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                                                                         New Mexico Compilation
                                                                       Commission, Santa Fe, NM
                                                                      '00'04- 11:10:38 2017.05.23


       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-041

Filing Date: February 2, 2017

Docket 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

                                              1
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 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 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


       1
        The possession of drug paraphernalia charge was dismissed prior to trial.

                                              2
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 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.

{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.


       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.

                                             3
{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 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 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.



       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.

                                               4
               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.

{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.)

                                              5
{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 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 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 parties,
Wright, 1995-NMCA-016, Diaz, 1996-NMCA-104, and Walker, 1998-NMCA-117, are
instructive.

                                              6
{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 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 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

                                              7
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 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.

{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

                                               8
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 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 “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 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

                                               9
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.

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 (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.

                                                10
{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 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 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

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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 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.

{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 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.


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{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 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




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