State v. Cole

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.

Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 34,648 5 AMANDA COLE, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean, Jr., District Judge

9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 McGarry Law Office 14 Kathleen McGarry 15 Glorieta, NM

16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge.

1 {1} Amanda Cole (Defendant) was charged with trafficking a controlled substance, 2 methamphetamine, and possession of drug paraphernalia. Defendant filed a motion 3 to suppress evidence retrieved from her flip cell phone that was discovered during a 4 search of the vehicle in which she was a passenger. Defendant claimed that the 5 officers did not possess a valid warrant, and therefore seizure of the cell phone 6 violated her Fourth Amendment rights under the U.S. Constitution, as well as the 7 protections of Article II, § 10 of the New Mexico Constitution. The motion to 8 suppress was denied. Defendant entered a conditional guilty plea for trafficking, but 9 reserved the right to appeal the denial of the suppression motion. We affirm the 10 district court’s denial of Defendant’s motion. 11 I. BACKGROUND 12 {2} Defendant was a passenger in the back seat of a vehicle owned and driven by 13 Kenneth Burrows (Burrows), who was under investigation by law enforcement for 14 trafficking methamphetamine and cocaine. During the investigation, officers worked 15 with a confidential informant (CI) to conduct controlled purchases of drugs. As a 16 result of the initial investigation, a search warrant was obtained to stop and search 17 Burrows’s vehicle. When the vehicle was stopped, there were three individuals inside, 18 including Burrows, who was sitting in the driver’s seat, his girlfriend who was in the 19 passenger seat, and Defendant who was in the back seat on the passenger side. The

3

1 officers discovered that Defendant was the subject of an out-of-state arrest warrant. 2 All three occupants and the vehicle were taken to the police station. 3 {3} When the vehicle was searched, pursuant to the search warrant, officers found 4 multiple cell phones, drugs, drug paraphernalia, guns, and money. The cell phones, 5 made up of both flip phones and smart phones, were discovered on the floorboard of 6 the front passenger seat. Agent Jacob Sanchez, a deputy with the San Juan County 7 Sheriff’s Office assigned to the Region II Narcotics Task Force, opened the phones 8 in order to find out who owned them. Agent Sanchez discovered that one of the flip 9 cell phones belonged to Defendant. When Agent Sanchez opened Defendant’s flip cell 10 phone, he observed text messages concerning drug trafficking. He then closed the cell 11 phone and put it with the other items seized as a result of the stop. Agent Sanchez 12 stated that a second search warrant was sought for the cell phones because it is the 13 procedure followed when cell phones are seized. 14 {4} Defendant filed a motion to suppress evidence taken from her flip cell phone. 15 Defendant argued that the officers’ actions in opening her flip cell phone and using 16 information obtained from the cell phone to seek a second warrant to search her flip 17 cell phone amounted to an illegal search. Defendant claimed that the first warrant did 18 not apply to her or her property, and the second warrant was based on illegally-seized 19 evidence. In denying Defendant’s motion, the district court found that Defendant did

4

1 not challenge the legality of the search warrant or the traffic stop related to Burrows 2 and his vehicle. The district court also found that multiple “unknown cell phones” 3 were located on the floorboard of the front passenger seat, and that law enforcement 4 officers did not remove the cell phones from the occupants’ person, nor did they order 5 them to leave their phones in the vehicle. The district court further found that Agent 6 Sanchez opened “what turned out to be Defendant’s flip cell phone in order to 7 determine who it belonged to”; a message “on what turned out to be Defendant’s flip 8 cell phone was immediately visible on the screen when opened; it contained 9 information associated with drug trafficking”; and Agent Sanchez “immediately 10 closed what turned out to be Defendant’s [flip] cell phone” and sought a search 11 warrant for the cell phone. 12 II. DISCUSSION 13 A. Abandonment 14 {5} The district court denied Defendant’s suppression motion, concluding that 15 Defendant did not have a legitimate expectation of privacy in her flip cell phone 16 because “she exited the vehicle and left her [flip] phone in the vehicle without taking 17 any steps to protect or safeguard its contents.” In other words, the district court 18 determined that Defendant abandoned her flip cell phone. We review de novo the 19 district court’s conclusion of law. See State v. Celusniak, 2004-NMCA-070, ¶ 27, 135

5

1 N.M. 728, 93 P.3d 10. On appeal, this Court may independently draw its own 2 conclusions of law. See Bounds v. State ex rel. D’Antonio, 2011-NMCA-011, ¶ 33, 3 149 N.M. 484, 252 P.3d 708. 4 {6} Abandonment is based on actions and intent, and the intent to abandon must be 5 shown by clear and unequivocal evidence. See Celusniak, 2004-NMCA-070, ¶ 26. The 6 basic question is whether Defendant disclaimed ownership of the cell phone or 7 physically relinquished it. See id. ¶ 28. Here, there is nothing to indicate that 8 Defendant denied ownership of the cell phone or was even asked if the cell phone 9 belonged to her. See id. ¶ 34 (pointing out that an officer can easily verify ownership 10 of an item by asking, and an officer should make such an inquiry before assuming that 11 the item is abandoned). There is no evidence in the record to show that Defendant left 12 the cell phone in the vehicle with the intent to abandon it. As a result, we hold that the 13 district court erred in concluding that Defendant abandoned the cell phone. See id. 14 ¶¶ 32-33 (holding that abandonment was not supported where the defendant did not 15 toss the purse out the window, did not leave it in a public place, was not fleeing when 16 she left the purse, and did not put the purse in a place where the defendant had no 17 plans of returning). 18 {7} However, this Court can uphold the district court’s denial of the motion to 19 suppress if it is right for any reason. See State v. Gallegos, 2007-NMSC-007, ¶ 26,

6

1 141 N.M. 185, 152 P.3d 828 (stating that an appellate court will affirm a district 2 court’s decision if it is right for any reason, so long as it is not unfair to the appellant); 3 State v. Wilson, 1998-NMCA-084, ¶ 17, 125 N.M. 390, 962 P.2d 636 (stating that 4 fairness “tempers” the precept of affirming a decision of the district court as right for 5 any reason). Based on our review of the first affidavit for a search warrant, we 6 conclude that there already existed probable cause to search all cell phones found in 7 the vehicle. 8 B. There Was Probable Cause to Search Defendant’s Flip Cell Phone 9 {8} Defendant claims that the first search warrant did not cover her flip cell phone 10 because she was not specifically named in the affidavit or warrant. The district court 11 concluded that the search warrant did not specify Defendant’s flip cell phone and did 12 not contain probable cause to justify the search of her cell phone. We disagree. 13 {9} On review of the issuing court’s determination of probable cause when issuing 14 a warrant, “the reviewing court must determine whether the affidavit as a whole, and 15 the reasonable inferences that may be drawn therefrom, provide a substantial basis for 16 determining that there is probable cause to believe that a search will uncover evidence 17 of wrongdoing.” State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 18 376 (overruling in part all previous case law to the extent that the cases applied a de 19 novo rather than substantial basis standard of review). On review, we consider the

7

1 information within the four corners of the affidavit submitted in support of a search 2 warrant. See id. ¶ 31. “[A]n issuing court’s determination of probable cause must be 3 upheld if the affidavit provides a substantial basis to support a finding of probable 4 cause.” Id. ¶ 29. There is probable cause when there is a reasonable basis to believe 5 an offense has been or is being committed in the place that is the subject of the search 6 warrant. Id. “[T]he substantial basis standard of review is more deferential than the de 7 novo review applied to questions of law, but less deferential than the substantial 8 evidence standard applied to questions of fact.” Id. ¶ 30. Thus, “if the factual basis for 9 the warrant is sufficiently detailed in the search warrant affidavit and the issuing court 10 has found probable cause, the reviewing courts should not invalidate the warrant by 11 interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” 12 Id. (alteration, internal quotation marks, and citation omitted). Here, the district court 13 that issued the first search warrant found, based on the affidavit, that there was 14 probable cause to search the person, place, and property described in the affidavit, and 15 we give deference to the issuing court’s determination. 16 1. First Affidavit for Search Warrant and Corresponding Search Warrant 17 {10} Agent Sanchez prepared the affidavit for the first search warrant of the vehicle 18 owned and driven by Burrows, a silver Dodge Challenger. The search warrant was 19 executed on May 16, 2014, by a district court judge and authorized a nighttime search.

8

1 The affidavit described Burrows, the vehicle that he would be driving into New 2 Mexico from California, though the timing was unknown, and stated that the items 3 believed to be concealed in the vehicle included methamphetamine and narcotics, 4 paraphernalia, money, and items related to the sale of narcotics and 5 methamphetamine. The affidavit included requests to detain and search “any 6 occupants of the vehicle . . . proven to have a nexus with [the] person in control at the 7 time.” A detailed explanation of the use of cell phones in operations involving drug 8 distribution was included, as well as an explanation for why the information contained 9 in cell phones often indicates “who are suppliers or users of illegal drugs.” Through 10 training and experience, Agent Sanchez learned that drug distributors often use more 11 than one cell phone in their transactions. The affidavit further explained the lengthy 12 process involved in searching cell phones, computers, and other electronic storage 13 devices. Agent Sanchez requested “authority to search for cellular telephones and to 14 search for such information pertaining to the distribution of controlled substances.” 15 {11} In addition to the detailed information described above, the affidavit also 16 contained a section based on the particular investigation in this case. See State v. 17 Hinahara, 2007-NMCA-116, ¶ 21, 142 N.M. 475, 166 P.3d 1129 (stating that a search 18 warrant was sufficiently particular when all items sought under the warrant were 19 potentially connected to the crimes being investigated as described in the affidavit).

9

1 The search warrant affidavit included a very detailed description of surveillance of 2 Burrows and controlled purchases between the CI and Burrows during which audio 3 recordings, photographs, text messages, and information regarding contacts via cell 4 phones were collected. The information gathered by the CI and included in the 5 affidavit indicated that Burrows and his girlfriend planned to travel to California to 6 get a “big load” of dope that would be the best the CI ever had. The officers planned 7 to “conduct a traffic stop as [the vehicle] enter[ed] into San Juan County.” It was 8 around 10:00 p.m. when the officers identified and stopped the vehicle on its return 9 from California. The occupants inside the vehicle were Burrows, his girlfriend, and 10 Defendant. The vehicle was secured and taken to the Farmington Police Department 11 to execute the search warrant. 12 {12} The place to be searched in this case was a silver Dodge Challenger vehicle, 13 described in detail in the affidavit for search warrant. The search warrant applied to 14 the entire vehicle and the contents as described in the affidavit. There was reason to 15 believe that “methamphetamine/narcotics, paraphernalia, money and contraband, as 16 well as evidence relating to the sale of methamphetamine and/or other illegal 17 narcotics” were located in the vehicle. The warrant was not limited to a particular 18 person or a particular person’s property. Instead, the warrant included any and all cell 19 phones found in the vehicle. The affiant described the cell phones they believed would

10

1 be inside the vehicle as containing information “such as contact names, telephone 2 numbers, and text messages” related to drug trafficking. The affidavit specifically 3 requested authority “to search for cellular telephones and to search for such 4 information pertaining to the distribution of controlled substances.” Within the 5 investigation portion of the affidavit, it was stated that the CI had exchanged text 6 messages with Burrows while he was en route to New Mexico. The CI had cell phone 7 numbers for both Burrows and Burrows’s girlfriend. 8 {13} All the cell phones discovered during the search were located on the floorboard 9 of the front passenger side of the vehicle. Based on the district court’s findings, there 10 was no indication that the officers knew who owned the cell phones found in the 11 vehicle, or why all of the cell phones were found on the floorboard of the front 12 passenger seat. Burrows’s girlfriend, who had been sitting in the front passenger seat, 13 told the officers that whatever was found in the vehicle belonged to her. No other 14 occupant of the vehicle claimed ownership of any of the items found inside, and the 15 cell phones were not taken from the possession of any of the occupants. Cf. State v. 16 Light, 2013-NMCA-075, ¶¶ 43-45, 306 P.3d 534 (explaining that in situations 17 involving automobile searches, drivers and passengers possess a reduced expectation 18 of privacy in property they transport in vehicles, as opposed to the search of a building

11

1 in which the personal property of a person not subject to the search warrant has been 2 stored on premises that are open to the public). 3 {14} Defendant claims that she opposed the validity of the affidavit because the 4 language used in the affidavit was boilerplate language, though she never specified 5 what part of the affidavit she considered boilerplate language. As discussed above, the 6 search warrant included some broad statements, but also included specific and detailed 7 statements regarding surveillance during the investigation and the communications 8 between the subjects of the surveillance. This specific information sufficiently tied the 9 cell phones to the drug trafficking operation that was the subject of the investigation. 10 {15} The statements in the affidavit for the first search warrant, along with 11 reasonable inferences derived from those statements, provide a substantial basis to 12 support a determination of probable cause to support the search of the entire vehicle 13 for the type of evidence described in the affidavit, including “cellular telephones and 14 . . . information pertaining to the distribution of controlled substances.” Thus, the first 15 search warrant provided the officer with the authority to open the cell phones and look 16 for information connected to the trafficking investigation. Agent Sanchez opened the 17 cell phones only to determine who owned them and when doing so, he observed 18 information on the flip cell phone screen that appeared to be connected to the drug 19 trafficking investigation. The officer acted under the authority of the first search

12

1 warrant when he opened the cell phones. For that reason, the district court’s decision 2 to deny Defendant’s suppression motion was correct. 3 {16} Defendant further argues that the State admitted at the motion to suppress 4 hearing that there was no probable cause in the first affidavit to justify a search of 5 Defendant’s flip cell phone. However, this Court is not bound by any concessions the 6 State may have made at the district court, and as noted, we have conducted our own 7 analysis. See State v. Caldwell, 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182 P.3d 775 8 (“This Court . . . is not bound by the [s]tate’s concession and we conduct our own 9 analysis[.]”). 10 {17} In passing, Defendant suggested in her motion to suppress and now on appeal 11 that the seizure of her flip cell phone violated “the greater protections of Article II, § 12 10 of the New Mexico Constitution.” Beyond that statement Defendant never 13 develops a supporting argument nor does she provide any legal authority to support 14 this statement. “[T]his Court’s policy is to refrain from reviewing unclear or 15 undeveloped arguments [that] require us to guess at what [a party’s] arguments might 16 be”; thus, we decline to review this undeveloped argument any further. State v. 17 Urioste, 2011-NMCA-121, ¶ 29, 267 P.3d 820 (internal quotation marks and citation 18 omitted). 19 2. Second Affidavit for Search Warrant and Corresponding Search Warrant

13

1 {18} We note that after the officer opened the cell phones in order to determine who 2 owned them, a second search warrant was obtained to search the cell phones. While 3 the first search warrant provided authority to open the cell phones to search for 4 evidence of drug trafficking, the second search warrant, although not technically 5 necessary, provided additional authority to conduct a search for such information 6 pertaining to the distribution of controlled substances. 7 III. CONCLUSION 8 {19} We hold that Defendant did not abandon the flip cell phone, and that Agent 9 Sanchez was properly acting under authority of the first search warrant when he 10 opened the flip cell phone to determine ownership. We affirm the district court’s 11 denial of Defendant’s motion to suppress the evidence taken from the flip cell phone. 12 {20} IT IS SO ORDERED.

13 14 M. MONICA ZAMORA, Judge

15 WE CONCUR:

16 17 JAMES J. WECHSLER, Judge

18 19 J. MILES HANISEE, Judge