State v. Olson

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 10:49:27 2012.09.27

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-035

Filing Date: August 30, 2012

Docket No. 32,976

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

GUNNAR OLSON,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Margaret E. McLean, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jacqueline L. Cooper, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

DANIELS, Justice.

{1} We granted certiorari to review a Court of Appeals opinion that overturned the
district court’s denial of a motion to suppress drug evidence discovered during a traffic stop
of Defendant Gunnar Olson. See State v. Olson, 2011-NMCA-056, ¶¶ 1-2, 5-6, 150 N.M.
348, 258 P.3d 1140. We hold that the arresting officer had reasonable suspicion to expand
the scope of the valid traffic stop to an investigation of prostitution solicitation and that
Defendant’s subsequent consent to a protective search of his fanny pack was not a fruit of

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a prior unlawful search or seizure. Accordingly, we reverse the Court of Appeals and affirm
the district court’s denial of Defendant’s motion to suppress.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} The relevant facts were established at a suppression hearing. On the night of
December 1, 2007, an officer of the Albuquerque Police Department was parked in an alley
behind a convenience store near the intersection of University and Central. While filling out
paperwork in his car, the officer saw Defendant drive into the alley, appear to recognize the
marked police vehicle, immediately back out of the alley, and continue driving in his
previous direction of travel on University Boulevard. Because Defendant’s behavior made
the officer suspicious (Defendant “kind of [gave] me the impression like, oh, no, the
police”), the officer followed Defendant. When he saw that the temporary tags on
Defendant’s vehicle were expired, he conducted a traffic stop.

{3} As the officer approached the driver’s side of Defendant’s car, he noticed Defendant
rummaging for paperwork in the glove box and avoiding eye contact with the officer. The
officer then recognized the passenger in the front seat of Defendant’s car as a known
transvestite prostitute he had encountered previously. Based on the passenger’s clothing and
heavy makeup, the officer thought it was “pretty obvious” the passenger was currently
working as a prostitute. The officer had previously observed prostitutes on Central Avenue
in the area where he saw Defendant pulling into the alley.

{4} The officer then asked Defendant to step out of the car. He explained that separating
the driver from the passenger is his routine practice when investigating solicitation of
prostitution because it allows him to ask the parties how they know each other and what
business they have with each other without either party interrupting or answering for the
other.

{5} The officer then asked Defendant if he was armed or in possession of anything
illegal, and Defendant responded that he did not believe in violence. When the officer
noticed that Defendant was holding a fanny pack, he asked Defendant to place the fanny
pack on the hood of the patrol car as a personal safety precaution. The officer then asked
Defendant for his driver’s license, and Defendant reached for his fanny pack. When the
officer stopped him and asked if he could look in the fanny pack to make sure no weapons
were inside, Defendant told the officer he could.

{6} In the course of inspecting the fanny pack, the officer discovered three crack pipes
in a compartment near the back. He asked Defendant about the pipes, and Defendant
admitted he used them to smoke cocaine. The officer then arrested Defendant for possession
of drug paraphernalia, handcuffed him, and asked him where his cocaine was. Defendant
admitted it was in a container in his right front pocket. The officer then took a small film
case from Defendant’s pocket that contained five crack rocks that later tested positive for
cocaine.

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{7} Defendant moved to suppress the evidence in the district court, arguing that the
officer lacked reasonable suspicion to expand the traffic stop into a prostitution
investigation, in violation of protections against unreasonable search and seizure under
Article II, Section 10 of the New Mexico Constitution and under the Fourth and Fourteenth
Amendments to the United States Constitution. After holding a suppression hearing at
which Defendant did not testify, the district court denied Defendant’s motion, and Defendant
subsequently agreed to a no contest plea for the possession of a controlled substance,
reserving the right to appeal the denial of his suppression motion.

{8} On appeal, the Court of Appeals reversed, holding that the officer did not have
sufficient reasonable suspicion to expand the scope of the traffic stop into an investigation
of prostitution solicitation, that Defendant’s consent to the search and the evidence
discovered in that search were therefore tainted, and that the district court erred in not
granting Defendant’s motion to suppress. See Olson, 2011-NMCA-056, ¶¶ 17-18. We
granted the State’s petition for writ of certiorari to review the Court of Appeals opinion.

II. DISCUSSION

A. Standard of Review

{9} “Appellate review of a motion to suppress presents a mixed question of law and
fact.” State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. First, a
reviewing court looks “for substantial evidence to support the trial court’s factual finding,
with deference to the district court’s review of the testimony and other evidence presented.”
State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. “We then review the
application of the law to those facts, making a de novo determination of the constitutional
reasonableness of a search or seizure.” State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M.
428, 211 P.3d 885.

B. Reasonable Suspicion Analysis

{10} Article II, Section 10 of the New Mexico Constitution guarantees that “[t]he people
shall be secure in their persons, papers, homes and effects, from unreasonable searches and
seizures.” This Court has interpreted these protections more expansively than the similar
protection provided by the Fourth Amendment to the U.S. Constitution. See Leyva,
2011-NMSC-009, ¶¶ 1-3 (“Because Article II, Section 10 provides greater protections
against unreasonable searches and seizures than does the Fourth Amendment, we maintain
the Duran standard for reviewing searches and seizures under the New Mexico
Constitution.”); see also State v. Gomez, 1997-NMSC-006, ¶ 24, 122 N.M. 777, 932 P.2d
1 (“There is established New Mexico law interpreting Article II, Section 10 more
expansively than the Fourth Amendment.”). Accordingly, even though Defendant has
preserved both claims, we need only to address the broader protections under Article II,
Section 10 of the New Mexico Constitution. See Leyva, 2011-NMSC-009, ¶ 1 (“In order to
receive greater protections that may be conferred by the state constitution, however, a

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criminal defendant must properly preserve his or her state constitutional argument.”).

{11} An automobile stop and the attendant detention of its occupants is a “seizure.” See
State v. Duran, 2005-NMSC-034, ¶¶ 22-23, 138 N.M. 414, 120 P.3d 836, overruled on other
grounds by Leyva, 2011-NMSC-009, ¶ 17. In Duran, this Court recognized the two-part test
from Terry v. Ohio, 392 U.S. 1, 20 (1968) in determining the reasonableness of an expanded
traffic stop under our state’s constitutional protections, “‘whether the officer’s action was
justified at its inception, and whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.’” Duran, 2005-NMSC-034, ¶ 23. See also
Leyva, 2011-NMSC-009, ¶¶ 3, 28 (upholding Duran as the appropriate inquiry for
evaluating permissible officer questioning during traffic stops under Article II, Section 10
of the New Mexico Constitution). Under Duran, an officer may ask questions unrelated to
the traffic stop so long as those questions are “supported by independent reasonable
suspicion, for reasons of officer safety, or if the interaction has developed into a consensual
encounter.” Levya, 2011-NMSC-009, ¶ 55.

{12} Defendant concedes that the initial traffic stop meets the first requirement of Duran
because the officer lawfully stopped Defendant for driving with expired registration. See
NMSA 1978, § 66-3-18(B)-(C) (2007) (prohibiting driving with an invalid vehicle
registration displayed). We agree. See State v. Vandenburg, 2003-NMSC-030, ¶ 21, 134
N.M. 566, 81 P.3d 19 (recognizing that the arresting officer “reasonably suspected that [the
defendant] had violated a traffic law, and therefore, [the officer] was entitled to stop [the
defendant’s] car”). But Defendant argues that the officer impermissibly expanded the scope
of the traffic stop when he investigated Defendant for solicitation of prostitution and that the
search of the fanny pack was the fruit of the solicitation investigation. See State v.
Cardenas-Alvarez, 2001-NMSC-017, ¶ 17, 130 N.M. 386, 25 P.3d 225 (“The exclusionary
rule requires suppression of the fruits of searches and seizures conducted in violation of the
New Mexico Constitution.”)

{13} Under the second requirement of Duran, “[a]n officer may expand the scope of the
search or seizure during the investigatory stop only where the officer has reasonable and
articulable suspicion that other criminal activity has been or may be afoot.”
2005-NMSC-034, ¶ 23 (internal quotation marks and citation omitted). Determining
whether reasonable suspicion exists “is a fact-specific inquiry that does not lend itself to
bright-line rules.” Id. “[R]easonable suspicion is a commonsense, nontechnical
conception[], which requires that officers articulate a reason, beyond a mere hunch, for their
belief that an individual has committed a criminal act.” State v. Funderburg,
2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (second alteration in original) (internal
quotation marks and citation omitted). A “reasonable suspicion determination requires us
to assess the totality of the circumstances and precludes . . . [a] divide-and-conquer analysis
in which we view each individual factor or circumstance in a vacuum.” State v. Neal, 2007-
NMSC-043, ¶ 28, 142 N.M. 176, 164 P.3d 57 (alteration and omission in original) (internal
quotation marks and citation omitted). Additionally, this Court defers to “the training and
experience of the officer when determining whether particularized and objective indicia of

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criminal activity existed.” Leyva, 2011-NMSC-009, ¶ 23 (internal quotation marks and
citation omitted).

{14} In this case, the Court of Appeals agreed with Defendant’s argument that the officer
lacked reasonable suspicion to investigate prostitution solicitation because the officer’s
actions were based “on the mere presence of a passenger known to have committed a past
criminal act.” See Olson, 2011-NMCA-056, ¶ 17 (“The only circumstances possibly giving
rise to suspicion of solicitation of a prostitute before the officer began his immediate inquiry
relating to solicitation of prostitution were the officer’s having seen Defendant’s vehicle pull
into and then out of an alley at 12:30 a.m., after which, upon stopping the vehicle for a traffic
violation, the officer saw the passenger, a person he knew was a transvestite prostitute.”).
In support, Defendant relies on State v. Jones, 114 N.M. 147, 151, 835 P.2d 863, 867 (Ct.
App. 1992) (holding that mere association with a known gang member does not amount to
reasonable suspicion because the officers had “nothing connecting this individual defendant
to a particular crime or crimes, except the likelihood that he was a gang member”), and State
v. Affsprung, 2004-NMCA-038, ¶¶ 2-4, 20-21, 135 N.M. 306, 87 P.3d 1088 (holding
unlawful an officer’s request for a passenger’s identification during a traffic stop when there
was no reasonable suspicion that the passenger was engaged in criminal activity). See
Olson, 2011-NMCA-056, ¶ 17.

{15} Unlike Jones, the officer in this case did not expand his investigation into solicitation
of prostitution merely because Defendant was associating with someone known to have a
criminal past. And unlike Affsprung, the officer did not detain Defendant merely because
he appeared to be associating with a known prostitute. Instead, the officer articulated several
specific reasons why he thought Defendant was actively engaged in soliciting his passenger
for prostitution. First, the events occurred late at night and in an area of Albuquerque where
the officer had previously seen prostitutes at work. Second, the officer testified that
Defendant, after pulling into an alley and then seeing the officer’s marked police car,
immediately backed out of the alley and drove away on his previous course, an unusual
maneuver for anyone using an alley to cross over to another street or to turn around. Third,
when the officer pulled Defendant over for his expired tag, Defendant avoided eye contact.
Fourth, the officer specifically recognized Defendant’s passenger as a known prostitute and,
because of the passenger’s clothing and heavy make-up, suspected that the passenger was
currently at work as a prostitute. Viewing all of these facts together supports the officer’s
reasonable suspicion that Defendant was turning into an alleyway late at night in an area
known for prostitution in order to engage his passenger’s services in violation of NMSA
1978, Section 30-9-3(B) (1989) (criminalizing the patronizing of a prostitute). While we
share the Court of Appeals’ concerns that police officers should not be allowed to arbitrarily
stop and harass individuals merely because the individuals may associate with known
criminals, this case does not present those circumstances. The officer was required to have
reasonable suspicion for expanding the traffic stop into an investigation of prostitution
solicitation, and the record supports the district court’s finding that the expansion was
justified by reasonable suspicion.

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{16} Defendant also argues that the officer’s ordering him out of his car for the
prostitution investigation was unlawful because (1) this Court has yet to explicitly adopt
Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding that an officer’s order to step out
of a car during a traffic stop is a permissible de minimis intrusion that is justified by the need
for officer safety), and (2) the officer did not order Defendant out of the car based on safety
concerns. See Ketelson, 2011-NMSC-023, ¶¶ 19, 27 (“We conclude that removing
Defendant’s firearm from the vehicle in order to ensure that it was beyond the reach of any
of the occupants during the stop was a reasonable and minimal intrusion, which does not
outweigh legitimate concerns of officer safety.”). Defendant overlooks that the officer was
not merely ordering him out of his car for the traffic stop. Instead, the officer testified that
he ordered Defendant out of the car in order to investigate the parties separately for possible
solicitation of prostitution, which we have already concluded was supported by reasonable
suspicion. The broadened investigatory detention of Defendant in order to affirm or quell
the officer’s reasonable suspicions of criminal activity was permissible. See State v. Jason
L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856 (“We recognize an officer may detain
a person in order to investigate possible criminal activity. Investigatory detention is
permissible when there is a reasonable and articulable suspicion that the law is being or has
been broken.” (internal quotation marks and citations omitted)); see also State v. Urioste,
2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964 (“A police officer cannot forcibly stop
an individual for purposes of investigation [without reasonable suspicion] that criminal
activity may be afoot.” (internal quotation marks and citation omitted)). Because existing
New Mexico precedent determines the issue of the officer ordering Defendant out of the car,
we need not address whether Mimms should be adopted.

{17} Defendant also argues that the seizure and search of his fanny pack were unlawful
because the officer failed to articulate that Defendant posed a danger, relying on State v.
Cobbs, 103 N.M. 623, 630, 711 P.2d 900, 907 (Ct. App. 1985) (reviewing whether an officer
had reasonable suspicion to conduct a protective frisk). Defendant’s reliance on Cobbs is
misplaced.

{18} Cobbs addresses the reasonableness of a nonconsensual protective search. See id.
at 630, 711 P.2d at 907 (“In order, however, to conduct a frisk of a person suspected of
engaging in a nonviolent offense, . . . additional articulable facts of potential danger must
be present, as well as the suspicion of criminal activity.”). In this case, the officer never
conducted a protective search. Instead, he obtained Defendant’s consent to look into the
fanny pack. Accordingly, Cobbs is not on point. When a person voluntarily consents to a
search, it is lawful regardless of whether the officer had constitutional justification to
conduct an unwarranted search. See State v. Duffy, 1998-NMSC-014, ¶ 72, 126 N.M. 132,
967 P.2d 807, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, 275
P.3d 110.

{19} “Whether consent was voluntarily given is a factual question, and the trial court’s
determination will not be disturbed on appeal unless it is not supported by substantial
evidence.” State v. Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74.

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{20} The uncontradicted evidence before the district court came from the officer who
testified that, after Defendant started to retrieve his license from his fanny pack, “I asked him
if [I] could take a look to make sure there is no weapon in the fanny pack before he started
grabbing things out of it for my safety because at this point in time I still don’t know if he
could possibly have a gun or knives or any kind of edge weapon in that fanny pack. And he
told me I could.” On cross-examination, when defense counsel asked the officer if he would
“have considered [his] request an order,” the officer answered, “No.” There was no other
significant evidence on the voluntariness of Defendant’s consent. The court reviewed the
evidence and made specific findings from the bench “that the consent was knowingly and
voluntarily and intelligently made” and that “nothing [in the evidence established that]
Defendant was coerced or threatened in any way.”

{21} The district court’s findings were supported by substantial evidence in the record
before us. See State v. Flores, 2008-NMCA-074, ¶¶ 3, 17, 144 N.M. 217, 185 P.3d 1067
(upholding a judge’s finding of voluntary consent where an officer testified he knocked on
the defendant’s door and obtained his permission to search his house for drugs); State v.
Fairres, 2003-NMCA-152, ¶¶ 2, 12, 134 N.M. 668, 81 P.3d 611 (upholding a finding of no
duress or coercion where an officer testified that the defendant consented to a warrantless
search of his wallet); State v. Chapman, 1999-NMCA-106, ¶ 20, 127 N.M. 721, 986 P.2d
1122 (upholding a finding of consent where the uncontradicted testimony of an officer was
that the defendant had consented to the search of a bag in the trunk of a car during a traffic
stop); State v. Goss, 111 N.M. 530, 534-35, 807 P.2d 228, 232-33 (Ct. App. 1991) (holding
that even though “the contested evidence was subject to conflicting interpretations and
inferences, the trial court as the fact finder was empowered to weigh the evidence” and find
that voluntary consent was given to search a vehicle stopped at a roadblock). We therefore
affirm the district court’s determination that Defendant voluntarily consented to the search
of his fanny pack.

III. CONCLUSION

{22} We hold that (1) the officer had reasonable suspicion to expand the initial traffic stop
to investigate prostitution solicitation and (2) the subsequent consensual search of
Defendant’s fanny pack was not the fruit of any prior unlawful search or seizure.
Accordingly, we reverse the Court of Appeals and affirm the district court’s denial of
Defendant’s motion to suppress.

{23} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________

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PETRA JIMENEZ MAES, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Olson, No. 32,976

APPEAL AND ERROR
Fundamental Error
Harmless Error
Prejudicial Error
Standard of Review

CONSTITUTIONAL LAW
Fourth Amendment
Suppression of Evidence

CRIMINAL LAW
Controlled Substances
Motor Vehicle Violations

CRIMINAL PROCEDURE
Consent
Motion to Suppress
Reasonable Suspicion
Search and Seizure

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