State v. Monafo

2016 NMCA 092, 10 N.M. 558
New Mexico Court of Appeals·Decided July 28, 2016·No. S-1-SC-36054; Docket 33,639·Published·Cited by 16 cases

Opinion

OPINION

KENNEDY, Judge.

{1} Appellee has filed a motion for rehearing in this matter, which has been considered by the original panel, and is hereby granted. The opinion filed July 5, 2016, is hereby withdrawn, and this Opinion is filed in its stead.

{2} Immediately after releasing Defendant from a traffic stop, officers twice pulled him over to investigate ownership of a van he was towing. As a result, Defendant entered a conditional plea to unlawful taking of a motor vehicle, reserving his right to contest the constitutionality of the second stop and search of a receipt book. We agree with the district court that the second stop was sufficiently attenuated from the first. The deputy’s review of the entire receipt book, however, was not completely justified by the limited extent of Defendant’s consent to search.

I. BACKGROUND

{3} On July 1, 2011, Defendant, John Monafo, was driving a flat-bed tow truck, towing a van in Chaves County, New Mexico. Deputy James Seely stopped Defendant, believing Defendant had committed a traffic violation. 1 The reasons for, and facts of, that stop are not material to this appeal. At some point, Francisco Castro arrived at the scene of his own accord. In a side conversation with another officer on the scene, Castro stated that he owned the van on the truck and that he had not given permission for anyone to remove it from his property. It seems from the record that this conversation took place while Deputy Seely was dealing with Defendant.

{4} Deputy Seely, apparently unaware of Castro’s conversation with the other officer on scene, released Defendant from the stop. Deputy Seely began driving away from the scene. Once on the road, he received a dispatch from the scene informing him of Castro’s claims regarding the van, and he returned to the scene just as Defendant was pulling out onto the road. Deputy Seely activated his emergency lights, and Defendant pulled over immediately, stopping only a short distance away from where he had initially been stopped.

{5} After conversing with Castro and the other officers on the scene, Deputy Seely approached Defendant’s driver’s side door and asked Defendant for a “bill of lading” or “manifest” for the van. 2 Defendant retrieved a receipt book containing several receipts, opened it to the one relevant to the van, and gave it to Deputy Seely. Deputy Seely inquired about Cheri Loya, the individual who, according to the bill, consented to the removal of the van, and he requested a check of the driver’s license number listed in the bill. Deputy Seely then left the driver’s side door and walked toward the rear of the truck where two other officers were standing. Together, the officers first scrutinized the information on the bill, eventually looking through the other entries in the receipt book and finding another entry authorized by Ms. Loya. The signatures on the two bills appeared different, despite allegedly belonging to the same individual. Deputy Seely then discovered that the driver’s license number listed in the receipt for the van belonged to a woman with a different name and address than Loya’s. Deputy Seely arrested Defendant for the unlawful taking of a vehicle, contrary to NMSA 1978, § 30-16D-1 (2009).

A. Procedural History

{6} Traffic violations arising from the first stop were charged separately from the unlawful taking of a vehicle charge arising from the second stop. Defendant proceeded pro se in both cases. Having been convicted of the traffic violations in magistrate court, Defendant appealed those convictions, on which he was acquitted, after a de novo trial in the district court.

{7} In this case, Defendant filed a motion to suppress the contents of the receipt book. The district court denied the motion, concluding that once Defendant gave Deputy Seely the receipt book, Deputy Seely “certainly [was] able to get into the items that he ha[d] in his hands.” Defendant also filed a motion to dismiss, which the district court characterized as a Foulenfont motion pursuant to State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329. Defendant’s motion suggested that the van did not qualify as a “vehicle” or “motor vehicle” under Section 30-16D-1, and instead was a “nonrepairable vehicle” outside the purview of the statute charged. After a hearing, the district court denied the motion to dismiss, reasoning that the facts could fit either definition, and concluding that it was for the jury to decide which definition was applicable in this case.

{8} Defendant acquired counsel who filed another motion to suppress, asserting that all evidence obtained through the second stop should be suppressed, as no attenuation existed between the first illegal stop and the subsequently acquired evidence. The district court held a hearing on the motion. Denying Defendant’s motion to suppress, the district court held that sufficient attenuation existed because of Castro’s “fortuitous arrival.” Defendant ultimately entered a conditional plea, reserving the right to appeal previous orders of the district court. Defendant timely filed a notice of appeal.

II. DISCUSSION

{9} Defendant contests the district court’s denial of both motions to suppress and insists that the van in question is not a “vehicle” within the definition provided in the Motor Vehicle Code (the Code). Defendant asks that we suppress all evidence obtained as a result of the second stop, or, in the alternative, suppress all contents of the receipt book aside from the receipt for the van. Defendant requests suppression based on a lack of attenuation between the stops and an impermissible expansion of the scope of Defendant’s consent. The State urges that sufficient attenuation exists between the stops to justify admitting evidence obtained during the second stop.

A. Suppression of Evidence Obtained During Second Stop

{10} When reviewing a district court’s denial of a motion to suppress, appellate courts draw all reasonable inferences in favor of the district court’s ruling and defer to the district court’s findings of fact, so long as they are supported by substantial evidence. See State v. Murry, 2014-NMCA-021, ¶ 10, 318 P.3d 180. Rather than being limited to the record made on a motion to suppress, appellate courts “may review the entire record to determine whether there was sufficient evidence to support the trial court’s denial of the motion to suppress.” State v. Johnson, 1996-NMCA-1 17, ¶ 21, 122 N.M. 713, 930 P.2d 1165 (citing State v. Martinez, 1980-NMSC-066, ¶ 16, 94 N.M. 436, 612 P.2d 228 (holding that appellate courts consider the entire record on appeal, not just evidence presented during a suppression hearing, in affirming the denial of a motion to suppress)).

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State v. Monafo, 2016 NMCA 092, 10 N.M. 558 (N.M. Ct. App. 2016).

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