State v. Baca

90 P.3d 509

135 N.M. 490

2004 NMCA 49

STATE of New Mexico, Plaintiff-Appellee, v. Noel BACA, Jr., Defendant-Appellant.

No. 23,429.

Court of Appeals of New Mexico.

March 1, 2004.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Edmund J. Lang, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant appeals the denial of his motion to suppress evidence obtained after a warrantless probation search and leading to his plea of no contest to the charge of trafficking by possession with intent to distribute cocaine. We affirm.

BACKGROUND

{2} In 1999 Defendant Noel Baca, Jr. pled guilty to one count of petty misdemeanor assault (attempted battery), in violation of NMSA 1978, § 30-3-1(A) (1963), in State v. Noel Baca, Jr., Second Judicial District Court, No. CRCR-99-00400. He was placed on supervised probation for six months pursuant to a judgment, sentence, and order deferring sentence (deferred sentence). The deferred sentence specifically stated "Defendant is ordered to be placed on supervised probation for six (6) months on condition that Defendant obey all rules, regulations and orders of the Probation Authorities," and that "[t]he terms and conditions of probation are made terms and conditions of the deferred sentence."

{3} The order of probation specifically enumerated the terms of probation that a person under supervised probation must acknowledge. The order prohibited the possession and distribution of unlawful drugs and the possession of firearms, and also included the following terms:

1. You will not violate any of the laws or ordinances of the State of New Mexico, or any other jurisdiction, and you shall not endanger the person or property of another.

6. You will permit any Probation Officer to visit you at your home or place of employment at any time and you will permit [a] warrantless search, by a Probation Officer, of your person, automobile, residence, property and/or living quarters if he/she has reasonable cause to believe that such a search will produce evidence of a violation of your conditions of probation.

(Emphasis added.) The order of probation was signed by Defendant, his probation officer, and the sentencing judge on May 15, 2000. Above Defendant's signature, the order read "I have read and understand the terms of this Probation Order and will abide by its terms."

{4} About three months later, Defendant's probation officer, Stacy Kunkle, received a tip from a confidential source that Defendant was selling drugs from his home. Kunkle testified she had known the confidential source for one or two months and that the source was not paid, on probation, or subject to charges. Kunkle notified an investigator from the probation department, Carl Cleland, concerning the information within seven to ten days from receiving the tip. Cleland then conducted an investigation into the allegations against Defendant.

{5} Cleland concluded from his investigation that Defendant was living above his economic means. Cleland learned that Defendant worked for the City of Albuquerque Solid Waste Department and earned approximately $2000 per month and that Defendant's wife earned approximately the same amount. Cleland found that Defendant had five vehicles registered to him including two Harley Davidson motorcycles both paid in full, a 1998 GMC truck with a lien, a 1992 Ford Ranger with a lien, and his wife's 1996 Honda Accord with a one-year lien. Cleland also learned that Defendant had one child attending private school and that he had taken a trip to Aruba in June 2000. Finally, Cleland also obtained information that Defendant had expensive leather furniture, computers, and electronic equipment. Cleland did not determine if someone else paid the tuition for Defendant's child or the trip to Aruba, nor did he check the amount of the monthly payments for the vehicles. Cleland conducted surveillance on Defendant's house at least five times without detecting any suspicious activity. However, Cleland believed he had "reasonable suspicion" to investigate further whether Defendant "was possibly in violation of his probation by trafficking narcotics" based on the totality of circumstances. Cleland therefore concluded he needed to conduct a warrantless probation search for evidence of drugs and/or trafficking.

{6} Accompanied by two Albuquerque Police Department detectives, Cleland and his partner arrived at Defendant's home to conduct a warrantless probation search. Defendant was not home and his teenage son answered the door. Defendant's son allowed the probation officers and detectives to enter the home, and they then requested him to call his father. After ensuring no one else was in the residence, as directed by Cleland, one of the detectives reported seeing a gun safe in the bedroom. The gun safe aroused Cleland's suspicion because Defendant was not allowed to have firearms in his possession as a condition of his probation. The detectives conducted no further search of the home, at this time, other than the original sweep to assure no one else was present. Defendant arrived at the house approximately fifteen to twenty minutes later. Cleland then notified Defendant that the probation officers had "reasonable cause to come and talk to him and look through his place for possible violations of probation" and asked Defendant to open the gun safe. Cleland testified that Defendant became very nervous upon the request to open the safe. Defendant eventually opened the safe which contained a small amount of marijuana and approximately $18,000 in cash. Defendant was read his rights, informed of the information leading the probation officers to believe he was violating the terms of his probation by selling drugs, and was asked if he had any other drugs in the house. Defendant paused for several seconds and finally responded, "[i]f there are any drugs, I don't know about them."

{7} Cleland informed one of the detectives about the confidential tip, the items found in the safe, and the fact Cleland believed "we definitely have a probation violation at this point because he had marijuana in the safe." After Cleland consulted with his supervisor he decided to "talk to the detectives ... and see what they want[ed] to do." At this point the probation officers and detectives had ceased searching Defendant's home. The detectives obtained a search warrant based on the items found in the safe, the information that led to the warrantless probation search, and Defendant's behavior during the warrantless probation search. Further search of the house led to the discovery of cocaine and additional United States currency, for a total of $19,510.

{8} Defendant was charged with trafficking by possession with intent to distribute cocaine in violation of NMSA 1978, § 30-31-20(A)(3) (1990), and with possession of marijuana with intent to distribute in violation of NMSA 1978, § 30-31-22(A)(1) (1990). Also, a forfeiture complaint for $19,510 in United States currency seized from Defendant's home was filed in the Second Judicial District Court, No. CV-2000-09717. The criminal and forfeiture cases were consolidated.

{9} Defendant filed a motion to suppress the evidence obtained from the warrantless probation search and subsequent warrant search. The district court denied Defendant's motion to suppress. Reserving the right to appeal the district court's denial of his motion to suppress, Defendant pled no contest to the charge of trafficking by possession with intent to distribute cocaine. The possession with intent to distribute marijuana charge was dismissed. Defendant waived any interest in the currency which was the subject of the forfeiture action.

{10} On appeal, Defendant asserts (1) the warrantless search (a) was unlawful because the purported probation condition violations on which the officers acted to conduct the search were not reasonably related to his rehabilitation in connection with his misdemeanor assault conviction, and (b) violated the New Mexico Constitution because probable cause plus exigent circumstances were required but absent for the warrantless search; (2) the lower standard of reasonable suspicion for a warrantless probation search, if applicable, was not met with a threshold of substantial evidence; and (3) the warrantless probation search was invalid as a subterfuge for an investigation.

DISCUSSION

Standard of Review

{11} The legality of a search questioned in a suppression hearing is generally tested as a mixed question of law and fact wherein we review any factual questions under a substantial evidence standard and we review the application of law to the facts de novo. State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Werner, 117 N.M. 315, 316-17, 871 P.2d 971, 972-73 (1994); State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994). In reviewing the application of law to facts, we view the facts in a manner most favorable to the prevailing party. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856; State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983).

{12} The rules and exceptions that "flourish in the jurisprudence of search and seizure are often no more than factual manifestations of the constitutional requirement that searches and seizures be reasonable." Attaway, 117 N.M. at 145, 870 P.2d at 107. The rules and the tests they contain are "based ... on careful balancing of the underlying constitutional values," and "each is a proxy for reasonableness, generally applicable, but inherently factual." Id. Thus, we must "shape the parameters of police conduct by placing the constitutional requirement of reasonableness in factual context," and where the mixed question involved "lies closest in proximity to a conclusion of law,... [the] determination[ ][is] to be reviewed de novo." Id. at 145-46, 870 P.2d at 107-08.

{13} We review whether a court's imposition of a...