August 10, 2011 – State of New Mexico v. Norman Davis, No. 28,219

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: AUGUST 10, 2011

NO. 28,219

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

NORMAN DAVIS,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
John M. Paternoster, District Judge

Gary K. King, Attomey General
Santa Fe, NM
M. Anne Kelly, Assistant Attomey General

Albuquerque, NM

for Appellee

Jacqueline L.. Cooper, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
FRY, Judge.
{1} 	After being tipped off by a surveillance helicopter that there was vegetation
spotted in Defendant’s greenhouse and plants behind his house, at least six or seven
armed law enforcement officers and at least five government vehicles entered
Defendant’s property as the helicopter hovered overhead. While officers spread out
across the property, Officer William Merrell told Defendant that officers in the
helicopter believed they had located marijuana at Defendant’s residence. 	Officer
Merrell asked Defendant for consent to search the property and, after some hesitation,
Defendant said he would permit the search, whereupon officers discovered marijuana.
When the district court denied his suppression motion, Defendant entered a
conditional plea to one count of possession of a controlled substance. We conclude
that the State failed to establish that Defendant’s consent was voluntary and reverse
the district court’s denial of Defendant’s suppression motion.
BACKGROUND
{2} 	The New Mexico State Police, with the assistance of the New Mexico National
Guard, undertook an operation to identify marijuana “plantations” in Taos County,
New Mexico. The operation utilized two Army National Guard helicopters for air
surveillance and two ground teams composed of individuals from various law

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enforcement agencies. 	During the operation, a spotter in one of the helicopters
directed a ground team to Defendant’s property, stating that he observed “vegetation”
in the greenhouse and “plants at the back of the house.” Defendant, who was seventy-
two years old at the time, was at his residence when the ground team arrived. At least
six or seven uniformed, armed officers, some carrying semi-automatic weapons,
entered Defendant’s property, disbursed, and formed a perimeter around part of the
property. 	At least five vehicles from different law enforcement agencies and the
National Guard also entered the property, while the helicopter hovered directly above.
{3} 	Officer Merrell recorded the encounter with Defendant that followed. Officer
Merrell approached Defendant, identified himself, and said that “the helicopter [was]
looking for marijuana plants and they believe they’ve located some at your residence.”
He then asked Defendant for permission to search the residence. Defendant asked
what would happen if he said no, and Officer Merrell responded, “Well, then we will
secure the residence. That’s up to you.” When Officer Merrell again asked Defendant
for permission to search the property, Defendant said, “Sure.” Defendant then said,
“Looks like they’re searching anyway.” Officer Merrell replied, “No, they’re just here
to make sure—our biggest thing is safety. We’re not going to be searching. If you’re
giving us permission to search, I’ll get a form.” Officer Merrell then asked Defendant
if there were marijuana plants in the greenhouse, and Defendant said that there were.

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When Officer Merrell produced a consent form and asked Defendant to sign it,
Defendant said, “I’m not really thrilled about you searching my house” and “I don’t
know if I should do this; I don’t know if it is in my best interest.” He then asked what
would happen if he did not sign the consent form, and Officer Merrell responded that
he “would go forth and try to execute a warrant through the district attorney’s office.”
Defendant ultimately signed the consent form.
{4} 	Defendant testified that his greenhouse is made of opaque material and that
someone in a helicopter could not have seen the marijuana plants in the greenhouse.
He also testified that when he first came out of his house to investigate the helicopter
racket, he saw officers near buildings on his property who appeared to be “searching
or looking in[to] those buildings.”
{5} 	Officers searched Defendant’s property and found marijuana and drug
paraphernalia. Defendant was indicted for possession of marijuana and possession of
drug paraphernalia. Defendant filed a motion to suppress the evidence obtained from
the search, arguing that the helicopter surveillance of his property violated the federal
and state constitutions and that his consent was not voluntarily given. The district
court denied Defendant’s motion, finding that the helicopter flyover was “just barely
permissible” and that Defendant’s consent to the search was valid and not given under

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duress or coercion. Defendant then entered a conditional guilty plea, and this appeal
followed.
{6} 	Although this case was submitted to this panel in 2009, it was discovered that
a portion of the recording of the suppression hearing was missing. We ordered the
parties to attempt to reconstruct the missing portion, and they submitted their
stipulations in June 2011.
DISCUSSION
{7} 	In reviewing a district court’s decision regarding a motion to suppress, we
conduct a two-part analysis. “[W]e review any factual questions under a substantial
evidence standard and we review the application of law to the facts de novo.” State
v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (internal quotation marks
and citation omitted).
{8} 	On appeal, Defendant argues that (1) the helicopter surveillance of his property
violated the federal and state constitutions, (2) his consent to a search of his property
was not voluntarily given and was not purged from the taint of a Fourth Amendment
violation arising from the illegal air surveillance, and (3) the district court erroneously
denied Defendant’s motion for judicial view. 	Because the issue of Defendant’s
consent is dispositive here, we do not address the remaining issues.

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Validity of Consent
{9} 	Defendant argues that the district court erroneously determined that his consent
to a search of his property was voluntarily given under the Fourth Amendment. In a
letter decision, the district court entered factual findings that essentially tracked the
recording made by Officer Merrell, with one exception. 	The court found that
Defendant admitted there was marijuana in his greenhouse before he gave oral consent
to the search. In fact, according to the recording, the admission followed Defendant’s
consent. 	The court found that Defendant gave consent to the search, which it
concluded was valid under the Fourth Amendment.
{10} 	On appeal, Defendant contends, as he did below, that his consent was not
voluntarily given but the product of duress and coercion or acquiescence. Defendant
argues that his consent was coerced because his property was swarmed by heavily
armed police officers who were spread throughout his property and that a helicopter
was flying directly overhead throughout his encounter with officers. Defendant also
contends that he acquiesced in the search because he thought the officers were already
searching his property and because he was feeling ill.
{11} 	Generally, in order to prove that a warrantless search or seizure under the
Fourth Amendment was reasonable because it met the consent exception, the
prosecution bears the burden of proving that, under the totality of the circumstances,

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“the consent given to search [was] voluntary and not a product of duress, coercion, or
other vitiating factors.” State v. Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993
P.2d 74. The issue is a factual one that we review for substantial evidence. Id.; see
State v. Chapman, 1999-NMCA-106, ¶ 19, 127 N.M. 721, 986 P.2d 1122. “Although
we must view the evidence and inferences in the light most favorable to the
prosecution, the presumption of the trial court’s correctness does not replace the
requirements of proof.” State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495,
499 (Ct. App. 1987).
{12} 	On appeal, we undertake a three-tiered analysis in assessing the voluntariness
of a consent to search. First, the consent must be unequivocal and specific; second,
the consent must be given without duress or coercion; and third, the first two factors
must be viewed with a presumption against the waiver of constitutional rights. 	State
v. Flores, 1996-NMCA-059, ¶ 20, 122 N.M. 84, 920 P.2d 1038. To determine the
voluntariness of consent, we consider factors such as “the individual characteristics
of the defendant, the circumstances of the detention, and the manner in which the
police requested consent.” State v. Pierce, 2003-NMCA-117, ¶ 20, 134 N.M. 388, 77
P.3d 292. “Ultimately, the essential inquiry is whether [the d]efendant’s will had been
overborne.” Id.

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{13} 	Applying the three-tiered analysis mentioned above to this case, we conclude
that although Defendant gave specific and unequivocal consent to a search of his
property, the consent was given under duress and coercive circumstances. Applying
the presumption against a waiver of Defendant’s constitutional rights, we conclude
that the voluntariness of Defendant’s consent was not established by substantial
evidence and that the district court failed to consider the totality of circumstances. We
explain.
Unequivocal and Specific Consent
{14} 	Initially, we conclude that substantial evidence supports the district court’s
findings that Defendant’s oral and written consent to a search of his property was
specific and unequivocal at the time it was given to Officer Merrell. Both Defendant
and Officer Merrell testified at the suppression hearing that Defendant gave actual oral
and written consent to the search. Defendant’s written consent form was admitted as
evidence at the hearing, and Officer Merrell’s recording of the encounter confirms that
Defendant orally consented to a search of his greenhouse and residence and that he
signed the written consent form. See Chapman, 1999-NMCA-106, ¶ 20 (holding that
“[s]ubstantial evidence exist[ed] of clear and positive testimony that the consent was
specific and unequivocal” based on the uncontradicted, unimpeached testimony of the

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deputy); see also State v. Cohen, 103 N.M. 558, 563, 711 P.2d 3, 8 (1985) (holding
that consent was specific and unequivocal on the basis of a written consent form).
{15} 	This does not end the inquiry, however. 	We must determine whether
Defendant’s consent was given without duress or coercion, considering the totality of
the circumstances.
Duress or Coercion
{16} 	Although Defendant gave specific and unequivocal consent, we conclude that
the consent was given under duress and coercive circumstances. 	Defendant was
surrounded by numerous uniformed, armed law enforcement officers and several law
enforcement vehicles while a helicopter hovered overhead. 	Professor LaFave
observes in his treatise that, although such circumstances are not per se coercive,
“[t]he presence of a number of policemen is likely to suggest that the police are
contemplating an undertaking which does not depend upon the cooperation of the
individual from whom permission to search is being sought.” 4 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 62 (4th ed.
2004). Although only Officer Merrell approached Defendant to seek consent, it is
undisputed that the remaining officers were spread throughout the property and were
visible to Defendant during his exchange with Officer Merrell.

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{17} 	In its discussion of the lawfulness of the helicopter surveillance, the district
court commented that there was “merit to the claim that the police swooped in as if
they were in a state of war, searching for weapons or terrorist activity,” which “can
be terrifying and intimidating to most normal persons.” Although the district court
found the helicopter search “just barely permissible” on these facts, it did not address
these same facts in the context of whether the consent was coerced. In fact, the only
circumstance the district court mentioned in its discussion of coercion was Officer
Merrell’s statement that he would obtain a search warrant if Defendant did not consent
to the search. The court dismissed this circumstance as simply an “explanation of the
process that would be followed.”
{18} 	In our view, the district court failed to consider the totality of the coercive
circumstances brought to bear on Defendant. 	The obtrusive presence of officers,
vehicles, and a helicopter was at least one factor supporting a finding of coercion, and
the officers were heavily armed, carrying both their service handguns as well as AR-
15 semi-automatic weapons. 	Although Officer Merrell testified that, to his
knowledge, the officers did not draw or point their weapons, Defendant testified that
he could see the weapons. 	Thus, the display and number of weapons was an
additional factor pointing to coercion, one that the district court also did not address.

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Cf. Chapman, 1999-NMCA-106, ¶ 21 (giving as examples of coercion the improper
use of force or the threatening display of weapons before consent is given).
{19} 	Another factor pointing to duress or coercion is the evidence that Defendant
thought his refusal to consent was futile and that he acquiesced to a claim of authority
because he thought the officers were already searching his property. While the State
dismisses this argument because Officer Merrell explained that the officers were
approaching the greenhouse as part of their normal safety procedure, Officer Merrell
acknowledged that Defendant had the perception that the officers had already started
to search his property. Officer Merrell’s testimony and the recording of the encounter
also establish that Officer Merrell had to tell the officers to back off. By appearing
to have already started the search, the officers communicated to Defendant that they
were authorized to make the search even without consent. 	See LaFave, supra, §
8.2(a), at 60-61 (explaining that “if the police have already attempted to make the
search without the person’s cooperation, . . . they have . . . communicated to the
individual a claim that they are authorized to make the search even without consent”
(footnote omitted)).
{20} 	Finally, it is significant that Officer Merrell communicated to Defendant that
he would obtain a search warrant if Defendant declined to consent to the search. The
district court dismissed the coercive effect of this communication in reliance on State

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v. Shaulis-Powell, 1999-NMCA-090, 127 N.M. 667, 986 P.2d 463. In Shaulis-Powell,
the officer testified that he told the defendants that he “felt” or “believed” that he had
enough information to obtain a search warrant if consent was not given. 	Id. ¶ 11
(internal quotation marks omitted). 	In that case, this Court did not construe the
officer’s statement as an assertion that he could get a warrant, but as the officer’s
assessment of the situation. 	Id. 	Here, the district court likened Officer Merrell’s
response to the statement given by the officer in Shaulis-Powell. On appeal, however,
we conclude that 	Shaulis-Powell 	is distinguishable because Officer Merrell’s
statements were more assertive than those of the officer in Shaulis-Powell. Although
Officer Merrell told Defendant several times that he did not have to give consent, he
stated that the execution of a warrant would only take about thirty minutes and when
Defendant responded that he guessed that he really did not have any options at that
point, Officer Merrell did not respond at all. Thus, Officer Merrell appeared to assert
that it would be futile to refuse consent. See generally LaFave, supra, § 8.2(c), at 69-
75 (discussing the distinction between threatening to seek and threatening to obtain
a search warrant). As a result, there was evidence that Defendant thought his refusal
to consent was futile and that he acquiesced to a claim of authority.
{21} 	Because the district court did not properly consider the totality of the
circumstances, we determine that the State failed to meet its burden of demonstrating

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that Defendant’s consent was voluntary. 	Defendant was subjected to coercive
circumstances and was under duress when he gave consent. See Dale v. State, 2002
OK CR 1, ¶¶ 4-8, 38 P.3d 910, 911-12 (holding that the defendant’s consent to search
his premises was involuntary considering the totality of the circumstances, including
an unlawful entry onto his property by climbing over a locked gate, the number of
agents participating, the fact that they were armed with both pistols and semi-
automatic weapons, and the presence of a police helicopter immediately overhead
during the encounter). 	We conclude that the district court erred in denying
Defendant’s motion to suppress.
CONCLUSION
{22} 	For the foregoing reasons, we reverse and remand to the district court for
proceedings consistent with this Opinion.
{23} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

RODERICK T. KENNEDY, J udge

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