presumption against waiver in New Mexico

2012But Anderson, which analyzes consent under the Fourth Amendment, 12 1 makes it clear that the presumption against waiver actually does apply under federal 2 law: 3 The determination of voluntariness involves a three-tiered analysis: (1) 4 there must be clear and positive testimony that the consent was specific 5 and unequivocal; (2) the consent must be given without duress or 6 coercion; and (3) the first two factors are to be viewed in light of the 7 presumption that disfavors the waiver of constitutional rights. 8 107 N.M. at 167 , 754 P.2d at 544 (emphasis added, internal quotation marks an

2012But Anderson, which analyzes consent under the Fourth Amendment, 12 1 makes it clear that the presumption against waiver actually does apply under federal 2 law: 3 The determination of voluntariness involves a three-tiered analysis: (1) 4 there must be clear and positive testimony that the consent was specific 5 and unequivocal; (2) the consent must be given without duress or 6 coercion; and (3) the first two factors are to be viewed in light of the 7 presumption that disfavors the waiver of constitutional rights. 8 107 N.M. at 167 , 754 P.2d at 544 (emphasis added, internal quotation marks an

2008See Middle Tenn. News Co. v. Charnel of Cincinnati, 250 F.3d 1077 , 1084 (7th Cir.2001) (“Conduct must clearly and explicitly signal a waiver, and there must be clear, unequivocal evidence of a waiver, before we will find that a party intended to waive its right to jury trial.”) (internal quotation marks and citation omitted); Tray-Wrap, Inc., 984 F.2d at 68 (“[T]he conduct said to constitute a waiver [of the right to a jury trial] must be clear and unequivocal, as waivers are never to be lightly inferred.”); Seong v. Trans-Pacific Airlines, Ltd., 41 Haw. 231, 241 (1955) (“[I]n order to create

2008See Middle Tenn. News Co. v. Charnel of Cincinnati, 250 F.3d 1077 , 1084 (7th Cir.2001) ("Conduct must clearly and explicitly signal a waiver, and there must be clear, unequivocal evidence of a waiver, before we will find that a party intended to waive its right to jury trial.") (internal quotation marks and citation omitted); Tray-Wrap, Inc., 984 F.2d at 68 ("[T]he conduct said to constitute a waiver [of the right to a jury trial] must be clear and unequivocal, as waivers are never to be lightly inferred."); Seong v. Trans-Pacific Airlines, Ltd., 41 Haw. 231, 241 (1955) ("[I]n order to create

2008See, e.g., Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir.1998) (explaining that courts must “indulge every reasonable presumption against waiver.” (internal quotation marks and citation omitted)); Tray-Wrap, Inc. v. Six L’s Packing Co., 984 F.2d 65, 68 (2d Cir.1993) (“[T]he conduct said to constitute a waiver must be clear and unequivocal, as waivers are never to be lightly inferred.”).

2008See, e.g., Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir.1998) (explaining that courts must "indulge every reasonable presumption against waiver." (internal quotation marks and citation omitted)); Tray-Wrap, Inc. v. Six L's Packing Co., 984 F.2d 65, 68 (2d Cir.1993) ("[T]he conduct said to constitute a waiver must be clear and unequivocal, as waivers are never to be lightly inferred.").

2008See, e.g., Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir.1998) (explaining that courts must “indulge every reasonable presumption against waiver.” (internal quotation marks and citation omitted)); Tray-Wrap, Inc. v. Six L’s Packing Co., 984 F.2d 65, 68 (2d Cir.1993) (“[T]he conduct said to constitute a waiver must be clear and unequivocal, as waivers are never to be lightly inferred.”).

2008See, e.g., Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir.1998) (explaining that courts must "indulge every reasonable presumption against waiver." (internal quotation marks and citation omitted)); Tray-Wrap, Inc. v. Six L's Packing Co., 984 F.2d 65, 68 (2d Cir.1993) ("[T]he conduct said to constitute a waiver must be clear and unequivocal, as waivers are never to be lightly inferred.").

2008See Middle Tenn. News Co. v. Charnel of Cincinnati, 250 F.3d 1077 , 1084 (7th Cir.2001) (“Conduct must clearly and explicitly signal a waiver, and there must be clear, unequivocal evidence of a waiver, before we will find that a party intended to waive its right to jury trial.”) (internal quotation marks and citation omitted); Tray-Wrap, Inc., 984 F.2d at 68 (“[T]he conduct said to constitute a waiver [of the right to a jury trial] must be clear and unequivocal, as waivers are never to be lightly inferred.”); Seong v. Trans-Pacific Airlines, Ltd., 41 Haw. 231, 241 (1955) (“[I]n order to create

2008See Middle Tenn. News Co. v. Charnel of Cincinnati, 250 F.3d 1077 , 1084 (7th Cir.2001) ("Conduct must clearly and explicitly signal a waiver, and there must be clear, unequivocal evidence of a waiver, before we will find that a party intended to waive its right to jury trial.") (internal quotation marks and citation omitted); Tray-Wrap, Inc., 984 F.2d at 68 ("[T]he conduct said to constitute a waiver [of the right to a jury trial] must be clear and unequivocal, as waivers are never to be lightly inferred."); Seong v. Trans-Pacific Airlines, Ltd., 41 Haw. 231, 241 (1955) ("[I]n order to create

2025See Davis, 2013-NMSC-028, ¶ 14 .

2025In conducting our review, “the question is whether the [district] court’s decision is supported by substantial evidence, not whether the [district] court could have reached a different conclusion.” State v. Davis, 2013-NMSC-028, ¶ 10 , 304 P.3d 10 (alterations, internal quotation marks, and citation omitted). {5} Defendant argues that the district court’s determination that Defendant consented to the search of his phone is “incorrect.” Notably, Defendant does not argue that there was an absence of clear and positive testimony that his consent was specific and unequivocal.

2020See State v. Valencia Olaya, 1987-NMCA- 040, ¶ 25, 105 N.M. 690 , 736 P.2d 495 (“Since voluntary consent is a substitute for probable cause, it must be clear that actual consent was voluntarily given to overcome the presumption against waiver of a constitutional right.” (citation omitted)).

2020See State v. Valencia Olaya, 1987-NMCA- 040, ¶ 25, 105 N.M. 690 , 736 P.2d 495 (“Since voluntary consent is a substitute for probable cause, it must be clear that actual consent was voluntarily given to overcome the presumption against waiver of a constitutional right.” (citation omitted)).

1996In State v. Cohen, 103 N.M. 558, 563 , 711 P.2d 3, 8 (1985), cert. denied, 476 U.S. 1158 , 106 S.Ct. 2276 , 90 L.Ed.2d 719 (1986), the court identified the following three factors to be considered when an appeals court is assessing the voluntariness of a consent to search: (1) the consent must be unequivocal and specific, (2) the consent must be given without duress or coercion, and (3) the first two factors must be assessed with a presumption against the waiver of constitutional rights.

1996In State v. Cohen, 103 N.M. 558, 563 , 711 P.2d 3, 8 (1985), cert. denied, 476 U.S. 1158 , 106 S.Ct. 2276 , 90 L.Ed.2d 719 (1986), the court identified the following three factors to be considered when an appeals court is assessing the voluntariness of a consent to search: (1) the consent must be unequivocal and specific, (2) the consent must be given without duress or coercion, and (3) the first two factors must be assessed with a presumption against the waiver of constitutional rights.

2023See Chapman, 1999-NMCA-106, ¶ 21 (describing these and other factors that may render consent involuntary due to coercion or duress). {8} Lastly, we recognize that there is a presumption against the waiver of constitutional rights.

2019See Santillanes, 2001-NMSC-018, ¶ 16 (explaining where there are no common elements, there is a presumption against applying the rule).

2016To be valid, waivers “must be voluntaryf,] . . . knowing, [and] intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Padilla, 2002-NMSC-016, ¶ 18 (internal quotation marks and citation omitted).

2006See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 601 , 817 P.2d 1238, 1243 (Ct.App.1991) (taking judicial notice of the briefs in another case). {34} In addition, we note that while our Court in Alvarez-Lopez consistently used the term "forfeiture," Cherry , the Tenth Circuit case relied on by our Court, consistently uses the term "waiver." See Cherry, 217 F.3d at 815 ("There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privileg

2006See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 601 , 817 P.2d 1238, 1243 (Ct.App.1991) (taking judicial notice of the briefs in another case). {34} In addition, we note that while our Court in Alvarez-Lopez consistently used the term "forfeiture," Cherry , the Tenth Circuit case relied on by our Court, consistently uses the term "waiver." See Cherry, 217 F.3d at 815 ("There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privileg

2006See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 601 , 817 P.2d 1238, 1243 (Ct.App.1991) (taking judicial notice of the briefs in another case). {34} In addition, we note that while our Court in Alvarez-Lopez consistently used the term "forfeiture," Cherry , the Tenth Circuit case relied on by our Court, consistently uses the term "waiver." See Cherry, 217 F.3d at 815 ("There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privileg

2006See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 601 , 817 P.2d 1238, 1243 (Ct.App.1991) (taking judicial notice of the briefs in another case). {34} In addition, we note that while our Court in Alvarez-Lopez consistently used the term “forfeiture,” Cherry, the Tenth Circuit case relied on by our Court, consistently uses the term “waiver.” See Cherry, 217 F.3d at 815 (“There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege

2006See State v. Herrera, 2004-NMCA-015, ¶ 8 , 135 N.M. 79 , 84 P.3d 696 .

2006See State v. Herrera, 2004-NMCA-015, ¶ 8 , 135 N.M. 79 , 84 P.3d 696 .

2001See Santillanes, 109 N.M. at 784 , 790 P.2d at 1065 .

2001See Santillanes, 109 N.M. at 784 , 790 P.2d at 1065 .

2000See State v. Boeglin, 100 N.M. 127, 132 , 666 P.2d 1274, 1279 (Ct.App.1983) (“On appeal, there is a presumption against waiver of a constitutional right.”).

2000See State v. Boeglin, 100 N.M. 127, 132 , 666 P.2d 1274, 1279 (Ct.App.1983) (“On appeal, there is a presumption against waiver of a constitutional right.”).

1998See Davis, 98 N.M. at 320 , 648 P.2d at 778 ; Miller, 89 N.M. at 506 , 554 P.2d at 668 .

1998See Davis, 98 N.M. at 320 , 648 P.2d at 778 ; Miller, 89 N.M. at 506 , 554 P.2d at 668 .