NM declines to find plain view supported seizure of two pills in a baggie that fell out of the glove compartment while driver looking for papers

Seeing two pills in a small plastic baggie fall out of the glove compartment during a stop for expired tags when defendant was looking for his paperwork on the car was not subject to plain view. After all, pharmacy containers aren’t illegal, and that’s as consistent with innocent activity as criminal. Saying “what bag?” is not furtive. Also, statistical information not offered below couldn’t be considered on appeal [not mentioning judicial notice]. State v. Sanchez, 2015 N.M. App. LEXIS 57 (May 28, 2015):

{15} In the instant case, we conclude that the existence of two pills contained within a small bag on the floorboard of the car was insufficient to convey evidence of criminality that would be apparent to the officer based upon mere observation. As we have acknowledged, the possession of prescription pills is commonly lawful, and our laws do not prohibit the possession of prescription pills in an aftermarket container. Cf. Gay v. State, 138 So.3d 1106, 1110 (Fla. Dist. Ct. App. 2014) (stating that “the mere observation of pills in an aftermarket container is equally consistent with noncriminal activity as with criminal activity”). Rather, our laws declare it unlawful to possess dangerous drugs or controlled substances unless they are obtained pursuant to a valid prescription. NMSA 1978, §§ 26-1-16(E) (2013); 30-31-23(A) (2011). Officer McCarty believed, based on his training and experience as a paramedic, that the two pills were prescription medication, but he could not identify the pills and had no information indicating whether they were prescribed to Defendant. Additionally, the two pills the officer observed did not constitute an amount that might suggest that they were possessed for an illegal purpose. Cf. People v. Humphrey, 836 N.E.2d 210, 213-15 (Ill. App. Ct. 2005) (holding that even where the officer observed a small, clear plastic container holding several hundred white pills partially hidden under the passenger seat, the incriminating nature of the pills was not immediately apparent to the officer in a manner that satisfied the plain view doctrine to warrant the seizure of the container); see People v. Carbone, 184 A.D.2d 648, 650 (N.Y. App. Div. 1992) (stating that “the three pink and white pills could not have been seized under the plain view doctrine since it was not ‘immediately apparent’ to [law enforcement] that the pills were either evidence of criminality or contraband”).

{16} Where, as here, an officer observes an item in plain view that is often lawfully possessed and used, the context in which the item is viewed may make it reasonably apparent to the officer that the item is being possessed or used unlawfully with a sufficient level of probability to satisfy probable cause. See Ochoa, 2004-NMSC-023, ¶ 13. The circumstances of the police encounter, relevant officer training and experience, and specific facts known about the suspect and the particular item observed are factors that may properly inform an officer’s determination that there is probable cause to believe that the item in plain view is evidence of a crime. See id.

{17} Officer McCarty in the current case articulated no suspicious circumstances surrounding the encounter. The officer stopped Defendant for driving with expired registration. There is no indication from the officer’s testimony that Defendant’s driving or demeanor suggested that he might have been under the influence of a drug, nor did the officer testify that Defendant or his passenger displayed any suspiciously nervous or aggressive behavior before the officer observed the pills. The officer’s testimony did not indicate that he stopped Defendant in an area known for drug trafficking or other criminal activity, and the officer gave no indication that he had any prior knowledge of Defendant. In fact, the officer did not expressly state in his testimony that his observation of the two pills in the bag was suspicious, nor did he state why it might give rise to any suspicions. The officer’s testimony clarifies only that his training and experience led him to believe that the two pills he observed were similar and were prescription medication. We note that these items have common, noncriminal uses. State v. Haidle, 2012-NMSC-033, ¶ 30, 285 P.3d 668 (“Mere suspicion about ordinary, non-criminal activities, regardless of an officer’s qualifications and experience, does not satisfy probable cause.”) (internal quotation marks and citation omitted)). The officer indicated that he grabbed the bag of pills because Defendant was trying to hide it.

. . .

{22} Consistent with the sentiment expressed by the Massachusetts Supreme Courtand the observation from Professor LaFave, we are of the opinion that Defendant’s attempt to conceal the bag on the floorboard containing pills that may or may not have been lawfully possessed, without any testimony from the officer indicating suspicious circumstances or specific knowledge about Defendant or the item seized, is not an act that supplied Officer McCarty with a suspicion that rose to the level of probable cause.

{23} We note that our decision is also informed by cases that examine the nature or purpose of the suspect’s furtive movement and consider the item the suspect attempted to conceal in making a probable cause determination. …