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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. 35,369

 5 ARTURO GARCIA-PONCE,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
 8 Albert J. Mitchell, 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 D. Eric Hannum
15 Albuquerque, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
 1   {1}   The State appeals from the district court’s amended order suppressing the

 2 evidence. We were persuaded that the district court erred on multiple grounds, but not

 3 on all grounds asserted by the State. We also believed that further proceedings were

 4 appropriate. We issued a notice of proposed summary disposition, proposing to

 5 reverse and remand. The State filed a notice of non-filing, and Defendant filed a

 6 memorandum in opposition. We have considered the parties’ responses and remain

 7 persuaded that the district court erred and further proceedings are required. We

 8 therefore reverse and remand.

 9   {2}   In its docketing statement, the State challenged the district court’s suppression

10 order on four grounds: (1) standing was immaterial or that Defendant had standing to

11 object to the search; (2) Miranda warnings were required during the traffic stop; (3)

12 Defendant’s consent to the search was invalid; and (4) suppression of all physical

13 evidence and statements made by Defendant was warranted. [DS 4] We do not

14 construe the district court’s order in the same manner as the State in its docketing

15 statement. We construe the district court’s order to rule that Defendant’s standing was

16 immaterial because either he did not have standing to consent to the search, which

17 would render the search illegal, or he did have standing and could consent to the

18 search, as the State argued. [RP 125] Also, we construe the district court’s order to

19 rule that Defendant was arrested and was not given Miranda warnings and, therefore,

20 his statements, his consent to the search, and the physical evidence must be

                                               2
 1 suppressed. [RP 124-26] We are not persuaded that the district court evaluated the

 2 validity or scope of Defendant’s consent.

 3   {3}   With this understanding of the district court’s order, our notice proposed to hold

 4 that there were grave flaws in the district court’s reasoning and legal conclusions. We

 5 continue to believe that the following flaws require reversal, which we explain more

 6 fully below. First, Defendant’s standing was not immaterial. Second, Defendant was

 7 not under arrest, but rather subject to an investigatory detention, and therefore

 8 Miranda warnings were not required. As a result, the district court’s suppression of

 9 the evidence is not justified by the failure to Mirandize Defendant. Third, Miranda

10 warnings are not a pre-requisite to obtaining valid consent to search, and consent to

11 search is not a statement subject to suppression.

12   {4}   Because the district court related Defendant’s standing to his consent and

13 related Defendant’s consent to the officer’s failure to Mirandize Defendant, we

14 discuss these matters in reverse order, starting with whether Defendant was under

15 arrest for purposes of Miranda. Within this framework, we also address Defendant’s

16 memorandum in opposition.

17 Defendant Was Not Under Arrest

18   {5}   As our notice proposed to hold, the district court made a legal error by

19 concluding that when the officer decided to restrain Defendant due to the smell of raw

20 marijuana and decided he was not free to leave, the officer needed to have given

                                               3
 1 Defendant Miranda warnings before continuing the interrogation. [RP 126] We

 2 explained that our Court has addressed this legal misconception and held that “this

 3 ‘free-to-leave’ formulation of the test is problematic because in some circumstances,

 4 such as routine traffic stops, a person is seized and does not believe he or she is free

 5 to leave but is also not in custody under Miranda.” State v. Wilson, 2007-NMCA-111,

 6 ¶ 15, 142 N.M. 737, 169 P.3d 1184. The free-to-leave inquiry is only the beginning

 7 of the Miranda analysis that determines whether the person was seized. See id. ¶ 22.

 8 “[B]ecause not every seizure constitutes custody for purposes of Miranda[,]” the

 9 analysis continues if a person is not free to leave. Id. (internal quotation marks and

10 citation omitted). “In determining whether a person is in Miranda custody while being

11 interrogated, the court must apply an objective test to resolve the ultimate inquiry: was

12 there a formal arrest or restraint on freedom of movement of the degree associated

13 with a formal arrest.” Id. ¶ 14 (internal quotation marks and citation omitted). “The

14 following factors guide our inquiry: the purpose, place, and length of interrogation,

15 the extent to which the defendant is confronted with evidence of guilt, the physical

16 surroundings of the interrogation, the duration of the detention, and the degree of

17 pressure applied to the defendant.” State v. Hermosillo, 2014-NMCA-102, ¶ 11, 336

18 P.3d 446 (alteration, omission, internal quotation marks, and citation omitted).

19   {6}   In the present case, the officer made a routine traffic stop of Defendant for

20 speeding, in which the officer asked Defendant for his license, registration, and proof

                                               4
 1 of insurance, then issued him traffic citation. [RP 82, 116] This constituted a seizure,

 2 not police custody under Miranda. See Wilson, 2007-NMCA-111, ¶ 25; see also State

 3 v. Candelaria, 2011-NMCA-001, ¶ 18, 149 N.M. 125, 245 P.3d 69 (stating that asking

 4 for a driver’s license, registration, and proof of insurance are inquiries that “do not

 5 implicate a suspect’s Fourth Amendment rights”). The officer smelled a strong odor

 6 of raw marijuana during the course of the stop and, after issuing the citation, the

 7 officer asked Defendant about marijuana use in the vehicle and whether there was any

 8 marijuana in the vehicle. [RP 71, 78, 82] We proposed to hold that this a reasonable

 9 expansion of the detention, because the odor of marijuana supplied reasonable

10 suspicion of criminal activity and even probable cause. See Candelaria, 2011-NMCA-

11 001, ¶ 21 (holding that even if the patdown for weapons was improper, following a

12 routine traffic stop, the extended detention was justified based on the smell of

13 marijuana); State v. Capps, 1982-NMSC-009, ¶ 12, 97 N.M. 453, 641 P.2d 484 (“The

14 smell of marijuana alone can satisfy the probable cause requirement for a warrantless

15 search.”). Defendant told the officer that there was marijuana inside a blue backpack

16 in the trunk of the car. [RP 76] The officer requested and received consent from

17 Defendant to search the vehicle. [RP 62, 82] The officer asked for the passenger’s

18 license and instructed Defendant and the passenger to stand on the shoulder of the

19 road about thirty yards away. [RP 76] Moments later three officers arrived to assist

20 with security and the search. [Id.] The blue backpack was found and contained

                                              5
 1 marijuana, and a small amount of cocaine, a pipe, and more marijuana was discovered

 2 on the rear passenger floorboard in a medicine container. [Id.] The officer placed

 3 Defendant under arrest, handcuffed him, placed him in the rear of his patrol vehicle,

 4 and read Defendant his Miranda rights. [RP 76-77]

 5   {7}   We saw nothing in the evidence recounted above to suggest that Defendant was

 6 subjected to an unreasonably long detention, such that he was under de facto arrest.

 7 See State v. Skippings, 2014-NMCA-117, ¶¶ 19, 25, 338 P.3d 128 (examining cases

 8 where ten-, thirty-, and forty-minute long roadside detentions were not unreasonable

 9 de facto arrests). Nor is there any evidence of coercive interrogation or coercive

10 restraint on Defendant’s freedom of movement; such as handcuffing, confinement in

11 a small space, and overwhelming police presence. See, e.g., State v. Nieto, 2000-

12 NMSC-031, ¶¶ 18-21, 129 N.M. 688, 12 P.3d 442 (holding that even where the

13 defendant was being questioned in a police station in a small room with the door

14 closed and a detective blocking the exit, the defendant’s freedom was not restricted

15 in a manner that constituted Miranda custody); Wilson, 2007-NMCA-111, ¶¶ 17, 25-

16 28 (analyzing several cases where the police interaction was more invasive and did not

17 constitute a custodial interrogation). It appears that the encounter proceeded as a

18 temporary, noninvasive investigatory detention, where the officer was speaking

19 conversationally with Defendant when Defendant made incriminating statements, and

20 then the officer had him leave the vehicle to stand on the roadside away from the

                                             6
 1 officers during the search. Accordingly, we were not persuaded that Defendant was

 2 subjected to treatment that rendered him under formal arrest, such that Miranda

 3 warnings should have been given. Thus, we proposed to hold that the district court’s

 4 grounds for suppression the evidence were erroneous.

 5   {8}   In response to our notice, Defendant maintains that he was in custody because

 6 he was not free to leave and because the officer claimed to have smelled marijuana,

 7 which made it clear that serious allegations were afoot. [MIO 4] He contends that the

 8 normal restrictions of a routing traffic stop for speeding escalated to a point that must

 9 be considered analogous to arrest. Defendant does not rely on any analogous authority

10 to support his arguments. We are not persuaded that Defendant’s assertions make the

11 investigative detention seem any more coercive, lengthy, or confining than we

12 previously believed. We are not persuaded that Defendant was subjected to a custodial

13 interrogation that required Miranda warnings. As such, we are not persuaded that

14 suppression of Defendant’s statements or the physical evidence was justified on the

15 grounds stated by the district court.

16 The Officer Had Reasonable Suspicion to Expand the Stop

17   {9}   Defendant’s other argument in his memorandum in opposition is that we should

18 affirm the suppression of the evidence because the officer lacked reasonable suspicion

19 to question Defendant about marijuana. [MIO 5] Defendant asks us to affirm on these

20 alternate grounds under the doctrine of “right for any reason.” [MIO 4-5] Defendant

                                               7
 1 bases his argument on the officer’s statement that he smelled raw marijuana and on

 2 the State’s concession that the officer must have been mistaken because the small

 3 amount of raw marijuana in the trunk in the backpack would not have emitted the

 4 overwhelming odor the officer claimed to have detected. [MIO 5] The State explained

 5 that the officer must have smelled burned marijuana, instead. [MIO 5] Defendant

 6 seems to argue that because the officer’s testimony was that he smelled raw marijuana

 7 and that could not be true, there was no basis to expand the traffic into questions about

 8 marijuana. [MIO 4-5]

 9   {10}   It is for the fact-finder to resolve conflicts in the evidence, not this Court. See

10 State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that

11 it is for the fact-finder to resolve any conflict in the testimony of the witnesses and to

12 determine where the weight and credibility lie). The district court’s findings indicate

13 that it believed the officer was overwhelmed by the smell of raw marijuana. [RP 124,

14 126] The officer’s detection of the odor of marijuana supplied him with reasonable

15 suspicion of criminal activity sufficient to continue the detention and expand it into

16 an investigation of his suspicion. See Candelaria, 2011-NMCA-001, ¶ 21 (holding

17 that even if the patdown for weapons was improper, following a routine traffic stop,

18 the extended detention was justified based on the smell of marijuana); Capps,

19 1982-NMSC-009, ¶ 12 (“The smell of marijuana alone can satisfy the probable cause



                                                 8
 1 requirement for a warrantless search.”). Based on the foregoing, we reject Defendant’s

 2 claim that the officer lacked reasonable suspicion.

 3 Consent to Search

 4   {11}   As our notice indicated, to the extent the district court ruled that Defendant’s

 5 consent was invalid or inadmissible for the failure to give Miranda warnings, we are

 6 not persuaded. “We have held that Miranda warnings are not a prerequisite to

 7 obtaining a valid consent to search.” State v. Shaulis-Powell, 1999-NMCA-090, ¶ 16,

 8 127 N.M. 667, 986 P.2d 463; see State v. Carlos A., 2012-NMCA-069, ¶ 16, 284 P.3d

 9 384 (“[A] a police officer requesting consent to search an automobile need not advise

10 the person of the right to refuse consent in order to obtain valid consent, but the

11 person’s knowledge of this right is a factor to be considered in analyzing

12 voluntariness.”); cf. State v. Randy J., 2011-NMCA-105, ¶¶ 13-20, 150 N.M. 683, 265

13 P.3d 734 (holding that even where Miranda warnings should have been given, a

14 child’s consent to a blood test is not testimonial within the meaning of the Fifth

15 Amendment and not therefore a statement subject to exclusion in the absence of

16 Miranda warnings). We continue to believe the district court erred by ruling that

17 Defendant’s consent was invalid or inadmissible on Miranda grounds, because they

18 are unrelated concepts. Also, as we stated in our notice, the district court did not

19 otherwise rule on the validity of Defendant’s consent.

20 Defendant’s Standing

                                                9
 1   {12}   We would like to point out that Defendant’s consent and the scope thereof is

 2 similar, but not the same as Defendant’s standing to challenge various aspects of the

 3 encounter, contrary to the implication in the district court’s first legal conclusion. [RP

 4 125] Our notice proposed to reach the merits of Defendant’s standing, given that it is

 5 a material inquiry. Our notice set forth the appropriate case law and inquiry for

 6 assessing Defendant’s standing, which was not fully argued below, and proposed to

 7 hold that Defendant had a reasonable expectation of privacy sufficient to establish

 8 standing to challenge the search of the vehicle that he was driving. See State v. Van

 9 Dang, 2005-NMSC-033, ¶ 7, 138 N.M. 408, 120 P.3d 830 (“To establish standing,

10 [a d]efendant must demonstrate that he had a subjective expectation of privacy that

11 society will recognize as reasonable.”). The State did not oppose our proposed

12 analysis. Upon reflection, we believe it is more prudent to simply reverse the district

13 court’s determination that Defendant’s standing was immaterial. We include on

14 remand the need for further proceedings under the legal standards set forth in our

15 notice and for the district court to rule on Defendant’s standing to challenge the search

16 of the vehicle and/or the backpack.

17 Questions Remaining on Remand

18   {13}   Because we reverse the district court’s order on threshold matters, we explain

19 the questions remaining on remand. As stated above, Defendant’s standing to

20 challenge the search of vehicle and/or backpack is material and should be analyzed

                                               10
 1 under the case law set forth in our notice. Also, as we explained in our notice, neither

 2 Defendant’s consent nor a warrant is required if probable cause and exigent

 3 circumstances justified the search. Because the district court suppressed the evidence

 4 on different, erroneous grounds, we remand for further proceedings on presence of

 5 probable cause and exigent circumstances to justify the search of the backpack. If the

 6 search cannot be justified on this basis, then further proceedings are required to

 7 determine whether Defendant’s consent to search was valid and extended to the

 8 backpack.

 9   {14}   Based on the foregoing, we reverse the district court and remand for further

10 proceedings on the matters described above.




11   {15}   IT IS SO ORDERED.


12                                         __________________________________
13                                         LINDA M. VANZI, Chief Judge

14 WE CONCUR:


15 _________________________________
16 JAMES J. WECHSLER, Judge


17 _________________________________


                                              11
1 MICHAEL E. VIGIL, Judge




                            12
