State v. LETICIA

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 17:00:22 2012.05.23

Certiorari Granted, May 11, 2012, No. 33,566; Certiorari Granted, May 11, 2012,
No. 33,567

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-050

Filing Date: March 13, 2012

Docket No. 30,664

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

LETICIA T.,

Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
William C. Birdsall, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

VIGIL, Judge.

{1} Pursuant to a conditional plea, Child was adjudicated delinquent for committing
aggravated battery on a peace officer (deadly weapon) and aggravated assault (deadly

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weapon). Child reserved the right to appeal the district court’s denial of her motion to
suppress and motion to dismiss for an untimely trial. Child asserts that her motion to
suppress was improperly denied because searching the trunk of her car without a search
warrant was not warranted by either exigent circumstances or as a protective sweep. In
addition, Child asserts that her motion to dismiss was improperly denied because she did not
have a timely preliminary hearing or trial. Finally, Child argues that she is entitled to pre-
disposition confinement credit. We reverse in part, affirm in part, and remand for further
proceedings.

I. MOTION TO SUPPRESS

{2} Child filed a motion to suppress evidence obtained from a warrantless search of the
trunk of her vehicle, asserting that the search violated the Fourth Amendment to the United
States Constitution and Article II, Section 10 of the New Mexico Constitution. Following
an evidentiary hearing, the district court denied Child’s motion on grounds that exigent
circumstances validated the warrantless search.

A. Facts

{3} There is no dispute about the material facts. An armed subject was reported to have
pointed a rifle from the passenger side window of a vehicle at several persons as they were
standing in a parking lot on 20th Street in Farmington, New Mexico. One of the persons
called the police, and a dispatch was sent out to officers of the Farmington Police
Department to locate the vehicle, which was described as a four-door, beige or light tan
passenger car.

{4} Officer Coate located the vehicle within minutes of the dispatch, and he pulled it over
near the Sonic on 20th Street. Because the car matched the one identified by dispatch,
Officer Coate decided to conduct a felony stop and called for backup. Officer Swenk
subsequently arrived at the scene. Officer Coate observed rocking and moving in the vehicle
after it stopped, which in his experience, generally indicates that the passengers are changing
positions within the vehicle. However, he could not see exactly what was going on in the
vehicle or how many people were inside the vehicle because it had dark, tinted windows.

{5} Child, who was sixteen years old, stepped out of the front passenger side of the
vehicle, and Officer Coate ordered Child to raise her hands and move backwards toward
him. While Officer Coate kept his firearm pointed at the car, Officer Swenk conducted a
pat-down search of Child, handcuffed her, and directed her to the back of the patrol vehicle,
out of Officer Coate’s sight. When Officer Swenk started a second pat-down search, Child
shouted at the officer to let her go, spun quickly to the left, and struck Officer Swenk in the
face with her fist while holding the handcuffs that she had apparently slipped out of. Officer
Swenk took her to the ground, regained control, handcuffed her again, and put her in Officer
Coate’s patrol car. The other occupants of Child’s car—a boy nine to twelve years of age
and a girl younger than Child—were ordered out of the vehicle according to the same
protocol for a felony stop. All the children were placed in separate patrol cars in handcuffs.

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{6} Officer Smith, a canine officer, whose dog is certified in all patrol activities,
including finding people and apprehending combative suspects, arrived and was told that the
other officers had already pulled several persons out of the vehicle, but it was unknown if
anyone else was inside. Officer Smith sent the dog to see if anyone else was inside the car,
and the dog searched the passenger compartment of the car but did not alert to any
occupants. Officer Smith said that the dog did not search the trunk because it was distracted
by the human odor of a crowd of people that had gathered across the street, and it was more
interested in them than the car. Officer Smith called the dog back from the vehicle after it
failed to alert. Officer Smith testified that a “secondary search” of the vehicle was necessary
because dogs are not infallible, and unless the trunk was opened, the officers could not be
sure if anyone was hiding inside.

{7} Officer Coate testified that once the car was cleared, the officers had a duty to check
the trunk of the vehicle to check for anyone that might be hiding inside. He had prior
experiences in which individuals had hidden themselves inside a trunk, and he felt that
someone “could be” hiding inside the trunk because the report was that there had been a
person pointing a rifle out of the window of the car, and no weapon was found inside the
passenger compartment.

{8} Two additional officers, Sergeant Simmons and Officer Rahn, were also at the scene.
A rifle was found when Sergeant Simmons opened the trunk of the car. Sergeant Simmons
testified that after the three occupants were taken from the vehicle, standard operating
procedure required the officers to visually clear the front and rear compartments of the
vehicle, as well as the trunk. This is because it is not uncommon for people to be found
hiding in trunks, and the officers check the trunk to prevent an ambush, which is a
possibility. Officer Rahn testified that the officers opened the trunk because they are trained
to do so during a felony stop, and a person can easily hide inside the trunk. He added that
officers always conduct a “secondary search” even when a dog is used to detect humans
because the dog is not always 100% accurate.

B. Standard of Review

{9} The parties agree that our review of whether exigent circumstances justified the
warrantless search of the trunk is de novo. We agree. “[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.” State v. Moore, 2008-NMCA-056, ¶ 10, 144 N.M. 14, 183 P.3d 158; see
State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994) (“[W]e conclude that
the mixed question involved in determining exigency lies closest in proximity to a
conclusion of law, and hold that such determinations are to be reviewed de novo.”), modified
by State v. Lopez, 2005-NMSC-018, ¶¶ 9, 11, 138 N.M. 9, 116 P.3d 80 (stating that while
the appellate court reviews purely historical factual assessments for substantial evidence,
“we review the district court’s determination of exigency de novo”).

C. Analysis

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{10} “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures” is protected by the Fourth Amendment to the
United States Constitution. U.S. Const. amend IV. In addition, Article II, Section 10 of the
New Mexico Constitution protects the right of the people to be “secure in their persons,
papers, homes and effects, from unreasonable searches and seizures[.]” N.M. Const. art. II,
§ 10. A search undertaken without a search warrant is presumptively unreasonable unless
it is undertaken pursuant to a valid exception to the warrant requirement. State v. Zamora,
2005-NMCA-039, ¶ 15, 137 N.M. 301, 110 P.3d 517 (citing State v. Wright, 119 N.M. 559,
562, 893 P.2d 455, 458 (Ct. App. 1995)). The burden is on the State to justify a warrantless
search, and the burden is a heavy one. Id.

{11} Exigent circumstances is one of the recognized exceptions for conducting a search
without a warrant. State v. Garcia, 2005-NMSC-017, ¶ 29, 138 N.M. 1, 116 P.3d 72. Our
Supreme Court has given us a comprehensive description of what constitutes exigent
circumstances:

Exigent circumstances means an emergency situation requiring swift action
to prevent imminent danger to life or serious damage to property, or to
forestall the imminent escape of a suspect or destruction of evidence. The
determination is not whether the suspect was in fact intending to harm
someone, escape, damage property, or destroy evidence. Rather it is a
determination of whether in a given situation a prudent, cautious, and trained
officer, based on facts known, could reasonably conclude swift action was
necessary. If there are exigencies, they must be known by the police prior to
entry. Moreover, the presence of exigent circumstances must be supported
by specific articulable facts.

State v. Duffy, 1998-NMSC-014, ¶ 70, 126 N.M. 132, 967 P.2d 807 (internal quotation
marks and citations omitted), modified on other grounds by State v. Gallegos, 2007-NMSC-
007, ¶ 17, 141 N.M. 185, 152 P.3d 828; see Garcia, 2005-NMSC-017, ¶ 30; State v. Gomez,
1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1.

{12} Our review of the evidence is that five armed police officers were on the scene. The
three children who had occupied the vehicle were taken into custody, handcuffed, and placed
into separate police cars. A trained dog was sent to determine if anyone else was inside the
car. After the dog failed to alert that anyone was inside the car, Officer Smith decided that
the dog was being distracted and called off further searching of the trunk. Sergeant
Simmons then opened the trunk because, he said, it was required by standard operating
procedure. Officer Rahn said that the officers opened the trunk because they are trained to
search the trunk during a felony stop, and he also agreed with Officer Smith’s testimony that
a “secondary search” is always conducted even when a dog is used because dogs are not
infallible.

{13} The foregoing evidence fails to establish that the trunk was searched because
specific, articulable facts demonstrated the existence of an emergency situation requiring
swift action to prevent imminent danger to life or to forestall the imminent destruction of
evidence. Rather, it was searched because “standard operating procedure” dictated that it

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be searched. Our constitution requires more than “standard operating procedure” to justify
the warrantless search of an automobile which the police officers have full custody and
control over. “In New Mexico, exigent circumstances are not presumed; instead, our State
Constitution requires a warrantless seizure of evidence from within a vehicle to be justified
by a particularized showing of exigent circumstances.” State v. Weidner, 2007-NMCA-063,
¶ 6, 141 N.M. 582, 158 P.3d 1025.

{14} The strongest testimony offered by the State was by Officer Coate. He felt that
someone “could be” hiding in the trunk because the report was that someone had pointed a
rifle out of the window of the car, and no weapon was seen inside the passenger
compartment. However, he is not the officer who actually opened the trunk, and other
officers only testified that there was a general possibility that an individual could hide inside
a trunk. Aside from the possibility, neither Officer Coate nor any other officer testified
about any facts which led them to suspect anyone was actually hiding in the trunk. A mere
possibility that someone might be hiding in the trunk does not constitute an exigency. See
Moore, 2008-NMCA-056, ¶ 17 (rejecting the contention that a possibility of other suspects
being inside a home who could have escaped or destroyed evidence did not constitute
exigent circumstances).

{15} The State argues, alternatively, that searching Child’s trunk without a search warrant
was permissible as a protective sweep, another recognized exception to the warrant
requirement. Zamora, 2005-NMCA-039, ¶ 15. A protective sweep is “‘a quick and limited
search of premises, incident to an arrest and conducted to protect the safety of police officers
or others.’” State v. Trudelle, 2007-NMCA-066, ¶ 21, 142 N.M. 18, 162 P.3d 173 (quoting
Maryland v. Buie, 494 U.S. 325, 327 (1990)). We assume, as the parties have, that the
search of the trunk was incident to Child’s arrest. We also assume, without deciding, that
a protective sweep search can extend to the locked trunk of an automobile. However, the
circumstances under which a protective sweep may be undertaken are limited and specific:

A protective sweep may be undertaken if the searching officers possess a
reasonable belief based on specific and articulable facts which, taken
together with the rational inferences from those facts, reasonably warrants
the officer in believing that the area swept harbored an individual posing a
danger to the officer or others.

Id. (alterations, internal quotation marks, citation omitted); see Zamora, 2005-NMCA-039,
¶16 (same). We conclude that justification to search the trunk of Child’s car as a protective
sweep fails for the same reasons that the search was not justified by exigent circumstances.
See State v. Sublet, 2011-NMCA-075, ¶ 30, 150 N.M. 378, 258 P.3d 1170 (concluding that
the state failed to present evidence of exigency or evidence to support a protective sweep
theory).

II. MOTION TO DISMISS

{16} Child filed a motion to dismiss on grounds that she did not receive a timely
preliminary hearing as required by Rule 10-213 NMRA, and because her trial was not held

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in accordance with the time limits set forth in Rule 10-243 NMRA. After the State
responded, the district court denied Child’s motion.

A. Facts

{17} Child was arrested and taken into juvenile detention on February 7, 2010. At the
detention hearing the next day, Child was served with the juvenile petition and she entered
a denial to its allegations. Child was denied conditions of release and remained in detention.
On February 15, 2010, the State filed a notice of intent to invoke an adult sentence, by virtue
of the allegation of aggravated battery upon a peace officer. See NMSA 1978, § 32A-2-
3(J)(1)(f) (2009) (stating that a “youthful offender” includes a delinquent child subject to
adult or juvenile sanctions who is fourteen to eighteen years of age at the time of the offense
who is adjudicated to have committed aggravated battery upon a peace officer). The
preliminary hearing was held twenty-four (24) days later, on March 11, 2010. The bind over
included the youthful offense of battery upon a peace officer.

{18} The State filed the criminal information on March 16, 2010, and Child was arraigned
on March 24, 2010, whereupon she entered a plea of not guilty. Child was again denied
conditions of release and remained in juvenile detention. A sixty-day extension of time to
commence trial until May 9, 2010, was granted over Child’s objection, and the State did not
seek any additional extensions to commence trial. When Child filed the motion to dismiss
on June 10, 2010, the trial had not been held, and trial was scheduled for July 9, 2010.
Child’s motion to dismiss was denied.

B. Standard of Review

{19} When we are required to interpret rules of procedure adopted by our Supreme Court,
or statutes adopted by the Legislature, our review is de novo. State v. Stephen F., 2006-
NMSC-030, ¶ 7, 140 N.M. 24, 139 P.3d 184 (applying de novo review to interpretation of
Children’s Court Rules), aff’d on other grounds by 2008-NMSC-037, 144 N.M. 360, 188
P.3d 84; State v. Myers, 2009-NMSC-016, ¶ 13, 146 N.M. 128, 207 P.3d 1105 (applying de
novo review to statutory construction), rev’d on other grounds by 2011-NMSC-028, 150
N.M. 1, 256 P.3d 13.

C. Analysis

{20} The preliminary hearing was held twenty-four days after the State filed its notice of
intent to seek an adult sentence. Accordingly, Child did not receive a timely preliminary
hearing. Rule 10-213(B) requires the preliminary hearing to be held within fifteen days
after the State files its notice of intent to seek an adult sentence, and NMSA 1978, Section
32A-2-20(A) (2009), requires the preliminary hearing to be held within ten working days
after the state files its intent to seek an adult sentence. It is not necessary for us to decide in
this case whether the rule or the statute governs because they were both violated. Neither
the rule nor the statute provides a remedy, even though they are both worded in mandatory
terms. Our task is to determine whether any relief is available to Child.

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{21} Rule 10-101(A)(2)(b) NMRA of the Children’s Court Rules states that “[e]xcept as
specifically provided by these rules, . . . the Rules of Criminal Procedure for the District
Courts govern the procedure . . . in all proceedings in the Children’s Court in which a notice
of intent has been filed alleging the child is a ‘youthful offender.’” See State v. Michael S.,
1998-NMCA-041, ¶¶ 2-5, 124 N.M. 732, 955 P.2d 201 (describing the general history of
the procedures to be followed when the state alleges a child is a “youthful offender”). Rule
10-144 NMRA of the Children’s Court Rules states:

Error or defect in any ruling, order, act or omission by the court or by
any of the parties including failure to comply with time limits is not grounds
for granting a new hearing or for setting aside a verdict, for vacating,
modifying or otherwise disturbing a judgment or order, or for dismissing an
action, unless refusal to take any such action appears to the court inconsistent
with substantial justice or unless these rules expressly provide otherwise.

(Emphasis added.) This is a rule which specifically applies in lieu of the Rules of Criminal
Procedure, and it directs that dismissal is not appropriate, “unless refusal to take any such
action appears to the court inconsistent with substantial justice,” or unless the Children’s
Court Rules “expressly provide otherwise.” Id. Here, there was no such finding, and we
have not been directed to any Children’s Court Rule which requires dismissal for the failure
to hold a timely preliminary hearing. As to the statutory violation, we conclude that a child
must demonstrate prejudice in order to be entitled to dismissal. See State v. Tollardo, 99
N.M. 115, 117, 654 P.2d 568, 570 (Ct. App. 1982) (stating that dismissal is not the proper
remedy for a delay in holding a preliminary examination when prejudice to the defendant
is not shown). We therefore conclude that no reversible error was committed in denying
Child’s motion to dismiss on grounds she was denied a timely preliminary hearing.

{22} We now address whether Child was denied her right to a speedy trial. As we have
already stated, the Children’s Court Rules specifically state that unless the Children’s Court
Rules provide otherwise, “the Rules of Criminal Procedure for the District Courts govern the
procedure . . . in all proceedings in the Children’s Court in which a notice of intent has been
filed alleging the child is a ‘youthful offender’ as that term is defined in the Children’s
Code.” Rule 10-101(A)(2)(b).

{23} When Rule 10-101 was adopted by our Supreme Court, the Rules of Criminal
Procedure contained a provision in Rule 5-604 NMRA (amended 2011), known as the six-
month rule which, in general, required a trial on the merits to be held within six months of
a triggering event. See Duran v. Eichwald, 2009-NMSC-030, ¶ 2, 146 N.M. 341, 210 P.3d
238 (“Rule 5-604(B), commonly referred to as the six-month rule, requires the
commencement of trial in a criminal proceeding within six months of the latest of several
different triggering events.”). In keeping with the plain language of the rules, we held in
Michael S. that the six-month rule in the former Rule 5-604 applied to the adjudication of
youthful offender cases. 1998-NMCA-041, ¶ 6. We also observed, “In view of the
important purposes served by time limits on children’s court proceedings, we cannot
countenance an interpretation of the rules that would provide endless time, subject only to
constitutional constraints, in which to try cases involving serious youthful offenders.” Id.

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¶ 7. In a similar vein, our Supreme Court made the following statement in State v. Jones,
2010-NMSC-012, ¶ 32 n.2, 148 N.M. 1, 229 P.3d 474:

Rule 10-101(A)(2)(b) provides that, unless the Children’s Court Rules
specifically provide, the Rules of Criminal Procedure for the District Courts
apply to alleged youthful offenders after the State gives notice of its intent
to invoke adult sanctions. We adopted the Rule shortly after the 1993
enactment of the Children’s Code. Our unpublished commentary indicates
that because an alleged youthful offender potentially faces an adult sanction,
we chose to apply the Rules of Criminal Procedure in an effort to provide
more protections than the Children’s Court Rules do. Specifically, we
intended to extend the right to bail, the statutory right to three telephone calls
within 20 minutes after detention, and in a warrantless arrest and detention
case, the right to be given a copy of the criminal complaint prior to transfer
to custody of a detention facility, and the right to a prompt probable cause
determination. With the exception of the right to bail, we are no longer
convinced that the above-mentioned rights justify forfeiting the additional
protections afforded juveniles in the Children’s Court Rules. Compare, e.g.,
Rule 10-243 NMRA (providing that the adjudicatory hearing shall commence
within 30 days for a child held in detention and within 120 days for a child
not in detention) with Rule 5-604 NMRA (providing that a trial shall
commence within six months). The issue is beyond the scope of this
Opinion, but we encourage the Children’s Court Rules Committee to revisit
the question of which rules best protect the rights and interests of children.

Later that same year, our Supreme Court withdrew the six-month provisions of Rule 5-604
for all pending cases. State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20.
“In its place,” our Supreme Court declared, “defendants may rely upon and assert their right
to a speedy trial whenever they believe impermissible delay has occurred[.]” Id. However,
notwithstanding our observation in Michael S., and our Supreme Court’s statement in Jones,
no change was made to the Children’s Court Rules to insure speedy, timely trials for cases
involving serious youthful offenders. This leaves Child with no remedy except for a
constitutional speedy trial violation, and Child did not argue in the district court or on appeal
that she was deprived of her constitutional right to a speedy trial.

{24} Child contends that because our Supreme Court withdrew the six-month rule in Rule
5-604, our holding in Michael S. that the rule applies to youthful offender cases has been
overruled sub silentio. Child further contends that we should “pay special attention to the
Supreme Court’s repeated assertions in Jones that juveniles should be afforded heightened
protections to guard their liberty interests,” and “[b]ecause youthful offenders fall subject
to the statutory ambiguity created in the wake of Savedra, the Rules of Criminal Procedure
should not blanketly apply to youthful offender cases until after the amenability
determination. Such a decision would be consistent with Jones, legislative history, and
public policy.” To support her last assertion, Child refers us to Jones, 2010-NMSC-012, ¶
38 (“[T]he finding of non-amenability gives the court the necessary leverage to dislodge a
youthful offender from the protective dispositional scheme of the Delinquency Act.”).
Accordingly, Child asserts that Rule 10-243 of the Children’s Court Rules should apply to

8
her case. In general, this rule directs that when a child is in detention, as Child was in this
case, the adjudicatory hearing must be held within thirty days after the latest occurrence of
certain specified triggering events, such as the date that the petition is served on the child
and the date the child is placed in detention. When the time limit is not complied with,
Subsection (F) grants the district court authority to order that the petition be “dismissed with
prejudice or the court may consider other sanctions as appropriate.” Rule 10-243(F).

{25} Child makes a compelling argument, and we could easily be persuaded to follow the
suggestion made by our Supreme Court in Jones to craft a remedy for Child in this case.
However, as Child observes in her briefing, we have no authority to write or rewrite rules
of procedure, which lies within the exclusive domain of our Supreme Court. See State v.
Pieri, 2009-NMSC-019, ¶ 19, 146 N.M. 155, 207 P.3d 1132 (stating that our Supreme Court
has “the ultimate authority to fashion, adopt, and amend rules of procedure by virtue of the
authority granted . . . in Article III, Section 1 and Article VI, Section 3 of the New Mexico
Constitution”). As matters now stand, Child’s exclusive protection lies in the speedy trial
protections of the Sixth Amendment and Article II, Section 14 of the New Mexico
Constitution, and as we have already observed, a constitutional speedy trial issue is not
before us.

{26} For the reasons stated, Child’s right to a speedy trial was not violated under our
existing rules. Like our Supreme Court, we also encourage the Children’s Court Rules
Committee to revisit which time limit rules should apply to the adjudication of youthful
offender cases which best protect the rights and interests of children in New Mexico.

III. CREDIT FOR PRE-SENTENCE CONFINEMENT

{27} After the incident, and prior to her commitment to the Children, Youth and Families
Department for two years, Child spent approximately 160 days in detention. Child argues
that as a youthful offender, she is entitled to credit for her pre-sentence detention period.
The State argues that Child waived raising this argument on appeal because she only
preserved for appeal the issues regarding her motion to suppress and motion to dismiss in
her conditional plea. While we agree with Child’s argument that this is an important issue
for resolution, we do not reach it in this case. Because we have held that the district court
erred in denying Child’s motion to suppress, the judgment and disposition is no longer
operative, and any decision we would make concerning this issue would be advisory. See
State v. Wyrostek, 117 N.M. 514, 523, 873 P.2d 260, 269 (1994) (stating that the Court will
not issue advisory opinions).

{28} We therefore decline to reach this issue or determine whether Child waived it under
the terms of her conditional plea.

IV. CONCLUSION

{29} The judgment and disposition is reversed and the case is remanded for further
proceedings consistent with this Opinion.

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{30} IT IS SO ORDERED.

____________________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Leticia T., Docket No. 30,664

AE APPEAL AND ERROR
AE-HE Harmless Error
AE-RM Remand
AE-SR Standard of Review

CD CHILDREN
CD-CC Children’s Code
CD-CR Children’s Court
CD-YO Youthful Offender

CL CRIMINAL LAW
CL-AO Assault or Battery on a Peace Officer

CA CRIMINAL PROCEDURE
CA-DC Dismissal of Charges
CA-EC Exigent Circumstances
CA-PJ Prejudice
CA-SP Speedy Trial
CA-TL Time Limitations
CA-WS Warrantless Search

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