                                                            I attest to the accuracy and
                                                             integrity of this document
                                                               New Mexico Compilation
                                                             Commission, Santa Fe, NM
                                                            '00'04- 15:40:33 2012.08.08
Certiorari Denied, June 12, 2012, No. 33,555

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-069

Filing Date: March 13, 2012

Docket No. 30,670

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CARLOS A.,

       Child-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge

Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
Santa Fe, NM

for Appellee

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM

for Appellant

                                          OPINION

FRY, Judge.

{1}     Carlos A. asks us to determine that his status as a minor rendered involuntary his
consent to search the car he was driving because the police officer requesting the search
failed to inform Carlos that he had the right to deny consent. We hold that minors have no
greater rights than adults in the context of consent to search and that the officer’s failure to


                                               1
advise Carlos of the right to deny consent did not render his consent involuntary. We affirm
the district court’s denial of Carlos’s suppression motion.

BACKGROUND

{2}    The State filed a delinquency petition against Carlos charging him with distribution
or possession with intent to distribute marijuana, possession of drug paraphernalia, and
driving without a light illuminating the license plate. Carlos filed a motion to suppress,
arguing primarily that his consent to search was invalid under NMSA 1978, Section 32A-2-
14 (2009), State v. Javier M., 2001-NMSC-030, 131 N.M. 1, 33 P.3d 1, the Fourth
Amendment to the United States Constitution, and Article II, Section 10 of the New Mexico
Constitution.

{3}     Officer Guy Postlewait testified at the suppression hearing that on an evening in
February 2010, he was on patrol in Farmington, New Mexico, when he observed a car whose
license plate was unreadable from fifty feet. He initiated a traffic stop and made contact with
Carlos, the driver. Officer Postlewait immediately smelled a very strong odor of marijuana
coming from inside the car, and he saw a bandana with a marijuana-leaf design hanging from
the rearview mirror. Carlos had no identification and no driver’s license, but he told the
officer his name, and the officer later confirmed his identity. Officer Postlewait asked
Carlos why he could smell marijuana in the car, and Carlos responded that he had smoked
marijuana about an hour before.

{4}      At this point, Officer Postlewait asked Carlos to get out of his car and then asked
whether Carlos minded if he searched Carlos’s person for marijuana. Carlos said that he did
not mind, and Officer Postlewait searched Carlos but found nothing. Officer Postlewait
knew that he wanted to ask Carlos for consent to search his car so he called for backup.
Captain Keith McPheeters, who was on his way home, arrived at the scene, and then Officer
Travis Spruell arrived. Officer Postlewait asked Carlos for consent to search his car, and
Carlos agreed. Although Officer Postlewait thought he could get a warrant to search the car
if Carlos did not consent, he never mentioned a warrant to Carlos. Officer Postlewait
testified that he has never advised anyone that they have the right to refuse consent.

{5}    During Officer Postlewait’s search of the car, he found several clear plastic bags
containing a green, leafy substance and a metal pipe. Officer Postlewait’s training and
experience allowed him to conclude that the substance was similar to marijuana, and the pipe
was the type commonly used to smoke marijuana. During the search of the car, dispatch
contacted Officer Postlewait and told him that Carlos was seventeen years old.

{6}     After completing the search of the car, Officer Postlewait called Carlos over, laid out
the evidence on the police car’s hood, and asked Carlos for his mother’s phone number. He
then read Carlos his rights from a card listing juvenile Miranda rights. When asked, Carlos
said that he was willing to talk to Officer Postlewait, whereupon Carlos identified the
substance as marijuana, admitted that the marijuana was his, and said that he had been

                                              2
selling marijuana for about a week. The field test of the substance was presumptively
positive for marijuana.

{7}     Officer Postlewait testified about the circumstances surrounding the encounter. He
said that Carlos was extremely friendly and polite and that Officer Postlewait treated him the
same way. The replay of Officer Postlewait’s car video confirmed the neutrality of the
interaction. None of the officers drew a gun or spoke in a threatening manner. The
detention from the time of the traffic stop to Officer’s Postlewait’s request to search the car
was about three minutes, and it was about ten minutes from the time of the stop to the end
of the car search. Carlos said that he was in a hurry to pick up his girlfriend at work and,
once Officer Postlewait located the marijuana, he let Carlos call his girlfriend. Once the
search was completed, the detention was extended while everyone waited for the car’s
registered owner and Carlos’s parents to arrive.

{8}     Carlos also testified at the suppression hearing. He was seventeen years old at the
time and had dropped out of school in the tenth grade. He remembers only Officer
Postlewait being on the scene when the officer asked if he could search Carlos’s person, but
there was “another guy” there when he asked to search the car. Before this occasion, a
police officer had never asked Carlos to consent to a search, and Carlos did not know that
he could refuse consent.

{9}    At the conclusion of the hearing, the district court denied Carlos’s suppression
motion and stated that it had heard nothing indicating that Carlos’s consent was not
voluntarily given. It further stated that the law does not require a person to know that he or
she has a right to deny consent to search and that the law does not expand juvenile rights in
the context of searches. Carlos entered a conditional guilty plea, and this appeal followed.

DISCUSSION

{10} Carlos makes one argument on appeal. He maintains that, in keeping with the New
Mexico Children’s Code and Javier M., juveniles are entitled to expanded rights under the
Fourth Amendment to the United States Constitution and the New Mexico Constitution.
Under these expanded rights, Carlos continues, Officer Postlewait should have advised him
that he had the right to refuse consent to the search of his car. Carlos argues that because
Officer Postlewait did not give him this advice, his consent was not voluntary.1

{11} In reviewing an order on a motion to suppress, “we defer to the district court’s
findings of fact that are supported by substantial evidence, and we review the district court’s
application of the law to the facts de novo.” State v. Randy J., 2011-NMCA-105, ¶ 10, 150


       1
        Carlos does not argue on appeal that the statements he made in response to Officer
Postlewait’s questions should have been suppressed, although he does not appear to have
waived that argument.

                                              3
N.M. 683, 265 P.3d 734. To the extent that our analysis of Carlos’s argument involves
interpretation of the Children’s Code, our review is de novo. Id.

{12} We understand Carlos to focus his argument on the validity of the car search under
the Fourth Amendment. While Carlos mentions the New Mexico Constitution, he does not
contend on appeal that the New Mexico Constitution confers broader rights than the United
States Constitution. Moreover, Carlos has not offered any reasons supporting divergence
from federal precedent in this area, which is required under the interstitial analysis adopted
in State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. As a result, we
focus on Fourth Amendment jurisprudence as it has developed in our state. We first outline
the Fourth Amendment’s requirements for obtaining a valid consent to search from an adult
and then consider whether the Children’s Code imposes additional requirements when the
accused is a minor.

Consent Under the Fourth Amendment

{13} The Fourth Amendment prohibits unreasonable searches by government officials and
requires a search warrant unless certain exceptions to the warrant requirement are
established. See State v. Paul T., 1999-NMSC-037, ¶ 9, 128 N.M. 360, 993 P.2d 74. One
such exception is a consensual search “because [such searches] are manifestly reasonable.”
Id. ¶ 28. To establish consent, the prosecution has the burden of proving, under the totality
of the circumstances, that “the consent given to search [was] voluntary and not a product of
duress, coercion, or other vitiating factors.” Id. The voluntariness of consent is a fact
question that we review for substantial evidence. Id.

{14} In assessing the totality of the circumstances, the fact finder considers factors such
as “the individual characteristics of the person who gave consent, the circumstances under
which the person is detained, and the manner in which [the] police requested the search.”
Id. (internal quotation marks and citation omitted). The ultimate inquiry is whether the will
of the consenting person has been overborne. State v. Flores, 2008-NMCA-074, ¶ 13, 144
N.M. 217, 185 P.3d 1067.

{15} Our case law has also established that the Fourth Amendment does not require police
officers “to first advise a person of his [or her] right to refuse consent in order to obtain a
valid consent,” at least in the context of a so-called “knock and talk” situation, where “police
go to a suspect’s home in an attempt to gain his [or her] cooperation.” Id. ¶¶ 5, 16. Instead,
“the presence or absence of [the] knowledge [of the right to refuse consent] is but one factor
to consider in the matrix to determine whether a consent to search is voluntary.” Id. ¶ 16.

{16} Significantly, Flores involved consent to search a home. Because “[t]he place
afforded the greatest protection by the Fourth Amendment is a person’s home,” id., ¶ 12, it
is logical to conclude that a request to search a motor vehicle—which does not carry the
same heightened expectation of privacy as a home—would be subject to the same analysis.
See State v. Bomboy, 2008-NMSC-029, ¶ 12, 144 N.M. 151, 184 P.3d 1045 (clarifying that

                                               4
the privacy interest in an automobile should not be equated with the privacy interest in a
home); see also State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495, 499 (Ct. App.
1987) (suggesting that knowledge of the right to refuse consent is not required in order to
have effective consent to search an automobile). It follows that a police officer requesting
consent to search an automobile need not advise the person of the right to refuse consent in
order to obtain valid consent, but the person’s knowledge of this right is a factor to be
considered in analyzing voluntariness.

Minors Are Not Entitled to Broader Protections in This Context

{17} We now turn to the ultimate issue in this case, which is whether minors are entitled
to broader protections than adults when they are asked to consent to automobile searches.
Carlos contends that the Children’s Code and the case law interpreting it reflect the
recognition that “children are particularly vulnerable, even during simple investigative
detentions, and should be advised of all of their options prior to a police officer taking any
further action.”

{18} Carlos asks us to draw an analogy between a minor’s rights under the Fourth
Amendment and a minor’s rights under the Fifth Amendment, which have been explicitly
expanded by Section 32A-2-14(C) of the Children’s Code. That statute states that “[n]o
person subject to the provisions of the Delinquency Act who is alleged or suspected of being
a delinquent child shall be interrogated or questioned without first advising the child of the
child’s constitutional rights and securing a knowing, intelligent and voluntary waiver.”
Section 32A-2-14(C). Our Supreme Court interpreted this provision as requiring that
“children who are subject to investigatory detentions are statutorily entitled only to be
warned of their right to remain silent and that anything they say can be used against them.”
Javier M., 2001-NMSC-030, ¶ 41 (emphasis added). In arguing that children should also
be advised of their right to refuse consent to search, Carlos relies on specific language in
Javier M., where the Court stated, “Given a child’s possible immaturity and susceptibility
to intimidation, a child who is subject to an investigatory detention may feel pressures
similar to those experienced by adults during custodial interrogation.” Id. ¶ 37. Carlos
maintains that this susceptibility to intimidation should lead us to impose an additional
requirement that police advise children of their right to refuse consent to search.

{19} We are not persuaded. Section 32A-2-14(A) expressly states that a child is “entitled
to the same basic rights as an adult, except as otherwise provided in the Children’s Code.”
There is no provision in the Children’s Code giving children greater rights under the Fourth
Amendment than an adult enjoys. In addition, the Court in Javier M. clarified that Section
32A-2-14 “only protects against a child’s statements which are made during an investigatory
detention in response to a police officer’s questioning.” Javier M., 2001-NMSC-030, ¶ 40
(emphasis added). Carlos does not argue that his consent to search the car constituted a
statement subject to suppression under Section 32A-2-14.




                                              5
{20} In addition, in cases this Court has decided since Javier M., we have consistently
refused to expand children’s rights beyond those specifically provided in the Children’s
Code. In State v. Lorenzo P., we rejected the child’s argument that children are entitled to
a different due process standard than the standard applied to adults. 2011-NMCA-013, ¶ 12,
149 N.M. 373, 249 P.3d 85. And in State v. Candace S., 2012-NMCA-___, ¶ 26, ___ N.M.
___, ____ P.3d ___ (No. 30,331, Dec. 27, 2011), we concluded that a police officer is not
required to advise a child that he or she may deny consent to perform field sobriety tests.
We stated in Candace S. that “with the exception of th[e] very limited statutory requirement
[in Section 32A-2-14] to advise a child of the right to remain silent and of the consequences
of waiving that right, a child’s constitutional rights are the same as an adult’s rights.”
Candace S., 2012-NMCA-____, ¶ 27. There is no authority requiring a police officer to
advise an adult of the right to deny consent to search, and there is similarly no such
requirement applicable to children.

{21} Carlos has not directed us to any authority granting children this expanded
protection. He claims that the Florida Court of Appeals did so in B.S. v. State, 548 So. 2d
838 (Fla. Dist. Ct. App. 1989), but we do not agree. In B.S., the child had been asked to
accompany police to the police station for questioning. 548 So. 2d at 838-39. She complied
and confessed to the crimes of which she was accused. Id. at 839. The appellate court
concluded that the child’s confession was “not procured through her voluntary consent” and
should have been suppressed. Id. at 841. Thus, the issue in that case revolved around the
Fifth Amendment guarantee against self-incrimination, not the Fourth Amendment as in the
present case. As a result, the holding in B.S. is not persuasive. We therefore reject Carlos’s
argument that his status as a minor entitled him to be advised of the right to deny consent to
search.

Carlos’s Consent Was Voluntary

{22} We now consider whether substantial evidence supported the district court’s finding
that Carlos’s consent to the car search was voluntary. See Paul T., 1999-NMSC-037, ¶ 28
(explaining that “[w]hether consent was voluntarily given is a factual question, and the trial
court’s determination will not be disturbed on appeal unless it is not supported by substantial
evidence”). The district court considered the factors informing the totality of the
circumstances and noted that the contact between Officer Postlewait and Carlos took place
quickly in a public setting, the contact was not hostile, and Officer Postlewait did not exert
any unusual pressure on Carlos.

{23} Officer Postlewait’s testimony supported these observations. He noted that Carlos
pulled into a mall parking lot around 9:00 p.m. and that the encounter lasted about ten
minutes from the time of the stop to the end of the car search. The audio record reveals a
low-key, polite encounter and cooperation between Officer Postlewait and Carlos. When
Officer Postlewait asked for consent to the car search, he said calmly, “Got any marijuana
in your car? Okay, can I search it?” Carlos was seventeen at the time, so he was less than
a year from adulthood. It is also clear from the district court’s comments that it properly

                                              6
considered the fact that Officer Postlewait did not advise Carlos that he could deny consent.
See Flores, 2008-NMCA-074, ¶ 16 (explaining that knowledge or lack of knowledge of the
right to deny consent “is but one factor to consider in the matrix to determine whether a
consent to search is voluntary”). However, as we have indicated, this factor is not
dispositive.

{24} We hold that substantial evidence supported the district court’s finding that Carlos
voluntarily consented to the search of the car. Therefore, we affirm the denial of Carlos’s
motion to suppress the evidence obtained as a result of the search.

CONCLUSION

{25}   We affirm.

{26}   IT IS SO ORDERED.

                                              _____________________________________
                                              CYNTHIA A. FRY, Judge

I CONCUR:

_____________________________________
CELIA FOY CASTILLO, Chief Judge

RODERICK T. KENNEDY, Judge (specially concurring).

KENNEDY, Judge (specially concurring).

{27} I write separately only to emphasize what the Opinion, in its latter discussion,
suggests—that the issue of an inherently coercive atmosphere has been lost in the shuffle
because it was eschewed by Defendant in emphasizing his “right” to be advised that he could
refuse to consent to a search. I am concerned that a view toward the totality of the
circumstances surrounding a juvenile’s consent to search is broader than the issue Defendant
argued.

{28} The facts show that the officer stopped Defendant, had him exit the car, frisked him,
questioned him about his marijuana use, and detained him until two other officers arrived
on the scene before asking him for consent to search the car. This smacks of a situation in
which the voluntariness of Defendant’s consent depends less on his knowledge that he can
refuse consent and more on the coercive atmosphere inherent to this situation.

{29} In a more fully-developed case, I would be more inclined to follow the outline given
us by the United States Supreme Court:


                                             7
       [W]hen . . . the [s]tate attempts to justify a search on the basis of . . . consent,
       the Fourth and Fourteenth Amendments require that it demonstrate that the
       consent was in fact voluntarily given, and not the result of duress or coercion,
       express or implied. Voluntariness is a question of fact to be determined from
       all the circumstances, and while the subject’s knowledge of a right to refuse
       is a factor to be taken into account, the prosecution is not required to
       demonstrate such knowledge as a prerequisite to establishing a voluntary
       consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 249-50 (1973).

                                                ____________________________________
                                                RODERICK T. KENNEDY, Judge

Topic Index for State v. Carlos A., Docket No. 30,670

APPEAL AND ERROR
Standard of Review

CHILDREN
Detention

CONSTITUTIONAL LAW
Due Process
Fourth Amendment
Interstitial Analysis
New Mexico Constitution, General
Suppression of Evidence

CRIMINAL LAW
Controlled Substances

CRIMINAL PROCEDURE
Consent
Due Process
Motion to Suppress
Search and Seizure
Warrantless Search




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