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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,871

 5 MARIO ANTHONY DEPPERMAN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Drew D. Tatum, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Steven H. Johnston, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jorge A. Alvarado, Chief Public Defender
15   Sergio Viscoli, Appellate Defender
16   B. Douglas Wood III, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 BUSTAMANTE, Judge.
 1   {1}   Does a valid warrant targeted at a specific residence permit the search and

 2 seizure of an unidentified duffel bag found on the premises even though it belongs to

 3 someone who is not a resident or occupant of the home? In the circumstances of this

 4 case we hold that it does, and affirm.

 5 BACKGROUND

 6   {2}   Defendant Mario Depperman was sentenced to six and one-half years of

 7 incarceration for the possession of a controlled substance and the possession of drug

 8 paraphernalia obtained pursuant to a search warrant. Defendant appeals the district

 9 court’s denial of his motion to suppress the evidence which led to his conviction.

10   {3}   A district court granted a search warrant after determining there was sufficient

11 probable cause for its issuance based on an the affidavit submitted by Agent Patrick

12 Bucksath of the New Mexico State Police. The affidavit targeted a particular residence

13 and its owner, Paul Chavez. The affidavit asserted that Chavez was selling

14 methamphetamine, and that there were illegal narcotics located in his residence. The

15 affidavit was based on an investigation that culminated in an operation in which a

16 confidential informant, working with Agent Bucksath, purchased methamphetamine

17 from Chavez at his residence. The affidavit included a description of the agent’s

18 training, experience, and knowledge concerning “the habits and methods used by

19 those persons involved in the illegal . . . concealment methods of illegal controlled

20 substances.”

                                               2
 1   {4}   In accordance with the information provided in the affidavit, the search warrant

 2 authorized the search of Chavez and his residence and the seizure of

 3 “[m]ethamphetamine, marijuana and stolen property” and “[a]ny and all classifiable

 4 drug paraphernalia that is used to weigh, package, ingest, inhale, inject, or otherwise

 5 be consumed.” Defendant was not named or referenced in the affidavit.

 6   {5}   During the execution of the search warrant, agents discovered a duffel bag

 7 sitting on a shelf in the master bedroom of the residence. A search of the duffel bag

 8 revealed drug paraphernalia and a wallet containing Defendant’s social security card.

 9 Prior to trial, Defendant filed a motion to suppress the evidence found in his duffel

10 bag. At the close of the suppression hearing, the district court denied Defendant’s

11 motion. In its decision letter, the district court ruled that “[t]he Fourth Amendment

12 requires that a warrant specifically name: (1) the places to be searched; and (2) the

13 items to be seized,” and that “[t]he valid warrant authorizes the executing officer to

14 look for a particular item in any place it could be logically found . . . A [duffel] bag

15 would be a logical place.”

16   {6}   Defendant does not dispute the validity of the search warrant as to Chavez and

17 his residence. Instead, Defendant’s arguments below and here focus on whether the

18 search of Defendant’s duffel bag fell within the scope of the warrant. At the

19 suppression hearing, Agent Phil Caroland, the first person to discover and search

20 Defendant’s duffel bag, was the sole testifying witness. His testimony included his

                                               3
 1 role in the search and seizure of Defendant’s duffel bag, including his understanding

 2 of the purpose of the warrant and the items to be seized.

 3   {7}   Agent Caroland testified that, during the execution of the warrant, he found the

 4 duffel bag sitting on a shelf located in the master bedroom of the Chavez residence.

 5 Additionally, he stated that he did not see anyone in the bedroom when he entered and

 6 began his search. When he opened the bag, he found a smaller bag (which he referred

 7 to as a “meth kit”) containing drug paraphernalia, including baggies, spoons, and

 8 needles. After discovering the drug paraphernalia, Agent Caroland ceased his search

 9 of the bag and handed it over to Agent Bucksath. He later testified at trial that he did

10 not see the wallet; instead it was Agent Bucksath who finally discovered it.

11   {8}   At trial, Agent Bucksath testified as to his search of Defendant’s duffel bag. He

12 stated that, when he initially opened the duffel bag, he saw a smaller bag which he

13 opened up to discover drug paraphernalia. Following his discovery of the drug

14 paraphernalia, Agent Bucksath found a wallet that contained Defendant’s social

15 security card. Defendant was later identified as the owner of the social security card

16 and the person who had fled from the residence when the search was executed.

17   {9}   Defendant appeals the district court’s denial of his motion to suppress. Because

18 this is a memorandum opinion and because the parties are familiar with the case, we

19 reserve further discussion of the facts for our analysis of Defendant’s arguments on

20 appeal.

                                               4
 1 DISCUSSION

 2   {10}   Defendant makes two arguments on appeal. Defendant first argues that,

 3 although the search warrant was valid as to Chavez and his residence, the supporting

 4 affidavit did not establish probable cause to search Defendant’s personal property and,

 5 therefore, the duffel bag was not within the warrant’s scope. Defendant next argues

 6 that even if his duffel bag was searched by an officer in good faith, the evidence

 7 should be suppressed because New Mexico does not recognize the good faith

 8 exception to the exclusionary rule.

 9 A.       Standard of Review

10   {11}   We review the order denying Defendant’s motion to suppress as a mixed

11 question of fact and law. State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. In

12 doing so, we view “the facts in the light most favorable to the prevailing party.” State

13 v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. However, “[w]hile

14 deferring to the district court with respect to factual findings and indulging in all

15 reasonable inferences in support of that court’s decision, we nonetheless review the

16 constitutional question of . . . reasonableness . . . de novo.” State v. Light, 2013-

17 NMCA-075, ¶ 19, 306 P.3d 534 (internal quotation marks and citation omitted).

18 B.       Scope of the Search Warrant

19   {12}   Defendant first argues that the officers acted outside the permissible scope of

20 the warrant targeting Chavez and his residence. Article II, Section 10 of the New

                                               5
 1 Mexico Constitution provides that “[t]he people shall be secure in their . . . effects,

 2 from unreasonable searches and seizures[.]” Not all searches and seizures are

 3 protected under the New Mexico Constitution, “only unreasonable ones.” State v.

 4 Brusuelas, 2009-NMCA-111, ¶ 9, 147 N.M. 233, 219 P.3d 1 (internal quotation marks

 5 and citation omitted). Therefore, the “ultimate question in all cases regarding alleged

 6 search and seizure violations is whether the search and seizure was reasonable.” State

 7 v. Attaway, 1994-NMSC-011, ¶ 20, 117 N.M. 141, 870 P.2d 103. “A search warrant

 8 is used as a means to establish the reasonableness of an intrusion [on an individual’s

 9 privacy rights].” State v. Malloy, 2001-NMCA-067, ¶ 9, 131 N.M. 222, 34 P.3d 611.

10 Moreover, New Mexico’s requirement that a search warrant has to be supported by

11 an affidavit showing probable cause ensures that individuals’ property “will not be

12 subject to unreasonable searches by the state.” State v. Boyse, 2013-NMSC-024, ¶ 18,

13 303 P.3d 830.

14   {13}   The primary issue before us is whether Defendant’s duffel bag fell within the

15 scope of the search warrant. This Court recently addressed the question of whether

16 personal property belonging to a visitor, but found on the premises to be searched,

17 falls within the scope of a valid warrant. Light, 2013-NMCA-075, ¶ 33. In Light, the

18 defendant was attending an event at a public theater. Id. ¶¶ 15-18. A warrant to search

19 the theater was obtained following an investigation of the theater owner for hosting

20 parties where drugs were sold and consumed. Id. ¶ 3. The warrant authorized “a search

                                              6
 1 of [the theater owner], his residence, [and] the theater” and the “seiz[ure of] ‘ecstasy

 2 pills in any shape, form, or size, and cocaine, marijuana, and drug paraphernalia’ ” Id.

 3 ¶ 13.

 4   {14}   Pursuant to the warrant, officers secured the theater and detained all people

 5 present when the warrant was served, including the defendant. All of the people

 6 detained were searched and released. Id. ¶ 14. Before leaving, the defendant asked

 7 officers for her jacket and purse, which were located in the theater’s storage room. Id.

 8 ¶ 16. Without first obtaining consent from the defendant, an officer searched her purse

 9 and found a small metal container containing methamphetamine. Id. ¶ 17. The

10 defendant was charged with possession and moved to suppress the evidence found in

11 her purse. Id. ¶ 18. At the suppression hearing, the officer who searched the purse

12 testified “that before he opened the purse and container, he had no particularized

13 suspicion that the purse contained contraband . . . and, after opening it, that he saw no

14 obvious evidence of contraband or observed anything suspicious about the metal

15 container.” Id. ¶ 17. The district court granted the motion to suppress. Id. ¶ 18.

16   {15}   On appeal, we affirmed the district court’s order. Id. ¶ 46. In agreeing with, and

17 expanding on, the district court’s ruling, we held that the search of the defendant’s

18 purse was invalid because the officer knew the purse belonged to the defendant, and

19 because “[t]here [was] nothing in the affidavit or in the officers’ testimony to suggest



                                                7
 1 that the purse was connected to the theater or to the illegal activity occurring there.”

 2 Id.

 3   {16}   Defendant argues that the reasoning in Light should apply here because,

 4 although the search warrant was valid as to Chavez and his residence, it “did not

 5 demonstrate authorization or even probable cause related to the duffel bag.” In support

 6 of his argument, Defendant argues that there was no probable cause because the

 7 affidavit did not “address any suspicion as to activities involving [Defendant].” We

 8 disagree.

 9   {17}   In Light, this Court did not determine that there was a lack of probable cause

10 as to the defendant’s purse merely because the search warrant was based on a

11 suspicion only as to the owner of the theater and the illegal activities happening at that

12 location. Instead, we reasoned that the search was invalid because the officer was

13 aware that the purse belonged to the defendant and he failed to ask for consent. 2013-

14 NMCA-075, ¶¶ 16-17. Further, the officer testified that he had no suspicion that the

15 purse contained contraband prior to his search. Id. ¶ 17. Thus, the search of the

16 defendant’s purse was invalid because no probable cause existed connecting the purse

17 to the reason for the warrant.

18   {18}   Here, as Defendant concedes, the officers had no notice that the duffel bag

19 belonged to him. It was discovered in the master bedroom of the targeted residence

20 and there was nothing on the outside of the bag indicating that it belonged to someone

                                               8
 1 other than the owner of the residence. In fact, the duffel bag’s owner was not

 2 identified until after the officers found the drug paraphernalia. Furthermore, unlike in

 3 Light, there was testimony that, based on the officers’ experience and training, the

 4 duffel bag was a reasonable place to search for the items being sought pursuant to the

 5 search warrant. Therefore, there was sufficient probable cause to search the duffel bag.

 6   {19}   In conclusion, because there was no notice that the duffel bag belonged to

 7 Defendant, and testimony established that there was probable cause to support a

 8 reasonable belief that the bag was connected to the purpose of the search warrant, the

 9 duffel bag fell within the scope of the search warrant and its search was reasonable

10 under the New Mexico Constitution.

11 C.       Good Faith Exception

12   {20}   Defendant’s second argument is that, even if the agent was unaware that the

13 duffel bag belonged to Defendant, the evidence should be suppressed because New

14 Mexico does not recognize a good faith exception to the exclusionary rule. Courts

15 generally recognize that evidence obtained pursuant to a warrant that is later

16 invalidated should be suppressed under both the Fourth Amendment and Article II,

17 Section 10 of the New Mexico Constitution. State v. Gutierrez, 1993-NMSC-062,

18 ¶ 45, 116 N.M. 431, 863 P.2d 1052. However, federal and New Mexico courts have

19 interpreted the application of this rule differently.



                                               9
 1   {21}   The federal approach provides that evidence suppressed due to an invalid

 2 warrant under the exclusionary rule may be admitted if the officer’s reliance on the

 3 invalid warrant was objectively reasonable. See United States v. Leon, 468 U.S. 897,

 4 922-23 (1984). This good faith exception was founded upon an interest “to deter

 5 police misconduct rather than to punish the errors of judges and magistrates.” Id. at

 6 916. In contrast, New Mexico rejects the federal good faith exception to the

 7 exclusionary rule.

 8   {22}   In Gutierrez, our Supreme Court held that the exclusionary rule in New Mexico

 9 was “incompatible with any exception based on the good[]faith reliance of the

10 officer.” 1993-NMSC-062, ¶ 55. The Court reasoned that Article II, Section 10’s

11 protection from unreasonable searches and seizures is best accomplished by

12 “[d]enying the government the fruits of unconstitutional conduct at trial” and

13 “preserving the rights of the accused to the same extent as if the government’s officers

14 had stayed within the law.” Id.

15   {23}   Here, New Mexico’s exclusionary rule does not apply because, as we concluded

16 above, the search of Defendant’s duffel bag was lawful under Article II, Section 10.

17 Thus, whether the search of Defendant’s duffel bag was conducted in good faith is

18 immaterial and we need not further address this argument.

19 CONCLUSION



                                              10
1   {24}   For the foregoing reasons, we affirm the district court’s denial of Defendant’s

2 motion for suppression of the evidence found in his duffel bag.

3   {25}   IT IS SO ORDERED.



4
5                                          MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR:


7 __________________________________
8 JAMES J. WECHSLER, Judge


 9 __________________________________
10 CYNTHIA A. FRY, Judge




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