plain view doctrine in New Mexico

2025See State v. Ochoa, 2004-NMSC-023, ¶ 9 , 135 N.M. 781 , 93 P.3d 1286 . 2 To establish that a warrantless seizure was justified under the plain view doctrine, 3 the State must show that (1) “the police officer was lawfully positioned when the 4 evidence was observed”; and (2) “the incriminating nature of the evidence was 5 immediately apparent, such that the officer had probable cause to believe that the 6 article seized was evidence of a crime.” Id.

2025See State v. Ochoa, 2004-NMSC-023, ¶ 9 , 135 N.M. 781 , 93 P.3d 1286 . 2 To establish that a warrantless seizure was justified under the plain view doctrine, 3 the State must show that (1) “the police officer was lawfully positioned when the 4 evidence was observed”; and (2) “the incriminating nature of the evidence was 5 immediately apparent, such that the officer had probable cause to believe that the 6 article seized was evidence of a crime.” Id.

2013See State v. Vasquez, 112 N.M. 363, 368 , 815 2 P.2d 659 , 664 (Ct. App. 1991) (stating that, under the plain view doctrine, “the need 3 for a search warrant is obviated if the contents of the container can be inferred by the 4 container’s outward appearance or if the contents are in plain view”). 5 {16} In her brief in chief, Defendant argues that this Court should apply Rivera and 6 hold that the plain view doctrine does not apply because the contents of the inner bag 7 were not immediately apparent.

2011See id. ¶ 14 (“[A]n officer’s mere suspicion about an ordinary object, which has common, non-criminal uses, will not support probable cause for its seizure.”); see also State v. Vasquez, 112 N.M. 363, 368 , 815 P.2d 659, 664 (Ct.App. 1991) (indicating that a diaper bag taken from a vehicle was unlawfully seized pursuant to the plain view doctrine because the contents “could not be discerned from the bag’s outward appearance,” and thus the incriminating nature of the bag was not apparent); State v. Zelinske, 108 N.M. 784, 786-87 , 779 P.2d 971, 973-74 (Ct.App.1989) (recognizing that presence of

2009See State v. Foreman, 97 N.M. 583, 584-85 , 642 P.2d 186, 187-88 (Ct.App.1982) (observing that contraband which is discovered in the course of an inventory search may be seized pursuant to the plain view doctrine without a warrant). {13} Relying on State v. Gomez, 1997-NMSC-006 , 122 N.M. 777 , 932 P.2d 1 and Ruffino, Defendant argues that the plain view doctrine cannot support the seizure of the pipe.

2009See State v. Foreman, 97 N.M. 583, 584-85 , 642 P.2d 186, 187-88 (Ct.App.1982) (observing that contraband which is discovered in the course of an inventory search may be seized pursuant to the plain view doctrine without a warrant). {13} Relying on State v. Gomez, 1997-NMSC-006 , 122 N.M. 777 , 932 P.2d 1 and Ruffino, Defendant argues that the plain view doctrine cannot support the seizure of the pipe.

2007Unlike Sanchez and Foreman , in the present case the privacy interest threshold, which was the legitimate expectation in the privacy of the vehicle's interior space, was not lawfully breached before the seizure occurred. {10} The State turns to State v. Miles, 108 N.M. 556 , 775 P.2d 758 (Ct.App.1989), in arguing that an officer should be allowed to enter a vehicle to seize contraband in plain view.

2007Unlike Sanchez and Foreman , in the present case the privacy interest threshold, which was the legitimate expectation in the privacy of the vehicle's interior space, was not lawfully breached before the seizure occurred. {10} The State turns to State v. Miles, 108 N.M. 556 , 775 P.2d 758 (Ct.App.1989), in arguing that an officer should be allowed to enter a vehicle to seize contraband in plain view.

1994State v. Dobbs, 100 N.M. 60, 65-67 , 665 P.2d 1151, 1156-58 (Ct.App.) (notations on open page of city directory and list of names on handwritten sheets), cert. quashed, 100 N.M. 53 , 665 P.2d 809 (1983).

1994State v. Dobbs, 100 N.M. 60, 65-67 , 665 P.2d 1151, 1156-58 (Ct.App.) (notations on open page of city directory and list of names on handwritten sheets), cert. quashed, 100 N.M. 53 , 665 P.2d 809 (1983).

2016See State v. Cline, 1998-NMCA-154, ¶ 17 , 126 N.M. 77 , 966 P.2d 785 (holding that actual authority to consent to a search must be given by “someone who is clothed with common authority or possesses some other sufficient relationship concerning the premises in question” (internal quotation marks and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶ 20 , 135 N.M. 728 , 93 P.3d 10 (“Under the New Mexico Constitution, there is no doctrine of ‘apparent authority’ that allows a person without actual authority to consent to the search of personal or real property.”).

2016See State v. Cline, 1998-NMCA-154, ¶ 17 , 126 N.M. 77 , 966 P.2d 785 (holding that actual authority to consent to a search must be given by “someone who is clothed with common authority or possesses some other sufficient relationship concerning the premises in question” (internal quotation marks and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶ 20 , 135 N.M. 728 , 93 P.3d 10 (“Under the New Mexico Constitution, there is no doctrine of ‘apparent authority’ that allows a person without actual authority to consent to the search of personal or real property.”).

2016See State v. Cline, 1998-NMCA-154, ¶ 17 , 126 N.M. 77 , 966 P.2d 785 (holding that actual authority to consent to a search must be given by “someone who is clothed with common authority or possesses some other sufficient relationship concerning the premises in question” (internal quotation marks and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶ 20 , 135 N.M. 728 , 93 P.3d 10 (“Under the New Mexico Constitution, there is no doctrine of ‘apparent authority’ that allows a person without actual authority to consent to the search of personal or real property.”).

2016See State v. Cline, 1998-NMCA-154, ¶ 17 , 126 N.M. 77 , 966 P.2d 785 (holding that actual authority to consent to a search must be given by “someone who is clothed with common authority or possesses some other sufficient relationship concerning the premises in question” (internal quotation marks and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶ 20 , 135 N.M. 728 , 93 P.3d 10 (“Under the New Mexico Constitution, there is no doctrine of ‘apparent authority’ that allows a person without actual authority to consent to the search of personal or real property.”).

2016See State v. Warsaw, 1998-NMCA-044, ¶ 20 , 125 N.M. 8 , 956 P.2d 139 (“The plain view doctrine refers to a seizure of evidence discovered during an intrusion that has a prior justification.”). {19} Nothing in the evidence indicates that Officer Alvarado believed that Defendant’s passenger had authority to consent to a search of the vehicle.

2016See State v. Warsaw, 1998-NMCA-044, ¶ 20 , 125 N.M. 8 , 956 P.2d 139 (“The plain view doctrine refers to a seizure of evidence discovered during an intrusion that has a prior justification.”). {19} Nothing in the evidence indicates that Officer Alvarado believed that Defendant’s passenger had authority to consent to a search of the vehicle.

2015App. Ct. 2005) (holding that even where the officer observed a small, clear plastic container holding several hundred white pills partially hidden under the passenger seat, the incriminating nature of the pills was not immediately apparent to the officer in a manner that satisfied the plain view doctrine to warrant the seizure of the container); see People v. Carbone, 184 A.D.2d 648, 650 (N.Y.

2015App. Ct. 2005) (holding that even where the officer observed a small, 16 clear plastic container holding several hundred white pills partially hidden under the 17 passenger seat, the incriminating nature of the pills was not immediately apparent to 18 the officer in a manner that satisfied the plain view doctrine to warrant the seizure of 19 the container); see People v. Carbone, 184 A.D.2d 648, 650 (N.Y.

2013See 2010-NMSC-046, ¶ 28 (holding that “[t]he plain 8 view doctrine did not authorize [the officer] to open the opaque bundle because he 9 thought he had probable cause to believe the bundles contained marijuana”).

2011See State v. Rivera, 2010-NMSC-046, ¶¶ 28-29 , 148 N.M. 659 , 241 P.3d 1099 (holding under Article II, Section 10 of the New Mexico Constitution that “[t]he plain[-]view doctrine did not authorize [the officer] to open the opaque bundle because he thought he had probable cause to believe the bundles contained marijuana”). 3.

2011See id. ¶ 14 (“[A]n officer’s mere suspicion about an ordinary object, which has common, non-criminal uses, will not support probable cause for its seizure.”); see also State v. Vasquez, 112 N.M. 363, 368 , 815 P.2d 659, 664 (Ct.App. 1991) (indicating that a diaper bag taken from a vehicle was unlawfully seized pursuant to the plain view doctrine because the contents “could not be discerned from the bag’s outward appearance,” and thus the incriminating nature of the bag was not apparent); State v. Zelinske, 108 N.M. 784, 786-87 , 779 P.2d 971, 973-74 (Ct.App.1989) (recognizing that presence of

2011See id. ¶ 14 (“[A]n officer’s mere suspicion about an ordinary object, which has common, non-criminal uses, will not support probable cause for its seizure.”); see also State v. Vasquez, 112 N.M. 363, 368 , 815 P.2d 659, 664 (Ct.App. 1991) (indicating that a diaper bag taken from a vehicle was unlawfully seized pursuant to the plain view doctrine because the contents “could not be discerned from the bag’s outward appearance,” and thus the incriminating nature of the bag was not apparent); State v. Zelinske, 108 N.M. 784, 786-87 , 779 P.2d 971, 973-74 (Ct.App.1989) (recognizing that presence of

2005State v. Williams, 117 N.M. 551, 555-56 , 874 P.2d 12, 16-17 (1994).

2005State v. Williams, 117 N.M. 551, 555-56 , 874 P.2d 12, 16-17 (1994).

1994LaFave, Search and Seizure § 2.2, at 242 (1978)); see also Horton v. California, 496 U.S. 128, 135 , 110 S.Ct. 2301, 2307 , 110 L.Ed.2d 112 (1990) (stating that the plain view doctrine applies where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object); State v. Calvillo, 110 N.M. 114, 117 , 792 P.2d 1157, 1160 (Ct.App.), cert. denied, 110 N.M. 72 , 792 P.2d 49 (1990) (holding *17 "When an officer employs his natural senses from a place where he has a right to be, there is no search in the constitutional sense.")

1994LaFave, Search and Seizure § 2.2, at 242 (1978)); see also Horton v. California, 496 U.S. 128, 135 , 110 S.Ct. 2301, 2307 , 110 L.Ed.2d 112 (1990) (stating that the plain view doctrine applies where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object); State v. Calvillo, 110 N.M. 114, 117 , 792 P.2d 1157, 1160 (Ct.App.), cert. denied, 110 N.M. 72 , 792 P.2d 49 (1990) (holding *17 "When an officer employs his natural senses from a place where he has a right to be, there is no search in the constitutional sense.")

1994LaFave, Search and Seizure § 2.2, at 242 (1978)); see also Horton v. California, 496 U.S. 128, 135 , 110 S.Ct. 2301, 2307 , 110 L.Ed.2d 112 (1990) (stating that the plain view doctrine applies where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object); State v. Calvillo, 110 N.M. 114, 117 , 792 P.2d 1157, 1160 (Ct.App.), cert. denied, 110 N.M. 72 , 792 P.2d 49 (1990) (holding *17 "When an officer employs his natural senses from a place where he has a right to be, there is no search in the constitutional sense.")

1994LaFave, Search and Seizure § 2.2, at 242 (1978)); see also Horton v. California, 496 U.S. 128, 135 , 110 S.Ct. 2301, 2307 , 110 L.Ed.2d 112 (1990) (stating that the plain view doctrine applies where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object); State v. Calvillo, 110 N.M. 114, 117 , 792 P.2d 1157, 1160 (Ct.App.), cert. denied, 110 N.M. 72 , 792 P.2d 49 (1990) (holding *17 "When an officer employs his natural senses from a place where he has a right to be, there is no search in the constitutional sense.")

2025Both Sanchez and 13 Moran hold that when an item in plain view might either be contraband, or be 14 lawfully in the possession of the suspect, an officer must identify to the court the 15 circumstances that made it reasonably apparent to the officer that the item was 16 contraband in order to establish that the officer had probable cause for the seizure. 17 See Sanchez, 2015-NMCA-084, ¶ 17 (describing the evidence needed to establish 18 that it was “immediately apparent” to the officer that a seized item was contraband). 19 {14} In Sanchez, while conducting a traffic stop, the officer observed

2018In other words, under the plain view doctrine, “items may be seized 5 without a warrant if the police officer was lawfully positioned when the evidence was 6 observed, and the incriminating nature of the evidence was immediately apparent[.]” 7 State v. Sanchez, 2015-NMCA-084, ¶ 13 , 355 P.3d 795 (internal quotation marks and 8 citation omitted).

2017“However, if following a lawful stop on a 10 roadway, an item in an automobile is in plain view and the officer has probable cause 11 to believe the item is evidence of a crime, the officer may seize the item.” Bomboy, 12 2008-NMSC-029, ¶ 17 ; see also State v. Ochoa, 2004-NMSC-023, ¶ 9 , 135 N.M. 781 , 13 93 P.3d 1286 (“Under the plain view exception to the warrant requirement, items may 14 be seized without a warrant if the police officer was lawfully positioned when the 15 evidence was observed, and the incriminating nature of the evidence was immediately 16 apparent, such that the officer

2017See Bomboy, 4 2008-NMSC-029, ¶ 17 ; Ochoa, 2004-NMSC-023, ¶ 9 . 5 {15} Based on the facts in this case, we conclude that seizure of both the glass and 6 the baggie were justified by the plain view exception to the warrant requirement.

1999See State v. Attaway, 117 N.M. 141, 144 , 870 P.2d 103, 106 (1994). “ ‘The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.’ ” State v. Williams, 117 N.M. 551, 555 , 874 P.2d 12, 16 (1994) (quoting Payton v. New York, 445 U.S. 573, 587 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 (1980)).

1999The plain view exception “permits seizure of evidence discovered in the course of an intrusion for which there was prior justification, such as a search warrant.” Id. {28} In this case the officers seized the evidence while conducting a lawful search of Defendant’s residence pursuant to a valid search warrant for counterfeiting equipment or counterfeit materials.

2025The Officer Did Not Have Probable Cause to Believe Defendant 13 Possessed the Pills Unlawfully 14 A. Standard of Review on Appeal 15 {10} “The constitutionality of a search and seizure is a mixed question of law and 16 fact which we review de novo.” Id. ¶ 5; see also State v. Martinez, 2018-NMSC- 17 007, ¶ 8, 410 P.3d 186 (holding that an appellate court makes “a de novo 18 determination of the constitutional reasonableness of the search or seizure”).

2018However, 19 if an officer is lawfully present outside of an automobile, “an item in [that] automobile 20 is in plain view[,] and the officer has probable cause to believe the item is evidence 8 1 of a crime, the officer may seize the item.” Id.; see also State v. Lopez, 2009-NMCA- 2 127, ¶ 12, 147 N.M. 364 , 223 P.3d 361 (“Because the pipe was clearly contraband, it 3 could properly be seized pursuant to the plain view doctrine, and no warrant was 4 required.”).

2018However, 19 if an officer is lawfully present outside of an automobile, “an item in [that] automobile 20 is in plain view[,] and the officer has probable cause to believe the item is evidence 8 1 of a crime, the officer may seize the item.” Id.; see also State v. Lopez, 2009-NMCA- 2 127, ¶ 12, 147 N.M. 364 , 223 P.3d 361 (“Because the pipe was clearly contraband, it 3 could properly be seized pursuant to the plain view doctrine, and no warrant was 4 required.”).