A-1-CA-36312 | Omnilex

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Court of Appeals of New Mexico
Filed 7/18/2019 12:33 PM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Filed 7/18/2019 12:33 PM

Plaintiff-Appellee, M

No. A-1-CA-36312

ROBERT L. LOVATO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeff McElroy, District Judge

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

for Appellee

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

for Appellant

MEMORANDUM OPINION

MEDINA, Judge.

{1}

Defendant Robert L. Lovato appeals from his conviction by conditional plea

contending that the district court erred in denying his motion to suppress. We affirm.

BACKGROUND

{23} | Defendant was charged with one count of possession of a controlled substance
(methamphetamine) contrary to NMSA 1978, Section 30-3 1-23(A) (2011, amended
2019) and one count of possession of marijuana (one ounce or less) contrary to
Section 30-31-23(A)(B)(1). Defendant subsequently filed a motion to suppress the
evidence gathered from a warrantless search of his place of business. Defendant
alleged that the consent to search that he provided to the officers was involuntary
because it was given based on the “hope of reward of not being arrested and not
charged by the [district attorney]’s office, which [he claims] is a promise of leniency
and improper inducement” and upon the threat that if consent was not given, the
agent would obtain “a search warrant from the court without problem” and arrest
Defendant if drugs were found. The State filed a response arguing that Defendant’s
consent was voluntary. The State argued that this Court addressed a similar factual
scenario in State v. Shaulis-Powell, 1999-NMCA-090, 127 N.M. 67, 986 P.2d 463,
in which we held that an officer’s proposal to forgo arrest in exchange for a
defendant’s consent was a lawful incentive. In support of its response, the State
attached two exhibits: (1) a CD containing a recording of the encounter between
New Mexico State Police (NMSP) Agent Joey Gallegos and Defendant prior to the

warrantless search; and (2) a transcription of the recording.

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{33 The transcript of the encounter and the record reveals that on May 21, 2014,
NMSP Agents Gallegos and Alexander Rodriguez, along with Lieutenant Edwardo
Martinez and possibly one or two other officers traveled to what they believed to be
Defendant’s residence in Costilla, New Mexico. Once there they conducted a knock-
and-talk.

{4} Upon making contact with Defendant, Agent Gallegos informed Defendant
that the reason the officers were making contact was because they had been receiving
“complaints and information that you’ve been selling drugs.” Additionally, Agent
Gallegos informed Defendant that, “We’ve actually been watching you for a little
bit.” Upon relaying this information, Agent Gallegos presented two options to
Defendant:

Alright well, we can do one of two things. [W]e 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. [I]f 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’! be arrested. The second option is
if your [sic] 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 [district attorneys].
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.

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Those are the two options you have. If you[‘re, if you[‘re] willing to
volunteer for us to search the area here for that so that we can see and
people have been calling us and complaining about you for a while.

Aware of the complaints, Defendant responded:

{5}

Oh yeah. People have been saying that .... They’re just a bunch of
haters. They burned my house down, they torched it and burned it down
to the ground you know what I mean. And it’s always every time that
[I] try something new and I start doing good they always try to bring
me down some way or another.

As the interaction between Agent Gallegos and Defendant continued,

Defendant asked Agent Gallegos to repeat the options. Agent Gallegos replied:

{6}

[I]f you voluntarily give us consent to search your place and turn over
any dope that you may have um then we just take the drugs and we
don’t arrest you. We don’t charge nobody today. We just submit a
report. Basically what we do is we take the dope and go back to the
office and we’ ll write a report up and send it to the [d]istrict [a]ttorneys.
If they decide they want to charge you that’s up to them. Sometimes
they do, sometimes they don’t.

Defendant then asked, “The second choice is I go to jail, or what?” to which

Agent Gallegos responded:

No, the second choice is, 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... ., 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. [W]e 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.

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{3} | Agent Gallegos asked Defendant what “dope” he had. Defendant replied that
he smokes a little “weed” and that he had a little “weed” in his house. Agent Gallegos
again asked Defendant if he would be willing to consent to a search of his house and
informed Defendant that he would be present during the search the entire time.
Defendant responded “I guess, but I just don’t understand why?” Agent Gallegos
again stated that the NMSP had received information that Defendant was selling
drugs and, as a result, that his house had been under surveillance. And he told
Defendant that “Well we arrested—There’s been a few people that have been
arrested that say they’ve bought dope from you.” Defendant replied, “Maybe weed?”
833 Agent Gallegos asked Defendant if he had any other drugs besides marijuana
in the house. Defendant stated that he cooks and uses crystal meth and probably had
about two or three grams in the premises.

(93 | When asked if he would “be willing to give [the officers] consent to search
both places so that [they could] retrieve those drugs[,]” Defendant responded that he
would “like to walk through to[o].” Officer Gallegos replied that he understood but
would also need to check the “rest of the place just to make sure.” Defendant
responded, “Go ahead.”

103 Officer Gallegos told Defendant that Defendant could withdraw his consent
at any time and again asked:

So would you allow, like I said, would you allow us to search this place
and that place and we can get the weed and you can show —need to

—

check it and make sure there[’s] no more than what [you’re] saying.
Just that way we can document{[] everything and make sure we... cross
our T’s and dot our [I]’s. Are you cool with that?

Defendant responded “Yeah. I’m cool. I'll tell you where it’s at.”

{11} Two witnesses testified at the hearing on the motion to suppress: Denis
Romero, an investigator hired by the defense, and Defendant. According to Romero,
the officers told him they were not wearing tactical type gear when they went to
Defendant’s home. Agent Gallegos told Romero he had obtained over 400 warrants
and his applications for search warrants had never been denied. Agent Gallegos also
told Romero that he employs the same process with everyone when seeking consent
to search.

{123 Romero further stated that when he reviewed the discovery in the case, he did
not find anything indicating that there were complaints about Defendant dealing or
using methamphetamine or corroborating the complaints of Defendant using or
dealing in methamphetamine. Importantly, there was no indication the officers
handcuffed or physically abused Defendant. After Romero’s testimony, the district
court asked defense counsel if the officers stated during their interviews whether
they had corroboration of the complaints of Defendant’s drug dealing or that they
lacked probable cause. Defense counsel responded “no they don’t say that. They just
don’t say they ever did anything.” The district court clarified “they weren’t asked

about it?” Defense counsel conceded the officers weren’t asked about corroborating

information or probable cause. Ultimately, the district court determined that
Romero’s testimony was more pertinent to the issue of timeliness than the issue of
suppression!,

{13} Defendant testified that five armed agents arrived but that they did not have
their guns pointed at him, and that they treated him respectfully. He testified that
two officers spoke to him.

{144 When asked what would have happened if he would have been locked out of
his residence while the officers obtained a search warrant Defendant first responded
that he already had a bad reputation and did not know. When asked if the threat to
lock him out of the residence had an effect on his willingness to provide consent to
the search, Defendant responded that it had a big effect and that he would not have
consented otherwise.

{15}. After testimony concluded, the district court asked the parties if the court
could accept the agent’s statements to Defendant that the agents: had received
complaints from neighbors; had been conducting surveillance on the house; and had
enough evidence to support a search warrant, or whether the district court needed
“outside corroboration.” The State responded “there isn’t enough information on that

CD for you to make a determination they had enough for a search warrant .... You

' The State’s response include a challenge to the timeliness of Defendant’s
motion to suppress under Rule 5-212 NMRA.

would have to hear it from the officers but again I understand where the . . . court is
going.” The district court took the matter under advisement.

16} On September 8, 2015, the district court issued a letter ruling in which it
referred to the recording and transcripts of the officers’ interaction with Defendant
and found the “testimony of the officers convincing that there was probable cause to
obtain a warrant to search [D]efendant’s residence at the time they interviewed
[Defendant and sought his consent to search.” The district court found “that the
officers had statements of informants as to the activity at the residence and additional
information from observations at the residence” and that an affidavit presented to a
magistrate would likely have resulted in a search warrant to search Defendant’s
residence. Based on the transcript, the district court concluded that the officers “did
not promise [D]efendant leniency in exchange for [his] consent. Instead, the officers
asked for consent with the promise that the officers would not arrest [D]efendant in
the event contraband was discovered during a consensual search.” The district court
further found that the case was similar to Shaulis-Powell, and based on that case,
Defendant’s consent was valid. Finally, the district court found that the agent’s
second option—to secure the premise and have the occupants vacate the premise to
be searched pending application for search warrant—was not sufficiently coercive

so as to invalidate Defendant’s consent. The court subsequently entered an order

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denying Defendant’s motion to dismiss. Defendant then agreed to plea guilty
reserving the right to appeal the district court’s suppression ruling.

DISCUSSION

{17}, Defendant contends that his consent was not voluntarily given. The State
responds that Defendant’s case is analogous to Shaulis-Powell, and that Defendant’s
consent was voluntarily given. We agree the facts in this case are analogous to
Shaulis-Powell but affirm the district court’s denial of the motion to suppress on
different grounds.

STANDARD OF REVIEW

{18} “In reviewing a [district] court’s denial of a motion to suppress, [appellate
courts] observe the distinction between factual determinations[,] which are subject
to a substantial evidence standard of review and application of law to the facts, which
is subject to de novo review.” State v. Hubble, 2009-NMSC-014, 4 5, 146 N.M. 70,
206 P.3d 579 (alteration, internal quotation marks, and citation omitted). “[Appellate
courts] view the facts in the manner most favorable to the prevailing party and defer
to the district court’s findings of fact if substantial evidence exists to support those
findings.” State v. Urioste, 2002-NMSC-023, 6, 132 N.M. 592, 52 P.3d 964.

Defendant’s Consent to the Warrantless Search of His Business Was Not
Gained by Coercion or Unlawful Incentive

{19 Warrantless searches are presumed to be unconstitutional under the Fourth

Amendment of the United States Constitution and Article II, Section 10 of the New

Mexico Constitution. See State v. Rowell, 2008-NMSC-041, 7 10, 144 N.M. 371,
188 P.3d 95 (“Any warrantless search analysis must start with the bedrock principle
of both federal and state constitutional jurisprudence that searches conducted outside
the judicial process, without prior approval by judge or magistrate, are per se
unreasonable, subject only to well-delineated exceptions.” (emphasis, internal
quotation marks, and citation omitted)). The state has the burden to prove facts that
justify a warrantless search. See State v. Paul T., 1999-NMSC-037, J 10, 128 N.M.
360, 993 P.2d 74.

420} “One of the settled exceptions to the warrant requirement is consent.” State v.
Flores, 2008-NMCA-074, J 12, 144 N.M. 217, 185 P.3d 1067. “The voluntariness
of a consent to search is initially a question of fact for the [district] court.” State v.
Flores, 1996-NMCA-059, § 20, 122 N.M. 84, 920 P.2d 1038. The voluntariness of
consent involves a three-tiered analysis: “(1) there must be clear and positive
testimony that the consent was specific and unequivocal; (2) the consent must be
given without duress or coercion; and (3) the first two factors are to be viewed in
light of the presumption that disfavors the waiver of constitutional rights.” State v.
Davis, 2013-NMSC-028, 4 14, 304 P.3d 10 (internal quotation marks and citation
omitted). “Ultimately, the essential inquiry is whether [the] defendant’s will ha[d]

been overborne.” /d. (alteration, internal quotation marks, and citation omitted).

21} Defendant does not argue that his consent was not specific and unequivocal
but rather that it was given as a result of being “threatened” in a “highly coercive
atmosphere.” Defendant’s claim of threats, coercion, and duress are based on the
following contentions: (1) the officers lacked probable cause to obtain a search
warrant; (2) his consent was obtained by means of a promise that he would not be
arrested; and (3) the presence of five armed agents created a highly coercive
atmosphere. We address each in turn.

1. The Assertion That a Search Warrant May Be Obtained Is Not
Coercive

{22} Defendant contends his consent was not voluntary because the agents assured
him they could secure a search warrant. We addressed this precise issue in Shaulis-
Powell where we held that, “[C]onsent is not voluntary if it is a mere acquiescence
to a claim of lawful authority.” 1999-NMCA-090, 7 10. However, we distinguished
between statements made based on an officer’s assessment of the situation and
unequivocal assertions that a warrant would be obtained. When an officer’s
statement about a warrant is “simply the officer’s assessment of the situation” and
not an unequivocal assertion that they would be able to get a warrant, consent may
still be voluntary. Jd. § 11; see Davis, 2013-NMSC-028, { 24 (affirming that “when
an officer simply expresses his assessment of the situation, that explanation does not
prevent a defendant from insisting that a warrant be obtained prior to searching”). In

cases where an officer unequivocally asserts that a search warrant will be obtained,

“as long as there is probable cause to support a warrant, the officer can inform the
suspect that he or she will get a warrant without invalidating a subsequent search.”
Shaulis-Powell, 1999-NMCA-090 12.

{23} The State asserted in its response to Defendant’s motion to suppress, and
reasserts on appeal, that this case is controlled by our reasoning and holding in
Shaulis-Powell. Defendant contends that Shaulis-Powell is inapposite because the
officers lacked the probable cause necessary to make their threat of a warrant
legitimate. We agree that this case turns on the applicability of Shaulis-Powell.
Having reviewed the evidence presented during the suppression hearing, we
conclude that Shaulis-Powell is controlling and affirm.

(24 In Shaulis-Powell, law enforcement officers followed up on a tip from a
citizen informant that marijuana was being grown at a residence. Jd. J 2. After
observing the backyard and seeing what they believed to be marijuana plants, the
officers asked the owners for consent to search the premises. /d. J] 2-4. One of the
defendants asked if the officers had a warrant, which they did not. Jd. | 4. An officer
informed the defendant “that he felt that he had enough information to be able to
secure [a warrant,]” and presented the defendants with two options. Jd. J 4. The
officers stated that if the defendants consented to the search the officers would
confiscate any marijuana they found but would not make arrests, but if they needed

to seek a warrant it would require more officers to secure the premises, and if they

found marijuana the defendants would be arrested. /d. The defendants consented to
the search and eight marijuana plants were confiscated. /d. ¥ 5. The district court
denied the defendant’s motion to suppress, concluding that the consent was
voluntarily given. /d. | 8.

25} On appeal, one defendant argued “that because the officers told him that they
had enough evidence to obtain a search warrant, his refusal would have been futile.”
Id. | 10. Unpersuaded, we reasoned that “the testimony of the officers at the
suppression hearing demonstrate[d] that they did not assert unequivocally that they
would be able to obtain a warrant[,]” and therefore held “that the officer’s comment
that he felt he could get a warrant did not rise to the level of coercion or duress.” Id.
q 11. We further concluded that,“[e]ven if the officer’s comment could be construed
as an assertion that he could get a warrant . . . as long as there is probable cause to
support a warrant, [an] officer can inform the suspect that he or she wi// get a warrant
without invalidating subsequent consent.” /d. | 12 (emphasis added). Thus, we held
that “[i]f a warrant is obtainable, [a] defendant[’s] privacy rights under the Fourth
Amendment are not violated.” /d. ¥ 12. Finally, analyzing the defendant’s claim of
consent by duress, we recognized “it is commonly held that where the officer’s
‘threat’ is to perform some legal action[,] . . . it does not invalidate arrest.” Jd. | 14.
26} In Shaulis-Powell, we distinguished between unequivocal assertions that a

search warrant would be obtained and assessments of the situation based on the

officer’s belief. Although we expounded on the former scenario, our holding in
Shaulis-Powell, was firmly based on the latter. Through the officers’ testimony we
determined that, “they did not assert unequivocally that they would be able to obtain
a warrant.” Jd. § 11. We focused on the use of terms such as “felt” or “believed” in
the officers’ testimony to support our determination. The transcript of the interaction
between Agent Gallegos and Defendant provides similar insight as that of the
testimony in Shaulis-Powell, which we review de novo. See State v. Martinez, 2018-
NMSC-007, 4 12, 410 P.3d 186 (“[W]here the issue to be determined rests upon
interpretation of documentary evidence, [the appellate court] is in as good a position
as the [district] court to determine the facts and draw its own conclusions.” (internal
quotation marks and citations omitted)).

27; Turning to the transcript in this case, Agent Gallegos stated, “right now I
believe I have enough probable cause to obtain a search warrant for your place. . .”
Agent Gallegos continues his statement to Defendant by explaining what will
happen if his petition to the court is granted. When explaining the options to
Defendant a second time, Officer Gallegos again states, “I believe I have enough
probable cause to obtain a search warrant for your place.... And.. ., [I will] go
back to the office and petition for a search warrant[.]” Here, as in Shaulis-Powell,
Agent Gallegos merely provided an assessment of the situation. His statements are

couched as beliefs and he acknowledges that a petition will need to be made to the

court. Even when considering Agent Gallegos’ boast that, “I’ve petitioned for over
222 search warrants and I’ve never been denied one,” his statements do not
necessarily indicate that obtaining a warrant would have been a certainty.
Accordingly, we hold that Agent Gallegos’ statements to Defendant regarding his
assessment of the situation did not rise to the level of coercion or duress.

28} Because Agent Gallegos’ statements were only assessments of the situation
and not an unequivocal assertion, it is unnecessary to reach a determination on the
sufficiency of evidence to support probable cause for a search warrant. In Shaulis-
Powell this Court conducted a probable cause analysis only to illustrate the
evaluation required if our holding on the officer’s statements had been different.
That is, if we had determined that the officer’s statements were an unequivocal
assertion that a warrant would be obtained. Similarly, in Davis, our Supreme
Court—relying on Shaulis-Powel/—determined that the officer’s statements could
“logically be construed as a reasonable explanation of the process an officer would
follow after a defendant refused to consent to a search[,]” and held that the statement
was not coercive without conducting a probable cause evaluation. 2013-NMSC-028,
q 26.

429} Even so, it can hardly be said that the Agent Gallegos’ assessment of the
situation was baseless. When confronting Defendant with the fact that his neighbors

had complained about his activities, Defendant conceded that his neighbors had been

complaining: “Oh yeah. People have been saying that . . . They’re just a bunch of
haters.” Moreover, when Agent Gallegos advised Defendant that the police had
arrested individuals claiming to have bought drugs from him, Defendant did not
deny selling drugs but instead responded “maybe weed?, ” and later conceded that
he had a “little weed” and methamphetamine on the premises. While examining the
merit of Agent Gallegos’ assessment is unnecessary to our holding, Defendant’s
corroboration of the complaints of his drug activities, did not go unnoticed by the
majority.

2. An Offer to Forgo Arrest Is a Lawful Incentive

303 Here, as in Shaulis-Powell, Agent Gallegos’ offer to forgo arrest if Defendant
cooperated was a lawful incentive for Defendant’s cooperation. While Agent
Gallegos did tell Defendant that no arrest would be made if he would give consent
for the search, Agent Gallegos did not state that the district attorney would not file
charges in the event drugs were found during the search. On the contrary, Agent
Gallegos specifically stated that, “Basically what we do is we take the dope and go
back to the office and we’ll write a report up and send it to the [dl]istrict [a]ttorneys.
If they decide they want to charge you that’s up to them. Sometimes they do,
sometimes they don’t.” These statements do not imply that cooperation meant that
Defendant would never be arrested if drugs were found but only that he would not

be arrested that day.

{31} Additionally, as stated above, Agent Gallegos’ assessment of the situation was
not coercive but merely a statement of what he believed would occur if a search
warrant was obtained. Indeed Agent Gallegos stated that arrest was contingent on
the discovery of drugs: “if you do have any drugs or whatever in your places we are
going to seize them and you'll be arrested.” Here, as in Shualis-Powell, Agent
Gallegos’ statement is a “reasonable explanation of the process that would be
followed.” 1999-NMCA-090, 4 15; see also Davis, 2013-NMSC-028, J 24 (“A
reasonable explanation of the possibility of arrest and the process that will follow,
...1S permissible and neither constitutes coercion or invalidates consent.”). The
legal choice presented by Agent Gallegos is directly analogues to the choice
presented in Shualis-Powell, and likewise it is conceivable that Defendant, “might
rather consent and secure the officer’s cooperation than wait until a warrant is
obtained.” 1999-NMCA-090, 4 15. Accordingly, we affirm the district court’s
finding that Agent Gallegos’ promise not to arrest Defendant if contraband was
discovered was not a promise of leniency in exchange for consent and therefore not
coercive.

3. The Presence of Armed Officers Is Not Inherently Coercive

32} With regard to the final issue raised by Defendant, we hold that the actions of
the officers did not rise to the level of coercion or duress. In Davis, six or seven

officers, armed with semi-automatic service weapons, approached the defendant

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outside of his residence. Davis, 2013-NMSC-028, 4 3. Only one officer made contact
with the defendant and there was no evidence on the record that the officer
unholstered his weapon. /d. J 5. The conversation between the officer and the
defendant was “mild throughout” and the defendant was told multiple times that
consent was voluntary. /d. ¥ 7.

33} Similar to Davis, the interaction between Agent Gallegos and Defendant was
cordial and mild. Here Defendant primarily spoke to one officer and was instructed
on multiple occasions that consent was voluntary. Defendant conceded that no
weapons were pointed at him and that the agents were generally respectful toward
him. Indeed, the transcript of the encounter indicates that the interaction between
Agent Gallegos and Defendant was not combative. Here as in Davis, we hold that
the mere presence of armed officers was not enough to create coercion.
CONCLUSION

{345 Based on the forgoing, we affirm the district court’s order denying
Defendant’s motion to suppress.

35} ITISSO ORDERED.

A@QUELINE R. MEDINA, Judge
I CONCUR:

A M./VANZI, Judge

BRIANA H. ZAMORA (dissenting).
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ent

B. ZAMORA, Judge (dissenting).

36} Warrantless searches of a home are presumptively unreasonable. See Payton
v. New York, 445 U.S. 573, 586 (1980). This is because “[a]t the very core of [the
Fourth Amendment] stands the right . . . to retreat into [one’s] own home and there
be free from unreasonable governmental intrusion[.]” Griffin v. Wisconsin, 483 US.
868, 883 (1987) (internal quotation marks and citation omitted); see Payton 445 U.S.
at 585-586 (“Physical entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed.” (internal quotation marks and citation
omitted)). With these fundamental principles in mind, when there is no probable
cause to search a home, it is unreasonable for officers to induce a suspect’s consent
based solely on unsubstantiated claims, threats of securing a warrant, and arresting
a suspect. For this reason, I respectfully dissent from the majority opinion and
conclude that: (1) the statements by the officers were coercive, consisting solely of
baseless threats and (2) the record did not support the district court’s finding of
probable cause.

Statements to Defendant by Armed Officers Were Coercive

373 The State failed to meet its burden of proving that Defendant’s consent was
“freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968).
In determining whether consent was voluntary “we examine whether the consent

was specific and unequivocal, and whether the consent was the result of duress or

coercion, in light of the presumption disfavoring the waiver of constitutional rights.”
Shaulis-Powell, 1999-NMCA-090, § 8. “[C]onsent is not voluntary if it is a mere
acquiescence to a claim of lawful authority. /d. § 10. While it is true that an “officer’s
threat . . . to perform some legal action .. . does not invalidate consent[,]” id. | 14,
when baseless threats are used to obtain consent to search, consent may be
involuntary. United States v. Jones, 614 F.3d 423, 426 (7th Cir. 2010).

38} In Shaulis-Powell, after the officers identified themselves, they requested
consent to search and “[the defendant] asked whether they had a warrant.” 1999-
NMCA-090, § 4. The officer responded that “they had no warrant, but that he felt
that he had enough information to be able to secure one. [The officer] further stated
that if no consent was forthcoming, he would seek to obtain a warrant[.]” Jd. The
officer then told the defendant “if [the defendant] consented and marijuana was
found, no arrest would be made at that time, whereas if a warrant was obtained and
marijuana was found, arrests would be made.” /d. The officer’s statements were not
baseless threats because the officer’s testimony established that he did, in fact, have
probable cause. See id. § 13.

39} By contrast, in this case, no law enforcement officer testified. Consequently,
the statements in this case consisted solely of baseless threats and went much further
than the statements in Shaulis-Powell. Based on a transcript of the encounter taken

from a recorder worn by one of the officers in this case, five armed officers arrived

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at the home of Defendant’s mother, made unsubstantiated claims and then left him
with what they said were his only two options. The officers stated that Defendant
could consent to a search or, alternatively, the officers essentially guaranteed they
would obtain a warrant, kick everyone out of the house and business, and then arrest
him. Unlike in Shaulis-Powell, the officers continued pressing Defendant to consent
using more intimidating statements. After reiterating Defendant’s two options, an
officer stated,

1 will tell you this, I’ve done over, I’ve petitioned for over 222 search

warrants and I’ve never been denied one.[W]e 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.
{40} The officer’s statements amounted to more than just the officer’s “assessment
of the situation” or “belief in his or her ability to obtain a warrant[.]” Jd. 9 11; Davis,
2013-NMSC-028, § 24. Contrary to the majority’s opinion, by stating that they have
petitioned for such a high number of search warrants and that they had never been
denied, the officer was unequivocally asserting that he would be able to obtain a
warrant and thus Defendant was merely acquiescing to a claim of lawful authority.
Davis, 2013-NMSC-028, § 23; see also 26 Am. Jur. 2d 465 Proof of Facts § 8 (2019)
(“A consent will be found involuntary when given only after the police have clearly

indicated their intent ultimately to conduct asearch with or without the

defendant’s consent, so that refusal of consent can only delay the inevitable.”).

{413 In addition, the officers presented the two options in the context of their
unsubstantiated claims that “people ha[d] been calling us and complaining about
[Defendant] for a while,” that people claimed they bought “dope from [Defendant,]”
and the officers also claimed they had been “watching [Defendant’s] house.” See 26
Am. Jur. 2d 465 Proof of Facts § 8 (“A consent to search is also involuntary where
it has been obtained by other misrepresentations, or by deceit or trickery practiced
by the officers.”); United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984) (“In
contrast to the government's assertion that deception is permissible in obtaining
consent, we have stated that misrepresentations about the nature of an investigation
may be evidence of coercion. The misrepresentation may even invalidate the consent
if the consent was given in reliance on the officer’s deceit.” (alteration, internal
quotation marks, and citations omitted)). These allegations, which were wholly
unsupported by anything in the record, provided credence to the officer’s threats of
obtaining a search warrant and arresting Defendant. Defendant testified that he
consented because he did not want to go to jail, was concerned about being locked
out of the house, which is also his scrap metal business, and was worried that it
would harm his reputation. The officers’ statements about obtaining a search
warrant, arresting Defendant, and kicking everyone out of the house were clearly
intended to induce consent and, when taken together, amounted to coercion. See

Davis, 2013-NMSC-028, § 23 (stating that the threat of arrest or “promises of

leniency in exchange for consent” are factors in determining whether consent was
coerced).

{42} Our “Constitution guarantees a society of free choice. Such a society
presupposes the capacity of its members to choose.” Schneckloth v. Bustamonte, 412
U.S. 218, 277 (1973) (Marshall, J., dissenting) (omission, internal quotation marks,
and citation omitted). Here, the record before us establishes that Defendant did not
truly have a choice and therefore, there was not valid consent. See Bumper, 391 U.S.
at 550 (“Where there is coercion there cannot be consent.”).

The District Court’s Finding of Probable Cause Was Unsupported by the
Record

{43}. This Court stated in Shaulis-Powell that if there is “probable cause to support
a warrant, the officer can inform the suspect that he or she will get a warrant without
invalidating subsequent consent.” 1999-NMCA-090, § 12.

{443 The district court found that the officers had probable cause to arrest
Defendant because “the officers’ testimony that they had probable cause to obtain a
warrant [was] convincing.” Regrettably, the record contains no officer testimony.
Indeed, the State conceded at the motion hearing below that the record was
insufficient for a finding of probable cause because officer testimony was needed to
support such a finding. Thus, the district court erroneously treated as “testimony”
the transcript that contained the officers’ statements to Defendant from the day they

encountered Defendant.

{45} We also do not know if the information the officers relayed to Defendant was
accurate, was based on corroborating information, or whether it was merely a
misrepresentation to induce consent. See Connick v. Cty. of Bernalillo, 1998-
NMCA-060, § 10 n.1, 125 N.M. 119, 957 P.2d 1153 (stating where “the record is
silent, . .. we cannot speculate”); Moruzzi v. Fed. Life & Cas. Co., 1938-NMSC-
002, 4 50, 42 N.M. 35, 75 P.2d 320 (“The record is silent and it is not our place or
duty to speculate[.]”). The record is devoid of evidence that the officers in fact
received reports about Defendant selling drugs or that the officers conducted
surveillance of Defendant’s home. See United States v. Hicks, 539 F.3d 566 (7th
Cir.) (stating that “[i]f the police did not have a reasonable basis to believe there was
probable cause then it follows that any statement, or threat, that a search warrant
could be obtained would necessarily be baseless and could only be merely a pretext
to induce submission.” (internal quotation marks and citation omitted)). Yet, the
district court presumed that what the officer told Defendant was true. Instead, the
evidence, in the minimal record before us, appears to point to the contrary.
Specifically, the police report made no mention of the officers receiving reports that
Defendant was using or selling drugs. Thus, the district court’s finding of probable

cause was unsupported by the record before us.

—

{46}

For the aforesaid reasons, I respectfully dissent.

BRIANA H. Z

udge

July 18, 2019- State of New Mexico v. Robert L. Lovato, No. A-1-CA-36312

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OCR transcription for search; preserved printed pages are authoritative

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