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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                     No. 31,504

 5 JUDITH DEAN,

 6          Defendant-Appellant,

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

 9 Gary K. King, Attorney General
10 Pranava Upadrashta, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRY, Judge.
 1   {1}   Defendant appeals the district court’s denial of her motion to suppress,

 2 contending that the officers were not justified in seizing a box of chocolate-covered

 3 cherries previously opened by a private citizen or in expanding the scope of the

 4 private search by removing and opening a small green bag contained within the box

 5 of chocolate-covered cherries to test the contents of that bag for drugs. We disagree

 6 and affirm.

 7 BACKGROUND

 8   {2}   We briefly summarize the underlying events in the light most favorable to the

 9 ruling rendered below. See State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52

10 P.3d 964. Defendant went to an Aztec, New Mexico, “Zip and Ship” store seeking to

11 send a sealed package overnight to Wyoming. The store clerk informed Defendant

12 that overnight shipping would cost $80.00, and his suspicions were aroused because

13 Defendant was willing to pay this amount to ship two boxes of what appeared to be

14 chocolate-covered cherries.

15   {3}   After Defendant left the store, the clerk opened the sealed package and saw that

16 one of the boxes of cherries had been opened and resealed with tape. The clerk

17 opened the resealed box of cherries and lifted out the top tray. On the bottom tray,

18 the clerk saw a small green bag in one of the slots that would normally contain a


                                               2
 1 chocolate-covered cherry. The clerk suspected that the green bag might contain

 2 methamphetamine, but he did not open it or look inside it. He then called the police.

 3   {4}   The officer arrived at the Zip and Ship, and the clerk led him to the back room.

 4 The officer saw the open cherry box with the top tray out and saw the green bag in the

 5 slot where a chocolate-covered cherry would usually be placed. The officer took both

 6 boxes of cherries to the police station and removed the green bag.

 7   {5}   The officer noted that the green bag was transparent and he could see what

 8 appeared to be methamphetamine inside. He opened the bag and tested the material

 9 inside, and the substance tested positive for methamphetamine.

10   {6}   Defendant was subsequently arrested and charged with one count of trafficking

11 (possession with intent to distribute) methamphetamine. See NMSA 1978, § 30-31-

12 20(A)(3) (2006). She moved to suppress the evidence obtained from the warrantless

13 search, claiming the search was in violation of the Fourth Amendment to the United

14 States Constitution and Article II, Section 10 of the New Mexico Constitution. In

15 response, the State claimed that the search was justified under the private search

16 exception to the warrant requirement and because the contents were in plain view.

17   {7}   After a hearing, the district court denied the motion to suppress. Defendant

18 entered a conditional plea to trafficking (possession with intent to distribute)


                                               3
 1 methamphetamine, reserving her right to appeal the denial of her motion to suppress,

 2 and the district court entered an order for conditional discharge and five years of

 3 supervised probation. Defendant now appeals the denial of her motion to suppress.

 4 DISCUSSION

 5 Standard of Review

 6   {8}   We review the denial of a motion to suppress as a mixed question of fact and

 7 law. State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. We

 8 determine whether the law was correctly applied to the facts and view “the facts in the

 9 light most favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6,

10 126 N.M. 77, 966 P.2d 785; see State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M.

11 119, 2 P.3d 856. Furthermore, because the district court did not enter any findings of

12 fact or conclusions of law, we “draw all inferences and indulge all presumptions in

13 favor of the district court’s ruling.” Jason L., 2000-NMSC-018, ¶ 11.

14   {9}   In considering Defendant’s challenge under the federal and New Mexico

15 constitutions, we employ the interstitial approach which requires us to first “determine

16 whether the right is protected by the Fourth Amendment.”              State v. Rivera,

17 2010-NMSC-046, ¶ 15, 148 N.M. 659, 241 P.3d 1099. If we determine that

18 Defendant’s Fourth Amendment rights were not violated, we will proceed to consider


                                              4
 1 whether Defendant raised and established a violation of her rights protected by Article

 2 II, Section 10 of the New Mexico Constitution. See generally State v. Leyva,

 3 2011-NMSC-009, ¶¶ 51-61, 149 N.M. 435, 250 P.3d 861 (turning to consider the

 4 defendant’s claim based upon the protections afforded by Article II, Section 10 of the

 5 New Mexico Constitution after first determining that the defendant had failed to

 6 establish a Fourth Amendment violation).

 7 Fourth Amendment

 8   {10}   In Rivera, our Supreme Court adopted the private search doctrine to the extent

 9 it permits officers to search a container without a warrant if a private person, without

10 government participation, previously searched the container and revealed its contents

11 to the police. 2010-NMSC-046, ¶¶ 16-21. The Court held that the private search

12 doctrine would allow an officer to re-examine the contents of a container previously

13 opened by a private party, as long as the officer did not unreasonably exceed the scope

14 of the previous search. Id. ¶ 20.

15   {11}   In Rivera, a private citizen had opened the defendant’s package and found a tool

16 box inside which in turn contained opaque bundles wrapped in brown plastic. Id. ¶

17 7. The officer testified that, based on his training and experience, he believed the

18 opaque bundles to contain marijuana. Id. Our Supreme Court held that the officer’s


                                                5
 1 action in cutting into the opaque bundles, although exceeding the scope of the private

 2 search, did not violate the defendant’s Fourth Amendment rights because any

 3 additional intrusion was di minimis given the officer’s suspicion that the bundles

 4 contained marijuana. Id. ¶ 21 (recognizing that requiring the officer to obtain a

 5 warrant “would only minimally advance Fourth Amendment interests” and was

 6 therefore unnecessary (internal quotation marks and citation omitted)).

 7   {12}   We conclude that Rivera controls in this case. Because the officer did not learn

 8 anything from his examination of the box of candy that he had not already learned

 9 through the clerk’s previous search, his search did not violate Defendant’s Fourth

10 Amendment privacy rights. See id. ¶¶ 16-21.

11   {13}   While Defendant acknowledges the Court’s holding in Rivera, she contends that

12 the officer’s actions in opening a bag that the clerk had not yet opened allowed the

13 officer to learn more information than what he had been told by the clerk, who had

14 only an unsupported suspicion that the bag contained drugs. We disagree. As in

15 Rivera, the officer’s action of opening the bag containing the contraband and testing

16 these contents was only a de minimis intrusion that did not violate Defendant’s

17 privacy rights under the Fourth Amendment. See id. ¶¶ 19-21.

18 NEW MEXICO CONSTITUTION


                                                6
 1   {14}   In light of our determination that a warrant was not required under federal law,

 2 we turn to consider whether Article II, Section 10 of the New Mexico Constitution

 3 provides Defendant with greater protection so as to require a warrant. See Rivera,

 4 2010-NMSC-046, ¶ 22 (recognizing that New Mexico courts have interpreted Article

 5 II, Section 10 of the New Mexico Constitution as providing greater protections for

 6 privacy than what is provided pursuant to the Fourth Amendment). In Rivera, the

 7 Court recognized that the New Mexico Constitution affords more protection than

 8 federal law on the issue of the reasonableness of a search. 2010-NMSC-046, ¶¶ 22-

 9 25. The Court held that a private search may not be expanded without a warrant

10 unless one of the recognized exceptions to the warrant requirement applies. Id. ¶ 25.

11   {15}   New Mexico recognizes the plain view exception to the warrant requirement

12 which provides that items may be seized without a warrant “when the incriminating

13 nature of the evidence is immediately apparent.” State v. Sublet, 2011-NMCA-075,

14 ¶ 29, 150 N.M. 378, 258 P.3d 1170. At the suppression hearing, the district court

15 asked to see the bag, and it was presented by the State without objection from

16 Defendant. The district court observed that the bag provided was green and clear,

17 with a white powder that could be seen from the outside. Therefore, the officer was

18 justified in opening the bag and testing the contents based upon the plain view


                                                7
 1 exception to the warrant requirement. See State v. Vasquez, 112 N.M. 363, 368, 815

 2 P.2d 659, 664 (Ct. App. 1991) (stating that, under the plain view doctrine, “the need

 3 for a search warrant is obviated if the contents of the container can be inferred by the

 4 container’s outward appearance or if the contents are in plain view”).

 5   {16}   In her brief in chief, Defendant argues that this Court should apply Rivera and

 6 hold that the plain view doctrine does not apply because the contents of the inner bag

 7 were not immediately apparent. See 2010-NMSC-046, ¶ 28 (holding that “[t]he plain

 8 view doctrine did not authorize [the officer] to open the opaque bundle because he

 9 thought he had probable cause to believe the bundles contained marijuana”). We

10 disagree. While this case is similar to Rivera in that both involve an initial search by

11 a private citizen, the additional facts underlying the officer’s actions in this case

12 compel us to reach a different conclusion from the conclusion reached by our Supreme

13 Court in Rivera. See id.

14   {17}   In Rivera, the private employees had opened the package but discontinued the

15 search when they discovered the bundles wrapped in brown plastic. Id. ¶ 26. When

16 the package was reopened in front of the police officer, the officer saw the opaque

17 bundles and believed that they contained marijuana. Id. The officer then cut open one

18 or more of the bundles. Id. The Court held that the officer exceeded the scope of the


                                               8
 1 private search when he opened the opaque bundles and, “[a]bsent an exception to the

 2 warrant requirement, he was required by our constitution to obtain a search warrant

 3 if he wanted to open the opaque bundles.” Id. ¶ 27. The State argued that the officer’s

 4 actions were authorized under the plain view exception to the warrant requirement,

 5 but the Court disagreed because probable cause to believe that the bundles contained

 6 marijuana does not constitute a showing that the marijuana was in plain view given

 7 that it was contained inside an opaque bundle. Id. ¶ 28.

 8   {18}   In this case, the officer could clearly see from the outside that the bag

 9 contained what appeared to be methamphetamine. Moreover, to whatever extent

10 Defendant may have disputed the evidence establishing that the methamphetamine

11 was in plain view, we defer to the district court’s determination on this matter because

12 it examined the bag and was in the best position to weigh the evidence and any

13 disputed facts to determine whether the methamphetamine in the bag was in plain

14 view. See Urioste, 2002-NMSC-023, ¶ 6 (recognizing that, in reviewing the denial

15 of a motion to suppress an appellate court does not “sit as a trier of fact [because] the

16 district court is in the best position to resolve questions of fact and to evaluate the

17 credibility of witnesses”).

18 CONCLUSION


                                               9
1   {19}   Based upon the foregoing, we conclude that the seizure and subsequent search

2 did not violate Defendant’s rights under the Fourth Amendment or under Section II,

3 Article 10 of the New Mexico Constitution. Therefore, we affirm the district court’s

4 order denying Defendant’s motion to suppress.

5   {20}   IT IS SO ORDERED.



6
7                                         CYNTHIA A. FRY, Judge

8 WE CONCUR:



 9
10 JAME J. WECHSLER, Judge


11
12 JONATHAN B. SUTIN, Judge




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