Certiorari Denied, July 29, 2010, No. 32,467
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-079
Filing Date: June 25, 2010
Docket No. 28,371
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CLARENCE BROWN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
Matthew G. Reynolds, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Corey J. Thompson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
FRY, Chief Judge.
{1} Defendant Clarence Brown appeals his convictions for the manufacture of
methamphetamine, conspiracy to manufacture methamphetamine, and possession of a stolen
vehicle, arguing that there was insufficient evidence to support his convictions and that the
district court erroneously admitted evidence obtained during a warrantless search of his
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home. For the following reasons, we affirm Defendant’s convictions. We also conclude that
exigent circumstances justified the warrantless search of Defendant’s home.
{2} The State filed a motion asking that our opinion in this case be made formal. We
hereby grant the motion. The opinion filed on June 8, 2010, is hereby withdrawn, and this
opinion is filed in its place.
BACKGROUND
{3} On May 11, 2006, Deputy Erwin Young of the Torrance County Sheriff’s
Department was dispatched to a home in McIntosh, New Mexico, in reference to a possible
structure fire. Upon arriving at the address, Deputy Young saw the remains of a trash fire
that had just been extinguished by the fire department as well as a fire-damaged white utility
trailer. Deputy Young noticed that there were a number of gallon-sized bottles of acetone
and Heat, a carburetor cleaner, in the burnt trash pile. The deputy also noticed a truck,
partially covered with a tarp, that had numerous parts removed. A VIN check on the vehicle
indicated that the truck had been stolen.
{4} Deputy Young encountered a woman on the property, April Green, who stated that
she was a friend of the homeowner, Rhonda, that she had thrown a cigarette on the trash pile,
and that it had burst into flames. Following the discovery of the stolen vehicle, Deputy
Young called for backup. Sergeant Heath White responded and, when he arrived at the
house, he “kept smelling a strong odor of . . . chemicals coming from the house” that was
“consistent with meth labs that [he] previously had been involved with.” The smell was so
strong that Sergeant White asked Deputy Young to move his vehicle away from the house.
Sergeant White also spoke to Green, who was not forthcoming about what she was doing
there or whether she lived on the property.
{5} The officers then began to check the property for people and observed a man, who
was later identified as Charles Garcia, hiding in a travel trailer and holding a dog’s mouth
shut so that it would not bark. After securing Garcia, Sergeant White noted that “[t]he
danger” was “building up at that point” due to the chemicals that had recently been burned,
Green’s unwillingness to talk about what was happening, and the fact that Garcia was hiding
in the travel trailer. After securing the travel trailer, the officers approached the residence
on the property and heard someone inside walking. When Sergeant White knocked on the
residence, he heard someone running to the other end of the house. After about fifteen
minutes of commanding the occupant or occupants to exit the house, Sergeant White found
that the back door was unlocked and entered the home. The officers immediately
encountered Genevieve Fay, who stated that she was there to clean the house. Sergeant
White testified that when he asked Fay who else was inside the house, she said that she did
not know because she had only been there a few minutes. Sergeant White continued to
check the house for other occupants and discovered that there was a padlock on a door in the
kitchen area. The officers also noticed that the chemical odor was especially strong near the
door and that it appeared to be emanating from the room behind the locked door. Because
the officers had “heard numerous footsteps as [they] were walking around the house” and
were not “sure if someone was inside that door itself,” Sergeant White broke the padlock and
entered the room. Sergeant White stated that he could not have withdrawn from the house
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without opening the padlocked door due to the risk that there was someone in the room who
could have shot at the deputies, destroyed evidence, or otherwise turned the scene into a
deadly situation.
{6} When Sergeant White broke the lock, he encountered a strong chemical smell that
pushed him back from the bedroom for a minute. The smell also made one of his deputies
so dizzy that he had to pull back. After he checked the room and determined that no one was
inside, Sergeant White left the house because he was only “in there for a protective sweep,
which was [to] make sure [there were] no kids, . . . no other adults, no dangers to deputies
on the outside.” Based on what he had observed in the room and the strong chemical smell,
Sergeant White determined that the officers required protective equipment to re-enter the
home and called in a meth lab expert, Chief Deputy Encinias.
{7} When Chief Deputy Encinias first arrived, she put on protective gear and entered the
house to determine if everything was safe and if there was any danger of a fire or explosion.
After determining that the chemicals did not pose an immediate danger, Chief Deputy
Encinias left the house and obtained a search warrant. Chief Deputy Encinias then returned
to the house and began to bring out the chemicals and equipment. Most of the chemicals
were in the bathroom of the master bedroom. Chief Deputy Encinias also found a number
of containers in the white cargo trailer behind the house. Chief Deputy Encinias stated that
there were some bi-layer liquids in the home, which indicated that the meth “cook” had
already taken place.
{8} At the time of the fire and the subsequent search, Defendant was not at the house.
However, Deputy Young discovered a large amount of mail with Defendant’s name on it in
the locked room that contained the majority of the meth lab equipment, and the individuals
arrested at the scene identified Defendant as the owner of the home. As a result, Defendant
was charged with manufacturing methamphetamine and conspiracy to manufacture
methamphetamine.
{9} At trial, in addition to the testimony of the police officers involved, the individuals
found at the scene testified against Defendant. Green testified that the day before the fire,
she and Charles Garcia had moved their camper onto the property behind the double-wide
mobile home where Defendant and Rhonda lived. She stated that she had seen Defendant
at the home the morning of the fire. She testified that Defendant “was very secretive” and
“stayed in his room most of the time.” Green admitted that she used methamphetamine, and
she believed that her boyfriend got their meth from Defendant. Green also stated that she
had gone to Walgreens with Defendant on May 10 to purchase pseudoephedrine.
{10} Garcia testified that he and Green were in the process of moving to Albuquerque, but
that they were staying at Defendant’s house prior to the move. Garcia stated that on the day
of the fire, he was burning some trash and the fire got out of control. Garcia testified that
he was burning “acetone cans and stuff like that” that he and Defendant used for
“manufacturing drugs.” Garcia also testified that he had helped Defendant buy Sudafed from
which they would extract ephedrine for use in the methamphetamine. Garcia stated that on
the day before the fire, he and Green had gone to Albuquerque with Defendant to purchase
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Sudafed. Finally, Garcia stated that he got his meth from Defendant and that he had gotten
approximately half a gram from Defendant on May 11.
{11} Defendant called four witnesses in his defense. The first, his mother, testified that
on May 11, Defendant was at her house because he had “moved back in to help” take care
of his grandson. The second, Defendant’s brother’s fiancée, testified that she saw Defendant
at his mother’s house on May 10 during a birthday party and that he had “been at his mom’s
. . . since around the end of April.” Defendant’s sister testified that she saw Defendant on
May 10 at the birthday party but that she did not know where Defendant was on May 11.
Finally, Defendant’s younger brother testified that Defendant was living at his mother’s
house in late April and early May and that Defendant was at the birthday party on May 10.
{12} The jury found Defendant guilty of manufacturing methamphetamine, conspiracy to
manufacture methamphetamine, and possession of a stolen vehicle. Defendant appeals.
DISCUSSION
Exigent Circumstances Justified the Warrantless Search of Defendant’s Home
{13} Defendant first argues that the district court erroneously denied his request to
suppress the physical evidence seized from the locked room in his home. At trial, Defendant
contended that because Sergeant White broke the lock and entered the room without a
warrant, all of the evidence obtained from the room was inadmissible. In response, the State
argued that exigent circumstances required Sergeant White to enter the room. Specifically,
the State noted that the officers had heard footsteps in the home, smelled a strong chemical
smell emanating from the room, and were concerned that someone might be hiding in the
room, or that the chemicals might present an immediate danger to the officers’ safety. The
district court agreed and denied Defendant’s motion to suppress.
{14} Our review of the district court’s denial of a motion to suppress is a “mixed question
of fact and law that we review de novo.” State v. Moore, 2008-NMCA-056, ¶ 10, 144 N.M.
14, 183 P.3d 158 (internal quotation marks and citation omitted). “[W]e review the district
court’s findings of historical fact under a deferential, substantial evidence standard, and then
we determine de novo if the facts, as so established, support the conclusion of exigent
circumstances.” Id. “Exigent circumstances are defined as those situations where
immediate action is necessary to prevent imminent danger to life or serious damage to
property, or to forestall the imminent escape of a suspect or destruction of evidence.” Id.
(internal quotation marks and citation omitted). We apply an objective standard and
determine “whether in a given situation a prudent, cautious, and trained officer, based on
facts known, could reasonably conclude that swift action was necessary.” Id. (internal
quotation marks and citation omitted).
{15} Defendant correctly notes that suspicion of a meth lab alone is insufficient to justify
a warrantless search under the exigent circumstances exception and that particularized
information regarding the exigent circumstances justifying the entry into an active math lab
is required for the exception to apply. See State v. Johnson, 2004-NMCA-064, ¶ 11, 135
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N.M. 615, 92 P.3d 61, aff’d in part, rev’d in part on other grounds, 2006-NMSC-049, 140
N.M. 653, 146 P.3d 298. In Johnson, for example, we held that mere suspicion that there
was an active meth lab inside a motel room was insufficient for the exigent circumstances
exception to apply because there was no specific information that the officer’s safety was
at risk, that the defendant might destroy evidence, or that the lab itself might pose a risk. Id.
¶ 12.
{16} Similarly, in State v. Trudelle, 2007-NMCA-066, ¶¶ 31-32, 142 N.M. 18, 162 P.3d
173, we held that exigent circumstances did not justify the search of a home where the only
articulable fact used to justify the search was a chemical odor coming from the home. We
noted that a chemical smell and suspicion of a meth lab are insufficient to create an exigent
circumstance where there are no other articulable facts indicating that there is some type of
danger. Id. ¶ 32. Specifically, we noted that there was no indication that an active cook was
taking place, the officers were not concerned about their safety, and the chemical smell was
not as strong near the house as it was in the driveway. Id. ¶ 31. In addition, while the
officers testified that they were concerned about the safety of people in the house, they
waited thirty minutes to gain entry into the house and allowed one of the homeowners to
enter the house unaccompanied and without protective equipment. Id.
{17} In Moore, 2008-NMCA-056, ¶¶ 1, 20, we also held that the search of a house was
not justified by exigent circumstances. In that case, a police officer detected the odor of
anhydrous ammonia emanating from a defendant’s garage and, while peering into the garage,
he was blasted in the face with chemical vapors that caused his eyes and lungs to burn. Id.
¶ 2. Following this, the officer performed a sweep of the defendant’s house, although the
officer did not see or hear anyone inside and had no other indication that there may have
been anyone in the house. Id. ¶ 3. We noted that the fact that there was a strong chemical
smell coming from the garage did “not . . . create an emergency situation in [the d]efendant’s
home, which was a separate building located some thirty to forty feet from the garage, and
was not the source of the chemical release.” Id. ¶ 15. In addition, we noted that there was
no indication that the house created an immediate danger to the neighborhood, there were
no facts suggesting that there might have been incapacitated individuals in the house, and
there was no indication that there might have been someone inside the house who could
destroy evidence or attempt to escape. Id. ¶¶ 16-19.
{18} Here, unlike in Trudelle and Moore, the State presented evidence of exigent
circumstances in addition to the smell of a meth lab. Specifically, the responding officers
detected a strong chemical smell coming from the house and, after knocking on the door,
heard “numerous footsteps” coming from within the house. Upon entering the home, the
officers encountered Fay, who told the officers that she did not know if anyone else was in
the house because she had only been there a few minutes. The officers then observed that
the door to the master bedroom was padlocked from the outside and that the chemical odor
was especially strong near the door. Sergeant White testified that he was concerned that Fay
might have locked the door to the room with someone in it and that he needed to open the
door to “make sure [there were] no kids, . . . no other adults, [and] no dangers to deputies on
the outside.” Sergeant White also stated that he could not have left the home without
checking the locked room because there was a risk that someone could be hiding in the room
who could have shot at the deputies, destroyed evidence, or turned the scene into a deadly
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situation. When Sergeant White opened the door, he was confronted with a strong chemical
odor that pushed him back from the door and made one of his deputies dizzy. The officers
then immediately left the premises and called in Chief Deputy Encinias, the meth lab expert,
who entered the house one more time prior to obtaining a search warrant “to make sure that
nothing was amiss, that it [would not] explode or it [would not] start a fire.”
{19} Thus, rather than entering the home merely because of a suspicion that there was a
meth lab inside, the officers in this case also had particularized information suggesting that
there might be someone hiding in the house who could pose a threat or destroy evidence, and
a concern that the meth cook was active and that it might explode or cause a fire. These
facts, coupled with the smell of an active meth lab and the fire on the premises, created
sufficient exigent circumstances to justify the warrantless search of the house for the limited
purpose of a safety and welfare check. We therefore affirm the district court’s order denying
Defendant’s motion to suppress the evidence.
Sufficiency of the Evidence
{20} Defendant next argues that the State failed to present sufficient evidence to support
the jury’s finding that he was guilty of manufacturing methamphetamine, conspiracy, and
possession of a stolen vehicle. We address each of those arguments in turn.
Standard of Review
{21} “The test for sufficiency of the evidence is whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to a conviction.” State v. Riley, 2010-NMSC-005,
¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). When
applying this standard, we review “the evidence in the light most favorable to the guilty
verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in
favor of the verdict.” Id. (internal quotation marks and citation omitted). We do not
substitute our judgment for that of the jury or reweigh the evidence “because the jury is free
to reject [the d]efendant’s version of the facts.” Id. (alteration in original) (internal quotation
marks and citation omitted).
Manufacturing Methamphetamine
{22} In order to convict Defendant of manufacturing methamphetamine, the State was
required to prove that Defendant produced, prepared, compounded, converted, or processed
methamphetamine and that he knew that it was methamphetamine. Defendant contends that
the State failed to prove that he was on the premises where the meth lab was found and that
there was no physical evidence showing that he took any steps in furtherance of the
manufacture of methamphetamine. In addition, Defendant contends that the testimony that
he was at his mother’s house on May 11 is inconsistent with the testimony that he was at the
meth lab that morning and that the jury was therefore not entitled to infer that he had any
involvement with the lab.
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{23} We note first that Defendant is essentially asking this Court to reweigh the evidence
and conclude that the testimony Defendant presented was more credible than the testimony
presented by the State. We do not reweigh the evidence on appeal. Id. We conclude that
sufficient evidence supports his conviction for manufacture of methamphetamine.
{24} Green and Garcia testified that they were with Defendant when he purchased Sudafed
on May 10, and Garcia testified that he and Defendant used the Sudafed to make meth.
Garcia further testified that he burned acetone cans that he and Defendant had used to make
meth, that he obtained his meth from Defendant, and that he got a half gram of meth from
Defendant on May 11. As for Defendant’s connection to the house where the meth lab was
found, officers discovered mail with Defendant’s name on it, both Garcia and Green
testified that Defendant lived in the house, and Green stated that she had seen Defendant
there on the morning of May 11, the day the meth lab was discovered.
{25} Moreover, the evidence Defendant presented was not inconsistent with the evidence
the State presented. Defendant’s witnesses testified that he was at a birthday party at his
mother’s house in Albuquerque on May 10, the day before the meth lab was discovered, and
that he was at his mother’s house on May 11, the day that the lab was discovered. However,
the jury, as the fact finder, was free to either reject the testimony of Defendant’s witnesses
altogether or make the reasonable inference that Defendant was capable of being in more
than one location on May 10 and 11.
{26} Based on the evidence presented, the jury could reasonably infer that Defendant
manufactured methamphetamine. We affirm his conviction on this charge.
Conspiracy
{27} Defendant also argues that there was insufficient evidence that he intended to enter
into a conspiracy to manufacture methamphetamine. We disagree. In order to convict
Defendant of conspiracy, the jury was required to find that Defendant and another person
agreed to commit the crime of manufacturing methamphetamine. At trial, Garcia testified
that on May 10, he and Defendant, along with Green, had gone to Albuquerque to purchase
Sudafed, which they needed for the methamphetamine. Green confirmed this in her
testimony and stated that they each went into the store separately in order to buy a larger
quantity of the pills. Chief Deputy Encinias testified that the first step in the manufacture
of methamphetamine is the extraction of ephedrine from pseudoephedrine. Based on this
evidence and the inference that Defendant actually manufactured methamphetamine the day
after the trip to purchase Sudafed (as suggested by Chief Deputy Encinias’s testimony that
the cook had recently occurred), the jury could reasonably conclude that Defendant
conspired to manufacture methamphetamine. We therefore affirm Defendant’s conviction
for conspiracy.
Possession of a Stolen Vehicle
{28} Defendant finally argues that there was insufficient evidence that he knowingly
possessed a stolen vehicle. In order to convict Defendant of possession of a stolen vehicle,
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the jury was required to find that Defendant had possession of a 1999 white Ford F-150, that
the truck had been stolen, and that Defendant knew or had reason to know that it had been
stolen. See NMSA 1978, § 66-3-505 (1978) (current version at NMSA 1978, Section 30-
16D-4 (2009)).1 Defendant argues that the State failed to show how the vehicle arrived at
the scene, a direct link between the vehicle and Defendant, or that he knew or had reason to
know that the vehicle had been stolen or unlawfully taken. In support of this argument,
Defendant contends that the vehicle’s proximity to Defendant’s house alone is insufficient
for the fact finder to determine that Defendant had knowledge of the vehicle or control of
it. We disagree.
{29} Deputy Young testified that the truck was parked next to Defendant’s home, was
partially covered with a tarp, and had numerous parts removed. In addition, Deputy Young
testified that he was unable to obtain fingerprints from the truck because “it was dusty.”
Viewing this evidence in the light most favorable to the jury’s verdict, the jury could infer
from the dust in the truck and the fact that numerous parts had been removed that the truck
had been at Defendant’s home for some time. Thus, the fact that Defendant was not at home
at the time that the truck was discovered does not preclude the jury from inferring that
Defendant possessed the truck. The fact that the truck was on Defendant’s property, had
been there for some time, and had been partially disassembled is sufficient to allow a
reasonable juror to infer that Defendant possessed the vehicle.
{30} In addition, “since knowledge that property was stolen can seldom be proven by
direct evidence, resort must often be made to circumstantial evidence.” State v. Smith, 100
N.M. 352, 354, 670 P.2d 963, 965 (Ct. App. 1983), abrogated on other grounds by, State v.
Watkins, 2008-NMCA-060, 144 N.M. 66, 183 P.3d 951. “Although mere possession of
recently stolen property is not alone sufficient to sustain a conviction for receiving stolen
property, possession not satisfactorily explained is a circumstance which may properly be
taken into consideration with all other facts and circumstances in determining the guilt or
innocence of the accused.” Smith, 100 N.M. at 355, 670 P.2d at 966.
{31} Here, reviewing the evidence in the light most favorable to the verdict and indulging
all inferences in favor of the verdict, we cannot say that there was insufficient evidence to
support the conviction. The stolen truck was on Defendant’s property and had been there
for quite some time, and the truck was covered with a tarp, suggesting that the truck was
being concealed from observation. From these circumstances, the jury could reasonably
infer that Defendant had reason to know that the truck was stolen. Therefore, we affirm this
conviction as well.
CONCLUSION
{32} For the foregoing reasons, we affirm the judgment of the district court.
1
Section 66-3-505 was recompiled and amended in 2009 and is now contained in the
criminal code at Section 30-16D-4. The provision at issue in this case is essentially the same
in the recompilation.
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{33} IT IS SO ORDERED.
____________________________________
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
____________________________________
CELIA FOY CASTILLO, Judge
____________________________________
TIMOTHY L. GARCIA, Judge
Topic Index for State v. Brown, Docket No. 28,371
AE APPEAL AND ERROR
AE-SR Standard of Review
CL CRIMINAL LAW
CL-CL Controlled Substances
CL-TV Taking of Vehicle
CA CRIMINAL PROCEDURE
CA-EC Exigent Circumstances
CA-SE Substantial or Sufficient Evidence
CA-WS Warrantless Search
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