February 2, 2017- State of New Mexico v. Aaron A. Ramos, No. 34,410

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: February 2, 2017
NO. 34,410
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
AARON A. RAMOS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Jerry H. Ritter Jr., District Judge
Hector H. Balderas, Attorney General
Maha Khoury, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Aaron A. Ramos was convicted of possession of a controlled
substance (methamphetamine) and was found not guilty of battery on a household
member. Defendant makes two arguments on appeal: (1) that the police violated his
constitutional right to be free from unreasonable searches and seizures when they
entered his home without a warrant and without authority to do so, and (2) that the
district court erred when it failed to grant Defendant’s motion to sever the charges and
hold separate trials for the battery on a household member charge and the possession
of methamphetamine charge. We hold that the police improperly entered Defendant’s
home without a warrant because no valid exception to the warrant requirement
applied. We further hold that the evidence seized should have been suppressed, and
we therefore reverse the district court’s order denying Defendant’s motion to suppress.
Because Defendant was acquitted on the battery against a household member charge,
his severance-related arguments are moot.
BACKGROUND
{2} 	In March 2013 Defendant was charged with battery against a household
member, contrary to NMSA 1978, Section 30-3-15 (2008), and possession of drug

1 The possession of drug paraphernalia charge was dismissed prior to trial.
2
paraphernalia,1 contrary to NMSA 1978, Section 30-31-25.1(A) (2001), following an
alleged domestic violence incident that occurred on March 7, 2013. In May 2013 he
was also charged with possession of a controlled substance, contrary to NMSA 1978,
Section 30-31-23(E) (2011), which similarly arose after law enforcement responded
to the incident on March 7, 2013. The cases were ultimately joined in August 2013,
and the State re-filed its criminal information to reflect the consolidated charges.
{3} 	Defendant filed a motion to suppress evidence found in his apartment after
police responded on March 7, 2013, on the ground that “[t]he search of Defendant’s
apartment and subsequent seizure of alleged controlled substance was without a
warrant, without exigency, and without lawful right of access to the premises.” During
the hearing on the motion to suppress, relevant testimony was elicited from Brittney
Priddy, the alleged victim in the domestic dispute; Officer Tillman Freeman, a patrol
officer with the Ruidoso Police Department; and Sergeant Mike Weaver, also with the
Ruidoso Police Department.
{4} 	Ms. Priddy testified that she and Defendant had dated in the past. She also
testified that she told the officers that “there was a possibility” that Defendant was the
biological father of Ms. Priddy’s daughter. On March 7, 2013, Ms. Priddy called the
police, and the police responded to her location at a condominium complex on Carrizo

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Canyon in Ruidoso, New Mexico. When asked by the State where she lived on March
7, 2013, Ms. Priddy testified that she “stayed” with her dad but that she had been
staying with Defendant for three to four days at his apartment, sharing the only
bedroom. She was not on Defendant’s lease agreement nor did she pay any rent.
Defendant had asked her on March 6 to pay money for staying there.
{5} 	Ms. Priddy further testified that, when staying with Defendant, she would gain
access to the apartment either with Defendant, or she would just enter when the door
was unlocked. She never had her own key but sometimes Defendant would hand her
his keys. Defendant did not restrict Ms. Priddy’s access to any areas of the apartment
when she was inside. Ms. Priddy indicated that during her stay, she had kept some of
her clothes and some of her daughter’s clothes at the residence. She testified that she
had tried to leave the night before and had put her and her daughter’s clothing into a
box but ended up staying the night.
{6} 	Ms. Priddy also testified that after the alleged altercation with Defendant on
March 7, 2013, she ended up outside of the residence and called the police. She
testified that when the police arrived Defendant was not present. Ms. Priddy, who was
unable to access the residence, asked the police for help in getting her things out of
the apartment. Ms. Priddy told the officers that she did not live there and was not on
the lease, but had been staying there. At that point, according to her testimony, the

2 Although Sergeant Weaver testified that Ms. Priddy said no one was inside,
he later testified that when he approached the apartment, there was concern that there
could possibly be someone “or Mr. Ramos” inside of the residence. There is nothing
in the record to indicate that Sergeant Weaver specifically asked whether Defendant
was in the apartment.
3 Sergeant Weaver apparently took Ms. Priddy’s statement that “everything was
inside” to mean that her key was inside, although Ms. Priddy never said she had a key.
4
police gained access to the residence, which was on the second story, and brought Ms.
Priddy her box of clothes while she waited downstairs.
{7} 	Sergeant Weaver received a call for service on March 7, 2013, in reference to
900 Carrizo Canyon regarding a “violent domestic.” He was the first officer to arrive
to the scene. Upon arrival, Sergeant Weaver made contact with Ms. Priddy and asked
her if she needed to get any items out of the residence. He apparently asked her this
question because she did not have anything with her and “anybody would probably
need some personal clothing or toiletry-type items.” Sergeant Weaver asked Ms.
Priddy if anyone was inside of the residence, to which she responded, no.2 When
asked whether she had a key, Ms. Priddy said that everything was inside. 3 Sergeant
Weaver testified that Ms. Priddy had said that she had been staying at the apartment,
and Sergeant Weaver was aware that Ms. Priddy and Defendant had some sort of
relationship based on previous incidents. Sergeant Weaver noted that the door was
locked and testified that he got a key from the maintenance man at the apartment
complex.

5
{8} 	Sergeant Weaver did not “specifically recall” whether he or Ms. Priddy opened
the door, but he believed that he did because “there was a concern that there could
possibly be somebody inside the apartment.” Based on that concern, Sergeant Weaver
cleared the residence with Officer Freeman. After the officers cleared the residence,
Ms. Priddy gathered her clothes and some children’s clothes and put them in a box.
According to Sergeant Weaver, it took Ms. Priddy “not even maybe thirty seconds”
to gather her items. Sergeant Weaver also testified that after clearing the apartment,
while he and Ms. Priddy were downstairs, he noticed a vehicle, matching the
description of the vehicle Ms. Priddy had told him Defendant was in, pull into a large
parking lot “across the way.” Sergeant Weaver also testified that he was told that Ms.
Priddy had been staying at the apartment for two days at the time of the incident.
{9} 	Officer Freeman also testified that on March 7, 2013, he received a call to 900
Carrizo Canyon regarding a “violent domestic in progress.” Ms. Priddy asked Officer
Freeman to assist her in obtaining her belongings. According to Officer Freeman, Ms.
Priddy stated that her personal belongings and her child’s belongings were in the
apartment. She told Officer Freeman that she had been staying there recently. After
Sergeant Weaver had obtained a key from a maintenance man, the officers entered the
apartment. Before the officers entered, they asked Ms. Priddy whether anyone was in
the apartment, and she stated that she did not know because she was asleep and was

4 The officers’ testimony that Ms. Priddy collected her property from the
apartment is inconsistent with Ms. Priddy’s testimony that the officers entered the
apartment and brought her the box of clothes while she waited downstairs. Despite the
factual discrepancy, neither party highlighted the divergent testimony on appeal.
6
unsure if someone had entered prior to her waking up. The officers were also told,
prior to entering, that a firearm was possibly obtained by Defendant. Upon entering
the apartment, the officers cleared the residence to ensure the safety of the officers and
Ms. Priddy. In clearing the residence, the officers looked in places where a person
could be located or hiding. Officer Freeman was also told by Ms. Priddy that
Defendant had “possibly left in a white SUV [and] possibly had a . . . firearm . . . with
him.”
{10} 	Officer Freeman testified that, after clearing the residence, Sergeant Weaver
stood with Ms. Priddy while she obtained her and her child’s property.4 At that point,
Officer Freeman saw, in plain view, what he believed to be drug paraphernalia on a
coffee table in the living room of the apartment. He saw these items after clearing the
apartment. He photographed the items, and the items were ultimately seized.
{11} 	Officer Freeman testified that the purpose of entering the apartment was so that
Ms. Priddy could obtain her property. Officer Freeman acknowledged that Ms. Priddy
had told him that drug paraphernalia could be present in the apartment but stated that
the paraphernalia was not the officers’ priority when entering the apartment. When

7
asked whether he made any attempts to determine if Ms. Priddy’s access to the
residence was lawful, Officer Freeman stated that he learned that Ms. Priddy and
Defendant had a relationship and that she had been staying at the residence recently
with her child. When asked whether he had consent to enter the residence, Officer
Freeman stated that he had consent from Ms. Priddy.
{12} 	After the hearing on the motion to suppress, the district court denied
Defendant’s motion. In its order, the court found, in relevant part:
1. 	It was reasonable for officers to believe that [Ms.] Priddy
had authority to enter the residence located at 900 Carrizo Canyon,
Apartment 235 to retrieve her personal items.
2. 	The Officers[’] conduct in assisting Ms. Priddy to retrieve
her items was reasonable and consistent with their duties under the
Family Violence Protection Act. [NMSA 1978,] §§ 40-13-1 to -12
[(1987, as amended through 2016)]; see also State v. Almanzar, 2014-
NMSC-001, ¶¶ 19-20, [316] P.3d 183.
3. 	Officer Freeman and Sergeant Weaver were acting pursuant
to their duties as community caretakers. “The community caretaker
exception recognizes that warrants, probable cause, and reasonable
suspicion are not required when police are engaged in activities that are
unrelated to crime-solving.” State v. Ryon, 2005-NMSC-005, ¶ 24, 137
N.M. 174, 108 P.3d 1032. When Officer Freeman and Sergeant Weaver
entered the residence, they were no[t] engaged in activities related to
crime-solving.
4. 	It 	was 	reasonable 	for 	officers 	to 	conduct 	a 	limited,
protective search of the residence to determine whether any other
individuals were present that could pose a danger to both the officers and
Ms. Priddy.

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{13} 	The day before trial, Defendant filed a motion to reconsider his motion to
suppress. Defendant argued that the State failed to prove actual common authority and
that apparent authority was insufficient. The court denied the motion to reconsider.
DISCUSSION
A. 	Standard of Review
{14} 	We quote the standard of review in its entirety from State v. Hernandez, 2016-
NMCA-008, ¶ 10, 364 P.3d 313, cert. denied, 2015-NMCERT-012, 370 P.3d 472.
When we review an appeal from a determination on a motion to suppress
in a criminal case, we look at the totality of circumstances. We view the
facts in a light most favorable to the prevailing party. At the same time,
if the district court makes findings of fact, and if any finding is attacked
for lack of substantial evidence, we will review the finding under a
substantial evidence standard of review. If the finding is supported by
substantial evidence, we will defer to the court’s finding. Once the
operative 	facts 	are 	ascertained, 	we 	review 	the 	constitutional
reasonableness of the actions of law enforcement. A constitutional
reasonableness analysis engages a process of evaluating both fact and
law and is appropriately labeled a mixed question of fact and law.
Despite the fact that our review requires determinations of what the
operative facts are, because the process involves evaluative judgments
in regard to reasonableness, we review the district court’s determination
de novo.
(Citations omitted.)
{15} 	The United States and New Mexico Constitutions prohibit unreasonable
searches and seizures. U.S. Const. amend. IV; N.M. Const. art. II, § 10. “The
touchstone of search and seizure analysis is whether a person has a constitutionally

9
recognized expectation of privacy.” State v. Ryan, 2006-NMCA-044, ¶ 19, 139 N.M.
354, 132 P.3d 1040 (internal quotation marks and citation omitted). “Among the areas
afforded the greatest protection by these constitutional provisions is a person’s home.”
State v. Monteleone, 2005-NMCA-129, ¶ 9, 138 N.M. 544, 123 P.3d 777. Therefore,
a warrantless entry and search of a home are “presumptively unreasonable, subject
only to a few specific, narrowly defined exceptions.” Ryon, 2005-NMSC-005, ¶ 23;
Monteleone, 	2005-NMCA-129, 	¶ 	10 	(“[A]bsent 	an 	exception 	to 	the 	warrant
requirement, the officers’ entry into [the d]efendant’s apartment was a violation of his
constitutional rights under both the United States and New Mexico Constitutions.”);
State v. Diaz, 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4 (“A search and seizure
conducted without a warrant is unreasonable unless it is shown to fall within one of
the exceptions to the warrant requirement.”). “The [prosecution] has a heavy burden
when it seeks to sustain a warrantless search.” Diaz, 1996-NMCA-104, ¶ 8.
{16} 	Defendant argues that the consent exception to the warrant requirement does
not apply because Ms. Priddy did not have the requisite authority to consent to entry
and search of the apartment. The State disagrees, arguing that Ms. Priddy did have the
authority to consent. According to Defendant, neither the Family Violence Protection
Act (FVPA) nor the community caretaker doctrine permits a warrantless entry in this
case. Defendant also argues that a protective sweep was not justified. The State argues

10
that the entry and search were reasonable under the FVPA and under the protective
sweep rule, and thus a warrant was not required. We address the possible application
of exceptions to the warrant requirement articulated by the parties.
B. 	Consent
{17} 	“A valid consensual search has been acknowledged as an exception to the
warrant requirement.” Id. ¶ 9. For consent to be valid, the party giving consent must
have actual authority to do so and not merely apparent authority. State v. Wright,
1995-NMCA-016, ¶¶ 18-20, 119 N.M. 559, 893 P.2d 455 (holding that, under the
New Mexico Constitution, the relevant inquiry is not whether officers reasonably
believed that authority to consent to enter existed, but rather whether the consenting
party actually had authority to consent). Our appellate courts have recognized that a
third party can validly consent to a search of an apartment, however, that individual
must have “common authority over the premises.” State v. Walker, 1998-NMCA-117,
¶ 8, 125 N.M. 603, 964 P.2d 164; see Diaz, 1996-NMCA-104, ¶ 9. “[C]ommon
authority refers to the mutual use of the property by persons generally having joint
access or control of the property for most purposes.” Walker, 1998-NMCA-117, ¶ 8.
“A sufficient relationship may be established by the following: (1) a right to occupy
the premises, (2) unrestricted access to the premises, and (3) storage of property on
the premises.” Ryan, 2006-NMCA-044, ¶ 29. The cases primarily relied upon by the

11
parties, Wright, 1995-NMCA-016, Diaz, 1996-NMCA-104, and Walker, 1998-
NMCA-117, are instructive.
{18} 	In Wright, two police officers approached a residence after receiving a tip that
illegal drugs had been delivered to the residence and were being divided up for sale.
1995-NMCA-016, ¶ 3. When the two officers neared the front door, but before they
had an opportunity to knock, a woman opened the door and said, “Hi.” Id. At the time,
neither officer knew who owned the residence but they asked the woman if they could
come inside and talk. Id. The woman gave no verbal response but opened the door
wider and stepped back inside the residence. Id. Once inside, one of the officers
indicated that he became concerned about his safety because there were several
vehicles outside of the residence, and yet, the only person they had encountered was
the woman who answered the door. Id. ¶ 4. The woman was asked if anyone else was
in the residence, to which she responded that only she and her children were in the
residence. Id. After the woman showed the officers that the children were asleep in a
bedroom, one of the officers noticed a light coming from under a door of a different
bedroom and asked if anyone was in that room. Id. The woman said she did not think
so. Id. When asked if he could look in the room, the woman responded, “ ‘Oh, it’s not
my place, but go ahead.’ ” Id. When one of the officers “started to open the door . . .
it was immediately closed from inside.” Id. The officers reopened the door and

12
discovered the defendant, her boyfriend, and what appeared to be drug paraphernalia.
Id. ¶¶ 1, 4-5. The defendant and her boyfriend were placed under arrest, and cocaine
was found on the defendant. Id. ¶ 5. The officers also found paraphernalia in the
boyfriend’s van that was parked outside of the residence. Id.
{19} 	The prosecution argued in Wright that although the woman who answered the
door did not have actual authority to grant consent to the officers’ warrantless entry
and search, apparent authority was sufficient. Id. ¶ 16. This Court disagreed and held
that reliance on the officers’ subjective belief that the woman had apparent authority
to give consent ran counter to the New Mexico Constitution. Id. ¶ 19. The Court
therefore held that “it was unreasonable for the officers . . . to rely on the consent of
[the woman] for the search of the closed bedroom occupied by [the defendant]” and
concluded that “where the [prosecution] relies upon consent to justify a warrantless
search of a residence, there is no ‘apparent authority’ exception under Article II,
Section 10 of the New Mexico Constitution.” Id. ¶ 20.
{20} 	In Diaz, this Court considered whether a homeowner-father could consent to
the search of his adult son’s bedroom. 1996-NMCA-104, ¶¶ 1, 4. In Diaz, law
enforcement approached the father’s residence after receiving a tip from a confidential
informant that there was marijuana at the residence. Id. ¶ 2. Upon their arrival, the
agents met the defendant-son in front of the father’s residence and explained that they

13
intended to secure the premises until a search warrant could be obtained. Id. ¶¶ 2-3.
The defendant waited outside of the residence while the agents spoke with the father
inside. Id. ¶ 3. The father apparently signed a consent to search form, and the agents
proceeded to search the residence without a warrant. Id. ¶¶ 4-5. The father told the
agents that he lived in the residence with his two sons: the defendant, who was
twenty-nine, and another son who periodically stayed there. Id. ¶ 4. The father stated
that he owned the residence, paid all the bills, and the sons did not pay rent. Id. Based
on the father’s consent, the agents searched the defendant’s bedroom that did not have
a door but which had a blanket hanging from the top of the door frame. Id. ¶ 5. The
agents ultimately found marijuana. Id. At no time did the agents ask the defendant for
consent to search his bedroom, despite the fact that the defendant was waiting in the
front yard. Id. ¶ 4.
{21} 	The Diaz Court ultimately held that the district court was correct to suppress
evidence discovered during the warrantless search because the prosecution failed to
show that the father “had both joint access for most purposes and mutual use of [the
d]efendant’s room.” Id. ¶¶ 1, 15. The Court held that the defendant “had far greater
access and control and a superior privacy interest” in the bedroom. Id. ¶ 16. The Court
also relied upon Wright’s rejection of the apparent-authority standard and held that the
prosecution’s argument that the agents had “no reason to doubt” the father’s authority

14
was 	insufficient 	because 	“under 	Article 	II, 	Section 	10 	of 	the 	New 	Mexico
Constitution, the [prosecution] was required to show the actual authority of [the
father] for his third-party consent to be valid.” Diaz, 1996-NMCA-104, ¶¶ 17-18.
{22} 	In Walker, this Court considered whether an alleged victim had common
authority to provide consent to search the apartment she shared with the defendant.
1998-NMCA-117, ¶¶ 1-2, 8. In Walker, the alleged victim had been living with the
defendant for approximately six years. Id. ¶ 2. With the exception of about one month,
a year prior to the events in question, the victim had been living for approximately one
and one-half years at the specific apartment that was ultimately searched. Id. The
victim ate there, slept there, kept all of her personal belongings there, and had
complete access to the apartment. Id. At one time she had a key to the apartment, but
had lost it. Id. According to the victim, “during the latter period of her cohabitation
with [the d]efendant, . . . he physically assaulted her and he prevented her from freely
leaving the apartment.” Id. ¶ 3. At some point, she was able to escape and rode her
bicycle to the hospital. Id. ¶ 4. At the hospital, security personnel contacted the police,
and the victim ultimately returned to the apartment with the police. Id. At that time,
the victim signed a consent form authorizing the police officers to search the
apartment. Id.

15
{23} 	In holding that the victim had common authority over the apartment, this Court
noted that the victim “had lived there for approximately one and one-half years, her
personal belongings were in various locations throughout the apartment, and she had
access to all rooms in the apartment.” Id. ¶ 9. The Court held that neither the fact that
the victim did not have a key at the time she gave consent, nor the fact that she
ultimately fled the apartment, divested her of common authority over the apartment.
Id. ¶¶ 1, 10, 13. Because the victim “possessed the requisite relationship to the
apartment to allow her to consent to its search[,]” this Court reversed the trial court’s
order of suppression. Id. ¶¶ 13, 15.
{24} 	Defendant argues that the district court erred in denying his motion to suppress
because Ms. Priddy did not possess actual common authority to consent to an entry
and search of Defendant’s apartment. Defendant argues that Ms. Priddy did not have
common authority because he did not give her unrestricted access to his apartment,
and she was simply a houseguest for two to four days. Defendant notes that Ms.
Priddy did not have her own key to the apartment and highlights testimony from Ms.
Priddy that she did not live at Defendant’s apartment, but rather had only been staying
there for a few days. He also highlights that, at the suppression hearing, Ms. Priddy
could not remember Defendant’s address. Defendant compares and analogizes this
case to Wright, arguing that his reasonable expectation of privacy was intruded upon

16
when the officers acted on apparent authority and not actual authority. Defendant also
argues that, as in Diaz, the evidence should be suppressed because Defendant had a
superior privacy interest in his apartment. Defendant contrasts the facts in this case to
those in Walker, arguing that Ms. Priddy was staying at the apartment for a
significantly shorter period than the victim in Walker. He also argues that, unlike the
victim in Walker, who had possessions throughout the apartment, Ms. Priddy had all
of her items stored in a box in the hallway.
{25} 	The State responds that Ms. Priddy had common authority and a sufficient
relationship to the apartment, such that she was able to consent to the officers’ entry.
The State argues that Ms. Priddy had unrestricted access to all areas of the apartment,
that she and Defendant shared a key and bedroom, and that Ms. Priddy’s daughter, of
whom Defendant was possibly the father, lived with them part of the time when they
were at the apartment. The State also argues that Ms. Priddy kept essential belongings
in the apartment for herself and her daughter. The State attempts to contrast the facts
in this case to the facts in Diaz by arguing that the son in Diaz had a superior privacy
interest, while Defendant in this case had no such interest. The State also compares
the present case to Walker and argues that, as in Walker, Defendant could have no
reasonable expectation that Ms. Priddy would not return accompanied by the police
or to retrieve her belongings. Finally, the State points to language in Wright that

17
“strongly suggested that ‘five to ten minutes’ in a bedroom [was] sufficient for a co-
occupant to consent to a search.”
{26} 	We agree with Defendant that, under our case law, Ms. Priddy did not have
actual common authority over the apartment. Ms. Priddy had been staying at the
apartment for two to four days, unlike the alleged victim in Walker who had been
living at the apartment for one and one-half years. Unlike the alleged victim in
Walker, who apparently had a key but lost it, Ms. Priddy testified that she never had
a key and that she entered only when Defendant let her in, when Defendant gave her
his key, or when the door was unlocked. Ms. Priddy testified that she told the officers
that she was staying at the apartment but that she did not live there. Although Ms.
Priddy was permitted to move freely about the one-bedroom apartment when she was
in the apartment and kept some clothing at the apartment during the few days that she
stayed there, those facts are insufficient on their own and in light of the other facts in
this case to establish common authority. This case is more comparable to Diaz, where
this Court held that the consenting party did not have the requisite authority to consent
because Defendant had “far greater access and control and a superior privacy interest”
in the apartment. 1996-NMCA-104, ¶ 16.
{27} 	We agree with Defendant that the district court’s finding that “[i]t was
reasonable for officers to believe that [Ms.] Priddy had authority to enter [the

18
apartment]” signifies or indicates apparent authority, which does not fall within a
recognized exception to the warrant requirement in New Mexico. This Court in Wright
specifically rejected apparent authority as the standard, where the prosecution argued
that evidence should not be suppressed because “the officers reasonably believed that
[the individual giving consent] possessed common authority over the premises.” 1995-
NMCA-016, ¶¶ 17, 19; see also Diaz, 1996-NMCA-104, ¶ 17 (restating the holding
in Wright that “when the police are relying upon the consent of a third party to
conduct a warrantless search of another’s premises, the third party must have actual,
not apparent, authority to grant that consent”). The district court in this case did not
determine that Ms. Priddy had actual authority to consent to the entry and search.
Under Wright, the reasonableness of the officers’ belief that Ms. Priddy had authority
to consent was insufficient and cannot form a proper basis for warrantless entry and
search because, as a matter of law, “where the [prosecution] relies upon consent to
justify a warrantless search of a residence, there is no ‘apparent authority’ exception
under Article II, Section 10 of the New Mexico Constitution.” Wright, 1995-NMCA-
016, ¶ 20.

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C. 	Protective Sweep Rule, Community Caretaker Doctrine, and the FVPA
{28} 	Before getting into the parties’ arguments and the relevant law as to the
remaining exceptions, we begin by noting that the State’s argument as to which
exception (or combination of exceptions) to the warrant requirement applies is
unclear. When arguing before the district court, it appears that the State intended to
assert that the warrantless search was valid because the community caretaker
exception applied, and the FVPA somehow tapped into that exception. However, on
appeal, the State seems to suggest that the FVPA creates a new exception to the
warrant requirement. Additionally, the State seems to contend on appeal that the
warrantless entry was acceptable because it was part of a protective sweep that was
properly conducted given that the officers were acting in a community caretaker
capacity and/or pursuant to the FVPA.
1. 	Protective Sweep Rule
{29} 	In New Mexico, under limited circumstances, a warrantless search, and
arguably entry, may be permissible under the protective sweep rule. See State v.
Valdez, 1990-NMCA-134, ¶ 8, 111 N.M. 438, 806 P.2d 578 (indicating that the
United States Supreme Court recognized the “protective sweep rule” as an exception
to the warrant requirement and stating that the rule is recognized in New Mexico); see
also State v. Jacobs, 2000-NMSC-026, ¶¶ 33, 36-38, 129 N.M. 448, 10 P.3d 127

20
(upholding a warrantless entry into and search of the defendant’s home as part of a
protective sweep). A protective sweep is “a quick and limited search of premises,
incident to an arrest and conducted to protect the safety of police officers or others.”
State v. Trudelle, 2007-NMCA-066, ¶ 21, 142 N.M. 18, 162 P.3d 173 (internal
quotation marks and citation omitted). “A protective sweep may be undertaken if the
searching officers possess a reasonable belief based on specific and articulable facts
which, taken together with the rational inferences from those facts, reasonably
warrants the officer in believing that the area swept harbored an individual posing a
danger to the officer or others. However, a protective sweep is only allowed incident
to a lawful arrest.” Id. (alterations, emphasis, internal quotation marks, and citations
omitted); Valdez, 1990-NMCA-134, ¶ 9.
{30} 	Defendant argues that a protective sweep was not justified in this case because
there was no reasonable belief of a danger in the apartment and because the officers
were not acting pursuant to an arrest. He further argues that the officers knew that
Defendant had left the apartment and argues that relying on some highly remote
possibility that someone may have come into the apartment while Ms. Priddy was
napping was unreasonable.
{31} 	The State responds that a protective sweep of the premises was reasonable
because the officers “had no way of knowing who was in the [apartment] or what

21
weapons might be there[,]” relying on Jacobs, 2000-NMSC-026, ¶ 38. The State
contends that the officers were told that someone may have entered the residence
while Ms. Priddy was asleep and that Defendant had purchased a firearm. Thus, the
State concludes, the officers reasonably believed that a security sweep of the premises
was required for their and Ms. Priddy’s safety.
{32} 	Here, there was no valid protective sweep because the sweep was not done
incident to a lawful arrest. No one was arrested at the scene of the alleged domestic
violence incident. Also, the officers did not articulate facts that would justify a
protective sweep. Ms. Priddy’s response that she could not be sure that someone had
not entered the apartment while she was sleeping did not constitute specific and
articulable facts that reasonably warranted the officers’ belief that the apartment
harbored an individual posing a danger to the officers or to Ms. Priddy. See Trudelle,
2007-NMCA-066, ¶ 21. Although Sergeant Weaver testified that there was concern
that “somebody” or Defendant could be in the apartment, that statement was
contradicted by Ms. Priddy, who testified that Defendant was not at the apartment and
had left by the time the officers arrived, as well as by Officer Freeman, who testified
that Ms. Priddy said Defendant had “possibly left in a white SUV[.]” To allow a
sweep on the facts as argued by the State in this case would inappropriately expand
the protective sweep rule. Defendant, having left the scene, and potentially having

22
possession of a firearm, did not reasonably support the officers’ belief that the
apartment harbored an individual posing a danger.
2. 	The FVPA and Community Caretaker Doctrine
{33} 	Defendant next argues that the FVPA did not allow the officers to enter his
residence without a warrant. He argues that the officers did not determine that the
clothing Ms. Priddy sought was necessary for her immediate needs as required by the
FVPA. See § 40-13-7(B)(3). He also argues that, under the FVPA, the officers were
obligated to determine whether Ms. Priddy had lawful authority to enter the apartment
in order to assist her in retrieving items from inside. Finally, Defendant argues that the
district court’s reliance on the community caretaker exception was in error because
law enforcement is only permitted to enter a person’s residence without consent or a
warrant if there is a strong sense of emergency that requires the immediate need for
assistance for the protection of life or property.
{34} 	The State responds by relying on the plain language of the FVPA, which places
an affirmative duty on law enforcement to assist and protect victims of domestic
violence. It argues that leaving Ms. Priddy to “fend for herself” outside of the
apartment would have exposed her to the very real danger of additional violence. The
State argues that Ms. Priddy was determined to retrieve her belongings, and the only
way to separate her from Defendant was to remove her from the vicinity of the

23
residence. The State contends that to ensure that Ms. Priddy would not return, it was
necessary to retrieve her belongings.
{35} 	Insofar as the State is attempting to argue that the FVPA creates a new
exception to the warrant requirement, we are unconvinced. According to the FVPA,
“[a] person who allegedly has been a victim of domestic abuse may request the
assistance of a local law enforcement agency.” Section 40-13-7(A). “A local law
enforcement officer responding to the request for assistance shall be required to take
whatever steps are reasonably necessary to protect the victim from further domestic
abuse, including . . . upon the request of the victim, accompanying the victim to the
victim’s residence to obtain the victim’s clothing and personal effects required for
immediate needs and the clothing and personal effects of any children then in the care
of the victim[.]” Section 40-13-7(B)(3). Despite the State’s position that the officers
in this case were allowed to enter Defendant’s apartment without a warrant because
of the duty to take reasonable steps to protect a domestic violence victim as articulated
in the FVPA, the plain language of the FVPA does not authorize or even suggest that
it can be used to justify a warrantless entry into a residence. The FVPA indicates that
law enforcement may accompany a victim to the victim’s residence. Id. The FVPA
does not state that law enforcement officers have carte blanche to enter a private
residence without a warrant.

24
{36} 	As to the State’s attempt to piggyback the FVPA onto the community caretaker
exception, we again are unconvinced. In Ryon, our Supreme Court clarified the scope
of the community caretaker exception in New Mexico. 2005-NMSC-005, ¶ 1. “The
community caretaker exception recognizes that warrants, probable cause, and
reasonable suspicion are not required when police are engaged in activities that are
unrelated to crime-solving.” Id. ¶ 24. The Ryon Court noted that there are actually
three distinct doctrines that have emerged within the exception: the emergency aid
doctrine, the automobile impoundment and inventory doctrine, and the community
caretaking doctrine. Id. ¶ 25. “The emergency [aid] doctrine applies to . . . warrantless
intrusions into personal residences[, while t]he . . . community caretaker . . . doctrine
deals primarily with warrantless searches and seizures of automobiles[.]” Id. ¶ 26
(internal quotation marks and citations omitted). According to Ryon, “[s]ince the
privacy expectation is strongest in the home[,] only a genuine emergency will justify
entering and searching a home without a warrant and without consent[.]” Id.; see
Trudelle, 2007-NMCA-066, ¶ 35 (“Our Supreme Court has stated that, when police
conduct a warrantless search of a home in their community caretaking capacity, the
search must be analyzed under the emergency assistance branch of the community
caretaker exception.”). “To justify the warrantless intrusion into a private residence
under the emergency assistance doctrine, officers must have credible and specific

25
information that a victim is very likely to be located at a particular place and in need
of immediate aid to avoid great bodily harm or death.” Ryon, 2005-NMSC-005, ¶ 42.
{37} 	In this case, the district court improperly relied on the general community
caretaker doctrine that deals primarily with warrantless searches and seizures of
automobiles. See id. ¶ 26. That the FVPA contemplates law enforcement assistance
to protect a victim of domestic violence from further abuse when retrieving items from
inside the victim’s residence does not circumvent the requirement that only a genuine
emergency will justify entering and searching a residence without a warrant and
without consent. See id. In this case, there are no allegations and there is no evidence
in the record of an emergency inside the residence that necessitated entry under the
emergency aid doctrine. By all accounts, the officers did not enter Defendant’s
apartment to assist someone in need of immediate aid to avoid great bodily harm or
death. Because Ryon holds that only a genuine emergency will justify entering and
searching a home without a warrant and without consent and because there was no
indication of an emergency inside the apartment justifying a warrantless entry, the
community caretaker exception does not apply.
CONCLUSION
{38} 	For the foregoing reasons, the district court erroneously denied Defendant’s
motion to suppress, and the district court’s order denying Defendant’s motion to

26
suppress is reversed. This matter is remanded for further proceedings consistent with
this opinion.
{39} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
JAMES J. WECHSLER, Judge
_______________________________
J. MILES HANISEE, Judge