legal memo deiter new
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Law
Date
Jan 9, 2024
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docx
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Uploaded by UltraLightningDugong8108
OFFICE LEGAL MEMORANDUM
To: Supervisory Attorney
From:
Date: 12/12/2023
Re: New Mexico v. Deiter Case
Statement of Assignment
You have asked me to prepare a legal memorandum addressing the legality of the warrantless
search done upon our client Ms. Deiter by the Atrisco Police.
Issue
Under Article 2, Section 10 of the New Mexico Constitution, is it lawful for police to conduct a
warrantless search of a freezer in a suspect’s home as part of an investigation following a
disturbance call?
Brief Answer
No, the search was unlawful. The police officers only had the right to conduct a protective sweep
which only included a general inspection of the place during their initial call to the Deiter
residence. To look into the freezer requires a proper warrant because it involves a more thorough
search.
Statement of Facts
The Astrico Police Department received a domestic disturbance call at 505 Sandia Street. Two
officers were dispatched to the house and heard several loud voices along with the sound of glass
breaking once they arrived at the residence. Officers knocked and announced their presence
when a woman (Ms. Deiter) opened the door to which they asked if they could come in followed
by another question of if there was a problem at the house. The woman stood aside to allow the
officers inside and upon their arrival, they saw broken glass on the living room floor alongside
the odor of burnt marijuana. They also saw a pipe used for smoking marijuana but did not locate
any marijuana at the present. Mr. Deiter was sitting on the sofa when the woman volunteered that
Mr. Deiter threw a class at her to which the officers arrested him for domestic assault. This
enraged Ms. Deiter who then spat on one of the officers. She was arrested for the assault on a
police officer. Officers then conducted a protective sweep to ensure no one else was inside the
house. Upon looking in the kitchen for additional persons, Officer Smith had been taught that
people often kept marijuana in the freezer, opened the freezer and found four bags weighing
about one ounce each. Based on the seizure of the marijuana, the Deiters were also charged with
possession of a controlled substance
Analysis
According to Article 2, Section 2 of the New Mexico Constitution, “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 statement showing of
probable cause, supported by oath or affirmation.” With this, it is clear that the arresting officers
did not have a warrant to search the premises outside a protective sweep.
However, there is an exception to the Article 2, Section 10 constitutional requirement which was
established in
New Mexico v. Zamora
, 2005-NMCA-039 137 N.M. 301, 110 P.3d 517. The court
recognizes that officers have the right to conduct a protective sweep incident to a suspect’s arrest.
The purpose of said sweep is for the protection and safety of the officers and others which gives
them the opportunity to check for any additional threats at the scene and can only search areas
that are large enough to harbor an individual. A protective sweep is a quick and limited search of
the premises.
In this case, the search of Ms. Deiter’s freezer conducted by Officer Smith does not fall into this
definition. Even in the exception in
New Mexico v. Zamora
, he did not have the right to search in
closed containers and enclosed areas for the freezer was not big enough to conceal an individual.
Conclusion
The search of Ms. Deiter’s freezer was unlawful and any incriminating evidence found during
the warrantless search should be suppressed. Officer Smith violated the Deiter’s protection under
the New Mexico Constitution, Article 2, Section 10. Though there are certain exceptions to the
requirement, New Mexico v. Zamora court upheld that officers are only entitled to a protective
sweep that allows the search of areas that are big enough for individuals to hide in. This cannot
justify what Officer Smith did upon the Deiter’s residence. Therefore, it is unlawful for police
officers to conduct a warrantless search following a suspect’s arrest that doesn’t fall under
protective sweep protocall.
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