State v. Janzen, 27,174.

• Court: Court of Appeals of New Mexico
• Citation: 2007 NMCA 134,168 P.3d 768
• Docket Number: No. 27,174.,27,174.
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Jesus JANZEN and Mayra Marquez, Defendants-Appellees.
• Decision Date: 22 August 2007

168 P.3d 768 2007 NMCA 134 STATE of New Mexico, Plaintiff-Appellant,
v.
Jesus JANZEN and Mayra Marquez, Defendants-Appellees. No. 27,174. Court of Appeals of New Mexico. August 22, 2007.

[168 P.3d 769]

Gary K. King, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellant.

Hank Farrah, Albuquerque, NM, for Appellees.

OPINION

PICKARD, Judge.

{1} The State appeals the district court's order granting Defendants' motion to suppress evidence obtained as result of a search of Defendants' home. Below, the district court concluded that the warrantless search of Defendants' home was illegal under Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). On appeal, the State raises a number of arguments as to how the district court erred in its application of Randolph and its decision to grant Defendants' motion to suppress. We hold that the State failed to properly preserve its arguments below and therefore affirm the district court's order granting Defendants' motion to suppress.

BACKGROUND

{2} On December 29, 2005, Officer Steven Flores of the Belen Police Department received a tip that a male subject was selling marijuana from a certain trailer. Officer Flores subsequently learned that the male

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subject was Defendant Janzen and he went to Defendant Janzen's home to talk to him.

{3} When Officer Flores arrived at the house, Defendant Janzen was present along with Defendant Marquez and other family members. Officer Flores believed that Defendants Janzen and Marquez were married. When confronted with the information obtained from the tip, Defendant Janzen denied that he was selling drugs. Officer Flores then asked Defendants if he could search the house. Both Defendants told Officer Flores that he would need a search warrant if he wanted to search their home.

{4} As Officer Flores started to leave the scene, he was called back by another officer who told him to speak to Defendant Janzen. Defendant Janzen told Officer Flores that he had changed his mind and that he consented to a search of the residence. Defendant Janzen then told Officer Flores where marijuana was hidden throughout the residence. Officer Flores found some sixty pounds of marijuana. Officer Flores testified that at no time did Defendant Marquez express her consent to the search.

{5} Before trial, Defendants filed a joint motion to suppress, arguing that under Randolph, the refusal of a co-tenant to the search of a residence renders the entire search illegal. The district court agreed with Defendants and granted the motion to suppress. This appeal follows.

STANDARD OF REVIEW

{6} "An appeal of a suppression motion involves a mixed question of fact and law." State v. Gerald B., 2006-NMCA-022, ¶ 13, 139 N.M. 113, 129 P.3d 149. On appeal, we will defer to the district court's findings of fact, provided that such findings are supported by substantial evidence. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. We "review the application of the law to these facts . . . under a de novo standard of review." State v. Patterson, 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286.

DISCUSSION

{7} In Randolph, the defendant's wife, who had recently moved back into the marital home, called the police to report a domestic dispute. 547 U.S. at 106-07, 126 S.Ct. 1515. When the police officers arrived, the defendant's wife "told them that her husband was a cocaine user whose habit had caused financial troubles." Id. at 107, 126 S.Ct. 1515. Shortly thereafter, the defendant returned to the house and denied his wife's accusations. Id. The defendant's wife continued to air her complaints about the defendant and further volunteered that there was evidence of drug use in the house. Id. At this point, police officers asked the defendant for permission to search the house, which he refused. Id. The officers then asked defendant's wife for permission to search the house, "which she readily gave." Id. Officers searched the house and found evidence of drug use. Id. The defendant was subsequently indicted for possession of cocaine. Id.

{8} The Supreme Court granted certiorari in Randolph "to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search." Id. at 108, 126 S.Ct. 1515. The Court ultimately held "that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Id. at 115, 126 S.Ct. 1515. As such, the Court ruled in favor of the defendant, concluding that the evidence obtained as a result of the search should be suppressed. Id. at 108, 126 S.Ct. 1515.

{9} At the suppression hearing in the present case, Defendants argued that the search of Defendants' home over the objection of Defendant Marquez was illegal under Randolph. In response, the State argued that Randolph, which had been decided during the pendency of the case, should not be given retroactive application. The State further argued that the search was a "valid consent search." Additionally, the State maintained that it did not matter that Defendant Marquez did not consent because Defendant Janzen controlled the household and,

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as we understand the State's argument below, that Defendant Marquez therefore did not have standing to object to the search. As such, the State maintained that the search was valid. The district court disagreed with the State's assertion that Randolph did not apply to the...