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 Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,436 9 GARY GLASS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 John A. Dean, Jr., District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Acti ng Chief Public Defender 17 Will O’Connell, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 22 Defendant appeals his conviction fo r attempt to commit trafficking by 232 possession with intent to distribute methamphe tamine, claiming that the district court 1 erred in denying his motion to suppress. We proposed to affirm in a notice of 2 proposed summary disposition, and Defendant has filed a memorandum in opposition 3 to our proposed disposition. Having cons idered the arguments raised by Defendant 4 in his memorandum and remaining unpersuaded, we affirm the denial of his motion 5 to suppress and his conviction. 6 In his docketing statement, Defendant contends that th e district court erred in 7 denying his motion to suppress because o fficers illegally executed the warrant by 8 arriving at the storage unit that was the subj ect of the search at almost 10:00 p.m., and 9 by conducting the majority of the search after 10:00 p.m. [DS 3] Cf. Rule 5-211(B) 10 NMRA (providing in part that “[a] searchwarrant shall direct that it be served 11 between the hours of 6:00 a.m. and 10:00 p. m., according to local time, unless the 12 issuing judge, by appropriate provision inthe warrant, and for reasonable cause 13 shown, authorizes its execution at any tim e”). We proposed to affirm based on our 14 Supreme Court’s decision in State v. Santiago , 2010-NMSC-018, 148 N.M. 144, 231 15 P.3d 600. See id. ¶ 19 (recognizing that Rule 5-211(B) would not be violated if 16 officers had obtained a warrant and begun the process of clearing the home at 8:00 17 p.m., even if search personnel did not arri ve and the actual search and inventory did 18 not commence until after 10:00 p.m.). We alerted Defendant to the Court’s language 193 in Santiago that “Rule 5-211(B) remains a bright -line rule [applicable] where police 1 do not initiallyserve a search warrant or enter the premises until after 10:00 p.m.” Id. 2 ¶ 22 (emphasis added). 3 In his memorandum in opposition, Defendant argues that despite the Court’s 4 language in Santiago , the timing of the search in this case was unreasonable because 5 officers had the warrant for three days and could have executed it at any time and 6 instead chose to wait until almost 10:00 p.m. [MIO 3] Defendant claims this failure 7 to choose a more reasonable time violates th e intent of Rule 5-211(B). [MIO 5] We 8 are unpersuaded. 9 As noted by the Court in Santiago , Rule 5-211(B) was drafted to alleviate the 10 problems that a nighttime search may pose when that search takes place in someone’s 11 home. Santiago , 2010-NMSC-018, ¶¶ 12-15. The C ourt specifically recognized that 12 Rule 5-211(B) was drafted to address “thetypical nighttime search . . . where law 13 enforcement officers arrive at an occupied residence after 10:00 p.m. without prior 14 notice.” Santiago , 2010-NMSC-018, ¶ 15. Likewise, all of the cases cited by 15 Defendant in support of his contention that the timing of a search must be reasonable, 16 concern the search of a residence. [MIO 6] See, e.g., State v. Attaway , 117 N.M. 141, 17 143, 870 P.2d 103, 105 (1994); State v. Reynaga , 2000-NMCA-053, ¶ 2, 129 N.M. 18 257, 5 P.3d 579. 194 In this case, it is undisputed that the sear ch satisfied the bright line test set forth 1 in Rule 5-211(B). Moreover, even if De fendant and another person were present in 2 the storage unit at the time offi cers arrived, [MIO 1] the s earch was not of a residence. 3 Therefore, even if Defendant is correct that the officers could have executed the 4 warrant and conducted the subsequent searchat an earlier time, [MIO 5] we are not 5 convinced that their failure to do so warrants a conclusion that the search of the 6 storage unit was unreasonable. [MIO 5-6] Cf. Santiago , 2010-NMSC-018, ¶¶ 11-12 7 (observing that, “[a]s a general proposition, a nighttime search implicates special 8 concerns of privacy and safety—especially when the search is of a home [because] a 9 person is especially vulnerable in the privacy of his place of repose during the 10 nighttime hours, if he is forced to face a nocturnal confrontation with the police” 11 (internal quotation marks and citation omitted)). 12 Based upon the foregoing, and for the reasons set forth in our notice of 13 proposed summary disposition, we uphold the district court’s denial of Defendant’s 14 motion to suppress and affirm his conviction. 15 IT IS SO ORDERED. 16

_________ ___________ ____________ 17 JAMES J. WECHSLER, Judge 185 WE CONCUR: 1

__________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

__________________________________ 4 RODERICK T. KENNEDY, Judge 5