State v. Lopez

• Decision Date: 20 August 2009
• Docket Number: No. 27,891.,27,891.
• Citation: 223 P.3d 361,2009 NMCA 127
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donald LOPEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

223 P.3d 361

2009 NMCA 127

STATE of New Mexico, Plaintiff-Appellee, v. Donald LOPEZ, Defendant-Appellant.

No. 27,891.

Court of Appeals of New Mexico.

August 20, 2009.

Certiorari Denied, No. 31,951, October 6, 2009.;

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

Hugh W. Dangler, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Defendant appeals his convictions for possession of a controlled substance, driving while under the influence (DWI), and possession of drug paraphernalia (current convictions), as well as the enhancement of his sentence based on prior convictions for DWI. We hold that Defendant's Fourth Amendment and speedy trial rights were not violated and that his current convictions were supported by substantial evidence. As to his prior DWI convictions, however, we hold that there was insufficient evidence presented and reverse on this issue. Accordingly, we affirm Defendant's current convictions but remand for resentencing consistent with this opinion.

I. BACKGROUND

{2} At approximately 2:45 a.m. on May 8, 2006, Officer Cullison of the Clovis Police Department initiated a traffic stop after observing Defendant towing a trailer missing a tail light and a license plate. When he approached, Officer Cullison noticed that Defendant was very nervous and that his responses were inconsistent. At that point, Officer Cullison ran a check on Defendant's driver's license and discovered that Defendant's license had been revoked, thereby subjecting him to immediate arrest. Accordingly, Officer Cullison took him into custody.

{3} Officer Borders, who had arrived when Officer Cullison took Defendant into custody, conducted an inventory of Defendant's car. In the center console of the vehicle, Officer Borders discovered a cell phone case containing a glass pipe wrapped in a napkin. In the pipe was a white powdery residue. Because it was immediately apparent to the officers that the pipe was used for the consumption of narcotics, it was taken as evidence.

{4} Officer Cullison then took Defendant to the Curry County Detention Center, administered a series of field sobriety tests, and concluded that Defendant was under the influence. A subsequent blood test revealed the presence of methamphetamine. The State's toxicologist testified that the level of methamphetamine in Defendant's blood was sufficient to result in impairment.

{5} Defendant was tried and convicted of DWI, possession of a controlled substance, and possession of drug paraphernalia. This appeal followed.

II. DISCUSSION

{6} Defendant raises four issues on appeal. He challenges (1) the denial of his motion to suppress evidence that was seized from his vehicle, (2) the denial of his motion to dismiss the charges on speedy trial grounds, (3) the sufficiency of the evidence to support his possessory convictions, and (4) the sufficiency of the evidence to establish that he has six prior convictions for DWI. We address each argument in turn.

A. Motion to Suppress

{7} "In reviewing a trial court's denial of a motion to suppress, we observe the distinction between factual determinations[,] which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review." State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (second alteration in original) (internal quotation marks and citation omitted). "We view the facts in the manner most favorable to the prevailing party and defer to the district court's findings of fact if substantial evidence exists to support those findings." State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

{8} On the morning of trial, Defendant orally moved to suppress the pipe seized from the vehicle. In response, the State first observed that the motion was untimely and, second, asserted that the pipe was obtained in the course of a valid inventory search of the vehicle. Defendant contended that even if the police were permitted to conduct an inventory search, the seizure was improper because a warrant was required before the pipe could be seized. The State countered that the seizure was permissible under the plain view doctrine. The district court found the State's argument to be persuasive and denied the motion.

{9} "Under Article II, Section 10 of our New Mexico Constitution, a warrantless search of a vehicle or warrantless seizure of an object from within a vehicle requires a particularized showing of exigent circumstances or some other recognized exception to the warrant requirement." State v. Bomboy, 2007-NMCA-081, ¶ 4, 141 N.M. 853, 161 P.3d 898, rev'd on other grounds, 2008-NMSC-029, 144 N.M. 151, 184 P.3d 1045. In this case, we conclude that the search of the vehicle and the subsequent seizure of the pipe from within the center console were supported by established exceptions to the warrant requirement. We begin with the search.

{10} Defendant's car was towed and impounded subsequent to his arrest and, as the officers testified below, standard practice entails an inventory of the contents of such vehicles. Taking an inventory of vehicle contents before towing and impoundment is a well-recognized exception to the warrant requirement. See generally State v. Ruffino, 94 N.M. 500, 501-02, 612 P.2d 1311, 1312-13 (1980) (identifying inventory searches as an exception to warrant requirements and observing the widespread recognition of the doctrine); State v. Nysus, 2001-NMCA-102, ¶ 26, 131 N.M. 338, 35 P.3d 993 ("Inventory searches are well established as an exception to the warrant requirement of the Fourth Amendment.").

{11} "[T]he scope of a permissible inventory search is broad[.]" State v. Shaw, 115 N.M. 174, 177, 848 P.2d 1101, 1104 (Ct. App.1993). "[I]tems need not be in plain sight to be subject to an inventory search." Ruffino, 94 N.M. at 502, 612 P.2d at 1313. To the contrary, the opening of compartments and closed containers is generally permissible. See State v. Boswell, 111 N.M. 240, 242, 804 P.2d 1059, 1061 (1991) ("Containers found in a lawfully[]impounded vehicle properly may be inventoried."); Shaw, 115 N.M. at 177, 848 P.2d at 1104 (observing that an inventory search "may permit ... that every item or container ... be opened and searched"). Consequently, the opening of the center console and the cell phone case does not require an independent legal justification. See State v. Vigil, 86 N.M. 388, 391, 524 P.2d 1004, 1007 (Ct.App.1974) (holding that where "the initial intrusion into a vehicle which is lawfully in police custody is justified, an inventory of the contents of closed containers is also justified"). We thus turn to consider the seizure of the pipe and napkin.

{12} Once the pipe was discovered in the course of the inventory, the plain view exception to the warrant requirement supported its seizure.

Under the plain view exception to the warrant requirement, items may be seized without a warrant if the police officer was lawfully positioned when the evidence was observed, and the incriminating nature of the evidence was immediately apparent, such that the officer had probable cause to believe that the article seized was evidence of a crime.

State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. In this case, Officers Borders and Cullison testified that they immediately recognized the pipe and white powdery residue as associated with the smoking of narcotics. See id. ¶ 13 ("An officer's experience and training, considered within the context of the incident, may permit the officer to identify drug paraphernalia or drug packaging[.]"). Because the pipe was clearly contraband, it could properly be seized pursuant to the plain view doctrine, and no warrant was required. See State v. Foreman, 97 N.M. 583, 584-85, 642 P.2d 186, 187-88 (Ct.App.1982) (observing that contraband which is discovered in the course of an inventory search may be seized pursuant to the plain view doctrine without a warrant).

{13} Relying on State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1 and Ruffino, Defendant argues that the plain view doctrine cannot support the seizure of the pipe. This Court addressed the first part of Defendant's contention in Bomboy, a case in which we explained that the plain view doctrine is inadequate to support the seizure of contraband from the inside of a vehicle only when an officer lacks a valid basis for searching the vehicle. 2007-NMCA-081, ¶ 6, 141 N.M. 853, 161 P.3d 898. Unless a valid exception is recognized, we require the issuance of a valid warrant prior to the search of a vehicle in New Mexico. Gomez, 1997-NMSC-006, ¶¶ 36-40, 122 N.M. 777, 932 P.2d 1. In Gomez, the exigent circumstances exception was recognized as the valid exception relied upon for the warrantless search of the defendant's vehicle. Id. ¶¶ 41-43. In the present case, the inventory doctrine provided a valid basis for the warrantless entry of the vehicle, and therefore the subsequent warrantless seizure of the pipe pursuant to the plain view doctrine meets the requirement of Gomez. See Bomboy, 2007-NMCA-081, ¶ 6, 141 N.M. 853, 161 P.3d 898. Defendant's reliance on Ruffino is similarly misplaced. Although Ruffino contains language suggesting that a warrant "should normally be obtained" before evidence is seized in the course of an inventory search, 94 N.M. at 502, 612 P.2d at 1313, this Court has not required a warrant if the evidence in question is patently contraband. See Foreman, 97 N.M. at 584-85, 642 P.2d at 187-88 (distinguishing Ruffino because the evidence in that case was "not necessarily criminal in nature"). In this case, the officers immediately recognized the pipe and residue as contraband and, therefore, no warrant was required. See Foreman, 97 N.M. at 584-85, 642 P.2d at 187-88. (concluding that no warrant was required in order to seize drugs, drug...