State v. Almanzar

2012 NMCA 111, 2 N.M. 717
CourtNew Mexico Court of Appeals
DecidedJuly 26, 2012
Docket33,763; Docket 30,600
StatusPublished
Cited by2 cases

This text of 2012 NMCA 111 (State v. Almanzar) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Almanzar, 2012 NMCA 111, 2 N.M. 717 (N.M. Ct. App. 2012).

Opinion

OPINION

GARCIA, Judge.

{1} Defendant appeals the district court’s denial of his motion to suppress evidence removed from his pocket during a pat-down search. The district court found that the evidence was discovered in a legal pat-down search and that in any event, it would have been inevitably discovered in a search incident to arrest for the misdemeanor domestic battery charge. We conclude that the removal of evidence from Defendant’s pocket exceeded the scope of a legal pat-down search for weapons. In addition, the officers were not statutorily authorized to arrest Defendant for misdemeanor domestic battery without a warrant because the arrest was not at the scene of the domestic disturbance. We therefore reverse and remand.

BACKGROUND

{2} We set forth the underlying events in the light most favorable to the ruling rendered below. See State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. On December 1, 2007, Officers Fuller and Crafton of the Albuquerque Police Department were dispatched to Central and San Pedro in Albuquerque to respond to a call regarding a domestic violence incident between Defendant and his live-in girlfriend (Victim) in the parking lot at Tingley Coliseum. At the time the officers were dispatched to investigate, Victim and Defendant had both left the Tingley Coliseum parking lot and gone to two separate locations. Officer Fuller located Victim outside a Walgreens store. Officer Crafton and Officer Cortesi located Defendant at a nearby Circle K convenience store. The officers located both Victim and Defendant within seven minutes after receiving the dispatch.

{3} When Officer Fuller approached Victim, she was crying and holding her lower abdomen on the left side. She said Defendant had kicked her at the Tingley Coliseum parking lot, and she had walked to Walgreens to call the police. Victim knew that Defendant had also walked away from the parking lot, but she did not believe that Defendant followed her from the parking lot. Victim did not feel threatened by Defendant after they separated.

{4} When Officer Crafton and Officer Cortesi approached Defendant at the Circle K, Defendant put his hands in his front pockets and refused to remove them. At that time, neither officer had any reason to believe Defendant was armed. However, because Defendant was a suspect in a domestic violence incident, the officers escorted him outside, handcuffed him, and conducted a pat-down search for weapons. Defendant was cooperative and non-threatening during the pat-down search. Officer Crafton did not locate any weapons during the pat-down search, but he did feel and remove a hard “golf ball-size thing” from the right pocket of Defendant’s pants. Officer Crafton did not believe that the object in Defendant’s pocket felt like a knife or a firearm. Nonetheless, Officer Crafton chose to remove the object from Defendant’s pants because he did not know what it was. The object appeared to be powdered cocaine.

{5} Defendant was handcuffed and placed under arrest for possession of a controlled substance with intent to distribute. See NMSA 1978, § 30-31-20(A)(3) (2006). Officer Crafton chose to book Defendant only for the felony of possession of the cocaine and not the misdemeanor domestic battery because it was a more serious charge. Had he not conducted the original pat-down search of Defendant, Officer Crafton testified that he would have arrested Defendant on the domestic battery charge and then conducted a search incident to that arrest.

{6} Defendant moved to suppress the cocaine found in his pocket on the grounds that the search violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. At the hearing, Defendant argued that Officer Crafton did not have grounds to conduct a protective pat-down for weapons and that he exceeded the scope of any protective pat-down by removing an object that was clearly not a weapon. Defendant also asserted that the officers did not have grounds to conduct a search incident to a warrantless arrest because Defendant was not “at the scene” (the Tingley Coliseum parking lot) of the domestic disturbance when he was arrested. He points out that the exception to the warrant requirement set forth in NMSA 1978, Section 31-1-7(A) (1995) only permits a warrantless arrest when the officer is located “at the scene” of the domestic disturbance.

{7} The district court did not enter any written findings of fact or conclusions of law. Instead the court simply denied Defendant’s motion to suppress. At the suppression hearing, the court orally concluded that the officers were justified in conducting a pat-down search and removing the cocaine from Defendant’s pocket. The court said that the conduct was justified because the officers were investigating a claim of domestic violence and because Defendant’s refusal to remove his hands from his pockets was “curious.” The district court further concluded that the officers conducted a de facto arrest for domestic violence when they placed Defendant in handcuffs outside the Circle K convenience store, and that the officers were statutorily authorized to arrest Defendant at that time. In doing so, the district court chose to broadly interpret the “at the scene” language in Section 31-1-7(A) to include the general vicinity or area where the incident occurred. Defendant entered a conditional plea to trafficking cocaine (possession with intent to distribute) reserving his right to appeal the denial of his motion to suppress.

DISCUSSION

A. Standard of Review

{8} We review the denial of a motion to suppress as a mixed question of fact and law. State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. The appellate courts “review the factual basis of the court’s ruling for substantial evidence, deferring to the district court’s view of the evidence.” Id. However, our review of the district court’s legal conclusions is de novo. Id.

B. The Warrantless Search of Defendant

{9} On appeal, Defendant argues that the district court erred in denying his motion to suppress because neither the pat-down search nor the inevitable discovery doctrine exceptions to the warrant requirement justified the warrantless search of his person. The Fourth Amendment of 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. Leyva, 2011-NMSC-009, ¶ 1, 149 N.M. 435, 250 P.3d 861. In the absence of an exception to the warrant requirement, we presume that warrantless searches are per se unreasonable. State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d 1025. The burden is on the State to prove that a warrantless search was reasonable because it was justified by an exception to the warrant requirement. Id.

1. The Pat-Down Search

{10} We first address Defendant’s argument that the district court erred in denying his motion to suppress based on the pat-down exception to the warrant requirement. Defendant asserts that, in this case, conducting a pat-down search was unreasonable because the officers had no reason to believe that their safety was in danger.

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Related

State v. Almanzar
2014 NMSC 001 (New Mexico Supreme Court, 2013)

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Bluebook (online)
2012 NMCA 111, 2 N.M. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-almanzar-nmctapp-2012.