State v. Gutierrez
| Decision Date | 03 December 2004 |
| Docket Number | No. 24,188.,24,188. |
| Citation | 136 N.M. 779,105 P.3d 332 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Tommy GUTIERREZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Certiorari Denied, No. 29,005, January 24, 2005.
{1} On motion for rehearing, the opinion filed October 28, 2004, is withdrawn, and the following opinion is substituted in its place. The motion for rehearing is otherwise denied.
{2} At what point in criminal proceedings does a defendant waive objection to the constitutionality of a search that produced evidence that is offered against him? Defendant postponed objecting to evidence of the cocaine and methamphetamine he possessed until after testimony was received concerning the search, the drugs' discovery, their transport, and the analysis confirming their composition and weight. When the State sought the drugs' admission into evidence, Defendant objected to their admission, alleging that they were the fruits of an unlawful search. The motion was denied, and Defendant was convicted on two counts of possession of drugs. Defendant now appeals. Defendant also appeals the enhancement of his sentence on the grounds that the Habitual Offender Act prohibits the use of his prior convictions more than ten years old. We determine that the search was illegal, and the evidence obtained should have been suppressed. Because of this determination, we do not reach the sentence enhancement issue. We reverse and remand to the district court for appropriate proceedings.
{3} Defendant was charged with one count of trafficking cocaine and one count of possession of methamphetamine. At trial, the State's first witness, Deputy Gutierrez (no relation to Defendant), testified that on May 28, 2002, the Otero County Sheriff's department responded to a call regarding a drug overdose in La Luz, New Mexico. Upon arriving, he and another deputy found Defendant unconscious on the floor. Defendant's stepdaughter told the deputies that Defendant had overdosed on cocaine. An ambulance arrived at Defendant's residence soon thereafter to transport Defendant to the hospital. After the ambulance left, the two deputies talked for awhile at the scene. Deputy Gutierrez decided to go to the hospital, although no one asked him to do so. Deputy Gutierrez testified that in overdose situations, his concern is the safety of the victim.
{4} Deputy Gutierrez testified that at the hospital, he located Defendant in a treatment bay in the emergency room and observed while Defendant, still unconscious, received treatment from the medical personnel at the hospital. Deputy Gutierrez backed out of the bay for a few minutes to give Defendant some privacy, but soon looked back in the bay, where he saw Defendant's clothes lying on the floor. Without any request for (1) assistance from hospital personnel, (2) consent from Defendant, who was still unconscious, or (3) a search warrant, Deputy Gutierrez picked up Defendant's pants, searched the pockets, and found two plastic bags in the pockets. Deputy Gutierrez testified that he "didn't expect to find anything" when he searched Defendant's pants at the hospital because when he first saw Defendant at Defendant's residence, it appeared that Defendant's pants had already been searched because the pocket on the right side was already pulled out. However, he searched the pants at the hospital "[j]ust to see, maybe if there was just a little something, just enough to test to see if there was something to confirm what it was that [Defendant] had consumed." When asked, Deputy Gutierrez expressed that he had had some concern that Defendant's clothing might be taken away by Defendant's family. He said that he was not looking for criminal evidence; he was just helping out and did not expect to find anything. Deputy Gutierrez stated that Defendant looked bad and he didn't know if Defendant would "make it."
{5} Deputy Gutierrez believed the contents of the bags he retrieved from Defendant's pants to be controlled substances. Deputy Gutierrez took the bags to the Sheriff's Department where he field-tested the drugs with positive results for the presence of illegal controlled substances. He called Defendant's doctor at the hospital, relayed the information about the drugs, and put the drugs in the department's evidence locker. The drugs were later tested by a crime laboratory and found to be approximately eight grams of cocaine and little more than one and a half grams of methamphetamine.
{6} At trial, prior to the opening statements, defense counsel informed the district court that it was his intention to object to the admission of the drugs at the time the State would move to admit them as evidence. Counsel stated that the objection would be "for [the] search and seizure [of the drugs], so basically, it's a motion to suppress in the middle of the trial, just to let you know that's what I plan to do." The State did not object or respond in any way. Trial commenced, and in opening statement, defense counsel left no doubt that Defendant had possessed the drugs but stated to the jury that the defense theory of the case would be that the possession was for personal use, not for trafficking, as charged in Count 1.
{7} The trial began and Deputy Gutierrez was called to the stand. He testified as previously discussed. The State then called a chemist, who testified as to the composition and weight of the drugs taken by Deputy Gutierrez. The State's next witness was a narcotics agent who discussed the drugs' chain of custody. At the end of his testimony, the State moved for admission of the drugs into evidence. The defense objected as promised and moved to suppress the evidence on the grounds that the warrantless search of Defendant's pants was not justified under any exception to the warrant requirement. The State argued that the situation presented an exigent circumstance of imminent danger to Defendant's life, that Deputy Gutierrez was acting in his capacity as a community caretaker, and that no warrant was needed. Although defense counsel responded that once Defendant arrived at the hospital the exigency disappeared, and the situation did not fit within the community caretaking exception, the district court denied the motion to suppress, ruling that the search was justified under the community caretaker standard. Specifically, the district court found that Deputy Gutierrez had considered that there was some merit in knowing the substance that Defendant had taken, and that the deputy did not believe he would find any substantial amount of controlled substances beside residue in his search because it appeared Defendant's pants had already been searched. As a result, the district court found that Deputy Gutierrez was acting out of concern for Defendant's well-being and not under a desire to obtain evidence for use in a prosecution.
{8} The trial continued, and Defendant testified that he possessed and used the drugs, but that he did not deal drugs. Defendant was convicted of two counts of simple possession of controlled substances. The jury did not find Defendant guilty of trafficking.
{9} Resolution of the issue presented concerning the suppression of evidence requires that we determine whether the actions of Deputy Gutierrez implicate a constitutional right or if those actions fall within an exception to that right. State v. Nemeth, 2001-NMCA-029, ¶ 20, 130 N.M. 261, 23 P.3d 936. Reviewing motions to suppress involves an analysis of both law and fact. State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18. The denial of a motion to suppress requires us to determine if the law was correctly applied to the facts. Id. We give deference to the factual findings of the lower court. State v. Soto, 2001-NMCA-098, ¶ 6, 131 N.M. 299, 35 P.3d 304. A "denial of a motion to suppress will not be disturbed if it is supported by substantial evidence unless it also appears that the ruling was incorrectly applied to the facts." State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. "The trial court must resolve conflicts in the evidence, but [w]hether that evidence complies with constitutional requirements is. . . a legal question reviewed by the appellate court on a de novo basis." Soto, 2001-NMCA-098, ¶ 6, 131 N.M. 299, 35 P.3d 304 (internal quotation marks and citation omitted and alterations in original).
{10} The Fourth Amendment of the United States Constitution and the New Mexico Constitution protect a citizen's right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; N.M. Const. art. II, § 10. The State also argues on appeal that there was no "search" for constitutional purposes because Defendant failed to meet his burden that Deputy Gutierrez violated his reasonable expectation of privacy. The State did not raise this point before the district court, and it cannot now be relied on as a basis to affirm on the ground that the court was correct for the wrong reason because Defendant did not have a fair opportunity to present evidence on the issue. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994). There is no dispute in this case that the search of Defendant's pants was without consent or a warrant. The State argues that Defendant was not in the custody of the police when his pants were searched, and the search was performed incident to a community caretaking function on the part of Deputy Gutierrez, and therefore the search does not implicate constitutional protections and was justified without a warrant.
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