                                                              I attest to the accuracy and
                                                               integrity of this document
                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 17:15:24 2014.10.29
Certiorari Denied, September 24, 2014, No. 34,863

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-102

Filing Date: August 14, 2014

Docket No. 32,891

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

RENE HERMOSILLO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Gary K. King, Attorney General
Becca Salwin, Assistant Attorney General
Santa Fe, NM

for Appellee

Templeman & Crutchfield, P.C.
C. Barry Crutchfield
Lovington, NM

for Appellant

                                         OPINION

GARCIA, Judge.

{1}     Defendant, a probationer, pled no contest to trafficking controlled substances and
delivery or manufacture of drug paraphernalia, reserving the right to appeal from the district
court’s denial of his motion to suppress. In this opinion, we determine whether Defendant’s
Fifth Amendment rights were violated when he was not given the warnings required by
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), while handcuffed and questioned in his

                                              1
home by his probation officer during a random home visit. We hold that, under the specific
facts of this case, Defendant was not “in custody” for Fifth Amendment purposes and,
therefore, no Miranda warnings were required. We affirm the district court’s denial of
Defendant’s motion to suppress.

A.      Standard of Review

{2}      In conducting our review, “we bear in mind that there is a distinction between factual
determinations which are subject to a substantial evidence standard of review and application
of law to the facts, which is subject to de novo review.” State v. Munoz, 1998-NMSC-048,
¶ 39, 126 N.M. 535, 972 P.2d 847 (alteration, internal quotation marks and citation omitted);
see State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (reviewing de novo
whether a defendant is subject to a custodial interrogation). In other words, “[w]e determine
whether the law was correctly applied to the facts, viewing the facts in the light most
favorable to the prevailing party[,] . . . indulg[ing] in all reasonable inferences in support of
the [trial] court’s ruling and disregard[ing] all evidence and inferences to the contrary.” State
v. Bravo, 2006-NMCA-019, ¶ 5, 139 N.M. 93, 128 P.3d 1070.

B.      Background and Procedural Facts

{3}     Although Defendant challenges the district court’s conclusions, he does not argue
that the district court’s findings were not supported by substantial evidence. In accordance
with the standard of review, we accept the district court’s findings, as follows, and view
them in the light most favorable to the State.

{4}      Defendant was on supervised probation after pleading no contest to possession of a
controlled substance (felony—narcotic drug), resisting, evading or obstructing an officer
(refusal to stop), and reckless driving in Lea County District Court Cause No. D-506-CR-
2012-086. Defendant’s supervising probation officer went over the probation order with
Defendant, who acknowledged that he read and understood it, initialing each paragraph. The
district court judge signed the probation order, and it was filed in the district court. Under
its terms, among other things, Defendant was required: (1) to report to his probation officer
as often as required; to submit completed and truthful reports; and to be truthful, accurate,
and prompt in all communications with his probation officer; (2) not to associate with any
persons having a criminal record or other probationers and parolees; and (3) to permit his
probation officer to visit him at home or his place of employment at any time; and to permit
a warrantless search of his person, automobile, and residence, if the probation officer has
reasonable cause to believe the search would produce evidence of a probation violation. In
addition, as part of the probation intake process, Defendant entered into a “rules for home
visits” agreement, agreeing among other things: (1) to promptly answer the door and invite
the officers in; and (2) to be courteous and cooperative with the officers.

{5}     On the evening of October 18, 2012, the probation officer was conducting home
visits of various probationers under his supervision. Defendant’s home was not originally

                                               2
on the list but was added because Defendant had recently been testing positive for drugs. The
probation officer routinely has law enforcement officers accompany him on evening/night
home visits, and on this evening he was accompanied by a drug task force officer.

{6}     The probation officer and drug task force officer went to Defendant’s front door and
knocked. The probation officer saw Defendant look out a window and observe the probation
officer, then disappear. The probation officer heard activity in the house, and he became
suspicious when Defendant did not promptly answer the door and decided he would search
Defendant’s residence for evidence of a probation violation. The probation officer continued
to knock and announce his presence, and after a while Defendant’s wife answered the door
and let the officers inside. The probation officer found that Defendant had gone into a
bathroom and locked the door. When he knocked on the bathroom door and announced his
presence, Defendant refused to come out, saying he was going to the bathroom. During a
quick and cursory protective sweep, the officers saw a known felon and fellow probationer
leaving through the back door. The officers stopped this person who said that he and
Defendant had been drinking beer in Defendant’s house.

{7}     After a while, Defendant came out of the bathroom. Defendant was searched, and
$580 cash was found on his person. The probation officer became suspicious because
Defendant had previously reported his income was less than that amount. “As a result of
what had transpired and the uncertainty of the situation, Defendant was immediately
handcuffed for officer safety reasons.” Defendant was ordered to sit down and remain there,
but “was not placed under arrest.” Defendant was not told of his right to remain silent or of
his right against self-incrimination pursuant to Miranda.

{8}     The probation officer asked the drug task force officer, in Defendant’s presence,
whether a drug dog was available to search Defendant’s residence. Defendant admitted to
drinking alcohol with the other probationer. Defendant then asked to talk privately with his
probation officer “to explain himself” and led the officer into the laundry room. The
probation officer saw empty beer cans in the trash basket, and Defendant again admitted to
drinking alcohol with the other probationer. The probation officer told Defendant he
intended to search the house and asked Defendant “if there was [anything] in his residence
he was not supposed to have.” Defendant responded, saying, “Yeah, can I show you?”
Defendant took the probation officer to a cabinet in the “party room” of his house, and said,
“it’s up there.” The probation officer looked at the area Defendant referred to and observed
what appeared to be drugs.

{9}    The probation officer notified the drug task force officer of “what [he] had
observed[,]” and the drug task force officer contacted another officer to obtain a search
warrant. In the course of the search, it was confirmed that the probation officer had observed
drugs, and the drugs were seized along with digital scales. Defendant was arrested and
charged with trafficking a controlled substance and possession of drug paraphernalia.

{10}   Defendant moved to suppress all statements he made while handcuffed, and all

                                              3
evidence that was seized as a result of the statements he made while handcuffed, arguing that
he was interrogated while in custody without being advised of his Miranda rights. The State
responded. After conducting a hearing and entering findings and conclusions, the district
court denied the motion to suppress. Defendant entered a conditional plea agreement
reserving his right to appeal the denial of his motion to suppress. This appeal followed.

C.     The Miranda Test

{11} The Fifth Amendment protections provided under Miranda apply only to “custodial
interrogation[s].” 384 U.S. at 444; see State v. Smile, 2009-NMCA-064, ¶ 24, 146 N.M. 525,
212 P.3d 413. In determining whether a defendant is in custody for purposes of the Fifth
Amendment, “the court must apply an objective test to resolve the ultimate inquiry: was
there a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest[?]” State v. Wilson, 2007-NMCA-111, ¶ 14, 142 N.M. 737, 169 P.3d 1184
(internal quotation marks and citation omitted). Because the Miranda test is an objective
one, we do not consider the subjective beliefs of the defendant or the officer about whether
the defendant was in custody. Wilson, 2007-NMCA-111 ¶ 14. Rather, we consider “how a
reasonable man in the suspect’s position would have understood his situation.” Id. (internal
quotation marks and citations omitted). If no formal arrest occurred prior to questioning, our
appellate courts engage in a fact-specific analysis of the totality of the circumstances under
which the questioning took place in order to decide whether the custody requirement is met.
See, e.g., Smile, 2009-NMCA-064, ¶ 27. The following factors guide our inquiry: “the
purpose, place, and length of interrogation[,]. . . the extent to which the defendant is
confronted with evidence of guilt, the physical surroundings of the interrogation, the
duration of the detention, and the degree of pressure applied to the defendant.” Munoz,
1998-NMSC-048, ¶ 40 (internal quotation marks and citations omitted). In determining
whether a person is being interrogated, we consider whether the officer’s questioning is
reasonably likely to elicit an incriminating response or has that effect. State v. Ponce, 2004-
NMCA-137, ¶ 37, 136 N.M. 614, 103 P.3d 54.

D.     The Miranda Test and Probationers

{12} We have often noted that “[p]robation is the release by the court without
imprisonment of an adult defendant convicted of a crime.” Id. ¶ 8 (emphasis in original)
(internal quotation marks and citation omitted). As such, probation is an act of clemency
with the goal of education and rehabilitation, and it is not painless. See State v. Donaldson,
1983-NMCA-064, ¶ 32, 100 N.M. 111, 666 P.2d 1258. In order to effectuate a probationer’s
rehabilitation, a sentencing court may impose conditions that have as their objective the
deterrence of further misconduct. Ponce, 2004-NMCA-137, ¶ 8. As a result, probation status
significantly reduces a probationer’s expectation of privacy. See, e.g., State v. Baca, 2004-
NMCA-049, ¶ 42, 135 N.M. 490, 90 P.3d 509.

{13} Although a probationer does not lose the privilege against self-incrimination, the
United States Supreme Court has refused to extend the requirements of Miranda warnings

                                              4
to prearranged routine probation interviews with probation officers. See Minnesota v.
Murphy, 465 U.S. 420, 430 (1984) (holding that a probationer meeting with his probation
officer was not “in custody” for purposes of receiving Miranda warnings even though he
was “subject to a number of restrictive conditions governing various aspects of his life,” and
“in custody for purposes of federal habeas corpus”) (internal quotation marks and citation
omitted). In Murphy, the defendant’s confession to new crimes to his probation officer did
not require Miranda warnings even though (1) the probation officer could compel the
defendant’s attendance and truthful answers; (2) the probation officer consciously sought
incriminating evidence; (3) the defendant did not expect investigatory questions and could
not seek counsel before the meeting; and (4) there were no other individuals present to guard
against abuse or trickery. Id. at 431-32; see United States v. Manning, 2008 WL 4915991,
*5 (N.D. Okla. 2008) (summarizing the circumstances under which the Supreme Court did
not require Miranda warnings for the probationer in Murphy and holding that no Miranda
warnings were required under such precedent and in this case where neither meeting of the
probationer with his probation officer created the coercive environment or involved restraint,
isolation, or threatening behavior sufficient to create a custodial situation). In holding that
no Miranda warnings were required in Murphy, the United States Supreme Court
emphasized that the incriminating statements were obtained in a prearranged routine
probation interview that was not a custodial setting; there was no formal arrest or restraint
on freedom of movement of the degree associated with a formal arrest; and the defendant
was free to leave at the end of the meeting. Murphy, 465 U.S. at 430-31. In a footnote, the
United States Supreme Court further emphasized that “[a] different question would be
presented if [the defendant] had been interviewed by his probation officer while being held
in police custody or by the police themselves in a custodial setting.” Id. at 430, n.5.

{14} This Court applied the Miranda test in the probation context in Ponce. 2004-NMCA-
137, ¶¶ 37-38. In that case, we held that the defendant probationer was not entitled to
Miranda warnings because (1) he was interviewed at the probation office during a standard
probation meeting, a setting that should not be characterized as unfamiliar or an interrogation
environment; (2) although he was arrested upon arrival at the meeting, the arrest was not for
independent criminal activity, but rather for noncriminal conduct that nevertheless was a
violation of the defendant’s probation conditions (the defendant had tested positive for
alcohol under a no-alcohol probation condition); and (3) the probation officer’s question
about how the defendant arrived at the probation office was not designed to elicit an
incriminating response or likely to have that effect. Ponce, 2004-NMCA-137 ¶¶ 37-38.
Referring to the footnote in Murphy quoted above, we stated in Ponce that “the issue might
be different if the defendant were under formal, custodial arrest” meaning, “an arrest for
criminal activity in a custodial interrogation setting.” Ponce, 2004-NMCA-137 ¶ 38.

E.     Once Handcuffed, Was Defendant in Custody for Fifth Amendment Purposes?

{15} Defendant argues that once handcuffed, he was in custody, and since he was
subsequently interrogated without Miranda warnings, his responses must be suppressed. In
responding to Defendant’s arguments, we recognize this Court’s methodology for analyzing

                                              5
the Miranda issue in Wilson to be useful and instructive. In Wilson, this Court examined the
handcuffing of a defendant during a traffic stop, parsing the relevant Fourth Amendment
inquiry from the Miranda/Fifth Amendment inquiry in order to correctly apply the relevant
legal tests to the facts.

1.      Handcuffing and Reasonableness Under the Fourth Amendment

{16} In Wilson, when the defendant failed to cooperate with the traffic stop and acted
defensively and threateningly, the officer used force to handcuff him, causing the defendant
to drop to his knees, and then placed the defendant in the back of a police vehicle where he
was questioned by police. 2007-NMCA-111, ¶¶ 3-4. We observed that the amount of force
used by the officer was reasonable under a Fourth Amendment analysis and did not
transform the traffic stop into a de facto arrest. See Id. ¶¶ 18-19, 35 (discussing the
difference between Fourth and Fifth Amendment analysis and noting that the Fourth
Amendment inquiry is one of reasonableness); see also State v. Paananen, 2014-NMCA-
041, ¶¶ 19-25, 321 P.3d 945, cert. granted, 2014-NMCERT-003, 324 P.3d 376 (No. 31,982,
Mar. 28, 2014) (discussing authorities that determine the objective indicia of formal arrest
under the Fourth Amendment, including handcuffing for officer and public safety, and verbal
notice to the suspect).

{17} Under a Fourth Amendment analysis in this case, the probation officer acted
reasonably in performing a pat down search of Defendant and handcuffing him when he
came out of the bathroom. Handcuffing Defendant was objectively reasonable due to the
“uncertainty of the situation” occasioned by Defendant’s running and hiding and “for officer
safety” purposes. Up to that point, Defendant had failed to comply with his obligation to
cooperate with the home visit. In addition, no de facto arrest occurred at that point. See, e.g.,
State v. Lovato, 1991-NMCA-083, ¶¶ 24, 32, 112 N.M. 517, 817 P.2d 251 (holding that
officers used reasonable force in effectuating an investigatory detention and thus the stop did
not amount to an arrest where the officers stopped a vehicle suspected in a recent drive-by
shooting and, with guns drawn, ordered the occupants to exit the vehicle with the fingers
laced behind their necks, then handcuffed the occupants). The probation officer testified that
he told Defendant he was not under arrest, and the district court specifically found that when
handcuffed, “Defendant was not placed under arrest.” Defendant does not contend that this
finding is not supported by substantial evidence. See, e.g., Paananen, 2014-NMCA-041, ¶
19 (discussing that exactly when an arrest has taken place is for the district court to
determine in the first instance, and if contested on appeal, is reviewed for substantial
evidence).

2.      Miranda Warnings Are Not Required During Routine Traffic Stops or Routine
        Probation Visits

{18} In Wilson, we noted that “generally, routine traffic stops do not require that a
detainee be given Miranda [Fifth Amendment] warnings before interrogation.” Wilson,
2007-NMCA-111, ¶¶ 15, 20 (relying on Berkemer v. McCarty, 468 U.S. 420, 440-42 (1984);

                                               6
see State v. Sanchez, 2001-NMCA-109, ¶ 22, 131 N.M. 355, 36 P.3d 446; Armijo v. State
ex rel. Transp. Dep’t, 1987-NMCA-052, ¶ 6, 105 N.M. 771, 737 P.2d 552 (requiring
Miranda warnings only when a “defendant can demonstrate that, at any time between the
initial stop and the arrest, he was subjected to restraints comparable to those associated with
a formal arrest” (internal quotation marks and citation omitted)).

{19} In this case, the probation order and home visits agreement required Defendant to
fully cooperate with officers during home visits. Murphy informs us that a routine visit of
a probationer by his probation officer, like a routine traffic stop, does not ordinarily present
a Fifth Amendment situation that will be recognized as an in-custody interrogation. 465 U.S.
at 430.

3.     A Routine Stop for Questioning, not Requiring Miranda Warnings, may Evolve
       Into a Custodial Interrogation Situation

{20} In Wilson, we concluded that a routine traffic stop that initially did not require
Miranda warnings subsequently evolved into a custodial interrogation equivalent to a formal
arrest when the defendant was forcibly handcuffed, dropped to his knees, and then placed
in a police vehicle for questioning. Wilson, 2007-NMCA-111, ¶ 35. In concluding that
Miranda warnings were required, we relied on United States v. Newton, 369 F.3d 659, 675-
76 (2d Cir. 2004). Wilson, 2007-NMCA-111, ¶¶ 32-33.

{21} In Newton, the Second Circuit Court of Appeals concluded that the defendant-parolee
was in custody for purposes of the Fifth Amendment when, based on a telephone call from
the defendant’s mother informing authorities that the defendant had a gun and was
threatening to kill her and her husband, three parole officers and three police officers entered
the defendant’s home and immediately handcuffed him, even though the defendant was told
that he was not being placed under arrest and that the handcuffs were being used only to
ensure his own safety and that of the officers. 369 F.3d at 663-64. In so holding, the Second
Circuit observed that “[h]andcuffs are generally recognized as a hallmark of a formal arrest.”
Id. at 676; see also, United States v. Alvelo-Ramos, 945 F. Supp. 19, *22 (D. Puerto Rico
1996) (during the execution of a search warrant of the defendant’s house for illegal weapons,
where five police officers were present and the defendant was handcuffed for the duration
the defendant was in custody for purposes of Miranda).

{22}      In Wilson, we also discussed several New Mexico cases that buttressed our
conclusion that the defendant was not in custody for Fifth Amendment purposes by noting
that the defendant was not restrained or handcuffed during the police encounter. 2007-
NMCA-111, ¶¶ 25-29; see State v. Bravo, 2006-NMCA-019, ¶ 11, 139 N.M. 93, 128 P.3d
1070 (holding that the defendant was not in custody in part because “[h]er movements were
not restricted in any way by the officers” and she could move freely throughout her home
during the interview); Munoz, 1998-NMSC-048, ¶ 43 (holding that the defendant was not
in custody when he willingly went with police to be questioned, was not handcuffed or
searched, was not interviewed in a locked space, and was taken back home when the

                                               7
interview was completed). Recently, we relied on Wilson in part to hold that the defendant
was in custody for Fifth Amendment purposes, despite agreeing to meet with officers, when
he was handcuffed, transported in a police vehicle, and interrogated at the district attorney’s
office without handcuffs but under other conditions indicating restraint. State v. Olivas,
2011-NMCA-030, ¶¶ 11-12, 15, 149 N.M. 498, 252 P.3d 722.

4.     Handcuffing Defendant did not Transform the Probationary Home Visit Into
       a Custodial Interrogation Situation

{23} Applying Wilson and Olivas, this Court must now determine whether Miranda
warnings are required whenever a defendant-probationer is handcuffed while being
questioned by his probation officer during a random home visit. Rather than embrace a
bright-line rule, we consider the totality of the circumstances presented by the specific facts
of the case. See Olivas, 2011-NMCA-030, ¶ 10 (stating that “our appellate courts engage in
a fact-specific analysis of the totality of the circumstances under which the questioning took
place in order to decide whether the custody requirement is met”). In considering the totality
of the circumstances, we find Murphy and Ponce to be more instructive than Wilson and
Olivas.

{24} First, Murphy and Ponce directly address the application of Miranda in a
probationary context. Wilson and Olivas, as well as the New Mexico cases discussed in
Wilson, do not. In Murphy, the United States Supreme Court stated that “we decline to
require [Miranda warnings] here since the totality of the circumstances is not such as to
overbear a probationer’s free will.” Murphy, 465 U.S. at 431. It reasoned that the general
obligation of probationers to appear and answer questions truthfully did not in itself convert
the defendant’s otherwise voluntary statements into compelled ones. Id. It also recognized
that the nature of probation is such that probationers should expect to be questioned on a
wide range of topics relating to their past criminality. Id. at 432. Further, the fact that the
investigation was focused on the defendant as a suspect of a separate rape and murder did
not trigger the need for Miranda warnings in a noncustodial setting. Murphy, 465 U.S. at
431. In Murphy, no Miranda warnings were required because the regular probation meeting
presented a noncustodial setting and because the probationer was not arrested and was
allowed to leave after the meeting. Murphy, 465 U.S. at 430, n.5.

{25} In Ponce, the defendant probationer was immediately arrested for a violation of his
probation agreement when he arrived at the probation meeting. 2004-NMCA-137, ¶ 2. While
the Ponce opinion does not state that the defendant probationer was handcuffed when he was
arrested, the defendant recognized that he was restrained to the degree associated with a
formal arrest. This Court held that no Miranda warnings were required because the
defendant was arrested for a noncriminal probation violation rather than for independent
criminal activity, and the only issue preserved for review on appeal involved a question by
an officer which was not designed to elicit an incriminating response. Ponce, 2004-NMCA-
137 ¶¶ 37-38.


                                              8
{26} In the present case, Defendant’s probation meeting was a random home visit rather
than a regularly scheduled office visit. Although not prearranged, the visit took place in
Defendant’s home, a noncustodial setting. Even though the date and time were not
prearranged, random home visits are specifically authorized under the probation order and
the home visit agreement, and a probationer accepts and expects that random home visits
may occur in the ordinary course of probation. In this case, Defendant had already tested
positive for drugs at previous office visits. Therefore, Defendant could reasonably expect
that his probation officer might conduct a home visit to investigate these violations. Thus,
the fact that the home visit was unscheduled does not, in and of itself, transform this case out
of the ambit of Murphy and Ponce or otherwise automatically indicate that Defendant was
in custody when the officers made their random home visit.

{27} Second, Defendant was not isolated or overwhelmed by the police presence.
Defendant’s wife and another probationer were at Defendant’s house at the time of the visit.
Even though a drug task force officer accompanied the probation officer, the district court
specifically found that the officer was selected to accompany the probation officer that
evening “because of his availability and county wide jurisdiction and not because of any
expertise in dealing with drug offenses.” The district court further found that the probation
officer “was in charge of, directed and conducted the encounter” with minimal involvement
from the drug task force officer, and that the probation officer’s questions and conduct “were
in furtherance of his duties. . . [and] the legitimate ends of his role” as Defendant’s probation
officer rather than as an agent of the drug task force. Under these circumstances, the
presence of the drug task force officer does not mandate that Defendant was in custody for
Fifth Amendment purposes. See generally, State v. Bolin, 2010-NMCA-066, ¶¶ 14-15, 148
N.M. 489, 238 P.3d 363 (observing that the presence of law enforcement officers does not
alter the authority of a probation officer so long as the probation officer is acting “with a
probationary purpose” rather than merely as “a subterfuge for criminal investigations”).

{28} Third, the totality of the circumstances that occasioned the handcuffing of the
defendants in Wilson, Newton, and Olivas on the one hand, and Defendant in this case, are
quite different. In Wilson, the defendant was forcibly handcuffed and dropped to his knees,
then immediately placed in the back of a police car for questioning. 2007-NMCA-111 ¶ 35.
In Newton, in order to investigate parole violations that also constituted new crimes, six
officers entered the defendant’s home intending to arrest him, handcuffed him, and searched
his home. 369 F.3d at 663-64. In Olivas, once the defendant agreed to meet with officers,
they secured him in handcuffs at the rendezvous location and transported him in the back of
a marked police car to the district attorney’s office for questioning; the interrogating officers
at the district attorney’s office did not inform the defendant at any time that he was not under
arrest or that he was free to leave the room or that he could terminate the interview by
choice. 2011-NMCA-030, ¶¶ 11-12, 15. While at the district attorney’s office, the defendant
was not handcuffed but he was escorted at all times, including during smoke breaks outside
the building; he was interrogated in a small room with the door closed and with two officers
present at all times, one of whom sat between the defendant and the door; and the
questioning officer interrogated the defendant by accusing him of the victim’s murder and

                                               9
by repeatedly directing him to confess. Id.

{29} In this case, there is no evidence of force in relation to the handcuffing, or isolation
in a secure location, or confinement as in Wilson, or of overwhelming police presence as in
Newton, or of confinement and coercion as in Olivas. For identified safety concerns,
Defendant was handcuffed when he came out of the locked bathroom and, in accordance
with his home visits agreement, told to remain seated in a room of his home. Thereafter,
Defendant demonstrated that he felt relatively unrestrained and familiar enough with his
probation officer to ask to speak privately with the probation officer “to explain himself.”
Defendant then took the probation officer into another room of his house, the laundry room,
where the probation officer saw empty beer cans in the trash can, and Defendant admitted
to drinking alcohol with the other probationer. When the probation officer told Defendant
he was going to search the house and asked Defendant if he had anything he was not
supposed to have, the probation officer was continuing to investigate various probation
violations and was proceeding in a reasonable manner. Defendant’s admission and
subsequent referral to a cabinet in the “party room” was not coerced in any manner and was
the first instance that potentially transformed the home visit into an investigation of new
unrelated criminal activity. Any Fifth Amendment protections arose after Defendant showed
his probation officer the “party room” cabinet containing the drugs.

{30} The fact that Defendant was handcuffed does not automatically establish that he was
in custody for Fifth Amendment purposes. Rather, the fact that Defendant was handcuffed
is one of many factors that must be considered under the totality of the circumstances. In this
case, the handcuffing exerted a level of restraint but was only utilized after Defendant
created an insecure and problematic home visit environment. It was reasonable for the
probation officer to temporarily restrain Defendant in order to obtain compliance with the
terms and conditions of the probation order and the home visits agreement. As a result, the
use of handcuffs on Defendant did not, by itself, rise to the level of an arrest or a custodial
interrogation for Fifth Amendment purposes.

{31} It is also worth noting that the officers did not arrive at Defendant’s home with the
intention of threatening, coercing, or tricking Defendant into admitting to an unrelated and
independent crime. At the outset, the probation officer knew Defendant had recently tested
positive for drugs at prior office visits, and the home visit was specifically undertaken to
investigate these prior violations. After Defendant ran and hid from the officers, their
reasonable suspicions were justifiably heightened. When Defendant came out of the
bathroom and the probation officer conducted a protective pat down and found a large
amount of cash on Defendant, the officer’s reasonable suspicions were justifiably heightened
regarding potential drug use. At that point, the officer appropriately proceeded to ask the
drug task force officer about the availability of a drug dog, and he told Defendant he
intended to search the residence. Thus, the home visit evolved into an investigation of a
probation violation that focused on the possession of drugs inside Defendant’s residence.
Coercion, threatening tactics, and tricks were not used to investigate Defendant’s potential
probation violations, including the possibility of drugs within Defendant’s residence.

                                              10
{32} As a result, the officer’s actual question regarding whether “there was [anything] in
[Defendant’s] residence he was not supposed to have” was objectively related to the home
visit for probation violation purposes and was not specifically designed to elicit admission
of an unrelated and independent crime. The probation officer did not accuse Defendant of
possessing or trafficking in drugs and did not badger him into admitting such activity.

F.     Conclusion

{33} Under the totality of the circumstances, Defendant was not in custody or formally
arrested for Fifth Amendment purposes when he answered the question from his probation
officer and escorted the probation officer to the drugs inside his home. Because the officers
did not obtain the drugs and drug paraphernalia unlawfully, we do not address the
application of the inevitable discovery doctrine. See State v. Haidle, 2012-NMSC-033, ¶¶
9, 39, 285 P.3d 668 (stating that the inevitable discovery analysis is unnecessary unless we
first determine that evidence was obtained through unlawful police conduct). Finally,
because Defendant failed to develop and preserve his mere assertion on appeal that the New
Mexico constitution was violated, there is no need to address this issue. See State v.
Quinones, 2011-NMCA-018, ¶ 17, 149 N.M. 294, 248 P.3d 336 (declining to engage in the
interstitial approach where the defendant failed to establish that the federal analysis is
flawed, that there are structural differences between the state and federal governments, or
that there are distinctive New Mexico characteristics warranting a departure from federal
analysis).

{34}   We affirm the district court’s order denying Defendant’s motion to suppress.

{35}   IT IS SO ORDERED.

                                              ____________________________________
                                              TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
J. MILES HANISEE, Judge




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