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

 2 STATE OF NEW MEXICO,

 3                  Plaintiff-Appellant,

 4 v.                                                                                    No. 34,666

 5 DANIEL PRIETO-LOZOYA,

 6                  Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, JR, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Titus & Murphy
15 H. Steven Murphy
16 Farmington, NM

17 Emeterio L. Rudolfo
18 Farmington, NM

19 for Appellee

20                                 MEMORANDUM OPINION

21 VIGIL, Chief Judge.
 1   {1}   The State of New Mexico appeals from the district court’s order granting

 2 Defendant Daniel Prieto-Lozoya’s motion to suppress evidence obtained during a

 3 warrantless search of a locked box. We issued a calendar notice proposing to affirm.

 4 The State filed a memorandum in opposition, which we have duly considered. We are

 5 not persuaded by the State’s arguments and therefore affirm.

 6   {2}   In its docketing statement, the State argued that (1) Defendant’s father-in-law,

 7 Ramon Desotto, gave valid consent to search his business establishment, including a

 8 locked box that contained a large amount of methamphetamine and documents

 9 belonging to Defendant, because Desotto had “actual and/or common authority” to

10 grant consent, and (2) Defendant had a diminished expectation of privacy in the

11 locked box. [DS 2] In our calendar notice, we proposed to conclude that (1) Desotto

12 did not have actual or common authority to consent to law enforcement’s forcible

13 entry of the locked box without a valid warrant, and (2) Defendant had an actual,

14 subjective expectation of privacy in the locked box, and the State had not

15 demonstrated that Defendant’s expectation was one that society is not prepared to

16 recognize as reasonable. [CN 2-5] Accordingly, we proposed to affirm the district

17 court’s order suppressing evidence. [CN 5]

18   {3}   In response to this Court’s calendar notice, the State provides a detailed

19 summary of the facts and procedural history [MIO 2-10]; argues that the facts show

20 that Desotto had actual authority over his business premises, including the contents

                                               2
 1 of the locked box to consent to its search [MIO 2; see also MIO 11-13]; and argues

 2 that “although Defendant may have manifested a subjective expectation of privacy by

 3 placing combination locks on the wooden box, such an expectation of privacy was not

 4 one society is prepared to accept as reasonable under the circumstances of this case.”

 5 [MIO 2; see also MIO 13-18] Instead of pointing out errors in fact or law with our

 6 proposed disposition, the State relies on out-of-state and New Mexico case law that

 7 is not persuasive or on point. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124

 8 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar

 9 cases, the burden is on the party opposing the proposed disposition to clearly point out

10 errors in fact or law.”).

11   {4}   Issue 1: As discussed in our calendar notice, valid consent is an exception to

12 the warrant requirement. [CN 3] See State v. Diaz, 1996-NMCA-104, ¶ 9, 122 N.M.

13 384, 925 P.2d 4. A third-party who has common authority over property may give

14 consent to search that property; however, “[t]he [S]tate has the burden of establishing

15 common authority, and must therefore come forward with persuasive evidence of both

16 shared use and joint access in order to support a third-party consent[.]” Id. (internal

17 citations omitted). In Diaz, we held that the defendant’s father did not have “joint

18 access for most purposes and mutual use of [the d]efendant’s room[,]” even though

19 the father owned the house in which the defendant’s bedroom was located and the

20 father had access to the defendant’s room. Id. ¶¶ 11, 15-16. Therefore, we affirmed

                                              3
 1 an order of the district court granting the defendant’s motion to suppress physical

 2 evidence obtained during the warrantless search of his room. Id. ¶¶ 1, 20. As we stated

 3 in our calendar notice, “mere ownership of property is not sufficient to establish valid

 4 consent—the party consenting must have common authority over the area searched.”

 5 [CN 3 (citing Diaz, 1996-NMCA-104, ¶¶ 9-12)] The State’s memorandum in

 6 opposition does not address Diaz or argue why it does not apply. [MIO 11-13] Instead,

 7 the State relies on out-of-state case law and argues that the locked box in this case

 8 “was on Mr. Desotto’s business premises, ostensibly for tools, and Mr. Desotto

 9 claimed ownership of it. Defendant cannot transform a box on the premises into

10 private sanctified property by simply putting a combination lock on it.” [MIO 11-13]

11 We are not persuaded.

12   {5}   Issue 2: As discussed in our calendar notice, “[a] defendant’s ability to

13 challenge a search turns on two inquiries: (1) whether the defendant had an actual,

14 subjective expectation of privacy in the premises searched; and (2) whether the

15 defendant’s subjective expectation is one that society is prepared to recognize as

16 reasonable.” State v. Ryan, 2006-NMCA-044, ¶ 19, 139 N.M. 354, 132 P.3d 1040

17 (internal quotation marks and citation omitted). [See CN 4-5]

18   {6}   The State asserts that “[a]ssuming arguendo that Defendant manifested a

19 subjective expectation of privacy in the box by placing locks on it . . . , any such

20 expectation was not objectively reasonable.” [MIO 14] In support of this argument,

                                              4
 1 the State relies on out-of-state case law for the proposition that an item in a semi-

 2 public place is not private. [MIO 13-15] Additionally, the State asserts that the locked

 3 box was not an item personal to Defendant, such as “a suitcase, purse, backpack, or

 4 locker that would obviously belong to one person for the containment of clothes or

 5 other personal items.” [MIO 15] While acknowledging that Defendant locked the box

 6 and did not turn over the box to Desotto or other employees, the State argues that

 7 Defendant had no legitimate expectation of privacy in the locked box because

 8 Defendant “kept it in a place of business used, and owned, by others.” [MIO 16; see

 9 also MIO 18 (“Defendant cannot transform property belonging to his employer, left

10 unattended on his employer’s premises, into constitutionally protected property by

11 placing locks on it.”)] We are not persuaded.

12   {7}   The New Mexico cases relied on by the State are distinguishable. [MIO 17-18]

13 Unlike the facts in State v. Moore, Defendant did not disclose any information to

14 Desotto regarding the contents of the locked box. 1989-NMCA-073, ¶ 10, 109 N.M.

15 119, 782 P.2d 91 (holding that the defendant waived any expectation of privacy he

16 might have had regarding a pistol when the defendant told a third person about the

17 pistol), superseded by statute on other grounds as stated in State v. Salgado, 1991-

18 NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730. While we acknowledge the State’s

19 argument that Defendant had no lawful right to possess illegal drugs, we are not

20 persuaded that Defendant had no reasonable expectation of privacy in the locked box,

                                              5
 1 particularly given the fact the State does not dispute that Defendant placed two

 2 combination locks on the box and did not share the combination to those locks with

 3 Desotto. [MIO 9, 16, 18; RP 209]. See State v. Sublet, 2011-NMCA-075, ¶¶ 18-23,

 4 150 N.M. 378, 258 P.3d 1170 (rejecting the State’s argument that the defendant did

 5 not have a reasonable expectation of privacy in property that he did not lawfully

 6 possess). Just as in Sublet, the State’s reliance on State v. Bomboy, 2008-NMSC-029,

 7 144 N.M. 151, 184 P.3d 1045, and State v. Foreman, 1982-NMCA-001, 97 N.M. 583,

 8 642 P.2d 186, is misplaced, because the facts in those cases are distinguishable from

 9 the facts in this case. See Sublet, 2011-NMCA-075, ¶¶ 20-21 (discussing same);

10 Bomboy, 2008-NMSC-029, ¶¶ 1, 10 (holding that a police officer can seize

11 methamphetamine that is observed in plain view without a warrant); Foreman, 1982-

12 NMCA-001, ¶ 1 (holding that an officer may seize contraband discovered during a

13 valid inventory search without a warrant). Similarly, the State’s reliance on State v.

14 Ryan, 2006-NMCA-044, is also misplaced. In Ryan, we determined that there was

15 sufficient evidence to support the district court’s decision that the defendant did not

16 have an actual expectation of privacy, and we concluded that the defendant “actively

17 worked to undermine [his privacy rights].” Id. ¶¶ 20, 23; see generally id. ¶¶ 15-38.

18   {8}   For the reasons stated in our notice and in this opinion, we affirm.




                                              6
1   {9}   IT IS SO ORDERED.


2                               ___________________________________
3                               MICHAEL E. VIGIL, Chief Judge


4 WE CONCUR:


5 _______________________________
6 TIMOTHY L. GARCIA, Judge


7 _______________________________
8 M. MONICA ZAMORA, Judge

9




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