This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,830 9 JACOBO ROCHA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Albert S. “Pat” Murdoch, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Ralph E. Trujillo, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Acti ng Chief Public Defender 19 Allison H. Jaramillo, Assist ant Appellate Defender 20 Kathleen T. Baldridge, Assistant Appellate Defender 21 Santa Fe, NM 22 for Appellant 23 MEMORANDUM OPINION 242 BUSTAMANTE, Judge. 1 Defendant Jacobo Rocha was convicted of possession of cocaine after his 2 motion to suppress was denied. Defendant argued that his detention at gunpoint 3 rendered his consent involuntary. The di strict court found that the consent was 4 voluntary because the officer’s request to search was given inDefendant’s native 5 language (Spanish) and becauseDefendant had lived in the United States for eighteen 6 years. We reverse. 7 I. BACKGROUND 8 Although the parties are familiar with the facts, we present them here to give 9 a complete account of the circumstances known to the district court at the time it made 10 its decision. Two witnesses were presented: Officer Javier Lopez, who was called by 11 the State, and Defendant. 12 Lopez testified as follows. He and another officer were parked together when 13 they heard gunshots nearby. The officers be gan to investigate, and an unidentified 14 man indicated that the shots had come from behind a building. The officers went 15 behind the building and saw two people. The officers “approached, guns drawn, and 16 commanded” the people to show their hands. Both men complied. 17 At this point, the officers were separated from the men by a chain link fence, 18 and the men were separated by another fence. The officer s climbed a fence into the 193 yard with one of the people. The officer s instructed Defendant to climb the other 1 fence to be in the same yard with everyone else. When Defendant first tried to climb 2 the fence, his right hand moved so that L opez could not see it. Lopez aimed his gun 3 at Defendant and commanded him to show his hands. Defendant complied. Lopez 4 described himself as “[v]ery” tense at this point. 5 Defendant climbed the fence without further incident. Lopez began a search 6 of Defendant to make sure Defendant ha d no weapons. During the patdown, Lopez 7 felt something he thought was a baggie of co caine. He asked Defendant what it was, 8 and Defendant replied that he thought it wa s money. Lopez aske d if he could check 9 the pocket, and Defendant agreed. Lopez found a baggie of white powdery substance 10 which was later identified as cocaine. On cross-examination, Defendant agreed that 11 he gave the officer permission to sear ch his pockets. Because Lopez had initially 12 determined Defendant was more comfortabl e speaking Spanish, this conversation was 13 conducted in Spanish. 14 Defendant argued that the short time between when he was being commanded 15 to do things at gunpoint and when Lopez requested to search Defendant’s pocket 16 rendered his consent involuntary. The State argued that consent was voluntary 17 because Defendant spoke withLopez in Spanish and because Defendant had lived in 18 the country for eighteen years. The distri ct court found that consent was voluntary 194 because Defendant “was given the choice of ye s or no, and in spite of the fact [that] 1 the original contact was at gunpoint, the question was done in [Defendant]’s native 2 language.” 3 II. DISCUSSION 4 “Searches that are . . . c onsensual are an exception to the warrant requirement.” 5 State v. Paul T. , 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74. “To be deemed 6 valid, the consent given to search must be voluntary and not a product of duress, 7 coercion, or other vitiating factors.” Id. The State bears the burden of proving 8 voluntariness, which depends on the totality of the circumstances. See id. 9 The voluntariness of consent “involves a three-tiered analysis: (1) there 10 must be clear and positive testimony that the consent was specific and 11 unequivocal; (2) the consent must begiven without duress or coercion; 12 and (3) the first two factors are to beviewed in light of the presumption 13 that disfavors the waiver of constitutional rights.” 14 State v. Pierce , 2003-NMCA-117, ¶ 20, 134 N.M. 388, 77 P.3d 292 (quoting State v. 15 Anderson , 107 N.M. 165, 167, 754 P.2d 542, 544 (Ct. App. 1988)). “Whether consent 16 was voluntarily given is a factual question, and the trial court’s determination will not 17 be disturbed on appeal unless it is not supported by substantial evidence.” Paul T. , 18 1999-NMSC-037, ¶ 28. 19 Because our standard of review is subs tantial evidence based on the totality of 20 the circumstances, our cases tend to be fact -specific. Nevertheless, we observe that 215 our courts have not hesitate d to reverse district court findings that consent was 1 voluntary. See State v. Davis , 2011-NMCA- , ¶¶ 18-19, ___ N.M. ___, ___ P.3d 2 ___ (No. 28,219, Aug. 10, 2011) (finding consent was not voluntary when a defendant 3 was surrounded by numerous police cars and a helicopter, police were armed with 4 assault rifles, and police appeared to have already started to search); Pierce , 2003- 5 NMCA-117, ¶ 21 (finding consent was not voluntary when police repeatedly asked 6 a handcuffed defendant about a bulge in his sock for an extended period of time until 7 the defendant “capitulated”); State v. Ruud, 90 N.M. 647, 650-52, 567 P.2d 496, 499- 8 501 (Ct. App. 1977) (finding that the State had not met its burden of showing 9 voluntary consent when the only evidence was that the defendant agreed when asked 10 for consent). 11 The State did not meet its burden in th is case. The evidence establishes two 12 points relevant to consent: (1) that Defendant was held at gunpoint by two tense 13 officers immediately prior to his “consent,” and (2) that Defendant answered “[y]es” 14 when asked if Lopez could search his pocket. Because both Lopez and Defendant 15 testified that Defendant consented, ther e is substantial evidence to support the 16 conclusion that Defendant’s consent was pos itive and unequivocal. This is also the 17 only evidence capable of supporting a finding th at the consent was voluntary. But the 18 totality of the circumstances paints a far di fferent picture, especially when viewed in 196 light of the presumption against waiver of constitutional rights. As in Davis , the 1 officers had made a strong show of force, and Lopez asked to search the pocket after 2 he had already began a search of Defendant’s person. There was little time between 3 when Defendant was being commanded at gunpoint and when Lopez asked to look 4 in his pocket. Far from proving voluntariness, the State’s evidence is actually 5 probative of duress and coercion. 6 III. CONCLUSION 7 For the foregoing reasons, we reverse the order denying Defendant’s motion to 8 suppress and remand for further proceedings consistent with this Opinion. 9 IT IS SO ORDERED. 10

11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13

14 CELIA FOY CASTILLO, Chief Judge 15

16 RODERICK T. KENNEDY, Judge 17