*1 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number:
3 Filing Date: March 5, 2018
4 NO. A-1-CA-34272
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v. RONALD WIDMER, Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Stan Whitaker, District Judge 12 Hector H. Balderas, Attorney General
13 Santa Fe, NM
14 John Kloss, Assistant Attorney General
15 Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 C. David Henderson, Appellate Defender
19 Santa Fe, NM
20 for Appellant
*2 OPINION 2 VIGIL, Judge.
3 {1} The district court denied Defendant Ronald Widmer’s motion to suppress on 4 grounds that inculpatory statements he made without the benefit of warnings 5 were admissible under the police officer safety exception to . We disagree 6 and reverse.
7 BACKGROUND {2} Defendant was found guilty by a jury on one count of possession of a
9 controlled substance (methamphetamine), contrary to NMSA 1978, Section 30-31-23 10 (2011). Defendant’s conviction stemmed from the detention and search of his person 11 that occurred during an Albuquerque, New Mexico Police Department (APD) 12 investigation into whether a moped in Defendant’s possession was stolen. {3} Defendant filed a pre-trial motion to suppress statements he made, together 14 with any drugs and paraphernalia seized from his person by the APD officers. 15 Because Defendant’s motion was untimely, the district court decided to address the 16 merits of Defendant’s motion during the trial, and together with any related 17 constitutional issues as they arose while the evidence at trial was being presented. APD Officers Frank Baca and “Speedy” Apodaca, as well as APD forensic 19 scientist Manuel Gomez testified. In addition, Defendant provided limited testimony *3 1 outside of the presence of the jury. APD dispatch received an anonymous tip 2 reporting two individuals in a Walgreens parking lot were trying to start a moped that 3 appeared to have been tampered with, and Officers Baca and Apodaca were 4 dispatched to investigate. Upon arriving at the Walgreens at around 11:00 p.m., 5 Officer Apodaca testifiеd that he approached Defendant and his companion, Lydia 6 Alvarez, who were standing around a moped meeting the tip’s description, and asked 7 what was going on and what were they doing. Defendant and Ms. Alvarez, according 8 to Officer Apodaca, cooperated with the officers and explained that their moped was 9 having mechanical issues due to a low battery. Although Defendant told the officers 10 that he owned the moped, Officer Apodaca said they continued to investigate because 11 there was damage to the moped’s ignition, which indicated that it may have been 12 stolen. Officer Apodaca located a VIN number on the moped and ran that information
14 through the National Criminal Information Center (NCIC)—a database through whiсh 15 police run checks on potential stolen vehicles, firearm inquiries, and warrant checks. 16 At the same time, Officer Baca collected and ran the personal information of 17 Defendant and Ms. Alvarez through NCIC and learned that Defendant had a possible 18 active felony arrest warrant.
*4 1 {6} As soon as the officers learned of the possible arrest warrant, within only 2 minutes of arriving at Walgreens, and before receiving confirmation from dispatch 3 that the arrest warrant was in fact active, Officer Apodaca detained Defendant, placed 4 him in handcuffs, and directed him to sit near the sidewalk. While Defendant was being handcuffed, Officer Apodaca searched Defendant’s
6 person. During the search and without reading Defendant his Miranda rights, Officer 7 Apodaca asked Defendant “Is there anything else on you that I should know 8 about?”—which both officers testified is a routine question asked of individuals 9 being patted down to ensure police safety. In response to Officer Apodaca’s question, 10 Officer Baca testified over defense counsel’s objection (which was overruled) that 11 Defendant admitted to having some methamphetamine in a red pill container hanging 12 from his belt loop. As a result, Officer Apodaca seized a pill container which 13 contained a white powdery substance from Defendant’s belt loop. Shortly thereafter, 14 APD dispatch confirmed that the arrest warrant for Defendant was outstanding and 15 Defendant was placed in Officer Apodaca’s squad car and removed from the scene. {8} The district court gаve two explanations for its ruling admitting Defendant’s 17 statement into evidence. The district court ruled that Defendant’s questioning was 18 permissible as incident to a lawful arrest under the police safety exception to . In a subsequent statement, the district court further explained that it refused *5 1 to “get into the artfulness or lack of artfulness” of Officer Apodaca’s question to 2 Defendant.
3 The jury was instructed that:
4 Evidence has been admitted concerning a statement allegedly made 5 by [D]efendant. Before you consider such statement for any purpose, 6 you must determine that the statement was given voluntarily. In 7 determining whether a statement was voluntarily given, you should 8 consider if it was freely made and not induced by promise or threat. {9} Officer Apodaca further testified that during the investigation at Walgreens he 10 аnd Officer Baca also spoke with Ms. Alvarez. As a result of this interaction, Officer 11 Apodaca testified that he seized a small baggie containing a white powdery substance 12 from Ms. Alvarez, which Officer Baca had noticed was underneath Ms. Alvarez’s leg 13 where she sat on the sidewalk. Believing that all of the white powder seized from 14 Defendant and Ms. Alvarez was methamphetamine, Officer Apodaca combined the 15 contents of the pill container from Defendant’s belt with the contents in the baggie 16 seized from Ms. Alvarez into one bag before tagging it into evidence. {10} Mr. Gomez, who was qualified as an expert in forensic science and analysis of
18 controlled substances, testified that a single sample of the contents of the bag 19 containing the mixed white powders seized from Defendant and Ms. Alvarez was 20 tested for controlled substances. This sample tested positive for methamphetamine. The jury returned a general verdict of guilty, and Defendant appeals. *6 1 DISCUSSION
2 I. Standard of Review
3 Appellate review of a motion to suppress under presents a mixed
4 question of law and fact.
State v. Olivas
,
4 there anything on your person that I should know about?”—which prompted 5 Defendant to state that he had some methamphetamine—was custodial interrogation 6 in violation of his rights under the Fifth Amendment and Miranda v. Arizona , 384 7 U.S. 436 (1966). Defendant also contends Officer Apodaca’s question does not 8 qualify under the police officer safety exception to Miranda . We agree with both 9 contentions. A. Custodial Interrogation Under Miranda The Fifth Amendment to the United States Constitution provides that “[n]o
12 person shall be compelled in any criminal case to be a witness against himself.” U.S.
13 Const. amend V. Based on this protection, the United States Supreme Court
14 established in that the government may not use statements, whether
15 exculpatory or inculpatory, stemming from “custodial interrogation” of a suspect,
16 unless effective procedural safeguards have been followed to secure the suspect’s
17 privilege against self-incrimination. 384 U.S. at 444 (holding that prior to
18 investigatory questioning, a suspect “must be warned that he has [the] right to remain
19 silent, that any statement he does make may be used as evidence against him, and that
*8
1 he has a right to the presence of an attorney”).
Miranda
warnings are required when
2 a susрect has been: (1) placed in custody, and then (2) subject to interrogation.
Id.
;
3
State v. Vasquez
,
8
{15}
Therefore, we must determine if Officer Apodaca’s question to Defendant
9 concerning whether he had anything on him that Officer Apodaca should know about
10 constituted “custodial interrogation.” We consider the questions of whether
11 Defendant was placed in custody and then subject to interrogation in turn.
12 To determine whether a suspect was placed in custody for purposes of
, appellate courts engage in an objective inquiry under which the ultimatе
14 issue is whether a suspect was either formally placed under arrest or subject to
15 restraint from freedom of movement to the degree normally associated with a formal
16 arrest.
See State v. Wilson
,
13 questioning that led to his admission to possessing methamphetamine. Almost 14 immediately upon arriving at Walgreens and learning of a possible active arrest 15 warrant for Defendant, Officer Apodaca detained Defendant and placed him in 16 handcuffs. Officer Apodaca proceeded to frisk Defendant and directed him to sit 17 down on the sidewalk. Although Officer Baca testified at trial that APD officers are 18 not permitted to formally place a suspect under arrest until potential warrants have 19 been confirmed by dispatch, Officer Apodaca testified that at the time Defendant was *10 1 placed in handcuffs “he wаs arrested for the warrant.” However, whether Defendant’s 2 detention constituted an investigatory stop, a de facto arrest, or formal arrest is 3 immaterial because a suspect need not be under formal arrest to be in “custody” under Miranda . Rather Miranda custody only requires restraint from movement to the 5 degree normally associated with an arrest, as the courts in Wilson , Quarles , and Smith 6 concluded. In those cases, the courts determined suspects were in Miranda custody 7 when they were handcuffed, frisked, questioned, and ordered to sit in a particular 8 area—even if not explicitly told they were under arrest—because the suspects’ 9 movement was restrained to the degree normally associated with an arrest. Here, 10 Defendant’s freedom of movement was similarly restrained when he was handcuffed, 11 frisked, questioned, and ordered to sit on the sidewalk by Officer Apodaca. The 12 circumstances indicate that a reasonable person in Defendant’s position would have 13 understood himself to be in custody. Having determined that Defendant was placed in “custody” by Officer Apodaca
15 for purposes of Miranda , we turn to whether Officer Apodaca’s questioning of 16 Defendant constituted “interrogation,” under . {19} “Interrogation” under certainly encompasses express questions from
18 police to obtain an incriminating response. But, it is not limited to such express
19 questions. “Interrogation” also includes “any words or actions,” according to the
*11
1 United States Supreme Court, “that the police should know are reasonably likely to
2 elicit an incriminating response[.]”
Rhode Island v. Innis
,
12 confirming his suspicion that she had outstanding arrest warrants, arrested her.
Id
. at
13 908. Because he knew the defendant was a drug user, the officer was concerned that
14 she might have weapons, needles, or drugs on her person, and he asked, before
15 handcuffing and searching her incident to arrest, “Do you have anything on your
16 person I need to be concerned about?”
Id
. Usually, but not this time, the officer’s
17 practice was to immediately explain, “[w]eapons, needles or anything that can poke
18 me, stick me, of any kind?”
Id
. In response to the officer’s question, the defendant
19 removed a plastic container from her shirt pocket and told the officer that it was
*12
1 heroin which belonged to a friend.
Id
. The Washington Court of Appeals concluded
2 that given the broad nature of the officer’s question (which lacked his usual
3 explanation that he was looking for weapons, needles, or items that could poke or
4 stick him), “he should have known his query was reasonably likely to elicit an
5 incriminating response.”
Id.
at 909. The cоurt therefore concluded that the defendant
6 was subjected to an interrogation under .
Spotted Elk
,
5 Defendant was entitled to being advised of his constitutional rights. It is undisputed 6 that Defendant was Mirandized after the inculpatory statements were elicited from 7 him by Officer Apоdaca. As a result, unless the circumstances of Officer Apodaca’s 8 questioning of Defendant warrant application of an exception to Miranda , the district 9 court erred in admitting Defendant’s statement to Officer Apodaca that he had some 10 methamphetamine. We proceed by considering the state’s argument and district 11 court’s ruling that an exception to applies in this case. B. The Police Officer Safety Exception to Miranda {23} In Quarles , the United States Supreme Court established a “narrow exception
14 to the rule[,]” which allows arresting officers to ask a defendant “questions
15 necessary to secure their own safety or the safety of the public.”
Quarles
, 467 U.S.
16 at 658-59 (1984). In
Quarles
, a woman reported that she had been raped at gunpoint
17 and provided a description of her attacker.
Id
. at 651-52. When the officers entered
18 а nearby supermarket and saw a man fitting the description provided by the woman,
19 he fled.
Id
. at 652. Following a short pursuit, the officers caught him, frisked him, and
*14
1 discovered that he was wearing an empty shoulder holster.
Id
. After handcuffing the
2 suspect and before advising him of his rights, the officers asked the suspect
3 where the gun was.
Quarles
,
12 this Court applied
Quarles
. In
Trangucci
, the defendant forced himself into the
13 victim’s apartment, and after the victim refused the defendant’s repeated demands for
14 money, the defendant shot the victim in the face and ran.
16 there is an objective, immediate threat to police officer safety and police ask
17 questions that are necessary to secure their own safety. In each case the exception
18 “will be circumscribed by the exigency which justifies it.”
Quarles
,
4 question, “Do you have anything on your person I need to be concerned about?” was
5 custodial interrogation under , the Washington Court of Appeals proceeded
6 to consider whether the police officer safety exception applied.
Spotted Elk
, 34 P.3d
7 at 908, 910. The court concluded it did not for two reasons: (1) “the officer’s broad
8 and apparently unqualified question was not related solely to his own safety”; and (2)
9 “no sense of urgency attended the arrest.”
Id
. at 910.
{27}
In
State v. Crook
,
11 at a motel investigating whether the defendant and another suspect were in possession
12 of a stolen vehicle, and received confirmation that the suspect had an outstanding
13 warrant for his arrest.
Id
. at 773-74. After a backup officer arrived, the officers went
14 to the room to arrest the suspect, where a wrestling match ensued when the defendant
15 interfered with the suspect’s arrest.
Id
at 774. A police officer handcuffed the
16 defendant, ordered him to sit on the ground, and during his pat-down of the defendant
17 found scales in the defendant’s pocket.
Id.
After retrieving the scales, the officer
18 asked him whether “he [had] anything else on him” and the defendant answered, “I
19 have weed in the room.”
Id.
The court rejected the state’s argument that the public
*17
1 safety exception to applied because there was no threat to the public safety
2 which outweighed thе need to protect the defendant’s right against self-incrimination.
Crook
,
9 officers approached the defendant because he violated a traffic law while riding his
10 bicycle and because he appeared to be tryng to elude the officers.
Id
. at 1068. After
11 it was discovered that the defendant had an outstanding misdemeanor warrant for
12 failure to appear on a shoplifting charge, the defendant was handcuffed and arrested.
Id
. The officers also decided to retrieve the defendant’s bicycle, which was ninety feet
14 away and next to a storage shed.
Id
. One of the officers asked the defendant “if there
15 was anything on the bicycle that he needed to know about.”
Id
. One of the officers
16 then heard the defendant say something about a joint and while taking the defendant
17 to the patrol car, one of the other officers heard the defendant mumble that “he found
18 something in the alley,” that he thought it was a “rifle or something,” and that it had
19 “wood and screws.”
Id
. The officers then found a sawed-off shotgun in a backpack
*18
1 attached to the handlebars of the bicycle.
Id
. at 1068-69. The defendant was indicted
2 for being a felon in possession of a firearm in violation of federal law.
Id
. at 1069.
3 The court rejected the government’s argument that the defendant’s statements at the
4 scenе of his arrest were not subject to suppression under the police officer safety
5 exception to .
Castaneda
,
16 Apodaca’s question, “Is there anything else on you that I should know about” must
17 be suppressed. This was a custodial interrogation without warnings, and the
18 “narrow exception” recognized in
Quarles
does not apply. The officers expressed no
19 concern of any kind that anything at the scene or Defendant’s conduct posed a danger
*19
1 to their safety. In fact, Defendant was cooperative and handcuffed before the pat
2 down. If Officer Apodaca was concerned that Defendant might have something on
3 his person which would endanger Officer Apodaca while he conducted Defendant’s
4 pat down, he did not say so. In addition, there is nothing in the record to show the
5 reason for such a concern, if such a concern potentially existed. Similar to
Castaneda
,
6 the broad, undifferentiated question, “Is there anything else on you I need to know
7 about?” was not focused on protecting officer safety.
15 a focused question that is necessary to ensure the safety of the officer when there is
16 an objective, immediate threat to the safety of the officer. However, this is not such
17 a case. We therefore determine that the district court erred in admitting Defendant’s
18 statement that he had some methamphetamine in a red pill container hanging from his
19 belt loop, together with the methamphetamine discovered as a result of Defendant’s
*20
1 statement.
See State v. Greene
,
6 {31} Perhaps anticipating our conclusion, the State аrgues that even if Miranda was 7 violated, admitting Defendant’s statement into evidence was harmless error. We 8 disagree.
9
{32}
At issue here is the violation of Defendant’s constitutional rights under
.
See Wilson
,
14 to the district court. First, relying on
State v. Fekete
,
6 killed a man on the street, and went back to his motel room for the night. 1995-
7 NMSC-049, ¶¶ 8-9. Three statements made by the defendant were considered on
8 appeal. Based on their investigation, police officers went to the defendant’s motel the
9 next day and asked if he would come to the police station and be questioned.
Id.
¶ 11.
10 The defendant responded that he had shot a man the night before and asked if they
11 wanted the gun, pointed out where it was, and handed the officers extra ammunition
12 he was carrying.
Id.
On the way to the police station, the defendant repeated twice
13 again that he had shot a man the night before.
Id.
At the police station, the defendant
14 signed a written waiver of his rights and gave a full сonfession.
Id.
Our
15 Supreme Court held the defendant’s first statements at the motel room were not the
16 product of a custodial interrogation and were properly admitted into evidence.
Id.
17 ¶ 42. Our Supreme Court then assumed that the defendant was in custody on the way
18 to the police station, and concluded that all of his statements, except one, were
19 spontaneous and not in response to any questions by the police. And, the one question
*23
1 asked was, “[W]hich one[?]” in response to the defendant’s question about whether
2 the man had lived.
Id.
¶ 45. As to this question, our Supreme Court concluded, the
3 error, if any, was harmless, because the defendant only repeated his earlier statements
4 at the motel.
Id
. ¶ 46. Finally, our Supreme Court held that because the defendant
5 made а valid voluntary, knowing, and intelligent waiver of his rights before
6 giving the full confession at the police station, any error in admitting defendant’s two
7 prior statements was harmless.
Id.
¶¶ 46, 49-51. In contrast to
Fekete
, Defendant’s
8 statement to Ms. Alvarez was simply the product of his prior
un-Mirandized
9 confession to Officer Apodaca that he had methamphetamine on his person. This
10 statement and the powder taken from Defendant were subject to suppression under
11 the fruit of the poisonous tree doctrine.
See Greene
,
14 “voluntary” statement was admitted into evidence only because the district court
15 denied Defendant’s motion to suppress. Defendant was left with relying on lapel cam
16 videos which would otherwise have been suppressed to support his defensе that the
17 methamphetamine came from Ms. Alvarez. Moreover, the district court mandated that
18 the entire videos be given to the jury. Under these circumstances, there was no
19 waiver.
See State v. Zamarripa
,
9 suspected methamphetamine seized from Defendаnt was combined with suspected
10 methamphetamine seized from Ms. Alvarez into one bag at the scene by Officer
11 Apodaca. It is therefore unknown what, specifically, was tested positive for
12 methamphetamine by Mr. Gomez. Because of its erroneous suppression ruling, the
13 district court never developed a record for this Court to review regarding the
14 inevitable discovery doctrine or the officer’s contamination of the seized evidence.
15 We apply the right for any reason doctrine only if doing so “is not unfair to the
16 appellant.”
State v. Gallegos
,
4 statement into evidence was harmless beyond a reasonable doubt, we note that no 5 better evidence was available to the State besides Defendant’s statement—his 6 confession—that Defendant had methamphetamine on his person, and knew it was 7 methamphetamine. Our Supreme Court has recognized that the impact of a confession 8 is virtually impossible for a jury to ignore:
9
Confessions have profound impact on the jury, so much so that we may
10
justifiably doubt its ability to put them out of mind even if told to do so.
11
A full confession in which the defendant discloses the motive for and
12
means of the crime may tempt the jury to rely upon that evidence alone
13
in reaching its decision. The risk that the confession is unreliable,
14
coupled with the profound impact that the confession has upon the jury,
15
requires a reviewing court to exercise extreme caution before
16
determining that the admission of the confession at trial was harmless.
State v. Alvarez-Lopez
,
*26 1 {39} We reject the State’s arguments of harmless error and we are otherwise unable 2 to conclude beyond a reasonable doubt that the admission of Defendant’s statement 3 into evidence, in violation of Miranda, was harmless.
4 CONCLUSION
5 We reverse Defendant’s conviction and remand to the district court for a new 6 trial. In light of our holding, we do not address Defendant’s remaining arguments. 7 {41} IT IS SO ORDERED.
8 __________________________________ 9 MICHAEL E. VIGIL, Judge 10 I CONCUR: ______________________________________ TIMOTHY L. GARCIA, Judge Pro Tempore J. MILES HANISEE, Judge (dissenting)
*27 1 HANISEE, Judge (dissenting).
2 {42} When а defendant is legally arrested—as is the case when an NCIC search
4 undertaken by law enforcement officers reveals the existence of an outstanding felony
5 arrest warrant—our precedent uniformly, plainly and consistently permits a
6 contemporaneous search incident to arrest. It matters not that supplemental
7 confirmation of the warrant’s accuracy by APD dispatch was ongoing when
8 Defendant was handcuffed, searched, and seated upon a curb during the remainder
9 of the officers’ on-scene investigation. Stated more simply, a legal arrest commands
10 the constitutionality of a search incident thereto. As such, the methamphetamine
11 found in the pill container, attached to Defendant’s belt, is admissible against him at
12 trial. Also, I would hold Defendаnt’s constitutional rights not to have been violated
13 when he was asked, without being first notified of his right to remain silent, whether
14 he possessed anything on his person that officers “should know about” because such
15 an inquiry is justified by the limited -excepted need to secure officer safety.
16 Therefore, Defendant’s ensuing statement notifying officers of the presence of the
17 methamphetamine on his person is also admissible against him. I respectfully dissent.
First, we have held that outstanding arrest warrants permit arrests.
See State v.
Grijalva
,
11 otherwise applicable warrant requirement that serves generally, but not always, as the
12 constitutional prequel to police looking for things in privatе places such as pill boxes
13 attached to belt loops.
State v. Paananen
,
7 take up, is the propriety of the un-
Mirandized
question asked of Defendant just before
8 the constitutionally compliant search incident to his arrest. While the Majority’s
9 disallowance of the wording employed by the arresting officer finds some support in
10 other jurisdictions,
see
Majority Op. ¶¶ 20, 27-28, I would hold differently.
Quarles
11 held that “the need for answers to questions in a situation posing a threat to the public
12 safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's
13 privilege against self-incrimination.”
15 propriety of the straightforward search incident to arrest that resulted in the seizure 16 of methamphetamine from Defendant. More regrettably, it unnecessarily reduces the 17 day-to-day safety of law enforcement officers by disallowing one simple, safety- 18 geared inquiry of defendants that are possibly armed, possibly in possession of 19 hazardous paraphernalia associated with drug use, or that otherwise may pose some *31 1 unknown yet avoidable threat to officers. I view Quarles to permit officers to seek 2 such limited assurance without first providing warnings. I would affirm the 3 district court’s denial of Defendant’s motion to suppress.
4 __________________________________ 5 J. MILES HANISEE, Judge