This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 30,293 4 MARCUS CISNEROS, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles Brown, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 The Law Office of D. Chipman Venie 14 D. Chipman Venie 15 Albuquerque, NM 16 for Appellant 172 MEMORANDUM OPINION 1 BUSTAMANTE, Judge. 2 Defendant Marcus Cisneros appeals his convictions of possession of a 3 controlled substance (methamphetamine ) and possession of drug paraphernalia, 4 arguing that the district court erred in denying his motion to suppress the evidence 5 against him. Deferring to the district court’s factual finding that Defendant consented 6 to be searched, we conclude that the di strict court correctly denied the motion to 7
suppress. 8 I. BACKGROUND 9 On April 3, 2008, a hearing on Defendant’s motion to suppress was held at 10 which Detective Sammy Marquez, the arres ting officer in this case, provided the 11 relevant testimony. The detective testif ied that he was investigating a separate 12 incident at a city housing complex whenhe was flagged down by a city housing 13 employee. The employee requested assist ance with some indi viduals in a nearby 14 apartment who were not supposed to be in the apartment. 15 The detective was standing outside of the apartment when Defendant 16 approached him. The detective observed th at the front window to the apartment was 17 broken and that several indi viduals were leaving the ap artment. Some of these 18 individuals were carrying items. The detective began a convers ation with Defendant 193 in order to learn what Defendant was doing at the apartment. The detective testified 1 that his suspicions were aroused when helearned that Defendant had been partying 2 at the apartment but did not know who lived there or why one of its windows was 3 broken. 4 The detective then “called [Defendant] over . . . and asked him if [he] could pat 5 him down for weapons.” Defendant did not give verbal c onsent, but he complied with 6 the detective’s request. The detective coul d not remember exactly how he asked for 7 consent—or, more specifically, whether he asked for consent or commanded 8 Defendant to turn around and put his hands on his head—and he alternated between 9 saying that he asked Defendant and saying th at Defendant “did as he was told.” 10 The detective explained that he usuallyperforms a pat down in two parts: an 11 “initial” and a “secondary.” Th e secondary search is “to make sure [to get] close into 12 the person’s body for bulges.” During the s econdary search, the detective was “[s]till 13 looking for weapons, but if [he felt] anything out of sorts, [he would] definitely 14 identify it.” While he was performing a s econdary search on Defendant, the detective 15 felt what he identified as a pipe. The detective asked what the object was, but 16 Defendant did not answer. Th e detective testified that hethen “asked [Defendant] if 17 [he] could grab it, and I believe he either shrugged or nodded, gave me an affirmative 18 physical response, to where I actually took the item out.” 194 After seizing the pipe, the detective c ontinued his search. Although the search 1 was nominally for weapons, the detective te stified that he was now also looking for 2 narcotics. The detective felt a lump in Defendant’s right “coin pocket.” When he 3 asked Defendant what the object was, Defendant “did not make any verbal 4 confirmations; however, he did, once agai n, shrug and nod that the item could be 5 removed.” The detective coul d not recall if he asked for consent. The detective 6 removed the item, which turned out to be several baggies containing 7 methamphetamine. The detective then arre sted Defendant and removed all remaining 8 items from Defendant’s person. 9 The district court denied Defendant’s motion to suppress. The court made no 10 written findings of fact; however, it did make oral findings at the end of the hearing. 11 First, the court found that the detective had asked for permission to frisk Defendant, 12 that Defendant consented by putting his hands on his head, and that he did not 13 withdraw his consent at any time. Second, the court found that during the frisk, the 14 detective felt what he recognized as a pipe, that the detective asked permission to 15 remove the pipe from Defendant’s pocket, and that Defendant consented by nodding 16 his head to indicate yes. Based on these fi ndings, the district court denied Defendant’s 17 motion to suppress. At the subsequent ju ry trial, Defendant was convicted of both 18 charges against him. 191 We note that in addition to these reasons, Defendant makes a sixth argument 19 which is both cumulative and unsupported. 20 5 II. DISCUSSION 1 Defendant argues that the district court’s decision to deny his motion to 2 suppress was in error for any of five 1 reasons: (1) the initial detention was without 3 reasonable suspicion of criminal activity, (2 ) there were not speci fic articulable facts 4 to support the Terryfrisk, (3) seizure of the pipe exceeded the scope of the Terryfrisk 5 because the pipe was not plainly contraband, (4) seizure of methamphetamine 6 exceeded the scope of the Terryfrisk because the methamphetamine was not 7 obviously contraband, and (5) there is no “plain feel” exception to the warrant 8 requirement under Article II, Section 10 of the New Mexico Constitution. The State 9 responded to these issues, and in additi on argued that the en tire encounter was 10 permissible because it was c onsensual. Because we affirmbased on consent, we do 11 not reach Defendant’s arguments. 12 A. Defendant Was Detained 13 “[A] seizure subject to Fourth Ame ndment scrutiny does not occur every time 14 a police officer approaches a citizen.” State v. Jason L. , 2000-NMSC-018, ¶ 14, 129 15 N.M. 119, 2 P.3d 856 (alteration in original ) (internal quotation marks and citation 16 omitted). “[A] person has been ‘seized’ within the meaning of the Fourth Amendment 17 only if, in view of all of the circumst ances surrounding the incident, a reasonable 186 person would have believed that he was not free to leave.” State v. Lopez , 109 N.M. 1 169, 170, 783 P.2d 479, 480 (C t. App. 1989) (quoting United States v. Mendenhall , 2 446 U.S. 544, 554 (1980)), modified on other grounds by Jason L. , 2000-NMSC-018. 3 We review the facts surrounding whether a detention occurre d for substantial 4 evidence; however, whether these facts woul d have led a reasona ble person to believe 5 that they were not free to leave is an issue that we review de novo. Jason L. , 2000- 6 NMSC-018, ¶ 19. 7 The State does not argue that Defendant wa s not detained, and the district court 8 appears to have been silent on this issue. Nevertheless, we address the issue because 9 when “attempting to prove voluntary consent following an illegal stop, the prosecution 10 has a much heavier burden to satisfy thanwhen proving consent to search after a 11 legitimate initial stop.” State v. Bedolla , 111 N.M. 448, 456, 806 P.2d 588, 596 (Ct. 12 App. 1991). We conclude that Defendant was detained. We need not determine 13 exactly when the detention began. For our purposes, it is enough to note that when 14 the detective asked Defendant for consent to a pat-down search, no reasonable person 15 in Defendant’s position would have felt free to leave. See State v. Garcia , 2009- 16 NMSC-046, ¶ 38, 147 N.M. 134, 217 P.3d 1032 (“ The critical factor is whether the 17 policeman, even if making inquiries a private citizen would not, has otherwise 18 conducted himself in a manner which would be perceive d as a nonoffensive contact 197 if it occurred between two ordinary citizen s.” (internal quotation marks and citation 1 omitted)). 2 Furthermore, the detention was permissible. An “[i]nvestigatory detention is 3 permissible when there is a reasonable and articulable suspicion that the law is being 4 or has been broken.” Jason L. , 2000-NMSC-018, ¶ 20 (internal quotation marks and 5 citation omitted). “A reasonabl e suspicion is a particularized suspicion, based on all 6 the circumstances that a particular individual, the one detained, is breaking, or has 7 broken, the law.” Id. The intuition or hunches of the officer do not rise to the level 8 of reasonable suspicion. See State v. Vandenberg , 2003-NMSC-030, ¶ 21, 134 N.M. 9 566, 81 P.3d 19. 10 Under the circumstances of this case, th e detective had reasonable suspicion for 11 the investigatory detention of Defendant. The detective’s attention was drawn to the 12 apartment by a city housing official. He no ticed that a window to the apartment was 13 broken. Several people wereleaving, some of whom were carrying away various 14 items. Defendant told the detective that he had been partying in the apartment the 15 night before and did not know who lived in the apartment. Under the totality of the 16 circumstances, we agree with the State that the detective had reasonable suspicion that 17 criminal activity might have been occurring, including but perhaps not limited to 18 trespass, damage to property, burglary, breaking and entering, or larceny. 198 Reasonable suspicion can also justify a pat-down for weapons. “In order to 1 determine whether a limited protective search is proper, the critical question is 2 whether the officer had a particularized and objective basis for his suspicion that the 3 suspect might have been armed and dangerous.” State v. Ketelson , 2011-NMSC-023, 4 ¶ 16, 150 N.M. 137, 257 P.3d 957 (internal qu otation marks and citation omitted). 5 The district court did not address whether the detective had reasonable suspicion that 6 Defendant was armed and dangerous. The f acts of this case suggest otherwise, and 7 indeed, the detective testified to his be lief that he did not “have to have an 8 individualized suspicion of anybody” in order to search for weapons. However, we 9 decline to affirm the pat-down of Defendant on this ground. As a result, the question 10 becomes whether the need for reasonable suspicion that Defe ndant was armed and 11 dangerous was obviated by Defendant’s voluntary consent. 12 B. Substantial Evidence Supports the Dist rict Court’s Finding of Consent 13 A warrantless search or seizure is nevertheless reasonable under the Fourth 14 Amendment if it falls within one of th e enumerated exceptions, including consent. 15 See State v. Walker , 1998-NMCA-117, ¶ 8, 125 N.M . 603, 964 P.2d 164. “To be 16 deemed valid, the consent given to search must be voluntary and not a product of 17 duress, coercion, or other vitiating factors.” State v. Paul T. , 1999-NMSC-037, ¶ 28, 18 128 N.M. 360, 993 P.2d 74. 199 In determining whether consent was voluntary, we utilize a three-tiered 1 analysis that includes the following fact ors: (1) there must be clear and 2 positive testimony that the consent wa s specific and unequivocal; (2) the 3 consent must be given without duress or coercion; and (3) the first two 4 factors are to be viewed in light of the presumption that disfavors the 5 waiver of constitutional rights. 6 State v. Muñoz , 2008-NMCA-090, ¶ 19, 144 N.M. 350, 187 P.3d 696 (internal 7 quotation marks and citation omitted). 8 Our Supreme Court recently set forth the st andard of review applicable in this 9

case: 10 The review of a denial of a motion to suppress presents a mixed 11 question of fact and law. We reviewthe factual basis of the court’s 12 ruling for substantial evidence, deferri ng to the district court’s view of 13 the evidence. When, as here, th ere are no findings of fact and 14 conclusions of law, we draw all inferences and indulge all presumptions 15 in favor of the district court’s ruling. Our review of the legal conclusions 16 of the district court, however, is de novo. 17 State v. Williams , 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307 (internal 18 quotation marks and citations omitted). The issue of consent is a factual issue that we 19 review for substantial evidence. Muñoz , 2008-NMCA-090, ¶ 19. Although we might 20 have determined the issue differently, 21 [w]e must be mindful that it is the role of the trial court, and not the 22 appellate court, to weigh the evid ence and determine the credibility of 23 witnesses. We will not substitute our own judgment for a determination 24 of the trial court that is supported by substantial evidence in the record. 2510 State v. House , 1999-NMSC-014, ¶ 33, 127 N.M. 151, 978 P.2d 967 (citation 1 omitted). 2 We therefore examine whether the district court’s finding that Defendant 3 consented to be searched is supported by s ubstantial evidence. Substantial evidence 4 is “‘such relevant evidence as a reasonable mind might accept as adequate to support 5 a conclusion.’” State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 6 (quoting State v. Baca , 1997-NMSC-059, ¶ 14, 124 N.M. 333, 950 P.2d 776). We 7 resolve all disputed facts in favor of the St ate, indulge all inferences in favor of the 8 verdict, and view the evidence in the li ght most favorable to the verdict. See House , 9 1999-NMSC-014, ¶ 32. The question is wh ether the district court’s “decision is 10 supported by substantial evidence, not whether the [district] court could have reached 11 a different conclusion.” In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 15, 121 N.M. 562, 12 915 P.2d 318. 13 First, substantial evidence supports a finding that there was specific and 14 unequivocal consent. The district court found that the detective “asked . . . for 15 permission to frisk” Defendant, and thatDefendant made “physical actions or 16 nonverbal conduct which were intended as an assertion” amounting to consent. This 17 finding is supported by the detective’s testimony. The detective testified that he called 18 Defendant over and asked for permission to pat him down. Defendant made no verbal 1911 responses. Instead, according to the detective, the Defe ndant “came over and turned 1 around right in front of me” and generally “did what I asked him to do.” Additionally, 2 when the detective felt the pipe and whenhe felt the drugs, the detective asked 3 Defendant for permission to remove them . In each instance, Defendant nodded that 4 the detective could remove the items that hefelt. Drawing all in ferences in favor of 5 the district court’s finding, we concl ude that a reasonable mind could find the 6 detective’s testimony sufficient to support a finding that Defendant gave specific and 7 unequivocal—although admittedly non-verbal—consent. 8 Second, substantial evidence supports a finding that the consent was given 9 without duress or coercion. “Coercion involves poli ce overreaching that overcomes 10 the will of the defendant.” State v. Chapman , 1999-NMCA-106, ¶ 21, 127 N.M. 721, 11 986 P.2d 1122. The detective testified thathe asked for consent using “normal 12 volumes” of voice and in a “calm demeanor.” As in Chapman , there was no 13 testimony that the detective used force, displayed his weapon, threatened Defendant 14 with violence, arrest, or unwarranted prosecutions, subjected him to lengthy or 15 abusive questioning, or promised leni ency in exchange for consent. See id. In short, 16 the evidence shows that police action was not overreaching and did not overcome the 17 will of Defendant. Because the testimony show ed that the detective politely asked for 18 consent, and because there was no testimony that he performed any of the actions we 1912 consider coercive, we conclude that th ere was substantial evidence to support a 1 finding that the consent was given without duress or coercion. 2 Substantial evidence therefore supports both substantive prongs of the test for 3 consent. Although we recognize that there is a presumption against the waiver of 4 constitutional rights, the presumption is outweighed by the specific facts supporting 5 consent in this case. We therefore affirm the district court’s conclusion that the 6 detective’s encounter with Defendant wa s reasonable because it was consensual. 7 C. Article II, Section 10 8 Defendant also argues that the standardfor consent should be higher under the 9 New Mexico Constitution than under the Fourth Amendment. Defendant claims that 10 the federal analysis is flawed because “[u]nder the New Mexico Constitution, unlike 11 the United States Constitution, there is a presumption that disfavors the waiver of 12 constitutional rights.” 13 We find Defendant’s argument for enhanced protection under Article II, Section 14 10 of the New Mexico Constitution unpersuasive. Defendant relies on State v. 15 Anderson , 107 N.M. 165, 754 P.2d 542 (Ct. App. 1988), for the proposition that a 16 presumption against waiver exists in th e New Mexico Constitution but is absent in 17 federal law. But Anderson , which analyzes consent under the Fourth Amendment, 1813 makes it clear that the presumption agains t waiver actually doe s apply under federal 1 law: 2 The determination of voluntariness i nvolves a three-tiered analysis: (1) 3 there must be clear and positive tes timony that the consent was specific 4 and unequivocal; (2) the consent mu st be given without duress or 5 coercion; and (3) the first two factors are to be viewed in light of the 6 presumption that disfavors the waiver of constitutional rights

. 7 107 N.M. at 167, 754 P.2d at 544 (emphasis added, internal quotation marks and 8 citation omitted). Furthermore, neither the Andersoncourt nor our Supreme Court has 9 perceived the federal analysis to be flawedin the many times it ha s been applied since 10 Andersonwas decided. See, e.g. , State v. Flores , 1996-NMSC-059, ¶ 20, 122 N.M. 11 84, 920 P.2d 1038; State v. Bond , 2011-NMCA-036, ¶ 12, 150 N.M. 451, 261 P.3d 12 599; Muñoz , 2008-NMCA-090, ¶ 19; State v. Pierce , 2003-NMCA-117, ¶ 20, 134 13 N.M. 388, 77 P.3d 292. We therefore decline Defendant’s invitation to adopt a higher 14 standard for consent under the New Mexico Constitution. 15 III. CONCLUSION 16 For the foregoing reasons, we affirm Defendant’s convictions. 17 IT IS SO ORDERED. 18

19 MICHAEL D. BUSTAMANTE, Judge 2014 WE CONCUR: 1

2 CELIA FOY CASTILLO, Chief, Judge 3

4 RODERICK T. KENNEDY, Judge 5