January 17, 2024- State of New Mexico v. Ross Sanders, No. A-1-CA-40287

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _____________	2
Filing Date: January 17, 2024	3
No. A-1-CA-40287	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
ROSS SANDERS,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY	10
John P. Sugg, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Meryl E. Francolini, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Kimberly Chavez Cook, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 1/17/2024 10:41 AM

OPINION	1
MEDINA, Judge.	2
{1} 	The opinion filed on December 20, 2023, is hereby withdrawn, and this	3
opinion is substituted in its place. Defendant Ross Sanders appeals his conviction	4
for possession of a controlled substance (methamphetamine), contrary to NMSA	5
1978, Section 30-31-23(E) (2019, amended 2021). Defendant argues on appeal that	6
the district court erred in denying his motion to suppress under Article II, Section 10	7
of the New Mexico Constitution based on this Court’s recent opinion in State v. Jim,	8
2022-NMCA-022, 508 P.3d 937, which was decided after the district court denied	9
Defendant’s motion to suppress but before entry of Defendant’s judgment and	10
sentence. Alternatively, Defendant argues that his counsel was ineffective for failing	11
to challenge the underlying arrest in a motion to suppress. For the reasons set forth	12
below, we reverse and remand.	13
BACKGROUND	14
{2} 	In February 2021, Officer Wrye stopped Defendant for driving on a suspended	15
license. Officer Wrye had prior knowledge that Defendant’s license was suspended.	16
Officer Wrye removed Defendant from the vehicle and placed him under arrest.	17
{3} 	Officer Conway arrived shortly after the stop and assisted Officer Wrye in	18
preparing the vehicle for towing. Both Officer Wrye and Officer Conway testified	19
that police policy requires officers to tow vehicles after traffic stops when the driver	20

2
is arrested and there is no one else to take control of the vehicle. Under the policy,	1
officers must call a tow truck, notify dispatch that the vehicle requires towing, and	2
complete a tow inventory search and inventory sheet. The purpose of the inventory	3
search and sheet is to protect the arrestee’s property and the department from claims	4
that an item is missing by documenting any items of value found in the vehicle.	5
{4} 	After Officer Wrye placed Defendant in his police unit, Officer Wrye and	6
Officer Conway conducted a tow inventory search of the entire vehicle. Officer	7
Wrye then drove away with Defendant leaving Officer Conway to complete the tow	8
inventory sheet and to wait for the arrival of the tow truck. When the tow truck	9
arrived, Officer Conway conducted an additional search of the vehicle. During this	10
search, Officer Conway found a black bag that was zipped closed in the rear	11
hatchback of the vehicle. Officer Conway unzipped the bag and found an additional	12
bag inside that contained drug paraphernalia and methamphetamine.	13
{5} 	Defendant 	was 	charged 	with 	possession 	of 	a 	controlled 	substance	14
(methamphetamine) and driving while license suspended. Defendant moved to	15
suppress the methamphetamine under Article II, Section 10 of the New Mexico	16
Constitution, and argued at the motion hearing that the search of the black bag and	17
seizure of the methamphetamine was unreasonable because it was not conducted	18
under the authority of a warrant. The State responded that, for police inventory	19
searches, New Mexico had not departed from federal precedent, which allows	20

3
officers to open containers during the search. The district court denied Defendant’s	1
motion, finding “the search of . . . Defendant’s vehicle was a valid inventory search	2
and thus an exception to the general rule that a search warrant is required for a valid	3
search.” Additionally, the district court found in part that “the search was reasonable	4
as it was performed in order to safeguard . . . Defendant’s property and protect the	5
officers from claims of lost or stolen property” under New Mexico law. The jury	6
convicted 	Defendant 	of 	one 	count 	of 	possession 	of 	a 	controlled 	substance	7
(methamphetamine).1
8
{6} 	After Defendant’s trial but before the entry of the judgment and sentence, this	9
Court filed its opinion in State v. Jim. In Jim, this Court departed from federal	10
inventory search precedent with regard to inventory searches of vehicles for the first	11
time. See 2022-NMCA-022, ¶¶ 14-22. This Court held that, to determine if an	12
inventory search was reasonable under Article II, Section 10, “we must weigh the	13
governmental and societal interests advanced to justify the intrusion against the	14
constitutionally protected interest of the individual citizen in the privacy of his	15
effects.” Jim, 2022-NMCA-022, ¶ 22 (text only) (citation omitted). After entry of	16
the and sentence, this appeal followed.	17
1 At trial, Defendant entered a conditional plea of guilty to one count of driving
while license suspended reserving the right to appeal whether New Mexico Motor
Vehicle Division records are testimonial. Defendant did not pursue that issue on
appeal.

4
DISCUSSION	1
{7} 	Defendant challenges the denial of his motion to suppress. Defendant argues,	2
as 	he 	did 	below, 	that 	the 	opening 	of 	the 	zipped 	bag 	and 	seizure 	of 	the	3
methamphetamine during the inventory search was unconstitutional under the	4
greater protection afforded under Article II, Section 10. Defendant cites the new	5
framework articulated in Jim to support his claim. The State responds that Defendant	6
lacked standing to challenge the search, and alternatively argues that the search was	7
reasonable under both the pre-Jim and post-Jim inventory search framework.	8
{8} 	“Appellate review of a motion to suppress presents a mixed question of law	9
and fact. We review factual determinations for substantial evidence and legal	10
determinations de novo.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958	11
(internal quotation marks and citation omitted).	12
I. 	Defendant’s Standing to Challenge the Search	13
{9} 	We begin with the State’s contention that Defendant lacks standing to	14
challenge the search because Defendant testified that he did not own the black zipper	15
bag at trial. The State raises this argument for the first time on appeal. Defendant	16
responds with multiple arguments: the State did not challenge standing below,	17
standing is an improper basis for affirmance because it is a factual issue that was not	18
litigated below, the State’s argument requires Defendant to unfairly choose between	19
constitutional rights, and the facts at trial establish Defendant’s standing to challenge	20

5
the search of the vehicle which he describes as his. We agree with Defendant that	1
the facts at trial establish Defendant’s standing to challenge the search of his vehicle,	2
including the black bag, and explain.2
3
{10} 	“To establish standing, [a d]efendant must demonstrate that he had a	4
subjective expectation of privacy that society will recognize as reasonable.” State v.	5
Van Dang, 2005-NMSC-033, ¶ 7, 120 P.3d 830. We review the entire record, and	6
generally “one who owns, controls, or lawfully possesses property has a legitimate	7
expectation of privacy.” Id.	8
{11} 	Officer Wrye testified at trial that Defendant was the only person in the	9
vehicle when he stopped it and that he had not seen anyone else drive the vehicle.	10
Officer Wrye additionally testified at trial and during the motion hearing that he had	11
seen Defendant driving the vehicle numerous times over the previous week.	12
Defendant’s wife testified that although her mother owns the vehicle, Defendant is	13
the person who uses it.	14
{12} 	Under these uncontested facts, Defendant is a regular, permissive user of the	15
vehicle and exerted control over the vehicle and its contents, including the black	16
2 We decline to address Defendant’s argument that the State’s position creates
an unfair tension between his constitutional rights—although properly developed on
appeal—because we conclude that Defendant had standing to challenge the search.
See State v. Thompson, 2022-NMSC-023, ¶ 29, 521 P.3d 64 (“It is an enduring
principle 	of 	constitutional 	jurisprudence 	that 	courts 	will 	avoid 	deciding
constitutional questions unless required to do so.” (internal quotation marks and
citation omitted)).

6
zipper bag. Therefore, we hold that Defendant had standing to contest the search of	1
the black bag located inside the vehicle despite denying that the methamphetamine	2
and drug paraphernalia were his during his trial testimony. Compare State v. Soto,	3
2001-NMCA-098, ¶¶ 5, 8, 131 N.M. 299, 35 P.3d 304 (concluding that the defendant	4
was a regular, permissive user of his girlfriend’s vehicle and had standing to	5
challenge the search because his girlfriend and the defendant lived together, the	6
vehicle was their only car, both used it on a day-to-day basis, and the defendant	7
routinely used the car), and State v. Leyba, 1997-NMCA-023, ¶ 14, 123 N.M. 159,	8
935 P.2d 1171 (concluding that the defendant had standing to challenge the search	9
of the vehicle because the defendant introduced evidence that the owner of the	10
vehicle had given the defendant permission to use it, making the defendant a	11
permissive user who exerted control of the vehicle and its contents), with Van Dang,	12
2005-NMSC-033, ¶¶ 2, 12 (concluding that the defendant did not have standing to	13
challenge a search in a rental vehicle that his uncle rented because the defendant did	14
not present evidence that his uncle gave permission to use the rental or authorized	15
the defendant’s use of the vehicle). Because we hold that Defendant had standing to	16
challenge the search, we next evaluate the search of the zipped bag during the	17
inventory search.	18

7
II. 	The Inventory Search	1
{13} 	Defendant concedes, and the State agrees, that the search and seizure of the	2
methamphetamine was reasonable under the Fourth Amendment. Defendant only	3
argues that the search of the zipped bag and seizure of its contents during the	4
inventory search violated his right under Article II, Section 10 of the state	5
constitution. We therefore begin our analysis by reviewing this Court’s departure	6
from federal precedent in Jim.	7
A. 	Article II, Section 10 Departs From Federal Jurisprudence	8
{14} 	In Jim,3 this Court departed from federal inventory search precedent and held	9
that, to determine if the search of a closed and locked container in an automobile	10
during an inventory search was reasonable under Article II, Section 10, “we must	11
weigh the governmental and societal interests advanced to justify the intrusion	12
against the constitutionally protected interest of the individual citizen in the privacy	13
of his effects.” Jim, 2022-NMCA-022, ¶ 22 (text only) (citation omitted). In Jim, the	14
3 The State also questions whether this Court’s opinion in Jim applies to
Defendant’s appeal. Although Jim was filed after the district court’s denial of
Defendant’s motion, we now review Defendant’s argument under Jim on appeal
because Defendant’s case was pending when this Court filed Jim and Defendant
preserved his claim under Article II, Section 10. See State v. Storey, 2018-NMCA-
009, ¶ 30, 410 P.3d 256 (“A new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, state or federal, pending on direct review or not
yet final.” (text only) (citation omitted)); State v. Dorais, 2016-NMCA-049, ¶ 29,
370 P.3d 771 (“A change in the law generally applies to cases pending on direct
appeal, as long as the issue was raised and preserved below.” (text only) (quoting
Kersey v. Hatch, 2010-NMSC-020, ¶ 19, 148 N.M. 381, 237 P.3d 683)).

8
defendant was arrested for trespassing after sitting in their pickup truck for several	1
hours in a shopping center and repeatedly refusing to leave the parking lot. Id. ¶¶ 2-3.	2
The officer conducted a search of the defendant’s truck because the truck would be	3
impounded. Id. ¶ 3. During the search, the officer found a methamphetamine pipe,	4
smoking straw, and tin foil with residue underneath the driver’s side floor mat. Id.	5
The officer then found a locked gun safe in the car, removed it for safekeeping, and	6
opened it using a key found on the defendant’s key ring. Id. Inside the gun safe the	7
officer found a small handgun and a small amount of heroin. Id.	8
{15} 	The defendant moved to suppress the evidence found in the locked gun safe,	9
and the district court initially granted the motion. Id. ¶ 4. The state filed a motion to	10
reconsider and introduced evidence that police policy permitted opening locked	11
containers. 	Id. 	The 	district 	court 	then 	reversed 	its 	decision 	and 	denied 	the	12
defendant’s motion to suppress the evidence found in the gun safe because the	13
officers had conducted a valid inventory search under both the Fourth Amendment	14
and Article II, Section 10. Id.	15
{16} 	This Court reversed the denial of the motion to suppress, departing from	16
federal inventory search standards. Id. ¶ 14. In departing from federal inventory	17
search standards, this Court focused on “two distinctive characteristics of New	18
Mexico law: greater protection of privacy in the context of automobiles and a strong	19
preference for warrants.” Id. ¶ 15; see id. ¶¶ 16-22 (explaining departure from federal	20

9
precedent under distinctive characteristics of New Mexico law). As a result, to	1
determine if an automobile inventory search is reasonable under Article II, Section	2
10, “we must weigh the governmental and societal interest advanced to justify the	3
intrusion against the constitutionally protected interest of the individual citizen in	4
the privacy of his effects.” Id. ¶ 22 (text only) (citation omitted). “This approach	5
adheres to the fact-specific nature of reasonableness determinations under the New	6
Mexico Constitution.” Id.	7
B. 	The Search of the Zipped Bag Violated Article II, Section 10	8
{17} 	Defendant argues that the State’s interests in opening the black zipper bag do	9
not 	outweigh 	his 	general 	privacy interests 	in 	a closed 	container. Therefore,	10
Defendant argues, the State’s search of the bag violated his right to be free from an	11
unreasonable search under Article II, Section 10. In contrast, the State argues that	12
Defendant’s expectation of privacy is not as strong as the expectation of privacy	13
discussed in Jim where the state opened and searched a locked gun safe found in the	14
defendant’s vehicle. 2022-NMCA-022, ¶ 3. The State argues that the search here	15
was reasonable because it was necessary to protect Defendant’s property and to	16
protect officers from claims of lost property. We hold that the search of the zipped	17
bag violated Defendant’s right to be free from an unreasonable search under the New	18
Mexico Constitution and explain.	19

10
{18} 	We begin by considering Defendant’s privacy interest in the zipped bag found	1
in the vehicle. “New Mexico courts have rejected the notion that an individual lowers	2
his expectation of privacy when he enters an automobile.” 	Id. 	¶ 23 (internal	3
quotation marks and citation omitted). Although the privacy interest in a vehicle is	4
not the same as a privacy interest in a home, “New Mexico’s extra layer of protection	5
from unreasonable searches and seizures involving automobiles recognizes and	6
safeguards the substantial privacy interest New Mexico’s motorists have in the	7
papers and effects that may be found inside an automobile.” Id. Indeed, this Court	8
has observed that “a routine police inventory of the contents of an automobile	9
involves a substantial invasion into the privacy of the vehicle owner.” Id. (internal	10
quotation 	marks 	and 	citation 	omitted). 	Here, 	Defendant 	had 	an 	additional	11
expectation of privacy with regard to the zipped black bag sufficient to invoke a	12
constitutional protection against an unreasonable search. See State v. Villanueva,	13
1990-NMCA-051, ¶ 12, 110 N.M. 359, 796 P.2d 252 (stating that “individuals	14
normally possess an expectation of privacy in their closed items of luggage”); State	15
v. Johnson, 1973-NMCA-119, ¶¶ 5-8, 12, 85 N.M. 465, 513 P.2d 399 (reversing the	16
district court’s denial of the defendant’s motion to suppress because the search of	17
the defendant’s closed duffel bag under a third-party’s permission violated the	18
defendant’s rights to be free from unreasonable searches and seizures). As this Court	19

11
in Jim emphasized, this expectation “was not diminished” because the closed zipped	1
bag was found inside the vehicle. 2022-NMCA-022, ¶ 23.	2
{19} 	We agree with the State that the zipped bag differs in character from the	3
locked safe at issue in Jim. But we disagree that “it offered no protection of its	4
contents the way a safe would, and did not convey an absolute intent to exclude	5
others from its contents.” The black zipper bag was opaque and zipped closed,	6
therefore excluding others from its contents unless unzipped. Although a lock like	7
in Jim is indicative of a heightened expectation of privacy, we cannot say that only	8
locked containers are afforded additional protections during vehicle inventory	9
searches. Therefore, Defendant had an expectation of privacy with respect to the	10
zipped bag.	11
{20} 	Having determined Defendant’s expectation of privacy, we now weigh this	12
interest against “the governmental and societal need for the search.” Id. ¶ 24. “We	13
evaluate the governmental need by considering the extent to which the search was	14
reasonably necessary to accomplish any of the three legitimate governmental	15
purposes that justify this type of administrative caretaking search.” Id. Like in Jim,	16
the State here argues that the search was reasonable to protect Defendant’s property	17
and to protect the police from liability. For the same reasons this Court outlined in	18
Jim, we find these justifications unpersuasive.	19

12
{21} 	With respect to protecting Defendant’s property, although there is a possibility	1
that Defendant’s property could have become damaged, this “possibility becomes	2
exceedingly unlikely” when the officers took Defendant’s vehicle and property into	3
police custody for safekeeping. Id. ¶ 25. In fact, the officers sufficiently protected	4
Defendant’s property without needing to search the zipped bag. While Officer	5
Conway completed the tow inventory sheet and waited for the tow truck, he denied	6
access to the vehicle to an individual who attempted to take it. The State has not	7
explained how a greater intrusion into the zipped bag was necessary to safeguard	8
Defendant’s property beyond the protections provided by police custody.	9
{22} 	With respect to protecting the police from liability, this Court in Jim stated	10
“we are not persuaded that opening and inventorying the contents of a locked	11
container provides any more protection than inventorying the locked container as a	12
unit, as a false claim can be made that items inside the safe were stolen regardless of	13
whether the police opened it or not.” Id. ¶ 26. The same reasoning applies to the facts	14
here. The State has not explained how the search provided greater protections against	15
liability when “sealing and storing containers would provide at least as much	16
protection to the remote threat as a warrantless inventory search of containers.” See	17
id. (internal quotation marks and citation omitted). Without more, simply invoking	18
protections against liability does not outweigh Defendant’s established privacy	19
interest.	20

13
{23} 	For the forgoing reasons, we hold that the warrantless search of the zipped	1
bag violated Defendant’s right to be free from an unreasonable search under Article	2
II, Section 10 of the New Mexico Constitution. Because we reverse on these	3
grounds, we do not reach Defendant’s alternative ineffective assistance of counsel	4
claim. We therefore reverse the district court’s denial of Defendant’s motion to	5
suppress under our new analytical framework expressed in Jim.	6
CONCLUSION	7
{24} 	We reverse and remand for further proceedings consistent with this opinion.	8
{25} 	IT IS SO ORDERED.	9
______________________________	10
JACQUELINE R. MEDINA, Judge	11
WE CONCUR:	12
___________________________________	13
JENNIFER L. ATTREP, Chief Judge	14
___________________________________	15
SHAMMARA H. HENDERSON, Judge	16