A-1-CA-35592 | Omnilex

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Court of Appeals of New Mexico
Filed 8/29/2019 3:23 PM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 8/29/2019 3:23 PM
Plaintiff-Appellant, A. ~fe4
Mark Reynolds
V. No. A-1-CA-35592
ROSS SANDERS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
Daniel A. Bryant, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender

Kimberly Chavez-Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellee

MEMORANDUM OPINION

VARGAS, Judge.

{1} The State seeks reversal of the district court’s decision to suppress evidence

obtained through an inventory search of Defendant’s car after Defendant was |

arrested pursuant to a bench warrant. The district court agreed with Defendant’s

argument that the bench warrant was invalid, rendering the search unreasonable. On
appeal, the State makes several arguments that were not raised before the district
court and reiterates the argument made to the district court that the exclusionary rule
is not triggered by the court’s failure to give a defendant proper notice of a hearing.
We conclude that the State has failed to demonstrate reversible error. We affirm.
BACKGROUND

23 This case involves three separate cases from Lincoln County—one in
municipal court, one in magistrate court, and this appeal from district court. This
being a memorandum opinion, we limit our recitation of the facts to only those
necessary to our decision in this case.

3} The Ruidoso Downs Police Department arrested and booked Defendant on
April 1, 2015, on two outstanding warrants: a Ruidoso municipal court warrant
(Ruidoso warrant), as well as a Lincoln County magistrate court warrant (Lincoln
County warrant). On April 3, 2015, the Ruidoso municipal court entered a release
order (release order) related to the Ruidoso warrant releasing Defendant on his own
recognizance with the stipulation that Defendant appear in court on April 6, 2015.
Defendant did not appear on that date. While the release order contains a section for
Defendant’s approval of his conditions of release, the order does not contain
Defendant’s signature. Because Defendant had not yet paid the bond on the Lincoln

County warrant, however, he was still in custody throughout this time. On May 1,

2015, the Lincoln County magistrate court issued a receipt acknowledging that on

that date, Defendant apparently paid the bond amount required on the charges that
gave rise to the Lincoln County warrant. The Lincoln County magistrate court issued
a receipt for the bond and Defendant was released from jail, approximately three
weeks after he was supposed to appear in Ruidoso municipal court on April 6,

{4} On May 6, 2015, the Ruidoso municipal court issued a bench warrant for
Defendant’s arrest, checking the box for “failure to appear at the time and place
ordered” as the reason for issuing the warrant. This bench warrant was filed under
the same case number as the Ruidoso municipal court’s April 3, 2015 release order
and apparently issued as a result of Defendant’s failure to appear at the April 6, 2015
hearing while he was still in custody.

§5} A week later, on May 13, 2015, a deputy with the Lincoln County sheriff's
office conducted a traffic stop on a vehicle that Defendant was driving. The deputy
identified Defendant, discovered that there was an active bench warrant for
Defendant’s arrest, and arrested Defendant pursuant to that bench warrant. !
Following Defendant’s arrest, the deputy conducted an inventory of the vehicle and

discovered several syringes and a substance that later field-tested positive as

' The State conceded that had it not been for the bench warrant, the deputy
would not have arrested Defendant.

methamphetamine. Defendant was charged in district court with trafficking a |
controlled substance and possession of drug paraphernalia.

{6} Defendant filed a motion seeking to suppress the evidence obtained following.
the execution of the bench warrant, arguing that the bench warrant was “invalid and
unreasonable on its face.” Specifically, Defendant argued that the Ruidoso municipal
court that issued the bench warrant failed to give him proper notice of the April 6,
2015 hearing, that the warrant was issued because Defendant failed to appear at that
hearing, and that given the lack of notice, the warrant was invalid and could not
provide a basis for his arrest and the resulting inventory search. Defendant’s motion
to suppress contained four exhibits: (1) a booking sheet dated April 1, 2015, stating
that Defendant was arrested on the Ruidoso warrant and the Lincoln County warrant;
(2) the release order referencing a hearing to be held three days later on April 6,
2015; (3) the Lincoln County magistrate court receipt acknowledging payment of
the bond amount for the charge associated with the Lincoln County warrant; and (4)
the Ruidoso municipal court bench warrant dated May 6, 2015, listing failure to
appear twice among the offenses for which the warrant was being issued.

{7} During the hearing on Defendant’s motion to suppress, both parties declined
to present any additional evidence, relying primarily on the exhibits to Defendant’s
motion. At the hearing, the State conceded that Defendant was incarcerated on April

6, the time of the scheduled hearing in Ruidoso municipal court, and the detention

center never received notice to transport the Defendant to the April 6 hearing.
Accordingly, the detention center “did not transport Defendant over for that April
6th hearing in which the bench warrant was issued.” While conceding that “there is
an issue with the notice,” the State nonetheless argued that the warrant remained
valid because “Defendant did in fact fail to appear for the April 6th hearing.”

{8} | Atthe close of the hearing, the district court found that the release order issued
by the clerk of the Ruidoso municipal court clearly reflected an order that Defendant
appear in court on April 6, 2015; however, the order did not reflect that Defendant
was present in court when the release order was issued and he did not acknowledge
receipt of the release order by signing it. Based on the documents attached to
Defendant’s motion and the concessions made by the State, the district court found
that Defendant did not have notice of the April 6, 2015 hearing; and, even if he had
had notice, he was in the State’s custody without a transport order, preventing him
from attending the hearing.

9} The district court concluded that the bench warrant issued by the municipal
court was “an invalid bench warrant because it was predicated on improper notice.”
The district court granted Defendant’s motion, suppressed the evidence, and

dismissed the case against Defendant without prejudice. The State appealed.

DISCUSSION

410} The State makes five arguments on appeal: (1) that Defendant failed to prove
that it was Defendant’s failure to appear at the April 6, 2015 hearing that resulted in
the bench warrant leading to Defendant’s May 13, 2015 arrest; (2) that the district
court erred by concluding that the Ruidoso municipal court abused its discretion
when it issued a bench warrant for Defendant’s arrest; (3) that the bench warrant was
issued in order to “re-arrest” Defendant after his “unauthorized release” on May 1,
2015, rendering notice of the April 6, 2015 hearing irrelevant; (4) that the district
court erred in concluding the bench warrant was invalid because Defendant failed to
present evidence that the bench warrant was not issued to address other failures to
appear or to call Defendant before the court to answer the charges against him; and,
(5) that a court’s failure to provide notice is a matter of due process, and not one that
invokes the exclusionary rule under the Fourth Amendment or Article II, Section 10
of the New Mexico Constitution.* We begin by discussing the State’s burden of
proof as it existed in the district court. We then consider whether the State properly
preserved its appellate arguments and address any remaining issues according to the

narrow scope of our appellate review.

* The State does not challenge the applicability of Article II, Section 10 of the
New Mexico Constitution to the matters argued in this case or contend that
Defendant failed to present his motion under both the state and federal constitutions.

A. Burden of Proof

{13 Pervasive throughout the State’s argument is its claim that Defendant failed
to meet his burden of proof by providing evidence of the circumstances surrounding
the Ruidoso municipal court’s release order, his failure to appear at the April 6, 2015
hearing, and the issuance of the bench warrant. These factual inadequacies, the State
argues, render the district court’s decision reversible. However, because this case
centers on the suppression of the fruits of a warrantless inventory search resulting
from the execution ofan arrest warrant, it was the State’s burden to justify its search.
In matters challenging an illegal search, defendants generally have the burden of|
raising “an issue as to their illegal search and seizure claims[,]” but once they do so,
“the burden shifts to the state to justify the warrantless search.” State v. Baldonado,
1992-NMCA-140, ¢ 19, 115 N.M. 106, 847 P.2d 751; see State v. Leyva, 2011-
NMSC-009, § 30, 149 N.M. 435, 250 P.3d 861 (stating that the burden of proving
the reasonableness of a search or seizure is on the state). Here, Defendant challenged
the legality of the search when he filed his motion to suppress, arguing that the
warrantless inventory search was unconstitutional because the arrest warrant that | —
initiated the search was invalid. See State v. Miller, 1997-NMCA-060, { 6, 123 N.M.
507, 943 P.2d 541 (“Because there was no valid arrest, there would not have been
an inventory search during which the items would have been inevitably

discovered.”’); see also State v. Lujan, 2008-NMCA-003, 4 9, 143 N.M. 233, 175

P.3d 327 (acknowledging the application of exclusionary rule “where the challenged

evidence was obtained after an illegal arrest or detention” (internal quotation marks

and citation omitted)). The burden then shifted to the State to justify the warrantless

inventory search, Baldonado, 1992-NMCA-140, 4 9, by showing the bench warrant
and the resulting arrest were valid, rendering the search reasonable. See State v.

Davis, 2018-NMSC-001, 7 12, 408 P.3d 576 (acknowledging that an inventory
search is valid if, among other things, the police have control or custody of the object
of the search and the search is reasonable); State v. Byrom, 2018-NMCA-016, § 14,

412 P.3d 1109 (listing cases in which arrest of the defendant preceded inventory
search and enabled police custody of items, including vehicles).

B. The State Failed to Preserve All But One of Its Arguments

(123 In its response to Defendant’s motion to suppress, the State argued only that
it would be unreasonable to require law enforcement to inquire into the propriety of.
an arrest warrant before executing upon it. In argument before the district court, the
State argued only that notwithstanding that there was “an issue with the notice,” the
warrant was valid “due to the fact that . .. Defendant did fail to appear at the April
6th hearing.” On appeal, however, the State raises several new arguments that were
not raised before the district court.

{13} First, the State argues that Defendant failed to prove that the bench warrant

was issued for Defendant’s failure to appear at the April 6, 2015 hearing.

Specifically, the State contends that because the bench warrant lists failure to appear
twice as an underlying offense, the bench warrant could have been issued for
Defendant’s failure to appear at a hearing other than the April 6, 2015 hearing, for
which he could have had proper notice. 3 The State also argues that the bench warrant
could have been issued simply to secure Defendant’s appearance for the traffic
violations that were listed as underlying offenses in the warrant. The State neither
included this argument in its response to Defendant’s motion to suppress, nor
presented this theory to the district court during its argument at the suppression
hearing.

414} Appellate courts generally do not consider on appeal arguments that are not
raised before the district court. See State v. Lucero, 1999-NMCA-102, J 43, 127
N.M. 672, 986 P.2d 468 (declining to review unpreserved argument and citing to a
collection of cases requiring preservation for appellate review). “To preserve an
issue for [appellate review], it must appear that a ruling or decision by the [district]
court was fairly invoked.” Rule 12-321 NMRA; see Lasen, Inc. v. Tadjikov, __-
NMCA-__,95,___—~P.3d__—s(No. A-1-CA-34744, Dec. 21, 2018) (“To preserve
an issue for review on appeal, it must appear that the appellant fairly invoked a ruling

of the district court on the same grounds argued in the appellate court.” (emphasis

3 Nothing in the record establishes that any other hearings ever occurred in the
municipal court case.

added) (alterations, internal quotation marks, and citation omitted). “Absent a
showing of jurisdictional error a reviewing court will not reverse a [district] court on
a ground that the [district] court was not asked to consider nor had the opportunity
to rule upon.” State v. Casteneda, 1982-NMCA-046, § 43, 97 N.M. 670, 642 P.2d
1129. “The primary purposes for the preservation rule are: (1) to specifically alert
the district court to a claim of error so that any mistake can be corrected at that time,
(2) to allow the opposing party a fair opportunity to respond to the claim of error and
to show why the district court should rule against that claim, and (3) to create a
record sufficient to allow this Court to make an informed decision regarding the |
contested issue.” State v. Allen, 2014-NMCA-047, § 9, 323 P.3d 925 (internal
quotation marks and citation omitted).

{15} The State’s failure to alert the district court to the possibility that the bench
warrant could have been issued for a reason other than Defendant’s failure to appear
prevented the district court from seeking clarification from the parties regarding the
language of the bench warrant or passing upon that question at all. Defendant was
never given a fair opportunity to respond to the State’s newly-made argument
regarding ambiguity in the warrant or to clarify the matter by providing additional
evidence. This Court is therefore left to review a record that was not created to
address the question the State now presents on appeal. Because the State did not

raise and the district court did not rule on the question of whether the bench warrant

was issued for Defendant’s failure to appear at a hearing other than the April 6, 2015
hearing, that matter is not before us on appeal.

416} Next, the State argues that the May 13, 2015 bench warrant was issued in
order to “re-arrest” Defendant after his “unauthorized release” on May 1, 2015.
Again, the State did not present this theory to the district court in its response to
Defendant’s motion to suppress or in its argument to the district court. The district
court was never given an opportunity to consider the State’s argument and,
consequently, we do not have a record sufficient to allow us to make an informed
decision on the matter. The State’s argument is therefore unpreserved, and we cannot
properly consider it on appeal.

{17}. The State also argues that the district court erred by concluding that the three
days between the order issued on April 3, 2015, and the hearing on April 6, 2015,
was an inadequate amount of time to allow for proper notice. The State argues that
this matter was preserved because it presented argument to the district court
regarding the validity of the warrant.

18} Because the purposes for preservation—to alert the court and opposing party
to the nature of the argument, allow for opportunity for a response, and create an
adequate record for appellate review—require some specificity in the arguments
made to the district court, we conclude that the State failed to preserve this argument.

See Lasen, Inc., __-NMCA-___, § 5 (ruling that appellant must fairly invoke a

ruling of the district court on the same grounds argued on appeal); Allen, 2014-
NMCA-047, 79 (identifying one purpose of preservation rule as “to specifically alert
the district court to a claim of error” (emphasis added)). The State’s argument related
to the validity of the warrant was limited to the claim that the warrant was signed
and appeared facially valid, not that the warrant was valid because notice of the April
6, 2015 hearing was adequate. In fact, the State effectively conceded that notice was
inadequate at the hearing before the district court, acknowledging, “there is an issue
with the notice. The facts are what they are; the State can’t argue against those facts,
judge.” The State took the position that despite the inadequacy of the notice, the
exclusionary rule should not apply. We cannot conclude that the State’s argument
that notice was proper was preserved when it conceded before the district court that
“there is an issue with the notice.”

{19} Finally, while we acknowledge that the arguments of counsel are not
evidence, State v. Martinez, 2015-NMCA-O13, { 24, 343 P.3d 194, neither can a
party’s factual representations to the district court be disavowed on appeal in favor
of what counsel deems a better argument. Cf State v. Samora, 2016-NMSC-031,
q 44, 387 P.3d 230 (concluding that the defendant failed to preserve argument that
trial court improperly limited cross-examination regarding prior convictions where
defense counsel, on the record during a pretrial hearing, declined. to introduce

evidence of prior convictions); State v. Dominguez, 2008-NMCA-029, 4 13, 143

N.M. 549, 178 P.3d 834 (noting that any factual misunderstanding the district court
may have had was invited by the state, and this Court generally “will not allow the
[s]tate to invite error and then complain of it”); State v. Franco, 2004-NMCA-099,
q 21, 136 N.M. 204, 96 P.3d 329 (rejecting the state’s argument because it “was not
the basis on which the case was tried, and we will not allow the [s]tate to change its
position on appeal”), rev'd on other grounds, 2005-NMSC-013, 9 1, 137 N.M. 447,
112 P.3d 1104. The State’s position before the district court did nothing to alert the
district court to the possibility that three days was a sufficient amount of time to
provide Defendant with notice. As such, the State failed to preserve this argument
and the question of whether notice was proper is not before us. We now turn to the
State’s remaining claim that was properly preserved in the district court.

C. The District Court Properly Excluded the Evidence

20} The State argues, as it did before the district court, that a challenge to the
validity of a bench warrant based on a lack of notice is not subject to application of
the exclusionary rule. We disagree, and in doing so, find the reasoning of State v.
Gurrola, 1995-NMCA-138, 121 N.M. 34, 908 P.2d 264, persuasive. In Gurrola, the
defendant was arrested based on an outstanding bench warrant, and while conducting
a search incident to arrest and inventory search, officers discovered marijuana in the
defendant’s vehicle. Jd. | 4. The defendant filed a motion to suppress, arguing that

the bench warrant under which he was arrested was invalid because it was not signed

by a judge and the evidence seized as a result of that arrest was the fruit of an illegal
arrest. Jd. 3. We agreed with the defendant, holding that the warrant provided “an
invalid basis for an arrest.” /d. { 9. Turning then to assess “the legal consequences
of that invalid arrest[,]” we applied the New Mexico Constitution and its rejection
of the federal good faith exception to the exclusionary rule, noted that “evidence
seized pursuant to an illegal warrant must still be suppressed[,]” and concluded that
the marijuana could not be used as evidence. Id. 4 10; see also State v. Gutierrez,
1993-NMSC-062, 7 1, 116 N.M. 431, 863 P.2d 1052 (holding that evidence obtained |
by virtue of an invalid search warrant cannot be admitted under the exclusionary
rule’s good faith exception, and declining to follow United States v. Leon, 468 U.S.
897 (1984), which held that “when an officer’s reliance on a warrant that is later
invalidated is objectively reasonable, exclusion of evidence is not necessary”).

21}. In this case, the State argues that the lack of adequate notice of the April 6,
2015 hearing was a due process violation and a due process violation does not
implicate the exclusionary rule. We disagree. The State’s failure to give proper
notice of the April 6, 2015 hearing triggered a wrongful arrest that resulted in an
unreasonable warrantléss search contrary to Article II, Section 10. “Denying the
government the fruits of unconstitutional conduct . . . best effectuates the

constitutional proscription of unreasonable searches and seizures by preserving the

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rights of the accused to the same extent as if the government’s officers had stayed
within the law.” Gutierrez, 1993-NMSC-062, 7 55.

{22} Regarding the applicability of the exclusionary rule to the execution of an
invalid warrant, we find Gurrola to be directly analogous to this case. Furthermore,
nothing in our caselaw suggests that Gurrola’s holding—that the fruits of an invalid
warrant are subject to exclusion under Article II, Section 10—is limited to certain
warrant defects. See Lujan, 2008-NMCA-003, §f 16-17 (declining to create
distinction based on warrant defects, analogizing lack of probable cause and
unsigned warrant). We therefore follow the reasoning set forth in Gurrola and
conclude that the evidence in this case was properly excluded.

CONCLUSION

233 We affirm the district court.

24 ITISSO ORDERED.

WE CONCUR:

HMgan PL Lb

MEGAN P. DUFFY, Suds

RICHARD C. BOSSON, Julige Pro Tempore

August 29, 2019- State of New Mexico v. Ross Sanders, No. A-1-CA-35592

Testo completo

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