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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. 35,366

 5 DANIEL DEMORY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Gary L. Clingman, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Templeman & Crutchfield, P.C.
13 C. Barry Crutchfield
14 Lovington, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VIGIL, Chief Judge.
 1   {1}   Following a conditional guilty plea, [RP 79] Defendant appeals his convictions

 2 for two counts of sexual exploitation of children (distribution/depiction). [DS 2] We

 3 issued a notice of proposed summary disposition, proposing to affirm. In response,

 4 Defendant has filed a timely memorandum in opposition, which we have duly

 5 considered. Unpersuaded, we affirm.

 6   {2}   Defendant continues to argue that the district court erroneously denied his

 7 motion to suppress, and that the evidence in question was obtained from the search of

 8 a residence without consent or a valid search warrant. [MIO unnumbered 3; DS 7–8]

 9 The crux of Defendant’s issue is whether the district court’s determination that

10 Defendant’s wife consented to the search by inviting federal officers into the residence

11 was supported by substantial evidence. [MIO unnumbered 1; CN 4]

12   {3}   Our notice proposed to affirm, explaining that upon consideration of both the

13 testimony of Detective Miranda and the testimony of Defendant’s wife offered at the

14 suppression hearing, the district court made a written finding in its denial of

15 Defendant’s motion to suppress that “the testimony of [Defendant’s wife] is not

16 credible and unbelievable and the testimony and Affidavit of Detective Miranda is

17 credible and legally supports the issuance of Judge Sanchez’s search warrant dated

18 October 29, 2014.” [RP 76] Our notice observed that as an appellate court, we do not

19 second-guess the district court’s determinations regarding the credibility of witnesses.

                                              2
 1 [CN 4–5] State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964 (“As a

 2 reviewing court we do not sit as a trier of fact; the district court is in the best position

 3 to resolve questions of fact and to evaluate the credibility of witnesses.”

 4   {4}   In response, Defendant argues that although Detective Miranda stated in his

 5 Affidavit in support of the search warrant that Defendant’s wife consented to the

 6 federal agents’ entry into the home, Detective Miranda later noted that this

 7 information was solely based on what the federal agents told him. [MIO unnumbered

 8 2] In light of Defendant’s wife’s testimony at the hearing that she did not consent,

 9 Defendant argues that the testimony of Detective Miranda alone is insufficient to

10 support the district court’s denial of the motion to suppress because Detective Miranda

11 had no personal knowledge regarding consent and the federal agents did not testify at

12 the suppression hearing. [MIO unnumbered 2–3] Stated another way, Defendant

13 argues that Detective Miranda’s testimony at the suppression hearing was double

14 hearsay and therefore, the district court’s ruling could not have been supported by

15 substantial evidence. [MIO unnumbered 2–3]

16   {5}   We are unpersuaded. While deciding that Confrontation Clause protections do

17 not extend to a suppression hearing, our Supreme Court explained that the State is

18 permitted to rely on hearsay and double hearsay testimony at a suppression hearing




                                                3
 1 to determine whether a search and seizure is constitutionally reasonable, and in turn,

 2 whether contraband is admissible at trial, even where that same testimony would not

 3 be admissible at trial. State v. Rivera, 2008-NMSC-056, ¶¶ 11, 23, 144 N.M. 836, 192

 4 P.3d 1213. In so doing, our Supreme Court relied upon United States Supreme Court

 5 authority holding that “out-of-court statements are admissible at a suppression hearing

 6 to prove authority to consent to search.” Id. ¶ 17. Further, our Supreme Court

 7 explained that due process protections at suppression hearings are fewer than those

 8 afforded at trial. Id. ¶ 16.

 9   {6}   Additionally, the Rules of Evidence, with the exception of the rules on

10 privileges, do not apply at suppression hearings. See Rule 5-212 NMRA, comm. cmts.

11 (2013 amendments) (stating in pertinent part that “[a]t a hearing on a motion to

12 suppress, the Rules of Evidence, except for the rules on privileges, do not apply”); see

13 also Rule 11-104(A) NMRA (“The court must decide any preliminary question about

14 whether a witness is qualified, a privilege exists, or evidence is admissible. In so

15 deciding, the court is not bound by evidence rules, except those on privilege.”).

16   {7}   Accordingly, we conclude that the district court did not err in relying on

17 Detective Miranda’s affidavit and testimony at the suppression hearing to resolve the

18 issue of consent. See Rivera, 2008-NMSC-056, ¶ 15 (“At a suppression hearing, the

19 court may rely on hearsay and other evidence, even though that evidence would not

                                              4
 1 be admissible at trial.” (internal quotation marks and citation omitted)); State v.

 2 Martinez, 2007-NMSC-025, ¶ 21, 141 N.M. 713, 160 P.3d 894 (stating that the

 3 district court is not bound by the rules of evidence when deciding pretrial

 4 admissibility questions, except rules concerning privileges, and may consider hearsay

 5 to establish preliminary facts).

 6   {8}   Lastly, our notice explained that even though Defendant cited to the New

 7 Mexico Constitution in his docketing statement, he did not assert that the state

 8 constitution provided him with greater protection than the United States Constitution

 9 in this context, and therefore, we did not consider whether the New Mexico

10 Constitution offered Defendant greater protection. [CN 2] In response, Defendant

11 states that “the provisions of Article II, Section 10 were directly presented to the

12 [d]istrict [c]ourt” and that this Court’s decision in State v. Wagoner, 2001-NMCA-

13 014, 130 N.M. 274, 24 P.3d 306, “was presented to the district court for the holding

14 that the evidence produced from an illegal search will not support a search warrant.”

15 [MIO unnumbered 1] We remain unpersuaded. The issue in this case involves the

16 admissibility of hearsay at a suppression hearing. The proposition cited by Defendant,

17 referencing Article II, Section 10, is not relevant to the issue presented. As we

18 explained above, our Supreme Court has held that out-of-court statements are

19 admissible at a suppression hearing to show consent to search. Rivera, 2008-NMSC-

                                             5
 1 056, ¶ 17. Defendant has not advanced any argument as to how the New Mexico

 2 Constitution would preclude the admission of out-of-court statements at a suppression

 3 hearing to show consent, and we therefore decline to examine the issue. See State v.

 4 Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (explaining that appellate courts are

 5 under no obligation to review unclear or undeveloped arguments).

 6   {9}    Accordingly, for the reasons stated above and in our notice of proposed

 7 summary disposition, we affirm.

 8   {10}   IT IS SO ORDERED.


 9                                        _________________________________
10                                        MICHAEL E. VIGIL, Chief Judge


11 WE CONCUR:


12 ___________________________
13 TIMOTHY L. GARCIA, Judge


14 ___________________________
15 J. MILES HANISEE, Judge




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