       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _______________

Filing Date: May 23, 2013

Docket No. 30,741

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

MISTY LIGHT,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
J. Richard Brown, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellant

Gorence & Oliveros, P.C.
Robert J. Gorence
Albuquerque, NM

for Appellee

                                        OPINION

WECHSLER, Judge.

{1}     The State appeals the district court’s order granting Defendant Misty Light’s motion
to suppress. We find no error. The search warrant was impermissibly broad in allowing
officers to search “all persons” located on the premises when the only evidence tying
Defendant to any crime was her presence at an event that was open to the public where
illegal activity was taking place. Finally, the officers were not justified in searching
Defendant’s purse due to the lack of evidence tying Defendant to the criminal activity taking

                                             1
place on the premises and because the officers knew the purse belonged to Defendant.
Accordingly, we affirm the order suppressing the evidence found in Defendant’s purse and
her subsequent statements to the officers.

BACKGROUND

{2}      We summarize the underlying facts in the light most favorable to the district court’s
ruling. See State v. Flores, 2008-NMCA-074, ¶ 2, 144 N.M. 217, 185 P.3d 1067. Initially,
we note that the parties stipulated to certain facts based on evidence presented at the
suppression hearings in the companion case of State v. Bradley Light, CR-20090215. The
district court incorporated those facts into its findings in this matter, and the testimony from
those hearings is part of the record in this case.

{3}     Police had been conducting an investigation of Bradley Light (Light), the owner of
the Cavern Theater (the theater), for alleged drug trafficking. The officers had information
that Light was selling and allowing the use of illegal drugs in the theater. They also had
information that Light was hosting circuit or “rave” parties at the theater. At these parties,
drugs, primarily ecstasy and marijuana, were being sold and consumed, and underage
persons were consuming alcohol.

{4}     Officer Allen Sanchez, an officer with the Carlsbad Police Department assigned as
an agent to the Pecos Valley Drug Task Force, learned that Light would be hosting a rave
party at the theater on May 9, 2009. Sanchez arranged for Arturo Holguin, a law
enforcement officer working with the Otero County Narcotics Enforcement Unit, to attend
the party and report back to Sanchez as to what transpired.

{5}     Holguin went inside the theater at about 10:15 p.m.; Sanchez parked nearby and
observed people entering and leaving the theater between 10:15 p.m. and midnight. At the
door of the theater, Holguin was asked for identification to show he was over twenty-one,
and he was searched for weapons before being allowed to enter. He was not asked to show
an invitation or any other documentation to gain entry.

{6}     While inside the theater, Holguin observed, among other things, what appeared to be
underage people drinking alcohol, people smoking marijuana in the “cry room,” and people
taking pills. About twenty-five percent of the occupants appeared to be juveniles under the
age of eighteen. Holguin approached a male juvenile and two female juveniles, who told
him they were taking ecstasy; another person spoke with the male juvenile, and the male
juvenile, in turn, informed Holguin that he would have ecstasy for sale later in the night.
Holguin was later able to purchase ecstasy from another male, he saw a male selling ecstasy
to others, and he was told that marijuana and more ecstasy would be for sale later. Holguin
purchased cocaine from a male standing in the lobby.

{7}    Holguin met Light when Holguin entered the theater. Later, Light was passing
around syringes containing a red jello-like substance that Holguin heard Light confirm were

                                               2
“jello shots.” Holguin knew by training or experience that a jello shot is a mixture of some
sort of alcohol and jello.

{8}     Someone told Holguin that Light called ecstasy “party favors.” Holguin asked Light
for party favors, but Light told him that he was having other people pass them out, although
Light later gave Holguin five pills that Holguin knew to be ecstasy.

{9}     Throughout his time in the theater, Holguin reported his observations by text
messages to Sanchez, who remained waiting outside. Other than identifying Light and three
other males by name, Holguin gave no description of any of the people he observed except
to classify them as male or female and as juvenile.

{10} Around midnight, Sanchez decided that he had probable cause for a warrant to search
the theater, and he left the parking lot to meet with agents from the Carlsbad Police
Department and the Eddy County Sheriff’s Department to brief them on the situation.
Sanchez sought permission to call out the Carlsbad Police Department Special Response
Team (SRT), and he requested that officers from the Eddy County Sheriff’s Department seek
permission to use that Department’s Tactical Response Team (TRT).

{11} Once the SRT and TRT members arrived, Sanchez briefed the officers as to what
Holguin had told him, and he told the officers that they were to enter the theater to secure
the building, but they were not to search any person or vehicle until he returned with a
warrant. At some point between midnight and 1:00 a.m. on May 10, 2009, approximately
fifteen officers secured the theater and held all the occupants, approximately seventy-five
to one hundred people, for the next two-and-a-half hours waiting for Sanchez to return with
the search warrant. The officers saw drugs on the floor, but they made no effort to collect
them, and Sanchez received no information as to what transpired once the SRT and TRT
agents entered the building.

{12} The officers ensured that all the occupants remained seated and did not allow anyone
to leave until Sanchez arrived with the search warrant about 2:40 a.m. The district court
erroneously found that the warrant was executed at 3:30 a.m., but this error is harmless
because it had no impact on the district court’s conclusions of law. See State v. Fernandez,
117 N.M. 673, 676, 875 P.2d 1104, 1107 (Ct. App. 1994) (“In the absence of prejudice, there
is no reversible error.”).

{13} The search warrant authorized a search of Light, his residence, the theater, any
vehicles found on those properties, and “[a]ny persons found on the properties listed above.”
It authorized officers to seize “[e]cstacy pills in any shape, form, or size[, and c]ocaine,
marijuana, and drug paraphernalia [and p]lastic syringes without needles which contained
a red jello type substance.”

{14} In executing the warrant, the officers lined all the occupants into two rows and
searched each person individually along with any property in their possession. Occupants

                                             3
were then allowed to leave if no contraband was found.

{15} Defendant was present in the front of the theater when the officers arrived to secure
the premises. She was searched at approximately 4:05 a.m. There was no testimony that
officers found any evidence of illegal drugs or other contraband on Defendant’s person, and
there was nothing to suggest that Defendant appeared intoxicated or under the influence of
drugs.

{16} Defendant sought to leave, and she approached Officer Daniel Vasquez, one of the
officers who had helped to secure the perimeter when the officers initially entered the
theater. Defendant told Vasquez that she needed her purse and jacket, which were stored in
the theater’s storage room. Vasquez told Defendant that these items would have to be
searched before she could leave with them, and Defendant acquiesced. The parties stipulate
that Defendant did not consent to the search of her person or property.

{17} Inside Defendant’s purse, Vasquez found a small metal container containing
methamphetamine. Vasquez testified that before he opened the purse and container, he had
no particularized suspicion that the purse contained contraband, that the purse had no odors
and, after opening it, that he saw no obvious evidence of contraband or observed anything
suspicious about the metal container.

{18} Defendant was charged with one count of possession of methamphetamine and
moved to suppress the evidence. See NMSA 1978, § 30-31-23(D) (2011). After considering
the State’s response and conducting a hearing, the district court entered conclusions that:
(1) notwithstanding the search warrant’s authorization to search “all persons,” the State was
required to show probable cause based on a particularized suspicion that Defendant was
engaged in criminal activity or possessed contraband, and the State failed to do so; (2) the
State failed to justify detaining Defendant for approximately two-and-a-half to three hours
while Sanchez obtained the warrant and while the officers executed the warrant; and (3) the
search of Defendant’s purse was not covered by the search warrant, and the State failed to
present probable cause based on particularized suspicion to search Defendant’s purse. The
district court then granted Defendant’s motion to suppress, stating that: (1) the detention
was unlawful such that any subsequent search was also unlawful; (2) even if the detention
was reasonable, the State failed to show particularized suspicion that Defendant was engaged
in any criminal activity, and thus the search of her person and property were unlawful; and
(3) Agent Vasquez knew the purse belonged to Defendant and was not part of the theater’s
property and, therefore, the search of the purse was not authorized by the warrant, and the
State failed to show particularized suspicion justifying the search. The State appeals.

STANDARD OF REVIEW

{19} We review the order granting Defendant’s motion to suppress as a mixed question
of fact and law. See State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307.
We determine whether the law was correctly applied to the facts and view “the facts in the

                                             4
light most favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6, 126
N.M. 77, 966 P.2d 785. While deferring to the district court with respect to factual findings
and indulging in all reasonable inferences in support of that court’s decision, we nonetheless
“review the constitutional question of the reasonableness of a search and seizure de novo.”
State v. Johnson, 2006-NMSC-049, ¶ 9, 140 N.M. 653, 146 P.3d 298.

THE SEARCH WARRANT

{20} In order to search Defendant, officers needed a valid warrant or they needed to be
acting “pursuant to one of the recognized exceptions to the warrant requirement.” State v.
Hamilton, 2012-NMCA-115, ¶ 13, 290 P.3d 271. A valid search warrant will only issue
upon a showing of probable cause to believe that a crime has been committed and that
evidence of a crime will be found in the place or on the person to be searched. See State v.
Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319, 210 P.3d 216.

{21} “There are no bright-line, hard-and-fast rules for determining probable cause, but the
degree of proof necessary to establish probable cause is more than a suspicion or possibility
but less than a certainty of proof.” Id. ¶ 11 (internal quotation marks and citation omitted).
“A reviewing court should not substitute its judgment for that of the issuing court [but
instead should] determine whether the affidavit as a whole, and the reasonable inferences
that may be drawn therefrom, provide a substantial basis for determining that there is
probable cause to believe that a search will uncover evidence of wrongdoing.” State v.
Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. “[T]he substantial basis
standard of review is more deferential than the de novo review applied to questions of law,
but less deferential than the substantial evidence standard applied to questions of fact.” Id.
¶ 30.

{22} The affidavit in support of the warrant must also state with particularity the place to
be searched and the items to be seized. See U.S. Const. amend. IV (providing in part that
“no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized”);
State v. Jones, 107 N.M. 503, 504, 760 P.2d 796, 797 (Ct. App. 1988) (same). The purpose
of the particularity requirement is to prevent general searches. Maryland v. Garrison, 480
U.S. 79, 84 (1987) (recognizing that the particularity requirement “ensures that the search
will be carefully tailored to its justifications, and will not take on the character of the
wide-ranging exploratory searches the Framers intended to prohibit”); see Jones, 107 N.M.
at 504, 760 P.2d at 797 (recognizing that the Fourth Amendment’s requirement of
particularity is to prevent general, exploratory searches).

{23} The parties agree that there was probable cause to search Light and that the officers
were justified in entering the theater and searching the premises for evidence of ecstasy pills,
cocaine, marijuana, drug paraphernalia, and jello shots pursuant to the search warrant. See,
e.g., Evans, 2009-NMSC-027, ¶ 10. However, in order to establish the requisite probable
cause to justify searching Defendant, the State was required to show a particularized

                                               5
suspicion as to her. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“Where the standard is
probable cause, a search or seizure of a person must be supported by probable cause
particularized with respect to that person.”). The parties disagree as to whether the affidavit
established the requisite particularized suspicion as to Defendant. See id.

{24} Defendant appears to suggest that the warrant was invalid as applied to her because
an “all persons” warrant is per se invalid as an impermissible general warrant. Cf. Jones,
107 N.M. at 504, 760 P.2d at 797 (recognizing that “[t]he [F]ourth [A]mendment . . .
prohibits states from using general search warrants that do not describe with particularity the
things to be seized”); Wilson v. State, 221 S.E.2d 62, 63 (Ga. Ct. App. 1975) (holding that
a warrant authorizing the search of a bar and “all persons on the premises” was void as a
general warrant). This position has been adopted by a minority of courts that have
considered the issue. Cf. Owens ex rel. Owens v. Lott, 372 F.3d 267, 274-75 (4th Cir. 2004)
(recognizing that under the minority view, an all persons warrant is per se invalid because
it fails to identify the persons to be searched with sufficient particularity).

{25} The State urges this Court to adopt the majority position, which is that an “all
persons” warrant is valid as along as it is supported by probable cause that “any and all
persons on the premises are either engaged in criminal activity or possess any of the
evidence sought in the search[.]” See id. at 275 (recognizing that a majority of courts
considering the issue have adopted the view that an “all persons” warrant “is valid as long
as there is probable cause to believe that everyone found on the premises being searched is
involved in the illegal activity and that evidence of the crime would be found on their
person”). Pursuant to this standard, the warrant would validly authorize the search of all
persons found at the theater, including Defendant, if the supporting affidavit established
probable cause to believe that every person found on the premises was involved in the
criminal activity or was in possession of contraband. See id.

{26} We need not decide whether “all persons” warrants are per se invalid because, even
applying the majority rule that recognizes the validity of such warrants in some situations,
the circumstances in this case do not justify a warrant authorizing the search of all persons
found at the theater or, specifically, the search of Defendant. Instead, the “all persons”
warrant was not supported by probable cause because there is nothing in the affidavit tying
every person found in the theater to the criminal behavior taking place there. See id. at 276
(holding that the affidavit did not supply sufficient information to establish probable cause
when the justification was the officer’s statement that, based on his experience in drug
enforcement, people present at the scene when illegal drugs are being distributed are usually
in possession of drugs); State v. Garcia, 166 P.3d 848, 855-56 (Wash. Ct. App. 2007)
(holding that the language in the warrant authorizing the search of “any and all persons
present” did not authorize the search of all of the occupants found in a motel room because
there was “nothing to establish individualized probable cause for ‘any and all’ of the persons
who may have been present in the motel room where drug activity was suspected to occur”).
To the contrary, Holguin never identified or described most of the occupants, and he never
reported even seeing Defendant. Cf. People v. Nieves, 330 N.E.2d 26, 34 (N.Y. 1975)

                                              6
(holding that an “all persons” warrant “must establish probable cause to believe that the
premises are confined to ongoing illegal activity” and that all persons subject to the warrant
possess the articles sought and if “this probability is not present, then each person subject
to search must be identified in the warrant . . . by name or sufficient personal description”).

{27} In claiming that the affidavit established probable cause to believe that any person
present at the rave was likely to be involved in criminal activity, the State relies on the
evidence concerning the distribution and use of drugs and the consumption of alcohol by
underage persons throughout the theater, all of which Holguin observed. It then argues that
any person present would be aware of these illegal activities and that it was “highly
probable” any person present would be participating in at least some of the illegal activities.

{28} We disagree because Holguin’s general observations of criminal activity taking place
in the theater are only sufficient to establish “[a] generalized belief that all persons present
in a location are involved in criminal activity.” Garcia, 166 P.3d at 855. This belief “is
insufficient to establish the required nexus” between Defendant and the criminal activity.
Id. (holding that “[a] sufficient nexus is not established merely through evidence that some
of the persons gathered in a particular location are engaged in criminal activity”).

{29} Finally, we note that “all persons” warrants authorizing the search of a public place
have usually been declared invalid due to the absence of probable cause to believe that all
persons present in the establishment were involved in the criminal activity. See, e.g., State
v. Thomas, 540 N.W.2d 658, 665-66 (Iowa 1995) (holding that there was not probable cause
for the warrant to search all persons present in the bar even though the affidavit provided
information that the bar had been the site of numerous controlled buys of crack cocaine and
numerous arrests involving many people); State v. Robinson, 371 N.W.2d 624, 625-26
(Minn. Ct. App.1985) (striking down a warrant that authorized a drug search of a
legally-operating bar and “all persons on the premises” that was executed during normal
operating hours with fifty to eighty patrons present); State v. Sims, 382 A.2d 638, 645-46
(N.J. 1978) (holding that a warrant that authorized the search of a service station and all
persons found therein was void as to the search of the persons found at the station). Courts
have observed that a public location, such as a theater, is more likely than a private residence
to contain innocent persons who are unrelated to, and perhaps even unaware of, the criminal
activity. See Sutton v. State, 738 A.2d 286, 294 (Md. Ct. Spec. App. 1999) (observing that
courts often recognize that an “all persons” search of a private dwelling is much less likely
to entrap innocent persons than the search of a public or semi-public building or location);
See also State v. Kinney, 698 N.E.2d 49, 54 (Ohio 1998) (recognizing that in general, “[t]he
more public a place, the less likely a search of all persons will be sustained” (internal
quotation marks and citation omitted)).

{30} The State seeks to distinguish these cases because even though patrons of a bar or
other public venue may gather for purposes other than illegal activities, the purpose of the
rave is only to promote illegal drug and alcohol use. It contends that a person who
inadvertently entered the theater with no intention of participating in illegal activity would

                                               7
have left after discovering the illegal activity.

{31} We are unpersuaded by the State’s argument because there is nothing in the affidavit
indicating that the only purpose of the rave was to engage in illegal behavior. Instead, the
rave took place in a public theater that anyone could enter, including Holguin who was
admitted without any invitation or specialized showing. Given that completely innocent
people could enter the theater, we are not convinced that the affidavit contained sufficient
information to establish probable cause that every person present was engaged in criminal
activity. See Thomas, 540 N.W.2d at 665-66 (holding that the “all persons” warrant was
invalid despite the information in the affidavit regarding numerous drug transactions and
indicating that the bar was a focal point of drug activity in the neighborhood because an
innocent person could have inadvertently entered the bar and thus the magistrate had no way
of knowing whether every person was involved in criminal activity).

{32} Based upon the foregoing, we affirm the district court’s conclusion that the “all
persons” warrant impermissibly authorized the search of Defendant’s person because it was
not supported by information in the affidavit establishing a particularized suspicion that
Defendant or “all persons” found on the premises were involved in criminal activity or in
possession of contraband.

SEARCH OF DEFENDANT’S PURSE

{33} The State claims that even if the search of Defendant’s person was unlawful, the
officers were nonetheless entitled to search Defendant’s purse because it was located on the
premises to be searched. New Mexico appellate courts have yet to specifically address the
question of whether a container or personal property belonging to a visitor but found on the
premises to be searched is considered to be part of the premises or whether it is an extension
of its owner. Thus, we look to the approach taken in other jurisdictions for guidance on this
issue.

{34} Some courts apply a “physical possession” test and focus on whether the visitor had
the container or personal property in his or her physical possession at the time of the search.
See, e.g., United States v. Johnson, 475 F.2d 977, 979 (D.C. Cir. 1973) (holding that the
search of the visitor’s purse was covered by the warrant because it was not being worn by
the visitor and thus did not constitute “an extension of her person so as to make the search
one of her person”); State v. Reid, 77 P.3d 1134, 1136-43 (Or. Ct. App. 2003) (criticizing,
but nonetheless adopting, the bright-line physical possession test and thus holding that, if the
personal property is on the premises but not within the visitor’s physical possession and it
could contain an item named in the warrant, officers may search it even if they know the
property belongs to the visitor). We decline to adopt the physical possession approach
because it insulates guilty parties who could evade detection by giving contraband to
visitors. See United States v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973) (“It is too broad in
that a search warrant could be frustrated to the extent that there are hands inside the premises
to pick up objects before the door is opened by the police.”). Furthermore, it fails to protect

                                               8
the privacy interests of visitors who merely put down or store their personal effects for
purposes of convenience or in order to comply with the requirements of certain public
venues. See id. (criticizing the physical possession approach as too narrow because “it
would leave vulnerable many personal effects, such as wallets, purses, cases, or overcoats,
which are often set down upon chairs or counters, hung on racks, or checked for convenient
storage”).

{35} Defendant encourages us to adopt the “notice” approach that prohibits officers from
searching the personal property of visitors on the premises to be searched if the officers
knew or should have known that the personal property belonged to the visitor. See State v.
Lohr, 263 P.3d 1287, 1291-92 (Wash. Ct. App. 2011) (holding that the warrant to search the
premises did not cover the defendant’s purse that “was readily recognizable as her personal
effect” and noting that “if an item is readily recognizable as belonging to an individual not
named in the warrant, the item is not within the warrant’s scope”); cf. Waters v. State, 924
P.2d 437, 440 (Alaska Ct. App. 1996) (assuming for purposes of the decision that personal
property belonging to a visitor is exempt from the warrant “if the officers knew or
reasonably should have known” that the property does not belong on the premises but
nonetheless affirming the search of the defendant’s purse because ownership of the purse
was ambiguous).

{36} The district court appeared to adopt the notice approach in reaching its determination
that Vasquez was not justified in searching Defendant’s purse because the purse clearly
belonged to her. We need not decide if the district court was correct in determining that
Vasquez was precluded from searching Defendant’s purse merely based on his knowledge
that it belonged to Defendant because the district court’s determination is justified on other
grounds as well. See State v. Ruiz, 2007-NMCA-014, ¶ 38, 141 N.M. 53, 150 P.3d 1003
(holding that, as a general rule, “we will uphold the decision of a district court if it is right
for any reason”).

{37} A number of jurisdictions have applied an approach that considers the connection
between the visitor, the visitor’s personal property, and the reason for the search warrant.
For example, the “relationship approach” adopted by the court in Micheli requires an
examination of “the relationship between the person and the place.” See Micheli, 487 F.2d
at 431; see also United States v. Giwa, 831 F.2d 538, 544-45 (5th Cir. 1987) (stating that
“physical possession should not be the sole criterion . . . used to determine whether a
personal item may be searched pursuant to a premises search warrant[,]” but instead the
better approach is to examine the “relationship between the person and the place”). This
approach recognizes that items found on the premises will not automatically fall within the
proper scope of the search warrant, but instead, “it is necessary to examine why a person’s
belongings happen to be on the premises.” Micheli, 487 F.2d at 432 (holding that the search
of the defendant’s briefcase fell within the scope of the warrant to search the premises
because the defendant, a co-owner of the premises searched, was not a mere visitor but
instead “had a special relation to the place, which meant that it could reasonably be expected
that some of his personal belongings would be there”).

                                               9
{38} In State v. Jackson, 260 P.3d 1240, 1243-44 (Kan. Ct. App. 2011), the Kansas Court
of Appeals adopted a hybrid approach that it characterized as a “notice test” with a
relationship exception. Under this approach, officers may not search a visitor’s personal
property if they have “actual or reasonable constructive notice” that the property is not
subject to the warrant. Id. However, the relationship exception will apply to allow the
search, despite the officer’s notice of ownership, if the surrounding circumstances suggest
that the visitor has more than a casual relationship to the premises and that there is a
relationship between the visitor and the “illegal activities described in the warrant.” Id. at
1244.

{39} In Jackson, the officers executed a search warrant authorizing a search for illegal
drugs and paraphernalia at the residence of Marla Davenport. Id. at 1242. Davenport, her
son, and five non-residents, including the defendant, were found in the bedroom, but the
officers found three or four purses on the floor in the kitchen. Id. When the officers looked
inside of the purses, ostensibly to determine ownership, they found drug paraphernalia inside
the defendant’s purse along with methamphetamine. Id. at 1242-43. Because the officers
knew or should have known that the purse belonged to the defendant and because there was
no suggestion that the defendant either lived on the premises or was engaged in the illegal
activity, the court held that the search warrant did not authorize the search of her purse. Id.
at 1244-47.

{40} The underlying rationale of the notice approach, the relationship approach adopted
in Micheli, or the hybrid approach adopted by the court in Jackson, and our consideration
of the lack of evidence connecting Defendant to the criminal activities, lead us to conclude
that the search of Defendant’s purse was impermissible. See id.; see also United States v.
Young, 909 F.2d 442, 445 (11th Cir. 1990) (recognizing that application of the “relationship”
test is consistent with the Supreme Court’s holding in Ybarra because it was the patron’s
lack of a relationship with the illegal activity taking place on the premises that resulted in
a finding of lack of probable cause in Ybarra). Moreover, even though New Mexico
appellate courts have yet to consider this precise issue, this Court’s opinion in State v.
Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, cert. granted, 2011-NMCERT-006,
150 N.M. 764, 266 P.3d 633, is consistent with the views articulated by the courts in Jackson
and Micheli, by implicitly recognizing the need to establish a connection between the
specific item seized and the reason for the warrant. See Gurule, 2011-NMCA-063, ¶ 16
(recognizing that “the scope of the [search] warrant [must] be limited by the probable cause
on which the warrant is based” and that courts will suppress the seizure of an individual item
for lack of probable cause with respect to that item (internal quotation marks and citation
omitted)).

{41} In Gurule, the search warrant was based on information in the affidavit that
computers in the defendant’s home were being used to view and share child pornography.
Id. ¶¶ 2, 5. There was nothing in the affidavit indicating that cameras in the home were
being used in connection with the pornography or that anyone in the home was taking
pornographic pictures. Id. ¶ 5. The search warrant authorized the seizure of a digital

                                              10
camera. Id. ¶ 2.

{42} This Court affirmed the district court’s order suppressing evidence obtained from the
digital camera because, even though the search warrant explicitly authorized the search and
seizure of the digital camera,“the dispositive issue is whether there was probable cause to
permit the search of the camera.” Id. ¶¶ 20, 23. In the absence of any showing that the
digital camera was being used to store or to manufacture the child pornography, this Court
held that “there was no substantial basis for concluding that there was probable cause that
the camera would contain child pornography,” and the evidence found therein was properly
suppressed. Id. Applying the analysis of Gurule leads us to conclude that the search of
Defendant’s purse was not supported by probable cause because the State failed to prove that
the seizure of that individual item was supported by probable cause and it failed to establish
a connection between the purse and the reason for the warrant. See id. ¶ 16.

{43} Finally, contrary to the State’s contentions, we believe the United States Supreme
Court’s decisions in United States v. Ross, 456 U.S. 798 (1982), and Wyoming v. Houghton,
526 U.S. 295 (1999), can be reconciled with the approach taken by the courts in Jackson and
Micheli. The State relies on language in Ross stating that “[a] lawful search of fixed
premises generally extends to the entire area in which the object of the search may be found
and is not limited by the possibility that separate acts of entry or opening may be required
to complete the search.” 456 U.S. at 820-21; see Houghton, 526 U.S. at 301-02 (applying
Ross to conclude that, when there is probable cause to search an automobile, the officers may
search containers found within the automobile regardless of ownership and without the need
for “individualized probable cause” for each container).

{44} However, the State acknowledges that both Ross and Houghton involve the
warrantless search of automobiles under the federal automobile exception. See Houghton,
526 U.S. at 303; Ross, 456 U.S. at 800-01. The automobile exception is justified in part by
the recognition that passengers, as well as drivers, “possess a reduced expectation of privacy
with regard to the property that they transport in cars.” Houghton, 526 U.S. at 303.

{45} We do not believe that the principles underlying Ross and Houghton apply in this
matter because neither case involves the search of the personal property of a person who is
not subject to the search warrant and who has stored his or her property on premises that are
open to the public. Therefore, we are not persuaded that these cases warrant a conclusion
that the search of Defendant’s purse was supported by probable cause or that the search was
authorized by the warrant to search the premises of the theater.

{46} In sum, the district court found that Vasquez knew the purse belonged to Defendant
at the time he conducted the search. There is nothing in the affidavit or in the officers’
testimony to suggest that the purse was connected to the theater or to the illegal activity
occurring there. Therefore, Vasquez was not authorized to search Defendant’s purse and the
evidence found therein, and Defendant’s subsequent statements about that evidence were
properly suppressed.

                                             11
NEW MEXICO CONSTITUTION

{47} Because we find that the search of Defendant’s person and her personal belongings
violated the Fourth Amendment of the United States Constitution, we need not decide
whether it violated Article II, Section 10 of the New Mexico Constitution as well or whether
Defendant preserved her claim under the New Mexico Constitution. See State v. Montano,
2009-NMCA-130, ¶ 23, 147 N.M. 379, 223 P.3d 376.

CONCLUSION

{48}   For these reasons, we affirm the order of the district court.

{49}   IT IS SO ORDERED.

                                              ____________________________________
                                              JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
LINDA M. VANZI, Judge




                                            12
