seized, nor without a written showing probable cause, supported by oath or affirmation” In light of the provisions provided in Article 2, section 10 of the New Mexico Constitution, in our case probable cause without a warrant without written showing the probable cause, and describing the place to be searched, would consider the search in our clients case unlawful. Conclusion 4
In this case, the opening of the freezer is not considered protocol as described in the definition of “protective sweep” The contents of the freezer were not in plain view, which could not have established probable cause, and if there was probable cause according to the New Mexico Constitution Article 2, Section 10, the search conducted would be considered unlawful , because there was no warrant, specifically a warrant that described the freezer as a place to be searched. The officers went above the scope of protective sweep which is defined as an unlawful search. Recommendations My recommendation is that the search of the freezer and the seizure of the marijuana found in the freezer were unlawful and are not covered under the scope of the definition of protective sweep. The Deiter’s should not been charged with possession of a controlled substance because the marijuana was located without a search warrant which should have specifically covered the freezer 5
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