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State v. Rodriguez

Court of Appeals of New Mexico

January 26, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ROBERTO RODRIGUEZ, Defendant-Appellant.

         This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

         APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Sarah C. Backus, District Judge

          Hector 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.

          MEMORANDUM OPINION

          M. MONICA ZAMORA, JUDGE.

         {1} 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 affirm.

         I. BACKGROUND

         {2} 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.

         {3} 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 arguments.

         II. DISCUSSION

         A. Defendant's Motions to Suppress Evidence

         {4} "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 964.

         1. Defendant Voluntarily Consented to the Warrantless Search of His Residence

         {5} 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.

         {6} 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.

         {7} "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.

         {8} 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.

         {9} 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 residence.

         {10} 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.

         2. Defendant's Motion to Suppress His Statements a. Defendant's Motion Was Untimely

         {11} 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 ...


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