May 22, 2013 – State v. Misty Light, No. 30,741

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: May 23, 2013
NO. 30,741

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

MISTY LIGHT,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
J. Richard Brown, District Judge

Gary K. King, Attomey General

Santa Fe, NM

M. Victoria Wilson, Assistant Attomey General
Albuquerque, NM

for Appellant

Gorence & Oliveros, P.C.
Robert J. Gorence

Albuquerque, NM

for Appellee

OPINION
WECHSLER, Judge.
{1} 	The State appeals the district court’s order granting Defendant Misty Light’s
motion to suppress. We find no error. The search warrant was impermissibly broad
in allowing officers to search “all persons” located on the premises when the only
evidence tying Defendant to any crime was her presence at an event that was open to
the public where illegal activity was taking place. 	Finally, the officers were not
justified in searching Defendant’s purse due to the lack of evidence tying Defendant
to the criminal activity taking place on the premises and because the officers knew the
purse belonged to Defendant. 	Accordingly, we affirm the order suppressing the
evidence found in Defendant’s purse and her subsequent statements to the officers.
BACKGROUND
{2} 	We summarize the underlying facts in the light most favorable to the district
court’s ruling. See State v. Flores, 2008-NMCA-074, ¶ 2, 144 N.M. 217, 185 P.3d
1067. Initially, we note that the parties stipulated to certain facts based on evidence
presented at the suppression hearings in the companion case of State v. Bradley Light,
CR-20090215. 	The district court incorporated those facts into its findings in this
matter, and the testimony from those hearings is part of the record in this case.

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{3} 	Police had been conducting an investigation of Bradley Light (Light), the owner
of the Cavern Theater (the theater), for alleged drug trafficking. 	The officers had
information that Light was selling and allowing the use of illegal drugs in the theater.
They also had information that Light was hosting circuit or “rave” parties at the
theater. At these parties, drugs, primarily ecstasy and marijuana, were being sold and
consumed, and underage persons were consuming alcohol.
{4} 	Officer Allen Sanchez, an officer with the Carlsbad Police Department assigned
as an agent to the Pecos Valley Drug Task Force, learned that Light would be hosting
a rave party at the theater on May 9, 2009. Sanchez arranged for Arturo Holguin, a
law enforcement officer working with the Otero County Narcotics Enforcement Unit,
to attend the party and report back to Sanchez as to what transpired.
{5} 	Holguin went inside the theater at about 10:15 p.m.; Sanchez parked nearby and
observed people entering and leaving the theater between 10:15 p.m. and midnight.
At the door of the theater, Holguin was asked for identification to show he was over
twenty-one, and he was searched for weapons before being allowed to enter. He was
not asked to show an invitation or any other documentation to gain entry.
{6} 	While inside the theater, Holguin observed, among other things, what appeared
to be underage people drinking alcohol, people smoking marijuana in the “cry room,”
and people taking pills. About twenty-five percent of the occupants appeared to be
juveniles under the age of eighteen. 	Holguin approached a male juvenile and two

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female juveniles, who told him they were taking ecstasy; another person spoke with
the male juvenile, and the male juvenile, in turn, informed Holguin that he would have
ecstasy for sale later in the night. Holguin was later able to purchase ecstasy from
another male, he saw a male selling ecstasy to others, and he was told that marijuana
and more ecstasy would be for sale later. Holguin purchased cocaine from a male
standing in the lobby.
{7} 	Holguin met Light when Holguin entered the theater. Later, Light was passing
around syringes containing a red jello-like substance that Holguin heard Light confirm
were “jello shots.” 	Holguin knew by training or experience that a jello shot is a
mixture of some sort of alcohol and jello.
{8} 	Someone told Holguin that Light called ecstasy “party favors.” Holguin asked
Light for party favors, but Light told him that he was having other people pass them
out, although Light later gave Holguin five pills that Holguin knew to be ecstasy.
{9} 	Throughout his time in the theater, Holguin reported his observations by text
messages to Sanchez, who remained waiting outside. Other than identifying Light and
three other males by name, Holguin gave no description of any of the people he
observed except to classify them as male or female and as juvenile.
{10} 	Around midnight, Sanchez decided that he had probable cause for a warrant to
search the theater, and he left the parking lot to meet with agents from the Carlsbad
Police Department and the Eddy County Sheriff’s Department to brief them on the

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situation. 	Sanchez sought permission to call out the Carlsbad Police Department
Special Response Team (SRT), and he requested that officers from the Eddy County
Sheriff’s Department seek permission to use that Department’s Tactical Response
Team (TRT).
{11} 	Once the SRT and TRT members arrived, Sanchez briefed the officers as to
what Holguin had told him, and he told the officers that they were to enter the theater
to secure the building, but they were not to search any person or vehicle until he
returned with a warrant. At some point between midnight and 1:00 a.m. on May 10,
2009, approximately fifteen officers secured the theater and held all the occupants,
approximately seventy-five to one hundred people, for the next two-and-a-half hours
waiting for Sanchez to return with the search warrant. The officers saw drugs on the
floor, but they made no effort to collect them, and Sanchez received no information
as to what transpired once the SRT and TRT agents entered the building.
{12} 	The officers ensured that all the occupants remained seated and did not allow
anyone to leave until Sanchez arrived with the search warrant about 2:40 a.m. The
district court erroneously found that the warrant was executed at 3:30 a.m., but this
error is harmless because it had no impact on the district court’s conclusions of law.
See State v. Fernandez, 117 N.M. 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994) (“In
the absence of prejudice, there is no reversible error.”).

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{13} 	The search warrant authorized a search of Light, his residence, the theater, any
vehicles found on those properties, and “[a]ny persons found on the properties listed
above.” It authorized officers to seize “[e]cstacy pills in any shape, form, or size[, and
c]ocaine, marijuana, and drug paraphernalia [and p]lastic syringes without needles
which contained a red jello type substance.”
{14} 	In executing the warrant, the officers lined all the occupants into two rows and
searched each person individually along with any property in their possession.
Occupants were then allowed to leave if no contraband was found.
{15} 	Defendant was present in the front of the theater when the officers arrived to
secure the premises. 	She was searched at approximately 4:05 a.m. 	There was no
testimony that officers found any evidence of illegal drugs or other contraband on
Defendant’s person, and there was nothing to suggest that Defendant appeared
intoxicated or under the influence of drugs.
{16} 	Defendant sought to leave, and she approached Officer Daniel Vasquez, one of
the officers who had helped to secure the perimeter when the officers initially entered
the theater. Defendant told Vasquez that she needed her purse and jacket, which were
stored in the theater’s storage room. Vasquez told Defendant that these items would
have to be searched before she could leave with them, and Defendant acquiesced. The
parties stipulate that Defendant did not consent to the search of her person or property.

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{17} 	Inside Defendant’s purse, Vasquez found a small metal container containing
methamphetamine. Vasquez testified that before he opened the purse and container,
he had no particularized suspicion that the purse contained contraband, that the purse
had no odors and, after opening it, that he saw no obvious evidence of contraband or
observed anything suspicious about the metal container.
{18} 	Defendant was charged with one count of possession of methamphetamine and
moved to suppress the evidence. 	See NMSA 1978, § 30-31-23(D) (2011). 	After
considering the State’s response and conducting a hearing, the district court entered
conclusions that: (1) notwithstanding the search warrant’s authorization to search “all
persons,” the State was required to show probable cause based on a particularized
suspicion that Defendant was engaged in criminal activity or possessed contraband,
and the State failed to do so; (2) the State failed to justify detaining Defendant for
approximately two-and-a-half to three hours while Sanchez obtained the warrant and
while the officers executed the warrant; and (3) the search of Defendant’s purse was
not covered by the search warrant, and the State failed to present probable cause based
on particularized suspicion to search Defendant’s purse. 	The district court then
granted Defendant’s motion to suppress, stating that: (1) the detention was unlawful
such that any subsequent search was also unlawful; (2) even if the detention was
reasonable, the State failed to show particularized suspicion that Defendant was
engaged in any criminal activity, and thus the search of her person and property were

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unlawful; and (3) Agent Vasquez knew the purse belonged to Defendant and was not
part of the theater’s property and, therefore, the search of the purse was not authorized
by the warrant, and the State failed to show particularized suspicion justifying the
search. The State appeals.
STANDARD OF REVIEW
{19} 	We review the order granting Defendant’s motion to suppress as a mixed
question of fact and law. See State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729,
255 P.3d 307. We determine whether the law was correctly applied to the facts and
view “the facts in the light most favorable to the prevailing party.” 	State v. Cline,
1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. While deferring to the district
court with respect to factual findings and indulging in all reasonable inferences in
support of that court’s decision, we nonetheless “review the constitutional question
of the reasonableness of a search and seizure de novo.” 	State v. Johnson, 2006-
NMSC-049, ¶ 9, 140 N.M. 653, 146 P.3d 298.
THE SEARCH WARRANT
{20} 	In order to search Defendant, officers needed a valid warrant or they needed to
be acting “pursuant to one of the recognized exceptions to the warrant requirement.”
State v. Hamilton, 2012-NMCA-115, ¶ 13, 290 P.3d 271. A valid search warrant will
only issue upon a showing of probable cause to believe that a crime has been

8
committed and that evidence of a crime will be found in the place or on the person to
be searched. See State v. Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319, 210 P.3d 216.
{21} 	“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.” Id. ¶ 11 (internal quotation marks and
citation omitted). “A reviewing court should not substitute its judgment for that of the
issuing court [but instead should] determine whether the affidavit as a whole, and the
reasonable inferences that may be drawn therefrom, provide a substantial basis for
determining that there is probable cause to believe that a search will uncover evidence
of wrongdoing.” 	State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212
P.3d 376. “[T]he substantial basis standard of review is more deferential than the de
novo review applied to questions of law, but less deferential than the substantial
evidence standard applied to questions of fact.” Id. ¶ 30.
{22} 	The affidavit in support of the warrant must also state with particularity the
place to be searched and the items to be seized. See U.S. Const. amend. IV (providing
in part that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized”); State v. Jones, 107 N.M. 503, 504, 760 P.2d 796, 797 (Ct. App.
1988) (same). 	The purpose of the particularity requirement is to prevent general
searches. 	Maryland v. Garrison, 480 U.S. 79, 84 (1987) (recognizing that the

9
particularity requirement “ensures that the search will be carefully tailored to its
justifications, and will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit”); see Jones, 107 N.M. at 504, 760 P.2d at
797 (recognizing that the Fourth Amendment’s requirement of particularity is to
prevent general, exploratory searches).
{23} 	The parties agree that there was probable cause to search Light and that the
officers were justified in entering the theater and searching the premises for evidence
of ecstasy pills, cocaine, marijuana, drug paraphernalia, and jello shots pursuant to the
search warrant. 	See, e.g., Evans, 2009-NMSC-027, ¶ 10. 	However, in order to
establish the requisite probable cause to justify searching Defendant, the State was
required to show a particularized suspicion as to her. 	See Ybarra v. Illinois, 444 U.S.
85, 91 (1979) (“Where the standard is probable cause, a search or seizure of a person
must be supported by probable cause particularized with respect to that person.”). The
parties disagree as to whether the affidavit established the requisite particularized
suspicion as to Defendant. See id.
{24} 	Defendant appears to suggest that the warrant was invalid as applied to her
because an “all persons” warrant is per se invalid as an impermissible general warrant.
Cf. Jones, 107 N.M. at 504, 760 P.2d at 797 (recognizing that “[t]he [F]ourth
[A]mendment . . . prohibits states from using general search warrants that do not
describe with particularity the things to be seized”); Wilson v. State, 221 S.E.2d 62,

10
63 (Ga. Ct. App. 1975) (holding that a warrant authorizing the search of a bar and “all
persons on the premises” was void as a general warrant). 	This position has been
adopted by a minority of courts that have considered the issue. 	Cf. Owens ex rel.
Owens v. Lott, 372 F.3d 267, 274-75 (4th Cir. 2004) (recognizing that under the
minority view, an all persons warrant is per se invalid because it fails to identify the
persons to be searched with sufficient particularity).
{25} 	The State urges this Court to adopt the majority position, which is that an “all
persons” warrant is valid as along as it is supported by probable cause that “any and
all persons on the premises are either engaged in criminal activity or possess any of
the evidence sought in the search[.]” 	See id. at 275 (recognizing that a majority of
courts considering the issue have adopted the view that an “all persons” warrant “is
valid as long as there is probable cause to believe that everyone found on the premises
being searched is involved in the illegal activity and that evidence of the crime would
be found on their person”). 	Pursuant to this standard, the warrant would validly
authorize the search of all persons found at the theater, including Defendant, if the
supporting affidavit established probable cause to believe that every person found on
the premises was involved in the criminal activity or was in possession of contraband.
See id.
{26} 	We need not decide whether “all persons” warrants are per se invalid because,
even applying the majority rule that recognizes the validity of such warrants in some

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situations, the circumstances in this case do not justify a warrant authorizing the
search of all persons found at the theater or, specifically, the search of Defendant.
Instead, the “all persons” warrant was not supported by probable cause because there
is nothing in the affidavit tying every person found in the theater to the criminal
behavior taking place there. See id. at 276 (holding that the affidavit did not supply
sufficient information to establish probable cause when the justification was the
officer’s statement that, based on his experience in drug enforcement, people present
at the scene when illegal drugs are being distributed are usually in possession of
drugs); State v. Garcia, 166 P.3d 848, 855-56 (Wash. Ct. App. 2007) (holding that the
language in the warrant authorizing the search of “any and all persons present” did not
authorize the search of all of the occupants found in a motel room because there was
“nothing to establish individualized probable cause for ‘any and all’ of the persons
who may have been present in the motel room where drug activity was suspected to
occur”). To the contrary, Holguin never identified or described most of the occupants,
and he never reported even seeing Defendant. Cf. People v. Nieves, 330 N.E.2d 26,
34 (N.Y. 1975) (holding that an “all persons” warrant “must establish probable cause
to believe that the premises are confined to ongoing illegal activity” and that all
persons subject to the warrant possess the articles sought and if “this probability is not
present, then each person subject to search must be identified in the warrant . . . by
name or sufficient personal description”).

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{27} 	In claiming that the affidavit established probable cause to believe that any
person present at the rave was likely to be involved in criminal activity, the State
relies on the evidence concerning the distribution and use of drugs and the
consumption of alcohol by underage persons throughout the theater, all of which
Holguin observed. It then argues that any person present would be aware of these
illegal activities and that it was “highly probable” any person present would be
participating in at least some of the illegal activities.
{28} 	We disagree because Holguin’s general observations of criminal activity taking
place in the theater are only sufficient to establish “[a] generalized belief that all
persons present in a location are involved in criminal activity.” Garcia, 166 P.3d at
855. This belief “is insufficient to establish the required nexus” between Defendant
and the criminal activity. 	Id. (holding that “[a] sufficient nexus is not established
merely through evidence that some of the persons gathered in a particular location are
engaged in criminal activity”).
{29} 	Finally, we note that “all persons” warrants authorizing the search of a public
place have usually been declared invalid due to the absence of probable cause to
believe that all persons present in the establishment were involved in the criminal
activity. See, e.g., State v. Thomas, 540 N.W.2d 658, 665-66 (Iowa 1995) (holding
that there was not probable cause for the warrant to search all persons present in the
bar even though the affidavit provided information that the bar had been the site of

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numerous controlled buys of crack cocaine and numerous arrests involving many
people); State v. Robinson, 371 N.W.2d 624, 625-26 (Minn. Ct. App.1985) (striking
down a warrant that authorized a drug search of a legally-operating bar and “all
persons on the premises” that was executed during normal operating hours with fifty
to eighty patrons present); State v. Sims, 382 A.2d 638, 645-46 (N.J. 1978) (holding
that a warrant that authorized the search of a service station and all persons found
therein was void as to the search of the persons found at the station). Courts have
observed that a public location, such as a theater, is more likely than a private
residence to contain innocent persons who are unrelated to, and perhaps even unaware
of, the criminal activity. See Sutton v. State, 738 A.2d 286, 294 (Md. Ct. Spec. App.
1999) (observing that courts often recognize that an “all persons” search of a private
dwelling is much less likely to entrap innocent persons than the search of a public or
semi-public building or location); See also State v. Kinney, 698 N.E.2d 49, 54 (Ohio
1998) (recognizing that in general, “[t]he more public a place, the less likely a search
of all persons will be sustained” (internal quotation marks and citation omitted)).
{30} 	The State seeks to distinguish these cases because even though patrons of a bar
or other public venue may gather for purposes other than illegal activities, the purpose
of the rave is only to promote illegal drug and alcohol use. It contends that a person
who inadvertently entered the theater with no intention of participating in illegal
activity would have left after discovering the illegal activity.

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{31} 	We are unpersuaded by the State’s argument because there is nothing in the
affidavit indicating that the only purpose of the rave was to engage in illegal behavior.
Instead, the rave took place in a public theater that anyone could enter, including
Holguin who was admitted without any invitation or specialized showing. Given that
completely innocent people could enter the theater, we are not convinced that the
affidavit contained sufficient information to establish probable cause that every person
present was engaged in criminal activity. 	See Thomas, 540 N.W.2d at 665-66
(holding that the “all persons” warrant was invalid despite the information in the
affidavit regarding numerous drug transactions and indicating that the bar was a focal
point of drug activity in the neighborhood because an innocent person could have
inadvertently entered the bar and thus the magistrate had no way of knowing whether
every person was involved in criminal activity).
{32} 	Based upon the foregoing, we affirm the district court’s conclusion that the “all
persons” warrant impermissibly authorized the search of Defendant’s person because
it was not supported by information in the affidavit establishing a particularized
suspicion that Defendant or “all persons” found on the premises were involved in
criminal activity or in possession of contraband.
SEARCH OF DEFENDANT’S PURSE
{33} 	The State claims that even if the search of Defendant’s person was unlawful,
the officers were nonetheless entitled to search Defendant’s purse because it was

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located on the premises to be searched. 	New Mexico appellate courts have yet to
specifically address the question of whether a container or personal property
belonging to a visitor but found on the premises to be searched is considered to be part
of the premises or whether it is an extension of its owner. 	Thus, we look to the
approach taken in other jurisdictions for guidance on this issue.
{34} 	Some courts apply a “physical possession” test and focus on whether the visitor
had the container or personal property in his or her physical possession at the time of
the search. See, e.g., United States v. Johnson, 475 F.2d 977, 979 (D.C. Cir. 1973)
(holding that the search of the visitor’s purse was covered by the warrant because it
was not being worn by the visitor and thus did not constitute “an extension of her
person so as to make the search one of her person”); State v. Reid, 77 P.3d 1134,
1136-43 (Or. Ct. App. 2003) (criticizing, but nonetheless adopting, the bright-line
physical possession test and thus holding that, if the personal property is on the
premises but not within the visitor’s physical possession and it could contain an item
named in the warrant, officers may search it even if they know the property belongs
to the visitor). 	We decline to adopt the physical possession approach because it
insulates guilty parties who could evade detection by giving contraband to visitors.
See United States v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973) (“It is too broad in that
a search warrant could be frustrated to the extent that there are hands inside the
premises to pick up objects before the door is opened by the police.”). Furthermore,

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it fails to protect the privacy interests of visitors who merely put down or store their
personal effects for purposes of convenience or in order to comply with the
requirements of certain public venues. 	See id. (criticizing the physical possession
approach as too narrow because “it would leave vulnerable many personal effects,
such as wallets, purses, cases, or overcoats, which are often set down upon chairs or
counters, hung on racks, or checked for convenient storage”).
{35} 	Defendant encourages us to adopt the “notice” approach that prohibits officers
from searching the personal property of visitors on the premises to be searched if the
officers knew or should have known that the personal property belonged to the visitor.
See State v. Lohr, 263 P.3d 1287, 1291-92 (Wash. Ct. App. 2011) (holding that the
warrant to search the premises did not cover the defendant’s purse that “was readily
recognizable as her personal effect” and noting that “if an item is readily recognizable
as belonging to an individual not named in the warrant, the item is not within the
warrant’s scope”); cf. Waters v. State, 924 P.2d 437, 440 (Alaska Ct. App. 1996)
(assuming for purposes of the decision that personal property belonging to a visitor
is exempt from the warrant “if the officers knew or reasonably should have known”
that the property does not belong on the premises but nonetheless affirming the search
of the defendant’s purse because ownership of the purse was ambiguous).
{36} 	The district court appeared to adopt the notice approach in reaching its
determination that Vasquez was not justified in searching Defendant’s purse because

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the purse clearly belonged to her. We need not decide if the district court was correct
in determining that Vasquez was precluded from searching Defendant’s purse merely
based on his knowledge that it belonged to Defendant because the district court’s
determination 	is 	justified 	on 	other 	grounds 	as 	well. 	See 	State 	v. 	Ruiz,
2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003 (holding that, as a general rule,
“we will uphold the decision of a district court if it is right for any reason”).
{37} 	A number of jurisdictions have applied an approach that considers the
connection between the visitor, the visitor’s personal property, and the reason for the
search warrant. 	For example, the “relationship approach” adopted by the court in
Micheli requires an examination of “the relationship between the person and the
place.” See Micheli, 487 F.2d at 431; see also United States v. Giwa, 831 F.2d 538,
544-45 (5th Cir. 1987) (stating that “physical possession should not be the sole
criterion . . . used to determine whether a personal item may be searched pursuant to
a premises search warrant[,]” but instead the better approach is to examine the
“relationship between the person and the place”). This approach recognizes that items
found on the premises will not automatically fall within the proper scope of the search
warrant, but instead, “it is necessary to examine why a person’s belongings happen
to be on the premises.” 	Micheli, 487 F.2d at 432 (holding that the search of the
defendant’s briefcase fell within the scope of the warrant to search the premises
because the defendant, a co-owner of the premises searched, was not a mere visitor

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but instead “had a special relation to the place, which meant that it could reasonably
be expected that some of his personal belongings would be there”).
{38} 	In State v. Jackson, 260 P.3d 1240, 1243-44 (Kan. Ct. App. 2011), the Kansas
Court of Appeals adopted a hybrid approach that it characterized as a “notice test”
with a relationship exception. Under this approach, officers may not search a visitor’s
personal property if they have “actual or reasonable constructive notice” that the
property is not subject to the warrant. Id. However, the relationship exception will
apply to allow the search, despite the officer’s notice of ownership, if the surrounding
circumstances suggest that the visitor has more than a casual relationship to the
premises and that there is a relationship between the visitor and the “illegal activities
described in the warrant.” Id. at 1244.
{39} 	In Jackson, the officers executed a search warrant authorizing a search for
illegal drugs and paraphernalia at the residence of Marla Davenport. 	Id. at 1242.
Davenport, her son, and five non-residents, including the defendant, were found in the
bedroom, but the officers found three or four purses on the floor in the kitchen. Id.
When the officers looked inside of the purses, ostensibly to determine ownership, they
found drug paraphernalia inside the defendant’s purse along with methamphetamine.
Id. at 1242-43. 	Because the officers knew or should have known that the purse
belonged to the defendant and because there was no suggestion that the defendant

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either lived on the premises or was engaged in the illegal activity, the court held that
the search warrant did not authorize the search of her purse. Id. at 1244-47.
{40} 	The underlying rationale of the notice approach, the relationship approach
adopted in Micheli, or the hybrid approach adopted by the court in Jackson, and our
consideration of the lack of evidence connecting Defendant to the criminal activities,
lead us to conclude that the search of Defendant’s purse was impermissible. See id.;
see also United States v. Young, 909 F.2d 442, 445 (11th Cir. 1990) (recognizing that
application of the “relationship” test is consistent with the Supreme Court’s holding
in Ybarra because it was the patron’s lack of a relationship with the illegal activity
taking place on the premises that resulted in a finding of lack of probable cause in
Ybarra). Moreover, even though New Mexico appellate courts have yet to consider
this precise issue, this Court’s opinion in State v. Gurule, 2011-NMCA-063, 150 N.M.
49, 256 P.3d 992, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633,
is consistent with the views articulated by the courts in Jackson and Micheli, by
implicitly recognizing the need to establish a connection between the specific item
seized and the reason for the warrant. 	See Gurule, 2011-NMCA-063, ¶ 16
(recognizing that “the scope of the [search] warrant [must] be limited by the probable
cause on which the warrant is based” and that courts will suppress the seizure of an
individual item for lack of probable cause with respect to that item (internal quotation
marks and citation omitted)).

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{41} 	In Gurule, the search warrant was based on information in the affidavit that
computers in the defendant’s home were being used to view and share child
pornography. Id. ¶¶ 2, 5. There was nothing in the affidavit indicating that cameras
in the home were being used in connection with the pornography or that anyone in the
home was taking pornographic pictures. Id. ¶ 5. The search warrant authorized the
seizure of a digital camera. Id. ¶ 2.
{42} 	This Court affirmed the district court’s order suppressing evidence obtained
from the digital camera because, even though the search warrant explicitly authorized
the search and seizure of the digital camera,“the dispositive issue is whether there was
probable cause to permit the search of the camera.” Id. ¶¶ 20, 23. In the absence of
any showing that the digital camera was being used to store or to manufacture the
child pornography, this Court held that “there was no substantial basis for concluding
that there was probable cause that the camera would contain child pornography,” and
the evidence found therein was properly suppressed. 	Id. 	Applying the analysis of
Gurule leads us to conclude that the search of Defendant’s purse was not supported
by probable cause because the State failed to prove that the seizure of that individual
item was supported by probable cause and it failed to establish a connection between
the purse and the reason for the warrant. See id. ¶ 16.
{43} 	Finally, contrary to the State’s contentions, we believe the United States
Supreme Court’s decisions in United States v. Ross, 456 U.S. 798 (1982), and

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Wyoming v. Houghton, 526 U.S. 295 (1999), can be reconciled with the approach
taken by the courts in Jackson and Micheli. 	The State relies on language in Ross
stating that “[a] lawful search of fixed premises generally extends to the entire area
in which the object of the search may be found and is not limited by the possibility
that separate acts of entry or opening may be required to complete the search.” 456
U.S. at 820-21; see Houghton, 526 U.S. at 301-02 (applying Ross to conclude that,
when there is probable cause to search an automobile, the officers may search
containers found within the automobile regardless of ownership and without the need
for “individualized probable cause” for each container).
{44} 	However, the State acknowledges that both Ross and Houghton involve the
warrantless search of automobiles under the federal automobile exception. 	See
Houghton, 526 U.S. at 303; Ross, 456 U.S. at 800-01. The automobile exception is
justified in part by the recognition that passengers, as well as drivers, “possess a
reduced expectation of privacy with regard to the property that they transport in cars.”
Houghton, 526 U.S. at 303.
{45} 	We do not believe that the principles underlying Ross and Houghton apply in
this matter because neither case involves the search of the personal property of a
person who is not subject to the search warrant and who has stored his or her property
on premises that are open to the public. Therefore, we are not persuaded that these
cases warrant a conclusion that the search of Defendant’s purse was supported by

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probable cause or that the search was authorized by the warrant to search the premises
of the theater.
{46} 	In sum, the district court found that Vasquez knew the purse belonged to
Defendant at the time he conducted the search. There is nothing in the affidavit or in
the officers’ testimony to suggest that the purse was connected to the theater or to the
illegal activity occurring there. 	Therefore, Vasquez was not authorized to search
Defendant’s purse and the evidence found therein, and Defendant’s subsequent
statements about that evidence were properly suppressed.
NEW MEXICO CONSTITUTION
{47} 	Because we find that the search of Defendant’s person and her personal
belongings violated the Fourth Amendment of the United States Constitution, we need
not decide whether it violated Article II, Section 10 of the New Mexico Constitution
as 	well 	or 	whether 	Defendant 	preserved 	her 	claim 	under 	the 	New 	Mexico
Constitution. See State v. Montano, 2009-NMCA-130, ¶ 23, 147 N.M. 379, 223 P.3d
376.
CONCLUSION
{48} 	For these reasons, we affirm the order of the district court.
{49} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

CYNTHIA A. FRY, Judge

LINDA M. VANZI, Judge

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