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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 4 v. 5 MARCUS CISNEROS, 6 Defendant-Appellant. Plaintiff-Appellee, NO. 30,293

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Charles Brown, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM 13 for Appellee 14 The Law Office of D. Chipman Venie 15 D. Chipman Venie 16 Albuquerque, NM 17 for Appellant

1 2 BUSTAMANTE, Judge. 3

MEMORANDUM OPINION

Defendant Marcus Cisneros appeals his convictions of possession of a

4 controlled substance (methamphetamine) and possession of drug paraphernalia, 5 arguing that the district court erred in denying his motion to suppress the evidence 6 against him. Deferring to the district court's factual finding that Defendant consented 7 to be searched, we conclude that the district court correctly denied the motion to 8 suppress. 9 I. 10 BACKGROUND On April 3, 2008, a hearing on Defendant's motion to suppress was held at

11 which Detective Sammy Marquez, the arresting officer in this case, provided the 12 relevant testimony. The detective testified that he was investigating a separate 13 incident at a city housing complex when he was flagged down by a city housing 14 employee. The employee requested assistance with some individuals in a nearby 15 apartment who were not supposed to be in the apartment. 16 The detective was standing outside of the apartment when Defendant

17 approached him. The detective observed that the front window to the apartment was 18 broken and that several individuals were leaving the apartment. Some of these 19 individuals were carrying items. The detective began a conversation with Defendant

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1 in order to learn what Defendant was doing at the apartment. The detective testified 2 that his suspicions were aroused when he learned that Defendant had been partying 3 at the apartment but did not know who lived there or why one of its windows was 4 broken. 5 The detective then "called [Defendant] over . . . and asked him if [he] could pat

6 him down for weapons." Defendant did not give verbal consent, but he complied with 7 the detective's request. The detective could not remember exactly how he asked for 8 consent--or, more specifically, whether he asked for consent or commanded 9 Defendant to turn around and put his hands on his head--and he alternated between 10 saying that he asked Defendant and saying that Defendant "did as he was told." 11 The detective explained that he usually performs a pat down in two parts: an

12 "initial" and a "secondary." The secondary search is "to make sure [to get] close into 13 the person's body for bulges." During the secondary search, the detective was "[s]till 14 looking for weapons, but if [he felt] anything out of sorts, [he would] definitely 15 identify it." While he was performing a secondary search on Defendant, the detective 16 felt what he identified as a pipe. The detective asked what the object was, but 17 Defendant did not answer. The detective testified that he then "asked [Defendant] if 18 [he] could grab it, and I believe he either shrugged or nodded, gave me an affirmative 19 physical response, to where I actually took the item out."

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After seizing the pipe, the detective continued his search. Although the search

2 was nominally for weapons, the detective testified that he was now also looking for 3 narcotics. The detective felt a lump in Defendant's right "coin pocket." When he 4 asked Defendant what the object was, Defendant "did not make any verbal 5 confirmations; however, he did, once again, shrug and nod that the item could be 6 removed." The detective could not recall if he asked for consent. The detective 7 removed the item, which turned out to be several baggies containing 8 methamphetamine. The detective then arrested Defendant and removed all remaining 9 items from Defendant's person. 10 The district court denied Defendant's motion to suppress. The court made no

11 written findings of fact; however, it did make oral findings at the end of the hearing. 12 First, the court found that the detective had asked for permission to frisk Defendant, 13 that Defendant consented by putting his hands on his head, and that he did not 14 withdraw his consent at any time. Second, the court found that during the frisk, the 15 detective felt what he recognized as a pipe, that the detective asked permission to 16 remove the pipe from Defendant's pocket, and that Defendant consented by nodding 17 his head to indicate yes. Based on these findings, the district court denied Defendant's 18 motion to suppress. At the subsequent jury trial, Defendant was convicted of both 19 charges against him.

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1 II. 2

DISCUSSION Defendant argues that the district court's decision to deny his motion to

3 suppress was in error for any of five1 reasons: (1) the initial detention was without 4 reasonable suspicion of criminal activity, (2) there were not specific articulable facts 5 to support the Terry frisk, (3) seizure of the pipe exceeded the scope of the Terry frisk 6 because the pipe was not plainly contraband, (4) seizure of methamphetamine 7 exceeded the scope of the Terry frisk because the methamphetamine was not 8 obviously contraband, and (5) there is no "plain feel" exception to the warrant 9 requirement under Article II, Section 10 of the New Mexico Constitution. The State 10 responded to these issues, and in addition argued that the entire encounter was 11 permissible because it was consensual. Because we affirm based on consent, we do 12 not reach Defendant's arguments. 13 A. 14 Defendant Was Detained "[A] seizure subject to Fourth Amendment scrutiny does not occur every time

15 a police officer approaches a citizen." State v. Jason L., 2000-NMSC-018,

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