A-1-CA-42301•August 31, 2026- State of New Mexico v. Stephen Pyszkowski, No. A-1-CA-42301
August 31, 2026- State of New Mexico v. Stephen Pyszkowski, No. A-1-CA-42301
A-1-CA-42301Nmctapp
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Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. OF THE STATE OF NEW MEXICO 1 2 3 4 5 6 7 IN THE COURT OF APPEALS Opinion Number: __________ Filing Date: August 31, 2026 No. A-1-CA-42301 STATE OF NEW MEXICO, Plaintiff-Appellee, v. STEPHEN PYSZKOWSKI, 8 Defendant-Appellant. 9 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 10 Angie K. Schneider, District Court Judge 11 Raúl Torrez, Attorney General 12 Santa Fe, NM 13 Tyler Sciara, Assistant Solicitor General 14 Albuquerque, NM 15 for Appellee 16 Bennett J. Baur, Chief Public Defender 17 Santa Fe, NM 18 Mark A. Peralta-Silva, Assistant Appellate Defender 19 Albuquerque, NM 20 for Appellant 21 Court of Appeals of New Mexico Filed 8/31/2026 1:17 PM
OPINION 1
YOHALEM, Judge. 2
{1} Defendant Stephen Pyszkowski appeals his convictions of:0F
1 (1) one count of 3
possession of a controlled substance (methamphetamine), contrary to NMSA 1978, 4
Section 30-31-23(A) (2019, amended 2021); and (2) one count of possession of drug 5
paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2019, amended 6
2022).1F
2 Defendant claims on appeal that the district court erred in denying his 7
pretrial motion to dismiss the charges against him, pursuant to New Mexico’s 8
overdose prevention statute, a statute within the Controlled Substances Act,2F
3 NMSA 9
1978, Section 30-31-27.1(A)(1) (2007, amended 2019). In relevant part, the 10
overdose prevention statute provides immunity from arrest, charges, prosecution, 11
and other penalties for possession of drugs or drug paraphernalia if the evidence 12
supporting these charges was obtained as a result of the defendant having sought 13
medical assistance in good faith for someone experiencing a drug or alcohol 14
1 Defendant does not appeal his conviction for distribution of a controlled
substance (tramadol), contrary to NMSA 1978, Section 30-31-22(A) (2021).
2 The 2022 amendment does not apply. Defendant was convicted in 2021 under
the statutory language as amended in 2019.
3 Overdose prevention statutes are referred to variously both in legal treatises
and by courts as Good Samaritan laws, medical amnesty laws, 911 immunity laws,
and overdose prevention laws. See Nicole Schill, The Fatal Shortcomings of Our
Good Samaritan Overdose Statutes and Proposed Model Statute, 25 Cardozo J.
Equal Rts. & Soc. Just. 123, 126 n.17. We use the overdose prevention language our
Legislature uses in the statute’s title.2
overdose. See § 30-31-27.1(A). Defendant appeals the district court’s finding that 1
by not acting diligently without undue delay to seek medical assistance, he did not 2
act “in good faith” as required by the overdose prevention statute. 3
{2} Defendant also appeals the district court’s denial of his motion to suppress the 4
methamphetamine seized by law enforcement officers from inside a notebook found 5
during the search of his home. Defendant contends that the warrant allowing the 6
search of his home failed to identify the notebook with particularity, and that opening 7
and searching the notebook exceeded the scope of the warrant. Defendant also 8
contends that he was entitled to an adverse inference instruction under State v. Ware, 9
1994-NMSC-091, 118 N.M. 319, 881 P.2d 679, based on what he alleges is officer 10
misconduct in failing to collect body camera footage of the search of his home. 11
{3} Not persuaded there was error on any of these grounds, we affirm the district 12
court. 13
BACKGROUND 14
Introduction 15
{4} On July 30, 2021, Defendant called emergency medical personnel to his home 16
because Defendant’s friend, Mary (Victim), who had been visiting him for several 17
days, was experiencing an overdose. Law enforcement officers and emergency 18
medical personnel arrived within minutes of the 911 call and found Victim 19
unresponsive. Victim was not breathing, had no pulse, and her body was cold to the 203
touch. Defendant was standing over Victim, but was not administering aid. Both law 1
enforcement and emergency personnel believed that Victim was dead when they 2
arrived and likely had been dead for an hour or more. They nonetheless attempted 3
to revive her pursuant to their protocol for responding to such an emergency. They 4
were unsuccessful. 5
The Search Warrant 6
{5} Following Victim’s death, law enforcement obtained a search warrant for 7
Defendant’s home relying, to establish probable cause for the search, on their 8
observation of drug paraphernalia in plain view when they arrived in response to the 9
911 call, as well as Defendant’s reported admission to a neighbor that he had 10
administered the drugs that led to Victim’s overdose. Law enforcement seized 11
methamphetamine and drug paraphernalia during the search. This evidence was the 12
basis for the charges of possession of methamphetamine and drug paraphernalia at 13
issue in this appeal. Additional facts concerning Defendant’s challenges to the search 14
will be presented in our discussion. 15
Defendant’s Immunity Claim Under the Overdose Prevention Statute 16
{6} Defendant does not appear to have challenged the lawfulness of either his 17
arrest for possession of methamphetamine and drug paraphernalia or his indictment 18
for these crimes. Prior to trial, however, Defendant moved to dismiss the possession 19
of methamphetamine and drug paraphernalia charges, contending he was entitled to 204
immunity from being charged and prosecuted under Section 30-31-27.1(A) of the 1
overdose prevention statute. Section 30-31-27.1(A) states as follows: 2
A person who, in good faith, seeks medical assistance for someone 3
experiencing an alcohol- or drug-related overdose shall not be 4
arrested, charged, prosecuted or otherwise penalized, nor shall the 5
property of the person be subject to civil forfeiture, for violating any 6
of the following if the evidence for the alleged violation was obtained 7
as a result of the need for seeking medical assistance. 8
Id. 9
“[S]eeking medical assistance” is defined by the overdose prevention statute as 10
either “(1) reporting an alcohol- or drug-related overdose or other medical 11
emergency to law enforcement, the 911 system or another emergency dispatch 12
system, a poison control center or a health care provider”; or (2) “assisting an 13
individual who is reporting an alcohol- or drug-related overdose or providing care 14
to an individual who is experiencing an alcohol- or drug-related overdose or other 15
medical emergency while awaiting the arrival of a health care provider.” Section 30- 16
31-27.1(D). 17
{7} Defendant’s motion to dismiss alleged that he had both called 911 and 18
provided assistance to Victim while waiting for medical personnel to arrive. The 19
State contended in response that Defendant was not entitled to immunity because the 20
evidence showed that Defendant had done nothing to either obtain or provide 21
medical assistance to Victim; Defendant had failed to call for assistance and he had 22
failed to provide care to Victim while waiting for assistance to arrive after the 911 235
call was placed. The State also alleged that Defendant knew Victim was already dead 1
by the time he sought assistance, suggesting Defendant was ineligible given the 2
person experiencing an overdoes must be then in “need for seeking medical 3
assistance.” See § 30-31-27.1(A). 4
{8} The district court scheduled a pretrial evidentiary hearing on Defendant’s 5
motion to dismiss. At the outset of the hearing, defense counsel argued that an 6
evidentiary hearing was required and that the burden of proof was on the State. The 7
hearing proceeded on this basis. 8
{9} The State presented testimony from a law enforcement officer and a 9
paramedic who had arrived at Defendant’s house in response to the 911 call. The 10
district court entered written findings of fact and conclusions of law based on the 11
evidence at the hearing. The court found that Defendant “did not make the 911 call” 12
and “was not rendering aid to [Victim] when [law enforcement] arrived” minutes 13
after the 911 call. The court also found that Victim was dead when the 911 call was 14
made and “had been dead for at least an hour.” The district court determined that 15
“[t]here was no good faith request for emergency assistance or rendering of aid to 16
[Victim] while awaiting emergency assistance on the part of . . . Defendant.” 17
{10} When new evidence arose subsequent to the pretrial immunity hearing 18
showing that Defendant had in fact placed the 911 call, contrary to the district court’s 19
findings at the hearing, Defendant filed a motion to reconsider. The district court 206
held a hearing on that motion. The court noted near the outset of the reconsideration 1
hearing, and again when Defendant objected to the introduction of hearsay evidence, 2
that the burden of proof was on Defendant on his motion to reconsider and that the 3
rules of evidence did not apply. Defendant authenticated and played for the district 4
court an audio recording of Defendant’s 911 call. The State conceded that Defendant 5
had placed the 911 call. 6
{11} After the introduction of the 911 call into evidence by Defendant, the State 7
questioned the law enforcement officer who had interviewed Jeffrey Vanconnett, 8
Defendant’s neighbor and Victim’s friend, and the only person apart from Defendant 9
present at the scene of the overdose when medical personnel were called and arrived. 10
The officer testified that Jeffrey had told him that Defendant came to his house on 11
July 30, 2021, the day Victim died. Defendant told Jeffrey that he had given Victim 12
some “black and white (heroin and methamphetamine)” and that she had overdosed. 13
{12} They went back to Defendant’s house after Jeffrey finished dressing, and 14
found Victim on a bed unresponsive and not warm. Defendant performed a few 15
ineffective pushes on Victim’s chest, then Jeffrey took over and began doing CPR. 16
Defendant told Jeffrey he would call 911, which he did at 10:05 a.m. 17
{13} Following the hearing on the motion to reconsider, the district court 18
reaffirmed its original decision that Defendant had not made a good faith request for 19
emergency assistance or rendered aid while awaiting emergency assistance. The 207
district court’s order stated that the new evidence offered at the hearing did not 1
warrant reconsideration of its prior decision. 2
Defendant’s Conviction of the Possession Charges and Acquittal of Trafficking 3
and Felony Murder 4
{14} In July 2022, nearly a year after Victim’s death, Defendant was indicted for 5
trafficking and first-degree murder (felony murder), as well as possession of 6
methamphetamine and drug paraphernalia, based on allegations that he administered 7
drugs he knew to be dangerous to Victim, intentionally causing her death. The 8
superseding grand jury indictment charging trafficking and felony murder claimed 9
that “[D]efendant did intentionally cause the death of Victim . . . , during the 10
commission or attempted commission of [t]rafficking a controlled substance (by 11
distribution), a felony offense, under circumstances or in a manner dangerous to 12
human life and [D]efendant intended to kill or knew that his acts created a strong 13
probability of death or great bodily harm, a capital offense, contrary to NMSA 1978, 14
Section 30-2-1(A)(2) (1994).” The State’s theory was that Defendant had injected 15
Victim with a mixture of narcotics early in the morning of July 30, 2021, causing 16
her to overdose. According to the State, Defendant then waited to seek medical 17
assistance out of fear of law enforcement, letting Victim die and waiting nearly an 18
hour after her death and only then going to tell Jeffrey what had happened and finally 19
returning home and calling 911. Defendant contended at trial that Victim woke up 20
during the night and ingested her own fentanyl pills while he slept. The defense 218
claimed he awoke in the morning and found her not breathing and cool to the touch. 1
A jury acquitted Defendant of both trafficking and felony murder, but convicted him 2
of possession of methamphetamine and drug paraphernalia. Defendant did not again 3
before, during, or after trial claim immunity in the district court under the overdose 4
prevention statute. 5
{15} We reserve additional facts for our discussion of each issue raised on appeal. 6
DISCUSSION 7
I. Defendant’s Claim of Immunity From Prosecution Under the Overdose 8
Prevention Statute 9
{16} Our research shows that this is the first time our appellate courts have been 10
asked to review a district court’s decision granting or denying immunity from 11
prosecution under our overdose prevention statute based on whether a defendant’s 12
conduct in seeking medical attention was in good faith. In order to resolve this 13
appeal, we must decide both the question of statutory interpretation raised by the 14
parties about what constitutes “good faith” when a defendant seeks assistance for 15
someone experiencing an overdose. We then must determine whether the district 16
court’s findings of fact, including the ultimate finding that Defendant did not act in 17
good faith in seeking medical assistance for Victim, are supported by substantial 18
evidence in the record. 19
{17} Before we reach these substantive issues on appeal, however, we must first 20
resolve the controversy between the parties as to whether our review should rely 219
solely on the evidence introduced at the two pretrial hearings on immunity from 1
charging and prosecution, as the State contends, or whether we must also consider 2
the evidence presented at trial, as Defendant contends. 3
A. When a Defendant Claims Immunity From Prosecution, This Court 4
Reviews Solely the Record of the Pretrial Evidentiary Hearing or 5
Hearings 6
{18} Because neither party provided a developed argument about what evidence is 7
relevant on appeal, we asked both parties for supplemental briefing on whether we 8
can consider evidence presented at trial that is not part of the record of the pretrial 9
hearings. We asked as well for briefing on which party had the burden of proof in 10
the district court on immunity under the overdose protection statute. 11
{19} The parties agree that Defendant bore the burden of proof and that to the extent 12
the district court placed that burden on the State, that was error. On the question of 13
what evidence we consider in reviewing the district court’s denial of the motion to 14
dismiss, Defendant argues in his supplemental brief that both the evidence 15
introduced at the original and reconsideration pretrial hearings, and the evidence 16
introduced during Defendant’s jury trial should be considered on appeal. Defendant 17
argues: (1) that he was sentenced in violation of the overdose prevention statute’s 18
grant of immunity from penalties, and that sentencing authority is jurisdictional and 19
cannot be waived, so Defendant can make his unpreserved immunity argument 20
relying on trial evidence on appeal; and, in the alternative; and (2) that we should 2110
treat a claim of immunity under the overdose prevention statute like a motion to 1
suppress evidence, where this Court reviews both the evidence at the suppression 2
hearing and the evidence at trial to determine whether constitutional limits on 3
searches and seizures were violated. We are not persuaded by either of Defendant’s 4
arguments. 5
{20} First, Section 30-31-27.1(A) of the overdose prevention statute is not a 6
provision bestowing sentencing authority on the district court: it is a limited grant of 7
immunity from arrest, charging, prosecution, and punishment for crimes committed 8
under certain sections of the Controlled Substance Act, NMSA 1978, Section 30-31- 9
1 to -41 (1972, amended 2025). Nor is it self-executing; rather, the burden of 10
asserting immunity and proving its application is on Defendant. Our Legislature has 11
provided in Section 30-31-37 of the Controlled Substances Act, that “[t]he burden 12
of proof of any exemption or exception [within the Act] is upon the person claiming 13
it.” The immunity offered by the overdose prevention statute is such an exemption 14
or exception. Therefore, Defendant’s contention that the district court loses its 15
statutory authority to sentence and is divested of jurisdiction when there is any 16
possibility of immunity under the overdose prevention statute, even if it has not been 17
raised by the defendant, is incorrect. 18
{21} We also are not persuaded by Defendant’s argument that we consider the 19
evidence at trial as well as the evidence introduced at the pretrial hearing by analogy 2011
to our review of motions to suppress illegally seized evidence. In the case of a motion 1
to suppress, our review is governed by our Supreme Court’s opinion in State v. 2
Martinez, which expanded the scope of the evidence reviewed on appeal from the 3
grant or denial of a motion to suppress to include evidence at trial. 1980-NMSC- 4
066, ¶ 16, 94 N.M. 436, 612 P.2d 228. Martinez provides for consideration of trial 5
evidence when our appellate courts review whether law enforcement had probable 6
cause to conduct a warrantless search. Id. The expansion of the evidence reviewed 7
by this Court in Martinez, however, is limited and specific—we are unaware of any 8
subsequent precedent applying this expansion to other pretrial motions or in other 9
contexts in criminal proceedings. It was adopted because the rights at stake in 10
suppression hearings are constitutional in nature. See id. ¶ 16 (holding that an 11
expanded view of the evidence is necessary so that appellate rules are not “vindicated 12
at the cost of protection under the Fourth and Fourteenth Amendments to the United 13
States Constitution”). 14
{22} The issue before us is not constitutional in nature; rather, it concerns a limited 15
type of statutory immunity provided by our Legislature for policy reasons unrelated 16
to constitutional limits on the prosecution of crime. Moreover, unlike a pretrial 17
suppression hearing, where the rules of evidence do not apply, the pretrial immunity 18
hearing under the overdose prevention statute is an on-the-record evidentiary hearing 1912
where Defendant, not the State, bears the burden of proof.3F
4 See State v. Rivera, 2008- 1
NMSC-056, ¶ 15, 144 N.M. 836, 192 P.3d 1213 (“At a suppression hearing, the 2
court may rely on hearsay and other evidence, even though that evidence would not 3
be admissible at trial.” (internal quotation marks and citation omitted)). Because the 4
rules of evidence do not apply in suppression hearings, affidavits of law enforcement 5
witnesses can be admitted. Id. Unlike an overdose prevention statute immunity issue 6
where witnesses must appear at the pretrial hearing, the trial may be the first 7
opportunity for the defense to cross-examine the witnesses. For these reasons, we 8
are not persuaded that the unique consideration given to trial evidence in the context 9
of reviewing constitutional interests at stake in a suppression hearing extends to 10
claims of immunity under the overdose prevention statute. 11
{23} We therefore agree with the State that, under the plain terms of the Controlled 12
Substances Act, a defendant bears the burden of seeking immunity under the 13
overdose prevention statute and, when immunity from charging or prosecution is 14
sought, such a motion must be decided based on a pretrial evidentiary hearing where 15
the defendant bears the burden of proof. The scope of our review on appeal is limited 16
4 Although in this case, the State introduced hearsay testimony in defending
against Defendant’s motion to reconsider, we do not assume that this is the norm in
immunity hearings under the overdose prevention statute. Since the objection to the
admission of this hearsay testimony has not been pursued on appeal, we rely, as did
Defendant, the State and the district court, on this hearsay evidence without deciding
whether it was properly admitted.13
to the evidence presented at the pretrial evidentiary hearing. Lastly, we offer no 1
opinion on whether the overdose prevention statute allows a defendant to raise 2
immunity from conviction or punishment at trial or post-trial. Defendant did not do 3
so here and, therefore, we do not consider this question.4F
5
4
B. Seeking Medical Assistance in Good Faith Requires That Assistance Be 5
Sought Diligently, Without Undue Delay 6
{24} We next construe the meaning of “good faith” as our Legislature has used that 7
term in the overdose prevention statute. We then apply that definition to the facts 8
admitted into evidence at the pretrial immunity hearing and at the pretrial hearing on 9
the motion to reconsider to determine whether substantial evidence supports the 10
district court’s conclusion that Defendant is not entitled to immunity from 11
prosecution because he did not call 911 “in good faith,” as required by the overdose 12
prevention statute. 13
{25} As we have previously noted, the meaning of the phrase “in good faith,” as 14
applied by the overdose prevention statute to a person who seeks medical assistance 15
for someone experiencing an overdose, has not yet been addressed by our appellate 16
courts. This is a question of statutory interpretation that we review de novo. Hovet 17
v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. “Our primary 18
5 We note that at least one other state court with an overdose prevention statute
similar to New Mexico’s has construed their statute to allow a defendant to raise
immunity pretrial, at trial, at conviction, and post-trial. See, e.g., State v. W.S.B., 180
A.3d 1168, 1183-87 (N.J. Super. Ct. App. Div. 2018).14
goal when interpreting statutory language is to give effect to the intent of the 1
[L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. 2
“In determining legislative intent, we look to the plain language of the statute and 3
the context in which it was enacted, taking into account its history and background.” 4
Pirtle v. Legis. Council Comm., 2021-NMSC-026, ¶ 14, 492 P.3d 586. 5
{26} The overdose prevention statute provides in pertinent part: 6
A. A person who, in good faith, seeks medical assistance for 7
someone experiencing an alcohol- or drug-related overdose shall not be 8
arrested, charged, prosecuted or otherwise penalized, nor shall the 9
property of the person be subject to civil forfeiture, for violating any of 10
the following if the evidence for the alleged violation was obtained as 11
a result of the need for seeking medical assistance. 12
Section 30-31-27.1. 13
{27} We first note that neither the overdose prevention statute nor the definitions 14
section of the Controlled Substance Act, § 30-31-2, the act that includes the overdose 15
prevention statute, defines the phrase “in good faith.” Both Defendant and the State 16
argue that we should adopt the plain, common meaning of “good faith” found in 17
most dictionaries. Both parties rely primarily on the definition of “good faith” in 18
Black’s Law Dictionary, as representative of the commonly used dictionary 19
definitions of “good faith.” Black’s Law Dictionary defines “good faith,” in relevant 20
part as “[a] state of mind consisting in . . . honesty in belief or purpose.” Good Faith, 21
Black’s Law Dictionary (12th ed. 2024). Despite this agreement by the parties on 22
the common meaning of the term “good faith,” Defendant and the State have 2315
conflicting views on how this definition should be applied in the context of the 1
overdose prevention statute. 2
{28} Defendant argues that “the focus of [the overdose prevention statute] is 3
whether a person honestly, sincerely, believ[es] a person needs medical assistance 4
and calls for help.” If a defendant calls for help with a subjective belief that medical 5
assistance is needed at the time the call is placed, and with the sincere desire to obtain 6
such assistance for the person experiencing an overdose, Defendant claims that the 7
requirement of good faith is satisfied. According to Defendant, so long as, at the 8
moment it is placed, the call for assistance is made with the honest purpose of 9
obtaining medical care and with the belief that the assistance is required, rather than 10
with some ulterior motive (such as obtaining immunity from prosecution), the call 11
for help has been made in “good faith.” Defendant points to his expression of 12
concern for Victim during his 911 call and his request that emergency personnel 13
“hurry” in support of his subjective good faith. 14
{29} The State claims, in contrast, that our Legislature intended that seeking 15
medical assistance in “good faith” should take into account the totality of a 16
defendant’s conduct from the time a defendant discovers that someone is 17
experiencing an overdose until the call for help is placed, and not just a defendant’s 18
subjective good faith at the moment of the call. According to the State, “good faith” 19
requires that Defendant establish that he acted with diligence under the 2016
circumstances, promptly seeking emergency medical assistance without undue 1
delay. 2
{30} Both of these approaches to the requirement of good faith are found in New 3
Mexico law. Which approach applies varies depending on the context in which the 4
term “good faith” is used.5F
6 We turn to the history and purpose of the statute and to 5
precedent in other states’ construing language virtually identical to the New Mexico 6
overdose prevention statute to determine the meaning intended by our Legislature. 7
{31} The overdose prevention statute was enacted in 2007. See 2007 N.M. Laws, 8
ch. 260, § 1. New Mexico was the first state to enact an overdose prevention statute. 9
Schill, supra note 20, at 126. All but three states have since followed New Mexico’s 10
lead. See id. The overdose prevention statute has been construed by this Court as 11
“clearly [intended] to encourage those experiencing an overdose, as well as those 12
witnessing another person overdose, to seek medical attention without fear of [arrest, 13
6 Our Supreme Court’s recent decision in CCA of Tennessee, LLC v. New
Mexico Taxation and Revenue Department, 2024-NMSC-013, ¶ 15, 548 P.3d 1,
construed “good faith” in the context of the recipient of a nontaxable transaction
certificate. The Supreme Court notes in that opinion that the term good faith “has
been described as a term that is used in various contexts, with its meaning varying
somewhat depending on the context.” Id. (citing Restatement (Second) of Conts.,
§ 205 cmt. a (1981)). The Court identifies as the two most common approaches those
argued by the parties here: a subjective approach that focuses solely on the person’s
subjective belief at the time the action is taken, and an objective approach that
considers the actions taken by the person under the surrounding circumstances. Id.
¶ 17 n.5. Defendant’s approach is an example of the subjective approach; the State’s
approach is an example of an objective approach to good faith.17
charging, prosecution, or other penalties]” for possession of drugs or other specified 1
relatively minor crimes discovered by authorities as a result of the call of help. State 2
v. Herrera, 2024-NMCA-063, ¶ 15, 554 P.3d 743. The Legislature amended the 3
overdose prevention statute in 2019 to expand the types of offenses that would be 4
immunized from arrest and prosecution, in order to further encourage someone who 5
is a drug user to call 911 when they experience or see someone else experiencing an 6
overdose. Id. (addressing the 2019 amendment, which adds immunity for probation 7
and parole violations). 8
{32} The context in which the overdose prevention statute was enacted, and in 9
which it was expanded by amendment in 2019, provide insight into the Legislature’s 10
intent in using the term “in good faith.” New Mexico’s statute, and those of other 11
states—many of them adopting New Mexico’s approach of providing immunity 12
from arrest and prosecution, others choosing other methods—are aimed at 13
preventing fatal overdoses. See Schill, supra at 126. The enactment of the overdose 14
prevention statute, its amendment, and the enactment of similar statutes in other 15
states, coincided both with a rapidly increasing death toll from illegal narcotic use, 16
and with the availability of drugs capable of quickly reversing an overdose from 17
those drugs. Id. at 124-25. The combination made it clear that if someone witnessing 18
or experiencing an overdose called for medical assistance promptly, it would be 19
possible to save the life of someone who is overdosing. Id. at 125 n.13. Our 2018
Legislature and others realized that “[t]here is a better chance of survival from an 1
overdose if medical assistance arrives quickly.” Id. at 156. 2
{33} A requirement that to be entitled to immunity from arrest or prosecution, a 3
defendant must seek medical assistance “in good faith” is included in nearly all of 4
the state overdose prevention statutes. See id. at 149-50. The good faith requirement 5
has been construed by both legal scholars and state courts to require a defendant to 6
be objectively diligent in reporting the overdose in a timely manner. See Scott 7
Koven, Deserving Life: How Judicial Application of Medical Amnesty Laws 8
Perpetuates Substance Use Stigma, 80 Wash. & Lee L. Rev. 1745, 1776-81 (2023). 9
State courts construing their state’s overdose prevention statute have concluded that 10
diligence in seeking medical assistance is essential to achieving the statutory purpose 11
of saving lives and that such diligence is part of the “good faith in seeking medical 12
assistance” demanded by their statute. See State v. Gill, 642 S.W.3d 356, 362-63 13
(Mo. Ct. App. 2022) (holding that “good faith in seeking medical assistance requires 14
an honest and diligent effort on the part of the person seeking aid”); People v. Taylor, 15
60 N.Y.S.3d 779, 783 (2017) (concluding that the defendant did not seek health care 16
“in good faith” because he did not immediately ask someone to call 911 when he 17
discovered the overdose victim unresponsive). 18
{34} In its decision in Gill, the Missouri Court of Appeals reversed the trial court’s 19
grant of immunity from prosecution based on evidence showing that the defendant 2019
delayed calling 911 until well after he was aware that the overdose victim was facing 1
a medical emergency. 642 S.W.3d at 362-63. The Missouri statute, in language 2
nearly identical to the New Mexico overdose prevention statute, provides immunity 3
from certain drug-related prosecutions to “[a] person who, in good faith, seeks or 4
obtains medical assistance for someone who is experiencing a drug or alcohol 5
overdose.” Mo. Ann. Stat. § 195.205.2. (West 2017); Gill, 642 S.W.3d at 360. The 6
Missouri court rejected the narrow, subjective interpretation of “good faith in 7
seeking or obtaining [medical assistance]” advocated by Defendant here, construing 8
the statute to require “that an individual claiming immunity must exercise good faith 9
generally in seeking or obtaining medical assistance,” including exercising 10
“reasonable diligence” under the circumstances. See Gill, 642 S.W.3d at 362 11
(internal quotation marks and citation omitted). Because the evidence showed that 12
the defendant waited hours to call for medical assistance after he knew his friend 13
was experiencing an overdose—first cleaning up vomit and blood stains—the 14
Missouri court determined that the defendant did not satisfy the statute’s requirement 15
to seek medical assistance “in good faith,” “even if [the defendant] genuinely 16
intended to obtain help for the victim when he finally made the call for help.” Id. at 17
363. 18
{35} In Taylor an appellate court in New York similarly concluded, under New 19
York’s overdose prevention statute, N.Y. Penal Law § 220.78(4) (McKinney 2021), 2020
that a defendant violated the good faith requirement of the New York overdose 1
prevention statute by not immediately seeking medical assistance when he first 2
discovered the victim. Taylor, 60 N.Y.S.3d at 783-85. The court in Taylor 3
determined that even a short delay to dress the victim and get rid of a box of needles 4
before directing someone to call 911 showed that defendant had not sought medical 5
assistance with the diligence required to be acting in “good faith” and held that the 6
defendant, therefore, was not entitled to immunity from prosecution under the New 7
York statute. Id. at 785. 8
{36} The legislative purpose of the New Mexico statute, like the Missouri and New 9
York statutes, is to save the lives of overdose victims by encouraging people to 10
promptly seek medical assistance. See Herrera, 2024-NMCA-063, ¶ 15 (“[T]he 11
purpose of [the overdose prevention statute] is clearly to encourage those 12
experiencing an overdose, as well as those witnessing another person overdose, to 13
seek medical attention without fear of a probation or parole revocation action.”). 14
Doing so with diligence is essential to achieve the statutory purpose of saving lives. 15
We therefore hold that in the context of the overdose prevention statute, seeking 16
medical assistance in good faith necessarily requires that a defendant seek medical 17
assistance without delay. 18
{37} Having concluded that “good faith” necessarily requires that a defendant seek 19
medical assistance without delay, we next review the record to determine whether 2021
substantial evidence supported the district court’s finding that Defendant failed to 1
seek medical assistance in good faith. 2
C. The District Court’s Finding That Defendant Failed to Seek Medical 3
Assistance in Good Faith Is Supported by Substantial Evidence 4
{38} The district court found that “[t]here was no good faith request for emergency 5
assistance . . . on the part of . . . Defendant.” Defendant’s substantial evidence 6
argument applies what we have concluded is an improper subjective legal standard 7
to the evidence in the record, arguing that the evidence shows conclusively that 8
Defendant called 911 not for the sake of escaping criminal culpability, but for the 9
honest purpose of getting medical assistance, and that the district court erred in 10
finding otherwise. 11
{39} Because Defendant applies the wrong legal standard, Defendant does not 12
adequately address the sufficiency of the evidence to support the district court’s 13
finding that Defendant did not act in good faith because he did not call 911 in a 14
timely manner, without undue delay. Our substantial evidence review, however, 15
must focus on the sufficiency of the evidence under what we have determined is the 16
applicable law. Having concluded that “good faith” under the overdose prevention 17
statute requires objective evidence that medical assistance was sought diligently, 18
without undue delay, we measure the sufficiency of the evidence against this 19
definition of good faith. 2022
{40} Substantial evidence is defined as “such relevant evidence as a reasonable 1
mind might accept as adequate to support a conclusion.” State v. Salgado, 1999- 2
NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation 3
omitted), overruled on other grounds by State v. Martinez, 2021-NMSC-002, 478 4
P.3d 880. When evidence is “subject to conflicting interpretations and inferences, 5
the [district] court as the fact[-]finder [is] empowered to weigh the evidence, 6
determine the credibility of the witnesses, and resolve any conflicts in the evidence.” 7
State v. Goss, 1991-NMCA-003, ¶ 20, 111 N.M. 530, 807 P.2d 228. “An appellate 8
court must indulge in all reasonable inferences in support of the district court’s 9
decision and disregard all inferences or evidence to the contrary.” State v. Martinez, 10
2018-NMSC-007, ¶ 15, 410 P.3d 186 (alteration, internal quotation marks, and 11
citation omitted). 12
{41} The court’s ultimate finding that Defendant did not seek medical assistance 13
for Victim in good faith is supported by the court’s underlying findings of fact and 14
by substantial evidence of significant delay by Defendant in calling 911 after he 15
knew that Victim had overdosed. Although the record is not clear about either the 16
time Victim ingested the drugs or when she first began to experience an overdose, 17
the district court received evidence that Defendant went to Jeffrey’s house shortly 18
before 10:00 a.m. and told Jeffrey that he had given Victim a mixture of “black and 19
white”—heroin and methamphetamine—and that she had overdosed. After that 2023
disclosure, Jeffrey and Defendant returned to Defendant’s house. Only at that point, 1
at 10:05 a.m. did Defendant call 911. The transcript of that call shows that Defendant 2
reported that Victim had overdosed, that she was not breathing, and had no pulse. 3
The law enforcement officer who arrived minutes after the 911 call testified that he 4
found Victim’s body cold and stiff. A paramedic who arrived at 10:13 a.m., eight 5
minutes after Defendant’s 911 call, testified that she believed, based on medical 6
factors she observed and described, that Victim had been dead for at least an hour. 7
{42} The district court inferred from Jeffrey’s testimony that Defendant likely 8
knew that Victim was experiencing an overdose from the time he injected her with 9
the heroin and methamphetamine or shortly thereafter. The evidence from law 10
enforcement and paramedics that Victim was dead when they arrived, and that she 11
had been dead over an hour by 10:13 a.m. created a reasonable inference that 12
Defendant injected Victim and then waited until revival was unlikely before going 13
to Jeffrey’s house to tell him Victim had overdosed. Defendant did not call 911 until 14
he returned home with Jeffrey. Under our standard of review, drawing all inferences 15
in support of the district court’s findings, the court’s finding of a lack of good faith 16
based on significant delay by Defendant in seeking medical assistance is supported 17
by reasonable inferences from the evidence in the record. Defendant, who had the 18
burden of proof, introduced no evidence that contradicted the inferences reasonably 19
drawn by the district court. No evidence relating to the defense later raised by 2024
Defendant at trial—that Victim had overdosed on her own fentanyl pills during the 1
night while Defendant slept—was offered at either pretrial hearing. 2
{43} To effectuate the purpose of Section 30-31-27.1, a defendant must seek 3
medical assistance without unnecessary delay. The evidence in the record at the 4
pretrial immunity hearing supports the district court’s findings that Defendant did 5
not do that. Accordingly, substantial evidence supports the district court’s order, and 6
we find no error.6F
7
7
II. Law Enforcement’s Search of the Notebook Found on Defendant’s Desk 8
Was Within the Scope of the Search Warrant 9
{44} Defendant next challenges the district court’s order denying his motion to 10
suppress the methamphetamine seized from inside the notebook found on his desk 11
during the search of his home. Defendant claims that the warrant authorizing the 12
search did not identify the notebook with sufficient particularity and that “officers 13
exceeded the scope of the search warrant” when they opened the notebook and seized 14
the methamphetamine from inside its cover. In reviewing the grant or denial of a 15
motion to suppress evidence, “we review the district court’s ruling to determine 16
7 Because we affirm the district court’s decision on grounds relied on by the
district court—that Defendant did not seek medical assistance in “good faith”
because he did not do so with diligence—we need not address the State’s right for
any reason argument regarding whether someone must be alive to be “experiencing”
an overdose, nor do we need to decide whether the overdose prevention statute also
requires subjective belief that victim is alive and medical assistance is needed,
questions discussed by the parties in their briefs on appeal.25
whether the law was correctly applied to the facts, viewing the facts in the light most 1
favorable to the prevailing party.” State v. Hinahara, 2007-NMCA-116, ¶ 7, 142 2
N.M. 475, 166 P.3d 1129 (omission, internal quotation marks, and citation omitted). 3
“The district court’s determination that a search warrant is insufficiently particular 4
is reviewed de novo.” See id.; see also State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 5
N.M. 18, 94 P.3d 18 (stating that appellate courts “apply a de novo standard of 6
review to the [district] court’s application of law to the facts”). 7
A. Background 8
{45} After Victim’s death, law enforcement officers prepared a probable cause 9
affidavit and obtained a warrant to search Defendant’s home for, as relevant here, 10
illegal drugs and drug paraphernalia. Defendant does not contest the issuance of the 11
warrant based on probable cause to search his home for these items. The warrant 12
authorized law enforcement to search for and seize, “[c]ontrolled substances listed 13
in the New Mexico Controlled Substance [A]ct” (listing Methamphetamine), and 14
“[p]araphernalia commonly associated with the use of and distribution of illicit 15
drugs.” 16
{46} During the search, law enforcement opened a notebook that was on top of 17
Defendant’s desk and found the methamphetamine that forms the basis of the drug 18
possession charge in this matter concealed inside the notebook. 1926
{47} Defendant moved to suppress the methamphetamine, claiming that the search 1
warrant did not “authorize[] the seizure or search of [Defendant]’s notebooks, 2
journals, diaries, or books” with the required particularity, and that therefore the 3
search of the notebook was outside the scope of the warrant. 4
{48} At the district court hearing on the motion to suppress Investigator Diana 5
Chavez, the law enforcement officer who prepared the affidavit for the warrant and 6
conducted the search, testified that based on her experience and training, controlled 7
substances may be found in inconspicuous locations like jeweler’s baggies that are 8
sometimes a “square inch in size, and [the drugs] could be either located on the 9
clothing, pants pockets, shoes, socks, inside of booklets, or envelopes.” Investigator 10
Chavez testified that she found the methamphetamine inside a cookie wrapper 11
concealed inside the notebook, and that such a place was a place where drugs were 12
often stashed. The district court denied Defendant’s motion to suppress the 13
methamphetamine, concluding that the search warrant was sufficiently particular 14
and that law enforcement had probable cause to believe that the drugs that were the 15
focus of the warrant would be found inside the notebook. 16
B. Discussion 17
{49} We understand Defendant to argue that the methamphetamine seized from the 18
notebook should have been suppressed because the affidavit and search warrant 19
failed to identify the notebook with particularity as a place to be searched within 2027
Defendant’s home. Defendant contends that law enforcement was aware that there 1
were books, notebooks and papers in his home, and that they easily could have 2
identified these specifically as items to be searched. We note that Defendant does 3
not claim that the search was aimed at written content in the notebook. Defendant, 4
therefore, does not challenge the search on First Amendment grounds. 5
{50} “A description in a search warrant is sufficient if the description enables the 6
officer to identify the place intended to be searched or item to be seized with 7
reasonable effort.” Hinahara, 2007-NMCA-116, ¶ 9 (alteration, internal quotation 8
marks, and citation omitted). To fulfill the particularity requirement, “[t]here must 9
be a sufficient nexus between the evidence law enforcement is looking for and the 10
particular place being searched.” State v. Sabeerin, 2014-NMCA-110, ¶ 26, 336 P.3d 11
990. 12
{51} We look at the search warrant and the accompanying affidavit together to 13
determine whether a warrant meets the particularity requirement. “[I]f the factual 14
basis for the warrant is sufficiently detailed in the search warrant affidavit and the 15
issuing court has found probable cause, the reviewing courts should not invalidate 16
the warrant by interpreting the affidavit in a hypertechnical, rather than a 17
commonsense, manner.” State v. Williamson, 2009-NMSC-039, ¶ 30, 146 N.M. 488, 18
212 P.3d 376 (alteration, internal quotation marks, and citation omitted). 1928
{52} Under the facts in this case, we do not agree with Defendant that the warrant 1
lacked sufficient particularity. The warrant clearly stated the place to be searched: it 2
was Defendant’s home. It specifically listed methamphetamine among the items to 3
be seized, along with other controlled substances listed in the New Mexico 4
Controlled Substance Act. It is undisputed that the affidavit provided sufficient 5
probable cause for searching the home for controlled substances, and for 6
methamphetamine in particular. Our caselaw makes clear that “if there is probable 7
cause to search for a particular item [here methamphetamine] the officer can search 8
every container and location within the permitted area where that item could be 9
located.” Hinahara, 2007-NMCA-116, ¶ 14 (emphasis added). Investigator Chavez 10
testified at the hearing on Defendant’s motion to suppress that in her experience and 11
training, controlled substances may be found in inconspicuous locations similar to 12
the one where the methamphetamine was found here. The district court’s 13
determination that the warrant was sufficiently particular about the location and the 14
items to be seized to allow officers to open and search inside a notebook is supported 15
by both the law and the evidence at the suppression hearing. We affirm. 16
III. Defendant Was Not Entitled to an Adverse Inference Instruction 17
{53} Defendant makes one remaining argument: that the district court erred in 18
failing to give an adverse inference jury instruction as a sanction for the law 19
enforcement officers’ failure to record the search of Defendant’s home with their 2029
body cameras. See UJI 14-5062 NMRA (instructing the jury that if the state failed 1
to gather evidence, the jury may, “but [is] not required to, infer that the evidence 2
would be unfavorable to the [s]tate”). 3
{54} In order to be entitled to such an instruction when the failure to collect 4
evidence is alleged, a defendant must show that the two-part test adopted by our 5
Supreme Court in Ware, 1994-NMSC-091, ¶ 25, for determining whether to sanction 6
the state when police fail to gather evidence from a crime scene, applies. First, the 7
district court must determine that the evidence that was not collected is “relevant, 8
material, or important to the defense, as opposed to extraneous or duplicative of 9
other evidence.” Id. ¶ 24. Second, the district court must also find that law 10
enforcement’s failure to collect the evidence “was done in bad faith, in an attempt 11
to prejudice the defendant’s case.” Id. ¶ 26. 12
{55} Defendant claims that the body camera footage would have been important to 13
support his claim in the suppression hearing that the search of his home exceeded 14
the scope of the search warrant. Defendant argues that “[w]hile admittedly slightly 15
speculative, body camera recordings of the officers executing the search warrant 16
would have shown to what extent officers exceeded the scope of the search warrant.” 17
We are not persuaded by Defendant’s argument that body camera footage would 18
have been material to his claim that the search of his home exceeded the scope of 19
the warrant. The officer who searched the notebook testified at the suppression 2030
hearing and was subject to cross-examination. Defendant concedes that he has no 1
reason apart from speculation to believe that the video camera footage would differ 2
in any material way from the officer’s testimony admitting that they found the 3
notebook on Defendant’s desk, opened the notebook, and searched inside it for 4
methamphetamine. The body camera footage thus would have been duplicative of 5
this testimony. 6
{56} Moreover, the manner of opening and searching the notebook, the only 7
information that might have been shown by the body camera footage, is not material 8
to the district court’s determination, which we affirm, that the search of the notebook 9
and seizure of its content was lawful. See Hinahara, 2007-NMCA-116, ¶ 14 10
(holding that if there is probable cause to search for a particular item “the officer can 11
search every container and location within the permitted area where that item could 12
be located” (emphasis added) (internal quotation marks and citation omitted). 13
{57} Although we need not address the second factor of the Ware test, we note that 14
even if the body camera evidence was material, Defendant does not contend that the 15
officers acted in bad faith in not activating their body cameras. The record shows 16
that the officers did not activate their cameras based on a reasonable belief that body 17
cameras only needed to be used in encounters with the public. See NMSA 1978, 18
§ 29-1-18(A)(1) (2020, amended 2023) (requiring law enforcement officers to 19
activate a “body-worn camera whenever a peace officer is responding to a call for 2031
service or at the initiation of any other law enforcement or investigative encounter 1
between a peace officer and a member of the public”). Even if the officers were 2
mistaken in their understanding that the use of the body cameras was limited to 3
encounters with the public, a question we need not and do not decide, sanctioning 4
the State for failure to collect this evidence is not appropriate where, as here, 5
Defendant concedes that officers did not act in bad faith. 6
{58} Neither prong of the Ware test was satisfied by Defendant. We therefore 7
conclude that the district court did not err in denying Defendant’s request to sanction 8
the State by giving the jury an adverse inference instruction. 9
CONCLUSION 10
{59} We affirm Defendant’s convictions of possession of methamphetamine and of 11
drug paraphernalia. 12
{60} IT IS SO ORDERED. 13
_________________________ 14
JANE B. YOHALEM, Judge 15
WE CONCUR: 16
___________________________________ 17
J. MILES HANISEE, Judge 18
___________________________________ 19
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