State v. Dyess

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 35,329 5 NOBLE DYESS, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 Jane Shuler Gray, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Mary Barket, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 BUSTAMANTE, Judge. 1 {1} Defendant has appealed from convictions for possession of a controlled 2 substance and possession of paraphernalia. We previously issued a notice of proposed 3 summary disposition in which we proposed to uphold the convictions. Defendant has 4 filed a memorandum in opposition. After due consideration, we remain unpersuaded. 5 We therefore affirm. 6 {2} We previously set forth the pertinent background information and relevant 7 principles of law in the notice of proposed summary disposition. We will avoid undue 8 reiteration here, and focus instead on the content of the memorandum in opposition. 9 {3} Defendant continues to challenge the constitutionality of the warrantless search 10 of the safe and seizure of the drugs and paraphernalia contained therein. [MIO 6-24] 11 {4} As we previously observed in the notice of proposed summary disposition, 12 Defendant’s clear and unequivocal disclaimer of ownership of the safe [MIO 3] 13 constituted abandonment. [CN 3-4] See State v. McNeal, 2008-NMCA-004, ¶ 18 , 143 14 N.M. 239 , 175 P.3d 333 (“Courts have found unequivocal evidence of abandonment 15 when a person expressly states that he is not the owner of a bag.”); see generally State 16 v. Celusniak, 2004-NMCA-070, ¶ 28 , 135 N.M. 728 , 93 P.3d 10 (identifying a series 17 of factual scenarios that generally give rise to a finding of abandonment, “including 18 cases where the defendant disclaims ownership of the property”); State v. Villanueva, [19] 1990-NMCA-051 , ¶ 24, 110 N.M. 359 , 796 P.2d 252 (“Where an individual denies [2] 1 ownership or a possessory interest in property, such denial may deprive him of any 2 justified expectation of privacy in the object.”). In light of this abandonment, 3 Defendant cannot claim any reasonable expectation of privacy in the safe; and as such, 4 Defendant lacks standing to challenge the search. See Celusniak, 2004-NMCA-070 , 5 ¶ 25; see, e.g., Villanueva, 1990-NMCA-051 , ¶¶ 26-27. Once the safe was opened, the 6 contraband in plain view therein was subject to seizure. See State v. Rivera, [7] 2010-NMSC-046, ¶ 28 , 148 N.M. 659 , 241 P.3d 1099 (“Under the plain view 8 doctrine, items may be seized without a warrant if the police officer was lawfully 9 positioned when the evidence was observed, and the incriminating nature of the 10 evidence was immediately apparent, such that the officer had probable cause to 11 believe that the article seized was evidence of a crime.” (internal quotation marks and 12 citation omitted)). 13 {5} In his memorandum in opposition Defendant argues that his disclaimer of 14 ownership did not constitute abandonment of the safe. [MIO 14] Defendant relies 15 heavily on out-of-state authority. However, the New Mexico cases previously cited 16 provide clear guidance on the effect of unequivocal disclaimers. To the extent that 17 Defendant may invite this Court to depart therefrom, we decline to do so. 18 {6} Defendant further contends that the surrounding circumstances militate against 19 application of the doctrine of abandonment, [MIO 14-20] focusing specifically on the [3] 1 nature of the container [MIO 13-14] and its location in a private residence where 2 Defendant was a guest. [MIO 14-19] In the absence of the disclaimer of ownership, 3 these considerations would have been highly material. However, we fail to see how 4 Defendant could be said to have retained any cognizable privacy interest in the safe 5 once he disclaimed ownership thereof, particularly in light of the search of the 6 probationer-owner’s residence that was taking place at the time. [RP 26] See generally 7 State v. Bolin, 2010-NMCA-066, ¶ 13 , 148 N.M. 489 , 238 P.3d 363 (noting the 8 constitutionality of warrantless searches of probationers’ homes); State v. Baca, [9] 2004-NMCA-049, ¶ 42 , 135 N.M. 490 , 90 P.3d 509 (observing that probationary 10 status significantly reduces expectations of privacy, and supervision entails 11 warrantless searches). We therefore remain unpersuaded. 12 {7} Accordingly, for the reasons stated in our notice of proposed summary 13 disposition and above, we affirm. 14 {8} IT IS SO ORDERED. 15 _______________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 17 WE CONCUR: [18] 19 TIMOTHY L. GARCIA, Judge [1] 2 J. MILES HANISEE, Judge