STATE V. TALLEY, 2008-NMCA-148, 145 N.M.
127, 194 P.3d 742
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
BILLY TALLEY,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
2008-NMCA-148, 145 N.M. 127, 194 P.3d 742
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Carl
J. Butkus, District Judge
Certiorari Denied, No. 31,289,
September 18, 2008. Released for publication October 28, 2008.
Gary K. King, Attorney General, Santa Fe,
NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for
Appellant
Hugh W. Dangler, Chief Public Defender,
Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellee
CELIA FOY CASTILLO, Judge. WE CONCUR: IRA
ROBINSON, Judge, RODERICK T. KENNEDY, Judge
AUTHOR: CELIA FOY CASTILLO
{1} The State appeals
the district court’s grant of Defendant’s motion to suppress items pulled from
Defendant’s pocket after a police officer took hold of Defendant’s wrist to control
the removal of Defendant’s hand from the pocket. We determine that the
officer’s action was a seizure but that it was based on reasonable suspicion
that Defendant was armed and dangerous. We thus reverse the district court’s
grant of the motion to suppress the evidence.
{2} On August 31, 2005,
Officers Nelson and Feist were on bike patrol. At approximately 7:00 p.m., the
officers were notified via radio that an anonymous caller had reported heavy
foot traffic at a nearby residence, which the caller believed to be the result
of possible drug activity. Both officers were dispatched to the residence and
responded within minutes of the radio notice. Upon arriving, Officer Nelson
went to the front door, while Officer Feist took up a position at a corner of
the house in order to observe the back door and windows of the home.
{3} Officer Nelson
knocked on the door, and Defendant answered. Defendant was on the other side of
a screen door that was difficult to see through, Officer Nelson recognized
Defendant from past interactions and also observed that Defendant’s hand was in
his pocket. Officer Nelson asked Defendant if he would step outside. Defendant
kept his hand in his pocket as he began to open the door. Officer Nelson
ordered him to take his hand out of his pocket. Defendant did not comply but
did step completely outside, within arm’s length of Officer Nelson. Officer
Nelson again ordered Defendant to take his hand out of his pocket, and again he
did not comply.
{4} Officer Feist observed
the second refusal to comply with Officer Nelson’s order, grabbed the wrist of
the hand that was in Defendant’s pants pocket, and secured Defendant’s hand to
his hip, thereby controlling Defendant’s hand. Officer Feist then ordered
Defendant to remove his hand from his pocket, which Defendant did while Officer
Feist continued to hold on to Defendant’s wrist. Once the hand was removed from
the pocket, the officers observed a bag containing a crack pipe and two rocks
of crack cocaine in Defendant’s hand. At that point, Defendant was arrested and
charged with possession of a controlled substance, contrary to NMSA 1978, §
30-31-23 (2005), and possession of drug paraphernalia, contrary to NMSA 1978, §
30-31-25.1(A) (2001).
{5} After pleading not
guilty to the charges, Defendant filed a motion to suppress the evidence
obtained from his pocket. Rule
5-212 NMRA. The district court granted the
motion and determined that although the officers’ initial encounter with
Defendant was consensual, Officer Feist did not have reasonable suspicion to
justify the physical seizure of Defendant’s arm. This appeal followed.
{6} Our review of a
district court’s granting of a motion to suppress involves a mixed question of
fact and law.
State v. Urioste,
2002-NMSC-023, ¶ 6,
132 N.M. 592,
52
P.3d 964. With respect to the facts, we adopt the view that is most favorable
to the prevailing party as long as the facts are supported by substantial
evidence.
State v. Vandenberg,
2003-NMSC-030, ¶ 18,
134 N.M. 566,
81
P.3d 19. We do not sit as a trier of fact because the district court is in the
best position to resolve questions of fact.
Id. Therefore, we draw all
reasonable inferences in the evidence in favor of the district court’s
findings.
State v. Jason L.,
2000-NMSC-018, ¶ 9,
129 N.M. 119,
2 P.3d
856. We review the district court’s application of the law to the facts de
novo.
See State v. Ingram,
1998-NMCA-177, ¶ 5,
126 N.M. 426,
970
P.2d 1151. The reasonableness of the law enforcement officers’ course of conduct
is evaluated de novo and is done by examining the totality of the
circumstances.
See Vandenberg,
2003-NMSC-030, ¶ 19.
{7} The State
challenges the grant of Defendant’s motion to suppress on two bases. The State
first contends that the officer’s physical touching of Defendant’s arm was such
a minimal seizure that it should be considered a de minimis restriction. In its
second argument, the State asserts that Officer Feist had reasonable suspicion
to believe that Defendant was armed and dangerous. Defendant’s position is that
Officer Feist did not have reasonable suspicion when he grabbed Defendant’s
wrist. Additionally, Defendant raises two other arguments: (1) that Officer
Nelson’s request that Defendant step outside constituted a seizure, and (2)
that the repeated orders from Officer Nelson to Defendant to remove his hand
from his pocket also constituted a seizure. We address the arguments in
chronological order, beginning with Defendant’s arguments regarding when the
seizure occurred.
A. Initial Interactions With Officer Nelson
{8} A seizure occurs
“whenever a police officer . . . restrains [an individual’s] freedom to walk
away.”
Terry v. Ohio, 392 U.S. 1, 16 (1968). The test to determine if
such a seizure occurred is whether a reasonable person would have believed that
he or she was not able to leave.
Jason L.,
2000-NMSC-018, ¶ 15. Specific
situations which can indicate a reasonable person would feel restrained include
the following: “the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the [suspect], or the use of
language or tone of voice indicating that compliance with the officer’s request
might be compelled.”
Id. ¶ 16 (internal quotation marks and citations
omitted). We review Officer Nelson’s actions in light of this standard.
1. Request to Step Outside
{9} The first
interaction took place when Officer Nelson asked Defendant to step outside of
the home after recognizing him through the screen door. Defendant disagrees
with the district court’s conclusion that this encounter was consensual. He
contends that given the totality of the circumstances, including his history of
prior interaction with Officer Nelson, it was reasonable for Defendant to
believe he was not free to refuse this request. Based on this characterization
of the encounter, Defendant argues that he was seized at the moment of
compliance—when he stepped out of the house. Defendant maintains that since
this request and the subsequent compliance is considered a seizure, Officer
Nelson was required to have reasonable suspicion at the moment of the request.
{10} We are unpersuaded.
The district court found that this interaction was a consensual encounter, not
an illegal detention. We agree with the district court that there is evidence
to support this conclusion. The request from Officer Nelson was not an order
which required compliance. Instead, the record shows that Officer Nelson asked
Defendant to step outside. While the officers did not inform Defendant that he
had the right to refuse the request, there is no evidence indicating that the
request was an order or was said in such a way as to indicate that compliance
was essential. Further, the record does not indicate that the two uniformed
officers could have been or were considered a threatening presence, and there
is no evidence that either officer displayed a weapon.
{11} Even though there
was a history between Defendant and Officers Nelson and Feist, Defendant fails
to explain why this history would lead to the reasonable belief that Officer
Nelson’s request required compliance. Without supporting cases or illustrative
facts from former interactions with the officers, there is no basis to support
the conclusion that a reasonable person would have believed he or she was
compelled to comply in this circumstance.
See State v. Wilson,
2007-NMCA-111, ¶ 41,
142 N.M. 737,
169 P.3d 1184 (refraining from addressing an
underdeveloped argument).
{12} For the foregoing
reasons, we hold that a reasonable person in Defendant’s situation would have
believed that he was free to either comply with or refuse the request of
Officer Nelson to step outside, and that this request therefore did not
constitute a seizure.
2. Order to Remove Hand From Pocket
{13} According to
Defendant, the second interaction—when Officer Nelson ordered Defendant to
remove his hand from his pocket—constitutes a seizure as well. The district
court did not separately consider whether the second interaction was a seizure.
We conclude that while the consensual nature of the interaction is questionable
because Defendant did not follow the officer’s order, the district court was
correct to hold that the order was not a seizure for another reason—because
Defendant did not comply with the order.
{14} Restraint on a
person’s freedom to walk away is shown either by the application of physical
force or by a show of authority.
Jason L.,
2000-NMSC-018, ¶ 15. Officer
Nelson’s ordering Defendant to remove his hand from his pocket constitutes a
showing of authority. However, Defendant did not comply with the orders. A
showing of authority is a restraint only if a suspect submits to the showing of
authority; if a suspect has not yet submitted to the showing of authority, he
has not yet been seized.
See Cal. v. Hodari D., 499 U.S. 621, 623, 626
(1991) (holding that the suspect did not submit when he ran from a slowly
approaching unmarked police cruiser);
see also State v. Harbison,
2007-NMSC-016, ¶¶ 14, 19,
141 N.M. 392,
156 P.3d 30 (deciding that a suspect
had not submitted to the show of authority when a uniformed officer ordered the
suspect not to move and he responded by running). Therefore, Officer Nelson’s
order was not a seizure because Defendant’s failure to submit to the show of
authority by Officer Nelson is determinative that the order did not constitute
a seizure.
See Hodari D., 499 U.S. at 626.
B. Officer Feist’s Physical Touching
{15} Physical touching is
an application of physical force and constitutes a seizure under
Terry.
392 U.S. at 19 n.16. The State and Defendant do not dispute that Officer Feist
seized Defendant when he grabbed Defendant’s wrist. The State, however,
counters with the following: (1) the seizure was a de minimis restriction, or,
in the alternative, (2) Officer Feist had sufficient reasonable suspicion to
justify the seizure.
1. De Minimis Restriction
{16} Certain seizures
have been held to be de minimus restrictions. To determine whether a seizure is
de minimis, we must balance the benefits to the officer in completing the
action with the burden on a suspect’s freedom of movement.
State v. Reynolds,
119 N.M 383, 385,
890 P.2d 1315, 1317 (1995).
{17} The State relies on
a number of New Mexico cases to support its contention that the seizure was de
minimis.
State v. Duran,
2005-NMSC-034, ¶ 37,
138 N.M. 414,
120 P.3d 836
(permitting the detention of a driver and passenger for expanded questioning
asked by the officer related to the nature of the stop);
Reynolds, 119
N.M. at 388, 890 P.2d at 1320 (allowing the detention of a driver while she
produced her driver’s license and proof of insurance);
State v. Taylor,
1999-NMCA-022, ¶ 14,
126 N.M. 569,
973 P.2d 246 (allowing detention of a driver
while the officer ran a wants and warrants check). The State also relies on
Pennsylvania
v. Mimms, 434 U.S. 106, 111 (1977), a case that held that compliance with
an officer’s request to step out of a vehicle to speak to the officer during a
routine traffic stop is a de minimis restriction.
{18} The State attempts
to differentiate between the type of physical touching that constitutes the
full pat down described in
Terry from what the State characterizes as
“brief . . . touching” in the case before us. Physical touching a person’s body
without consent “is a serious intrusion upon the sanctity of the person, which
may inflict great indignity and arouse strong resentment, and it is not to be
undertaken lightly.”
Terry, 392 U.S. at 17. The State cites no authority
for the proposition that physical touching by a police officer is de minimis
under any circumstance.
See State v. Ryan,
2006-NMCA-044, ¶ 3,
139 N.M.
354,
132 P.3d 1040 (holding that arguments not supported by authority will not be
considered by the court). Accordingly, under the facts of this case, we are
unwilling to expand the scope of a de minimis restriction to include a minor
physical intrusion upon a suspect. We now turn to the issue of whether Officer
Feist had reasonable suspicion to believe that Defendant was armed and
dangerous.
{19} The purpose of a
protective frisk for weapons is to allow an officer to conduct an investigation
without fear of violence.
Ingram,
1998-NMCA-177, ¶ 6. A protective frisk
seizure is justified if an officer has a sufficient degree of articulable and
reasonable suspicion that the person being seized is both armed and dangerous.
Vandenberg,
2003-NMSC-030, ¶¶ 21, 22. The objective standard applied is whether a
reasonable, well-trained officer would fear for his or her safety based on the
belief that the suspect may be armed and dangerous.
Id. ¶ 23. “[T]he
officer need not be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent [officer] in the circumstances would be
warranted in the belief that his safety or that of others was in danger.”
Id.
(alteration in original) (internal quotation marks and citation omitted). If it
could be found that reasonable people might differ, the courts have deferred in
favor of “the officer’s good judgment.”
Id. (internal quotation marks
and citations omitted). In suppressing the evidence, the district court
determined that the State did not meet its burden of showing reasonable
suspicion. We disagree and hold that Officer Feist did have reasonable
suspicion that Defendant was armed and dangerous.
{20} Under
Terry,
there are two grounds upon which an officer may base reasonable suspicion: (1)
that the suspect may be armed and dangerous and (2) that the suspect may have
committed or is committing a crime.
See 392 U.S. at 10. Defendant argues
that the officers had no reasonable suspicion that Defendant had committed or
was committing a crime. This argument was not preserved below and therefore
will not be considered on appeal.
State v. Keener,
97 N.M. 295, 298,
639
P.2d 582, 585 (Ct. App. 1981) (holding that an issue not raised in the district
court level could not be considered on appeal).
{21} We now turn to
Vandenberg,
in which the officer testified in detail about the suspect’s movements—from the
drumming of his fingers, to the constant looking at the officer through his
rear-view mirror, to the suspect’s emotional response when the officer
announced the intent to protectively frisk him.
2003-NMSC-030, ¶¶ 9, 29, 30.
The officer further testified how each of these actions led him to become more
and more suspicious that the suspect was armed and dangerous.
Id. ¶¶
29-30. Accordingly, our Supreme Court held that an officer’s specific
observations of a suspect, along with specific and substantial safety concerns
based on those observations, were sufficient to constitute reasonable
suspicion.
Id. ¶ 30.
{22} We also look to
United
States v. Harris, a Tenth Circuit Court of Appeals case. The facts in
Harris
are similar to those before us. The defendant had his hands in the pockets of
his jeans and was acting nervously. 313 F.3d 1228, 1236 (10th Cir. 2002).
Fearing that the defendant might be concealing a weapon, the police officer
requested the defendant to remove his hands from his pockets.
Id. The
defendant refused and the officer seized him for a protective frisk.
Id.
The Tenth Circuit determined that the officer was reasonably justified in
believing that the defendant was armed and dangerous.
Id. Along these
lines, the State argues that Officer Feist had reasonable suspicion because (1)
Defendant had a history of cooperation with law enforcement and yet was
resistant in this case, (2) Defendant refused to remove his hand from his
pocket while he was in close proximity to Officer Nelson, and (3) both officers
testified in detail about Defendant’s actions and their resulting concerns.
{23} In response,
Defendant contends that the State failed to establish that Officer Feist had
reasonable suspicion that Defendant was armed and dangerous. To support this
argument, Defendant points out that (1) he had no history of violence toward
the officers and (2) no facts established in the trial court support an
articulable belief that Defendant was violent or dangerous at the time of the
incident. Defendant argues that the State’s contentions about officer safety
are too broad and general and that rather than justifying Officer Feist’s
physical touching of Defendant, the safety concerns are merely inarticulate
hunches, which do not provide a basis for reasonable suspicion. For support,
Defendant cites cases holding that officers need to articulate facts which
establish potential danger.
See Sibron v. N.Y., 392 U.S. 40, 62
(1968) (observing that the act of a suspect speaking with a number of known
drug addicts was not a sufficient articulated reason for reasonably believing
the suspect was armed and dangerous);
Vandenberg,
2003-NMSC-030, ¶¶ 8-9,
29-30 (finding that reasonable suspicion existed when the suspect acted
nervously, drummed his fingers on the roof of the car, looked in his rear view
mirror at the officer constantly, repeatedly rolling his windows down and up,
and became more nervous when asked if he had any weapons in the car);
State
v. Haddenham,
110 N.M. 149, 154,
793 P.2d 279, 284 (Ct. App. 1990) (holding
that reasonable suspicion did exist when the suspect was severely intoxicated,
had harassed a store clerk, was acting hostile towards the officer, and had a
previous record of causing disturbances).
{24} We conclude that
given the totality of the circumstances, Officer Feist was justified in his
seizure of Defendant’s hand. Both officers testified explicitly as to their
nervousness for their safety because Defendant had complied with their requests
in the past and yet was not compliant in this instance and because he was in
close proximity to Officer Nelson. Further, the officers were aware that
Defendant was known to maybe carry a pocketknife, a weapon that Defendant could
have used to cause serious injury to the officer. Taken together, these facts
provide a reasonable basis for Officer Feist’s belief that Defendant may have
been armed and dangerous. The preciseness of the testimony given refutes
Defendant’s argument that the officers had only an inarticulate hunch and could
not articulate their specific safety concerns regarding Defendant.
{25} Defendant also cites
State v. Cobbs,
103 N.M. 623, 630,
711 P.2d 900, 907 (Ct. App. 1985),
contending that the State bears a heavier burden to show articulated facts
because Defendant was suspected of a non-violent offense.
{26} We agree with the
holding in
Cobbs that the nature of the suspected crime is considered as
a factor in order to determine reasonable suspicion.
Id. at 626, 711
P.2d at 903. Nevertheless, the officers provided sufficient facts to establish
reasonable suspicion, regardless of the nature of the suspected crime. As a
result, we need not consider this argument further.
{27} We reverse the
district court’s grant of Defendant’s motion to suppress and remand for further
proceedings consistent with this opinion.
CELIA FOY CASTILLO, Judge
RODERICK T. KENNEDY, Judge
Topic Index for State v. Talley, No. 27,480
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