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State v. Widmer

Court of Appeals of New Mexico

March 5, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
RONALD WIDMER, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender C. David Henderson, Appellate Defender Santa Fe, NM for Appellant.

          OPINION

          VIGIL, Judge.

         {¶1} The district court denied Defendant Ronald Widmer's motion to suppress on grounds that inculpatory statements he made without the benefit of Miranda warnings were admissible under the police officer safety exception to Miranda. We disagree and reverse.

         BACKGROUND

         {¶2} Defendant was found guilty by a jury on one count of possession of a controlled substance (methamphetamine), contrary to NMS A1978, Section 30-31 -23 (2011). Defendant's conviction stemmed from the detention and search of his person that occurred during an Albuquerque, New Mexico Police Department (APD) investigation into whether a moped in Defendant's possession was stolen. (3} Defendant filed a pre-trial motion to suppress statements he made, together with any drugs and paraphernalia seized from his person by the APD officers. Because Defendant's motion was untimely, the district court decided to address the merits of Defendant's motion during the trial, and together with any related constitutional issues as they arose while the evidence at trial was being presented.

         {¶4} APD Officers Frank Baca and "Speedy" Apodaca, as well as APD forensic scientist Manuel Gomez testified. In addition, Defendant provided limited testimony outside of the presence of the jury. APD dispatch received an anonymous tip reporting two individuals in a Walgreens parking lot were trying to start a moped that appeared to have been tampered with, and Officers Baca and Apodaca were dispatched to investigate. Upon arriving at the Walgreens at around 11:00 p.m., Officer Apodaca testified that he approached Defendant and his companion, Lydia Alvarez, who were standing around a moped meeting the tip's description, and asked what was going on and what were they doing. Defendant and Ms. Alvarez, according to Officer Apodaca, cooperated with the officers and explained that their moped was having mechanical issues due to a low battery. Although Defendant told the officers that he owned the moped, Officer Apodaca said they continued to investigate because there was damage to the moped's ignition, which indicated that it may have been stolen.

         {¶5} Officer Apodaca located a VIN number on the moped and ran that information through the National Criminal Information Center (NCIC)-a database through which police run checks on potential stolen vehicles, firearm inquiries, and warrant checks. At the same time, Officer Baca collected and ran the personal information of Defendant and Ms. Alvarez through NCIC and learned that Defendant had a possible active felony arrest warrant.

         {¶6} As soon as the officers learned of the possible arrest warrant, within only minutes of arriving at Walgreens, and before receiving confirmation from dispatch that the arrest warrant was in fact active, Officer Apodaca detained Defendant, placed him in handcuffs, and directed him to sit near the sidewalk.

         {¶7} While Defendant was being handcuffed, Officer Apodaca searched Defendant's person. During the search and without reading Defendant his Miranda rights, Officer Apodaca asked Defendant "Is there anything else on you that I should know about?"-which both officers testified is a routine question asked of individuals being patted down to ensure police safety. In response to Officer Apodaca's question, Officer Baca testified over defense counsel's objection (which was overruled) that Defendant admitted to having some methamphetamine in a red pill container hanging from his belt loop. As a result, Officer Apodaca seized a pill container which contained a white powdery substance from Defendant's belt loop. Shortly thereafter, APD dispatch confirmed that the arrest warrant for Defendant was outstanding and Defendant was placed in Officer Apodaca's squad car and removed from the scene.

         {¶8} The district court gave two explanations for its ruling admitting Defendant's statement into evidence. The district court ruled that Defendant's questioning was permissible as incident to a lawful arrest under the police safety exception to Miranda. In a subsequent statement, the district court further explained that it refused to "get into the artfulness or lack of artfulness" of Officer Apodaca's question to Defendant. The jury was instructed that:

Evidence has been admitted concerning a statement allegedly made by [D]efendant. Before you consider such statement for any purpose, you must determine that the statement was given voluntarily. In determining whether a statement was voluntarily given, you should consider if it was freely made and not induced by promise or threat.

         {¶9} Officer Apodaca further testified that during the investigation at Walgreens he and Officer Baca also spoke with Ms. Alvarez. As a result of this interaction, Officer Apodaca testified that he seized a small baggie containing a white powdery substance from Ms. Alvarez, which Officer Baca had noticed was underneath Ms. Alvarez's leg where she sat on the sidewalk. Believing that all of the white powder seized from Defendant and Ms. Alvarez was methamphetamine, Officer Apodaca combined the contents of the pill container from Defendant's belt with the contents in the baggie seized from Ms. Alvarez into one bag before tagging it into evidence.

         {¶10} Mr. Gomez, who was qualified as an expert in forensic science and analysis of controlled substances, testified that a single sample of the contents of the bag containing the mixed white powders seized from Defendant and Ms. Alvarez was tested for controlled substances. This sample tested positive for methamphetamine.

         {¶11} The jury returned a general verdict of guilty, and Defendant appeals.

         DISCUSSION

         I. ...


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