State v. Jimenez

• Decision Date: 16 September 2011
• Docket Number: NO. 29,632,29,632
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. MARK JIMENEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.MARK JIMENEZ, Defendant-Appellant.

NO. 29,632

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Date: September 16, 2011

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Thomas A. Rutledge, District Judge

Gary K. King, Attorney General

Santa Fe, NM

Jacqueline R. Medina, Assistant Attorney General

Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Acting Chief Public Defender

Eleanor Brogan, Assistant Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VANZI, Judge.

Defendant Mark Jimenez appeals his convictions of attempted possession of methamphetamine, as defined by NMSA 1978, Section 30-31-23(D) (2005), and possession of drug paraphernalia, as defined by NMSA 1978, Section 30-31-25.1(A) (2001). Defendant contends that he was illegally seized during his encounter with the police, and thus, the evidence obtained as a result of the encounter should have been suppressed. We agree and reverse his convictions. Because we reverse based on the illegal seizure, we do not reach Defendant's argument that his right to confrontation was violated.

BACKGROUND

The following facts are taken from testimony at the April 11, 2008, hearing on Defendant's motion to suppress and from the district court's findings of fact and conclusions of law. On November 30, 2006, in Artesia, New Mexico, an anonymous caller called 911 and stated that someone at the Jaycee Park needed help and then hung up. The caller provided no additional information; however, Officers Silvas and Horrell, who were in two separate vehicles, were dispatched to the area to respond to the call.

After initially driving through part of the park without seeing anyone, the officers noticed a Chevy Camaro parked with its lights and engine off. The officers pulled up to the car, and each shined a spotlight toward the middle of the car. OfficerSilvas got out of his car and approached the driver, Tommy Briscoe ,while Officer Horrell approached Defendant on the passenger side. Through the driver-side window, which was cracked about four to five inches, Officer Silvas asked Tommy, "What are you guys doing?" Tommy said that they were "just chilling" and that there was "nothing" going on. Officer Silvas then asked Tommy to step out of the car. When Tommy got out of the car, he left his door open. Officer Horrell also had Defendant step out of the car.

After both Defendant and Tommy went to the rear of the car, they were patted down for weapons, and Officer Silvas started back towards the driver's side of the car, while Officer Horrell remained with Defendant and Tommy. Officer Silvas shined his flashlight into the car from the open driver-side door, and he saw a dinner plate sticking half-way out from underneath a seat. On the plate was a white, powdery substance. He removed the plate from the car, placed it on the roof of the car, and asked Tommy what was on the plate. Tommy said that it was "his brother's experiment." The officers then called for a narcotics officer. The narcotics officer sent the contents of the plate, as well as other evidence he collected in a more thorough search of the car, to the crime lab to be tested. The test results showed that there were over thirteen grams of methamphetamine in the car.

Defendant was charged with trafficking a controlled substance, contrary to NMSA 1978, Section 30-31-20(A)(2)(c) (2006), and possession of drug paraphernalia, in violation of Section 30-31-25.1(A). He filed a motion to suppress the evidence obtained as a violation of his rights under Article II, Section 10 of the New Mexico Constitution. The district court denied his motion. At trial, Defendant was convicted of both possession of drug paraphernalia and attempted possession of methamphetamine. Defendant appeals his convictions.

On appeal, Defendant argues that the police illegally detained him and that the evidence discovered should have been suppressed because it was the result of his illegal detention. Defendant also argues that his right to confrontation was violated and that the "collusion between Sergeant Haskins and the lab analyst constitute[d] outrageous government behavior." As we have noted, we do not reach these latter two issues.

DISCUSSION

Standard of Review

Defendant contends that his motion to suppress should have been granted because he was detained in violation of both the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. At the outset, we note that Defendant properly preserved his argument that Article II, Section10 affords him greater protections than the Fourth Amendment. Defendant asserted that his state constitutional rights were violated both in his motion to suppress and by developing a factual record at the hearing on his motion. See State v. Leyva, 2011-NMSC-009, ¶ 48-49, 149 N.M. 435, 250 P.3d 861 (concluding that, where our Article II, Section 10 constitutional provision has already been interpreted to provide greater protection than its federal counterpart, a defendant must develop a factual record and raise the applicable constitutional provision to the district court to preserve his Article II, Section 10 claim).

Turning to the standard of review, a district court's decision to deny a motion to suppress is a mixed question of law and fact. State v. Ketelson, 2011-NMSC-023, ¶ 9, _N.M. _, 257 P.3d 957. While we review the district court's legal conclusions de novo, we will not disturb the district court's factual findings if they are supported by substantial evidence. State v. Leyba, 1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171. "[T]he facts [are] viewed in the manner most favorable to the prevailing party." State v. Brennan, 1998-NMCA-176, ¶ 10, 126 N.M. 389, 970 P.2d 161.

Defendant Has Standing to Raise the Motion to Suppress

As a threshold matter, we must first determine whether Defendant has standing to seek suppression of the evidence obtained from the car. The State argues thatDefendant, as a mere passenger, does not have standing to contest the search of the car. The State relies on State v. Waggoner, 97 N.M. 73, 75, 636 P.2d 892, 894 (Ct. App. 1981), in which we held that passengers in a vehicle, who were only getting a ride from the driver and did not own the vehicle, did not have a legitimate expectation of privacy in the vehicle and thus, did not have standing to challenge the validity of a search of the vehicle.

However, this Court recently clarified the Waggoner line of cases and concluded that while a passenger lacks standing to challenge the search of a vehicle, he nonetheless has standing to seek suppression of evidence obtained as a result of his own illegal detention. State v. Portillo, 2011-NMCA-079, ¶¶ 11, 32, __ N.M. _ , _P.3d_, cert. denied, 2011-NMCERT-006,_N.M._,_P.3d_; see State v. Sewell, 2009-NMSC-033, ¶ 16, 146 N.M. 428, 211 P.3d 885 (explaining that a defendant has "standing to object to a seizure from a third person which occurred as a result of the exploitation of [the d]efendant's own unlawful detention." (alteration, internal quotation marks, and citation omitted)), cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055. Thus, any evidence obtained as the result of the passenger's illegal detention is fruit of the poisonous tree and must be suppressed. See Portillo, 2011-NMCA-079, ¶ 32 (stating that evidence discovered after an illegal detention of passenger/defendant was subject to suppression as fruitof the poisonous tree); State v. Cardenas-Alvarez, 2000-NMCA-009, ¶ 25, 128 N.M. 570, 995 P.2d 492 ("Evidence obtained must be suppressed if it is the fruit of an illegal detention."), aff'd, 2001-NMSC-017, 130 N.M. 386, 25 P.3d 225. Defendant here has standing to challenge the lawfulness of his own detention and to seek to suppress the evidence found as a result.

Defendant Was the Subject of an Investigative Detention That Was Not Supported by Reasonable Suspicion of a Crime

The district court found that the investigative detention began once the officers approached the car, ordered Defendant and Tommy to show their hands, and commanded them to get out of the car. For the reasons that follow, we agree with the district court.

An investigative detention "must be reasonably related to the circumstances that initially justified the stop, and the scope of the investigation may expand only when the officer has reasonable and articulable suspicion of other criminal activity." State v. Patterson, 2006-NMCA-037, ¶ 16, 139 N.M. 322, 131 P.3d 1286 (internal quotation marks and citation omitted). Here, Defendant and Tommy were seized at the point that they were commanded to show their hands and step out of the car. See State v. Eric K., 2010-NMCA-040, ¶ 20, 148 N.M. 469, 237 P.3d 771 (concluding that at the point the officer requested or commanded the defendant to show his hands, the defendant was seized because the officer's show of authority was such that areasonable person in the situation would not have felt free to leave); State v. Boblick, 2004-NMCA-078, ¶ 10, 135 N.M. 754, 93 P.3d 775 (concluding that "a reasonable person would [not] feel free to leave after officers knocked on his car window, asked him to exit the vehicle, and questioned him about weapons" and that at the point the officer "asked [defendant] to get out of the car and began questioning him, the encounter resembled an investigatory detention more than it did a welfare check"). Furthermore, Officer Horrell described the detention as a felony take down.

We first determine whether the investigative detention itself was justified. If it was not, we...