January 15, 2020- State of New Mexico v. James K. Keck, No. A-1-CA-36855

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.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36855	4
JAMES K. KECK,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY	7
Angie K. Schneider, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Aja Oishi, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
VARGAS, Judge.	18
{1} 	Defendant has appealed from a conviction for possession of marijuana,	19
contrary to NMSA 1978, Section 30-31-23(A) (2011, amended 2019). He challenges	20
the denial of a motion to suppress evidence obtained in the course of a search,	21
contending that his consent was coerced. We affirm.	22
Court of Appeals of New Mexico
Filed 1/15/2020 11:06 AM

2
BACKGROUND
{2} 	Defendant was previously convicted of an offense, as a consequence of which	1
he is required to periodically register, pursuant to the Sex Offender Registration and	2
Notification Act (SORNA), NMSA 1978, 29-11A-1 to -10 (1995, as amended	3
through 2013). In satisfaction of that requirement Defendant visited the Lincoln	4
County Sheriff’s Office on October 25, 2014. Commander Brack Rains of the	5
Lincoln County Narcotics Enforcement Unit took the opportunity to question	6
Defendant about a tip that he had received. At the outset, Commander Rains read	7
Defendant his 	Miranda 	rights and asked if Defendant understood. 	Defendant	8
responded affirmatively. Commander Rains then asked if Defendant would talk to	9
him about marijuana that he had heard Defendant was growing. After a brief pause	10
Defendant admitted that he had one plant growing on his property. Commander	11
Rains said he had been told that Defendant had more than one plant. Defendant	12
responded, “Well, you can go ahead and come to my house any time, sir.”	13
Commander Rains replied that they would do so immediately, and offered Defendant	14
a ride. Defendant indicated that he did not want the police to go while his wife and	15
children were present. Commander Rains stated, “we need to do it,” but said they	16
would proceed “discreetly.” Defendant replied, “No, we can go, let’s go now.”	17
Officer Rains started to explain that the other option would be for him to obtain a	18
search warrant, but Defendant stopped him. After further discussion about the	19

3
quantity of marijuana and its location on the premises, they traveled to Defendant’s	1
property, where the ensuing search yielded a significant quantity of marijuana.	2
{3} 	Defendant filed a motion to suppress the evidence obtained in the course of	3
the search. The district court conducted a hearing on the motion, during which it	4
reviewed an audio recording of the interview and heard arguments. Defendant	5
contended that his consent was involuntary because the encounter at the sheriff’s	6
office was involuntary, the Miranda advisory was cursory, and both the situation	7
and the officer’s statements were intimidating. 	The State responded that the	8
encounter was voluntary insofar as Defendant was not in custody, and argued that it	9
was permissible for Commander Rains to ask Defendant about the tip he had	10
received. The district court ultimately denied the motion to suppress. Defendant	11
challenges that determination on appeal.	12
STANDARD OF REVIEW	13
{4} 	The denial of a motion to suppress presents a mixed question of fact and law.	14
State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. The appellate court reviews	15
the facts for substantial evidence, deferring to the lower court’s findings. State v.	16
Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. We review the	17
application of the law to the facts de novo. Almanzar, 2014-NMSC-001, ¶ 9.	18

4
DISCUSSION
{5} 	“A search and seizure conducted without a warrant is unreasonable unless it	1
is shown to fall within one of the exceptions to the warrant requirement.” State v.	2
Diaz, 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4. Among the recognized	3
exceptions is consent. Id. ¶ 9. Generally, the prosecution bears the burden of proving	4
that, under the totality of the circumstances, “the consent given to search [was]	5
voluntary and not a product of duress, coercion, or other vitiating factors.” State v.	6
Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74.	7
{6} 	“The voluntariness of consent is a factual question in which the trial court	8
must weigh the evidence and decide if it is sufficient to clearly and convincingly	9
establish that the consent was voluntary.” State v. Davis, 2013-NMSC-028, ¶ 13,	10
304 P.3d 10.	11
{7} 	“Courts utilize a three-tiered analysis when determining voluntariness: (1)	12
there must be clear and positive testimony that the consent was specific and	13
unequivocal; (2) the consent must be given without duress or coercion; and (3) the	14
first two factors are to be viewed in light of the presumption that disfavors the waiver	15
of constitutional rights.” Id. ¶ 14 (internal quotation marks and citation omitted).	16
“Because the third prong is an acknowledgment of our presumption against waiving	17
constitutional rights, we focus on the first two prongs.” Id. “Ultimately, the essential	18

5
inquiry is whether [the d]efendant’s will has been overborne.” State v. Pierce, 2003-	1
NMCA-117, ¶ 20, 134 N.M. 388, 77 P.3d 292.	2
{8} 	We do not understand Defendant to dispute the fact that he consented	3
specifically and unequivocally to the search. However, Defendant contends that his	4
consent was coerced.	5
{9} 	“Specific factors indicating coercion include the use of force, brandishing of	6
weapons, threat of violence or arrest, lengthy and abusive questioning, deprivation	7
of food or water and promises of leniency in exchange for consent.” Davis, 2013-	8
NMSC-028, ¶ 23. In this case, there has been no suggestion that any of those factors	9
were present.	10
{10} 	“On 	the other hand, factors 	[indicating] voluntariness 	can include the	11
individual characteristics of the defendant, the circumstances of the detention, and	12
the manner in which the police requested consent.” Id. ¶ 24 (internal quotation marks	13
and citation omitted). In this case, the district court noted that Defendant was not	14
“unsavvy to the system.” Although Defendant takes issue with this assessment, we	15
decline to disturb it. See generally State v. Martinez, 2018-NMSC-007, ¶ 15, 410	16
P.3d 186 (“Factfinding frequently involves selecting which inferences to draw. An	17
appellate court must indulge in all reasonable inferences in support of the district	18
court’s decision and disregard all inferences or evidence to the contrary. (alteration,	19
internal quotation marks, and citations omitted)).	20

6
{11} 	The circumstances of the encounter and the manner in which consent was	1
obtained also largely support voluntariness. Defendant was not arrested or formally	2
detained, he was read his Miranda rights, and he spontaneously offered his consent.	3
These are highly significant considerations. See, e.g., State v. Cohen, 1985-NMSC-	4
111, ¶ 21, 103 N.M. 558, 711 P.2d 3 (indicating that reading the defendant his	5
Miranda rights before his consent was sought, and his statement that he understood,	6
supported a finding of voluntariness); State v. Lowe, 2004-NMCA-054, ¶¶ 1, 20-21,	7
135 N.M. 520, 90 P.3d 539 (indicating that the defendant’s spontaneous offer of	8
permission to search, after an officer inquired about drugs, constituted valid	9
consent); State v. Fairres, 2003-NMCA-152, ¶¶ 2, 12, 134 N.M. 668, 81 P.3d 611	10
(holding 	that 	consent 	was 	not 	coerced where the defendant 	volunteered 	his	11
permission to search). Ultimately, these circumstances support the district court’s	12
determination that Defendant’s consent was voluntary.	13
{12} 	In his briefs Defendant focuses on subtler considerations. He contends that	14
the police station was an inherently intimidating environment, and his presence there	15
was mandatory, in the sense that he was required to register. Defendant further notes	16
that 	he 	was 	subject 	to 	a 	statutory duty 	to 	communicate honestly with 	law	17
enforcement in relation to the registration requirement. Finally, Defendant suggests	18
that Commander Rains’ “abrupt” demeanor, the hurried manner in which the	19
Miranda advisory was communicated, the intimidation that Defendant might not	20

7
have been free to leave, and the pointed inquiry about marijuana should be regarded	1
as coercive. On balance, however, we conclude that these considerations are not	2
sufficiently compelling to require a different result. See State v. Goss, 1991-NMCA-	3
003, ¶¶ 20-21, 111 N.M. 530, 807 P.2d 228 (holding that even though “the contested	4
evidence was subject to conflicting interpretations and inferences, the trial court as	5
the fact[-]finder was empowered to weigh the evidence” and find that voluntary	6
consent was given).	7
{13} 	We understand Defendant to further contend that the encounter itself was not	8
consensual, given the mandatory nature of the registration requirement, and that this	9
rendered his consent involuntary. We disagree with both the premise and the	10
suggested conclusion. “A consensual encounter has been defined as simply the	11
voluntary cooperation of a private citizen in response to a non-coercive questioning	12
by a law enforcement official.” State v. Figueroa, 2010-NMCA-048, ¶ 28, 148 N.M.	13
811, 242 P.3d 378 (internal quotation marks and citation omitted). Although	14
Defendant’s appearance at the sheriff’s department may have been mandatory, his	15
participation 	in 	the interview 	could 	nevertheless 	be 	regarded 	as 	consensual,	16
particularly in light of the fact that he was advised that he was not required to answer	17
questions, and he elected to speak with Commander Rains rather than terminating	18
the interview. See id. ¶¶ 29-31 (explaining that we consider all of the surrounding	19
circumstances). 	In 	any 	event, 	Defendant’s 	argument 	conflates 	distinct 	legal	20

8
concepts. Even if we were to assume that the encounter was not consensual, his	1
consent could be voluntarily given. See, e.g., Lowe, 2004-NMCA-054, ¶¶ 1, 20-21	2
(holding that the defendant’s spontaneous offer of permission to search, in the course	3
of an investigatory detention, constituted valid consent); Fairres, 2003-NMCA-152,	4
¶¶ 2, 12 (holding that consent was voluntary notwithstanding the fact that the	5
defendant had been detained in connection with a drug investigation and was not	6
free to leave). Accordingly, we reject Defendant’s argument.	7
{14} 	Finally, Defendant suggests that Commander Rains somehow circumvented	8
his constitutional duty to obtain a warrant by capitalizing on Defendant’s appearance	9
at the police station to “extract” Defendant’s consent to the ensuing search.	10
However, Defendant does not explain this argument, other than to suggest a parallel	11
with authority prohibiting law enforcement officers from using probation and parole	12
officers as “surrogates” to conduct warrantless searches that they could not conduct	13
themselves. Nothing of that nature occurred in this case, and we do not find the	14
situations to be analogous. Officer Rains did not utilize the SORNA registration	15
requirement as a means of conducting a search; he simply took the opportunity to	16
inquire with Defendant about a tip. 	And as previously described, Defendant	17
promptly volunteered his consent to the ensuing search. “Lawful, non-coercive	18
police activity does not in and of itself constitute the type of duress that makes	19
consent involuntary.” State v. Chapman, 1999-NMCA-106, ¶ 24, 127 N.M. 721, 986	20

9
P.2d 1122. Insofar as Defendant voluntarily consented, Commander Rains cannot be	1
said to have circumvented his duty to obtain a warrant. See State v. Sneed, 1966-	2
NMSC-104, ¶ 7, 76 N.M. 349, 414 P.2d 858 (“A search and seizure may be made	3
without a search warrant if the individual freely and intelligently gives his	4
unequivocal and specific consent to the search.”).	5
CONCLUSION	6
{15} 	For the foregoing reasons, we conclude that the motion to suppress was	7
properly denied. We therefore affirm.	8
{16} 	IT IS SO ORDERED.	9
______________________________	10
JULIE J. VARGAS, Judge	11
WE CONCUR:	12
________________________________	13
LINDA M. VANZI, Judge	14
________________________________	15
JACQUELINE R. MEDINA, Judge	16