1998 -NMCA- 154, State v. Cline

• Decision Date: 08 September 1998
• Docket Number: No. 18,567,18,567
• Citation: 1998 NMCA 154,126 N.M. 77,966 P.2d 785
• Parties: , 1998 -NMCA- 154 STATE of New Mexico, Plaintiff-Appellee, v. Lisa CLINE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 785

966 P.2d 785

126 N.M. 77, 1998 -NMCA- 154

STATE of New Mexico, Plaintiff-Appellee, v. Lisa CLINE, Defendant-Appellant.

No. 18,567.

Court of Appeals of New Mexico.

Sept. 8, 1998.

Certiorari Denied No. 25, 374, Oct. 14, 1998.

Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.

John D. Cline, Freedman, Boyd, Daniels, Hollander, Guttmann & Goldberg, P.A., Albuquerque, for Appellant.

OPINION

BOSSON, Judge.

¶1 Lisa Cline (Defendant) was convicted of possession of cocaine discovered when a police officer, acting without a warrant, opened a zippered cosmetics pouch taken from her bedroom. The officer got the pouch from Defendant's husband who told the officer there were drugs inside and consented to the search. Defendant appeals the district court's denial of her motion to suppress, and we must decide whether the warrantless search of her pouch and the testing of its contents violates the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. We hold that the husband's actions constituted a valid consent to the officer's search of the pouch, and therefore the State did not infringe upon Defendant's rights under either the federal or the state constitutions. We affirm the decision of the district court.

BACKGROUND

¶2 At about 1:45 a.m. on December 28, 1995, deputies of the Lea County Sheriff's Department responded to a call concerning a domestic dispute. When the officers arrived at Defendant's home, she was standing on the porch with a suitcase. Defendant told Deputy Velasquez that her husband had locked her out and would not let her back in the house. With Mr. Cline's permission, Deputy Velasquez went inside to speak with him while another officer stayed outside with Defendant.

¶3 Mr. Cline was evidently angry at his wife. He told Deputy Velasquez that he was having problems with his wife, that she went out drinking and came home late, and that he did not want her staying in the house. Mr. Cline told Deputy Velasquez that his wife had a drug problem, that he had given his wife money to buy Christmas gifts for the children, and that she had spent it on drugs. Deputy Velasquez asked Mr. Cline if there were any drugs around the house and Mr. Cline told him that he had found a cosmetics pouch in the bedroom belonging to his wife which contained paraphernalia and other items. Mr. Cline retrieved the pouch from their bedroom to show Deputy Velasquez. With Mr. Cline's permission, Deputy Velasquez unzipped the pouch and looked inside, where he saw some pieces of paper, two syringes, cotton swabs, cotton balls, a metal spoon with white residue, pieces of wire, and two plastic bags containing a residue of white powder. Other than a video rental card, there were no personal effects inside the pouch.

¶4 By this time Defendant had been brought inside the house, and she was seated at the dining room table. Deputy Velasquez asked Defendant if the pouch was hers, and she admitted that it was. Defendant was then advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was questioned by Deputy Velasquez. After questioning Defendant, Deputy Velasquez asked her if she had somewhere to spend the night and then drove her to another residence so that there would be no more problems between the Clines that night. Officer Velasquez took the pouch as evidence and told Defendant that he would contact the district attorney's office about it. Defendant was subsequently placed under arrest and charged with possession of cocaine.

¶5 Before trial Defendant moved to suppress the evidence found in the pouch, asserting that it was obtained in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Defendant argued that the evidence should be suppressed because it had been obtained without a warrant, without probable cause, and was the result of an unreasonable and illegal search and seizure in violation of both the federal and state constitutions. The court denied the motion, and eventually Defendant was found guilty of possession of cocaine. On appeal, Defendant raised the following issue in her docketing statement: "Whether the district court erred in failing to grant Defendant's Motion to Suppress Evidence, which was based upon the lack of a search warrant, the lack of a valid consent to search, and the lack of exigent circumstances to justify a warrantless search." See State v. Gonzales, 111 N.M. 590, 593, 808 P.2d 40, 43 (Ct.App.1991) (when a case is assigned to the general calendar all issues properly raised in the docketing statement are revived). We hold that Husband's consent to the officer's search of the pouch under these circumstances disposes of the search and seizure issues under both constitutions. We therefore affirm.

DISCUSSION

¶6 We review the district court's ruling on a motion to suppress to determine whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party. See State v. Diaz, 1996-NMCA-104, p 7, 122 N.M. 384, 925 P.2d 4. A trial court's denial of a motion to suppress will not be disturbed if it is supported by substantial evidence unless it also appears that the ruling was incorrectly applied to the facts. See State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993). When conflicting testimony exists, "it is the trial court's prerogative to determine the credibility of the evidence." State v. Affsprung, 115 N.M. 546, 547, 854 P.2d 873, 874 (Ct.App.1993). Whether that evidence complies "with constitutional requirements is, however, a legal question reviewed by the appellate court on a de novo basis." State v. Vargas, 120 N.M. 416, 418, 902 P.2d 571, 573 (Ct.App.1995) (citing Affsprung, 115 N.M. at 547, 854 P.2d at 874; State v. Jones, 114 N.M. 147, 150-51, 835 P.2d 863, 866-67 (Ct.App.1992)). We begin with the analytical framework adopted by our Supreme Court in State v. Gomez, 1997-NMSA-006, pp 20-21, 122 N.M. 777, 932 P.2d 1, for interpreting the federal and state constitutions.

¶7 Under the interstitial approach to state constitutional interpretation adopted in Gomez, we ask first whether the motion to suppress should have been granted under the federal constitution. See id. p 19, 122 N.M. 777, 932 P.2d 1. If not, then we proceed to the New Mexico Constitution. See id. Both the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution protect the right of the people to be free from unreasonable searches and seizures, particularly in the privacy of their homes. See Vargas, 120 N.M. at 418, 902 P.2d at 573. Under the exclusionary rule, "[e]vidence that is unconstitutionally obtained is inadmissible at trial[.]" City of Albuquerque v. Haywood, 1998-NMCA-029, p 9, 124 N.M. 661, 954 P.2d 93. We have held that a warrantless search or seizure is constitutionally unreasonable unless it is shown to fall within one of the exceptions to the warrant requirement, and it is settled that a "valid consensual search has been acknowledged as an exception to the warrant requirement." Diaz, 1996-NMCA-104, p 9, 122 N.M. 384, 925 P.2d 4; see id. p 8, 122 N.M. 384, 925 P.2d 4. Moreover, as this Court stated in Diaz, a third party who has common authority over the property may normally give consent to a search. See id. pp 8-9, 122 N.M. 384, 925 P.2d 4. "The authority which justifies the third-party consent does not rest upon the law of property ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (citations omitted); see also State v. Reynolds, 119 N.M. 383, 386, 890 P.2d 1315, 1318 (1995) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) (stating objects that a person exposes to the plain view of outsiders are not protected by the Fourth Amendment because no intention to keep them private has been exhibited)).

The United States Constitution

¶8 We examine, first of all, the police's role in acquiring the pouch. This is not a case in which the police had probable cause to believe they would find drugs at the Cline residence and searched without a warrant because of exigent circumstances. They had no suspicion at all, but were given the evidence by Defendant's husband. This is a similar situation to that in Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in which the United States Supreme Court held that when a wife voluntarily produced guns and clothes belonging to her husband and gave them to the police, albeit under the mistaken belief that the evidence would clear her husband of suspicion, such conduct did not amount to an unreasonable search and seizure by the state. The Court commented that "[h]ad Mrs. Coolidge, wholly on her own initiative, sought out her husband's guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence." Id. at 487, 91 S.Ct. 2022. Excluding evidence voluntarily given to the police, the Court observed, would not serve the purpose of the exclusionary rule which is to deter police misconduct: "The exclusionary rules were fashioned 'to prevent, not to repair,' and their target is official misconduct." Id. at 488, 91 S.Ct. 2022 (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960))....