June 04, 2009 – State of New Mexico v. Dana Brusuelas, No. 27,107

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number:	2
Filing Date: 	June 4, 2009	3
NO. 27,107	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
DANA BRUSUELAS,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	10
Frank K. Wilson, District Judge	11
Gary K. King, Attorney General	12
Francine A. Chavez, Assistant Attorney General	13
Santa Fe, NM	14
for Appellee	15
Jennifer R. Albright	16
Albuquerque, NM	17
for Appellant	18

OPINION	1
BUSTAMANTE, Judge.	2
{1} 	Dana 	Brusuelas 	(Defendant) 	appeals 	her 	conviction 	for 	possession 	of	3
methamphetamine in violation of NMSA 1978, Section 30-31-23(D) (1990) (amended	4
2005). She raises two issues arising from the district court’s denial of her motion to	5
suppress evidence: (1) whether law enforcement officers may conduct warrantless	6
searches of a probationer outside the direction of a probation officer or without the	7
probationer’s consent, and (2) whether the law enforcement agents had reasonable	8
suspicion that Defendant was committing or had committed a crime and that her	9
vehicle or purse contained evidence of the crime sufficient to support a warrantless	10
search. We affirm Defendant’s conviction.	11
BACKGROUND AND FACTS	12
{2} 	On January 6, 2005, law enforcement agents executed a search warrant at a	13
home in Alamogordo, New Mexico, based on a tip that methamphetamine was for sale	14
there. The warrant covered the home, curtilage, and vehicles at the home. Defendant,	15
who was on probation as a result of an earlier conviction, happened to be present at	16
the home as a visitor. One of the conditions of her probation (Paragraph 9) was that	17
she would “submit to warrantless searches of [her] person, residence and vehicle at	18

2
the discretion or direction of [her] probation officer or any law enforcement officer.”	1
{3} 	Before searching the only vehicle at the scene, the agents determined that it	2
belonged to Defendant. At some point, they also learned that she was on probation	3
and unsuccessfully tried to reach her probation officer. Upon searching the vehicle,	4
the agents found drug paraphernalia, which Defendant admitted was hers. Shortly	5
after searching the vehicle, the agents searched Defendant’s purse inside the home and	6
discovered the methamphetamine on which her conviction was based. The district	7
court denied Defendant’s motion to suppress the evidence discovered in the searches.	8
{4} 	The district court made several relevant findings of fact and conclusions of law	9
in connection with its denial of the motion to suppress. The court concluded that there	10
was no probable cause to search Defendant’s purse, the search of the purse was not	11
a search incident to arrest, the searches of Defendant’s purse and vehicle were not	12
within the scope of the warrant being executed, Defendant was on the premises as a	13
visitor, and the search of Defendant’s purse went beyond what was arguably necessary	14
to check for weapons. 	The court concluded, however, that “[P]aragraph 9 in the	15
Judgment and Sentence was intended to apply to situations exactly like this one, in	16
which Defendant is found at a premises where law enforcement agents are conducting	17

3
a search for illegal drugs.” Accordingly, the district court concluded that the searches	1
of Defendant’s vehicle and purse were reasonable and denied her motion to suppress.	2
PROBATION SEARCH BY LAW ENFORCEMENT OFFICER	3
Standard of Review	4
{5} 	“The standard of review for suppression rulings is whether the law was	5
correctly applied to the facts, viewing them in a manner most favorable to the	6
prevailing party.” 	State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d	7
856 	(internal 	quotation 	marks 	and 	citation 	omitted). 	“We 	review 	factual	8
determinations by the trial court under a substantial evidence standard” and legal	9
questions de novo. State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d	10
836. “[A]ll reasonable inferences in support of the [district] court’s decision will be	11
indulged in, and all inferences or evidence to the contrary will be disregarded.” Jason	12
L., 2000-NMSC-018, ¶ 10 (alterations in original) (internal quotation marks and	13
citation omitted). Conflicts in the evidence, even within the testimony of a witness,	14
are to be resolved by the fact finder at trial. Id.	15
{6} 	“We review whether a court’s imposition of a condition of probation is lawful	16
under an abuse of discretion standard.” State v. Baca, 2004-NMCA-049, ¶ 13, 135	17
N.M. 490, 90 P.3d 509. “The court has broad discretion to effect rehabilitation and	18

4
may impose conditions [of probation] designed to protect the public against the	1
commission of other offenses during the term, and which have as their objective the	2
deterrence of future misconduct.” State v. Garcia, 2005-NMCA-065, ¶ 11, 137 N.M.	3
583, 113 P.3d 406 (internal quotation marks and citation omitted).	4
Discussion	5
{7} 	As an initial matter, the State argues that Defendant did not preserve the issue	6
of whether Paragraph 9 was constitutionally permissible because she did not invoke	7
a ruling on the question in district court as required by Rule 12-216(A) NMRA. We	8
conclude that the issue was adequately preserved. 	First, Defendant’s motion to	9
suppress evidence makes several assertions that implicitly argue that the “any law	10
enforcement officer” provision in Paragraph 9 would be enforceable only if it were	11
interpreted as requiring that certain circumstances be present, such as exigent	12
circumstances, probable cause, or a need for an inventory search, and that, in the	13
absence of such circumstances, the provision was not enforceable. Second, as argued	14
in Defendant’s reply brief, if Paragraph 9 includes an unconstitutional requirement,	15
it amounted to an illegal sentence. 	A challenge to an illegal sentence raises a	16
jurisdictional question. See, e.g., State v. Shay, 2004-NMCA-077, ¶ 6, 136 N.M. 8,	17
94 P.3d 8. This Court may consider jurisdictional questions even if no ruling on the	18

5
issue was fairly invoked in district court. Rule 12-216(B). Accordingly, we proceed	1
to the merits of Defendant’s argument.	2
{8} 	In her motion to suppress evidence, Defendant contended that her rights were	3
violated under the Fourth Amendment of the United States Constitution and Article	4
II, Section 10 of the New Mexico Constitution. Defendant does not argue that the	5
New Mexico Constitution should be interpreted differently from the United States	6
Constitution in the context of this appeal. “Thus, we assume without deciding that	7
both constitutions afford equal protection to individuals against unreasonable seizures	8
in this context, and we analyze the constitutionality of the seizure under one uniform	9
standard.” State v. Ochoa, 2004-NMSC-023, ¶ 6, 135 N.M. 781, 93 P.3d 1286.	10
{9} 	“The federal and New Mexico Constitutions are not a guarantee against all	11
searches and seizures, only unreasonable ones.” State v. Rowell, 2008-NMSC-041,	12
¶ 29, 144 N.M. 371, 188 P.3d 95. “Warrantless probation searches and seizures must	13
comply with the reasonableness components of the Fourth Amendment and of Article	14
II, Section 10, of the New Mexico Constitution.” State v. Ponce, 2004-NMCA-137,	15
¶ 16, 136 N.M. 614, 103 P.3d 54. “‘[T]he reasonableness of a search is determined	16
by assessing, on the one hand, the degree to which it intrudes upon an individual’s	17
privacy and, on the other, the degree to which it is needed for the promotion of	18
legitimate governmental interests.’” Baca, 2004-NMCA-049, ¶ 26 (quoting United	19

6
States v. Knights, 534 U.S. 112, 118-19 (2001)). “A search and seizure conducted	1
without a warrant is unreasonable unless it is shown to fall within one of the	2
exceptions to the warrant requirement.” 	State v. Diaz, 1996-NMCA-104, ¶ 8, 122	3
N.M. 384, 925 P.2d 4. 	“A valid consensual search has been acknowledged as an	4
exception to the warrant requirement.” Id. ¶ 9.	5
{10} 	A condition of probation must be “reasonably related to [the probationer’s]	6
rehabilitation.” NMSA 1978, § 31-20-6(F) (2007). “To be reasonably related, the	7
probation condition must be relevant to the offense for which probation was granted.”	8
State v. Gardner, 95 N.M. 171, 174, 619 P.2d 847, 850 (Ct. App. 1980).	9
{11} 	We have not previously considered whether a condition of probation allowing	10
warrantless searches by law enforcement agents without the participation of probation	11
officers is inherently unreasonable and thus impermissible. In State v. Gallagher, 100	12
N.M. 697, 699, 675 P.2d 429, 431 (Ct. App. 1984), we specifically declined to reach	13
the question. 	In Gallagher, which concerned consent to searches by a probation	14
officer, we stated, “[w]e do not reach the question in this case whether probationary	15
search conditions may be extended to allow searches by any law enforcement	16
officials.” 	Id. 	In the present case, although we again decline to establish a general	17
rule, we conclude that the searches of Defendant’s vehicle and purse were reasonable	18
under existing law.	19

7
{12} 	Citing Gardner, Defendant argues that warrantless searches of probationers	1
must be conducted by or under the direction of probation officers, unless the	2
probationer consents to the search. In Defendant’s case, the search was conducted by	3
agents of the Otero County Narcotics Enforcement Unit and the Alamogordo	4
Department of Public Safety. We do not interpret Gardner as narrowly as Defendant.	5
In Gardner, a condition of the defendant’s probation was that he “shall submit to a	6
search of his car, person or residence at anytime upon request of his probation	7
officer.” 95 N.M. at 172, 619 P.2d at 848. Thus, language in Gardner suggesting that	8
the search by a law enforcement officer was proper “because it was requested by the	9
probation officer” relates to the fact that the defendant there, unlike Defendant here,	10
had not agreed to be searched by any law enforcement officer. Id. at 175, 619 P.2d	11
at 851.	12
{13} 	In State v. Marquart, 1997-NMCA-090, 123 N.M. 809, 945 P.2d 1027, where	13
the central issue was whether the exclusionary rule applied in probation revocation	14
hearings, the defendant was searched by a law enforcement officer in the course of a	15
traffic stop. 	The defendant was on probation but had not agreed to warrantless	16
searches. Holding that the exclusionary rule applied, we observed that our holding	17
“does not prevent a court from imposing as a condition of probation that the	18
probationer give his or her consent to reasonable warrantless searches by a probation	19

8
officer to ensure compliance with the conditions of probation.” Id. ¶ 19. In limiting	1
this observation to probation officers, we again indicated our disinclination to rule on	2
whether consent to warrantless searches by any law enforcement officer was a	3
permissible condition of probation, while at the same time indicating our continued	4
approval of conditions such as the one in Gardner, which limited warrantless searches	5
to ones involving probation officers.	6
{14} 	In Knights, the United States Supreme Court upheld a warrantless search of a	7
probationer’s home in circumstances similar to those before us. The defendant, on	8
probation for a drug offense, had agreed to submit to searches by any probation or law	9
enforcement officer as a condition of his probation. 	534 U.S. at 114. 	A detective	10
investigating an arson observed suspicious items in a truck belonging to an individual	11
who had just left the defendant’s home. Id. at 115. Based on these observations, the	12
detective, aware of the condition of probation in the defendant’s probation order,	13
returned to the defendant’s home and conducted a warrantless search, which revealed	14
incriminating evidence. Id. In holding that the search was reasonable, the Supreme	15
Court balanced the degree of intrusion on the defendant’s privacy against the	16
protection of legitimate government interests. Regarding the intrusion on the	17
defendant’s privacy, the Court stated, “[i]nherent in the very nature of probation is that	18
probationers do not enjoy the absolute liberty to which every citizen is entitled.” Id.	19

9
at 119 (internal quotation marks and citation omitted). The Court also found that two	1
government interests were served, stating, “[i]t was reasonable to conclude that the	2
search 	condition 	[of 	probation] 	would 	further 	the 	two 	primary 	goals 	of	3
probation—rehabilitation and protecting society from future criminal violations.” Id.	4
Balancing these considerations, the Court found that the lesser standard of reasonable	5
suspicion, not probable cause, “satisfies the Constitution when the balance of	6
governmental and private interests makes such a standard reasonable.” Id. at 121. We	7
have cited the Knights approach with approval. “In New Mexico, as well, whether a	8
search is unreasonable is determined by balancing the degree of intrusion into a	9
probationer’s 	privacy 	against 	the 	interest 	of 	the 	government 	in 	promoting	10
rehabilitation and protecting society.” Baca, 2004-NMCA-049, ¶ 32.	11
{15} 	Applying the above principles to the circumstances of Defendant’s case, we	12
conclude that Paragraph 9 was consistent with our prior cases and constitutionally	13
permissible. First, as discussed below, the presence of Defendant at a home being	14
searched for evidence of drug sales met the standard of reasonable suspicion. Knights,	15
534 U.S. at 121; Baca, 2004-NMCA-049, ¶ 41. 	Second, Defendant agreed to the	16
condition of probation in Paragraph 9 that required her to submit to warrantless	17
searches by any law enforcement officer. See Gallagher, 100 N.M. at 699, 675 P.2d	18
at 431 (rejecting the defendant’s argument that a choice between a consent-to-search	19

10
provision and going to prison was not really a choice and thus consent was not	1
voluntary). 	Third, Paragraph 9 appears to be reasonably related to Defendant’s	2
rehabilitation. 	The record indicates that the offense for which Defendant was on	3
probation was child abuse (negligently caused, no great bodily harm). 	The	4
warrantless search condition appears to indirectly further the goal of preventing	5
another incident of child abuse. We observe that the judgment and sentence in which	6
Paragraph 9 appears contains indications that alcohol was involved, as another	7
condition of probation required Defendant to complete a two-year inpatient program	8
and to avoid alcohol. 	Requiring Defendant to submit to searches would tend to	9
advance her rehabilitation by ensuring that she did not possess alcohol. In addition,	10
though the probationary strictures emphasize alcohol use, they are not limited to	11
alcohol. 	The requirement under Paragraph 5 that Defendant “submit to substance	12
abuse screening and any recommendations from that screening” are broader and could	13
cover methamphetamine or other drug use. Fourth, because the agents were aware	14
that Defendant was on probation at the time of the searches, in the circumstances—the	15
agents were executing a search warrant at an alleged drug home—the search was	16
reasonably related to “[t]he general purposes of probation, under federal or New	17
Mexico law, [of] rehabilitation and deterrence for community safety.” Baca, 2004-	18
NMCA-049, ¶ 36. Fifth, there is no indication that the agents knew beforehand that	19

11
Defendant would be present at the home, and thus the search cannot be considered “a	1
subterfuge for criminal investigation[].” Gardner, 95 N.M. at 175 (internal quotation	2
marks and citation omitted). 	The presence of these factors distinguishes the	3
circumstances of this search from those where reasonableness is questionable or	4
absent, such as one where a police officer stops a probationer on the street with no	5
indication that anything criminal is afoot. We conclude that Paragraph 9 was properly	6
applied.	7
{16} 	We acknowledge the point made by the dissent with regard to the potential	8
difficulty raised by the likelihood that the agents here were not aware of the probation	9
condition allowing them to conduct a warrantless search of Defendant. Had it been	10
made below it might well be dispositive. The difficulty is that the argument was not	11
made to the district court. We see no way to address the argument substantively in	12
this case.	13
REASONABLE SUSPICION	14
Standard of Review	15
{17} 	We have held that “warrantless probation searches can and must be supported	16
by reasonable suspicion as defined in New Mexico law to be an awareness of specific	17
articulable facts, judged objectively, that would lead a reasonable person to believe	18
criminal activity occurred or was occurring.” 	Baca, 2004-NMCA-049, ¶ 43.	19

12
“Determinations of reasonable suspicion and probable cause should be reviewed de	1
novo on appeal.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.	2
Discussion	3
{18} 	The 	district 	court 	concluded 	without 	elaboration 	that 	the 	searches 	of	4
Defendant’s vehicle and purse were not done pursuant to the search warrant the agents	5
were executing. Rather, the district court relied on the plain language of Paragraph	6
9 and Defendant’s agreement to it, and observed that the officer was aware of	7
Defendant’s probation status. The district court’s decision letter states:	8
The Court finds that these searches were reasonable under the	9
circumstances. The Court concludes that paragraph 9 in the Judgment	10
and Sentence was intended to apply to situations exactly like this one, in	11
which Defendant is found at a premises where law enforcement officers	12
are conducting a search for illegal drugs. This provision is consistent	13
with the goals and objectives of probation . . . .	14
{19} 	The context of the searches of Defendant’s vehicle and purse includes the fact	15
that a warrant was being executed pursuant to information that drugs were being sold	16
at the home. In State v. Williamson, 2000-NMCA-068, 129 N.M. 387, 9 P.3d 70, the	17
defendant’s vehicle was stopped for a traffic violation. Smelling alcohol, the officer	18
administered the HGN test and was considering whether to conduct additional tests.	19
Id. ¶ 2. At that point, a second officer told the first officer that he had found drugs on	20
the defendant’s passenger. Id. ¶ 4. The first officer asked the defendant whether he	21
also had drugs on him. The defendant consented to a search, during which the officer	22

13
found drugs. 	Id. 	The defendant argued that there was no reasonable suspicion to	1
support the expansion of the traffic stop into a drug investigation. 	Id. ¶ 5. 	We	2
concluded that “[t]he presence of drugs in the car, even though in the passenger’s	3
possession, was sufficient to reasonably arouse [the officer’s] suspicion that [the	4
d]efendant 	also 	had 	drugs[,]” 	given 	the 	defendant’s 	indications 	of 	possible	5
impairment. Id. ¶ 10.	6
{20} 	We consider the circumstances of the present case analogous to Williamson.	7
As discussed above, the agents needed only reasonable suspicion that Defendant was	8
involved in criminal activity, not probable cause to search. As in Williamson, there	9
was an additional factor supporting reasonable suspicion beyond mere presence. The	10
additional factor in Williamson was the defendant’s own possible impairment. Here,	11
the additional factor was the agents’ knowledge that Defendant was on probation. The	12
alleged presence of drugs in the home being searched—an allegation presumably	13
supported by probable cause, because a court had issued the search warrant—made	14
it reasonable for the agents to suspect that Defendant, on probation, was somehow	15
involved in the drug activity. “[I]t must be remembered that the very assumption of	16
the institution of probation is that the probationer is more likely than the ordinary	17
citizen to violate the law.” 	Knights, 534 U.S. at 120 (internal quotation marks and	18
citation omitted). Accordingly, we conclude that the searches of Defendant’s vehicle	19

14
and purse were based on reasonable suspicion, and thus were constitutionally	1
permissible.	2
{21} 	Finally, Defendant argues that her purse was not on her “person” at the time it	3
was searched, and thus was not covered by Paragraph 9’s requirement that she consent	4
to searches of her “person.” 	The district court’s decision letter made no findings	5
regarding the location of the purse at the time it was searched. Defendant’s motion	6
to suppress does not raise this issue, although it was addressed at the hearing. Our	7
own review of the suppression hearing transcript indicates that there was conflicting	8
evidence on this question. Defendant herself testified that at the time the purse was	9
searched, she was standing on a step next to the bar where her purse was, and that the	10
purse was between one and two feet away from her. Defendant testified that she was	11
not handcuffed, while Agent House, who searched the purse, testified that she was.	12
Agent House testified that Defendant had told him the purse was hers. There was also	13
some inconclusive testimony by Agent House, Agent Guthrie, and Defendant	14
regarding whether, before the purse was searched, she would have been allowed to	15
leave with a citation for the paraphernalia without a custodial arrest. 	We find no	16
testimony definitively establishing whether the purse was ever in Defendant’s physical	17
possession during the relevant times.	18

15
{22} 	At the hearing, Defendant’s counsel argued both that the purse was not on her	1
person, and that a person has a heightened expectation of privacy in items such as	2
purses or wallets. The State’s brief analogizes purses to pockets in clothing used to	3
carry personal effects, which presumably could be searched in a search of the	4
“person.” 	Defendant having cited no authority to the contrary, and having	5
acknowledged that the purse was within one to two feet of her at one point, we	6
conclude that the purse was sufficiently part of her person so as to come within a	7
search pursuant to Paragraph 9.	8
{23} 	The dissent does not take direct issue with our analysis. Rather it argues that	9
there could be no reasonable suspicion of anything absent the material found in the	10
vehicle and the search of the vehicle was improper because it was not proper under the	11
warrant. The dissent fails to recognize that all of the factors supporting reasonable	12
suspicion in this case apply with equal vigor to the vehicle search. That search cannot	13
be isolated from the rest of the case.	14
CONCLUSION	15
{24} 	For the reasons set forth above, we conclude that in the circumstances of her	16
case, the condition of Defendant’s probation that she consent to searches by “any law	17
enforcement officer” was applied consistent with federal and state constitutional	18
principles in the searches of her vehicle and purse. We affirm Defendant’s conviction.	19

16
{25} 	IT IS SO ORDERED.	1
2
MICHAEL D. BUSTAMANTE, Judge	3
I CONCUR:	4
5
ROBERT E. ROBLES, Judge	6
MICHAEL E. VIGIL, Judge, dissenting	7

17
Vigil, Judge (dissenting).	1
{26} 	I ultimately agree that a warrantless search of a probationer by a police officer	2
which is undertaken pursuant to a condition of probation which authorizes that search	3
is reasonable under the Fourth Amendment, and therefore constitutional, provided that	4
the police officer has reasonable suspicion for the search. However, I dissent for two	5
reasons. First, I cannot conclude that these searches were undertaken pursuant to, and	6
under the authority of, Defendant’s condition of probation. This is because the police	7
officers did not know that Defendant’s probation conditions allowed for warrantless	8
searches by police officers in addition to probation officers. Secondly, I disagree with	9
the majority’s conclusion that the searches in this case were supported by reasonable	10
suspicion.	11
FACTS	12
{27} 	Defendant was visiting a house in Alamogordo, New Mexico, when officers	13
arrived in the afternoon to execute a search warrant at the house. The officers knew	14
that the only vehicle parked at the house belonged to Defendant, and that she was not	15
an object of the search warrant; nevertheless, they searched her vehicle without her	16
consent. They asserted authority to do so because the warrant included the residence,	17
curtilage, and vehicles on the curtilage. The officers found drug paraphernalia inside	18
Defendant’s vehicle. 	After being advised of the discovery and her constitutional	19

18
rights, Defendant admitted she owned the drug paraphernalia and that she had smoked	1
methamphetamine earlier in the day. 	Agent House then proceeded to search	2
Defendant’s purse without her consent and cocaine was found inside the purse. While	3
executing the search warrant, the officers became aware at some point that Defendant	4
was on probation. 	The cocaine found in Defendant’s purse was the basis for the	5
fourth degree felony charge in Count I, possession of cocaine, a controlled substance;	6
and the drug paraphernalia was the basis for the misdemeanor charge in Count II,	7
possession of drug paraphernalia.	8
{28} 	Defendant’s motion to suppress the evidence discovered in the searches of her	9
vehicle and purse was denied. Pertinent to this appeal, the district court made findings	10
of fact and conclusions of law that:	11
(1) 	Neither the search of the purse nor the search of the vehicle was within	12
the scope of the warrant. Defendant was at the premises as a visitor;	13
(2) 	There was no probable cause to search the purse;	14
(3) 	The search of the purse was not a search incident to arrest;	15
(4) 	The scope of the search of the purse went beyond that which would	16
arguably be necessary to check it for weapons;	17
(5) 	Defendant was on probation at the time of the searches, and the officers	18
were aware she was on probation;	19

19
(6) 	One condition of Defendant’s probation was, “Defendant will submit to	1
warrantless searches of his/her person, residence and vehicle at the discretion and	2
direction of his/her probation officer or any law enforcement officer”;	3
(7) 	There was no attack on the appropriateness of the condition of probation	4
as written and ordered, under which the authority to conduct warrantless searches is	5
extended beyond probation officers to include law enforcement officers;	6
(8) 	The officer did have a reasonable, articulable suspicion that the purse	7
may contain evidence of a violation of law, and thus a violation of probation, although	8
that suspicion did not rise to the level of probable cause;	9
(9) 	The condition of probation allowing warrantless searches “was intended	10
to apply to situations exactly like this one, in which Defendant is found at a premises	11
where law enforcement officers are conducting a search for illegal drugs.” Defendant	12
thereupon entered into a conditional plea with the State, reserving her right to appeal	13
the denial of her motion to suppress.	14
DISCUSSION	15
{29} 	Defendant did not preserve for our review whether the condition of her	16
probation allowing a warrantless search by a police officer in addition to a probation	17
officer is reasonably related to her rehabilitation. As the majority notes, in order to	18
be valid, a condition of probation must be “reasonably related to the defendant’s	19

20
rehabilitation,” Section 31-20-6(F), and “[t]o be reasonably related, the probation	1
condition must be relevant to the offense for which probation was granted.” State v.	2
Gardner, 95 N.M. at 174, 619 P.2d at 850, discussed in the Majority Opinion at ¶ 10.	3
However, Defendant did not present any evidence or argument to the district court that	4
the warrantless search condition of her probation was not “reasonably related” to the	5
offense of child abuse (no great bodily harm), the offense for which she was granted	6
probation. Therefore, any argument concerning the lack of a reasonable relationship	7
fails due to a lack of proof. See Baca, 2004-NMCA-049, ¶ 19 (stating that the trial	8
court properly concluded a warrantless search condition of probation was valid where	9
the defendant presented no evidence establishing the lack of a reasonable relationship	10
between the probation condition and the underlying offense); Ponce, 2004-NMCA-	11
137, ¶ 7 (stating that a defendant moving to suppress evidence has the burden to come	12
forward with evidence to raise an issue as to an illegal search and seizure, and once	13
she has done so, the burden shifts to the state to justify the warrantless search or	14
seizure). 	I therefore assume that the warrantless search condition of Defendant’s	15
probation is reasonably related to Defendant’s rehabilitation.	16
{30} 	However, Defendant argues on appeal that the condition of her probation which	17
requires her to submit to warrantless searches of her person, residence, and vehicle at	18
the discretion or direction of her probation officer or any law enforcement officer is	19

21
unconstitutional. 	I agree with the majority that we must address Defendant’s	1
constitutional argument, even if she did not preserve that issue in the district court.	2
We must address this contention because if the condition is unconstitutional, it results	3
in an illegal sentence. See Shay, 2004-NMCA-077, ¶ 6 (noting that we have allowed	4
both the state and defendants to challenge illegal sentences for the first time on appeal	5
based on the rationale that the district court does not have jurisdiction to impose an	6
illegal sentence and the appellate rules allow jurisdictional issues to be raised for the	7
first time on appeal).	8
{31} 	Defendant first argues that a probation condition, which allows for warrantless	9
searches, is unconstitutional unless the warrantless searches are “probation searches”	10
that are “conducted as part of the probationary process” for a probation violation.	11
However, this argument has already been rejected by the United States Supreme	12
Court. 	See Knights, 534 U.S. at 116 (rejecting the argument that a warrantless	13
probation search condition must be conducted for “probationary” purposes and not for	14
“investigatory” purposes or it is unconstitutional under the Fourth Amendment).	15
Defendant does not argue that the New Mexico Constitution affords greater protection	16
than the United States Constitution in this context, and we therefore assume that the	17
protection afforded by both constitutions is identical. State v. Ochoa, 2004-NMSC-	18
023, ¶ 6.	19

22
{32} 	Defendant next asserts that an unconstitutional search occurs where a police	1
officer performs a warrantless probation search and it is not “at the direction of a	2
probation officer.” 	This argument was also rejected in Knights in which a police	3
officer performed a warrantless search of the defendant’s apartment without the	4
involvement of any probation officer, but the police officer was aware of the	5
defendant’s probation condition allowing for a warrantless search “by any probation	6
officer or law enforcement officer.” 534 U.S. at 114-15, 117.	7
A. 	Knowledge of the Probation Condition	8
{33} 	In this case, the police officers became aware at some point that Defendant was	9
on probation. However, there is no evidence that the police officers were aware that	10
a term of her condition was that she would “submit to warrantless searches of [her]	11
person, residence and vehicle at the discretion or direction of [her] probation officer	12
or any law enforcement officer.” This is unlike Knights, in which the police officer	13
who conducted the search of the defendant’s apartment knew of the search condition	14
providing for a warrantless search “by any probation officer or law enforcement	15
officer.” 	Id. at 114-15. 	Defendant argues that the search is unconstitutional and	16
cannot be validated under the condition of probation unless the police officer knows	17
of the probation condition at the time of the search. This presents an issue of first	18
impression under New Mexico law.	19

23
{34} 	The constitutionality of a probation search conducted by a police officer who	1
does not know of a probation condition allowing a search has been fully developed	2
in California. In In re Martinez, 463 P.2d 734 (Cal. 1970) (In bank), the California	3
Supreme Court held that the warrantless search of a home could not be justified as a	4
parole search, and was therefore unconstitutional, where the police did not know of	5
the defendant’s parole status when they conducted the search. Id. at 737-38. People	6
v. Robles, 3 P.3d 311 (Cal. 2000) followed, in which the California Supreme Court	7
held that the search of a home was unconstitutional even though the defendant’s	8
brother who lived in the home was on probation was subject to a search condition	9
because the police were unaware of the condition at the time of the search. Id. at 314.	10
People v. Sanders, 73 P.3d 496 (Cal. 2003) followed, in which the police searched the	11
home of two persons one of whom was on parole and subject to a search condition.	12
However, the police were unaware of the search condition at the time of the search.	13
The California Supreme Court held that the search was unconstitutional. Id. at 498.	14
The reasoning of these decisions was subsequently extended to searches of individuals	15
on probation by police officers where the police officer did not know of the probation	16
condition at the time of the search. See People v. Bowers, 13 Cal. Rptr. 3d 15, 17 (Ct.	17
App. 2004); People v. Hoeninghaus, 16 Cal. Rptr. 3d 258 (Ct. App. 2004). 	This	18
reasoning was then extended to searches of juveniles by police officers in In re Jaime	19

24
P., 146 P.3d 965, 966 (Cal. 2006), overruling In re Tyrell J., 876 P.2d 519 (Cal.	1
1994).	2
{35} 	The reasoning of the California courts is succinctly stated in Sanders. Unlawful	3
police conduct is legitimized if evidence obtained during a search which would	4
otherwise violate the Fourth Amendment is admitted into evidence merely because it	5
was later discovered that the suspect was subject to a probation or parole search	6
condition. Sanders, 73 P.3d at 507-08. Furthermore, such a search cannot be justified	7
as a probation or parole search because the officer is not acting pursuant to the	8
conditions of probation or parole. Id. at 506. The California Supreme Court further	9
pointed out that almost without exception in evaluating alleged violations of the	10
Fourth Amendment, the United States Supreme Court has undertaken an objective	11
assessment of the circumstances known to the officer at the time the search was	12
conducted. Id. at 507.	13
{36} 	We have held that warrantless probation searches and seizures must comply	14
with the reasonableness components of the Fourth Amendment and Article II, Section	15
10 of the New Mexico Constitution. 	Ponce, 2004-NMCA-137, ¶ 16. In assessing	16
reasonableness under the Fourth Amendment, our essential inquiry, involves two	17
questions: “whether the officer’s action was justified at its inception, and whether it	18
was reasonably related in scope to the circumstances which justified the interference	19

25
in the first place.” State v. Neal, 2007-NMSC-043, ¶ 18, 142 N.M. 176, 164 P.3d 57	1
(internal quotation marks and citations omitted) (emphasis added); State v. Robbs,	2
2006-NMCA-061, ¶ 12, 139 N.M. 569, 136 P.3d 570 (same). Whether reasonable	3
suspicion to detain a person to investigate possible criminal activity is consistent with	4
the Fourth Amendment is measured by whether the facts give rise to a reasonable	5
suspicion at the inception of the detention. State v. Ochoa, 2008-NMSC-023, ¶¶ 17,	6
19, 143 N.M. 749, 182 P.3d 130; City of Roswell v. Hudson, 2007-NMCA-034, ¶ 15,	7
141 N.M. 261, 154 P.3d 76. Searches of high school students do not require probable	8
cause, but school officials must have reasonable grounds for suspecting that a search	9
will turn up evidence that the student has violated, or is violating, the law or the rules	10
of the school. 	Such reasonable grounds must exist at the inception of the search.	11
State v. Pablo R., 2006-NMCA-072, ¶ 11, 139 N.M. 744, 137 P.3d 1198.	12
{37} 	The majority contends that this issue was not preserved for our review.	13
Majority Opinion ¶ 16. I disagree. Defendant’s written motion to suppress alleged	14
in part that the search of her vehicle and purse were without her consent, and beyond	15
the scope of the search warrant the officers were executing for the premises she was	16
visiting. 	Defendant therefore asserted that these searches violated her Fourth	17
Amendment rights. This was sufficient to place burden on the State to justify these	18
warrantless searches. 	Ponce, 2004-NMCA-137, ¶ 7 (“In the face of a defendant’s	19

26
challenge to the constitutionality of a warrantless arrest or search, the State is required	1
to present testimony or other evidence showing that the arrest or search met	2
constitutional muster.”). At the hearing on the motion the State asserted it would rely,	3
in part, upon Paragraph 9 of Defendant’s condition of probation as justification for the	4
searches, and the judgment and sentence setting forth Defendant’s conditions of	5
probation was admitted into evidence specifically for this purpose. The State elicited	6
from Defendant her knowledge of the Paragraph 9 condition of her probation, but it	7
failed to introduce any evidence that the police officers who searched her vehicle and	8
purse had any knowledge of this condition of her probation before the searches. As	9
the authorities discussed above make clear, the State cannot rely on information	10
discovered after a search to justify the search. 	While the specific context of a	11
warrantless probation search by police officers has not heretofore been addressed, the	12
general principle that the facts known to the officer to justify the search must be	13
known at the inception of the search is well settled. Thus, the State was on notice that	14
it was required to present all the facts known to the officers before they searched	15
Defendant’s vehicle and purse which it contended justified these warrantless searches.	16
{38} 	I am unaware of any cases in New Mexico (or elsewhere) in which the	17
constitutional validity of a search was justified by information discovered after the	18

27
search was completed. 	Under these circumstances, the logic and reasoning of the	1
California authorities cited above is compelling. Although the police officers in this	2
case knew that Defendant was on probation, there is no evidence that they knew	3
Defendant’s probation was subject to a warrantless search by police officers. 	We	4
cannot assume that they had such knowledge. I therefore conclude that the search of	5
Defendant’s automobile and her purse was unconstitutional for this reason alone.	6
B. 	No Reasonable Suspicion	7
{39} 	Defendant also argues that the officers did not possess reasonable suspicion to	8
search either her car or her purse. I agree with Defendant on this question as well.	9
{40} 	Knights acknowledges the needs of the state to monitor the conduct of	10
individuals on probation consistent with the Fourth Amendment and holds, “[w]hen	11
an officer has reasonable suspicion that a probationer subject to a search condition is	12
engaged in criminal activity, there is enough likelihood that criminal conduct is	13
occurring that an intrusion on the probationer’s significantly diminished privacy	14
interests is reasonable.” 534 U.S. at 121. Thus, the officers were required to possess	15
reasonable suspicion that Defendant was engaged in criminal activity when they	16
searched her vehicle and her purse. Our own Supreme Court has recently repeated:	17
A reasonable suspicion is a particularized suspicion, based on all the	18
circumstances that a particular individual, the one detained, is breaking,	19
or has broken, the law. 	The test is an objective one. 	The subjective	20
belief of the officer does not in itself affect the validity of the stop; it is	21

28
the evidence known to the officer that counts, not the officer’s view of	1
the governing law. We objectively examine whether the facts available	2
to the officer warrant the officer, as a person of reasonable caution, to	3
believe the action taken was appropriate. 	We will find reasonable	4
suspicion if the officer is aware of specific articulable facts, together	5
with rational inferences from those facts, that, when judged objectively,	6
would lead a reasonable person to believe criminal activity occurred or	7
was occurring.	8
State v. Hubble, 2009-NMSC-014, ¶ 8, ___ N.M. ___, ___ P.3d ___ (No. 30,663, Mar.	9
31, 2009) (internal quotation marks and citations omitted). 	Again, the facts	10
establishing reasonable suspicion must exist at the inception of the searches. Id. ¶ 7.	11
{41} 	The officers searched Defendant’s vehicle without her consent simply because	12
it was parked at the house where they were executing the search warrant. The district	13
court concluded that the search of the vehicle was not within the scope of the warrant	14
and I agree. Furthermore, there is absolutely no evidence linking Defendant’s vehicle	15
to any suspected criminal activity at the home where the search warrant was being	16
executed. Any assertion of reasonable suspicion related to the vehicle fails.	17
{42} 	With regard to the purse, the district court made a finding that the officer had	18
a reasonable articulable suspicion that the purse may contain a violation of the law.	19
This finding was apparently based upon what was discovered in the search of the	20
vehicle, coupled with Defendant’s admission that she owned the drug paraphernalia	21
and that she had smoked methamphetamine earlier in the day. However, since the	22
initial search of Defendant’s vehicle was unconstitutional, all evidence obtained as a	23

29
result of that search cannot form the basis for reasonable suspicion. 	See State v.	1
Harris, 116 N.M. 234, 238, 861 P.2d 275, 279 (Ct. App. 1993) (applying fruit of the	2
poison tree doctrine to out-of-court identification following illegal stop); State v.	3
Rivas, 2007-NMCA-020, ¶ 16, 141 N.M. 87, 150 P.3d 1037 (filed 2006) (noting that	4
consent to search which is tainted by a Fourth Amendment violation is invalid).	5
{43} 	The only facts which remain to justify searching Defendant’s purse are: (1)	6
Defendant was visiting a home where the officers were executing a search warrant for	7
drugs, and (2) Defendant was on probation. 	The majority concludes that this	8
constitutes sufficient reasonable suspicion to search the purse. Majority Opinion ¶¶	9
19-20. 	Respectfully, I disagree. 	If this were so, these two factors alone would	10
constitute reasonable suspicion. 	Thus, mere presence where a crime is being	11
investigated coupled with the fact of probation would negate the requirement of	12
reasonable suspicion. 	Our case law is very clear that mere presence alone at a	13
residence where a search warrant is being executed for drugs does not justify the arrest	14
or detention of the mere visitor. State v. Graves, 119 N.M. 89, 94, 888 P.2d 971, 976	15
(Ct. App. 1994). In State v. Martinez, 1996-NMCA-109, ¶ 34, 122 N.M. 476, 927	16
P.2d 31, we specifically stated that police officers cannot detain a non-resident who	17
is present during a drug raid on a home on the basis of his presence alone. There must	18
be “presence plus” facts that would make detaining or searching a non-resident	19

30
reasonable under the circumstances. 	Id. (internal quotation marks and citation	1
omitted).	2
{44} 	In this case, Defendant was not shown to have any connection with the drugs	3
being sought under the search warrant; there are no facts showing that the officers had	4
grounds to suspect such a connection; there were no circumstances presented to give	5
rise to a reasonable suspicion that Defendant was involved in criminal activity; there	6
was no evidence of any attempts by Defendant to flee; there was no evidence of	7
furtive gestures or sudden movements made by Defendant towards a weapon; there	8
was no evidence of any threats made by Defendant; there was no evidence that	9
Defendant resisted detention; there was no evidence that Defendant would destroy	10
evidence; and there was no evidence that Defendant was the target of the search	11
warrant. See Graves, 119 N.M. at 94, 888 P.2d at 976 (concluding that under similar	12
circumstances, it was not reasonable for police officers to detain a visitor of premises	13
which were being searched pursuant to a search warrant). 	The evidence fails to	14
establish reasonable suspicion that Defendant was committing or about to commit any	15
criminal offense. Under these circumstances, there is no reasonable suspicion.	16
{45} 	Notwithstanding the assertion of the majority to the contrary (Majority Opinion,	17
¶ 23), I completely disagree with the majority’s analysis of reasonable suspicion as it	18
concerns both the vehicle and the purse. 	In addition, I do not engage in any analysis	19

31
of whether Defendant’s purse was justified as being on her “person” as the majority	1
does. Majority Opinion, ¶ 21.	2
CONCLUSION	3
{46} 	The search of Defendant’s vehicle and purse was not justified by Defendant’s	4
probation condition at the commencement of the search. 	These searches were not	5
undertaken pursuant to, and under the authority of, Defendant’s condition of	6
probation. 	Since the officers were unaware of Defendant’s condition of probation	7
when they commenced the search, I would reverse the order of the district court	8
denying Defendant’s motion to suppress on this basis alone. 	In the alternative, I	9
respectfully submit that the evidence totally fails to demonstrate reasonable suspicion	10
to search Defendant’s vehicle and purse. 	On this alternative basis, I would also	11
reverse the order of the district court. Since the majority disagrees, I dissent.	12
_______________________________	13
MICHAEL E. VIGIL, Judge	14