State v. Lovato

                                                         Office of the Director            New Mexico
                                                          12:43:32 2021.01.25              Compilation
                                                                        '00'07-            Commission


             IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 3, 2020

No. S-1-SC-37859

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

ROBERT L. LOVATO,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Jeff McElroy, District Judge

Released for Publication January 26, 2021.

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Hector H. Balderas, Attorney General
Eran Shemuel Sharon, Assistant Attorney General
Santa Fe, NM

for Respondent

                                       OPINION

NAKAMURA, Justice.

{1}     This case requires us to decide whether a law enforcement officer’s threat to
obtain a search warrant renders a subsequent consent to search involuntary. We hold
that when a law enforcement officer procures consent to search through the threat to
obtain a search warrant, and as a result the defendant believes refusal to consent would
be futile, such consent is involuntary unless the law enforcement officer had probable
cause to obtain a search warrant when the threat was made.
{2}    Defendant Robert Lovato was charged with one count of possession of a
controlled substance (methamphetamine) contrary to NMSA 1978, Section 30-31-23(A),
(E) (2011, amended 2019) and one count of possession of marijuana (one ounce or
less) contrary to Section 30-31-23(A), (B)(1). In the district court, Defendant moved to
suppress evidence of the controlled substances recovered by law enforcement on the
basis that his consent to the underlying search was involuntary. The motion was denied.
Defendant subsequently pleaded guilty to one count of possession of a controlled
substance (methamphetamine). Defendant appealed, and the Court of Appeals affirmed
the district court. State v. Lovato, A-1-CA- 36312, mem. op. ¶ 1 (July 18, 2019) (nonprecedential). Defendant then filed a petition for writ of certiorari, which we granted. The
sole question on certiorari is whether Defendant’s consent to search was voluntarily
given. Holding that it was not, we reverse the Court of Appeals.

I.     BACKGROUND

{3}    Defendant was approached by the New Mexico State Police (NMSP) to conduct
a “knock and talk” in reference to alleged complaints from neighbors that Defendant was
dealing drugs on his property. After a brief discussion with Defendant about the
property, where Defendant both lived and ran a scrapyard, Agent Joey Gallegos gave
Defendant two options. 1

       Alright well, we can do one of two things. Um, we can – right now I believe
       I have enough probable cause to obtain a search warrant for your place.
       For this area here and for your place back at home to search for narcotics.
       Um, if I petition in courts I’m granted a search warrant then we’re going to
       take, if you do have any drugs or whatever in your places we are going to
       seize them and you’ll be arrested. The second option is if you[’re] willing to
       work with us and cooperate with us we’re willing to do the same with you.
       If you voluntarily turn over any drugs that you may have or anything you
       may have and allow us to search voluntarily, it’s free and voluntarily we
       don’t consent we will not arrest you and instead what we’ll do is just
       submit a report to the DA’s. If they decide they want to charge you that[’s]
       up to them, that’s not up to us. But we’re not going to charge or arrest you
       today. We just take the drugs and leave. You have my word that you don’t
       get arrested.

{4}     Defendant told Gallegos that he did not have any drugs and Gallegos reiterated
that Defendant had two options. Gallegos then told Defendant that “people have been
calling us and complaining about you for a while[,]” and Defendant acknowledged that
people had complained, but characterized them as a “bunch of haters.” Defendant
asked Gallegos to repeat the options again, and Gallegos told Defendant:

       I believe I have enough probable cause to obtain a search warrant for your
       place. What that entails is, is that we kick everybody out, we secure the

1The “knock and talk” was recorded by one of the NMSP agents. A transcript of the recording was
provided by the State. The recording is not part of the record before the Court.
       residence we kick everybody out. And hum, go back to the office and
       petition for a search warrant, I will tell you this, I’ve done over, I’ve
       petitioned for over 222 search warrants and I’ve never been denied one.
       Um, we get a search warrant, we search the place and then any drugs
       that you have we take with us and you will be arrested. You will be
       charged today. So basically if you want to work with us and volunteer us,
       allow us to search the place it’s your own free and voluntary consent. It’s
       of your own free will. It’s your choice. I’m not threatening you or anything.
       I’m just telling you the options of what I intend to do. Basically we just take
       the dope and leave. You won’t be arrested. We don’t arrest you today.
       (Emphasis added.)

Following further discussion, Defendant told Gallegos that there might be a little bit of
marijuana in the house. When Gallegos again asked Defendant for consent to search,
Defendant replied that he did not understand why a search was necessary. Gallegos
responded that they had been watching Defendant’s house and Defendant had been on
the radar for a while. When Gallegos told Defendant that a few people had been
arrested who said they’d bought “dope” from Defendant, Defendant responded, “Maybe
weed?” Eventually, Defendant turned over methamphetamine and marijuana.

II.    PROCEDURAL HISTORY

{5}    In the district court, Defendant moved to suppress the evidence of the
methamphetamine and marijuana, arguing that his consent to search was coerced.
Defendant claimed that Gallegos coerced him by, among other things, threatening to
obtain a search warrant if Defendant did not consent to the search. At the suppression
hearing, the only evidence offered by the State was a recording and transcript of the
“knock and talk.” It is not clear why NMSP agents were not present at the hearing.

{6}     Both Defendant and his investigator, Denis Romero, testified on behalf of the
defense. Romero testified first, stating that he reviewed the discovery file and saw no
indication of drug activity at Defendant’s home, and nothing to corroborate Gallegos’
statements that police had been receiving complaints and had arrested people who said
they had bought drugs from Defendant. Defendant then testified that he did not know
what to do when Gallegos sought Defendant’s consent to search the premises.
Defendant explained that Gallegos threatened to lock Defendant out of his residence
and scrapyard while Gallegos obtained a search warrant. According to Defendant,
although he did not want to give consent to the search, Gallegos’ threat had a “big
effect” on Defendant’s ultimate decision to consent.

{7}   At the conclusion of the foregoing testimony, the district court asked the State if,
under State v. Shaulis-Powell, 

, 

, 

, the
NMSP agents could threaten to get a search warrant if they did not in fact have
probable cause. The district court also asked if the statements pertinent to probable
cause made by NMSP agents on the “knock and talk” recording could be taken at their
word, or if additional evidence of probable cause would be necessary. The State
acknowledged that a showing of probable cause was required and that the information
on the recording was insufficient evidence on that point. The State added: “You would
have to hear from the officers . . . You can’t even say that you wouldn’t arrest them
unless you have the ability to arrest them.”

{8}      Defendant, in closing, distinguished Shaulis-Powell from the facts in this case.
Defendant emphasized that the Court of Appeals in Shaulis-Powell clearly held that
probable cause was a close call but that, due to independent corroboration of the tip
initially received by the police, a magistrate would likely have found probable cause.
This was key to the Court of Appeals’ conclusion that the consent to search was
voluntary. See 

. Defendant argued that no such corroboration
existed here, and that therefore probable cause was lacking, such that the evidence
should be suppressed.

{9}    The district court confirmed that there was no additional evidence to consider and
took the motion to suppress under advisement. Later, the district court denied the
motion, finding that the officer’s threat to secure the location while obtaining a search
warrant was not “sufficiently coercive” to vitiate Defendant’s consent to the search. It
further concluded that, based on the “testimony” of the NMSP agents, there was
probable cause to obtain a search warrant.

{10} Defendant eventually pleaded guilty, reserving his right to appeal. In the Court of
Appeals, Defendant argued that the motion to suppress should have been granted,
raising essentially the same arguments made in the district court. See Lovato, A-1-CA-
36312, mem. op. ¶ 21. The Court of Appeals majority affirmed the district court but
declined to reach the probable cause issue. Id. ¶¶ 28, 34. Specifically, the Court of
Appeals held that, “[b]ecause Agent Gallegos’ statements [about obtaining a warrant]
were only assessments of the situation and not an unequivocal assertion [that a warrant
could be obtained], it is unnecessary to reach a determination on the sufficiency of
evidence to support probable cause for a search warrant.” Id. ¶ 28.

{11} Judge Briana Zamora dissented. Id. ¶¶ 36-46 (Zamora, J., dissenting). According
to the dissent, Gallegos “unequivocally assert[ed] that he would be able to obtain a
warrant and thus Defendant . . . merely acquiesce[d] to a claim of lawful authority.” Id. ¶
40. The dissent also determined that the district court’s finding of probable cause was
not supported by substantial evidence, noting the State’s concession that officer
testimony would have been necessary to support such a finding. Id. ¶¶ 43-45. The
dissent therefore concluded that Defendant’s consent to the search was involuntary.
See id. ¶¶ 42, 45

III.   DISCUSSION

{12} On writ of certiorari to this Court Defendant again argues that his consent to
search was involuntary, and that the district court should have suppressed the tainted
evidence. Defendant argues that Gallegos’ representation that Defendant had “two
options”—consenting to an immediate search or waiting outside while police obtained a
search warrant—was coercive. Defendant argues that the presence of five armed
NMSP agents contributed to the coercive atmosphere. Defendant further asserts that
the district court’s and the Court of Appeals’ reliance on Shaulis-Powell is misplaced
because, there, the record contained evidence of probable cause to obtain a search
warrant, whereas here, such evidence was lacking. Defendant argues that, absent
evidence of probable cause, the State could not show that Defendant’s consent to
search was voluntary under the circumstances.

{13} The State argues that the district court properly denied Defendant’s motion to
suppress. The State contends that the presence of five armed officers was not coercive,
given that only Gallegos spoke with Defendant, no officer drew a weapon, and the
interaction between Defendant and the officers was respectful. With respect to
Gallegos’ statement that he believed he had enough information to obtain a search
warrant, the State argues that this is comparable to the statements made by police in
Shaulis-Powell, where the statement was deemed to be an assessment of the situation,
and not an unequivocal assertion that a warrant would be obtained. The State adds
that, although Gallegos stated that he had never been denied a search warrant, the
statement did not amount to a guarantee that a warrant would be issued. In response to
Defendant’s argument that the NMSP agents lacked probable cause, the State asserts
that the “knock and talk” recording shows that there had been complaints of drug activity
on Defendant’s property; that recently arrested individuals identified Defendant as the
person from whom they had purchased drugs; and that the property was under
surveillance.

A.     Standard of Review

{14} In reviewing the denial of a motion to suppress, we defer to the district court’s
factual findings if they are supported by substantial evidence. State v. Lopez, 2005-
NMSC-018, ¶ 9, 

, 

. This Court reviews the application of the law
to those facts de novo. State v. Davis, 

, ¶ 10, 

.

B.     Voluntariness of Consent to Search

{15} Whether consent to search is voluntary is a question of fact that depends on the
totality of the circumstances. Schneckloth v. Bustamonte, 

 (1973).
“The State has the burden of proving that, under the totality of the circumstances,
consent to search was given freely and voluntarily.” Davis, 

. The
district court “must weigh the evidence and decide if it is sufficient to clearly and
convincingly establish that the consent was voluntary.” 

 Voluntariness is evaluated
utilizing a three-tiered analysis: “(1) there must be clear and positive testimony that the
consent was specific and unequivocal; (2) the consent must be given without duress or
coercion; and (3) the first two factors are to be viewed in light of the presumption that
disfavors the waiver of constitutional rights.” Id. ¶ 14 (internal quotation marks and
citation omitted). “Ultimately, the essential inquiry is whether [the d]efendant’s will has
been overborne.” Id. (internal quotation marks and citation omitted).

{16} Here, there is no dispute that Defendant gave specific and unequivocal consent.
Therefore, we move immediately to the second and third tiers of our analysis: whether
Defendant’s consent was coerced, viewed in light of the presumption disfavoring the
waiver of constitutional rights.

1.     Whether the officer’s statements were coercive

{17} The first question we must answer is whether Gallegos’ statements seeking
Defendant’s consent to search were coercive. Specifically, were Gallegos’ statements a
mere assessment of Defendant’s situation, akin to the statements made in Shaulis-Powell, or were they an unequivocal assertion that a search warrant would be obtained?
A mere assessment is indicative of voluntary consent. Shaulis-Powell, 

; Davis, 

. By contrast, “[w]hen an officer unequivocally
asserts that he will be able to obtain a warrant, a defendant’s belief that refusal to
consent would be futile demonstrates involuntary consent.” Davis, 

.

{18} As a threshold matter, we note that both Shaulis-Powell and the present case
concern a “knock and talk,” an investigative technique “in which police go to a suspect’s
home in an attempt to gain [the suspect’s] cooperation[,]” or in other words, the
suspect’s consent to search. State v. Flores, 

, 

, 

. In Flores, the officer testified that police typically use this technique “when
[they] do not believe they have sufficient information to establish probable cause for a
search warrant.” Id. ¶ 5. Because the “knock and talk” technique has the potential to be
abused by police, we “carefully scrutinize the facts . . . with special care to [e]nsure that
a constitutionally impermissible level of coercion is not exerted to obtain consent.” Id. ¶
14.

{19} Shaulis-Powell involved a defendant who was growing marijuana behind his
residence. 

. Police received a tip from a “known citizen informant”
that the defendant was engaged in this activity. 

 Police then drove on a dirt road
behind the defendant’s residence looking for any sign of “suspicious vegetation.” 

One police officer believed that he saw marijuana on the defendant’s property based on
the officer’s experience and the color of the vegetation. 

 When police approached the
defendant’s residence, his mother answered the door, told police she was only visiting,
and called the defendant’s wife to the door. Id. ¶ 3. Police asked the defendant’s wife for
consent to search but she stated that she would like to first speak with the defendant.
Id. ¶ 4. Eventually, the defendant came to the door and asked whether the police had a
search warrant. Id. The officer stated that he did not have a warrant but “felt that he had
enough information to be able to secure one.” Id. The officer also explained that seeking
to obtain a search warrant “would require summoning more officers to secure the
residence and [to] ensure that no evidence was destroyed.” Id. The defendant
consented to the search. Id. ¶ 5.

{20} The defendant moved to suppress the evidence obtained as a result of the
search, but the district court denied the motion, finding that the defendant “voluntarily
consented to the search of his property[.]” Id. ¶ 8. On appeal, the defendant argued that
“because the officers told him that they had enough evidence to obtain a search
warrant,” refusing consent to the search “would have been futile.” Id. ¶ 10. The Court of
Appeals recognized that “consent is not voluntary if it is a mere acquiescence to a claim
of lawful authority.” Id. ¶ 10. However, it held that the officer had not unequivocally
asserted that he would obtain a search warrant, but had only stated that he “felt” or
“believed” he had enough evidence to secure a search warrant. Id. ¶ 11. The Court
characterized such a statement as an “assessment of the situation.” Id.

{21} We conclude that the statements in this case are distinguishable from those
made in Shaulis-Powell. We find it impossible to characterize Gallegos’ statement that
he had obtained over 222 search warrants and had never once been denied as a mere
assessment of the situation. Rather, such a statement amounts to an unequivocal
assertion that a search warrant is forthcoming. In addition, Gallegos made this
statement in the midst of presenting Defendant with “two options”— Defendant could
consent to the search or Gallegos would get a search warrant and Defendant would be
kicked out of the residence pending the arrival of the warrant. This communicated that a
search of Defendant’s property was inevitable. See United States v. Kaplan, 

 (9th Cir. 1990) (“Courts have drawn distinctions where, on one hand, an officer
merely says that he will attempt to obtain a search warrant or whether, on the other
hand, he says he can obtain the search warrant, as if it were a foregone conclusion.”).
Indeed, Defendant testified that he “didn’t know what to do,” and felt that, in effect, he
had no other option but to consent. As we have stated, “[w]hen an officer unequivocally
asserts that he will be able to obtain a warrant, a defendant’s belief that refusal to
consent would be futile demonstrates involuntary consent.” Davis, 

. The only possible exception to this rule is where the officer in fact possessed
probable cause to search or, in other words, where an assertion of lawful authority was
justified. See Shaulis-Powell, 

. Thus, we turn to that issue. 2

2.     Whether there was probable cause to obtain a search warrant

{22} Where an officer’s statements amount to an unequivocal assertion that a search
warrant will be obtained, such an assertion does not vitiate subsequent consent
provided there is probable cause to support a warrant. Shaulis-Powell, 1999-NMCA-
090, ¶ 12 (relying on United States v. Evans, 

 (7th Cir. 1994) and
Kaplan, 

). Notably, it is not enough that the threat to obtain a search
warrant is made in good faith; “there must in fact be probable cause.” 4 Wayne R.
LaFave, Search and Seizure § 8.2(c), at 99 (6th ed. 2020). Moreover, where an officer
threatens to seize or detain property while obtaining a warrant, as here, where Gallegos
told Defendant that he would be ejected from his property pending the issuance of a
warrant, such a threat must also be supported by a demonstration of probable cause.
See, e.g., id. at 100 (noting that police may not misrepresent “the scope or extent of the
authority they would have under such a search warrant or preliminary to its issuance”)
(emphasis added) (footnote omitted). We review the factual findings undergirding the




2We need not address Defendant’s argument that the presence of five armed police officers added to the
coercive nature of the interaction between Defendant and the NMSP, since we find that Gallegos’
statements were sufficiently coercive to vitiate consent, absent probable cause.
district court’s determination on the issue of probable cause for substantial evidence.
State v. Martinez, 

, 

.

{23} In Shaulis-Powell, the Court of Appeals reached the question of probable cause,
despite the Court’s conclusion that the character of the officer’s statements did not
mandate such an inquiry. 

. It concluded that “[a]lthough the
existence of probable cause is a close question in this case, we think it likely that a
magistrate would have issued a warrant.” Id. ¶ 13. Evidence supporting probable cause
included a tip from a citizen informant that police corroborated “by visiting the location
and observing, in the precise location described, plants that appeared to be marijuana
based on the officers’ experience.” Id. In Evans and Kaplan, both of which were relied
upon by the Court of Appeals in Shaulis-Powell, 

, the Circuit
Courts of Appeal similarly held that there was probable cause for a search warrant,
such that the officer’s threat to obtain one did not render the defendant’s subsequent
consent involuntary. See Evans, 

; Kaplan, 

. The
substantial evidence supporting a finding of probable cause in those cases is
instructive.

{24} In Evans, the defendant was charged with and convicted of, among other things,
operating, maintaining, and controlling a chop shop. 

. Before trial, the
defendant moved to suppress evidence that was seized after FBI agents searched the
property where the defendant lived with his father and ran a car repair business from
the garage. 

 The agents had arrested the defendant and spoken with the defendant’s
father, informing the father that they would obtain a warrant if he did not consent to a
search. 

. Eventually, the defendant’s father consented. 

. The
district court found the father’s consent to be voluntary and denied the motion to
suppress. 

.

{25} On appeal, the defendant argued that his father’s consent was rendered
involuntary by the agents’ representation that they would obtain a warrant if consent
was withheld. 

. The Seventh Circuit Court of Appeals disagreed, holding
that, because the agents had probable cause to obtain a warrant to search the repair
shop, the statement that one would be obtained did not vitiate consent. 

 at 1231 The
evidence of probable cause included testimony from FBI agents that, based on
information from two confidential informants and observations during surveillance, the
suspected car thief’s modus operandi was to put stolen license plates on stolen
vehicles, and to drive them to an unknown disposal location; the suspected car thief
delivered a stolen vehicle with a stolen license plate to defendant’s garage; and
numerous vehicles were parked on or around the premises of defendant’s garage. 

.

{26} In Kaplan, the defendant was a medical doctor who was charged with and
convicted of mail fraud and prescribing controlled substances without a legitimate
medical purpose. 

. The defendant moved to suppress evidence that was
obtained after FBI agents searched his office, but that motion was denied. 

.
On appeal, the defendant argued that his consent was coerced because it was given
only after agents told him that a search warrant could be obtained if he refused to
consent. 

. However, the Ninth Circuit Court of Appeals affirmed the district
court, holding that even if the agents’ statements “made it improperly appear to the
defendant that the obtaining of a search warrant was a fait accompli, this error was not
fatal under the circumstances of this case since there was probable cause to obtain a
warrant[.]” 

 The Court made this determination based on testimonial evidence that the
defendant had accepted a bag of simulated marijuana from an undercover FBI agent in
exchange for prescribed controlled substances. 

.

{27} In Shaulis-Powell, Evans, and Kaplan, officer testimony and other competent
evidence was presented at the suppression hearing to prove the existence of probable
cause. See, e.g., Shaulis-Powell, 

; Evans, 

;
Kaplan, 

. Here, none of the parties believed the recording of the
“knock and talk” was sufficient evidence of probable cause, and the State thought it
necessary to inform the district court that “You would have to hear from the officers . . .
You can’t even say that you wouldn’t arrest them unless you have the ability to arrest
them.” Nonetheless, the district court did not hear from the officers, or receive any other
evidence from the State; it relied solely upon the recording of the “knock and talk” and
the transcript of that recording. This evidence alone could not illuminate whether
Gallegos was being truthful or whether he was only representing to Defendant that the
police had been surveilling the property and receiving complaints and tips regarding
Defendant’s alleged drug dealing. Therefore, the district court’s conclusion that the
NMSP agents had probable cause to search is purely speculative and is not supported
by substantial evidence.

IV.    CONCLUSION

{28} Absent a showing of probable cause, a defendant’s mere acquiescence to an
assertion of lawful authority renders a subsequent search unlawful. Shaulis-Powell,

. Viewing the facts of this case in light of the presumption
disfavoring the waiver of constitutional rights, we hold that the State failed to prove that
its assertion of lawful authority was supported by probable cause. Because the State did
not meet its burden of proving that Defendant’s consent was voluntary, Defendant’s
motion to suppress should have been granted. We reverse the Court of Appeals’
affirmance of the district court’s denial of Defendant’s motion to suppress and remand to
the district court for further proceedings in accordance with this opinion.

{29}   IT IS SO ORDERED.

JUDITH K. NAKAMURA, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice