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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
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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. 29,378
10 STEVEN STILL,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, Jr., District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Victoria Wilson, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Chief Public Defender
20 Nancy M. Hewitt, Appellate Defender
21 Kathleen T. Baldridge, Appellate Defender
22 Santa Fe, NM
23 for Appellant
24 MEMORANDUM OPINION
25 FRY, Judge.
1 Defendant appeals his convictions for one count of aggravated fleeing and one
2 count of aggravated driving while intoxicated (DWI) entered pursuant to a conditional
3 plea reserving his right to appeal the district court’s denial of his motion to suppress
4 evidence. Defendant contends that the district court improperly denied his motion to
5 suppress, arguing that the officer lacked reasonable suspicion at the inception of the
6 traffic stop and that the stop was pretextual under State v. Ochoa, 2009-NMCA-002,
7 146 N.M. 32, 206 P.3d 143. We affirm.
8 BACKGROUND
9 At the suppression hearing, the district court entered detailed findings of fact
10 regarding the traffic stop, which reflected the following. On August 30, 2008, Officer
11 Mike Briseno of the Farmington Police Department drove by a parked car in a parking
12 lot and observed Defendant sitting in the driver’s seat leaning over in a manner he
13 believed indicated that Defendant was administering drugs by intravenous injection.
14 Officer Briseno testified that he decided to circle the block and re-approach the
15 parking lot with the intention of running a license plate check on the vehicle. Upon
16 re-approaching the lot, the officer saw that Defendant had left the parking lot and was
17 en route on a roadway. The officer began following Defendant to investigate further.
18 The officer’s pacing of Defendant indicated that Defendant was speeding. The officer
19 testified that he was driving 30 mph over the posted speed limit and was unable to
2
1 gain on Defendant’s vehicle. The officer also observed Defendant’s vehicle cross the
2 center double yellow lines twice. After Defendant’s vehicle and the officer’s marked
3 police unit cleared an intersection, Officer Briseno activated his emergency lights to
4 pull Defendant over. Rather than stopping his vehicle, Defendant continued driving
5 in excess of the speed limit and failed to stop at two posted stop signs, including one
6 where two other vehicles were present.
7 Eventually, Defendant’s vehicle stalled and Officer Briseno made contact with
8 Defendant. Upon approaching Defendant, Officer Briseno observed that Defendant
9 was lethargic, sweating profusely, pale, and the officer also smelled the odor of an
10 alcoholic beverage on Defendant’s breath. Defendant was ultimately arrested and
11 charged with aggravated DWI, aggravated fleeing a law enforcement officer, driving
12 with a suspended or revoked license, possession of drug paraphernalia, and possession
13 of an open container in a motor vehicle. He was also cited for failure to maintain a
14 lane and the two stop sign violations.
15 Defendant filed a motion to suppress the evidence obtained as a result of the
16 traffic stop, arguing that the officer lacked reasonable suspicion at the inception of the
17 stop and, alternatively, that if reasonable suspicion existed, the stop was pretextual
18 under Ochoa. Defendant specifically argued that the video from Officer Briseno’s in-
3
1 car camera did not show Defendant committing any traffic violations and, therefore,
2 the officer lacked reasonable suspicion and stopped Defendant on pretextual grounds.
3 Upon reviewing the in-car video and hearing testimony from Officer Briseno,
4 the district court denied Defendant’s motion to suppress, concluding that the stop
5 “was not a pretext to search the vehicle for drugs” and that “the seizure of [Defendant]
6 was valid under the New Mexico Constitution.” Defendant then entered a conditional
7 guilty plea to aggravated fleeing a law enforcement officer, in violation of NMSA
8 1978, Section 30-22-1.1 (2003), and aggravated DWI, in violation of NMSA 1978,
9 Section 66-8-102(D)(3) (2008) (amended 2010), reserving the right to appeal the
10 district court’s denial of his motion to suppress. This appeal followed.
11 DISCUSSION
12 On appeal, Defendant argues that his motion to suppress should have been
13 granted because (1) Officer Briseno lacked reasonable suspicion of criminal activity
14 at the inception of the traffic stop, and (2) even if reasonable suspicion existed, the
15 stop was pretextual under Ochoa.
16 A. Standard of Review
17 Because suppression of evidence is a mixed question of law and fact, we apply
18 a two-part review to a district court’s decision regarding a motion to suppress. We
19 determine “whether the law was correctly applied to the facts, viewing them in a
4
1 manner most favorable to the prevailing party.” State v. Jason L., 2000-NMSC-018,
2 ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). In
3 doing so, we defer to the district court’s findings of facts to the extent they are
4 supported by substantial evidence. Id. We “review the application of the law to these
5 facts, including determinations of reasonable suspicion, under a de novo standard of
6 review.” State v. Patterson, 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286.
7 B. Reasonable Suspicion
8 Defendant first contends that Officer Briseno did not have reasonable suspicion
9 of criminal activity at the inception of the traffic stop. He argues that the officer’s
10 initial observation of Defendant in his parked vehicle “leaning forward and focusing
11 down on his left arm” was insufficient to constitute reasonable suspicion to justify the
12 seizure of Defendant.
13 Relying upon State v. Garcia, 2009-NMSC-046, 147 N.M. 134, 217 P.3d 1032,
14 the parties agree that Defendant was “seized” at the moment when Officer Briseno
15 first engaged his emergency equipment. See id. ¶ 15 (determining that under our state
16 constitution, a person has been seized “only if, in view of all of the circumstances
17 surrounding the incident, a reasonable person would have believed that he was not
18 free” (internal quotation marks and citation omitted)). Because the parties are in
5
1 agreement on this point, we address whether the officer had reasonable suspicion to
2 seize Defendant at that time.
3 An “[i]nvestigatory detention is permissible when there is a reasonable and
4 articulable suspicion that the law is being or has been broken.” Jason L., 2000-
5 NMSC-018, ¶ 20 (internal quotation marks and citation omitted). “Reasonable
6 suspicion must exist at the inception of the seizure.” Id. In other words, in order for
7 a traffic stop to be justified at its inception, “[t]he officer, looking at the totality of the
8 circumstances, must be able to form a reasonable suspicion that the individual in
9 question is engaged in or is about to be engaged in criminal activity.” State v.
10 Contreras, 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. Reasonable suspicion
11 is defined as “a particularized suspicion, based on all the circumstances that a
12 particular individual, the one detained, is breaking, or has broken, the law.” Jason L.,
13 2000-NMSC-018, ¶ 20. “Reasonable suspicion must be based on specific articulable
14 facts and the rational inferences that may be drawn from those facts.” State v. Flores,
15 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038. “Unsupported intuition and
16 inarticula[ble] hunches are not sufficient.” Jason L., 2000-NMSC-018, ¶ 20
17 (internation quotation marks and citation omitted).
18 Looking at the totality of the circumstances, we conclude that Officer Briseno
19 had a “particularized suspicion . . . that [Defendant was] breaking, or ha[d] broken[]
6
1 the law” at the inception of the traffic stop. See id. This Court has previously stated
2 that “[a] police officer may stop a vehicle if he has an objectively reasonable suspicion
3 that the motorist has violated a traffic law.” State v. Vandenberg, 2002-NMCA-066,
4 ¶ 17, 132 N.M. 354, 48 P.3d 92, rev'd on other grounds, 2003-NMSC-030, 134 N.M.
5 566, 81 P.3d 19; see State v. Prince, 2004-NMCA-127, ¶ 9, 136 N.M. 521, 101 P.3d
6 332. In this case, Officer Briseno testified that before he activated his emergency
7 lights, he observed Defendant commit three specific traffic law violations. The officer
8 stated that although he was traveling 55 mph in a 25 mph zone while following
9 Defendant, he was “still not gaining any distance on [Defendant’s] vehicle.” In
10 addition to the speeding, the officer testified that “on at least two occasions,
11 [Defendant’s vehicle’s] left tires crossed over the double yellow line[s] which
12 separate[d] both the north and southbound traffic lanes.” The officer further testified
13 he did not activate his emergency lights until after he had observed the speeding, the
14 two traffic lane violations, and both Defendant’s and the officer’s vehicles had cleared
15 an intersection. Thus, at the point Defendant was seized, Officer Briseno already had
16 observed specific articulable facts that, when viewed objectively, would lead to
17 reasonable suspicion that Defendant had broken the law based on the three traffic code
18 violations. State v. Hubble, 2009-NMSC-014, ¶ 35, 146 N.M. 70, 206 P.3d 579
19 (holding that reasonable suspicion existed for a traffic stop when the officer had
7
1 observed the defendant violate the turn signal statute); Vandenberg, 2003-NMSC-030,
2 ¶ 19 (stating that reasonable suspicion existed for a traffic stop based on the
3 defendant’s speeding in a construction zone); Prince, 2004-NMCA-127, ¶ 11
4 (determining that reasonable suspicion existed for a traffic stop when the defendant
5 was observed driving in excess of the speed limit).
6 To the extent that Defendant argues that the officer’s basis for reasonable
7 suspicion was only a “vague hunch that [Defendant] was injecting himself with a
8 controlled substance” before he started following Defendant, we are unpersuaded.
9 Defendant appears to ignore the officer’s undisputed testimony at the suppression
10 hearing regarding the traffic violations and, specifically, the fact that the officer
11 testified that he observed the traffic violations prior to activating his emergency
12 lights—the point at which Defendant claims he was seized. Therefore, we conclude
13 that the officer had reasonable suspicion to stop Defendant once he observed
14 Defendant’s speeding and failure to maintain the traffic lane.
15 C. Pretextual Stop
16 Defendant also contends that the traffic stop was illegal because it was
17 pretextual under Ochoa. He argues that the officer “pulled [Defendant] over, not
18 because he believed [Defendant] had driven over the double yellow [lines] in the
19 roadway, but because he believed that [Defendant] had been engaged in some other
8
1 criminal wrongdoing back at the parking lot.” The district court concluded that
2 “Officer Briseno’s decision to initiate a traffic stop based on [Defendant] crossing the
3 yellow line[s] was not a pretext to search [Defendant’s] vehicle for drugs.”
4 In Ochoa, this Court departed from federal constitutional law and held that
5 pretextual traffic stops violate Article II, Section 10 of the New Mexico Constitution.
6 2009-NMCA-002, ¶ 1. We defined a pretextual traffic stop as a “detention
7 supportable by reasonable suspicion or probable cause to believe that a traffic offense
8 has occurred, but [that] is executed as a pretense to pursue a ‘hunch,’ a different more
9 serious investigative agenda for which there is no reasonable suspicion or probable
10 cause.” Id. ¶ 25. In determining whether a traffic stop is pretextual, we explained that
11 the district court should first determine whether there was reasonable suspicion or
12 probable cause for the stop and then decide if the officer’s actual motive for the stop
13 was unrelated to the justification for the stop. Id. ¶ 40. “The defendant has the burden
14 of proof to show pretext based on the totality of the circumstances” and, “[i]f the
15 defendant has not placed substantial facts in dispute indicating pretext, then the
16 seizure is not pretextual.” Id. However, “[i]f the defendant shows sufficient facts
17 indicating the officer had an unrelated motive that was not supported by reasonable
18 suspicion or probable cause, then there is a rebuttable presumption that the stop was
9
1 pretextual,” at which point the burden shifts to the state to prove that the officer would
2 have stopped the defendant even without the alternate motive. Id.
3 In this case, having already decided that the district court properly found that
4 there was reasonable suspicion for the traffic stop based on the traffic violations, we
5 address whether Defendant met his burden of showing pretext by presenting
6 “sufficient facts indicating [that] the officer had an unrelated motive that was not
7 supported by reasonable suspicion or probable cause.” Id. We conclude that
8 Defendant failed to meet this burden.
9 Defendant argues that the following facts establish pretext: (1) the officer’s
10 initial hunch of drug activity based on seeing “a person leaning over in a vehicle,” (2)
11 the activity in the parked vehicle occurred “behind the tinted glass of [Defendant’s
12 vehicle] and a substantial distance away from the police unit,” and (3) Defendant was
13 not cited for a speeding violation and “there is [a] question as to whether [the] charge
14 of failure to maintain traffic lane could be substantiated by the activity before or after
15 the officer activated his emergency equipment.” However, Defendant has failed to
16 cite record support establishing that Defendant’s vehicle windows were tinted or that
17 the officer observed Defendant’s parked vehicle from a distance. At the suppression
18 hearing, no testimony was elicited regarding the characteristics of Defendant’s vehicle
19 or the distance from which Officer Briseno initially saw Defendant in his parked
10
1 vehicle. As for the traffic violations, Defendant has not indicated, either through
2 record support or other authority, any facts that call into question when the traffic lane
3 violations occurred; rather, the officer testified several times at the hearing that the
4 traffic lane violations occurred before he activated his emergency lights. With regard
5 to the speeding, although we recognize that Defendant was not cited for the speeding
6 violation, the officer’s testimony and the district court’s review of the officer’s in-car
7 video indicate that Defendant was speeding.
8 As for Officer Briseno’s initial hunch that Defendant was engaged in
9 intravenous drug use in the parking lot, we agree with the State’s argument that the
10 officer’s “suspicion about intravenous drug use . . . was not a suspicion unrelated to
11 the traffic violations he observed.” See Ochoa, 2009-NMCA-002, ¶ 40 (stating that
12 the defendant must establish that there was an unrelated motive that was not supported
13 by reasonable suspicion or probable cause). The totality of the circumstances in this
14 case indicates that there was no unrelated motive; rather, the motive throughout the
15 entire encounter was a belief that Defendant was under the influence of drugs.
16 Although the initial basis for the officer’s suspicion—Defendant leaning forward and
17 focusing intently on his left arm—was not sufficient to rise to the level of reasonable
18 suspicion, the officer proceeded to investigate his suspicion in a reasonable manner.
19 Officers are not precluded from observing and following an individual based on their
11
1 speculation or hunch regarding potential criminal activity, so long as they do so within
2 the confines of constitutional protections. Here, Officer Briseno did not stop
3 Defendant immediately based on his initial suspicion and instead followed Defendant
4 to investigate further. The officer’s initial hunch regarding Defendant being under the
5 influence was substantiated by his further observation of Defendant committing three
6 traffic violations. The officer waited until he observed possible signs of driving under
7 the influence before he activated his emergency equipment. Therefore, we conclude
8 that the officer’s initial motive for following the vehicle matched the “objective
9 existence of reasonable suspicion.” Cf. id. ¶¶ 40, 43-46 (holding a stop to be
10 pretextual where the stop was initiated to investigate the defendant’s involvement in
11 drug activity, a motive unrelated to the seatbelt violation that was the objective
12 justification for the stop). Accordingly, we hold that Defendant has failed to establish
13 a rebuttable presumption that the stop was pretextual.
14 CONCLUSION
15 Based upon the foregoing, we affirm Defendant’s convictions.
16 IT IS SO ORDERED.
17
18 CYNTHIA A. FRY, Judge
12
13
1 WE CONCUR:
2
3 CELIA FOY CASTILLO, Chief Judge
4
5 TIMOTHY L. GARCIA, Judge
14