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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                        No. A-1-CA-34703

 5 KAYLEE ORTIZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Fred T. Van Soelen, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Walter Hart, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Robert E. Tangora, L.L.C.
15 Robert E. Tangora
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 HANISEE, Judge.
                                                                                          
      

 1   {1}   Defendant appeals from the district court’s denial of her motion to suppress

 2 evidence. She argues that the State failed to meet its burden of proving that the

 3 warrantless search of her purse following her arrest either (1) met the requirements

 4 of the search-incident-to-arrest exception to the warrant requirement, or (2) would

 5 have occurred upon an inventory search at the jail, thereby bringing the evidence

 6 seized within the inevitable discovery exception to the exclusionary rule. We agree

 7 with Defendant and reverse.

 8 BACKGROUND

 9   {2}   On August 2, 2013, City of Clovis police officer Jonathan Howard went to

10 Defendant’s home to execute a warrant for Defendant’s arrest for criminal

11 trespassing. Officer Howard and another officer, Officer James Gurule, observed

12 Defendant in the alley near her home and made contact with her there. Defendant

13 was carrying a purse at the time, which Officer Howard searched after Officer

14 Gurule placed Defendant under arrest. Officer Howard found a “small knife” in the

15 purse as well as two flashlights that were identical in appearance but differed in

16 weight, which Officer Howard described as “kind of suspicious.” Officer Howard

17 opened both flashlights and found a “baggie” containing what he believed was

18 methamphetamine inside the lighter one. Defendant was subsequently charged




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 1 with one count of possession of a controlled substance in violation of NMSA 1978,

 2 Section 30-31-23(E) (2011).

 3   {3}   Defendant filed a pre-trial motion to suppress the evidence discovered

 4 during the warrantless search of her purse. In response, the State argued that the

 5 search fell within the search incident to arrest exception to the warrant

 6 requirement. At the suppression hearing, Officer Howard was the only witness to

 7 testify for the State. The State elicited the following testimony from Officer

 8 Howard regarding what happened once he and Officer Gurule made contact with

 9 Defendant in the alley:

10         Prosecutor:       Was . . . Defendant carrying anything at the time?

11         Officer Howard:   She had a purse.

12         Prosecutor:       How was she carrying it?

13         Officer Howard:   Up over her shoulder.

14         Prosecutor:       At that time, was there anyone other than yourself,
15                           Officer Gurule, and . . . Defendant in the alley?

16         Officer Howard:   No, sir.

17         Prosecutor:       Did you arrest . . . Defendant pursuant to the
18                           warrant you knew of? . . .

19         Officer Howard:   Yes, sir, I told her she was under arrest . . . for the
20                           criminal trespass she had committed earlier.



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 1       Prosecutor:        After placing her under arrest pursuant to that
 2                          warrant, did you conduct any search?

 3       Officer Howard:    Yes, I went ahead and searched the purse.

 4       Prosecutor:        Did she make any comment to you when you
 5                          started to search the purse?

 6       Officer Howard:    She wanted the purse to be given to her brother,
 7                          and she had called [out] for him, but he wasn’t
 8                          there in the alley.
 9 After Officer Howard     described what he discovered during his search of

10 Defendant’s purse—including the “baggie” containing what he suspected to be

11 methamphetamine that he located inside one of the flashlights inside the purse—

12 the State next asked Officer Howard:

13       Prosecutor:        And then what did you do with regard to the purse
14                          and with regard to . . . Defendant?

15       Officer Howard:    We took ‘em to the detention center, where we
16                          dropped . . . Defendant off. We left the purse,
17                          except for the—I think I left the knife, but I
18                          [handed] it to the people in the booking area. [I]
19                          took the flashlight with the methamphetamine back
20                          to the station.

21       Prosecutor:        So, when you arrived at the station, . . . the purse
22                          was given to the booking agents at the detention
23                          facility?

24       Officer Howard:    Yes, sir.

25       Prosecutor:        But the flashlight containing the controlled
26                          substance was taken by you to the department to
27                          be logged into evidence?

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 1         Officer Howard:    Yes, sir, and to be field tested.

 2 The State elicited no further testimony from Officer Howard regarding the search

 3 or his activities related to Defendant’s arrest.

 4   {4}   In asking the district court to deny Defendant’s motion, the State argued that

 5 the search-incident-to-arrest exception to the warrant requirement applied to this

 6 case. Specifically, the State argued that “in this case, the purse was on the shoulder

 7 of . . . Defendant at the time the arrest was effected” and that the purse “was

 8 certainly within her immediate control.” The State pointed to no other evidence

 9 supporting a finding that the search occurred incident to arrest, advanced no other

10 arguments as to other exceptions to the warrant requirement or the exclusionary

11 rule, and proffered no additional evidence to support an alternative basis for

12 finding the warrantless search to be constitutionally reasonable.

13   {5}   The district court found that the search of Defendant’s purse was incident to

14 her arrest based on the fact that Defendant was “wearing the purse, she’s got the

15 purse on her person” and that “it’s the same thing as searching a person’s pockets

16 when you arrest someone.” The district court additionally found that “when you go

17 to the jail, if you’ve got the purse with you, it’s going to be searched at the jail.”

18 The district court then stated, “I think there’s probably an inevitable discovery rule.

19 It would have been . . . searched at some point anyway.” The district court

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 1 concluded that a warrant was not required because (1) the search was incident to a

 2 lawful arrest, and (2) “the purse would have been searched at the jail pursuant to

 3 their policy, anyway, and the contents would have been logged in[] . . . [at] the jail,

 4 and the items would’ve been found at that time anyway, so inevitable discovery

 5 also would have resulted in the seizure of this evidence.” Thus, the district court

 6 denied Defendant’s motion to suppress the evidence seized from her purse.

 7 Defendant was subsequently convicted by a jury of possession of a controlled

 8 substance.

 9 DISCUSSION

10 Standard of Review

11   {6}   “Appellate review of a motion to suppress presents a mixed question of law

12 and fact.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal

13 quotation marks and citation omitted). We review “factual matters with deference

14 to the district court’s findings if substantial evidence exists to support them,” State

15 v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183, and we review the legal

16 conclusions of the district court de novo. State v. Rowell, 2008-NMSC-041, ¶ 8,

17 144 N.M. 371, 188 P.3d 95.

18 Warrantless Searches Are Presumptively Unreasonable, and the State Bears
19 the Burden of Proving the Reasonableness of a Warrantless Search



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 1   {7}   “Both the Fourth Amendment to the United States Constitution and Article

 2 II, Section 10, of the New Mexico Constitution protect the right of the people to be

 3 free from unreasonable searches and seizures.” State v. Gutierrez, 2004-NMCA-

 4 081, ¶ 6, 136 N.M. 18, 94 P.3d 18. “Any warrantless search analysis must start

 5 with the bedrock principle of both federal and state constitutional jurisprudence

 6 that searches conducted outside the judicial process, without prior approval by

 7 judge or magistrate, are per se unreasonable, subject only to well-delineated

 8 exceptions.” Rowell, 2008-NMSC-041, ¶ 10 (internal quotation marks and citation

 9 omitted). “One of the most firmly established exceptions to the warrant

10 requirement is the right on the part of the government . . . to search the person of

11 the accused when legally arrested.” Id. ¶ 13 (internal quotation marks and citation

12 omitted). Known as a search incident to arrest, this exception includes searching

13 not only the person of the accused but also the area within the arrestee’s

14 “immediate control.” See State v. Arredondo, 1997-NMCA-081, ¶ 27, 123 N.M.

15 628, 944 P.2d 276, overruled on other grounds by State v. Steinzig, 1999-NMCA-

16 107, ¶ 29, 127 N.M. 752, 987 P.2d 409. The exception is not unlimited, and “the

17 [s]tate bears the burden of proving the reasonableness” of the search by

18 demonstrating through the presentation of evidence the applicability of the

19 exception. State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d 1025.


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 1   {8}   To prove the reasonableness of a search incident to arrest, the state must

 2 prove that the search “occurs as a contemporaneous incident to the lawful arrest of

 3 the defendant and is confined to the area within the defendant’s immediate

 4 control.” Arredondo, 1997-NMCA-081, ¶ 27. Specifically, the state “must prove

 5 the ability of the [arrestee] to gain possession of a weapon to use against the

 6 officer, or to gain possession of evidence and conceal or destroy it.” State v.

 7 Rowell, 2007-NMCA-075, ¶ 20, 141 N.M. 783, 161 P.3d 280, rev’d on other

 8 grounds by Rowell, 2008-NMSC-041, ¶ 36; see Chimel v. California, 395 U.S.

 9 752, 763 (1969) (construing the phrase “within [the defendant’s] immediate

10 control” as meaning “the area from within which he might gain possession of a

11 weapon or destructible evidence” (internal quotation marks omitted)). Where the

12 state makes no showing either that a weapon is accessible to the arrestee or that

13 there exists a danger that additional evidence might be destroyed or concealed, the

14 state has not met its burden of establishing the reasonableness of the search

15 incident to arrest. See Rowell, 2008-NMSC-041, ¶ 25; Arredondo, 1997-NMCA-

16 081, ¶ 29. That is because New Mexico’s “search incident to arrest exception is a

17 rule of reasonableness anchored in the specific circumstances facing an officer.”

18 Rowell, 2008-NMSC-041, ¶ 24. Where there is no evidence that the warrantless

19 search was based on “the practical need to prevent the arrestee from destroying


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 1 evidence or obtaining access to weapons or instruments of escape,” the search is

 2 not reasonable. Id. ¶ 13.

 3   {9}   Here, the only basis the State provides to justify the warrantless search of

 4 Defendant’s purse is “that Defendant was arrested with the purse on her shoulder”

 5 and that Officer Howard “searched the purse and flashlight immediately after

 6 placing Defendant under arrest.” For clarification, we note that Officer Howard did

 7 not testify that “Defendant was arrested with the purse on her shoulder” as the

 8 State characterizes the evidence on appeal. Officer Howard testified that when he

 9 and Officer Gurule made contact with Defendant in the alley, she “was carrying a

10 purse . . . up over her shoulder.” Nothing in Officer Howard’s testimony either

11 establishes or even suggests that the purse remained either on Defendant’s shoulder

12 after she was placed under arrest or, critically, within her “immediate control,” i.e.,

13 “the area from within which [s]he might gain possession of a weapon or

14 destructible evidence[,]” at the time Officer Howard searched it. Chimel, 395 U.S.

15 at 763. The fact that a person is carrying a purse, bag, or other container at the time

16 police make contact with her in executing an arrest warrant does not alone provide

17 an officer per se authority to search the item. See State v. Armendariz-Nunez, 2012-

18 NMCA-041, ¶ 10, 276 P.3d 963 (explaining that this Court “has eschewed bright-




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 1 line rules and instead emphasized the fact-specific nature of the reasonableness

 2 inquiry” (alterations, internal quotation marks, and citation omitted)). Indeed,

 3          [o]nce law enforcement officers have reduced luggage or other
 4          personal property not immediately associated with the person of the
 5          arrestee to their exclusive control and there is no longer any danger
 6          that the arrestee might gain access to the property to seize a weapon or
 7          destroy evidence[,] the search of that property is no longer an incident
 8          of the arrest.

 9 State v. Kaiser, 1978-NMCA-023, ¶ 13, 91 N.M. 611, 577 P.2d 1257 (internal

10 quotation marks and citation omitted). We conclude that on the limited evidence in

11 the record, the State failed to meet its burden of proving that Officer Howard’s

12 search of Defendant’s purse—including his removal and disassembly of the

13 flashlights he found inside—was reasonable as a search incident to arrest. See

14 generally State v. Saiz, 2008-NMSC-048, ¶ 17, 144 N.M. 663, 191 P.3d 521

15 (observing that the well-recognized exception to the warrant requirement for

16 searches incident to a custodial arrest permits “the search of an arrestee’s person

17 and any other area within the arrestee’s access” (emphasis added)), abrogated on

18 other grounds by State v. Belanger, 2009-NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210

19 P.3d 783.

20   {10}   We next consider whether the inevitable discovery doctrine—the alternative

21 basis on which the district court relied to deny Defendant’s motion to suppress—

22 may nevertheless save the evidence seized from Defendant’s purse from exclusion.

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 1 Applicability of the Inevitable Discovery Doctrine

 2   {11}   “Under the exclusionary rule, evidence that is unconstitutionally obtained is

 3 inadmissible at trial.” Gutierrez, 2004-NMCA-081, ¶ 6 (alteration, internal

 4 quotation marks, and citation omitted). “The inevitable discovery doctrine is an

 5 exception to the exclusionary rule that permits the admission of unlawfully seized

 6 evidence if that evidence would have been seized independently and lawfully in

 7 due course.” State v. Barragan, 2001-NMCA-086, ¶ 18, 131 N.M. 281, 34 P.3d

 8 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6,

 9 275 P.3d 110. The rule of inevitable discovery provides that “evidence originally

10 obtained through illegal means, which would, in all likelihood, inevitably have

11 been discovered through independent lawful means, is admissible at trial.” State v.

12 Corneau, 1989-NMCA-040, ¶ 37, 109 N.M. 81, 781 P.2d 1159. Establishing, for

13 example, that a standard inventory search following arrest would have

14 independently led to the seizure of the same evidence obtained through the initial

15 unlawful seizure may provide a proper basis for a district court to conclude that the

16 evidence should not be excluded. See State v. Johnson, 1996-NMCA-117, ¶¶ 18,

17 19, 22, 122 N.M. 713, 930 P.2d 1165. “[T]he inevitable discovery doctrine requires

18 a trial court to make factual determinations,” meaning that the state must present




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 1 sufficient evidence to support a factual finding of inevitable discovery. Barragan,

 2 2001-NMCA-086, ¶¶ 17-18.

 3   {12}   To prevail under the theory of inevitable discovery based on an inventory

 4 search, the state must introduce, inter alia, evidence allowing the district court to

 5 find that “an inventory that would have revealed the [improperly seized evidence]

 6 was standard procedure.” Id. ¶ 18. As with all warrantless search and seizure

 7 analyses, the touchstone for determining the constitutionality of an inventory

 8 search is whether it was reasonable. See State v. Ruffino, 1980-NMSC-072, ¶ 5, 94

 9 N.M. 500, 612 P.2d 1311 (explaining that one of the “requirements for an

10 inventory search” is that it “must be reasonable”). “[I]nventory searches are

11 presumed to be unreasonable[,] and the burden of establishing their validity is on

12 the [s]tate.” State v. Davis, 2018-NMSC-001, ¶ 11, 408 P.3d 576 (internal

13 quotation marks and citation omitted). “An inventory search is reasonable if it is

14 made to protect the arrestee’s property, to protect police against claims of lost or

15 stolen property, or to protect police from potential danger.” Johnson, 1996-

16 NMCA-117, ¶ 15. Thus, “[a] search for purposes of making an inventory can

17 include the search of containers so long as it is conducted according to established

18 procedure.” Id.; see Davis, 2018-NMSC-001, ¶ 12 (“An inventory search is valid if

19 (1) the police have control or custody of the object of the search[,] (2) the


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 1 inventory search is conducted in conformity with established police regulations[,]

 2 and (3) the search is reasonable.”).

 3   {13}   Where there is evidence that “it was standard procedure to conduct an

 4 inventory search” upon taking an arrestee to a detention facility, the evidence

 5 seized as a result of the inventory search is admissible under the doctrine of

 6 inevitable discovery. See Johnson, 1996-NMCA-117, ¶¶ 6, 18, 19, 22 (explaining

 7 that “the officers testified that it was standard procedure to inventory all personal

 8 belongings of intoxicated persons brought in for detoxification” and thus

 9 concluding that “an inventory search of [the d]efendant’s belongings was

10 inevitable”); see also State v. Romero, 2001-NMCA-046, ¶¶ 15-17, 130 N.M. 579,

11 28 P.3d 1120 (explaining that a deputy testified regarding the “standard procedure”

12 used to inventory the personal items of an arrestee as well as the purpose of the

13 inventory search, and concluding that based on that testimony, “the [s]tate met its

14 burden in demonstrating that the cocaine would have been inevitably discovered

15 during a lawful inventory search pursuant to the arrest”). Where, however, there is

16 “no evidence regarding a standard inventory procedure[,]” this Court has rejected

17 the inevitable discovery doctrine as a basis for affirming denial of a suppression

18 motion. Barragan, 2001-NMCA-086, ¶ 18; see Arredondo, 1997-NMCA-081,

19 ¶¶ 30, 32 (holding that the state “did not meet its burden of proving that the seizure


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 1 of cocaine [from a small hole in the dashboard of the defendant’s vehicle] was

 2 justified as the inevitable result of an inventory search” where “the [s]tate pointed

 3 to no evidence in the record to establish that an inventory search of [the

 4 d]efendant’s vehicle was made pursuant to established police regulations”).

 5   {14}   Here, as in Barragan and Arredondo, there was no evidence adduced

 6 whatsoever regarding inventory procedures at the detention center to which

 7 Defendant was taken. Notably, the State did not even advance the inevitable

 8 discovery doctrine as a basis for denying Defendant’s motion, instead relying

 9 solely on its theory that the search was permissible as incident to Defendant’s

10 arrest. It was the district court that sua sponte suggested that the inevitable

11 discovery rule might apply. Even assuming arguendo that the district court’s sua

12 sponte observation that Defendant’s purse “would have been searched . . . at some

13 point anyway” could be construed as taking judicial notice of the fact that an

14 inventory search would have been conducted at some point, there is no evidence in

15 the record either that the unidentified detention center where Defendant was taken

16 had a standard inventory procedure or that the facility’s inventory procedure

17 included as a standard practice searching a container within a container. Cf.

18 Romero, 2001-NMCA-046, ¶¶ 16-17; Johnson, 1996-NMCA-117, ¶ 18. Therefore,




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 1 we conclude that the State did not meet its burden of proving the applicability of

 2 the inevitable discovery exception. 

 3   {15}   Our Supreme Court has cautioned that New Mexico courts “cannot excuse

 4 an unlawful search in violation of the constitutional rights of any citizen when

 5 police could have performed a lawful search but failed to do so.” State v. Haidle,

 6 2012-NMSC-033, ¶ 41, 285 P.3d 668. “Where the state has transgressed the

 7 constitutional rights of a person accused of a crime, we will not sanction that

 8 conduct by turning the other cheek.” Id. (internal quotation marks and citation

 9 omitted). In noting and relying on the fact that inventory searches are customary,

10 the district court effectively adopted the same “sweeping [the police]-could-have-

11 done-it-lawfully-so-it-doesn’t-matter-that-[they]-didn’t     view   of   the   limited

12 inevitable discovery exception” that our Supreme Court rejected in Haidle. Id.

13 ¶ 39. Because the record, here, is void of even a scintilla of evidence that would

14 allow anything more than a speculative conclusion that the “baggie” inside the

15 flashlight inside Defendant’s purse would have been found upon her arrival at the

16 detention facility, we conclude that the district court erred in finding that the

17 discovery of the illegally seized evidence was inevitable.

18 CONCLUSION




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 1   {16}   For the foregoing reasons, we reverse the district court’s denial of

 2 Defendant’s motion to suppress the evidence seized from her purse and remand to

 3 the district court for further proceedings in light of this opinion.

 4   {17}   IT IS SO ORDERED.

 5                                                 ______________________________
 6                                                 J. MILES HANISEE, Judge

 7 WE CONCUR:


 8 ___________________________________
 9 MICHAEL E. VIGIL, Judge


10 ___________________________________
11 STEPHEN G. FRENCH, Judge




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