State v. Ortiz

• Court: Court of Appeals of New Mexico
• Writing for the Court: Sutin
• Citation: State v. Ortiz, 215 P.3d 811, 2009 NMCA 92, 146 N.M. 873 (N.M. App. 2009)
• Decision Date: 13 August 2009
• Docket Number: No. 27,544.,27,544.
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Marty ORTIZ, Defendant-Appellee.

215 P.3d 811

2009 NMCA 092

STATE of New Mexico, Plaintiff-Appellant, v. Marty ORTIZ, Defendant-Appellee.

No. 27,544.

Court of Appeals of New Mexico.

August 13, 2009.

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

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Appellee.

OPINION

SUTIN, Judge.

{1} The State appeals from the district court's order dismissing the charges against Defendant with prejudice, in part due to the State's failure to comply with a discovery order under Rule 5-501(A)(3) NMRA. The court determined that Defendant made a threshold showing that the discovery requested was potentially material to the defense and ordered the State to identify whether any such material evidence existed. The State chose not to comply in any manner with the district court's order, and the court dismissed the case with prejudice. We conclude the court did not abuse its discretion in doing so.

FACTS

{2} Defendant Marty Ortiz was indicted in April 2006 for driving while intoxicated (DWI) and three related charges. At a hearing on June 19, 2006, the prosecutor stated that on the night in question a person overdosed on heroin at a local convenience store, that police officers were looking for that particular person traveling in a gold or tan Honda or Acura, and that it turned out the person they were looking for was a passenger in Defendant's car. The prosecutor further stated that Officer John Boerth was in a location on the south side of the city where he witnessed a car weaving and driving recklessly. Officer Boerth activated his emergency equipment in order to stop the vehicle driven by Defendant. When Officer Boerth "spotted . . . [D]efendant, he didn't know if that was the car involved in the heroin overdose or not."

{3} Later in June 2006, Defendant filed a motion to suppress all evidence and a request for an inspection of the videotape of the stop. In the motion, Defendant set out Officer Boerth's grand jury testimony "that . . . Defendant's driving behavior, the reason he stopped the car, consisted of the multiple infractions of the car failing to maintain [its] lane, multiple infractions of the car striking the curb finally riding on the curb before the officer pulled the car over." This motion also stated that Officer Boerth testified that "he was looking for . . . Defendant's car because someone was performing `CPR' on one of the passengers." In addition, the motion stated that the videotape of the stop indicated that Defendant had "complete and lawful control of the vehicle and even used his turn signal to properly pull the vehicle over for the officer," thus indicating that Defendant was not engaged in any driving behavior that would give the officer reasonable suspicion on which to stop him. Defendant averred in the motion that the search and stop were "pretextual and illegal," and he asserted that all of the evidence stemming from the stop should be suppressed.

{4} Defendant also filed a motion to compel specific discovery. This motion sought "any and all audio recordings and written logs including but not limited to dispatch records and phone records of any kind which are relevant to the stop and arrest . . . including any communications between [Officer] Boerth and any dispatcher, police officers, or any other persons whatsoever." Defendant asserted in this motion that the videotape of the stop started at 19:17:45 and ended at 19:50:23, but that the time 19:18:52 to 19:24:27 was missing, "leaving a `gap' in the [videotape] of six (6) minutes and thirty-five (35) seconds." Defendant requested "copies and access to evidence of all oral, electronic[,] telephonic[,] or written communications made between Officer . . . Boerth and any other person during this incident."

{5} In response to Defendant's motions the State asserted that there was no video footage missing. The State explained that the video camera taping between 19:17:45 and 19:18:52 was not related to Defendant's stop but showed only that the officer was patrolling in the rain and that the video footage involving Defendant began at 19:24:27.

{6} At a pretrial conference in July 2006, Defendant reiterated his argument that the videotape was missing six minutes of footage and that the videotape produced by the State did not support the explanation that Officer Boerth gave for pulling him over. Defendant challenged the stop based on the incomplete videotape and moved to suppress all the evidence stemming from the stop. Defendant requested dispatch logs and communications between the officer and dispatch, and he also requested the production of any communications, including personal cell phone calls, that Officer Boerth had with anyone.

{7} At the same pretrial conference, the prosecutor again discussed what she had learned about the officer's activity that evening. She stated that the videotape showed that the officer was driving on patrol through the rain on an unrelated charge. She also stated that the reason for the six-minute gap in the videotape was because the camera only turned on when the emergency equipment was engaged. And she "strongly" objected to the discovery of Officer Boerth's personal cell phone records because they "would not be discoverable in this case." The discovery and suppression issues were not resolved at this pretrial conference, and no order was issued as a result.

{8} The cell phone records issue was discussed at a hearing on August 17, 2006. Defense counsel stated that the officer had testified before the grand jury that he was looking for someone traveling in Defendant's car because they had a CPR situation and suggested that this was an emergency and was the reason why the officer's lights were activated. Defense counsel complained that he received dispatch records for every officer involved except Officer Boerth, and he again requested records of any communications by Officer Boerth, including personal or departmental cell phone records.

{9} The prosecutor argued, again based on what she had learned from Officer Boerth, that he was patrolling on Cerrillos Road in Santa Fe, New Mexico and "was looking for a car that fit . . . [D]efendant's [vehicle's] description, however, he never found that car." She stated that when the videotape "comes on again[] is when . . . [D]efendant is being pulled over." She also stated that at the time Officer Boerth stopped Defendant he was not dispatched to the location, and it was the prosecutor's understanding that this was why the officer was not part of the dispatch records.

{10} The prosecutor argued that the first part of the videotape showed that the officer was patrolling on Cerrillos Road, in the rain, having nothing to do with Defendant; that the next time the camera and the emergency equipment were turned on was when the officer pulled Defendant over; and that there was no six-minute gap because officers do not have their equipment on constantly. The prosecutor asserted that Defendant was not entitled to private communications on an officer's private cell phone number. She wanted Defendant to "brief that subject, because there is no way that the State is giving out that information."

{11} In response, defense counsel explained that Defendant was only asking for records of communications the officer had within the relevant six-minute period. Counsel argued that dispatch records showed there was a drug case going on around the time of the six-minute gap and argued that Defendant had a right to explore whether a stop that started on a suspicion of drugs turned into a DWI case. Counsel contended that the officer did not have an expectation of privacy of his cell phone records while on duty, on patrol, in a marked unit, during an emergency or arrest situation. The prosecutor indicated that an evidentiary hearing was necessary to resolve factual issues, and she again asserted that the defense did not have any right to access the officer's personal cell phone records.

{12} At the close of the foregoing arguments at the August 17 hearing, the court determined that the issue Defendant raised was "a relevant issue" and that Defendant had a right to access the requested information even without knowing whether any such information existed. The court orally granted Defendant's motion to compel specific discovery, but stated that (1) the phone records requested were for a very finite period of time; (2) if there was no recording of a phone conversation, it would be appropriate to produce the phone record; (3) if there existed a defense to the discovery of the records, such as the disclosure of a confidential informant, the State could file a motion to prohibit the discovery; and (4) if there were personal matters irrelevant to the case, the State could file a motion for an in camera review.

{13} On August 29, 2006, the State filed an amended response to Defendant's motion to compel specific discovery. The State asserted that Officer Boerth "has a reasonable expectation of privacy in his personal cell phone records." The State cited "U.S. Constitution, Amendments I, IV[,] and XIV; N.M. Constitution, Art. [II], Sections [4], [10,] and [18]." The State also asserted that Officer Boerth did "not consent to the disclosure of his personal cell phone records" and that "[h]e has a constitutionally protected privacy interest in his personal property." In addition, the State argued that "[p]ursuant to the Electronic[] Communications Privacy Act outlined in 18 U.S.C.A. §§ 2510, 2701[,] and 2703(2)(c) [(2006)], the party seeking disclosure of personal cell phone records must make a showing that there are reasonable grounds to believe that the contents of the records are relevant and material to an ongoing criminal investigation." The State further argued that Defendant failed to make a proper showing of either relevancy or materiality and that merely requesting the phone records did not...