State v. Lucero
| Decision Date | 23 September 2020 |
| Docket Number | No. A-1-CA-37187,A-1-CA-37187 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. LORENZO LUCERO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
for Appellee
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellant
{1} Pursuant to a conditional plea agreement, Defendant Lorenzo Lucero appeals the district court's denial of his motion to suppress certain evidence discovered after he was stopped for an investigation of a domestic dispute. On appeal, Defendant argues: (1) trial counsel provided Defendant with ineffective assistance of counsel; and (2) the district court erred in concluding the officer's search of Defendant's sock was reasonable. We affirm.
{2} The following factual background is based on testimony from Officer Jonathan Brashear, the only witness to testify at the hearing on Defendant's motion to suppress. After responding to a call about a "possible domestic" that may include injuries and broken windows, Officer Brashear was informed that the reporting party identified Defendant—whom Officer Brashear knew from previous encounters—as the other individual involved in the incident. Upon learning that Defendant had left the scene of the incident and was traveling northbound, Officer Brashear went looking for him. After fifteen to twenty minutes, he spotted Defendant walking on the road several blocks away from the scene of the incident. Officer Brashear asked Defendant to step off the road, advised him of his Miranda rights, and informed Defendant that he was investigating a domestic incident.
{3} While speaking with Defendant, Officer Brashear noticed that Defendant was wearing shorts, tennis shoes, and tall white tube socks, with bulges in each sock. Defendant's shoelaces were wrapped around his right leg on the outside of his sock and were "tied up around the [right sock]," as if holding in place a "small bulge." Although the sock on Defendant's left leg appeared to have a bulge as well, it was not wrapped with any shoelaces. Upon observing these bulges in Defendant's socks, Officer Brashear suspected he was concealing contraband or "something that could be easily destroyed," and asked Defendant about the bulges. Defendant reached inside his left sock and removed folded-up money. Explaining that "people have been known to conceal narcotics in their socks," Officer Brashear testified that he then asked Defendant if he could search and remove the contents of the bulge in Defendant's right sock. Defendant agreed, and Officer Brashear removed a folded piece of paper containing a "crystalline substance," which tested positive for methamphetamine.
{4} During the suppression hearing, the State argued Officer Brashear had reasonable suspicion that Defendant was in possession of an "illegal substance" and based on that reasonable suspicion, asked for Defendant's consent to search his right sock. Defense counsel conceded that Officer Brashear had reasonable suspicion to conduct the investigatory stop concerning the domestic dispute and that the officer later developed reasonable suspicion of further criminal activity based on the bulges in Defendant's socks. Notwithstanding these concessions, defense counsel framed Officer Brashear's search of Defendant's sock as a search incident to arrest for which probable cause was lacking. In response, the State noted that "if there had been an arrest made and there were a search incident to arrest, then [the State] would agree that probable cause would be the burden or the threshold the State would have to meet because . . . an arrest requires probable cause before a search." Nevertheless, the State argued, the proper standard to apply to this search was reasonable suspicion. The district court agreed with the State and denied Defendant's motion.
{5} Defendant's appeal is limited to two arguments. First, Defendant contends that trial counsel was ineffective by conceding the existence of reasonable suspicion during the suppression hearing. Second, Defendant claims that the district court erred in denying his motion to suppress because the officer's reasonable suspicion dissipated after the search of Defendant's left sock revealed no criminal activity.
{6} The Sixth and Fourteenth Amendments of the United States Constitution guarantee criminal defendants the right to effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032. To establish ineffective assistance of counsel, a defendant must show that: "(1) counsel's performance fell below that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic explains counsel's conduct; and (3) counsel's apparent failings were prejudicial to the defense." State v. Bahney, 2012-NMCA-039, ¶ 48, 274 P.3d 134. "We review claims of ineffective assistance of counsel de novo." State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. Whether we address a claim of ineffective assistance on direct appeal, however, depends on the completeness of the record. See State v. Trujillo, 2012-NMCA-112, ¶ 48, 289 P.3d 238. Because the district court's record "may not adequately document the sort of evidence essential to a determination of trial counsel's effectiveness[,]" ineffective assistance of counsel claims are often better adjudicated through habeas corpus proceedings. State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (internal quotation marks and citation omitted); Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466 (). Here, Defendant claims counsel was ineffective when he conceded that Officer Brashear had reasonable suspicion to search his right sock after a search of his left sock revealed no contraband. However, we have no record related to trial counsel's strategy and tactics. Cf. State v. Martinez, 1996-NMCA-109, ¶ 36, 122 N.M. 476, 927 P.2d 31 (). Furthermore, as discussed below, Defendant has failed to show on the record before us that his dissipation of reasonable suspicion theory he now advances on appeal, and which he contends trial counsel was ineffective for failing to assert below, would prove meritorious. Cf. State v. Stenz, 1990-NMCA-005, ¶ 7, 109 N.M. 536, 787 P.2d 455 (). In light of the record on appeal, we cannot conclude that trial counsel provided ineffective assistance of counsel. Defendant's ineffective assistance of counsel claim is better suited for a habeas corpus proceeding.
{7} Defendant also contends that Officer Brashear lacked reasonable suspicion to request consent to search Defendant's right sock. Our review of a district court's order on a motion to suppress presents "a mixed question of fact and law." State v. Leyva,2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. "In reviewing a district court's ruling denying a motion to suppress, the appellate courts draw all reasonable inferences in favor of the ruling and defer to the district court's findings of fact as long as they are supported by substantial evidence." State v. Murry, 2014-NMCA-021, ¶ 10, 318 P.3d 180. "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion." State v. Yazzie, 2019-NMSC-008, ¶ 13, 437 P.3d 182 (internal quotation marks and citation omitted). "[W]e then review de novo the [district] court's application of law to the facts to determine whether the search or seizure were reasonable." Leyva, 2011-NMSC-009, ¶ 30.
{8} Initially, we note that "[w]arrantless searches are presumed to be unreasonable." State v. Bond, 2011-NMCA-036, ¶ 11, 150 N.M. 451, 261 P.3d 599. "The State bears the burden of proving that a warrantless search or seizure is reasonable . . . [by] prov[ing] that it fits into an exception to the warrant requirement." Id. (internal quotation marks and citation omitted). "Recognized exceptions to the warrant requirement include exigent circumstances, searches incident to arrest, inventory searches, consent, hot pursuit, open field, and plain view." State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d 1025. An officer may also conduct "a limited search for weapons upon a reasonable suspicion that the suspect might be armed and presently dangerous" without first obtaining a warrant. State v. Ketelson, 2011-NMSC-023, ¶ 15, 150 N.M. 137, 257 P.3d 957 (internal quotation marks and citation omitted) ( Terry v. Ohio, 392 U.S. 1 (1968)).
{9} In this instance, the State contends that the bulges in Defendant's socks gave Officer Brashear reasonable suspicion to investigate further and Defendant's consent to the search of his right sock excepted the search from the warrant requirement. After considering the totality of the circumstances, as explained in the testimony of Officer Brashear, the district court concluded:
Alright I'm considering all of the facts, and based upon the facts, the court finds specifically and the...
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