Law Office of<br />
Erlinda Ocampo Johnson

Law Office of
Erlinda Ocampo Johnson 

Personal Injury Law
Criminal Defense Law

PRACTICE AREAS: Personal Injury, Wrongful Death, and Criminal Defense

About the 4th Amendment: Search and Seizure rights in New Mexico

Your rights are protected by the U.S. and New Mexico State Constitutions

Several of the Amendments to the United States (U.S.) Constitution protect us from governmental abuse of power, namely the 4th, 5th, 6th, 8th and 14th amendments. The 4th Amendment to the U.S. Constitution protects your rights when it comes to search of your personal property and seizure of your belongings. The amendment states:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.

In the New Mexico State Constitution, Article II, Section 10, this protection is written another way:

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.

Your search and seizure rights are different in New Mexico

Under both federal and state law, you cannot be searched and your property cannot be taken without probable cause to believe that a crime has been committed. In most cases, a search warrant is needed to perform search and seizure too, although there are exceptions. However, the re-wording of the 4th Amendment in our state constitution makes New Mexico unique.

Why do differences in wording matter? In our legal system, cases resolved in the past set up what is known as a legal precedent, or a case that other judges and lawyers use as a guide for making their own decisions on cases.

In New Mexico, those slight changes led to a definitive ruling in a case titled State v. Gomez. Because of this case and other subsequent cases based on it, “application of the New Mexico Constitution’s protections regarding search and seizure can lead to better outcomes for criminal defendants than the application of the Fourth Amendment protections enshrined in the U.S. Constitution.”1

When is a warrant needed?

In most cases, a warrant is needed to conduct a search of your home, person or property. However, in certain instances a warrant is not needed if there is probable cause that a crime has been committed and:

  1. Emergency circumstances exist.
  2. The search will protect an officer of the law or another person from immediate harm.
  3. The evidence of a crime is in plain view of an officer of the law.
  4. An officer may make an inventory of things collected during an arrest as long as regulations are followed.
  5. The person grants voluntary consent to search.

Get help from an experienced litigator in New Mexico law

In short, because of our state law, New Mexico provides greater 4th Amendment protections to citizens than many other states. In some cases, this means that improperly seized evidence could be inadmissible even if a search warrant was issued. However, the law is complicated and it can be interpreted in many ways.

If you have been accused and arrested of a crime that involved a search of your property and/or seizure of your belongings, you need a knowledgeable Criminal Defense Attorney to discover whether or not your rights have been violated in New Mexico.

Contact us today

Erlinda Ocampo Johnson is experienced in dealing with complex cases that involve search and seizure in New Mexico. Contact the law firm of Erlinda Ocampo Johnson, LLC, to gain a thorough, thoughtful and fearless criminal defense attorney. Ms. Johnson will dedicate herself to your case, fight for you, and build an aggressive, effective defense on your behalf.


1 Curtis Hayes, The New Federalism: New Mexico’s Experience with Independent State Constitutional Analysis of Fourth Amendment Rights, 43 N.M. L. Rev. 441 (2013). Available at:

Call 505.792.4048 today for a consultation with an experienced criminal defense lawyer.
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