{1} The State appeals the district court’s order granting Defendants’ motion to suppress evidence obtained as result of a search of Defendants’ home. Below, the district court concluded that the warrantless search of Defendants’ home was illegal under Georgia v. Randolph,
BACKGROUND
{2} On December 29, 2005, Officer Steven Flores of the Belen Police Department received a tip that a male subject was selling marijuana from a certain trailer. Officer Flores subsequently learned that the male
{3} When Officer Flores arrived at the house, Defendant Janzen was present along with Defendant Marquez and other family members. Officer Flores believed that Defendants Janzen and Marquez were married. When confronted with the information obtained from the tip, Defendant Janzen denied that he was selling drugs. Officer Flores then asked Defendants if he could search the house. Both Defendants told Officer Flores that he would need a search warrant if he wanted to search their home.
{4} As Officer Flores started to leave the scene, he was called back by another officer who told him to speak to Defendant Janzen. Defendant Janzen told Officer Flores that he had changed his mind and that he consented to a search of the residence. Defendant Janzen then told Officer Flores where marijuana was hidden throughout the residence. Officer Flores found some sixty pounds of marijuana. Officer Flores testified that at no time did Defendant Marquez express her consent to the search.
{5} Before trial, Defendants filed a joint motion to suppress, arguing that under Randolph, the refusal of a co-tenant to the search of a residence renders the entire search illegal. The district court agreed with Defendants and granted the motion to suppress. This appeal follows.
STANDARD OF REVIEW
{6} “An appeal of a suppression motion involves a mixed question of fact and law.” State v. Gerald B.,
DISCUSSION
{7} In Randolph, the defendant’s wife, who had recently moved back into the marital home, called the police to report a domestic dispute.
{8} The Supreme Court granted certiorari in Randolph “to resolve a split of authority on whether one occupant may give law enforcement effective consent to search shared premises, as against a co-tenant who is present and states a refusal to permit the search.” Id. at 108,
{9} At the suppression hearing in the present case, Defendants argued that the search of Defendants’ home over the objection of Defendant Marquez was illegal under Randolph. In response, the State argued that Randolph, which had been decided during the pendency of the case, should not be given retroactive application. The State further argued that the search was a “valid consent search.” Additionally, the State maintained that it did not matter that Defendant Marquez did not consent because Defendant Janzen controlled the household and,
{10} The State raises four arguments on appeal: (1) that Defendant Janzen cannot challenge the search because he consented to it; (2) that there was no search for Fourth Amendment purposes; (3) that Randolph is inapplicable because Defendant Marquez did not reaffirm her lack of consent to the search; and (4) that the drugs would have been inevitably discovered. We hold that the State failed to preserve any of these arguments below, and we therefore affirm the district court’s order suppressing the evidence.
{11} Rule 12-216(A) NMRA provides that in order “[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.” As recognized by our Court, “[t]he rule serves many purposes: it provides the lower court an opportunity to correct any mistake, it provides the opposing party a fair opportunity to show why the court should rule in its favor, and it creates a record from which this Court may make informed decisions.” State v. Joanna V.,
{12} The State first argues that, according to Randolph, where one co-tenant refuses consent to a search and another co-tenant consents to a search, the resulting search will only be illegal as to the non-consenting co-tenant. As such, because Defendant Janzen consented to the search, he cannot challenge the legality of the search. Case law from other jurisdictions provides some support for the State’s argument. See, e.g., Valle v. State,
{13} The State asserts that its arguments below that the search was a “valid consent search” and that Defendant Marquez did not have standing to object to the search because Defendant Janzen controlled the premises were sufficient to preserve the argument that the search was valid as to Defendant Janzen. We do not believe that the State’s arguments below fairly apprised the district court of a possible waiver or standing argument as to Defendant Janzen. As such, it does not appear that this argument was properly preserved. See State v. Lucero,
{14} Moreover, we disagree with the State’s claim that because Randolph was relatively new at the time of the hearing and because the prosecutor did not fully understand the basis of Defendants’ argument, the
{15} The State next argues that there was no search because Defendant Janzen showed police officers where the drugs were hidden. Once again, we conclude that the State did not preserve this argument below.
{16} The State maintains that this argument is preserved by statements made by the district court while it rendered its decision. While delivering its oral decision, the district court stated
[t]hat is why I was asking very closely, this is where it becomes a little more interesting, I think, although I won’t decide for the record, I honestly think if the police officer had, if-this is where it gets a little interesting-if Mr. Janzen had actually pulled the suitcase out from under the bed, like he pulled the bags out from the freezer, it would have been an interesting question as to whether there was a search at all. In which ease he would have been just handing the contraband to the police officers. There would have been no search, [it would have been] basically handing over the contraband.
But having the officer go under the bed and pull out the stuff, I think there’s enough indicia of a search, and so I’m going to find that there was a search ... and ... the search was an illegal search}.]
We disagree that the district court’s own musings were sufficient to preserve the issue raised by the State on appeal. While the court itself observed that the question of whether a search actually occurred was an interesting question, the State did not, either before or after the court’s decision, alert the court to the fact that it was contesting the issue or that the district court otherwise erred in concluding that it was a non-issue. See Gomez,
{17} The State next argues that because “Defendant Marquez was not standing in the door and expressly refusing consent at the time Officer Flores re-entered the trailer,” Defendant Janzen’s consent was valid to justify the search. Notably, the State did not argue below that Defendant Marquez was required to reaffirm her lack of consent to the search, and additionally we observe that there was no factual development as to Defendant Marquez’s whereabouts at the time that Defendant Janzen consented to the search. Thus, as with the previous issues raised by the State, we do not believe that this argument was preserved below.
{18} Similarly, we conclude that the State’s remaining argument, that the drugs would have inevitably been discovered, was not preserved below. Indeed, the State admits as much in its brief, and again this is an issue on which Defendants could have offered additional evidence had it been preserved. As such, we do not address this issue on appeal. See Lucero,
{19} We affirm the district court’s order granting Defendants’ motion to suppress.
{20} IT IS SO ORDERED.