1997 -NMCA- 6, State v. Hernandez, 16489

• Citation: 932 P.2d 499,1997 NMCA 6,122 N.M. 809
• Decision Date: 04 March 1994
• Docket Number: No. 16489,16489
• Court: Court of Appeals of New Mexico
• Parties: , 1997 -NMCA- 6 STATE of New Mexico, Plaintiff-Appellee, v. Terri HERNANDEZ, Defendant-Appellant. . Tom Udall, Attorney General, Marcia J. Milner, Assistant Attorney General, Santa Fe, for Appellee. Monica D. Munoz, Albuquerque, for Appellant. OPINION ARMIJO, Judge. ¶1 Defendant appeals her conviction on one count of possession of cocaine and one count of conspiracy to traffic cocaine by possession with intent to distribute. On appeal, Defendant raises the following issues: (1) whether the trial court erred by denying her motion to suppress evidence; (2) whether sufficient evidence existed to support her conviction; and (3) whether she was deprived of effective assistance of counsel because trial counsel failed to move to suppress statements made in response to custodial interrogation when she had not been advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ¶2 We reverse Defendant's conviction on both counts and remand for a new trial consistent with this opinion. I. FACTUAL BACKGROUND ¶3 On

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932 P.2d 499

122 N.M. 809, 1997 -NMCA- 6

STATE of New Mexico, Plaintiff-Appellee, v. Terri HERNANDEZ, Defendant-Appellant.

No. 16489.

Court of Appeals of New Mexico.

Tom Udall, Attorney General, Marcia J. Milner, Assistant Attorney General, Santa Fe, for Appellee.

Monica D. Munoz, Albuquerque, for Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals her conviction on one count of possession of cocaine and one count of conspiracy to traffic cocaine by possession with intent to distribute. On appeal, Defendant raises the following issues: (1) whether the trial court erred by denying her motion to suppress evidence; (2) whether sufficient evidence existed to support her conviction; and (3) whether she was deprived of effective assistance of counsel because trial counsel failed to move to suppress statements made in response to custodial interrogation when she had not been advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶2 We reverse Defendant's conviction on both counts and remand for a new trial consistent with this opinion.

I. FACTUAL BACKGROUND

¶3 On March 4, 1994, Terri Hernandez (Defendant), her nineteen-year-old daughter, Yvette, and Yvette's infant daughter were returning from Ciudad Juarez, Mexico, to their home in Dexter, New Mexico. Defendant testified that she and her daughter drove to Ciudad Juarez to shop for wedding clothes. Defendant was the driver of the vehicle, which she owned. At the Border Patrol station in Oro Grande, New Mexico the vehicle was stopped for a short, routine citizenship check. The occupants of the vehicle exhibited no suspicious behavior or conduct and the vehicle was allowed to pass through the checkpoint. A blue pick-up truck driven by Jose Ibarra appeared at the checkpoint a few vehicles behind that of Defendant. Defendant testified that this pass-through occurred at about 1:20 p.m. and the State contended that the pass-through occurred at about 1:45 p.m. Within minutes thereafter and almost contemporaneous with the pass-through, FBI Agent Jose Garcia conveyed information to Border Patrol Agent John Esquivel, then on duty at the checkpoint, that a confidential informant had advised him that a person named Terri Hernandez might be travelling through Otero County with an unspecified amount of cocaine on her person or in her vehicle. The confidential informant provided the make, color, and license plate of Defendant's vehicle and indicated that it would be followed by a blue pick-up. The source also provided the make and license plate number of the truck. The informant stated that he believed Defendant was in El Paso, from which Agent Garcia "deduced" that Defendant would be coming through the Oro Grande checkpoint. Agent Garcia did not investigate an alternative route through Carlsbad.

¶4 Upon hearing this information, Border Patrol agents stopped the blue pick-up as it passed through the checkpoint, then pursued Defendant's vehicle as it traveled down the highway. With lights flashing and sirens sounding, the agents pulled Defendant's car to the side of the highway about one mile from the checkpoint and ordered her to return with them under escort. Defendant turned her car around and the agents escorted her back to the checkpoint. The blue pick-up driven by Ibarra was also detained at the checkpoint.

¶5 Upon Defendant's arrival at the checkpoint, the agents asked Defendant and Yvette to get out of Defendant's car and took them to a trailer for questioning. During his initial questioning, Agent Esquivel requested and received from Defendant consent to run a "sniffer" dog around Defendant's car. The dog did not alert. No drugs or drug paraphernalia were detected on the women or found about the vehicle. Defendant requested and was denied permission to leave the checkpoint.

¶6 Another law enforcement officer, Agent Trujillo, was summoned from Alamogordo, New Mexico, arrived at 2:30 p.m. and shortly thereafter asked Yvette to consent for a strip search. There were no female agents on the premises who could conduct the searches, so Agent Trujillo called to Alamogordo for a female agent to conduct the searches. A female agent testified that she received a call from Agent Trujillo at approximately 2:30 p.m., that she put gas in her car and then proceeded to drive to the Border Patrol checkpoint.

¶7 While waiting for the female agent to arrive, the Border Patrol agents searched Defendant's car and that of Ibarra. No evidence of drugs or drug related activities were found in either vehicle. The female agent testified that she arrived at the checkpoint at approximately 3:00 p.m. and at 3:10 p.m. she sought and received consent from Yvette and Defendant to conduct the body searches. The trial court found that Defendant and Yvette were detained for two hours while the female agent was summoned from Alamogordo.

¶8 When Defendant was finally searched, no drugs were found on her person. However, two packets of cocaine wrapped in electrical tape were found hidden inside Yvette's bra and underwear. Defendant denied knowledge of the drugs found on her daughter. Yvette stated that she did not tell her mother of her possession of the packets of cocaine. When the agents informed Defendant that they were going to arrest Yvette, Defendant insisted that the agents arrest her, instead. According to Agent Sanchez, Defendant told him, "she [Yvette] was forced to do it. Please arrest me. I will take the blame for it. Please let her go." Defendant testified that she told the agents, "No, let it be me, not her [Yvette]. I mean, take me in. She's got a baby. This baby needs her mother more than anything else." When asked why she insisted on being arrested, Defendant stated, "That's my child and I want to take care of my daughter at any expense." Defendant further explained at trial that she believed Yvette was "forced" to carry the drugs because Yvette has a learning disability and is very easily influenced by others. The agents arrested both Defendant and her daughter. Yvette had no money in her possession; Defendant had very little money in her possession. Yvette testified that she received the drugs in El Paso as she waited in the vehicle while her mother shopped inside a store.

¶9 During questioning at the checkpoint, Defendant initially denied knowing the man in the blue pick-up truck, Jose Ibarra. She later stated that she did know him but that she did not see him when she first arrived at the checkpoint and had not seen him since she had "broken-up with him" several months before. Inside her vehicle, some mail bearing Ibarra's name was found, and Ibarra had a picture of Yvette's baby in his wallet. Defendant's statements relating to her denial of knowledge of Ibarra were related at trial by the State's witness. The State used these statements to impeach her credibility. It is uncontroverted that Defendant had not been read her Miranda rights prior to her being questioned about Ibarra. Defense counsel did not move to suppress the statements which Defendant made concerning her knowledge or lack of knowledge of Ibarra, and it is this omission that forms the basis of Defendant's claim of ineffective assistance of counsel.

¶10 Ibarra was not arrested or charged.

¶11 Before trial, Yvette was found incompetent to stand trial because of an unspecified developmental disability which prevented her from abstracting concepts from concrete information.

¶12 Though not well focused at trial, Defendant presented a defense that, because of her "retardation," Yvette was easily influenced by persons (other than Defendant) to accept and conceal drugs for transport. Defendant testified that Yvette was a senior in high school, was enrolled in special education classes, and was easily led into trouble. Defendant also testified that Yvette had a history of skipping school and shoplifting when her friends asked her to do so. No expert testimony describing Yvette as "mentally retarded" or developmentally disabled was tendered, although the trial court did take judicial notice of the finding that Yvette had been found incompetent to stand trial. Although defense counsel argued that "someone took advantage of Yvette's mental age," he tendered no evidence as to Yvette's mental age nor did he tender any evidence of her low I.Q.

¶13 The only effort made by the defense to attempt such a tender was a motion for the district court to take judicial notice of the proceeding in which Yvette was found incompetent to stand trial. The motion was not objected to and the court, in response to this request, noted on the record:

On September 29, 1994, I found that Yvette Hernandez was incompetent to stand trial in that she could not assist her attorney in the defense of her case. And further, I found that she could not receive treatment that would bring her up to the level that she would be able to assist in the defense of her case.

Defendant did not offer any transcripts from the competency hearing or any expert testimony relating to Yvette's developmental disability and how it related to the defense. No additional information relating to Yvette's condition, as developed in her competency hearing, was related to the jury. No evidence was presented by the defense as to Yvette's mental or psychological condition at the time of her detention at the Border Patrol checkpoint. The criminal charges were not pursued against Yvette.

II. MOTION TO SUPPRESS EVIDENCE

A. Standing

¶14 Defendant asserts that the trial court erred by denying her motion to suppress the cocaine seized from Yvette's person at the Border Patrol checkpoint. The trial court found that Defendant lacked standing to challenge the search of Yvette's person.

¶15 We initially address Defendant's assertion that the State waived the issue of standing by failing to raise it at the trial level. This assertion lacks merit. The prosecution, at a pretrial hearing, raised its concern that Defendant...