 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 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 errors
 4 or other deviations from the official paper version filed by the Court of Appeals and does not
 5 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. 29,105

10 LUIS CIPRIANO,

11         Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Stephen Bridgforth, District Judge

14 Gary K. King, Attorney General
15 Margaret, McLean, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Chief Public Defender
19 Nancy M. Hewitt, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                               MEMORANDUM OPINION

23 VANZI, Judge.
 1        Defendant appeals his convictions for possession of a firearm by a felon,

 2 receiving stolen property, and conspiracy to commit receiving stolen property. The

 3 conviction for possession of a firearm by a felon was pursuant to a conditional guilty

 4 plea in which Defendant reserved the right to appeal the district court’s ruling on his

 5 suppression motion. The convictions for receiving stolen property and conspiracy to

 6 commit receiving stolen property were pursuant to a jury verdict. Defendant

 7 challenges the denial of his motion to suppress with respect to the firearm that formed

 8 the basis of all three convictions. We affirm the district court.

 9 BACKGROUND

10        The residence of Brandon Young was burglarized, and six firearms were stolen.

11 Young reported the burglary to police and provided police with information he

12 received in a telephone call from an anonymous source, including Defendant’s name,

13 address, a description of the residence where the firearms were located, and a serial

14 number from one firearm that matched the number on one of the stolen guns. Young

15 testified that, when speaking with the informant, he recognized four of the six guns

16 described as guns stolen from him. Young was told that the firearms would be

17 transported to Mexico to be sold.

18        On the day the guns were reportedly going to be transported, officers went to

19 the residence to investigate the situation. They observed the arrival of two individuals

20 in a truck and then encountered two more individuals exiting the residence; one of the

                                              2
 1 men was Defendant, and he was holding a gun case that appeared to contain a rifle.

 2 Officer Molenda believed that the rifle might be one of the stolen weapons. The

 3 officers drew their weapons, ordered Defendant and the other man to the ground, and

 4 handcuffed them.      While the officers were securing Defendant and the other

 5 individual, a third person came around to the front of the trailer, and he was also

 6 secured. Based on his concern for a child left in the residence, Defendant gave

 7 officers permission to enter the residence to retrieve the child. While inside the

 8 residence, the officer noticed another weapon. Based on their belief that they had

 9 verbal and written consent to enter the residence, officers entered the home and

10 retrieved five weapons.

11        Before trial, Defendant moved to suppress “physical evidence and statements

12 seized as a result of the illegal search and seizure of [Defendant’s] property, and any

13 incriminating statements made as a result of the illegal search and seizure.” After a

14 hearing, the district court found that once Defendant was placed on the ground and

15 handcuffed, he was in custody and should have been provided Miranda warnings.

16 The district court granted Defendant’s motion to suppress all statements or evidence,

17 with the exception of the gun in the rifle bag that was in Defendant’s possession when

18 police arrived at the residence. On the day of trial, at a pretrial conference, Defendant

19 renewed his motion to suppress the gun found in the rifle bag. Defendant argued that

20 the officers had no probable cause to open the gun bag, and the gun was not in plain

                                               3
 1 view. The district court ruled that the officers had “seen what was obviously a

 2 firearm” in Defendant’s possession and denied the motion. Defendant appeals the

 3 ruling with respect to his suppression motion.

 4 DISCUSSION

 5          On appeal, Defendant argues that the rifle case and its contents should have

 6 been suppressed on the same basis used to suppress the firearms in the residence.

 7 Defendant claims that officers did not obtain a search warrant, and the information

 8 from the anonymous tipster was not sufficiently reliable to support the issuance of a

 9 search warrant.1 Defendant also claims that the seizure of the gun case did not fall

10 within the plain view exception to the requirement for a search warrant.

11          The denial of a motion to suppress evidence seized during a warrantless search

12 involves a mixed question of fact and law. State v. Rowell, 2008-NMSC-041, ¶ 8, 144

13 N.M. 371, 188 P.3d 95. We view the facts in the light most favorable to the district

14 court’s decision, deferring to those factual findings that are supported by substantial


            1
15           Defendant makes a contrary argument in his brief, stating that he “appeals the
16   portion of [the district court] ruling permitting the police to use the fruit of their illegal
17   search and, below, the use of [Defendant’s] un-Mirandized statements to obtain a
18   search warrant and also denying the suppression of the fruit from that second search.”
19   We read Defendant’s statement as suggesting that police used his statements to obtain
20   a warrant in order to search the gun case taken from Defendant. There is nothing in
21   the record to support a claim that police ever obtained a search warrant, and there is
22   nothing in the record to show when the gun case was opened or searched. “Matters
23   not of record present no issue for review.” State v. Hunter, 2001-NMCA-078, ¶ 18,
24   131 N.M. 76, 33 P.3d 296.

                                                   4
 1 evidence, and recognizing that the district court is in the best position to resolve

 2 conflicts in the evidence and evaluate the credibility of the witnesses. State v. Urioste,

 3 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review de novo the

 4 application of the law to those facts and determine whether the search or seizure was

 5 constitutionally reasonable. State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178

 6 P.3d 165. The ultimate question with respect to an alleged search and seizure

 7 violation is whether the search and seizure was reasonable. State v. Martinez, 94 N.M.

 8 436, 440, 612 P.2d 228, 232 (1980).

 9 Record on Appeal and Preservation of Issues

10        Before addressing the parties’ substantive arguments, we are compelled to

11 discuss the state of the record presented to this Court on appeal and the preservation

12 of issues raised by Defendant in this appeal. First, Defendant claims that he moved

13 to suppress evidence under both the state and federal constitutions. Contrary to that

14 claim, Defendant did not mention or cite to the state constitution or to any applicable

15 state cases in his suppression motion, at the suppression hearing, or at the pretrial

16 conference. See State v. Leyva, 2011-NMSC-009, ¶ 49, ___ N.M. ___, ___ P.3d ___

17 (No. 32,067, February 17, 2011) (“Rule 12-216(A)’s preservation requirements are

18 straightforward: To preserve a question for review it must appear that a ruling or

19 decision by the district court was fairly invoked . . . . Where a state constitutional

20 provision has previously been interpreted more expansively than its federal

                                               5
 1 counterpart, trial counsel must develop the necessary factual base and raise the

 2 applicable constitutional provision in trial court.” (emphasis, internal quotation marks,

 3 and citation omitted)). Defendant did not take the steps necessary to properly preserve

 4 his claims under our state constitution. Therefore, we address Defendant’s claims

 5 under the Fourth Amendment to the federal constitution.2

 6         In addition, the record on appeal is lacking information necessary to address

 7 many of Defendant’s arguments. Defendant did not designate for appeal the entire

 8 trial transcript or even portions of the trial transcript that might include references to

 9 the rifle that the district court refused to suppress, including when or under what

10 authority the rifle bag was actually opened, whether there were objections to the

11 evidence or testimony presented with respect to the rifle bag or its contents, and what

12 rulings, if any, were made by the district court. See State v. Jim, 107 N.M. 779, 780,

13 765 P.2d 195, 196 (Ct. App. 1988) (explaining that the appellant has the burden to

14 bring up a record sufficient for review of the issues presented on appeal); see also

15 State v. Romero, 87 N.M. 279, 280, 532 P.2d 208, 209 (Ct. App. 1975) (refusing to

16 review denial of motion to suppress because record did not include a particular


           2
17          We note that, for a warrantless public arrest under our constitution, the officer
18   must have probable cause that the person arrested has committed or is committing a
19   felony, and there must be some exigency that precludes the officer from waiting to
20   obtain a search warrant, both of which were present here as discussed in this opinion.
21   See State v. Saiz, 2008-NMSC-048, ¶ 13, 144 N.M. 663, 191 P.3d 521, abrogated on
22   other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

                                                6
 1 transcript). Defendant also presented or elicited little evidence pertaining to his

 2 arguments on appeal, which resulted in a limited factual basis for addressing the issues

 3 on appeal. See In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431

 4 (“This Court will not consider and counsel should not refer to matters not of record

 5 in their briefs.”).

 6        Defendant had the initial burden of coming forward with evidence sufficient to

 7 raise an issue as to the legality of a search and seizure. See State v. Gardner, 95 N.M.

 8 171, 175, 619 P.2d 847, 851 (Ct. App. 1980). The burden then shifted to the State to

 9 show that the search and seizure was justified based on an exception to the

10 requirement for a warrant. See State v. Ponce, 2004-NMCA-137, ¶ 7, 136 N.M. 614,

11 103 P.3d 54; see also State v. Duffy, 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d

12 807 (listing recognized exceptions to warrant requirement as exigent circumstances,

13 consent, searches incident to arrest, plain view, inventory searches, open field, and hot

14 pursuit), modified on other grounds by State v. Gallegos, 2007-NMSC-007, 141 N.M.

15 185, 152 P.3d 828.

16        In his motion to suppress, Defendant described the events that occurred and

17 alleged that the officers did not seek a search warrant, that the information that formed

18 the basis of the investigation was not reliable or accurate, that Defendant’s verbal and

19 written consent was invalid, and that any evidence seized was the fruit of an unlawful

20 search. Defendant stated generally that the search and seizure did not fall within any

                                               7
 1 recognized exception to the warrant requirement. In response, the State argued that

 2 the information from the anonymous tipster was reliable and provided police with

 3 reasonable suspicion to investigate and that a number of exceptions justified the

 4 search, including exigent circumstances, consent, plain view, and inevitable discovery

 5 pursuant to an inventory search.

 6        At the suppression hearing, Defendant concentrated his examination of the

 7 witnesses and his argument to the district court on the failure to secure a warrant, his

 8 verbal and written consents to search the residence or seize evidence, the reliability

 9 of the information from the anonymous informant, and his claim that he was in

10 custody and had not been read Miranda warnings. Defendant did not elicit testimony

11 or make arguments challenging the State’s claims regarding exigent circumstances,

12 plain view, or inevitable discovery.

13        At the pretrial conference, Defendant argued that (1) the information from the

14 anonymous informant was unreliable, (2) the officers had no authority to place

15 Defendant in custody without Miranda warnings, (3) “at that point” officers had no

16 probable cause to open the gun case, and (4) the search of the gun case was not

17 justified by the “plain sight” exception. Defendant’s entire argument made at the

18 pretrial conference was challenging the opening of the gun case in order to obtain the

19 serial number from the gun. The district court stated that the officer had “seen what



                                              8
 1 was obviously a firearm in [Defendant’s] possession” and ruled that the rifle would

 2 not be suppressed.

 3        Because Defendant did not present evidence to refute the State’s reliance on

 4 exigent circumstances, plain view, or inevitable discovery, the record before us is

 5 deficient in that many of the arguments made by Defendant on appeal are not

 6 supported by evidence presented to the district court. When we are provided with a

 7 doubtful or deficient record, we indulge every reasonable presumption in support of

 8 the ruling of the district court, including the presumption that the district court

 9 believed all uncontradicted evidence, and we indulge all inferences in support of the

10 district court’s ruling. See State v. Jason L., 2000-NMSC-018, ¶ 11, 129 N.M. 119,

11 2 P.3d 856. We now turn to the issues Defendant raises on appeal.

12 Information From Anonymous Informant

13        The officers were told by the owner of the guns that an anonymous informant

14 had provided information about the location of the guns, that the person associated

15 with the location was Defendant, and a serial number from one of the guns.

16 Defendant claimed that the information was not proven to be reliable and could not

17 be used to support the officers’ actions.

18        The district court did not make a ruling on the validity of the information from

19 the anonymous informant. However, even if a tip has a low degree of reliability,

20 reliability can come from other details that corroborate the information included in the

                                               9
 1 tip. See Urioste, 2002-NMSC-023, ¶¶ 16-17. Where “enough familiarity with a

 2 suspect’s affairs is shown by the predictions in an anonymous tip, no overtly criminal

 3 behavior need be observed.” Id. ¶ 16. Here, the officers had information about the

 4 location of stolen weapons, including a detailed description of the residence and the

 5 name of the person associated with the residence, and the officers had information that

 6 there was a plan to move the weapons out of the country on a specific day. Police

 7 used a database to confirm that the person named by the informant was associated

 8 with the residence at the address they were given. On the day that the weapons were

 9 reportedly being moved, officers went to the residence to investigate. The officers

10 observed two males arriving at the residence in a truck and observed Defendant

11 leaving the residence and carrying a gun case that appeared to contain a rifle. Based

12 on the corroboration of the information from the anonymous informant, the

13 information was reliable and provided at least reasonable suspicion for the officers’

14 further investigation. See Urioste, 2002-NMSC-023, ¶¶ 16-17.




15 Exigent Circumstances

16        When the officers began their investigation regarding information about the

17 theft of several firearms, they encountered five different individuals, including

18 Defendant, in different areas outside the residence. Defendant was carrying a rifle bag

                                             10
 1 that appeared to contain a rifle, and that led Officer Molenda to believe the case

 2 contained one of the stolen weapons. Due to concerns about officer safety, Defendant

 3 was ordered to the ground. At that point, the officers did not know if anyone else was

 4 inside the residence as they had already encountered a number of individuals since

 5 their arrival, and they had information that there were several stolen weapons at the

 6 residence. Because the officers testified that they were concerned about safety and

 7 that testimony was not refuted, we can presume that the rifle case was removed from

 8 Defendant’s control when he was ordered to the ground, and the contents were

 9 secured at that time. See Jason L., 2000-NMSC-018, ¶ 11 (explaining that where

10 record is deficient, appellate court indulges every reasonable presumption and

11 indulges all inferences in favor of the ruling of the district court). The State argued

12 that the police actions were justified under the exigent circumstances exception to the

13 warrant requirement.

14        We cannot discern from the record what the officers did with the gun case once

15 they seized it. Exigent circumstances arise when an officer encounters an emergency

16 situation that requires the officer to take “swift action to prevent imminent danger to

17 life or serious damage to property.” State v. Gomez, 1997-NMSC-006, ¶ 39, 122 N.M.

18 777, 932 P.2d 1 (internal quotation marks and citation omitted). In this case, the

19 officers had information about several stolen guns at the address, had encountered a

20 number of individuals upon arrival at the residence, did not know how many people

                                             11
 1 were located in or around the residence, and observed Defendant carrying what the

 2 officers reasonably believed was one of the stolen weapons. Therefore, it was

 3 reasonable for the officers to take the rifle case, remove the weapon from the

 4 immediate control of any individual that might gain possession of it, and secure the

 5 weapon that was inside the case in order to ensure officer safety. See State v.

 6 Gutierrez, 2004-NMCA-081, ¶¶ 10, 12, 136 N.M. 18, 94 P.3d 18. The seizure and

 7 search of the gun case were justified based on the exigent circumstances exception to

 8 the requirement for a warrant.

 9        Defendant suggests that the officers were in an area where he had a reasonable

10 expectation of privacy when they encountered Defendant. Defendant did not present

11 any evidence to the district court to support his claim that the area approaching the

12 door of the residence was an area of the property in which Defendant had a reasonable

13 expectation of privacy. See In re Aaron L., 2000-NMCA-024, ¶ 10 (stating that

14 appellate court will not consider issues not raised in the trial court). Moreover, based

15 on our standard of review, the officers had reasonable suspicion to approach the

16 residence in order to gather information pertaining to their investigation. Officer

17 Molenda testified that they went to the residence to conduct a “knock and talk” based

18 on the information that there were stolen weapons at the residence. The “knock and

19 talk” procedure is valid under the federal constitution and our state constitution. See

20 State v. Flores, 2008-NMCA-074, ¶¶ 8, 17, 144 N.M. 217, 185 P.3d 1067. An officer

                                              12
 1 may approach a person to conduct an investigation if, based on the totality of the

 2 circumstances, the officer has reasonable suspicion that the individual is engaged in

 3 or is about to be engaged in criminal activity.            See State v. Patterson,

 4 2006-NMCA-037, ¶ 15, 139 N.M. 322, 131 P.3d 1286. Here, the officers had

 5 reasonable suspicion that Defendant was engaged in criminal activity based on the

 6 information from the informant and the information from the database. Based on the

 7 totality of the circumstances, the officers had reasonable suspicion to approach the

 8 residence in furtherance of their investigation.

 9 Plain View

10        As previously discussed, we hold that the seizure and search of the rifle case

11 was justified under the exigency exception to the warrant requirement. Defendant did

12 not challenge the State’s exigency argument but did challenge the right to open the

13 rifle case in order to obtain the serial number based on the plain view exception. We

14 discuss plain view and hold that the plain view exception provides another ground on

15 which to affirm the denial of Defendant’s motion to suppress.

16        Defendant argues that the plain view exception is not applicable because there

17 was no probable cause to believe that the rifle case contained contraband or evidence

18 of a crime so that the incriminating nature of the gun case was not “immediately

19 apparent.” Defendant argues that the serial number, which tied the gun in the case to



                                             13
 1 criminal activity, was not in plain view. Instead, the officers had to unlawfully search

 2 the gun case to discover the serial number.

 3        “Under the plain view exception to the warrant requirement, items may be

 4 seized without a warrant if the police officer was lawfully positioned when the

 5 evidence was observed, and the incriminating nature of the evidence was immediately

 6 apparent, such that the officer had probable cause to believe that the article seized was

 7 evidence of a crime.” State v. Ochoa, 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d

 8 1286. The determination of probable cause is based on how the circumstances

 9 appeared to a trained officer. Id. The general rule is that, absent evidence directly

10 linking a defendant to criminal activity, a search warrant is required prior to opening

11 sealed containers. See State v. Miles, 108 N.M. 556, 558, 775 P.2d 758, 760 (Ct. App.

12 1989). However, we have also recognized that not all containers that the police find

13 during the course of a search are entitled to full protection under the Fourth

14 Amendment. Id. Some containers, including a gun case, are not subject to any

15 reasonable expectation of privacy because of the distinctive nature of their outward

16 appearance. Id. at 558-59, 775 P.2d 760-61. The nature of the container’s outward

17 appearance and an officer’s experience and training, considered within the context of

18 the incident, may permit the officer to identify the criminal nature of the contents of

19 a container sufficient to satisfy probable cause. See Ochoa, 2004-NMSC-023, ¶ 13.



                                              14
 1        At the time the officers observed Defendant carrying the rifle case, they had

 2 information regarding stolen guns at the residence that were to be moved out of the

 3 country, one officer believed that the gun case contained a rifle, and that officer

 4 believed that the rifle might be one of the guns that were stolen. Based on this, and

 5 based on the outward appearance of the rifle case that led to a reasonable inference

 6 that there was a rifle inside, there was probable cause to support seizure of the gun

 7 case as evidence of a crime, see id. ¶ 9, and no warrant was required to open the gun

 8 case and view the serial number. Miles, 108 N.M. at 559, 775 P.2d at 761. The denial

 9 of Defendant’s suppression motion was warranted based on the plain view exception

10 to the warrant requirement.

11 CONCLUSION

12        For the reasons discussed in this opinion, we affirm Defendant’s convictions.

13        IT IS SO ORDERED.


14                                        _______________________________
15                                        LINDA M. VANZI, Judge

16 WE CONCUR:



17 _________________________________
18 CELIA FOY CASTILLO, Chief Judge




                                            15
1 _________________________________
2 JAMES J. WECHSLER, Judge




                                  16
