1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 31,436
10 GARY GLASS,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, Jr., District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
23 Defendant appeals his conviction for attempt to commit trafficking by
1 possession with intent to distribute methamphetamine, claiming that the district court
2 erred in denying his motion to suppress. We proposed to affirm in a notice of
3 proposed summary disposition, and Defendant has filed a memorandum in opposition
4 to our proposed disposition. Having considered the arguments raised by Defendant
5 in his memorandum and remaining unpersuaded, we affirm the denial of his motion
6 to suppress and his conviction.
7 In his docketing statement, Defendant contends that the district court erred in
8 denying his motion to suppress because officers illegally executed the warrant by
9 arriving at the storage unit that was the subject of the search at almost 10:00 p.m., and
10 by conducting the majority of the search after 10:00 p.m. [DS 3] Cf. Rule 5-211(B)
11 NMRA (providing in part that “[a] search warrant shall direct that it be served
12 between the hours of 6:00 a.m. and 10:00 p.m., according to local time, unless the
13 issuing judge, by appropriate provision in the warrant, and for reasonable cause
14 shown, authorizes its execution at any time”). We proposed to affirm based on our
15 Supreme Court’s decision in State v. Santiago, 2010-NMSC-018, 148 N.M. 144, 231
16 P.3d 600. See id.¶ 19 (recognizing that Rule 5-211(B) would not be violated if
17 officers had obtained a warrant and begun the process of clearing the home at 8:00
18 p.m., even if search personnel did not arrive and the actual search and inventory did
19 not commence until after 10:00 p.m.). We alerted Defendant to the Court’s language
2
1 in Santiago that “Rule 5-211(B) remains a bright-line rule [applicable] where police
2 do not initially serve a search warrant or enter the premises until after 10:00 p.m.” Id.
3 ¶ 22 (emphasis added).
4 In his memorandum in opposition, Defendant argues that despite the Court’s
5 language in Santiago, the timing of the search in this case was unreasonable because
6 officers had the warrant for three days and could have executed it at any time and
7 instead chose to wait until almost 10:00 p.m. [MIO 3] Defendant claims this failure
8 to choose a more reasonable time violates the intent of Rule 5-211(B). [MIO 5] We
9 are unpersuaded.
10 As noted by the Court in Santiago, Rule 5-211(B) was drafted to alleviate the
11 problems that a nighttime search may pose when that search takes place in someone’s
12 home. Santiago, 2010-NMSC-018, ¶¶ 12-15. The Court specifically recognized that
13 Rule 5-211(B) was drafted to address “the typical nighttime search . . . where law
14 enforcement officers arrive at an occupied residence after 10:00 p.m. without prior
15 notice.” Santiago, 2010-NMSC-018, ¶ 15. Likewise, all of the cases cited by
16 Defendant in support of his contention that the timing of a search must be reasonable,
17 concern the search of a residence. [MIO 6] See, e.g., State v. Attaway, 117 N.M. 141,
18 143, 870 P.2d 103, 105 (1994); State v. Reynaga, 2000-NMCA-053, ¶ 2, 129 N.M.
19 257, 5 P.3d 579.
3
1 In this case, it is undisputed that the search satisfied the bright line test set forth
2 in Rule 5-211(B). Moreover, even if Defendant and another person were present in
3 the storage unit at the time officers arrived, [MIO 1] the search was not of a residence.
4 Therefore, even if Defendant is correct that the officers could have executed the
5 warrant and conducted the subsequent search at an earlier time, [MIO 5] we are not
6 convinced that their failure to do so warrants a conclusion that the search of the
7 storage unit was unreasonable. [MIO 5-6] Cf. Santiago, 2010-NMSC-018, ¶¶ 11-12
8 (observing that, “[a]s a general proposition, a nighttime search implicates special
9 concerns of privacy and safety—especially when the search is of a home [because] a
10 person is especially vulnerable in the privacy of his place of repose during the
11 nighttime hours, if he is forced to face a nocturnal confrontation with the police”
12 (internal quotation marks and citation omitted)).
13 Based upon the foregoing, and for the reasons set forth in our notice of
14 proposed summary disposition, we uphold the district court’s denial of Defendant’s
15 motion to suppress and affirm his conviction.
16 IT IS SO ORDERED.
17 ________________________________
18 JAMES J. WECHSLER, Judge
4
1 WE CONCUR:
2 __________________________________
3 MICHAEL D. BUSTAMANTE, Judge
4 __________________________________
5 RODERICK T. KENNEDY, Judge
5