{1} Defendant entered a conditional plea in magistrate court, reserving the right to appeal her motion to suppress. This case is before us on appeal following the district court’s decision to deny the motion. The procedural posture of the case gives us the opportunity to clarify the approach for litigating reserved issues when a conditional plea is entered in the magistrate court. The merits of Defendant’s challenge of the district court’s denial of her motion to suppress give us the opportunity to explore issues of abandonment and consent when a passenger leaves a purse in a car that is searched upon the driver’s consent. We reverse.
FACTS AND PROCEDURAL HISTORY
{2} The female Defendant was a passenger in a car that contained two male passengers and a female driver. A state police officer pulled the car over when he observed that the driver was not wearing a seat belt. While speaking to the driver, the officer noticed the strong odor of burnt marijuana. He asked the driver to exit the vehicle and inquired about the odor that he had noticed. The driver did not admit to marijuana use, and she told the officer something to the effect of, “If there is marijuana in the vehicle, please do find it.”
{3} The officer began his search of the vehicle in the driver’s area. He asked the two male passengers to exit the vehicle while he proceeded clockwise to search the front passenger area and the rear passenger area behind it, where the males were sitting. Finding nothing, he asked Defendant to exit the vehicle while he searched the driver’s side rear seat area where Defendant had been seated. In front of where Defendant was sitting, he found a woman’s purse “crammed” underneath the driver’s seat. He opened the purse and immediately noticed a bag of marijuana. The officer exited the vehicle and asked Defendant if this was her purse. Defendant stated that it was hers. The officer arrested Defendant and released the others with a citation to the driver for the seat belt violation.
{4} Defendant was charged with one petty misdemeanor count of possession of marijuana (one ounce or less), contrary to NMSA 1978, § 30-31-23(B)(l) (1990). With the case proceeding in magistrate court, Defendant filed a motion to suppress the marijuana, which was denied. Defendant entered a plea of no contest. Defendant and the State agree that the plea was conditioned on an appeal of the motion to suppress, although the judgment and sentence issued by the magistrate court does not indicate the condition
{5} Defendant appealed the district court’s denial of the motion to suppress to this Court. In our first calendar notice, we proposed to hold that “the district court should have disposed of the appeal by entry of an order dismissing the appeal and remanding the cause to the magistrate court for enforcement of its judgment and sentence.” Defendant prepared such an order and submitted it to the district court. However, the district court refused to sign the order, apparently interpreting our calendar notice as requiring Defendant to dismiss her appeal in this Court before proceeding to straighten out the procedural issues below. Defendant submitted a motion to dismiss to this Court, and we clarified that Defendant was not required to move for dismissal of her appeal to this Court. Instead, we ordered Defendant to “obtain an order from the district court dismissing and remanding to the magistrate court to enforce its judgment and file it with this Court within twenty (20) days.” The district court again refused to issue an order dismissing the appeal, stating that its decision on the motion to suppress was not dispositive of the case. On the district court’s suggestion, Defendant entered a new conditional plea of no contest in the district court, reserving the right to appeal the denial of the motion to suppress to this Court. The district court also entered a judgment and sentence on the plea which was the same as that entered by the magistrate court. We accepted these documents as the basis of this appeal and assigned the case to the general calendar, asking the parties to brief the procedural issue in the case.
ISSUE ONE: Proper procedure for obtaining a final, appealable order from a magistrate court appeal
{6} In the present case, the magistrate court had original jurisdiction because Defendant was charged with a petty misdemeanor. NMSA 1978, § 35-3-4(A)(1985) (conferring magistrate jurisdiction). Defendant moved for suppression of evidence of the marijuana, arguing that it was obtained through an illegal search. See Rule 6-304(0(1) NMRA 2004 (permitting persons aggrieved by a search and seizure to move for suppression in the magistrate court). When that motion was denied, Defendant entered a no contest plea on the condition that she could appeal the decision on the motion to suppress.
a. Conditional pleas in magistrate court
{7} A voluntary no contest plea ordinarily operates as a waiver of the right to appeal. See State v. Hodge,
{8} While our rules have codified the conditional plea in district court and for certain offenses in metropolitan court, New Mexico does not have a rule formally codifying the conditional plea in magistrate court. See Rule 5-304(A)(2) NMRA 2004 (conditional plea in district court); Rule 7-502(A)(3) NMRA 2004 (conditional plea for offenses tried on the record in metropolitan court); Rule 6-502(A) NMRA 2004 (pleas in magistrate court). We do not read this as a prohibition against conditional pleas in magistrate court, especially in light of our courts’ general approval of conditional pleas as an efficient use of court resources. See Hodge,
b. Procedure for appeals following conditional pleas in magistrate court
{9} Generally, when a defendant has been convicted of a crime in magistrate court, he or she has 15 days to appeal to the district court. Rule 6-703(A). The district court heai’s the appeal de novo. Rule 6-703(J). The district court then enters a judgment or order disposing of the appeal, which may be accompanied by a formal or memorandum opinion. Rule 6-703(0). The parties may appeal the decision of the district court to this Court at this point. Rule 6-703(Q). After the district court issues an order, if there is no motion for rehearing after 15 days, Rule 6-703(O)(2), and no appeal after 30 days, Rule 12-201(A)(2) NMRA 2004, the district court issues a mandate to the magistrate court to enforce the district court’s judgment. Rule 6-703(P). If the parties appeal the district court’s decision, the district court does not issue a mandate to the magistrate court until the final disposition of the appeal. Rule 6-703(0(3). On remand, the magistrate court proceeds with the case in keeping with the mandate of the district court.
{10} The mechanics of this process easily adapt to a case involving a conditional plea. In magistrate court, the defendant may enter a conditional plea of guilty or no contest, reserving one or more issues for appeal. The magistrate court then enters a judgment and sentence that embodies the provisions of the plea agreement. Rule 6-502(D)(3) (plea agreement procedure in magistrate court). The judgment should also expressly set out the issues reserved for appeal. See Form 9-408C NMRA 2004 (conditional plea). The defendant has 15 days to file his or her notice of appeal to the district court. The district court hears only the matters reserved, and it hears these de novo. The district court then issues an order resolving the matters before it. For example, on a motion to suppress, if the court rules in the defendant’s favor, it will enter an order granting the motion to suppress; if not, it will enter an order denying it and, as it has ruled on all the matters before it, dismissing the appeal.
{11} If the defendant prevails on a motion to suppress at the district court, the State may appeal the decision to this Court within ten days. Rule 12-201(A)(1); see Rule 6-703(Q) (authorizing appeals in accordance with the rules of appellate procedure). If the State does not file a timely appeal, the district court remands to the magistrate court where the defendant may withdraw the plea. See Rule 7-502(A)(3) (conditional plea agreement procedure in metropolitan court).
{12} If the defendant does not prevail, he or she may appeal to this Court within 30 days. Rule 12-201(A)(2). After the final disposition of the appeal, the district court remands to the magistrate court. Again, if the defendant prevails, he or she may withdraw the plea. If the State prevails, the magistrate court enforces the original judgment and sentence that embodied the disposition of the plea agreement. At this point, the judgment is like any other judgment arising from a guilty or no-contest plea, and no further appeal on the merits of the case is permitted.
{13} In the present case, the district court had trouble reconciling our mandate to dismiss the appeal with the fact that it did not have the entire case before it. The confusion may have been rooted in our past cases, which held that when the district court enters an order of remand to the magistrate court that does not cover sentencing, the order is not final and appealable. State v. Cordova,
{15} We reiterate that the district court does not remand the case back to the magistrate court until all appeals have been resolved. Thus, in the present case, it was unnecessary to enter a new conditional plea and judgment and sentence. However, because the parties and the district court were operating without the benefit of guidance from the rules, and because the entry of a new plea agreement together with judgment and sentence in the district court did amount to a final order, although unnecessarily burdensome to the parties and court, we will reach the merits of the appeal.
ISSUE TWO: Motion to suppress
{16} Defendant contends that the district court erred in denying her motion to suppress. In reviewing a motion to suppress, we defer to the district court’s findings of fact if they are supported by substantial evidence. State v. Shaulis-Powell, 1999— NMCA-090, ¶ 7,
{17} Defendant does not challenge the validity of the initial traffic stop or of the driver’s consent to search the vehicle. Thus, this case presents the narrow question of whether an officer who has obtained a valid consent to search a vehicle can search a purse left in that vehicle when he has not determined whether the consenting party owned the purse and when, in fact, she did not. The district court order found “that the officer’s conduct was reasonable in light of the consent given by the driver, or in the alternative, Defendant abandoned her expectation of privacy in the bag when she left the vehicle.” We address each basis for the order in turn, although we recognize that, logically, the abandonment rationale should be addressed first inasmuch as Defendant would have no standing to object to the search if she abandoned her expectation of privacy in the bag.
a. Consent
{18} The trial court ruled that the search was valid because it was within the scope of the driver’s consent to the search of the vehicle. Under the circumstances of this case, we disagree.
{19} Initially, we note that the State is correct to point out that Defendant does not explicitly declare whether she challenges the search pursuant to the New Mexico or United States Constitution. However, because Defendant’s arguments to the district court and to this Court accurately relied on New Mexico cases that announced both federal and state constitutional standards for searches, we will consider both the federal and New Mexico constitutional arguments. Defendant is arguing for the application of an existing New Mexico constitutional standard that exceeds federal protections, rather than the creation of a new state standard, and she adequately asserted these state protections as discussed in State v. Gomez,
{20} Under the New Mexico Constitution, there is no doctrine of “apparent authority” that allows a person without actual
{21} Instead, the State suggests that our precedents indicate a requirement that the owner of property must protest the authority of the person who consented to the search. We do not read Cline, id. ¶ 16, to suggest this proposition. In Cline, the owner of the property was the wife of the man who consented to the search. Id. We cited to federal cases that suggest that a wife may overcome the presumption of joint marital ownership by protesting to her husband’s authority to consent to a search. Id. No such presumption exists in the present case, where Defendant had no familial relationship with the driver, nor did the officer in the present case claim to rely on any familial relationship as a basis for his search.
{22} Furthermore, Defendant may not have been aware that the search was being conducted pursuant to the driver’s consent. The officer obtained the consent after questioning the driver while the officer and the driver were standing behind the driver’s car. Their discussion, therefore, was presumably out of Defendant’s earshot. Even when Defendant was asked to exit the vehicle, the officer instructed her to stand in front of the car, apart from the driver and other passengers who were standing behind the car. Thus, Defendant would not have had the opportunity to learn about the consent from the driver or the other passengers. The State did not introduce evidence that Defendant was aware that the search was pursuant to the driver’s consent, leaving open the question of whether Defendant was aware that there was any objection to be made. For these same reasons, we are unpersuaded by eases holding that a search is permissible when an individual is silent while a third party gives consent to search an area that contains that individual’s belongings. See, e.g., State v. Frizzel,
{23} In addition, the cases from other jurisdictions on the issue of consent under circumstances such as those in this case give us pause in relying on the district court’s consent rationale. See State v. Matejka,
b. Abandonment
{25} In order for Defendant to contest the search, she must have standing, or a legitimate expectation of privacy in the purse. State v. Esguerra,
{26} ’’Abandonment is an ultimate fact or conclusion based upon a combination of acts and intent.” Id. at 13,
{27} Based on these cases, one could conclude that the inquiry is basically a factual one on which we should defer to the trial court’s “finding” of abandonment. However, while we are committed to the rule requiring deference to factual findings, the “finding” here was in reality a mixed question of fact and law. See State v. Attaway,
{28} Canvassing cases from other jurisdictions, we find that the basic inquiry is whether the defendant either denied ownership of the item or physically relinquished it. See, e.g., United States v. James,
{29} In the present case, there was no disclaimer of ownership. The officer did not see the purse until Defendant had exited the vehicle, and as soon as he asked her whether the purse was hers, she stated that it was. Thus, the question is whether Defendant’s conduct indicates a physical relinquishment. We hold that the facts of this case, even in
{30} In Esguerra,
{31} In contrast, we reversed the trial court’s conclusion that the defendant had abandoned his vehicle in Guebara,
{32} The only fact supporting the abandonment ruling in this case is that Defendant’s purse was crammed underneath the driver’s seat. Defendant did not toss the purse out the window, leave it in a public place, or otherwise discard it. This is critical, for as LaFave points out, “even an inadvertent leaving of effects in a public place, whether or not abandonment in the true sense of that word, can amount to a loss of any justified expectation of privacy.” 1 Wayne R. LaFave, Search and Seizure § 2.6(b), at 575-76 (3d ed.1996); see also State v. Parker,
{33} Furthermore, Defendant was not fleeing police when she left the purse in the car, but rather she was following the officer’s request to exit the vehicle. She did not put the purse in a place to which she had no plans to return. See James,
{34} We also note that the officer did not ask Defendant or the driver whether the purse belonged to either female prior to searching it. By not asking anyone about the ownership of the purse prior to the search, the officer did not afford Defendant the opportunity to disclaim the purse or otherwise indicate abandonment. As we discussed in more detail above in the section on consent, we believe that in cases where the issue of ownership of an item to be searched is in question and the police can easily verify ownership without risk to their safety or the integrity of the search, police officers should be required to inquire into ownership before assuming abandonment. In addition, when Defendant claimed ownership of the purse, it did not appear that she knew that the officer had already searched the purse, as she was in front of the car and he was seated in the back seat. This indicates that while Defendant’s hope may have been that the officer would not find the purse at all, she did not intend to abandon it even when she knew the officer had discovered it.
{35} We recognize that this issue is not entirely free from doubt. Compare State v. Westover,
CONCLUSION
{36} We hold that a conditional plea reserving the right to appeal a limited number of properly raised issues is permissible in magistrate court. We also hold that the preferred procedure for appeal to this Court after such a plea is entered is for the district court to issue a final and appealable order dismissing the appeal or to issue an order granting the motion to suppress. We reverse the district court’s denial of Defendant’s motion to suppress. We remand to the district court so that it may issue an order of remand to the magistrate court allowing Defendant to withdraw her conditional plea.
{37} IT IS SO ORDERED.