State v. Sanders

• Docket Number: A-1-CA-40287
• Decision Date: 20 December 2023
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROSS SANDERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. ROSS SANDERS, Defendant-Appellant.

No. A-1-CA-40287

Court of Appeals of New Mexico

December 20, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY John P. Sugg District Court Judge

Raúl Torrez, Attorney General Santa Fe, NM Meryl E Francolini, Assistant Attorney General Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

JACQUELINE R. MEDINA, JUDGE

{¶1} Defendant Ross Sanders appeals his conviction for possession of a controlled substance (methamphetamine), contrary to NMSA 1978, Section 30-31-23(E) (2019, amended 2021). Defendant argues on appeal that the district court erred in denying his motion to suppress under Article II, Section 10 of the New Mexico Constitution based on this Court's recent opinion in State v. Jim, 2022-NMCA-022, 508 P.3d 937, which was decided after the district court denied Defendant's motion to suppress but before entry of Defendant's judgment and sentence. Alternatively, Defendant argues that his counsel was ineffective for failing to challenge the underlying arrest in a motion to suppress. For the reasons set forth below, we reverse and remand.

BACKGROUND

{¶2} In February 2021, Officer Wrye stopped Defendant for driving on a suspended license. Officer Wrye had prior knowledge that Defendant's license was suspended. Officer Wrye removed Defendant from the vehicle and placed him under arrest.

{¶3} Officer Conway arrived shortly after the stop and assisted Officer Wrye in preparing the vehicle for towing. Both Officer Wrye and Officer Conway testified that police policy requires officers to tow vehicles after traffic stops when the driver is arrested and there is no one else to take control of the vehicle. Under the policy, officers must call a tow truck, notify dispatch that the vehicle requires towing, and complete a tow inventory search and inventory sheet. The purpose of the inventory search and sheet is to protect the arrestee's property and the department from claims that an item is missing by documenting any items of value found in the vehicle.

{¶4} After Officer Wrye placed Defendant in his police unit, Officer Wrye and Officer Conway conducted a tow inventory search of the entire vehicle. Officer Wrye then drove away with Defendant leaving Officer Conway to complete the tow inventory sheet and to wait for the arrival of the tow truck. When the tow truck arrived, Officer Conway conducted an additional search of the vehicle. During this search, Officer Conway found a black bag that was zipped closed in the rear hatchback of the vehicle. Officer Conway unzipped the bag and found an additional bag inside that contained drug paraphernalia and methamphetamine.

{¶5} Defendant was charged with possession of a controlled substance (methamphetamine) and driving while license suspended. Defendant moved to suppress the methamphetamine under Article II, Section 10 of the New Mexico Constitution, and argued at the motion hearing that the search of the black bag and seizure of the methamphetamine was unreasonable because it was not conducted under the authority of a warrant. The State responded that, for police inventory searches, New Mexico had not departed from federal precedent, which allows officers to open containers during the search. The district court denied Defendant's motion, finding "the search of . . . Defendant's vehicle was a valid inventory search and thus an exception to the general rule that a search warrant is required for a valid search." Additionally, the district court found in part that "the search was reasonable as it was performed in order to safeguard . . . Defendant's property and protect the officers from claims of lost or stolen property" under New Mexico law. The jury convicted Defendant of one count of possession of a controlled substance (methamphetamine).^[1]

{¶6} After Defendant's trial but before the entry of the judgment and sentence, this Court filed its opinion in State v. Jim. In Jim, this Court departed from federal inventory search precedent with regard to inventory searches of vehicles for the first time. See 2022-NMCA-022, ¶¶ 14-22. This Court held that, to determine if an inventory search was reasonable under Article II, Section 10, "we must weigh the governmental and societal interests advanced to justify the intrusion against the constitutionally protected interest of the individual citizen in the privacy of his effects." Jim, 2022-NMCA-022, ¶ 22 (text only) (citation omitted). After entry of the judgment and sentence, this appeal followed.

DISCUSSION

{¶7} Defendant challenges the denial of his motion to suppress. Defendant argues, as he did below, that the opening of the zipped bag and seizure of the methamphetamine during the inventory search was unconstitutional under the greater protection afforded under Article II, Section 10. Defendant cites the new framework articulated in Jim to support his claim. The State responds that Defendant lacked standing to challenge the search, and alternatively argues that the search was reasonable under both the pre-Jim and post-Jim inventory search framework.

{¶8} "Appellate review of a motion to suppress presents a mixed question of law and fact. We review factual determinations for substantial evidence and legal determinations de novo." State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks and citation omitted).

I. Defendant's Standing to Challenge the Search

{¶9} We begin with the State's contention that Defendant lacks standing to challenge the search because Defendant testified that he did not own the black zipper bag at trial. The State raises this argument for the first time on appeal. Defendant responds with multiple arguments: the State did not challenge standing below, standing is an improper basis for affirmance because it is a factual issue that was not litigated below, the State's argument requires Defendant to unfairly choose between constitutional rights, and the facts at trial establish Defendant's standing to challenge the search of the vehicle which he describes as his. We agree with Defendant that the facts at trial establish Defendant's standing to challenge the search of his vehicle, including the black bag, and explain.^[2] {¶10} "To establish standing, [a d]efendant must demonstrate that he had a subjective expectation of privacy that society will recognize as reasonable." State v. Van Dang, 2005-NMSC-033, ¶ 7, 120 P.3d 830. We review the entire record, and generally "one who owns, controls, or lawfully possesses property has a legitimate expectation of privacy." Id.

{¶11} Officer Wrye testified at trial that Defendant was the only person in the vehicle when he stopped it and that he had not seen anyone else drive the vehicle. Officer Wrye additionally testified at trial and during the motion hearing that he had seen Defendant driving the vehicle numerous times over the previous week. Defendant's wife testified that although her mother owns the vehicle, Defendant is the person who uses it.

{¶12} Under these uncontested facts, Defendant is a regular, permissive user of the vehicle and exerted control over the vehicle and its contents, including the black zipper bag. Therefore, we hold that Defendant had standing to contest the search of the black bag located inside the vehicle despite denying that the methamphetamine and drug paraphernalia were his during his trial testimony. Compare State v. Soto, 2001-NMCA-098, ¶¶ 5, 8, 131 N.M. 299, 35 P.3d 304 (concluding that the defendant was a regular, permissive user of his girlfriend's vehicle and had standing to challenge the search because his girlfriend and the defendant lived together, the vehicle was their only car, both used it on a day-to-day basis, and the defendant routinely used the car), and State v. Leyba, 1997-NMCA-023, ¶ 14, 123 N.M. 159, 935 P.2d 1171 (concluding that the defendant had standing to challenge the search of the vehicle because the defendant introduced evidence that the owner of the vehicle had given the defendant permission to use it, making the defendant a permissive user who exerted control of the vehicle and its contents), with Van Dang, 2005-NMSC-033, ¶¶ 2, 12 (concluding that the defendant did not have standing to challenge a search in a rental vehicle that his uncle rented because the defendant did not present evidence that his uncle gave permission to use the rental or authorized the defendant's use of the vehicle). Because we hold that Defendant had standing to challenge the search, we next evaluate the search of the zipped bag during the inventory search.

II. The Inventory Search

{¶13} Defendant concedes, and the State agrees, that the search and seizure of the methamphetamine was reasonable under the Fourth Amendment. Defendant only argues that the search of the zipped bag and seizure of its contents during the inventory search violated his right under Article II, Section 10 of the state constitution. We therefore begin our analysis by reviewing this Court's departure from federal precedent in Jim.

A. Article II, Section 10 Departs From Federal Jurisprudence

{¶14} In Jim,^[3] this Court departed from federal inventory search precedent and held that, to determine if the search of a closed and locked container in an automobile during an inventory search was reasonable under Article II, Section 10 "we must weigh the...