Looking Suspicious Does Not Alone Justify Search & Seizure in New Mexico

The issue of illegal search and seizure will come up in a countless variety of situations. One such situation is the search and seizure of the occupants of a parked vehicle for looking suspicious.

The fact is, at least in New Mexico, such a search and seizure is illegal without more. Because the search and seizure is illegal, any evidence discovered during the search will be excluded.

Protections from Illegal Search & Seizure Under the U.S. and New Mexico Constitutions

The right to be of unreasonable search and seizure under the 4th Amendment is among the most important rights that we have as citizens. New Mexico actually provides somewhat greater protection under Article II, Section 10 of the New Mexico Constitution.

Without these protections, citizens, their homes and possessions could be searched at will. Due to the importance of the right, evidence is excluded when the right is violated even where the arrest might otherwise appear justified.

In State v. Murry, this is just what occurred. The defendant was a passenger in a parked car with two other individuals. On routine bicycle patrol in the area, two officers noticed the 3 sitting in the parked vehicle. There had been no reports of suspicious activity in the area.

The officers decided to take a look to make sure everything was alright. As they approached the vehicle, they noticed the driver make an abrupt movement dropping his shoulder. Concerned for officer safety, the officer ordered the driver to open the door upon which the officer saw open alcoholic containers and a bag of green leafy substance.

He then ordered the others out of the car detaining all three for investigation of the open alcoholic container and apparent marijuana. The officer then noticed the defendant’s purse, crumpled up currency and one bill with white powdery substance crumpled on the floor.

Long story short, the defendant was arrested and charged with possession of cocaine. At district court, she entered a conditional plea reserving her right to appeal the legality of the search and seizure.

The defendant argued that the entire search and seizure was illegal because there was no reasonable suspicion to begin the investigation from its inception. The New Mexico Court of Appeals agreed.

Was the Defendant Seized?

There is no dispute that police may approach an individual for questioning without reasonable suspicion. This would constitute a consensual encounter with the police.

Seizure requires reasonable suspicion that a crime has been committed

However, if a reasonable person does not feel free to leave, then the encounter is no longer consensual. Instead the person at that point has been seized. Seizure requires reasonable suspicion that a crime has been committed.

The question then is whether, under the circumstances, the encounter was consensual or constituted a seizure. The Court found that a seizure had taken place.

The officer admitted to ordering the driver to open the door. This began the whole encounter leading to the further investigation and arrest.

The State argued to no avail that under the circumstances, a reasonable person could have refused. The Court saw that this was clearly not the case.

A  reasonable person must feel free to leave under the circumstances

The Court’s position makes far more sense than the State’s. After all, when an officer orders someone to open his or her door, all but the most experienced criminal would comply.

Did Reasonable Suspicion Exist at the Time of the Seizure?

Having found that the defendant was seized, the Court had to determine whether there was reasonable suspicion that the defendant was engaged in criminal activity. You guessed it; the Court said there was not.

Regarding reasonable suspicion, the Court stated:

“The critical question . . . is whether the officer had an individualized suspicion that the defendants were violating any law when he subjected the defendants to detention.”

 The officer admitted that when he first saw the car, he did not see any suspicious activity and no suspicious activity had been reported. They were simply sitting in the car, which aroused the officer’s suspicions. The fact that they moved abruptly upon his approach was insufficient to justify the seizure.

Illegally Seized Evidence Must Be Suppressed

Because the evidence was illegally seized, it should have been suppressed at trial. The Court did not buy the State’s argument that it would have been “inevitably discovered during an inventory search of the vehicle” since the seizure of the vehicle was unjustified from the inception.

Interestingly, the driver did in fact have a warrant for his arrest. However, the arrest was predicated upon the illegal seizure, not the existence of the warrant. The fact that it was discovered after the fact was insufficient to establish reasonable suspicion.

Why is This Case Important?

This case may rub some the wrong way but to hold otherwise would subject us all to search and seizure for what very possibly could be perfectly legal activity.

Search and seizure laws are critically important to our privacy and freedom. Simply sitting in a vehicle should not expose us all to a search and seizure of our car or the possessions in it.

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