(concurring in part and dissenting in part).
{24} I agree that the officer had reasonable suspicion to stop and detain the vehicle Defendant was driving. I respectfully disagree with the majority that the officer unlawfully expanded his inquiry.
{25} After stopping Defendant’s vehicle because of information that a forgery suspect was in the vehicle, the officer’s first inquiry was directed to Defendant, who was driving the vehicle. The inquiry related to Defendant’s license, registration, and insurance. The officer’s next inquiry was directed to Sinclair, who was a passenger. That inquiry related to Sinclair’s identification as the forgery suspect. The officer next asked Sinclair to exit the vehicle for further questioning. Outside the vehicle, after he developed concerns about Sinclair repeatedly putting his hand in his right front pocket, the officer asked whether Sinclair had anything in there he needed to know about. Sinclair told the officer that he had a marijuana pipe, and upon retrieval of the pipe, the officer observed marijuana in it, and Sinclair was arrested.
{26} After arresting Sinclair, the officer again turned his attention to Defendant. The officer inquired of Defendant as to whether there was anything in the vehicle that the officer needed to know about. It is this inquiry that is under the constitutional microscope in this case, giving rise to the issue whether the detention that occurred by the inquiry was unreasonable under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Defendant contends that the officer did not have reasonable suspicion “to expand the scope of his inquiry beyond his detention of [Sinclair]” by “inelud[ing] questioning the driver about drug possession.”
{27} It is reasonable to infer that the officer expanded his investigation from Sinclair’s possession of drugs and drug paraphernalia to other possible drugs within the vehicle of which Defendant may have had knowledge. The officer testified: “Seeing as how [Sinclair] had drugs and drug paraphernalia on him, I went to the driver and asked if there was anything in the vehicle I needed to know about.” This expanded investigation could reasonably have stemmed from two suspicions, both of which were reasonable: (1) other drugs or drug paraphernalia may be present in the vehicle, including on Defendant himself; and (2) if there were other drugs or drug paraphernalia in the vehicle, Defendant as driver or owner might be in unlawful possession of contraband.
{28} The question is: Did the totality of the circumstances following the initial lawful stop, the lawful inquiry and behavior of Sinclair, and Sinclair’s ensuing arrest, provide a reasonable suspicion to inquire of Defendant whether there was anything in the vehicle about which the officer should know? See State v. Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964 (“In determining whether reasonable suspicion exists in a particular case, ‘the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” (citation omitted)); State v. Williamson, 2000-NMCA-068, ¶6, 129 N.M. 387, 9 P.3d 70 (“[W]e examine, as a matter of law, the totality of the circumstances to determine whether the officers illegally detained [the defendant and whether [the officer] impermissibly expanded his scope of inquiry.”). I see no constitutional impediment to the inquiry.
{29} We are bound to weigh protection of an individual’s privacy against the interests of the State, and to consider the level of intrusiveness of an officer’s inquiry. See Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Williamson, 2000-NMCA-068, ¶ 6, 129 N.M. 387, 9 P.3d 70. Further, “we view the facts in the manner most favorable to the State, indulging in all reasonable inferences supporting the order and disregarding inferences or evidence to the contrary.” Williamson, 2000-NMCA-068, ¶ 6, 129 N.M. 387, 9 P.3d 70.
{30} Criminal activity was afoot in Defendant’s vehicle based on Sinclair’s possession of drugs and drug paraphernalia while he was in the vehicle. See id. ¶ 8 (“The officer may expand this investigation if the officer has reasonable and articulable suspicion that other criminal activity has been or may be afoot.” (internal quotation marks and citation omitted)). The one-question inquiry was minimally intrusive. Investigation of the suspicion proceeded diligently. See id. (stating that “the officer’s investigation of any reasonable suspicion must proceed diligently”). While the inquiry in question may not have been justified based directly on the reason Defendant’s vehicle was stopped, the inquiry was reasonable based on the suspected felon’s possession of drugs in the vehicle. See id. ¶¶ 10-11 (holding that the passenger’s possession of drugs “was sufficient to reasonably arouse [the officer’s] suspicion that [the driver] also had drugs”). Looking at the totality of the circumstances to justify the minimal detention for further investigative inquiry, the circumstances are not comparable to the hypothetical advanced by Defendant of a soccer mom chauffeur surprised by a child passenger’s possession of a hidden marijuana pipe. Affirming the district court in this ease will not open the door to unlimited questioning of a driver based on a passenger’s criminal activity. The discovery of drugs on Defendant was not tainted by the officer’s inquiry.
{31} I see Williamson as closer than the two cases in State v. Patterson, 2006-NMCA-037, 139 N.M. 322, 131 P.3d 1286. Different than in Patterson, in Williamson the defendant was the driver. While a driver is not automatically charged with knowledge of a passenger’s criminal activity, the circumstances in the present case were sufficient to permit investigation of the officer’s articulated suspicion. Cf. State v. Van Dang, 2005-NMSC-033, ¶¶ 5, 13-16, 138 N.M. 408, 120 P.3d 830 (holding twenty-five minute detention of driver to investigate a suspected unauthorized use of a rental vehicle, during which the officer developed a reasonable suspicion of drug activity based on the totality of the circumstances and the officer’s training and experience, to be lawful).
{32} I would affirm the district court’s denial of Defendant’s motion to suppress.