State v. Clark

• Decision Date: 11 September 1986
• Docket Number: No. 9096,9096
• Citation: 105 N.M. 10,727 P.2d 949,1986 NMCA 95
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ricky CLARK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 949

727 P.2d 949

105 N.M. 10

STATE of New Mexico, Plaintiff-Appellee, v. Ricky CLARK, Defendant-Appellant.

No. 9096.

Court of Appeals of New Mexico.

Sept. 11, 1986.

Certiorari Denied Oct. 21, 1986.

[105 NM 11] Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Lynne Fagan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

GARCIA, Judge.

Prior to trial on charges of receipt of stolen property in violation of NMSA 1978 Section 30-16-11 (Repl.Pamp.1984), defendant sought to suppress evidence which was seized from his rented mobile home after his landlady had consented to a warrantless search. The trial court denied the motion and defendant was ultimately convicted of the crime. He takes a timely appeal. In addition to his unlawful search contention, defendant asserts a violation of NMSA 1978, Crim.P. Rule 27 (Repl.1985), as well as instances of prosecutorial misconduct and cumulative error. We affirm defendant's conviction.

ISSUES

(1) Whether the court erred in refusing to suppress evidence obtained during the search of a mobile home after defendant's landlady consented to the search;

(2) Whether the court erred in refusing to declare a mistrial after the state cross-examined defendant about an uncharged crime, and did not disclose to defense counsel either the documentary information the state possessed about the uncharged crime or its intent to cross-examine defendant about it;

(3) Whether the prosecutor engaged in misconduct during closing argument; and

(4) Whether cumulative error was present.

Another issue in defendant's docketing statement, which was not briefed, is abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985).

BACKGROUND

Police officers received information that stolen goods could be located inside defendant's mobile home. Without first securing a search warrant, an officer went to the trailer and found defendant's landlady already there. Rent was unpaid, an eviction notice had been posted, and the landlady was on the premises to post a second eviction notice. She had heard defendant was incarcerated in another town, and had been told by defendant's sister to remove defendant's possessions. The landlady testified that she intended to move defendant's things that day. She gave the officer permission to enter and search. Incriminating evidence was seized and subsequently admitted at defendant's trial.

CONSENT OF OWNER

Defendant argues that the landlady's consent was invalid because a landlord cannot consent to a warrantless search of a tenant's possessions. Under the facts of this case, we disagree.

Any discussion of the validity of the landlady's consent to search defendant's possessions must first consider whether defendant had any legitimate expectation of privacy in the premises or possessions searched. See Justice Harlan's concurrence in Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967); State v. Donaldson, 100 N.M. 111, 666 P.2d 1258 (Ct.App.1983).

The fourth amendment's requirement of a legitimate expectation of privacy on the part of one who seeks to suppress evidence involves two questions: (1) has the individual by his conduct exhibited an actual (subjective) expectation of privacy; and (2) is this individual's subjective expectation one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); State v. Donaldson.

In answer to the second question, an individual's expectation of privacy in his dwelling place is ordinarily afforded the most stringent fourth amendment protection. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); see also State v. Fisher, 141 Ariz. 227, 686 P.2d 750 (1984) (En Banc). The fact that an individual leases or rents his dwelling place does not affect the fourth amendment's protection of a tenant's legitimate expectation of privacy; nor can the vagaries of state property law determine the parameters of that expectation. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

However, when an individual's actions indicate an intent to abandon his dwelling or possessions, his conduct no longer evinces a privacy expectation and the fourth amendment will not protect him against a warrantless search. See United States v. Robinson, 430 F.2d 1141 (6th Cir.1970). Abandonment is an ultimate fact or conclusion based upon a combination of acts and intent. See People v. Morrison, 196 Colo. 319, 583 P.2d 924 (1978) (En Banc) (when defendant had left state and all clothes, bedding and personal effects were removed from apartment and all that remained was trash and defendant never claimed any items left in apartment, his actions unequivocably indicated abandonment). The intent to abandon will not be presumed and must be affirmatively shown by the party relying on abandonment. The showing must be by clear, unequivocal and decisive evidence. United States v. Robinson; Peyton v. United States, 275 A.2d 229 (D.C.App.1971).

In this case the state relies on a theory of abandonment to validate the officer's warrantless search, asserting that because defendant's interest in his property was terminated by his abandonment, the landlady, as owner of the mobile home, could give permission for a warrantless search. See Commonwealth v. Jackson, 384 Mass. 572, 428 N.E.2d 289 (1981).

We agree with the state that an individual's abandonment of his leased premises will give rise to an owner's ability to consent to a search of those premises. Upon a review of the whole record, we find support for a finding of intentional abandonment in this case. Id.

The evidence offered in support of abandonment includes: the fact that the landlady had heard that defendant was in jail; that defendant was behind in his rent; that the landlady had previously placed an eviction notice on defendant's trailer which was "missing" on the day of the search; that the landlady, because of nonpayment, intended to enter the trailer and move defendant's things out that day; and that the landlady had made arrangements with defendant's sister to remove defendant's possessions.

The state admits that mere nonpayment of rent is not, in itself, evidence of abandonment. State v. Hodges, 287 N.W.2d 413 (Minn.1979). In addition, the landlady's actions in posting eviction notices is not dispositive. The actual rights and liabilities of defendant under New Mexico property law do not control his ability to assert his fourth amendment right to privacy. See State v. Johnson, 108 Idaho 619, 701 P.2d 239 (Ct.App.1985).

The fact of defendant's incarceration is, similarly, not a factor indicating an intent to abandon. To the contrary, defendant's incarceration is the type of involuntary absence which triggers the imposition of "an especially heavy burden" on the government to show abandonment. United States v. Robinson. In Robinson, a case quite factually similar to this one, defendant was incarcerated at the time of the search. He had been absent from his apartment for over a month without paying any rent. A friend of defendant's wife (defendant was not living with his wife) had accompanied the wife to defendant's apartment and removed some of defendant's belongings sometime before the search. In overruling the trial court's finding of abandonment, the Sixth Circuit Court noted that the act of removing defendant's belongings and the building manager's belief that defendant had abandoned the apartment could not be considered as evidence of defendant's intent to abandon the apartment. Cf. Baggett v. State, 254 Ark. 553, 494 S.W.2d 717 (1973) (abandonment found where although the rent had been paid on the day the search was conducted, accused had quit his job, told several people he was going to another city, turned his key over to owner and taken all his personal belongings with him).

There was, however, testimony from which the court could determine that defendant intended to abandon the trailer. The landlady testified regarding her contacts with defendant's sister, and about a conversation concerning the removal and storage of defendant's belongings. The landlady told the sister she could not store defendant's possessions, but would move them "outside."

In viewing the landlady's testimony in a light most favorable to the court's findings, there is a fair inference that defendant communicated to his sister his desire that she arrange for the removal of his possessions. State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983). This evidence, when coupled with the nonpayment of rent and the landlady's previous postings of an eviction notice, is substantial evidence which supports the court's finding of abandonment. Cf. People v. Brewer, 690 P.2d 860 (Colo.1984).

From the facts before us, we conclude that the state met its heavy burden of showing abandonment by substantial evidence. Our inquiry need not, however, end here. While we believe that the validity of the landlady's consent to enter the premises can be predicated upon defendant's abandonment of the trailer, we can also affirm the trial court's admission of the evidence seized therein on another ground.

Warrantless searches are valid if performed after valid consent is given by someone who possesses common authority or other sufficient relationship to the premises or effects sought to be inspected. See State v. Larson, 94 N.M. 795, 617 P.2d 1310 (1980); Ex parte Hilley, 484 So.2d 485 (Ala.1985) (one who subjects his property to the exclusive or joint control of another assumes risk that consent will be granted by other to search of property); State v. Carter, 485 So.2d 260 (La.App. 3 Cir.1986).

There is a fair inference from the evidence before the court that defendant had arranged, through...