State v. Flores

• Decision Date: 27 February 2008
• Docket Number: No. 27,067.,27,067.
• Citation: 2008 NMCA 074,185 P.3d 1067
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joel A. FLORES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

185 P.3d 1067

2008 NMCA 074

STATE of New Mexico, Plaintiff-Appellee, v. Joel A. FLORES, Defendant-Appellant.

No. 27,067.

Court of Appeals of New Mexico.

February 27, 2008.

Certiorari Denied, No. 31,005, April 23, 2008.

Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.

Fredlund & Bryan, Jon C. Fredlund, Hobbs, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} The question presented in this case is whether article II, section 10 of the New Mexico Constitution requires a police officer who is engaged in an investigative procedure commonly called a "knock and talk" to first advise a person of his right to deny consent to search before the police officer can obtain a valid consent to search the person's home. We conclude that such advice is not constitutionally required and affirm the order of the district court denying Defendant's motion to suppress.

FACTS AND BACKGROUND

{2} Defendant entered a conditional plea to drug charges, reserving the right to appeal the district court's denial of his motion to suppress. We summarize the evidence from the suppression hearing in the light most favorable to the district court order. See State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785 (stating that in reviewing a district court ruling on a motion to suppress, we view the evidence in the light most favorable to the prevailing party).

{3} Agents of the Pecos Valley Drug Task Force arrested an individual for trafficking cocaine. That person identified Defendant as his source of cocaine, and the agents decided to contact Defendant. Agents Martinez and Cisneros went to Defendant's home dressed in plain clothes with their badges on chains around their necks and their guns holstered at their sides. Agent Martinez knocked on the front door, and when Defendant's wife answered, the officers identified themselves and asked if they could speak with Defendant. Defendant's wife answered, "one second," and went to the bedroom, where Defendant was sleeping. While waiting outside the front door, Agent Martinez saw two women sitting on the living room couch, and one of them invited the agents inside the house. The agents then went into the house and waited inside the front door. Defendant came out of his bedroom and recognized Agent Martinez. Defendant had known Agent Martinez for some time and knew he was a police officer. The agents asked Defendant if they could speak to him outside the house. Defendant agreed and went outside to his front yard with the two agents. Defendant was asked, not ordered, to go outside, and once outside, the conversation was conducted in normal, casual speaking tones.

{4} Outside, Agent Martinez advised Defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he agreed to speak with the agents. By this time, up to four additional officers had arrived, but they remained in the yard and did not participate in questioning Defendant. Defendant was told that the officers had come to his house because his name had been provided to them as someone who was selling drugs in the area. Defendant was asked if he had any drugs, and Defendant admitted he had an "8-ball" of cocaine inside his home. Asked if he would agree to show the officers where the drugs were located inside the house, Defendant agreed and added that he also had a gun in his bedroom. Defendant then took the two agents inside his home and while he showed one agent where the cocaine and a digital scale were located, the other agent retrieved the gun from the bedroom. Defendant was then placed under arrest and transported to the detention center.

{5} Agent Martinez testified that the procedure used in this case was a police practice he termed a "knock and talk," in which police go to a suspect's home in an attempt to gain his cooperation. In this case, that meant seeking consent to search Defendant's home. Agent Martinez said that the technique is usually used when the agents do not believe they have sufficient information to establish probable cause for a search warrant.

{6} Defendant makes two arguments on appeal. First, he argues that because the initial entry into his home was without a warrant and without a valid consent, all of his statements and all evidence obtained following that initial entry must be suppressed as fruit of the poisonous tree. Second, he argues that due to the inherently coercive nature of the "knock and talk" investigative procedure, article II, section 10 of the New Mexico Constitution required the police officers to advise him of his right to refuse consent. Lacking this advice, he asserts that the consent he gave to search his home was invalid and that all evidence discovered in the search of his home must be suppressed. Both arguments were raised in Defendant's motion to suppress, which the district court denied.

DISCUSSION

{7} We summarily dispose of Defendant's first argument. Defendant argues that all evidence discovered after the initial entry of the agents into his home must be suppressed as fruit of the poisonous tree because the agents did not have the consent of a person having actual authority to permit them to enter and it was therefore unconstitutional. However, this argument overlooks the finding of the district court that Agents Martinez and Cisneros simply entered Defendant's home and stood by the front door, waiting, until Defendant appeared and agreed to speak to them outside the house. See State v. Rector, 2005-NMCA-014, ¶ 4, 136 N.M. 788, 105 P.3d 341 (stating that in reviewing a district court ruling on a motion to suppress, we defer to the district court's findings of fact to the extent that they are supported by substantial evidence, and we then review de novo whether the district court correctly applied the law to those facts). Thus, there can be no claim that the agents searched the house or Defendant when they first entered the house. With no search, there can be no claim of an unlawful search. In State v. Burdex, 100 N.M. 197, 202-03, 668 P.2d 313, 318-19 (Ct.App.1983), police officers had entered the defendant's apartment the day before they executed a search warrant for the premises, but the record was devoid of any showing that the officers conducted a search of the premises before executing the warrant or that the warrant was predicated upon observations made during the first entry. We therefore concluded there was no constitutional violation because "there was no evidence of a search prior to obtaining the warrant." Id. at 203, 668 P.2d at 319. We reach the same conclusion in this case. Since the agents neither sought nor obtained any evidence as a result of their initial entry into Defendant's home, there is no basis to apply the exclusionary rule.

{8} We thus turn to Defendant's second argument regarding Defendant's state constitutional challenge. Defendant acknowledges that the "knock and talk" procedure is valid under the United States Constitution. See State v. Nyce, 2006-NMSC-026, ¶ 23, 139 N.M. 647, 137 P.3d 587 (noting that the "knock and talk" investigative technique is consistent with the Fourth Amendment); see also United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir.2006) (noting cases from various federal circuits that conclude that the knock and talk procedure does not violate the Fourth Amendment). However, Defendant asks us to hold that under article II, section 10, when a police officer uses a "knock and talk" investigative procedure, he must first advise a person of his right to deny consent to search in order to obtain a valid consent to search the person's home. Defendant asserts that our state constitution requires such advice because a "knock and talk" is inherently coercive. In other words, Defendant asks us to hold that consent to search one's house is invalid per se under the New Mexico Constitution unless an accused is first told that he has a right to withhold consent. We decline to adopt such a rule.

{9} In addressing Defendant's argument that our state constitution should afford greater protection than the Federal Constitution, we follow the interstitial analysis adopted in State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. Pursuant to Gomez, our inquiry is (1) whether the right being asserted is protected under the Federal Constitution, (2) whether the state constitutional claim has been preserved, and (3) whether there exists one of three reasons for diverging from federal precedent. Id. ¶ 19; see State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225. If the Federal Constitution affords a defendant the protection he seeks, we do not examine his state constitutional claim. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1; see Cardenas-Alvarez, 2001-NMSC-017, ¶ 7, 130 N.M. 386, 25 P.3d 225. As we have already noted, the "knock and talk" procedure does not violate the Fourth Amendment, and Defendant does not argue to the contrary.

{10} We therefore proceed to the second question, namely, whether Defendant preserved his claim that article II, section 10 of the state constitution affords greater protection than the federal constitution. Article II, section 10 has been construed in numerous instances as providing broader protections than the Fourth Amendment. See State v. Granville, 2006-NMCA-098, ¶ 14, 140 N.M. 345, 142 P.3d 933 (collecting cases in which article II, section 10 has been construed as providing broader protections than the Fourth Amendment), cert. quashed, 2007-NMCERT-012, 143 N.M. 214, 175 P.3d 308; State v. Baca, 2004-NMCA-049, ¶ 29 n. 2, 135 N.M. 490, 90 P.3d 509 (citing cases under article II, section 10 providing more protective state constitutional relief than that provided by the federal constitution). Defendant cited to article II, section 10 in his motion to suppress and the facts necessary to decide the question were subsequently developed in the evidentiary hearing....