 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

 6          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                          NO. 29,941

10 FRANCISCO MATA, JR.,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Montoya Law Inc.
18 Dennis W. Montoya
19 Rio Rancho, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.
 1        Defendant appeals his conviction for possession of methamphetamine. We

 2 proposed to affirm in a calendar notice. Defendant has responded to that notice with

 3 a memorandum in opposition. We have carefully considered Defendant’s arguments,

 4 but we are not persuaded that affirmance is not the correct disposition in this case. We

 5 therefore affirm.

 6        Defendant continues to advance arguments related to prosecutorial

 7 vindictiveness, and his motion to suppress evidence from a warrantless search. As

 8 explained in our notice, prosecutorial vindictiveness protects a defendant from being

 9 made to be apprehensive of retaliation by the prosecutor. See State v. Brule,

10 1999-NMSC-026, ¶ 7, 127 N.M. 368, 981 P.2d 782. We noted that, with a claim of

11 prosecutorial vindictiveness, the focus is on the actions of the prosecutor, and whether

12 those actions would or would not have occurred but for hostility directed at Defendant

13 or because Defendant had exercised a legal right. Id. ¶ 10. In the memorandum in

14 opposition, Defendant again focuses on the actions of Officer Briseno, and not the

15 actions of the prosecutor. Defendant states that the officer’s actions “coupled with his

16 extensive history of hostile interaction” with Defendant’s family clearly demonstrate

17 prosecutorial vindictiveness. [MIO 5]      We hold that the officer’s behavior and/or

18 actions did not support a claim for prosecutorial vindictiveness.




                                              2
 1        Defendant continues to claim that the district court erred in denying his motion

 2 to suppress the evidence found in his yard. As discussed in our calendar notice, the

 3 officers knew that there was an outstanding arrest warrant for Defendant and saw

 4 Defendant drop a baggie into an ivy thicket before heeding the officers’ directions to

 5 stop walking. Based on the observations by the officers, they had reasonable

 6 suspicion that other criminal activity was afoot and could expand the seizure of

 7 Defendant by looking into the ivy for the item dropped by Defendant. See State v.

 8 Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (quoting State v. Taylor,

 9 1999-NMCA-022, ¶ 20, 126 N.M. 569, 973 P.2d 246).

10        Moreover, after the officers saw Defendant drop the baggie into the ivy, he was

11 placed under arrest. As discussed in State v. Harbison, 2007-NMSC-016, 141 N.M.

12 392, 156 P.3d 30, if, as in this case, a defendant was not seized at the time he

13 discarded contraband, the contraband is considered to be abandoned and Fourth

14 Amendment protections do not apply. Id. ¶ 10. Based on the record on appeal,

15 Defendant made no claim that he was seized at the time that he dropped the

16 contraband into the ivy. Instead, Defendant argued that the officers could not retrieve

17 the contraband because his arrest was complete when he was handcuffed and placed

18 into the patrol car, and therefore, no exigent circumstances existed to justify retrieval

19 of the contraband. [RP 86] Based on Harbison, the Fourth Amendment protections


                                               3
 1 did not apply to the abandoned contraband in this case. For the reasons discussed

 2 above and in our calendar notice, there was no error by the district court in denying

 3 the motion to suppress the evidence.

 4        Defendant raised other issues in the docketing statement that were addressed

 5 in our calendar notice. Defendant does not challenge our proposed disposition with

 6 respect to those issues. Therefore, we do not address them. See State v. Johnson, 107

 7 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that, when a case is

 8 decided on the summary calendar, an issue is deemed abandoned where a party fails

 9 to respond to the proposed disposition of the issue).

10        For the reasons discussed above and in our calendar notice, we affirm

11 Defendant’s conviction.

12        IT IS SO ORDERED.

13
14                                        MICHAEL D. BUSTAMANTE, Judge

15 WE CONCUR:


16
17 MICHAEL E. VIGIL, Judge


18
19 ROBERT E. ROBLES, Judge



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