 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the 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. 27,884

10 THOMAS CUNNINGHAM,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Carl J. Butkus, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   James W. Grayson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Karl Erich Martell, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 GARCIA, Judge.

25          The question before us is whether the inventory search of the vehicle Defendant
 1 was driving was lawful. We conclude that the officers lacked justification to impound

 2 the vehicle. Consequently, the inventory search prior to towing was unconstitutional.

 3 The Defendant’s motion to suppress should have been granted. We reverse.

 4 BACKGROUND

 5        As part of their routine patrol, Sergeant Peter Hackett and Detective Duffy Ryan

 6 checked license plates in search of stolen vehicles. On the day in question, the

 7 officers observed Defendant and another male standing next to an Oldsmobile sedan

 8 in the parking lot of the Comfort Inn in northeast Albuquerque. The officers

 9 attempted to read the license plate on the car but could not read it. The plate was

10 located in the rear window of the car. The officers became concerned that the vehicle

11 might be stolen since many stolen vehicles have license plates that are difficult to read

12 and are placed in rear windows. The placement of the license plate, along with

13 Defendant’s actions in leaving the vehicle and returning to the hotel after seeing the

14 officers, also raised the officers’ suspicion regarding criminal activity.

15        The officers began an investigation of Defendant and the car. They spoke with

16 the hotel clerk about Defendant. They ran a warrant search on Defendant and spoke

17 to a probation officer about Defendant. They then began watching the car from across

18 the street. Shortly after they began surveillance, Defendant drove the car out of the

19 parking lot. The officers concluded that the license plate was illegally displayed, so


                                               2
 1 they initiated a traffic stop. Defendant pulled into another hotel parking lot. As the

 2 officers pulled up behind the car, they saw Defendant doing something between the

 3 front seats [of the car]. The officers approached the car and pulled Defendant out of

 4 the car. They then asked Defendant for his driver’s license, as well as proof of

 5 insurance, and registration.

 6        Sergeant Hackett testified that it “[t]urned out the vehicle [Defendant] was

 7 driving was not insured.” Based on the alleged lack of insurance documentation for

 8 the vehicle and Albuquerque Police Department standard operating procedure, the

 9 officers decided to impound the car. The officers determined that the car was not

10 stolen. The car did not belong to Defendant, and he had borrowed it from someone.

11 Before towing the car, the officers conducted an inventory search on the car. The

12 search uncovered crack cocaine. The officers arrested Defendant.

13        Prior to trial, Defendant filed a motion to suppress arguing that both the stop

14 and the search were illegal.       The district court denied Defendant’s motion,

15 determining that the stop was lawful and not pretextual and that the search was lawful

16 because the car was uninsured. Subsequent to the denial of his motion to suppress,

17 Defendant pleaded no contest to trafficking charges but reserved his right to appeal

18 the district court’s denial of his motion to suppress. Defendant argues the following

19 grounds for appeal: (1) the district court should have granted the motion to suppress


                                             3
 1 because the stop was pretextual and because the vehicle should not have been

 2 impounded; (2) he received ineffective assistance of counsel; and (3) at the

 3 suppression hearing, the court erred in allowing the State’s witness to remain in the

 4 courtroom during Defendant’s opening statement and in allowing the State to talk to

 5 its witness before the hearing.

 6 DISCUSSION

 7        “The standard of review for suppression rulings is whether the law was

 8 correctly applied to the facts, viewing the facts in the manner most favorable to the

 9 prevailing party.” State v. Garcia, 2009-NMSC-046, ¶ 9, 147 N.M. 134, 217 P.3d

10 1032. We review factual determinations for substantial evidence and the application

11 of the law to the facts de novo. Id. The facts as presented at the suppression hearing

12 are undisputed, and therefore, our review is de novo.

13 Illegal Impoundment of the Vehicle

14        Defendant argues that the inventory search of the vehicle was unlawful because

15 the police did not have authorization justifying the seizure of the vehicle and because

16 the search was unreasonable. The State contends Defendant’s arguments were not

17 preserved below. We disagree.

18        The rules of preservation are to ensure that the district court had the opportunity

19 to rule on the issue and that there is an adequate record for appeal. See Rule 12-


                                               4
 1 216(A) NMRA (“To preserve a question for review it must appear that a ruling or

 2 decision by the district court was fairly invoked[.]”); State v. Reyes, 2002-NMSC-024,

 3 ¶ 41, 132 N.M. 576, 52 P.3d 948 (explaining that parties must object at trial in order

 4 to alert the court of the perceived error, to allow the court to correct any error, and to

 5 provide an adequate record for appellate review). The record indicates that the district

 6 court was aware of the issues that Defendant raises on appeal. In his motion to

 7 suppress, Defendant challenged the legality of the stop, the warrantless search, and

 8 subsequent arrest. At the suppression hearing, Defendant again challenged the stop

 9 and the search. The district court acknowledged that the two issues before it at the

10 hearing were whether the stop was legal and whether the search was legal. In

11 response, the State argued that pursuant to State v. Ruffino, 94 N.M. 500, 612 P.2d

12 1311 (1980), the inventory search was justified because the car appeared to be

13 uninsured and normal operating procedures allowed for impoundment of uninsured

14 vehicles. The court then ruled on both issues, determining that the search was valid

15 based on the lack of insurance. It is clear that the district court ruled on the issue now

16 before us—whether the search was justifiable, and there is a record for us to review

17 on appeal. Concluding that the issue was preserved, we turn to the merits of

18 Defendant’s argument.

19        Warrantless searches are unconstitutional unless they fall into one of the


                                               5
 1 exceptions to the warrant requirements. Id. at 501, 612 P.2d at 1312; see U.S. Const.

 2 amend. IV; N.M. Const. art. II, § 10. We have recognized that inventory searches are

 3 permissible and constitutional if three requirements are met: (1) the vehicle to be

 4 inventoried is in police control or custody; (2) the inventory search is made pursuant

 5 to established police regulations; and (3) the search is reasonable. Ruffino, 94 N.M.

 6 at 502, 612 P.2d at 1313. “Custody of the vehicle must be based on some legal

 7 ground . . . .” Id. (citations omitted).

 8        Defendant does not challenge the second requirement that, as Sergeant Hackett

 9 testified, Albuquerque Police Department’s standard operating procedures allow for

10 impoundment of uninsured vehicles. Instead, Defendant argues that the officers

11 lacked legal ground for taking custody of the vehicle and that the search was

12 unreasonable. In response, the State contends that the officers had legal justification

13 based on NMSA 1978, Section 66-5-205 (1998) and Albuquerque City Ordinance

14 Section 8-5-2-4(A)(15) (1996). At the suppression hearing, Sergeant Hackett testified

15 that he relied upon Defendant’s violation of the motor vehicle code and the city

16 ordinance as the justification for towing the car. The district court concluded that the

17 inventory search was valid “based upon the lack of insurance[.]”

18        Section 66-5-205 prohibits the operation of an uninsured motor vehicle. The

19 statute however does not permit towing of an uninsured vehicle.              The legal


                                              6
 1 justification for towing the uninsured vehicle, therefore, is premised upon the city

 2 ordinance. Albuquerque City Ordinance Section 8-5-2-4(A)(15) states:

 3              (A) Any municipal police officer . . . may order the
 4        impoundment of any vehicle within the municipal corporate limits,
 5        without prior notice to the owner or operator thereof, under the following
 6        circumstances:

 7              ....

 8                    (15) When a vehicle is being driven unsafely under state
 9        law due to one of the following:

10                           (a) Failure to have insurance on the vehicle as
11        required under state law and as documented by one of the following:

12                                   1.    An admission by the driver or other
13        occupant of the vehicle;

14                                  2.    Confirmation through the New Mexico
15        Department of Motor Vehicle records showing a prior citation for failure
16        to have insurance within the past six months;

17                                 3.     Confirmation by the citing officer that
18        the insurance company that the driver claims covers the vehicle does not
19        in fact cover it.

20 Section 8-5-2-4(A)(15) permits impounding a vehicle if the officer has either an

21 admission by the driver or other occupant of the vehicle that the vehicle is uninsured

22 or confirmation of no insurance from the Department of Motor Vehicle or the alleged

23 insurance company. There was no evidence at the hearing that Defendant admitted

24 the vehicle was uninsured. In addition, there is no evidence that the officer had the


                                              7
 1 necessary documentation or made the necessary inquiries to determine that the vehicle

 2 was uninsured pursuant to the requirements of the ordinance. At the motion to

 3 suppress hearing, Sergeant Hackett stated only, “Turned out the vehicle he was

 4 driving was not insured.”     This statement does not establish that he had the

 5 prerequisite information or documentation to tow the vehicle.

 6        The vehicle was not Defendant’s vehicle, and there is no evidence that

 7 Defendant would have knowledge regarding the status of the vehicle’s insurance.

 8 Defendant was not cited for lack of insurance. The record is void of any inquiry made

 9 through the New Mexico Department of Motor Vehicle records to establish any prior

10 citations for failure to have insurance. Finally, no inquiry was made through the

11 actual owner or any insurance company to determine whether the vehicle was insured.

12        Without documentation demonstrating the lack of insurance for the vehicle, the

13 officers did not have authority under Albuquerque City Ordinance Section 8-5-2-

14 4(A)(15) to impound the vehicle Defendant was driving. Since the officers did not

15 have the authority to impound the vehicle, the vehicle was not under their lawful

16 custody and control. Consequently, they did not have the authority to conduct an

17 inventory search prior to towing. See Ruffino, 94 N.M. at 502, 612 P.2d at 1313

18 (requiring the vehicle be in the lawful custody or control of the officer prior to an

19 inventory search). The State has thus failed to meet its burden of proving the


                                             8
 1 lawfulness of the warrantless inventory search of the vehicle that Defendant was

 2 driving. Pursuant to our de novo review of the district court’s application of the law

 3 to the facts of this case, we conclude that the district court erred in concluding that the

 4 officers had the authority to impound the vehicle. We reverse the district court’s

 5 denial of Defendant’s motion to suppress.

 6        The State contends that the officers had authority to perform the inventory

 7 search because it was standard operating procedure for the police department. This

 8 argument fails to satisfy the first requirement for a valid inventory search—that the

 9 vehicle is properly in police custody and control. See id. (noting that all three

10 requirements must be met—custody and control, established police regulations, and

11 reasonableness). Defendant does not argue that the search was invalid based upon the

12 second requirement of the Ruffino test. Regardless, the State’s argument is moot since

13 we have concluded that the search was invalid under the first requirement to establish

14 proper custody and control.

15        The State next argues that we should apply the “right for any reason doctrine”

16 and affirm the district court because the search was a valid search based on Sergeant

17 Hackett’s concern for his safety. Under the right for any reason doctrine, we will

18 affirm the district court’s decision if it is right for any reason as long as our decision

19 is not unfair to Defendant. See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M.


                                                9
 1 185, 152 P.3d 828. In general, in order to justify a warrantless search of the vehicle

 2 during the investigatory stop, the State had to prove that exigent circumstances existed

 3 that caused the officers to have concern for their safety. See also State v. Garcia,

 4 2005-NMSC-017, ¶ 30, 138 N.M. 1, 116 P.3d 72. During closing argument at the

 5 suppression hearing, the district court specifically asked the State if it was arguing

 6 exigent circumstances.      The State responded that it was not arguing exigent

 7 circumstances in this case. In conclusion, the State argued the search was a valid

 8 inventory search based on a valid stop. Based on the State’s decision not to pursue

 9 an exigent circumstances argument, we will not affirm the district court on those

10 grounds. The State made it clear that it was not arguing exigent circumstances,

11 Defendant did not address exigent circumstances below, and the court did not rule on

12 those grounds. We shall not justify the vehicle’s search on the basis of exigent

13 circumstances when the State discarded and abandoned those grounds below.

14 Defendant’s Other Claims

15        Since we reverse the district court’s denial of Defendant’s motion to suppress,

16 we do not need to reach Defendant’s other appellate arguments.

17 CONCLUSION

18        We reverse the district court’s denial of Defendant’s motion to suppress the

19 evidence seized as a result of the inventory search.          We remand for further


                                              10
1 proceedings consistent with this opinion.

2       IT IS SO ORDERED.

3                                              ______________________________
4                                              TIMOTHY L. GARCIA, Judge


5 WE CONCUR:


6 _________________________________
7 MICHAEL D. BUSTAMANTE, Judge


8 _________________________________
9 RODERICK T. KENNEDY, Judge




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