State v. Montano

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-130

Filing Date: October 16, 2009

Docket No. 28,821

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RAY ANTHONY MONTAÑO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean Jr., District Judge

Gary K. King, Attorney General
Francine A. Chavez, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

{1} Defendant Ray Anthony Montaño asserts that the district court erred in refusing to
suppress drug-related evidence obtained from his person in a search incident to his arrest.
Neither the record of the hearing nor the suppression order shows specific grounds for
denial. The issue is whether the police officer’s actions in stopping and questioning
Defendant, who was on foot, and then obtaining Defendant’s identification and running it
through dispatch constituted an unlawful investigatory detention. The State acknowledges
that the officer did not have reasonable suspicion of criminal activity up to the point that

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dispatch informed the officer of an outstanding warrant. The State’s position is that the
circumstances constituted either a consensual community caretaker encounter excluded from
the Fourth Amendment to the United States Constitution or a community caretaker encounter
that was subject to, but reasonable under, the Fourth Amendment.

{2} We hold under the Fourth Amendment that what started out as either a consensual
or non-consensual community caretaker encounter became an unlawful investigatory
detention. We therefore reverse the district court’s denial of Defendant’s motion to suppress
the evidence obtained by the officer after the search incident to Defendant’s arrest on the
outstanding warrant.

BACKGROUND

The Testimony and Evidence

{3} Officer Dennis Ronk was the only witness who testified at the suppression hearing.
In addition, a portion of a dispatch communication was played along with a video. On June
5, 2007, at approximately 2:50 a.m., Officer Ronk was conducting a routine patrol through
the back parking lot of a Super 8 Motel and saw Defendant running directly toward his
vehicle. He thought Defendant was trying to flag him down. Defendant did not have a shirt
on and his hand appeared to be bleeding. Officer Ronk stopped his vehicle. Defendant
stopped running as he approached the officer’s vehicle, and he was almost at a slow walk
when he looked at Officer Ronk, but he then kept walking. Officer Ronk drove around the
building because he did not know how Defendant had hurt his hand and because he had
investigated several fights and domestic disturbances occurring at the local motels. He
observed Defendant running across the parking lot of a closed business. Defendant had
stopped running before Officer Ronk made contact with him. At the time of contact, Officer
Ronk activated his vehicle’s beam lights.

{4} Officer Ronk testified that he may have said something like, “Hey come here, let me
talk to you for a minute.” It was obvious to the officer that Defendant’s hand was bleeding
to the extent that drops of blood were falling onto the ground. Officer Ronk asked
Defendant where he was going. The officer used a flashlight as he approached Defendant
for safety purposes and asked Defendant to keep his hands out of his pockets. Defendant
gave the name of the street where his sister’s house was located, and Officer Ronk knew the
street was in the opposite direction of where Defendant was running. Officer Ronk
requested Defendant to provide identification because he did not know if Defendant was
intentionally being untruthful as to his destination or if he was incoherent, and the officer
wanted to investigate further.

{5} Defendant did not have any identification on him because he did not have a wallet.
Officer Ronk asked Defendant for his name and date of birth. The officer testified that he
asked Defendant for his identification (1) to see if he was involved in a domestic disturbance
or a fight at the Super 8 Motel, and (2) to contact someone to pick him up because he might

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be under the influence and confused as to his whereabouts. The officer agreed that his
purpose “was simple identification” and confirmed that it was common among police
officers to identify a person they are dealing with. Officer Ronk requested dispatch to run
a “local’s check.” It was at that point when the officer asked Defendant how he had cut his
hand, and Defendant stated that he cut it on a light bulb. In Officer Ronk’s experience,
people who smoke methamphetamine use light bulbs to ingest the drug.

{6} When the officer initially contacted dispatch, he reported there was a “subject
walking around with no shirt.” Dispatch’s response then referred to a “1015” which
translates to a “prisoner in custody.” The officer agreed with defense counsel during his
testimony that a “1015” translates to a “prisoner in custody.”

{7} Officer Briseno arrived on the scene a few minutes into the encounter. Officer Ronk
did not recall calling for backup and testified that dispatch might have sent backup on their
own volition. Dispatch informed Officer Ronk that Defendant had an outstanding warrant
for his arrest for failure to pay fines, and Officer Briseno placed Defendant under arrest.
Officer Ronk then conducted a search of Defendant’s person. The search yielded a clear,
crystal-type substance which later tested positive for methamphetamine and also yielded a
tool commonly used to ingest narcotics.

{8} Defendant was charged in count one with possession of a controlled substance
(methamphetamine) contrary to NMSA 1978, Section 30-31-23(D) (2005), a fourth degree
felony, and was charged in count two with possession of drug paraphernalia, contrary to
NMSA 1978, Section 30-31-25.1(A) (2001), a misdemeanor. Defendant filed a motion to
suppress all the evidence seized on the ground that there was no reasonable suspicion to
conduct an investigatory stop. The State filed a response to the motion and argued that the
officer was acting under the community caretaker function.

{9} After a hearing on the suppression motion, the district court denied Defendant’s
motion. Defendant entered into a conditional plea reserving his right to appeal the denial of
the motion to suppress. Pursuant to the plea agreement, count two was dismissed.
Defendant was sentenced on count one.

{10} On appeal, Defendant asserts that he was seized in violation of the Fourth
Amendment to the United States Constitution and also in violation of Article II, Section 10
of the New Mexico Constitution because the officer conducted an investigatory stop without
reasonable suspicion that Defendant was involved in criminal activity.

DISCUSSION

Standard of Review

{11} “The standard of review for suppression rulings is whether the law was correctly
applied to the facts, viewing them in a manner most favorable to the prevailing party.” State

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v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and
citation omitted). This Court must “observe the distinction between factual determinations
which are subject to a substantial evidence standard of review and application of law to the
facts[,] which is subject to de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129
N.M. 688, 12 P.3d 442 (alteration in original) (internal quotation marks and citation
omitted). This Court must defer to the district court with respect to findings of historical fact
as long as they are supported by substantial evidence. Jason L., 2000-NMSC-018, ¶ 10.

Our review of a district court’s decision regarding a motion to
suppress evidence involves mixed questions of fact and law. In reaching our
conclusion, we adopt an interpretation of the factual background that is most
favorable to the prevailing party, as long as the facts are supported by
substantial evidence. Against such a factual backdrop, we evaluate de novo
the reasonableness of the conduct of law enforcement officers, considering
the totality of the circumstances

State v. Gutierrez, 2008-NMCA-015, ¶ 4, 143 N.M. 522, 177 P.3d 1096 (filed 2007)
(internal quotation marks and citations omitted).

The determination of a seizure has two discrete parts: (1) what were the
circumstances surrounding the stop, including whether the officers used a
show of authority; and (2) did the circumstances reach such a level of
accosting and restraint that a reasonable person would have believed he or
she was not free to leave? The first part is a factual inquiry, which we review
for substantial evidence. The second part is a legal inquiry, which we review
de novo.

Jason L., 2000-NMSC-018, ¶ 19.

The Parties’ Positions

{12} The State argues that because the district court made no findings of fact, we are to
“indulge in all reasonable presumptions in support of the district court’s ruling.” State v.
Gonzales, 1999-NMCA-027, ¶ 15, 126 N.M. 742, 975 P.2d 355 (filed 1998). The State’s
primary contention is that the encounter was consensual during a community caretaker
function and, therefore, the encounter did not implicate the Fourth Amendment. In support
of this justification, the State argues that, under the totality of the circumstances, the
encounter was consensual because Defendant was free to decline the officer’s requests and
to terminate the encounter and leave. See State v. Morales, 2005-NMCA-027, ¶ 10, 137
N.M. 73, 107 P.3d 513 (filed 2004); State v. Walters, 1997-NMCA-013, ¶ 12, 123 N.M. 88,
934 P.2d 282 (filed 1996). The State also argues that the officer did not convey by physical
force or show of authority that Defendant was not free to walk away. See Gutierrez, 2008-
NMCA-015, ¶ 9. The State argues further that the mere request for identification and other

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questioning does not turn a consensual encounter into a seizure. See Walters, 1997-NMCA-
013, ¶ 18.

{13} The State’s alternative justifications for the officer’s actions are based on the
community caretaker-public service and the emergency aid exceptions to the Fourth
Amendment’s warrant requirement. See State v. Ryon, 2005-NMSC-005, ¶¶ 25-26, 137
N.M. 174, 108 P.3d 1032 (setting out “three distinct doctrines under the community
caretaker exception [that] have emerged,” two of which are (1) “the community caretaking
doctrine, or public servant doctrine,” and (2) “the emergency aid doctrine”). In support of
the community caretaker-public service exception, the State argues that Defendant’s privacy
interest was considerably less than if he were in a home or vehicle and that in measuring “the
public need and interest furthered by the police conduct against the degree of and nature of
the intrusion upon the privacy of the citizen” the warrantless seizure of Defendant was
reasonable. See id. ¶¶ 16, 24-26 (recognizing that warrants and reasonable suspicion are not
required where the police are engaged in activities that are unrelated to crime-solving and
that “[a]s the privacy expectation increases, the caretaker functions that justify an intrusion
by police must be judged by a different standard”) (internal quotation marks and citation
omitted).

{14} In support of the emergency aid exception, the State addresses two pertinent elements
of a three-part test adopted by our Supreme Court. See id. ¶¶ 29-39 (adopting the three-part
test from People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976), abrogated by Brigham City, Utah
v. Stuart, 547 U.S. 398 (2006)). One element of the test requires that there exist reasonable
grounds to believe there is an emergency and an immediate need for assistance. Ryon, 2005-
NMSC-005, ¶ 29. The State argues that “[t]ested objectively under the totality of
circumstances, Office[r] Ronk had reasonable grounds to believe that Defendant was in need
of assistance.” The second element of the test involves the officer’s primary motivation. See
id. The State argues that the officer’s primary motivation “was to determine if Defendant
was in need of assistance and to render any assistance that was necessary.” See id. ¶¶ 29,
36 (adopting the Mitchell primary-motivation standard and discussing what must be
demonstrated under the standard). The State attempts to stay within Ryon’s requirement, as
quoted by the State from Ryon, 2005-NMSC-005, ¶ 36, that “[t]he protection of human life
or property in imminent danger must be the motivation for the [initial decision to enter the
home] rather than the desire to apprehend a suspect or gather evidence for use in a criminal
proceeding.” (Emphasis omitted.) (Second alteration in original.) (Internal quotation marks
and citation omitted.) Yet, the State pieces together the officer’s concern as to Defendant’s
truthfulness and coherence, and his later concern as to substance influence and use, to argue
that the circumstances “arouse[d] suspicions of potential criminal conduct [that made it]
wholly reasonable for the officer to investigate further.” According to the State, “it [was]
not realistic for officers to completely abandon this investigative function.” See id. (stating
“[w]hile we do not believe it is realistic to completely abandon their investigative function,
we adopt the ‘primary motivation’ standard set out in Mitchell”).

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{15} Defendant asserts that the officer asked Defendant to stop and “immediately began
asking him questions designed to determine why he was in the parking lot, specifically
where he was going and whether he was involved in a domestic violence incident or using
methamphetamine[].” Defendant argues that this constituted a show of force, conveyed that
compliance with the requests was required and that, under the totality of circumstances, a
reasonable person in Defendant’s position would not feel free to leave. Defendant also
argues that the facts show that Officer Ronk did not approach Defendant to engage in
community caretaking under either the public service or the emergency aid doctrine.

{16} With respect to the community caretaker-public service doctrine, Defendant argues
that the circumstances showed that the officer “did not approach the situation in a manner
that indicated his purpose was anything other than an investigation into possible criminal
conduct.” With respect to the emergency aid doctrine, Defendant argues that Officer Ronk
did not have a reasonable ground to believe that there was an emergency at hand and an
immediate need for his assistance for the protection of life or property. See id. ¶ 29 (stating
that under the emergency aid doctrine the prosecution must establish that “the police must
have reasonable grounds to believe that there is an emergency at hand and an immediate
need for their assistance for the protection of life or property” (internal quotation marks and
citation omitted)). According to Defendant, the circumstances demonstrated nothing more
than that the officer saw Defendant shirtless and running through a parking lot with a
bleeding hand in the middle of the night before the officer stopped him. Defendant also
argues that the officer did not have a primary motivation to protect one in immediate danger
and assist without delay, but rather that the officer’s intent was to detain Defendant and
investigate the reasons for his presence in the parking lot. Defendant points out that the
officer did not ask Defendant if he was all right or needed medical attention, and at no time
did the officer express any interest in Defendant’s welfare as would be expected of an officer
acting in a community caretaker role. Thus, Defendant asserts that the officer’s primary
motivation was investigation of possible criminal activity and not community caretaking.

The Circumstances Indicate an Investigative
Detention Without Reasonable Suspicion

{17} Under the circumstances in this case, at least once the officer requested and obtained
Defendant’s identification, any consensual encounter that arguably existed ceased.
Defendant was not free to leave. See Jason L., 2000-NMSC-018, ¶ 14 (stating that the
officer may not “convey a message that compliance with their requests is required” (internal
quotation marks and citation omitted)). In regard to the Fourth Amendment detention issue,
it is somewhat difficult to parse out the officer’s conduct and motivation. It is not
unreasonable to conclude that the officer’s initial thoughts and actions, when he first saw
Defendant running and then walking toward the police car, could have been consistent with
a view that the officer was concerned about Defendant’s welfare. The circumstances that
followed, when the officer followed Defendant and saw him running in the parking lot of a
closed business, through the point that the officer caught up with Defendant, got out of his
car, and asked Defendant why he was there, where he was going, and whether he had any

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identification, altogether create an unclear picture as to whether the officer was acting on a
reasonable belief that Defendant needed medical assistance.

{18} Officer Ronk’s testimony that he drove around the building because he did not know
how Defendant had hurt his hand and the questioning that followed could be construed as
an interest in investigating possible criminal conduct. However, viewing those particular
circumstances in a light favorable to the district court’s ruling in this case, we conclude that
the officer’s actions arguably remained consistent with a view that the officer continued to
be primarily concerned about Defendant’s welfare.

{19} It quickly became clear, however, that the officer wanted to determine if Defendant
had been involved in a domestic disturbance in the vicinity, a fight at the motel, or some
other possibly unlawful activity, when the officer obtained and gave Defendant’s name and
date of birth to dispatch. The officer then inquired about where Defendant got the blood on
his hand. Defendant’s response that he injured his hand on a light bulb heightened the
officer’s suspicions, based on the officer’s knowledge that people who smoke
methamphetamine use light bulbs for that purpose. Following this inquiry of Defendant, the
officer learned from dispatch that there was an outstanding warrant for Defendant’s arrest
for unpaid traffic fines, and the officer arrested Defendant. The State has not demonstrated
that, at the time the officer obtained Defendant’s identification, a public need and interest
existed for Defendant’s detention that outweighed the intrusion into Defendant’s privacy.

{20} We are struck by the officer’s complete failure during the entire time up to
Defendant’s arrest to inquire regarding Defendant’s physical or mental condition or to act
in a way that would indicate any concern for Defendant’s welfare including, in particular,
if Defendant was in need of medical assistance or assistance from others in getting to a
location where he could receive help or otherwise be safe. The sequence of events shows
a movement from conduct motivated by a skeptical concern for welfare to conduct motivated
by a hunch about criminal activity based on which the officer investigated Defendant
through dispatch. At no time was there an emergency requiring the officer’s intrusion into
Defendant’s privacy, a fact the State carefully refrains from stating in its answer brief.

{21} We recognize that, as the State points out, in some cases an officer may approach an
individual and ask questions without the encounter becoming a seizure under the Fourth
Amendment. See Gutierrez, 2008-NMCA-015, ¶ 9 (“Law enforcement officers generally
need no justification to approach private individuals on the street and ask questions.”). But
here, what might at the outset have been a consensual encounter or a community caretaker
concern for welfare was transformed into an encounter that was not consensual as well as
into one in which the officer demonstrated a primarily, if not solely, criminal investigative
purpose. See Ryon, 2005-NMSC-005, ¶ 20 (holding that it was error in Jason L. to
characterize community caretaker encounters as a voluntary or consensual encounters that
are beyond the scope of the Fourth Amendment, and stating that the reasonableness of an
officer’s conduct in a purported community caretaker activity “depends on whether the legal

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standards that justify the community caretaker exception are satisfied” which, in turn,
“depends on particular facts, which may or may not involve a consensual encounter”).

{22} We fail to see how any initial community caretaker encounter and activity continued
into and trumped the officer’s investigatory purpose and activity. See Gutierrez, 2008-
NMCA-015, ¶ 14 (stating that “[d]espite the officers’ initial intent to merely ask [the
d]efendant a few questions, the encounter quickly escalated into an investigatory detention”).
We hold that Defendant was unlawfully detained and that the evidence obtained from
Defendant after he was arrested should have been suppressed. See State v. Garcia, 2009-
NMSC-046, ¶ 1, ___ N.M. ___, ___ P.3d ___ (holding that evidence obtained against the
defendant was the fruit of an unreasonable seizure and therefore must be suppressed).

The State Constitution

{23} Defendant requests this Court to provide him greater protection against unlawful
searches and seizures by providing relief under Article II, Section 10 of the New Mexico
Constitution, should we deny relief under the Fourth Amendment. See State v. Gomez, 1997-
NMSC-006, ¶¶ 22, 33-40, 122 N.M. 777, 932 P.2d 1 (setting out the proof required to invoke
protection under the New Mexico Constitution). Because we reverse Defendant’s conviction
based on a Fourth Amendment violation, we need not address whether we should apply our
State Constitution to the circumstances. Were we to do so, however, we doubt that we
would have any hesitation in holding that under Article II, Section 10 the detention was
unlawful and the evidence should have been suppressed. See Garcia, 2009-NMSC-046,
¶¶ 1, 41, 44, 47 (holding that “[the d]efendant was seized . . . when the officer stopped his
patrol car . . . near where [the d]efendant was walking, shone his spotlight on [the
d]efendant, and told him to stop” and stating that “[b]ecause there was no reasonable
suspicion to support seizing [the d]efendant, the evidence obtained against him was the fruit
of an unreasonable seizure under Article II, Section 10 and must be suppressed”).

CONCLUSION

{24} We reverse the district court’s denial of Defendant’s motion to suppress.

{25} IT IS SO ORDERED.

____________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

___________________________________
CELIA FOY CASTILLO, Judge

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___________________________________
ROBERT E. ROBLES, Judge

Topic Index for State v. Montano, No. 28,821

AE APPEAL AND ERROR
AE-SR Standard of Review

CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment

CL CRIMINAL LAW
CL-CL Controlled Substances

CA CRIMINAL PROCEDURE
CA-AE Arrest Warrant
CA-RS Reasonable Suspicion
CA-SZ Search and Seizure
CA-SI Search Incident to Arrest

EV EVIDENCE
EV-SU Suppression of Evidence

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