This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the 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. 29,704 9 JUAN FLOREZ, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 12 Jane Shuler Gray , District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Nancy Hewitt, Assistant Appellate Defender 18 Santa Fe, NM 19 Trace L. Rabern 20 Santa Fe, NM 21 Scott M. Davidson 22 David Ferrance, Practicing Law Student 23 Albuquerque, NM 242 for Appellant 1

MEMORANDUM OPINION 2 WECHSLER, Judge. 3 Defendant appeals the denial of a motion to suppress. We issued a notice of 4 proposed summary disposition, proposing to affirm. Defendant has filed a 5 memorandum in opposition, which we haveduly considered. Because we remain 6 unpersuaded by Defendant ’s assertions of error, we affirm. 7 As an initial matter, we acknowledge and hereby grant the pending “Motion [to] 8 Allow[] Practicing Law Student Appearance.” 9 Turning to the merits, Defendant contends that the fruits of a warrantless search 10 of his residence and vehicle should have beensuppressed. [MIO 1, 4-11] The district 11 court denied Defendant’s motion to s uppress below, apparently on grounds that 12 Defendant had consented. The docketing statement presented Defendant’s position 13 in a very general way. In his memorandum in opposition, Defendant has elaborated, 14 essentially presenting three argumen ts. We address each in turn. 15 First, Defendant asserts that he did not validly consent to the searches; rather, 16 he merely acquiesced in response to the o fficers’ overreaching. [MIO 1, 5-6] As we 17 have previously observed, “consent is not voluntary if it is a mere acquiescence to a 183 claim of lawful authority.” State v. Shaulis-Powell , 1999-NMCA-090, ¶ 10, 127 N.M. 1 667, 986 P.2d 463; see also State v. Coleman , 87 N.M. 153, 155, 530 P.2d 947, 949 2 (Ct. App. 1974) (upholding the suppression of evidence obtained after a defendant 3 acquiesced to a claim of lawful authority). However, neither the record nor 4 Defendant’s submissions to this Court indicate that the officers claimed lawful 5 authority to search Defendant’s residence or vehicle. To the contrary, the officers 6 explicitly sought Defendant’s “voluntary consent.” [MIO 3] As a result, we perceive 7 no basis for Defendant’s acquiescence argument. See State v. Muñoz , 8 2008-NMCA-090, ¶ 20, 144 N.M. 350, 187 P.3d 696 (rejecting the defendant’s claim 9 that he believed that he had no choice but to acquiesce to a search, when the evidence 10 indicated that the defendant acted voluntarily in response to the officer’s requests 11 rather than any claim of authority to proceed without consent), cert. granted, 2008- 12 NMCERT-006, 144 N.M. 381, 188 P.3d 105. 13 Second, Defendant contends that he did not voluntarily consent to the searches. 14 [MIO 6-8] The standard by which cons ent is to be assessed is well settled: 15 The [s]tate bears the burden of proving voluntariness, which 16 depends on the totality of the circumst ances. Factors considered are the 17 individual characteristics of the de fendant, the circumstances of the 18 detention, and the manner in which the police requested consent. The 19 voluntariness of consent involves a three-tiered analysis: (1) there must 20 be clear and positive testimony thatthe consent was specific and 21 unequivocal; (2) the consent must begiven without duress or coercion; 22 and (3) the first two factors are to beviewed in light of the presumption 234 that disfavors the waiver of constituti onal rights. In determining whether 1 the consent to search was coerced or made under duress, our case law 2 has looked to analogous case law on coerced confessions. Ultimately, 3 the essential inquiry is whether [the d]efendant’s will had been 4 overborne. 5 State v. Pierce , 2003-NMCA-117, ¶ 20, 134 N.M. 388, 77 P.3d 292 (internal 6 quotation marks and citations omitted). 7 As we observed in the notice of proposed summary disposition, the events 8 described in the record proper indicate thatDefendant invited the agents into his 9 residence specifically and unequivocally, without any duress or coercion. [RP 6] He 10 also freely produced the marijuana and paraphernalia and volunteered additional 11 information about his activities to them. [RP 6-7] We find no indication that 12 Defendant’s will was overborne. Accordingly, the district court’s determination that 13 Defendant gave valid consent to search his home appears to be adequately supported. 14 In his memorandum in opposition, Defendant argues that he did not specifically 15 or unequivocally consent to the searches b ecause initially he only offered to cooperate 16 if he would be charged with “practicing medicine without a license,” and because he 17 “never affirmatively voiced his consent” to the searches. [MIO 8] However, the 18 district court could reasonably have conc luded that the comment about “practicing 19 medicine” was not a sincere expression of conditional consent, see State v. Johnson , 20 2006-NMSC-049, ¶ 18, 140 N.M. 653, 146 P.3d 298 (observing that on review, “we 215 indulge in all reasonable inferences to support the trial court’s decision to deny the 1 motion to suppress”), and sp ecific language is not required to establish specific and 2 unequivocal consent. Conduct alone may suffice. See Muñoz , 2008-NMCA-090, 3 ¶¶ 5, 20 (holding that the defendant’s consent to a search was specific and 4 unequivocal when he complied with the o fficer’s requests). We are therefore 5 unpersuaded that the evidence failed to es tablish specific and unequivocal consent. 6 Defendant further argues that his consent to the searches was coerced. [MIO 1, 7 6-8] “Coercion involves police overreaching that overcomes the will of the 8 defendant.” State v. Chapman , 1999-NMCA-106, ¶ 21, 127 N.M. 721, 986 P.2d 9 1122. Based on the information supplied by the record proper and Defendant’s 10 submissions to this Court, we find no i ndication that Defendant ’s will was overcome. 11 In the course of their interaction with Defendant, the officers never used force, 12 displayed their weapons, or threatenedDefendant with violence, arrest, or 13 unwarranted prosecution. Moreover, the o fficers did not subject Defendant to lengthy 14 or abusive questioning or promised lenien cy in exchange for consent. We are 15 therefore unpersuaded that Defe ndant’s consent was coerced. See id. ¶¶ 21-22 16 (arriving at the same conclusion under similar circumstances). 17 We understand Defendant to contend that the officers’ interaction with him 18 before he consented to the search should be regarded as coercive, insofar as the 196 officers gave the impression that “failure to cooperate would be unwise” because the 1 prosecutor might “go harder” on him “if he did not cooperate.” [MIO 6] However, 2 generalizations of this nature are not regarded as coercive. See State v. Evans , 2009- 3 NMSC-027, ¶ 43, 146 N.M. 319, 210 P.3d 216 ( observing that “threats that merely 4 highlight potential real consequences, or are ‘adjurations to tell the truth,’ are not 5 characterized as impermissibly coercive”); State v. Sanders , 2000-NMSC-032, ¶ 10, 6 129 N.M. 728, 13 P.3d 460 (observing that “merely promising to bring a defendant’s 7 cooperation to the attention of the prosecuto r is not objectionable”). Nor do we agree 8 with Defendant’s suggestion that the officer s’ allegedly false statements about their 9 knowledge of his possession of marijuana [M IO 8] were impermissibly coercive. See 10
Evans , 2009-NMSC-027, ¶ 46 (“Our case law makes clear that deception is not 11 coercive per se.”). 12 Third and finally, Defendant asserts th at his consent was tainted by a prior 13 illegality, to the extent that the officers entered his back yard to speak with him 14 without first having obtained permission fro m an individual with actual authority. 15 [MIO 9-11] The chief difficulty with Defendant’s argument is that it was not 16 preserved below. [MIO 9] “Our recent cas es have refused to consider contentions 17 raised for the first time on appeal when the failure to raise those contentions in the 18 trial court has deprived the prevailing party of an opportunity to develop facts that 197 might bear on the contentions.” State v. De Jesus-Santibanez , 119 N.M. 578, 580, 893 1 P.2d 474, 476 (Ct. App. 1995), modified on other grounds by State v. Gomez , 1997- 2 NMSC-006, ¶ 32, 122 N.M. 777, 932 P.2d 1. Insofar as the State was deprived of the 3 opportunity to develop facts that might bear on the authority of the individual from 4 whom the officers obtained permission to enter the back yard, we conclude that 5 Defendant’s argument is not properly presented on appeal. See State v. Lopez , 6 2008-NMCA-002, ¶¶ 7-10, 143 N.M. 274, 175 P.3d 942 (filed 2007) (holding that a 7 challenge to the validity of a search wa s not before the reviewing court on appeal 8 when the defendant had failed to specifically apprise the district court of the claimed 9 error below, thereby depriving both the oppos ing party of a fair opportunity to show 10 why the court should rule in its favor and the district court of the opportunity to 11 correct any mistake). 12 For the foregoing reasons, we affirm. 13 IT IS SO ORDERED. 14

______________________________ 15 JAMES J. WECHSLER, Judge 16 WE CONCUR: 17

_______________________________ 18 RODERICK T. KENNEDY, Judge 198 _______________________________ 1 LINDA M. VANZI, Judge 2