State v. Rocha
This text of State v. Rocha (State v. Rocha) 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.
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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,830
10 JACOBO ROCHA,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Albert S. “Pat” Murdoch, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 Ralph E. Trujillo, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Jacqueline L. Cooper, Acting Chief Public Defender 20 Allison H. Jaramillo, Assistant Appellate Defender 21 Kathleen T. Baldridge, Assistant Appellate Defender 22 Santa Fe, NM
23 for Appellant
24 MEMORANDUM OPINION 1 BUSTAMANTE, Judge.
2 Defendant Jacobo Rocha was convicted of possession of cocaine after his
3 motion to suppress was denied. Defendant argued that his detention at gunpoint
4 rendered his consent involuntary. The district court found that the consent was
5 voluntary because the officer’s request to search was given in Defendant’s native
6 language (Spanish) and because Defendant had lived in the United States for eighteen
7 years. We reverse.
8 I. BACKGROUND
9 Although the parties are familiar with the facts, we present them here to give
10 a complete account of the circumstances known to the district court at the time it made
11 its decision. Two witnesses were presented: Officer Javier Lopez, who was called by
12 the State, and Defendant.
13 Lopez testified as follows. He and another officer were parked together when
14 they heard gunshots nearby. The officers began to investigate, and an unidentified
15 man indicated that the shots had come from behind a building. The officers went
16 behind the building and saw two people. The officers “approached, guns drawn, and
17 commanded” the people to show their hands. Both men complied.
18 At this point, the officers were separated from the men by a chain link fence,
19 and the men were separated by another fence. The officers climbed a fence into the
2 1 yard with one of the people. The officers instructed Defendant to climb the other
2 fence to be in the same yard with everyone else. When Defendant first tried to climb
3 the fence, his right hand moved so that Lopez could not see it. Lopez aimed his gun
4 at Defendant and commanded him to show his hands. Defendant complied. Lopez
5 described himself as “[v]ery” tense at this point.
6 Defendant climbed the fence without further incident. Lopez began a search
7 of Defendant to make sure Defendant had no weapons. During the patdown, Lopez
8 felt something he thought was a baggie of cocaine. He asked Defendant what it was,
9 and Defendant replied that he thought it was money. Lopez asked if he could check
10 the pocket, and Defendant agreed. Lopez found a baggie of white powdery substance
11 which was later identified as cocaine. On cross-examination, Defendant agreed that
12 he gave the officer permission to search his pockets. Because Lopez had initially
13 determined Defendant was more comfortable speaking Spanish, this conversation was
14 conducted in Spanish.
15 Defendant argued that the short time between when he was being commanded
16 to do things at gunpoint and when Lopez requested to search Defendant’s pocket
17 rendered his consent involuntary. The State argued that consent was voluntary
18 because Defendant spoke with Lopez in Spanish and because Defendant had lived in
19 the country for eighteen years. The district court found that consent was voluntary
3 1 because Defendant “was given the choice of yes or no, and in spite of the fact [that]
2 the original contact was at gunpoint, the question was done in [Defendant]’s native
3 language.”
4 II. DISCUSSION
5 “Searches that are . . . consensual are an exception to the warrant requirement.”
6 State v. Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74. “To be deemed
7 valid, the consent given to search must be voluntary and not a product of duress,
8 coercion, or other vitiating factors.” Id. The State bears the burden of proving
9 voluntariness, which depends on the totality of the circumstances. See id.
10 The voluntariness of consent “involves a three-tiered analysis: (1) there 11 must be clear and positive testimony that the consent was specific and 12 unequivocal; (2) the consent must be given without duress or coercion; 13 and (3) the first two factors are to be viewed in light of the presumption 14 that disfavors the waiver of constitutional rights.”
15 State v. Pierce, 2003-NMCA-117, ¶ 20, 134 N.M. 388, 77 P.3d 292 (quoting State v.
16 Anderson, 107 N.M. 165, 167, 754 P.2d 542, 544 (Ct. App. 1988)). “Whether consent
17 was voluntarily given is a factual question, and the trial court’s determination will not
18 be disturbed on appeal unless it is not supported by substantial evidence.” Paul T.,
19 1999-NMSC-037, ¶ 28.
20 Because our standard of review is substantial evidence based on the totality of
21 the circumstances, our cases tend to be fact-specific. Nevertheless, we observe that
4 1 our courts have not hesitated to reverse district court findings that consent was
2 voluntary. See State v. Davis, 2011-NMCA- , ¶¶ 18-19, ___ N.M. ___, ___ P.3d
3 ___ (No. 28,219, Aug. 10, 2011) (finding consent was not voluntary when a defendant
4 was surrounded by numerous police cars and a helicopter, police were armed with
5 assault rifles, and police appeared to have already started to search); Pierce, 2003-
6 NMCA-117, ¶ 21 (finding consent was not voluntary when police repeatedly asked
7 a handcuffed defendant about a bulge in his sock for an extended period of time until
8 the defendant “capitulated”); State v. Ruud, 90 N.M. 647, 650-52, 567 P.2d 496, 499-
9 501 (Ct. App. 1977) (finding that the State had not met its burden of showing
10 voluntary consent when the only evidence was that the defendant agreed when asked
11 for consent).
12 The State did not meet its burden in this case. The evidence establishes two
13 points relevant to consent: (1) that Defendant was held at gunpoint by two tense
14 officers immediately prior to his “consent,” and (2) that Defendant answered “[y]es”
15 when asked if Lopez could search his pocket. Because both Lopez and Defendant
16 testified that Defendant consented, there is substantial evidence to support the
17 conclusion that Defendant’s consent was positive and unequivocal. This is also the
18 only evidence capable of supporting a finding that the consent was voluntary. But the
19 totality of the circumstances paints a far different picture, especially when viewed in
5 1 light of the presumption against waiver of constitutional rights. As in Davis, the
2 officers had made a strong show of force, and Lopez asked to search the pocket after
3 he had already began a search of Defendant’s person. There was little time between
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State v. Rocha, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rocha-nmctapp-2011.