State v. Rivera

• Decision Date: 21 June 2007
• Docket Number: No. 25,798.,25,798.
• Citation: 2007 NMCA 104,166 P.3d 488
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Erica RIVERA, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

166 P.3d 488

2007 NMCA 104

STATE of New Mexico, Plaintiff-Appellant, v. Erica RIVERA, Defendant-Appellee.

No. 25,798.

Court of Appeals of New Mexico.

June 21, 2007.

Certiorari Granted August 8, 2007.

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

John Bigelow, Chief Public Defender, Santa Fe, NM, for Appellee.

OPINION

WECHSLER, Judge.

{1} The State of New Mexico appeals the district court's order dismissing the indictment for possession of a controlled substance with intent to distribute or, alternatively, possession of a controlled substance. The district court suppressed evidence that a package addressed to Defendant Erica Rivera had been opened and contained marijuana. We conclude that the State's evidence at the suppression hearing, which was largely double hearsay, was insufficient under State v. Hensel, 106 N.M. 8, 738 P.2d 126 (Ct.App. 1987), and therefore violated Defendant's right to confrontation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

{2} On December 3, 2003, Defendant went to an Albuquerque bus station to pick up a package that was addressed to her. She claimed ownership, but then dropped the package and fled when she was notified by a companion that police were present. Defendant was arrested and charged with possession of marijuana. Defendant contests the facts leading up to her arrest and argues that the evidence should be suppressed because her Fourth Amendment rights were violated.

{3} The State presented only one witness at the hearing on Defendant's motion to suppress, Agent Gerald Perry of the United States Drug Enforcement Administration. Agent Perry testified that he received a telephone call at approximately 5:00 or 6:00 p.m. on December 2, 2003 from an employee of the El Paso—Los Angeles Limousine Company, a bus company, informing him that a bus company employee in Denver had opened a package that had been sent to Albuquerque, but mistakenly delivered to Denver. A toolbox within the package contained what the caller believed, based on what the Denver employee told him, to be bundles of marijuana. The caller described the bundles to Agent Perry and also stated that Defendant, the addressee of the package, had called the Albuquerque bus station numerous times to inquire about the package, which she said contained jerky. The caller's office was in Los Angeles, but Agent Perry did not know where the caller was at the time of the call.

{4} Agent Perry testified that he believed, based on his experience, that the packaging of the bundles was consistent with packaging of marijuana. He told the caller, who said that he was going to call the Albuquerque bus station, to have the package wrapped back up and sent on the next bus from Denver to Albuquerque.

{5} Agent Perry testified that he and another agent were at the Albuquerque bus station when the package arrived. Agent Perry was in the station manager's office when the manager opened the package. Although he testified that he gave instructions to the manager to open the package, Agent Perry also testified that he did not know whether that was the reason the manager did open the package. He also testified that after the manager opened the package, Agent Perry might have sliced open one of the packages he believed to be marijuana.

{6} Defendant presented one witness, who testified about the bus company's policy that employees do not open packages. Defendant argued at the suppression hearing that this evidence was sufficient to rebut Agent Perry's hearsay testimony that the package was opened by bus company employees in Denver. Without direct testimony of who opened the package and what was seen, Defendant argued that her confrontation rights were violated.

{7} The district court granted Defendant's motion to suppress the package and evidence found in the package. As pertinent to this appeal, it found, from the bench, that there was state interaction and a seizure in Denver when Agent Perry directed that the package be sent to Albuquerque, and that even if there was no seizure in Denver, there was a seizure in Albuquerque with the state control and opening of the package. It further found that there were "numerous confrontational issues" because the State did not identify the bus company employees in Los Angeles and Denver and did not provide evidence that they were confidential informants. The district court then granted Defendant's motion to dismiss the case.

{8} After the State filed its notice of appeal, the district court entered an order nunc pro tunc granting Defendant's motion to adopt Defendant's proposed findings of fact and conclusions of law concerning the suppression of the evidence. Although the order does not so state, we assume, as does the State, that it relates to Defendant's amended findings of fact and conclusions of law. Notwithstanding the district court's technical lack of jurisdiction to enter the order, we exercise our discretion to consider the order as part of the record in this appeal. See State v. Herbstman, 1999-NMCA-014, ¶ 14, 126 N.M. 683, 974 P.2d 177 (granting motion to supplement record with nunc pro tunc order entered by district court after filing of notice of appeal when the order did not take improper action based on the ability of an appellate court to remand to the district court for it to enter such an order). The district court's order nunc pro tunc substantively restated the court's oral ruling and added that the State did not meet its burden to show that the caller was reliable.

RIGHT TO CONFRONTATION

{9} Defendant argues that the State violated the Confrontation Clause by relying on the double hearsay testimony of Agent Perry in the suppression hearing. Because we conclude that the district court was correct that the State's actions violated the Confrontation Clause, we need not address Defendant's other arguments in support of the order dismissing the case. The State has not argued on appeal that it should have the opportunity to present additional evidence in a second suppression hearing, and we do not address that question.

{10} The Sixth Amendment to the United States Constitution provides that a defendant in a criminal prosecution has the right "to be confronted with the witnesses against him." The New Mexico Constitution likewise provides that a criminal defendant has the right "to be confronted with the witnesses against him." N.M. Const. art. II, § 14. The right to confrontation includes the right to cross-examine witnesses. State v. Setser, 1997-NMSC-004, ¶ 16, 122 N.M. 794, 932 P.2d 484. Admission of hearsay evidence may violate the Confrontation Clause because it prevents the defendant from cross-examining the declarant. See State v. Henderson, 2006-NMCA-059, ¶ 13, 139 N.M. 595, 136 P.3d 1005 (discussing admission of hearsay evidence and the Confrontation Clause). Whether a violation of the Confrontation Clause has taken place is a question of law, which we review de novo. State v. Gurule, 2004-NMCA-008, ¶ 15, 134 N.M. 804, 82 P.3d 975.

{11} The State argues that the question before the district court was whether Agent Perry reasonably relied on the statements given to him by the unidentified caller. We interpret this argument as an assertion that Agent Perry's testimony did not contain hearsay because the statements of the caller and the Denver station employees were not offered to prove the truth of the matter asserted, that is, whether the package was opened by private parties in Denver. See, e.g., State v. Stampley, 1999-NMSC-027, ¶ 39, 127 N.M. 426, 982 P.2d 477 ("Out-of-court statements that are not offered for the truth of the matter asserted do not fall within the definition of hearsay."); State v. Ruiz, 2007-NMCA-014, ¶ 36, 141 N.M. 53, 150 P.3d 1003 ("[A] statement offered merely to prove that it was made, and not to prove truth, is characterized as a `verbal act' that is admissible irrespective of any limitations on hearsay testimony."). Rather, the State contends, Agent Perry's testimony included the allegedly hearsay statements to prove the reasonableness of Agent Perry's actions. See Stampley, 1999-NMSC-027, ¶ 39, 127 N.M. 426, 982 P.2d 477 ("[S]tatements supporting the reasonableness of [police] conduct may be admissible if relevant to a fact of consequence and not offered to prove the truth of the matter asserted."). We disagree.

{12} When the state seeks to justify a search on the basis that it was merely repeating a search previously undertaken by private parties without state involvement, the question is whether the prior search actually took place as alleged. If it did, the defendant lacked a reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 119, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (holding that because "it hardly infringed respondents' privacy for the agents to reexamine the contents of the open package" after it had been opened by private parties, "[t]he agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment"); see also State v. Murillo, 113 N.M. 186, 188, 824 P.2d 326, 328 (Ct.App.1991) ("The courts of New Mexico, like other jurisdictions, have accepted the long-standing rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes.") (footnote omitted). If not, the defendant's reasonable expectation of privacy remained intact and a subsequent search by law enforcement would not be reasonable unless a warrant was obtained or an exception to the warrant requirement was met. See State v. Monteleone, 2005-NMCA-129, ¶ 10, 138 N.M. 544, 123 P.3d 777 (concluding that a warrantless entry into a private area of a home was unreasonable unless an exception to the warrant requirement was met, despite the inadvertence of the entry, because the defendant had a reasonable expectation of privacy that was violated), cert. quashed, 2007-NMCERT-003, 141 N.M. 402, 156 P.3d 40.

{13} The State...