¶1(specially concurring).
¶2{19} I write separately to highlight the difficulties inherent in our opinion and in the case law we rely on. While the result we reached is the one compelled by Garcia, Gomez, and Jones, I am troubled that this precedent precludes a police officer from reaching into a motor vehicle to seize obvious contraband from a location in the vehicle’s interior that is plainly visible from outside the vehicle. In my view, if it weren’t for the trio of Garcia, Gomez, and Jones, our jurisprudence would permit such a seizure, even under the more expansive protections provided by our State Constitution.
¶3{20} Any analysis in this area should begin with the interests to be protected by the constitutional provisions at issue. As noted in Foreman and Sanchez, the search aspect of Article II, Section 10 of the State Constitution and the Fourth Amendment of the United States Constitution “protects expectations of privacy, while the seizure aspect protects notions of possession, at least insofar as it applies to objects.” Sanchez, 2005-NMCA-081, ¶ 17, 137 N.M. 759, 114 P.3d 1075; Foreman, 97 N.M. at 585, 642 P.2d at 188 (regarding the Fourth Amendment). In the case of contraband viewed from outside a car, then, we are confronted with the privacy interest in the interior of a car and the possessory interest in the object seen.
¶4{21} The first threshold is the privacy interest. In State v. Warsaw, 1998-NMCA-044, ¶ 14, 125 N.M. 8, 956 P.2d 139, we said that “[a] search is an intrusion on a legitimate expectation of privacy” and that “[t]o determine whether an individual has a legitimate expectation of privacy, we consider: (1) whether the individual’s conduct demonstrated a subjective expectation of privacy, and (2) whether society recognizes the individual’s expectation of privacy as reasonable.” Here, Officer Briseno saw, through the open passenger window, methamphetamine in the gap between the driver and passenger seats. We can reasonably conclude that Defendant did not demonstrate a subjective expectation of privacy in this clearly visible area of his car. Even if he did have such an expectation, society would not recognize as reasonable an expectation of privacy in this visible area of the car’s interior. As a result, Officer Postlewait’s reaching into the car through the open window would not be deemed “an intrusion on a legitimate expectation of privacy.” Id. Once “the privacy threshold ha[d] already been lawfully breached[,]” Sanchez, 2005-NMCA-081, ¶ 18, 137 N.M. 759, 114 P.3d 1075, seizure of the methamphetamine was permissible because it “was not an item which [Defendant had a lawful right to possess.” Foreman, 97 N.M. at 585, 642 P.2d at 188.
¶5{22} If it were not for Garcia and Gomez, we could distinguish the circumstances presented here — obvious contraband plainly visible from outside a motor vehiele-from the circumstances in Valdez, 111 N.M. 438, 806 P.2d 578. In Valdez, we held that the officers’ observation of marijuana plants from outside a residence’s greenhouse did not authorize their warrantless entry into the greenhouse and seizure of the plants, absent some exception to the warrant requirement. Id. at 440-41, 806 P.2d at 580-81. The situation in Valdez involved entry into a residence, while the present case involves a reach into a motor vehicle, where there is, at least in some cases, a reduced expectation of privacy. See Ryon, 2005-NMSC-005, ¶23, 137 N.M. 174, 108 P.3d 1032 (“A lesser expectation of privacy attaches to a vehicle.”). By permitting seizure of obvious contraband plainly visible inside an automobile, we would acknowledge this reduced expectation of privacy while still adhering to our rejection of the federal bright-line automobile exception. But we are constrained by Garcia and Gomez, which appear to equate the expectation of privacy in an automobile with the expectation of privacy in a home.
¶6{23} If it were not for Gomez, I would be persuaded by the State’s argument that Garcia and Jones can be distinguished from the present case because the objects seized in those cases were not objects that were patently unlawful to possess. But Gomez and its uncompromising language present a distinct barrier, and Garcia and Jones both relied on Gomez. In the face of this precedent, we have no choice but to decide this ease as we do. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (holding that Court of Appeals is bound by Supreme Court precedent).