January 29, 2010 – State of New Mexico v. Andrew Benavidez, No. 28,636

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	January 29, 2010
NO. 28,636
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ANDREW BENAVIDEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Teddy L. Hartley, District Judge
Gary K. King, Attorney General
Francine A. Chavez, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
CASTILLO, Judge.
{1} 	Defendant, a parolee, appeals a search of his home that was conducted pursuant
to conditions of his parole. 	We conclude that the Fourth Amendment does not
prohibit parole searches that are based on reasonable suspicion of a parole violation
and that in the present case the parole officer had reasonable suspicion to conduct the
contested search. We do not address Defendant’s state constitutional claim because
it was not properly preserved. Lastly, we do not consider whether there was sufficient
evidence of constructive possession because Defendant failed to reserve this argument
in his plea agreement. For these reasons, we affirm the district court.
I. 	BACKGROUND
{2} 	The following facts are derived from the record. On July 11, 2007, Defendant’s
parole officer observed Defendant driving a car. A short time later, the parole officer
and his supervisor arrived at Defendant’s house to conduct a routine visit. When the
parole officer arrived, he saw the same car that Defendant had been driving earlier.
The parole officer knocked on the door and announced himself but received no
response. While he was waiting for a response, the parole officer noticed the curtains
and blinds moving in the room that he knew to be Defendant’s.
{3} 	The parole officer called for police back up. During the twenty minutes that it

2
took for the police to arrive, the parole officer continued to knock and announce—and
continued to receive no response. When the police arrived, the door was kicked in,
and the officers searched the house room by room. 	Defendant was located in his
bedroom, under his bed, and when he came out, the parole officer asked why he had
been hiding. 	Defendant responded that he had missed a parole meeting with the
officer. Defendant was taken outside, and the officers continued to search the house.
In a set of dresser drawers in the same bedroom where Defendant was found, the
parole officer located Defendant’s identification card, a pipe, and a baggie with a
small amount of methamphetamine.
{4} 	Defendant was charged by criminal information in district court for one count
of possession of a controlled substance and one count of possession of drug
paraphernalia. 	He filed a motion to suppress the drug evidence, which the district
court denied. 	Defendant then entered into a conditional plea agreement. 	He pled
guilty to one count of possession of a controlled substance, the paraphernalia charge
was dropped, and he reserved the right to appeal the legality of the search of his home.
II. 	DISCUSSION
{5} 	Defendant makes two basic arguments on appeal. He first contends that the
district court improperly denied his motion to suppress the drug evidence because the
search of his home was constitutionally unreasonable. 	He also argues that the

3
evidence should have been suppressed because there was insufficient evidence to
submit the issue of constructive possession to a jury. We begin with the validity of
the search.
A. 	Validity of the Search
{6} 	Defendant raises four challenges to the search. First, he claims that the district
court erred in not requiring the parole officer to have reasonable suspicion of criminal
activity before conducting the warrantless search. Defendant also contends that it was
not reasonable to forcibly enter Defendant’s home under the circumstances of this
case. Additionally, Defendant challenges the legality of the continued search of the
home after Defendant was located inside. 	In his last point, Defendant argues that
Article II, Section 10 of the New Mexico Constitution requires that parole officers
obtain a warrant before conducting a probation or parole search that is based on
reasonable suspicion of a probation or parole violation. 	We will first set out the
general standard of review for suppression orders, and then we will address each of
Defendant’s points.
1. 	Standard of Review
{7} 	“The legality of a search questioned in a suppression hearing is generally tested
as a mixed question of law and fact wherein we review any factual questions under a
substantial evidence standard and we review the application of law to the facts de

4
novo.” State v. Baca, 2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509 (internal
quotation marks and citation omitted). 	We indulge all reasonable inferences in
support of the district court’s factual determination, and we disregard all inferences
or evidence to the contrary. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119,
2 P.3d 856.
2. 	Basis for Warrantless Search
{8} 	Pursuant to the Fourth Amendment, “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and 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.” U.S. Const. amend. IV. “Normally, the search of a
home is only reasonable for Fourth Amendment purposes if it is conducted pursuant
to a warrant grounded in probable cause.” 	Baca, 2004-NMCA-049, ¶ 21. 	The
warrant requirement protects citizens’ reasonable expectations of privacy in their
homes. Chavez v. Bd. of County Comm’rs, 2001-NMCA-065, ¶ 21, 130 N.M. 753,
31 P.3d 1027 (“[T]he Fourth Amendment . . . was intended to protect the sanctity of
an individual’s home and privacy.”).
{9} 	The privacy rights of parolees and probationers, however, are subject to
limitations which have been addressed by the United States Supreme Court in three

5
cases: Griffin v. Wisconsin, 483 U.S. 868 (1987); United States v. Knights, 534 U.S.
112 (2001); and Samson v. California, 547 U.S. 843 (2006). 	We provide a brief
overview of these cases because they provide the basis for much of our analysis.
{10} 	In Griffin, the Court evaluated a Wisconsin policy and held that a warrantless
search of a probationer conducted pursuant to the policy did not violate the Fourth
Amendment because the state’s “special needs”—as articulated through its probation
policies—“‘justif[ied] 	departures 	from 	the 	usual 	warrant 	and 	probable-cause
requirements.” 483 U.S. at 873-74. The Court observed that probationers “do not
enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional
liberty properly dependent on observance of special [probation] restrictions.’” Id. at
874 (alteration in original) (citation omitted). 	Griffin held that Wisconsin’s policy
requiring “reasonable grounds” to search probationers for violations of probation
conditions met the minimum standards required under the Fourth Amendment. 483
U.S. at 880.
{11} 	The Knights Court addressed the question of whether warrantless searches of
probationers by law enforcement officers, not probation officers, are constitutional
when such searches are supported by less than probable cause. 	In that case, the
defendant’s probation order required him to “[s]ubmit his . . . person, property, place
of residence, vehicle, [and] personal effects, to [a] search at anytime, with or without

6
a search warrant, warrant of arrest[,] or reasonable cause by any probation officer or
law enforcement officer.” 	534 U.S. at 114 (internal quotation marks omitted).
Because the search at issue in Knights was conducted by a law enforcement officer,
the Court did not apply the special-needs doctrine discussed in Griffin. Instead, the
Knights Court used a totality of the circumstances test to evaluate the reasonableness
of the search “with the probation search condition being a salient circumstance.” 534
U.S. at 118. 	The Court ultimately found that because probationers have a lesser
expectation of privacy than do free citizens, and because the probation condition put
the defendant on notice of his limited privacy rights, the defendant’s “reasonable
expectation of privacy” was “significantly diminished.” 	Id. at 119-20. As such, a
search based on reasonable suspicion did not violate the defendant’s Fourth
Amendment rights. Id. at 121-22.
{12} 	In Samson, the Court considered “whether a suspicionless search, conducted
under the authority of [a California statute], violates the Constitution.” 547 U.S. at
846. 	That case involved a challenge by a parolee to a California law. 	Id. 	The
defendant was a parolee, not a probationer and, in this regard, the Samson Court stated
that “parolees have fewer expectations of privacy than probationers, because parole
is more akin to imprisonment than probation is to imprisonment.” 	Id. at 850. The
Court applied the totality of the circumstances approach, not the special needs

7
rationale of Griffin, and concluded that searches under the California law were
constitutional because a parolee does “not have an expectation of privacy that society
would recognize as legitimate.” Samson, 547 U.S. at 852. Further, the Court held that
the state has an “overwhelming interest” in supervising parolees because “parolees .
. . are more likely to commit future criminal offenses.” Id. at 853 (internal quotation
marks and citation omitted).
{13} 	The Court also acknowledged that a state’s interests in reducing recidivism and
thereby promoting reintegration and positive citizenship among probationers and
parolees warrant privacy intrusions that would not otherwise be tolerated under the
Fourth Amendment. 	Id. 	The Court balanced the parolee’s expectation of privacy
against the State’s interest in supervising parolees and held that “the Fourth
Amendment does not prohibit a police officer from conducting a suspicionless search
of a parolee.” Id. at 848, 853, 857.
{14} 	Accordingly, as we address the question of a search of the home of a parolee,
we look to the Supreme Court’s two exceptions to the warrant requirement: (1) the
special needs exception and (2) the totality of the circumstances exception. 	United
States v. Warren, 566 F.3d 1211, 1215 (10th Cir. 2009). Both apply to a parolee.
{15} 	In his parole agreement, Defendant agreed to comply with “Rules for Extreme
Level Supervision” and “Rules for Home Visits.” 	The home visit rules required

8
Defendant to promptly answer the door, assure that parole officers have “safe and
open access” to his home, and to general conditions regarding his behavior before and
during the home visits.
{16} 	As a further condition of parole, Defendant agreed to “submit to reasonable
[warrantless] searches per Probation and Parole Division [PPD] Policy.” The relevant
PPD Policy (PPD Policy) governs searches of “an offender’s person, home, or
p 	r 	o 	p 	e 	r 	t 	y 	b 	y 	f 	i 	e 	l 	d 	o 	f 	f 	i 	c 	e 	r 	s 	. 	”
http://corrections.state.nm.us/policies/current/CD-050700.pdf. 	According to the
policy, a parole officer may search when there is reasonable suspicion to believe either
(1) that “the offender is in possession of prohibited items” or (2) that “a violation of
[the] conditions of probation or parole has occurred.” Id. There is no dispute as to the
parole violation. Defendant concedes that the failure to answer the door in response
to the parole officer’s knock was a parole violation. 	Even though he makes this
concession, he argues that the policy is unconstitutional, that the parole officer failed
to comply with the policy, and that Baca should be read to limit warrantless searches
under the policies to only those cases wherein the parole officer has reasonable
suspicion of criminal activity.
a. 	Constitutionality of PPD Policy
{17} 	We 	turn 	to 	Samson, 	547 	U.S. 	843, 	for 	direction 	in 	analyzing 	the

9
constitutionality of the PPD policy. 	Samson involved the suspicionless search of a
parolee’s 	person 	under 	a 	California 	statute 	that 	authorized 	the 	warrantless,
suspicionless search. Defendant argues that Samson is irrelevant because the Court
simply approved California’s policy requiring parolees to consent to warrantless,
suspicionless searches. According to Defendant, Samson does not apply because New
Mexico’s parole policy requires reasonable suspicion, and Samson “did not alter the
requirement that the local government follow the regulatory system that it has adopted
for parole searches.” This argument, however, disregards the underlying effect of the
case: 	Samson sets the constitutional floor for permissible parole and probation
searches pursuant to a state’s policy. The California law discussed in Samson was
held constitutional, and it permits searches at any time, with or without a warrant or
cause. 	Id. at 846. 	Consequently, it follows that the New Mexico policy, which
affords greater protection than the California policy by allowing warrantless searches
limited 	to 	those 	supported 	by 	reasonable 	suspicion 	of 	parole 	violations, 	is
constitutional as well.
b. 	Application of Policy
{18} 	Defendant next challenges the application of the PPD Policy. 	Citing to
Coleman v. Commonwealth, 100 S.W.3d 745 (Ky. 2002), Defendant asserts that the
parole officer’s entry into Defendant’s home was not authorized under the policy and

10
was therefore unconstitutional. Coleman is distinguishable. In Coleman, the parole
officer claimed that the search was based on reasonable suspicion of a probation
violation. Id. at 754-55. The facts, however, did not bear out his position. Id. The
defendant in Coleman was not home when the parole officer entered his home and, at
that time, the parole officer had no grounds to believe that the defendant had violated
parole. 	The Coleman court ruled the search unconstitutional because the parole
officer had no reasonable suspicion of a parole violation prior to entering the
defendant’s residence. Id. Defendant here argues that the parole officer did not go
to Defendant’s house with any suspicion. That is true. But once the parole officer
arrived and Defendant did not open the door for a home visit, the situation changed.
Defendant concedes that the failure to answer the door in response to the parole
officer’s knocks “would amount to a parole violation.” It follows that once Defendant
failed to answer the door as required by his parole agreement, the parole officer had
reasonable suspicion that there was a parole violation—a ruling made by the district
court in this case. Coleman does not support Defendant’s argument.
{19} 	Defendant also cites to Baca and urges us not to “expand the Baca holding to
allow the warrantless entry into a home based on less than reasonable suspicion of
criminal activity.” We agree that Baca holds that “warrantless probation searches can
and must be supported by reasonable suspicion as defined in New Mexico law to be

11
an awareness of specific articulable facts, judged objectively, that would lead a
reasonable person to believe criminal activity occurred or was occurring.” 	Baca,
2004-NMCA-049, ¶ 43. However, the Baca Court specifically declined to address the
breadth of the reasonable cause requirement in a parole policy based on a violation of
a condition of probation. Id. ¶ 38 n.3. This unanswered question is squarely before
us in the present appeal.
{20} 	Defendant relies on general Fourth Amendment law regarding the constitutional
safeguards protecting homes from warrantless searches and argues that it was not
reasonable to forcibly enter Defendant’s home based only on a suspicion that he might
have violated his parole agreement. Defendant does not provide any specific authority
that would address the holdings in Griffin, Knights, or Samson. The State relies on
the special needs test enunciated in Griffin and the totality of the circumstances test
set forth in Knights.
{21} 	We rely on Griffin. The language contained in the PPD Policy and in the parole
agreement is clear. Defendant was required to answer the door when his parole officer
knocked. The language of the Wisconsin policy reviewed in Griffin is similar to the
New Mexico policy that authorizes reasonable warrantless searches when a parole
officer has reasonable suspicion to believe that a violation of the conditions of parole
has occurred. 	Griffin, 483 U.S. at 880 (holding that Wisconsin’s policy requiring

12
“reasonable grounds” to search probationers for violations of probation conditions met
the minimum standards required under the Fourth Amendment). The district court
here ruled that there was reasonable suspicion, and Defendant does not challenge that
part of the ruling. 	Defendant’s argument would have us ignore the conditions of
parole and related PPD Policy. 	This we cannot do. 	Thus, we hold that the initial
warrantless search did not violate the Fourth Amendment.
c. 	Consent to Search
{22} 	Defendant also argues that the parole officer’s failure to obtain Defendant’s
consent to enter the home rendered the officer’s forcible entry into the home
unreasonable. 	Specifically, Defendant maintains that in the parole agreement, he
“agreed to consent to a warrantless search if so requested by a parole officer” and that
the agreement does not “authorize a parole officer to search without first contacting
the parolee and allowing him to consent in accordance with his contract.” The out of
state cases cited by Defendant do not support his position.
{23} 	In Joubert v. State, 926 P.2d 1191 (Alaska Ct. App. 1996), a probation officer
conducted a warrantless search while the defendant was not at home. Id. at 1192. A
probation condition required the probationer to “submit to a search of [his] . . .
residence upon request of a probation officer.” 	Id. at 1193 (alterations in original)
(internal quotation marks omitted). 	The Joubert court concluded that because the

13
probation condition was worded so that “the probation officer’s authority to search is
premised on [the defendant] receiving notice of the intended search,” the probation
officer was required “to communicate in some way with the probationer before
conducting a search.” Id. at 1193-94. Joubert is factually distinct from the present
case. First, Defendant’s parole agreement simply states “I will submit to reasonable
warrantless searches,” and it does not require the parole officer to make a request to
search. Second, the defendant in Joubert was not present when the probation officer
arrived, was not given notice of the search, and was not given a chance to refuse to
submit 	to 	the 	search. 	Unlike 	the 	facts 	in 	Joubert, 	Defendant 	had 	an
opportunity—twenty minutes—to communicate with the parole officer and either
grant or refuse permission to search. Considering the evidence that Defendant was
inside the house, it was reasonable for the parole officer to conclude that Defendant’s
failure to respond to the knocking was not an expression of consent.
{24} 	Defendant also relies on another Alaska case, State v. James, 963 P.2d 1080
(Alaska Ct. App. 1998), but James, like Joubert, is unavailing. 	In James, as a
condition of probation, the defendant was required to submit to a warrantless search
of his home for the presence of contraband upon the request of a probation officer.
Id. at 1081. The officer requested to search the defendant’s home, and he refused to
consent. Id. The officer searched the home nevertheless. Id. The defendant argued

14
that the search violated the Fourth Amendment because his refusal to honor the
condition of probation could only result in a revocation, not a warrantless search. Id.
Although the James court observed that the Oregon courts have interpreted this
probation condition as James argued, it also concluded that the Oregon courts appear
to stand alone in their interpretation of the disputed language. Id. at 1083. Thus, the
court in James upheld the warrantless search concluding that Alaska would join with
other courts that “have consistently interpreted these provisions to authorize
warrantless searches by probation officers regardless of whether the probationer has
consented . . . and even in the face of refusal or resistance by the probationer.” 	Id.
James does not advance Defendant’s case.
{25} 	Defendant also points us to Oregon law and relies on State v. Davis, a case in
which the Oregon Court of Appeals stated that “a probation condition that requires a
probationer to submit to searches does not constitute a self-executing, prospective
consent by the probationer to a general warrantless search.” 891 P.2d 1373, 1378 (Or.
Ct. App. 1995). Despite this general statement, however, the court in Davis concluded
that because the defendant had “ample opportunity to refuse the search” as well as
knowledge that he had agreed to submit to searches as a condition of probation, the
defendant’s failure to expressly consent to the search did not require the suppression
of the evidence discovered. Id. at 1378, 1379-80. In the present case, Defendant was

15
aware of the conditions of his parole and, as we have explained in the previous
paragraph, Defendant had “ample” opportunity to refuse entry. See id. Accordingly,
even under Davis, Defendant’s motion to suppress would have been properly denied.
3. 	Kicking in the Door
{26} 	Defendant also challenges the parole officer’s manner of conducting the
search—kicking in the door and entering the home—as unreasonable. 	Defendant,
however, fails to cite any authority to support an argument that there were no grounds
“to forcibly kick in the door.” Nothing in the PPD Policy restricts the conduct of a
parole search. See http://corrections.state.nm.us/policies/current/CD-050700.pdf. As
we have explained, the parole officer knocked on the door and announced his identity
for twenty minutes, and Defendant refused to respond. 	In order to investigate the
suspected parole violation—failure to submit to a search—the officer was required to
enter the premises. Because Defendant did not answer the door, there appears to have
been no alternative for the parole officer apart from forced entry. 	See State v.
Attaway, 117 N.M. 141, 147, 870 P.2d 103, 109 (1994) (“The officer may break open
any outer or inner door or window of a house, or any part of a house, or any thing
therein, to execute a search warrant, if, after notice of his authority and purpose, he
is refused admittance or when necessary to liberate himself or a person aiding him in
the execution of the warrant.” (internal quotation marks and citation omitted)),

16
modified on other grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d
80. 	In the absence of authority, we conclude that the initial entry and search for
Defendant was reasonable under the Fourth Amendment.
4. 	Continued Search
{27} 	Defendant also challenges the scope of the search. According to Defendant, the
parole officer needed reasonable suspicion of a new parole violation or criminal
activity to continue to search after the initial suspicion regarding the parole violation
was quelled and after Defendant was removed from the home. 	There is general
language banning routine searches without reasonable suspicion: “This policy is in
no way to be construed as giving authority to PPD staff to conduct routine searches
of offenders or their property without reasonable suspicion, but specifically limits the
occasions when such activities will occur.” Probation and parole searches are thus
strictly limited to those circumstances in which a probation or parole officer has
reasonable suspicion of a violation, contraband, or criminal activity. See id.; Baca,
2004-NMCA-049, ¶ 43. 	There is nothing addressing whether once evidence of
contraband or a violation is discovered, a parole officer may continue to search for
evidence of further violations. The policy authorizing warrantless searches is silent
regarding the scope of authorized searches.
{28} 	We therefore consider, in the present case, whether the parole officer could

17
continue to search Defendant’s house after the officer confirmed his initial suspicion
that Defendant had violated his parole. Defendant argues that the parole officer did
not articulate any additional suspicion to support the continued search.
{29} 	The State relies on all of Defendant’s actions as grounds for the search.
Reasonable suspicion is evaluated under the totality of the circumstances. See State
v. Talley, 2008-NMCA-148, ¶ 6, 145 N.M. 127, 194 P.3d 742 (analyzing the
“reasonableness of the law enforcement officers’ course of conduct . . . by examining
the totality of the circumstances”). 	Thus, we are inclined to evaluate the entire
encounter and look to Defendant’s behavior throughout the incident. 	This would
include the movement of the curtains, the failure to acknowledge the parole officer’s
presence for twenty minutes, Defendant’s hiding under the bed to avoid an encounter,
and Defendant’s response to the parole officer’s question as to why he had not
answered the door. Defendant stated that he had missed a parole meeting. The parole
officer found this response to be an unsatisfactory explanation for refusing to answer
the door and for hiding under the bed.
{30} 	Defendant 	characterizes 	the 	parole 	officer’s 	disbelief 	as 	“unsupported
intuition.” We disagree. The Supreme Court of the United States has explained that
in the context of parole and probation searches, the parole officer’s experiences with
the client, as well as the officer’s experiences in other similar circumstances, is

18
relevant to the reasonable suspicion inquiry. 	See Griffin, 483 U.S. at 878-79
(acknowledging the value of “an ongoing supervisory relationship” between officer
and client). Further, when evaluating whether reasonable suspicion exists, we look
to the facts presented “in light of common sense and . . . human experience.” 	See
United States v. Mendez, 118 F.3d 1426, 1431-32 (10th Cir. 1997) (evaluating the
contradictory and implausible information given by the driver using common sense
and human experience). A reasonable person would question Defendant’s reasons for
refusing to answer the door and then for hiding under his bed, especially in light of the
fact that Defendant knew he was required to cooperate with home visits as a condition
of probation and that a probation violation would allow a warrantless search of his
home. Defendant’s reason was that he hid because he had missed a parole meeting.
The parole officer relied on his experience as well as his common sense in
determining that based on Defendant’s odd behavior, there was a likelihood that
Defendant possessed contraband or had violated his parole in some other way. This
is more than “unsupported intuition.”
{31} 	“[W]hether a search is unreasonable is determined by balancing the degree of
intrusion into a probationer’s [or a parolee’s] privacy against the interest of the
government in promoting rehabilitation and protecting society.” Baca, 2004-NMCA-
049, ¶ 32. 	Defendant argues that the State’s interest in further investigation was

19
minimal because there was no reasonable suspicion of criminal activity. The statute
authorizing parole, however, dictates that the purpose of parole is to “treat persons
convicted of crimes based on their individual needs ‘when a period of institutional
treatment is deemed essential in the light of the needs of public safety and their own
welfare.’” 	State v. Utley, 2008-NMCA-080, ¶ 9, 144 N.M. 275, 186 P.3d 904
(quoting NMSA 1978, § 31-21-4 (1963)). Thus, the purposes of parole—and as a
result, the State’s interest in the continued search—are twofold: 	the protection of
society as well as the rehabilitation of the individual, both of which could have been
threatened had Defendant violated the conditions of his parole.
{32} 	Defendant’s argument also disregards his own lessened expectation of privacy
as a result of his status as a parolee. 	The Supreme Court of the United States has
acknowledged the same limited expectation of privacy for parolees. Samson, 547 U.S.
at 850 (“[P]arolees have fewer expectations of privacy than probationers, because
parole is more akin to imprisonment than probation is to imprisonment.”).
{33} 	Defendant contends that because the California law of parole differs from the
New Mexico law of parole, New Mexico parolees have a heightened expectation of
privacy. Specifically, Defendant argues that parole is required by statute for certain
offenses, while in California, parole is an “early release system” and, as a result, “New
Mexico parolees have a greater expectation of privacy than do California parolees.”

20
We are unpersuaded.
{34} 	Samson did not rely on the consideration that in California parole can be
construed as “a privilege of early release.” Instead, the Court concluded that parole
is more like imprisonment than probation. 	547 U.S. at 850. 	Looking to our own
statutes, we see a similar analogy between parole and imprisonment. According to
NMSA 1978, Section 31-21-10(E) (2007) (amended 2009), “[e]very person while on
parole shall remain in the legal custody of the institution from which the person was
released, but shall be subject to the orders of the board.” An inmate is required to
submit to “a written statement of the conditions of parole” or the inmate will not be
released. 	Id. 	Parole, therefore, is “an established variation on imprisonment,” and
“parolees have fewer expectations of privacy than probationers.” Samson, 547 U.S.
at 850 (internal quotation marks and citation omitted). In New Mexico, “[p]robation
status 	significantly 	reduces 	a 	probationer’s 	expectation 	of 	privacy,” 	Baca,
2004-NMCA-049, ¶ 42. Because parolees have an even lower expectation of privacy
than a probationer, we are satisfied that under Samson and New Mexico law,
Defendant had a reduced expectation of privacy.
{35} 	We also look to New Mexico law. In State v. Ponce, we held that the search of
the defendant’s vehicle after his arrest for a parole violation was reasonable.
2004-NMCA-137, ¶ 28, 136 N.M. 614, 103 P.3d 54. 	In Ponce, we looked to the

21
totality of the circumstances as well as the defendant’s reduced expectation of privacy
as a parolee. Id. The defendant was under an excessively high assessment of risk of
violation of probation and had agreed to abide by a PPD policy that allowed staff of
the PPD to conduct a search of an offender’s home when there was reasonable cause
to believe that evidence of a violation would be found. 	Id. ¶¶ 12, 28. 	Before his
arrest, the defendant had been subject to a pat-down search which revealed a large
sum of cash in small bills in spite of the parole officer’s understanding that the
defendant was unemployed. 	Id. ¶ 28. 	The defendant had lied about how he had
arrived at the probation office. Id. Based on these facts, we held that the probation
officers had a reasonable basis to search the defendant’s vehicle for evidence of
another 	probation 	violation. 	Id. 	Similarly, 	here 	Defendant’s 	behavior, 	his
unsatisfactory explanation for hiding under his bed, and Defendant’s reduced
expectation of privacy all support the scope of the search in the present case. Further,
the parole officer’s obligations to public safety and to Defendant’s rehabilitation
outweighed Defendant’s privacy interest. 	See People v. Young, 923 P.2d 145, 151
(Colo. Ct. App. 1995) (upholding a warrantless parole search, which continued after
the officers discovered evidence to verify the suspected parole violation). In this case,
based on the totality of the circumstances, we hold that the parole officer had
reasonable suspicion to continue the search.

22
5. 	New Mexico Constitution
{36} 	Defendant’s final argument relating to the propriety of the search is that the
New Mexico Constitution provides greater protection for searches of parolees than the
United States Constitution provides. 	The State argues that Defendant failed to
preserve this argument. We agree with the State.
{37} 	The New Mexico Supreme Court, in State v. Gomez, 1997-NMSC-006, 122
N.M. 777, 932 P.2d 1, established the framework for assessing whether a state
constitutional claim with a federal analog was preserved. “If established precedent
construes the [state constitutional] provision to provide more protection than its
federal counterpart, the claim may be preserved by (1) asserting the constitutional
principle that provides the protection sought under the New Mexico Constitution, and
(2) showing the factual basis needed for the [district] court to rule on the issue.” Id.
¶ 22. Where there is no precedent interpreting a state constitutional right differently
than its federal equivalent a litigant must meet a higher burden. 	Id. ¶ 23. In these
cases, “a party also must assert in the [district] court that the state constitutional
provision at issue should be interpreted more expansively than the federal counterpart
and provide reasons for interpreting the state provision differently from the federal
provision.” 	Id. (emphasis omitted). Having set forth the appropriate framework to
evaluate whether Defendant’s state constitutional claim was preserved, we examine

23
whether he has satisfied these requirements.
{38} 	Defendant provided the following argument in his motion to suppress:
In New Mexico, with regard to probationers, any search is
unreasonable unless an officer has a reasonable suspicion that a crime
has occurred. [Baca], 2004-NMCA-049, ¶ 37[.] Reasonable suspicion
is to be construed by New Mexico case law. 	Id. [] ¶ 38. 	The New
Mexico Constitution should be interpreted to extend this rule to parolees.
Defendant fails to direct us to any additional discussion of the issue, and we were
unable to locate in the record any further development of Defendant’s state
constitutional argument. No mention was made of this argument during the motion
hearing.
{39} 	Defendant’s limited discussion of his state constitutional claim does not satisfy
the two requirements of the framework established in Gomez. With respect to the first
of these two requirements, Defendant’s motion fails to assert the constitutional
principle that provides the protection he seeks under the New Mexico Constitution.
Defendant merely cites Baca and, without identifying a specific article or section of
the New Mexico Constitution, claims that the New Mexico Constitution should be
interpreted to provide parolees the rights afforded to probationers in Baca. 	The
holding in 	Baca 	was based on the Fourth Amendment to the United States
Constitution and explicitly rejected the state constitutional arguments advanced
therein. See Baca, 2004-NMCA-049, ¶¶ 30-35, 37 (holding that the federal case law

24
construing the protections provided by the Fourth Amendment guides our analysis of
warrantless probation searches). Without more specific guidance, we are unable to
conclude that Defendant has identified a specific state constitutional principle which
provides the protection he seeks.
{40} 	Even if we were to infer that Defendant could only have been relying on Article
2, Section 10 of the New Mexico Constitution for a claim that parolees should have
more protection under the state constitution than under its federal counterpart,
Defendant has failed to satisfy the second of the Gomez requirements—he did not
establish the factual basis for his claim. Instead, he merely cited Baca and claimed
that the rights discussed in that case should apply to him. Baca does not advance his
arguments for additional protection under the state constitution and, in any case, the
cite to Baca does not, in our view, constitute the establishment of a factual basis for
a state constitutional claim. Accordingly, we do not consider Defendant’s contention.
See State v. Jimenez, 2007-NMCA-005, ¶ 13, 141 N.M. 106, 151 P.3d 67 (filed 2006)
(declining 	to 	address 	an 	unpreserved 	argument 	made 	pursuant 	to 	the 	state
constitution).
B. 	Constructive Possession
{41} 	Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and
State v. Boyer, 103 N.M. 655, 658-59, 658 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant

25
argues that the evidence could not have established that he was in constructive
possession of the methamphetamine discovered by the parole officer. The State
contends that Defendant’s plea agreement failed to reserve this issue for appeal. We
agree with the State.
{42} 	Defendant’s plea and disposition agreement makes the following reservation:
“The defendant does not waive his right to an appeal on the issue of whether the
search of his home was unreasonable.” Although it is clear that Defendant preserved
the issue of constructive possession by filing a motion to suppress the evidence of
contraband, preservation is distinct from reservation. 	See State v. Chavarria,
2009-NMSC-020, ¶ 15, 146 N.M. 251, 208 P.3d 896 (explaining that preservation is
“the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right” (internal quotation marks and
citation omitted)). Defendant waived his right to appeal whether there was sufficient
evidence to support constructive possession. We therefore do not consider the merits
of the argument. 	See id. ¶¶ 10, 16 (refusing to reach the merits of a claim that was
waived pursuant to an unconditional guilty plea).
III. 	CONCLUSION
{43} 	We affirm the district court.
{44} 	IT IS SO ORDERED.

26
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
__________________________________
MICHAEL D. BUSTAMANTE, Judge
__________________________________
RODERICK T. KENNEDY, Judge