State v. Davis, 28,219.

• Citation: 150 N.M. 611,263 P.3d 953,2011 -NMCA- 102
• Decision Date: 04 October 2011
• Docket Number: No. 28,219.,28,219.
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Norman DAVIS, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 611

263 P.3d 953

2011 -NMCA- 102

STATE of New Mexico, Plaintiff–Appellee,

v.Norman DAVIS, Defendant–Appellant.

No. 28,219.

Court of Appeals of New Mexico.

Aug. 10, 2011.Certiorari Granted, Oct. 4, 2011, No. 33,203.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.Jacqueline L. Cooper, Acting Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

FRY, Judge.

{1} After being tipped off by a surveillance helicopter that there was vegetation spotted in Defendant's greenhouse and plants behind his house, at least six or seven armed law enforcement officers and at least five government vehicles entered Defendant's property as the helicopter hovered overhead. While officers spread out across the property, Officer William Merrell told Defendant that officers in the helicopter believed they had located marijuana at Defendant's residence. Officer Merrell asked Defendant for consent to search the property and, after some hesitation, Defendant said he would permit the search, whereupon officers discovered marijuana. When the district court denied his suppression motion, Defendant entered a conditional plea to one count of possession of a controlled substance. We conclude that the State failed to establish that Defendant's consent was voluntary and reverse the district court's denial of Defendant's suppression motion.

BACKGROUND

{2} The New Mexico State Police, with the assistance of the New Mexico National Guard, undertook an operation to identify marijuana “plantations” in Taos County, New Mexico. The operation utilized two Army National Guard helicopters for air surveillance and two ground teams composed of individuals from various law enforcement agencies. During the operation, a spotter in one of the helicopters directed a ground team to Defendant's property, stating that he observed “vegetation” in the greenhouse and “plants at the back of the house.” Defendant, who was seventy-two years old at the time, was at his residence when the ground team arrived. At least six or seven uniformed, armed officers, some carrying semi-automatic weapons, entered Defendant's property, disbursed, and formed a perimeter around part of the property. At least five vehicles from different law enforcement agencies and the National Guard also entered the property, while the helicopter hovered directly above.

{3} Officer Merrell recorded the encounter with Defendant that followed. Officer Merrell approached Defendant, identified himself, and said that “the helicopter [was] looking for marijuana plants and they believe they've located some at your residence.” He then asked Defendant for permission to search the residence. Defendant asked what would happen if he said no, and Officer Merrell responded, “Well, then we will secure the residence. That's up to you.” When Officer Merrell again asked Defendant for permission to search the property, Defendant said, “Sure.” Defendant then said, “Looks like they're searching anyway.” Officer Merrell replied, “No, they're just here to make sure—our biggest thing is safety. We're not going to be searching. If you're giving us permission to search, I'll get a form.” Officer Merrell then asked Defendant if there were marijuana plants in the greenhouse, and Defendant said that there were. When Officer Merrell produced a consent form and asked Defendant to sign it, Defendant said, “I'm not really thrilled about you searching my house” and “I don't know if I should do this; I don't know if it is in my best interest.” He then asked what would happen if he did not sign the consent form, and Officer Merrell responded that he “would go forth and try to execute a warrant through the district attorney's office.” Defendant ultimately signed the consent form.

{4} Defendant testified that his greenhouse is made of opaque material and that someone in a helicopter could not have seen the marijuana plants in the greenhouse. He also testified that when he first came out of his house to investigate the helicopter racket, he saw officers near buildings on his property who appeared to be “searching or looking in[to] those buildings.”

{5} Officers searched Defendant's property and found marijuana and drug paraphernalia. Defendant was indicted for possession of marijuana and possession of drug paraphernalia. Defendant filed a motion to suppress the evidence obtained from the search, arguing that the helicopter surveillance of his property violated the federal and state constitutions and that his consent was not voluntarily given. The district court denied Defendant's motion, finding that the helicopter flyover was “just barely permissible” and that Defendant's consent to the search was valid and not given under duress or coercion. Defendant then entered a conditional guilty plea, and this appeal followed.

{6} Although this case was submitted to this panel in 2009, it was discovered that a portion of the recording of the suppression hearing was missing. We ordered the parties to attempt to reconstruct the missing portion, and they submitted their stipulations in June 2011.

DISCUSSION

{7} In reviewing a district court's decision regarding a motion to suppress, we conduct a two-part analysis. “[W]e review any factual questions under a substantial evidence standard and we review the application of law to the facts de novo.” State v. Neal, 2007–NMSC–043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted).

{8} On appeal, Defendant argues that (1) the helicopter surveillance of his property violated the federal and state constitutions, (2) his consent to a search of his property was not voluntarily given and was not purged from the taint of a Fourth Amendment violation arising from the illegal air surveillance, and (3) the district court erroneously denied Defendant's motion for judicial view. Because the issue of Defendant's consent is dispositive here, we do not address the remaining issues.

Validity of Consent

{9} Defendant argues that the district court erroneously determined that his consent to a search of his property was voluntarily given under the Fourth Amendment. In a letter decision, the district court entered factual findings that essentially tracked the recording made by Officer Merrell, with one exception. The court found that Defendant admitted there was marijuana in his greenhouse before he gave oral consent to the search. In fact, according to the recording, the admission followed Defendant's consent. The court found that Defendant gave consent to the search, which it concluded was valid under the Fourth Amendment.

{10} On appeal, Defendant contends, as he did below, that his consent was not voluntarily given but the product of duress and coercion or acquiescence. Defendant argues that his consent was coerced because his property was swarmed by heavily armed police officers who were spread throughout his property and that a helicopter was flying directly overhead throughout his encounter with officers. Defendant also contends that he acquiesced in the search because he thought the officers were already searching his property and because he was feeling ill.

{11} Generally, in order to prove that a warrantless search or seizure under the Fourth Amendment was reasonable because it met the consent exception, the prosecution bears the burden of proving that, under the totality of the circumstances, “the consent given to search [was] voluntary and not a product of duress, coercion, or other vitiating factors.” State v. Paul T., 1999–NMSC–037, ¶ 28, 128 N.M. 360, 993 P.2d 74. The issue is a factual one that we review for substantial evidence. Id.; see State v. Chapman, 1999–NMCA–106, ¶ 19, 127 N.M. 721, 986 P.2d 1122. “Although we must view the evidence and inferences in the light most favorable to the prosecution, the presumption of the trial court's correctness does not replace the requirements of proof.” State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495, 499 (Ct.App.1987).

{12} On appeal, we undertake a three-tiered analysis in assessing the voluntariness of a consent to search. First, the consent must be unequivocal and specific; second, the consent must be given without duress or coercion; and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights. State v. Flores, 1996–NMCA–059, ¶ 20, 122 N.M. 84, 920 P.2d 1038. To determine the voluntariness of consent, we consider factors such as “the individual characteristics of the defendant, the circumstances of the detention, and the manner in which the police requested consent.” State v. Pierce, 2003–NMCA–117, ¶ 20, 134 N.M. 388, 77 P.3d 292. “Ultimately, the essential inquiry is whether [the d]efendant's will had been overborne.” Id.

{13} Applying the three-tiered analysis mentioned above to this case, we conclude that although Defendant gave specific and unequivocal consent to a search of his property, the consent was given under duress and coercive circumstances. Applying the presumption against a waiver of Defendant's constitutional rights, we conclude that the voluntariness of Defendant's consent was not established by substantial evidence and that the district court failed to consider the totality of circumstances. We explain.

Unequivocal and Specific Consent

{14} Initially, we conclude that substantial evidence supports the district court's findings that Defendant's oral and written consent to a search of his property was specific and unequivocal at the time it was given to Officer Merrell. Both Defendant and Officer Merrell testified at the suppression hearing that Defendant gave actual oral and written consent to the search. Defendant's written consent form was admitted as evidence at the hearing, and Officer Merrell's recording of the encounter confirms that Defendant orally consented to a search of his greenhouse and residence...