Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence

The police are not permitted to simply search anyone for any reason. Their powers to search people are limited by the Fourth Amendment to the U.S. Constitution, preventing unreasonable searches and seizures. In most cases, the police must acquire a warrant in order to search a person. A number of exceptions do exist that allow police to forgo a warrant, but those exceptions are limited.

Earlier this year, the New Mexico Court of Appeals examined the use of “pat-down searches” to acquire evidence in New Mexico v. Almanzar. In this case, two police officers were dispatched to investigate a domestic violence incident. By the time the police arrived, the defendant and his girlfriend left the scene of the alleged domestic violence. Both had gone their separate ways and were at different locations when the officers made contact.

When the officers approached the defendant, the defendant allegedly put his hands in his front pockets and refused to remove them. While neither officer believed the defendant was armed, they handcuffed him and conducted a pat-down search for weapons.

During the pat-down search, the officer felt a hard “golf ball-size thing” in the defendant‘s pocket, which he then removed, despite the fact that he knew it was not a knife or gun. The officers believed the object was powdered cocaine.

The defendant was arrested for possession of cocaine with intent to distribute. The defendant, believing that the police search violated his constitutional rights, sought to have the evidence suppressed so that it could not be used against him at trial. The trial court allowed the evidence. The defendant then entered a conditional plea to trafficking cocaine reserving on the issue of the search and seizure question.

Officers are permitted to pat-down or frisk suspects only for the purpose of officer safety. Specifically, they are allowed to search for weapons. In fact, an officer may only conduct a pat-down search if he or she believes that the suspect is armed and presently dangerous.

The search itself must be limited to what the officer needs to do in order to locate any weapons. If the officer detects something that reasonably may be a weapon, then the officer may remove it.

The courts will generally defer to an officer‘s judgment when determining if a pat-down search is required. In this case, the defendant‘s behavior, including putting his hands in his pockets and refusing to remove them, provided a basis for the pat-down search. However, in order to remove the object from the defendant‘s pocket, the officers were required to believe that it could be a weapon.

A pat-down search is not a search for evidence. It is strictly for the protection of the officer. In this case, the officer testified that he did not believe the object was a weapon. As such, removal of the object was not necessary for officer safety. At that point it became an evidentiary search and was therefore an illegal search under the 4th Amendment.

There is a further exception to the limited scope of the pat-down search. If the evidence would have been discovered anyway, then it may still be admissible under the “inevitable discovery doctrine.” Here the police argued that it would have been discovered anyway due to a search incident to arrest on domestic violence.

The New Mexico Court of Appeals disagreed. In fact, the Court reiterated the misdemeanor arrest rule in New Mexico which requires that an officer be present at the scene of the crime to make an arrest. This rule applies equally to domestic violence and has in fact been codified in NMSA 31-1-7(A) as follows:

Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.

The State took a broad view of “at the scene” arguing that it meant in the vicinity. The Court of Appeals again disagreed using the plain meaning of the words despite some agile arguments made by the State attempting to equate it to related DWI rules.

In short, a pat-down search is limited to officer safety. It is not a basis for a full search for evidence. Naturally, this will not be the end of it as it will often come down to what the officer believed. And this is obviously open to interpretation.


Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant

Collins & Collins, P.C.
Albuquerque Attorneys

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