June 08, 2011 – State of New Mexico v. Darrick Sublet, No. 28,819

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	June 8, 2011
NO. 	28,819
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DARRICK SUBLET,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District Judge
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Darrick Sublet appeals the court’s denial of his motion to suppress.
An undercover detective entered the apartment that Defendant occupied, engaged in
a drug buy, and signaled an awaiting police team which then entered the apartment
and detained the occupants. 	Defendant contends that after the occupants of the
apartment were taken and detained outside some members of the police team reentered
the apartment without a warrant resulting in an unlawful search that followed. We
agree that the search was unlawful and reverse the denial of the motion to suppress.
I. 	BACKGROUND
{2} 	We summarize the underlying events in the light most favorable to the ruling
rendered below. See State v. Flores, 2008-NMCA-074, ¶ 2, 144 N.M. 217, 185 P.3d
1067. Detective Brett Lampiris-Tremba, working undercover and posing as a drug
buyer, arranged for a purchase of cocaine from Annette Salvato. 	The detective,
Salvato, and a confidential informant went inside an apartment to complete the
undercover drug transaction. Defendant was one of several others in the apartment
at the time of the transaction. The detective and the informant were taken to a back
bedroom where the detective gave Salvato money to purchase eleven stones of crack
cocaine. There was another person in the bedroom sitting on one of the beds with a

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pair of scissors beside him smoking what appeared to be crack cocaine. 	The man
offered the detective some crack cocaine, but he refused.
{3} 	Salvato left the bedroom, shut the door, returned a few minutes later, and gave
Detective Lampiris-Tremba what appeared to the detective to be cocaine, which the
detective put in his pocket. 	The detective then gave a prearranged arrest signal to
surveillance narcotics detectives, after which the detective heard commotion and
people yelling and “more banging on the door,” and the detective saw Defendant run
into the bedroom where the detective was located, yelling “[t]ask force, task force.”
The detective “continue[d] playing [his] role as a drug buyer” and acted like he was
one of the suspects. The detective saw Defendant run into the closet of the bedroom
and “jump[] repeatedly up and down in the closet, as if trying to push something [to]
the top.” Detective Lampiris-Tremba testified that Defendant appeared to be trying
to hide something, possibly money or drugs, in the upper right area of the closet. He
also testified that he could not see what was in Defendant’s hand, but that it was later
determined that Defendant was stuffing the buy-money that Defendant had given
Salvato into what was characterized as both a hole and a crawl space in the upper
closet area that was large enough for a person.
{4} 	Occupants of the apartment, including Detective Lampiris-Tremba, were
detained, handcuffed, and escorted outside. 	Detective Lampiris-Tremba told his

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fellow officers, including Detective Martinez, that he thought Defendant had hidden
“something in the ceiling” in the bedroom closet and that “[y]ou guys . . . need to look
up there.” Detective Martinez and the other officers went back into the apartment and
when one of the officers, who was “a pretty large guy” could not fit into the hole, two
officers helped Detective Martinez get into the hole where he found the buy-money.
By this time, Defendant and Salvato had been arrested.
{5} 	Defendant was charged with trafficking by distribution (cocaine), conspiracy
to commit trafficking by distribution (cocaine), and tampering with evidence. 	See
NMSA 1978, § 30-31-20(A)(2) (2006); NMSA 1978, § 30-28-2 (1979); NMSA 1978,
§ 30-22-5 (2003). Defendant moved to suppress the evidence obtained from the closet
as the fruit of a warrantless and therefore an unlawful search in violation of the Fourth
Amendment and Article II, Section 10 of the New Mexico Constitution. He argued
that the search was not authorized by any exception to the warrant requirement and
focused his argument on the exigent-circumstances exception, as well as the
protective-sweep exception.
{6} 	In response, the State claimed that (1) Defendant did not have standing because
he had no legitimate expectation of privacy in the residence searched; (2) the evidence
of a crime was in plain view; (3) exigent circumstances, relating to safety concerns
and the likelihood that the evidence would be destroyed, justified the warrantless

4
search; (4) the search of the closet was authorized as a protective sweep incident to
arrest; and (5) Defendant abandoned the evidence by placing it where it could not be
linked to or associated with him.
{7} 	After a hearing, the district court found that Defendant had a legitimate
expectation of privacy to challenge the search of the apartment, but the court denied
the motion to suppress. The court determined that Detective Lampiris-Tremba was
lawfully in the apartment and that his observations did not impact Defendant’s
constitutional rights. The district court further found that “[e]xigent circumstances
existed at the time of the officers’ entry into the apartment to justify both the entry and
subsequent protective sweep of the apartment. 	The protective sweep lawfully
included the closet and the hole in the upper closet area where a person could hide[.]”
The district court also found that “[t]o the extent that . . . [D]efendant had any standing
or claim of an expectation of privacy in the undercover buy-money used in the
investigation, he abandoned any such claim when he disposed of the money by
throwing it in the hole in the upper closet area of the bedroom[.]” After entering a
conditional plea to trafficking by distribution (cocaine), Defendant appealed the denial
of his motion to suppress.

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II. 	DISCUSSION
A. 	Standard of Review
{8} 	A motion to suppress evidence based on an alleged unlawful search or seizure
involves a mixed question of law and fact. Our review procedure is set out in State v.
Leyva, 2011-NMSC-009, ¶ 30, __N.M. __, 250 P.3d 861, State v. Sewell, 2009-
NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885, State v. Funderburg, 2008-NMSC-
026, ¶ 10, 144 N.M. 37, 183 P.3d 922, and State v. Vandenberg, 2003-NMSC-030, ¶¶
17-19, 134 N.M. 566, 81 P.3d 19. 	In the present case, we review de novo the
constitutional reasonableness of the actions of the officers. Vandenberg, 2003-NMSC-
030, ¶ 19. We look at the totality of circumstances. Leyva, 2011-NMSC-009, ¶¶ 30,
59; Vandenberg, 2003-NMSC-030, ¶ 19. 	We view the facts in the light most
favorable to the prevailing party. Sewell, 2009-NMSC-033, ¶ 12.
B. 	Standing: Expectation of Privacy in the Apartment
{9} 	The State argues that Defendant did not have standing to object to the search
because he did not have a reasonable expectation of privacy in the apartment. We
disagree. “Whether a defendant has standing involves two inquiries: (1) whether the
defendant had an actual, subjective expectation of privacy in the premises searched;
and (2) whether the defendant’s subjective expectation [is] one that society is prepared

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to recognize as reasonable.” State v. Zamora, 2005-NMCA-039, ¶ 10, 137 N.M. 301,
110 P.3d 517 (alteration in original) (internal quotation marks and citation omitted).
{10} 	In support of his expectation of privacy, Defendant testified that he had been
staying in the apartment for about three weeks, slept in both the living room and the
bedrooms, and had access to the kitchen and bathroom. 	Defendant testified that
Ernesto Rodriguez was allowed to stay in the apartment because Rodriguez paid rent,
and Rodriguez allowed Defendant to stay in the apartment because Defendant paid
Rodriguez $50 per week. 	Defendant further testified that he kept his clothes and
personal hygiene items in the apartment in a drawer in one of the bedrooms.
Defendant’s testimony establishes that he had a subjective expectation of privacy in
the apartment. See id. ¶ 11.
{11} 	The State contends that even if Defendant had a subjective expectation of
privacy, that expectation is not one that society is prepared to recognize as reasonable
because of the complete absence of evidence that Rodriguez was a lawful owner or
renter of the premises and that Rodriguez had any right or authority to allow
Defendant to stay in the apartment. 	The State asserts that without such evidence
Defendant could not establish standing because he could not show that he was
anything other than a trespasser. We are not persuaded.

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{12} 	Defendant’s testimony was not rebutted by the State, and the State offered no
evidence questioning Defendant’s right to stay in the apartment. 	Cf. id. ¶ 13
(recognizing that house guests have a right to challenge a search of the premises if
they were permitted “by the owner or occupant of the property to use a private part of
the residence”). The district court found that Defendant had an actual and subjective
expectation of privacy in the apartment and had standing to challenge the search. The
court thought that the issue would have been “a little closer had the State presented
. . . some evidence to establish that Ernesto Rodriguez didn’t have the lawful right to
convey the right to . . . [D]efendant to stay or to remain in the residence.”
{13} 	Given Defendant’s unrebutted testimony that he resided in the apartment based
on Rodriguez’s permission and his and Rodriguez’s payment of rent, we are
unpersuaded that the lack of any additional testimony regarding Rodriguez’s authority
to allow Defendant’s occupancy is fatal to Defendant’s claim to standing. Cf. State
v. Ryan, 2006-NMCA-044, ¶¶ 22-27, 139 N.M. 354, 132 P.3d 1040 (recognizing that
an individual’s privacy expectation in a home is usually very high, but holding that
any such expectation in the case with regard to two searches and viewing one
videotape was unreasonable given the evidence presented by the prosecution rebutting
the defendant’s claim to an expectation of privacy); State v. Hensel, 106 N.M. 8, 9-10,
738 P.2d 126, 127-28 (Ct. App. 1987) (holding that the defendant did not have

8
standing to object to the search of a house where there was no evidence he had the
owner’s permission, explicit or implicit, to reside there, and no evidence that he was,
in fact, residing in or occupying the house), rev’d in part on other grounds by State
v. Rivera, 2008-NMSC-056, 144 N.M. 836, 192 P.3d 1213.
{14} 	We note that the State heavily relies on State v. Van Dang, 2005-NMSC-033,
138 N.M. 408, 120 P.3d 830, in support of its contention that Defendant needed to
make an affirmative showing of Rodriguez’s authority. In Van Dang, our Supreme
Court held that the driver of a rented vehicle failed to demonstrate a reasonable
expectation of privacy in the vehicle when the rental contract did not list him as the
driver, and he presented no direct evidence that a lawful owner or renter of the vehicle
had given him permission to operate the vehicle. Id. ¶¶ 7, 11-12. We are unpersuaded
that the holding in Van Dang required Defendant to have introduced evidence beyond
his own testimony in this case.
{15} 	In Van Dang, the defendant testified at the suppression hearing that he had a
right to drive the rental car, but he did not testify that the person who rented the car
had given him permission to drive it. 	Id. ¶ 2. 	In reaching its holding that the
defendant lacked standing, our Supreme Court relied on the fact that the defendant
failed to present any direct evidence that the person who rented the vehicle gave him
permission to operate it. 	Id. ¶ 12. 	The Court also specifically relied on the

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defendant’s failure to even claim he was authorized by the renter to operate the
vehicle. 	Id. 	As previously discussed, in the present case, unlike in Van Dang,
Defendant indicated that he paid rent to Rodriguez, had permission to stay in the
apartment, and Rodriguez himself paid rent to reside in the apartment.
{16} 	Furthermore, in Van Dang, our Supreme Court was considering a claimed
privacy interest in an automobile. 	Id. ¶¶ 7, 11-12. 	The present case involves a
dwelling, and our appellate courts have long recognized “[t]he constitutional
distinction between vehicles and homes turns on . . . privacy expectation. A lesser
expectation of privacy attaches to a vehicle.” State v. Ryon, 2005-NMSC-005, ¶ 23,
137 N.M. 174, 108 P.3d 1032; cf. State v. Esguerra, 113 N.M. 310, 313-14, 825 P.2d
243, 246-47 (Ct. App. 1991) (recognizing that the privacy interest in one’s dwelling
place is entitled to “the highest degree of protection from unreasonable intrusion by
the government”). The State acknowledged as much in the hearing in district court.
{17} 	Defendant presented evidence of his and Rodriguez’s permission to occupy the
apartment. A person’s subjective expectation of privacy in an apartment in which the
person is paying rent for occupancy and is residing is an expectation of privacy that
society is prepared to recognize as reasonable. See Zamora, 2005-NMCA-039, ¶¶ 10-
14 (holding that the defendant had a subjective expectation of privacy in a motel room
that society is prepared to recognize as reasonable based on the defendant’s testimony

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that he had an expectation of privacy “because his ‘family’ was there and because he
was going to spend the night there”). The district court correctly ruled that Defendant
had standing to seek suppression of the buy-money evidence.
C. 	Expectation of Privacy in the Property Seized
{18} 	The State argues on appeal, as a related aspect of standing, that Defendant
cannot challenge the seizure of the buy-money and seek its suppression because he
unlawfully possessed it and therefore could have no reasonable expectation of privacy
in it. The argument appears to stem in part from the statement in Van Dang, cited by
the State in its answer brief, that “[g]enerally, one who owns, controls, or lawfully
possesses property has a legitimate expectation of privacy.” Van Dang, 2005-NMSC-
033, ¶ 7.
{19} 	In its answer brief on appeal, the State compares the buy-money in the present
case to property that a person steals, citing United States v. Caymen, 404 F.3d 1196,
1200 (9th Cir. 2005), for the proposition that “[t]he Fourth Amendment does not
protect a defendant from a warrantless search of property that he stole” because any
expectation to maintain privacy in the contents of stolen property “is not one that
society is prepared to accept as reasonable.” (Internal quotation marks and citation
omitted.) We are not persuaded. Caymen is limited to instances where a thief claims
an expectation of privacy in stolen goods. See id. (“Whatever possessory interest a

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thief may have, that interest is subordinate to the rights of the owner[.]”). We will not,
as the State wishes, tie Caymen and stolen goods into Van Dang’s general language
of “lawfully possesses property” to deny Defendant in the present case a reasonable
expectation of privacy. See State v. Tanner, 745 P.2d 757, 759 (Or. 1987) (en banc)
(“An unlawful search that uncovers effects such as stolen goods or contraband, which
also may not be legally possessed, will nevertheless result in suppression of those
effects because the unlawfulness involves an infringement of rights apart from
possessory interests (or the lack thereof) in the stolen goods or contraband seized as
a consequence of the unlawful search.”).
{20} 	The State’s reliance in oral argument on Bomboy is misplaced. In Bomboy, our
Supreme 	Court 	held 	that 	the 	defendant 	had 	no 	expectation 	of 	privacy 	in
methamphetamine he had placed in a highly visible area in a vehicle and in a police
officer’s plain view. 	State v. Bomboy, 2008-NMSC-029, ¶ 10, 144 N.M. 151, 184
P.3d 1045. 	The Court stated that the officer reaching into the car was not an
“infringement on a legitimate expectation of privacy.” 	Id. 	The Court continued,
saying, “[l]ikewise, there can be no infringement on [the d]efendant’s possessory
interest in the methamphetamine because an individual does not have a lawful right
to possess such contraband[,]” citing for support State v. Foreman, 97 N.M. 583, 642
P.2d 186 (Ct. App. 1982). Bomboy, 2008-NMSC-029, ¶ 10. In Foreman, this Court

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held that the “[d]efendant’s privacy expectations in [a] cowboy boot box were lawfully
breached by [an] inventory search.” 	97 N.M. at 585, 642 P.2d at 188 (emphasis
added). We are not willing to apply or expand either the holdings in these cases or the
language they use to the present case. 	The facts in Bomboy and Foreman are far
removed from those in the present case. In Foreman, the search was of the contents
of a container, and the search was lawful. Id. In Bomboy, it seems clear that because
a vehicle was involved, exigency permitted the officer’s breach of the vehicle plane
to seize contraband in plain view. 2008-NMSC-029, ¶ 2. Bomboy and Foreman did
not directly address the issue here, and their general statements were not made with
any particular regard to their general applicability. 	Furthermore, that Defendant’s
possession of the buy-money in the present case may not have been lawful does not
deprive him of standing to seek its suppression under the exclusionary rule. Tanner,
745 P.2d at 759. 	The search was for suspected contraband in a residence, and the
search was unlawful because the police did not have a warrant and no circumstances
excused the warrantless search. See United States v. Carnes, 309 F.3d 950, 959-60
(6th Cir. 2002) (holding that the defendant had standing to seek suppression of
audiotape recordings of conversations obtained illegally and stating that “illegally
obtained objects, such as contraband, are often suppressed” and “[t]he legality of a
person’s possession cannot be the lynchpin of their Fourth Amendment standing”).

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{21} 	In addition to mentioning Bomboy in oral argument, the State attempted to
distinguish the circumstance in the present case from others in which unlawful police
conduct precedes an otherwise lawful search for and seizure of contraband, such as
when the seized contraband is the fruit of a “poisonous,” unlawful detention or
warrantless entry into an apartment in violation of the knock-and-announce rule. The
State argued that in cases in which an entry into a house is unlawful, it is the entry that
constitutes the Fourth Amendment violation and not the later seizure of contraband
in the home. The State further argued that, in the present case, the seizure of the buy-
money was to be considered separate and apart from the search and that the seizure
in and of itself did not violate the Fourth Amendment. 	The State argued that
Defendant had no expectation of privacy in police buy-money used in an unlawful
drug transaction because society would not recognize such privacy expectation as
reasonable. Last, the State argued that Defendant could not sustain an expectation of
privacy based on assertion of a property interest in the buy-money because Defendant
could not be successful in a replevin action were he to attempt to obtain the buy-
money from the police.
{22} 	We see no valid distinction to be made between a suppression case in which
suppression of seized contraband is based on an earlier unlawful entry into a residence
and a case such as the present where the suppression of seized contraband is based on

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a simultaneous unlawful search. See Tanner, 745 P.2d at 759 (stating that “[s]earches
and seizures are separate acts calling for separate analysis” and that “[i]f the police
violated any right of [the] defendant’s, it was a right against the search that uncovered
the effects, not some right in the effects themselves”). 	The following language in
United States v. Jeffers, 342 U.S. 48, 52-54 (1951), makes the same point in regard
to the government’s contention in Jeffers regarding the seizure of contraband.
The significant act . . . is the seizure of the goods of the respondent
without a warrant. We do not believe the events are so easily isolable.
Rather they are bound together by one sole purpose—to locate and seize
the narcotics of respondent. 	The search and seizure are, therefore,
incapable of being untied. . . .
It is urgently contended by the [g]overnment that no property
rights within the meaning of the Fourth Amendment exist in the
narcotics seized here, because they are contraband goods in which
[c]ongress has declared that ‘no property rights shall exist’. . . .
. . . We are of the opinion that [c]ongress, in abrogating property rights
in such goods, merely intended to aid in their forfeiture and thereby
prevent the spread of the traffic in drugs rather than to abolish the
exclusionary rule formulated by the courts in furtherance of the high
purposes of the Fourth Amendment.
Since 	the 	evidence 	illegally 	seized 	was 	contraband[,] 	the
respondent was not entitled to have it returned to him. 	It being his
property, for purposes of the exclusionary rule, he was entitled on
motion to have it suppressed as evidence on his trial.
(Footnote omitted.) (Citations omitted.)

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{23} 	Here, the buy-money can be considered the fruit solely of a warrantless search
unexcused by an exception to the warrant requirement, no different from other
unlawful searches in which contraband such as buy-money or drugs, which a
defendant has no lawful right to possess, is ultimately found in a defendant’s
possession or control and seized. 	For the foregoing reasons, we reject the State’s
contention and argument that Defendant lacked standing to attack the seizure of the
buy-money because Defendant lacked any expectation of privacy in the money that
society would accept as reasonable.
C. 	The Earlier Warrantless Entry
{24} 	Defendant does not dispute that Detective Lampiris-Tremba lawfully entered
the apartment and had probable cause to arrest Defendant after receiving the cocaine
from Salvato in exchange for the controlled buy-money. Defendant challenges the
warrantless entry of the police team based on the detective’s pre-arranged arrest
signal, arguing that no exception to the warrant requirement was shown. We do not
address this issue because we hold in Defendant’s favor on the issue of the warrantless
search and suppression and, therefore, there exists no reason to address the issue.
D. 	The Entry to Search the Closet
{25} 	Defendant challenges as unlawful what he characterizes as a warrantless
“reentry” into the apartment by one or more officers culminating in the officers’

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warrantless search of the closet area for suspected stashed drugs or drug buy-money
after the officers had already detained the occupants and Detective Lampiris-Tremb
outside. In response to the State’s arguments made in the district court and on appeal
to support denial of his suppression motion, Defendant argues that no exigent-
circumstances or protective-sweep exception justified the reentry for the purpose of
the hole-in-the-closet search that followed. 	He argues that Detective Lampiris-
Tremba could have left before he signaled the police team and could have obtained
a warrant and, as well, the officers who reentered could have sought a warrant after
detaining the occupants and securing the premises. Defendant further argues that no
buy-money was in Detective Lampiris-Tremba’s plain view as Defendant was placing
it in the closet and that no evidence supports an intent on Defendant’s part to abandon
the property left in his own place of residence. He argues that the evidence obtained
from the search should have been suppressed under the Fourth Amendment and, if not
under the Fourth Amendment, then under Article II, Section 10 of the New Mexico
Constitution. Because Defendant raised Article II, Section 10 in the district court and
the pertinent circumstances were before the district court at the hearing on the
suppression motion, Defendant preserved his Article II, Section 10 position. 	See
Leyva, 2011-NMSC-009, ¶ 49 (stating the preservation requirements). We agree with
Defendant.

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1. 	Abandonment
{26} 	“The party seeking to prove abandonment must show this intent by clear,
unequivocal[,] and decisive evidence.” State v. Celusniak, 2004-NMCA-070, ¶ 26,
135 N.M. 728, 93 P.3d 10 (internal quotation marks and citation omitted). The State
provided no evidence of any subjective intent of Defendant to abandon any
expectation of privacy in the buy-money. Nor has the State presented authority that
persuades us that the stashing of contraband by a defendant in his rented apartment
during a police drug-bust constitutes an abandonment of possession.
{27} 	For its abandonment contention, the State relies primarily on State v. Clark, 105
N.M. 10, 727 P.2d 949 (Ct. App. 1986), in which the police approached a rented
mobile home without a search warrant to locate reported stolen goods and spoke to the
landlady-owner. 	Id. at 12, 727 P.2d at 951. 	At the time, the defendant’s rent was
unpaid, one eviction notice had been posted, the owner was set to post a second
eviction notice, the owner had heard that the defendant was incarcerated, the owner
had been told by the defendant’s sister to remove his possessions, and the owner gave
permission for the police to enter and search. Id. The circumstances in the present
case are considerably different from those in Clark. Furthermore, the circumstances
here do not fit within the “several general factual scenarios that give rise to a finding
of abandonment[.]” 	Celusniak, 2004-NMCA-070, ¶ 28 (setting out abandonment

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scenarios). There exists no disclaimer of ownership, discarding of evidence out of a
window of a moving vehicle, unsuccessful attempt to destroy the property, or having
left the property in vacated premises. See id.; Clark, 105 N.M. at 12-14, 727 P.2d at
951-53 (holding that the owner of a mobile home was able to consent to a search when
the defendant/tenant lacked a reasonable expectation of privacy in the mobile home
when he intended to abandon it as his residence).
{28} 	We hold that, in the present case, Defendant did not abandon the buy-money
that was ultimately found stashed in the hole in the closet. 	See Celusniak, 2004-
NMCA-070, ¶ 29 (holding that, even in the light most favorable to the district court’s
ruling, the facts of the case departed from this Court’s existing abandonment holdings
and were too equivocal to support a ruling of abandonment); cf. Commonwealth v.
White, 327 A.2d 40, 43 (Pa. 1974) (stating that, where the defendant’s effects were
seized pursuant to an unlawful search while the defendant was not physically present,
“there is no evidence that [the defendant] meaningfully abdicated his control,
ownership, or possessory interest in the items seized[,] [h]e did not sell them, give
them away or abandon them[;] [i]nstead, he left them in the apparent safety and
security of his temporary residence, his mother’s apartment[, and] [o]ne must,
therefore, conclude that [the defendant] had a reasonable expectation that such items
would be free from government intrusion whether or not he was physically present”).

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2. 	Plain View
{29} 	Items may be seized under the plain-view exception to the warrant requirement
when the incriminating nature of the evidence is immediately apparent. 	State v.
Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. There exists no evidence
that the buy-money was in plain view of either Detective Lampiris-Tremba or the
officers who conducted the search. The detective was the only law enforcement officer
who knew directly about something being stashed by Defendant in the closet. But he
did not see what was stashed; he testified only that Defendant “jumped repeatedly up
and down in the closet, as if trying to push something into the top of the closet[,]” that
he “thought maybe [Defendant] was trying to put money in there or more drugs, trying
to hide something[,]” that “it looked like[] he was just hiding something[,]” and that
he could not actually see what was in Defendant’s hand. That testimony is patently
insufficient for application of the plain-view exception to the warrant requirement.
See State v. Rivera, 2010-NMSC-046, ¶¶ 28-29, 148 N.M. 659, 241 P.3d 1099
(holding under Article II, Section 10 of the New Mexico Constitution that “[t]he
plain[-]view doctrine did not authorize [the officer] to open the opaque bundle
because he thought he had probable cause to believe the bundles contained
marijuana”).
3. 	Exigency and Protective Sweep

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{30} 	As to exigency, officers must have “knowledge of specific, articulable facts that
demonstrate that immediate action is necessary to prevent imminent danger to life or
serious damage to property, or to forestall the imminent escape of a suspect or
destruction of evidence.” State v. Moore, 2008-NMCA-056, ¶ 14, 144 N.M. 14, 183
P.3d 158 (internal quotation marks and citation omitted). 	A protective sweep is
allowed if incident to an arrest and the officers have a reasonable belief that the area
of the sweep harbors a person who poses a danger to the officers or others. State v.
Trudelle, 2007-NMCA-066, ¶ 21, 142 N.M. 18, 162 P.3d 173. The sweep must be
“narrowly confined to a cursory visual inspection of those places in which a person
might be hiding.” Zamora, 2005-NMCA-039, ¶ 17 (internal quotation marks and
citation omitted).
{31} 	The State fails to present evidence of exigency facing the police officers or
evidence to support their protective-sweep theory. Nor is there evidence of lack of
sufficient time to obtain a warrant. There is simply a complete absence of evidence
of circumstances to bring the search and seizure of the buy-money within the
reasonableness requirement of the Fourth Amendment and Article II, Section 10 under
these exceptions to the warrant requirement. 	According to Detective Lampiris-
Tremba, all occupants were detained outside. Nothing in the record indicates that the
officers did not have complete control of the apartment. There obviously existed time

21
to obtain a warrant under the circumstances, and the State relies on no evidence from
which one could reasonably conclude that a particular exigency or safety concern
required the warrantless search in question. 	That Detective Lampiris-Tremba felt
concerned about his safety while he was in the apartment and before he and the other
occupants were arrested and taken outside is irrelevant.
{32} 	Further, the State’s argument that the search was lawful based on the fact that
the officers who searched the hole in the closet discovered that an officer of a certain
size was able to fit in the hole is not sustainable. No concern existed, subjectively or
objectively, before the search occurred about safety, destruction of evidence, or
occupant escape in relation to the dimensions of the place in the closet where
Detective Lampiris-Tremba thought Defendant was stashing something. The officers
who conducted the search were not aware of a hole beforehand, much less the size of
any hole, before they entered the apartment to conduct the particular search of the
closet. They certainly were not informed regarding any hole that was large enough
for a person to fit in. 	They entered the apartment based solely on the detective’s
information for the purpose of searching the closet for stashed buy-money or drugs,
not for humans. That the district court found, based on what occurred at the time of
the search, that a hole existed and that the hole was large enough for an officer smaller
in size to fit in it, is irrelevant, since that fact was learned only at the point that the

22
officers reached the closet and saw the hole and one of the officers was able to climb
to some extent into the hole.
{33} 	We reject the State’s argument that, under the circumstances, and objectively,
a prudent, cautious, trained officer under the circumstances could have a safety
concern, concern for destruction of evidence, or concern about occupant escape, and
would have believed it appropriate to check all places in the apartment where suspects
could be hiding, including the hole in the closet, particularly given the district court’s
finding that the hole was large enough for a small officer to enter. 	The officers
entered the apartment solely to search the closet for any object(s) Defendant may have
“tried to hid” therein. There exists no evidence from which one can conclude that
they subjectively or objectively had any concerns related to safety, destruction of
evidence, the presence of any suspect, or the size of any hole in the closet. The State’s
attempt to bootstrap the after-the-fact occurrence of an officer being lifted up into a
hole in the closet cannot in any way salvage the unjustified warrantless search. We
hold that the State failed to prove its claimed exigency and protective-sweep
justifications for the search of the hole in the closet.
III. 	CONCLUSION
{34} 	We reverse the district court’s denial of Defendant’s motion to suppress, and
we remand this matter to the district court.

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{35} 	IT IS SO ORDERED.
_______________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
______________________________
CYNTHIA A. FRY, Judge
______________________________
TIMOTHY L. GARCIA, Judge