State v. Diaz

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 31,288 10 CARMEN DIAZ, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 William A. Sanchez, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Deschamps & Kortemeier Law Offices, P.C. 18 Lauren Reed 19 Socorro, NM

20 for Appellant 21 MEMORANDUM OPINION 22 VANZI, Judge.

1 Defendant appeals from her “order of probation” based on her underlying 2 conditional no-contest plea for possession of a controlled substance 3 (methamphetamine). Our second notice proposed to affirm, and Defendant filed a 4 timely memorandum in opposition. We remain unpersuaded by Defendant’s 5 arguments and therefore affirm. 6 Defendant continues to argue that the district court erred in denying her motion 7 to suppress based on her argument that Deputy Martinez’ warrantless search of her 8 purse was unlawful. [MIO 3; RP 24, 45, 56] As provided in our second notice, 9 Deputy Martinez stopped a vehicle occupied by Defendant and Donnie Hobbs while 10 in the course investigating an armed robbery in which Hobbs was a suspect. [DS 1-2] 11 During the course of the stop, in which both Defendant and Hobbs were questioned 12 outside of the vehicle, Defendant returned to the vehicle to retrieve her purse. [DS 2; 13 RP 44] When Deputy Martinez tried to grab her purse, Defendant grabbed the purse 14 away. [DS 2] Given Hobbs’ status as an armed robbery suspect, Defendant’s status 15 as Hobbs’ girlfriend, and Defendant’s aggressive behavior with regard to the purse, 16 Deputy Martinez handcuffed Defendant and searched her purse for a weapon. As 17 provided in our second notice, an investigation for armed robbery may serve as 18 justification for a weapons search. See State v. Vandenberg, 2003-NMSC-030, ¶ 22, 19 134 N.M. 566, 81 P.3d 19. Moreover, the officer was justified in handcuffing

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1 Defendant [MIO 4] during the search to ensure his safety. See State v. Gutierrez, 2 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94 P.3d 18 (recognizing that a search for officer 3 safety may be justified even when the defendant is handcuffed). 4 For reasons set forth herein and in our second notice, we affirm. 5 IT IS SO ORDERED.

6 __________________________________ 7 LINDA M. VANZI, Judge

8 WE CONCUR:

9 _________________________________ 10 JAMES J. WECHSLER, Judge

11 _________________________________ 12 CYNTHIA A. FRY, Judge