NM: No standing in house of another DUI suspect was apparently passed out in

Defendant went to a friend’s house after being involved in an apparent hit and run. Actually, he stopped and attempted to enter the house where he hit the car. The homeowner’s alarm at his coming in scared defendant off. He was found parked in front of another house that did not match his registered address on the vehicle. The police entered the house when nobody answered and found defendant asleep inside. His lawyer was not ineffective for not challenging the entry because defendant had no standing in the house of another that he couldn’t show he had a right to be in. The police were concerned, based on prior incident, that he’d again entered a house not his. State v. Crocco, 2014 N.M. LEXIS 170 (June 5, 2014):

{22} Here, as in Van Dang, the record does not establish Defendant’s permission to be in the house. See State v. Hall, 2013-NMSC-001, ¶ 28, 294 P.3d 1235 (stating that assertions of fact and arguments that are not supported by the record are not evidence). The police confirmed by a license check that Defendant lived in Corrales at an address different from the house where they found Defendant. Defendant did not respond to the officers’ questions about whether he had permission to be there or whether the residents of the house knew he was there. The owner of the house did not testify at trial, and Defendant’s friend Gutierrez testified only that he left Defendant at the place Gutierrez said “belong[ed] to Michael” so that Defendant could get his car. Although Defendant was able to correctly name “Michael” as the owner of the house, this does not establish that Defendant was an authorized guest in the house. Even if Defendant and Michael were friends or acquaintances, the facts that they knew each other and that Defendant entered Michael’s house are not evidence that he was an authorized houseguest. Without such evidence, Defendant has not established a constitutionally protected expectation of privacy in another person’s house.

{23} Nor can standing be assumed from the fact that, as Defendant argues, he “was never indicted for breaking and entering” because it is Defendant’s burden to establish evidence of standing in the record. See Van Dang, 2005-NMSC-033, ¶ 7. The prosecuting authorities, in their discretion, may have declined to charge Defendant with a trespassory offense. See State v. Santillanes, 2001-NMSC-018, ¶ 27, 130 N.M. 464, 27 P.3d 456 (“The Legislature has vested the district attorney with broad discretion … in its charging decisions.”). More importantly, the two issues are separate and distinct: that the State did not charge Defendant with unlawful entry into the house has no bearing on whether evidence of standing exists in this record. See State v. Waggoner, 1981-NMCA-125, ¶ 14, 97 N.M. 73, 636 P.2d 892 (stating that a person’s lawful presence in the place searched is not enough to establish standing because the issue of standing depends on whether the person had a constitutionally protected expectation of privacy in the place).