January 7, 2020- State of New Mexico v. Anthony Baca, No. A-1-CA-36722

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-36722	4
ANTHONY BACA,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Fred Van Soelen, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Lauren J. Wolongevicz, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Caitlin C.M. Smith, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
Court of Appeals of New Mexico
Filed 1/7/2020 8:33 AM

2
MEMORANDUM OPINION	1
IVES, Judge.	2
{1} 	Defendant Anthony Baca was convicted of possessing methamphetamine,	3
NMSA 	1978, 	Section 	30-31-23(E) 	(2011, 	amended 	2019); 1 possessing 	drug	4
paraphernalia, 	NMSA 	1978, 	Section 	30-31-25.1(A) 	(2001, 	amended 	2019); 2
5
resisting or evading an officer, NMSA 1978, Section 30-22-1(B) (1981); and assault	6
on a peace officer, NMSA 1978, Section 30-22-21 (1971). He appeals only his drug	7
and 	paraphernalia 	possession 	convictions, 	arguing 	that 	(1) 	the 	district 	court	8
erroneously denied his motion to suppress and (2) principles of double jeopardy	9
prohibit him from being convicted for possessing both drugs and paraphernalia	10
under the facts of this case. Because we disagree with Defendant’s first point but	11
agree with his second, we affirm his conviction for possessing methamphetamine	12
and remand his case to the district court to vacate his conviction and sentence for	13
possessing paraphernalia.	14
1 All references to Section 30-31-23(E) are to the 2011 version, which was
in effect at the time of Defendant’s trial.
2 All references to Section 30-31-25.1(A) are to the 2001 version, which was
in effect at the time of Defendant’s trial.

3
DISCUSSION3
1
I. 	The District Court Did Not Err By Denying the Motion to Suppress	2
A. 	Standard of Review	3
{2} 	Our “review of a district court’s decision regarding a motion to suppress	4
evidence involves mixed questions of fact and law.” State v. Funderburg, 2008-	5
NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922 (internal quotation marks and citation	6
omitted). Because neither party challenges the district court’s findings of fact, we	7
review only the legal conclusions the district court drew in denying Defendant’s	8
motion to suppress. State v. Morales, 2005-NMCA-027, ¶ 8, 137 N.M. 73, 107 P.3d	9
513. We “review the entire record to determine whether there was sufficient	10
evidence to support the [district] court’s denial of the motion to suppress.” State v.	11
Monafo, 2016-NMCA-092, ¶ 10, 384 P.3d 134 (internal quotation marks and citation	12
omitted). Our task is to review the application of the law to the unchallenged facts,	13
“making a de novo determination of the constitutional reasonableness of a search or	14
seizure.” State v. Olson, 2012-NMSC-035, ¶ 9, 285 P.3d 1066 (internal quotation	15
marks and citation omitted).	16
3 Because 	the 	parties 	are 	familiar 	with 	the 	factual 	background, 	this
memorandum opinion does not include a background section. We describe the
pertinent facts in the discussion section.

4
B. 	Analysis	1
{3} 	Defendant argues that the district court erroneously denied his motion to	2
suppress the methamphetamine and other evidence seized incident to his arrest	3
because the officer detained him without reasonable suspicion to believe he had	4
committed a crime. The State contends that the officer had reasonable suspicion. In	5
the alternative, the State argues even if there was not reasonable suspicion, the	6
exclusionary rule does not apply because the seizure of evidence was attenuated	7
from Defendant’s detention. Assuming without deciding that the officer lacked	8
reasonable suspicion to detain Defendant, we agree with the State’s alternative	9
argument regarding attenuation. Specifically, we conclude that (1) the Fourth	10
Amendment of the United States Constitution does not require suppression because,	11
under 	United 	States 	Supreme 	Court 	precedent, 	the 	pre-existing 	warrant 	for	12
Defendant’s arrest broke the chain of causation between the detention and the search	13
that revealed the evidence and (2) Article II, Section 10 of the New Mexico	14
Constitution does not require suppression because, under New Mexico Supreme	15
Court precedent, Defendant’s commission of crimes after he was detained but before	16
the drugs and paraphernalia were seized broke the chain of causation. We explain	17
the reasons for each conclusion in turn.	18

5
1. 	Fourth Amendment of the United States Constitution	1
{4} 	We see no meaningful distinction between Defendant’s case and Utah v.	2
Strieff, __ U.S. __, 136 S. Ct. 2056, 2061 (2016), in which the United States Supreme	3
Court declined to apply the exclusionary rule based on the attenuation doctrine when	4
the officer discovered a pre-existing warrant for the defendant’s arrest after detaining	5
him but before searching him. The Court concluded that, under the Fourth	6
Amendment, the attenuation doctrine applies when the intervening circumstance is	7
“a valid, pre-existing, and untainted arrest warrant.” Id. 2061-62, see also State v.	8
Edwards, 2019-NMCA-070, ¶ 1, 452 P.3d 413 (applying Strieff). Strieff does not	9
stand for the proposition that such warrants always break the chain of causation	10
between an unconstitutional detention and the seizure of evidence pursuant to a	11
search incident to arrest, rendering the exclusionary rule categorically inapplicable.	12
However, Strieff’s holding and reasoning support the conclusion that, under the	13
Fourth Amendment, the exclusionary rule does not apply to the evidence seized from	14
Defendant. The Strieff analysis of the three factors pertinent to the attenuation	15
determination, 136 S. Ct. at 2062-63, dictates our analysis here.	16
{5} 	Here, as in Strieff, the first factor—the time between the detention and the	17
search—weighs in favor of suppression. See id. at 2062. Defendant asserts that these	18
events occurred “in a matter of minutes,” which the State does not dispute. The	19
sequence of events appears consistent with Defendant’s assertion, and we have no	20

6
basis to conclude that “substantial time elapse[d] between [the detention] and when	1
the evidence [was] obtained.” Id. 	Accordingly, without additional information	2
pertinent to this factor, we treat it as favoring suppression. See Edwards, 2019-	3
NMCA-070, ¶ 11 (“Because we lack information that would assist us in determining	4
[the first attenuation test] factor, we conclude that it favors suppression.”).	5
{6} 	However, in both cases “the second factor, the presence of intervening	6
circumstances, strongly favors the State.” Strieff, 136 S. Ct. at 2062. This is because	7
the officer in each case discovered a valid warrant that “predated [the officer’s]	8
investigation[]” 	and 	“was 	entirely 	unconnected 	with 	the 	stop[,]” 	and 	upon	9
discovering the warrant, the officer “had an obligation to arrest [the defendant].” Id.	10
at 2062; accord Edwards, 2019-NMCA-070, ¶ 12. The officer in each case was then	11
permitted to conduct a search incident to arrest. Strieff, 136 S. Ct. at 2063.	12
{7} 	Strieff also compels us to conclude that the third factor weighs in favor of	13
applying the attenuation doctrine and against suppression. Defendant has not	14
persuaded us that the officer who searched him engaged in “police misconduct” that	15
was “purposeful or flagrant.” Id. “For the violation to be flagrant, more severe police	16
misconduct is required than the mere absence of proper cause for the seizure.” Id. at	17
2064. Defendant argues that the officer “should have known that he did not have	18
reasonable suspicion to stop [Defendant].” Even if Defendant is correct, whether the	19
officer should have known—i.e., whether the officer was negligent—is not the	20

7
Fourth Amendment standard. The United States Supreme Court has concluded that	1
conduct that “was at most negligent” and based on “errors in judgment” does not	2
suffice. 	Id. 	at 2063. In Defendant’s case, having assumed the detention was	3
unjustified, we conclude that the officer detained Defendant based on errors in	4
judgment about whether the facts amounted to reasonable suspicion. If the officer	5
lacked reasonable suspicion, it was because he misjudged (1) the value of the	6
information he had about the prevalence of burglaries in the location where he	7
encountered Defendant and at the time of day when the encounter occurred and (2)	8
the appropriate level of suspicion associated with his observations of Defendant,	9
including his walking on the lawn of a residence and then in between two residences	10
in the wee hours of the morning wearing a backpack and dark clothing. The United	11
States Supreme Court has held that such errors “hardly rise to a purposeful or	12
flagrant violation of [a defendant’s] Fourth Amendment rights.” Id.	13
{8} 	When we consider all three factors together, we conclude, as the United States	14
Supreme Court did in Strieff and as we did in Edwards, that the exclusionary rule	15
does not apply. Only one of the factors weighs in favor of suppression, and the other	16
two weigh against suppression, one of them heavily. We therefore hold that the pre-	17
existing arrest warrant broke the chain of causation, attenuating the connection	18
between Defendant’s detention and the discovery of the evidence. Accordingly, the	19
Fourth Amendment did not require the district court to suppress the evidence.	20

8
2. 	Article II, Section 10 of the New Mexico Constitution	1
{9} 	Defendant contends that we should reach a different conclusion under Article	2
II, Section 10 of the New Mexico Constitution. Defendant’s argument in support of	3
this contention and the State’s response raise questions that neither the New Mexico	4
Supreme Court nor this Court has decided regarding arrest warrants and the	5
attenuation doctrine: (1) whether a valid, pre-existing, untainted arrest warrant may	6
ever constitute an intervening cause that breaks the chain of causation under Article	7
II, Section 10 and (2) if so, whether our state constitutional analysis on this particular	8
attenuation issue should track the Fourth Amendment analysis. However, we need	9
not reach those questions to decide Defendant’s appeal because, bound by New	10
Mexico 	Supreme 	Court 	precedent, 	we 	conclude 	that 	the 	crimes 	Defendant	11
committed after the officer detained him broke the chain of causation.	12
{10} 	In State v. Tapia, 2018-NMSC-017, ¶¶ 43-49, 414 P.3d 332, our Supreme	13
Court adopted into state constitutional jurisprudence what is often referred to as the	14
“new crimes doctrine,” under which crimes that a person commits after he has been	15
unlawfully detained may serve as intervening events that break the chain of	16
causation. The Court rejected the argument that federal attenuation analysis is flawed	17
in the context of new crimes, concluding that the three-part test described in Strieff	18
applies when a person commits new crimes after being detained unconstitutionally.	19
Id. ¶ 47. The Court explained that a violation of a person’s constitutional rights “does	20

9
not confer upon [that person] a license to commit new crimes, whether they be	1
physical resistance or more passive forms of resistance to government authority.”	2
Id. ¶ 48.	3
{11} 	Under Tapia, the new crimes doctrine applies here because Defendant was	4
convicted of evading or resisting a peace officer and assaulting a peace officer based	5
on his conduct after the officer detained him but before the officer conducted the	6
search that revealed the methamphetamine and paraphernalia. Accordingly, to	7
determine whether suppression is appropriate, Tapia requires us to rely on the three-	8
part test that the United States Supreme Court used in Strieff. That test yields the	9
same result for Defendant’s new crimes that it yielded for his arrest warrant. Because	10
the analysis is identical, we need not repeat it. The first factor weighs in favor of	11
suppression, but the second weighs heavily against suppression, and the third weighs	12
against 	suppression. 	We 	therefore 	hold, 	in 	accordance 	with 	Tapia, 	that 	the	13
exclusionary rule does not apply here pursuant to the new crimes doctrine.	14
{12} 	Defendant contends that the new crimes doctrine should only allow admission	15
of the evidence of the new crimes themselves—resisting or evading an officer and	16
assault on an officer—and that the drugs and paraphernalia that the officer seized	17
after the new crimes were committed must be suppressed. We disagree. After	18
Defendant committed the new crimes, the officer had the authority to arrest him and	19
search him incident to arrest without running afoul of Article II, Section 10. See State	20

10
v. Gutierrez, 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94 P.3d 18 (recognizing that	1
searches incident to arrest are permissible under Article II, Section 10). The officer	2
conducted such a search and discovered drugs and paraphernalia. We therefore	3
conclude, based on the arguments presented, that the evidence should not be	4
suppressed because its seizure was attenuated from the detention.	5
For these reasons, Article II, Section 10 does not require suppression of the	6
drugs and paraphernalia seized from Defendant after he committed new crimes.	7
II. 	Defendant’s Convictions for Possession of Drugs and Possession of Drug	8
Paraphernalia Violate Principles of Double Jeopardy	9
{13} 	Defendant argues that his conviction for possession of methamphetamine and	10
his conviction for possessing drug paraphernalia violate double jeopardy principles.	11
Specifically, Defendant argues that, under State v. Almeida, 2008-NMCA-068, 144	12
N.M. 235, 185 P.3d 1085, he may not be convicted of both offenses based on his	13
unitary act of possessing cigarettes that contained methamphetamine. Reviewing this	14
issue de novo, id. ¶ 4, under our ordinary methodology for double description claims,	15
id. ¶ 6, we agree.	16
{14} 	In Almeida, Defendant made a double jeopardy challenge to his convictions	17
for possessing methamphetamine and possessing drug paraphernalia, specifically the	18
plastic baggie in which the methamphetamine was stored. Id. ¶¶ 2-3. We concluded	19
that (1) Defendant’s conduct in possessing the baggie and the methamphetamine was	20
unitary, id. ¶ 7; and (2) the Legislature did not intend “to punish separately the	21

11
possession of a controlled substance and the possession of paraphernalia if a	1
container only becomes paraphernalia when it is used to hold the personal supply of	2
the person charged with possession of the controlled substance.” Id. ¶ 18. In support	3
of the second conclusion, we explained that “when the drug paraphernalia consists	4
of a common, everyday item and when that paraphernalia is only identifiable as such	5
because it is a container for a personal supply of a controlled substance, we do not	6
believe the [L]egislature intended pyramid penalties for the single act of possession	7
of drugs.” Id. ¶ 20. We therefore held that principles of double jeopardy prohibited	8
the defendant from being convicted of both drug possession and paraphernalia	9
possession, and we vacated his paraphernalia conviction. Id. ¶¶ 21, 23.	10
{15} 	Defendant’s case is analogous to Almeida. Both cases involve convictions for	11
possession of drugs and possession of paraphernalia based on possession of	12
methamphetamine stored in common, everyday items—in Almeida, a baggie, and in	13
Defendant’s case, cigarettes.4 Like the baggie in Almeida, the cigarettes in this case	14
fit the statutory definition of paraphernalia only because they served as containers	15
4 The 	jury 	instruction 	included 	alternative 	bases 	for 	the 	paraphernalia
conviction: that “Defendant possessed syringes, a rubber band or cigarettes.” But the
jury returned a general verdict, and “[t]he double jeopardy clause requires a
conviction under a general verdict to be reversed if one of the alternative bases for
conviction provided in the jury instructions is ‘legally inadequate’ because it violates
a defendant’s constitutional right to be free from double jeopardy.” Kersey v. Hatch,
2010-NMSC-020, ¶ 12, 148 N.M. 381, 237 P.3d 683 (internal quotation marks and
citation omitted). Because one of the bases for Defendant’s conviction—possession
of cigarettes—is legally inadequate, the conviction cannot stand.

12
for the methamphetamine. See NMSA 1978 § 30-31-2(V)(10) (2009, amended	1
2019)5 (defining paraphernalia to include, among other items, “containers and other	2
objects used, intended for use or designed for use in storing or concealing controlled	3
substances or controlled substance analogs”). It follows that Defendant’s possession	4
of cigarettes containing methamphetamine was unitary conduct that the Legislature	5
did not intend to punish under two separate statutes.	6
{16} 	The State asks us to distinguish Defendant’s case from Almeida, asserting that	7
the 	cigarettes 	“were 	altered 	specifically 	to 	store 	and 	conceal 	the 	controlled	8
substance[]” and were “being used outside the scope of their common purpose.” The	9
State has not cited any authority to support its argument, and we assume no such	10
authority exists. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676	11
P.2d 1329. Nor has the State adequately developed any argument that the factual	12
distinctions it draws with respect to the cigarettes have any legal significance here.	13
We decline to develop such an argument for the State and therefore reject its	14
invitation to distinguish Almeida. See Elane Photography, LLC v. Willock, 2013-	15
NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed issue, [we]	16
would have to develop the arguments [ourselves], effectively performing the parties’	17
work for them. This creates a strain on judicial resources and a substantial risk of	18
5 All references to Section 30-31-2(V) are to the 2009 version, which was in
effect in 2015 when Defendant was charged.

13
error. It is of no benefit either to the parties or to future litigants for this Court to	1
promulgate case law based on our own speculation rather than the parties’ carefully	2
considered arguments.” (citation omitted)).	3
{17} 	Because we conclude, based on the arguments presented here, that principles	4
of double jeopardy prohibit Defendant from being convicted and punished for	5
possessing both drugs and paraphernalia, the district court must vacate Defendant’s	6
conviction for possessing paraphernalia and his sentence for that crime.	7
CONCLUSION	8
{18} 	We reverse Defendant’s conviction for possession of paraphernalia and	9
remand to the district court to vacate that conviction and resentence Defendant	10
accordingly. We affirm in all other respects.	11
{19} 	IT IS SO ORDERED.	12
_____________________________	13
ZACHARY A. IVES, Judge	14
WE CONCUR:	15
___________________________	16
J. MILES HANISEE, Chief Judge	17
___________________________	18
KRISTINA BOGARDUS, Judge	19