{ "id": 4078333, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. PAUL CASARES, Defendant-Appellant", "name_abbreviation": "State v. Casares", "decision_date": "2014-01-02", "docket_number": "No. 34,440; Docket No. 31,808", "first_page": "455", "last_page": "461", "citations": [ { "type": "official", "cite": "2014-NMCA-024" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "32 A.L.R. 4th 378", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1984, "opinion_index": 0 }, { "cite": "621 N.Y.S.2d 247", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 1193645 ], "year": 1994, "pin_cites": [ { "page": "247", "parenthetical": "concluding that \"noncompliance with the Rehabilitation Act of 1973 ... or 45 Federal Register 37630 does not, by itself, warrant suppression\"" } ], "opinion_index": 0, "case_paths": [ "/ad2d/210/0980-01" ] }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "1984-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "year": 1994, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "45 Fed. Reg. 37620", "category": "reporters:federal", "reporter": "Fed. Reg.", "weight": 2, "year": 1980, "pin_cites": [ { "page": "37630", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "28 C.F.R. \u00a7\u00a7 42.501", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 794", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2006, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "378 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164855 ], "year": 1964, "pin_cites": [ { "page": "6", "parenthetical": "holding that \"the Fifth Amendment's exception from compulsory self-incrimination\" applies to the states through the Fourteenth Amendment" } ], "opinion_index": 0, "case_paths": [ "/us/378/0001-01" ] }, { "cite": "2000-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217141 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0296-01" ] }, { "cite": "173 F.3d 1258", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11629615 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "1269" } ], "opinion_index": 0, "case_paths": [ "/f3d/173/1258-01" ] }, { "cite": "2000-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217185 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 40" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0448-01" ] }, { "cite": "303 P.3d 838", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334680 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0342-01" ] }, { "cite": "2011-NMCA-063", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4251047 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 16" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0049-01" ] }, { "cite": "403 U.S. 443", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027286 ], "year": 1971, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/us/403/0443-01" ] }, { "cite": "107 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597252 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0503-01" ] }, { "cite": "1988-NMCA-058", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "1997-NMCA-023", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142168 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0159-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "467" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 863, "char_count": 17676, "ocr_confidence": 0.763, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.31468243901478427 }, "sha256": "c18b40fd0f9fc9ce4fccdebd710e8ad683e9860dfedf14ebb9830acef991881b", "simhash": "1:5963710b63218355", "word_count": 2791 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL E. VIGIL, Judge", "JONATHAN B. SUTIN, Judge", "CYNTHIA A. FRY, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. PAUL CASARES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{1} Defendant appeals from two orders of the district court denying his motions to suppress. First, Defendant contends that all evidence seized from his home pursuant to a search warrant must be suppressed because the warrant failed to sufficiently specify the items to be searched in that two of the items are described as \u201cfingerprints\u201d and \u201cphotography of the . . . evidence.\u201d Secondly, Defendant asserts that incriminatory statements made by him in a custodial interrogation must be suppressed because he is hearing impaired and was not informed that he was entitled to a sign language interpreter as required by federal law. In the circumstances of this case, we reject both arguments and affirm the district court.\nI.BACKGROUND\n{2} Detective Timothy Argo of the Artesia Police Department was informed that in the early morning hours of August 17, 2010, a shooting occurred outside Victim\u2019s residence. Victim had moved into the residence to live with her friend after experiencing physical and verbal abuse from Defendant, who is her infant son\u2019s father. Victim continued to have trouble with Defendant and argued with him regarding their son over the course of several telephone conversations the night before and in the early morning hours of the shooting. Around 3:00 a.m., just before the shooting, Defendant asked Victim to bring their son to his house. When she refused, he told her he was coming over, and she heard him say, \u201cWhere\u2019s my gun, where\u2019s my gun?\u201d Knowing that this meant she and her son were in danger, she gathered the child and took him to the back of the house for protection. A short time later, she heard a vehicle that sounded like Defendant\u2019s truck pull up and stop in front of the residence, followed by two gunshots. Defendant then called Victim several times, but she refused to answer. About a half hour after the shooting, Victim accepted Defendant\u2019s phone call, and he asked if she heard anything. When she responded that she had, he asked her, \u201c[H]ow many?\u201d She told him \u201c[T]wo.\u201d\n{3} Detective Argo checked Victim\u2019s call log and confirmed nine missed and fifteen incoming phone calls from Defendant the evening before and the morning of the shooting. He also recovered a bullet from a vehicle parked in front of Victim\u2019s residence.\n{4} Based on this evidence, Detective Argo obtained a search warrant to search Defendant\u2019s residence. The warrant authorized officers to search the residence for the following nine items:\n1. Firearms to include but not limited to handguns.\n2. Firearm accessories to include but not limited to magazines, clips, holsters, boxes and owner\u2019s manuals.\n3. Ammunition\n4. Spent casings\n5. Projectiles\n6. Any item that would identify the occupant(s) of the residence to include but not limited to Driver\u2019s license, identification cards, credit cards, etc. \u2022\n7. Fingerprints\n8. Cellular telephone . . .\n9. Photography of the residence and evidence.\nPolice seized one black \u201csemi-auto\u201d pistol with magazine and four rounds of ammo, three rounds of live \u201cammo,\u201d and one Nokia flip phone with charger from Defendant\u2019s home pursuant to the warrant. They also took photographs of the home and the evidence that was seized. Importantly, no fingerprints were seized, nor were photographs taken of any evidence not listed in the warrant.\n{5} Following the search of Defendant\u2019s home, Detective Argo arrested him and took him to the police station for a custodial interrogation. Detective Argo read Defendant his Miranda rights. See Miranda v. Ariz., 384 U.S. 436 (1966). For reasons unclear in the record, Detective Argo asked Defendant if he had a problem hearing. When Defendant informed the detective that he is hearing impaired, Detective Argo asked Defendant to read his Miranda rights aloud. Defendant read the Miranda warning out loud, signed a waiver of his rights, and proceeded to make several incriminating statements, including that he was not \u201cthat stupid to shoot at the house,\u201d and only shot the vehicle in the driveway. Following the interrogation, Defendant was charged with willfully discharging a firearm at or from a motor vehicle in violation ofNMSA 1978, Section 30-3-8(B) (1993).\n{6} Defendant filed two motions to suppress evidence. In the first motion, Defendant asserted that the search warrant failed to satisfy the particularity requirement of the Fourth Amendment to the United States Constitution and therefore all of the evidence seized from his residence should be suppressed. In the second motion, Defendant argued that the Miranda warning he received prior to waiving his rights was legally insufficient because he was not informed of his right to an interpreter as a hearing-impaired individual.\n{7} The district court denied both motions to suppress, concluding that the search warrant satisfied the requirements of the Fourth Amendment and that Detective Argo had complied with Miranda. Defendant subsequently conditionally pled no contest, reserving his right to appeal the suppression issues.\nII. DISCUSSION\n{8} On appeal from a district court ruling on a motion to suppress, findings of fact are reviewed to determine if they are supported by substantial evidence and legal conclusions are reviewed de novo. State v. Leyba, 1997-NMCA-023, \u00b6 8, 123 N.M. 159, 935 P.2d 1171.\nA. Validity of the Search Warrant\n{9} Defendant argues that the warrant is overly broad because two of the nine items authorized in the warrant \u2014 \u201cfingerprints\u201d and \u201cphotography of the . . . evidence\u201d \u2014 fail to satisfy the particularity requirement of the Fourth Amendment. Specifically, he asserts that there is not sufficient language to limit the places to be searched for fingerprints or items to be photographed as evidence and that this lack of particularity permitted officers to rummage through all of his belongings. See U.S. Const, amend. IV (requiring that search warrants describe the place to be searched and the persons or things to be seized with particularity); State v. Jones, 1988-NMCA-058, \u00b6 5, 107 N.M. 503, 760 P.2d 796 (explaining that the particularity requirement \u201cis aimed at preventing \u2018general, exploratory rummaging in a person\u2019s belongings\u2019\u201d (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971))). As aresult, he argues that he was entitled to a blanket suppression of all the evidence seized from his home pursuant to the warrant.\n{10} Even if Defendant is correct that \u201cfingerprints\u201d and \u201cphotography of the . . . evidence\u201d lack the particularity required by the Fourth Amendment, he is not entitled to blanket suppression of all the evidence seized from his home pursuant to the warrant. In State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, rev'd on other grounds 2013-NMSC-025, 303 P.3d 838, we noted that the particularity requirement ofthe Fourth Amendment has two dimensions: a warrant must particularly and clearly identify what may be seized; and the scope of what may be seized is limited by the probable cause supporting the warrant. Gurule, 2011-NMCA-063, \u00b6 16. We considered what relief is appropriate when a search warrant fails to satisfy either particularity requirement and agreed that it is appropriate to \u201csuppress an individual item for lack of an adequate description, to prevent unconstrained police discretion, or for lack of probable cause with respect to any individual item.\u201d Id. (citation omitted).\n{11} In Gurule, there was no issue as to whether the warrant described a digital camera and other evidence to be seized with sufficient particularity. Id. \u00b6 17. However, we concluded that because the warrant failed to establish probable cause to support seizure of the digital camera, it was overly broad, and therefore the digital camera was properly suppressed. Id. \u00b6 23. Significant to the case before us here, we did not require blanket suppression of the remaining items seized under the warrant because there was no challenge that those items were deficient in the particularity required by the Fourth Amendment. On certiorari, our Supreme Court reversed our determination that the warrant failed to establish probable cause to support seizure of the digital camera. Gurule, 2013-NMSC-025, \u00b6 29. However, our determination that suppression of only the item for which particularity is lacking is required was undisturbed.\n{12} Moreover, our conclusion in Gurule is consistent with other New Mexico precedent, which generally requires only suppression of improperly obtained evidence. For example, in State v. Jacobs, 2000-NMSC-026, \u00b6 40, 129 N.M. 448, 10 P.3d 127, the defendant asserted that because the police exceeded the scope of the warrant by seizing evidence not specified in the warrant, blanket suppression of all the evidence seized was required. Our Supreme Court rejected this argument and agreed with the proposition that \u201c\u2018only the improperly seized evidence, not all of the evidence, must be suppressed, unless there was a flagrant disregard for the terms of the warrant.\u2019\u201d Id. \u00b6 41 (quoting United States v. Le, 173 F.3d 1258, 1269 (10th Cir. 1999)). In cases where there was a flagrant disregard for the terms of the warrant or when searches were predicated on subterfuge, blanket suppression of all the evidence might be warranted. Id. However, Defendant makes no such argument here. In State v. Patscheck, 2000-NMCA-062, \u00b6 12, 129 N.M. 296, 6 P.3d 498, the defendant likewise argued that suppression of all evidence seized under a search warrant must be suppressed because the executing officers seized items not specified in the warrant. Like the Supreme Court, we also relied on Le and concluded that \u201cblanket suppression of all the evidence seized . . . would not be appropriate\u201d because there was no showing that the officers flagrantly disregarded the terms of the search warrant. Patscheck, 2000-NMCA-062, \u00b6 14.\n{13} Applying the foregoing authorities, we conclude that Defendant is not entitled to blanket suppression of all the evidence seized from his home pursuant to the warrant. Moreover, nothing in the record indicates that police seized any fingerprints or made photographs of any evidence not otherwise listed in the warrant, and Defendant does not argue that police rummaged through his belongings or took photographs of other \u201cevidence.\u201d Thus, there is nothing to consider severing from the warrant and suppressing in this case. We therefore affirm the district court order denying Defendant\u2019s motion to suppress the evidence obtained from his home pursuant to the search warrant.\nB. Validity of the Miranda Warnings\n{14} Defendant next argues that the district court erred in denying his motion to suppress incriminating statements he gave in a custodial interrogation because he was given an inadequate Miranda warning. The Miranda requirements are well settled. Suspects must be adequately and effectively apprised of their rights before any questioning during a custodial interrogation in order to ensure that a suspect\u2019s Fifth Amendment right to be free from self-incrimination is protected. See Miranda, 384 U.S. at 467; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (holding that \u201cthe Fifth Amendment\u2019s exception from compulsory self-incrimination\u201d applies to the states through the Fourteenth Amendment). Prior to a custodial interrogation, a person must be informed of his right to remain silent, that any statement made can be used as evidence against him, and that he has a right to have an attorney present. Miranda, 384 U.S. at 444. Once a suspect has been informed of these rights, police may proceed with questioning if the suspect waives these rights as long as the waiver is knowing, intelligent, and voluntary. Id.\n{15} The parties agree that the statements Defendant seeks to suppress resulted from a custodial interrogation. It is also undisputed that prior to the interrogation, Detective Argo read Defendant his Miranda rights and that upon learning of Defendant\u2019s hearing impairment, he gave Defendant a written copy of the Miranda warnings, which Defendant read out loud. However, the warning did not notify Defendant that he had the right to an interpreter at no cost before proceeding. Defendant does not dispute that he was made aware of his right to remain silent, his right to an appointed or hired attorney, and that any statement that he made could be used as evidence against him as required by Miranda before he was interrogated. Defendant stipulated that he not only understood these rights, but also that he knowingly, intelligently, and voluntarily waived them.\n{16} Defendant argues that even though he \u201csubj ectively rtnderstood\u201d the written Miranda warnings, Miranda, as applied to him as a hearing-impaired person, required the additional warning that he was entitled to an interpreter. In support of this argument, Defendant points to the Rehabilitation Act of 1973, which provides that no otherwise qualified individual shall be subjected to discrimination based on a handicap \u201cunder any program or activity receiving Federal financial assistance.\u201d 29 U.S.C. \u00a7 794(a) (2006). Pursuant to the Rehabilitation Act, the Department of Justice issued regulations (28 C.F.R. \u00a7\u00a7 42.501 to -540), published in 45 Fed. Reg. 37620 (June 3, 1980). Appendix B of the regulations contains an analysis which states in part:\nLaw enforcement agencies should provide for the availability of qualified interpreters ... to assist the agencies when dealing with hearing-impaired persons. ... If a hearing-impaired person is arrested, the arresting officer\u2019s Miranda warning should be communicated to the arrestee on a printed form .... The form should also advise the arrestee that the law enforcement agency has an obligation under Federal law to offer an interpreter to the arrestee without cost and that the agency will defer interrogation pending the appearance of an interpreter.\n45 Fed. Reg. 37620, 37630 (June 3, 1980) (footnote omitted). Defendant argues that since he was not informed that he had the right to a free interpreter as therein set forth, his Miranda warning was incomplete. Defendant\u2019s argument fails for two reasons.\n{17} First, the Rehabilitation Act and regulations ensuring its compliance only apply to \u201cany program or activity receiving Federal financial assistance.\u201d See 29 U.S.C. \u00a7 794(a). Defendant asserts that the federal law applies to the Artesia Police Department without providing any evidentiary support that it is federally funded. In fact, Defendant was encouraged by the district court to supplement the record with relevant funding evidence, but failed to do so. Without evidence that, the Artesia Police Department receives federal funding, Defendant\u2019s argument fails.\n{18} Second, even if Defendant could successfully establish that the Artesia Police Department was legally required by federal law to advise him that he had the right to an interpreter, he offers no support for the proposition that the remedy is suppression of the incriminating statements. We will not consider an issue if no authority is cited in support of the issue, because absent cited authority to support an argument, we assume no such authority exists. In re Adoption of Doe, 1984-NMSC-024, \u00b6 2, 100 N.M. 764, 676 P.2d 1329. Moreover, we note that at least one jurisdiction that faced this same issue has held that noncompliance with the Act does not per se require suppression of the evidence. See People v. Gaylord, 621 N.Y.S.2d 247, 247 (N.Y. App. Div. 1994) (concluding that \u201cnoncompliance with the Rehabilitation Act of 1973 ... or 45 Federal Register 37630 does not, by itself, warrant suppression\u201d).\n{19} Because Defendant has failed to establish that the Artesia Police Department receives federal funding and is therefore subject to the Rehabilitation Act and its regulations, we decline to consider whether the Act required Defendant to be notified of the additional right to an interpreter in order for the Miranda warning to have been complete. Moreover, even if the federal law did apply to the Artesia Police Department, Defendant has provided no support for the proposition that the remedy for violating'this law automatically requires suppression of the incriminating statements. Defendant has not argued that due to a hearing impairment, Defendant did not understand or properly waive his Miranda rights. We therefore affirm the district court\u2019s denial of Defendant\u2019s motion to suppress the incriminating statements.\nIII. CONCLUSION\n{20} The district court is affirmed.\n{21} IT IS SO ORDERED.\nMICHAEL E. VIGIL, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nCYNTHIA A. FRY, Judge\nOur jurisprudence therefore seems to be in line with what is described as the \u201cseverability doctrine\u201d that is followed in some iteration by most states. 2 Wayne R. LaFave et al., Search and Seizure: A Treatise on the Fourth Amendment \u00a7 4.6(f), at 814-18 (5th ed. 2012). However, we have not been asked to adopt, wholesale, this doctrine and its exceptions in this case. See also Martin J. McMahon, Annotation, Propriety in State Prosecution of Severance of Partially Valid Search Warrant and Limitation of Suppression to Items Seized Under Invalid Portions of Warrant, 32 A.L.R. 4th 378 (1984).", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee", "Bennett J. Baur, Acting ChiefPublic Defender Tania Shahani, Assistant Appellate Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, January 2, 2014,\nNo. 34,440\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-024\nFiling Date: November 19, 2013\nDocket No. 31,808\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. PAUL CASARES, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Jacqueline R. Medina, Assistant Attorney General Albuquerque, NM for Appellee\nBennett J. Baur, Acting ChiefPublic Defender Tania Shahani, Assistant Appellate Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0455-01", "first_page_order": 471, "last_page_order": 477 }