State v. Armendariz–Nunez

• Decision Date: 23 March 2012
• Docket Number: No. 30,434.,30,434.
• Citation: 2012 -NMCA- 041,276 P.3d 963
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Jose Antonio ARMENDARIZ–NUNEZ, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

276 P.3d 963

2012 -NMCA- 041

STATE of New Mexico, Plaintiff–Appellee,

v.Jose Antonio ARMENDARIZ–NUNEZ, Defendant–Appellant.

No. 30,434.

Court of Appeals of New Mexico.

Feb. 9, 2012.

Certiorari Denied, March 23, 2012, No. 33,482.

Gary K. King, Attorney General, Olga Serafimova, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

KENNEDY, Judge.

{1} Jose Antonio Armendariz–Nunez (Defendant) was convicted by a jury of possession of cocaine, possession of marijuana, no proof of insurance, and no evidence of registration stemming from a driving while impaired (DWI) stop, which occurred on June 6, 2009. In this appeal, Defendant challenges only his conviction for possession of cocaine. Defendant contends that (1) the district court erred in denying his motion to suppress the physical evidence found on his person because the search violated the United States Constitution and New Mexico Constitution, and (2) there was insufficient evidence to support his conviction. For the reasons that follow, we find no error and affirm.

I. BACKGROUND

{2} Defendant was pulled over on June 6, 2009, after he almost struck the vehicle of Deputy Eduardo Flores of the Doña Ana County Sheriff's Office. Upon approaching Defendant, the deputy detected an odor of alcohol on Defendant's breath and asked for a DWI investigator to be sent to the scene. Deputy Larry Bleimeyer arrived, conducted field sobriety tests, concluded that Defendant was under the influence, and placed him under arrest for DWI. The deputy testified that his determination that Defendant was under the influence was based upon “the odor of alcohol coming from [Defendant], ... [b]loodshot watery eyes, slurred speech, and the [results of] standardized field sobriety tests.”

{3} After Defendant was placed under arrest, Deputy Bleimeyer conducted a search incident to arrest. The deputy testified that he found a dollar bill in Defendant's right pocket that was folded in a particular and unique way. In his experience, the dollar bill was folded in a way that he recognized as packaging for cocaine. The deputy asked if the dollar bill contained cocaine, and Defendant nodded “yes.” The deputy then opened the folded dollar bill, exposing a white, powdery substance that was later confirmed to be cocaine. Narcotics Agent Joseph Misquez, who field tested the powder, also testified at trial and confirmed that dollar bills are often used as a way to conceal and later snort cocaine after it is made into a line.

{4} In district court, Defendant filed a motion to suppress his statements made to the deputy and the cocaine found on Defendant's person. The district court excluded Defendant's statement regarding the contents of the dollar bill because he had not yet been given his Miranda rights, but admitted the physical evidence found on him. After a jury trial, Defendant was found guilty of possession of a controlled substance. This appeal followed.

II. DISCUSSIONA. Defendant's Motion to Suppress

{5} Under both the United States and New Mexico Constitutions, Defendant argues that the district court erred in refusing to suppress the cocaine found on him. The State concedes that Defendant preserved his Fourth Amendment claim by filing and obtaining a ruling by the district court on his motion to suppress evidence. However, the State argues that Defendant's claim under the New Mexico Constitution should be rejected because he failed to show a compelling reason that Article II, Section 10 should afford more protection than the Fourth Amendment, pursuant to State v. Gomez, 1997–NMSC–006, ¶¶ 19–22, 122 N.M. 777, 932 P.2d 1. We interpret the State's argument as one of preservation. “To preserve a question for review[,] it must appear that a ruling or decision by the district court was fairly invoked[.]” Rule 12–216(A) NMRA.

We require parties to assert the legal principle upon which their claims are based and to develop the facts in the trial court primarily for two reasons: (1) to alert the trial court to a claim of error so that it has an opportunity to correct any mistake, and (2) to give the opposing party a fair opportunity to respond and show why the court should rule against the objector.

Gomez, 1997–NMSC–006, ¶ 29, 122 N.M. 777, 932 P.2d 1. Where a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in the trial court. Id. ¶ 22. Where the provision has never before been addressed under our interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection and suggest reasons why “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Id. ¶ 19.

{6} Here, Defendant was required to meet the less stringent of Gomez's preservation requirements because “a plethora of precedent already interprets Article II, Section 10 more expansively than the Fourth Amendment.” State v. Leyva, 2011–NMSC–009, ¶ 50, 149 N.M. 435, 250 P.3d 861 (quoting State v. Garcia, 2009–NMSC–046, ¶ 52, 147 N.M. 134, 217 P.3d 1032 (Bosson, J., specially concurring)). Defendant met this requirement by citing both the Fourth Amendment and Article II, Section 10 and by stating that the New Mexico Constitution provides him with greater protections from unreasonable searches and seizures. Defendant's Article II, Section 10 argument was preserved, and we therefore analyze his claim under both the United States and New Mexico Constitutions.

The review of a denial of a motion to suppress presents a mixed question of fact and law. We review the factual basis of the court's ruling for substantial evidence, deferring to the district court's view of the evidence. When, as here, there are no findings of fact and conclusions of law, we draw all inferences and indulge all presumptions in favor of the district court's ruling. Our review of the legal conclusions of the district court ... is de novo.

State v. Williams, 2011–NMSC–026, ¶ 8, 149 N.M. 729, 255 P.3d 307 (internal quotation marks and citations omitted).

{7} “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.” State v. Gutierrez, 2004–NMCA–081, ¶ 6, 136 N.M. 18, 94 P.3d 18. “The Fourth Amendment requires all searches and seizures be executed in a reasonable manner. Reasonableness depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.” Williams, 2011–NMSC–026, ¶ 10, 149 N.M. 729, 255 P.3d 307 (internal quotation marks and citations omitted).

{8} Under the New Mexico Constitution, “[a] search incident to a lawful arrest may fall under an exception to the warrant requirement ... if the State meets its burden of proving that the search occurs as a contemporaneous incident to the lawful arrest of the defendant and is confined to the area within the defendant's immediate control.” State v. Arredondo, 1997–NMCA–081, ¶ 27, 123 N.M. 628, 944 P.2d 276,overruled on other grounds by State v. Steinzig, 1999–NMCA–107, 127 N.M. 752, 987 P.2d 409. “A search incident to arrest is a reasonable warrantless search because courts have long acknowledged that the societal interest in preventing the destruction of evidence and protecting the arresting officer outweighs the minimal intrusion of a pat-down.” Williams, 2011–NMSC–026, ¶ 13, 149 N.M. 729, 255 P.3d 307;see State v. Rowell, 2008–NMSC–041, ¶ 13, 144 N.M. 371, 188 P.3d 95.

{9} Here, Defendant does not challenge the arrest, nor does he challenge whether the dollar bill found in his pocket was within his immediate control. Instead, he challenges the search and claims that the dollar bill was not found pursuant to a valid search incident to arrest. We read Defendant's argument as a challenge to the reasonableness of the search.

{10} “Our search incident to arrest exception is a rule of reasonableness anchored in the specific circumstances facing an officer.” Rowell, 2008–NMSC–041, ¶ 24, 144 N.M. 371, 188 P.3d 95. Our court has “eschewed bright-line rules [and] instead emphasiz[ed] the fact-specific nature of the reasonableness inquiry.” Arredondo, 1997–NMCA–081, ¶ 28, 123 N.M. 628, 944 P.2d 276 (alterations in original) (internal quotation marks and citations omitted). Once probable cause to arrest is established, reasonableness is the governing inquiry. See Rowell, 2008–NMSC–041, ¶ 24, 144 N.M. 371, 188 P.3d 95;State v. Burgholzer, 185 Or.App. 254, 59 P.3d 582, 585 (2002). (“We do not agree that the search of a particular place, or the opening of a container, during a search incident to a lawful arrest must be supported by probable cause. Rather, ... once an officer has probable cause to support the arrest, the proper inquiry is the reasonableness of the time, scope, and intensity of the search for evidence of the crime for which the defendant is being arrested.”).

{11} Our Supreme Court has recognized that “officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” State v. Neal, 2007–NMSC–043, ¶ 21, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted). “Courts defer to the training and experience of the officer when determining whether particularized and objective indicia of criminal activity existed.” Leyva, 2011–NMSC–009, ¶ 23, 149 N.M. 435, 250 P.3d 861 (internal quotation marks and citation omitted). We therefore examine the evolving circumstances facing the officer and consider whether “the officer's...