State v. Leticia T.

• Decision Date: 11 May 2012
• Docket Number: No. 30,664.,30,664.
• Citation: 278 P.3d 553,2012 -NMCA- 050
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. LETICIA T., Child–Appellant.
• Court: Court of Appeals of New Mexico

278 P.3d 553

2012 -NMCA- 050

STATE of New Mexico, Plaintiff–Appellee,

v.LETICIA T., Child–Appellant.

No. 30,664.

Court of Appeals of New Mexico.

March 13, 2012.

Certiorari Granted, Nos. 33,566; 33,567 May 11, 2012.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jacqueline L. Cooper, Chief Public Defender Tania Shahani, Assistant Appellate Defender Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} Pursuant to a conditional plea, Child was adjudicated delinquent for committing aggravated battery on a peace officer (deadly weapon) and aggravated assault (deadly weapon). Child reserved the right to appeal the district court's denial of her motion to suppress and motion to dismiss for an untimely trial. Child asserts that her motion to suppress was improperly denied because searching the trunk of her car without a search warrant was not warranted by either exigent circumstances or as a protective sweep. In addition, Child asserts that her motion to dismiss was improperly denied because she did not have a timely preliminary hearing or trial. Finally, Child argues that she is entitled to predisposition confinement credit. We reverse in part, affirm in part, and remand for further proceedings.

I. MOTION TO SUPPRESS

{2} Child filed a motion to suppress evidence obtained from a warrantless search of the trunk of her vehicle, asserting that the search violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Following an evidentiary hearing, the district court denied Child's motion on grounds that exigent circumstances validated the warrantless search.

A. Facts

{3} There is no dispute about the material facts. An armed subject was reported to have pointed a rifle from the passenger side window of a vehicle at several persons as they were standing in a parking lot on 20th Street in Farmington, New Mexico. One of the persons called the police, and a dispatch was sent out to officers of the Farmington Police Department to locate the vehicle, which was described as a four-door, beige or light tan passenger car.

{4} Officer Coate located the vehicle within minutes of the dispatch, and he pulled it over near the Sonic on 20th Street. Because the car matched the one identified by dispatch, Officer Coate decided to conduct a felony stop and called for backup. Officer Swenk subsequently arrived at the scene. Officer Coate observed rocking and moving in the vehicle after it stopped, which in his experience, generally indicates that the passengers are changing positions within the vehicle. However, he could not see exactly what was going on in the vehicle or how many people were inside the vehicle because it had dark, tinted windows.

{5} Child, who was sixteen years old, stepped out of the front passenger side of the vehicle, and Officer Coate ordered Child to raise her hands and move backwards toward him. While Officer Coate kept his firearm pointed at the car, Officer Swenk conducted a pat-down search of Child, handcuffed her, and directed her to the back of the patrol vehicle, out of Officer Coate's sight. When Officer Swenk started a second pat-down search, Child shouted at the officer to let her go, spun quickly to the left, and struck Officer Swenk in the face with her fist while holding the handcuffs that she had apparently slipped out of. Officer Swenk took her to the ground, regained control, handcuffed her again, and put her in Officer Coate's patrol car. The other occupants of Child's car—a boy nine to twelve years of age and a girl younger than Child—were ordered out of the vehicle according to the same protocol for a felony stop. All the children were placed in separate patrol cars in handcuffs.

{6} Officer Smith, a canine officer, whose dog is certified in all patrol activities, including finding people and apprehending combative suspects, arrived and was told that the other officers had already pulled several persons out of the vehicle, but it was unknown if anyone else was inside. Officer Smith sent the dog to see if anyone else was inside the car, and the dog searched the passenger compartment of the car but did not alert to any occupants. Officer Smith said that the dog did not search the trunk because it was distracted by the human odor of a crowd of people that had gathered across the street, and it was more interested in them than the car. Officer Smith called the dog back from the vehicle after it failed to alert. Officer Smith testified that a “secondary search” of the vehicle was necessary because dogs are not infallible, and unless the trunk was opened, the officers could not be sure if anyone was hiding inside.

{7} Officer Coate testified that once the car was cleared, the officers had a duty to check the trunk of the vehicle to check for anyone that might be hiding inside. He had prior experiences in which individuals had hidden themselves inside a trunk, and he felt that someone “could be” hiding inside the trunk because the report was that there had been a person pointing a rifle out of the window of the car, and no weapon was found inside the passenger compartment.

{8} Two additional officers, Sergeant Simmons and Officer Rahn, were also at the scene. A rifle was found when Sergeant Simmons opened the trunk of the car. Sergeant Simmons testified that after the three occupants were taken from the vehicle, standard operating procedure required the officers to visually clear the front and rear compartments of the vehicle, as well as the trunk. This is because it is not uncommon for people to be found hiding in trunks, and the officers check the trunk to prevent an ambush, which is a possibility. Officer Rahn testified that the officers opened the trunk because they are trained to do so during a felony stop, and a person can easily hide inside the trunk. He added that officers always conduct a “secondary search” even when a dog is used to detect humans because the dog is not always 100% accurate.

B. Standard of Review

{9} The parties agree that our review of whether exigent circumstances justified the warrantless search of the trunk is de novo. We agree. “[W]e review the district court's findings of historical fact under a deferential, substantial evidence standard, and then we determine de novo if the facts, as so established, support the conclusion of exigent circumstances.” State v. Moore, 2008–NMCA–056, ¶ 10, 144 N.M. 14, 183 P.3d 158;see State v. Attaway, 117 N.M. 141, 145–46, 870 P.2d 103, 107–08 (1994) (“[W]e conclude that the mixed question involved in determining exigency lies closest in proximity to a conclusion of law, and hold that such determinations are to be reviewed de novo.”), modified by State v. Lopez, 2005–NMSC–018, ¶¶ 9, 11, 138 N.M. 9, 116 P.3d 80 (stating that while the appellate court reviews purely historical factual assessments for substantial evidence, “we review the district court's determination of exigency de novo”).

C. Analysis

{10} “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is protected by the Fourth Amendment to the United States Constitution. U.S. Const.Amend. IV. In addition, Article II, Section 10 of the New Mexico Constitution protects the right of the people to be “secure in their persons, papers, homes and effects, from unreasonable searches and seizures[.]” N.M. Const. art. II, § 10. A search undertaken without a search warrant is presumptively unreasonable unless it is undertaken pursuant to a valid exception to the warrant requirement. State v. Zamora, 2005–NMCA–039, ¶ 15, 137 N.M. 301, 110 P.3d 517 (citing State v. Wright, 119 N.M. 559, 562, 893 P.2d 455, 458 (Ct.App.1995)). The burden is on the State to justify a warrantless search, and the burden is a heavy one. Id.

{11} Exigent circumstances is one of the recognized exceptions for conducting a search without a warrant. State v. Garcia, 2005–NMSC–017, ¶ 29, 138 N.M. 1, 116 P.3d 72. Our Supreme Court has given us a comprehensive description of what constitutes exigent circumstances:

Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. The determination is not whether the suspect was in fact intending to harm someone, escape, damage property,or destroy evidence. Rather it is a determination of whether in a given situation a prudent, cautious, and trained officer, based on facts known, could reasonably conclude swift action was necessary. If there are exigencies, they must be known by the police prior to entry. Moreover, the presence of exigent circumstances must be supported by specific articulable facts.

State v. Duffy, 1998–NMSC–014, ¶ 70, 126 N.M. 132, 967 P.2d 807 (internal quotation marks and citations omitted), modified on other grounds by State v. Gallegos, 2007–NMSC–007, ¶ 17, 141 N.M. 185, 152 P.3d 828;see Garcia, 2005–NMSC–017, ¶ 30, 138 N.M. 1, 116 P.3d 72;State v. Gomez, 1997–NMSC–006, ¶ 39, 122 N.M. 777, 932 P.2d 1.

{12} Our review of the evidence is that five armed police officers were on the scene. The three children who had occupied the vehicle were taken into custody, handcuffed, and placed into separate police cars. A trained dog was sent to determine if anyone else was inside the car. After the dog failed to alert that anyone was inside the car, Officer Smith decided that the dog was being distracted and called off further searching of the trunk. Sergeant Simmons then opened the trunk because, he said, it was required by standard operating procedure. Officer Rahn said that the officers opened the trunk because they are trained to search the trunk during a felony stop, and he also agreed with Officer Smith's testimony that a “secondary search” is always conducted even when a dog is used...