State of New Mexico v. Jason Cory Barber

Albuquerque, NM - Criminal defense attorney represented Jason Cory Barber with a suppressing evidence claim.

The property at issue was a residential home (the Residence) owned by Phaisal

5 Sukhani and his business partner. Prior to September 2017, Sukhani leased the

Residence to Michael Silva. 6 1 Defendant began informally subletting the converted

7 garage from Silva beginning in late July or early August 2017. In September 2017,

8 Sukhani lawfully evicted all tenants from the Residence after serving a three-day

9 notice of nonpayment to "Silva and all unknown occupants[.]” On September 28,

10 2017, fifteen days after the eviction was complete, Sukhani arrived at the residence,

11 observed movement inside the home, and called the police. When police arrived,

12 Sukhani consented to a search of the Residence, including the converted garage. The

13 search resulted in the seizure of contraband from a black bag and case located

14 underneath Defendant's cell phone and wallet, in the converted garage.

15 {3} The district court found that eviction proceedings were completed on

16 September 13, 2017, that Defendant had no legal right to remain on the property

17 thereafter, and, accordingly, found that Defendant was a trespasser. Based on those

18 findings, the district court concluded that Defendant did not have standing to

19 challenge the search of the converted garage because he "did not have a lawful right

1

Sukhani never leased any portion of the Residence directly to Defendant.3

1 to remain on the property[,]” and thus, Defendant was "squatting and/or

trespassing.”2 2 The district court noted that it "was not furnished with any authority

3 in New Mexico contending with the issue of squatter/trespassers rights to challenge

4 a search.” Despite finding that Defendant lacked standing to challenge the search,

5 the district court nevertheless addressed the merits of Defendant's claim that the

6 search of the black bag and case constituted an unlawful search and seizure, stating

7 "at issue next is whether Sukhani's actual consent to search the premises extends to

8 the search of the black bag and black case.” Relying on State v. Johnson, in which

9 this Court recognized that "[a] third party cannot consent to a search of a part of the

10 premises within [a d]efendant's exclusive use and control” 1973-NMCA-119, ¶ 9,

11 85 N.M. 465, 513 P.2d 399, and that there was no reason to deny the same protection

12 to "effects” as to premises, the district court found that Sukhani's consent to search

13 the premises did not extend to the search of the black bag and black case, even

14 though, unlike the defendant in Johnson, Defendant was a squatter/trespasser with

15 no right to be on the premises. The district court ruled that the search was illegal,

16 and suppressed the evidence. The State then filed this interlocutory appeal.

2

Although Defendant challenged the lawfulness of the search under the Fourth

Amendment to the United States Constitution and Article II, Section 10 of the New

Mexico Constitution, the district court did not specify whether its finding that

Defendant lacked standing was made pursuant to the Fourth Amendment to the

United States Constitution or Article II, Section 10 of the New Mexico Constitution,

or to both.4

1 DISCUSSION

2 {4} The State contends that Defendant's trespasser status precluded him from

3 challenging the search of the Residence and, as a corollary, the search of his effects

4 stored therein. In addition, the State specifically contends that because Defendant

5 failed to establish that he had standing to challenge either search, the district court

6 erred in addressing the merits of his constitutional challenge. We agree.

7 {5} Under both the United States and New Mexico Constitutions, a defendant's

8 rights to be free from unreasonable search and seizure "are personal rights which,

9 unlike some other constitutional rights, may not be vicariously asserted.” State v.

10 Crocco, 2014-NMSC-016, ¶ 16, 327 P.3d 1068 (internal quotation marks and

11 citation omitted). Because such rights may not be vicariously asserted, a defendant

12 must demonstrate as a threshold matter that they have standing to challenge a search

13 and seizure. Id.; see State v. Van Dang, 2005-NMSC-033, ¶ 7, 138 N.M. 408, 120

14 P.3d 830 (characterizing standing as a threshold issue); see also State v. Silvas, 2013-

15 NMCA-093, ¶ 9, 310 P.3d 621 ("Standing is a substantive doctrine that identifies

16 those who may assert rights against unlawful searches and seizures.” (alteration,

17 internal quotation marks, and citation omitted)).

18 {6} Whether a party has standing is a question of law that we review de novo. Id.

19 "[I]t is [the d]efendant's burden to establish evidence of standing in the record.” 5

Crocco, 2014-NMSC-016, ¶ 23. 1 3 Here, Defendant has failed to do so. On appeal,

2 Defendant neither alleges nor develops an argument that the district court's ruling,

3 with respect to standing, was in error. Instead, Defendant focuses on the argument

4 that the New Mexico Constitution provides more protection from search and seizure

5 than the United States Constitution and on the fact that the black bag and case

6 belonged to Defendant and not to Sukhani. These arguments miss the mark because

7 they fail to address the threshold issue: whether Defendant had standing to object to

8 the search of these effects. See Silvas, 2013-NMCA-093, ¶ 9 (noting that a defendant

9 must first establish that they have standing to suppress evidence); State v. Munoz,

10 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847 (noting that a threshold issue

11 must be established before a court will proceed with analyzing claims and defenses

3

We note that the State, as the appellant, has the burden of raising arguments

and issues on appeal. See Rule 12-318(A)(4) NMRA (stating "an argument which,

with respect to each issue presented, shall contain a statement of the applicable

standard of review, the contentions of the appellant, and a statement explaining how

the issue was preserved in the court below, with citations to authorities, record

proper, transcript of proceedings, or exhibits relied on”). Here, the State raised the

issue of standing and its argument is supported by the district court's findings and

conclusions regarding Defendant's status as a trespasser and his lack of standing.

Thus, this Court had to rely on Defendant's answer brief to ascertain whether there

was error in the district court's ruling. See Rule 12-318(B) (stating "[a]n answer brief

shall conform to the requirements of the brief in chief[.]”); see also Elane

Photography v. Willcock, 2013-NMSC-040, ¶ 70, 309 P.3d 53. (stating "[t]his Court

requires that the parties adequately brief all appellate issues to include an argument,

the standard of review, and citations to authorities for each issue presented.”)

(emphasis added)). Because Defendant failed to adequately brief the issue of

standing in his answer brief, we are left addressing the issue based solely on the

district court's ruling and the State's brief. 6

1 which depend on the outcome of that issue); State v. Duttle, 2017-NMCA-001, ¶ 15,

2 387 P.3d 885 ("For this Court to rule on an inadequately briefed constitutional issue

3 would essentially require it to do the work on behalf of the defendant[,]” which we

4 will not do.); see also State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873

5 P.2d 254 (reminding counsel that the appellate courts are not required to do their

6 research). Defendant fails to point us to any part of the record showing that he ever

7 contested the district court's finding that Defendant lacked standing, nor does

8 Defendant develop an argument contesting the district court's finding with respect

to standing on appeal.4 9 This Court will not search the record to find whether an issue

10 was preserved where a defendant fails to refer the Court to the appropriate portions

11 of the record. State v. Rojo, 1999-NMSC-001, ¶ 44, 126 N.M. 438, 971 P.2d 829.

12 For these reasons, we hold that Defendant failed to meet his burden of demonstrating

13 that there is evidence in the record sufficient to establish that he has standing.

4

The dissent "agree[s] with the majority that [whether Defendant had standing

to challenge the search of his effects] was not adequately briefed” and does not

explain why this Court ought to reach the merits of Defendant's constitutional

challenge given this inadequacy. Dissenting Op. ¶ 10. Defendant provides a sparse

argument that the State's standing argument fails to address the difference between

the Residence as a whole and the black bag and case. Defendant also argues that any

search of the black bag and case pursuant to the consent of Sukhani was illegal

because Sukhani lacked any possessory interest in the items. However, Defendant

fails to cite to any case law, or to develop an argument explaining why Defendant

has standing to assert a claim with respect to his personal property located in the

converted garage based on this alleged distinction, and we will not address

undeveloped arguments on appeal. See State v. Cain, 2019-NMCA-059, ¶¶ 24, 27,

450 P.3d 452. 7

1 Establishing standing was a mandatory prerequisite to addressing Defendant's

2 constitutional arguments. Because the district court found Defendant lacked

3 standing, it should not have addressed Defendant's motion to suppress

We reverse the district court’s order granting Defendant’s motion to suppress

6 and remand for further proceedings in accordance with this opinion.