Tuesday, November 09, 2010

New Mexico has a state constitution

In State v. Rivera, No. 31,656 (N.M. Oct. 19, 2010), the New Mexico Supreme Court recently considered the application of the private-search doctrine under the federal and state consitutuions:
In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles. The private citizen did not open any of the opaque bundles. When a law enforcement officer who was made aware of the private search obtained possession of the resealed container, he accompanied a second private citizen who re-opened the sealed container. The officer then cut open an opaque bundle to confirm his suspicion that it contained marijuana. The question is whether the officer violated either the Fourth Amendment of the United States
Constitution or Article II, Section 10 of the New Mexico Constitution when he cut open the opaque bundles without a search warrant.

We have consistently interpreted the search and seizure provision of the New Mexico Constitution, however, as imposing a greater requirement for a warrant than its federal counterpart. Accordingly, under the New Mexico Constitution an officer must obtain a valid warrant from a neutral and detached judge to expand the private search absent an exception to the warrant requirement. N.M. Const. art. II § 10. Our approach encourages private citizens to assist police officers in the investigation of crimes, while faithfully safeguarding existing privacy interests as required by our

Because the officer in this case opened opaque bundles without a valid search warrant or an exception to the warrant requirement, the district court correctly suppressed the evidence.

The New Mexico Constitution, Article 2, Section 10 reads:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

The Kansas Constitution, Bill of Rights, Section 15 reads:
The right of the people to be secure in their persons and property against unreasonable searches and seizures shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.

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