State v. Silvas, Docket No. 30,917
| Decision Date | 10 July 2013 |
| Docket Number | Docket No. 30,917 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DONNIE SILVAS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
for Appellee
Bennett J. Baur, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant appeals his convictions for trafficking by possession with intent to distribute methamphetamine and for conspiracy to commit trafficking, the result of a surveillance of his residence during a drug investigation in Lordsburg, New Mexico. Defendant argues that evidence should have been suppressed because it was seized through a pretextual stop of a car in which his co-conspirator was a passenger, and through a warrantless search of his motel room. He also appeals the denial of a motion for a new trial and asserts that his conspiracy conviction should be reversed. We affirm in part and reversein part.
{2} We briefly set out the facts of the case and a time line of events to assist in our analysis below. On March 14, 2008, as part of a narcotics task force operation in Hidalgo County, New Mexico, local officers and agents were monitoring suspected drug activity at the American Motor Inn in Lordsburg. Suspecting a drug deal had taken place in the hotel room of Defendant, and under operational orders to stop every car emerging from the hotel, authorities followed Patricia Ortega as she left the hotel parking lot as a passenger in a white car. Lordsburg Police Sergeant Plowman, assisting in the investigation, looked for probable cause to pull the car over, eventually making a traffic stop for failure to use a turn signal. Ortega and her daughter, also a passenger, got out of the car and went to her motel room at the nearby Budget Motel. The driver of the car was issued a warning, and no evidence was seized from his car. However, Sergeant Plowman remained in contact with Ortega as authorities sought to obtain a search warrant for her motel room. Before the search warrant was obtained, Ortega emerged from her room with 1.7 grams of methamphetamine and told police that she had bought it earlier in the day from Defendant in his room at the American Motor Inn.
{3} Later that day, again while waiting for a warrant but before one was issued, law enforcement agents forced their way into Defendant's hotel room while he was gone. No evidence was seized during the search of the hotel room. Defendant was arrested three days later and charged with trafficking a controlled substance and with conspiracy in connection with the March 14 sale of narcotics to Ortega.
{4} After a two-day jury trial, Defendant was convicted on both counts. He brought this appeal.
{5} Defendant raises four issues on appeal: (1) he contends that a pretextual stop of the car in which Ortega was a passenger produced evidence that should have been suppressed; (2) he argues for another order of suppression because of a warrantless search of his hotel room; (3) he challenges the district court's denial of a motion for a new trial based on the State's failure to disclose an audio recording of Defendant's post-arrest interview with police; and (4) he contends that Wharton's Rule bars a conspiracy conviction under this set of circumstances. We address each issue in order.
{6} Defendant first argues that the traffic stop of the car in which Ortega was a passenger was pretextual and that any evidence recovered in connection with that traffic stop should be suppressed. See N.M. Const. art. II, § 10 (); State v. Ochoa, 2009-NMCA-002, ¶ 25, 146 N.M. 32, 206 P.3d 143 (). Defendant contends that Sergeant Plowman was under orders to assist in the investigation of Defendant's alleged drug operation by stopping the drivers of cars seen coming out of the American Motor Inn parking lot and committing a traffic violation. The State counters by challenging Defendant's standing to contest the constitutionality of a traffic stop at which he was not present. The State also asserts that even if Defendant was able to establish standing, evidence supports the district court's finding that the traffic stop was constitutionally sound.
{7} Defendant filed a motion to suppress all physical evidence and statements obtained as a result of the pretextual stop, citing both the New Mexico Constitution and the Fourth Amendment of the United States Constitution. The district court denied the motion to suppress, concluding that the stop was not pretextual.
{8} "A district court's denial of a motion to suppress will not be reversed if it is supported by substantial evidence, the only exception being if the ruling was incorrectly applied to the facts." State v. Van Dang, 2005-NMSC-033, ¶ 6, 138 N.M. 408, 120 P.3d 830. The district court's findings of fact are reviewed for substantial evidence, and the court's application of the law to those facts is reviewed de novo. State v. Soto, 2001-NMCA-098, ¶ 6, 131 N.M. 299, 35 P.3d 304.
{9} We first address the threshold issue raised by the State: whether Defendant has standing to ask the court to suppress evidence related to a pretextual stop of a car in which he was not riding and did not have a possessory interest. "Standing is . . . a substantive doctrine that identifies those who may assert rights against unlawful searches and seizures." State v. Porras-Fuerte, 119 N.M. 180, 183, 889 P.2d 215, 218 (Ct. App. 1994). Whether a party has standing to bring forth a claim is a question of law that we review de novo. Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, ¶ 6, 279 P.3d 772.
{10} We have previously stated that "standing is a fact-based issue on which efendant must be given the opportunity to present evidence to the [district] court." State v. Leyba, 1997-NMCA-023, ¶ 6, 123 N.M. 159, 935 P.2d 1171. At the district court's first hearing on Defendant's motion to suppress evidence, the State asserted that Defendant lacked standing to contest the seizure of evidence from Ortega after the stop of the car in which she had been a passenger. The district court found that Defendant had standing to contest the pretextualstop because there was a "nexus" between the stop of the car in which Ortega was a passenger and the arrest of Defendant.
{11} In order to establish standing, a defendant "must demonstrate that he had a subjective expectation of privacy that society will recognize as reasonable." Van Dang, 2005-NMSC-033, ¶ 7. "Generally, one who owns, controls, or lawfully possesses property has a legitimate expectation of privacy." Id. () (citing Rakas v. Illinois, 439 U.S. 128, 148 (1978). Generally, defendants, when asserting their constitutional rights against searches and seizures, cannot do so vicariously through others. State v. Munoz, 111 N.M. 118, 119, 802 P.2d 23, 24 (Ct. App. 1990) (); United States v. Padilla, 508 U.S. 77, 81 (1993) (per curiam) (); Rakas, 439 U.S. at 134 (). In Van Dang, our Supreme Court held that even the driver of a rental car did not have standing to challenge a search of the car when that person was neither the one who rented the car nor listed as an authorized driver. 2005-NMSC-033, ¶ 10, n.1.
{12} We have previously stated that a passenger in a car cannot assert the Fourth Amendment rights of the driver of the car to be free from unreasonable searches and seizures. State v. Chapman, 1999-NMCA-106, ¶ 26, 127 N.M. 721, 986 P.2d 1122 ("Even if the driver could raise an invasion of her own Fourth Amendment rights because of a possessory interest in the car, an issue that we do not address or decide, that right may not be vicariously asserted by efendant."). In Chapman, this Court referenced Alderman v. United States, 394 U.S. 165, 174 (1969) (plurality opinion) as recognition for the principle that "Fourth Amendment rights are personal rights which . . . may not be vicariously asserted." 1990-NMCA-106, ¶ 26. The Chapman Court refused to review the merits of that defendant's argument. Id.
{13} Defendant urges us to analyze the issue of standing to contest a pretextual stop under the New Mexico Constitution. He argues that Article II, Section 10 of the New Mexico Constitution provides broader protections than does the Fourth Amendment of the United States Constitution, therefore, it provides a...
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