State v. A Turnbull-Phillips

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 27,144
5 ALICIA KAY TURNBULL-PHILLIPS,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Thomas J. Hynes, District Judge
9 Gary K. King, Attorney General
10 Katherine Zinn, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Hugh W. Dangler, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 BUSTAMANTE, Judge.
19 Defendant appeals her convictions for possession of methamphetamine and
20 tampering with evidence. In the district court, Defendant unsuccessfully moved to
21 suppress evidence seized when a probation officer and a police officer entered and
1 searched the residence where Defendant was arrested. Defendant entered into a
2 conditional plea of guilt, reserving the right to appeal the denial of her motion to
3 suppress evidence. We affirm the district court’s denial of Defendant’s motion to
4 suppress.
5 BACKGROUND
6 Officer Current received a tip from an unnamed citizen-informant that
7 Defendant was using and selling methamphetamine from the residence of Brian
8 Werner (Werner). According to the informant, Defendant was staying at the
9 residence, there was a lot of traffic at the residence, and both Defendant and Werner
10 had a lot of money but no legitimate employment. Officer Current had also received
11 complaints from the Farmington Public Schools about possible drug activity at the
12 residence. Officer Current discovered that both Defendant and Werner were currently
13 on probation for narcotics-related offenses. Based on that information, Officer
14 Current contacted the probation office. Defendant was under the supervision of Tami
15 Danielli, who was not in the probation office at the time of Officer Current’s
16 telephone call. Officer Current was able to speak with Candace Montoya (Officer
17 Montoya), the probation officer supervising Werner, about the information he
2
1 received. Officer Current also informed Officer Montoya that Defendant had active
2 warrants for her arrest.
3 Officer Montoya testified that she had been experiencing difficulty locating
4 Werner, she was unable to contact him at his reported residence, he had submitted
5 “dirty UAs” in the past, and she needed to see Werner at the residence as part of her
6 duties as his probation officer. Officer Montoya asked Officer Current and another
7 officer to assist her in her search, and made it clear to the accompanying officers that
8 this was her search. Officer Montoya asked the assisting officers to clear the
9 residence and place everyone into the living room, if such action was necessary.
10 Upon arriving at the residence, Officer Current noticed a car parked in front of the
11 residence that he recognized as belonging to Defendant. Officer Montoya knocked
12 on the door, opened it, and announced, “Probation and Parole.” She heard a woman’s
13 voice coming from the bedroom and asked who was there. Defendant identified
14 herself, and Officer Montoya recognized her to be Werner’s cousin, who had
15 accompanied Werner to the probation office in the past. Officer Montoya told
16 Defendant to come out of the bedroom, to which Defendant responded that she needed
17 to get dressed. Based on Officer Montoya’s experience, she believed that Defendant
18 may have been attempting to hide something so she proceeded to the bedroom with
3
1 Officer Current following. Once there, Defendant stated that she needed to get her
2 shoe. She leaned down and pulled a plastic baggie containing a white substance from
3 the mattress and threw a plastic bag of needles at Officers Montoya and Current.
4 Defendant put the baggie into her pants and “appeared to be shoving the items into her
5 vagina.” Officer Current attempted to handcuff Defendant and began to read her
6 Miranda rights. Defendant fought against Officer Current, but was eventually placed
7 into handcuffs. Officer Montoya noticed that Defendant was staring at another baggie
8 that was on the mattress. Defendant jumped and landed on top of the baggie and
9 attempted to swallow it. Officer Current held Defendant’s throat to prevent her from
10 swallowing the baggie, and eventually Defendant spit it out. The baggie contained
11 methamphetamine.
12 Defendant filed a motion to suppress the evidence seized from her and from the
13 residence. After hearing testimony from Officer Montoya and argument by the
14 parties, the district court denied the motion to suppress. Defendant appeals.
15 DISCUSSION
16 Defendant contends that the district court erred in denying her suppression
17 motion. “We review the district court’s ruling on a motion to suppress to determine
18 whether the law was correctly applied to the facts, viewing the facts in the light most
4
1 favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77,
2 966 P.2d 785. Defendant’s arguments on appeal are as follows: (1) there was no
3 probable cause or exigent circumstances to justify the warrantless entry of the
4 residence, (2) the officers failed to comply with the knock-and-announce rule before
5 entering the residence, (3) an unlocked door does not eliminate the knock-and-
6 announce requirement, (4) an arrest warrant provides only limited authority to enter
7 a residence and the necessary factors allowing entry were not established in this case,
8 (5) our state constitution provides greater protection than its federal counterpart in that
9 it requires a showing of reasonable suspicion and exigent circumstances to justify
10 entry and search of the residence, and (6) the officers did not have reasonable cause
11 to conduct a probation search particularly where Werner was not asked for permission
12 to search the residence.
13 Argument Presented and Rulings Made in the District Court
14 In her motion to suppress, Defendant listed a number of points, including:
15 (6) Officer Montoya was the probation officer for . . . Werner, but not the
16 Defendant;
17 ....
18 (26) The actions of [Officer] Current and Officer Montoya violate
19 Defendant’s IV Amendment rights under the Constitution of the United
20 States and Article II[,] Section [10] of the Constitution [of] New Mexico;
5
1 ....
2 (31) [Officer] Current contacted the Probation Officer for . . . Werner and not
3 the Defendant’s Probation Officer;
4 ....
5 (33) . . . Werner was not at the residence when [Officers] Current and
6 Montoya arrived;
7 (34) Officer[s] Montoya and Current entered the residence without
8 reasonable and articulative (sic) suspicion that . . . Werner was
9 there and that illegal activity was occurring;
10 (35) [Officer] Current went along with Officer Montoya for the sole
11 purpose of investigating Defendant;
12 (36) [Officer] Current’s activities of involving Probation was (sic)
13 merely a rouse (sic) in an attempt to circumvent constitutional
14 rights which prevent state actor’s (sic) from conducting
15 warrantless searches;
16 ....
17 (39) [Officer] Current violated [Defendant’s] right[s] and used a
18 probation officer to attempt to circumvent the rules requiring him
19 to obtain a search warrant;
20 ....
21 (41) The probation officer has (sic) no evidence of criminal
22 wrongdoing by . . . Werner and [Officer] Current even states that
23 he saw Defendant’s car at the residence, however, no such
24 statement was made regarding . . . Werner’s vehicle.
6
1 As indicated, Defendant’s primary arguments were that the authority of Officer
2 Montoya, who was not the probation officer assigned to Defendant, was used as a ruse
3 for the sole purpose of allowing Officer Current to investigate Defendant; Officer
4 Current did not state that he saw Werner’s car at the residence; and the officers had
5 no reasonable suspicion that Werner was at the residence or that illegal activity was
6 occurring at the residence.
7 The district court convened on two different dates to address Defendant’s
8 motion to suppress. Defendant was not present at the first setting, so the hearing was
9 continued in order to allow defense counsel to locate Defendant and to contact Officer
10 Montoya in order to have her testify. Defendant was not present at the second setting.
11
12 Throughout both hearings, the parties and the district court focused primarily
13 on the question of whether Officer Montoya was acting in her capacity as a probation
14 officer or whether she was acting as a police agent when she entered the residence.
15 At the first hearing, the issue discussed was whether Officers Montoya and Current
16 made a legal entry of the residence. The district judge outlined the requirements for
17 allowing a probation officer to conduct a warrantless search of a probationer’s
18 residence, stating that even when there is a probation agreement, a probation officer
7
1 must have reasonable suspicion and must be acting in his or her role as a probation
2 officer. See State v. Baca, 2004-NMCA-049, ¶¶ 43, 55, 135 N.M. 490, 90 P.3d 509.
3 Both parties agreed that the district judge’s description of the applicable standard was
4 correct. During that hearing, defense counsel commented that “[Officers Montoya
5 and Current] go to the home, the vehicle of the probationee (sic) is not there, they
6 don’t know if he’s even home and there’s no indication that he is home,” and later
7 commented, “It doesn’t say, ‘you can come in, whether I’m home or not, and search
8 my home.’” After confirming from the State that the home was Werner’s residence,
9 the district court stated, “Okay, well, no, it says they have to have reasonable
10 suspicion,” to which defense counsel responded, “Okay.” Defense counsel then
11 commented that there is “potentially reasonable suspicion . . . to go look into what
12 [Defendant] is doing,” but argued that it was not Defendant that they were looking for
13 at the residence. The district court and the prosecutor then engaged in a discussion
14 regarding whether Officer Current contacted Officer Montoya in order to gain entry
15 to the residence, or whether Officer Montoya considered Werner to be an absconder
16 and wished to locate him and perform a urinalysis test on him.
17 The hearing on the motion to suppress was continued after the parties stipulated
18 to the facts contained in Officer Current’s report, but agreed that it was necessary to
8
1 hear the testimony of Officer Montoya. During the second phase of the hearing, the
2 testimony from Officer Montoya and the argument of counsel focused on whether
3 Officer Montoya was acting on behalf of Officer Current or was acting in accordance
4 with her position as a probation officer. The district court found that she had
5 reasonable suspicion that Werner was violating his probation agreement based on his
6 failure to report his current residence, and the reasonable suspicion was not solely
7 generated by the call from Officer Current. The district judge commented that, if the
8 only suspicion of illegal activity was based on information from Officer Current, he
9 would have found that Officer Montoya was acting as a police officer and not a
10 probation officer. Defense counsel then stated that “the probation agreement says that
11 they will give permission to search their home, to me the reading of it requires that
12 [the] probation officer comes if you give permission, not [the] probation officer
13 comes, the door’s unlocked, let’s go in.” The district judge responded that the Court
14 of Appeals has ruled that a probation officer cannot enter a house based solely on the
15 agreement. Rather, the probation officer needs reasonable suspicion that defendant
16 or someone in the house was violating probation.
17 Search By Probation Officer
9
1 As noted above, Defendant raises six issues on appeal. However, the rulings
2 made by the district court mainly addressed the probation officer’s authority to enter
3 the residence. The parties agreed that, even though there was a probation agreement
4 in place, Officer Montoya was required to have reasonable suspicion that her
5 probationer had engaged in some behavior that constituted a violation of his probation
6 agreement, and Officer Montoya’s actions must have been undertaken as part of her
7 role as a probation officer. Defense counsel’s argument and cross-examination of
8 Officer Montoya centered on the idea that Officer Montoya went to the residence only
9 at the behest of Officer Current and not as a probation officer checking on her
10 probationer. For example, during cross-examination of Officer Montoya, defense
11 counsel phrased his questions in terms of Officer Current “initiating” contact with
12 Officer Montoya, and Officer Current needing “assistance” from Officer Montoya.
13 At the end of the suppression hearing, the district judge stated that this might be a
14 good case for appeal based on Officer Montoya’s visit to the residence occurring after
15 she received a call from a police officer, to which defense counsel responded, “Okay.”
16 In other words, the issue argued, discussed, agreed to, and determined at the
17 suppression hearing was whether Officer Montoya’s visit to the residence was simply
18 a ruse or subterfuge in order to allow Officer Current to conduct an investigatory
10
1 search based on the information he received that illegal activity had occurred at the
2 residence. Therefore, we address the district court’s rulings that Officer Montoya had
3 reasonable suspicion to conduct a warrantless search of the residence, was acting in
4 her role as a probation officer, and Officer Montoya’s actions did not amount to a ruse
5 or subterfuge.
6 Probation is an “act of clemency” and “is not meant to be painless.” Id. ¶ 42
7 (internal quotation marks and citations omitted). Under either federal or New Mexico
8 law, the purposes of probation are rehabilitation and deterrence of further misconduct
9 by the probationer. Id. ¶ 36. As part of Werner’s probation conditions, he agreed to
10 “permit any Probation/Parole Officer to visit me at my home or place of employment
11 at any time,” and “will permit a [warrantless] search by the Officer of my person,
12 automobile, residence, property and/or living quarters if he/she has reasonable cause
13 to believe the search will produce evidence of a violation of my conditions of
14 probation.”
15 The regulations of the Probation and Parole Division require reasonable cause
16 to conduct a search, and limit warrantless searches to the probation condition allowing
17 a search when available evidence would cause a reasonable person to believe that the
18 probationer is in possession of forbidden items or evidence of a violation of probation
11
1 will be discovered. Id. ¶ 38. Probation searches do not require probable cause or
2 exigent circumstances. Id. ¶¶ 41, 49. However, reasonable suspicion is required to
3 support a warrantless probation search. Id. ¶ 43.
4 Officer Montoya testified that Werner, one of her highest maintenance
5 offenders, had reported that he was living at a particular address, and was working on,
6 but not living at, another home for which he provided the address. Approximately two
7 weeks prior to the search in this case, Officer Montoya conducted a field visit and
8 discovered that Werner was not living at his reported address. Officer Montoya made
9 a second attempt to locate Werner by visiting the home that Werner was reportedly
10 working on, but she was unable to make contact with him at that home. As part of his
11 probation agreement, Werner was required to get permission before changing his
12 residence, and to submit urine or breath samples for analysis upon request of his
13 probation officer. Officer Montoya testified that she believed she had reasonable
14 suspicion to conduct a search based on her inability to verify Werner’s residence, and
15 because the last urinalysis test conducted on Werner was positive. Approximately five
16 days after her second attempt to locate Werner, Officer Montoya received information
17 from Officer Current that Werner was living at the home he claimed to be working on,
18 and that he and Defendant were selling drugs out of the residence. Officer Montoya
12
1 testified that Officer Current never asked her to “do a search for him, to open the
2 home to do a search.” She emphasized that she had made prior attempts to contact
3 Werner, and she “was going to make a full contact of (sic) him at his reporting
4 residence,” whether or not Officer Current had contacted her.
5 The testimony by Officer Montoya establishes that she had reasonable suspicion
6 that Werner was or may have been in violation of a condition of his probation, both
7 because she discovered he was not living at the address he provided as his residence,
8 and because he had given a “dirty” urine sample and she was unable to locate him to
9 procure a urine sample for testing. Therefore, Officer Montoya had reasonable
10 suspicion to support a warrantless search based on the probation agreement before she
11 received any information from Officer Current. In addition, while Officer Montoya
12 was attempting to locate Werner, Officer Current provided her with information that
13 Werner was living at an address that he had not reported and that he was engaged in
14 selling drugs, which would also have been in violation of his probation agreement.
15 Furthermore, Officer Montoya clearly testified that she would have made contact with
16 Werner at the residence even if she had not received the additional information from
17 Officer Current, and that she was not asked to use her authority to allow a search of
18 the residence by Officer Current. We hold that the evidence supports the district
13
1 court’s determinations that Officer Montoya, acting in her role as a probation officer,
2 had the requisite reasonable suspicion to conduct a warrantless search of Werner’s
3 residence, and the use of her authority as a probation officer was not a ruse or
4 subterfuge to allow police to conduct an investigatory search of the residence.
5 Because Officer Montoya had the authority to enter and search Werner’s residence
6 without a warrant, we need not address any claim concerning Officer Current’s entry
7 into the residence, such as the contention that the requirements for executing an arrest
8 warrant were not met in this case.
9 Arguments Not Preserved
10 In addition to the argument discussed above, Defendant’s brief-in-chief raises
11 several other contentions. As discussed below, however, these arguments were not
12 properly preserved, including Defendant’s argument regarding compliance with the
13 knock-and-announce rule prior to entry of the residence, her contention that our state
14 constitution requires reasonable suspicion and exigent circumstances in this case, or
15 her contention that reasonable cause to search the residence did not exist because
16 Officer Montoya did not ask Werner for permission to search.
17 In order to preserve an issue for appeal, Defendant must have made a timely and
18 specific objection that apprises the district court of the nature of the claimed error and
14
1 allows the district court to make an intelligent ruling thereon. See State v. Varela,
2 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280; Rule 12-216(A) NMRA
3 (requiring that “it must appear that a ruling or decision by the district court was fairly
4 invoked” in order to preserve a question for review); see also State v. Granillo-
5 Macias, 2008-NMCA-021, ¶ 11, 143 N.M. 455, 176 P.3d 1187 (holding that the
6 defendant’s argument on appeal was not properly preserved where the defendant made
7 no mention of compliance with NHTSA requirements or standards and cited to no
8 case law on those issues), cert. denied, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d
9 672; State v. Shirley, 2007-NMCA-137, ¶¶ 31-32, 142 N.M. 765, 170 P.3d 100310 (determining that a defendant’s argument on appeal pertaining to a police officer
11 tailoring testimony to that of other witnesses was not properly preserved for appeal
12 where the defendant’s argument below centered on conflict of interest, and the district
13 court was not alerted with sufficient specificity to the argument raised on appeal so
14 that an intelligent ruling could be made), cert. denied, 2007-NMCERT-010, 143 N.M.
15 73, 172 P.3d 1285. The primary purposes for the preservation rule are: (1) to
16 specifically alert the trial court to a claim of error so that any mistake can be corrected
17 at that time, (2) to allow the opposing party a fair opportunity to respond to the claim
18 of error and to show why the district court should rule against that claim, and (3) to
15
1 create a record sufficient to allow this Court to make an informed decision regarding
2 the contested issue. See State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175
3 P.3d 942, cert. denied, NMCERT , N.M. , P.3d. (No. 30,759,
4 Dec. 19, 2007). Where a party, such as Defendant, has a number of theories for why
5 evidence should be suppressed, she was required to alert the district court to those
6 theories to permit the district court to make rulings accordingly. See State v. Janzen,
7 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768.
8 On appeal, Defendant claims that the officers did not comply with our knock-
9 and-announce rule when they knocked, opened the door, walked in, and then
10 announced their presence. Defendant did not include this argument in her motion to
11 suppress, and at the hearing below, defense counsel stated only that the officers “come
12 up to the door, do like a knock and announce, come in and [Defendant] is in the back
13 bedroom.” This argument was plainly not made below, and cannot be raised for the
14 first time on appeal.
15 Defendant appears to argue that the New Mexico Constitution requires the
16 existence of not only reasonable suspicion, but also exigent circumstances, in order
17 to allow probation officers to conduct a warrantless search, including a search based
18 on a probation agreement. Defendant claims that she preserved this argument by
16
1 asserting “the greater protections afforded under Article II, Section 10 and cit[ing] to
2 Gomez.” Defendant does not provide a reference to the record for her claims.
3 Furthermore, we find nothing in the record indicating that Defendant made the
4 specific argument below that she now asserts on appeal, or that she provided the
5 district court with facts to support the argument. See In re Estate of Heeter, 113 N.M.
6 691, 694, 831 P.2d 990, 993 (Ct. App. 1992) (holding that an appellate court will not
7 search the record to find support for appellant’s claims). Moreover, as discussed
8 earlier in this opinion, this Court has already decided that under the New Mexico
9 Constitution a warrantless probation search does not require exigent circumstances.
10 At the hearing below, defense counsel pointed out that Werner was not at the
11 residence at the time of the search, Officer Current did not state that he saw Werner’s
12 car at the residence, and there was nothing to indicate that Werner was “even home.”
13 Defense counsel did not, however, explain the possible legal significance of these
14 facts to the district court, and never attempted to cite any authority that might indicate
15 why it mattered whether Werner was home or not at the time of the search. On
16 appeal, Defendant argues for the first time that under the probation agreement, as well
17 as the regulations of the Probation and Parole Division, Officer Montoya was required
18 to seek permission for the search from Werner. Since Werner was not at the
17
1 residence, he was never asked for such permission and Defendant claims the entry was
2 therefore illegal.
3 We hold that this argument was not raised in the district court with sufficient
4 specificity as to alert the district judge to the claim, and allow him to make an
5 intelligent ruling on the specific issue. Below, the only possible reference to the claim
6 occurred when defense counsel stated that “the probation agreement says that they
7 will give permission to search their home, to me the reading of it requires that the
8 probation officer comes if you give permission, not [the] probation officer comes, the
9 door’s unlocked, let’s go in.” Based on the district court’s response, that the case law
10 requires more than just a probation agreement to authorize entry into a probationer’s
11 home, it is obvious the district court was not alerted to the argument Defendant now
12 makes on appeal. Defendant did not follow up on her argument, and did not cite any
13 authority in support of it. In addition, a review of the entirety of the discussions at the
14 bifurcated hearing clearly shows that the district court was never alerted to the
15 argument now made by Defendant, that Officer Montoya was required to meet with
16 Werner, and be granted or denied permission to search his residence. Instead, the
17 primary focus of the hearing was Defendant’s claim that the entry into the residence
18 was accomplished by subterfuge or ruse. Because the argument was not properly
18
1 raised below, the State was denied the opportunity to respond to the argument, the
2 district court was denied the opportunity to provide an informed and intelligent ruling
3 on the argument, and this Court is left without an adequate record to review the issue.
4
5 We hold that the arguments discussed in this section of our opinion were not
6 properly preserved for purposes of appeal. Therefore, we do not address the merits
7 of those arguments.
8 CONCLUSION
9 We affirm the district court’s decision to deny Defendant’s motion to suppress
10 evidence.
11 IT IS SO ORDERED.
12
13 MICHAEL D. BUSTAMANTE, Judge
14 WE CONCUR:
15
16 RODERICK T. KENNEDY, Judge
17
18 MICHAEL E. VIGIL, Judge
19