{ "id": 4334645, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DONNIE SILVAS, Defendant-Appellant", "name_abbreviation": "State v. Silvas", "decision_date": "2013-09-20", "docket_number": "No. 34,271; Docket No. 30,917", "first_page": "730", "last_page": "741", "citations": [ { "type": "official", "cite": "2013-NMCA-093" } ], "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": "478 F.2d 1019", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2270189 ], "pin_cites": [ { "page": "1024" } ], "opinion_index": 0, "case_paths": [ "/f2d/478/1019-01" ] }, { "cite": "714 A.2d 351", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 503856 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nj-super/314/0173-01" ] }, { "cite": "658 F.2d 631", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 474438 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/658/0631-01" ] }, { "cite": "15 F.3d 119", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1527685 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "121", "parenthetical": "citing to United States v. Prieskorn, 658 F.2d 631 (8th Cir. 1981)" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/f3d/15/0119-01" ] }, { "cite": "801 F.2d 304", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10545433 ], "year": 1986, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/f2d/801/0304-01" ] }, { "cite": "648 F.2d 73", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1229855 ], "year": 1981, "pin_cites": [ { "page": "77", "parenthetical": "stating Wharton's Rule is, to some extent, a relic of the discredited merger doctrine and should be interpreted narrowly" } ], "opinion_index": 0, "case_paths": [ "/f2d/648/0073-01" ] }, { "cite": "102 N.M. 512", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580024 ], "weight": 9, "year": 1995, "pin_cites": [ { "page": "514", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "514", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0512-01" ] }, { "cite": "113 N.M. 780", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723308 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "784" }, { "page": "1150", "parenthetical": "finding fundamental error upon one or more of the following bases: \"there has been a miscarriage of justice;\" the question of the defendant's guilt \"is so doubtful that it would shock the conscience\" to allow his conviction to stand; or \"substantial justice has not been done\"" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0780-01" ] }, { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "120 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558835 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nm/120/0740-01" ] }, { "cite": "95 N.M. 755", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575545 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "766" }, { "page": "303" }, { "page": "766" }, { "page": "303" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0755-01" ] }, { "cite": "420 U.S. 770", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11644635 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "782" }, { "page": "782" }, { "page": "775, 782, 787" }, { "page": "785-86" } ], "opinion_index": 0, "case_paths": [ "/us/420/0770-01" ] }, { "cite": "1999-NMCA-004", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827408 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0559-01" ] }, { "cite": "109 N.M. 679", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590308 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "680" }, { "page": "628" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0679-01" ] }, { "cite": "96 N.M. 658", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577307 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "661" }, { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0658-01" ] }, { "cite": "2008-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4003763 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0192-01" ] }, { "cite": "675 P.2d 1236", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "pin_cites": [ { "page": "1240", "parenthetical": "\"Because there was no evidence to suppress, there can be no error.\"" } ], "opinion_index": 0 }, { "cite": "854 N.Y.S.2d 885", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 3546402 ], "year": 2008, "pin_cites": [ { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/misc3d/19/0840-01" ] }, { "cite": "108 P.3d 304", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 12258485 ], "year": 2005, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/haw/107/0001-01" ] }, { "cite": "500 F. Supp. 2d 661", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3531096 ], "year": 2006, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/500/0661-01" ] }, { "cite": "597 F.3d 540", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4221317 ], "year": 2010, "pin_cites": [ { "parenthetical": "ruling that \"because no evidence was seized at this location, this point is moot\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/597/0540-01" ] }, { "cite": "82 N.M. 360", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328348 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "365", "parenthetical": "\"Harmless error in the exclusion of evidence cannot be the basis for a new trial.\"" }, { "page": "68", "parenthetical": "\"Harmless error in the exclusion of evidence cannot be the basis for a new trial.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0360-01" ] }, { "cite": "273 P.3d 867", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187826 ], "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0491-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "2008-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783559 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0631-01" ] }, { "cite": "283 P.3d 288", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189242 ], "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0302-01" ] }, { "cite": "2011-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250829 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0074-01" ] }, { "cite": "1990-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0 }, { "cite": "394 U.S. 165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169225 ], "year": 1969, "pin_cites": [ { "page": "174", "parenthetical": "plurality opinion" } ], "opinion_index": 0, "case_paths": [ "/us/394/0165-01" ] }, { "cite": "1999-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257596 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0721-01" ] }, { "cite": "508 U.S. 77", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11784 ], "year": 1993, "pin_cites": [ { "page": "81", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/508/0077-01" ] }, { "cite": "111 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715077 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "119", "parenthetical": "\"An individual aggrieved by an illegal search only through the introduction of evidence secured by a search of a third person's premises or property has not suffered an infringement of his [Fjourth [A]mendment rights.\"" }, { "page": "24", "parenthetical": "\"An individual aggrieved by an illegal search only through the introduction of evidence secured by a search of a third person's premises or property has not suffered an infringement of his [Fjourth [A]mendment rights.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0118-01" ] }, { "cite": "439 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11329017 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/us/439/0128-01" ] }, { "cite": "1997-NMCA-023", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142168 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0159-01" ] }, { "cite": "279 P.3d 772", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-058", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187747 ], "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0777-01" ] }, { "cite": "119 N.M. 180", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561212 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "183" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0180-01" ] }, { "cite": "2001-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183093 ], "weight": 3, "pin_cites": [ { "page": "\u00b66" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0299-01" ] }, { "cite": "2005-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548894 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 7" }, { "page": "\u00b6 10, n.1" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0408-01" ] }, { "cite": "2009-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243835 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0032-01" ] } ], "analysis": { "cardinality": 1340, "char_count": 32082, "ocr_confidence": 0.836, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3335061233299702 }, "sha256": "e45d714765d94aa78556725e4c51e11031b3e03846a91adff8c11c9139f2eddb", "simhash": "1:f52fa542abaa31cb", "word_count": 5265 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "WE CONCUR:", "RODERICK T. KENNEDY, Chief Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. DONNIE SILVAS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\nDefendant appeals his convictions for trafficking by possession with intent to distribute methamphetamine and for conspiracy to commit trafficking, the result of a surveillance of his residence during a drug investigation in Lordsburg, New Mexico. Defendant argues that evidence should have been suppressed because it was seized through a pretextual stop of a car in which his co-conspirator was a passenger, and through a warrantless search of his motel room. He also appeals the denial of a motion for a new trial and asserts that his conspiracy conviction should be reversed. We affirm in part and reverse in part.\nBACKGROUND\nWe briefly set out the facts of the case and a time line of events to assist in our analysis below. On March 14,2008, as part of a narcotics task force operation in Hidalgo County, New Mexico, local officers and agents were monitoring suspected drag activity at the American Motor Inn in Lordsburg. Suspecting a drug deal had taken place in the hotel room of Defendant, and under operational orders to stop every car emerging from the hotel, authorities followed Patricia Ortega as she left the hotel parking lot as a passenger in a white car. Lordsburg Police Sergeant Plowman, assisting in the investigation, looked for probable cause to pull the car over, eventually making a traffic stop for failure to use a turn signal. Ortega and her daughter, also a passenger, got out of the car and went to her motel room at the nearby Budget Motel. The driver of the car was issued a warning, and no evidence was seized from his car. However, Sergeant Plowman remained in contact with Ortega as authorities sought to obtain a search warrant for her motel room. Before the search warrant was obtained, Ortega emerged from her room with 1.7 grams of methamphetamine and told police that she had bought it earlier in the day from Defendant in his room at the American Motor Inn.\nLater that day, again while waiting for a warrant but before one was issued, law enforcement agents forced their way into Defendant\u2019s hotel room while he was gone. No evidence was seized during the search of the hotel room. Defendant was arrested three days later and charged with trafficking a controlled substance and with conspiracy in connection with the March 14 sale of narcotics to Ortega.\nAfter a two-day jury trial, Defendant was convicted on both counts. He brought this appeal.\nDISCUSSION\nDefendant raises four issues on appeal: (1) he contends that a pretextual stop of the car in which Ortega was a passenger produced evidence that should have been suppressed; (2) he argues for another order of suppression because of a warrantless search of his hotel room; (3) he challenges the district court\u2019s denial of a motion for a new trial based on the State\u2019s failure to disclose an audio recording of Defendant\u2019s post-arrest interview with police; and (4) he contends that Wharton\u2019s Rule bars a conspiracy conviction under this set of circumstances. We address each issue in order.\nI. Pretextual Stop\nDefendant first argues that the traffic stop of the car in which Ortega was a passenger was pretextual and that any evidence recovered in connection with that traffic stop should be suppressed. See N.M. Const, art. II, \u00a710 (\u201cThe people shall be secure in their persons, papers, homes[,] and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without ... a written showing of probable cause[.]\u201d); State v. Ochoa, 2009-NMCA-002, \u00b6 25, 146 N.M. 32, 206 P.3d 143 (defining a pretextual stop as \u201ca detention supportable by reasonable suspicion or probable cause to believe that a traffic offense has occurred, but [also] is executed as a pretense to pursue a \u2018hunch,\u2019 a different more serious investigative agenda for which there is no reasonable suspicion or probable cause\u201d). Defendant contends that Sergeant Plowman was under orders to assist in the investigation of Defendant\u2019s alleged drug operation by stopping the drivers of cars seen coming out of the American Motor Inn parking lot and committing a traffic violation. The State counters by challenging Defendant\u2019s standing to contest the constitutionality of a traffic stop at which he was not present. The State also asserts that even if Defendant was able to establish standing, evidence supports the district court\u2019s finding that the traffic stop was constitutionally sound.\nDefendant filed a motion to suppress all physical evidence and statements obtained as a result of the pretextual stop, citing both the New Mexico Constitution and the Fourth Amendment of the United States Constitution. The district court denied the motion to suppress, concluding that the stop was not pretextual.\nA. Standard of Review\n\u201cA district court\u2019s denial of a motion to suppress will not be reversed if it is supported by substantial evidence, the only exception being if the ruling was incorrectly applied to the facts.\u201d State v. Van Dang, 2005-NMSC-033, \u00b6 6, 138 N.M. 408, 120 P.3d 830. The district court\u2019s findings of fact are reviewed for substantial evidence, and the court\u2019s application of the law to those facts is reviewed de novo. State v. Soto, 2001-NMCA-098, \u00b66, 131 N.M. 299, 35 P.3d 304.\nB. Standing\nW e first address the threshold issue raised by the State: whether Defendant has standing to ask the court to suppress evidence related to a pretextual stop of a car in which he was not riding and did not have a possessory interest. \u201cStanding is ... a substantive doctrine that identifies those who may assert rights against unlawful searches and seizures.\u201d State v. Porras-Fuerte, 119 N.M. 180, 183, 889 P.2d 215, 218 (Ct. App. 1994). Whether a party has standing to bring forth a claim is a question of law that we review de novo. Nass-Romero v. Visa U.S.A. Inc., 2012-NMCA-058, \u00b6 6, 279 P.3d 772.\nWe have previously stated that \u201cstanding is a fact-based issue on which [a defendant must be given the opportunity to present evidence to the [district] court.\u201d State v. Leyba, 1997-NMCA-023, \u00b6 6, 123 N.M. 159, 935 P.2d 1171. At the district court\u2019s first hearing on Defendant\u2019s motion to suppress evidence, the State asserted that Defendant lacked standing to contest the seizure of evidence from Ortega after the stop of the car in which she had been a passenger. The district court found that Defendant had standing to contest the pretextual stop because there was a \u201cnexus\u201d between the stop of the car in which Ortega was a passenger and the arrest of Defendant.\nIn order to establish standing, a defendant \u201cmust demonstrate that he had a subjective expectation of privacy that society will recognize as reasonable.\u201d Van Dang, 2005-NMSC-033, \u00b6 7. \u201cGenerally, one who owns, controls, or lawfully possesses property has a legitimate expectation of privacy.\u201d Id. (\u201c[Hjolding that where occupants of a car asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized, they were not entitled to suppression of seized items in their subsequent robbery prosecution.\u201d (citing Rakas v. Illinois, 439 U.S. 128, 148 (1978)). Generally, defendants, when asserting their constitutional rights against searches and seizures, cannot do so vicariously through others. State v. Munoz, 111 N.M. 118, 119, 802 P.2d 23, 24 (Ct. App. 1990) (\u201cAn individual aggrieved by an illegal search only through the introduction of evidence secured by a search of a third person\u2019s premises or property has not suffered an infringement of his [Fjourth [A]mendment rights.\u201d); United States v. Padilla, 508 U.S. 77, 81 (1993) (per curiam) (\u201cIt has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure.\u201d); Rakas, 439 U.S. at 13 4 (\u201cA p erson who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person\u2019s premises or property has not had any of his Fourth Amendment rights infringed.\u201d). In Van Dang, our Supreme Court held that even the driver of a rental car did not have standing to challenge a search of the car when that person was neither the one who rented the car nor listed as an authorized driver. 2005-NMSC-033, \u00b6 10, n.1.\nWe have previously stated that a passenger in a car cannot assert the Fourth Amendment rights of the driver of the car to be free from unreasonable searches and seizures. State v. Chapman, 1999-NMCA-106, \u00b6 26, 127 N.M. 721, 986 P.2d 1122 (\u201cEven if the driver could raise an invasion of her own Fourth Amendment rights because of a possessory interest in the car, an issue that we do not address or decide, that right may not be vicariously asserted by [the djefendant.\u201d). In Chapman, this Court referenced Alderman v. United States, 394 U.S. 165, 174 (1969) (plurality opinion) as recognition for the principle that \u201cFourth Amendment rights are personal rights which . . . may not be vicariously asserted.\u201d 1990-NMCA-106, \u00b6 26. The Chapman Court refused to review the merits of that defendant\u2019s argument. Id.\nDefendant urges us to analyze the issue of standing to contest a pretextual stop under the New Mexico Constitution. He argues that Article II, Section 10 of the New Mexico Constitution provides broader protections than does the Fourth Amendment of the United States Constitution, therefore, it provides a broader basis for us to find he has standing. We note that our Supreme Court has made reference to the fact that the Court has not yet analyzed the subject of pretextual stops under our state Constitution. State v. Gonzales, 2011-NMSC-012, \u00b6 19, 150 N.M. 74, 257 P.3d 894 (Bosson, J., concurring). Our Supreme Court was recently faced with the argument that \u201can arrest was unconstitutional because the stop was pretextual at its inception and therefore unconstitutional under Article II, Section 10 of the New Mexico Constitution citing . . . Ochoa[.]\u201d Schuster v. N.M. Dep\u2019t of Taxation and Revenue, 2012-NMSC-025, \u00b6 32, 283 P.3d 288. The Court did not address the constitutional argument but instead applied the Ochoa test. We decline to undertake such an analysis here.\nIn the case before us, Defendant was not a passenger in the car that was stopped; in fact, he was not present at the scene and played no role in the supposed pretextual stop and subsequent seizure of evidence from Ortega, who had already left the scene of the traffic stop. Defendant had no possessory interest in the car. Even the evidence seized from Ortega had a tenuous connection to the stop of the car. Ortega had returned to her own motel room. She voluntarily emerged with the methamphetamine, which she voluntarily handed over to the police without the need to conduct a search. She also voluntarily provided unsolicited details about the purchase of the drugs. See State v. Soto, 2008-NMCA-032, \u00b6 25, 143 N.M. 631, 179 P.3d 1239 (\u201cWhere the acquisition of evidence is sufficiently removed from the unlawful police conduct, the deterrent value of excluding it is diminished.\u201d (internal quotation marks and citation omitted)).\nAt the suppression hearing, the district court ruled that Defendant had standing and that the stop of the car Ortega was riding in was not pretextual. We will affirm a ruling of a district court if it is right for any reason. See Meiboom v. Watson, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154 (\u201cThis Court may affirm a district court ruling on a ground not relied upon by the district court, [but] will not do so if reliance on the new ground would be unfair to appellant.\u201d (alteration in original) (internal quotation marks and citation omitted)).\nDefendant\u2019s challenge to the pretextual stop of the car amounts to a vicarious assertion of the Fourth Amendment rights of others and his motion challenges the stop to the extent that it led to the seizure of evidence. Consistent with Chapman, we conclude that Defendant does not have standing to argue a motion to suppress evidence that may have resulted from the pretextual stop of a car in which he neither was a driver, a passenger, nor did he have a possessory interest in the car. 1999-NMCA-106, \u00b6 26. Therefore, it was not error for the district court to deny the motion to suppress evidence that may have resulted from the pretextual stop alleged by Defendant.\nII. Warrantless Search\nDefendant next argues that a warrantless search of his hotel room was improper and that the district court should have granted his motion to suppress evidence. He acknowledges that no evidence was obtained from the hotel room but he contends that the infringement on his constitutional right to be free from unreasonable searches and seizures was \u201cso egregious\u201d that \u201csome form of remedy\u201d should be crafted, such as \u201cthe suppression of all evidence obtained through the entire unconstitutional investigation in this matter.\u201d We employ the same standard of review articulated above to analyze this second suppression issue.\nThe district court took note of the State\u2019s argument that the pretrial motion to suppress was the subject of eight hours of hearings, and Defendant failed to raise the issue of the hotel room search during that time. The court then observed that the motion to suppress late in the proceedings appeared to be moot, stating that it:\nhas to consider that the defense is asking for suppression of physical evidence. There was no physical evidence obtained in that particular search. The physical evidence had been obtained prior to that. That has been discussed and argued substantially prior to the beginning of trial today.\nThe [c]ourt finds thatthe motion to suppress filed at this late date . . . still would not produce anything such that it would justify a granting of that motion; therefore, the [cjourt will deny the motion to suppress.\nA reviewing court will not find reversible error unless that error results in prejudice to the defendant. Kysar v. BP Am. Prod. Co., 2012-NMCA-036, \u00b6 21, 273 P.3d 867 (\u201c[Ejven if a district court makes an erroneous evidentiary ruling, it does not constitute reversible error unless it results in prejudice.\u201d); Rule 11-103(A) NMRA (\u201cA party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party}.]\u201d); City of Albuquerque v. Ackerman, 82 N.M. 360, 365, 482 P.2d 63, 68 (1971) (\u201cHarmless error in the exclusion of evidence cannot be the basis for a new trial.\u201d). Courts in other jurisdictions have held that a motion to suppress evidence is moot when there is no evidence seized. United States v. Stearn, 597 F.3d 540, 545 n.3 (3d Cir. 2010) (ruling that \u201cbecause no evidence was seized at this location, this point is moot\u201d); United States v. Fernandez, 500 F. Supp. 2d 661, 667 (W.D. Tex. 2006); State v. Keawe, 108 P.3d 304, 310 (Haw. 2005); People v. Finch, 854 N.Y.S.2d 885, 890 (2008); State v. Sweet, 675 P.2d 1236, 1240 (Wash. Ct. App. 1984) (\u201cBecause there was no evidence to suppress, there can be no error.\u201d).\nIn the case before us, no evidence was seized after the officers\u2019 unwarranted entry into Defendant\u2019s hotel room. Thus, no prejudice was suffered by Defendant. Therefore, the district court did not err in denying the motion to suppress evidence pertaining to the hotel room search.\nIII. Failure to Disclose Recording\nAfter his conviction, Defendant moved for a new trial, claiming that he was prejudiced by the State\u2019s failure to produce the police-taped recording of Defendant\u2019s interview while in custody. An audio recording of part of the interview turned up after trial and was provided to defense counsel. Defendant filed his motion for a new trial on September 30, 2010. The State filed its response on October 15, 2010. Three days later, the district court entered its judgment and sentence. Defendant filed his notice of appeal on November 17, 2010. We were unable to find an order entered by the district court denying Defendant\u2019s motion for new trial in the court record. However, common sense would dictate that the court\u2019s entry of the judgment and sentence indirectly denies the motion.\nWe will not reverse a district court\u2019s denial of a motion for a new trial absent a manifest abuse of discretion. State v. Moreland, 2008-NMSC-031, \u00b6 9, 144 N.M. 192, 185 P.3d 363. \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.\u201d Id. (internal quotation marks and citation omitted).\nOur courts have adopted a three-part test to determine whether the loss of evidence by the State that leads to a deprivation is considered reversible error. State v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981). A court must address whether \u201c[(]1) [t]he [s]tate either breached some duty or intentionally deprived the defendant of evidence; [(]2) [t]he improperly \u2018suppressed\u2019 evidence must have been material; and [(]3) [t]he suppression of this evidence prejudiced the defendant.\u201d Id. The purpose of the test \u201cis to assure that the [district] court will come to a determination that will serve the ends of justice.\u201d Id. Factors to consider in applying the test \u201cinclude the presence of negligence or bad faith on the part of the state, the importance of the evidence to the defendant\u2019s case, and the amount of other evidence of guilt adduced at trial.\u201d State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct. App. 1990).\nIn the case before us, we focus on the first and third Chouinard factors. The State asserts that Defendant was alerted to the existence of a recorded interview by police two years before trial; that the State repeatedly tried to obtain the recorded statement before trial; that it was believed that the statement had been recorded over and lost; and that the recording had been misplaced by law enforcement officers but was found after the trial ended. There was no evidence presented of bad faith on the part of the State.\nIf D efendant cannot show that he was prejudiced by the misplacement of the recording, then his argument fails. To show prejudice, Defendant must establish that he was unable to receive a fair trial without the missing evidence. State v. Sanchez, 1999-NMCA-004, \u00b6 8, 126 N.M. 559, 972 P.2d 1150.\nTo establish . . . whether a defendant will be able to receive a fair trial in the face of lost evidence . . . , a court must. . . weigh the lost evidence against the remaining evidence available to the defendant, including his or her ability to cross-examine witnesses and to use the loss of the evidence in preparing a defense.\nId.\\ 9.\nAn officer present at the interview, Agent De La Garza, testified as a witness at trial and was cross-examined by Defendant\u2019s counsel, including specific questions about the missing recording and the notes taken by him and a fellow officer. The ability to cross-examine an officer who conducted the interview and recording satisfies one factor from Sanchez in assessing whether Defendant had the opportunity to receive a fair trial in the face of lost evidence.\nDefendant argues that he could have used the recording at trial to draw out additional evidence and to try to undermine Agent De La Garza\u2019s account of the interview. At trial, the State submitted as evidence the notes of two officers who were present at the interview with Defendant. According to those notes, Defendant, after signing a waiver of his Miranda rights, confessed to selling methamphetamine out of his room at the American Motor Inn, including to Ortega; named the sources of the drugs he obtained; and provided details of his weekly income from selling drugs. On the recording, which is of poor quality and captures only a seven-minute portion of the interview, Defendant is heard telling the officers that he sold about one ounce of methamphetamine per week to bring in about $1,800 in order to finance his expenses living at the hotel and that one of his sources for drugs was a man named Robert Munoz. When he testified at trial, Defendant denied selling drugs or knowing Munoz. The recording, had it been available at trial, would have supported the notes and testimony of the officers and would have undercut the claims of Defendant. The absence of the recording may have benefitted Defendant because it was not available to question or to impeach his testimony.\nApplying Chouinard, we conclude that Defendant has not established that he was prejudiced by the discovery and disclosure of a portion of his recorded statement with law enforcement officers after the trial had concluded. Therefore, it was not an abuse of discretion for the district court to deny his motion for a new trial based on the late disclosure of the recording.\nIV. Conspiracy Conviction and Wharton\u2019s Rule\nFinally, Defendant asserts that Wharton\u2019s Rule precludes a charge of conspiracy in this case because the underlying charge of trafficking \u2014 involving an exchange of drugs between Defendant and Ortega \u2014 is confined to only those two participants and constitutes the same conduct as that underlying the conspiracy. The State contends that Defendant failed to preserve this issue and that we should review such an unpreserved issue for fundamental error. Defendant contends that Wharton\u2019s Rule is a matter of statutory interpretation that involves questions of double jeopardy and double jeopardy can be raised at any time. Our United States Supreme Court has specifically held that \u201cWharton\u2019s Rule does not rest on principles of double jeopardy[.]\u201d Iannelli v. United States, 420 U.S. 770, 782 (1975). \u201c[Wharton\u2019s Rule] has current vitality only as a judicial presumption [of merger],... in the absence of legislative intent to the contrary.\u201d State v. Carr, 95 N.M. 755, 766, 626 P.2d 292, 303 (Ct. App. 1981), overruled on other grounds as recognized by State v. Olguin, 120 N.M. 740, 906 P.2d 731 (1995).\nBecause this issue was not properly raised below and is raised for the first time on appeal, it will be reviewed for fundamental error. State v. Cunningham, 2000-NMSC-009, \u00b6 8, 128 N.M. 711, 998 P.2d 176. The doctrine of fundamental error exists only \u201cfor the protection of those whose innocence appears indisputable], or open to such question that it would shock the conscience to permit the conviction to stand.\u201d Cunningham, 2000-NMSC-009, \u00b6 13 (internal quotation marks and citation omitted); see also State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992) (finding fundamental error upon one or more of the following bases: \u201cthere has been a miscarriage of justice;\u201d the question of the defendant\u2019s guilt \u201cis so doubtful that it would shock the conscience\u201d to allow his conviction to stand; or \u201csubstantial justice has not been done\u201d). We will reverse for fundamental error when the foundation or basis of a defendant\u2019s case or an essential right in a defense is affected. Id. \u00b6 13.\nWharton\u2019s Rule states that \u201can agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the particular crime is of such a nature as to necessarily require the participation of two persons for its commission.\u201d State v. Smith, 102 N.M. 512, 514, 697 P.2d 512, 514 (Ct. App. 1995) (internal quotation marks and citation omitted). By raising Wharton\u2019s Rule, the issue before us is whether the crime of trafficking by possession with intent to distribute methamphetamine and conspiracy to commit trafficking become one crime.\n\u201cThe classic Wharton\u2019s Rule offenses-adultery, incest, bigamy, [dueling]are crimes that are characterized by the general congruence of the agreement and the completed substantive offense.\u201d Iannelli, 420 U.S. at 782. In these instances, \u201c[t]he parties to the agreement are the only persons who participate in [the] commission of the substantive offensef.]\u201d Id. Wharton\u2019s Rule applies:\n(1) when the parties to the agreement are the only persons who participate in the offense and the immediate consequences of the crime rest only on themselves; and (2) when the agreement that attends the substantive offense does not appear likely to pose the sort of threat to society that the law of conspiracy was designed to avert.\nSmith, 102 N.M. at 514, 697 P.2d at 514. \u201cThe most important factor ... is that concerted action must be logically necessary to the substantive offense. This is similar to saying that conspiracy and the substantive offense are the same crime[.]\u201d Id.\nThere are only two cases in New Mexico that have addressed Wharton\u2019s Rule, Carr and Smith. In Carr, this Court upheld the conspiracy conviction of a defendant who wrote a prescription that was used to pass a controlled substance on to other purchasers. 95 N.M. at 766, 626 P.2d at 303. In Carr, we stated:\nThe harm involved in the substantive offense [of] trafficking in controlled substances ... is not restricted to the parties to the agreement. The parties to the agreement to traffic are usually not the only persons who participate in commission of the substantive offense: the controlled substances are passed on, as happened here, to other purchasers. The agreement that attends the substantive offense does seem to pose those threats to society that the law of conspiracy seeks to avert. An agreement to commit trafficking may very well produce agreements to engage in a more general pattern of criminal conduct as the controlled substances are diverted from their legitimate medical uses.\nId. (emphasis added).\nThe Carr court found that because of the difference between the parties\u2019 agreement to traffic, where the parties were not the only persons who participated in the commission of the substantive offense and traditional Wharton\u2019s Rule offenses, it declined to give any significant weight to the Rule\u2019s presumption.\nIn Smith, the defendant was convicted of harboring a felon and conspiracy to harbor a felon. This Court found that the two crimes did not merge under the facts of the case because the immediate consequences of harboring a felon rests on society, and the harboring of the felon would be more successful if the felon knew someone was helping, thus, the danger to society is increased. Smith, 102 N.M. at 514, 697 P.2d at 514. The Smith court agreed that a narrow interpretation of Wharton\u2019s Rule was required. Id. at 515, 697 P.2d at 515; see United States v. Previte, 648 F.2d 73, 77 (1st Cir. 1981) (stating Wharton\u2019s Rule is, to some extent, a relic of the discredited merger doctrine and should be interpreted narrowly).\nThe federal courts have had more opportunity to address this issue. In lannelli, 420 U.S. 770, the United States Supreme Court carefully analyzed the Rule\u2019s justification and its proper role in federal law. lannelli involved the violation of a federal gambling statute. This statute made it a crime for five or more persons to be involved in a gambling business prohibited by state law. The Supreme Court revisited the history of Wharton\u2019s Rule which was captured in Wharton\u2019s Treatises; its relationship, if any, with double jeopardy; third party exceptions; and legislative intent. Id. at 775, 782, 787. Iannelli explained that the Rule is essentially an aid for purposes of determining legislative intent. The Supreme Court found that if Congress intended to prevent the possibility of prosecuting conspiracy offenses by merging them into the specific gambling statute, it would have explicitly said so. It did not, therefore, Congress intended each offense to be independent of the other.\nThe Eighth Circuit Court of Appeals has held that when more than two persons were involved in a conspiracy to distribute drugs, Wharton\u2019s Rule does not apply. United States v. Jones, 801 F.2d 304, 311 (8th Cir. 1986). On the other hand, the Eighth Circuit Court of Appeals has also held Wharton\u2019s Rule does apply when a \u201cmere sales agreement with respect to contraband does not constitute a conspiracy; there must be some understanding \u2018beyond\u2019 that before the evidence can support a conviction for conspiracy.\u201d United States v. West, 15 F.3d 119, 121 (8th Cir. 1994) (citing to United States v. Prieskorn, 658 F.2d 631 (8th Cir. 1981)). This principle has been applied in State v. Roldan, 714 A.2d 351, 356 (N.J. Super. Law Div. 1998), which held that \u201c[a] simple agreement to buy drugs is insufficient to establish a conspiracy between the seller and the buyer.\u201d The Roldan court further stated the concerted criminal activity must go \u201cbeyond the kind of simple agreement inevitably incident to the sale of contraband!)]\u201d Id.\nThe case at hand is distinguishable from Carr as there were not multiple purchasers involved, only Ortega. The charge of trafficking with intent to distribute methamphetamine required the participation of the same two people, Defendant and Ortega, who were also involved in any alleged conspiracy to sell the same drugs. Defendant, a single seller, and Ortega, a single buyer, engaging in a single drug transaction. They were the only parties that participated in this particular transfer of two plastic-wrapped packages of methamphetamine. This simple agreement to buy drugs is insufficient to also establish a separate conspiracy between the seller and the buyer. See West, 15 F.3d at 121; see also United States v. Hunter, 478 F.2d 1019, 1024 (7th Cir.) (1973) (stating that the required participation of the same two persons of a conspiracy is analogous to an individual attempt to commit an individual offense).\nUnless the Legislature explicitly states otherwise, Wharton\u2019s Rule supports the presumption that the Legislature did not intend separate punishments for the conspiracy and the completed substantive crime. Iannelli, 420 U.S. at 785-86. After a careful reading of NMSA 1978, Sections 30-28-2 (1979) and 30-31-20 (2006), we are unable to find any indication that the New Mexico Legislature stated a different intention.\nThe agreement between Defendant and Ortega to sell and purchase the methamphetamine was logically necessary for the transferring of the methamphetamine from one to another. Additionally, the immediate consequences of the crime rested only on Ortega, who received a twenty-seven-year sentence, and Defendant, who was convicted of not only the trafficking but the conspiracy as well. Their limited agreement between themselves does not appear likely to pose the sort of threat to society that the law of conspiracy was designed to avert.\nOur Legislature has not explicitly stated that there should be separate punishments for the conspiracy to commit trafficking and the completed charge of trafficking, where Defendant\u2019s and Ortega\u2019s concerted actions were necessary for the completion of the trafficking offense. Wharton\u2019s Rule precludes Defendant\u2019s charge of conspiracy. Substantial justice has not been done where Defendant has been convicted and sentenced for trafficking by possession with intent to distribute methamphetamine (eighteen years, two years parole) and for conspiracy to commit trafficking (nine years, two years parole) when the two charges, in this case, have merged. It is therefore fundamental error to impose a conspiracy conviction as well.\nCONCLUSION\nFor the foregoing reasons, we affirm Defendant\u2019s conviction for trafficking, reverse his conviction for conspiracy, and remand to the district court to dismiss Defendant\u2019s conspiracy conviction and corresponding sentence.\nIT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Chief Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "ZAMORA, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM for Appellee", "Bennett J. Baur, Acting ChiefPublic Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, September 20, 2013,\nNo. 34,271\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-093\nFiling Date: July 10, 2013\nDocket No. 30,917\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DONNIE SILVAS, Defendant-Appellant.\nGary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM for Appellee\nBennett J. Baur, Acting ChiefPublic Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0730-01", "first_page_order": 746, "last_page_order": 757 }