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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: JANUARY 31, 2022
No. A-1-CA-36024
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LEO JIM,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY John A. Dean, Jr., District Judge
Hector H. Balderas, Attorney General Santa Fe, NM Lauren J. Wolongevicz, Assistant Attorney General Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender Aja Oishi, Assistant Appellate Defender Santa Fe, NM
for Appellant
OPINION DUFFY, Judge.
{1} Defendant Leo Jim asks us to determine whether a police inventory search of
a locked gun safe inside his pickup truck violated his right to be free from an
unreasonable search under Article II, Section 10 of the New Mexico Constitution.
We hold that the search in this case violated the New Mexico Constitution and
reverse the district court’s denial of Defendant’s motion to suppress.
BACKGROUND
{2} At around 8:00 p.m. in March 2015, Officer Mosley with the Farmington
Police Department was dispatched to the San Juan Plaza shopping center in response
to a report that a subject—Defendant—would not leave. Defendant had apparently
been sitting inside a pickup truck in the parking lot for several hours. After observing
Defendant, a security guard asked Defendant to leave; Defendant drove to Dunkin’
Donuts on the other side of the parking lot but immediately returned. The security
guard approached Defendant again and asked him to leave; Defendant would not,
and the security guard called the police. Officer Mosley arrived about twenty
minutes later.
{3} Defendant got out of the truck and walked toward Officer Mosley, at which
point the officer placed Defendant in handcuffs and arrested him for trespassing, a
misdemeanor offense. See NMSA 1978, § 30-14-1(B), (E) (1995). Officer Mosley
advised Defendant that his truck would be impounded. The truck was locked but
Officer Mosley used Defendant’s keys to open the door and proceeded to inventory the truck’s contents. Officer Mosley found a methamphetamine pipe, smoking straw,
and tin foil with heroin residue underneath the driver’s side floor mat and seized
those items. He found a locked gun safe under the rear seat and removed it from the
truck for safekeeping pending owner pickup. The officer found a key for the safe on
Defendant’s key ring and used it to unlock the safe; inside, he found a small handgun
and a small amount of heroin.
{4} The State filed a criminal information charging Defendant with criminal
trespass, contrary to Section 30-14-1(B); possession of a controlled substance
(heroin), contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2021); and
possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)
(2001, amended 2019). Defendant moved to suppress all evidence illegally obtained
as the fruit of an unreasonable warrantless search and seizure in violation of the
Fourth Amendment to the United States Constitution and Article II, Section 10 of
the New Mexico Constitution. The State responded that the search following
Defendant’s arrest was a valid inventory search. The State pointed out that inventory
searches are a well-established exception to the warrant requirement and are lawful
if three requirements are satisfied: (1) the search is of a vehicle in police custody or
control, (2) the search is conducted pursuant to established police regulations or
procedures, and (3) the search is reasonable. The district court initially granted
Defendant’s motion, concluding the State had not established that the Farmington
Police Department had a policy permitting Officer Mosley to unlock containers encountered during the inventory search. The court reversed its decision, however,
after the State filed a motion to reconsider and introduced evidence of a police policy
permitting the opening of locked containers.
{5} Defendant conditionally pled no contest to one charge of possession of a
controlled substance (heroin) and received a conditional discharge, but reserved his
right to appeal the district court’s denial of his motion to suppress.
DISCUSSION
{6} At issue in this appeal is whether the warrantless search of a locked gun safe
during the course of an automobile inventory search violated Article II, Section 10
of the New Mexico Constitution. Defendant argues that “the search was
unreasonable under Article II, Section 10 because his legitimate expectation of
privacy in the contents of his locked gun safe outweighed any purported
governmental interest in conducting a warrantless inventory search of the locked gun
safe.” The State argues that we should not diverge from the federal inventory search
standard and maintains that the search was reasonable under both the federal and
state constitutions.
{7} “The constitutionality of a search or seizure is a mixed question of law and
fact and demands de novo review.” State v. Ochoa, 2009-NMCA-002, ¶ 6, 146 N.M.
32, 206 P.3d 143 (internal quotation marks and citation omitted). “When a defendant
invokes our inherent power as a separate sovereign in our federalist system of
government to provide more liberty under the New Mexico Constitution than is mandated by the United States Constitution,” we utilize the interstitial approach to
constitutional interpretation set forth in State v. Gomez, 1997-NMSC-006, ¶¶ 19, 22-
23, 122 N.M. 777, 932 P.2d 1. Ochoa, 2009-NMCA-002, ¶ 6 (emphasis omitted).
The Gomez interstitial analysis requires us to answer three questions: (1) whether
the right asserted by the defendant is protected under the federal constitution, (2)
whether the defendant preserved the state constitutional claim, and (3) whether there
exists any one of three reasons for diverging from federal precedent. State v. Crane,
2014-NMSC-026, ¶ 12, 329 P.3d 689.
The Fourth Amendment Does Not Prohibit the Opening of a Locked Container During an Automobile Inventory Search {8} Automobile inventory searches are a well-defined but controversial exception
to the warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371 (1987). Nearly
fifty years ago, the United States Supreme Court legitimized the “routine practice of
securing and inventorying” the contents of an automobile after it had been
impounded. South Dakota v. Opperman, 428 U.S. 364, 369 (1976). But see State v.
Ingram, 914 N.W.2d 794, 810 (Iowa 2018) (noting that “[t]he majority opinions in
Bertine and Opperman were highly contested and provoked vigorous dissents”). In
evaluating whether the practice violated the Fourth Amendment, the Court began by
emphasizing that “less rigorous warrant requirements govern because the
expectation of privacy with respect to one’s automobile is significantly less than that
relating to one’s home or office.” Opperman, 428 U.S. at 367. The Court indicated
that inventory procedures “developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, the protection
of the police against claims or disputes over lost or stolen property, and the
protection of the police from potential danger[.]” Id. at 369 (citations omitted). In
light of these purposes, the Court concluded that “inventories pursuant to standard
police procedures are reasonable” under the Fourth Amendment. Id. at 372; see
Bertine, 479 U.S. at 374 (holding that “inventory procedures administered in good
faith satisfy the Fourth Amendment”); Cady v. Dombrowski, 413 U.S. 433, 446
(1973) (holding that the absence of a warrant did not render a community caretaking
search of a vehicle’s trunk unreasonable under the Fourth Amendment). But see
Ingram, 914 N.W.2d at 804 (noting that in Bertine, the Court indicated that “[a]
warrantless inventory search and seizure might be invalid if the accused can show
the government action was in bad faith or for the sole purpose of investigation, a
very high bar” (internal quotation marks and citation omitted)).
{9} Since Opperman, the United States Supreme Court’s inventory search
jurisprudence has focused on whether police followed standardized procedures
during the search. In Bertine, the Court noted the need for a single, familiar standard
to guide police officers with limited time and expertise. 479 U.S. at 374-75. But cf.
People v. Bertine, 706 P.2d 411, 418 (Colo. 1985) (en banc) (concluding that “the
governmental interests served by the search were not substantial” and that “the
defendant’s privacy interests in [closed containers] outweighed the government’s
need to inventory their contents”). The Court has uniformly upheld inventory searches when police followed standard procedures, e.g., Bertine, 479 U.S. at 369
(affirming the search of a closed backpack found inside the defendant’s van after he
was arrested for driving while under the influence of alcohol), and found them
unconstitutional when they have not, see Florida v. Wells, 495 U.S. 1, 4-5 (1990)
(concluding that the search of a locked suitcase in the defendant’s trunk violated the
Fourth Amendment because “the Florida Highway Patrol had no policy [whatsoever]
with respect to the opening of closed containers encountered during an inventory
search . . . [and] absent such a policy, the instant search was not sufficiently
regulated to satisfy the Fourth Amendment”).
{10} The Court remarked in Wells that “policies of opening all containers . . . are
unquestionably permissible[.]” Id. at 4. After Wells, federal courts have broadly
upheld inventory searches of locked containers inside automobiles where police
followed their own inventory search procedures. See, e.g., United States v.
Thompson, 29 F.3d 62, 64-66 (2d Cir. 1994) (upholding an inventory search of a
locked briefcase, opened using the defendant’s key, because police did not search in
bad faith and complied with the police’s standardized inventory search procedures);
United States v. Kordosky, 921 F.2d 722, 723-24 (7th Cir. 1991) (holding that an
inventory search of a locked compartment in a car’s trunk did not violate the Fourth
Amendment because it complied with the unwritten policy of a sub-unit of a police
department); United States v. Evans, 937 F.2d 1534, 1538-39 (10th Cir. 1991)
(holding that an inventory search of a locked carry-on bag was reasonable because police inventory search policy required the opening of locked containers); United
States v. Trujillo, 341 F. Supp. 3d 1280, 1286 (D.N.M. 2018) (“Because [the
Bernalillo County Sheriff’s Deputy conducting an inventory search of a locked
backpack] followed standardized criteria set forth by the Bernalillo Sheriff’s
Department and acted in good faith pursuant to those established policies, the Court
finds that the search of [the defendant’s] locked backpack was proper and did not
violate his Fourth Amendment rights.”).
{11} In light of the foregoing, we agree with the parties that, on the record before
us, the inventory search of the locked gun safe in Defendant’s truck did not violate
the Fourth Amendment because the search was conducted pursuant to a standardized
police policy and there is no claim of bad faith or pretext. The State presented
evidence of the Farmington Police Department’s inventory search policies, which
specifically state that the “inventory search will consist of documentation of all
personal property with apparent value or . . . apparent significant importance to the
owner which is contained inside or upon the vehicle, including property inside
closed compartments or locked containers within the vehicle. In regard[] to locked
containers, officers may not damage the vehicle or property in any way to enter these
containers.” (Emphasis added.) Officer Mosley followed these policies and opened
the locked gun safe using a key found on Defendant’s key ring. Defendant does not
argue that this inventory was conducted in bad faith or for the sole purpose of investigation. See Bertine, 479 U.S. at 372. Accordingly, we turn to the New Mexico
Constitution to evaluate whether Article II, Section 10 provides greater protection.
Defendant Preserved His Claim Under the New Mexico Constitution {12} Because “[i]t is well-established that Article II, Section 10 provides more
protection against unreasonable searches and seizures than the Fourth
Amendment[,]” State v. Leyva, 2011-NMSC-009, ¶ 51, 149 N.M. 435, 250 P.3d 861,
Defendant need only “(1) assert[] the constitutional principle that provides the
protection sought under the New Mexico Constitution, and (2) show[] the factual
basis needed for the trial court to rule on the issue” in order to preserve his claim.
Gomez, 1997-NMSC-006, ¶ 22. In this case, Defendant asserted in his motion to
suppress that the inventory search violated his right to be free from an unreasonable
search under Article II, Section 10 and developed a factual record in his motion and
at the suppression hearing. Neither party contests the preservation of the state
constitutional claim here, and we agree that Defendant’s Article II, Section 10 claim
was preserved.
Article II, Section 10 Provides Greater Protection of Privacy Than the Fourth Amendment {13} Although New Mexico has long followed the federal approach, we are asked
to consider for the first time whether the scope of an inventory search was unreasonable, and thus unconstitutional, under the New Mexico Constitution.1 New
Mexico courts, relying on federal precedent applying the Fourth Amendment, have
approved of automobile inventories as long as three requirements are met: (1) the
automobile is lawfully in police custody or control; (2) the inventory is made
pursuant to established police procedures; and (3) the search is reasonable. State v.
Ruffino, 1980-NMSC-072, ¶ 5, 94 N.M. 500, 612 P.2d 1311. Under the third prong,
New Mexico courts have applied the Fourth Amendment standard articulated in
Opperman and have generally upheld inventory searches as reasonable “if they are
made pursuant to an established procedure and in furtherance of any one of three
purposes: (1) to protect the arrestee’s property while it remains in police custody;
(2) to protect the police against claims or disputes over lost or stolen property; or (3)
to protect the police from potential danger.” Shaw, 1993-NMCA-016, ¶ 10 (citing
Opperman, 428 U.S. at 369).
{14} Defendant has not asked us to apply a different overall framework under our
state constitution, and he concedes that the first two requirements of the Ruffino test
are satisfied. His challenge is limited to the third requirement: reasonableness.
1 To the extent the State argues that this Court has previously decided inventory search cases under the state constitution, we disagree. The cases cited by the State—State v. Lopez, 2009-NMCA-127, ¶ 1, 147 N.M. 364, 223 P.3d 361, and State v. Shaw, 1993-NMCA-016, 115 N.M. 174, 848 P.2d 1101—“do not independently explore the reach of Article II, Section 10.” State v. Gutierrez, 1993- NMSC-062, ¶ 30, 116 N.M. 431, 863 P.2d 1052; see also Ochoa, 2009-NMCA-002, ¶ 29 (stating that none of the cases cited by the state “analyze the traffic stop under the state constitutional interstitial approach” and were therefore not conclusive on the state constitutional question). Specifically, he argues that the inventory search was unreasonable in scope for
purposes of Article II, Section 10 because it intruded upon his constitutionally
protected expectation of privacy in the contents of his locked gun safe. We are
persuaded that he is correct. For the reasons that follow, we conclude that the
reasonableness of an inventory search under Article II, Section 10 is determined by
balancing the need for the search in a particular case against the intrusion upon an
individual’s privacy interest. See State v. Ryon, 2005-NMSC-005, ¶ 16, 137 N.M.
174, 108 P.3d 1032 (applying this standard in a community caretaker case). Because
we conclude that the search of the locked gun safe had little, if any, utility for
inventory purposes and that the search infringed upon a substantial privacy interest,
we depart from federal precedent and conclude that the search was unreasonable
under Article II, Section 10.
A. Reasons to Depart From Federal Jurisprudence
{15} “[A] state court may diverge from federal precedent for one of the following
three reasons: a flawed federal analysis, structural differences between state and
federal government, or distinctive state characteristics.” State v. Cardenas-Alvarez,
2001-NMSC-017, ¶ 14, 130 N.M. 386, 25 P.3d 225 (internal quotation marks and
citation omitted). In this case, we focus on two distinctive characteristics of New
Mexico law: greater protection of privacy in the context of automobiles and a strong
preference for warrants.
B. Article II, Section 10 of the New Mexico Constitution {16} “Article II, Section 10 expresses the fundamental notion that every person in
this state is entitled to be free from unwarranted governmental intrusions, and thus
identified a broader protection to individual privacy under the New Mexico
Constitution than under the Fourth Amendment.” Leyva, 2011-NMSC-009, ¶ 53
(internal quotation marks and citation omitted); see also State v. Garcia, 2009-
NMSC-046, ¶ 31, 147 N.M. 134, 217 P.3d 1032 (“Article II, Section 10 is calibrated
slightly differently than the Fourth Amendment.”). The search and seizure provision
of the New Mexico Constitution “is a foundation of both personal privacy and the
integrity of the criminal justice system, as well as the ultimate regulator of police
conduct.” Garcia, 2009-NMSC-046, ¶ 31.
{17} New Mexico courts have long held that our state constitution provides New
Mexico’s motorists with a higher standard of protection from unreasonable searches
and seizures than the Fourth Amendment. Cardenas-Alvarez, 2001-NMSC-017,
¶ 15. In Gomez, our Supreme Court recognized that the automobile exception to the
warrant requirement, like the inventory search exception at issue here, “was based,
in part, on the notion that a motorist has a lesser expectation of privacy in an
automobile.” Cardenas-Alvarez, 2001-NMSC-017, ¶ 15. “In rejecting the federal
automobile exception to the warrant requirement, [our Supreme] Court dismissed
the notion that an individual lowers his expectation of privacy when he enters an
automobile, and elected instead to provide motorists with a ‘layer of protection’ from
unreasonable searches and seizures that is unavailable at the federal level.” Id. “The extra layer of protection from unreasonable searches and seizures involving
automobiles is a distinct characteristic of New Mexico constitutional law.” Id.
{18} Our Supreme Court has also consistently emphasized a second distinctive
characteristic of New Mexico’s constitutional protection against unreasonable
searches and seizures that is significant to our analysis: a strong preference for
warrants. See, e.g., Crane, 2014-NMSC-026, ¶ 16. A warrant is no meaningless
formality. It “has a significant role to play in that it provides the detached scrutiny
of a neutral magistrate, which is a more reliable safeguard against improper searches
than the hurried judgment of a law enforcement officer[.]” Id. (internal quotation
marks and citation omitted). Accordingly, our warrantless search analysis begins
“with the bedrock principle . . . that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable[.]” State v.
Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95 (emphasis, internal
quotation marks, and citation omitted). “Like all warrantless searches, . . . inventory
searches are presumed to be unreasonable and the burden of establishing their
validity is on the [s]tate.” Shaw, 1993-NMCA-016, ¶ 5.
{19} In the context of warrantless investigatory searches, New Mexico courts have
rejected federal bright-line rules and have taken a more restrictive view of the
permissible scope of such searches under the New Mexico Constitution. E.g.,
Rowell, 2008-NMSC-041, ¶¶ 14, 20 (declining to follow United States Supreme
Court cases allowing for the search of an automobile incident to arrest and holding that the scope of such a search was “limited to the area from within which the
arrestee might gain possession of a weapon or destructible evidence” (alteration,
internal quotation marks, and citation omitted)); Gomez, 1997-NMSC-006, ¶¶ 34-35
(rejecting the federal bright-line rule allowing warrantless probable cause searches
of automobiles and containers within the automobile and holding that a
particularized showing of exigent circumstances was required). In Rowell, for
example, our Supreme Court departed from federal precedent that allowed an officer
to search an automobile “whenever an arrestee had been stopped in a car, even if he
or she no longer had any access to it at the time of the search.” 2008-NMSC-041,
¶ 15. The Court limited the exception for searches incident to an arrest under the
New Mexico Constitution to “the range of the arrestee’s potential ability to access
any weapons, evidence or means of escape.” Id. ¶ 23. The Court reasoned that this
standard “was consistent with the established principle that a warrantless search
should ‘be strictly circumscribed by the exigencies which justify its initiation[,]’ ”
id. ¶ 14 (quoting Terry v. Ohio, 392 U.S. 1, 26 (1968)), and “provide[s] sufficient
latitude in allowing searches incident to arrest where they can be justified on
principle, while refusing to broaden exceptions to New Mexico’s constitutional
warrant requirement beyond their own justifications.” Id. ¶ 23. In the Court’s view,
the federal standard had stretched the exception beyond its breaking point. Id. ¶ 22;
Ochoa, 2009-NMCA-002, ¶ 23. {20} We have similar misgivings about the scope of the automobile inventory
exception to the warrant requirement under the Fourth Amendment. The Fourth
Amendment standard approaches a bright-line rule broadly authorizing routine
inventory searches pursuant to standard police procedures. See Bertine, 479 U.S. at
372. In this way, police departments have been permitted to determine the scope of
the search based on the policies and procedures adopted in the jurisdiction. See
Ingram, 914 N.W.2d at 804-05 (“Under the federal approach, local law enforcement,
and not independent and impartial judges, may set the contours of the substantive
protections for liberty under the Fourth Amendment in the field of warrantless
inventory searches through the crafting of local policy.”). As a result, police policies
like those in this case, which permit the opening of all compartments and containers,
all but eliminate the need for a warrant for a broad array of intrusive searches.
{21} Other state courts have been critical of the wide reach of Fourth Amendment
inventory searches. 2 As the Oregon Court of Appeals observed, “[i]t would be
2 A number of state courts have departed from the federal approach and circumscribed the practice under their state constitutions, though their approaches vary. See, e.g., State v. Daniel, 589 P.2d 408, 416-17 (Alaska 1979) (holding that the warrantless inventory of closed, locked, or sealed luggage, containers, or packages in a vehicle is unreasonable and unconstitutional under the Alaska Constitution); Nealy v. State, 400 So. 2d 95, 97-98 (Fla. Dist. Ct. App. 1981) (holding that a warrantless inventory search was unreasonable under the Florida Constitution because police had not established the element of necessity); State v. Lucas, 859 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (evaluating an inventory search under the totality of the circumstances and holding that opening a locked container during the course of an inventory search was unreasonable under the Indiana Constitution); Ingram, 914 N.W.2d at 818 (setting out procedures police should follow before conducting an inventory search and requiring police to inventory anomalous to hold that a permissible warrantless [investigatory] search of an
automobile . . . is more limited in scope than that permitted when a person’s car is
simply impounded.” Atkinson, 669 P.2d at 346. More recently, the Iowa Supreme
Court reasoned that the federal framework allowing police to obtain a broad
inventory search of a vehicle runs counter to the warrant requirement and expressed
concern that the exception has evolved beyond its initial benign purposes into a
“powerful unregulated tool in crime control.” Ingram, 914 N.W.2d at 814-15
(observing that “[a] warrantless inventory search and seizure seems more like a law
containers as a unit under the Iowa Constitution); State v. Sawyer, 571 P.2d 1131, 1134 (Mont. 1977) (limiting inventory searches to items in plain view under the Montana Constitution), overruled on other grounds by State v. Long, 700 P.2d 153, 155 (Mont. 1985) (holding that the Montana Constitution’s privacy provision does not require the exclusion of evidence gathered by a private search); State v. Hummel, 179 A.3d 366, 373-74 (N.J. 2018) (evaluating the reasonableness of an inventory search by considering the scope of the search, the procedure used, and the availability of less intrusive alternatives); State v. Mangold, 414 A.2d 1312, 1318 (N.J. 1980) (“[I]f a vehicle is lawfully impounded and its owner or permissive user is present, that person must be given the option of either consenting to the inventory or making his own arrangements for the safekeeping of the property contained in the vehicle. Absent consent or alternative security provisions, an inventory may be not undertaken [and] . . . the vehicle owner or user will be presumed to have assumed the risk for any claims of property loss or theft arising from the impoundment.”); State v. Atkinson, 669 P.2d 343, 344-345 (Or. Ct. App. 1983) (in banc) (holding that a search of the glove compartment of an impounded car exceeded the scope of a permissible inventory search under the Oregon Constitution); State v. Opperman, 247 N.W.2d 673, 675 (S.D. 1976) (holding, on remand from the United States Supreme Court, that “noninvestigative police inventory searches of automobile[s] without a warrant must be restricted to safeguarding those articles which are within plain view of the officer’s vision”); State v. White, 958 P.2d 982, 986-87 (Wash. 1998) (holding that under Washington’s Constitution, opening of locked trunk was not permitted absent manifest necessity); State v. York, 506 S.E.2d 358, 363 (W. Va. 1998) (“[F]or an inventory search to be proper, the taking of the inventory itself must be prompted by a number of valuables in plain view inside the car[.]”). enforcement weapon than a benign service to citizens”); see also Opperman, 428
U.S. at 377, 379-80 (Powell, J., concurring) (noting that “[t]he central purpose of the
Fourth Amendment is to safeguard the privacy and security of individuals against
arbitrary invasions by government officials” and cautioning that “the unrestrained
search of an automobile and its contents would constitute a serious intrusion upon
the privacy of the individual in many circumstances”). We share these concerns and
believe the federal approach is inconsistent with New Mexico’s strong preference
for warrants and the greater privacy protections afforded under Article II, Section
10. Therefore, departure from federal precedent is justified here.
{22} Having rejected the federal bright-line approach to automobile inventory
searches, we now turn to the protections guaranteed under the New Mexico
Constitution. Our evaluation of whether this search was reasonable under Article II,
Section 10 is guided by familiar principles: we must weigh the “governmental and
societal interests advanced to justify [the] intrusion[] against the constitutionally
protected interest of the individual citizen in the privacy of his effects.” Opperman,
428 U.S. at 377-78 (Powell, J., concurring); see Leyva, 2011-NMSC-009, ¶ 55;
Ryon, 2005-NMSC-005, ¶ 16. This approach adheres to the fact-specific nature of
reasonableness determinations under the New Mexico Constitution. See Ochoa,
2009-NMCA-002, ¶ 24 (stating that the New Mexico Constitution favors “an
examination into the reasonableness of officers’ actions under the circumstances of
each case”). {23} We turn first to our evaluation of the privacy interest in a closed and locked
container in an automobile. New Mexico has departed from federal precedent in
evaluating the strength of the competing interests involved. While “[f]ederal caselaw
has tended to minimize the strength of the privacy interest in the interior of
automobiles,” Ingram, 914 N.W.2d at 816-17, New Mexico courts have rejected “the
notion that an individual lowers his expectation of privacy when he enters an
automobile[.]” Cardenas-Alvarez, 2001-NMSC-017, ¶ 15. The State correctly
points out that the privacy interest in an automobile is not equivalent to the privacy
interest in a home. State v. Bomboy, 2008-NMSC-029, ¶ 12, 144 N.M. 151, 184 P.3d
1045. Nevertheless, New Mexico’s extra layer of protection from unreasonable
searches and seizures involving automobiles recognizes and safeguards the
substantial privacy interest New Mexico’s motorists have in the papers and effects
that may be found inside an automobile. This Court’s early inventory search
jurisprudence acknowledged as much, observing that “ ‘a routine police inventory
of the contents of an automobile involves a substantial invasion into the privacy of
the vehicle owner.’ ” State v. Nemrod, 1973-NMCA-059, ¶ 12, 85 N.M. 118, 509
P.2d 885 (quoting Mozzetti v. Super. Ct. of Sacramento Cnty., 484 P.2d 84, 88 (Cal.
1971) (in bank)), overruled on other grounds by State v. Vigil, 1974-NMCA-065,
¶ 13, 86 N.M. 388, 524 P.2d 1004. Defendant also had an expectation of privacy
with respect to the contents of his locked safe, one that was sufficient to invoke
constitutional protections against unreasonable police intrusion. See United States v. Chadwick, 433 U.S. 1, 11 (1977) (“By placing personal effects inside a double-
locked footlocker, respondents manifested an expectation that the contents would
remain free from public examination. No less than one who locks the doors of his
home against intruders, one who safeguards his personal possessions in this manner
is due the protection of the Fourth Amendment Warrant Clause.”). That expectation
was not diminished because the safe was found inside an automobile. See Cardenas-
Alvarez, 2001-NMSC-017, ¶ 15.
{24} Against these interests we consider the governmental and societal need for the
search. We evaluate the governmental need by considering the extent to which the
search was reasonably necessary to accomplish any of the three legitimate
governmental purposes that justify this type of administrative caretaking search. See
Ryon, 2005-NMSC-005, ¶ 38 (applying this principle in the context of a community
caretaking search); see also Rowell, 2008-NMSC-041, ¶ 14 (stating that “a
warrantless search should be strictly circumscribed by the exigencies which justify
its initiation” (internal quotation marks and citation omitted)). The State maintains
that the search served two purposes: protecting Defendant’s property and protecting
the police from claims of loss or theft.3 Id.
{25} With respect to the governmental interest in safeguarding Defendant’s
property, Defendant contends, and we agree, that his property was adequately
3 The State does not argue that the search protected the police from potential danger. See Shaw, 1993-NMCA-016, ¶ 10. protected by the nature of the container and the existence of the lock. While the State
responds that “a thief could still steal the gun safe itself, along with its contents[,]”
that possibility becomes exceedingly unlikely where, as here, the officer removes
the gun safe from the vehicle and takes it into police custody for safekeeping. Under
the circumstances, the State has not shown that further intrusion into the locked safe
was necessary to carry out the government’s interest in safeguarding Defendant’s
property.
{26} The State also argues that it was necessary to open the safe to protect the police
from false claims of lost or stolen property. To the extent police face liability for
false claims,4 we are not persuaded that opening and inventorying the contents of a
locked container provides any more protection than inventorying the locked
container as a unit, as a false claim can be made that items inside the safe were stolen
regardless of whether police opened it or not. See Ingram, 914 N.W.2d at 818 (“A
party determined to make a false claim may simply allege that the valuables were
not included in the written inventory, either through mistake or design.”); see also
4 While New Mexico courts have referred to this oft-cited justification, see State v. Byrom, 2018-NMCA-016, ¶ 34, 412 P.3d 1109, no prior case has examined whether and how the police may be subject to a tort suit based on negligent loss or theft of a defendant’s property while it is in police custody. For example, it remains an open question whether the New Mexico Tort Claims Act, NMSA 1978, § 41-4- 12 (2020), waives immunity for such a claim. See Mozzetti, 484 P.2d at 89-90 (stating that “[t]he contention that the police inventory search is necessary to protect the police . . . from tort claims is even less convincing” because “the police are not liable for ordinary negligence in handling automobile contents”). Because the parties have not briefed the matter, we do not explore it further here. Bertine, 479 U.S. at 383 (Marshall, J., dissenting) (“[I]nventories are not a
completely effective means of discouraging false claims, since there remains the
possibility of accompanying such claims with an assertion that an item was stolen
prior to the inventory or was intentionally omitted from the police records.”
(alteration, internal quotation marks, and citation omitted)). As the Iowa Supreme
Court noted, sealing and storing containers “would provide at least as much
protection to the remote threat as a warrantless inventory search of containers.”
Ingram, 914 N.W.2d at 818.
{27} The police department policy involved in this case further undermines any
argument that it was necessary to open the safe here. The policy prohibited opening
locked containers by force, meaning that if Defendant had not had the key with him,
the officer would have been able to do no more than remove the gun safe from the
vehicle and inventory it as a unit. In essence, the policy recognizes that the legitimate
purposes of the inventory search can be fully accomplished without opening a locked
container, regardless of whether the owner has a key in his possession or not. For all
of these reasons, we see little justification for opening the gun safe, particularly in
light of Defendant’s countervailing privacy interests.
{28} Finally, we note that the State had a reasonable opportunity to seek a warrant
if it believed there was a basis for doing so. Defendant was in custody, his truck was
impounded, and the gun safe had been removed for safekeeping. To the extent
officers believed that probable cause existed to search the locked gun safe, they could have presented an affidavit to a neutral magistrate and waited to search the
container until a warrant was in hand. This course of action not only safeguards the
privacy interests of the citizen, it also provides a layer of protection for the fruit of
valuable police work.
{29} In this case, we hold that the warrantless search of Defendant’s locked gun
safe violated Defendant’s right to be free from an unreasonable search under the
New Mexico Constitution. As the State has not advanced any other exception to the
warrant requirement that would justify opening the locked container, we reverse the
district court’s denial of Defendant’s motion to suppress and hold that all evidence
obtained as a result of that search must be suppressed.
CONCLUSION
{30} We reverse the district court’s denial of Defendant’s motion to suppress and
remand for further proceedings consistent with this opinion.
{31} IT IS SO ORDERED.
_________________________________ MEGAN P. DUFFY, Judge
WE CONCUR:
_________________________________ ZACHARY A. IVES, Judge
_________________________________ SHAMMARA H. HENDERSON, Judge