State v. Soto

• Decision Date: 17 August 2001
• Docket Number: No. 20,986.,20,986.
• Citation: 35 P.3d 304,131 N.M. 299,2001 NMCA 98
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donisio SOTO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

35 P.3d 304

131 N.M. 299

2001 NMCA 98

STATE of New Mexico, Plaintiff-Appellee, v. Donisio SOTO, Defendant-Appellant.

No. 20,986.

Court of Appeals of New Mexico.

August 17, 2001.

Certiorari Denied September 26, 2001.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,116, September 26, 2001.

OPINION

FRY, Judge.

{1} Defendant appeals his convictions of two counts of burglary and one count each of larceny and disposing of stolen property. Defendant argues that the district court should have granted his motion to suppress evidence seized during an illegal search. Defendant also argues that the district court should have directed a verdict of not guilty as to one of the two burglary counts because only one burglary occurred. We reverse the district court's determination that Defendant lacked standing to challenge the search of the car used jointly by Defendant and his girlfriend and remand for rehearing on the motion to suppress. We affirm the district court's denial of Defendant's motion for directed verdict.

BACKGROUND

{2} This case arose from a commercial burglary of the "Bug Way," a Volkswagen repair business in Carlsbad, New Mexico, owned by Don Mathis. The business premises comprised two buildings: a shop, which had an office and three automobile bays, and an adjacent, unattached, storage building where the business stored the parts used to repair automobiles. Mathis also permitted his stepfather to use the storage building to pursue a hobby. The burglar entered the shop through the office window and entered the storage building by prying apart the siding. The stolen property consisted of auto mechanic tools belonging to Mathis, his chief mechanic, and his stepfather, valued at approximately $4,000.

{3} Several witnesses reported seeing a four-door, brown/tan/gold automobile parked in the vicinity of the Bug Way around the time the burglary occurred. One witness reported that there was something red in the car's opened trunk. Officers located a car in Carlsbad matching the various witnesses' descriptions. The car was a gold 1980 Oldsmobile registered to Vera Rodriguez, who resides in Artesia with Defendant and her son. Rodriguez testified at trial that she and Defendant both use the car, and he could have been using the car on the evening the witnesses saw it parked near the Bug Way.

{4} After locating the car, two officers went to Rodriguez's place of employment and asked her for consent to search the car. Rodriguez testified that she consented to a warrantless search, during which the officers found a small red toolbox in the car's trunk. Rodriguez claimed the box belonged to her. The officers seized the box and told Rodriguez they had concluded the search and that she could return to work. There is conflicting testimony as to what occurred next. Rodriguez testified that, a few minutes after the officers had finished the search, she looked out the door and saw that they were again looking in the trunk of her car. She walked back out and saw that the officers had a silver tool that had not been discovered during the previous search. Contrary to Rodriguez's testimony, however, the officers testified that they performed only one search of the trunk. The officers later took the red box and the silver tool to Mathis to be identified. Mathis believed the items were his because the toolbox and tool were generally similar to items missing from the Bug Way.

{5} Prior to trial, Defendant alleged that there had been irregularities in the search of the car. Specifically, Defendant objected to the second search of the car that he claims occurred after the officers had completed the initial search performed with Rodriguez's consent. Defendant claimed that Rodriguez did not consent to the second search, and that the evidence seized as a result of the second search should be suppressed. The district court denied Defendant's motion on the ground that he lacked standing, stating that Defendant failed to demonstrate "that he had an actual, subjective expectation of privacy in this automobile that was owned by his girlfriend. The car was titled to the girlfriend. [Defendant] was not present at the time of the search." The court expressly refused to find that Defendant was a permissive user of the car.

DISCUSSION

Motion to Suppress

{6} In reviewing a district court's denial of a motion to suppress, we determine whether the law was correctly applied to the facts, giving due deference to the factual findings of the lower court. State v. Duquette, 2000-NMCA-006, ¶ 7, 128 N.M. 530, 994 P.2d 776. A denial of a motion to suppress "will not be disturbed if it is supported by substantial evidence unless it also appears that the ruling was incorrectly applied to the facts." State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. The trial court must resolve conflicts in the evidence, but "[w]hether that evidence complies with constitutional requirements is ... a legal question reviewed by the appellate court on a de novo basis." Id. (quoting State v. Vargas, 120 N.M. 416, 418, 902 P.2d 571, 573 (Ct.App. 1995) (internal quotation marks omitted)).

{7} "In ascertaining the standing of an individual to challenge the propriety of a search, the focus is on the person's legitimate expectations of privacy." State v. Villanueva, 110 N.M. 359, 365, 796 P.2d 252, 258 (Ct.App.1990). In making this determination, we ask first whether Defendant has exhibited a subjective expectation of privacy, and second, whether Defendant's expectation is one society will recognize as reasonable. State v. Esguerra, 113 N.M. 310, 313, 825 P.2d 243, 246 (Ct.App.1991).

{8} At the hearing on the motion to suppress, the parties did not dispute that Defendant and Rodriguez lived together, that his property was mingled with hers, that the Oldsmobile was their only car and was used by both of them on a day-to-day basis, and that Defendant routinely used the car. Defendant argued that these facts gave rise to a reasonable expectation of privacy in the car giving Defendant the right to challenge the propriety of the second search of the car's trunk. The State contended that Defendant could have no expectation of privacy in the car because he did not own it and he was not in physical control of the car at the time of the search. We agree with Defendant that, as a regular, permissive user of the car, through his ongoing relationship with Rodriguez, he exerted control over the car and its contents. Thus, Defendant had a subjective expectation of privacy in the car. See State v. Leyba, 1997-NMCA-023, ¶ 14, 123 N.M. 159, 935 P.2d 1171

. The trial court in effect found that Defendant was not a permissive user of the car but that finding is not supported by substantial evidence. At the suppression hearing, the State did not dispute that Defendant was a permissive user, and at trial Rodriguez testified that he was. Cf. State v. Martinez, 94 N.M. 436, 439-40, 612 P.2d 228, 231-32 (1980) (holding that appellate court is not limited to the record made at the suppression hearing). There was no evidence controverting this testimony.

{9} We next determine whether Defendant's expectation of privacy is one recognized by society as reasonable. We find Leyba to be dispositive. In Leyba, the defendant neither owned nor occupied the car in question at the time of the search, but she was a permissive user and demonstrated some interest in the contents of the car's trunk. Id. ¶ 4. We concluded that the defendant had standing to challenge the search of the car because she was a permissive user who had an ongoing relationship with the owner through which she exerted control over both the car and its contents. Id. ¶ 18. Here, the circumstances are similar, and we conclude that society is prepared to recognize as reasonable Defendant's expectation of privacy in a car he shared with his live-in companion.

{10} The State contends that, even if Defendant had standing to challenge the search, nevertheless we should affirm the trial court's denial of Defendant's motion to suppress based on the evidence adduced at trial. We do not agree that we are in a position to affirm on this record. At the suppression hearing the parties did not introduce any evidence regarding the particulars of the car search, and at trial the evidence was conflicting. Vera Rodriguez testified that the officers performed two distinct searches of her car's trunk-one to which she consented and one conducted without consent. The officers testified that they performed only one consented-to search of the trunk. Because the trial court did not have the opportunity to evaluate this evidence in the context of Defendant's suppression motion, and given the necessity for assessment of credibility, remand is appropriate. Defendant had standing to challenge the search of the car, and the district court must reconsider his motion to suppress.

Multiple Charges of Burglary

{11} At the conclusion of the State's case-in-chief, Defendant moved for a directed verdict as to the two burglary counts, arguing that the two should be merged. The district court denied the motion ruling that the two buildings burglarized supported separate counts. Because this issue will likely arise if there is a new trial on remand, we address it now in the interest of judicial efficiency.

{12} The State argues that Defendant failed to preserve his challenge to multiple charges because he did not argue at trial that he exhibited a single intent supporting only a single crime. The State contends that the question of intent is a factual question that must be preserved through argument and through tender of an appropriate jury instruction. We disagree with the State's underlying premise that this issue involves a fact question. The propriety of...