This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 31,504 4 JUDITH DEAN, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, District Judge 8 Gary K. King, Attorney General 9 Pranava Upadrashta, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 FRY, Judge. 182 {1} Defendant appeals the district court’ s denial of her motion to suppress, 1 contending that the officers were not justif ied in seizing a box of chocolate-covered 2 cherries previously opened by a private c itizen or in expanding the scope of the 3 private search by removing and opening a small green bag contained within the box 4 of chocolate-covered cherries to test the c ontents of that bag for drugs. We disagree 5 and affirm. 6 BACKGROUND 7 {2} We briefly summarize the underlying events in the light most favorable to the 8 ruling rendered below. See State v. Urioste , 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 9 P.3d 964. Defendant went to an Aztec, Ne w Mexico, “Zip and Ship” store seeking to 10 send a sealed package overnight to Wyomi ng. The store clerk informed Defendant 11 that overnight shipping would cost $80.00, and his suspicions were aroused because 12 Defendant was willing to pay this amount to ship two boxes of what appeared to be 13 chocolate-covered cherries. 14 {3} After Defendant left the store, the clerk opened the sealed package and saw that 15 one of the boxes of cherries had been ope ned and resealed with tape. The clerk 16 opened the resealed box of cherries and lifte d out the top tray. On the bottom tray, 17 the clerk saw a small green bag in one of the slots that would normally contain a 183 chocolate-covered cherry. The clerk susp ected that the green bag might contain 1 methamphetamine, but he did not open it or look inside it. He then called the police. 2 {4} The officer arrived at the Zip and Ship, and the clerk led him to the back room. 3 The officer saw the open cherry box with the top tray out and saw the green bag in the 4 slot where a chocolate-covered cherry woul d usually be placed. The officer took both 5 boxes of cherries to the police station and removed the green bag. 6 {5} The officer noted that the green bag was transparent and he could see what 7 appeared to be methamphetamine inside. He opened the bag and tested the material 8 inside, and the substance tested positive for methamphetamine. 9 {6} Defendant was subsequently arrested and charged with one count of trafficking 10 (possession with intent to distribute) methamphetamine. SeeNMSA 1978, § 30-31- 11 20(A)(3) (2006). She moved to suppress the evidence obtained from the warrantless 12 search, claiming the s earch was in violation of the Fourth Amendment to the United 13 States Constitution and Article II, Secti on 10 of the New Mexico Constitution. In 14 response, the State claimed that the search was justified under the private search 15 exception to the warrant requirement and b ecause the contents were in plain view. 16 {7} After a hearing, the district court denied the motion to suppress. Defendant 17 entered a conditional plea to trafficking (possession with intent to distribute) 184 methamphetamine, reserving her right to app eal the denial of her motion to suppress, 1 and the district court entered an order for conditional discharge and five years of 2 supervised probation. Defendant now appeals the denial of her motion to suppress. 3 DISCUSSION 4 Standard of Review 5 {8} We review the denial of a motion to suppress as a mixed question of fact and 6 law. State v. Williams , 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. We 7 determine whether the law was correctly applie d to the facts and view “the facts in the 8 light most favorable to the prevailing party.” State v. Cline , 1998-NMCA-154, ¶ 6, 9 126 N.M. 77, 966 P.2d 785; see State v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 10 119, 2 P.3d 856. Furthermore, because the di strict court did not enter any findings of 11 fact or conclusions of law, we “draw all inferences and indulge all presumptions in 12 favor of the district court’s ruling.” Jason L., 2000-NMSC-018, ¶ 11. 13 {9} In considering Defendant’s challenge under the federal and New Mexico 14 constitutions, we employ the interstitial appro ach which requires us to first “determine 15 whether the right is protected by the Fourth Amendment.” State v. Rivera , 16 2010-NMSC-046, ¶ 15, 148 N.M. 659, 241 P.3d 1099. If we determine that 17 Defendant’s Fourth Amendment rights were not violated, we will proceed to consider 185 whether Defendant raised and established a violation of her rights protected by Article 1 II, Section 10 of the New Mexico Constitution. See generally State v. Leyva , 2 2011-NMSC-009, ¶¶ 51-61, 149 N.M. 435, 250 P.3d 861 (turning to consider the 3 defendant’s claim based upon the protections afforded by Article II, Section 10 of the 4 New Mexico Constitution after first determining that the defendant had failed to 5 establish a Fourth Amendment violation). 6 Fourth Amendment 7 {10} In Rivera , our Supreme Court adopted the priv ate search doctrine to the extent 8 it permits officers to search a container w ithout a warrant if a private person, without 9 government participation, previously search ed the container and revealed its contents 10 to the police. 2010-NMSC-046, ¶¶ 16-21. The Court held that the private search 11 doctrine would allow an officer to re-exami ne the contents of a container previously 12 opened by a private party, as long as the officer did not unreasonably exceed the scope 13 of the previous search. Id. ¶ 20. 14 {11} In Rivera , a private citizen had opened the defendant’s package and found a tool 15 box inside which in turn contained opaque bundles wrapped in brown plastic. Id. ¶ 16 7. The officer testified that, based on hi s training and experien ce, he believed the 17 opaque bundles to contain marijuana. Id. Our Supreme Court he ld that the officer’s 186 action in cutting into the opaque bundles, although exceeding the scope of the private 1 search, did not violate the defendant’s Fourth Amendment rights because any 2 additional intrusion was di minimisgiven the officer’s suspicion that the bundles 3 contained marijuana. Id. ¶ 21 (recognizing that requiring the officer to obtain a 4 warrant “would only minimally advance F ourth Amendment interests” and was 5 therefore unnecessary (internal quot ation marks and citation omitted)). 6 {12} We conclude that Riveracontrols in this case. Becau se the officer did not learn 7 anything from his examination of the box of candy that he had not already learned 8 through the clerk’s previous search, his search did not violate Defendant’s Fourth 9 Amendment privacy rights. See id. ¶¶ 16-21. 10 {13} While Defendant acknowledges the Court’s holding in Rivera , she contends that 11 the officer’s actions in opening a bag thatthe clerk had not ye t opened allowed the 12 officer to learn more information than what he had been told by the clerk, who had 13 only an unsupported suspicion that the bag contained drugs. We disagree. As in 14 Rivera , the officer’s action of opening the bag containing the contraband and testing 15 these contents was only a de minimis intrusion that did not violate Defendant’s 16 privacy rights under the Fourth Amendment. See id. ¶¶ 19-21. 17 NEW MEXICO CONSTITUTION 187 {14} In light of our determination that a warrant was not required under federal law, 1 we turn to consider whether Article II , Section 10 of the New Mexico Constitution 2 provides Defendant with greater protec tion so as to require a warrant. See Rivera , 3 2010-NMSC-046, ¶ 22 (recognizing that New Me xico courts have interpreted Article 4 II, Section 10 of the New Mexico Constitu tion as providing greater protections for 5 privacy than what is provided pursu ant to the Fourth Amendment). In Rivera , the 6 Court recognized that the New Mexico Constitution affords more protection than 7 federal law on the issue of the reasonableness of a search. 2010-NMSC-046, ¶¶ 22- 8 25. The Court held that a private search may not be expanded without a warrant 9 unless one of the recognized exceptions tothe warrant requirement applies. Id. ¶ 25. 10 {15} New Mexico recognizes the plain viewexception to the warrant requirement 11 which provides that items may be seized without a warrant “when the incriminating 12 nature of the evidence is immediately apparent.” State v. Sublet , 2011-NMCA-075, 13 ¶ 29, 150 N.M. 378, 258 P.3d 1170. At the suppression hearing, the district court 14 asked to see the bag, and it was pres ented by the State without objection from 15 Defendant. The district court observed th at the bag provided was green and clear, 16 with a white powder that could be seen fro m the outside. Theref ore, the officer was 17 justified in opening the bag and testi ng the contents based upon the plain view 188 exception to the warrant requirement. See State v. Vasquez , 112 N.M. 363, 368, 815 1 P.2d 659, 664 (Ct. App. 1991) (stating that, under the pl ain view doctrine, “the need 2 for a search warrant is obviated if the contents of the container can be inferred by the 3 container’s outward appearance or if the contents are in plain view”). 4 {16} In her brief in chief, Defendant argues that this Court should apply Riveraand 5 hold that the plain view doctrine does not apply because the contents of the inner bag 6 were not immediately apparent. See 2010-NMSC-046, ¶ 28 (holding that “[t]he plain 7 view doctrine did not authorize [the o fficer] to open the opaque bundle because he 8 thought he had probable cause to believethe bundles contained marijuana”). We 9 disagree. While this case is similar to Rivera in that both involve an initial search by 10 a private citizen, the additional facts underlying the officer’s actions in this case 11 compel us to reach a different conclusi on from the conclusion reached by our Supreme 12 Court in Rivera

. See id. 13 {17} In Rivera , the private employees had opened the package but discontinued the 14 search when they discovered the bundles wrapped in brown plastic. Id. ¶ 26. When 15 the package was reopened in front of th e police officer, the officer saw the opaque 16 bundles and believed that they contained marijuana. Id. The officer then cut open one 17 or more of the bundles. Id. The Court held that the o fficer exceeded the scope of the 189 private search when he opened the opaque bundles and, “[a]bsent an exception to the 1 warrant requirement, he wa s required by our constitution to obtain a search warrant 2 if he wanted to open the opaque bundles.” Id. ¶ 27. The State argued that the officer’s 3 actions were authorized under the plain vi ew exception to the warrant requirement, 4 but the Court disagreed because probable cau se to believe that the bundles contained 5 marijuana does not constitute a showing thatthe marijuana was in plain view given 6 that it was contained inside an opaque bundle. Id. ¶ 28. 7 {18} In this case, the officer could clearly see from the outside that the bag 8 contained what appeared to be methamphetamine. Moreover, to whatever extent 9 Defendant may have disputed the evidence establishing that the methamphetamine 10 was in plain view, we defer to the districtcourt’s determinati on on this matter because 11 it examined the bag and was in the best position to weigh the evidence and any 12 disputed facts to determine whether the methamphetamine in the bag was in plain 13 view. See Urioste , 2002-NMSC-023, ¶ 6 (recognizing that, in reviewing the denial 14 of a motion to suppress an appellate court does not “sit as a trier of fact [because] the 15 district court is in the best position to resolve questions of fact and to evaluate the 16 credibility of witnesses”). 17 CONCLUSION 1810 {19} Based upon the foregoing, we conclude th at the seizure and subsequent search 1 did not violate Defendant’s rights under th e Fourth Amendment or under Section II, 2 Article 10 of the New Mexico Constitution. Th erefore, we affirm the district court’s 3 order denying Defendant’s motion to suppress. 4 {20} IT IS SO ORDERED. 5

6 CYNTHIA A. FRY, Judge 7 WE CONCUR: 8

9 JAME J. WECHSLER, Judge 10

11 JONATHAN B. SUTIN, Judge 12