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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                             No. 33,740

 5 MARC TAPIA,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellant

12 Rozan Cruz & Associates, P.C.
13 Rozan Cruz
14 Corrales, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 FRY, Judge.

18   {1}    The State has appealed from an order of suppression. We previously issued a

19 notice of proposed summary disposition in which we proposed to reverse. Defendant
 1 has filed a memorandum in opposition. After due consideration, we remain

 2 unpersuaded. We therefore reverse and remand for further proceedings.

 3   {2}   The pertinent background information and analytical framework were

 4 previously set forth in the notice of proposed summary disposition. We will avoid

 5 undue reiteration here, focusing instead on the content of the memorandum in

 6 opposition.

 7   {3}   Defendant contends that the warrantless search of the vehicle cannot be

 8 regarded as a valid inventory search, challenging all three of the prerequisites. [MIO

 9 2-5] See generally State v. Williams, 1982-NMSC-041, ¶ 4, 97 N.M. 634, 642 P.2d

10 1093 (“An inventory search of an automobile is constitutional if three requirements

11 are met: 1) the vehicle to be inventoried is in police control or custody; 2) the

12 inventory is made pursuant to established police regulations; and 3) the search is

13 reasonable.”).

14   {4}   With respect to the first requirement, Defendant asserts that the vehicle was not

15 in police custody or control, because it “was on private property and not in the public

16 roadway where it would obstruct or impede traffic[,]” and because “[t]here was no

17 immediate need to enter the vehicle.” [MIO 2-3] However, in Williams the New

18 Mexico Supreme Court rejected a similar argument. Discussing relevant United States

19 Supreme Court authorities, the Williams Court noted that the propriety of


                                               2
 1 impoundment and inventory does not depend upon a showing of necessity, due to

 2 traffic-related considerations or otherwise. Id. ¶¶ 6-7. Instead, the relevant inquiry

 3 is whether there is a nexus between the arrest of the subject and impounding of the

 4 vehicle. Id. ¶ 5. As we previously observed in the notice of proposed summary

 5 disposition, insofar as Defendant had been placed under arrest, and insofar as the

 6 vehicle had been used in connection with one or more criminal offenses, the first

 7 element was satisfied. See, e.g., State v. Wilson, 1994-NMSC-009, ¶ 16, 116 N.M.

 8 793, 867 P.2d 1175 (holding that the element of police control or custody, including

 9 the requisite nexus, was established where both occupants of the car were under arrest,

10 the police were taking custody of the car, and the police inventoried it for safekeeping

11 of the contents); Williams, 1982-NMSC-041, ¶ 7 (observing that “[t]he possible use

12 of the vehicle as evidence of the crime . . . supplies the necessary nexus between the

13 arrest and the reason for impounding”); State v. Lopez, 2009-NMCA-127, ¶¶ 2, 10,

14 147 N.M. 364, 223 P.3d 361 (upholding the validity of a warrantless vehicle search

15 where the defendant was arrested for driving on a suspended license and the vehicle

16 was inventoried prior to towing and impoundment).      {5}   With respect to the second

17 requirement, Defendant contends that the search was not made pursuant to established

18 police regulations, based on an excerpt from a manual which does not appear within

19 the record. [MIO 3] This material is not properly presented at this juncture. See State


                                              3
 1 v. Harrison, 2010-NMSC-038, ¶ 10, 148 N.M. 500, 238 P.3d 869 (stating that matters

 2 not of record are not considered on appeal); Durham v. Guest, 2009-NMSC-007, ¶ 9,

 3 145 N.M. 694, 204 P.3d 19 (“Reference to exhibits not in the record proper and not

 4 presented to the district court for consideration is improper[.]”); see also State v.

 5 Granillo-Macias, 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 P.3d 1187 (declining

 6 to consider an argument on appeal where the defendant failed to present the relevant

 7 manual to the trial court, and failed to argue that strict compliance with its terms was

 8 required). Moreover, no violation of the procedure, as reflected in the manual, is

 9 apparent. The three-part criteria (lawful police custody, compliance with standard

10 operating procedures, and reasonableness) [MIO 3] simply restate the three

11 requirements associated with all inventory searches. See Williams, 1982-NMSC-041,

12 ¶ 4. Defendant also contends that the officer’s failure to ask the owner whether

13 someone else might be available to pick the vehicle up represented a significant

14 departure from the standard protocol. [MIO 4] However, as previously stated, insofar

15 as the vehicle was used in connection with one or more criminal offenses the police

16 could properly impound it as evidence; “[h]ence, there was no need to give the

17 defendant a choice as to disposition of the car.” Id. ¶¶ 8-9.

18   {6}   With respect to the third and final requirement, Defendant argues that the search

19 was not reasonable because the officers suspected him of involvement with crime, and


                                               4
 1 suspected that incriminating evidence would be found before the search was

 2 commenced. [MIO 3-5] However, the suspicions of the officers are immaterial.

 3 “[T]he lawfulness of an inventory search operates independently from any suspicion

 4 by the police of contraband that may be concealed” therein. State v. Boswell,

 5 1991-NMSC-004, ¶ 11, 111 N.M. 240, 804 P.2d 1059. In this context, a search is

 6 reasonable if it is undertaken in furtherance of legitimate caretaking interests. Id.

 7 (“The state interests justifying an inventory constitute an independent basis for the

 8 reasonableness of the search.”). In this case, an inventory search was reasonable

 9 insofar as it served the legitimate purposes of protecting both the property from theft

10 and the police from accusations or false claims of theft, inter alia. See id. ¶ 10

11 (identifying various considerations which render inventory searches reasonable, and

12 concluding that “orderly police administration justifies examination and inventorying

13 of items removed from an arrestee’s possession or person”).

14   {7}   Accordingly, for the reasons stated above and in the notice of proposed

15 summary disposition, we conclude that the State adequately demonstrated that the

16 inventory search doctrine applies, such that the warrantless search of the vehicle was

17 permissible. We therefore reverse and remand for further proceedings.

18   {8}   IT IS SO ORDERED.




                                              5
1
2                             CYNTHIA A. FRY, Judge

3 WE CONCUR:



4
5 RODERICK T. KENNEDY, Chief Judge


6
7 J. MILES HANISEE, Judge




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