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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 09:20:31 2012.05.09
Certiorari Denied, March 23, 2012, No. 33,482
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMCA-041
Filing Date: February 9, 2012
Docket No. 30,434
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSE ANTONIO ARMENDARIZ-NUNEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth , District Judge
Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
KENNEDY, Judge.
{1} Jose Antonio Armendariz-Nunez (Defendant) was convicted by a jury of possession
of cocaine, possession of marijuana, no proof of insurance, and no evidence of registration
stemming from a driving while impaired (DWI) stop, which occurred on June 6, 2009. In
this appeal, Defendant challenges only his conviction for possession of cocaine. Defendant
contends that (1) the district court erred in denying his motion to suppress the physical
evidence found on his person because the search violated the United States Constitution and
New Mexico Constitution, and (2) there was insufficient evidence to support his conviction.
For the reasons that follow, we find no error and affirm.
I. BACKGROUND
{2} Defendant was pulled over on June 6, 2009, after he almost struck the vehicle of
Deputy Eduardo Flores of the Doña Ana County Sheriff’s Office. Upon approaching
Defendant, the deputy detected an odor of alcohol on Defendant’s breath and asked for a
DWI investigator to be sent to the scene. Deputy Larry Bleimeyer arrived, conducted field
sobriety tests, concluded that Defendant was under the influence, and placed him under
arrest for DWI. The deputy testified that his determination that Defendant was under the
influence was based upon “the odor of alcohol coming from [Defendant], . . . [b]loodshot
watery eyes, slurred speech, and the [results of] standardized field sobriety tests.”
{3} After Defendant was placed under arrest, Deputy Bleimeyer conducted a search
incident to arrest. The deputy testified that he found a dollar bill in Defendant’s right pocket
that was folded in a particular and unique way. In his experience, the dollar bill was folded
in a way that he recognized as packaging for cocaine. The deputy asked if the dollar bill
contained cocaine, and Defendant nodded “yes.” The deputy then opened the folded dollar
bill, exposing a white, powdery substance that was later confirmed to be cocaine. Narcotics
Agent Joseph Misquez, who field tested the powder, also testified at trial and confirmed that
dollar bills are often used as a way to conceal and later snort cocaine after it is made into a
line.
{4} In district court, Defendant filed a motion to suppress his statements made to the
deputy and the cocaine found on Defendant’s person. The district court excluded
Defendant’s statement regarding the contents of the dollar bill because he had not yet been
given his Miranda rights, but admitted the physical evidence found on him. After a jury
trial, Defendant was found guilty of possession of a controlled substance. This appeal
followed.
II. DISCUSSION
A. Defendant’s Motion to Suppress
{5} Under both the United States and New Mexico Constitutions, Defendant argues that
the district court erred in refusing to suppress the cocaine found on him. The State concedes
that Defendant preserved his Fourth Amendment claim by filing and obtaining a ruling by
the district court on his motion to suppress evidence. However, the State argues that
Defendant’s claim under the New Mexico Constitution should be rejected because he failed
to show a compelling reason that Article II, Section 10 should afford more protection than
the Fourth Amendment, pursuant to State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M.
777, 932 P.2d 1. We interpret the State’s argument as one of preservation. “To preserve a
question for review[,] it must appear that a ruling or decision by the district court was fairly
invoked[.]” Rule 12-216(A) NMRA.
We require parties to assert the legal principle upon which their claims are
based and to develop the facts in the trial court primarily for two reasons: (1)
to alert the trial court to a claim of error so that it has an opportunity to
correct any mistake, and (2) to give the opposing party a fair opportunity to
respond and show why the court should rule against the objector.
Gomez, 1997-NMSC-006, ¶ 29. Where a state constitutional provision has previously been
interpreted more expansively than its federal counterpart, trial counsel must develop the
necessary factual base and raise the applicable constitutional provision in the trial court. Id.
¶ 22. Where the provision has never before been addressed under our interstitial analysis,
trial counsel additionally must argue that the state constitutional provision should provide
greater protection and suggest reasons why “a flawed federal analysis, structural differences
between state and federal government, or distinctive state characteristics.” Id. ¶ 19.
{6} Here, Defendant was required to meet the less stringent of Gomez’s preservation
requirements because “a plethora of precedent already interprets Article II, Section 10 more
expansively than the Fourth Amendment.” State v. Leyva, 2011-NMSC-009, ¶ 50, 149 N.M.
435, 250 P.3d 861 (quoting State v. Garcia, 2009-NMSC-046, ¶ 52, 147 N.M. 134, 217 P.3d
1032 (Bosson, J., specially concurring)). Defendant met this requirement by citing both the
Fourth Amendment and Article II, Section 10 and by stating that the New Mexico
Constitution provides him with greater protections from unreasonable searches and seizures.
Defendant’s Article II, Section 10 argument was preserved, and we therefore analyze his
claim under both the United States and New Mexico Constitutions.
The review of a denial of a motion to suppress presents a mixed
question of fact and law. We review the factual basis of the court’s ruling for
substantial evidence, deferring to the district court’s view of the evidence.
When, as here, there are no findings of fact and conclusions of law, we draw
all inferences and indulge all presumptions in favor of the district court’s
ruling. Our review of the legal conclusions of the district court . . . is de
novo.
State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307 (internal quotation
marks and citations omitted).
{7} “Both the Fourth Amendment to the United States Constitution and Article II,
Section 10[] of the New Mexico Constitution protect the right of the people to be free from
unreasonable searches and seizures.” State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M.
18, 94 P.3d 18. “The Fourth Amendment requires all searches and seizures be executed in
a reasonable manner. Reasonableness depends on a balance between the public interest and
the individual’s right to personal security free from arbitrary interference by law officers.”
Williams, 2011-NMSC-026, ¶ 10 (internal quotation marks and citations omitted).
{8} Under the New Mexico Constitution, “[a] search incident to a lawful arrest may fall
under an exception to the warrant requirement . . . if the State meets its burden of proving
that the search occurs as a contemporaneous incident to the lawful arrest of the defendant
and is confined to the area within the defendant’s immediate control.” State v. Arredondo,
1997-NMCA-081, ¶ 27, 123 N.M. 628, 944 P.2d 276, overruled on other grounds by State
v. Steinzig, 1999-NMCA-107, 127 N.M. 752, 987 P.2d 409. “A search incident to arrest is
a reasonable warrantless search because courts have long acknowledged that the societal
interest in preventing the destruction of evidence and protecting the arresting officer
outweighs the minimal intrusion of a pat- down.” Williams, 2011-NMSC-026, ¶ 13; see
State v. Rowell, 2008-NMSC-041, ¶ 13, 144 N.M. 371, 188 P.3d 95.
{9} Here, Defendant does not challenge the arrest, nor does he challenge whether the
dollar bill found in his pocket was within his immediate control. Instead, he challenges the
search and claims that the dollar bill was not found pursuant to a valid search incident to
arrest. We read Defendant’s argument as a challenge to the reasonableness of the search.
{10} “Our search incident to arrest exception is a rule of reasonableness anchored in the
specific circumstances facing an officer.” Rowell, 2008-NMSC-041, ¶ 24. Our court has
“eschewed bright-line rules [and] instead emphasiz[ed] the fact-specific nature of the
reasonableness inquiry.” Arredondo, 1997-NMCA-081, ¶ 28 (alterations in original)
(internal quotation marks and citations omitted). Once probable cause to arrest is
established, reasonableness is the governing inquiry. See Rowell, 2008-NMSC-041, ¶ 24;
State v. Burgholzer, 59 P.3d 582, 585 (Or. Ct. App. 2002). (“We do not agree that the search
of a particular place, or the opening of a container, during a search incident to a lawful arrest
must be supported by probable cause. Rather, . . . once an officer has probable cause to
support the arrest, the proper inquiry is the reasonableness of the time, scope, and intensity
of the search for evidence of the crime for which the defendant is being arrested.”).
{11} Our Supreme Court has recognized that “officers may draw on their own experience
and specialized training to make inferences from and deductions about the cumulative
information available to them that might well elude an untrained person.” State v. Neal,
2007-NMSC-043, ¶ 21, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation
omitted). “Courts defer to the training and experience of the officer when determining
whether particularized and objective indicia of criminal activity existed.” Leyva, 2011-
NMSC-009, ¶ 23 (internal quotation marks and citation omitted). We therefore examine the
evolving circumstances facing the officer and consider whether “the officer’s . . . actions
were fairly responsive to the emerging tableau—the circumstances originally warranting the
stop, informed by what occurred, and what the officer learned, as the stop progressed.” State
v. Funderburg, 2008-NMSC-026, ¶ 27, 144 N.M. 37, 183 P.3d 922 (internal quotation marks
and citation omitted); see State v. Sewell, 2009-NMSC-033, ¶ 22, 146 N.M. 428, 211 P.3d
885; State v. Duran, 2005-NMSC-034, ¶ 36, 138 N.M. 414, 120 P.3d 836, overruled on
other grounds by Leyva, 2011-NMSC-009.
Objects commonly associated with particular criminal activities can
reasonably give rise to inferences that are distinct from objects ordinarily
used for benign, non-criminal purposes. An officer’s experience and
training, considered within the context of the incident, may permit the officer
to identify drug paraphernalia or drug packaging with a reasonable level of
probability, sufficient for probable cause.
State v. Ochoa, 2004-NMSC-023, ¶ 13, 135 N.M. 781, 93 P.3d 1286.
{12} Here, Defendant was pulled over after almost striking the vehicle of Deputy Flores,
who then called for Deputy Bleimeyer, a DWI investigator, to be sent to the scene. The
deputy smelled alcohol on Defendant’s breath, conducted field sobriety tests, determined that
he was under the influence, and placed him under arrest. During the search incident to
arrest, the deputy found a dollar bill folded in a way that he recognized as packaging for
cocaine. As the stop progressed, the circumstances facing the deputy changed. In such a
situation, we have never required an officer to close his eyes to evidence which his training
and experience tell him is a container of narcotics. See State v. Ramirez, 79 N.M. 475, 478-
79, 444 P.2d 986, 989-90 (1968) (“A majority of the cases in which the question has arisen
hold that officers who search incidental to a lawful arrest may seize things incidental to
another and wholly unrelated offense which may be uncovered by such a search.”). Our
Court also has never limited the search incident to a DWI arrest for weapons and alcohol,
as it appears that Defendant asks us to do here. This is because relevant evidence can take
many forms. See State v. Barela, 88 N.M. 446, 447, 541 P.2d 435, 436 (Ct. App. 1975)
(holding that, during a search incident for arrest for public drunkenness, an officer had both
the authority to search an eye glass case found during the search, and the right to open it in
order to effectuate the search). In this case, the deputy was entitled to search Defendant’s
pockets incident to arrest because his pockets may have contained any number of different
items that could be evidence of the crime. The deputy found cocaine and marijuana on
Defendant’s person, which the deputy may have reasonably thought could have contributed
to Defendant’s intoxicated state.
{13} We disagree with Defendant’s argument that the cocaine was not evidence of the
DWI crime for which he had been arrested. See NMSA 1978, § 66-8-102(B) (2008)
(amended 2010); State v. Aleman, 2008-NMCA-137, 145 N.M. 79, 194 P.3d 110 (affirming
the defendant’s conviction for driving while under the influence of cocaine). While the
deputy observed that Defendant smelled of alcohol, there was no indication that other
substances could not have contributed to his intoxicated state. As the State points out, both
alcohol and marijuana emit a distinct odor, while cocaine and many other controlled
substances do not. The discovery of a particular drug on a suspect’s person could be
relevant evidence that the suspect may be under the influence of that drug and, therefore,
may be appropriately seized.
{14} Finally, we also disagree that the physical evidence should have been excluded as
fruit of the poisonous tree because, as Defendant argues, “[t]he only reason that the deputy
opened the dollar bill was because [Defendant] told him, in a statement excluded by the trial
court, that the dollar bill had [cocaine] inside of it.” However, as discussed above, because
the deputy had an independent basis for the seizure and search of the folded dollar bill, the
fact that Defendant confirmed the deputy’s opinion of what he was about to discover is
insignificant.
B. Sufficiency of the Evidence
{15} Defendant additionally argues, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d
982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that the evidence
presented at trial was insufficient to result in his conviction for possession of a controlled
substance. We are unconvinced.
{16} Our review of a sufficiency of the evidence question involves a two-step process.
See State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). Initially, we view the
evidence in the light most favorable to the verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict, and then we must “make a legal
determination of whether the evidence viewed in this manner could justify a finding by any
rational trier of fact that each element of the crime charged has been established beyond a
reasonable doubt.” Id. (internal quotation marks and citation omitted). “The question is
whether the [conviction] is supported by substantial evidence, not whether the [fact finder]
could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15,
121 N.M. 562, 915 P.2d 318; see State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950
P.2d 789 (“The reviewing court does not weigh the evidence or substitute its judgment for
that of the fact finder as long as there is sufficient evidence to support the verdict.”),
abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M.
381, 237 P.3d 683.
{17} To convict Defendant of possession of a controlled substance, the State was required
to prove that (1) Defendant had cocaine in his possession; and (2) Defendant knew it was
cocaine or believed it to be some drug or other substance, the possession of which is
regulated by law. Here, Deputy Bleimeyer conducted a search incident to the arrest of
Defendant and found a uniquely folded dollar bill in his pocket. The deputy unfolded the
dollar bill and uncovered a white, powdery substance, which was later confirmed to be
cocaine. Additionally, both the deputy and Agent Misquez testified that dollar bills are often
used as a way to conceal and later ingest cocaine.
{18} This evidence is sufficient for a reasonable jury to conclude that the evidence found
on Defendant was cocaine and, based on the peculiar packaging and its location inside his
pocket, he was aware that the substance was cocaine or another controlled substance.
Viewing the facts in the light most favorable to the State, we hold that there was sufficient
evidence to support Defendant’s conviction.
III. CONCLUSION
{19} For the foregoing reasons, we conclude that the folded dollar bill found on
Defendant’s person was validly seized and searched, pursuant to a reasonable search incident
to arrest under the United States Constitution and New Mexico Constitution, and there was
sufficient evidence to support his conviction for possession of cocaine. We affirm the
district court’s denial of Defendant’s motion to suppress and affirm his convictions.
{20} IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
____________________________________
JAMES J. WECHSLER, Judge
____________________________________
CYNTHIA A. FRY, Judge
Topic Index for State v. Armendariz-Nunez, Docket No. 30,434
AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal
AE-SB Substantial or Sufficient Evidence
CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy
CT-FA Fourth Amendment
CT-IT Interstitial Analysis
CT-NM New Mexico Constitution, General
CT-SU Suppression of Evidence
CL CRIMINAL LAW
CL-CL Controlled Substances
CA CRIMINAL PROCEDURE
CA-MR Motion to Suppress
CA-SE Substantial or Sufficient Evidence
CA-SZ Search and Seizure
CA-WS Warrantless Search