{ "id": 4240243, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRADLEY MOSLEY, Defendant-Appellant", "name_abbreviation": "State v. Mosley", "decision_date": "2014-07-01", "docket_number": "Docket No. 32,653", "first_page": "667", "last_page": "675", "citations": [ { "type": "official", "cite": "2014-NMCA-094" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2008-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003790 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8, 14, 16" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0217-01" ] }, { "cite": "133 S. Ct. 1409", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12696458 ], "year": 2013, "pin_cites": [ { "page": "1415-16" } ], "opinion_index": 0, "case_paths": [ "/us/569/0001-01" ] }, { "cite": "2010-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248247 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 28-29" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0414-01" ] }, { "cite": "2008-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002479 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0458-01" ] }, { "cite": "2007-NMCA-006", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670387 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0864-01" ] }, { "cite": "285 P.3d 668", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189330 ], "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0491-01" ] }, { "cite": "498 F.2d 30", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 169419 ], "year": 1974, "pin_cites": [ { "page": "33", "parenthetical": "holding that the officers' expressed purpose of questioning the occupants of a residence \"could not extend to [an officer's] movement past [the occupants] into other rooms\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/498/0030-01" ] }, { "cite": "454 F.3d 249", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5564737 ], "year": 2006, "pin_cites": [ { "page": "269", "parenthetical": "\"The exclusionary rule expresses, inherently and always, a standard of reasonableness that evolves along with . . . social norms.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/454/0249-01" ] }, { "cite": "2006-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543188 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0354-01" ] }, { "cite": "143 F.3d 1363", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 268789 ], "year": 1998, "pin_cites": [ { "page": "1367-68" } ], "opinion_index": 0, "case_paths": [ "/f3d/143/1363-01" ] }, { "cite": "1999-NMCA-097", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257624 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 13" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0695-01" ] }, { "cite": "2004-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1427977 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0781-01" ] }, { "cite": "2011-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250309 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0451-01" ] }, { "cite": "2001-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183086 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 35" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0022-01" ] }, { "cite": "2009-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0719-01" ] }, { "cite": "2001-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352473 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 32-33" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0179-01" ] }, { "cite": "2010-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247957 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8-13" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0811-01" ] }, { "cite": "98 N.M. 510", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582564 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0510-01" ] }, { "cite": "1982-NMCA-116", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2008-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784464 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 8" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0274-01" ] } ], "analysis": { "cardinality": 1050, "char_count": 28991, "ocr_confidence": 0.765, "pagerank": { "raw": 5.051679029831156e-08, "percentile": 0.31682387660438893 }, "sha256": "6e319e682828ed69159e468ac8d78443e9396c1ce90ea92b2d5c72634881c96a", "simhash": "1:b345f526a6832e6f", "word_count": 4591 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JONATHAN B. SUTIN, Judge", "WE CONCUR:", "TIMOTHY L. GARCIA, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRADLEY MOSLEY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} Defendant Bradley Mosley pleaded no contest to trafficking by possession with intent to distribute cocaine. The incriminating evidence was discovered in Defendant\u2019s apartment by police who had gained entry by means of a \u201cknock-and-talk.\u201d Defendant\u2019s trial counsel moved to suppress the evidence on the grounds that police entered Defendant\u2019s apartment without consent or a warrant and that they lacked probable cause to conduct a knock-and-talk. The district court denied the motion, and in his plea agreement, Defendant reserved the right, to appeal the suppression ruling.\n{2} Different from what he argued in the district court, Defendant argues on appeal that the district court should have suppressed the evidence on the ground that the police exceeded the scope of his consent. As an alternative to his suppression argument, Defendant raises an ineffective assistance of counsel claim related to his counsel\u2019s failure to move for suppression on the ground that the police exceeded the scope of his consent to the entry by traversing the hallway and the bedroom. We conclude that Defendant\u2019s argument regarding the scope of consent was not preserved. We further conclude that Defendant has made a prima facie showing of ineffective assistance of counsel. Accordingly, we remand this matter to the district court for a hearing on Defendant\u2019s claim of ineffective assistance of counsel and any further proceedings consistent with the district court\u2019s determination on that claim.\nBACKGROUND\n{3} The following factual background is based on testimony presented at the hearing on Defendant\u2019s motion to suppress. Sergeant Farrah Simmons of the Albuquerque Police Department, a training officer, and her trainee, Officer Joslyn Archuleta, responded to a reported disturbance at Defendant\u2019s apartment. Because Officer Archuleta was relatively inexperienced, Sergeant Simmons requested a third officer act as her backup and was joined by Officer Brian Price. The disturbance had been reported by Defendant\u2019s neighbor, who wished to remain anonymous, but did speak with Sergeant Simmons about the circumstances that led to the report. According to Sergeant Simmons, the neighbor said that Defendant\u2019s apartment had \u201ca lot of foot traffic ... all night long\u201d and that people had mistaken her apartment for Defendant\u2019s and knocked on her door asking to buy narcotics. The neighbor also reportedly told Sergeant Simmons that she believed that she had observed prostitution and drug use at Defendant\u2019s apartment, among other things.\n{4} Sergeant Simmons determined that she did not have sufficient information to obtain a warrant to search Defendant\u2019s apartment, so she conducted a knock-and-talk. A knock- and-talk, according to Sergeant Simmons\u2019s description, involves knocking on the door to ask to speak with the person who answers \u201cabout any concerns that you might have.\u201d One of the officers knocked on Defendant\u2019s door, the door was opened within seconds, and Sergeant Simmons \u201ctold [Defendant] that [she] had some concerns that [she] would like to speak with him about and asked him if [she and Officers Archuleta and Price] could come in.\u201d According to Sergeant Simmons, Defendant opened the door and allowed her and the other officers to go into the apartment and speak with him. Once the officers were inside the apartment, Sergeant Simmons began her conversation with Defendant.\n{5} Sergeant Simmons observed a gentleman sitting on the couch and asked if anyone else was inside the apartment. At the suppression hearing, Sergeant Simmons explained that she asked this question \u201cfor the purpose of officer safety\u201d and to ensure that, while she was conversing with Defendant, \u201cnobody was going to jump out and surprise us or injure us or harm us in anyway.\u201d Almost immediately after Defendant said that no one else was in the apartment, Sergeant Simmons testified, \u201cthe bathroom door [flew] open and ... a very big guy\u201d came out. Sergeant Simmons asked again whether anyone else was in the apartment, to which the person who had just left the bathroom said, \u201c \u2018My girlfriend is here.... She\u2019s in the back bedroom, but she\u2019s asleep.\u2019 \u201d\n{6} Upon learning of the girlfriend\u2019s presence in the bedroom, Sergeant Simmons stated that she \u201cwould go wake\u201d the sleeping woman, noting that she \u201cdidn\u2019t want to send Officer Price [to do so] because he\u2019s a male[.]\u201d As Sergeant Simmons continued her narrative in this vein, defense counsel objected, stating \u201cNone of it is relevant .... We are talking about a knock-and-talk with a contact at the front door. We\u2019re beyond anything at this point that is relevant.\u201d The district court permitted the testimony, and Sergeant Simmons testified that she \u201cwalked back to clear the rest of the apartment, make sure there [were] no other people, and [to] contact the female that was asleep on the bed.\u201d Sergeant Simmons testified that she woke the sleeping woman, asked her to get dressed, helped her find something to wear, then walked into the living room where the other occupants of the apartment, were waiting.\n{7} As she walked down the hallway toward the bedroom, Sergeant Simmons passed the \u201cgalley-style kitchen\u201d in which she observed \u201ca razorblade that had a white crusty substance on it\u201d and \u201ca blue plastic scale . . . that also had a white powdery residue on it.\u201d Based on her training and experience, Sergeant Simmons believed the substance to be cocaine, and a test of the substance confirmed that it was.\n{8} After conducting a warrants search on each of the occupants of the apartment and confirming that none of the non-residents \u201cwantfed] to claim\u201d the cocaine, Sergeant Simmons let them leave, and then arrested Defendant for possession of cocaine. Defendant asked for his jacket, and as Sergeant Simmons checked the jacket for \u201cweapons or anything[,]\u201d she found a \u201csack of rock cocaine.\u201d A grand jury indicted Defendant on charges of trafficking by possession with intent to distribute cocaine and possession of drug paraphernalia.\n{9} Defendant did not testify at the hearing on his motion to suppress. His sole witness at the hearing, Jeffrey Manning, was in Defendant\u2019s apartment on the day in question. Mr. Manning testified that when the officers knocked on the door and Sergeant Simmons asked if she could go into the apartment, Defendant said, \u201cNo[,]\u201d followed by the officer\u2019s question, why, to which Defendant responded, \u201cThis is [my] space. I don\u2019t want you to come in unless you have a search warrant^]\u201d He testified further that the officers \u201cjust came in\u201d after Defendant had told them no. According to Mr. Manning, the officers did not ask to discuss the neighbor\u2019s complaint, but rather, Sergeant Simmons asked to speak with Defendant about a cab driver who \u201chad been shot or killed\u201d because someone had called the cab driver from Defendant\u2019s address.\n{10} In closing argument, defense counsel argued that the officers lacked probable cause to perform the knock-and-talk and that they entered Defendant\u2019s apartment despite Defendant having said \u201cNo\u201d to their requested entry. It is clear from the transcript of the hearing that the district court and the prosecutor understood defense counsel\u2019s argument to be limited to the issues of probable cause to conduct a knock-and-talk and whether Defendant consented to the officers\u2019 initial entry into his apartment. In its oral ruling from the bench, the district court denied the motion to suppress, providing the following rationale.\nI am not comfortable with the knock- and-talk. I am concerned about it. However, at least based on the testimony of the [sjergeant, and I did find her to be more credible than the [djefense witness, she was allowed in and she saw the paraphernalia, et cetera, in plain view. From that perspective, I believe the arrest was lawful and the evidence will not be suppressed.\n{11} Different from what he argued in the district court, Defendant argues on appeal that his consent to the knock-and-talk permitted the police to enter his living room but not other areas of the apartment, including the hallway from where Sergeant Simmons observed the incriminating evidence. Defendant argues that the district court\u2019s suppression ruling should be reversed on this basis. Acknowledging, however, the possibility that the scope-of-consent argument was not preserved for our review, Defendant argues in the alternative that his counsel\u2019s failure to move for suppression on the basis that Sergeant Simmons exceeded the scope of consent constituted ineffective assistance of counsel.\n{12} We hold that Defendant failed to preserve his argument regarding the scope of his consent to search the apartment. We also hold that the record in this case contains sufficient facts to establish a prima facie case that Defendant\u2019s counsel was ineffective for failing to move to suppress the evidence on that basis. Accordingly, we remand this matter to the district court for a hearing on Defendant\u2019s ineffective assistance of counsel claim and any further proceedings consistent with the district court\u2019s determination on that issue.\nDISCUSSION\n1. Preservation\n{13} \u201cIn order to preserve an issue for appeal, it must appear that a ruling or decision by the district court was fairly invoked\u201d in a manner that specifically apprised the district court of the issue and resulted in an intelligent ruling thereon. State v. Lopez, 2008-NMCA-002, \u00b6 8, 143 N.M. 274, 175 P.3d 942 (internal quotation marks and citation omitted). Among other things, the preservation rule ensures that the opposing party has \u201ca fair opportunity to show why the court should rule in its favor\u201d and it \u201ccreates a record from which this Court may make informed decisions.\u201d Id. (internal quotation marks and citation omitted). This Court \u201cwill not reverse the trial court on grounds [that] the trial court was neither asked to consider nor had the opportunity to review.\u201d State v. Aguilar, 1982-NMCA-116, \u00b6 9, 98 N.M. 510, 650 P.2d 32.\n{14} The State and Defendant agree that the issue of the scope of Defendant\u2019s consent was not raised in the district court. Furthermore, the State contends that it \u201cdid not have an opportunity to develop a record specific to [Defendant\u2019s] claim\u201d that the officers exceeded the scope of Defendant\u2019s consent. Nevertheless, the State argues that the record is sufficient for this Court to review Defendant\u2019s claim on the basis that \u201cthe State is not prejudiced\u201d by the fact that it was not given an opportunity to refute this claim in the district court.\n{15} Specifically, the State argues that because the record includes testimony \u201cregarding the officers\u2019 request to enter the apartment, and the reason for their request, as well as Defendant\u2019s response[,]\u201d this Court may determine the scope of Defendant\u2019s consent and whether Sergeant Simmons acted within the scope of that consent. At the same time, however, the State attempts to rely, to its own advantage, on the absence of factual development in the record in regard to the scope of Defendant\u2019s consent. To that end, the State argues that testimony at the suppression hearing did not \u201cclarify the scope of Defendant\u2019s consent\u201d and that Defendant did not object when Sergeant Simmons \u201cannounced her intention of going into the bedroom to retrieve the sleeping -woman.\u201d Based on the absence of testimony in regard to the scope of Defendant\u2019s consent or whether Defendant objected to Sergeant Simmons\u2019s expanded entry into the apartment, the State argues that Defendant \u201cacquiesce[d] in the officer\u2019s actions,\u201d thus establishing that those actions \u201cwere within the scope of Defendant\u2019s consent.\u201d We are not persuaded by the State\u2019s self-serving attempt to benefit from Defendant\u2019s failure to preserve the scope-of-consent argument by encouraging this Court to consider the matter while simultaneously assuming and relying upon facts that are not in the record.\n{16} Under some circumstances, a narrow suppression argument in the district court will not preclude review of a more broad argument on appeal. See, e.g., State v. Figueroa, 2010-NMCA-048, \u00b6\u00b6 8-13, 148 N.M. 811, 242 P.3d 378 (considering the defendant\u2019s suppression argument notwithstanding the fact that the suppression argument made in the district court was more narrow than that made on appeal because the defendant\u2019s arguments were such that the district court and the prosecution had a fair opportunity to address the issue). Under the circumstances here, however, not only did the district court not have an opportunity to rule upon the issue whether Sergeant Simmons exceeded the scope of Defendant\u2019s consent, the absence of evidence from the record in regard to what, if anything, Defendant said or did in response to Sergeant Simmons\u2019s announcement that she would go wake the sleeping female in the bedroom precludes effective review of the State\u2019s argument. See Lopez, 2008-NMCA-002, \u00b6 8 (explaining that preservation requires a showing that a ruling or decision by the district court was fairly invoked and that preservation serves to create \u201ca record from which this Court may make informed decisions\u201d (internal quotation marks and citation omitted)).\n{17} In sum, we conclude that the issue of the scope of Defendant\u2019s consent was not preserved for our review, and we do not consider it on appeal. Because Defendant does not argue that the district court erred in determining that he consented to the officers\u2019 initial entry, we do not consider the propriety of the district court\u2019s denial of his motion to suppress in that regard.\nII. Ineffective Assistance of Counsel\n{18} The Sixth Amendment to the United States Constitution guarantees the right to the effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, \u00b6 16, 130 N.M. 179, 21 P.3d 1032. Defendant argues that his trial counsel\u2019s failure to move to suppress the evidence on the ground that Sergeant Simmons exceeded the scope ofhis consent by entering the hallway and the bedroom rendered his counsel\u2019s assistance ineffective. He argues that his plea should be vacated and the matter remanded for an evidentiary hearing on his ineffective assistance of counsel claim. We review Defendant\u2019s ineffective assistance of counsel claim de novo. State v. Dylan J., 2009-NMCA-027, \u00b6 33, 145 N.M. 719, 204 P.3d 44.\n{19} Remand for an evidentiary hearing on a claim of ineffective assistance of counsel \u201cis appropriate only when the record on appeal establishes a prima facie case of ineffective assistance of counsel.\u201d State v. Herrera, 2001-NMCA-073, \u00b6 35, 131 N.M. 22, 33 P.3d 22. A prima facie case is made by showing (1) \u201cthat defense counsel\u2019s performance fell below the standard of a reasonably competent attorney[,]\u201d and (2) that \u201cdue to the deficient performance, the defense was prejudiced.\u201d Patterson, 2001-NMSC-013, \u00b6 17 (internal quotation marks and citation omitted). The two prongs of this test are known as \u201cthe reasonableness prong and the prejudice prong.\u201d Id.\nA. The Reasonableness Prong\n{20} Where, as here, the ineffective assistance of counsel claim is premised on counsel\u2019s failure to move to suppress evidence, Defendant \u201cmust establish that the facts support the motion to suppress and that a reasonably competent attorney could not have decided that such a motion was unwarranted.\u201d Id. \u00b6 19.\n{21} Defendant argues that in light of Sergeant Simmons\u2019s testimony that she asked if she and the other officers could go into Defendant\u2019s apartment to discuss the neighbor\u2019s complaints, social norms dictated that she ask permission before proceeding to the bedroom. In other words, Defendant argues that his consent to the officers\u2019 entry into his apartment permitted the officers to enter the living room, which was adjacent to the front door, but \u201c[i]t was not an invitation for the officers to walk down the hall and go into his bedroom.\u201d Defendant argues that when Sergeant Simmons, in fact, walked down the hall, she exceeded the scope of Defendant\u2019s consent; therefore, his counsel should have moved to suppress the evidence on the basis that Sergeant Simmons was not lawfully permitted to be in the hallway from where she saw the evidence in plain view.\n{22} Defendant\u2019s argument implicates two exceptions to the warrant requirement, plain view and consent. See State v. Bond, 2011-NMCA-036, \u00b6 11, 150 N.M. 451, 261 P.3d 599 (recognizing that warrantless searches and seizures are unconstitutional except in cases involving recognized exceptions including plain view and consent. \u201cUnder the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime.\u201d State v. Ochoa, 2004-NMSC-023, \u00b6 9, 135 N.M. 781, 93 P.3d 1286. In this case, the incriminating nature of the evidence and whether Sergeant Simmons had probable cause to believe that it was evidence of a crime are not at issue. The relevant question under the plain view doctrine is whether Sergeant Simmons was lawfully in the hallway when she saw the drug-related evidence.\n{23} Defendant does not appeal the district court\u2019s conclusion that Sergeant Simmons \u201cwas allowed in\u201d to Defendant\u2019s apartment. We interpret the court\u2019s ruling and Defendant\u2019s failure to challenge it on appeal as conclusively establishing that Defendant voluntarily consented to the officers\u2019 entry into his apartment. The relevant issue is whether Sergeant Simmons could have reasonably interpreted that Defendant\u2019s consent, given in response to the officers\u2019 request to \u201ccome in\u201d to speak about \u201csome concerns[,]\u201d encompassed consent to walking through the apartment\u2019s hallway and into the bedroom.\n{24} \u201cThe scope of . . . consent is constrained by the bounds of reasonableness!].]\u201d State v. Garcia, 1999-NMCA-097, \u00b6 13, 127 N.M. 695, 986 P.2d 491 (internal quotation marks and citation omitted). Thus, we consider \u201cwhat a police officer could reasonably interpret the consent to encompass.\u201d Id. (internal quotation marks and citation omitted). Conversely, we consider \u201cwhat the typical reasonable person would have understood to be the scope of his or her consent under the circumstances.\u201d United States v. Pena, 143 F.3d 1363, 1367-68 (10th Cir. 1998) Reasonableness is measured objectively. See State v. Ryan, 2006-NMCA-044, \u00b6 30, 139 N.M. 354, 132 P.3d 1040 (noting that \u201cthe scope of a search is limited to the consent given, as measured by an objective reasonableness standard\u201d).\n{25} In determining what is or is not reasonable, courts may rely on social norms to guide the inquiry. See United States v. Mosley, 454 F.3d 249, 269 (3rd Cir. 2006) (\u201cThe exclusionary rule expresses, inherently and always, a standard of reasonableness that evolves along with . . . social norms.\u201d); see also Florida v. Jardines,__U.S.__, 133 S. Ct. 1409, 1415-16 (2013) (relying on social norms to illustrate that it is reasonable for police to approach a private citizen\u2019s home and knock on the door just as \u201cany private citizen might do[,]\u201d but those norms do not permit police to use a trained police dog to explore the area around the home, an activity that if done by a private citizen might inspire the resident to call the police (internal quotation marks and citation omitted)). In this case, Defendant relies on the notion of social norms to argue that his consent to the officers\u2019 entry could only reasonably be viewed as an invitation to enter the living room. Specifically, Defendant argues that \u201can invitation into the living room for a quick chat about a noise complaint\u201d does not constitute \u201cpermission to wander throughout the house.\u201d We agree.\n{26} In light of the fact that Sergeant Simmons requested admittance into Defendant\u2019s apartment for the purpose of speaking with Defendant about some concerns, her subsequent announcement that she would go wake the sleeping female occupant of Defendant\u2019s apartment, and her procession thereafter down the hallway and to the bedroom cannot be viewed as objectively reasonable. To illustrate this point by way of analogy, if a solicitor who gained permission to \u201ccome in\u201d to a person\u2019s home to \u201cspeak with\u201d the resident were to announce that he would round up the sleeping occupants of the home, it would be reasonable to view the solicitor\u2019s actions as, at the least, an unacceptable intrusion on privacy. Cf. id, at 1415 (relying on the notion of what one would consider socially acceptable behavior by \u201csolicitors, hawkers[,] and peddlers of all kinds\u201d to consider the permissibility of like behavior by police (internal quotation marks and citation omitted)). Thus, assuming that the extent of Defendant\u2019s consent was limited to permitting the officers\u2019 entry into his apartment for the purpose of speaking with Sergeant Simmons about her concerns, we conclude that the officer\u2019s traversal through the hallway and into the bedroom of Defendant\u2019s apartment exceeded the \u201cbounds of reasonableness.\u201d See Garcia, 1999-NMCA-097, \u00b6 13 (\u201cThe scope of the consent is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.\u201d (internal quotation marks and citation omitted)).\n{27} While viewing Sergeant Simmons\u2019s actions in this case through the lens of social norms helps to illustrate the unreasonableness of her interpretation of the scope of Defendant\u2019s consent to her and the other officers\u2019 entry, Defendant\u2019s argument is further supported by authority. The knock- and-talk investigatory tool is permissible under the New Mexico and United States Constitutions. See State v. Flores, 2008-NMCA-074, \u00b6\u00b6 8, 14, 16, 144 N.M. 217, 185 P.3d 1067 (recognizing the constitutional permissibility of the knock-and-talk investigatory tool under the United States and New Mexico Constitutions). Yet, answering an officer\u2019s knock and consenting to police entry, does not give police free reign to walk through or search a private residence. See United States v. Curran, 498 F.2d 30, 33 (9th Cir. 1974) (holding that the officers\u2019 expressed purpose of questioning the occupants of a residence \u201ccould not extend to [an officer\u2019s] movement past [the occupants] into other rooms\u201d); see 1 Wayne R. LaFave, Search and Seizure \u00a7 2.3(b) (5th ed. 2013) (stating that, in the context of a knock-and-talk investigation, \u201cthe mere fact that the door of the house is opened in response to the officer\u2019s knock . . . does not mean that the officer is entitled to walk past the person so responding into the interior of the residence\u201d).\n{28} In sum, the record before us supports Defendant\u2019s contention that he consented to the officers\u2019 entry into his apartment for the purpose of acquiescing to Sergeant Simmons\u2019s request to speak with him about her concerns. Assuming that his consent was limited to permitting the officers\u2019 entry, Sergeant Simmons\u2019s decision to walk down the hallway, from where she saw the drug-related evidence, and into the bedroom exceeded the objectively reasonable scope of Defendant\u2019s consent. In light of the foregoing discussion, in addition to the well-established principle that \u201c[t]he privacy of a home is afforded the highest level of protection by our state and federal constitutions},]\u201d we conclude that a reasonably competent attorney would have moved to suppress on the basis that Sergeant Simmons exceeded the scope of Defendant\u2019s consent. State v. Haidle, 2012-NMSC-033, \u00b6 13, 285 P.3d 668 (internal quotation marks and citation omitted).\n{29} We are not persuaded by the State\u2019s suggestion that Defendant\u2019s counsel made the tactical decision to forego a scope-of-consent argument owing to the possibility that \u201can argument regarding the scope of Defendant\u2019s consent would be unavailing.\u201d We are not made aware of any rational tactic or strategy that would have caused Defendant\u2019s counsel to forego a motion to suppress on a scope-of-consent ground. To the extent the State argues that Defendant consented to a more expansive entry of his apartment, the record on appeal does not support this argument, and this Court will not speculate regarding any expansion of Defendant\u2019s consent. See State v. Vargas, 2007-NMCA-006, \u00b6 31, 140 N.M. 864, 149 P.3d 961 (noting this Court\u2019s refusal to speculate regarding other balancing of interests arising during an unannounced forced entry at gunpoint compared with an announced entry into a residence.)\nB. The Prejudice Prong\n{30} Where a meritorious motion to suppress key evidence could weaken the prosecution\u2019s case against the defendant, counsel\u2019s failure to make such a motion may prejudicially affect the defendant. Patterson, 2001-NMSC-013, \u00b6\u00b6 32-33. In cases where the defendant has accepted a plea instead of going to trial, we evaluate the prejudicial effect ofhis counsel\u2019s ineffective assistance by considering whether there is a reasonable probability that, had his counsel moved to suppress the at-issue evidence and been successful, the defendant would have gone to trial instead of entering a plea. Id. \u00b6 33. In making this determination, we consider the strength of the prosecution\u2019s evidence against the defendant aside from the evidence that would be subject to suppression. Id. \u00b6\u00b6 31-32.\n{31} In this case, the extent of the State\u2019s incriminating evidence against Defendant consisted of the drugs and paraphernalia that were observed by Sergeant Simmons from the hallway of Defendant\u2019s apartment and the crack cocaine that the officer found in the pocket of Defendant\u2019s jacket just after being arrested for possession of those prior items. Had Defendant\u2019s counsel moved to suppress the evidence that was observed in plain view from the hallway on the ground that Sergeant Simmons was not lawfully positioned in the hallway when she observed the evidence, the motion could have resulted in the exclusion of the plainly viewed evidence. See Ochoa, 2004-NMSC-023, \u00b6 9 (stating that the plain view requirement entails viewing the incriminating evidence from a lawful position). Relatedly, the crack cocaine that was located by Sergeant Simmons in Defendant\u2019s jacket may arguably have been excluded as \u201cfruit of the poisonous tree\u201d because without the plainly viewed evidence the officer lacked probable cause to arrest Defendant. See State v. Montoya, 2008-NMSC-043, \u00b6 12, 144 N.M. 458, 188 P.3d 1209 (recognizing that the \u201c[fjruit of the poisonous tree doctrine generally requires suppression of. . . evidence obtained after an arrest made without probable cause\u201d (omission in original) (internal quotation marks and citation omitted)).\n{32} In sum, had Defendant\u2019s counsel moved for suppression and had that motion been successful, the full extent of the State\u2019s incriminating evidence against Defendant could have been excluded. It hardly bears stating that there is a \u201creasonable probability\u201d that had Defendant\u2019s counsel succeeded in suppressing the evidence against him, he would not have accepted a plea. Under the circumstances of this case, we conclude that Defendant has made a prima facie showing of ineffective assistance of counsel.\nCONCLUSION\n{33} We conclude that Defendant has made a prima facie case of ineffective assistance of counsel based on his counsel\u2019s failure to move to suppress the incriminating evidence against him. Accordingly, we remand this matter to the district court for a hearing on Defendant\u2019s ineffective assistance claim and any further proceedings consistent with the court\u2019s determination on that issue. See Garcia v. State, 2010-NMSC-023, \u00b6\u00b6 28-29, 148 N.M. 414, 237 P.3d 716 (stating that where a defendant has made a prima facie showing of ineffective assistance of counsel on appeal the appellate court may remand \u201cto allow for further development of the issue before the trial court\u201d).\n{34} IT IS SO ORDERED.\nJONATHAN B. SUTIN, Judge\nWE CONCUR:\nTIMOTHY L. GARCIA, Judge\nJ. MILES HANISEE, Judge\nOfficer Joslyn Archuleta was married sometime between the incident and the time of her testimony at the suppression hearing. This Opinion will refer to her as Officer Archuleta.\nAt this point in Sergeant Simmons\u2019s testimony, apparently because the motion to suppress focused on the consent of the police entry into the apartment, the prosecutor asked Sergeant Simmons to focus on \u201cthe actual knocking on the door, the opening of the door, and [Defendant] coming to the door.\u201d\nThe question or significance of officer safety was not raised in the district court, nor was it raised on appeal. Accordingly, we do not consider it in this Opinion.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-094\nFiling Date: July 1, 2014\nDocket No. 32,653\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BRADLEY MOSLEY, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM\nfor Appellant" }, "file_name": "0667-01", "first_page_order": 683, "last_page_order": 691 }