February 08, 2010 – State of New Mexico v. Terry Williams, No. 28,034

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	February 8, 2010
NO. 	28,034
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TERRY WILLIAMS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge
Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
ROBLES, Judge.
{1} 	Terry Williams (Defendant) challenges the district court’s denial of his motion
to suppress under the Fourth Amendment of the United States Constitution and Article
II, Section 10 of the New Mexico Constitution. 	Additionally, Defendant claims
ineffective assistance of counsel, and that his conditional plea was not entered into
knowingly, voluntarily, or intelligently. 	We conclude that the Fourth Amendment
requires suppression and, accordingly, we do not reach Defendant’s other arguments.
I. 	BACKGROUND
{2} 	At the hearing on Defendant’s motion to suppress, Officer Simbala testified
that, on September 7, 2006, at approximately 4:00 p.m. while on patrol, he conducted
a license plate check on Defendant’s vehicle as it was parked in front of a residence.
The check indicated that Defendant was the owner. The officer knew Defendant from
“three or four” previous contacts, though he did not know it was Defendant’s car at
the time he checked the license plate. 	The officer then conducted a check on
Defendant’s name and discovered he had an outstanding felony warrant for his arrest.
The officer then positioned himself nearby on another street and, after waiting
approximately twenty minutes, observed Defendant in his car making a right-hand
turn and driving through a stop sign without making a complete stop. Although the

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windows on Defendant’s car were tinted, the officer identified Defendant as the
operator of the vehicle by seeing through the untinted front windshield as Defendant
drove toward the officer and by seeing Defendant through the driver’s side window,
which was down as Defendant passed by.
{3} 	Officer Simbala testified that, after pulling Defendant over and approaching his
vehicle, he noticed that Defendant’s shoulders were moving, his hands were not up
on the steering wheel, but were down low, and he appeared to be “fumbling around.”
He testified further that he thought Defendant was hiding something or grabbing a
weapon. After making contact with Defendant and obtaining his “information,” the
officer again conducted a background check and confirmed the existence of an
outstanding felony warrant. Officer Stephenson arrived on the scene. Officer Simbala
asked Defendant to step out of the vehicle, placed him under arrest, and then
handcuffed him. At that time, Officer Simbala noticed that Defendant’s pants were
unzipped, and “half of his shirt was sort of pulled through it.” Defendant was placed
between the two police cars on the side of the street, and Officer Simbala performed
a search of Defendant. Officer Simbala testified that, although he performed a pat-
down of Defendant, which did not reveal anything he believed was a weapon, he faced
Defendant, grabbed and shook his waistband, pulled the front of his pants outward six
to eight inches, looked down, and observed and seized a plastic bag containing crack

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cocaine and heroin next to Defendant’s genitals. At the time of the search, Officer
Simbala was wearing gloves, and Officer Stephenson, a female, was standing behind
Defendant and had “no way of seeing anything.” Officer Simbala did not testify about
the traffic conditions on the street at the time, whether there were members of the
public watching the incident, or whether the public’s view was obstructed during the
search. 	Defendant testified on his own behalf and stated that the search was
conducted around 4:25 in the afternoon at a “very busy intersection” with “hundreds
and hundreds of people driving by.”
{4} 	At the end of the suppression hearing, the district court found there was
probable cause for the officer to stop Defendant and found the search incident to his
arrest was a lawful search. 	Five days following the district court’s denial of the
motion to suppress, Defendant entered a plea of no contest to trafficking by possession
with intent to distribute, reserving the right to appeal the denial of his motion to
suppress.
II. 	DISCUSSION
{5} 	On appeal, Defendant argues that (1) the search incident to his arrest was
unreasonable under the Fourth Amendment and Article II, Section 10 of the New
Mexico Constitution; (2) his trial counsel was ineffective; and (3) his plea was not
entered into knowingly or voluntarily, and (4) this Court should allow him to

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withdraw his plea and proceed to trial instead. 	We agree that the search was
unreasonable under the Fourth Amendment, and we will not discuss Defendant’s other
issues.
{6} 	An appellate court’s review of a district court’s ruling on a motion to suppress
represents a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8,
144 N.M. 371, 188 P.3d 95. This Court will indulge all reasonable inferences that
support the district court’s decision, and all contrary evidence and inferences will be
dismissed. State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-18, 134 N.M. 566, 81 P.3d
19. 	However, whether the district court correctly applied the facts to the law is
reviewed under a de novo standard. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M.
592, 52 P.3d 964.
{7} 	The Fourth Amendment of the United States Constitution, made applicable to
the State of New Mexico through the Fourteenth Amendment, guarantees individuals
the right to be secure in “their persons, houses, papers, and effects, against all
unreasonable searches and seizures.” 	Mapp v. Ohio, 367 U.S. 643, 646-47 (1961)
(internal quotation marks and citation omitted); see Bell v. Wolfish, 441 U.S. 520, 558
(1979) (“The Fourth Amendment prohibits only unreasonable searches[.]”). Likewise,
Article II, Section 10 of the New Mexico Constitution protects the right of the people
to 	be 	free 	from 	unreasonable 	searches 	and 	seizures. 	State 	v. 	Gutierrez,

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2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18. Both the New Mexico and United
States Constitutions provide overlapping protection against unreasonable searches, so
we apply the interstitial approach. 	Rowell, 2008-NMSC-041, ¶ 12. 	Under this
approach, we first consider whether the United States Constitution “makes the
challenged police procedures unlawful under the United States Constitution [and i]f
so, the fruits usually must be suppressed [and i]f not, we next consider whether the
New Mexico Constitution makes the search unlawful.” Id. (citations omitted). We
conclude that this search was unreasonable under the United States Constitution, and
we therefore do not analyze the issue under our state constitution.
{8} 	Because a warrantless search or seizure is presumed to be unreasonable, the
State has the burden of showing that the search or seizure was justified by an
exception to the warrant requirement. State v. Vasquez, 112 N.M. 363, 366, 815 P.2d
659, 662 (Ct. App. 1991). Recognized exceptions to the warrant requirement include
exigent circumstances, consent, searches incident to arrest, plain view, inventory
searches, open field, and hot pursuit. State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M.
132, 967 P.2d 807, modified by State v. Gallegos, 2007-NMSC-007, 141 N.M. 185,
152 P.3d 828. 	While the immediate case falls within the search incident to arrest
exception, and Defendant does not challenge his arrest, he does challenge the
reasonableness of the search that was conducted pursuant to his arrest.

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{9} 	Full warrantless searches of persons and their clothing, incident to any lawful
arrest, regardless of the circumstances leading up to the arrest, are not unreasonable.
United States v. Robinson, 414 U.S. 218, 235 (1973). The justification for such broad
searches incident to an arrest has been to allow officers to disarm arrestees in order
to take them into custody and to prevent the destruction or concealment of evidence.
Id. at 234; see Chimel v. Calfornia, 395 U.S. 752 (1969). However, even in searches
such as this, the Fourth Amendment protects an arrestee’s privacy interests in his
person and prohibits intrusions that are not justified under the circumstances. See Bell
v. Wolfish, 441 U.S. 520, 558-59 (1979) (concluding that the Fourth Amendment to
the United States Constitution prohibits unreasonable searches and requires a
consideration of the circumstances in relation to the need for the particular search).
{10} 	In the instant case, Defendant asserts that the search underneath his clothing
was not justified under the circumstances and was an unreasonable strip search. At
the outset, we note that the United States Supreme Court has yet to address strip
searches incident to an arrest. In Illinois v. Lafayette, the Court explicitly stated that
“[w]e were not addressing . . . and do not discuss here, the circumstances in which a
strip search of an arrestee may or may not be appropriate.” 462 U.S. 640, 646 n.2
(1983).
{11} 	The First Circuit in Blackburn v. Snow noted that there are generally three types

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of strip searches:
A “strip search,” though an umbrella term, generally refers to an
inspection of a naked individual, without any scrutiny of the subject’s
body cavities. A “visual body cavity search” extends to visual inspection
of the anal and genital areas. A “manual body cavity search” includes
some degree of touching or probing of body cavities.
771 F.2d 556, 561 n.3 (1st Cir. 1985). Strip searches, therefore, have usually referred
to the removal of the arrestee’s clothing for inspection of the body. 	Black’s Law
Dictionary defines a strip search as “[a] search of a person conducted after that
person’s clothes have been removed, the purpose usu[ally] being to find any
contraband the person might be hiding.” 	(8th ed. 2004). 	Some courts have
determined that a “reach-in” search, where an individual remains clothed and the
genitals are not exposed to onlookers, is something less than a “strip search.” 	See
United States v. Williams, 477 F.3d 974, 976-77 (8th Cir. 2007) (contrasting cases
where a suspect is forced to expose “private areas” in a public place, and holding that
a reach-in search was permissible because the police took “steps commensurate with
the circumstances to diminish the potential invasion of the suspect’s privacy,” and
concluding that a reach-in search of a clothed suspect is something less than a “full-
blown strip search”); Jenkins v. State, 978 So. 2d 116, 126-28 (Fla. 2008) (concluding
that where an officer “merely pulled the boxer shorts away from [the suspect’s] body
at the waist area and looked inside to discover the cocaine” and no body parts were

8
publicly exposed, the search was not a strip search); but see State v. Nieves, 861 A.2d
62, 70 (Md. 2004) (acknowledging that a strip search is “any search of an individual
requiring the removal or rearrangement of some or all clothing to permit the visual
inspection of the skin surfaces of the genital areas, breasts, and/or buttocks” (internal
quotation marks and citation omitted)); State v. Jenkins, 842 A.2d 1148, 1156 (Conn.
App. Ct. 2004) (stating that a “reach-in” search is a type of “strip search”).
{12} 	After a review of the case law, we conclude that this is not a strip-search, and
how a reach-in search is categorized will not affect the analysis. The focus of our
inquiry should be on whether the search was reasonable under the circumstances. The
touchstone of Fourth Amendment analysis is the reasonableness of the governmental
invasion of a citizen’s personal security. 	Terry v. Ohio, 392 U.S. 1, 12 (1968).
Although an officer of the law may have the right to search a suspect following an
arrest, the search must still be reasonable. Fontaine v. State, 762 A.2d 1027, 1032-33
(Md. Ct. Spec. App. 2000) (“While the legal arrest of a person should not destroy the
privacy of his premises, it does for at least a reasonable time and to a reasonable
extent take his own privacy out of the realm of protection from police interest in
weapons, means of escape, and evidence. However, the right of police to make an
unqualified search of an arrestee’s person incident to an arrest is nevertheless limited
in that any such search must still be reasonable.” (internal quotation marks and

9
citation 	omitted)). 	Reasonableness 	determinations 	can 	be 	elusive 	because
“reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application.” Bell, 441 U.S. at 559. In determining the reasonableness of
a search, each case requires a balancing of the government’s need to conduct the
search against the invasion of the individual’s privacy rights. Id. Reviewing courts
have considered (1) the scope of the particular intrusion, (2) the manner in which it
is conducted, (3) the justification for initiating it, and (4) the place in which it is
conducted. 	Id. 	Accordingly, we follow other courts who have adopted the Bell
factors in similar situations. 	See Jenkins, 842 A.2d at 1157; Paulino v. State, 924
A.2d 308, 316-17 (Md. 2007); Nieves, 861 A.2d at 73; Fontaine, 762 A.2d at 1033.
{13} 	The justification for initiating the search in the instant case is inexorably tied
with the scope of the intrusion as it was conducted. Accordingly, we analyze these
two factors together. New Mexico courts have previously held that an officer needs
no reason to conduct a search incident to an arrest. Rowell, 2008-NMSC-041, ¶ 25 n.1
(“Given the exigencies always inherent in taking an arrestee into custody, a search
incident to arrest is a reasonable preventative measure to eliminate any possibility of
the arrestee’s accessing weapons or evidence, without any requirement of a showing
that an actual threat exists in a particular case.”). 	However, other courts have
concluded that a justified warrantless search does not by itself give rise to the

10
automatic right for a more intrusive search such as a reach-in. See, e.g., United States
v. Bazy, 1994 WL 539300, *5 (D. Kan. 1994) (mem. and order). A majority of courts
have determined that an officer needs additional reasonable suspicion in order to
conduct the more intrusive search. See, e.g., Jenkins, 842 A.2d at 1156 (“It has been
recognized that under the [F]ourth [A]mendment to the [United States C]onstitution,
officers are permitted to strip[]search an individual when, subsequent to a lawful arrest
and patdown, they have a reasonable suspicion that the individual is carrying a
weapon or contraband.”). In People v. Jennings, the court concluded:
Strip searches of arrestees charged with misdemeanors or other minor
offenses violate the Fourth Amendment of the United States Constitution
unless there is a reasonable suspicion that the arrestee is concealing
weapons or contraband based on the crime charged, the particular
characteristics of the arrestee, or the circumstances of the arrest.
747 N.Y.S.2d 235, 236 (N.Y. App. Div. 2002); 	see Sarnicola v. County of
Westchester, 229 F. Supp. 2d 259, 270 (S.D.N.Y. 2002) (“While the Second Circuit
has not spoken directly to the appropriate test for the validity of a strip search incident
to a felony arrest, this [c]ourt recently opined that the [c]ourt of [a]ppeals would apply
the particularized reasonable suspicion test to searches of felony arrestees as well,
rather than permitting strip searches of all felony arrestees solely because they had
been arrested for a felony.”).
{14} 	In the instant case, Defendant asserts that “Officer Simbala lacked any

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reasonable suspicion that [Defendant] was concealing evidence underneath his
clothing and therefore lacked any justification” for the search. 	We do not agree.
“Reasonable suspicion must be based on specific articulable facts and the rational
inferences that may be drawn from those facts.” State v. Duran, 2005-NMSC-034,
¶ 23, 138 N.M. 414, 120 P.3d 836 (internal quotation marks omitted) (quoting State
v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038). 	“In determining
whether reasonable suspicion exists, we examine the totality of the circumstances.”
Duran, 2005-NMSC-034, ¶ 23 (internal quotation marks and citation omitted). “[I]n
determining whether the officer acted reasonably in such circumstances, due weight
must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to
the specific reasonable inferences which he is entitled to draw from the facts in light
of his experience.” 	Terry, 392 U.S. at 27. 	In the instant case, Officer Simbala
testified that he observed Defendant moving in his vehicle as the officer approached.
He testified further he suspected Defendant was getting a weapon or hiding
something, that when Defendant exited the car, his pants were open with his shirt
pulled through his zipper, and these actions led the officer to believe that Defendant
may have been hiding something on his person. Defendant, however, testified in his
own defense that his belt buckle may have been undone, but his pants were not, and
Officer Simbala stated, “[l]et’s see what you have” and lifted up his shirt and

12
unbuttoned and opened his pants. 	Under our standard of review, we defer to the
factual findings of the district court. The district court found the officer’s testimony
credible, and we are, therefore, unwilling to second-guess the district court’s finding.
In ruling, the district court was in a superior position to evaluate the credibility of the
testimony. Although there may have been conflicting factual evidence regarding the
justification and scope of the search, we will indulge all reasonable inferences that
support the district court’s factual findings and disregard all evidence that supports the
contrary. 	Accordingly, we conclude that, under the circumstances, there was
sufficient 	justification 	to 	search 	Defendant, 	and 	the 	search 	was 	tailored 	to
accommodate the reasons for the justification.
{15} 	Defendant also argues that the area searched was not within his immediate
control and that once he was placed in handcuffs the situation was neutralized and
there was no need for the search. 	However, the potential for the destruction of
evidence may be diminished when an individual is in custody, but it is not eliminated,
and an officer may assume the initiative by seizing contraband that an individual has
chosen to hide in his underwear. 	Williams, 477 F.3d at 975. 	Our cases have
previously held:
Our search incident to arrest exception is a rule of reasonableness
anchored in the specific circumstances facing an officer [and d]eciding
whether there is a reasonable threat of a suspect being able to gain access
to an area to get a weapon or evidence is the kind of decision officers are

13
trained to make.
Rowell, 2008-NMSC-041, ¶ 24; State v. Martinez, 1997-NMCA-048, ¶ 7, 123 N.M.
405, 940 P.2d 1200 (“Even a handcuffed arrestee may be foolhardy enough to try to
seize a nearby firearm.”). In the immediate case, we cannot say that the reasons and
justifications for the search, and the narrow scope of the intrusion in direct response
to 	those 	justifications, 	were 	unreasonable 	under 	the 	unusual 	circumstances.
Defendant’s own conduct gave rise to the inference that something was hidden in the
front of his pants.
{16} 	We next turn to the remaining Bell factors and consider the manner and place
in which the search of Defendant was conducted. Our scope of inquiry is a narrow
one. Specifically, we ask whether the facts as they were established in the district
court justify the search as it was conducted. Defendant argues that no measures were
taken to ensure his privacy interests, and the search was done in an unreasonable
public location. The record reveals that, following the traffic stop, the search took
place between two cars at approximately 4:25 p.m. We note that courts have taken
into consideration whether individuals had their “private areas” exposed to the public,
United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000), the location of the
search, United States v. Ashley, 37 F.3d 678, 682 (D.C. Cir. 1994), the exigent
circumstances justifying conducting the search, 	Bazy, 1994 WL 539300, *6, and

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whether any steps were taken to protect the individual’s privacy, State v. Smith, 454
S.E.2d 680, 687 (N.C. Ct. App. 1995), rev’d and dissent adopted, 464 S.E.2d 45 (N.C.
1995) (order), cert. denied, 517 U.S. 1189 (1996). We begin by noting that Officer
Simbala testified that nobody other than he and Defendant could see Defendant’s
genitals, and Defendant did not dispute this assertion. We therefore will focus our
analysis on the location of the search, exigent circumstances, and measures taken to
preserve privacy. Together, these factors attempt to balance the tension between the
need for a particular search and the invasion of personal rights. See Bell, 441 U.S. at
558.
{17} 	The State argues that steps were taken to protect Defendant’s privacy.
However, Defendant argues that Officer Simbala never testified that any measures
were taken to ensure that the search would be out of the view of passing cars. 	A
review of the record reveals that the issue of whether steps were taken to minimize
Defendant’s exposure was never brought up at the suppression hearing. 	We note,
however, that Defendant admits he was placed between two cars before the search
began and testified that Officer Stephenson was not nearby when the search took
place.
{18} 	In Lafayette, the United States Supreme Court noted that police conduct “that
would be impractical or unreasonable[]or embarrassingly intrusive[]on the street[,] can

15
more readily[]and privately[]be performed at the station. For example, the interests
supporting a search incident to arrest would hardly justify disrobing an arrestee on the
street.” 462 U.S. at 645. Extra caution has been placed on strip searches because they
can be degrading and invasive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263,
1272 (7th Cir. 1983) (en banc) (noting that “strip searches involving the visual
inspection of the anal and genital areas [are] demeaning, dehumanizing, undignified,
humiliating, 	terrifying, 	unpleasant, 	embarrassing, 	[and] 	repulsive, 	signifying
degradation and submission” 	(internal quotation marks and citation omitted));
Deserly v. Dep’t of Corrections, 2000 MT 42, ¶ 19, 298 Mont. 328, ¶ 19, 995 P.2d
972, ¶ 19 (noting that being strip searched “is an embarrassing and humiliating
experience” (internal quotation marks and citation omitted)). While a reach-in search
may be something less than a strip search, it is clear that they are not a matter of
course for searches incident to an arrest, and they often do involve a visual inspection
and/or touching of intimate areas. The court in Bazy concluded that a search of two
suspects on the side of the road between parked police cars was a public search, and
it was intrusive. 	1994 WL 539300, *8. 	The court confirmed that a public and
intrusive search is not commonplace and should be reserved for only the most unusual
cases. Id. In that case, earlier attempts by the detained suspects to conceal evidence
by kicking multiple packages of drugs out of their pants and under vehicles created

16
sufficient exigencies that justified the search. Id. at *3, 6. Additionally, the officers
testified that the search was conducted between two parked cars to protect the
suspects’ modesty, and an officer obstructed the public’s view. Id. at *7.
{19} 	We observe that other cases have taken into consideration the specific steps
officers have taken to protect a suspect’s modesty when exigent circumstances were
lacking, or where exigent circumstances were weighed against the location of the
search. 	See Williams, 477 F.3d at 976-77 (allowing a reach-in search of a suspect
where police drove him several blocks to a parking lot in a residential area); Williams,
209 F.3d at 943 (holding that a reach-in search on the side of the road at night where
the suspect was never disrobed or exposed to public view was no greater an intrusion
than would have occurred at a police station); United States v. Gordon, 2008 WL
3540007, *1 (D. Utah 2008) (mem. and order) (finding reasonable steps taken to
protect privacy where a reach-in search occurred at night on the passenger side of a
vehicle); Jenkins, 842 A.2d 1148 (walking the suspect to the side of a building and
conducting a reach-in search struck the proper balance between the need for the
search, and the manner in which it was conducted); Smith, 454 S.E.2d at 682 (holding
that the search was not unreasonable where suspect’s pants were pulled down in
between an officer and an open car door at night); Ashley, 37 F.3d at 679 (determining
that precautions were taken to ensure that the suspect was not subjected to public

17
embarrassment when a reach-in search was conducted at the side of a bus station).
{20} 	In this case, we are mindful of the fact that the search was conducted in broad
daylight at rush hour on the side of a street. We cannot say that the search was not
witnessed, that the officers took steps commensurate with the circumstances to
diminish the potential invasion of Defendant’s privacy, or that the exigencies of the
situation demanded that the search be done in the moment and fashion that it was
conducted. The district court made no findings of fact regarding the location or the
manner of the search, and the officer did not testify about the reasonableness of the
location. From the record, it is not clear to this Court whether this intrusive and public
search of Defendant was conducted in view of the public, or whether members of the
public observed the search. From the testimony, we conclude that the facts of this
case do not demonstrate the necessity for the immediate search in public under the
totality of the circumstances, and the record is devoid of any exigency that would
justify a search in this location. While the availability of less intrusive means does not
automatically transform an otherwise reasonable search into a Fourth Amendment
violation, the lack of a demonstrated exigency and the public location in broad
daylight during rush hour simply does not justify the reasonableness of this search’s
location or manner. Lafayette, 462 U.S. at 647. The State did not carry its burden to
demonstrate that this particular situation required or allowed the officers to conduct

18
this particular search in this particular manner because of exigency or location.
{21} 	In this case, it is not clear that the district court even considered the
reasonableness of the location, or the manner in which the search was conducted.
There is no evidence in the record regarding whether (1) Defendant was standing
perpendicular or parallel to traffic, (2) traffic was at a gridlock or passing by at a high
rate of speed, or (3) there were pedestrians in the vicinity. 	The only evidence
regarding details of the location of the search came from Defendant, who stated that
it was a busy intersection, and there were hundreds of people driving by. While we
will indulge in reasonable, factual inferences that support the district court’s decision,
the inferences in this case are not reasonable and tend to support the conclusion that
passers-by witnessed this search. Whether the district court correctly applied the facts
to the law is reviewed under a de novo standard. State v. Urioste, 2002-NMSC-023,
¶ 6, 132 N.M. 592, 52 P.3d 964. The United States Constitution protects individuals
from unreasonable and intrusive searches in public. Without evidence of an exigent
situation, we decline to interpret the Constitution in a manner that would allow public
intrusive searches as the norm. Government actors must have a healthy respect for a
suspect’s privacy interests. Under the circumstances, absent an affirmative showing
of the reasonableness of a search, the State has failed to carry its burden.
{22} 	As a final matter, we address the Dissent. The Dissent begins by questioning

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whether this matter was preserved. 	Although it is noted that the State never
questioned the issue of preservation in its answer brief, and it is generally not
appropriate for this Court to raise preservation sua sponte, the Dissent nevertheless
concludes that we should be hesitant to make new law on a less than “fully developed”
record. We make several observations about this.
{23} 	First, it would appear from the record that Defendant believed that this
particular search violated his rights and that his counsel disagreed. The record reveals
that Defendant filed a pro se motion for new counsel and, at the hearing on that
motion, the point of contention was that Defendant thought his counsel should file a
motion to suppress because the search was an unreasonable strip search, and his
counsel thought otherwise. 	His counsel stated that she thought the search was a
standard search incident to arrest, and there was no merit in a suppression motion.
In his own defense, Defendant stated to the court:
[My attorney] wants me to believe by me having a warrant that I don’t
have any rights and that the officer had the right to open my pants and
go through my underwear and put his hand down in my private areas
searching for contraband in front of hundreds of people. That’s not a
reasonable search and what an unreasonable search produces doesn’t
make it reasonable.
So I’m not arguing that he didn’t have a right to search me. He can
search me, but he can’t open up my clothes and go inside my private
areas for contraband and do a strip search on a city street corner. And
that’s the difference between me and [my attorney].

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{24} 	At the end of the hearing, the court allowed substitute counsel. Several months
later, Defendant’s new counsel filed a motion to suppress that was written by
Defendant acting pro se. 	The clearly worded motion expressed the substance of
Defendant’s argument—that a public strip search is unreasonable. We also note that
the State filed a response to Defendant’s pro se motion to suppress, in which the State
argued directly on point that the search was made pursuant to a lawful arrest. 	All
parties should have been aware that the heart of the motion to suppress was the extent
to which the officer conducted his search, and the extent to which such a search was
reasonable in public.
{25} 	On appeal to this Court, one of Defendant’s contentions is that he received
ineffective assistance of counsel. His claims include that his attorney failed to file a
motion on his behalf, which forced Defendant to file his own pro se motion; and that
his attorney failed to argue the substance of his motion at the suppression hearing.
Because we conclude that the issue was clearly preserved and dispositive, we have
declined to reach the ineffective assistance of counsel claim.
{26} 	To the extent that the Dissent argues that the record is deficient and this Court
should therefore not address the issue, we disagree. 	The burden is on the State to
make a sufficient record. A defendant should not be required to spot the issues, file
the motions, and direct arguments of counsel. 	The lack of any development is

21
testament to the State’s failure.
{27} 	Next, the Dissent points out that the officer had reasonable suspicion to look in
Defendant’s pants; a point with which we agree. However, the officer testified that
the search into Defendant’s pants occurred after the pat-down and that the pat-down
did not reveal anything that led the officer to believe that he had a “weapon of any
kind.” 	The 	facts 	as 	established 	do 	not 	demonstrate 	a 	showing 	of 	exigent
circumstances sufficient to justify searching Defendant in the intrusive and public
manner that occurred. 	No facts were established by the State that Defendant was
suspected of having a weapon after the pat-down, or that he had attempted to destroy
evidence. 	We therefore cannot hold that the mere suspicion of possession of
contraband, without more, is sufficient to create exigency that would allow public
searches of this nature.

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III. 	CONCLUSION
{28} 	For the reasons stated above, we reverse the district court’s denial to suppress
and remand for further proceedings consistent with this Opinion.
{29} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge
I CONCUR:
______________________________
RODERICK T. KENNEDY, Judge
CYNTHIA A. FRY, Chief Judge, dissenting

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FRY, Chief Judge (dissenting).
{30} 	I do not agree that the district court’s denial of Defendant’s suppression motion
should be reversed. I do not think that Defendant adequately preserved his argument
that the circumstances of the search were unreasonable. In addition, even if Defendant
had properly preserved his challenge, I would conclude that the search as undertaken
struck the appropriate balance between Defendant’s privacy interests and the public’s
interest in safety and the preservation of evidence.
{31} 	The transcript of the suppression hearing establishes that the litigants and the
district court did not focus on the reasonableness of the search. Instead, the testimony
and counsel’s arguments surrounded the validity of the traffic stop. The testimony
comprises forty-three pages of the transcript, and of those forty-three pages, only
seven pages contain testimony regarding the circumstances surrounding the search.
Defense counsel’s closing argument comprises almost three pages of the transcript,
yet the only argument made regarding the search consisted of the following sentences:
“The search, itself[,] was overly intrusive. . . . [T]here was no reason for him to put
his hand down [Defendant’s] pants, and fumble around his private areas looking for
drugs.” Defense counsel made no argument at all about the area where the search took
place, and he certainly did not contend that the officers failed to take reasonable steps
to protect Defendant’s privacy. Defense counsel did not cite a single case on the issue

24
of strip searches or reach-in searches.
{32} 	Generally speaking, I do not think it is appropriate for this Court to raise lack
of preservation on our own initiative because I view that to be the responsibility of the
appellee, and the State does not raise this issue in this case. However, on a record as
deficient as this one, I believe we should be reluctant to establish the constraints on
the police officer’s conduct that the majority has adopted. 	This is an issue of first
impression in New Mexico jurisprudence, and I think we should make new law only
on the basis of a fully developed record.
{33} 	That being said, even if Defendant’s offhand argument below could be deemed
adequate preservation, I would conclude that the search was reasonable under the
circumstances. 	The testimony of the only witness found to be credible, Officer
Simbala, established reasonable suspicion (acknowledged by the majority) that
Defendant may have concealed a weapon or contraband in his pants. Defendant was
placed between the police car and Defendant’s vehicle, and Officer Simbala then
pulled the waistband of Defendant’s pants out—not down. 	Defendant himself
acknowledged that only he and Officer Simbala could see Defendant’s genitals. Upon
seeing the baggy in Defendant’s underwear, Officer Simbala reached in with a gloved
hand and removed the baggy. 	Given the possibility that Defendant might have
concealed a gun in his pants, it was reasonable for Officer Simbala to find and remove

25
the concealed item immediately after he arrested Defendant and certainly before
attempting to transport Defendant in the patrol car. See Rowell, 2008-NMSC-041, ¶
13 (explaining that “searches incident to arrest have been considered reasonable
because of the practical need to prevent the arrestee from destroying evidence or
obtaining access to weapons”). In my view, this possibility constituted an exigency
supporting the search as it was conducted. Even if the officers could have walked
Defendant 	to 	a 	more 	private 	location 	before 	conducting 	the 	search, 	“[t]he
reasonableness of any particular governmental activity does not necessarily or
invariably turn on the existence of alternative less intrusive means.” Lafayette, 462
U.S. at 647 (internal quotation marks omitted). As the court noted in Bazy, “[w]hile
plainly more than a pat-down search, the intrusion here was still limited in scope.
[D]efendant . . . was not required to disrobe or to submit to a visual body cavity
search.” 1994 WL 539300, *7. Consequently, I would hold that Officer Simbala’s
search struck the appropriate balance between Defendant’s privacy interests and
concern for the public’s safety and the preservation of evidence. I would affirm.
CYNTHIA A. FRY, Chief Judge