State v. Zamora

• Decision Date: 11 February 2005
• Docket Number: No. 23,436.,23,436.
• Citation: 137 N.M. 301,110 P.3d 517
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Leroy ZAMORA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

110 P.3d 517

137 N.M. 301

STATE of New Mexico, Plaintiff-Appellee, v. Leroy ZAMORA, Defendant-Appellant.

No. 23,436.

Court of Appeals of New Mexico.

February 11, 2005.

Certiorari Granted April 4, 2005.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Steven J. Potter, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 29,117, April 4, 2005.

OPINION

VIGIL, Judge.

{1} Appellee State of New Mexico's motion for rehearing is denied. The opinion filed in this case on January 13, 2005, is withdrawn and this opinion is substituted in its place.

{2} Defendant was convicted of trafficking by possession with intent to distribute cocaine, conspiracy, possession of drug paraphernalia, and concealing identity following the search of a motel room. The dispositive issues are whether Defendant has standing to challenge the search of the motel room and whether a warrantless search of the medicine cabinet in the bathroom of the motel room can be justified as a protective sweep. We hold that Defendant has standing to challenge the search and that the search of the medicine cabinet went beyond the parameters of a protective sweep. We reverse and remand for a new trial.

FACTS

{3} Defendant filed a motion to suppress three days before the trial date, arguing that evidence discovered during the search of a motel room should be suppressed as resulting from an unlawful, warrantless search of the motel room. Noting that the motion was untimely, the trial court ruled that it would not hold a separate hearing on the motion, but would entertain it during the trial. The following is the material evidence that is pertinent to the issues.

{4} Sergeant Depies of the Albuquerque Police Department responded to a call from the dispatcher that an individual was trespassing on the premises of the Economy Inn. Sergeant Depies identified the trespasser who admitted he had been smoking crack cocaine. The trespasser subsequently identified Room 244 in the motel as the place where he purchased the crack cocaine. Sergeant Depies then told the motel clerk what he had learned, and the clerk said the room had been rented two days earlier by Thomas Henderson and his mother Erica, according to the registration. Sergeant Depies called other officers for assistance to continue the investigation.

{5} Defendant, his cousin Manuel Hernandez, and Defendant's aunt were in Room 244 at the Economy Inn when police officers knocked on the door. Defendant testified that prior to going to the motel, he had alternated between living on the street and staying at his mother's house. He saw Hernandez at a Walgreen's and Hernandez said that he had a motel room that his mother was also using and he invited Defendant to stay with them in the motel room. Hernandez had rented the room two days earlier, on October 12, 2000, under the aliases of Thomas and Erica Henderson. Defendant testified he called his mother to bring him some clothes when they arrived at the motel. Defendant understood he was invited to spend the night in the motel room. After receiving clean clothes sent by his mother, Defendant said he took a shower, combed his hair, put clean clothes on, and got into the only bed in the room. Defendant testified that he had an expectation of privacy in the room "[b]ecause [his] family was there" and because he was going to spend the night there.

{6} Sergeant Depies went to Room 244, accompanied by Officers Leveling and Melton, wearing his uniform. As Sergeant Depies approached the room, "a subject peeked out around the drapes" at the officers "and then ran back into the room." Sergeant Depies also heard "running" from inside the room which made him suspicious. Sergeant Depies knocked on the door, announced, "Police," and either ordered or requested the occupant to come to the door. Hernandez opened the door. Sergeant Depies asked whose room it was and Hernandez answered it belonged to him and his mother. Sergeant Depies asked Hernandez if he could "step into his room, talk about an allegation of drug dealing from that room and he nodded yes." Sergeant Depies added, "[he] might have muttered yes or something, opened the door, walked in and left the door open." The officers walked in the room. Present in the room were Hernandez, Defendant, and Defendant's aunt. Sergeant Depies saw pieces of crack cocaine, a long razor blade, and a crack pipe on a table in the corner of the room. Sergeant Depies asked Hernandez if the substance he observed would test positive for cocaine and Hernandez responded, "yeah, because my mom smokes crack." Sergeant Depies then handcuffed Hernandez and instructed the officers to handcuff Defendant and his aunt. Shortly after Officer Melton handcuffed Hernandez, he began a protective sweep of the room, described as follows by Sergeant Depies:

A protective sweep would just encompass going through, looking for bodies, making sure live people, making sure there isn't a person in there that could possibly pose a threat to us while we're doing the investigation. What we would do, anyone hiding in the bathroom, hiding in the tub, hiding in the closet here, there where people can be found and that's what Officer Melton—he was doing. He was looking that these were the only three people inside the motel room.

{7} Officer Melton testified that Hernandez "nodded, [and] walked into the room" when Sergeant Depies asked if the officers could come into the room. Officer Melton testified, "[m]y main responsibility was to come in, make sure for Sergeant Depies' safety as he conducted an investigation." He described how he performed the protective sweep as follows:

I went into the back bathroom, when you walk in I wanted to look inside, make sure no one else was also hiding inside the bathroom. I noticed that the window was open and so I looked outside. I had been on several calls before where people had thrown things out the window where they didn't want us to find. I look outside, I didn't find anything. I look back towards where the bath tub was, shower area was, I notice that the vanity, the medicine cabinet, was opened approximately two or three inches. I looked and I could see ... inside there. I notice a plastic bag, just a light plastic bag. Several times that I arrested people I have found narcotics in plastic bags, so I opened the vanity and I found two plastic bags containing a large amount of what I thought at the time was crack cocaine and which was later determined to be by Officer Chavez that came and field tested it for us.

STANDARD OF REVIEW

{8} "In reviewing a suppression order, this Court reviews the facts under a substantial evidence standard and reviews the district court's application of the law to those facts de novo." State v. Cassola, 2001-NMCA-072, ¶ 2, 130 N.M. 791, 32 P.3d 800. The district court made no findings of fact. "This is a regular occurrence when we review decisions on motions to suppress evidence in criminal cases." State v. Jason L., 2000-NMSC-018, ¶ 11, 129 N.M. 119, 2 P.3d 856 (quoting State v. Gonzales, 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355). In such a circumstance, where the district court made no findings of fact, "our practice has been to ... employ presumptions [and as] a general rule, we will indulge in all reasonable presumptions in support of the district court's ruling." Id. (internal quotation marks and citation omitted). However, "[o]ne constraint upon that practice is that without an indication on the record that the district court rejected the uncontradicted evidence, we presume the court believed all uncontradicted evidence." Id. Here, the district court did state on the record, "I do find that Defendant's testimony is a little bit questionable in certain areas," and found there was no standing. However, this alone is insufficient. Unless the district court makes findings of fact, or rejects specific uncontradicted testimony with reasons on the record, we presume the district court believed the uncontradicted evidence. We determine whether the law was correctly applied to the undisputed facts. See State v. Pierce, 2003-NMCA-117, ¶ 10, 134 N.M. 388, 77 P.3d 292 (stating that when the facts are not in dispute on a motion to suppress, we determine whether the law was correctly applied to those facts); see also State v. Pena, 108 N.M. 760, 767, 779 P.2d 538, 545 (1989) (reversing motion to suppress when evidence that search was beyond the scope of consent was "without conflict").

A. Standing

{9} The trial court orally ruled that Defendant had no standing to challenge the search of the room. No formal written order was filed. Defendant argues this ruling was incorrect. We agree.

{10} Defendant's standing to challenge a search as violative of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution depends on whether he has a reasonable expectation of privacy in the place searched. State v. Leyba, 1997-NMCA-023, ¶ 9, 123 N.M. 159, 935 P.2d 1171. Whether a defendant has standing involves two inquiries: (1) whether the defendant had an actual, subjective expectation of privacy in the premises searched; and (2) whether the defendant's "subjective expectation [is] one that society is prepared to recognize as reasonable." State v. Esguerra, 113 N.M. 310, 313, 825 P.2d 243, 246 (Ct.App.1991) (internal quotation marks and citation omitted); accord Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

{11} Defendant's testimony establishes that he had an actual and subjective expectation of privacy in the motel room. He testified that he had an expectation of privacy in the room because his "family" was there and because he was going to spend the night there. The real issue raised by this case is whether Defendant's subjective expectation of privacy is one that society is prepared to...