State v. Lovato

478 P.3d 927

STATE of New Mexico, Plaintiff-Respondent,

v.Robert L. LOVATO, Defendant-Petitioner.

NO. S-1-SC-37859

Supreme Court of New Mexico.

Filing Date: December 3, 2020

Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM for Petitioner

Hector H. Balderas, Attorney General, Eran Shemuel Sharon, Assistant Attorney General, Santa Fe, NM for Respondent

NAKAMURA, Justice.

{1} This case requires us to decide whether a law enforcement officer's threat to obtain a search warrant renders a subsequent consent to search involuntary. We hold that when a law enforcement officer procures consent to search through the threat to obtain a search warrant, and as a result the defendant believes refusal to consent would be futile, such consent is involuntary unless the law enforcement officer had probable cause to obtain a search warrant when the threat was made.

{2} Defendant Robert Lovato was charged with one count of possession of a controlled substance (methamphetamine) contrary to NMSA 1978, Section 30-31-23(A), (E) (2011, amended 2019) and one count of possession of marijuana (one ounce or less) contrary to Section 30-31-23(A), (B)(1). In the district court, Defendant moved to suppress evidence of the controlled substances recovered by law enforcement on the basis that his consent to the underlying search was involuntary. The motion was denied. Defendant subsequently pleaded guilty to one count of possession of a controlled substance (methamphetamine). Defendant appealed, and the Court of Appeals affirmed the district court. State v. Lovato , A-1-CA-36312, mem. op. ¶ 1, 2019 WL 3765280 (July 18, 2019) (non-precedential). Defendant then filed a petition for writ of certiorari, which we granted. The sole question on certiorari is whether Defendant's consent to search was voluntarily given. Holding that it was not, we reverse the Court of Appeals.

I. BACKGROUND

{3} Defendant was approached by the New Mexico State Police (NMSP) to conduct a "knock and talk" in reference to alleged complaints from neighbors that Defendant was dealing drugs on his property. After a brief discussion with Defendant about the property, where Defendant both lived and ran a scrapyard, Agent Joey Gallegos gave Defendant two options.¹

Alright well, we can do one of two things. Um, we can – right now I believe I have enough probable cause to obtain a search warrant for your place. For this area here and for your place back at home to search for narcotics. Um, if I petition in courts I'm granted a search warrant then we're going to take, if you do have any drugs or whatever in your places we are going to seize them and you'll be arrested. The second option is if you[’re] willing to work with us and cooperate with us we're willing to do the same with you. If you voluntarily turn over any drugs that you may have or anything you may have and allow us to search voluntarily, it's free and voluntarily we don't consent we will not arrest you and instead what we'll do is just submit a report to the DA's. If they decide they want to charge you that[’s] up to them, that's not up to us. But we're not going to charge or arrest you today. We just take the drugs and leave. You have my word that you don't get arrested.

{4} Defendant told Gallegos that he did not have any drugs and Gallegos reiterated that Defendant had two options. Gallegos then told Defendant that "people have been calling us and complaining about you for a while[,]" and Defendant acknowledged that people had complained, but characterized them as a "bunch of haters." Defendant asked Gallegos to repeat the options again, and Gallegos told Defendant:

I believe I have enough probable cause to obtain a search warrant for your place. What that entails is, is that we kick everybody out, we secure the residence we kick everybody out. And hum, go back to the office and petition for a search warrant, I will tell you this, I've done over, I've petitioned for over 222 search warrants and I've never been denied one. Um, we get a search warrant, we search the place and then any drugs that you have we take with us and you will be arrested. You will be charged today. So basically if you want to work with us and volunteer us, allow us to search the place it's your own free and voluntary consent. It's of your own free will. It's your choice. I'm not threatening you or anything. I'm just telling you the options of what I intend to do. Basically we just take the dope and leave. You won't be arrested. We don't arrest you today. (Emphasis added.)

Following further discussion, Defendant told Gallegos that there might be a little bit of marijuana in the house. When Gallegos again asked Defendant for consent to search, Defendant replied that he did not understand why a search was necessary. Gallegos responded that they had been watching Defendant's house and Defendant had been on the radar for a while. When Gallegos told Defendant that a few people had been arrested who said they'd bought "dope" from Defendant, Defendant responded, "Maybe weed?" Eventually, Defendant turned over methamphetamine and marijuana.

II. PROCEDURAL HISTORY

{5} In the district court, Defendant moved to suppress the evidence of the methamphetamine and marijuana, arguing that his consent to search was coerced. Defendant claimed that Gallegos coerced him by, among other things, threatening to obtain a search warrant if Defendant did not consent to the search. At the suppression hearing, the only evidence offered by the State was a recording and transcript of the "knock and talk." It is not clear why NMSP agents were not present at the hearing.

{6} Both Defendant and his investigator, Denis Romero, testified on behalf of the defense. Romero testified first, stating that he reviewed the discovery file and saw no indication of drug activity at Defendant's home, and nothing to corroborate Gallegos’ statements that police had been receiving complaints and had arrested people who said they had bought drugs from Defendant. Defendant then testified that he did not know what to do when Gallegos sought Defendant's consent to search the premises. Defendant explained that Gallegos threatened to lock Defendant out of his residence and scrapyard while Gallegos obtained a search warrant. According to Defendant, although he did not want to give consent to the search, Gallegos’ threat had a "big effect" on Defendant's ultimate decision to consent.

{7} At the conclusion of the foregoing testimony, the district court asked the State if, under State v. Shaulis-Powell , 1999-NMCA-090, 127 N.M. 667, 986 P.2d 463, the NMSP agents could threaten to get a search warrant if they did not in fact have probable cause. The district court also asked if the statements pertinent to probable cause made by NMSP agents on the "knock and talk" recording could be taken at their word, or if additional evidence of probable cause would be necessary. The State acknowledged that a showing of probable cause was required and that the information on the recording was insufficient evidence on that point. The State added: "You would have to hear from the officers ... You can't even say that you wouldn't arrest them unless you have the ability to arrest them."

{8} Defendant, in closing, distinguished Shaulis-Powell from the facts in this case. Defendant emphasized that the Court of Appeals in Shaulis-Powell clearly held that probable cause was a close call but that, due to independent corroboration of the tip initially received by the police, a magistrate would likely have found probable cause. This was key to the Court of Appeals’ conclusion that the consent to search was voluntary. See 1999-NMCA-090, ¶ 13, 127 N.M. 667, 986 P.2d 463. Defendant argued that no such corroboration existed here, and that therefore probable cause was lacking, such that the evidence should be suppressed.

{9} The district court confirmed that there was no additional evidence to consider and took the motion to suppress under advisement. Later, the district court denied the motion, finding that the officer's threat to secure the location while obtaining a search warrant was not "sufficiently coercive" to vitiate Defendant's consent to the search. It further concluded that, based on the "testimony" of the NMSP agents, there was probable cause to obtain a search warrant.

{10} Defendant eventually pleaded guilty, reserving his right to appeal. In the Court of Appeals, Defendant argued that the motion to suppress should have been granted, raising essentially the same arguments made in the district court. See Lovato , A-1-CA-36312, mem. op. ¶ 21. The Court of Appeals majority affirmed the district court but declined to reach the probable cause issue. Id. ¶¶ 28, 34. Specifically, the Court of Appeals held that, "[b]ecause Agent Gallegos’ statements [about obtaining a warrant] were only assessments of the situation and not an unequivocal assertion [that a warrant could be obtained], it is unnecessary to reach a determination on the sufficiency of evidence to support probable cause for a search warrant." Id. ¶ 28.

{11} Judge Briana Zamora dissented. Id. ¶¶ 36-46 (Zamora, J., dissenting). According to the dissent, Gallegos "unequivocally assert[ed] that he would be able to obtain a warrant and thus Defendant ... merely acquiesce[d] to a claim of lawful authority." Id. ¶ 40. The dissent also determined that the district court's finding of probable cause was not supported by substantial evidence, noting the State's concession that officer testimony would have been necessary to support such a finding. Id. ¶¶ 43-45. The dissent therefore concluded that Defendant's consent to the search was involuntary. See id. ¶¶ 42, 45

III. DISCUSSION

{12} On writ of certiorari to this Court Defendant again argues that his consent to search was involuntary, and that the district court should have suppressed the tainted evidence. Defendant argues that Gallegos’ representation that Defendant had "two options"...