OPINION
1. Thе State appeals from the trial court’s order granting Defendant’s motion to suppress drug evidence seized from an automobile. The sole issue on appeal is whether Defendant had standing to challenge the search of the automobile. We affirm.
I. FACTUAL BACKGROUND
2. In October 1993, the Santa Fe County Sheriffs Department received several tips that Defendant and two other individuals, Michael Lucero and Alex Trujillo, were selling heroin from a motel room in Santa Fe, New Mexico. In response to these tips, the Sheriffs Department conducted a surveillance oрeration at the motel which involved listening to conversations among Defendant, Lucero and Trujillo from an adjoining motel room. Based on the information obtained from this surveillance, the Sheriffs Department obtained a search warrant for the motel room occupiеd by the three individuals as well as a Buick Regal automobile (the Buiek) parked outside the motel and owned by Lucero. The three individuals were at the motel when the search warrant was executed. They were each arrested and jointly charged with trafficking in heroin, possession of three other controlled substances and drug paraphernalia, and conspiracy.
3. In response to separate motions filed by Defendant, Lucero and Trujillo, the trial court suppressed the evidence seized from the motel room on the grounds that the officers who executed the search violated the “knock and announce” rule. The State does not challenge the trial court’s rulings regarding the evidence seized from the motel room in this appeal. Based on the remaining evidence seized from the Buick, Lucero was tried and аcquitted of all charges in April 1995.
4. After Lucero’s trial, Defendant filed a motion to suppress the evidence seized from the Buick on the grounds that the State lacked probable cause to justify the search of the. car. The State responded by asserting that Defendant lackеd standing to challenge the search of the Buick because she did not own the car and was not an occupant at the time of the search. At the hearing on this motion, Defendant introduced the police affidavit used to obtain the search warrant as evidence that Dеfendant had used the Buick with the owner’s permission and had exerted control over its contents. The affidavit states that the Buick “is being used by Michael Lucero and [Defendant],” and that the affiant heard a conversation in which Defendant “told Michael [Lucero] not to mess with that stuff, I am going tо have to weight [sic] out all that stuff all over again.” One of the items of drug paraphernalia found in the Buick was a gram scale. The State offered no evidence at the hearing on the motion to suppress, but simply relied on its written assertion that Defendant lacked standing becаuse she neither owned nor occupied the Buick at the time of the search.
5. Noting that neither ownership nor occupancy were dispositive, the trial court found that Defendant had standing to challenge the search of the Buick and granted her motion to suppress the evidence seized from the car. The State now appeals the trial court’s ruling that Defendant had standing to challenge the search of the Buick.
II. DISCUSSION
Preservation of Error
6. The State cannot raise the issue of Defendant’s standing for the first time on appeal because standing is a fact-based issue оn which Defendant must be given the opportunity to present evidence to the trial court. State v. Porras-Fuerte,
7. Defendant asserts that the State has failed to preserve the issue of Defendant’s standing in the case at bar. We disagree. Although the State chose to rely on its written opposition at the hearing on Defendant’s motion to suppress, the written opposition itself was timely filed and specifically raised the argument that Defendant lacked standing because she did not own or occupy the Buick at the time of the search. We hold that the State’s reliance on the timely and specific arguments made in its written opposition was sufficient to preserve the claimed error regarding Defendant’s standing.
Standard of Review
8. We review the trial court’s ruling on Defendant’s motion to suppress to determine “ ‘whether the law was correctly applied to the facts, viewing them in the manner most favorable to the prevailing рarty.’ ” State v. Wright,
Reasonable Expectation of Privacy
9. We begin our analysis by reaffirming that Defendant’s standing to challenge a search as violative of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution hinges on whether she had a reasonable expectation of privacy in the place entered. Wright,
Evidence of Defendant’s Expectation of Privacy
10. We determine whether Defendant had a legitimate expectation of privacy “by an examination of all the record surrounding [thе] arrest[,] search and seizure.” State v. Martinez,
11. In conducting our review of the record, we note that Defendant’s expectation of privacy may be “established by undisputed evidence before the trial court in the form of police records.” Esguerra,
12. Without the opportunity to establish such an expectation through the use of police records, a defendant is left with few options besides testifying on her own behalf. Yet a defendant may be deterred from testifying on her own behalf at a suppression hearing because of the risk that the State will use this testimony to impeach her at trial. 1 We decline to restrict Defendant’s use of police records to support her claim of standing in a way that forces Defendant to choose between her constitutional right to be free from unreasonable searches and her equally fundamental right to refrain from making self-incriminating statеments.
13. Allowing Defendant to use police records to establish her standing does not conflict with the principle that a person’s standing to challenge a search depends on her own actual expectation of privacy. While in the context of stolen vehicle cases, this principle may lead to the conclusion that a defendant’s expectations are not determined “upon the basis of what the police believe or even necessarily upon the actual facts” regarding the ownership of the vehicle, 5 Wayne R. La-Fаve, supra § 11.3(e), at 182, the same conclusion does not follow in the case at bar. On the contrary, a police officer’s observations regarding Defendant’s own statements and conduct as a permissive user of the vehicle in question may be highly relevant to Defendant’s task оf showing that she had an actual expectation of privacy in this vehicle. Cf Wright,
14. The State claims that Defendant presented no evidence to show that she had an expectation of privacy in the Buick that was the subject of the search. We disagree. To support her claim of standing in this case, Defendant introduced evidence in the form of the affidavit by the police officer who observed Defendant’s conduct and overheard her conversations prior to the search. This affidavit states that both Defendant and Lucero used the Buick. The affidavit also recounts a conversation in which Defendant told Lucero, the Buick’s owner, that he should “not mess with that stuff’ or else Defendant would have to reweigh it. The record also reflects that a gram scale was found in the Buick. Viewed in the light most favorable to the trial court’s ruling, these facts support the inference that Defendant was a permissive user of the Buick who had an ongoing relationship with Lucero through which she exerted control over both the vehicle’s owner and its contents. Viewing the evidence in the light most favorable to Defendant, we hold that there was substantial evidence to support the trial court’s factuаl finding that Defendant had an actual expectation of privacy in the Buick.
Reasonableness of Defendant’s Expectation of Privacy
15. The second step in our analysis of Defendant’s standing is to inquire whether Defendant’s subjective expectation of privacy in the Buick is one that society recognizes as reasonable. Wright,
16. Under the Fourth Amendment, a person may have standing to challenge the search of a place she does not own or occupy if she has the right to exclude others from the searched premises or has continuous access to the searched premises combined with a possessory interest in an item seized there. See Rakas v. Illinois,
17. Even a person who lacks the ability to regulate his access or to exclude others may have standing if he is a house-guest on the searched premises with the owner’s permission and has a possessory interest in an item seized there. See, e.g., Minnesota v. Olson,
18. In light of these authorities, we conclude that Defendant had a reasonable expectation of privacy in the Buick under Article II, Section 10 of the Nеw Mexico Constitution in virtue of her status as a permissive user who had an ongoing relationship with the vehicle’s owner through which she exerted control over both the vehicle’s owner and its contents. Because her expectation of privacy was both actual and reasоnable, we hold that Defendant had standing to challenge the search of the Buick.
III. CONCLUSION
19. We affirm the trial court’s order granting Defendant’s motion to suppress the evidence seized from the Buick.
20. IT IS SO ORDERED.
Notes
. This proposition is often cited in support of the doctrine of automatic standing. See 5 Wayne R. LaFave, supra § 11.3(g), at 210 n. 380. However, because we resolve the issue of Defendant’s standing based on the specific evidence she presented regarding her use of the Buick, we need not reach the question of whether New Mexico should adopt the automatic standing doctrine.