Illegal Search and Seizure in Public Area in Albuquerque, New Mexico

 

 

WHEN CAN A ALBUQUERQUE, NEW MEXICO POLICE OFFICER STOP YOU IN A PUBLIC AREA AND SEARCH YOUR PROPERTY?

Before we get started, bear in mind that the moment that you have been stopped by an Officer for the purpose of an investigation, thereby giving you the impression that you cannot voluntarily leave at any moment – whether in your vehicle or in public – you have been effectively “seized” by the Officer, thus implicating your Fourth Amendment rights against illegal searches and seizures. Remember that an Officer always needs reasonable suspicion to first stop you when you are in public, and an additional reasonable suspicion that you are armed and dangerous to search you personally to ensure the Officer’s safety.

WHEN DO POLICE OFFICERS HAVE REASONABLE SUSPICION TO STOP YOU IN A PUBLIC AREA IN NEW MEXICO?

In State v. Gutierrez, 143 N.M. 522, 177 P.3d 1096, the Court held that the Defendant’s look of surprise, and nervous behavior did not give the Officer reasonable suspicion to stop the Defendant in a public area in New Mexico. Additionally, in State v. Eric K, 148 N.M. 469, 237 P.3d 771, the Officer ordered the Defendant to stop and take his hands out of his pockets – a seizure. The Officer attempted to show reasonable suspicion with the following facts: (1) The Officer was investigating a crime in that particular area; (2) The Officer saw the Defendant walking from the area where the alleged crime occurred; (3) The Defendant was the only person in the area; (4) The Defendant had his hands in his pockets; (5) The Defendant immediately ran into a Laundromat when the Officer ordered him to stop. The Court ultimately ruled that the Officer did not have reasonable suspicion to stop the Defendant based solely on the facts above.

So far we have seen that nervous behavior, presence in a high crime area, or running from the police – by themselves – do not give Officers’ the requisite reasonable suspicion to stop you in public.

NM CASES WHERE OFFICER HAD REASONABLE SUSPICION TO STOP THE DEFENDANT

Let’s compare these cases and scenarios to a case where the Court held that the Officer had reasonable suspicion to stop the Defendant. In State v. Harbison, 139 N.M. 59, 128 P.3d 487, the Court ruled that the Officer had reasonable suspicion to pursue and briefly detain the Defendant. In this case the Officer approached a group of individuals – KNOWING – that one of the individuals in the group had recently committed a crime by selling drugs to an undercover Officer one minute before the stop. The Defendant fled from the group as the officer approached. The Court ultimately ruled that the Officer’s definitive knowledge that a member of the group had committed a crime, coupled with the fact that an individual within the group ran from the Officer, presented the Officer with the required reasonable suspicion to stop and detain the individual.

A comparison of the two factual scenarios above demonstrates that it is not enough for an officer to observe nervous, shady, or evasive behavior to develop the required reasonable suspicion for a stop. Such behavior must be coupled with actual knowledge that you either committed a crime, are presently committing a crime, or that you individually fled from a group of people when an individual within the group is known to have committed a crime.

WHAT IS A TERRY SEARCH IN ALBUQUERQUE NEW MEXICO AND WHEN IS IT LEGAL?

Assuming that the Officer has a reasonable suspicion to stop you – based on the analysis above – the reasonable suspicion for the stop does not automatically give the Officer the right to search you and your personal belongings. Assuming that the Officer reasonably believes that you are armed and dangerous – based on erratic, unusual, or confrontational behavior – the officer may conduct a brief, protective pat-down to ensure the Officer’s safety – also known as a “Terry Search.” Nevertheless, this protective pat-down is very limited and only allows the Officer to pat-down pockets, waistbands, and other “outer-areas of clothing” that could be used to conceal weapons. Based on this fact, never keep”valuable items” in your pockets, waistband, or other areas of bulky clothing, because the Officer can argue that he was simply conducting a protective pat-down of these areas – after a valid stop – to ensure his safety. Moreover, any incriminating items found in these areas of your clothing could be used to extend the limited search beyond your outer-clothing. As such, always keep “valuable items”  in a purse, bag,  backpack, or “man purse” — it’s 2011 guys, Indiana Jones has been wearing one for nearly two decades now, and who’s more of a man than Indiana Jones?   Anyways, the Officer needs probable cause to search these items because they provide a higher expectation of privacy, and a protective pat-down is very limited and restricted to areas of your outer clothing.

As always, if you have been arrested and you believe that your Constitutional rights have been violated, pick up the phone and call Matthew Legan Sanchez at (505) Sanchez.  Have a great day.