 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                           NO. 30,432

10 DANIEL GARZA,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Robert S. Orlik, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   Francine A. Chavez, Assistant Attorney General
17   Albuquerque, NM

18 for Appellant

19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellant Defender
21 Santa Fe, NM

22 for Appellee

23                                 MEMORANDUM OPINION

24 FRY, Judge.

25          The State appeals the district court’s grant of Defendant’s motion to suppress

26 evidence and the resulting dismissal of the charges against him. The district court
 1 ruled that physical evidence seized pursuant to a warrant issued as the result of a

 2 custodial interrogation without benefit of a Miranda warning was inadmissible as the

 3 [“]fruit of [the] poisonous tree.” For the reasons discussed below, we affirm.

 4 BACKGROUND

 5        Defendant was arrested on an outstanding warrant but was not advised of his

 6 rights under Miranda v. Arizona, 384 U.S. 436 (1966). After Defendant was in

 7 custody, the arresting officer, Agent Patrick Bucksath, asked Defendant whether he

 8 had anything illegal in his truck. Defendant answered, “Maybe a little accidental

 9 paraphernalia.”   Relying on Defendant’s unwarned statement, Agent Bucksath

10 detained the truck and obtained a search warrant for its contents.

11        The search of the vehicle yielded illicit drugs and paraphernalia. Defendant was

12 charged by criminal information with one felony count of trafficking a controlled

13 substance by distribution in violation of NMSA 1978, Section 30-31-20(A)(2) (2006),

14 five felony counts of possession of a controlled substance in violation of NMSA 1978,

15 Section 30-31-23 (2005), and one misdemeanor count of possession of drug

16 paraphernalia in violation of NMSA 1978, Section 30-31-25.1(A) (2001).

17        Because his statement was made without the benefit of a Miranda warning,

18 Defendant moved to suppress the physical evidence seized as a result of the search

19 warrant. The district court granted the motion to suppress, agreeing with Defendant


                                              2
 1 that the evidence was the [“]fruit of [the] poisonous tree.” On appeal, the State

 2 concedes that Defendant’s statement was given pursuant to an unwarned custodial

 3 interrogation. But the State raises three basic arguments why the physical evidence

 4 was admissible nonetheless.

 5        First, the State argues that under the United States Constitution, non-testimonial

 6 evidence seized as a result of unwarned but voluntary statements is admissible. For

 7 this argument, the State relies on United States v. Patane, 542 U.S. 630 (2004).

 8 Patane holds that the physical fruits of an unwarned confession are admissible,

 9 provided the confession was offered voluntarily. Id. at 637. This Court applied

10 Patane in State v. Adame, 2006-NMCA-100, 140 N.M. 258, 142 P.3d 26, also in the

11 context of a voluntary admission. The State argues that Defendant’s statement

12 regarding “accidental paraphernalia” was offered voluntarily and that, therefore,

13 Patane should apply. Second, the State argues that Defendant failed to preserve an

14 argument that, to the extent to which it affords greater protection than its federal

15 counterpart, the New Mexico Constitution should apply to this case. Third, the State

16 argues that even if Defendant did preserve that argument, he is not entitled to greater

17 relief under the New Mexico Constitution.




                                              3
 1 DISCUSSION

 2 Preservation of State Constitutional Issue

 3        As an initial matter, we consider the State’s argument that Defendant failed to

 4 preserve his argument that the New Mexico Constitution affords greater protection

 5 than the United States Constitution under the facts of this case. Had the State

 6 prevailed in the district court, it would be correct in arguing that we must review the

 7 record to determine whether Defendant preserved his state constitutional argument.

 8 However, Defendant prevailed below, and we are therefore free to consider the legal

 9 question whether the New Mexico Constitution would afford Defendant greater relief.

10 “As the appellee, . . . [the d]efendant was not strictly required to preserve his

11 arguments; we affirm if the trial court decision was right for any reason, as long as the

12 arguments in favor of affirmance are not fact[-]based such that it would be unfair to

13 entertain them for the first time on appeal without notice to the appellant.” State v.

14 Granville, 2006-NMCA-098, ¶ 12, 140 N.M. 345, 142 P.3d 933. Accordingly, we

15 conclude that it was unnecessary for Defendant to preserve the purely legal argument

16 that the New Mexico Constitution affords greater protection than the United States

17 Constitution.




                                               4
 1 Standard of Review

 2        A motion to suppress presents a mixed question of law and fact. State v.

 3 Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “[W]e review mixed

 4 questions of law and fact de novo, particularly when they involve constitutional

 5 rights.” State v. Verdugo, 2007-NMCA-095, ¶ 12, 142 N.M. 267, 164 P.3d 966

 6 (alteration in original) (internal quotation marks omitted). “We review the district

 7 court’s ruling on a motion to suppress to determine whether the law was correctly

 8 applied to the facts, viewing the facts in the light most favorable to the prevailing

 9 party.” State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785.

10 Interstitial Analysis

11        The issues in this case invoke both the right against unreasonable search and

12 seizure, under the Fourth Amendment of the United States Constitution and Article

13 II, Section 10 of the New Mexico Constitution, and the right against self-incrimination

14 protected by the Fifth Amendment of the United States Constitution and Article II,

15 Section 15 of the New Mexico Constitution. New Mexico applies interstitial analysis

16 of constitutional claims; that is, when faced with a question involving a right arguably

17 protected under both the New Mexico and United States Constitutions, we determine

18 first whether the right is protected under the federal constitution. State v. Gomez,




                                              5
 1 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. Only if it is not do we examine

 2 the claim under the state constitution. Id.

 3 Admissibility of Physical Fruits of Non-Mirandized Custodial Interrogation

 4        Having defined the constitutional framework under which we will analyze the

 5 issues on appeal, we proceed to a discussion of federal law and New Mexico’s

 6 application of federal law in this context. The crux of this matter is whether the State

 7 may introduce physical evidence seized on the basis of an admission made without the

 8 benefit of a Miranda warning. The State argues that this matter is controlled by

 9 Patane, which holds that the self-incrimination clause of the Fifth Amendment does

10 not require suppression of physical evidence obtained as a result of non-Mirandized

11 but voluntary statements. Patane, 542 U.S. at 637. The State notes that Miranda is

12 violated, not by the failure to warn an arrestee of his rights before questioning, but

13 only when statements taken in response to that questioning are introduced at trial.

14 “[P]olice do not violate the Constitution (or even the Miranda rule, for that matter) by

15 mere failures to warn.” Patane, 542 U.S. at 637. “Potential [Miranda] violations

16 occur, if at all, only upon the admission of unwarned statements into evidence at trial.”

17 Patane, 542 U.S. at 641. Therefore, the State argues, Agent Bucksath’s unwarned

18 custodial interrogation of Defendant was not, in itself, violative of Defendant’s rights

19 under the Fifth Amendment of the United States Constitution.


                                               6
 1        This Court applied the federal analysis set forth in Patane in Adame, 2006-

 2 NMCA-100, ¶ 14. Adame, like Patane, involved the admission by a felon that he

 3 possessed a firearm, in response to a custodial, non-Mirandized interrogation. Adame,

 4 2006-NMCA-100, ¶ 2; see Patane, 542 U.S. at 635. We note that, in Adame, the

 5 police obtained a warrant based on the unwarned admission, whereas in Patane, the

 6 police seized evidence on the spot. Patane, 542 U.S. at 635; Adame, 2006-NMCA-

 7 100, ¶ 2. As is noted above, this case involves an arrest warrant and is therefore more

 8 similar to Adame (though this distinction is ultimately immaterial under federal law

 9 because Patane holds that only testimonial evidence is subject to Fifth-Amendment

10 protection). Patane, 542 U.S. at 637. Adame followed Patane in holding that the

11 firearm was admissible because

12        Miranda is a prophylactic rule designed to effectuate the right a suspect
13        has not to be compelled to testify against himself at a criminal trial.
14        These concerns are not implicated by admitting into evidence the fruits
15        of unwarned statements. In fact, statements taken in violation of the
16        Miranda rule have long been held to be admissible in evidence for
17        impeachment purposes. Thus, using unwarned statements to obtain
18        physical evidence is no more a violation of the constitution than using
19        unwarned statements for other proper purposes, i.e., purposes not
20        involving use as evidence in the prosecution’s case in chief.

21 Adame, 2006-NMCA-100, ¶ 10 (citations omitted). But see State v. Wagoner, 2001-

22 NMCA-014, ¶ 21, 130 N.M. 274, 24 P.3d 306 (“The essence of a provision forbidding

23 the acquisition of evidence in a certain way is that not merely evidence so acquired


                                              7
 1 shall not be used before the Court but that it shall not be used at all.” (emphasis

 2 added) (internal quotation marks omitted)). As had the Patane court, we limited our

 3 holding to voluntary statements. Adame, 2006-NMCA-100, ¶ 10; see Patane, 542

 4 U.S. at 634, 639, 644. Because we concluded that the confession had been made

 5 voluntarily, we held that the trial court had properly applied Patane to allow the gun

 6 into evidence. Adame, 2006-NMCA-100, ¶ 14.

 7        Accordingly, in the present case, we consider the determinative factor under

 8 federal analysis: whether Defendant’s unwarned statement was given voluntarily. In

 9 its letter decision, the district court found that:

10               1.     Defendant was in custody on warrant served;

11               2.     Defendant was not [M]irandized before being questioned
12                      although “in custody.” Defendant had been handcuffed;

13               3.     All of [D]efendant’s verbal responses to questioning should
14                      be suppressed; [and]

15               4.     This information was then used to acquire the warrant for
16                      search. Items seized thereafter should be suppressed as
17                      [“]fruit of [the] poisonous tree.”

18 Voluntariness of Defendant’s Statement

19        The district court did not specify whether it found Defendant’s unwarned

20 statement to be voluntary. However, because we review the ruling in the light most

21 favorable to affirmance, we presume that the district court relied on federal law in


                                                8
 1 reaching its decision, that it determined that the statement was involuntary, and,

 2 therefore, that the resulting physical evidence should be suppressed. See Cline, 1998-

 3 NMCA-154, ¶ 6; see also State v. Burk, 82 N.M. 466, 469, 483 P.2d 940, 943 (Ct.

 4 App. 1971) (stating that “the judge’s conclusions are clearly evident from the record

 5 since he either admits the confession into evidence if it is voluntary or rejects it if

 6 involuntary” (internal quotation marks omitted)).

 7        The State bears the burden of proving by a preponderance of the evidence that

 8 Defendant’s statement was voluntary. State v. Cooper, 1997-NMSC-058, ¶ 30, 124

 9 N.M. 277, 949 P.2d 660. The methods used to obtain the statement must be

10 “compatible with a system that presumes innocence.” Id. (internal quotation marks

11 omitted). The statement must not have been extracted “through fear, coercion, hope

12 of reward or other improper inducements.” Id. (internal quotation marks omitted).

13 If the State fails to carry this burden, we must find as a matter of law that the

14 statement was involuntary. Id. We review the question of voluntariness de novo,

15 examining “the entire record and circumstances surrounding the confession.” State

16 v. Salazar, 1997-NMSC-044, ¶ 59, 123 N.M. 778, 945 P.2d 996. “We will look to the

17 totality of the circumstances as a basis for our legal conclusion. However, when faced

18 with conflicting evidence, we will defer to the factual findings of the trial court, as




                                              9
 1 long as those findings are supported by evidence in the record.”           Cooper,

 2 1997-NMSC-058, ¶ 26 (citation omitted).

 3        We analyze claims of involuntary confessions under the three-part test

 4 described in Cooper, 1997-NMSC-058, ¶ 25. The first phase explores the facts

 5 surrounding the confession, examining the totality of the circumstances under which

 6 the confession was made. Id. ¶ 26. The second phase involves a subjective

 7 “determination of how the accused reacted to the external facts.” Id. ¶ 27 (internal

 8 quotation marks omitted). “This is an admittedly imprecise effort to infer—or

 9 imaginatively recreate—the internal psychological response of the accused to the

10 actions of law enforcement officials.” Id. The third phase examines the “legal

11 significance” of the defendant’s reaction to the circumstances surrounding his

12 confession. Id. ¶ 28.

13        As to the first prong of the test, the evidence revealed the following. After

14 Defendant was in custody and handcuffed, Agent Bucksath asked whether there was

15 anything illegal in the truck, which Defendant denied. Agent Bucksath requested, and

16 Defendant denied, consent to search the vehicle. Defendant was cooperative and

17 asked whether he could eat the hamburger he had ordered while the pair waited for a

18 vehicle to transport Defendant to the detention center. Agent Bucksath repositioned

19 Defendant’s handcuffs in front of him to allow him to eat.


                                            10
 1        Defendant asked whether he could use his own cell phone to arrange to have his

 2 truck picked up, and Agent Bucksath agreed. Defendant placed three calls in an

 3 attempt to locate the truck’s owner. During one call, the agent overheard Defendant

 4 say, “poquito, no más,” which he understood to mean “a little bit, not much.” The

 5 agent’s first thought was that the person on the phone had asked, “Are you holding

 6 anything?” Once Defendant was off the phone, Agent Bucksath asked him, again,

 7 whether he had anything illegal in the truck. This time, Defendant answered, “Maybe

 8 a little accidental paraphernalia.”

 9        Because Agent Bucksath was the only witness at the suppression hearing, the

10 record contains no direct evidence of Defendant’s subjective state of mind during the

11 interrogation. However, we can reasonably infer that, as to the second prong of the

12 Cooper test, Defendant felt coerced. See Aguilar v. State, 106 N.M. 798, 803, 751

13 P.2d 178, 183 (1988) (explaining that “[i]n contrast to the Court’s deferment under the

14 first phase of the analysis, the appellate court in the second and third phases of the

15 analysis must draw its own conclusions based on the totality of the circumstances”).

16 There was evidence that Defendant repeatedly tried and failed to reach the truck’s

17 registered owner by phone within the time before a police vehicle arrived to transport

18 him to the detention center. As a result, it appears that Agent Bucksath capitalized on

19 Defendant’s increasing stress and frustration as he exhausted avenues for reaching the


                                             11
 1 truck’s owner within the time available to him, asking again about illegal items once

 2 Defendant’s hopes of reaching the truck’s owner had begun to wane.

 3        The third Cooper phase requires us to determine the “legal significance” of

 4 Defendant’s reaction to the circumstances of the questioning. 1997-NMSC-058, ¶ 28.

 5 We acknowledge the State’s argument that Defendant’s statement was voluntary

 6 because he was cooperative, was allowed to eat his hamburger, and was allowed to

 7 make calls on his personal phone. We consider those facts in the “totality of the

 8 circumstances.” Id. ¶ 26. But we are not persuaded that, as a matter of law, the record

 9 can only be interpreted as depicting a voluntary statement. As we discussed above,

10 the record shows that Agent Bucksath conducted a custodial interrogation pursuant

11 to an investigation unrelated to the purpose of his detention of Defendant, but that he

12 did not first advise Defendant of his constitutional rights. Once Defendant was under

13 the stress and pressure of his inability to find the registered owner of his truck, the

14 agent then reopened a line of questioning he had closed. Only then did he succeed in

15 extracting the confession the State now alleges was offered voluntarily.

16        Applying the Cooper test described above, we hold that the State failed to carry

17 its burden of establishing that Defendant’s confession of “accidental paraphernalia”

18 was voluntary. While agent Bucksath did not engage in brutal physical tactics of

19 interrogation, he did take advantage of a stressful situation to inquire a second time


                                             12
 1 into matters, unrelated to the reasons for the detention, regarding which he had already

 2 been provided an answer.

 3         Under federal analysis, physical evidence seized pursuant to an unwarned

 4 statement is admissible only when the statement is voluntary. See Patane, 542 U.S.

 5 at 640 (stating that “those subjected to coercive police interrogations have an

 6 automatic protection from the use of their involuntary statements (or evidence derived

 7 from their statements) in any subsequent criminal trial” (emphasis omitted) (internal

 8 quotation marks omitted)). Because we conclude that the district court properly found

 9 Defendant’s statement to be involuntary, we hold that the evidence seized as a result

10 of the statement was inadmissible. In light of our holding, we need not engage in

11 analysis under the New Mexico Constitution.

12 CONCLUSION

13        We conclude that the non-testimonial fruits of Defendant’s unwarned

14 confession were inadmissible under the facts of this case. Accordingly, we affirm the

15 district court’s grant of Defendant’s motion to suppress.

16        IT IS SO ORDERED.



17
18                                         CYNTHIA A. FRY, Judge




                                              13
1 WE CONCUR:



2
3 LINDA M. VANZI, Judge



4
5 TIMOTHY L. GARCIA, Judge




                             14
