1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,632
10 MARK JIMENEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas A. Rutledge, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 Jacqueline R. Medina, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Jacqueline L. Cooper, Acting Chief Public Defender
20 Eleanor Brogan, Assistant Appellate Defender
21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 VANZI, Judge.
1 Defendant Mark Jimenez appeals his convictions of attempted possession of
2 methamphetamine, as defined by NMSA 1978, Section 30-31-23(D) (2005), and
3 possession of drug paraphernalia, as defined by NMSA 1978, Section 30-31-25.1(A)
4 (2001). Defendant contends that he was illegally seized during his encounter with the
5 police, and thus, the evidence obtained as a result of the encounter should have been
6 suppressed. We agree and reverse his convictions. Because we reverse based on the
7 illegal seizure, we do not reach Defendant’s argument that his right to confrontation
8 was violated.
9 BACKGROUND
10 The following facts are taken from testimony at the April 11, 2008, hearing on
11 Defendant’s motion to suppress and from the district court’s findings of fact and
12 conclusions of law. On November 30, 2006, in Artesia, New Mexico, an anonymous
13 caller called 911 and stated that someone at the Jaycee Park needed help and then
14 hung up. The caller provided no additional information; however, Officers Silvas and
15 Horrell, who were in two separate vehicles, were dispatched to the area to respond to
16 the call.
17 After initially driving through part of the park without seeing anyone, the
18 officers noticed a Chevy Camaro parked with its lights and engine off. The officers
19 pulled up to the car, and each shined a spotlight toward the middle of the car. Officer
2
1 Silvas got out of his car and approached the driver, Tommy Briscoe ,while Officer
2 Horrell approached Defendant on the passenger side. Through the driver-side
3 window, which was cracked about four to five inches, Officer Silvas asked Tommy,
4 “What are you guys doing?” Tommy said that they were “just chilling” and that there
5 was “nothing” going on. Officer Silvas then asked Tommy to step out of the car.
6 When Tommy got out of the car, he left his door open. Officer Horrell also had
7 Defendant step out of the car.
8 After both Defendant and Tommy went to the rear of the car, they were patted
9 down for weapons, and Officer Silvas started back towards the driver’s side of the car,
10 while Officer Horrell remained with Defendant and Tommy. Officer Silvas shined his
11 flashlight into the car from the open driver-side door, and he saw a dinner plate
12 sticking half-way out from underneath a seat. On the plate was a white, powdery
13 substance. He removed the plate from the car, placed it on the roof of the car, and
14 asked Tommy what was on the plate. Tommy said that it was “his brother’s
15 experiment.” The officers then called for a narcotics officer. The narcotics officer
16 sent the contents of the plate, as well as other evidence he collected in a more
17 thorough search of the car, to the crime lab to be tested. The test results showed that
18 there were over thirteen grams of methamphetamine in the car.
3
1 Defendant was charged with trafficking a controlled substance, contrary to
2 NMSA 1978, Section 30-31-20(A)(2)(c) (2006), and possession of drug
3 paraphernalia, in violation of Section 30-31-25.1(A). He filed a motion to suppress
4 the evidence obtained as a violation of his rights under Article II, Section 10 of the
5 New Mexico Constitution. The district court denied his motion. At trial, Defendant
6 was convicted of both possession of drug paraphernalia and attempted possession of
7 methamphetamine. Defendant appeals his convictions.
8 On appeal, Defendant argues that the police illegally detained him and that the
9 evidence discovered should have been suppressed because it was the result of his
10 illegal detention. Defendant also argues that his right to confrontation was violated
11 and that the “collusion between Sergeant Haskins and the lab analyst constitute[d]
12 outrageous government behavior.” As we have noted, we do not reach these latter two
13 issues.
14 DISCUSSION
15 Standard of Review
16 Defendant contends that his motion to suppress should have been granted
17 because he was detained in violation of both the Fourth Amendment of the United
18 States Constitution and Article II, Section 10 of the New Mexico Constitution. At the
19 outset, we note that Defendant properly preserved his argument that Article II, Section
4
1 10 affords him greater protections than the Fourth Amendment. Defendant asserted
2 that his state constitutional rights were violated both in his motion to suppress and by
3 developing a factual record at the hearing on his motion. See State v. Leyva, 2011-
4 NMSC-009, ¶ 48-49, 149 N.M. 435, 250 P.3d 861 (concluding that, where our Article
5 II, Section 10 constitutional provision has already been interpreted to provide greater
6 protection than its federal counterpart, a defendant must develop a factual record and
7 raise the applicable constitutional provision to the district court to preserve his Article
8 II, Section 10 claim).
9 Turning to the standard of review, a district court’s decision to deny a motion
10 to suppress is a mixed question of law and fact. State v. Ketelson, 2011-NMSC-023,
11 ¶ 9, ___ N.M. ___, 257 P.3d 957. While we review the district court’s legal
12 conclusions de novo, we will not disturb the district court’s factual findings if they are
13 supported by substantial evidence. State v. Leyba, 1997-NMCA-023, ¶ 8, 123 N.M.
14 159, 935 P.2d 1171. “[T]he facts [are] viewed in the manner most favorable to the
15 prevailing party.” State v. Brennan, 1998-NMCA-176, ¶ 10, 126 N.M. 389, 970 P.2d
16 161.
17 Defendant Has Standing to Raise the Motion to Suppress
18 As a threshold matter, we must first determine whether Defendant has standing
19 to seek suppression of the evidence obtained from the car. The State argues that
5
1 Defendant, as a mere passenger, does not have standing to contest the search of the
2 car. The State relies on State v. Waggoner, 97 N.M. 73, 75, 636 P.2d 892, 894 (Ct.
3 App. 1981), in which we held that passengers in a vehicle, who were only getting a
4 ride from the driver and did not own the vehicle, did not have a legitimate expectation
5 of privacy in the vehicle and thus, did not have standing to challenge the validity of
6 a search of the vehicle.
7 However, this Court recently clarified the Waggoner line of cases and
8 concluded that while a passenger lacks standing to challenge the search of a vehicle,
9 he nonetheless has standing to seek suppression of evidence obtained as a result of his
10 own illegal detention. State v. Portillo, 2011-NMCA-079, ¶¶ 11, 32, __ N.M. ___,
11 ___ P.3d ___, cert. denied, 2011-NMCERT-006, ___ N.M. ___, ___ P.3d ___; see
12 State v. Sewell, 2009-NMSC-033, ¶ 16, 146 N.M. 428, 211 P.3d 885 (explaining that
13 a defendant has “standing to object to a seizure from a third person which occurred
14 as a result of the exploitation of [the d]efendant’s own unlawful detention.”
15 (alteration, internal quotation marks, and citation omitted)), cert. denied, 2010-
16 NMCERT-001, 147 N.M. 673, 227 P.3d 1055. Thus, any evidence obtained as the
17 result of the passenger’s illegal detention is fruit of the poisonous tree and must be
18 suppressed. See Portillo, 2011-NMCA-079, ¶ 32 (stating that evidence discovered
19 after an illegal detention of passenger/defendant was subject to suppression as fruit
6
1 of the poisonous tree); State v. Cardenas-Alvarez, 2000-NMCA-009, ¶ 25, 128 N.M.
2 570, 995 P.2d 492 (“Evidence obtained must be suppressed if it is the fruit of an
3 illegal detention.”), aff’d, 2001-NMSC-017, 130 N.M. 386, 25 P.3d 225. Defendant
4 here has standing to challenge the lawfulness of his own detention and to seek to
5 suppress the evidence found as a result.
6 Defendant Was the Subject of an Investigative Detention That Was Not
7 Supported by Reasonable Suspicion of a Crime
8 The district court found that the investigative detention began once the officers
9 approached the car, ordered Defendant and Tommy to show their hands, and
10 commanded them to get out of the car. For the reasons that follow, we agree with the
11 district court.
12 An investigative detention “must be reasonably related to the circumstances
13 that initially justified the stop, and the scope of the investigation may expand only
14 when the officer has reasonable and articulable suspicion of other criminal activity.”
15 State v. Patterson, 2006-NMCA-037, ¶ 16, 139 N.M. 322, 131 P.3d 1286 (internal
16 quotation marks and citation omitted). Here, Defendant and Tommy were seized at
17 the point that they were commanded to show their hands and step out of the car. See
18 State v. Eric K., 2010-NMCA-040, ¶ 20, 148 N.M. 469, 237 P.3d 771 (concluding that
19 at the point the officer requested or commanded the defendant to show his hands, the
20 defendant was seized because the officer’s show of authority was such that a
7
1 reasonable person in the situation would not have felt free to leave); State v. Boblick,
2 2004-NMCA-078, ¶ 10, 135 N.M. 754, 93 P.3d 775 (concluding that “a reasonable
3 person would [not] feel free to leave after officers knocked on his car window, asked
4 him to exit the vehicle, and questioned him about weapons” and that at the point the
5 officer “asked [defendant] to get out of the car and began questioning him, the
6 encounter resembled an investigatory detention more than it did a welfare check”).
7 Furthermore, Officer Horrell described the detention as a felony take down.
8 We first determine whether the investigative detention itself was justified. If
9 it was not, we then look to whether any exceptions existed to support the officers’
10 actions. We conclude that the investigative detention in this case was not justified
11 because the officers did not articulate any specific facts at the hearing on the motion
12 to suppress that would have supported a conclusion that the officers had reasonable
13 suspicion of a crime. See Eric K., 2010-NMCA-040, ¶ 21 (stating that the officer had
14 to have “articulable, reasonable suspicion that [the defendant] had engaged in criminal
15 activity in order for the officer to initiate . . . an investigatory detention of [the
16 defendant]”). In fact, the officers provided no testimony during the hearing that
17 Defendant and Tommy were breaking or had broken the law. See State v. Jason L.,
18 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856 (stating that “[r]easonable
19 suspicion must exist at the inception of the seizure” and it “is a particularized
8
1 suspicion . . . that a particular individual, the one detained, is breaking, or has broken,
2 the law”). To the contrary, Officer Silvas testified that he did not suspect that Tommy
3 was committing a crime and that he did not have a reason to believe there was a crime
4 in progress at the park. As a result, the investigative detention was illegal, and the
5 evidence should have been suppressed unless it was otherwise justified. See State v.
6 Wagoner, 2001-NMCA-014, ¶¶ 29-30, 130 N.M. 274, 24 P.3d 306 (explaining that
7 evidence obtained by some illegality is to be excluded or suppressed under the
8 exclusionary rule and that under the New Mexico Constitution, the party is returned
9 to the position he would have been in had the right not been violated); State v.
10 Ledbetter, 88 N.M. 344, 346, 540 P.2d 824, 826 (Ct. App. 1975) (concluding that
11 marijuana discovered after police officers ordered the defendants out of a car was a
12 search that was illegal because the officers did not have a warrant, and the
13 circumstances surrounding the search did not meet any of the exceptions to the
14 warrant requirement).
15 The Police Were Not Engaged in Their Role as Community Caretakers During
16 the Encounter With Defendant
17 Concluding that the investigatory detention was not supported by reasonable
18 suspicion of a crime, we next turn to whether Defendant’s detention was justified by
19 the community caretaking exception to the Fourth Amendment. The district court
20 concluded that the “[c]ommunity [c]aretaker duty of the [p]olice was relevant to their
9
1 actions[,] and they were reasonable in discerning the number of occupants of the
2 vehicles as well as their physical well being and taking appropriate steps for officer
3 safety.” We disagree.
4 The Fourth Amendment of the United States Constitution and Article II, Section
5 10 of the New Mexico Constitution provide that a person has a right to be free from
6 unreasonable searches and seizures where the person has a constitutionally recognized
7 expectation of privacy in the thing being searched or seized. Leyva, 2011-NMSC-009,
8 ¶ 1; State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d 1032. Although
9 the Fourth Amendment and Article II, Section 10 generally require reasonable
10 suspicion for investigatory detentions, “[t]he community caretaker exception
11 recognizes that . . . reasonable suspicion [is] not required when police are engaged in
12 activities that are unrelated to crime-solving.” Ryon, 2005-NMSC-005, ¶ 24. When
13 police are engaged in a community caretaking capacity, the officers are “motivated by
14 a desire to aid victims rather than investigate criminals.” Id. ¶ 25 (internal quotation
15 marks and citation omitted).
16 Three distinct doctrines have emerged under the community caretaker
17 exception, two of which are relevant here. See id. ¶ 25 (setting forth the three
18 different doctrines within the community caretaking exception). The two pertinent
19 ones are the public servant doctrine, also sometimes referred to simply as the
10
1 community caretaking doctrine, and the emergency assistance doctrine. Id. ¶ 25.
2 Under the public servant doctrine, officers must demonstrate “a specific, and
3 articulable concern for public safety requiring the officer’s general assistance.” Id. ¶
4 26. The primary characteristic of the public servant doctrine “is the absence of
5 concern by police about violations of the law.” Id. ¶ 21. Accordingly, “we must
6 measure the public need and interest furthered by the police conduct against the
7 degree of and nature of the intrusion upon the privacy of the citizen” to determine
8 when a “warrantless search or seizure is reasonable on the basis of the community
9 caretaker exception[.]” Id. ¶ 24 (internal quotation marks and citation omitted). The
10 emergency assistance doctrine, on the other hand, applies to seizures when police
11 reasonably believe that a person is in need of immediate aid to protect or preserve life
12 or avoid serious injury, and the scope of the seizure is strictly limited to that purpose.
13 Id. ¶ 29. It is a separate doctrine from the exception for exigent circumstances that
14 also excuses the need for a warrant. Id. ¶ 26, n.4. Consequently, when acting in such
15 a role, “the officer may not do more than is reasonably necessary to determine whether
16 a person is in need of assistance, and to provide that assistance.” Id. ¶ 29 (internal
17 quotation marks and citation omitted). We observe that while we have generally
18 analyzed the emergency assistance doctrine in the context of warrantless home entries,
19 this Court has considered the doctrine in other contexts as well. See State v. Montaño,
11
1 2009-NMCA-130, ¶¶ 16, 20, 147 N.M. 379, 223 P.3d 376 (discussing the emergency
2 assistance doctrine and holding that there was no “emergency requiring the officer’s
3 intrusion into [the d]efendant’s privacy” in a case where an officer saw the defendant
4 running toward his vehicle with no shirt on and his hand bleeding). We begin with
5 the public servant doctrine and then turn to the emergency assistance doctrine.
6 Based on our review of the record, we conclude that the public servant doctrine
7 does not justify the officers’ actions in this case. Here, the officers only had
8 generalized, nonspecific information that someone at the Jaycee Park needed help.
9 See Apodaca v. State, Taxation & Revenue Dep’t, 118 N.M. 624, 626, 884 P.2d 515,
10 517 (Ct. App. 1994) (stating that in their role as public servants, police officers can
11 act upon a “specific, articulable safety concern” to justify their actions). They did not
12 know the identity or gender of the caller. They did know what kind of situation
13 created the need for “help.” And they did not know what kind of “help” was needed.
14 The officers did not articulate anything more than a generalized response to a vague
15 911 call. Further, they did not inquire further about Defendant’s or Tommy’s welfare
16 before having them get out of the car or ask if Defendant was in need of medical
17 assistance or assistance from others. See Montaño, 2009-NMCA-130, ¶¶ 13, 19
18 (stating that the state must demonstrate that the public need and interest furthered by
19 the police conduct must outweigh the intrusion into the defendant’s privacy and
12
1 concluding that the state did not demonstrate that there was a public need or interest
2 that outweighed the intrusion of asking the defendant for identification).
3 Consequently, we conclude that an unspecified, general call for “help” at the park did
4 not amount to an emergency requiring the officer’s intrusion into Defendant’s privacy.
5 We next consider whether the officers could have been acting in their capacity
6 as community caretakers through the emergency assistance doctrine. Our Supreme
7 Court has established a three-part test when applying the emergency assistance
8 doctrine. Ryon, 2005-NMSC-005, ¶ 29. The first prong is an objective standard that
9 the officers “must have reasonable grounds to believe that there is an emergency at
10 hand and an immediate need for their assistance for the protection of life or property.”
11 Id. (internal quotation marks and citation omitted). The second is a subjective test and
12 under the third prong, the court must determine that the search or seizure is “strictly
13 circumscribed by the exigencies which justify its initiation.” Id. ¶¶ 33, 38 (internal
14 quotation marks and citation omitted). It is the State’s burden to establish all of the
15 elements. Id. ¶ 29.
16 In this case, the State fails to meet even the first prong of the emergency
17 assistance doctrine that requires “a strong perception that action is required to protect
18 against imminent danger to life or limb[.]” Id. ¶ 31. In Ryon, our Supreme Court
19 listed some of the factors that the court should consider when analyzing whether the
13
1 emergency assistance doctrine applies, including “the purpose and nature of the
2 dispatch, the exigency of the situation based on the known facts, and the availability,
3 feasibility[,] and effectiveness of alternatives to the type of intrusion actually
4 accomplished.” Id. ¶ 32 (internal quotation marks and citation omitted). We assume,
5 without deciding, that the officers’ initial response of traveling to the park may have
6 met the first prong of the emergency assistance doctrine test because a 911 call can
7 presumably indicate that an emergency is at hand and that someone needs immediate
8 assistance to protect their life or property. However, once the officers reached the
9 park and approached Tommy’s car, there were no facts indicating that Tommy or
10 Defendant was involved in an emergency. When Officer Silvas first asked what
11 Tommy and Defendant were doing in the park, Tommy answered that he and
12 Defendant were “just chilling.” Such a response did not indicate that any emergency
13 was at hand or that Defendant, Tommy, or anyone else was in need of immediate
14 assistance. See id. ¶¶ 26-27 (emphasizing the strong sense of urgency required of the
15 police to justify a warrantless entry into a home under the emergency assistance
16 doctrine); Montaño, 2009-NMCA-130, ¶ 20 (noting that this Court was “struck by
17 the officer’s complete failure” to determine whether the defendant was in need of
18 medical assistance or to get to a place where he could receive assistance). Rather than
19 asking Defendant and Tommy if there were any other people in the car or if anyone
14
1 needed help, which would have allowed them to determine if there was anyone in
2 need of their assistance, the officers—relying only on the vague information from the
3 call—immediately ordered Defendant and Tommy to get out of the car and patted
4 them down for weapons. See Boblick, 2004-NMCA-078, ¶ 11 (noting that weapons
5 frisks are distinct from welfare checks under the community caretaking function and
6 “the officer must have a sufficient degree of articulable suspicion that the person being
7 frisked is both armed and presently dangerous” to justify the frisk (emphasis, internal
8 quotation marks and citation omitted)). Thus, we conclude that Officers Silvas and
9 Horrell did more than was reasonably necessary to determine if Defendant, Tommy,
10 or someone else was in need of assistance. See Ryon, 2005-NMSC-005, ¶¶ 42-43
11 (concluding that officers did not act as reasonable community caretakers when they
12 entered a home based on only generalized, nonspecific information that Defendant
13 might be inside and that he might have been injured). The district court erred in
14 finding that either of the pertinent community caretaker exceptions applied to the facts
15 in this case.
16 The District Court Erred in Denying Defendant’s Motion to Suppress Because
17 the Evidence Was Discovered as a Result of His Own Unlawful Detention
15
1 Because we have concluded that Defendant was unlawfully detained and that
2 no exceptions apply, we turn to the question of whether the evidence was obtained as
3 a result of the “the exploitation of Defendant’s own unlawful . . . detention[.]” See
4 State v. Hernandez, 1997-NMCA-006, ¶ 17, 122 N.M. 809, 932 P.2d 499. In other
5 words, we consider whether evidence obtained from a search or seizure of a third
6 person and discovered after a defendant’s own unlawful detention must be suppressed.
7 This Court has addressed the issue in two factually similar cases. In Portillo,
8 2011-NMCA-079, ¶¶ 32-33, we held that evidence obtained in the search of a vehicle
9 in which the defendant was a passenger after the police illegally detained the
10 defendant by way of improper questioning, was subject to suppression. Similarly, in
11 Hernandez, 1997-NMCA-006, ¶¶ 16-17, we concluded that evidence discovered in
12 a search of the defendant’s daughter after the defendant’s car had been stopped had
13 to be suppressed as the fruit of the defendant’s own illegal arrest. Thus, our broad
14 interpretation of Article II, Section 10 protects vehicle passengers from “flagrantly
15 illegal” action by police officers. Portillo, 2011-NMCA-079, ¶ 32 (internal quotation
16 marks and citation omitted). Furthermore, “once the occupants of [a] vehicle have
17 established that their detention . . . was illegal, . . . any evidence obtained as a result
18 of their detention must be excluded as fruit of the poisonous tree” because that
19 evidence is the exploitation of a defendant’s own unlawful detention. Id. ¶ 29
16
1 (internal quotation marks and citation omitted); Sewell, 2009-NMSC-033, ¶ 16
2 (providing standing to a defendant to seek suppression of evidence that was the “result
3 of the exploitation of [the d]efendant’s own unlawful detention.” (alteration, internal
4 quotation marks, and citation omitted)).
5 Here, it is clear that Defendant was the subject of an illegal detention. Without
6 reasonable suspicion of a crime, the officers required Defendant and Tommy to get
7 out of the vehicle where they were both held by Officer Horrell near the back of the
8 car, while Officer Silvas returned to the car and noticed the plate. The officers would
9 not have found the plate or other narcotic substances in the car if they had not detained
10 Defendant and Tommy. The evidence was found as a result of both Defendant and
11 Tommy being outside of the vehicle. See Hernandez, 1997-NMCA-006, ¶¶ 29, 33
12 (concluding that the district court should have suppressed evidence of narcotics found
13 on the defendant’s daughter’s person in a strip search following an investigatory stop
14 that turned into a de facto arrest unsupported by probable cause). Based on the
15 foregoing, we hold that the community caretaker exception does not apply in this case,
16 and under the Fourth Amendment, the evidence obtained by the police was the fruit
17 of Defendant’s unlawful investigatory detention, as such, it should have been
18 suppressed.
19 CONCLUSION
17
1 We reverse Defendant’s convictions as they were based on evidence that should
2 have been suppressed.
3 IT IS SO ORDERED.
4 __________________________________
5 LINDA M. VANZI, Judge
6 WE CONCUR:
7 _________________________________
8 CYNTHIA A. FRY, Judge
9 _________________________________
10 RODERICK T. KENNEDY, Judge
18