New Mexico Supreme Court to Review Protective Sweep Opinion
The New Mexico Supreme Court has granted certiorari in State v. Zamora, 2005 NMCA 39 (February 11, 2005); cert. granted No. 29,1117. In Zamora, the New Mexico Court of Appeals suppressed cocaine found in a partially opened medicine cabinet when Albuquerque police were conducting a protective sweep of a motel room. The Court of Appeals ordered the matter remanded for a new trial.
The Zamora decision involved a question of whether the defendant had standing to challenge the search as a guest in the motel room rented by his mother and whether the officer properly seized the cocaine from the cabinet when he saw simply a plastic baggie.
The district court and the court of appeals found that the officers were properly in the motel room pursuant to the consent of the defendant. The officers made an arrest of defendant based upon cocaine seen on a table in the room and defendant's identification of the substance as cocaine. Once the officers handcuffed the defendant, one officer conducted a protective sweep of the motel room to determine if anyone else was present.
The officer saw a plastic baggie in a partially opened medicine cabinet. The officer opened the medicine cabinet further and seized the baggie, which contained cocaine. The Court of Appeals rejected the state's argument that the baggie was legally seized pursuant to the plain view doctrine.
The certiorari seems unusual. The Zamora opinion reads as a dry, common sense application of court precedent to an overbroad warrantless search. Stay tuned.
