November 18, 2009 – State of New Mexico v. Don Winton, No. 28,276

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 18, 2009
NO. 28,276
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
DON WINTON,
Defendant: A ppellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

Gary K. King, Attomey General
Santa Fe, NM

James W. Grayson, Assistant Attomey General
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
VIGIL, Judge.
{1} 	Defendant appeals the denial of his motion to suppress evidence found on him
as a result of a search and seizure during the execution of a no-knock warrant. We
hold that Defendant’s Fourth Amendment rights were not violated when police
detained Defendant for fifteen minutes while the warrant was being executed or when
they subsequently conducted a pat-down search of Defendant. We therefore affirm
the district court order denying Defendant’s motion to suppress.
FACTUAL AND PROCEDURAL HISTORY
{2} 	Officers from the Clovis Police Department arrived at 1822 Hammett Street at
approximately 8:00 a.m. to execute a search warrant on the residence and person of
Joseph Sandoval. 	The search warrant contained a no-knock provision “for officer
safety” based upon the affidavit which stated the subject property contained “drugs,
guns, and money” and that Sandoval “was not afraid to shoot someone if necessary.”
{3} 	When the police arrived at 1822 Hammett Street, they encountered Defendant
and a friend who were leaving the property at 1824 Hammett Street and entering the
property at 1822 Hammett Street to return to their vehicle. Defendant testified that
he had paid a visit to his friend’s house located at 1824 Hammett Street to play
foosball. At the time officers arrived, both men were located approximately twenty

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to twenty-five feet from Sandoval’s trailer. 	Both Defendant and his friend were
ordered to the ground. While face down on the ground, an officer further restrained
Defendant at gun point with his boot on Defendant’s neck. The officer kept his boot
on Defendant for about five minutes, and kept Defendant on the ground for another
ten minutes. In total, Defendant remained on the ground for approximately fifteen
minutes while other officers executed the warrant.
{4} 	Officer Hengst testified that after searching the residence, he exited to find both
men lying “unsecured” on the ground. He approached the men and placed handcuffs
on Defendant. He observed a knife in Defendant’s back pocket and then removed it.
The district court found that the knife had been “plainly visible.” 	Officer Hengst
asked Defendant if he had any more knives on him, and Defendant stated that he
might have another knife. While continuing to pat Defendant down, Officer Hengst
felt a hard object in Defendant’s jacket pocket. Believing it may be another knife,
Officer Hengst asked Defendant if it was a knife. Defendant said he thought it was
and gave Officer Hengst permission to remove it after Officer Hengst requested such
permission. As Officer Hengst pulled the object out, which turned out to be a cellular
telephone, a glass pipe fell out of Defendant’s pocket and onto the ground. Based on
his training and experience, Officer Hengst immediately recognized the pipe to be one
commonly used to ingest drugs and believed it contained methamphetamine residue.

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Defendant was placed under arrest, and a search of his person yielded a baggy of
suspected methamphetamine. Defendant was subsequently charged with possession
of a controlled substance and possession of drug paraphernalia, contrary to NMSA
1978, Section 30-31-23 (2005) and NMSA 1978, Section 30-31-25.1(A) (2001).
{5} 	Defendant moved the district court to suppress the evidence arguing it was
unlawfully discovered after a warrantless and nonexceptional search. Defendant first
asserted that the search warrant for 1822 Hammett Street did not give the police the
authority to detain and search him. 	Without such authority under the warrant,
Defendant argued that police lacked specific and articulate facts to support a
warrantless search of his person. Further, under State v. Graves, 119 N.M. 89, 888
P.2d 971 (Ct. App. 1994), Defendant argued that his mere presence during the
execution of a search warrant did not justify the officer’s actions.
{6} 	The bulk of the testimony and argument at the suppression hearing centered on
Defendant’s location and the layout of the premises subject to the warrant. 	The
property subject to the search warrant, 1822 Hammett Street, was located on a lot
adjacent to 1824 Hammett Street. While there is conflicting evidence whether a fence
separated the properties, Officer Hengst testified that he believed Defendant was
located on the property described in the warrant when he first saw Defendant. The
district court found that when Defendant was seized he was outside the property line

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where 1822 Hammett Street was located. However, the district court further found
that Defendant had been on the property described in the search warrant earlier when
he parked his vehicle, and he was returning to it when the police arrived. Finally, the
district court found that this is a “family compound with reciprocal access among the
structures.” Therefore, concluded the court, Defendant was in a location where he
could be lawfully searched during the execution of the warrant.
{7} 	After Defendant’s motion was formally denied, Defendant entered into a
conditional plea, reserving his right to appeal the denial of his motion to suppress.
DISCUSSION
STANDARD OF REVIEW
{8} 	Appellate review of a motion to suppress involves a mixed question of fact and
law. 	State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. Factual
questions are reviewed for substantial evidence, and all facts are viewed in a light
most favorable to the prevailing party. State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-
18, 134 N.M. 566, 81 P.3d 19. Furthermore, “all reasonable inferences in support of
the court’s decision will be indulged in, and all inferences or evidence to the contrary
will be disregarded.” State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994)
(internal quotation marks and citation omitted). 	Legal questions are reviewed de
novo. State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836.

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PRESERVATION
{9} 	The State first contends that Defendant failed to preserve the challenge to his
detention during the execution of the warrant. 	See Rule 12-216(A) NMRA (“To
preserve a question for review it must appear that a ruling or decision by the district
court was fairly invoked.”). The State emphasizes the distinction between the analysis
for a search and the analysis for a seizure and asserts Defendant did not fairly invoke
a ruling on the seizure issue. 	The record indicates that at the suppression hearing
before the district court Defendant argued, “There must be . . . articulate facts to
justify the detention of searching an individual.” 	We conclude that Defendant’s
argument was sufficient to properly preserve the issue.
{10} 	The State also asserts Defendant failed to properly assert an independent state
constitutional claim. 	See State v. Ochoa, 2009-NMCA-002, ¶ 9, 146 N.M. 32, 206
P.3d 143, cert granted, 2008-NMCERT-012, 145 N.M. 572, 203 P.3d 103 (stating that
to preserve such actions, the “‘party also must assert in the trial court that the state
constitutional provision at issue should be interpreted more expansively than the
federal counterpart and provide reasons for interpreting the state provision differently
from the federal provision’”) (quoting State v. Gomez, 1997-NMSC-006, ¶ 23, 122
N.M. 777, 932 P.2d 1). Defendant’s only reference to the New Mexico Constitution
occurred at the suppression hearing, at which time Defendant concluded his argument

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with: “New Mexico, as you know, takes a stronger view on search and seizure issues
and personal freedoms than the Supreme Court of the United States.” We agree with
the State that this statement alone is insufficient. Ochoa, 2009-NMCA-002, ¶ 9. As
such, we do not consider whether the New Mexico Constitution provides greater
protection than the United States Constitution in this case.
SEIZURE OF DEFENDANT
{11} 	We begin our analysis with the initial detention of Defendant during the
execution of the search warrant. The text of the warrant limited the search to:
Joseph Sandoval . . . and 1822 Hammett St. Clovis, New Mexico, a
single family dwelling located to the north of a blue and white single
wide trailer house inside a fenced area. 	The residence of Joseph
Sandoval, is also a single wide trailer house that has a white fence in
front of it. The house is white with an off white trim around it and has
a large wood and metal barn behind the residence. 	The area to be
searched includes all buildings, outbuildings, and vehicles located within
the curtilage of the property surrounding the residence. 	The blue and
white trailer house is believed to be the residence of Sandoval’s father
and will not be searched.
Defendant was neither named in the warrant, nor did the district court find that
Defendant was on the property to be searched. As such, the text of the warrant did not
provide the police with the explicit authority to seize and search Defendant. 	See
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394
n.7 (1971) (“[T]he Fourth Amendment confines an officer executing a search warrant

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strictly within the bounds set by the warrant.”). Thus, the initial seizure of Defendant
required an alternative justification separate from the text of the search warrant.
“Warrantless seizures are presumed to be unreasonable and the State bears the burden
of proving reasonableness.” State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582,
158 P.3d 1025.
{12} 	In Michigan v. Summers, 452 U.S. 692 (1981), the United States Supreme Court
held, “a warrant to search for contraband founded on probable cause implicitly carries
with it the limited authority to detain the occupants of the premises while a proper
search is conducted.” 	Id. at 705 (footnotes omitted). 	Detention of those present
during the execution of a warrant promotes legitimate law enforcement interests,
including “(1) preventing flight in the event that incriminating evidence is found, (2)
minimizing the risk of harm to [law enforcement] officers, and (3) facilitating the
orderly completion of the search.” 	State v. Madsen, 2000-NMCA-050, ¶ 15, 129
N.M. 251, 5 P.3d 573 (alteration in original) (internal quotation marks and citation
omitted).
{13} 	In Graves, we addressed whether the detention of a non-resident at a home
described in a search warrant was permissible. 119 N.M. at 92, 888 P.2d at 974. We
held that a visitor’s mere presence was not sufficient to justify the detention or search
of the visitor. Id. at 93, 888 P.2d at 975. We described the requirement as “presence

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plus.” Id. We stated that “in order to justify the detention of visitors there must be
facts present that would render it reasonable under the circumstances.” Id. at 94, 888
P.2d at 976; State v. Cassola, 2001-NMCA-072, ¶ 14, 130 N.M. 791, 32 P.3d 800
(“[O]fficers may not lawfully detain non-residents on the premises during a search
pursuant to a warrant unless the officers have a reasonable basis to believe that the
non-resident has some type of connection to the premises or to criminal activity.”
(internal quotation marks and citation omitted)); see also State v. Martinez, 1996-
NMCA-109, ¶ 34, 122 N.M. 476, 927 P.2d 31 (holding that officers cannot detain a
non-resident who is present during a drug raid on a home on the basis of his mere
presence).
{14} 	Summers and Graves are not factually identical to the case before us. Summers,
452 U.S. at 693, dealt with the resident of the premises to be searched, and Graves,
119 N.M. at 91, 888 P.2d at 973, involved a visitor inside the premises being searched.
Defendant was neither. He was, however, twenty feet from the house to be searched,
and Officer Hengst thought Defendant was located on the property to be searched. At
the time of the initial seizure, police did not know who Defendant was, or whether he
had any connection to the criminal activity described in the warrant. Furthermore, the
search warrant included a “no-knock provision approved for officer safety.” 	The
affidavit in the warrant included information on the possible presence of narcotics,

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weapons, and “multiple cameras surrounding [the] residence.” Additionally, police
had information that the subject of the warrant “was not afraid to shoot someone if
necessary.” The officers in this case were entering a potentially volatile situation with
substantial risks to their safety.
{15} 	In the circumstances of this case, we conclude it was reasonable for the police
to temporarily seize and detain Defendant to determine his identity and connection to
the property to be searched and to protect the safety of the officers and anyone else
present. Summers, 452 U.S. at 702-03. We add that the seizure and detention must
be “for the period of time required and in the manner necessary” to accomplish these
purposes. 	People v. Glaser, 902 P.2d 729, 740 (Cal. 1995). 	Defendant does not
challenge the manner in which he was detained, but he does challenge the length of
his detention, which we now address.
LENGTH OF DEFENDANT’S DETENTION
{16} 	Defendant next argues that his detention of fifteen minutes during the execution
of the warrant was unreasonable. We agree with Defendant that an otherwise lawful
seizure can become unreasonable if police fail to “pursue[] a means of investigation
that was likely to confirm or dispel their suspicions quickly, during which time it was
necessary to detain the defendant.” 	United States v. Sharpe, 470 U.S. 675, 686
(1985). We have also specifically held that Summers does not authorize the prolonged

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detention of a non-resident who is merely on the premises to be searched and has no
connection to the underlying criminal activity. Graves, 119 N.M. at 94, 888 P.2d at
976.
{17} 	A “detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop. 	Similarly, the investigative methods employed
should be the least intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” 	Florida v. Royer, 460 U.S. 491, 500
(1983); see also Graves, 119 N.M. at 94, 888 P.2d at 976 (determining whether a
detention is reasonable requires examining “whether the officers diligently pursued
a means of investigation that would dispel or confirm their suspicions quickly”
(internal quotation marks and citation omitted)). 	We look to see “‘[W]hether the
officer’s action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.”’ State
v. Cohen, 103 N.M. 558, 561, 711 P.2d 3, 6 (1985) (alteration in original) (quoting
Sharpe, 470 U.S. at 675-76). 	We “consider the law enforcement purposes being
served as well as the time reasonably needed to effectuate their purposes.” Id. We are
careful 	not 	to 	engage 	“unrealistic 	second-guessing” 	when 	determining 	the
reasonableness of the length of a detention. Sharpe, 470 U.S. at 686.
{18} 	We conclude that Defendant’s fifteen-minute detention was reasonable under

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the circumstances. 	Defendant was seized at the inception of the execution of the
warrant. After searching the home for fifteen minutes, Officer Hengst immediately
investigated Defendant who was outside, lying on the ground, and “unsecured.”
Nothing in the record that indicates Officer Hengst specifically, nor the police
generally, were not diligent in executing the warrant and securing the premises. It is
unrealistic to require police officers to determine the identity and connection, if any,
of persons located on or in close proximity to the property to be searched before they
secure the premises, particularly where drugs and weapons may be the subject of the
search. As the court in Cotton v. State, 872 A.2d 87, 92-93 (Md. 2005) reasoned:
It really cannot be otherwise. The police do not know who may be at the
scene when they arrive. The people they find there, in or on the property
to be searched, are not wearing identifying labels–supplier, customer,
processor, bodyguard, innocent bystander. 	It would be decidedly
unreasonable to expect the police simply to give a friendly greeting to
the folks there and proceed to search the house without another thought
as to who those people are or what they may do.
{19} 	Additionally, this case is decidedly different than Graves. In Graves, police
unreasonably detained the defendant for at least thirty minutes after they had
determined he had no connection to the underlying criminal activity. 119 N.M. at 94-
95, 888 P.2d at 976-77. In this case, the police had not established whether Defendant
was a resident of 1822 Hammett Street, or whether he had any connection to the
purpose of the warrant prior to the fifteen-minute detention.

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{20} 	We cannot say that the police acted unreasonably in detaining Defendant for
fifteen minutes.
PAT-DOWN SEARCH OF DEFENDANT
{21} 	Defendant challenges the subsequent pat-down search of his person. A frisk for
weapons first requires that an officer have a sufficient degree of articulable suspicion
that the person being frisked is both armed and dangerous. 	Vandenberg, 2003-
NMSC-030, ¶ 22. “[W]e must balance the threat posed to officer safety under the
circumstances, against the individual’s right to personal security free from arbitrary
interference by law officers.” Id. ¶ 23 (internal quotation marks and citation omitted).
{22} 	The district court found the pat-down search of Defendant reasonable because
“[Defendant’s] knife was plainly visible in his back pocket.” 	Defendant insists
Officer Hengst discovered the knife after he initiated the pat-down search. Because
an officer’s justification for a pat-down search must exist at the search’s inception,
Defendant argues Officer Hengst did not have the requisite justification necessary to
pat Defendant down. 	Defendant’s argument requires us to ignore our standard of
review. Substantial evidence and reasonable inferences from that evidence support
the district court finding that the knife was plainly visible in Defendant’s jacket pocket
because Defendant was lying down on the ground on his stomach when Officer
Hengst arrived.

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CONCLUSION
{23} 	For 	the 	foregoing 	reasons, 	we 	affirm 	the 	district 	court 	order 	denying
Defendant’s motion to suppress.
{24} 	IT IS SO ORDERED.
________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

ROBERT E. ROBLES, Judge

LINDA M. VANZI, Judge

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