State v. Brusuelas

• Decision Date: 04 June 2009
• Docket Number: No. 27,107.,27,107.
• Citation: 2009 NMCA 111,219 P.3d 1
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Dana BRUSUELAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

219 P.3d 1

2009 NMCA 111

STATE of New Mexico, Plaintiff-Appellee, v. Dana BRUSUELAS, Defendant-Appellant.

No. 27,107.

Court of Appeals of New Mexico.

June 4, 2009.

Certiorari Denied, No. 31,701, September 2, 2009.

Gary K. King, Attorney General, Francine A. Chavez, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jennifer R. Albright, Albuquerque, NM, for Appellant.

OPINION

BUSTAMANTE, Judge.

{1} Dana Brusuelas (Defendant) appeals her conviction for possession of methamphetamine in violation of NMSA 1978, Section 30-31-23(D) (1990) (amended 2005). She raises two issues arising from the district court's denial of her motion to suppress evidence: (1) whether law enforcement officers may conduct warrantless searches of a probationer outside the direction of a probation officer or without the probationer's consent, and (2) whether the law enforcement agents had reasonable suspicion that Defendant was committing or had committed a crime and that her vehicle or purse contained evidence of the crime sufficient to support a warrantless search. We affirm Defendant's conviction.

BACKGROUND AND FACTS

{2} On January 6, 2005, law enforcement agents executed a search warrant at a home in Alamogordo, New Mexico, based on a tip that methamphetamine was for sale there. The warrant covered the home, curtilage, and vehicles at the home. Defendant, who was on probation as a result of an earlier conviction, happened to be present at the home as a visitor. One of the conditions of her probation (Paragraph 9) was that she would "submit to warrantless searches of [her] person, residence and vehicle at the discretion or direction of [her] probation officer or any law enforcement officer."

{3} Before searching the only vehicle at the scene, the agents determined that it belonged to Defendant. At some point, they also learned that she was on probation and unsuccessfully tried to reach her probation officer. Upon searching the vehicle, the agents found drug paraphernalia, which Defendant admitted was hers. Shortly after searching the vehicle, the agents searched Defendant's purse inside the home and discovered the methamphetamine on which her conviction was based. The district court denied Defendant's motion to suppress the evidence discovered in the searches.

{4} The district court made several relevant findings of fact and conclusions of law in connection with its denial of the motion to suppress. The court concluded that there was no probable cause to search Defendant's purse, the search of the purse was not a search incident to arrest, the searches of Defendant's purse and vehicle were not within the scope of the warrant being executed, Defendant was on the premises as a visitor, and the search of Defendant's purse went beyond what was arguably necessary to check for weapons. The court concluded, however, that "[P]aragraph 9 in the Judgment and Sentence was intended to apply to situations exactly like this one, in which Defendant is found at a premises where law enforcement agents are conducting a search for illegal drugs." Accordingly, the district court concluded that the searches of Defendant's vehicle and purse were reasonable and denied her motion to suppress.

PROBATION SEARCH BY LAW ENFORCEMENT OFFICER

Standard of Review

{5} "The standard of review for suppression rulings is whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party." State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). "We review factual determinations by the trial court under a substantial evidence standard" and legal questions de novo. State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836. "[A]ll reasonable inferences in support of the [district] court's decision will be indulged in, and all inferences or evidence to the contrary will be disregarded." Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (alterations in original) (internal quotation marks and citation omitted). Conflicts in the evidence, even within the testimony of a witness, are to be resolved by the fact finder at trial. Id.

{6} "We review whether a court's imposition of a condition of probation is lawful under an abuse of discretion standard." State v. Baca, 2004-NMCA-049, ¶ 13, 135 N.M. 490, 90 P.3d 509. "The court has broad discretion to effect rehabilitation and may impose conditions [of probation] designed to protect the public against the commission of other offenses during the term, and which have as their objective the deterrence of future misconduct." State v. Garcia, 2005-NMCA-065, ¶ 11, 137 N.M. 583, 113 P.3d 406 (internal quotation marks and citation omitted).

Discussion

{7} As an initial matter, the State argues that Defendant did not preserve the issue of whether Paragraph 9 was constitutionally permissible because she did not invoke a ruling on the question in district court as required by Rule 12-216(A) NMRA. We conclude that the issue was adequately preserved. First, Defendant's motion to suppress evidence makes several assertions that implicitly argue that the "any law enforcement officer" provision in Paragraph 9 would be enforceable only if it were interpreted as requiring that certain circumstances be present, such as exigent circumstances, probable cause, or a need for an inventory search, and that, in the absence of such circumstances, the provision was not enforceable. Second, as argued in Defendant's reply brief, if Paragraph 9 includes an unconstitutional requirement, it amounted to an illegal sentence. A challenge to an illegal sentence raises a jurisdictional question. See, e.g., State v. Shay, 2004-NMCA-077, ¶ 6, 136 N.M. 8, 94 P.3d 8. This Court may consider jurisdictional questions even if no ruling on the issue was fairly invoked in district court. Rule 12-216(B). Accordingly, we proceed to the merits of Defendant's argument.

{8} In her motion to suppress evidence, Defendant contended that her rights were violated under the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Defendant does not argue that the New Mexico Constitution should be interpreted differently from the United States Constitution in the context of this appeal. "Thus, we assume without deciding that both constitutions afford equal protection to individuals against unreasonable seizures in this context, and we analyze the constitutionality of the seizure under one uniform standard." State v. Ochoa, 2004-NMSC-023, ¶ 6, 135 N.M. 781, 93 P.3d 1286.

{9} "The federal and New Mexico Constitutions are not a guarantee against all searches and seizures, only unreasonable ones." State v. Rowell, 2008-NMSC-041, ¶ 29, 144 N.M. 371, 188 P.3d 95. "Warrantless probation searches and seizures must comply with the reasonableness components of the Fourth Amendment and of Article II, Section 10, of the New Mexico Constitution." State v. Ponce, 2004-NMCA-137, ¶ 16, 136 N.M. 614, 103 P.3d 54. "`[T]he reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Baca, 2004-NMCA-049, ¶ 26, 135 N.M. 490, 90 P.3d 509 (quoting United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). "A search and seizure conducted without a warrant is unreasonable unless it is shown to fall within one of the exceptions to the warrant requirement." State v. Diaz, 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4. "A valid consensual search has been acknowledged as an exception to the warrant requirement." Id. ¶ 9.

{10} A condition of probation must be "reasonably related to [the probationer's] rehabilitation." NMSA 1978, § 31-20-6(F) (2007). "To be reasonably related, the probation condition must be relevant to the offense for which probation was granted." State v. Gardner, 95 N.M. 171, 174, 619 P.2d 847, 850 (Ct.App.1980).

{11} We have not previously considered whether a condition of probation allowing warrantless searches by law enforcement agents without the participation of probation officers is inherently unreasonable and thus impermissible. In State v. Gallagher, 100 N.M. 697, 699, 675 P.2d 429, 431 (Ct.App. 1984), we specifically declined to reach the question. In Gallagher, which concerned consent to searches by a probation officer, we stated, "[w]e do not reach the question in this case whether probationary search conditions may be extended to allow searches by any law enforcement officials." Id. In the present case, although we again decline to establish a general rule, we conclude that the searches of Defendant's vehicle and purse were reasonable under existing law.

{12} Citing Gardner, Defendant argues that warrantless searches of probationers must be conducted by or under the direction of probation officers, unless the probationer consents to the search. In Defendant's case, the search was conducted by agents of the Otero County Narcotics Enforcement Unit and the Alamogordo Department of Public Safety. We do not interpret Gardner as narrowly as Defendant. In Gardner, a condition of the defendant's probation was that he "shall submit to a search of his car, person or residence at anytime upon request of his probation officer." 95 N.M. at 172, 619 P.2d at 848. Thus, language in Gardner suggesting that the search by a law enforcement officer was proper "because it was requested by the probation officer" relates to the fact that the defendant there, unlike Defendant here, had not agreed to be searched by any law enforcement officer. Id. at 175, 619 P.2d at 851.

{13} In State v. Marquart, 1997-NMCA-090, 123 N.M. 809, 945 P.2d 1027, where the central issue was whether the exclusionary rule applied in probation revocation hearings, the defendant was searched by a law enforcement officer in the course of...