State v. Wagoner

• Decision Date: 14 February 2001
• Docket Number: No. 20,812.,20,812.
• Citation: 24 P.3d 306,2001 NMCA 14,130 N.M. 274
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tim WAGONER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

24 P.3d 306

130 N.M. 274

2001 NMCA 14

STATE of New Mexico, Plaintiff-Appellee, v. Tim WAGONER, Defendant-Appellant.

No. 20,812.

Court of Appeals of New Mexico.

February 14, 2001.

Certiorari Denied April 3, 2001.

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Ass't Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Susan Roth, Ass't Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 26,828, April 3, 2001.

OPINION

PICKARD, Judge.

{1} Defendant appeals the district court's denial of his motion to suppress evidence entered after this Court's remand for consideration of the applicability of the inevitable discovery doctrine. See State v. Wagoner, 1998-NMCA-124, 126 N.M. 9, 966 P.2d 176 (Wagoner I). This case presents us with an opportunity to clarify and distinguish the inevitable discovery and independent source doctrines, which are related, but analytically distinct, exceptions to the exclusionary rule. We also must decide whether Article II, Section 10 of the New Mexico Constitution will allow application of the independent source exception to save a search conducted pursuant to a warrant based partially on information obtained during a prior warrantless search of a home. Given the unique procedural history of this case, we consider this issue anew without regard to the first appeal. We hold that the inevitable discovery doctrine does not apply to the facts of this case and that, under Article II, Section 10, the independent source doctrine is inapplicable when a search warrant is based partially on information obtained in violation of a defendant's constitutional rights. We reverse and remand. To the extent that it is inconsistent with our holding, Wagoner I is overruled.

FACTS AND PROCEDURAL HISTORY

{2} This is the second appeal in this case. The details of the search underlying this appeal are described in detail in Wagoner I. Based on a tip by a citizen-informant, Deputy Sheriff Scott Wehrman and Deputy Floyd Foutz went to Defendant's home to investigate possible drug dealing. As the deputies approached the residence, Deputy Wehrman smelled burning marijuana emanating from an open window. After Defendant answered the door, Deputy Wehrman repeatedly asked Defendant for consent to search the residence. Defendant refused, telling the deputy that he would need a warrant to conduct the search. Deputy Wehrman then told Defendant that he was going to secure the residence and called his supervisor, Sergeant Christensen, for advice. Sergeant Christensen told the deputy to conduct a sweep of the house to insure that no one was inside who could destroy evidence. During the warrantless sweep, Deputy Wehrman saw a scale and marijuana in plain view on top of a dresser. Deputy Wehrman did not seize the evidence at that time, but left the residence to secure a search warrant. In his application for the warrant, Wehrman swore to the following facts:

On April 27th, 1997 this affiant was at a local resturant [sic] and given information from a local school [b]us driver that there were drugs and possibly drug distribution going on from a residence located at 211 Hartman in Aztec NM. This bus driver said that for at least the past year she had witnessed numerous vehicular traffic in and out of that residence and in her opinion she believe[d] they were selling drugs out of that residence.

This affiant, at approximately 19:22, arrived at the residence located at 211 Hartman to investigate into the information given to him regarding occurrences [sic] at that residence. Immediately upon approaching the residence this affiant could smell the odor of marijuana. This affiant immediately knew the odor to be that of marijuana due to his training and experience regarding drugs and narcotics. The smell was coming from a large open window near the front door. This affiant knocked on the front door and heard the occupant moving around in the home and it took ... an extended length of time for the occupants to answer the door. The door to the residence was opened by a subject later identified as Tim Wagoner.

This affiant confronted Mr. Wagoner about the odor of marijuana. Mr. Wagoner denied possession or knowledge about the marijuana. While talking to Mr. Wagoner I noted that the odor of marijuana was stronger and ... the smell was coming from inside the residence. While I was speaking to Mr. Tim Wagoner his son c[a]me out of the residence. The son was discovered to be thirteen years of age. Mr. Tim Wagoner did indicate that the residence was his. This affiant asked for consent to search. This consent was denied.

This affiant did a cursory search of the residence to make sure that no other subjects were present that could destroy evidence and also for officer safety. A triple beam scale was seen in the far west bedroom along with obvious marijuana buds and stems. The residence was then secured so that search warrant could be obtained.

The magistrate judge issued the warrant, and Deputy Wehrman and other officers conducted a second search of Defendant's home. During the search pursuant to the warrant, officers uncovered over eight ounces of marijuana.

{3} Defendant was charged with the distribution of marijuana in a drug-free school zone, a third degree felony. See NMSA 1978, § 30-31-22(C)(1)(a) (1990). Defendant moved to suppress the evidence gathered pursuant to the warrant, arguing that no exigent circumstances justified the first warrantless sweep, and therefore the evidence obtained during the second search was "fruit of the poisonous tree" under the exclusionary rule. At the suppression hearing, the State argued that even if no exigent circumstances justified the sweep, the evidence was nonetheless admissible under the inevitable discovery doctrine. The district court refused to consider application of the doctrine and granted Defendant's motion to suppress. The State appealed and this Court affirmed the district court's ruling that no exigent circumstances justified the warrantless sweep. See Wagoner I, 1998-NMCA-124, ¶ 22. However, despite the fact that the issues to be considered on remand were not fully briefed by the parties, this Court remanded the case to the district court for consideration of whether the evidence was nonetheless admissible under the inevitable discovery doctrine. See id. ¶ 25.

{4} After remand, Defendant filed a second motion to suppress in which he argued that the inevitable discovery doctrine as defined by this Court was incompatible with Article II, Section 10 of the New Mexico Constitution. The district court refused to consider Defendant's arguments, however, ruling that the constitutional issue was beyond the scope of the remand.

{5} At the hearing on the second motion to suppress, Deputy Wehrman testified that he intended to secure a warrant prior to the sweep of Defendant's home. Sergeant Christensen testified that, at the time he told Deputy Wehrman to secure the residence, he intended to obtain a warrant. The magistrate judge who issued the warrant testified that she would have issued the warrant even if Deputy Wehrman had not informed her of the evidence discovered during the illegal sweep.

{6} The district court denied Defendant's motion to suppress, finding that the officers intended to secure the warrant prior to the illegal entry and that the magistrate would have issued the warrant regardless of the illegally obtained information. Defendant entered a conditional plea of guilty to possession of marijuana over eight ounces, reserving his right to appeal two issues: (1) whether the inevitable discovery doctrine is an exception to Article II, Section 10 and (2) whether, without the illegally obtained information, the affidavit provided sufficient information to establish probable cause. Because of our disposition of the case, we limit our discussion to the first issue.

DISCUSSION

I. Preservation

{7} Both sides argue that the other side failed to preserve issues on appeal. The State argues that Defendant failed to preserve his state constitutional issue because he did not raise it during the first appeal. Defendant argues that the State failed to preserve its argument that the evidence was admissible under the independent source exception, rather than inevitable discovery doctrine because it did not specifically name the independent source doctrine as the applicable exception until oral arguments in the current appeal. We are unpersuaded by both arguments and hold that the issues are properly before us. This case presents a unique factual and procedural history that militates against strict application of the rules of preservation and stare decisis.

{8} The distinction between the inevitable discovery and independent source doctrines has caused considerable confusion among courts and legal scholars. See United States v. Herrold, 962 F.2d 1131, 1138-39 (3d Cir. 1992); 3 Wayne R. La Fave, Criminal Procedure § 9.3(d), (e) (2d ed.1999). This confusion is understandable given that the inevitable discovery rule is an extrapolation from the independent source doctrine, and has been referred to as the "hypothetical independent source" rule. See Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ("The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered."). The confusion between the two doctrines and their potential applicability to the facts surrounding the search of Defendant's home was further compounded by the lack of a meaningful opportunity for the parties to develop their arguments prior to this appeal.

{9} At the first hearing on Defendant's motion to suppress, the district court refused to consider the inevitable discovery doctrine as an...