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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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-Appellant, 3

v. NO. 35,369 4 ARTURO GARCIA-PONCE, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 7 Albert J. Mitchell, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 D. Eric Hannum 14 Albuquerque, NM 15 for Appellee 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 182 {1} The State appeals from the district court’s amended order suppressing the 1 evidence. We were persuaded that the di strict court erred on multiple grounds, but not 2 on all grounds asserted by the State. We al so believed that further proceedings were 3 appropriate. We issued a notice of pr oposed summary disposition, proposing to 4 reverse and remand. The Stat e filed a notice of non-fili ng, and Defendant filed a 5 memorandum in opposition. We have considered the parties’ responses and remain 6 persuaded that the district court erred and further proceedings are required. We 7 therefore reverse and remand. 8 {2} In its docketing statement, the State ch allenged the district court’s suppression 9 order on four grounds: (1) standing was immaterial or that Defendant had standing to 10 object to the search; (2) Miranda warnings were required during the traffic stop; (3) 11 Defendant’s consent to the search was invalid; and (4) suppression of all physical 12 evidence and statements made by Defe ndant was warranted. [DS 4] We do not 13 construe the district court’s order in the same manner as the State in its docketing 14 statement. We construe the district court’s order to rule that De fendant’s standing was 15 immaterial because either he did not havestanding to consent to the search, which 16 would render the search illegal, or he di d have standing and c ould consent to the 17 search, as the State argued. [RP 125] Also, we construe the district court’s order to 18 rule that Defendant was arrested and was not given Mirandawarnings and, therefore, 19 his statements, his consent to the s earch, and the physical evidence must be 203 suppressed. [RP 124-26] We are not persuade d that the district court evaluated the 1 validity or scope of Defendant’s consent. 2 {3} With this understanding of the district court’s order, our notice proposed to hold 3 that there were grave flaws in the district court’s reas oning and legal conclusions. We 4 continue to believe that the following flaw s require reversal, wh ich we explain more 5 fully below. First, Defendant ’s standing was not immateri al. Second, Defendant was 6 not under arrest, but rather subject to aninvestigatory detention, and therefore 7 Miranda warnings were not required. As a resu lt, the district court’s suppression of 8 the evidence is not justified by the failure to Mirandize Defendant. Third, Miranda 9 warnings are not a pre-requisite to obtaini ng valid consent to search, and consent to 10 search is not a statement subject to suppression. 11 {4} Because the district court related Defe ndant’s standing to his consent and 12 related Defendant’s consent to the officer’s failure to Mirandize Defendant, we 13 discuss these matters in reverse order, starting with whether Defendant was under 14 arrest for purposes of Miranda . Within this framework, wealso address Defendant’s 15 memorandum in opposition. 16 Defendant Was Not Under Arrest 17 {5} As our notice proposed to hold, the district court made a legal error by 18 concluding that when the officer decided to restrain Defendant due to the smell of raw 19 marijuana and decided he was not free to l eave, the officer needed to have given 204 Defendant Mirandawarnings before continuing the interrogation. [RP 126] We 1 explained that our Court has addressed this legal miscon ception and held that “this 2 ‘free-to-leave’ formulation of the test is problematic because insome circumstances, 3 such as routine traffic stops, a person is se ized and does not believehe or she is free 4 to leave but is also not in custody under Miranda .” State v. Wilson , 2007-NMCA-111, 5 ¶ 15, 142 N.M. 737, 169 P.3d 1184. The free-to-leave inquiry is only the beginning 6 of the Mirandaanalysis that determines whether the person was seized. See id. ¶ 22. 7 “[B]ecause not every seizure c onstitutes custody for purposes of Miranda [,]” the 8 analysis continues if a person is not free to leave. Id. (internal quotation marks and 9 citation omitted). “In determin ing whether a person is in Mirandacustody while being 10 interrogated, the court must apply an objective test to resolve the ultimate inquiry: was 11 there a formal arrest or restraint on free dom of movement of the degree associated 12 with a formal arrest.” Id. ¶ 14 (internal quotation mark s and citation omitted). “The 13 following factors guide our inquiry: the purpose, place, and length of interrogation, 14 the extent to which the defendant is con fronted with evidence of guilt, the physical 15 surroundings of the interrogation, the duration of the detention, and the degree of 16 pressure applied to the defendant.” State v. Hermosillo , 2014-NMCA-102, ¶ 11, 336 17 P.3d 446 (alteration, omission, internal quotation marks, and citation omitted). 18 {6} In the present case, the officer made a routine traffic stop of Defendant for 19 speeding, in which the officer asked Defendant for his license, registration, and proof 205 of insurance, then issued him traffic citation. [RP 82, 116] This constituted a seizure, 1 not police custody under Miranda

. See Wilson , 2007-NMCA-111, ¶ 25; see also State 2 v. Candelaria , 2011-NMCA-001, ¶ 18, 149 N.M. 125, 245 P.3d 69 (stating that asking 3 for a driver’s license, registration, and proof of insurance are inquiries that “do not 4 implicate a suspect’s Fourth Amendment rights”). The officer smelled a strong odor 5 of raw marijuana during the course of the stop and, after issuing the citation, the 6 officer asked Defendant about marijuana use in the vehicle and whether there was any 7 marijuana in the vehicle. [RP 71, 78, 82] We proposed to hold that this a reasonable 8 expansion of the detention, because th e odor of marijuana supplied reasonable 9 suspicion of criminal activ ity and even probable cause. See Candelaria , 2011-NMCA10 001, ¶ 21 (holding that even if the patdown for weapons was improper, following a 11 routine traffic stop, the extended deten tion was justified based on the smell of 12 marijuana); State v. Capps , 1982-NMSC-009, ¶ 12, 97 N.M. 453, 641 P.2d 484 (“The 13 smell of marijuana alone can satisfy the probable cause requireme nt for a warrantless 14 search.”). Defendant told the officer that there was marijuana in side a blue backpack 15 in the trunk of the car. [RP 76] The offi cer requested and received consent from 16 Defendant to search the vehicle. [RP 62, 82] The officer asked for the passenger’s 17 license and instructed Defendant and the passenger to stand on the shoulder of the 18 road about thirty yards away. [RP 76] Mome nts later three officers arrived to assist 19 with security and the search. [Id.] Th e blue backpack was found and contained 206 marijuana, and a small amount of cocaine, a pipe, and more marijuana was discovered 1 on the rear passenger floorboard in a medi cine container. [Id.] The officer placed 2 Defendant under arrest, handcuffed him, placed him in th e rear of his patrol vehicle, 3 and read Defendant his Mirandarights. [RP 76-77] 4 {7} We saw nothing in the evidence recounted above to suggest th at Defendant was 5 subjected to an unreasonably long detention, such that he was under de facto arrest. 6 See State v. Skippings , 2014-NMCA-117, ¶¶ 19, 25, 338 P.3d 128 (examining cases 7 where ten-, thirty-, and forty-minute long roadside detentions were not unreasonable 8 de facto arrests). Nor is there any evid ence of coercive interrogation or coercive 9 restraint on Defendant’s free dom of movement; such as handcuffing, confinement in 10 a small space, and overwhe lming police presence. See, e.g. , State v. Nieto , 2000- 11 NMSC-031, ¶¶ 18-21, 129 N.M. 688, 12 P.3d 442 (holding that even where the 12 defendant was being questioned in a poli ce station in a small room with the door 13 closed and a detective blocking the exit, the defendant’s freedom was not restricted 14 in a manner that constituted Mirandacustody); Wilson , 2007-NMCA-111, ¶¶ 17, 25- 15 28 (analyzing several cases where the police interaction was more invasive and did not 16 constitute a custodial interrogation). It appears that the encounter proceeded as a 17 temporary, noninvasive investigatory dete ntion, where the officer was speaking 18 conversationally with Defendant when Defendant made incriminating statements, and 19 then the officer had him leave the vehicl e to stand on the roadside away from the 207 officers during the search. Accordingly, wewere not persuaded that Defendant was 1 subjected to treatment that rendered him under formal arrest, such that Miranda 2 warnings should have been gi ven. Thus, we proposed to hol d that the district court’s 3 grounds for suppression the evidence were erroneous. 4 {8} In response to our notice, Defendant maintains that he was in custody because 5 he was not free to leave and because the o fficer claimed to have smelled marijuana, 6 which made it clear that serious allegations were afoot. [MIO 4] He contends that the 7 normal restrictions of a routing traffic stop for speeding escalated to a point that must 8 be considered analogous to arrest. Defendant does not rely on any analogous authority 9 to support his arguments. We are not persuade d that Defendant’s assertions make the 10 investigative detention seem any more coercive, lengthy, or confining than we 11 previously believed. We are not persuaded that Defendant was subjected to a custodial 12 interrogation that required Mirandawarnings. As such, we are not persuaded that 13 suppression of Defendant’s statements or the physical evidence was justified on the 14 grounds stated by the district court. 15 The Officer Had Reasonable Suspicion to Expand the Stop 16 {9} Defendant’s other argument in his memo randum in opposition is that we should 17 affirm the suppression of the evidence becausethe officer lacked reasonable suspicion 18 to question Defendant about marijuana. [MIO 5] Defendant asks us to affirm on these 19 alternate grounds under the doctrine of “ri ght for any reason.” [MIO 4-5] Defendant 208 bases his argument on the officer’s statemen t that he smelled raw marijuana and on 1 the State’s concession that the officer musthave been mistaken because the small 2 amount of raw marijuana in the trunk in the backpack would not have emitted the 3 overwhelming odor the officer claimed to havedetected. [MIO 5] The State explained 4 that the officer must have smelled burned marijuana, instead. [MIO 5] Defendant 5 seems to argue that because the officer’s testimony was thathe smelled raw marijuana 6 and that could not be true, there was no basi s to expand the traffic into questions about 7 marijuana. [MIO 4-5] 8 {10} It is for the fact-finder to resolve conf licts in the evidence, not this Court. See 9 State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that 10 it is for the fact-finder to resolve any conf lict in the testimony of the witnesses and to 11 determine where the weight and credibility lie ). The district court’s findings indicate 12 that it believed the officer was overwhelmedby the smell of raw marijuana. [RP 124, 13 126] The officer’s detection of the odor of marijuana supplied him with reasonable 14 suspicion of criminal activity sufficient tocontinue the detention and expand it into 15 an investigation of his suspicion. See Candelaria , 2011-NMCA-001, ¶ 21 (holding 16 that even if the patdown for weapons wa s improper, following a routine traffic stop, 17 the extended detention was justified based on the smell of marijuana); Capps , 18 1982-NMSC-009, ¶ 12 (“The smell of mariju ana alone can satisfy the probable cause 199 requirement for a warrantless search.”). Bas ed on the foregoing, we reject Defendant’s 1 claim that the officer lack ed reasonable suspicion. 2 Consent to Search 3 {11} As our notice indicated, to the extent the district court ruled that Defendant’s 4 consent was invalid or inadmissible for the failure to give Mirandawarnings, we are 5 not persuaded. “We have held that Mirandawarnings are not a prerequisite to 6 obtaining a valid consent to search.” State v. Shaulis-Powell , 1999-NMCA-090, ¶ 16, 7 127 N.M. 667, 986 P.2d 463; see State v. Carlos A. , 2012-NMCA-069, ¶ 16, 284 P.3d 8 384 (“[A] a police officer requesting consent to search an automobile need not advise 9 the person of the right to refuse consent in order to obtain valid consent, but the 10 person’s knowledge of this right is a factor to be considered in analyzing 11 voluntariness.”); cf. State v. Randy J. , 2011-NMCA-105, ¶¶ 13-20, 150 N.M. 683, 265 12 P.3d 734 (holding that even where Mirandawarnings should have been given, a 13 child’s consent to a blood testis not testimonial withinthe meaning of the Fifth 14 Amendment and not therefore a statement subject to exclusion in the absence of 15 Mirandawarnings). We continue to believe the district court erred by ruling that 16 Defendant’s consent was invalid or inadmissible on Mirandagrounds, because they 17 are unrelated concepts. Also, as we stated in our notice, the district court did not 18 otherwise rule on the validity of Defendant’s consent. 19 Defendant’s Standing 2010 {12} We would like to point out that Defendant’s consent and the scope thereof is 1 similar, but not the same as Defendant’s st anding to challenge various aspects of the 2 encounter, contrary to the implication in the district court’s first legal conclusion. [RP 3 125] Our notice proposed to reach the merits of Defendant’s standi ng, given that it is 4 a material inquiry. Our notice set forth the appropriate case law and inquiry for 5 assessing Defendant’s standi ng, which was not fully ar gued below, and proposed to 6 hold that Defendant had a reasonable expect ation of privacy sufficient to establish 7 standing to challenge the search of the vehicle that he was driving. See State v. Van 8 Dang , 2005-NMSC-033, ¶ 7, 138 N.M. 408, 120 P.3d 830 (“To establish standing, 9 [a d]efendant must demonstrate that he had a subjective expectation of privacy that 10 society will recognize as reasonable.”) . The State did not oppose our proposed 11 analysis. Upon reflection, we believe it is more prudent to simply reverse the district 12 court’s determination that Defendant’s standing was immaterial. We include on 13 remand the need for further proceedings under the legal standards set forth in our 14 notice and for the district court to rule on Defendant’s standing to challenge the search 15 of the vehicle and/or the backpack. 16 Questions Remaining on Remand 17 {13} Because we reverse the district court’s order on threshold matters, we explain 18 the questions remaining on remand. As stated above, Defendant’s standing to 19 challenge the search of vehi cle and/or backpack is material and should be analyzed 2011 under the case law set forth in our notice. Al so, as we explained in our notice, neither 1 Defendant’s consent nor a warrant is required if probable cause and exigent 2 circumstances justified the search. Because the district court suppressed the evidence 3 on different, erroneous grounds, we remand for further proceedings on presence of 4 probable cause and exigent circumstances to justify the search of the backpack. If the 5 search cannot be justified on this basis, then further proceedings are required to 6 determine whether Defendant’s consent to search was valid and extended to the 7 backpack. 8 {14} Based on the foregoing, we reverse the district court and remand for further 9 proceedings on the matters described above. 10

{15} IT IS SO ORDERED. 11

__________________________________ 12 LINDA M. VANZI, Chief Judge 13 WE CONCUR: 14

_________________________________ 15 JAMES J. WECHSLER, Judge 16

_________________________________ 1712 MICHAEL E. VIGIL, Judge 1