 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ___________

 3 Filing Date: February 2, 2017

 4 NO. 34,410

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 AARON A. RAMOS,

 9       Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
11 Jerry H. Ritter Jr., District Judge

12 Hector H. Balderas, Attorney General
13 Maha Khoury, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 B. Douglas Wood III, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                     OPINION

 2 SUTIN, Judge.

 3   {1}   Defendant Aaron A. Ramos was convicted of possession of a controlled

 4 substance (methamphetamine) and was found not guilty of battery on a household

 5 member. Defendant makes two arguments on appeal: (1) that the police violated his

 6 constitutional right to be free from unreasonable searches and seizures when they

 7 entered his home without a warrant and without authority to do so, and (2) that the

 8 district court erred when it failed to grant Defendant’s motion to sever the charges

 9 and hold separate trials for the battery on a household member charge and the

10 possession of methamphetamine charge. We hold that the police improperly entered

11 Defendant’s home without a warrant because no valid exception to the warrant

12 requirement applied. We further hold that the evidence seized should have been

13 suppressed, and we therefore reverse the district court’s order denying Defendant’s

14 motion to suppress. Because Defendant was acquitted on the battery against a

15 household member charge, his severance-related arguments are moot.

16 BACKGROUND

17   {2}   In March 2013 Defendant was charged with battery against a household

18 member, contrary to NMSA 1978, Section 30-3-15 (2008), and possession of drug
 1 paraphernalia,1 contrary to NMSA 1978, Section 30-31-25.1(A) (2001), following an

 2 alleged domestic violence incident that occurred on March 7, 2013. In May 2013 he

 3 was also charged with possession of a controlled substance, contrary to NMSA 1978,

 4 Section 30-31-23(E) (2011), which similarly arose after law enforcement responded

 5 to the incident on March 7, 2013. The cases were ultimately joined in August 2013,

 6 and the State re-filed its criminal information to reflect the consolidated charges.

 7   {3}   Defendant filed a motion to suppress evidence found in his apartment after

 8 police responded on March 7, 2013, on the ground that “[t]he search of Defendant’s

 9 apartment and subsequent seizure of alleged controlled substance was without a

10 warrant, without exigency, and without lawful right of access to the premises.”

11 During the hearing on the motion to suppress, relevant testimony was elicited from

12 Brittney Priddy, the alleged victim in the domestic dispute; Officer Tillman Freeman,

13 a patrol officer with the Ruidoso Police Department; and Sergeant Mike Weaver, also

14 with the Ruidoso Police Department.

15   {4}   Ms. Priddy testified that she and Defendant had dated in the past. She also

16 testified that she told the officers that “there was a possibility” that Defendant was the

17 biological father of Ms. Priddy’s daughter. On March 7, 2013, Ms. Priddy called the

18 police, and the police responded to her location at a condominium complex on


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

                                                2
 1 Carrizo Canyon in Ruidoso, New Mexico. When asked by the State where she lived

 2 on March 7, 2013, Ms. Priddy testified that she “stayed” with her dad but that she had

 3 been staying with Defendant for three to four days at his apartment, sharing the only

 4 bedroom. She was not on Defendant’s lease agreement nor did she pay any rent.

 5 Defendant had asked her on March 6 to pay money for staying there.

 6   {5}   Ms. Priddy further testified that, when staying with Defendant, she would gain

 7 access to the apartment either with Defendant, or she would just enter when the door

 8 was unlocked. She never had her own key but sometimes Defendant would hand her

 9 his keys. Defendant did not restrict Ms. Priddy’s access to any areas of the apartment

10 when she was inside. Ms. Priddy indicated that during her stay, she had kept some of

11 her clothes and some of her daughter’s clothes at the residence. She testified that she

12 had tried to leave the night before and had put her and her daughter’s clothing into

13 a box but ended up staying the night.

14   {6}   Ms. Priddy also testified that after the alleged altercation with Defendant on

15 March 7, 2013, she ended up outside of the residence and called the police. She

16 testified that when the police arrived Defendant was not present. Ms. Priddy, who was

17 unable to access the residence, asked the police for help in getting her things out of

18 the apartment. Ms. Priddy told the officers that she did not live there and was not on

19 the lease, but had been staying there. At that point, according to her testimony, the


                                              3
 1 police gained access to the residence, which was on the second story, and brought

 2 Ms. Priddy her box of clothes while she waited downstairs.

 3   {7}   Sergeant Weaver received a call for service on March 7, 2013, in reference to

 4 900 Carrizo Canyon regarding a “violent domestic.” He was the first officer to arrive

 5 to the scene. Upon arrival, Sergeant Weaver made contact with Ms. Priddy and asked

 6 her if she needed to get any items out of the residence. He apparently asked her this

 7 question because she did not have anything with her and “anybody would probably

 8 need some personal clothing or toiletry-type items.” Sergeant Weaver asked Ms.

 9 Priddy if anyone was inside of the residence, to which she responded, no.2 When

10 asked whether she had a key, Ms. Priddy said that everything was inside.3 Sergeant

11 Weaver testified that Ms. Priddy had said that she had been staying at the apartment,

12 and Sergeant Weaver was aware that Ms. Priddy and Defendant had some sort of

13 relationship based on previous incidents. Sergeant Weaver noted that the door was




           2
14            Although Sergeant Weaver testified that Ms. Priddy said no one was inside,
15   he later testified that when he approached the apartment, there was concern that there
16   could possibly be someone “or Mr. Ramos” inside of the residence. There is nothing
17   in the record to indicate that Sergeant Weaver specifically asked whether Defendant
18   was in the apartment.
         3
19         Sergeant Weaver apparently took Ms. Priddy’s statement that “everything was
20 inside” to mean that her key was inside, although Ms. Priddy never said she had a
21 key.

                                               4
 1 locked and testified that he got a key from the maintenance man at the apartment

 2 complex.

 3   {8}   Sergeant Weaver did not “specifically recall” whether he or Ms. Priddy opened

 4 the door, but he believed that he did because “there was a concern that there could

 5 possibly be somebody inside the apartment.” Based on that concern, Sergeant Weaver

 6 cleared the residence with Officer Freeman. After the officers cleared the residence,

 7 Ms. Priddy gathered her clothes and some children’s clothes and put them in a box.

 8 According to Sergeant Weaver, it took Ms. Priddy “not even maybe thirty seconds”

 9 to gather her items. Sergeant Weaver also testified that after clearing the apartment,

10 while he and Ms. Priddy were downstairs, he noticed a vehicle, matching the

11 description of the vehicle Ms. Priddy had told him Defendant was in, pull into a large

12 parking lot “across the way.” Sergeant Weaver also testified that he was told that Ms.

13 Priddy had been staying at the apartment for two days at the time of the incident.

14   {9}   Officer Freeman also testified that on March 7, 2013, he received a call to 900

15 Carrizo Canyon regarding a “violent domestic in progress.” Ms. Priddy asked Officer

16 Freeman to assist her in obtaining her belongings. According to Officer Freeman, Ms.

17 Priddy stated that her personal belongings and her child’s belongings were in the

18 apartment. She told Officer Freeman that she had been staying there recently. After

19 Sergeant Weaver had obtained a key from a maintenance man, the officers entered the


                                              5
 1 apartment. Before the officers entered, they asked Ms. Priddy whether anyone was in

 2 the apartment, and she stated that she did not know because she was asleep and was

 3 unsure if someone had entered prior to her waking up. The officers were also told,

 4 prior to entering, that a firearm was possibly obtained by Defendant. Upon entering

 5 the apartment, the officers cleared the residence to ensure the safety of the officers

 6 and Ms. Priddy. In clearing the residence, the officers looked in places where a person

 7 could be located or hiding. Officer Freeman was also told by Ms. Priddy that

 8 Defendant had “possibly left in a white SUV [and] possibly had a . . . firearm . . . with

 9 him.”

10   {10}   Officer Freeman testified that, after clearing the residence, Sergeant Weaver

11 stood with Ms. Priddy while she obtained her and her child’s property.4 At that point,

12 Officer Freeman saw, in plain view, what he believed to be drug paraphernalia on a

13 coffee table in the living room of the apartment. He saw these items after clearing the

14 apartment. He photographed the items, and the items were ultimately seized.

15   {11}   Officer Freeman testified that the purpose of entering the apartment was so that

16 Ms. Priddy could obtain her property. Officer Freeman acknowledged that Ms. Priddy



          4
17          The officers’ testimony that Ms. Priddy collected her property from the
18 apartment is inconsistent with Ms. Priddy’s testimony that the officers entered the
19 apartment and brought her the box of clothes while she waited downstairs. Despite
20 the factual discrepancy, neither party highlighted the divergent testimony on appeal.

                                                6
 1 had told him that drug paraphernalia could be present in the apartment but stated that

 2 the paraphernalia was not the officers’ priority when entering the apartment. When

 3 asked whether he made any attempts to determine if Ms. Priddy’s access to the

 4 residence was lawful, Officer Freeman stated that he learned that Ms. Priddy and

 5 Defendant had a relationship and that she had been staying at the residence recently

 6 with her child. When asked whether he had consent to enter the residence, Officer

 7 Freeman stated that he had consent from Ms. Priddy.

 8   {12}   After the hearing on the motion to suppress, the district court denied

 9 Defendant’s motion. In its order, the court found, in relevant part:

10                1.    It was reasonable for officers to believe that [Ms.] Priddy
11          had authority to enter the residence located at 900 Carrizo Canyon,
12          Apartment 235 to retrieve her personal items.

13                 2.    The Officers[’] conduct in assisting Ms. Priddy to retrieve
14          her items was reasonable and consistent with their duties under the
15          Family Violence Protection Act. [NMSA 1978,] §§ 40-13-1 to -12
16          [(1987, as amended through 2016)]; see also State v. Almanzar, 2014-
17          NMSC-001, ¶¶ 19-20, [316] P.3d 183.

18                3.     Officer Freeman and Sergeant Weaver were acting pursuant
19          to their duties as community caretakers. “The community caretaker
20          exception recognizes that warrants, probable cause, and reasonable
21          suspicion are not required when police are engaged in activities that are
22          unrelated to crime-solving.” State v. Ryon, 2005-NMSC-005, ¶ 24, 137
23          N.M. 174, 108 P.3d 1032. When Officer Freeman and Sergeant Weaver
24          entered the residence, they were no[t] engaged in activities related to
25          crime-solving.



                                               7
 1                4.     It was reasonable for officers to conduct a limited,
 2          protective search of the residence to determine whether any other
 3          individuals were present that could pose a danger to both the officers
 4          and Ms. Priddy.

 5   {13}   The day before trial, Defendant filed a motion to reconsider his motion to

 6 suppress. Defendant argued that the State failed to prove actual common authority

 7 and that apparent authority was insufficient. The court denied the motion to

 8 reconsider.

 9 DISCUSSION

10 A.       Standard of Review

11   {14}   We quote the standard of review in its entirety from State v. Hernandez, 2016-

12 NMCA-008, ¶ 10, 364 P.3d 313, cert. denied, 2015-NMCERT-012, 370 P.3d 472.

13          When we review an appeal from a determination on a motion to
14          suppress in a criminal case, we look at the totality of circumstances. We
15          view the facts in a light most favorable to the prevailing party. At the
16          same time, if the district court makes findings of fact, and if any finding
17          is attacked for lack of substantial evidence, we will review the finding
18          under a substantial evidence standard of review. If the finding is
19          supported by substantial evidence, we will defer to the court’s finding.
20          Once the operative facts are ascertained, we review the constitutional
21          reasonableness of the actions of law enforcement. A constitutional
22          reasonableness analysis engages a process of evaluating both fact and
23          law and is appropriately labeled a mixed question of fact and law.
24          Despite the fact that our review requires determinations of what the
25          operative facts are, because the process involves evaluative judgments
26          in regard to reasonableness, we review the district court’s determination
27          de novo.

28 (Citations omitted.)

                                                8
 1   {15}   The United States and New Mexico Constitutions prohibit unreasonable

 2 searches and seizures. U.S. Const. amend. IV; N.M. Const. art. II, § 10. “The

 3 touchstone of search and seizure analysis is whether a person has a constitutionally

 4 recognized expectation of privacy.” State v. Ryan, 2006-NMCA-044, ¶ 19, 139 N.M.

 5 354, 132 P.3d 1040 (internal quotation marks and citation omitted). “Among the areas

 6 afforded the greatest protection by these constitutional provisions is a person’s

 7 home.” State v. Monteleone, 2005-NMCA-129, ¶ 9, 138 N.M. 544, 123 P.3d 777.

 8 Therefore, a warrantless entry and search of a home are “presumptively unreasonable,

 9 subject only to a few specific, narrowly defined exceptions.” Ryon, 2005-NMSC-005,

10 ¶ 23; Monteleone, 2005-NMCA-129, ¶ 10 (“[A]bsent an exception to the warrant

11 requirement, the officers’ entry into [the d]efendant’s apartment was a violation of his

12 constitutional rights under both the United States and New Mexico Constitutions.”);

13 State v. Diaz, 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4 (“A search and

14 seizure conducted without a warrant is unreasonable unless it is shown to fall within

15 one of the exceptions to the warrant requirement.”). “The [prosecution] has a heavy

16 burden when it seeks to sustain a warrantless search.” Diaz, 1996-NMCA-104, ¶ 8.

17   {16}   Defendant argues that the consent exception to the warrant requirement does

18 not apply because Ms. Priddy did not have the requisite authority to consent to entry

19 and search of the apartment. The State disagrees, arguing that Ms. Priddy did have the


                                              9
 1 authority to consent. According to Defendant, neither the Family Violence Protection

 2 Act (FVPA) nor the community caretaker doctrine permits a warrantless entry in this

 3 case. Defendant also argues that a protective sweep was not justified. The State

 4 argues that the entry and search were reasonable under the FVPA and under the

 5 protective sweep rule, and thus a warrant was not required. We address the possible

 6 application of exceptions to the warrant requirement articulated by the parties.

 7 B.       Consent

 8   {17}   “A valid consensual search has been acknowledged as an exception to the

 9 warrant requirement.” Id. ¶ 9. For consent to be valid, the party giving consent must

10 have actual authority to do so and not merely apparent authority. State v. Wright,

11 1995-NMCA-016, ¶¶ 18-20, 119 N.M. 559, 893 P.2d 455 (holding that, under the

12 New Mexico Constitution, the relevant inquiry is not whether officers reasonably

13 believed that authority to consent to enter existed, but rather whether the consenting

14 party actually had authority to consent). Our appellate courts have recognized that a

15 third party can validly consent to a search of an apartment, however, that individual

16 must have “common authority over the premises.” State v. Walker, 1998-NMCA-117,

17 ¶ 8, 125 N.M. 603, 964 P.2d 164; see Diaz, 1996-NMCA-104, ¶ 9. “[C]ommon

18 authority refers to the mutual use of the property by persons generally having joint

19 access or control of the property for most purposes.” Walker, 1998-NMCA-117, ¶ 8.


                                             10
 1 “A sufficient relationship may be established by the following: (1) a right to occupy

 2 the premises, (2) unrestricted access to the premises, and (3) storage of property on

 3 the premises.” Ryan, 2006-NMCA-044, ¶ 29. The cases primarily relied upon by the

 4 parties, Wright, 1995-NMCA-016, Diaz, 1996-NMCA-104, and Walker, 1998-

 5 NMCA-117, are instructive.

 6   {18}   In Wright, two police officers approached a residence after receiving a tip that

 7 illegal drugs had been delivered to the residence and were being divided up for sale.

 8 1995-NMCA-016, ¶ 3. When the two officers neared the front door, but before they

 9 had an opportunity to knock, a woman opened the door and said, “Hi.” Id. At the

10 time, neither officer knew who owned the residence but they asked the woman if they

11 could come inside and talk. Id. The woman gave no verbal response but opened the

12 door wider and stepped back inside the residence. Id. Once inside, one of the officers

13 indicated that he became concerned about his safety because there were several

14 vehicles outside of the residence, and yet, the only person they had encountered was

15 the woman who answered the door. Id. ¶ 4. The woman was asked if anyone else was

16 in the residence, to which she responded that only she and her children were in the

17 residence. Id. After the woman showed the officers that the children were asleep in

18 a bedroom, one of the officers noticed a light coming from under a door of a different

19 bedroom and asked if anyone was in that room. Id. The woman said she did not think


                                               11
 1 so. Id. When asked if he could look in the room, the woman responded, “ ‘Oh, it’s not

 2 my place, but go ahead.’ ” Id. When one of the officers “started to open the door . . .

 3 it was immediately closed from inside.” Id. The officers reopened the door and

 4 discovered the defendant, her boyfriend, and what appeared to be drug paraphernalia.

 5 Id. ¶¶ 1, 4-5. The defendant and her boyfriend were placed under arrest, and cocaine

 6 was found on the defendant. Id. ¶ 5. The officers also found paraphernalia in the

 7 boyfriend’s van that was parked outside of the residence. Id.

 8   {19}   The prosecution argued in Wright that although the woman who answered the

 9 door did not have actual authority to grant consent to the officers’ warrantless entry

10 and search, apparent authority was sufficient. Id. ¶ 16. This Court disagreed and held

11 that reliance on the officers’ subjective belief that the woman had apparent authority

12 to give consent ran counter to the New Mexico Constitution. Id. ¶ 19. The Court

13 therefore held that “it was unreasonable for the officers . . . to rely on the consent of

14 [the woman] for the search of the closed bedroom occupied by [the defendant]” and

15 concluded that “where the [prosecution] relies upon consent to justify a warrantless

16 search of a residence, there is no ‘apparent authority’ exception under Article II,

17 Section 10 of the New Mexico Constitution.” Id. ¶ 20.

18   {20}   In Diaz, this Court considered whether a homeowner-father could consent to

19 the search of his adult son’s bedroom. 1996-NMCA-104, ¶¶ 1, 4. In Diaz, law


                                              12
 1 enforcement approached the father’s residence after receiving a tip from a

 2 confidential informant that there was marijuana at the residence. Id. ¶ 2. Upon their

 3 arrival, the agents met the defendant-son in front of the father’s residence and

 4 explained that they intended to secure the premises until a search warrant could be

 5 obtained. Id. ¶¶ 2-3. The defendant waited outside of the residence while the agents

 6 spoke with the father inside. Id. ¶ 3. The father apparently signed a consent to search

 7 form, and the agents proceeded to search the residence without a warrant. Id. ¶¶ 4-5.

 8 The father told the agents that he lived in the residence with his two sons: the

 9 defendant, who was twenty-nine, and another son who periodically stayed there. Id.

10 ¶ 4. The father stated that he owned the residence, paid all the bills, and the sons did

11 not pay rent. Id. Based on the father’s consent, the agents searched the defendant’s

12 bedroom that did not have a door but which had a blanket hanging from the top of the

13 door frame. Id. ¶ 5. The agents ultimately found marijuana. Id. At no time did the

14 agents ask the defendant for consent to search his bedroom, despite the fact that the

15 defendant was waiting in the front yard. Id. ¶ 4.

16   {21}   The Diaz Court ultimately held that the district court was correct to suppress

17 evidence discovered during the warrantless search because the prosecution failed to

18 show that the father “had both joint access for most purposes and mutual use of [the

19 d]efendant’s room.” Id. ¶¶ 1, 15. The Court held that the defendant “had far greater


                                              13
 1 access and control and a superior privacy interest” in the bedroom. Id. ¶ 16. The

 2 Court also relied upon Wright’s rejection of the apparent-authority standard and held

 3 that the prosecution’s argument that the agents had “no reason to doubt” the father’s

 4 authority was insufficient because “under Article II, Section 10 of the New Mexico

 5 Constitution, the [prosecution] was required to show the actual authority of [the

 6 father] for his third-party consent to be valid.” Diaz, 1996-NMCA-104, ¶¶ 17-18.

 7   {22}   In Walker, this Court considered whether an alleged victim had common

 8 authority to provide consent to search the apartment she shared with the defendant.

 9 1998-NMCA-117, ¶¶ 1-2, 8. In Walker, the alleged victim had been living with the

10 defendant for approximately six years. Id. ¶ 2. With the exception of about one

11 month, a year prior to the events in question, the victim had been living for

12 approximately one and one-half years at the specific apartment that was ultimately

13 searched. Id. The victim ate there, slept there, kept all of her personal belongings

14 there, and had complete access to the apartment. Id. At one time she had a key to the

15 apartment, but had lost it. Id. According to the victim, “during the latter period of her

16 cohabitation with [the d]efendant, . . . he physically assaulted her and he prevented

17 her from freely leaving the apartment.” Id. ¶ 3. At some point, she was able to escape

18 and rode her bicycle to the hospital. Id. ¶ 4. At the hospital, security personnel

19 contacted the police, and the victim ultimately returned to the apartment with the


                                              14
 1 police. Id. At that time, the victim signed a consent form authorizing the police

 2 officers to search the apartment. Id.

 3   {23}   In holding that the victim had common authority over the apartment, this Court

 4 noted that the victim “had lived there for approximately one and one-half years, her

 5 personal belongings were in various locations throughout the apartment, and she had

 6 access to all rooms in the apartment.” Id. ¶ 9. The Court held that neither the fact that

 7 the victim did not have a key at the time she gave consent, nor the fact that she

 8 ultimately fled the apartment, divested her of common authority over the apartment.

 9 Id. ¶¶ 1, 10, 13. Because the victim “possessed the requisite relationship to the

10 apartment to allow her to consent to its search[,]” this Court reversed the trial court’s

11 order of suppression. Id. ¶¶ 13, 15.

12   {24}   Defendant argues that the district court erred in denying his motion to suppress

13 because Ms. Priddy did not possess actual common authority to consent to an entry

14 and search of Defendant’s apartment. Defendant argues that Ms. Priddy did not have

15 common authority because he did not give her unrestricted access to his apartment,

16 and she was simply a houseguest for two to four days. Defendant notes that Ms.

17 Priddy did not have her own key to the apartment and highlights testimony from Ms.

18 Priddy that she did not live at Defendant’s apartment, but rather had only been staying

19 there for a few days. He also highlights that, at the suppression hearing, Ms. Priddy


                                               15
 1 could not remember Defendant’s address. Defendant compares and analogizes this

 2 case to Wright, arguing that his reasonable expectation of privacy was intruded upon

 3 when the officers acted on apparent authority and not actual authority. Defendant also

 4 argues that, as in Diaz, the evidence should be suppressed because Defendant had a

 5 superior privacy interest in his apartment. Defendant contrasts the facts in this case

 6 to those in Walker, arguing that Ms. Priddy was staying at the apartment for a

 7 significantly shorter period than the victim in Walker. He also argues that, unlike the

 8 victim in Walker, who had possessions throughout the apartment, Ms. Priddy had all

 9 of her items stored in a box in the hallway.

10   {25}   The State responds that Ms. Priddy had common authority and a sufficient

11 relationship to the apartment, such that she was able to consent to the officers’ entry.

12 The State argues that Ms. Priddy had unrestricted access to all areas of the apartment,

13 that she and Defendant shared a key and bedroom, and that Ms. Priddy’s daughter,

14 of whom Defendant was possibly the father, lived with them part of the time when

15 they were at the apartment. The State also argues that Ms. Priddy kept essential

16 belongings in the apartment for herself and her daughter. The State attempts to

17 contrast the facts in this case to the facts in Diaz by arguing that the son in Diaz had

18 a superior privacy interest, while Defendant in this case had no such interest. The

19 State also compares the present case to Walker and argues that, as in Walker,


                                              16
 1 Defendant could have no reasonable expectation that Ms. Priddy would not return

 2 accompanied by the police or to retrieve her belongings. Finally, the State points to

 3 language in Wright that “strongly suggested that ‘five to ten minutes’ in a bedroom

 4 [was] sufficient for a co-occupant to consent to a search.”

 5   {26}   We agree with Defendant that, under our case law, Ms. Priddy did not have

 6 actual common authority over the apartment. Ms. Priddy had been staying at the

 7 apartment for two to four days, unlike the alleged victim in Walker who had been

 8 living at the apartment for one and one-half years. Unlike the alleged victim in

 9 Walker, who apparently had a key but lost it, Ms. Priddy testified that she never had

10 a key and that she entered only when Defendant let her in, when Defendant gave her

11 his key, or when the door was unlocked. Ms. Priddy testified that she told the officers

12 that she was staying at the apartment but that she did not live there. Although Ms.

13 Priddy was permitted to move freely about the one-bedroom apartment when she was

14 in the apartment and kept some clothing at the apartment during the few days that she

15 stayed there, those facts are insufficient on their own and in light of the other facts in

16 this case to establish common authority. This case is more comparable to Diaz, where

17 this Court held that the consenting party did not have the requisite authority to

18 consent because Defendant had “far greater access and control and a superior privacy

19 interest” in the apartment. 1996-NMCA-104, ¶ 16.


                                               17
 1   {27}   We agree with Defendant that the district court’s finding that “[i]t was

 2 reasonable for officers to believe that [Ms.] Priddy had authority to enter [the

 3 apartment]” signifies or indicates apparent authority, which does not fall within a

 4 recognized exception to the warrant requirement in New Mexico. This Court in

 5 Wright specifically rejected apparent authority as the standard, where the prosecution

 6 argued that evidence should not be suppressed because “the officers reasonably

 7 believed that [the individual giving consent] possessed common authority over the

 8 premises.” 1995-NMCA-016, ¶¶ 17, 19; see also Diaz, 1996-NMCA-104, ¶ 17

 9 (restating the holding in Wright that “when the police are relying upon the consent

10 of a third party to conduct a warrantless search of another’s premises, the third party

11 must have actual, not apparent, authority to grant that consent”). The district court in

12 this case did not determine that Ms. Priddy had actual authority to consent to the entry

13 and search. Under Wright, the reasonableness of the officers’ belief that Ms. Priddy

14 had authority to consent was insufficient and cannot form a proper basis for

15 warrantless entry and search because, as a matter of law, “where the [prosecution]

16 relies upon consent to justify a warrantless search of a residence, there is no ‘apparent

17 authority’ exception under Article II, Section 10 of the New Mexico Constitution.”

18 Wright, 1995-NMCA-016, ¶ 20.




                                              18
 1 C.       Protective Sweep Rule, Community Caretaker Doctrine, and the FVPA

 2   {28}   Before getting into the parties’ arguments and the relevant law as to the

 3 remaining exceptions, we begin by noting that the State’s argument as to which

 4 exception (or combination of exceptions) to the warrant requirement applies is

 5 unclear. When arguing before the district court, it appears that the State intended to

 6 assert that the warrantless search was valid because the community caretaker

 7 exception applied, and the FVPA somehow tapped into that exception. However, on

 8 appeal, the State seems to suggest that the FVPA creates a new exception to the

 9 warrant requirement. Additionally, the State seems to contend on appeal that the

10 warrantless entry was acceptable because it was part of a protective sweep that was

11 properly conducted given that the officers were acting in a community caretaker

12 capacity and/or pursuant to the FVPA.

13 1.       Protective Sweep Rule

14   {29}   In New Mexico, under limited circumstances, a warrantless search, and

15 arguably entry, may be permissible under the protective sweep rule. See State v.

16 Valdez, 1990-NMCA-134, ¶ 8, 111 N.M. 438, 806 P.2d 578 (indicating that the

17 United States Supreme Court recognized the “protective sweep rule” as an exception

18 to the warrant requirement and stating that the rule is recognized in New Mexico); see

19 also State v. Jacobs, 2000-NMSC-026, ¶¶ 33, 36-38, 129 N.M. 448, 10 P.3d 127


                                             19
 1 (upholding a warrantless entry into and search of the defendant’s home as part of a

 2 protective sweep). A protective sweep is “a quick and limited search of premises,

 3 incident to an arrest and conducted to protect the safety of police officers or others.”

 4 State v. Trudelle, 2007-NMCA-066, ¶ 21, 142 N.M. 18, 162 P.3d 173 (internal

 5 quotation marks and citation omitted). “A protective sweep may be undertaken if the

 6 searching officers possess a reasonable belief based on specific and articulable facts

 7 which, taken together with the rational inferences from those facts, reasonably

 8 warrants the officer in believing that the area swept harbored an individual posing a

 9 danger to the officer or others. However, a protective sweep is only allowed incident

10 to a lawful arrest.” Id. (alterations, emphasis, internal quotation marks, and citations

11 omitted); Valdez, 1990-NMCA-134, ¶ 9.

12   {30}   Defendant argues that a protective sweep was not justified in this case because

13 there was no reasonable belief of a danger in the apartment and because the officers

14 were not acting pursuant to an arrest. He further argues that the officers knew that

15 Defendant had left the apartment and argues that relying on some highly remote

16 possibility that someone may have come into the apartment while Ms. Priddy was

17 napping was unreasonable.

18   {31}   The State responds that a protective sweep of the premises was reasonable

19 because the officers “had no way of knowing who was in the [apartment] or what


                                              20
 1 weapons might be there[,]” relying on Jacobs, 2000-NMSC-026, ¶ 38. The State

 2 contends that the officers were told that someone may have entered the residence

 3 while Ms. Priddy was asleep and that Defendant had purchased a firearm. Thus, the

 4 State concludes, the officers reasonably believed that a security sweep of the premises

 5 was required for their and Ms. Priddy’s safety.

 6   {32}   Here, there was no valid protective sweep because the sweep was not done

 7 incident to a lawful arrest. No one was arrested at the scene of the alleged domestic

 8 violence incident. Also, the officers did not articulate facts that would justify a

 9 protective sweep. Ms. Priddy’s response that she could not be sure that someone had

10 not entered the apartment while she was sleeping did not constitute specific and

11 articulable facts that reasonably warranted the officers’ belief that the apartment

12 harbored an individual posing a danger to the officers or to Ms. Priddy. See Trudelle,

13 2007-NMCA-066, ¶ 21. Although Sergeant Weaver testified that there was concern

14 that “somebody” or Defendant could be in the apartment, that statement was

15 contradicted by Ms. Priddy, who testified that Defendant was not at the apartment and

16 had left by the time the officers arrived, as well as by Officer Freeman, who testified

17 that Ms. Priddy said Defendant had “possibly left in a white SUV[.]” To allow a

18 sweep on the facts as argued by the State in this case would inappropriately expand

19 the protective sweep rule. Defendant, having left the scene, and potentially having


                                             21
 1 possession of a firearm, did not reasonably support the officers’ belief that the

 2 apartment harbored an individual posing a danger.

 3 2.       The FVPA and Community Caretaker Doctrine

 4   {33}   Defendant next argues that the FVPA did not allow the officers to enter his

 5 residence without a warrant. He argues that the officers did not determine that the

 6 clothing Ms. Priddy sought was necessary for her immediate needs as required by the

 7 FVPA. See § 40-13-7(B)(3). He also argues that, under the FVPA, the officers were

 8 obligated to determine whether Ms. Priddy had lawful authority to enter the apartment

 9 in order to assist her in retrieving items from inside. Finally, Defendant argues that

10 the district court’s reliance on the community caretaker exception was in error

11 because law enforcement is only permitted to enter a person’s residence without

12 consent or a warrant if there is a strong sense of emergency that requires the

13 immediate need for assistance for the protection of life or property.

14   {34}   The State responds by relying on the plain language of the FVPA, which places

15 an affirmative duty on law enforcement to assist and protect victims of domestic

16 violence. It argues that leaving Ms. Priddy to “fend for herself” outside of the

17 apartment would have exposed her to the very real danger of additional violence. The

18 State argues that Ms. Priddy was determined to retrieve her belongings, and the only

19 way to separate her from Defendant was to remove her from the vicinity of the


                                              22
 1 residence. The State contends that to ensure that Ms. Priddy would not return, it was

 2 necessary to retrieve her belongings.

 3   {35}   Insofar as the State is attempting to argue that the FVPA creates a new

 4 exception to the warrant requirement, we are unconvinced. According to the FVPA,

 5 “[a] person who allegedly has been a victim of domestic abuse may request the

 6 assistance of a local law enforcement agency.” Section 40-13-7(A). “A local law

 7 enforcement officer responding to the request for assistance shall be required to take

 8 whatever steps are reasonably necessary to protect the victim from further domestic

 9 abuse, including . . . upon the request of the victim, accompanying the victim to the

10 victim’s residence to obtain the victim’s clothing and personal effects required for

11 immediate needs and the clothing and personal effects of any children then in the care

12 of the victim[.]” Section 40-13-7(B)(3). Despite the State’s position that the officers

13 in this case were allowed to enter Defendant’s apartment without a warrant because

14 of the duty to take reasonable steps to protect a domestic violence victim as

15 articulated in the FVPA, the plain language of the FVPA does not authorize or even

16 suggest that it can be used to justify a warrantless entry into a residence. The FVPA

17 indicates that law enforcement may accompany a victim to the victim’s residence. Id.

18 The FVPA does not state that law enforcement officers have carte blanche to enter

19 a private residence without a warrant.


                                             23
 1   {36}   As to the State’s attempt to piggyback the FVPA onto the community caretaker

 2 exception, we again are unconvinced. In Ryon, our Supreme Court clarified the scope

 3 of the community caretaker exception in New Mexico. 2005-NMSC-005, ¶ 1. “The

 4 community caretaker exception recognizes that warrants, probable cause, and

 5 reasonable suspicion are not required when police are engaged in activities that are

 6 unrelated to crime-solving.” Id. ¶ 24. The Ryon Court noted that there are actually

 7 three distinct doctrines that have emerged within the exception: the emergency aid

 8 doctrine, the automobile impoundment and inventory doctrine, and the community

 9 caretaking doctrine. Id. ¶ 25. “The emergency [aid] doctrine applies to . . . warrantless

10 intrusions into personal residences[, while t]he . . . community caretaker . . . doctrine

11 deals primarily with warrantless searches and seizures of automobiles[.]” Id. ¶ 26

12 (internal quotation marks and citations omitted). According to Ryon, “[s]ince the

13 privacy expectation is strongest in the home[,] only a genuine emergency will justify

14 entering and searching a home without a warrant and without consent[.]” Id.; see

15 Trudelle, 2007-NMCA-066, ¶ 35 (“Our Supreme Court has stated that, when police

16 conduct a warrantless search of a home in their community caretaking capacity, the

17 search must be analyzed under the emergency assistance branch of the community

18 caretaker exception.”). “To justify the warrantless intrusion into a private residence

19 under the emergency assistance doctrine, officers must have credible and specific


                                              24
 1 information that a victim is very likely to be located at a particular place and in need

 2 of immediate aid to avoid great bodily harm or death.” Ryon, 2005-NMSC-005, ¶ 42.

 3   {37}   In this case, the district court improperly relied on the general community

 4 caretaker doctrine that deals primarily with warrantless searches and seizures of

 5 automobiles. See id. ¶ 26. That the FVPA contemplates law enforcement assistance

 6 to protect a victim of domestic violence from further abuse when retrieving items

 7 from inside the victim’s residence does not circumvent the requirement that only a

 8 genuine emergency will justify entering and searching a residence without a warrant

 9 and without consent. See id. In this case, there are no allegations and there is no

10 evidence in the record of an emergency inside the residence that necessitated entry

11 under the emergency aid doctrine. By all accounts, the officers did not enter

12 Defendant’s apartment to assist someone in need of immediate aid to avoid great

13 bodily harm or death. Because Ryon holds that only a genuine emergency will justify

14 entering and searching a home without a warrant and without consent and because

15 there was no indication of an emergency inside the apartment justifying a warrantless

16 entry, the community caretaker exception does not apply.

17 CONCLUSION

18   {38}   For the foregoing reasons, the district court erroneously denied Defendant’s

19 motion to suppress, and the district court’s order denying Defendant’s motion to


                                              25
1 suppress is reversed. This matter is remanded for further proceedings consistent with

2 this opinion.

3   {39}   IT IS SO ORDERED.


4                                        __________________________________
5                                        JONATHAN B. SUTIN, Judge

6 WE CONCUR:


7 _______________________________
8 JAMES J. WECHSLER, Judge


 9 _______________________________
10 J. MILES HANISEE, Judge




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