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FROM THE DISTRICT COURT OF TAOS COUNTY Sarah C. Backus,
H. Balderas, Attorney General Maris Veidemanis, Assistant
Attorney General Santa Fe, NM for Appellee.
Bennett J. Baur, Chief Public Defender Will O'Connell,
Assistant Appellate Defender Santa Fe, NM for Appellant.
MONICA ZAMORA, JUDGE.
Defendant Roberto Rodriguez appeals from an order of
conditional discharge and probationary supervision, entered
after a jury found him guilty of possession of a controlled
substance, contrary to NMSA 1978, Section 30-31-23(E) (2011).
Defendant argues that: (1) the district court erred in
denying his motions to suppress evidence, (2) the evidence
was insufficient to support the guilty verdict for possession
of a controlled substance, (3) the district court erred in
denying his motion to dismiss the case, and (4) he was denied
his right to a speedy trial. For the following reasons, we
On September 30, 2010, New Mexico State Police officers went
to Defendant's residence. Sergeant Lorenzo Aguirre and
Lieutenant Eduardo Martinez knocked on the door of the
residence and spoke with Defendant, who invited them in.
According to Sergeant Aguirre and Lieutenant Martinez,
Defendant consented to a search of his residence for
narcotics. Inside Defendant's residence officers
discovered what they believed to be cocaine.
Defendant was arrested and charged with possessing cocaine
with the intent to distribute it, possession of cocaine, and
possession of drug paraphernalia. After a jury trial,
Defendant was convicted of possession of cocaine. Because
this is a memorandum opinion and the parties are familiar
with the facts and procedural background, we reserve further
discussion of the pertinent facts within the context of
Defendant's Motions to Suppress Evidence
"In reviewing a trial court's denial of a motion to
suppress, [appellate courts] observe the distinction between
factual determinations[, ] which are subject to a substantial
evidence standard of review and application of law to the
facts, which is subject to de novo review." State v.
Hubble, 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d
579 (alteration, internal quotation marks, and citation
omitted). "[Appellate courts] view the facts in the
manner most favorable to the prevailing party and defer to
the district court's findings of fact if substantial
evidence exists to support those findings." State v.
Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d
Defendant Voluntarily Consented to the Warrantless Search of
Defendant argues that the district court erred in denying his
motion to suppress the evidence seized from his residence.
Defendant challenges the district court's determination
that he voluntarily consented to the warrantless search. We
are not persuaded.
Warrantless searches are presumed to be unconstitutional
under the Fourth Amendment of the United States Constitution
and Article II, Section 10 of the New Mexico Constitution.
See State v. Rowell, 2008-NMSC-041, ¶ 10, 144
N.M. 371, 188 P.3d 95 ("Any warrantless search analysis
must start with the bedrock principle of both federal and
state constitutional jurisprudence that searches conducted
outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable, subject only to
well-delineated exceptions." (emphasis, internal
quotation marks, and citation omitted)). The state has the
burden to prove facts that justify a warrantless search.
See State v. Paul T., 1999-NMSC-037, ¶ 10, 128
N.M. 360, 993 P.2d 74.
"One of the settled exceptions to the warrant
requirement is consent." State v. Flores,
2008-NMCA-074, ¶ 12, 144 N.M. 217, 185 P.3d 1067.
"The voluntariness of a consent to search is initially a
question of fact for the [district] court." State v.
Flores, 1996-NMCA-059, ¶ 20, 122 N.M. 84, 920 P.2d
1038. We apply a three-tiered test for determining whether
consent is voluntary: (1) there must be clear and positive
testimony that the consent was unequivocal and specific, (2)
the consent was given without duress or coercion, and (3) the
first two elements are viewed with a presumption against the
waiver of constitutional rights. Id.
Here, Defendant contends that the State failed to establish
that his consent was specific and unequivocal. Specifically,
Defendant contends that the State failed to establish that he
actually knew that he was consenting to a search of his
residence. "Evidence of oral consent can be established
through testimony of the parties." State v.
Davis, 2013-NMSC-028, ¶ 17, 304 P.3d 10. "The
testimony must be clear and positive in order to show
specific and unequivocal consent." Id.
"The act of signing a consent to search form can also
constitute specific and unequivocal consent."
Id. ¶ 18.
At the suppression hearing, Lieutenant Martinez and Sergeant
Aguirre both testified that Defendant voluntarily gave his
oral consent to the search. Both officers also testified that
Defendant was presented with a Spanish-language consent form,
which Defendant said he was able to read. Sergeant Aguirre
testified that he asked Defendant if he understood the
consent to search form and that Defendant confirmed that he
did. Both officers saw Defendant sign the consent form.
According to Lieutenant Martinez, Defendant did not have any
questions about the consent form and he did not say anything
after signing it. The State also presented an audio recording
of the encounter in which Defendant gave his consent to
search the residence. Defendant did not present any evidence
to refute the voluntariness of the consent to search his
The district court concluded that Defendant gave valid,
knowing, intelligent, and voluntary consent to search his
residence and that the consent was not given under duress,
intimidation, or coercion. We conclude that the district
court's ruling was supported by substantial evidence and
that the court did not err in denying the motion to suppress
the evidence seized from his residence.
Defendant's Motion to Suppress His Statements a.
Defendant's Motion Was Untimely
Three days before trial, Defendant moved to suppress
statements he made to Lieutenant Martinez on the day his
residence was searched. Defendant argues that the district