IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-040
Filing Date: April 1, 2010
Docket No. 28,583
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ERIC K.,
Child-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Navin H. Jayaram, Assistant Appellate Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
SUTIN, Judge.
{1} This is another Fourth Amendment seizure case that arrives at our doorstep for
development of the law of reasonable suspicion involving an extended detention of a person
on foot who happens to be in the area of possible criminal activity reported in an anonymous
911 call. Upon being dispatched to an area of reported criminal activity, a police officer
attempted an encounter with Eric K. (Child) and a companion as they were about to enter a
Laundromat located in the vicinity of a reported crime. Child first ignored the officer’s
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summon and entered the Laundromat but then complied upon the officer’s second summon,
after which the officer on more than one occasion told Child to remove his hands from the
pockets of his jacket. After Child’s hands were out of his jacket pockets, the officer noticed
something about the pockets that indicated to the officer that Child may have a weapon. The
officer conducted a patdown and discovered drug paraphernalia, drugs, and a weapon. After
he was arrested and charged, Child sought suppression of the evidence on the ground he was
seized without the requisite reasonable suspicion. The district court denied Child’s motion
to suppress as to the weapon and the drug paraphernalia. We reverse.
BACKGROUND
{2} A 911 caller who identified himself as Johnny Smith reported that someone, referred
to in the conversation with dispatch as “she,” pulled a gun and took his money apparently
during a drug transaction in the vicinity of Tibbetts Middle School in Farmington, New
Mexico. When the 911 call was suddenly dropped, dispatch called the reporting party back
asking for Johnny Smith, and a female named “Keisha Red” answered, indicated that she
was talking on a cell phone, and stated that “There’s no Johnny here” and that “[h]e left
walking down the street.”
{3} The dispatcher relayed information to Officer Mark Gaines. The information relayed
was that there was an “armed subject” in the area of the school and named “Johnny Smith”
as the party who reported to dispatch that someone just pulled a gun on him when “buying
Code 12.” The dispatcher did not mention that the reporting party indicated that the assailant
was female. The officer testified that he had no other description of the 911 caller, had no
description of the person with the gun, and did not have a specific location where the
reported incident occurred when he proceeded to the area. It was mid-afternoon on a day
when the school was closed for Christmas break.
{4} Approximately two blocks from the school, Officer Gaines observed two males
walking toward the back door of a Laundromat. There were a few other people in the
Laundromat parking lot but “nobody walking.” The officer was looking for people on foot
“that could be a danger.” The officer was concerned about community safety given the
report that someone had pulled a gun on someone, and the officer intended to ask the two
males if they knew anything about what had happened, to see if they had heard or seen
anything, and to ascertain if they might be a suspect. The two looked “a little bit nervous”
to the officer, and he decided to contact them without really knowing “where it was gonna
go at that point.”
{5} When they saw the officer, the two persons moved quickly to the Laundromat,
whereupon the officer hollered for them to talk to him. One of the two persons, Child, darted
quickly into the Laundromat; his companion, whom Child testified was his cousin,
approached the officer. The officer “yelled-hollered-asked” Child to come out and to come
over to talk to the officer, and Child came out of the Laundromat. The officer saw nothing
incriminating in the conduct of the two at this point.
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{6} In answer to the State’s question whether he saw anything in Child’s behavior that
he thought was suspicious, the officer testified that “it was a little strange that as . . . they
were on the south side of the Laundromat approaching the Laundromat from the east, . . . as
I pulled up . . . coming from the west toward[] the east, they saw me [and] they began
immediately walking to the back of the Laundromat. . . . Nothing real suspicious at that time
but it is one of those things that makes you say well maybe I should talk to these people. .
. . Nothing incriminating, but possibly suspicious.” The officer nevertheless thought Child
“appeared to be acting nervous initially just by running” into the Laundromat and that Child
appeared “a little more nervous” as the officer began talking to him, which added to the
officer’s suspicions. Because Child and his companion had their hands in the pockets of
their jackets, for safety the officer asked them both to show their hands. The companion
complied, but Child did not, and the officer started to wonder why Child was not pulling his
hands out of his pockets. Officer Gaines again asked Child to pull his hands out but Child
pulled out only his left hand, which seemed strange to the officer. The officer took a step
closer to Child, and Child immediately took his right hand out. The officer noticed that the
right side of Child’s jacket was hanging lower than the other side, indicating something
heavy in the front jacket pocket.
{7} For his safety, the officer approached Child and patted the pocket for a weapon and
he immediately recognized what he knew was a revolver in the jacket pocket. He asked
Child what was in the pocket; Child began stuttering and could not answer. The officer
pulled out the revolver and continued a patdown for any additional weapons. During the
continued patdown, a large glass pipe which the officer recognized as a marijuana pipe fell
out of Child’s pocket. The officer asked Child where the drugs were, and Child said they
were in his front pants pocket. The officer asked if he could retrieve them and he pulled
marijuana from Child’s pants pocket.
{8} The State filed a petition alleging that Child was a delinquent child and charging
Child with unlawful possession of a handgun by a person less than nineteen years,
possession of marijuana one ounce or less, and use or possession of drug paraphernalia.
Child moved to suppress the evidence obtained from the search. Child asserted that the
officer had no legal basis on which to stop him and that the patdown search was a direct
result of an illegal seizure.
{9} In its response, the State argued that the officer did not need reasonable suspicion to
stop Child and to frisk him. The State also argued that the officer had reasonable and
individualized suspicion based on the facts that “[t]he juveniles were in the area where a
crime had been reported and they ran from Officer Gaines when Officer Gaines tried to
approach them.” Somewhat differently, in the hearing on the motion to suppress, the State
argued that the officer had reasonable suspicion to stop Child based on the information the
officer had been given by dispatch, and he had reasonable suspicion to conduct a patdown
for weapons based on Child’s nervous, evasive, and suspicious behavior.
{10} Child testified at the suppression hearing. He stated that he was playing X-Box at
his brother-in-law’s house. He was waiting for his mother to pick him up. His mother did
not arrive, and Child and his cousin walked to the Laundromat to call Child’s mother from
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a pay phone to come pick him up. The phone was in the back of the Laundromat, and Child
typically entered the Laundromat at that location. He did not see the police until he walked
out of the Laundromat. Upon exiting the building, Child saw three police cars in front of the
building. Child said he was not asked any investigative questions before Officer Gaines
patted him down and discovered the revolver, marijuana, and marijuana pipe. In rebuttal
testimony, Officer Gaines testified that he was the only officer at the Laundromat until after
he retrieved the gun from Child’s pocket.
{11} Following the testimony and counsel’s argument at the hearing on Child’s motion
to suppress, the court indicated that the officer’s initial contact with Child was appropriate
and justified based first on the report of a gun in the area and based also on having observed
Child and the other person as the only people walking in the area followed by Child’s
evasive behavior upon seeing the officer. The court stated that the patdown was reasonable
considering Child’s continued evasive behavior in refusing to show his hands combined with
the officer’s observation of Child’s jacket hanging low after Child did finally remove both
hands.
{12} Following the hearing, Child agreed to admit to the charge of use or possession of
drug paraphernalia, reserving his right to appeal the court’s decision on his motion to
suppress. Not long afterward, Child filed a motion to reconsider. In his motion, Child
discussed circumstances relating to the 911 call, particularly stressing the fact that the call
was from an anonymous caller who identified a female as the person who pulled the gun on
him and arguing that the information in the call was insufficient for the police to suspect
Child was involved in the incident. Child also argued that “Officer Gaines’ investigatory
seizure of the Child, after merely observing . . . Child quickly enter the rear entrance of the
Laundromat was not enough to establish reasonable suspicion that . . . Child was or had been
engaging in any criminal activity.”
{13} The court did not enter written findings of fact or a written order denying Child’s
motion to suppress or motion for reconsideration. Within several days, the court entered a
judgment and disposition in which the court stated that Child had been adjudicated on the
day of the suppression hearing of use or possession of drug paraphernalia. The court placed
Child on probation for an indeterminate period of time not to exceed two years. Child’s
specific assertion of error on appeal is that the officer did not have reasonable, articulable
suspicion of criminal activity to justify his seizure, and therefore, the evidence ultimately
obtained pursuant to the unlawful seizure had to be suppressed.
STANDARD OF REVIEW
{14} When we review a court’s denial of a motion to suppress, “[w]e view the facts in the
manner most favorable to the prevailing party and defer to the district court’s findings of fact
if substantial evidence exists to support those findings.” State v. Urioste, 2002-NMSC-023,
¶ 6, 132 N.M. 592, 52 P.3d 964. “All reasonable inferences in support of the district court’s
decision will be indulged in, and all inferences or evidence to the contrary will be
disregarded.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856
(alterations omitted) (internal quotation marks and citation omitted). When a seizure
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occurred and whether it was based on reasonable suspicion are mixed questions of fact and
law because they involve the mixture of facts and evaluative judgments. See State v.
Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994) (concluding that the mixed
question of exigent circumstances should be subject to de novo review as a question of law).
We review those questions de novo. Id.; Urioste, 2002-NMSC-023, ¶ 6 (indicating that
search and seizure issues and determinations of reasonable suspicion are mixed questions
of fact and law that should be reviewed de novo).
DISCUSSION
{15} There is no issue in this case regarding whether Child was seized under the Fourth
Amendment to the United States Constitution or under article II, section 10 of the New
Mexico Constitution. The first task at hand is to attempt to determine at what point Child
was seized and then to attempt to determine whether the seizure was supported by reasonable
suspicion and was lawful. “Reasonable suspicion must exist at the inception of the seizure.”
State v. Garcia, 2009-NMSC-046, ¶ 43, 147 N.M. 134, 217 P.3d 1032 (internal quotation
marks and citation omitted).
{16} In his briefs, Child attempts to transfer or expand the reasonable-suspicion
requirement from the individual officer to “the police” and to the dispatcher in arguing that
“[t]he police would only possess the reasonable suspicion to investigate one female, not two
males,” emphasizing that the dispatch operator did not tell the officer that a female had
pulled a gun, and that “the focus should be on whether the dispatch operator had reasonable
suspicion to tell the officers that ‘someone’ had pulled . . . a gun on Johnny Smith.” We
reject Child’s argument that the dispatcher or that the police, generally based on what the
dispatcher was told, had to have articulable, reasonable suspicion to sustain Officer Gaines’
seizure of Child. Child provides no authority for such an argument, we will not attempt to
research the point for Child, and we will not consider it. In re Adoption of Doe, 100 N.M.
764, 765, 676 P.2d 1329, 1330 (1984) (stating that an appellate court will not consider an
issue if no authority is cited in support of that issue). Furthermore, at oral argument in this
case, defense counsel, who replaced counsel who wrote Child’s appellate briefs, abandoned
the foregoing expansive view of the reasonable-suspicion requirement.
{17} Child appears to assert that Officer Gaines had a too-limited amount of information
from dispatch to approach Child just based on Child’s proximity to the school. Child points
out that the officer was told only that “someone” had pulled a gun on the caller in the area
of the school while the caller was trying to buy drugs. Thus, Child appears to argue that the
911 call was somehow legally insufficient to permit the officer to initiate contact with Child
to ask questions.
{18} We reject this argument as well. Under the circumstances, we see no basis on which
to hold that Officer Gaines had no lawful basis on which to even initiate a generalized
investigation of the reported criminal activity by attempting to talk to Child. A more
accurate or detailed statement from the dispatch operator regarding the gender of the person
with the gun might have caused Officer Gaines to ignore Child and his companion.
Notwithstanding this poor communication, however, based on the information he received
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from dispatch, Officer Gaines lawfully could approach individuals walking in the Tibbetts
school area, including Child and his companion, to ascertain if they would answer questions
in regard to the reported criminal activity without first having articulable, reasonable
suspicion that the individuals had been engaged in the reported criminal activity. See Jason
L., 2000-NMSC-018, ¶ 14 (“The police do not need any justification to approach a person
and ask that individual questions; however, the officer may not convey a message that
compliance with their requests is required.” (internal quotation marks and citation omitted));
see also State v. Gutierrez, 2007-NMSC-033, ¶ 32, 142 N.M. 1, 162 P.3d 156 (“Courts have
consistently recognized that law enforcement officers do not violate the Fourth Amendment
by merely approaching an individual on the street or in another public place, by asking him
if he is willing to answer some questions, by putting questions to him if the person is willing
to listen.” (internal quotation marks and citation omitted)). An investigatory stop and seizure
does not occur from such an approach as long as (1) the officer does not convey a message
that compliance with his request is required, or (2) the circumstances do not cause a
reasonable individual to believe that he was not free to refuse compliance and to disengage
or leave. Jason L., 2000-NMSC-018, ¶¶ 14-15.
{19} We turn to the question of when Child was seized. In oral argument, Child argued
that he was seized when the officer called for him to come out of the Laundromat, but if not
at that point, then when the officer asked or told Child to take his hands out of his pockets.
The district court appears to have determined that Child was seized when the officer asked
Child to show his hands, and to have reasoned and concluded that, on balance, based on what
the officer was told by dispatch, what he saw, and the expressed concern for his own and
community safety, the officer lawfully required the show of hands. The court felt the
officer’s actions were appropriate and justified because a weapon was allegedly involved in
the reported criminal activity occurring only minutes before the officer encountered Child
in the same general area as the location of the reported activity, because Child and his
companion were the only people the officer saw walking in the area, and because Child
evasively moved toward the Laundromat when he saw the police.
{20} In deciding this question, we see no need to decide whether a seizure occurred at the
point the officer asked or told Child to come out of the Laundromat. We determine, under
the facts and arguments presented in this appeal and based on how we read our case law, that
the officer’s request or command that Child take his hands out of his pockets constituted a
seizure. At that point and by that request, the officer made a show of authority such that any
reasonable person in Child’s circumstance would not have felt free to refuse compliance and
to leave. See Garcia, 2009-NMSC-046, ¶¶ 35-37 (maintaining “Mendenhall’s free-to-leave
test as the proper measure of a seizure under [a]rticle II, [s]ection 10 [of the New Mexico
Constitution]”); Jason L., 2000-NMSC-018, ¶¶ 16-17 (reciting one factor for determining
freedom to leave to be the conduct of the officer including use of language or tone of voice
indicating that compliance with the officer’s request might be compelled, concluding that
a seizure occurred and a person in the defendant’s position would not feel free to leave when
the officer twice asked the defendant if he had any knives or guns, and relying in part on a
federal case holding that a police officer’s show of authority, announcing he was a police
officer, and ordering the defendant to stop was an investigative seizure); State v. Talley,
2008-NMCA-148, ¶ 14, 145 N.M. 127, 194 P.3d 742 (stating that the officer’s ordering the
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defendant to remove his hand from his pocket constituted a show of authority and that a
show of authority is a restraint when the subject submits to that authority).
{21} This show-of-hands point required articulable, reasonable suspicion that Child had
engaged in criminal activity in order for the officer to initiate, as he did, an investigatory
detention of Child. See State v. Funderburg, 2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d
922 (stating that reasonable 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” (alteration in original) (internal quotation marks
and citation omitted)); Gutierrez, 2007-NMSC-033, ¶ 29 (“The Fourth Amendment . . .
requires that an officer have reasonable, articulable suspicion of criminal activity to justify
a temporary seizure for the purpose of questioning[.]”); Urioste, 2002-NMSC-023, ¶ 10 (“A
police officer cannot forcibly stop an individual for purposes of investigation merely on the
basis of an inchoate and unparticularized suspicion or hunch that criminal activity may be
afoot.” (internal quotation marks and citation omitted)); Jason L., 2000-NMSC-018, ¶ 20
(stating that “[a] reasonable suspicion is a particularized suspicion . . . that a particular
individual, the one detained, is breaking, or has broken, the law” and that “[r]easonable
suspicion must exist at the inception of the seizure”).
{22} We specifically limit our holding as to seizure to the facts and to the arguments in
this case. Child at no time argued in the district court or in this Court the question whether
under these or analogous circumstances, including when an encounter has not yet turned into
a seizure or investigative detention, an officer should be permitted, for safety reasons,
without having individualized and articulable, reasonable suspicion of criminal activity, to
merely ask a person to take his hands out of his pockets before continuing with an intended
voluntary or consensual encounter. See State v. Nettles, 855 P.2d 699, 702 (Wash. Ct. App.
1993) (stating that in furtherance of the community-caretaker function “it is not unreasonable
to permit a police officer in the course of an otherwise permissive encounter to ask an
individual to make his hands visible”); see also People v. Hardrick, 60 P.3d 264, 269 (Colo.
2002) (holding that in a circumstance in which a third party inserts himself into a situation
where an officer is engaged in a valid search or arrest the officer “may ask the interloper to
show his hands” in order to ensure officer safety); State v. Jennings, 99 P.3d 1145, 1149-50
(Kan. Ct. App. 2004) (indicating that the officer’s statement to subjects to remove their
hands from their pockets during a voluntary encounter “was simply made for officer safety
reasons and would not communicate to a reasonable person that he or she was not free to
leave” and therefore did not turn the voluntary encounter into a seizure). We intimate no
view one way or another on this question, leaving it perhaps for another day.
{23} The difficult and close question for us to answer is whether the circumstances leading
up to the request for a show of hands gave rise to articulable, reasonable suspicion that Child
was involved in criminal activity. The State contends that the following circumstances are
sufficient to create articulable, reasonable suspicion. Officer Gaines was investigating the
use of a gun in a drug transaction in a particular area. This criminal activity was within two
blocks of the Laundromat. The officer saw Child and his companion walking from the
direction of the school. The two were the only people the officer saw walking in the
Laundromat area. The officer saw that they had their hands in their pockets. When he
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hollered, the officer saw that Child saw him, and he saw Child immediately dart into the
Laundromat. At the same time, Child’s companion complied with the officer’s request to
talk to them. The State’s underlying thrust is that of proximity of the encounter with Child
to the area of the reported activity. See State v. Cobbs, 103 N.M. 623, 625-27, 711 P.2d 900,
902-04 (Ct. App. 1985) (determining that officers dispatched to investigate suspicious
persons in the area of a suspected residential burglary in progress, where two men were
reportedly repeatedly approaching the residence and returning to a vehicle parked behind the
residence, had reasonable suspicion to stop a vehicle as it was leaving and to proceed to
conduct a patdown of the two occupants); see also State v. Jimmy R., 1997-NMCA-107,
¶¶ 2-3, 124 N.M. 45, 946 P.2d 648 (determining that the officer had reasonable suspicion to
seize subjects who were in the vicinity of reported criminal activity when the officer
observed no other persons in the area and the subjects began to walk away when the officer
drove up); State v. Watley, 109 N.M. 619, 624, 788 P.2d 375, 380 (Ct. App. 1989)
(upholding an investigative stop and detention of a suspect where, under the totality of the
circumstances, including the fact that the subject was in the immediate area of the recently
reported criminal activity, the officer “could reasonably have concluded that [the] defendant
may have been involved in the commission of the reported offense”).
{24} We must disagree. The proximity basis on which the State relies is not sufficient in
this case to support the necessary individualized articulable, reasonable suspicion at the point
the officer told Child to take his hands out of his pockets following which Child complied
to the extent of first taking one hand out, and later taking both hands out. The evidence
produced from the ensuing patdown was therefore unlawfully obtained and should have been
suppressed.
CONCLUSION
{25} We reverse the district court’s denial of Child’s motion to suppress. The motion
should have been granted and the evidence in question should have been suppressed. We
remand for further proceedings in accordance with this opinion.
{26} IT IS SO ORDERED.
____________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Chief Judge
___________________________________
MICHAEL D. BUSTAMANTE, Judge
Topic Index for State v. Eric. K., No. 28,583
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AE APPEAL AND ERROR
AE-SR Standard of Review
CD CHILDREN
CD-DT Detention
CL CRIMINAL LAW
CL-CL Controlled Substances
CL-WO Weapons Offences
CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment
CT-SU Suppression of Evidence
CA CRIMINAL PROCEDURE
CA-RS Reasonable Suspicion
CA-SZ Search and Seizure
CA-WS Warrantless Search
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