1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated errors 4 or other deviations from the official paper version filed by the Court of Appeals and does not 5 include the 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. 29,105
10 LUIS CIPRIANO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General 15 Margaret, McLean, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Chief Public Defender 19 Nancy M. Hewitt, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 VANZI, Judge. 1 Defendant appeals his convictions for possession of a firearm by a felon,
2 receiving stolen property, and conspiracy to commit receiving stolen property. The
3 conviction for possession of a firearm by a felon was pursuant to a conditional guilty
4 plea in which Defendant reserved the right to appeal the district court’s ruling on his
5 suppression motion. The convictions for receiving stolen property and conspiracy to
6 commit receiving stolen property were pursuant to a jury verdict. Defendant
7 challenges the denial of his motion to suppress with respect to the firearm that formed
8 the basis of all three convictions. We affirm the district court.
9 BACKGROUND
10 The residence of Brandon Young was burglarized, and six firearms were stolen.
11 Young reported the burglary to police and provided police with information he
12 received in a telephone call from an anonymous source, including Defendant’s name,
13 address, a description of the residence where the firearms were located, and a serial
14 number from one firearm that matched the number on one of the stolen guns. Young
15 testified that, when speaking with the informant, he recognized four of the six guns
16 described as guns stolen from him. Young was told that the firearms would be
17 transported to Mexico to be sold.
18 On the day the guns were reportedly going to be transported, officers went to
19 the residence to investigate the situation. They observed the arrival of two individuals
20 in a truck and then encountered two more individuals exiting the residence; one of the
2 1 men was Defendant, and he was holding a gun case that appeared to contain a rifle.
2 Officer Molenda believed that the rifle might be one of the stolen weapons. The
3 officers drew their weapons, ordered Defendant and the other man to the ground, and
4 handcuffed them. While the officers were securing Defendant and the other
5 individual, a third person came around to the front of the trailer, and he was also
6 secured. Based on his concern for a child left in the residence, Defendant gave
7 officers permission to enter the residence to retrieve the child. While inside the
8 residence, the officer noticed another weapon. Based on their belief that they had
9 verbal and written consent to enter the residence, officers entered the home and
10 retrieved five weapons.
11 Before trial, Defendant moved to suppress “physical evidence and statements
12 seized as a result of the illegal search and seizure of [Defendant’s] property, and any
13 incriminating statements made as a result of the illegal search and seizure.” After a
14 hearing, the district court found that once Defendant was placed on the ground and
15 handcuffed, he was in custody and should have been provided Miranda warnings.
16 The district court granted Defendant’s motion to suppress all statements or evidence,
17 with the exception of the gun in the rifle bag that was in Defendant’s possession when
18 police arrived at the residence. On the day of trial, at a pretrial conference, Defendant
19 renewed his motion to suppress the gun found in the rifle bag. Defendant argued that
20 the officers had no probable cause to open the gun bag, and the gun was not in plain
3 1 view. The district court ruled that the officers had “seen what was obviously a
2 firearm” in Defendant’s possession and denied the motion. Defendant appeals the
3 ruling with respect to his suppression motion.
4 DISCUSSION
5 On appeal, Defendant argues that the rifle case and its contents should have
6 been suppressed on the same basis used to suppress the firearms in the residence.
7 Defendant claims that officers did not obtain a search warrant, and the information
8 from the anonymous tipster was not sufficiently reliable to support the issuance of a
9 search warrant.1 Defendant also claims that the seizure of the gun case did not fall
10 within the plain view exception to the requirement for a search warrant.
11 The denial of a motion to suppress evidence seized during a warrantless search
12 involves a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8, 144
13 N.M. 371, 188 P.3d 95. We view the facts in the light most favorable to the district
14 court’s decision, deferring to those factual findings that are supported by substantial
1 15 Defendant makes a contrary argument in his brief, stating that he “appeals the 16 portion of [the district court] ruling permitting the police to use the fruit of their illegal 17 search and, below, the use of [Defendant’s] un-Mirandized statements to obtain a 18 search warrant and also denying the suppression of the fruit from that second search.” 19 We read Defendant’s statement as suggesting that police used his statements to obtain 20 a warrant in order to search the gun case taken from Defendant. There is nothing in 21 the record to support a claim that police ever obtained a search warrant, and there is 22 nothing in the record to show when the gun case was opened or searched. “Matters 23 not of record present no issue for review.” State v. Hunter, 2001-NMCA-078, ¶ 18, 24 131 N.M. 76, 33 P.3d 296.
4 1 evidence, and recognizing that the district court is in the best position to resolve
2 conflicts in the evidence and evaluate the credibility of the witnesses. State v. Urioste,
3 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review de novo the
4 application of the law to those facts and determine whether the search or seizure was
5 constitutionally reasonable. State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178
6 P.3d 165. The ultimate question with respect to an alleged search and seizure
7 violation is whether the search and seizure was reasonable. State v. Martinez, 94 N.M.
8 436, 440, 612 P.2d 228, 232 (1980).
9 Record on Appeal and Preservation of Issues
10 Before addressing the parties’ substantive arguments, we are compelled to
11 discuss the state of the record presented to this Court on appeal and the preservation
12 of issues raised by Defendant in this appeal. First, Defendant claims that he moved
13 to suppress evidence under both the state and federal constitutions. Contrary to that
14 claim, Defendant did not mention or cite to the state constitution or to any applicable
15 state cases in his suppression motion, at the suppression hearing, or at the pretrial
16 conference. See State v. Leyva, 2011-NMSC-009, ¶ 49, ___ N.M. ___, ___ P.3d ___
17 (No. 32,067, February 17, 2011) (“Rule 12-216(A)’s preservation requirements are
18 straightforward: To preserve a question for review it must appear that a ruling or
19 decision by the district court was fairly invoked . . . . Where a state constitutional
20 provision has previously been interpreted more expansively than its federal
5 1 counterpart, trial counsel must develop the necessary factual base and raise the
2 applicable constitutional provision in trial court.” (emphasis, internal quotation marks,
3 and citation omitted)). Defendant did not take the steps necessary to properly preserve
4 his claims under our state constitution. Therefore, we address Defendant’s claims
5 under the Fourth Amendment to the federal constitution.2
6 In addition, the record on appeal is lacking information necessary to address
7 many of Defendant’s arguments. Defendant did not designate for appeal the entire
8 trial transcript or even portions of the trial transcript that might include references to
9 the rifle that the district court refused to suppress, including when or under what
10 authority the rifle bag was actually opened, whether there were objections to the
11 evidence or testimony presented with respect to the rifle bag or its contents, and what
12 rulings, if any, were made by the district court. See State v. Jim, 107 N.M. 779, 780,
13 765 P.2d 195, 196 (Ct. App. 1988) (explaining that the appellant has the burden to
14 bring up a record sufficient for review of the issues presented on appeal); see also
15 State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct. App. 1975) (refusing to
16 review denial of motion to suppress because record did not include a particular
2 17 We note that, for a warrantless public arrest under our constitution, the officer 18 must have probable cause that the person arrested has committed or is committing a 19 felony, and there must be some exigency that precludes the officer from waiting to 20 obtain a search warrant, both of which were present here as discussed in this opinion. 21 See State v. Saiz, 2008-NMSC-048, ¶ 13, 144 N.M. 663, 191 P.3d 521, abrogated on 22 other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.
6 1 transcript). Defendant also presented or elicited little evidence pertaining to his
2 arguments on appeal, which resulted in a limited factual basis for addressing the issues
3 on appeal. See In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431
4 (“This Court will not consider and counsel should not refer to matters not of record
5 in their briefs.”).
6 Defendant had the initial burden of coming forward with evidence sufficient to
7 raise an issue as to the legality of a search and seizure. See State v. Gardner, 95 N.M.
8 171, 175, 619 P.2d 847, 851 (Ct. App. 1980). The burden then shifted to the State to
9 show that the search and seizure was justified based on an exception to the
10 requirement for a warrant. See State v. Ponce, 2004-NMCA-137, ¶ 7, 136 N.M. 614,
11 103 P.3d 54; see also State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d
12 807 (listing recognized exceptions to warrant requirement as exigent circumstances,
13 consent, searches incident to arrest, plain view, inventory searches, open field, and hot
14 pursuit), modified on other grounds by State v. Gallegos, 2007-NMSC-007, 141 N.M.
15 185, 152 P.3d 828.
16 In his motion to suppress, Defendant described the events that occurred and
17 alleged that the officers did not seek a search warrant, that the information that formed
18 the basis of the investigation was not reliable or accurate, that Defendant’s verbal and
19 written consent was invalid, and that any evidence seized was the fruit of an unlawful
20 search. Defendant stated generally that the search and seizure did not fall within any
7 1 recognized exception to the warrant requirement. In response, the State argued that
2 the information from the anonymous tipster was reliable and provided police with
3 reasonable suspicion to investigate and that a number of exceptions justified the
4 search, including exigent circumstances, consent, plain view, and inevitable discovery
5 pursuant to an inventory search.
6 At the suppression hearing, Defendant concentrated his examination of the
7 witnesses and his argument to the district court on the failure to secure a warrant, his
8 verbal and written consents to search the residence or seize evidence, the reliability
9 of the information from the anonymous informant, and his claim that he was in
10 custody and had not been read Miranda warnings. Defendant did not elicit testimony
11 or make arguments challenging the State’s claims regarding exigent circumstances,
12 plain view, or inevitable discovery.
13 At the pretrial conference, Defendant argued that (1) the information from the
14 anonymous informant was unreliable, (2) the officers had no authority to place
15 Defendant in custody without Miranda warnings, (3) “at that point” officers had no
16 probable cause to open the gun case, and (4) the search of the gun case was not
17 justified by the “plain sight” exception. Defendant’s entire argument made at the
18 pretrial conference was challenging the opening of the gun case in order to obtain the
19 serial number from the gun. The district court stated that the officer had “seen what
8 1 was obviously a firearm in [Defendant’s] possession” and ruled that the rifle would
2 not be suppressed.
3 Because Defendant did not present evidence to refute the State’s reliance on
4 exigent circumstances, plain view, or inevitable discovery, the record before us is
5 deficient in that many of the arguments made by Defendant on appeal are not
6 supported by evidence presented to the district court. When we are provided with a
7 doubtful or deficient record, we indulge every reasonable presumption in support of
8 the ruling of the district court, including the presumption that the district court
9 believed all uncontradicted evidence, and we indulge all inferences in support of the
10 district court’s ruling. See State v. Jason L., 2000-NMSC-018, ¶ 11, 129 N.M. 119,
11 2 P.3d 856. We now turn to the issues Defendant raises on appeal.
12 Information From Anonymous Informant
13 The officers were told by the owner of the guns that an anonymous informant
14 had provided information about the location of the guns, that the person associated
15 with the location was Defendant, and a serial number from one of the guns.
16 Defendant claimed that the information was not proven to be reliable and could not
17 be used to support the officers’ actions.
18 The district court did not make a ruling on the validity of the information from
19 the anonymous informant. However, even if a tip has a low degree of reliability,
20 reliability can come from other details that corroborate the information included in the
9 1 tip. See Urioste, 2002-NMSC-023, ¶¶ 16-17. Where “enough familiarity with a
2 suspect’s affairs is shown by the predictions in an anonymous tip, no overtly criminal
3 behavior need be observed.” Id. ¶ 16. Here, the officers had information about the
4 location of stolen weapons, including a detailed description of the residence and the
5 name of the person associated with the residence, and the officers had information that
6 there was a plan to move the weapons out of the country on a specific day. Police
7 used a database to confirm that the person named by the informant was associated
8 with the residence at the address they were given. On the day that the weapons were
9 reportedly being moved, officers went to the residence to investigate. The officers
10 observed two males arriving at the residence in a truck and observed Defendant
11 leaving the residence and carrying a gun case that appeared to contain a rifle. Based
12 on the corroboration of the information from the anonymous informant, the
13 information was reliable and provided at least reasonable suspicion for the officers’
14 further investigation. See Urioste, 2002-NMSC-023, ¶¶ 16-17.
15 Exigent Circumstances
16 When the officers began their investigation regarding information about the
17 theft of several firearms, they encountered five different individuals, including
18 Defendant, in different areas outside the residence. Defendant was carrying a rifle bag
10 1 that appeared to contain a rifle, and that led Officer Molenda to believe the case
2 contained one of the stolen weapons. Due to concerns about officer safety, Defendant
3 was ordered to the ground. At that point, the officers did not know if anyone else was
4 inside the residence as they had already encountered a number of individuals since
5 their arrival, and they had information that there were several stolen weapons at the
6 residence. Because the officers testified that they were concerned about safety and
7 that testimony was not refuted, we can presume that the rifle case was removed from
8 Defendant’s control when he was ordered to the ground, and the contents were
9 secured at that time. See Jason L., 2000-NMSC-018, ¶ 11 (explaining that where
10 record is deficient, appellate court indulges every reasonable presumption and
11 indulges all inferences in favor of the ruling of the district court). The State argued
12 that the police actions were justified under the exigent circumstances exception to the
13 warrant requirement.
14 We cannot discern from the record what the officers did with the gun case once
15 they seized it. Exigent circumstances arise when an officer encounters an emergency
16 situation that requires the officer to take “swift action to prevent imminent danger to
17 life or serious damage to property.” State v. Gomez, 1997-NMSC-006, ¶ 39, 122 N.M.
18 777, 932 P.2d 1 (internal quotation marks and citation omitted). In this case, the
19 officers had information about several stolen guns at the address, had encountered a
20 number of individuals upon arrival at the residence, did not know how many people
11 1 were located in or around the residence, and observed Defendant carrying what the
2 officers reasonably believed was one of the stolen weapons. Therefore, it was
3 reasonable for the officers to take the rifle case, remove the weapon from the
4 immediate control of any individual that might gain possession of it, and secure the
5 weapon that was inside the case in order to ensure officer safety. See State v.
6 Gutierrez, 2004-NMCA-081, ¶¶ 10, 12, 136 N.M. 18, 94 P.3d 18. The seizure and
7 search of the gun case were justified based on the exigent circumstances exception to
8 the requirement for a warrant.
9 Defendant suggests that the officers were in an area where he had a reasonable
10 expectation of privacy when they encountered Defendant. Defendant did not present
11 any evidence to the district court to support his claim that the area approaching the
12 door of the residence was an area of the property in which Defendant had a reasonable
13 expectation of privacy. See In re Aaron L., 2000-NMCA-024, ¶ 10 (stating that
14 appellate court will not consider issues not raised in the trial court). Moreover, based
15 on our standard of review, the officers had reasonable suspicion to approach the
16 residence in order to gather information pertaining to their investigation. Officer
17 Molenda testified that they went to the residence to conduct a “knock and talk” based
18 on the information that there were stolen weapons at the residence. The “knock and
19 talk” procedure is valid under the federal constitution and our state constitution. See
20 State v. Flores, 2008-NMCA-074, ¶¶ 8, 17, 144 N.M. 217, 185 P.3d 1067. An officer
12 1 may approach a person to conduct an investigation if, based on the totality of the
2 circumstances, the officer has reasonable suspicion that the individual is engaged in
3 or is about to be engaged in criminal activity. See State v. Patterson,
4 2006-NMCA-037, ¶ 15, 139 N.M. 322, 131 P.3d 1286. Here, the officers had
5 reasonable suspicion that Defendant was engaged in criminal activity based on the
6 information from the informant and the information from the database. Based on the
7 totality of the circumstances, the officers had reasonable suspicion to approach the
8 residence in furtherance of their investigation.
9 Plain View
10 As previously discussed, we hold that the seizure and search of the rifle case
11 was justified under the exigency exception to the warrant requirement. Defendant did
12 not challenge the State’s exigency argument but did challenge the right to open the
13 rifle case in order to obtain the serial number based on the plain view exception. We
14 discuss plain view and hold that the plain view exception provides another ground on
15 which to affirm the denial of Defendant’s motion to suppress.
16 Defendant argues that the plain view exception is not applicable because there
17 was no probable cause to believe that the rifle case contained contraband or evidence
18 of a crime so that the incriminating nature of the gun case was not “immediately
19 apparent.” Defendant argues that the serial number, which tied the gun in the case to
13 1 criminal activity, was not in plain view. Instead, the officers had to unlawfully search
2 the gun case to discover the serial number.
3 “Under the plain view exception to the warrant requirement, items may be
4 seized without a warrant if the police officer was lawfully positioned when the
5 evidence was observed, and the incriminating nature of the evidence was immediately
6 apparent, such that the officer had probable cause to believe that the article seized was
7 evidence of a crime.” State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d
8 1286. The determination of probable cause is based on how the circumstances
9 appeared to a trained officer. Id. The general rule is that, absent evidence directly
10 linking a defendant to criminal activity, a search warrant is required prior to opening
11 sealed containers. See State v. Miles, 108 N.M. 556, 558, 775 P.2d 758, 760 (Ct. App.
12 1989). However, we have also recognized that not all containers that the police find
13 during the course of a search are entitled to full protection under the Fourth
14 Amendment. Id. Some containers, including a gun case, are not subject to any
15 reasonable expectation of privacy because of the distinctive nature of their outward
16 appearance. Id. at 558-59, 775 P.2d 760-61. The nature of the container’s outward
17 appearance and an officer’s experience and training, considered within the context of
18 the incident, may permit the officer to identify the criminal nature of the contents of
19 a container sufficient to satisfy probable cause. See Ochoa, 2004-NMSC-023, ¶ 13.
14 1 At the time the officers observed Defendant carrying the rifle case, they had
2 information regarding stolen guns at the residence that were to be moved out of the
3 country, one officer believed that the gun case contained a rifle, and that officer
4 believed that the rifle might be one of the guns that were stolen. Based on this, and
5 based on the outward appearance of the rifle case that led to a reasonable inference
6 that there was a rifle inside, there was probable cause to support seizure of the gun
7 case as evidence of a crime, see id. ¶ 9, and no warrant was required to open the gun
8 case and view the serial number. Miles, 108 N.M. at 559, 775 P.2d at 761. The denial
9 of Defendant’s suppression motion was warranted based on the plain view exception
10 to the warrant requirement.
11 CONCLUSION
12 For the reasons discussed in this opinion, we affirm Defendant’s convictions.
13 IT IS SO ORDERED.
14 _______________________________ 15 LINDA M. VANZI, Judge
16 WE CONCUR:
17 _________________________________ 18 CELIA FOY CASTILLO, Chief Judge
15 1 _________________________________ 2 JAMES J. WECHSLER, Judge