335 P.3d 244
N.M. Ct. App.2014Background
- Defendant Mosley pleaded no contest to trafficking by possession with intent to distribute cocaine after incriminating evidence was found in his apartment during a knock-and-talk.
- Police entered Mosley’s apartment with Mosley’s implied consent after a knock-and-talk initiated due to neighbor complaints about drug activity and foot traffic.
- Sergeant Simmons observed a cocaine-like substance in the hallway and subsequently conducted a search that led to the discovery of crack cocaine in Mosley’s jacket; the apartment occupants were searched and Mosley was arrested.
- Defendant’s trial counsel moved to suppress the evidence on grounds that the entry exceeded Mosley’s consent and that the knock-and-talk lacked probable cause; the district court denied suppression.
- Mosley reserved the right to appeal the suppression ruling in his plea agreement; on appeal, he argued the district court should have suppressed because the consent did not cover the hallway/bedroom traversed by officers.
- The appellate court held the scope-of-consent issue was not preserved for review, but found a prima facie case of ineffective assistance of counsel based on failure to raise a scope-of-consent suppression argument, and remanded for a hearing on that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of scope-of-consent argument | State: record supports review of scope within consent. | Mosley: scope not preserved; merits review limited to initial entry. | Scope issue not preserved; not reviewed on appeal. |
| Ineffective assistance of counsel for not challenging scope of consent | State: no prima facie case shown. | Mosley: failure to move to suppress was ineffective assistance. | Prima facie showing of ineffective assistance; remand for evidentiary hearing. |
Key Cases Cited
- State v. Lopez, 143 N.M. 274 (2008-NMCA-002) (preservation requires explicit, fair invocation of ruling)
- State v. Aguilar, 98 N.M. 510 (1982-NMCA-116) (preservation and review standards for appeals)
- State v. Flores, 144 N.M. 217 (2008-NMCA-074) (knock-and-talk permissible; not a carte blanche for entry)
- State v. Haidle, 285 P.3d 668 (2012-NMSC-033) (scope of consent and reasonableness standard)
- State v. Garcia, 127 N.M. 695 (1999-NMCA-097) (scope of consent constrained by reasonableness)
- State v. Vargas, 149 P.3d 961 (2007-NMCA-006) (not speculating about unintended scope expansions)
- Ochoa, 135 N.M. 781 (2004-NMSC-023) (plain view requires lawful viewing position)
- Montoya, 188 P.3d 1209 (2008-NMSC-043) (fruit of the poisonous tree doctrine considerations)
- Curran, 498 F.2d 30 (9th Cir. 1974) (knock-and-talk scope limits to entry, not interior searches)
- Flores (duplicate citation for context), 144 N.M. 217 (2008-NMCA-074) (see above)