{ "id": 4334579, "name": "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent", "name_abbreviation": "State v. Davis", "decision_date": "2013-06-13", "docket_number": "Docket No. 33,203", "first_page": "394", "last_page": "402", "citations": [ { "type": "official", "cite": "2013-NMSC-028" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "639 F.3d 1273", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4200921 ], "year": 2011, "pin_cites": [ { "page": "1278" } ], "opinion_index": 0, "case_paths": [ "/f3d/639/1273-01" ] }, { "cite": "94 F.3d 656", "category": "reporters:federal", "reporter": "F.3d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "761 F.2d 1448", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 29487 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "1453" }, { "page": "1453-54" } ], "opinion_index": 0, "case_paths": [ "/f2d/761/1448-01" ] }, { "cite": "40 F.3d 1069", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10529481 ], "year": 1994, "pin_cites": [ { "page": "1078" } ], "opinion_index": 0, "case_paths": [ "/f3d/40/1069-01" ] }, { "cite": "2000-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217186 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0728-01" ] }, { "cite": "536 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254966 ], "year": 2002, "pin_cites": [ { "page": "204-05", "parenthetical": "providing that the fact that officers are required to wear sidearms is well known to the public and is cause for assurance, thus the holstering of a weapon \"is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon\"" } ], "opinion_index": 0, "case_paths": [ "/us/536/0194-01" ] }, { "cite": "743 F. Supp. 2d 1281", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 4161234 ], "year": 2010, "pin_cites": [ { "page": "1322", "parenthetical": "holding that the presence of five agents in and of itself does not render a citizen's consent coerced" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/743/1281-01" ] }, { "cite": "90 N.M. 647", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870878 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "650-52" }, { "page": "499-501" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0647-01" ] }, { "cite": "110 N.M. 507", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716924 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "515" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0507-01" ] }, { "cite": "103 N.M. 558", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711347 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "563" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0558-01" ] }, { "cite": "105 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599010 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "694" }, { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0690-01" ] }, { "cite": "1999-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257596 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0721-01" ] }, { "cite": "2008-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003154 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b620" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0350-01" ] }, { "cite": "143 F.3d 1363", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 268789 ], "weight": 8, "year": 1998, "pin_cites": [ { "page": "1367", "parenthetical": "holding that the defendant's response of \"go ahead\" following a request to search by an officer was unequivocal" }, { "page": "1367" }, { "page": "1367" }, { "page": "1367" } ], "opinion_index": 0, "case_paths": [ "/f3d/143/1363-01" ] }, { "cite": "2003-NMCA-117", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77126 ], "weight": 8, "pin_cites": [ { "page": "\u00b620" }, { "page": "\u00b6 20" }, { "page": "\u00b6 21" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0388-01" ] }, { "cite": "2008-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003790 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0217-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "year": 1973, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "1999-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257777 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" }, { "page": "\u00b6\u00b6 10-11" }, { "page": "\u00b6\u00b6 11, 15" }, { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0667-01" ] }, { "cite": "121 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0562-01" ] }, { "cite": "1996-NMCA-039", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0 }, { "cite": "2007-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3691756 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0176-01" ] }, { "cite": "107 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597064 ], "weight": 10, "year": 1988, "pin_cites": [ { "page": "167-68" }, { "page": "544-45" }, { "page": "167" }, { "page": "544" }, { "page": "167-68" }, { "page": "544-45" }, { "page": "167" }, { "page": "544", "parenthetical": "citations omitted" }, { "page": "167-68" }, { "page": "544-45" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0165-01" ] }, { "cite": "122 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322320 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0084-01" ] }, { "cite": "1996-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "2011-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250267 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 14" }, { "page": "\u00b6 3" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0611-01" ] } ], "analysis": { "cardinality": 1050, "char_count": 25403, "ocr_confidence": 0.81, "pagerank": { "raw": 5.1739912520245754e-08, "percentile": 0.3252349847423537 }, "sha256": "929e32cbc543a1b428224e68a29db50f2bb7cf645346712e681f9db925e05e22", "simhash": "1:bf6aeca25265bfa7", "word_count": 4001 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "PETRA JIMENEZ MAES, Chief Justice", "WE CONCUR:", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice", "BARBARA J. VIGIL, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nMAES, Chief Justice.\nDefendant Norman Davis was indicted for possession of marijuana of eight ounces or more, a fourth degree felony, contrary to NMSA 1978, Section 30-31-23 (A) and (B)(3) (2011), and possession of drug paraphernalia, a misdemeanor, contrary to NMSA 1978, Section 30-31-25.1(A) (2001). These charges resulted from the New Mexico State Police Operation \u201cYerba Buena 2006\u201d aimed at marijuana eradication in the remote area of Carson Estates in Taos County.\nDefendant filed a motion to quash the search warrant and suppress the marijuana and paraphernalia seized. The trial court denied the motion and the Court of Appeals reversed. We granted certiorari to address whether the Court of Appeals erred in overruling the trial court\u2019s dismissal of Defendant\u2019s motion to suppress because there was substantial evidence to support the trial court\u2019s finding that Defendant voluntarily consented to the search of his home.\nI. FACTS AND PROCEDURAL HISTORY\nTheNewMexicoStatePolice,assistedby New Mexico Game and Fish officers, the New Mexico National Guard, and the Region III Narcotics Task Force, utilized two army OH 58 Jet Ranger helicopters and two ground teams to execute Yerba Buena. The helicopters were intended to spot possible marijuana plantations from the air, guide the ground teams into the area to confirm or to deny the observation, and provide cover and safety for the ground officers. After being alerted by one of the helicopters to the presence of a greenhouse and vegetation in Defendant\u2019s backyard, around six or seven law enforcement officers, armed with their semiautomatic service weapons, and several government vehicles created a secured premise around Defendant\u2019s property. The helicopter hovered above Defendant\u2019s home between the height of 50-500 feet.\nDefendant, seventy-two years old, was at home because he was not feeling well. Bothered by the racket of the helicopter, Defendant got out of bed to see what was going on.\nOnly Officer William Merrell approached Defendant, who was standing outside of his home. Defendant asserts that Officer Merrell \u201cconfronted\u201d him while holding a rifle and side arm. There is no evidence on record that any officer ever unholstered his weapon. Officer Merrell\u2019s belt tape recorded the conversation. Officer Merrell identified himself and stated that the helicopter had identified marijuana on Defendant\u2019s property. Officer Merrell asked permission to search the residence, and Defendant asked what would happen if he said no. Officer Merrell responded that if Defendant refused to allow the search, the officers would secure the residence and that the decision was up to Defendant. Officer Merrell again asked to search Defendant\u2019s residence, and said, \u201cwait guys, hold on\u201d to the other officers on the property. Defendant then responded, \u201csure\u201d and then \u201cit looks like they are searching anyways.\u201d Officer Merrell responded that the officers were not yet searching, rather that they were there for safety and if given permission to search, Officer Merrell would provide Defendant with a consent form. Defendant then admitted that he was growing marijuana.\nOfficer Merrell provided Defendant with a consent form and asked him to sign it. Defendant responded \u201cI\u2019m not really thrilled about you searching my house\u201d and \u201cI don\u2019t know if I should do this; I don\u2019t know if it is in my best interest.\u201d Officer Merrell told Defendant that this was a decision he would need to make and he could not make it for Defendant. Defendant asked what would happen if he did not sign the consent form and Officer Merrell responded that he \u201cwould go forth and try to execute a warrant through the district attorney\u2019s office\u201d which would take about 30 minutes. Defendant said, \u201cWell I guess I don\u2019t really have any options here do I?\u201d Officer Merrell did not respond. Defendant then signed the consent form. The consent form contained language that Defendant was informed of his \u201cconstitutional right not to have a search made of his premises ... without a search warrant\u201d and his right to refuse to consent to the search.\nOfficer Merrell\u2019s tone was mild throughout the conversation and Defendant\u2019s tone was equally conversational. During the initial conversation, Officer Merrell told Defendant at least three times that the decision to consent was strictly Defendant\u2019s. The entire encounter, including the search and seizure, lasted approximately one hour. As a result of the search, officers seized fourteen marijuana plants growing in the greenhouse and both an undisclosed amount of marijuana and paraphernalia from the home.\nDefendant filed a motion to quash the subpoena and suppress the marijuana and paraphernalia seized. Defendant asserted that his consent to search was not voluntary and his state and federal constitutional rights were violated before consent was given. The trial court denied the motion and Defendant appealed. The Court of Appeals, addressing only the issue of Defendant\u2019s consent, concluded that although his consent was specific and unequivocal, the State failed to provide substantial evidence that Defendant\u2019s consent was voluntary and the trial court failed to consider the totality of circumstances. State v. Davis, 2011-NMCA-102, \u00b6 13, 150 N.M. 611, 263 P.3d 953 (citing State v. Flores, 1996-NMCA-059, \u00b6 20, 122 N.M. 84, 920 P.2d 1038).\nThe State appealed to this Court. We granted certiorari to address whether the Court of Appeals erred in overruling the trial court\u2019s dismissal of Defendant\u2019s motion to suppress because the State argues there was substantial evidence to support the trial court\u2019s finding that Defendant voluntarily consented to the search of his home.\nII. STANDARD OF REVIEW\nThe voluntariness of consent is a factual question in which the trial court must weigh the evidence and decide if it \u201cis sufficient to clearly and convincingly establish that the consent was voluntary.\u201d State v. Anderson, 107 N.M. 165, 167-68, 754 P.2d 542, 544-45 (Ct. App. 1988). Factual questions are viewed under a substantial evidence standard, and the application of law to the facts de novo. State v. Neal, 2007-NMSC-043, \u00b6 15, 142 N.M. 176, 164 P.3d 57. In conducting such a review, \u201c[t]he question is whether the [trial] court\u2019s decision is supported by substantial evidence, not whether the trial court could have reached a different conclusion.\u201d In re Ernesto M., Jr., 1996-NMCA-039, \u00b6 15, 121 N.M. 562, 915 P.2d 318 (internal citation omitted)\nIII. DISCUSSION\nThe State asserts that Defendant\u2019s consent satisfies the test for voluntary consent as articulated in Anderson, 107 N.M. 165 at 167, 754 P.2d at 544. The State agrees with the Court of Appeals that Defendant\u2019s consent was specific and unequivocal. However, the State argues that substantial evidence supports the trial court\u2019s finding that Defendant did not simply acquiesce to a showing of lawful authority. Instead of deferring to the trial court\u2019s finding of facts, the State asserts that the Court of Appeals engaged in its own fact-finding, contrary to its responsibility of review under a substantial evidence standard.\nDefendant argues that his consent was not voluntary. Because of the number of armed officers and the presence of the helicopter, he claims he was merely acquiescing to a showing of lawful authority, which State v. Shaulis-Powell, 1999-NMCA-090, \u00b6 10, 127 N.M. 667, 986 P.2d 463 held does not constitute valid consent. Defendant claims that the Court of Appeals applied the correct standard of review and properly considered the totality of the circumstances, while the trial court did not consider the totality of the circumstances and instead selectively picked facts to make its determination.\nThe voluntariness of consent is a factual question in which the trial court must weigh the evidence and decide if it is sufficient to clearly and convincingly establish that the consent was voluntary. Anderson, 107 N.M. at 167-68, 754 P.2d at 544-45. The State has the burden of proving that, under the totality of the circumstances, consentto search was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); State v. Flores, 2008-NMCA-074, \u00b6 13, 144 N.M. 217, 185 P.3d 1067.\nCourts utilize a three-tiered analysis when determining voluntariness: \u201c(1) there must be clear and positive testimony that the consent was specific and unequivocal; (2) the consent must be given without duress or coercion; and (3) the first two factors are to be viewed in light of the presumption that disfavors the waiver of constitutional rights.\u201d Anderson, 107 N.M. at 167, 754 P.2d at 544 (citations omitted). Because the third prong is an acknowledgment of our presumption against waiving constitutional rights, we focus on the first two prongs. \u201cUltimately, the essential inquiry is whether [defendant\u2019s will has been overborne.\u201d State v. Pierce, 2003-NMCA-117, \u00b620, 134 N.M. 388, 77 P.3d 292 (internal citation omitted).\nA. Defendant gave specific and unequivocal consent\nThe Court of Appeals concluded \u201cthat substantial evidence supports the [trial] court\u2019s findings that Defendant\u2019s oral and written consent to a search of his property was specific and unequivocal at the time it was given to Officer Merrell.\u201d Davis, 2011-NMCA-102, \u00b6 14. We agree.\nSpecific and unequivocal consent can be given in a variety of ways. For example, in United States v. Pena, the court held that an affirmative and direct oral response to an officer\u2019s request to search constituted specific and unequivocal consent. 143 F.3d 1363, 1367 (10th Cir. 1998) (holding that the defendant\u2019s response of \u201cgo ahead\u201d following a request to search by an officer was unequivocal). More specifically, the clarity of a question and response can indicate specific and unequivocal consent. State v. Mu\u00f1oz, 2008-NMCA-090, \u00b6 20, 144 N.M. 350, 187 P.3d 696 (providing that where the Court found that the clarity of the officer\u2019s request, followed by the defendant\u2019s subsequent compliance by emptying his pockets and removing his shoes, evidenced specific and unequivocal consent). A response without hesitation is yet another indication of an unequivocal response. See, e.g., State v. Chapman, 1999-NMCA-106, \u00b6 20, 127 N.M. 721, 986 P.2d 1122 (finding that the consent was unequivocal when the defendant admitted without hesitation to possessing certain items, and, following a request to search by the officer, responded affirmatively, exited the driver\u2019s seat and motioned to the trunk).\nEvidence of oral consent can be established through testimony of the parties. Id. The testimony must be clear and positive in order to show specific and unequivocal consent. State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495, 499 (1987).\nThe act of signing a consent to search form can also constitute specific and unequivocal consent. See State v. Cohen, 103 N.M. 558, 563, 711 P.2d 3, 8 (1985). In State v. Lara, 110 N.M. 507, 515, 797 P.2d 296, 304 (Ct. App. 1990), the Court of Appeals held that substantial evidence of such specific and unequivocal consent existed where the defendant responded without hesitation to questioning, provided a written statement and signed a form acknowledging he had been advised of his constitutional rights. Id.\nIn this case, the facts leading up to the search are largely undisputed. Officer Merrell requested and received Defendant\u2019s consent prior to searching. Defendant can be heard on Officer Merrell\u2019s belt tape giving oral consent to search his property by responding \u201csure\u201d and \u201call right.\u201d Nothing in the record indicates that Defendant ever firmly objected to or protested Officer Merrell\u2019s request to search. Officer Merrell also provided clear testimony as to the purpose of the search and clarified that the officers did not begin searching until they received Defendant\u2019s consent.\nThere is clear testimony on the record constituting proof of Defendant\u2019s consent. Accordingly, Defendant\u2019s oral and written consent amounted to specific and unequivocal consent.\nB. Defendant was not coerced into giving consent\nThe second tier of our analysis examines the voluntariness of Defendant\u2019s consent in the context of coercion. Anderson, 107 N.M. at 167-68, 754 P.2d at 544-45. The State argues that substantial evidence exists to support the trial court\u2019s finding that Defendant\u2019s consent was voluntary and it should be not disturbed on appeal. The State asserts that the Court of Appeals gave improper weight to the presence of a helicopter and the number of armed officers present because the Defendant himself never established that these things overbore his will.\nDefendant argues that the Court of Appeals correctly held that the trial court did not consider the totality of the circumstances in determining the coerciveness of Defendant\u2019s consent because it ignored competent evidence of coercion. Defendant asserts that the presence of a helicopter, the number of armed officers, and his poor physical state created a coercive atmosphere and rendered his consent involuntary.\n\u201cCoercion involves police overreaching that overcomes the will of the defendant.\u201d Chapman, 1999-NMCA-106, \u00b6 21 (internal citation omitted). Specific factors indicating coercion include the use of force, brandishing of weapons, threat of violence or arrest, lengthy and abusive questioning, deprivation of food or water and promises of leniency in exchange for consent. Id. (citing State v. Rudd, 90 N.M. 647, 650-52, 567 P.2d 496, 499-501 (Ct. App. 1977)). However, the sheer number of officers or presence of weapons does not automatically generate coercion. See United States v. Romero, 743 F. Supp. 2d 1281,1322 (D.N.M. 2010) (holding that the presence of five agents in and of itself does not render a citizen\u2019s consent coerced); see also United States v. Drayton, 536 U.S. 194, 204-05 (2002) (providing that the fact that officers are required to wear sidearms is well known to the public and is cause for assurance, thus the holstering of a weapon \u201cis unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon\u201d). \u201c[CJonsent is not voluntary if it is a mere acquiescence to a claim of lawful authority.\u201d Shaulis-Powell, 1999-NMCA-090, \u00b6 10. When an officer unequivocally asserts that he will be able to obtain a warrant, a defendant\u2019s belief that refusal to consent would be futile demonstrates involuntary consent. Id. \u00b6 11.\nOn the other hand, factors of voluntariness can include \u201cthe individual characteristics of the defendant, the circumstances of the detention, and the manner in which the police requested consent.\u201d Pierce, 2003-NMCA-117, \u00b6 20 (internal citation omitted); see also Mu\u00f1oz, 2008-NMCA-090, \u00b620 (explaining that based on the officer\u2019s non-confrontational tone and demeanor, the defendant\u2019s subsequent compliance with the officer\u2019s requests was not coerced). Further, when an officer simply expresses his assessment of the situation, that explanation does notprevent a defendant from insisting that a warrant be obtained prior to searching. Shaulis-Powell, 1999-NMCA-090, \u00b6\u00b6 10-11 (holding that the officer\u2019s comments that he \u201cbelieved\u201d and \u201cfelt\u201d he had enough evidence to secure a warrant were not coercive). Similarly, an officer\u2019s assurance to report a suspect\u2019s compliance to the district attorney\u2019s office does not constitute an improper promise. See State v. Sanders, 2000-NMSC-032, \u00b6 10, 129 N.M. 728, 13 P.3d 460 (stating that \u201cmerely promising to bring a defendant\u2019s cooperation to the attention of the prosecutor is not objectionable\u201d). A reasonable explanation of the possibility of arrest and the process that will follow, or an officer\u2019s belief in his or her ability to obtain a warrant is permissible and neither constitutes coercion or invalidates consent. Shaulis-Powell, 1999-NMCA-090, \u00b6\u00b6 11, 15.\nAs the trial court pointed out, this case is similar to the circumstances in ShaulisPowell. In Shaulis-Powell, the Court of Appeals upheld the trial court\u2019s finding of voluntariness when officers came to the defendants\u2019 house to investigate the potential cultivation of marijuana. 1999-NMCA-090, \u00b6 16. There, plain-clothed, armed officers approached defendants at their front door and requested permission to search for marijuana. Id. \u00b6\u00b6 3-5. One defendant asked whether they had a warrant, which one officer denied but responded that he \u201cfelt he had enough information to . . . secure one\u201d and that if defendant did not give consent he would seek to obtain a warrant. Id. \u00b6 4. The defendant consented. Id. \u00b6 5. The Court determined that the officer\u2019s explanation of the warrant process was reasonable and not a threat. Id. \u00b6\u00b6 11, 14. Even so, an officer\u2019s threat to perform some legal action does not invalidate consent. Id. \u00b6 14 (internal quotation marks and citation omitted). One Shaulis-Powell defendant also attempted to argue thatbecause the officers had secured the premise around her home, she was seized in a coercive atmosphere. Id. \u00b6 16. Unpersuaded, the Court held that because defendant was free to come and go from the house, defendant was not seized and thus not coerced into giving consent. Id.\nAs in Shaulis-Powell, the officers in this case created a safety perimeter around the property but Defendant was still allowed to move about freely. See Shaulis-Powell, 1999-NMCA-090, \u00b6 16. The Shaulis-Powell officer\u2019s belief in his ability to obtain a search warrant without the defendants\u2019 consent is similar to Officer Merrell\u2019s response that he would \u201ctry to obtain a search warrant\u201d if Defendant refused to consent. Id. \u00b6 11. This statement was a request and not a demand and can logically be construed as a reasonable explanation of the process an officer would follow after a defendant refused to consent to a search. Therefore, Officer Merrell\u2019s statement was not coercive.\nWe next address Defendant\u2019s argument that the mere presence of armed officers was enough to create coercion. In Pena, the Tenth Circuit found the circumstances to be noncoercive when four armed officers came to the defendant\u2019s motel room to search and question him. 143 F.3d at 1367. While the court acknowledged that the presence of several officers in a \u201chome might be intimidating to the point of negating the voluntariness of consent in some situations\u201d (citing United States v. Davis, 40 F.3d 1069, 1078 (10th Cir. 1994)), the mere presence of armed officers was not enough to create coercion. Pena, 143 F.3d at 1367. Only one officer actually spoke to the defendant, none of the officers unholstered their weapons, and all remained outside of the room until given permission by the defendant to enter. Id. The court stated there was no evidence that the officers conducted themselves in an unprofessional manner and thus the defendant\u2019s consent to search was not coerced. Id. In this case, similar to Pena, several armed officers arrived at Defendant\u2019s residence to search for marijuana. Id. In both situations only one officer approached the defendant. See id.; Davis, 2011-NMCA-102, \u00b6 3. None of the officers in either case unholstered their weapons and all remained professional. See Pena, 143 F.3d at 1367. Additionally, the officers in both situations remained on the outskirts of the premises until given permission to enter. Id. Accordingly, the mere presence of armed officers was not enough to create coercion.\nThe Court of Appeals states that there was a valid reason for Defendant to believe his refusal to consent would be futile in this case because Officer Merrell\u2019s statement to the other officers to \u201chold on\u201d was evidence that they had already started searching. Davis, 2011-NMCA-102, \u00b6 19. However, the trial court found and the record shows that O fficer Merrell testified that he had informed Defendant that his officers had not started searching but instead were setting up a perimeter for safety. Officer Merrell further testified that he told Defendant that the officers would only begin searching if Defendant signed a consent form. Accordingly because Officer Merrell directly addressed and corrected Defendant\u2019s belief, there was no valid reason for Defendant to believe his refusal to consent would be futile.\nWe next address cases finding clear coercion that are distinct from this case. The Recalde court illustrated a clear example of coercion in finding the defendant\u2019s consent to accompany two armed officers to another city was involuntary. United States v. Recalde, 761 F.2d 1448, 1453 (1985), overruled on other grounds by United States v. Enriques-Hernandez, 94 F.3d 656 (1996). At the time of the requested consent, the officers had already searched the defendant\u2019s car trunk and luggage, taken and withheld his driver\u2019s license and registration, neglected to inform the defendant he was free to leave and the defendant himself testified he did not feel free to leave. Id. Additionally, the defendant was traveling alone in an isolated area and had been stopped in the middle of a rainstorm. Id. at 1453-54. The court held that these factors constituted a coercive atmosphere and rendered his consent involuntary. Id.\nThe Court of Appeals found clear evidence of coercion in Pierce. At the time the defendant gave consent, he had been detained for twenty minutes while sitting on a curb handcuffed, with two officers standing over him, subjecting him to searches of his car and person. 2003-NMCA-117, \u00b6 21. The Court held that the defendant eventually \u201ccapitulated\u201d to the officers\u2019 repeated requests for consent. Id. \u201c[I]n light of the presumption that disfavors the waiver of constitutional rights\u201d the Court was \u201cunwilling to accept that Defendant\u2019s permission . . . was free from coercion and duress.\u201d Id.\nUnlike Recalde and Pierce, Defendant was never detained. Instead, Defendant\u2019s initial conversation with Officer Merrell lasted about nine minutes. Defendant was in his own home and went to lie down after giving the officers permission to search, unlike in Recalde where the defendant was traveling alone in an isolated area, during a storm, and was unable to leave. Recalde, 761 F.2d at 1453-54. Defendant\u2019s situation is also distinguishable from Pierce where the defendant eventually capitulated to the officer\u2019s repeated questioning after he was detained for twenty minutes while handcuffed and forced to sit on a curb as the two officers stood over him. Pierce, 2003-NMCA-l 17, \u00b6 21. In the case at bar, Defendant only spoke with one officer and was never arrested or physically restrained. Defendant never testified that he did not feel free to leave and in fact the testimony shows he was able to move about freely. While the Court of Appeals placed great significance on the presence of the police helicopter, the State argues, and we agree, that there is no evidence that the helicopter influenced Defendant\u2019s consent. In fact, the only testimony on record regarding Defendant\u2019s feelings about the helicopter was that he was bothered by the noise and had to get out of bed.\nFurther, Officer Merrell\u2019s belt tape shows the conversation between him and Defendant was calm and slow. Both Officer Merrell and Defendant used normal tones. Defendant did not express any feelings of fear or pressure. While Defendant did vacillate between whether or not to consent to the search, Officer Merrell informed Defendant several times that he was not required to provide consent. Defendant orally consented and physically signed a consent to search form which again advised him of his rights.\nFinally, the defense argues that Defendant did not have sufficient capacity to consent that day because he was not feeling well. Defendant argues that the physical and mental condition of a defendant is relevant when determining whether consent was voluntary under United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011) and Pierce, 2003-NMCA-117, \u00b6 20. The trial court did however take Defendant\u2019s physical and mental condition into consideration when it determined that Defendant was \u201cthoroughly cooperative, civil and peaceful\u201d and \u201cis an intelligent man with a greater than average storehouse of knowledge.\u201d Defendant\u2019s physical and mental ability to consent was yet another factor that the trial court used to determine that his consent had not been coerced.\nTherefore, substantial evidence does not exist to show that Defendant\u2019s will was overborne by any exertion of coercion by the officers to justify overturning the trial court\u2019s decision. Instead, a review of the record, under a totality of the circumstances analysis, suggests that the trial court\u2019s finding of voluntary consent should be upheld.\nIV. CONCLUSION\nWe conclude that there was substantial evidence that Defendant voluntarily consented to the search and affirm the trial court\u2019s dismissal of Defendant\u2019s motion to suppress. We remand to the Court of Appeals for further proceedings consistent with this Opinion.\nIT IS SO ORDERED.\nPETRA JIMENEZ MAES, Chief Justice\nWE CONCUR:\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice\nBARBARA J. VIGIL, Justice", "type": "majority", "author": "MAES, Chief Justice." } ], "attorneys": [ "Gary K. King, Attorney General Martha Anne Kelly, Assistant Attorney General Santa Fe, NM for Petitioner", "Bennett J. Baur, Acting ChiefPublic Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Respondent" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMSC-028\nFiling Date: June 13, 2013\nDocket No. 33,203\nSTATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent.\nGary K. King, Attorney General Martha Anne Kelly, Assistant Attorney General Santa Fe, NM for Petitioner\nBennett J. Baur, Acting ChiefPublic Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Respondent" }, "file_name": "0394-01", "first_page_order": 410, "last_page_order": 418 }