State v. Widmer

                                                         Office of the Director         New Mexico
                                                          07:12:40 2021.03.08           Compilation
                                                                         '00'07-        Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: September 15, 2020

No. A-1-CA-34272

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

RONALD WIDMER,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Certiorari Denied, November 3, 2020, No. S-1-SC-38500. Released for Publication
March 9, 2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

HANISEE, Chief Judge.

{1}    This case is before us on remand from our New Mexico Supreme Court to
address the arguments raised by Defendant Ronald Widmer that were not addressed in
our original opinion filed on March 5, 2018, and in particular, Defendant’s argument
concerning the lawfulness of his arrest. State v. Widmer (Widmer I), 

, ¶
1, 

, rev’d, State v. Widmer (Widmer II), 

, ¶¶ 8, 42-44, 

. The jury convicted Defendant of one count of possession of a controlled
     substance (methamphetamine), contrary to NMSA 1978, Section 30-31-23(A) (2011,
     amended 2019). Given our Supreme Court’s decision that Defendant’s pre-Mirandized
     statements were admissible because the Quarles public safety exception applied to
     permit the officer’s question to him, we address Defendant’s remaining arguments on
     appeal: whether (1) the district court erred in not suppressing evidence and statements
     resulting from an unlawful arrest; (2) the district court erred in admitting lapel camera
     evidence under Rule 11-106 NMRA; and (3) the district court erred in not granting a
     continuance. See Widmer II, 

; New York v. Quarles, 

 (1984). We affirm.

     BACKGROUND

     {2}     Defendant’s drug possession charge arose from an incident in which
     Albuquerque Police Department (APD) officers investigated whether a scooter in
     Defendant’s possession was stolen. Widmer I, 

, ¶ 2. Officers ran
     Defendant’s personal identification information and the scooter’s vehicle identification
     number (VIN) through the National Crime Information Center (NCIC) to check for
     outstanding warrants and any stolen vehicle reports and discovered that there were two
     outstanding felony warrants for Defendant’s arrest. Widmer II, 

. “Officers placed Defendant in handcuffs while they awaited confirmation that the
     warrants were valid.” Id. ¶ 2. “As part of the arrest procedures . . . officers put on
     protective gloves, and Officer Apodaca asked Defendant, ‘Is there anything on your
     person that I should know about?’ ” Id. ¶ 16. “Defendant responded, ‘I have meth[,]’ [and
     o]fficers collected a white powder from inside a pill container hanging from Defendant’s
     belt loop.” Id. ¶ 3; Widmer I, 

, ¶ 7. After the physical evidence was
     placed in a plastic evidence bag, Defendant muttered, “I’m gonna have another charge
     now.” Widmer II, 

. “Shortly thereafter, APD dispatch confirmed that
     the arrest warrant[s] for Defendant [were] outstanding,” Widmer I, 

, ¶ 7,
     and “[t]he white powder recovered from Defendant’s belt loop tested positive for
     methamphetamine.” Widmer II, 

. As a result, Defendant was
     charged with felony possession of a controlled substance. At trial, Defendant moved to
     suppress the evidence and statements resulting from the search incident to the arrest,
     but the district court denied the motion, and Defendant was ultimately convicted for
     felony possession of methamphetamine. Defendant appeals.

     DISCUSSION

I.          The District Court Did Not Err in Denying Defendant’s Motion to Suppress
            Evidence and Statements Because Defendant’s Arrest Was Lawful, and a
            Contemporaneous Search Incident to Arrest Was Permitted

     {3}    Defendant’s challenge to the district court’s denial of the motion to suppress
     focuses on the legality of the arrest itself. Defendant argues that his arrest was unlawful
     because local police department policy prohibits making an arrest based on dispatch’s
     preliminary report regarding the existence of an outstanding warrant until such warrant
is confirmed. Because Defendant was arrested before the reported warrants were
confirmed minutes later, he contends that the arrest was unlawful, and thus, the district
court should have suppressed the evidence (the red pill container from his belt loop) as
well as Defendant’s statements resulting from the search incident to the allegedly
“unlawful” arrest. We disagree.

{4}    “Appellate review of a district court’s decision regarding a motion to suppress
evidence involves mixed questions of fact and law.” State v. Urioste, 

, 

, 

. “The [district] court’s denial of a motion to suppress will
not be disturbed on appeal if it is supported by substantial evidence, unless it appears
that the determination was incorrectly premised.” State v. Jacobs, 

, ¶
34, 

, 

; accord State v. Trangucci, 

, ¶ 13, 

, 

. We review the application of law to the facts de novo but view
the facts in the light most favorable to the State, as the prevailing party. State v. Jones,

, 

, 

.

{5}     In support of his argument that his arrest was illegal, Defendant cites primarily to
Officer Frank Baca’s testimony on local police department policy, which suggests that
officers may not make an arrest based on a preliminary warrant report until the warrant
is secondarily confirmed. However, our appellate courts have never held that arrest
upon a NCIC-reported felony arrest warrant may only follow some secondary
confirmation that the warrant is accurate or remains active. See Widmer I, 2018-NMCA-
035, ¶ 43 (Hanisee, J., dissenting) (“While ensuring the accuracy of known arrest
warrants is laudable, it is not a constitutional mandate.”). We decline to embrace such a
standard today. That is because a police officer’s non-adherence to a given police
department policy does not in and of itself suffice to establish a constitutional violation.
See Virginia v. Moore, 

 (2008) (“[W]hile [s]tates are free to regulate . .
. arrests however they desire, state restrictions [on arrests] do not alter the Fourth
Amendment’s protections.”); Tanberg v. Sholtis, 

 (10th Cir.
2005) (“That an arrest violated police department procedures does not make it more or
less likely that the arrest implicates the Fourth Amendment[.]”); United States v. Wilson,

 (2d Cir. 2012) (“[T]he Fourth Amendment does not generally
incorporate local statutory or regulatory restrictions on seizures and . . . the violation of
such restrictions will not generally affect the constitutionality of a seizure supported by
probable cause.”). Conversely, an officer’s adherence to a constitutionally flawed police
department policy does not suffice to excuse a constitutional violation. See United
States v. Brown, 

 (11th Cir. 2019) (reasoning that while a jury may
consider police department policy as relevant evidence, it may not substitute the policy
for the constitutional standard); cf. City of Oklahoma City v. Tuttle, 

(1985) (explaining that a city may be held liable when the official policy of the city
causes an officer to deprive a person of his or her constitutional rights in the execution
of such policy). As well, a law enforcement officer’s understanding of the law—
something a police department policy is not, in any event—is not dispositive in
determining the constitutionality of a search or seizure. See State v. Martinez, 1997-
NMCA-048, ¶ 15, 

, 

 (“The state of mind of the law
enforcement officer is not dispositive in determining the constitutionality of a search or
seizure. Ordinarily, the propriety of an officer’s action is based on the information known
to the officer, not on the officer’s motive or understanding of the law.”).

{6}    We conclude that Defendant was legally arrested when a NCIC database search
revealed the existence of two outstanding felony arrest warrants for Defendant,
regardless of police department policy regarding secondary confirmation of the
accuracy of the arrest warrant or warrants. That the policy-required secondary
confirmation of Defendant’s warrants was ongoing when Defendant was handcuffed and
searched during officers’ on-scene investigation does not invalidate the legality of the
arrest and constitutionality of the contemporaneous search thereto. Also, Defendant
here does not challenge the lawfulness of the initial stop, the NCIC database search,
nor the validity of his arrest warrants.

{7}    Our holding in this regard is consistent also with the premise upon which past
supportive New Mexico case law rests, which upheld the validity of arrests made
pursuant to outstanding warrants, even without physical possession of the underlying
warrant, when the validity of the warrant is unchallenged. See State v. Grijalva, 1973-
NMCA-061, ¶¶ 5, 10-13, 

, 

 (holding that arrest and seizure
were lawful where dispatch indicated the defendant had an outstanding warrant and that
in the absence of a challenge to the validity of an arrest warrant, physical possession of
the warrant is not required for a lawful arrest). We similarly hold that Defendant’s arrest,
pursuant to valid and unchallenged arrest warrants, irrespective of any secondary
confirmation per local police department policy, was lawful.

{8}     In his reply brief, Defendant cites to State v. Yazzie for the proposition that
preliminarily indication by dispatch of a possible warrant could not give rise to probable
cause for an arrest. 

, ¶¶ 2, 40, 

. However, Yazzie is
inapposite to the case at bar. There, our Supreme Court held that an “unknown” status
designation from a database determining whether drivers were compliant with insurance
requirements may form the reasonable suspicion for an investigatory stop. Id. ¶ 40.
Also, the evidence in Yazzie demonstrated that “close to ninety percent of vehicles
reflecting an ‘unknown’ compliance status” were in fact uninsured in violation of law. Id.
¶ 2. Conversely, here, we review whether officers involved in an already valid stop,
investigating whether a scooter was stolen, may rely on outstanding felony warrants—
without completed secondary confirmation—to lawfully arrest a defendant. We reiterate
that we have never held that secondary confirmation of a warrant is required for an
arrest to be lawful, and we cannot consider Yazzie, discussing the propriety of an
insurance database search as providing reasonable suspicion for an initial stop, to be
dispositive on outstanding felony arrest warrants under the facts of this case. Defendant
cites no other controlling authority and thus, we assume none exists. See In re Adoption
of Doe, 

, ¶ 2, 

, 

 (“We assume where
arguments in briefs are unsupported by cited authority, counsel after diligent search,
was unable to find any supporting authority. We therefore will not do this research for
counsel.”); Curry v. Great Nw. Ins. Co., 

, 

 (“Where a
party cites no authority to support an argument, we may assume no such authority
exists.”).
  {9}     Moreover, given the lawfulness of the arrest, we also conclude that the district
  court properly denied the motion to suppress Defendant’s statements and the evidence
  seized from the search incident to that lawful arrest. We briefly explain. Searches
  incident to arrests are the well-established exception to the generally applicable warrant
  requirement. See State v. Paananen, 

, 

 (“One of the
  most firmly established exceptions to the warrant requirement is the right on the part of
  the government, always recognized under English and American law, to search the
  person of the accused when legally arrested.” (internal quotation marks and citation
  omitted)). Our jurisprudence permits a contemporaneous search incident to an arrest
  when an outstanding warrant forms the basis of the arrest. See State v. Weidner, 2007-
  NMCA-063, ¶ 18, 

, 

 (stating that the search incident to an
  arrest exception requires the state to prove that “the search occurs as a
  contemporaneous incident to the lawful arrest of the defendant and is confined to the
  area within the defendant’s immediate control” (internal quotation marks and citation
  omitted)). Defendant’s outstanding arrest warrants resulted in his arrest, and the
  methamphetamine seized from Defendant’s belt loop in the search incident to the
  arrest, which lead to the controlled substance possession charge at issue, were not
  necessary to justify that arrest. See id. ¶ 19 (“This Court has stated that even if a search
  occurs before the formal arrest, the search is lawful as long as the fruits of the search
  were not necessary to justify the arrest and the formal arrest followed quickly on the
  heels of the challenged search.” (internal quotation marks and citation omitted)). In
  addition, although not dispositive, the outstanding warrants were confirmed within
  minutes of Officer Apodaca arresting Defendant and searching him incident to the
  arrest. For these reasons, we conclude that the district court properly denied the motion
  to suppress the evidence and statements resulting from a search incident to a lawful
  arrest.

II.      The District Court Did Not Abuse Its Discretion in Admitting the Lapel
         Video Evidence of Defendant’s Incriminating Statements Under the Rule of
         Completeness

  {10} Defendant argues that the district court erred by allowing the jury to receive
  evidence of his incriminating statements under the rule of completeness. “We review the
  admission of evidence under an abuse of discretion standard and will not reverse in the
  absence of a clear abuse.” State v. Candelaria, 

, ¶ 41, 

  (internal quotation marks and citation omitted), cert. denied, 2019-NMCERT-___ (No. S-
  1-SC-37644, May 9, 2019). “An abuse of discretion occurs when a ruling is against logic
  and is clearly untenable or not justified by reason.” 

 (internal quotation marks and
  citation omitted). Given the presumption of correctness in the district court’s ruling, the
  party claiming error bears the burden of showing such error. See State v. Aragon, 1999-
  NMCA-060, ¶ 10, 

, 

.

  {11} At trial, Defendant sought to introduce a portion of Officer Apodaca’s lapel video
  evidence to impeach Officer Apodaca on his statements regarding the evidence
  collected at the scene, alleging that the sample tested was not retrieved from Defendant
and instead belonged to the female suspect, Linda Alvarez. 1 Defendant was unable to
properly admit the relevant portion of the video however, because it was not prepared in
a form that the jury could review without extraneous content also being admitted. As a
consequence, Defendant agreed to lay a foundation for the entire video, including the
accompanying audio, from Officer Apodaca’s lapel camera and moved to admit it into
evidence, waiving any objection to the statements contained therein. The State then
argued that a piecemeal presentation of evidence, highlighting certain portions of video
with audio, would confuse the witnesses and the jury and that for the sake of
completeness Officer Baca’s lapel camera evidence presented during the State’s case
in chief should also be admitted with audio, having previously been admitted without
audio. After prolonged discussions, the court ruled that Defendant’s request to admit
Officer Apodaca’s lapel video evidence with audio constituted a waiver of his earlier
objection regarding the audio on Officer Baca’s lapel video evidence and permitted both
officers’ lapel camera evidence with audio to be admitted for the jury to review.

{12} Under the rule of completeness, “a party may move for the admission of any
writing or recorded statement that should, in fairness, be considered
contemporaneously with a writing or recorded statement introduced by another party.”
State v. Baca, 

, ¶ 24, 

, 

; see Rule 11-106 (“If
a party introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part—or any other writing or recorded
statement—that in fairness ought to be considered at the same time.”). The rule permits
parties “to introduce recorded statements to place in context other evidence that, when
viewed alone, may be misleading.” Baca, 

, ¶ 24. Based on our review
of the record—specifically, the bench discussion regarding the admission of both
officers’ lapel camera footage—the district court ruled that highlighting certain segments
of video which included audio from Officer Apodaca’s lapel camera during the defense’s
presentation would likely confuse the jury when considered alongside Officer Baca’s
video-only recording, previously admitted during the State’s case in chief. Thus, the
district court ruled that the jury should be permitted to fully review both videos, avoiding
any misleading or deceptive impressions of the evidence.

{13} Defendant argues that admission of Officer Baca’s lapel camera video evidence
with audio was an abuse of discretion because it was unrelated to the purpose for which
he had offered Officer Apodaca’s lapel camera evidence—to show the jury which bag
was collected from Alvarez. Defendant cites State v. Barr for its proposition that the
introduction of additional video evidence was improper under the rule of completeness
because “defense counsel had not created a misleading or deceptive impression of the
videotaped statement and because the [s]tate had not shown that the entire video was
both relevant and explained or qualified the portions initially referenced by defense

1During the State’s case in chief, Officer Apodaca clarified that a plastic baggie containing

methamphetamine was also seized from Alvarez, but that the white powder loose in Defendant’s red pill
container was separately sealed into “the larger [of the two] bag[s].” The samples were then tagged into
the same evidence bag because both samples field-tested as methamphetamine. The forensics expert
who analyzed the evidence in the larger baggie also testified and confirmed that the sample was
methamphetamine. The district court in reviewing Officer Apodaca’s lapel camera evidence noted that the
footage was unclear on the question of which baggie (and its contents) belonged to whom.
counsel[.]” 

, 

, 

, overruled on other
grounds by State v. Tollardo, 

, 

. We disagree.

{14} Our review of the videos is consistent with the district court’s conclusion that
Officer Apodaca’s lapel camera evidence was inconclusive on the question of which
baggie belonged to whom. Unlike Barr, here, there was legitimate concern that a
barrage of unconnected video segments would confuse the jury, and thus, admission of
the videos under the rule of completeness was proper. Moreover, Defendant waived his
earlier objections to out-of-court statements by admitting Officer Apodaca’s redacted
lapel camera footage, which also included audio containing statements of Defendant.
Considered in sum, we cannot conclude that the district court abused its discretion by
admitting Officer Baca’s lapel camera video with audio, alongside Officer Apodaca’s,
despite the former’s inclusion of certain incriminating statements by Defendant, on
grounds that the admission of both better enabled the jury to evaluate the collective
footage and avoid any misleading impressions therefrom.

III.   The District Court Did Not Err in Refusing to Grant a Continuance

{15} Defendant next contends that the district court erred in its denial of a
continuance, finding that defense counsel was responsible for his unpreparedness but
refusing to also find counsel “ineffective” given his unpreparedness. “The grant or denial
of a continuance is within the sound discretion of the trial court, and the burden of
establishing abuse of discretion rests with the defendant.” State v. Salazar, 2007-
NMSC-004, ¶ 10, 

, 

. There will be no grounds for reversal
unless the defendant demonstrates abuse of discretion that resulted in prejudice to the
defendant. See State v. Sanchez, 

, ¶ 17, 

, 

.

{16} We initially note that Defendant’s arguments in this section are particularly
difficult to follow as they were inadequately developed and conclusory. See State v.
Guerra, 

, 

 (explaining that appellate courts are
under no obligation to review unclear or undeveloped arguments); Corona v. Corona,

, 

 (“This Court has no duty to review an argument
that is not adequately developed.”). Nevertheless, to the extent we understand
Defendant’s arguments, we briefly address them.

{17} Defendant contends that the late disclosure of the drug-analysis evidence and
the officers’ lapel video evidence undermined defense counsel’s preparedness for trial.
The State responded that the evidence at issue was available to Defendant when
defense counsel received discovery in the case, but defense counsel neglected to
retrieve the video from APD evidence. Here, contrary to the district court’s pretrial
scheduling order stating that all discovery and/or motions to suppress or other
substantive motions should be filed thirty days before the first day of trial, Defendant’s
motion to continue and motion to suppress were filed only fifteen days before the first
day of trial, and Defendant’s motion to compel the production of video evidence filed
only ten days before the first day of trial. See State v. Candelaria, 

, 

, 

 (explaining that a trial court has the inherent authority
to control its docket and the proceedings before it); see also Gonzales v. Atnip, 1984-
NMCA-128, ¶ 20, 

, 

 (“Trial courts have inherent power
to manage their own affairs so as to achieve the orderly and expeditious disposition of
cases.” (internal quotation marks and citation omitted)). We decline to consider a denial
of a continuance based on counsel’s unpreparedness for trial and failure to timely raise
discovery issues as amounting to an abuse of discretion by the court. Instead, we
consider these issues to fall squarely within the court’s inherent authority to manage its
docket and ensure orderly and expeditious disposition of cases. See Candelaria, 2008-
NMCA-120, ¶ 14. In addition, Defendant’s allegation that the district court’s comment
that defense counsel’s request to be found ineffective was contemptuous, alongside its
finding that defense counsel was unprepared, is self-contradictory, and therefore an
abuse of discretion, is similarly tenuous, considering Defendant’s failure to adhere to the
pretrial scheduling order in the immediate days preceding trial. Accordingly, we
conclude that the district court did not err in its denial of a continuance.

CONCLUSION

{18}   For the foregoing reasons, we affirm Defendant’s conviction.

{19}   IT IS SO ORDERED.

J. MILES HANISEE, Chief Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

JACQUELINE R. MEDINA, Judge