State v. Paananen

• Decision Date: 28 March 2014
• Docket Number: No. 31,982.,31,982.
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Ernest PAANANEN, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

321 P.3d 945

STATE of New Mexico, Plaintiff–Appellant,

v.Ernest PAANANEN, Defendant–Appellee.

No. 31,982.

Court of Appeals of New Mexico.

Jan. 2, 2014.

Certiorari Granted, March 28, 2014, No. 34,526.

Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellant.

Jorge A. Alvarado, Chief Public Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

BUSTAMANTE, Judge.

{1} The State of New Mexico, pursuant to NMSA 1978, Section 39–3–3(B)(2) (1972), appeals from a district court order suppressing physical evidence discovered by officers during a search of Defendant's belongings following his detention for alleged shoplifting. The State raises two issues on appeal: (1) that the district court erred in failing to recognize a search incident to arrest where the officers had probable cause to arrest independent from the fruits of the search, and (2) that the district court erred in requiring proof beyond all doubt for a claim of inevitable discovery.

{2} We hold that the arrest of Defendant was not lawful under Article II, Section 10 of the New Mexico Constitution. Therefore, the warrantless search of Defendant's belongings did not fall within any well-delineated exception to the warrant requirement, as it was not incident to a lawful arrest. The evidence would not have been inevitably discovered, as any inventory search that may have followed was dependent upon a legal arrest. Thus, the district court was correct in suppressing the items found in Defendant's backpack and cigarette pack. Accordingly, we affirm.

BACKGROUND

{3} Sportsman's Warehouse loss prevention personnel observed Defendant placing two flashlights under his jacket and leaving the store without paying. Loss prevention personnel detained Defendant upon his exit and escorted him to the loss prevention office. A pat-down search of Defendant took place, which revealed the two flashlights, as well as several other personal items located in Defendant's pockets. These items were placed on a table in the office. Store personnel gathered Defendant's backpack, which he had initially checked at the front door, and placed it on the floor in the office. Defendant was asked if he had any other merchandise in his backpack and he responded that he did not. He was told to sit in a chair and that the police would be called out.

{4} Albuquerque Police Officers Knight and Hsu were dispatched to Sportsman's Warehouse in reference to the alleged shoplifting. When they arrived, they learned from the store's loss prevention personnel that Defendant had been observed placing two flashlights under his arm and attempting to leave the store without paying. Officer Knight then entered the loss prevention office and immediately told Defendant to turn around and place his hands behind his back. Officer Knight handcuffed Defendant and conducted a pat-down. Officer Knight asked Defendant if he had any weapons on him and Defendant responded that store personnel had already placed the items from his pockets on the table. Officer Knight then told Defendant to sit back down in the chair and proceeded to ask Defendant for his name, date of birth, social security number, address, and phone number.

{5} At approximately the same time, Officer Hsu reached into the office, grabbed Defendant's backpack, and took it into the hallway. Officer Hsu opened the bag, discovering hypodermic needles and some items that appeared to have come from Office Depot. The officers began to question Defendant regarding his drug use and whether he was presently in possession of drugs, and examined Defendant's arms with a flashlight. Defendant denied being a drug user, except for one time the previous day, and denied having any drugs in his possession. Officer Knight expressed his disbelief as to Defendant's responses.

{6} Officer Knight asked loss prevention personnel if they could provide a copy of the surveillance video and they responded that it might take some time. Defendant then asked Officer Knight not to throw his backpack and bike away. Officer Knight responded, “we're not going to throw it away, we're going to tag it.”

{7} Approximately fifteen minutes after Defendant had been handcuffed, Officer Knight brought Defendant's backpack back into the office and began to place Defendant's items from the table into the bag, saying “I'm just going to throw all this junk in here.” When he picked up Defendant's cigarette pack, he looked inside the pack and discovered what appeared to be heroin. Upset with Defendant for lying, Officer Knight told him that if he had been honest, they might have been able to work with him to work his charge off. Instead, Officer Knight told Defendant that they were “going to book [him] on the felony.”

{8} The State indicted Defendant on charges of possession of a controlled substance (felony narcotic—heroin), possession of drug paraphernalia, and two counts of shoplifting ($250 or less) (one count involving the flashlights from Sportsman's Warehouse and the other count involving items taken from Office Depot). Prior to trial, Defendant filed two motions to suppress evidence. The first motion sought to suppress evidence gathered as a result of an illegal search and seizure pursuant to the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution. The second motion sought to suppress statements made by Defendant to the officers, under the Fifth, Sixth, and Fourteenth Amendments and Article II, Sections 15 and 18 of the New Mexico Constitution. Prior to the suppression hearing, the State filed a written response to Defendant's motions, conceding the suppression of Defendant's statements but arguing that the physical evidence would have been inevitably discovered in an “inventory search incident to arrest.”

{9} At the suppression hearing, the State clarified that it had a two-part argument: (1) that the searches were incident to arrest, and (2) that in the alternative, the evidence would have been inevitably discovered. Officers Knight and Hsu testified at the hearing, and a DVD recording of the entire interaction within the loss prevention office, as well as surveillance footage of the alleged shoplifting, were entered into evidence. Despite the State's initial assertion of search incident to arrest, both sides focused throughout the hearing on the inevitable discovery doctrine and particularly on State v. Barragan, 2001–NMCA–086, 131 N.M. 281, 34 P.3d 1157,overruled on other grounds by State v. Tollardo, 2012–NMSC–008, 275 P.3d 110, relied upon by the State in its written response for the purpose of establishing inevitable discovery. Indeed, the district court's sole conclusion of law was that the second factor of the Barragan test ¹ (whether the officers would in fact have made the arrest under such circumstances) was not met. The district court did not make a ruling regarding whether the searches were incident to arrest.

ANALYSIS

{10} The two issues for determination on appeal are: (1) whether the district court erred in failing to recognize a search incident to arrest where the officers had probable cause to arrest independent from the fruits of the search, and (2) whether the district court erred in requiring proof beyond all doubt for a claim of inevitable discovery. We address each in turn.

1. SEARCH INCIDENT TO LAWFUL ARRESTA. PRESERVATION

{11} While acknowledging that the State did assert search incident to arrest at the suppression hearing, Defendant argues that the State did not properly invoke a ruling from the district court on that specific issue and thus did not preserve the issue for appeal. We do not agree.

{12} We have considered an issue to be preserved where the court was “armed with the legal assertions and facts necessary” to rule on the issue and the opposing party had the opportunity to respond. State v. Granville, 2006–NMCA–098, ¶ 16, 140 N.M. 345, 142 P.3d 933;see also State v. Figueroa, 2010–NMCA–048, ¶ 11, 148 N.M. 811, 242 P.3d 378 (concluding that the defendant preserved the issue of unreasonable expansion of an investigation “even if he did not primarily focus on the expansion during the suppression hearing”). While the State's written response to Defendant's motion to suppress physical evidence focused on the inevitable discovery doctrine, and particularly on Barragan, the response did contain a vague argument that the evidence “would have been discovered through an inventory search incident to arrest.” The prosecutor clarified the State's position at the beginning of the suppression hearing, telling the district court: “just to clarify, Your Honor, that—and it might not have been clear in my motion—the State's position was that ... Defendant was placed under arrest. It was a search incident to arrest, and alternatively it's inevitable discovery[.]” The district court then asked, “So you had a two-part argument?” and the prosecutor replied, “Yes.” Yet aside from this clarification, throughout the suppression hearing both sides, in argument and in the questioning of the two witnesses, focused on whether the factors laid out in Barragan were met for purposes of determining inevitable discovery.

{13} The district court did not make a ruling regarding whether the searches were incident to arrest, even though facts bearing squarely on the issue were adduced during the hearing. Defendant contends that because the State did not make an additional argument regarding its purported search incident theory following the conclusion of the taking of evidence, it did not properly invoke a ruling from the district court.

{14} We acknowledge that the State had the burden of proof on this issue. See State v. Weidner, 2007–NMCA–063, ¶ 18, 141 N.M. 582, 158 P.3d 1025 (holding that “[t]he [s]tate has the burden of proving that the warrantless search was lawful under the search incident to arrest exception”). However, we recognize that “whenever possible, the [...