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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 17:18:37 2013.07.25

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-028

Filing Date: June 13, 2013

Docket No. 33,203

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

NORMAN DAVIS,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
John M. Paternoster, District Judge

Gary K. King, Attorney General
Martha Anne Kelly, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                      OPINION

MAES, Chief Justice.

{1}     Defendant Norman Davis was indicted for possession of marijuana of eight ounces
or more, a fourth degree felony, contrary to NMSA 1978, Section 30-31-23(A) and (B)(3)
(2011), and possession of drug paraphernalia, a misdemeanor, contrary to NMSA 1978,
Section 30-31-25.1(A) (2001). These charges resulted from the New Mexico State Police
Operation “Yerba Buena 2006” aimed at marijuana eradication in the remote area of Carson
Estates in Taos County.


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{2}     Defendant filed a motion to quash the search warrant and suppress the marijuana and
paraphernalia seized. The trial court denied the motion and the Court of Appeals reversed.
We granted certiorari to address whether the Court of Appeals erred in overruling the trial
court’s dismissal of Defendant’s motion to suppress because there was substantial evidence
to support the trial court’s finding that Defendant voluntarily consented to the search of his
home.

I.     FACTS AND PROCEDURAL HISTORY

{3}     The New Mexico State Police, assisted by New Mexico Game and Fish officers, the
New Mexico National Guard, and the Region III Narcotics Task Force, utilized two army
0H 58 Jet Ranger helicopters and two ground teams to execute Yerba Buena. The
helicopters were intended to spot possible marijuana plantations from the air, guide the
ground teams into the area to confirm or to deny the observation, and provide cover and
safety for the ground officers. After being alerted by one of the helicopters to the presence
of a greenhouse and vegetation in Defendant’s backyard, around six or seven law
enforcement officers, armed with their semi-automatic service weapons, and several
government vehicles created a secured premise around Defendant’s property. The helicopter
hovered above Defendant’s home between the height of 50-500 feet.

{4}    Defendant, seventy-two years old, was at home because he was not feeling well.
Bothered by the racket of the helicopter, Defendant got out of bed to see what was going on.

{5}     Only Officer William Merrell approached Defendant, who was standing outside of
his home. Defendant asserts that Officer Merrell “confronted” him while holding a rifle and
side arm. There is no evidence on record that any officer ever unholstered his weapon.
Officer Merrell’s belt tape recorded the conversation. Officer Merrell identified himself and
stated that the helicopter had identified marijuana on Defendant’s property. Officer Merrell
asked permission to search the residence, and Defendant asked what would happen if he said
no. Officer Merrell responded that if Defendant refused to allow the search, the officers
would secure the residence and that the decision was up to Defendant. Officer Merrell again
asked to search Defendant’s residence, and said, “wait guys, hold on” to the other officers
on the property. Defendant then responded, “sure” and then “it looks like they are searching
anyways.” Officer Merrell responded that the officers were not yet searching, rather that
they were there for safety and if given permission to search, Officer Merrell would provide
Defendant with a consent form. Defendant then admitted that he was growing marijuana.

{6}      Officer Merrell provided Defendant with a consent form and asked him to sign it.
Defendant responded “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.” Officer Merrell told
Defendant that this was a decision he would need to make and he could not make it for
Defendant. Defendant 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” which would take about 30 minutes. Defendant said, “Well I guess

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I don’t really have any options here do I?” Officer Merrell did not respond. Defendant then
signed the consent form. The consent form contained language that Defendant was informed
of his “constitutional right not to have a search made of his premises . . . without a search
warrant” and his right to refuse to consent to the search.

{7}     Officer Merrell’s tone was mild throughout the conversation and Defendant’s tone
was equally conversational. During the initial conversation, Officer Merrell told Defendant
at least three times that the decision to consent was strictly Defendant’s. The entire
encounter, including the search and seizure, lasted approximately one hour. As a result of
the search, officers seized fourteen marijuana plants growing in the greenhouse and both an
undisclosed amount of marijuana and paraphernalia from the home.

{8}     Defendant filed a motion to quash the subpoena and suppress the marijuana and
paraphernalia seized. Defendant asserted that his consent to search was not voluntary and
his state and federal constitutional rights were violated before consent was given. The trial
court denied the motion and Defendant appealed. The Court of Appeals, addressing only the
issue of Defendant’s consent, concluded that although his consent was specific and
unequivocal, the State failed to provide substantial evidence that Defendant’s consent was
voluntary and the trial court failed to consider the totality of circumstances. State v. Davis,
2011-NMCA-102, ¶ 13, 150 N.M. 611, 263 P.3d 953 (citing State v. Flores, 1996-NMCA-
059, ¶ 20, 122 N.M. 84, 920 P.2d 1038).

{9}    The State appealed to this Court. We granted certiorari to address whether the Court
of Appeals erred in overruling the trial court’s dismissal of Defendant’s motion to suppress
because the State argues there was substantial evidence to support the trial court’s finding
that Defendant voluntarily consented to the search of his home.

II.    STANDARD OF REVIEW

{10} The voluntariness of consent is a factual question in which the trial court must weigh
the evidence and decide if it “is sufficient to clearly and convincingly establish that the
consent was voluntary.” State v. Anderson, 107 N.M. 165, 167-68, 754 P.2d 542, 544-45
(Ct. App. 1988). Factual questions are viewed under a substantial evidence standard, and
the application of law to the facts de novo. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M.
176, 164 P.3d 57. In conducting such a review, “[t]he question is whether the [trial] court’s
decision is supported by substantial evidence, not whether the trial court could have reached
a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915
P.2d 318 (internal citation omitted)

III.   DISCUSSION

{11} The State asserts that Defendant’s consent satisfies the test for voluntary consent as
articulated in Anderson, 107 N.M. 165 at 167, 754 P.2d at 544. The State agrees with the
Court of Appeals that Defendant’s consent was specific and unequivocal. However, the

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State argues that substantial evidence supports the trial court’s finding that Defendant did
not simply acquiesce to a showing of lawful authority. Instead of deferring to the trial
court’s finding of facts, the State asserts that the Court of Appeals engaged in its own fact-
finding, contrary to its responsibility of review under a substantial evidence standard.

{12} Defendant argues that his consent was not voluntary. Because of the number of
armed officers and the presence of the helicopter, he claims he was merely acquiescing to
a showing of lawful authority, which State v. Shaulis-Powell, 1999-NMCA-090, ¶ 10, 127
N.M. 667, 986 P.2d 463 held does not constitute valid consent. Defendant claims that the
Court of Appeals applied the correct standard of review and properly considered the totality
of the circumstances, while the trial court did not consider the totality of the circumstances
and instead selectively picked facts to make its determination.

{13} The voluntariness of consent is a factual question in which the trial court must weigh
the evidence and decide if it is sufficient to clearly and convincingly establish that the
consent was voluntary. Anderson, 107 N.M. at 167-68, 754 P.2d at 544-45. The State has
the burden of proving that, under the totality of the circumstances, consent to search was
given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); State
v. Flores, 2008-NMCA-074, ¶ 13, 144 N.M. 217, 185 P.3d 1067.

{14} Courts utilize a three-tiered analysis when determining voluntariness: “(1) there
must be clear and positive testimony that the consent was specific and unequivocal; (2) the
consent must be given without duress or coercion; and (3) the first two factors are to be
viewed in light of the presumption that disfavors the waiver of constitutional rights.”
Anderson, 107 N.M. at 167, 754 P.2d at 544 (citations omitted). Because the third prong is
an acknowledgment of our presumption against waiving constitutional rights, we focus on
the first two prongs. “Ultimately, the essential inquiry is whether [d]efendant’s will has been
overborne.” State v. Pierce, 2003-NMCA-117, ¶ 20, 134 N.M. 388, 77 P.3d 292 (internal
citation omitted).

A.     Defendant gave specific and unequivocal consent

{15} The Court of Appeals concluded “that substantial evidence supports the [trial] 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.” Davis, 2011-NMCA-102, ¶ 14.
We agree.

{16} Specific and unequivocal consent can be given in a variety of ways. For example,
in United States v. Pena, the court held that an affirmative and direct oral response to an
officer’s request to search constituted specific and unequivocal consent. 143 F.3d 1363,
1367 (10th Cir. 1998) (holding that the defendant’s response of “go ahead” following a
request to search by an officer was unequivocal). More specifically, the clarity of a question
and response can indicate specific and unequivocal consent. State v. Muñoz, 2008-NMCA-
090, ¶ 20, 144 N.M. 350, 187 P.3d 696 (providing that where the Court found that the clarity

                                              4
of the officer’s request, followed by the defendant’s subsequent compliance by emptying his
pockets and removing his shoes, evidenced specific and unequivocal consent). A response
without hesitation is yet another indication of an unequivocal response. See, e.g., State v.
Chapman, 1999-NMCA-106, ¶ 20, 127 N.M. 721, 986 P.2d 1122 (finding that the consent
was unequivocal when the defendant admitted without hesitation to possessing certain items,
and, following a request to search by the officer, responded affirmatively, exited the driver’s
seat and motioned to the trunk).

{17} Evidence of oral consent can be established through testimony of the parties. Id. The
testimony must be clear and positive in order to show specific and unequivocal consent.
State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495, 499 (1987).

{18} The act of signing a consent to search form can also constitute specific and
unequivocal consent. See State v. Cohen, 103 N.M. 558, 563, 711 P.2d 3, 8 (1985). In State
v. Lara, 110 N.M. 507, 515, 797 P.2d 296, 304 (Ct. App. 1990),the Court of Appeals held
that substantial evidence of such specific and unequivocal consent existed where the
defendant responded without hesitation to questioning, provided a written statement and
signed a form acknowledging he had been advised of his constitutional rights. Id.

{19} In this case, the facts leading up to the search are largely undisputed. Officer Merrell
requested and received Defendant’s consent prior to searching. Defendant can be heard on
Officer Merrell’s belt tape giving oral consent to search his property by responding “sure”
and “all right.” Nothing in the record indicates that Defendant ever firmly objected to or
protested Officer Merrell’s request to search. Officer Merrell also provided clear testimony
as to the purpose of the search and clarified that the officers did not begin searching until
they received Defendant’s consent.

{20} There is clear testimony on the record constituting proof of Defendant’s consent.
Accordingly, Defendant’s oral and written consent amounted to specific and unequivocal
consent.

B.     Defendant was not coerced into giving consent

{21} The second tier of our analysis examines the voluntariness of Defendant’s consent
in the context of coercion. Anderson, 107 N.M. at 167-68, 754 P.2d at 544-45. The State
argues that substantial evidence exists to support the trial court’s finding that Defendant’s
consent was voluntary and it should be not disturbed on appeal. The State asserts that the
Court of Appeals gave improper weight to the presence of a helicopter and the number of
armed officers present because the Defendant himself never established that these things
overbore his will.

{22} Defendant argues that the Court of Appeals correctly held that the trial court did not
consider the totality of the circumstances in determining the coerciveness of Defendant’s
consent because it ignored competent evidence of coercion. Defendant asserts that the

                                              5
presence of a helicopter, the number of armed officers, and his poor physical state created
a coercive atmosphere and rendered his consent involuntary.

{23} “Coercion involves police overreaching that overcomes the will of the defendant.”
Chapman, 1999-NMCA-106, ¶ 21 (internal citation omitted). Specific factors indicating
coercion include the use of force, brandishing of weapons, threat of violence or arrest,
lengthy and abusive questioning, deprivation of food or water and promises of leniency in
exchange for consent. Id. (citing State v. Rudd, 90 N.M. 647, 650-52, 567 P.2d 496, 499-501
(Ct. App. 1977)). However, the sheer number of officers or presence of weapons does not
automatically generate coercion. See United States v. Romero, 743 F. Supp. 2d 1281, 1322
(D.N.M. 2010) (holding that the presence of five agents in and of itself does not render a
citizen’s consent coerced); see also United States v. Drayton, 536 U.S. 194, 204-05 (2002)
(providing that the fact that officers are required to wear sidearms is well known to the
public and is cause for assurance, thus the holstering of a weapon “is unlikely to contribute
to the coerciveness of the encounter absent active brandishing of the weapon”). “[C]onsent
is not voluntary if it is a mere acquiescence to a claim of lawful authority.” Shaulis-Powell,
1999-NMCA-090, ¶ 10. When an officer unequivocally asserts that he will be able to obtain
a warrant, a defendant’s belief that refusal to consent would be futile demonstrates
involuntary consent. Id. ¶ 11.

{24} On the other hand, factors of voluntariness can include “the individual characteristics
of the defendant, the circumstances of the detention, and the manner in which the police
requested consent.” Pierce, 2003-NMCA-117, ¶ 20 (internal citation omitted); see also
Muñoz, 2008-NMCA-090, ¶ 20 (explaining that based on the officer’s non-confrontational
tone and demeanor, the defendant’s subsequent compliance with the officer’s requests was
not coerced). Further, when an officer simply expresses his assessment of the situation, that
explanation does not prevent a defendant from insisting that a warrant be obtained prior to
searching. Shaulis-Powell, 1999-NMCA-090, ¶¶ 10-11 (holding that the officer’s comments
that he “believed” and “felt” he had enough evidence to secure a warrant were not coercive).
Similarly, an officer’s assurance to report a suspect’s compliance to the district attorney’s
office does not constitute an improper promise. See State v. Sanders, 2000-NMSC-032, ¶
10, 129 N.M. 728, 13 P.3d 460 (stating that “merely promising to bring a defendant’s
cooperation to the attention of the prosecutor is not objectionable”). A reasonable
explanation of the possibility of arrest and the process that will follow, or an officer’s belief
in his or her ability to obtain a warrant is permissible and neither constitutes coercion or
invalidates consent. Shaulis-Powell, 1999-NMCA-090, ¶¶ 11, 15.

{25} As the trial court pointed out, this case is similar to the circumstances in Shaulis-
Powell. In Shaulis-Powell, the Court of Appeals upheld the trial court’s finding of
voluntariness when officers came to the defendants’ house to investigate the potential
cultivation of marijuana. 1999-NMCA-090, ¶ 16. There, plain-clothed, armed officers
approached defendants at their front door and requested permission to search for marijuana.
Id. ¶¶ 3-5. One defendant asked whether they had a warrant, which one officer denied but
responded that he “felt he had enough information to . . . secure one” and that if defendant

                                               6
did not give consent he would seek to obtain a warrant. Id. ¶ 4. The defendant consented.
Id. ¶ 5. The Court determined that the officer’s explanation of the warrant process was
reasonable and not a threat. Id. ¶¶ 11, 14. Even so, an officer’s threat to perform some legal
action does not invalidate consent. Id. ¶ 14 (internal quotation marks and citation omitted).
One Shaulis-Powell defendant also attempted to argue that because the officers had secured
the premise around her home, she was seized in a coercive atmosphere. Id. ¶ 16.
Unpersuaded, the Court held that because defendant was free to come and go from the house,
defendant was not seized and thus not coerced into giving consent. Id.

{26} As in Shaulis-Powell, the officers in this case created a safety perimeter around the
property but Defendant was still allowed to move about freely. See Shaulis-Powell, 1999-
NMCA-090, ¶ 16. The Shaulis-Powell officer’s belief in his ability to obtain a search
warrant without the defendants’ consent is similar to Officer Merrell’s response that he
would “try to obtain a search warrant” if Defendant refused to consent. Id. ¶ 11. This
statement was a request and not a demand and can logically be construed as a reasonable
explanation of the process an officer would follow after a defendant refused to consent to a
search. Therefore, Officer Merrell’s statement was not coercive.

{27} We next address Defendant’s argument that the mere presence of armed officers was
enough to create coercion. In Pena, the Tenth Circuit found the circumstances to be
noncoercive when four armed officers came to the defendant’s motel room to search and
question him. 143 F.3d at 1367. While the court acknowledged that the presence of several
officers in a “home might be intimidating to the point of negating the voluntariness of
consent in some situations” (citing United States v. Davis, 40 F.3d 1069, 1078 (10th Cir.
1994)), the mere presence of armed officers was not enough to create coercion. Pena, 143
F.3d at 1367. Only one officer actually spoke to the defendant, none of the officers
unholstered their weapons, and all remained outside of the room until given permission by
the defendant to enter. Id. The court stated there was no evidence that the officers
conducted themselves in an unprofessional manner and thus the defendant’s consent to
search was not coerced. Id. In this case, similar to Pena, several armed officers arrived at
Defendant’s residence to search for marijuana. Id. In both situations only one officer
approached the defendant. See id.; Davis, 2011-NMCA-102, ¶ 3. None of the officers in
either case unholstered their weapons and all remained professional. See Pena, 143 F.3d at
1367. Additionally, the officers in both situations remained on the outskirts of the premises
until given permission to enter. Id. Accordingly, the mere presence of armed officers was
not enough to create coercion.

{28} The Court of Appeals states that there was a valid reason for Defendant to believe
his refusal to consent would be futile in this case because Officer Merrell’s statement to the
other officers to “hold on” was evidence that they had already started searching. Davis,
2011-NMCA-102, ¶ 19. However, the trial court found and the record shows that Officer
Merrell testified that he had informed Defendant that his officers had not started searching
but instead were setting up a perimeter for safety. Officer Merrell further testified that he
told Defendant that the officers would only begin searching if Defendant signed a consent

                                              7
form. Accordingly because Officer Merrell directly addressed and corrected Defendant’s
belief, there was no valid reason for Defendant to believe his refusal to consent would be
futile.

{29} We next address cases finding clear coercion that are distinct from this case. The
Recalde court illustrated a clear example of coercion in finding the defendant’s consent to
accompany two armed officers to another city was involuntary. United States v. Recalde,
761 F.2d 1448, 1453 (1985), overruled on other grounds by United States v. Enriques-
Hernandez, 94 F.3d 656 (1996). At the time of the requested consent, the officers had
already searched the defendant’s car trunk and luggage, taken and withheld his driver’s
license and registration, neglected to inform the defendant he was free to leave and the
defendant himself testified he did not feel free to leave. Id. Additionally, the defendant was
traveling alone in an isolated area and had been stopped in the middle of a rainstorm. Id. at
1453-54. The court held that these factors constituted a coercive atmosphere and rendered
his consent involuntary. Id.

{30} The Court of Appeals found clear evidence of coercion in Pierce. At the time the
defendant gave consent, he had been detained for twenty minutes while sitting on a curb
handcuffed, with two officers standing over him, subjecting him to searches of his car and
person. 2003-NMCA-117, ¶ 21. The Court held that the defendant eventually “capitulated”
to the officers’ repeated requests for consent. Id. “[I]n light of the presumption that
disfavors the waiver of constitutional rights” the Court was “unwilling to accept that
Defendant’s permission . . . was free from coercion and duress.” Id.

{31} Unlike Recalde and Pierce, Defendant was never detained. Instead, Defendant’s
initial conversation with Officer Merrell lasted about nine minutes. Defendant was in his
own home and went to lie down after giving the officers permission to search, unlike in
Recalde where the defendant was traveling alone in an isolated area, during a storm, and was
unable to leave. Recalde, 761 F.2d at 1453-54. Defendant’s situation is also distinguishable
from Pierce where the defendant eventually capitulated to the officer’s repeated questioning
after he was detained for twenty minutes while handcuffed and forced to sit on a curb as the
two officers stood over him. Pierce, 2003-NMCA-117, ¶ 21. In the case at bar, Defendant
only spoke with one officer and was never arrested or physically restrained. Defendant
never testified that he did not feel free to leave and in fact the testimony shows he was able
to move about freely. While the Court of Appeals placed great significance on the presence
of the police helicopter, the State argues, and we agree, that there is no evidence that the
helicopter influenced Defendant’s consent. In fact, the only testimony on record regarding
Defendant’s feelings about the helicopter was that he was bothered by the noise and had to
get out of bed.

{32} Further, Officer Merrell’s belt tape shows the conversation between him and
Defendant was calm and slow. Both Officer Merrell and Defendant used normal tones.
Defendant did not express any feelings of fear or pressure. While Defendant did vacillate
between whether or not to consent to the search, Officer Merrell informed Defendant several

                                              8
times that he was not required to provide consent. Defendant orally consented and
physically signed a consent to search form which again advised him of his rights.

{33} Finally, the defense argues that Defendant did not have sufficient capacity to consent
that day because he was not feeling well. Defendant argues that the physical and mental
condition of a defendant is relevant when determining whether consent was voluntary under
United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011) and Pierce, 2003-NMCA-
117, ¶ 20. The trial court did however take Defendant’s physical and mental condition into
consideration when it determined that Defendant was “thoroughly cooperative, civil and
peaceful” and “is an intelligent man with a greater than average storehouse of knowledge.”
Defendant’s physical and mental ability to consent was yet another factor that the trial court
used to determine that his consent had not been coerced.

{34} Therefore, substantial evidence does not exist to show that Defendant’s will was
overborne by any exertion of coercion by the officers to justify overturning the trial court’s
decision. Instead, a review of the record, under a totality of the circumstances analysis,
suggests that the trial court’s finding of voluntary consent should be upheld.

IV.    CONCLUSION

{35} We conclude that there was substantial evidence that Defendant voluntarily
consented to the search and affirm the trial court’s dismissal of Defendant’s motion to
suppress. We remand to the Court of Appeals for further proceedings consistent with this
Opinion.

{36}   IT IS SO ORDERED.

                                              _____________________________________
                                              PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:

_____________________________________
RICHARD C. BOSSON, Justice

_____________________________________
EDWARD L. CHÁVEZ, Justice

_____________________________________
CHARLES W. DANIELS, Justice

_____________________________________
BARBARA J. VIGIL, Justice


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Topic Index for State v. Davis, No. 33,203

APPEAL AND ERROR
Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Fourth Amendment
Suppression of Evidence

CRIMINAL LAW
Controlled Substances

CRIMINAL PROCEDURE
Consent
Motion to Suppress
Search and Seizure
Warrantless Arrest
Warrantless Search




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