1997 -NMCA- 48, State v. Martinez

• Decision Date: 01 May 1997
• Docket Number: No. 17503,17503
• Citation: 123 N.M. 405,940 P.2d 1200,1997 NMCA 48
• Parties: , 1997 -NMCA- 48 STATE of New Mexico, Plaintiff-Appellee, v. Antonio Alonzo MARTINEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1200

940 P.2d 1200

123 N.M. 405, 1997 -NMCA- 48

STATE of New Mexico, Plaintiff-Appellee, v. Antonio Alonzo MARTINEZ, Defendant-Appellant.

No. 17503.

Court of Appeals of New Mexico.

May 1, 1997.

Tom Udall, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Eric D. Dixon, Portales, for Defendant-Appellant.

OPINION

HARTZ, Chief Judge.

¶1 Defendant pleaded guilty to a charge of possession of marijuana with intent to distribute. He reserved the right to appeal the denial of his motion to suppress marijuana found in his home when officers executed a warrant to arrest him on another drug charge. The sole issue on appeal is the legality of the search that revealed the marijuana. We hold that the record before us is insufficient to support the search and therefore reverse.

BACKGROUND

¶2 At approximately 6 a.m. on November 30, 1994 four law enforcement officers went to 220 West Tenth Street in Clovis, New Mexico, to execute a warrant to arrest Defendant for trafficking cocaine. Deputy Sheriff John Mares and a fellow deputy from the Curry County Sheriff's Office went to the back of the house while state police Officer Clifford Frisk and Joe Casarez, a special agent for the district attorney's office, went to the front door.

¶3 The officers at the front door knocked and announced their identity. The lights in the house came on and Defendant looked at the officers through a window in the front door. The officers identified themselves in Spanish and stated that they had an arrest warrant. The porch light and interior light then went out, so the officers kicked open the front door. For the convenience of the reader, we include the following sketch of the premises:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The officers entered the living room with their weapons drawn and saw Defendant, wearing briefs, standing just past the doorway to Bedroom # 1. They ordered Defendant to freeze. He complied and was handcuffed.

¶4 The two deputies then entered through the rear of the residence. The officers searched for any other persons who might be in the house and also looked for weapons. They found a Mr. Nunez in Bedroom # 2 and a shotgun in Bedroom # 1, near where Defendant was originally seen. Later, Deputy Mares looked in an open closet in Bedroom # 1 and saw a box containing some loose cartridges. While looking through the box and picking up the cartridges, he found a paper sack. He opened it and discovered baggies of marijuana. Mares testified that his purpose in looking through the sack was "to see if there was a weapon in there that would match the cartridges in the box."

¶5 Defendant does not challenge the legality of the arrest or the entry into the home. His sole contention is that Mares had no authority to conduct a warrantless search of the paper sack.

DISCUSSION

¶6 On appeal the State contends that Mares was conducting a lawful search incident to an arrest. The appropriate scope of a search incident to an arrest was set forth by the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court wrote:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control"--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.

Id. at 762-63, 89 S.Ct. at 2040 (emphasis added) (footnote omitted); accord Rodriquez v. State, 91 N.M. 700, 703-04, 580 P.2d 126, 129-30 (1978); see State v. Capps, 97 N.M. 453, 455, 641 P.2d 484, 486 (1982) (noting that United States Supreme Court had expanded scope of search incident to arrest for arrest of occupant of automobile).

¶7 In applying the Chimel test we must be sensitive to the dangers to law enforcement officers in an unpredictable and highly charged situation. "Every arrest must be presumed to present a risk of danger to the arresting officer." Washington v. Chrisman, 455 U.S. 1, 7, 102 S.Ct. 812, 817, 70 L.Ed.2d 778 (1982). Law enforcement officers need not " 'presume that an arrestee is wholly rational.' " United States v. Queen, 847 F.2d 346, 354 (7th Cir.1988) (quoting United States v. McConney, 728 F.2d 1195, 1207 (9th Cir.1984) (en banc)). Even a handcuffed arrestee may be foolhardy enough to try to seize a nearby firearm. See id. at 353-54 (defendant was handcuffed behind his back). Moreover, " '[c]ustodial arrests are often dangerous; the police must act decisively and cannot be expected to make punctilious judgments regarding what is within and what is just beyond the arrestee's grasp.' " Id. at 353 (quoting United States v. Lyons, 706 F.2d 321, 330 (D.C.Cir.1983)). We will not demand finely choreographed coordination among the officers. An officer securing the area within the arrestee's reach need not determine precisely when other officers have obtained complete control over the arrestee. See United States v. Lucas, 898 F.2d 606, 609-10 (8th Cir.1990) (defendant reached toward a kitchen cabinet as officers approached him; after he was subdued one officer opened the cabinet door and seized a pistol as another officer pulled the defendant from the room); United States v. Parra, 2 F.3d 1058, 1063 (10th Cir.1993) (as two suspects were subdued and handcuffed, an officer lifted a bed pillow and discovered a pistol underneath; after the suspects were seated on the ground with their hands cuffed behind their backs, another officer lifted up a second pillow and found drugs); cf. United States v. Nelson, 102 F.3d 1344 (4th Cir.1996) (shoulder bag removed from arrestee's person can be searched without warrant a few minutes after arrest). Also, the presence at the scene of persons other than the arrestee may justify searching for weapons in their immediate vicinity. See Lucas, 898 F.2d at 609-10; 3 Wayne R. LaFave, Search and Seizure § 6.3(c), at 308 (3d ed. 1996).

¶8 To say that we will be sensitive to the safety concerns of law enforcement officers and even be deferential to their judgment in a stressful setting, does not mean, however, that we will give them carte blanche. An arrest in a residence does not confer blanket authority to search the residence for weapons. Any search for weapons must satisfy the constraints of Chimel with respect to the extent of the area that can be searched.

¶9 The evidence at the suppression hearing was inadequate to justify the search of the paper sack as incident to Defendant's arrest. We recognize that we must view the evidence in the light most favorable to affirmance of the district court's decision not to suppress the evidence. See State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Juarez, 120 N.M. 499, 502, 903 P.2d 241, 244 (Ct.App.), cert. denied, 120 N.M. 184, 899 P.2d 1138 (1995). At the same time, however, the State bears the burden of proving facts that justify a warrantless search and seizure. See State v. Wright, 119 N.M. 559, 562, 893 P.2d 455, 458 (Ct.App.1995).

¶10 During the suppression hearing the State's theory was that the officers had a right to secure the bedroom for weapons, apparently regardless of who was in or near the bedroom at the time of the search for weapons. The prosecutor made no attempt to place either Defendant or Nunez at the time of the search of the paper sack. Mares and Casarez were the only witnesses at the hearing. The prosecutor did not ask Mares where Defendant or Nunez was. As for Casarez, his answers on direct examination provided only limited information regarding the locations of the two occupants of the home. He testified that after Defendant complied with his order to stop, the officers placed Defendant on the floor and handcuffed him. Then Nunez was found in Bedroom # 2. Once the house was secured, Defendant was formally arrested and given Miranda warnings. Casarez believed that Defendant was in the kitchen when the warnings were given.

¶11 The officers' explanations for the search for weapons...