a search is limited to the consent given, as
measured by an objective reasonableness standard”).
{25} 	In determining what is or is not reasonable, courts may rely on social norms to
guide the inquiry. 	See United States v. Mosley, 454 F.3d 249, 269 (3rd Cir. 2006)
(“The 	exclusionary 	rule 	expresses, 	inherently 	and 	always, 	a 	standard 	of
reasonableness that evolves along with . . . social norms.”); see also Florida v.
Jardines, __ U.S.___ , 133 S. Ct. 1409, 1415-16 (2013) (relying on social norms to
illustrate that it is reasonable for police to approach a private citizen’s home and
knock on the door just as “any private citizen might do[,]” but those norms do not
permit police to use a trained police dog to explore the area around the home, an
activity that if done by a private citizen might inspire the resident to call the police
(internal quotation marks and citation omitted)). In this case, Defendant relies on the
notion of social norms to argue that his consent to the officers’ entry could only
reasonably be viewed as an invitation to enter the living room. 	Specifically,
Defendant argues that “an invitation into the living room for a quick chat about a
noise complaint” does not constitute “permission to wander throughout the house.”
We agree.
{26} 	In 	light 	of 	the 	fact 	that 	Sergeant 	Simmons 	requested 	admittance 	into
Defendant’s apartment for the purpose of speaking with Defendant about some

15
concerns, her subsequent announcement that she would go wake the sleeping female
occupant of Defendant’s apartment, and her procession thereafter down the hallway
and to the bedroom cannot be viewed as objectively reasonable. 	To illustrate this
point by way of analogy, if a solicitor who gained permission to “come in” to a
person’s home to “speak with” the resident were to announce that he would round up
the sleeping occupants of the home, it would be reasonable to view the solicitor’s
actions as, at the least, an unacceptable intrusion on privacy. Cf. id. at 1415 (relying
on the notion of what one would consider socially acceptable behavior by “solicitors,
hawkers[,] and peddlers of all kinds” to consider the permissibility of like behavior
by police (internal quotation marks and citation omitted)). Thus, assuming that the
extent of Defendant’s consent was limited to permitting the officers’ entry into his
apartment for the purpose of speaking with Sergeant Simmons about her concerns, we
conclude that the officer’s traversal through the hallway and into the bedroom of
Defendant’s apartment exceeded the “bounds of reasonableness.” See Garcia, 1999-
NMCA-097, ¶ 13 (“The scope of the consent is constrained by the bounds of
reasonableness: what a police officer could reasonably interpret the consent to
encompass.” (internal quotation marks and citation omitted)).
{27} 	While viewing Sergeant Simmons’s actions in this case through the lens of
social norms helps to illustrate the unreasonableness of her interpretation of the scope

16
of Defendant’s consent to her and the other officers’ entry, Defendant’s argument is
further supported by authority. The knock-and-talk investigatory tool is permissible
under the New Mexico and United States Constitutions. 	See State v. Flores, 2008-
NMCA-074, 	¶¶ 	8, 	14, 	16, 	144 	N.M. 	217, 	185 	P.3d 	1067 	(recognizing 	the
constitutional permissibility of the knock-and-talk investigatory tool under the United
States and New Mexico Constitutions). 	Yet, answering an officer’s knock and
consenting to police entry, does not give police free reign to walk through or search
a private residence. 	See United States v. Curran, 498 F.2d 30, 33 (9th Cir. 1974)
(holding that the officers’ expressed purpose of questioning the occupants of a
residence “could not extend to [an officer’s] movement past [the occupants] into other
rooms”); see 1 Wayne R. LaFave, Search and Seizure § 2.3(b) (5th ed. 2013) (stating
that, in the context of a knock-and-talk investigation, “the mere fact that the door of
the house is opened in response to the officer’s knock . . . does not mean that the
officer is entitled to walk past the person so responding into the interior of the
residence”).
{28} 	In sum, the record before us supports Defendant’s contention that he consented
to the officers’ entry into his apartment for the purpose of acquiescing to Sergeant
Simmons’s request to speak with him about her concerns. Assuming that his consent
was limited to permitting the officers’ entry, Sergeant Simmons’s decision to walk

17
down the hallway, from where she saw the drug-related evidence, and into the
bedroom exceeded the objectively reasonable scope of Defendant’s consent. In light
of the foregoing discussion, in addition to the well-established principle that “[t]he
privacy of a home is afforded the highest level of protection by our state and federal
constitutions[,]” we conclude that a reasonably competent attorney would have moved
to suppress on the basis that Sergeant Simmons exceeded the scope of Defendant’s
consent. 	State v. Haidle, 2012-NMSC-033, ¶ 13, 285 P.3d 668 (internal quotation
marks and citation omitted).
{29} 	We are not persuaded by the State’s suggestion that Defendant’s counsel made
the tactical decision to forego a scope-of-consent argument owing to the possibility
that “an argument regarding the scope of Defendant’s consent would be unavailing.”
We are not made aware of any rational tactic or strategy that would have caused
Defendant’s counsel to forego a motion to suppress on a scope-of-consent ground.
To the extent the State argues that Defendant consented to a more expansive entry of
his apartment, the record on appeal does not support this argument, and this Court will
not speculate regarding any expansion of Defendant’s consent. See State v. Vargas,
2007-NMCA-006, ¶ 31, 140 N.M. 864, 149 P.3d 961 (noting this Court’s refusal to
speculate regarding other balancing of interests arising during an unannounced forced
entry at gunpoint compared with an announced entry into a residence.)

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B. 	The Prejudice Prong
{30} 	Where a meritorious motion to suppress key evidence could weaken the
prosecution’s case against the defendant, counsel’s failure to make such a motion may
prejudicially affect the defendant. Patterson, 2001-NMSC-013, ¶¶ 32-33. In cases
where the defendant has accepted a plea instead of going to trial, we evaluate the
prejudicial effect of his counsel’s ineffective assistance by considering whether there
is a reasonable probability that, had his counsel moved to suppress the at-issue
evidence and been successful, the defendant would have gone to trial instead of
entering a plea. Id. ¶ 33. In making this determination, we consider the strength of
the prosecution’s evidence against the defendant aside from the evidence that would
be subject to suppression. Id. ¶¶ 31-32.
{31} 	In this case, the extent of the State’s incriminating evidence against Defendant
consisted of the drugs and paraphernalia that were observed by Sergeant Simmons
from the hallway of Defendant’s apartment and the crack cocaine that the officer
found in the pocket of Defendant’s jacket just after being arrested for possession of
those prior items. Had Defendant’s counsel moved to suppress the evidence that was
observed in plain view from the hallway on the ground that Sergeant Simmons was
not lawfully positioned in the hallway when she observed the evidence, the motion
could have resulted in the exclusion of the plainly viewed evidence. 	See Ochoa,

19
2004-NMSC-023, ¶ 9 (stating that the plain view requirement entails viewing the
incriminating evidence from a lawful position). Relatedly, the crack cocaine that was
located by Sergeant Simmons in Defendant’s jacket may arguably have been excluded
as “fruit of the poisonous tree” because without the plainly viewed evidence the
officer lacked probable cause to arrest Defendant. 	See State v. Montoya, 2008-
NMSC-043, ¶ 12, 144 N.M. 458, 188 P.3d 1209 (recognizing that the “[f]ruit of the
poisonous tree doctrine generally requires suppression of . . . evidence obtained after
an arrest made without probable cause” (omission in original) (internal quotation
marks and citation omitted)).
{32} 	In sum, had Defendant’s counsel moved for suppression and had that motion
been successful, the full extent of the State’s incriminating evidence against
Defendant could have been excluded. 	It hardly bears stating that there is a
“reasonable probability” that had Defendant’s counsel succeeded in suppressing the
evidence against him, he would not have accepted a plea. Under the circumstances
of this case, we conclude that Defendant has made a prima facie showing of
ineffective assistance of counsel.

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CONCLUSION
{33} 	We conclude that Defendant has made a prima facie case of ineffective
assistance of counsel based on his counsel’s failure to move to suppress the
incriminating evidence against him. Accordingly, we remand this matter to the district
court for a hearing on Defendant’s ineffective assistance claim and any further
proceedings consistent with the court’s determination on that issue. 	See Garcia v.
State, 2010-NMSC-023, ¶¶ 28-29, 148 N.M. 414, 237 P.3d 716 (stating that where a
defendant has made a prima facie showing of ineffective assistance of counsel on
appeal the appellate court may remand “to allow for further development of the issue
before the trial court”).
{34} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
TIMOTHY L. GARCIA, Judge
_______________________________
J. MILES HANISEE, Judge