State v. Clifford ( 2018 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. A-1-CA-35465
5 PHILLIP CLIFFORD,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Charles W. Brown, District Judge
9 Hector H. Balderas, Attorney General
10 Emily Tyson-Jorgenson, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender
14 Mary Barket, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VANZI, Judge.
19 {1} After the district court denied his motion to suppress following an evidentiary
20 hearing, Defendant Phillip Clifford entered a conditional plea of guilty to possession
1 of methamphetamine (meth) and possession of drug paraphernalia. Defendant now
2 appeals the denial of his suppression motion. We affirm.
3 BACKGROUND
4 {2} The following facts were adduced at the suppression hearing and are viewed in
5 the light most favorable to the prevailing party. See State v. Rowell, 2008-NMSC-041,
6 ¶ 8, 144 N.M. 371, 188 P.3d 95 (stating that, on appeal of an order on a motion to
7 suppress, “[w]e review the contested facts in a manner most favorable to the
8 prevailing party”). An Albuquerque Police Department officer was on uniformed
9 patrol in a marked police car investigating potential auto burglaries when he pulled
10 into a vacant lot behind a hotel. The officer saw a pickup truck with cardboard
11 covering some of its windows parked in the otherwise empty lot, so he pulled up
12 behind it. He did not activate his police lights or siren, but “sat there for a while and
13 . . . ran the plate.” The officer could not see from his police car if anyone was inside
14 of the truck, so he eventually got out of his car and walked to the truck’s passenger
15 side “to make sure it wasn’t abandoned . . . or stolen” and “to see if anybody damaged
16 the steering column.” As the officer approached, he saw Defendant inside the truck
17 with “a [three-inch, glass] pipe in his hand and a lighter up towards it.” When
18 Defendant saw the officer, he clenched the pipe in his hand. The officer greeted
19 Defendant and asked, “What do you got in your hand?” He told Defendant to “open
20 [his] hand up” and to hand him the pipe. Defendant complied, and the officer arrested
2
1 Defendant. After placing Defendant in handcuffs, the officer commented to
2 Defendant, “I sat behind you for, like, ten minutes; you didn’t see me, obviously.”
3 {3} At the suppression hearing, defense counsel asked the officer whether he knew
4 what was in the pipe before he seized it and whether it could have been tobacco. The
5 officer replied that “[i]t could have been [tobacco], but . . . from my training and
6 experience on the streets and in narcotics, usually glass pipes are for narcotics.” The
7 officer testified that after Defendant handed him the pipe, he observed “a rock in the
8 pipe” that “was not scorched yet.”
9 {4} At the end of the hearing, the district court orally found that “[t]he truck was
10 in an unusual place, and [the officer] couldn’t see into the vehicle.” It found that
11 “simply driving up and parking behind the vehicle was not any kind of a seizure.” And
12 the court further concluded that the officer’s conduct in walking up to the truck and
13 saying, “Hey[,] how’s it going” to Defendant was not a seizure, but rather “a common
14 greeting during a consensual encounter.” The district court determined that the point
15 at which a seizure occurred was “[w]hen the officer saw the pipe and the lighter” and
16 “immediately said . . . show me what’s in your hand. Give it to me.” Thus, it said, the
17 officer’s seizure of Defendant and the pipe at that point was reasonable because it was
18 not based on “a mere hunch,” but was, “based on his training and experience, believed
19 to be a pipe used for ingesting drugs[.]” The district court denied the suppression
20 motion. There were no written findings of fact or conclusions of law in the order
3
1 denying the motion.
2 DISCUSSION
3 {5} On appeal, Defendant first contends that the officer’s seizure of Defendant and
4 the pipe violated the Fourth Amendment and Article II, Section 10 of the New Mexico
5 Constitution. Specifically, Defendant argues that (1) the officer’s conduct in parking
6 behind Defendant’s truck and then approaching the truck’s window was an
7 unreasonable seizure of Defendant; (2) the officer’s conduct in greeting Defendant,
8 asking Defendant what was in his hand, and ordering Defendant to hand over the pipe
9 was an unreasonable seizure; (3) the plain view exception to the warrant requirement
10 does not apply to justify seizure of the pipe because (a) the officer was not lawfully
11 located in the area where the item was seized, and (b) a pipe, in itself, is not
12 sufficiently incriminating to give rise to probable cause; and (4) there were no exigent
13 circumstances to justify the officer’s seizure of the pipe without first obtaining a
14 warrant. Defendant’s second contention on appeal is that conviction for both
15 possession of drugs and possession of paraphernalia violated his constitutional right
16 to be free from double jeopardy. As we explain below, we conclude that Defendant’s
17 constitutional rights were not violated, and there was no double jeopardy violation.
18 I. SEIZURE CLAIMS
19 A. Standard of Review
4
1 {6} “The standard of review for suppression rulings is whether the law was
2 correctly applied to the facts, viewing them in a manner most favorable to the
3 prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856
4 (internal quotation marks and citation omitted). We defer to the district court’s
5 findings of fact that are supported by substantial evidence. Id. When, as in this case,
6 we have few or no findings of fact from the district court, we indulge in all reasonable
7 inferences and presumptions in support of the district court’s ruling. State v.
8 Funderburg, 2008-NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922. And, where a
9 district court does not reject uncontradicted evidence in the record, appellate courts
10 “presume the court believed all uncontradicted evidence.” Jason L., 2000-NMSC-018,
11 ¶ 11. To determine whether a seizure was justified, “we review the totality of the
12 circumstances as a matter of law.” Funderburg, 2008-NMSC-026, ¶ 10 (internal
13 quotation marks and citation omitted).
14 B. Defendant Was Not Seized Until the Officer Told Defendant to Open His
15 Hand
16 {7} The Fourth Amendment of the United States Constitution and Article II, Section
17 10 of the New Mexico Constitution prohibit “unreasonable” seizures without a
18 warrant. In determining whether a defendant was unreasonably seized, “our first
19 inquiry is at what moment [the d]efendant was seized[.]” State v. Harbison, 2007-
20 NMSC-016, ¶ 10, 141 N.M. 392, 156 P.3d 30. “The point at which the seizure occurs
5
1 is pivotal because it determines the point in time the police must have reasonable
2 suspicion to conduct an investigatory stop.” Id. “[A] seizure occurs whenever a police
3 officer accosts an individual and restrains his freedom to walk away.” Id. ¶ 11
4 (internal quotation marks and citation omitted). “The restraint on the person’s freedom
5 of movement may be effected either by physical force or a show of authority.” State
6 v. Lopez, 1989-NMCA-030, ¶ 3, 109 N.M. 169, 783 P.2d 479 (citation omitted). In
7 evaluating whether a defendant was seized by police, we consider “all of the
8 circumstances surrounding the incident” to assess whether a reasonable person in the
9 defendant’s position “would have believed that he was not free to leave.” Id. (internal
10 quotation marks and citation omitted).
11 {8} We first note that part of Defendant’s argument on appeal is that, as a homeless
12 citizen, he has a greater expectation of privacy in his automobile than other citizens
13 because “the car was effectively his home[.]” Although Defendant noted in the
14 suppression proceedings that he was homeless and living in his truck at the time of the
15 incident, he did not argue that this fact entitled him to a greater expectation of privacy,
16 and neither the State nor the district court had the opportunity to consider that issue.
17 Therefore, to the extent that Defendant’s appeal relies on the notion that, as a
18 homeless man, he had a greater expectation of privacy in his vehicle than our courts
19 have previously afforded other citizens, we do not reach this issue because he did not
20 preserve it. See Rule 12-321(A) NMRA (“To preserve an issue for review, it must
6
1 appear that a ruling or decision by the trial court was fairly invoked.”). And, he does
2 not assert on appeal that any exceptions to the preservation requirement apply in this
3 case. See Rule 12-321(B) (listing exceptions to the preservation requirement).
4 Therefore, we proceed under the principle clarified by our Supreme Court in State v.
5 Bomboy that a person’s privacy interest in an automobile is not equivalent to the
6 heightened privacy interest in a home. 2008-NMSC-029, ¶ 12, 144 N.M. 151, 184
7 P.3d 1045.
8 {9} Defendant argues that he was seized when the officer pulled up behind his
9 truck, parked there for ten minutes, and then approached his truck on foot, because
10 “[a] reasonable person parked in an isolated area with a police cruiser parked behind
11 them for ten minutes who was then approached by the officer would not feel free to
12 simply drive away.” Under the circumstances of this case, we disagree. The evidence
13 at the hearing overwhelmingly showed that Defendant was not aware of the officer’s
14 presence until the officer appeared alongside his passenger window and began
15 speaking to him. It would be unreasonable to infer that Defendant would knowingly
16 choose to light his meth pipe at the moment a police officer was approaching his truck
17 window. See Jason L., 2000-NMSC-018, ¶¶ 10-11 (stating that appellate courts
18 indulge in all reasonable inferences and presumptions in support of the district court’s
19 ruling and presume the court believed all uncontradicted evidence). Indeed, the
20 officer’s lapel video showed that, after arresting Defendant, the officer commented to
7
1 Defendant, “I sat behind you for, like, ten minutes; you didn’t see me, obviously.”
2 Therefore, a reasonable person who is not aware of police presence would not feel
3 restrained in his freedom to leave that presence. See Harbison, 2007-NMSC-016, ¶
4 11 (considering “all of the circumstances surrounding the incident” to assess whether
5 a reasonable person in the defendant’s position “would have believed that he or she
6 was not free to leave” (alteration, internal quotation marks, and citation omitted)).
7 {10} Defendant next argues that he was seized at the moment the officer “made
8 contact and immediately demanded that [Defendant] tell [the officer] what was in his
9 hand, open his hand, and give [the officer] what he was holding.” Contrary to
10 Defendant’s argument, Defendant was seized at the point that the officer told
11 Defendant to hand over the pipe because this demand was a show of authority. See
12 Lopez, 1989-NMCA-030, ¶ 3. Further, this seizure was reasonable under both the
13 Federal and State Constitutions because the officer had already witnessed Defendant
14 engaging in what appeared to be criminal conduct before he seized Defendant.
15 C. The Plain View Doctrine Applies to Justify the Officer’s Seizure of the Pipe
16 {11} Under Article II, Section 10 of our State Constitution, an officer may not search
17 an automobile without a warrant “[a]bsent exigent circumstances or some other
18 exception to the warrant requirement[.]” Bomboy, 2008-NMSC-029, ¶ 17. However,
19 if an officer is lawfully present outside of an automobile, “an item in [that] automobile
20 is in plain view[,] and the officer has probable cause to believe the item is evidence
8
1 of a crime, the officer may seize the item.” Id.; see also State v. Lopez, 2009-NMCA-
2 127, ¶ 12, 147 N.M. 364, 223 P.3d 361 (“Because the pipe was clearly contraband, it
3 could properly be seized pursuant to the plain view doctrine, and no warrant was
4 required.”). In other words, under the plain view doctrine, “items may be seized
5 without a warrant if the police officer was lawfully positioned when the evidence was
6 observed, and the incriminating nature of the evidence was immediately apparent[.]”
7 State v. Sanchez, 2015-NMCA-084, ¶ 13, 355 P.3d 795 (internal quotation marks and
8 citation omitted). The “incriminating nature” of an item is “immediately apparent”
9 when there is probable cause to associate the item with criminal activity. Id. (internal
10 quotation marks and citation omitted); see also State v. Ochoa, 2004-NMSC-023, ¶
11 13, 135 N.M. 781, 93 P.3d 1286 (“Objects commonly associated with particular
12 criminal activities can reasonably give rise to inferences that are distinct from objects
13 ordinarily used for benign, non-criminal purposes.”). Probable cause exists when the
14 facts and circumstances “warrant a belief” that a crime was or is being committed.
15 Sanchez, 2015-NMCA-084, ¶ 14 (internal quotation marks and citation omitted). And
16 we review the existence of probable cause “within the realm of probabilities rather
17 than in the realm of certainty.” Id. (internal quotation marks and citation omitted); see
18 id. (“[T]he degree of proof necessary to establish probable cause is more than a
19 suspicion or possibility, but less than a certainty[.]” (internal quotation marks and
20 citation omitted)).
9
1 {12} In circumstances where the object at issue could conceivably have a lawful
2 purpose, an officer’s relevant training and experience may support his or her
3 reasonable belief that the object was probably being used unlawfully. See Ochoa,
4 2004-NMSC-023, ¶ 13 (“An officer’s experience and training, considered within the
5 context of the incident, may permit the officer to identify drug paraphernalia . . . with
6 a reasonable level of probability, sufficient for probable cause.”); Sanchez, 2015-
7 NMCA-084, ¶ 16 (listing “relevant officer training and experience” as one of several
8 “factors that may properly inform an officer’s determination that there is probable
9 cause to believe that the item in plain view is evidence of a crime”). Compare Ochoa,
10 2004-NMSC-023, ¶¶ 3, 10, 13 (holding that the incriminating nature of a glass vial
11 in plain view was immediately apparent to the officer based on his training and
12 experience because it was an object commonly associated with criminal activity, even
13 though the contents of the vial were not visible), Lopez, 2009-NMCA-127, ¶¶ 3, 12
14 (noting that the officers’ experience and training permitted them to identify a glass
15 pipe with white powdery residue as associated with the smoking of narcotics), and
16 State v. Miles, 1989-NMCA-028, ¶¶ 2-5, 12, 108 N.M. 556, 775 P.2d 758 (holding
17 that seizure of a small wooden box in plain view inside a car was proper where the
18 officer readily recognized from his training and experience that such boxes are
19 designed and commonly used to hold marijuana and a small pipe), with Sanchez,
20 2015-NMCA-084, ¶¶ 15, 17 (holding that plain view seizure of clear bag containing
10
1 prescription pills was improper because “possession of prescription pills is commonly
2 lawful,” the officer’s training and experience did not demonstrate anything more than
3 his ability to identify the pills as those that require a prescription, and the officer did
4 not articulate any other facts that indicated the pills were possessed or being used
5 unlawfully).
6 {13} Defendant first argues that the officer was not “lawfully located in the area
7 where the [pipe] was seized” because the officer “was illegally detaining [Defendant]
8 without reasonable suspicion to do so.” As we concluded above, however, the
9 officer’s detention of Defendant did not occur until he told Defendant to hand over the
10 pipe. Therefore, the officer was lawfully present standing outside of Defendant’s truck
11 in a vacant lot open to the public when he first observed the glass pipe and lighter in
12 Defendant’s hand.
13 {14} Next, Defendant’s reliance on Sanchez to support his contention that the
14 incriminating nature of Defendant’s pipe was not immediately apparent because a
15 glass pipe can also be used to smoke lawful substances such as tobacco is unavailing.
16 In Sanchez, the officer’s training and experience did not support a reasonable belief
17 that the prescription pills in that case were being used unlawfully because the officer
18 did not testify that, in his training and experience, prescription pills in clear plastic
19 bags were usually contraband. Instead, the officer testified only that his prior training
20 and experience as a paramedic allowed him to identify the pills as those that require
11
1 a prescription. Sanchez, 2015-NMCA-084, ¶ 15. This Court concluded that, because
2 possession of prescription medications is often lawful, the officer needed more
3 information before he could form reasonable belief that the defendant was using them
4 unlawfully. See id. ¶¶ 14-15. In contrast, here, the officer’s belief that Defendant’s
5 glass pipe was being used criminally was reasonable because it was supported by his
6 relevant “training and experience on the streets and in narcotics” that “usually glass
7 pipes are for narcotics.” Defendant’s attempt to conceal the pipe inside his hand when
8 he saw the officer further supports the officer’s reasonable belief that the pipe was
9 being used criminally. See id. ¶¶ 18, 21 (acknowledging that an attempt to conceal an
10 object may be a factor in determining whether probable cause exists, but it cannot be
11 the only factor). In sum, where the officer testified that in his training and experience
12 glass pipes are associated with narcotic use, and where Defendant tried to conceal the
13 pipe inside of his hand when he saw the officer, the officer had probable cause to
14 immediately seize the glass pipe when he saw it in plain view. See Bomboy, 2008-
15 NMSC-029, ¶ 17; Lopez, 2009-NMCA-127, ¶ 12.
16 {15} Finally, Defendant argues that the officer’s immediate, plain view seizure of the
17 pipe was improper because there were no exigent circumstances. We disagree. In
18 Bomboy, our Supreme Court held that a particularized showing of exigent
19 circumstances was not always required before an officer could seize contraband in
20 plain view without a warrant. Bomboy, 2008-NMSC-029, ¶ 17. Instead, the Court
12
1 recognized that the reason an officer may immediately seize contraband in plain view
2 from inside an automobile is because “the contraband is in plain view not only to the
3 officer, but also to the public at large, and therefore, if it is left alone, it can easily be
4 tampered with or destroyed.” Id. ¶ 2. Thus, immediate seizure under those
5 circumstances is “consistent with the exigent circumstances exception to the warrant
6 requirement.” Id. ¶ 13. Here, similar to Bomboy, Defendant’s truck was in a place that
7 was open to the public “with evidence of a crime in plain view, not only to the officer
8 but to the public as a whole.” Id. “Such evidence, if left alone, could easily be
9 tampered with or destroyed.” Id. Accordingly, the officer’s immediate seizure of the
10 pipe in this case was consistent with the exigent circumstances exception to the
11 warrant requirement.
12 II. DOUBLE JEOPARDY
13 {16} Defendant asserts that conviction for both possession of drugs and possession
14 of drug paraphernalia violated his right to be free from double jeopardy. The Federal
15 and State Constitution prohibit any person from being twice put in jeopardy for the
16 same offense. State v. Almeida, 2008-NMCA-068, ¶ 5, 144 N.M. 235, 185 P.3d 1085.
17 NMSA 1978, Section 30-1-10 (1963) also provides that “[n]o person shall be twice
18 put in jeopardy for the same crime.” Double jeopardy claims may be raised for the
19 first time on appeal. See id. (“[T]he defense of double jeopardy may not be waived
20 and may be raised by the accused at any stage of a criminal prosecution, either before
13
1 or after judgment.”); State v. Sanchez, 1996-NMCA-089, ¶ 12, 122 N.M. 280, 923
2 P.2d 1165 (stating that Section 30-1-10 allows a defendant to raise a double jeopardy
3 claim for the first time on appeal). “We review double jeopardy claims de novo.”
4 Almeida, 2008-NMCA-068, ¶ 4.
5 {17} One of the purposes behind the prohibition against double jeopardy is “to
6 protect against multiple punishments for the same offense.” Id. ¶ 5. Multiple
7 punishment problems can arise from “double-description” claims, “in which a single
8 act results in multiple charges under different criminal statutes[.]” State v. Bernal,
9 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. Defendant’s double jeopardy
10 claim is a double-description claim because he was charged under two different
11 statutes for what he contends is a single act: possession of methamphetamine inside
12 of a glass pipe.
13 {18} Double jeopardy prohibits multiple punishments in the double-description
14 context only where the conduct is “unitary” and where the Legislature did not intend
15 to create separately punishable offenses. Almeida, 2008-NMCA-068, ¶ 6. Conduct is
16 unitary when “the same conduct violates both statutes.” Swafford v. State, 1991-
17 NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. The State concedes, and we agree, that
18 Defendant’s conduct—holding a glass pipe containing an un-scorched rock of
19 meth—can be reasonably characterized as unitary. Thus, we are left to decide whether
20 the Legislature intended to create separately punishable offenses for this conduct. See
14
1 id. ¶ 28 (“If it reasonably can be said that the conduct is unitary, then one must move
2 to the second part of the inquiry.”); Almeida, 2008-NMCA-068, ¶ 6 (same).
3 {19} In construing legislative intent, we first look to the plain language of the
4 statutes at issue to determine whether they “expressly” provide for “multiple
5 punishments for unitary conduct.” Swafford, 1991-NMSC-043, ¶ 30. Because the
6 statutes at issue here do not expressly state that conviction for one offense shall not
7 preclude conviction for the other, compare NMSA 1978, § 30-31-23(A), (E) (2011)
8 (prohibiting meth possession), with NMSA 1978, § 30-31-25.1(A) (2001) (prohibiting
9 drug paraphernalia possession), we proceed to apply the test set out in Blockburger
10 v. United States, 284 U.S. 299 (1932). See Swafford, 1991-NMSC-043, ¶ 30. The
11 Blockburger test seeks to determine whether there are “two offenses or only one” in
12 prosecutions “where the same act . . . constitutes a violation of two distinct statutory
13 provisions.” State v. Gutierrez, 2011-NMSC-024, ¶ 56, 150 N.M. 232, 258 P.3d 1024
14 (internal quotation marks and citation omitted). In making this determination, the test
15 that we apply is “whether each [statute] requires proof of a fact which the other does
16 not.” Id. (internal quotation marks and citation omitted). If all of the elements of one
17 statute are contained within the other statute, then “one statute is subsumed within the
18 other,” and our inquiry ends with the conclusion that the Legislature did not intend to
19 punish the same conduct under two different statutes. Id. But, if each statute does
20 contain an element of proof that is not found in the other, we presume “that the
15
1 [L]egislature intended to punish the offenses separately.” Almeida, 2008-NMCA-068,
2 ¶ 9.
3 {20} Here, Defendant was convicted of violating two separate statutes: Section 30-
4 31-23(A), (E) (possession of meth) and Section 30-31-25.1(A) (possession of
5 paraphernalia. The meth possession statute requires, in relevant part, proof that
6 Defendant possessed methamphetamine. See § 30-31-23(A), (E). The paraphernalia
7 possession statute requires, in relevant part, proof that Defendant “use[d] or
8 possess[ed] with intent to use drug paraphernalia to . . . inhale or otherwise introduce
9 into the human body a controlled substance[,]” in this case, meth. Section 30-31-
10 25.1(A). The definition of “drug paraphernalia” includes “glass . . . pipes[.]” NMSA
11 1978, § 30-31-2(V)(12)(a) (2009, amended 2017). Each of these two statutes contains
12 an element of proof not contained by the other: the meth possession statute requires
13 proof of possession of the drug itself, regardless of whether the accused possessed any
14 means to introduce it into his body, while the paraphernalia possession statute, under
15 the facts of this case, requires proof that Defendant used or possessed the means to
16 introduce an illegal drug into his body, regardless of whether he possessed the drug
17 along with it. Therefore, we presume that the Legislature intended to punish these two
18 offenses separately. See Almeida, 2008-NMCA-068, ¶ 9.
19 {21} Once we have established the presumption that the Legislature intended to
20 punish the two offenses separately, we determine whether “other indicia of legislative
16
1 intent” overcome this presumption. Swafford, 1991-NMSC-043, ¶ 31 (stating that the
2 presumption “is not conclusive and it may be overcome by other indicia of legislative
3 intent”). This means that “we must turn to traditional means of determining legislative
4 intent: the language, history, and subject of the statutes.” Id.; see id. (providing
5 “several guiding, but by no means exclusive, principles for divining legislative
6 intent”). Swafford and subsequent double jeopardy cases addressed by this Court have
7 focused on two guiding principles: the societal interests involved in the statutes and
8 the quantum of punishment used between the statutes. See id. ¶¶ 32-34; Almeida,
9 2008-NMCA-068, ¶¶ 14-20; State v. Fuentes, 1994-NMCA-158, ¶¶ 15-18, 119 N.M.
10 104, 888 P.2d 986.
11 {22} In evaluating the societal interests involved in the statutes, we “identify the
12 particular evil sought to be addressed by each offense.” Swafford, 1991-NMSC-043,
13 ¶ 32. If the statutes at issue are “usually violated together” and “seem designed to
14 protect the same societal interest,” the inference is strong “that the function of the
15 multiple statutes is only to allow alternative means of prosecution.” Id. We must,
16 however, narrowly construe the social evils proscribed by different statutes. See id.
17 (“[C]are must be taken in describing the evils sought to be prevented—social evils can
18 be elusive and subject to diverse interpretation. Accordingly, the social evils
19 proscribed by different statutes must be construed narrowly[.]” (footnote omitted)).
20 “The quantum of punishment also is probative of legislative intent to punish.” Id. ¶ 33.
17
1 We may infer that the Legislature did not intend for punishment to be applied under
2 both statutes “[w]here one statutory provision incorporates many of the elements of
3 a base statute,” yet “extracts a greater penalty than the base statute.” Id.
4 {23} Defendant asserts an overly broad construction of the social interest involved
5 in the statutes at issue: protecting the public from the dangers of drug abuse. Under
6 this construction, all cases involving more than one charge under New Mexico’s
7 comprehensive Controlled Substances Act would be vulnerable to double jeopardy
8 scrutiny. See id. ¶ 32 n.7 (cautioning that too broad of an interpretation “eviscerates
9 the [L]egislature’s intent to proscribe the narrower, distinct evils . . . by way of
10 different statutory [provisions]”). Because we must construe social interests narrowly,
11 we construe the evil proscribed by possession of the drug itself differently than the
12 evil proscribed by possession of paraphernalia. Possession of the drug itself, meth in
13 particular, is possession of a substance our Legislature has deemed dangerous. See §
14 30-31-23(E) (making possession of meth a fourth degree felony). Meth is not only
15 dangerous to a person in possession who may intend to smoke it, but to others who
16 may come into contact with the drug, whether accidentally by a child, or through an
17 intentional transfer from one person to another. The crime of meth possession does not
18 require proof that the accused actually used or intended to use that particular drug;
19 mere possession is enough. See § 30-31-23(A). Therefore, we conclude that the
20 Legislature’s ban on meth possession sought to eliminate the specific evil of having
18
1 the drug be present and available on the streets and in people’s homes and cars.
2 {24} The statute that prohibits possession of a pipe, on the other hand, seeks to
3 eliminate a different evil that involves actual use or the intent to use the illegal
4 drug—specifically, the evil of facilitating entry of the drug into the human body. See
5 § 30-31-25.1(A). However, it appears that the Legislature considered possession of
6 a drug pipe by itself as less dangerous than possession of the actual drug, and less
7 dangerous than possession of both the pipe and the drug, which is illustrated by the
8 misdemeanor status the Legislature assigned to possession of a pipe alone. See § 30-
9 31-25.1(C) (making possession of drug paraphernalia a misdemeanor punishable by
10 a fine of between $50 and $100 or by up to one year in prison). And although we
11 acknowledge Defendant’s point that these two crimes are often committed together,
12 we also recognize that they may often be committed separately. Without any data in
13 the record to support either viewpoint, this consideration is not helpful to our analysis.
14 {25} As to the quantum-of-punishment factor, the difference in severity of
15 punishment for felony meth possession compared to misdemeanor possession of a
16 pipe makes sense because meth by itself is more dangerous than a pipe by itself.
17 Neither crime is a “base statute” for the other, and neither is “merely an aggravated
18 form of the other.” Fuentes, 1994-NMCA-158, ¶ 17. The two stand alone, with
19 independent elements that address separate, though related, evils. Consideration of
20 these factors reinforces the presumption that the Legislature intended to punish
19
1 possession of the pipe separately. Our conclusion is consistent with this Court’s
2 commentary in Almeida that “two punishments would appear to be permitted when
3 a baggie of drugs is found next to a pipe, or even when the drugs are found inside the
4 pipe” because “the statutes that punish the possession of controlled substances and the
5 possession of drug paraphernalia are intended to punish distinct wrongs.” 2008-
6 NMCA-068, ¶ 20. Defendant’s conviction for both meth possession and possession
7 of drug paraphernalia do not violate his right to be free from double jeopardy.
8 CONCLUSION
9 {26} We affirm.
10 {27} IT IS SO ORDERED.
11 __________________________________
12 LINDA M. VANZI, Chief Judge
13 WE CONCUR:
14 _______________________________
15 HENRY M. BOHNHOFF, Judge
16 ________________________________
17 DANIEL J. GALLEGOS, Judge
20