NM: Probation search valid for being in place where drug SW was executed

A probationer being at a place where a search warrant was being executed for drug sales was sufficient cause for a probation search. State v. Brusuelas, 2009 NMCA 111, 147 N.M. 233, 219 P.3d 1 (2009), Certiorari Denied, No. 31,701, September 2, 2009, Released for Publication October 20, 2009, cert. denied 224 P.3d 648 (N.M., 2009)*:

[*15] Applying the above principles to the circumstances of Defendant’s case, we conclude that Paragraph 9 was consistent with our prior cases and constitutionally permissible. First, as discussed below, the presence of Defendant at a home being searched for evidence of drug sales met the standard of reasonable suspicion. Knights, 534 U.S. at 121; Baca, 2004 NMCA 49, P 41, 135 N.M. 490, 90 P.3d 509. Second, Defendant agreed to the condition of probation in Paragraph 9 that required her to submit to warrantless searches by any law enforcement officer. See Gallagher, 100 N.M. at 699, 675 P.2d at 431 (rejecting the defendant’s argument that a choice between a consent-to-search provision and going to prison was not really a choice and thus consent was not voluntary). Third, Paragraph 9 appears to be reasonably related to Defendant’s rehabilitation. The record indicates that the offense for which Defendant was on probation was child abuse (negligently caused, no great bodily harm). The warrantless search condition appears to indirectly further the goal of preventing another incident of child abuse. We observe that the judgment and sentence in which Paragraph 9 appears contains indications that alcohol was involved, as another condition of probation required Defendant to complete a two-year inpatient program and to avoid alcohol. Requiring Defendant to submit to searches would tend to advance her rehabilitation by ensuring that she did not possess alcohol. In addition, though the probationary strictures emphasize alcohol use, they are not limited to alcohol. The requirement under Paragraph 5 that Defendant “submit to substance abuse screening and any recommendations from that screening” are broader and could cover methamphetamine or other drug use. Fourth, because the agents were aware that Defendant was on probation at the time of the searches, in the circumstances–the agents were executing a search warrant at an alleged drug home–the search was reasonably related to “[t]he general purposes of probation, under federal or New Mexico law, [of] rehabilitation and deterrence for community safety.” Baca, 2004 NMCA 49, P 36, 135 N.M. 490, 90 P.3d 509. Fifth, there is no indication that the agents knew beforehand that Defendant would be present at the home, and thus the search cannot be considered “a subterfuge for criminal investigation[].” Gardner, 95 N.M. at 175 (internal quotation marks and citation omitted). The presence of these factors distinguishes the circumstances of this search from those where reasonableness is questionable or absent, such as one where a police officer stops a probationer on the street with no indication that anything criminal is afoot. We conclude that Paragraph 9 was properly applied.

Defendant waived any search claim by his guilty plea. Bailey v. State, 19 So. 3d 828 (Miss. App. 2009).*