June 04, 2012 – State of New Mexico v. Mark Eckard, No. 31,027

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: June 4, 2012
NO. 31,027
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MARK ECKARD,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Albert S. “Pat” Murdoch, District Judge
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
VANZI, Judge.
{1} 	Defendant Mark Eckard appeals the district court’s denial of his motion to
suppress. 	While executing an arrest warrant on Defendant and his wife, officers
conducted a “protective sweep” of Defendant’s house that led to the discovery and
subsequent seizure of over one hundred and sixty pounds of marijuana. Defendant
and his wife were outside their house in the back yard when the arrests took place.
Defendant raises two issues on appeal. 	First, he contends that the testimony
introduced at the suppression hearing failed to establish that the officers had the
requisite safety concerns to justify conducting the sweep of the house. Second, he
argues that, even if the warrantless search of the house was lawful, officers acted
outside the scope of the protective sweep in removing a blanket covering an area in
the living room. We agree with Defendant that the sweep was unlawful and that the
fruits of the entry must therefore be suppressed. Because we reverse on the first issue,
we need not reach Defendant’s second argument.
BACKGROUND
{2} 	We summarize the underlying events in the light most favorable to the ruling
rendered below. State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785.
James Burrell, a supervising agent with the United States Marshal Service, testified

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that, on March 20, 2008, he received information from the Fugitive Task Force in
Mississippi that there were felony arrest warrants issued for Defendant and his wife
and that they were living at an address in Albuquerque, New Mexico. Burrell testified
that, at the time he received the information, he knew Defendant had a long criminal
history, and he thought the warrant involved some type of narcotics violation.
However, Burrell also testified that he could not remember whether, at the time of
Defendant’s arrest, he knew the specifics of Defendant’s crimes, whether they
involved any convictions for a violent crime, whether Defendant had used any
weapons as part of the crimes, or whether Defendant and his wife were involved with
any co-conspirators.
{3} 	On that date, Burrell met with some federal marshals (agents) and briefed them
about the case while other agents were sent to conduct surveillance of Defendant’s
home until Burrell could compile a team to approach the house and serve the arrest
warrants. Burrell testified that the agents conducting surveillance did not see anyone
enter or leave Defendant’s house and that other than Defendant and his wife, they did
not have any facts to suggest that anyone else was in the house.
{4} 	Seven agents arrived at Defendant’s house to serve the warrant, with some
agents approaching the front door and some going around to the back of the house.
Two agents knocked on the front door, but no one answered, and the agents did not
hear any noise inside. Burrell testified that he heard an agent who had gone around

3
to the back of the house yell, “Let me see your hands. We have them here.” One
agent stayed at the front door, while the remaining agents went around to the back of
the house. Defendant and his wife were sitting at a patio table about ten feet from an
open sliding glass door.
{5} 	Defendant and his wife were placed in handcuffs and, in accordance with
standard procedure, some agents remained with them while others entered the home
and did a quick protective sweep of the premises. 	As they entered the house, the
agents yelled, “Police, U.S. Marshals, is there anybody else in the house?” 	For
approximately one to two minutes, the agents walked through the house and looked
around to see if anyone was inside.
{6} 	As the agents inside headed back toward the sliding glass door, they saw a large
blanket up against the wall, covering some large items in the corner of the room. The
agents removed the blanket to make sure no one was hiding underneath. 	After
removing the blanket, the agents saw six or seven dark trash bags that smelled of
marijuana. Burrell testified that the agents did not open the bags but called narcotics
officers from the Bernalillo County Sheriff’s Office who obtained a search warrant
based upon the information provided by the agents. 	The trash bags contained
approximately one hundred and sixty pounds of marijuana.
{7} 	Defendant was charged with possession of marijuana over one hundred pounds
with intent to distribute, conspiracy to commit possession of marijuana over one

4
hundred pounds with intent to distribute, and possession of drug paraphernalia. See
NMSA 1978, §§ 30-31-22(A)(1)(c) (2011); 30-28-2(A) (1979); 30-31-25.1(A) (2001).
Defendant moved to suppress the evidence obtained from the protective sweep and
subsequent search of the trash bags located in his home, claiming the sweep violated
the Fourth Amendment to the United States Constitution and Article II, Section 10 of
the New Mexico Constitution.
{8} 	After a hearing, the district court denied the motion to suppress. The district
court did not enter any written findings, but it orally concluded that the agents were
justified in conducting the protective sweep and removing the blanket over the trash
bags in order to ensure that no one was hiding under the blanket. 	The court also
concluded that, once the blanket was removed, the strong odor of marijuana
emanating from the bags justified the officers’ actions in obtaining a warrant to search
the contents of the trash bags.
{9} 	Defendant entered a conditional plea to possession of marijuana over one
hundred pounds with intent to distribute, and he now appeals the denial of his motion
to suppress.
DISCUSSION
Standard of Review

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{10} 	We review the denial of a motion to suppress as a mixed question of fact and
law. 	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.” Cline, 1998-NMCA-154, ¶ 6; see State
v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d. 856. Furthermore, given
the absence of any findings of fact or conclusions of law, we “draw all inferences and
indulge all presumptions in favor of the district court’s ruling.” 	Jason L.,
2000-NMSC-018, ¶ 11.
Propriety of the Protective Sweep
{11} 	In general, law enforcement officers are not permitted to enter residences
without a warrant. See State v. Gutierrez, 2008-NMCA-018, ¶ 16, 143 N.M. 422, 176
P.3d 1154 (“An officer’s warrantless entry into a person’s home is the exact type of
intrusion against which the language of the Fourth Amendment to the United States
Constitution and Article II, Section 10 of the New Mexico Constitution is directed.”).
In this case, the agents had a warrant from Mississippi for Defendant’s arrest, and
based upon that warrant, the agents could have entered Defendant’s home in order to
arrest him. See State v. Vargas, 2008-NMSC-019, ¶ 10, 143 N.M. 692, 181 P.3d 684
(stating that in light of the evidence showing that the officers had reason to believe the
defendant was inside the apartment, the warrant for the defendant’s arrest authorized
the officers’ entry into the defendant’s apartment); State v. Krout, 100 N.M. 661, 662,

6
674 P.2d 1121, 1122 (1984) (recognizing that, “for Fourth Amendment purposes, an
arrest warrant supported by probable cause carries with it limited authority to enter a
dwelling in which a suspect lives when there is reason to believe that the suspect is
within”). However, the agents did not need to enter Defendant’s home in order to
effectuate the arrest. Instead, the agents found and arrested Defendant in the back
yard of his home, at least ten feet from an open sliding glass door. Accordingly, the
agents needed justification for entering Defendant’s home. 	See State v. Ryon,
2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d 1032 (observing that “[w]arrantless
searches and seizures inside a home are presumptively unreasonable, subject only to
a few specific, narrowly defined exceptions”).
{12} 	In Maryland v. Buie, 494 U.S. 325, 334 (1990), the United States Supreme
Court addressed when officers may properly conduct a limited protective sweep in
conjunction with an in-home arrest. The Court held that:
as an incident to the arrest the officers could, as a precautionary matter
and without probable cause or reasonable suspicion, look in closets and
other spaces immediately adjoining the place of arrest from which an
attack could be immediately launched. Beyond that, however, we hold
that there must be articulable facts which, taken together with the
rational inferences from those facts, would warrant a reasonably prudent
officer in believing that the area to be swept harbors an individual posing
a danger to those on the arrest scene.
Id. As a preliminary matter, we note that Buie’s holding permits a limited search of
the area “immediately adjoining the place of arrest.” Id.; cf. Vale v. Louisiana, 399

7
U.S. 30, 33-34 (1970) (“If a search of a house is to be upheld as incident to an arrest,
that arrest must take place inside the house, not somewhere outside—whether two
blocks away, twenty feet away, or on the sidewalk near the front steps.” (citations
omitted)). The rationale for allowing the protective sweep beyond the immediate area
around the arrest site is to protect the officers from the threat posed “by unseen third
parties in the house.” Buie, 494 U.S. at 336. Therefore, in accordance with Buie, the
agents here needed to “possess[] a reasonable belief based on specific and articulable
facts that the area to be swept harbor[ed] an individual posing a danger to those on the
arrest scene.” 	Id. at 337. 	Furthermore, the sweep must be limited to a “a cursory
inspection of those spaces where a person may be found.” 	Id. at 335; see State v.
Zamora, 2005-NMCA-039, ¶¶ 16-17, 137 N.M. 301, 110 P.3d 517 (discussing the
justification for and limitations on the scope of a protective sweep incident to an
arrest).
{13} 	In this case, the agents’ entry into the house was approximately ten feet from
where Defendant and his wife were sitting and therefore did not constitute a search of
a space “immediately adjoining the place of arrest.” 	See Buie, 494 U.S. at 334. In
support of the protective sweep, however, Burrell testified as to his concerns regarding
Defendant’s general criminal history, general officer safety concerns, and standard
protocol. He further testified that, based upon his twenty years’ experience with the
U.S. Marshals Service, when he went into a residence looking for one person, usually

8
additional persons were present. The district court, persuaded by Burrell’s testimony,
found that the agents were authorized to enter Defendant’s home in order to conduct
a protective sweep incident to Defendant’s arrest because it was reasonable for them
to ensure that no one was in the house before proceeding with the warrant. See State
v. Trudelle, 2007-NMCA-066, ¶¶ 22-27, 142 N.M. 18, 162 P.3d 173 (discussing the
law of protective sweeps and what is needed to justify a sweep pursuant to an arrest).
We disagree.
{14} 	We recognize that a protective sweep of a residence may be reasonable whether
incident to an arrest taking place inside the residence or to an arrest taking place a
short distance from the residence if a reasonably prudent officer would anticipate a
threat to officer safety. See United States v. Colbert, 76 F.3d 773, 776-77 (6th Cir.
1996) (recognizing that a protective search of a residence may be justified when the
defendant is arrested outside of the home); United States v. Henry, 48 F.3d 1282, 1284
(D.C. Cir. 1995) (applying the principle enunciated by the Court in Buie to the
protective sweep of a residence when the defendant was arrested just outside the door
of the residence). 	The location of the arrest outside the home is relevant in
determining whether officers had the requisite “reasonable articulable suspicion” of
a threat to their safety. 	Colbert, 76 F.3d at 776-77; see Henry, 48 F.3d at 1284
(recognizing that the location of the arrest outside the dwelling is relevant to the issue
of whether the officers could reasonably fear an attack by someone inside). We are

9
not persuaded that the protective sweep in this case was reasonable because the State
failed to show that the agents had sufficient articulable facts to reasonably conclude
that other people might be hiding who posed a threat to the agents or others at the
arrest scene. 	See United States v. Carter, 360 F.3d 1235, 1242 (10th Cir. 2004)
(holding that officers were not justified in conducting a protective sweep of the
suspect’s garage and backyard incident to his arrest for possession of marijuana in the
back yard because the government pointed to “no specific, articulable facts”
suggesting that someone else was on the premises who posed a danger to the officers);
Colbert, 76 F.3d at 778 (holding that an officer’s lack of information “cannot be an
articulable basis for a sweep that requires information to justify it in the first place”).
{15} 	Our review of the testimony at the suppression hearing indicates an absence of
any facts suggesting the presence of, much less any danger posed by, other persons
on the scene. Burrell admitted he had no facts to suggest that anyone else was in the
house, and he admitted that he neither saw nor heard any movement in the house. To
the extent other agents conducted surveillance of the residence before Burrell arrived,
they also failed to detect the presence of any other persons. We therefore conclude
that the search was unwarranted because there was no evidence to support any specific
safety concerns involving any other persons at the arrest scene. See United States v.
Chaves, 169 F.3d 687, 692 (11th Cir. 1999) (holding that “in the absence of specific
and articulable facts showing that another individual, who posed a danger to the

10
officers or others, was inside the warehouse, the officers’ lack of information [could
not] justify the warrantless sweep” and dismissing the government’s argument that
someone must have been guarding the cocaine inside the warehouse as the kind of
“unparticularized suspicion or hunch” that Buie held was insufficient to justify a
warrantless sweep (internal quotation marks and citation omitted)).
{16} 	The State contends that other courts have determined that a protective sweep
incident to an arrest just outside a building and near an open door was justified “under
circumstances similar to those [in this case].” We are not persuaded by the application
of those cases here. All of the cases cited by the State as support for their argument
involve additional facts suggesting the presence of other persons or some type of
threat beyond the danger presented by an arrest near an open door, such as evidence
of ongoing crimes or violence at or near the time of the arrest.
{17} 	For example, in United States v. Lawlor, 406 F.3d 37, 39, 42 (1st Cir. 2005),
the court held a protective sweep incident to an arrest just outside the residence was
reasonable based upon evidence showing other persons at the scene, spent shotgun
shells on the floor in front of the door but no visible weapons, and a report of gun
shots at the scene. Likewise, in Henry, the court affirmed the reasonableness of the
protective sweep because there was uncontroverted testimony that “[t]he informant
had advised officers that [the defendant] would have weapons and that [the
defendant’s associates] might be with him.” 48 F.3d at 1284. The court in Henry held

11
that “[t]his information, coupled with the arrest just outside the open door, was
sufficient to lead a reasonably prudent policeman to fear that he was vulnerable to
attack.” Id. Neither of these types of factual scenarios are present here.
{18} 	Turning to New Mexico case law, the State argues that affirmance is warranted
by our Supreme Court’s decision in State v. Jacobs, 2000-NMSC-026, 129 N.M. 448,
10 P.3d 127. 	In Jacobs, the Court held that the protective sweep was justified by
articulable facts even though the officers testified that they “had no way of knowing
who was in the house or what weapons might be there.” 	Id. ¶ 38. 	However, our
Supreme Court recognized that there was some evidence suggesting the presence of
other persons because the officers testified to seeing another person enter the house
and never seeing that person leave. Id. ¶¶ 36, 38. In addition to the possible presence
of other persons, there were threats to officer safety because the officers testified that
the defendant had told them there were guns and other weapons inside the house. Id.
¶ 38. Again, that is not the situation here.
{19} 	In sum, none of the cases cited by the State support the propriety of the sweep
in this case because there was no specific showing that Defendant and his wife were
armed or that other persons might be with them. Allowing the agents to justify the
protective sweep in the absence of information suggesting there may be a danger
posed by others would be “directly contrary to the Supreme Court’s explicit command
in Buie that the police have an articulable basis on which to support their reasonable

12
suspicion of danger from inside the home.” United States v. Archibald, 589 F.3d 289,
300 (6th Cir. 2009). 	Accordingly, we conclude that, based on the agents’ lack of
information, the sweep of Defendant’s house was unauthorized. See id. (recognizing
that “[c]learly Buie requires more than ignorance or a constant assumption that more
than one person is present in a residence”).
{20} 	Perhaps recognizing the consequences of the agents’ failure to show that
Defendant might be armed or that other persons might be with him, the State argues
the need to ensure officer safety. It contends that, in the interest of safety, the focus
must be on the nature of the crime for which the arrest is being sought, not whether
there are articulable facts that someone might be hiding on the premises, and notes the
dangerousness inherent to an in-house arrest. 	The State further contends that the
danger of conducting an in-house arrest on someone like Defendant, a fugitive wanted
for trafficking in narcotics, is sufficient to warrant a protective sweep. We disagree.
{21} 	Turning first to the State’s argument concerning the danger inherent to an in-
home arrest, we note that the United States Supreme Court in Buie rejected a similar
argument made by the state, specifically with regard to the inherent danger of an in-
home arrest for a violent crime. 494 U.S. at 334 n.2. The Court there made clear that
the justification for a protective sweep is based upon the threat posed by third persons,
not the threat posed by the arrestee, and thus the sweep is only allowed if “justified

13
by a reasonable, articulable suspicion that the house is harboring a person posing a
danger to those on the arrest scene.” Id. at 336.
{22} 	We are also not persuaded by the State’s contentions regarding the specific
danger posed by Defendant’s status as a fugitive suspected of trafficking in narcotics.
As an initial matter, the only testimony introduced at the suppression hearing
supporting the State’s contentions that the agents knew Defendant and his wife were
suspected of trafficking in narcotics and that they had an “extensive criminal history
involving a narcotics violation” is Defendant’s admission to an outstanding warrant
in Mississippi for possession of thirty-five pounds of marijuana at an unspecified time
in the past. 	We question whether this one-time possession charge constitutes an
“extensive history” or “trafficking.” 	Compare NMSA 1978, § 30-31-20(A)(3) and
(B) (2006) (defining trafficking as possession of “a controlled substance enumerated
in Schedule I or II that is a narcotic drug; . . . a controlled substance analog of a
controlled substance enumerated in Schedule I or II that is a narcotic drug; or . . .
methamphetamine, its salts, isomers and salts of isomers” with intent to distribute and
stating that such trafficking is punishable as a first or second degree felony), with
§ 30-31-22(A)(1)(a) and (b) (defining possession with intent to distribute marijuana
in an amount less than one hundred pounds as a third or fourth degree felony).
{23} 	Furthermore, even assuming the agents did know that Defendant and his wife
were fugitives on outstanding warrants involving possession of marijuana, we are not

14
convinced this knowledge provides sufficient justification for the protective sweep
without some evidence of ongoing drug trafficking or the presence of other potentially
dangerous persons. 	See Colbert, 76 F.3d at 777 (stating that factors regarding the
dangerousness of the arrestee, such as the arrestee’s status as an escapee wanted for
murder and his possible involvement in drug trafficking, are not appropriate in
determining whether officers reasonably believed someone else might be in the house
who poses a danger to them thus justifying a protective sweep); Henry, 48 F.3d at
1284 (holding that the officers’ awareness that the defendant could be dangerous and
that he had a previous weapons conviction was not enough to justify the sweep
because, once the defendant was in custody, “he no longer posed a threat to the
police”); United States v. Akrawi, 920 F.2d 418, 420-21 (6th Cir. 1990) (holding that
officers were not justified in conducting a protective sweep incident to the defendant’s
arrest despite the defendant’s alleged involvement with narcotics and possession of
weapons because the defendant did not resist and there was no noise or other evidence
suggesting anyone else was present in the house).
{24} 	The State cites to State v. Lara, 110 N.M. 507, 514, 797 P.2d 296, 303 (Ct.
App. 1990), in support of its argument that this Court should focus on the serious
nature of the crime for which the arrest is sought. Specifically, the State relies on the
holding in that case where we concluded that the protective sweep was justified in part

15
because of “the violent nature of the crime that had just occurred.” Our review of
Lara indicates the State’s reliance is misplaced.
{25} 	First, we question the precedential impact of Lara on the issue of the propriety
of a protective sweep because the Court’s discussion of that issue is dicta insofar as
we had already determined that, even if the sweep was unlawful and the evidence
wrongfully admitted, the defendant was not harmed by the wrongful admission. Id.
at 512-513, 797 P.2d at 301-302. 	Furthermore, we are not persuaded by the
application of the analysis in Lara to this case because, in Lara, the officers conducted
the protective sweep after finding and arresting the defendant inside the house while
investigating a violent crime that “had just occurred” inside of the house. Id. at 511,
514, 797 P.2d at 300, 303.
{26} 	In contrast to the facts in Lara, the agents here were not investigating a violent
crime that “had just occurred” inside the house or even within New Mexico. Instead,
they were merely serving an arrest warrant for a crime that had taken place in
Mississippi at some unspecified point in the past. In any event, Lara does not compel
a conclusion that a protective sweep is justified based on the serious nature of the
crime being investigated. See, e.g., United States v. Hogan, 38 F.3d 1148, 1149-50
(10th Cir. 1994) (holding that the protective sweep incident to the defendant’s arrest
in front of his house on suspicion of murder was not justified because the evidence
that an accomplice was involved in the murder did not equate to evidence that

16
someone would be hiding out in the defendant’s house a month after the crime
occurred, and at the time of the arrest, the officers were not chasing the defendant
from a crime scene).
{27} 	The State also relies on a number of federal cases that it maintains support its
position that protective sweeps are justified if incident to the arrests of drug traffickers
or fugitives because “drug trafficking frequently begets violence.” 	However, our
review of these cases reveals facts beyond the arrestee’s status as a drug offender,
including facts suggesting that other persons were present, facts indicating that the
officers were already in the house searching for the defendant at the time of the sweep,
or other evidence of an ongoing criminal operation in the house. 	See, e.g., United
States v. Green, 560 F.3d 853, 856 (8th Cir. 2009) (noting the presence of four other
people in the house in addition to the defendant and that the defendant was only
located after the officers began the protective sweep); United States v. Cash, 378 F.3d
745, 746-47 (8th Cir. 2004) (affirming the protective sweep when the evidence
showed that on the day the defendant was arrested inside her house on outstanding
warrants, an informant had told the officers that the defendant possessed a large
quantity of drugs, the informant had seen drugs in the house, and the officers had
testified that the defendant had exhibited extremely nervous behavior toward them and
that she attempted to conceal a shopping bag located in plain view); United States v.
Smith, 131 F.3d 1392, 1396 (10th Cir. 1997) (holding that the officers were justified

17
in conducting a protective sweep incident to the defendant’s arrest on outstanding
warrants because the officers had information that the defendant was suspected of
running a methamphetamine operation on the premises, other people were living there
and assisting the defendant, and at the time the sweep began, the defendant had not
yet been located); United States v. Patrick, 959 F.2d 991, 994, 996 (D.C. Cir. 1992)
(holding that the officers were entitled to conduct a protective sweep because they
located the defendant in the house, there were other people present, and the defendant
was actively trying to conceal drugs), abrogated on other grounds by Apprendi v. New
Jersey, 530 U.S. 466 (2000). In this case, the agents were merely trying to serve an
arrest warrant, and when they did so, they found Defendant in the back yard. They
were not investigating drug trafficking or any other ongoing crime that was allegedly
taking place inside the residence. 	Cf. Buie, 494 U.S. at 334 n.2 (noting that “the
existence of the arrest warrant implies nothing about whether dangerous third parties
will be found in the arrestee’s house”).
{28} 	We acknowledge the State’s assertion that officers making an arrest in or just
outside of a residence may “face grave dangers, sometimes greater than those they
face on the street.” However, we must adhere to the requirements imposed by Buie,
including the need for articulable facts to support a reasonable inference of a threat to
officer safety posed by other individuals, which serve to “strike[] the proper balance
between officer safety and citizen privacy.” 494 U.S. at 334 n.2. In State v. Spencer,

18
848 A.2d 1183, 1196 (Conn. 2004), the Connecticut Supreme Court observed that
officers risk possible harm in “nearly every arrest involving a large quantity of drugs,
in or just outside of a home[.]” “To allow the police to justify a warrantless search
based solely upon that possibility would threaten to swallow the general rule requiring
search warrants.” Id.; see Colbert, 76 F.3d at 777 (observing that, “[i]f district courts
are allowed to justify protective sweeps based on the dangerousness of the arrestee,
nearly every arrest taking place in or near a home will include a protective sweep”).
{29} 	Accordingly, we disagree with the State that out-of-state charges for possession
of thirty-five pounds of marijuana provide sufficiently specific evidence that
Defendant “might” be accompanied by accomplices who “might” resort to violence
to thwart the arrest or who “might” use violence “to protect their drug business.”
Rather, our review of the record indicates a complete lack of any specific evidence
suggesting that Defendant was engaged in an enterprise involving accomplices, such
as middlemen, partners, growers, couriers, enforcers, or armed security personnel.
Furthermore, at the time of the sweep, the agents had no evidence that would lead one
to believe that Defendant and his wife were ever engaged in drug trafficking in New
Mexico, nor any evidence that there might be narcotics or weapons in their home.
Without such evidence, the State failed to provide specific, articulable facts to
establish a reasonable belief that Defendant’s residence might harbor a dangerous
individual so as to warrant a protective sweep. See Buie, 494 U.S. at 336-37.

19
{30} 	Finally, because we determine that the protective sweep was unjustified, the
limited extent of that sweep does not serve to remedy the unwarranted intrusion into
Defendant’s home. 	See Buie, 494 U.S. at 334 n.2 (rejecting the government’s
contention that a protective sweep is such a de minimis intrusion such that no level of
objective justification should be required); Hogan, 38 F.3d at 1150 (recognizing that
the justification for a protective sweep of even a few minutes would be questionable
in light of the officer’s concession that after arresting the defendant in front of his
house, the officer could have just put the defendant in the car and driven away).
Moreover, given the illegal nature of the protective sweep, the resulting search
warrant is also invalid because it was based upon evidence tainted by the illegal entry,
and all of the evidence seized from Defendant’s home must be suppressed as the fruit
of the initial illegal entry. 	See Trudelle, 2007-NMCA-066, ¶ 40 (recognizing that
evidence obtained from a search that is “conducted pursuant to a warrant based
partially on tainted information gathered during a prior illegal search” is also tainted
and must be suppressed (internal quotation marks and citation omitted)); State v.
Ingram, 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151 (“Evidence which is
obtained as a result of an unconstitutional search . . . may be suppressed under the
exclusionary rule.” (internal quotation marks and citation omitted)). The district court
erred in denying Defendant’s motion to suppress.
New Mexico Constitution

20
{31} 	Because we hold that the protective sweep 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. See State v. Montano, 2009-NMCA-130,
¶ 23, 147 N.M. 379, 223 P.3d 376.
CONCLUSION
{32} 	For the reasons set forth above, we reverse the district court’s order denying
Defendant’s motion to suppress.
{33} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
TIMOTHY L. GARCIA, Judge
_________________________________
J. MILES HANISEE, Judge