State v. Ortiz

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-092

Filing Date: August 13, 2009

Docket No. 27,544

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

MARTY ORTIZ,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Stephen D. Pfeffer, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Joel Jacobsen, Assistant Attorney General
Albuquerque, NM

for Appellant

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Appellee

OPINION

SUTIN, Judge.

{1} The State appeals from the district court’s order dismissing the charges against
Defendant with prejudice, in part due to the State’s failure to comply with a discovery order
under Rule 5-501(A)(3) NMRA. The court determined that Defendant made a threshold
showing that the discovery requested was potentially material to the defense and ordered the
State to identify whether any such material evidence existed. The State chose not to comply

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in any manner with the district court’s order, and the court dismissed the case with prejudice.
We conclude the court did not abuse its discretion in doing so.

FACTS

{2} Defendant Marty Ortiz was indicted in April 2006 for driving while intoxicated
(DWI) and three related charges. At a hearing on June 19, 2006, the prosecutor stated that
on the night in question a person overdosed on heroin at a local convenience store, that
police officers were looking for that particular person traveling in a gold or tan Honda or
Acura, and that it turned out the person they were looking for was a passenger in
Defendant’s car. The prosecutor further stated that Officer John Boerth was in a location on
the south side of the city where he witnessed a car weaving and driving recklessly. Officer
Boerth activated his emergency equipment in order to stop the vehicle driven by Defendant.
When Officer Boerth “spotted . . . [D]efendant, he didn’t know if that was the car involved
in the heroin overdose or not.”

{3} Later in June 2006, Defendant filed a motion to suppress all evidence and a request
for an inspection of the videotape of the stop. In the motion, Defendant set out Officer
Boerth’s grand jury testimony “that . . . Defendant’s driving behavior, the reason he stopped
the car, consisted of the multiple infractions of the car failing to maintain [its] lane, multiple
infractions of the car striking the curb finally riding on the curb before the officer pulled the
car over.” This motion also stated that Officer Boerth testified that “he was looking for . . .
Defendant’s car because someone was performing ‘CPR’ on one of the passengers.” In
addition, the motion stated that the videotape of the stop indicated that Defendant had
“complete and lawful control of the vehicle and even used his turn signal to properly pull the
vehicle over for the officer,” thus indicating that Defendant was not engaged in any driving
behavior that would give the officer reasonable suspicion on which to stop him. Defendant
averred in the motion that the search and stop were “pretextual and illegal,” and he asserted
that all of the evidence stemming from the stop should be suppressed.

{4} Defendant also filed a motion to compel specific discovery. This motion sought “any
and all audio recordings and written logs including but not limited to dispatch records and
phone records of any kind which are relevant to the stop and arrest . . . including any
communications between [Officer] Boerth and any dispatcher, police officers, or any other
persons whatsoever.” Defendant asserted in this motion that the videotape of the stop started
at 19:17:45 and ended at 19:50:23, but that the time 19:18:52 to 19:24:27 was missing,
“leaving a ‘gap’ in the [videotape] of six (6) minutes and thirty-five (35) seconds.”
Defendant requested “copies and access to evidence of all oral, electronic[,] telephonic[,] or
written communications made between Officer . . . Boerth and any other person during this
incident.”

{5} In response to Defendant’s motions the State asserted that there was no video footage
missing. The State explained that the video camera taping between 19:17:45 and 19:18:52

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was not related to Defendant’s stop but showed only that the officer was patrolling in the
rain and that the video footage involving Defendant began at 19:24:27.

{6} At a pretrial conference in July 2006, Defendant reiterated his argument that the
videotape was missing six minutes of footage and that the videotape produced by the State
did not support the explanation that Officer Boerth gave for pulling him over. Defendant
challenged the stop based on the incomplete videotape and moved to suppress all the
evidence stemming from the stop. Defendant requested dispatch logs and communications
between the officer and dispatch, and he also requested the production of any
communications, including personal cell phone calls, that Officer Boerth had with anyone.

{7} At the same pretrial conference, the prosecutor again discussed what she had learned
about the officer’s activity that evening. She stated that the videotape showed that the
officer was driving on patrol through the rain on an unrelated charge. She also stated that
the reason for the six-minute gap in the videotape was because the camera only turned on
when the emergency equipment was engaged. And she “strongly” objected to the discovery
of Officer Boerth’s personal cell phone records because they “would not be discoverable in
this case.” The discovery and suppression issues were not resolved at this pretrial
conference, and no order was issued as a result.

{8} The cell phone records issue was discussed at a hearing on August 17, 2006. Defense
counsel stated that the officer had testified before the grand jury that he was looking for
someone traveling in Defendant’s car because they had a CPR situation and suggested that
this was an emergency and was the reason why the officer’s lights were activated. Defense
counsel complained that he received dispatch records for every officer involved except
Officer Boerth, and he again requested records of any communications by Officer Boerth,
including personal or departmental cell phone records.

{9} The prosecutor argued, again based on what she had learned from Officer Boerth,
that he was patrolling on Cerrillos Road in Santa Fe, New Mexico and “was looking for a
car that fit . . . [D]efendant’s [vehicle’s] description, however, he never found that car.” She
stated that when the videotape “comes on again[] is when . . . [D]efendant is being pulled
over.” She also stated that at the time Officer Boerth stopped Defendant he was not
dispatched to the location, and it was the prosecutor’s understanding that this was why the
officer was not part of the dispatch records.

{10} The prosecutor argued that the first part of the videotape showed that the officer was
patrolling on Cerrillos Road, in the rain, having nothing to do with Defendant; that the next
time the camera and the emergency equipment were turned on was when the officer pulled
Defendant over; and that there was no six-minute gap because officers do not have their
equipment on constantly. The prosecutor asserted that Defendant was not entitled to private
communications on an officer’s private cell phone number. She wanted Defendant to “brief
that subject, because there is no way that the State is giving out that information.”

{11} In response, defense counsel explained that Defendant was only asking for records
of communications the officer had within the relevant six-minute period. Counsel argued

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that dispatch records showed there was a drug case going on around the time of the six-
minute gap and argued that Defendant had a right to explore whether a stop that started on
a suspicion of drugs turned into a DWI case. Counsel contended that the officer did not have
an expectation of privacy of his cell phone records while on duty, on patrol, in a marked unit,
during an emergency or arrest situation. The prosecutor indicated that an evidentiary hearing
was necessary to resolve factual issues, and she again asserted that the defense did not have
any right to access the officer’s personal cell phone records.

{12} At the close of the foregoing arguments at the August 17 hearing, the court
determined that the issue Defendant raised was “a relevant issue” and that Defendant had a
right to access the requested information even without knowing whether any such
information existed. The court orally granted Defendant’s motion to compel specific
discovery, but stated that (1) the phone records requested were for a very finite period of
time; (2) if there was no recording of a phone conversation, it would be appropriate to
produce the phone record; (3) if there existed a defense to the discovery of the records, such
as the disclosure of a confidential informant, the State could file a motion to prohibit the
discovery; and (4) if there were personal matters irrelevant to the case, the State could file
a motion for an in camera review.

{13} On August 29, 2006, the State filed an amended response to Defendant’s motion to
compel specific discovery. The State asserted that Officer Boerth “has a reasonable
expectation of privacy in his personal cell phone records.” The State cited “U.S.
Constitution, Amendments I, IV[,] and XIV; N.M. Constitution, Art. [II], Sections [4], [10,]
and [18].” The State also asserted that Officer Boerth did “not consent to the disclosure of
his personal cell phone records” and that “[h]e has a constitutionally protected privacy
interest in his personal property.” In addition, the State argued that “[p]ursuant to the
Electronic[] Communications Privacy Act outlined in 18 U.S.C.A. §§ 2510, 2701[,] and
2703(2)(c) [(2006)], the party seeking disclosure of personal cell phone records must make
a showing that there are reasonable grounds to believe that the contents of the records are
relevant and material to an ongoing criminal investigation.” The State further argued that
Defendant failed to make a proper showing of either relevancy or materiality and that merely
requesting the phone records did not satisfy the requirements for obtaining such records.
Attached to the motion was an affidavit of Officer Boerth asserting a constitutional right of
a protected privacy interest in his personal cell phone records, citing the same constitutional
provisions cited by the State in its amended response and stating that he did not receive
personal notice of the court’s order and did not consent to the order.

{14} Also on August 29, Defendant filed a motion to dismiss for prosecutorial misconduct
and speedy trial, and in the alternative, to suppress evidence or dismiss pursuant to Rule 5-
501(H) NMRA (failure to comply with discovery) and Rule 5-505(B) NMRA (failure to
comply with continuing duty to disclose). Defendant argued that despite being ordered at
the hearing to produce the officer’s cell phone records, the State had not yet produced them
and that the prosecutor had indicated she was not required to produce any discovery until a
written order was signed by the court. In Defendant’s view, the State had no intention
whatsoever of producing the records.

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{15} The following day, August 30, 2006, the district court entered a written order on the
motion to compel specific discovery. The order referred to the August 2006 hearing and
stated that the court was “fully informed regarding the issue of discovery.” The order
required the State to “produce all tangible records or recordings of any and all
communications, including but not limited to any cell phone records or communications,
made by or to Officer . . . Boerth during the [six] minute and [thirty-five] second period that
the [v]ideo unit in his patrol vehicle was not engaged regarding his patrol and stop of . . .
Defendant.” On September 18, 2006, the State filed a petition for issuance of a writ of
mandamus and superintending control in the New Mexico Supreme Court in Cause No.
30,017, State ex rel. Valdez v. Pfeffer. The Supreme Court stayed the proceedings on
September 21, 2006, but on November 17, 2006, denied the State’s request for writ relief.

{16} On November 20, 2006, Defendant filed his third motion to dismiss for prosecutorial
misconduct and speedy trial. His grounds were simply and briefly stated: (1) no discovery,
(2) sixteen months in county jail, and (3) the writ was denied. The State did not respond to
this motion.

{17} On December 8, 2006, the State filed a motion in which it asserted that “Officer
Boerth did not provide his personal cell phone records to the State for any prosecutorial
action and therefore [the records were] not in the possession of the State.” The State further
asserted that it could not compel Officer Boerth to give up his personal cell phone records
and that the government, including the court, “[cannot] override an individual’s privacy
interests.”

{18} Defendant filed a request in January 2007 for a setting on all outstanding motions to
dismiss and suppress, and the court set a hearing for February 21, 2007. At the hearing, the
court asked the State why it had not filed a response to Defendant’s third motion to dismiss
for prosecutorial misconduct and speedy trial. The State responded that it did not think there
was anything to respond to given that there was nothing substantive and no cited authority
to respond to.

{19} After the State’s response, the court stated that the police are “an arm of the State,”
and the court found insulting the State’s implication that Defendant stated no articulable
reason for the requested discovery after the court had determined there was a reason for
requiring production. The court further stated that its order “was a very limited [o]rder in
this instance for a very limited time period.” The court reiterated its suggestion that it
review the records in camera.

{20} In conclusion, the court found “the actions of the State [to be] in bad faith, arguably
intentionally preventing this trial from going forward.” Further, the court found that the
State had flaunted the court’s order for simple discovery and that Defendant was prejudiced.

{21} The court entered a written order on February 21, 2007, granting Defendant’s motion
to dismiss with prejudice. The charges against Defendant were dismissed on three
grounds: (1) the State was still in violation of the court’s discovery order, (2) the State failed

5
to respond to Defendant’s third motion to dismiss for prosecutorial misconduct and speedy
trial, and (3) Defendant had been in custody for over nineteen months.

{22} The State raises six issues on appeal: (1) the district court abused its discretion when
it dismissed the case based on non-disclosure of communications and records that were not
subject to disclosure under Rule 5-501, (2) the order of dismissal was erroneous under New
Mexico law governing discovery sanctions, (3) the district court failed to give the officer
notice and an opportunity to be heard before depriving him of his private rights to his
personal cell phone records, (4) public employees possess a constitutional right to privacy
in their personal telephone records and communications, (5) the district court’s order
unreasonably demanded that the State violate federal law and expose itself to civil liability,
and (6) the Supreme Court’s unexplained denial of the petition for an extraordinary writ was
not res judicata or law of the case.

{23} We conclude that the district court did not err in dismissing the case because of the
State’s failure to comply with the court’s discovery order. We then briefly address the
State’s remaining four points and hold that they do not require reversal.

DISCUSSION

I. The State’s First Two Points on Appeal

{24} The State’s first two points on appeal attack the district court’s discovery order and
dismissal. A district court’s decisions with regard to discovery are reviewed for an abuse
of discretion. State v. Dominguez, 2007-NMSC-060, ¶ 25, 142 N.M. 811, 171 P.3d 750;
State v. Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92 P.3d 1263 (“Sanctions for
noncompliance with discovery orders are discretionary with the trial court.”).

The Discovery Order

{25} Rule 5-501(A)(3) mandates that “the [S]tate shall disclose or make available to the
defendant . . . any books, papers, documents, photographs, tangible objects, buildings or
places, or copies or portions thereof, which are within the possession, custody[,] or control
of the [S]tate, and which are material to the preparation of the defense.”

{26} We proceed on the assumption that it can reasonably be inferred from the statements
of the prosecutor and the affidavit of the officer, as well as from the intensity of the State’s
opposition to discovery, that the officer in fact had a personal cell phone with him at the time
in question, although there exists no evidence or even a statement by the prosecutor or the
officer that the officer in fact had a cell phone. On appeal, the State has an insurmountable
hurdle to overcome for success in its attack on the district court’s discovery order. In this
case, Defendant established a prima facie case under Rule 5-501 for discovery. The State,
however, did not adequately develop or otherwise preserve any position or argument in the
district court on the elements of control, materiality, and prejudice to refute Defendant’s
prima facie case for discovery.

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{27} Defendant showed that the cell phone records were in the control of the State because
they were in the possession of the officer during the time in question. Indeed, the court
agreed, finding that the officer was an arm of the State. And the State in its brief in chief
acknowledges that the court “ruled that the [officer] was ‘an arm of the State’ and that
therefore his private telephone records were ‘within the possession, custody[,] or control of
the [S]tate,’ making them subject to disclosure under Rule 5-501(A)(3).” See State v.
Wisniewski, 103 N.M. 430, 435, 708 P.2d 1031, 1036 (1985) (holding that the requirement
of disclosing evidence favorable to the defense “applies to all members of the prosecution
team, including police authorities” (citation omitted)); State v. Jackson, 2004-NMCA-057,
¶¶ 12-14, 135 N.M. 689, 92 P.3d 1263.

{28} Defendant also showed that the cell phone records were potentially material to his
defense, given that they might contain information indicating why the officer stopped
Defendant. The court in fact determined that the records were potentially material. That the
records may not, after in camera or other inspection, have turned out to contain information
that would assist in Defendant’s defense was not a basis on which, at the discovery stage,
to assert that the records were not material to preparation of the defense. A discovery right
does not require a defendant to know or show in advance that the records will actually
contain helpful information. A defendant need only show circumstances that reasonably
indicate that records may contain information material to the preparation of the defense. See
United States v. Lloyd, 992 F.2d 348, 350-51 (D.C. Cir. 1993) (explaining that under Federal
Rule of Criminal Procedure 16(a), from which Rule 5-501 was derived, the “materiality
standard . . . is not a heavy burden; rather, evidence is material as long as there is a strong
indication that it will play an important role in uncovering admissible evidence, aiding
witness preparation, corroborating testimony, or assisting impeachment or rebuttal” (internal
quotation marks and citations omitted); Rule 5-501 comm. cmt. (stating that the rule was
derived from Rule 16(a) of the Federal Rules of Criminal Procedure).

{29} Defendant also showed that denial of the discovery was prejudicial, in that were the
information material to his defense of unlawful stop, but not produced, he would be denied
the opportunity to prove an unlawful stop and obtain suppression relief. The court also
determined that Defendant was prejudiced. Deprived of the opportunity to discover whether
the records contained information material to the preparation of his defense, discovery he
was entitled to pursue under Rule 5-501(A)(3), the district court did not abuse its discretion
in determining that Defendant was prejudiced.

{30} The focus of the State’s positions and arguments in the district court was that the
State did not have possession of the cell phone records, the officer had a reasonable
expectation of privacy in his phone records, and it was Defendant’s responsibility to
subpoena the records from the officer and give the officer an opportunity to resist production
of the records. The State was not going to comply in any respect with the court’s discovery
order, which included the State’s apparent refusal to even attempt to ascertain whether any
record existed and to report that information to the court or to have the records viewed in
camera for materiality.

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{31} The State failed to preserve for argument on appeal that the State lacked control over
the officer’s phone. To the extent there may have been undeveloped facts relating to control,
it was the State’s burden to present those facts to dispel control. Not only did the State fail
to present such facts, the State did not even request a hearing for that purpose. Furthermore,
as to materiality, while the State asserted that Defendant did not make a proper showing of
materiality, this argument was never adequately developed through example or discussion
of why the records were not potentially material to the defense. Therefore, the State failed
to preserve any argument relating to materiality. The State also failed to argue that
Defendant would not be prejudiced if discovery were refused. Thus, that argument, too, was
not preserved for appeal. As a result, we will not entertain the State’s arguments on appeal
in regard to control, materiality, or prejudice.

{32} A party cannot “throw out legal theories without connecting them to any elements
and any factual support for the elements.” Lovato v. Crawford & Co., 2003-NMCA-088,
¶ 30, 134 N.M. 108, 73 P.3d 246. “To preserve an issue for review on appeal, it must appear
that appellant fairly invoked a ruling of the trial court on the same grounds argued in the
appellate court.” Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App.
1987). We will not consider issues not raised in the district court unless the issues involve
matters of jurisdictional or fundamental error. See In re Aaron L., 2000-NMCA-024, ¶ 10,
128 N.M. 641, 996 P.2d 431. Nor will we review an undeveloped and unclear argument on
appeal. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
1076.

{33} The State attempts to overcome any duty to produce records that are material to the
defense and within its control by arguing various manifestations of a view to which it
steadfastly adhered in the district court and now on appeal, namely, that given Officer
Boerth’s privacy right, the only way that Defendant was entitled, if at all, to the records and
information was to subpoena the officer’s cell phone records. Thus, the State’s answer to
the standoff is that the court could have resolved the matter by simply telling Defendant to
subpoena the officer’s records and communications and that the court should have told
Defendant to subpoena the records before “leap[ing] immediately to the extreme sanction
of dismissing charges supported by probable cause.” In addition, the State asserts that, at
the very least, the district court should have required defense counsel to interview the officer
to find out if the requested records or communications even existed.

{34} We reject the State’s various arguments. We are not convinced that, under the
circumstances in this case, the burden and duty of the State under Rule 5-501(A)(3) are to
be dispensed with based on a view that, because an on-duty police officer’s personal cell
phone may somehow be involved, the only way a defendant can determine if the cell phone
records will assist in the preparation of his defense is to subpoena the officer’s cell phone
records and/or interview the arresting officer.

Propriety of Dismissal with Prejudice

{35} Here we review whether the district court’s sanction of dismissal with prejudice for
noncompliance with the discovery order was erroneous. The parties treat the dismissal as

8
one under Rule 5-505. The State asserts that on appeal it is not asking that a lesser sanction
be imposed, only that the ultimate sanction of dismissal was not authorized under Rule 5-
505. Rule 5-505(B) provides, “If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with this rule or with
an order issued pursuant to this rule, the court . . . may enter such other order as it deems
appropriate under the circumstances.” “The remedy for violating a discovery order is within
the discretion of the trial court.” State v. Montoya, 116 N.M. 297, 304, 861 P.2d 978, 985
(Ct. App. 1993); see also Jackson, 2004-NMCA-057, ¶ 10 (“Sanctions for noncompliance
with discovery orders are discretionary with the trial court.”). We will not disturb the district
court’s ruling absent an abuse of discretion. Montoya, 116 N.M. at 304, 861 P.2d at 985.
As the appellant, it is the State’s burden to establish an abuse of discretion. State v.
Layne, 2008-NMCA-103, ¶ 10, 144 N.M. 574, 189 P.3d 707.

{36} The critical issue is whether the dismissal with prejudice was an abuse of discretion
after the State’s refusal to comply with orders that the State determine the existence of
records within the State’s control and produce the records or make them available for in
camera review, while also permitting the State to seek protection from production based on
lack of relevance or confidentiality concerns. The State has never shown that it made any
attempt to review any cell phone records. The State has never shown that it took any step
to ascertain whether any relevant phone records existed. The State has never shown that it
even asked Officer Boerth about what information, if any, the cell phone itself contained
related to the six-minute time period. One can reasonably conclude from the court record
that the State never asked to examine or attempted to examine the cell phone. The State has
steadfastly indicated it would not make that attempt and that Defendant would have to
subpoena the officer’s cell phone records.

{37} The issue is not about whether the State was required to or could physically seize and
turn over the officer’s private communications as the State on appeal has characterized what
the court ordered. This approach ignores the prosecution-team concept and the State’s Rule
5-501(A)(3) disclosure duty as to evidence within its control. The State was not as it
contends flatly ordered to seize and physically hand over the officer’s private cell phone
records to Defendant. The court orally conditioned its discovery order on several important
considerations. In the early as well as in the later proceedings, the court offered in camera
review. The court took careful measures to ensure the officer’s privacy, offering not only
in camera review but inviting the State to file an appropriate motion to protect the documents
if that were justified. See Layne, 2008-NMCA-103, ¶ 10 (reiterating that where the district
court’s written order does not include limitations made in an oral ruling, the party is still
required to follow the limitations imposed); see also State v. Gonzales, 1996-NMCA-026,
¶¶ 17, 20, 121 N.M. 421, 912 P.2d 297 (stating that the proper procedure for determining
materiality is in camera review); State v. Ramos, 115 N.M. 718, 722, 858 P.2d 94, 98 (Ct.
App. 1993) (stating that “trial courts must exercise their discretion carefully to balance the
legitimate interests of all concerned” in connection with material that is of a sensitive and
pursuant nature and to “allow victims to keep their private affairs private”). The State never
questioned whether the court abandoned its oral limitations on production when it entered
its written order. In no way can the court’s action be considered a firm and direct command

9
that the State simply obtain the records and hand them over to Defendant, as the State
contends.

{38} Although the prosecutor’s arguments against discovery changed as the issue lingered
on, the State’s core position never changed. The very essence of that position was that the
State was not entitled and had no obligation to inquire about, much less review, the officer’s
cell phone records. It is also important to note that the State has never indicated whether
police officers were permitted to use personal cell phones for police-related investigation
activity while on duty, or whether Officer Boerth used his cell phone for police-related
business while on duty. It appears that the State has approached the issue here as one of
policy—a firm stand that the State will not become in any way involved in what information
may exist in an on-duty police officer’s cell phone during a criminal investigation.

{39} The district court found that “the actions of the State [were] in bad faith, arguably
intentionally preventing this trial from going forward.” The court also found that the State
flaunted the court’s order for what the court deemed to be simple discovery. The court
further found that this conduct prejudiced Defendant. See Jackson, 2004-NMCA-057, ¶ 10
(“A showing of noncompliance is insufficient to entitle a defendant to dismissal or other
sanctions—the prejudice resulting from the violation must also be established.”). The court
record shows that the State’s actions constituted conscious, intentional, and unjustifiable
rejection of and refusal to comply with the district court’s order. “[U]pon failure to obey a
discovery order, the court may enter such order as is appropriate under the circumstances.”
Layne, 2008-NMCA-103, ¶ 13 (alteration in original) (internal quotation marks and citation
omitted). We believe that the record supports the district court’s findings, and we hold that
the court did not abuse its discretion in dismissing the case with prejudice under Rule 5-505.
Therefore, we will not disturb the district court’s decision. Montoya, 116 N.M. at 304, 861
P.2d at 985.

II. The State’s Third, Fourth, and Fifth Points

{40} The State’s third, fourth, and fifth points are:

[The court] recognized that [its] order implicated the [officer’s] “private
rights” and “private interests,” but did not give the [officer] notice and an
opportunity to be heard before depriving him of those private rights.
There is no room to doubt that public employees possess a constitutional
right to privacy in their private telephone records and communications.

[The court’s] order unreasonably demanded that the State violate federal law
and expose itself to civil liability.

The third point is based on statements the district court apparently made in documents filed
in the writ proceeding before the Supreme Court. The State asserts that the court recognized
Officer Boerth’s private interests and rights were implicated by its ruling. The State argues
that because the court recognized those interests and rights, the officer, being a stranger to
the proceedings, had a right to notice and an opportunity to be heard, but the court failed to

10
provide those procedural rights and Defendant failed to subpoena the officer’s cell phone
records. The court’s error, the State claims, was that despite its recognition of the officer’s
privacy rights, the court premised its discovery order on the court’s view that the officer had
no such privacy interests and rights and thus no right to notice and opportunity to be heard.
To the extent the State considers this a point of error separate from its first point, the State
does not indicate where this issue was raised in the district court after the petition for the writ
was denied or show how it was preserved. We therefore do not consider it. See State v.
Lente, 2005-NMCA-111, ¶ 11, 138 N.M. 312, 119 P.3d 737 (“On appeal, the reviewing
court will not consider issues that were not raised in the trial court unless the issues involve
matters of fundamental rights or fundamental error.”).

{41} The fourth and fifth points were not adequately developed by the State in the district
court for effective review. We note that although at the August 17, 2006, hearing the
prosecutor indicated that an evidentiary hearing was necessary to resolve factual issues
relating to the discovery request, the State does not indicate that the prosecutor later sought
such a hearing, and the State has not, on appeal, asserted error or prejudice in regard to lack
of an evidentiary hearing that would have developed circumstances favorable to the position
it now takes. There is no indication in the court record or in the briefs that the State placed
before the court or that the court considered facts relating, for example, to departmental
policy on use of cell phones and any reasonable expectation of privacy of the officer. See
State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768 (holding that
preservation for review requires a fair ruling or decision by the district court in order to
provide the lower court with an opportunity to correct any mistake, gives the opposing party
an opportunity to demonstrate why the district court should rule in its favor, and creates a
record that enables this Court to make informed decisions). The circumstances underlying
the issues the State raises on appeal should have been, but were not, specifically and fully
developed through evidence, argument, and authority. Because the State failed to satisfy its
obligation to develop the circumstances and to specifically and fully argue the points, we
will not address those points on appeal. See State v. Casillas, 2009-NMCA-034, ¶ 12, 145
N.M. 783, 205 P.3d 830 (refusing to consider the appellant’s argument on appeal because
it was not fully developed below).

{42} Further, logically extended, the State’s position would result in the following
untenable consequence: even if an officer is permitted to use his cell phone to obtain
information that he believes creates a lawful basis for a stop, even if the personal cell phone
records of the on-duty officer who is investigating a possible crime actually contain
information relevant and material to the lawful basis for an investigative stop, and even if
the information is helpful and critical to the preparation of the defense, the State would not
even have to ask to review the cell phone records, much less attempt to obtain and then
disclose them. We will not tie into a position that leads to what appears to us to be an
unreasonable if not absurd result.

{43} For its constitutional arguments, the State cites federal case law involving a
government employee’s reasonable expectation of privacy in communications. None of the
cases the State cites involves an on-duty police officer’s use of a cell phone for public
purposes in connection with an investigation of possible criminal activity. Nor do any of the

11
cases have any relation to a criminal proceeding instituted by the State, giving rise to a
defendant’s right to a fair trial, and involving discovery of records or communications that
were material to the preparation of the defense and within the control of the State. The
present case does not involve a secret recording of an officer’s communication, an
investigatory search into an officer’s malfeasance by searching records of a service provider
without the officer’s consent, or a search of unreasonable scope. In fact, the present case
does not involve a search at all, nor does it involve a risk of violation of some protected
individual interest in avoiding disclosure of personal matters.

{44} The district court in the present case minimized all risk of any constitutional violation
by offering in camera inspection and suggesting that protective motions could be filed. The
court bent over backwards to work with the prosecution on the discovery issue. The State
refused to cooperate, standing firm on its policy position that it had no duty, that the issue
was solely between Defendant and the officer, and Defendant had the full burden to
subpoena the officer’s cell phone records to bring the matter before the court. The court’s
frustration was reasonable.

{45} The fifth point essentially centers on the State’s argument that Officer Boerth would
not produce the records, and the court’s order therefore placed the State in an untenable
position. However, contrary to the State’s implications, Officer Boerth did not state in his
affidavit that he refused to allow the State to review the records. The State did not show in
the district court that the officer refused to allow the State to review the records. The court
wanted to know from the State whether the cell phone records were relevant or confidential,
and gave the State every opportunity to ascertain that information and present it to the court.
The court offered in camera review. The State refused to take any step in any regard.

{46} In addition, the State’s position here suffers from the same defect as to which the
fourth point suffers resulting in the same absurd result as discussed earlier in this opinion.
Furthermore, the State’s position flies in the face of the embedded prosecution-team
doctrine, in the face of the prosecution’s clear duty to investigate and to turn over evidence
favorable to Defendant’s case, in the face of a clear, mandatory criminal disclosure rule, and
in the face of the fair-trial and due-process rights of a defendant. We see no basis on which
the State is permitted to assert an officer’s privacy right to excuse the State from
investigating the relevance and materiality to the defense of an on-duty, investigating
officer’s cell phone records within the State’s control. We see no basis on which the State
is excused from producing documents, in camera or otherwise, or acting to protect
production based on relevancy or confidentiality, where, as here, the defense makes a
rational, logical, threshold showing of control, materiality, and prejudice. None of the
State’s privacy arguments are persuasive, and none of its cited authorities relating to privacy
are on point, analogous, or persuasive.

{47} The State asserts that 18 U.S.C. § 2703 in the federal Electronic Communications
Privacy Act applies. Section 2703 pertains to records of a provider of service, not a
customer. The State wholly fails to specifically explain how any aspect of that Act is
applicable to the circumstances here. There exists no indication in the court record that the

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court ordered the prosecution to obtain records or information from a service provider. We
hold that the federal Act has no application here.

III. The State’s Sixth and Final Point

{48} The State’s final point is that our Supreme Court’s unexplained denial of the petition
for a writ of mandamus was not res judicata or law of the case. The State asserts that
remarks the district court made strongly suggest that it improperly considered the Supreme
Court’s unexplained denial of the State’s petition to be a ruling on the merits. The State
argues that the court’s accusation of bad faith against the prosecutor indicated its belief that
the prosecutor was under a duty to comply with the Supreme Court’s implied ruling.

{49} The State correctly asserts that the Supreme Court’s denial of the petition was not a
decision on the merits. See Rule 12-504(C)(2) NMRA (providing that the Court may deny
a petition without hearing if it “is without merit, concerns a matter more properly reviewable
by appeal, or seeks relief prematurely”); State v. House, 1999-NMSC-014, ¶ 25, 127 N.M.
151, 978 P.2d 967 (stating that denial of petition for a writ of superintending control “does
not necessarily reflect upon the merits”). However, we do not agree with the State’s
interpretation of the district court’s comments. And even were we to agree, we would still
uphold the court’s dismissal on other grounds. See State v. Danek, 117 N.M. 471, 480, 872
P.2d 889, 898 (Ct. App. 1993) (indicating that if it is apparent from the record that the
district court dismissed on one of several alternative grounds, then affirmance is proper on
appeal if any of those grounds was proper); cf. State v. Ruiz, 2007-NMCA-014, ¶ 38, 141
N.M. 53, 150 P.3d 1003 (filed 2006) (stating that as a general rule, we will uphold the
decision of a district court if it is right for any reason).

CONCLUSION

{50} We affirm the district court’s order of dismissal with prejudice.

{51} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Ortiz, No. 27,544

AE APPEAL AND ERROR

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AE-PJ Prejudicial Error

CA CRIMINAL PROCEDURE
CA-DD Deposition and Discovery
CA-MP Misconduct by Prosecutor
CA-PO Peace Officer
CA-SA Sanctions

EV EVIDENCE
EV-DC Discovery
EV-SU Suppression of Evidence

RE REMEDIES
RE-WM Writ of Mandamus

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