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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DIANA RODRIGUEZ,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY,
Fernando R. Macias, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, Walter Hart, Assistant Attorney General, Albuquerque, NM, for
Appellee
Bennett H. Baur, Chief Public Defender,
B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant
JENNIFER L. ATTREP, Judge. WE CONCUR: M.
MONICA ZAMORA, Judge, STEPHEN G. FRENCH, Judge
AUTHOR: JENNIFER L. ATTREP
{1} Defendant Diana
Rodriguez appeals from her judgment and sentence entered after her guilty plea
to possession of a controlled substance. Defendant argues that the district
court improperly denied her motion to suppress evidence seized from her after a
traffic stop because: (1) the officer unlawfully expanded the scope of the
investigation, and (2) her consent to the search was involuntary. Defendant
additionally argues that the district court erred by denying her motion to
dismiss on compulsory joinder grounds. We hold that the scope of the
investigation was lawfully expanded and that Defendant voluntarily consented to
the search. We further hold that Defendant waived her right to appeal the
district court’s denial of her motion to dismiss. As such, we affirm.
{2} On December 31,
2014, Defendant’s vehicle came to Deputy Adam Lem’s attention because of an
obscured registration sticker. After running the license plate, Deputy Lem
discovered that the vehicle’s registered owner had a suspended driver’s
license. Deputy Lem initiated a traffic stop, Defendant pulled the vehicle
over, and Deputy Lem spoke with Defendant and her passenger Eric Arzate. Deputy
Lem learned that the vehicle belonged to Arzate’s brother. Neither Defendant
nor Arzate, however, possessed a valid driver’s license, so Deputy Lem offered
to perform a field release of the vehicle after a tow truck arrived. During
this exchange, Defendant stated that she and Arzate lived “right around the
corner.” Deputy Lem testified that Defendant began to sweat profusely about
halfway through the conversation, that both Defendant and Arzate searched
aimlessly for registration and insurance information (which they were unable to
find), that Defendant stumbled and stuttered in her speech, and that Defendant
was more nervous than the normal motoring public.
{3} As Deputy Lem
returned to his unit, Arzate exited the passenger’s side of the vehicle. Deputy
Lem saw Arzate throw something back toward the vehicle, then Arzate began to
leave. Around this same time, Deputy Lem discovered that Arzate had outstanding
felony warrants. Deputy Lem shouted for Arzate to stop, but Arzate continued to
run and disappeared into a nearby mobile home park. Deputy Lem asked Defendant
where Arzate had gone. Defendant answered that Arzate was going to the
bathroom. Deputy Lem went back to his unit and called for backup, communicating
information about Arzate. Defendant then opened her door, stepped out of the
vehicle with her purse, and attempted to leave. Deputy Lem yelled from his unit
for her to stay in her vehicle and she complied.
{4} Deputy Lem returned
to the vehicle and questioned Defendant about where she and Arzate lived.
Defendant was evasive in her answers and claimed not to know their address.
This line of questioning and evasion lasted approximately two minutes.
Defendant ultimately stated that they were staying “kinda far” away on
Riverside. Deputy Lem described Defendant as even more nervous at this point
and unwilling to make eye contact. Deputy Lem again asked Defendant why Arzate
ran. Defendant claimed not to know, but then stated that it may have been due
to a bench warrant for nonappearance at a court date.
{5} Deputy Lem then
asked Defendant to step out of the vehicle. Clutching a large purse, Defendant
exited the vehicle, whereupon Deputy Lem asked Defendant whether she had
anything on her person, to which she replied, “Nope.” Deputy Lem went on to
ask, “Anything illegal?” Defendant replied, “Nope.” Deputy Lem then asked “Any
narcotics or anything?” Defendant replied, “No.” Deputy Lem testified that
based on all the indicators, he requested to search Defendant’s purse, to which
she replied, “Sure.” During the search of Defendant’s purse, Deputy Lem found
marijuana and approximately one gram of methamphetamine. When Defendant was
told she was being arrested, she produced a baggy of more than 40 grams of
methamphetamine.
{6} Defendant was
charged with one count of trafficking methamphetamine (by possession with
intent to distribute), in violation of NMSA 1978, Section
30-31-20 (2006), as
well as various motor vehicle violations that were later dismissed and
prosecuted separately in magistrate court. Defendant moved to suppress evidence
obtained during the traffic stop, alleging violations of the Fourth Amendment
to the United States Constitution and
Article II, Section 10 of the New Mexico
Constitution. The district court held a suppression hearing at which only
Deputy Lem testified and the parties stipulated to the admission of the dash
cam audio-video recording of the traffic stop. After taking the officer’s
testimony and reviewing the dash cam recording, the district court denied
Defendant’s motion to suppress. In denying Defendant’s motion to suppress, the
district court found that Defendant was very nervous, stuttering, fumbling
through paperwork, sweating profusely, avoiding eye contact, evasive, not
providing her address, and repeatedly trying to leave. The district court also
found that Arzate “tossed something away” after he exited the vehicle and that
Arzate ran “away and would not come back.” The district court held that Deputy
Lem acquired reasonable suspicion of additional criminal activity, specifically
drug activity.
{7} Defendant also
moved to dismiss the trafficking charge on compulsory joinder grounds, arguing
that the State violated the Rules of Criminal Procedure by failing to prosecute
all the crimes arising out of the stop together. The district court denied this
motion. Defendant entered into a conditional plea agreement in which she pled
guilty to possession of a controlled substance, in violation of NMSA 1978,
Section
30-31-23(E) (2011), and reserved the right to appeal the denial of her
motion to suppress. Defendant did not reserve her right to appeal the denial of
her motion to dismiss.
I. The
District Court Did Not Err in Denying the Motion to Suppress
{8} Because we hold
that Deputy Lem’s expansion of his investigation to matters outside the initial
reason for the stop was supported by reasonable suspicion and Defendant’s
consent to search her purse was voluntary, we affirm the district court’s
denial of Defendant’s motion to suppress.
{9} “Appellate review
of a motion to suppress presents a mixed question of law and fact.”
State v.
Paananen,
2015-NMSC-031, ¶ 10,
357 P.3d 958 (internal quotation marks and
citation omitted). “[W]e first look for substantial evidence to support the
[district] court’s factual finding, with deference to the . . . court’s review
of the testimony and other evidence presented[.]”
State v. Leyva,
2011-NMSC-009, ¶ 30,
149 N.M. 435,
250 P.3d 861. “[W]e then review de novo the
[district] court’s application of law to the facts to determine whether the
search or seizure were reasonable. The burden to show reasonableness is on the
[s]tate. Our review of a district court’s determination of whether reasonable
suspicion existed is de novo based on the totality of the circumstances.”
Id.
(citations omitted).
B. Reasonable
Suspicion Analysis
{10} Defendant argues
that Deputy Lem lacked reasonable suspicion to expand the scope of his
investigation in violation of
Article II, Section 10 of the New Mexico
Constitution. Defendant properly preserved her state constitutional argument
below. Given Defendant’s reliance on the New Mexico Constitution, as well as
the divergence of search and seizure jurisprudence under Article II, Section 10
and the Fourth Amendment, we evaluate this case only under Article II, Section
10.
See Leyva,
2011-NMSC-009, ¶ 3 (finding that “Article II, Section 10
provides greater protections against unreasonable searches and seizures than
does the Fourth Amendment”);
State v. Olson,
2012-NMSC-035, ¶ 10,
285
P.3d 1066 (addressing only broader protections of Article II, Section 10, where
New Mexico Constitution provides more expansive protections than the United
States Constitution).
{11} A traffic stop and
the attendant detention of its occupants is a “seizure” for purposes of
Article
II, Section 10 of the New Mexico Constitution.
See State v. Duran,
2005-NMSC-034, ¶ 22,
138 N.M. 414,
120 P.3d 836,
overruled on other grounds
by Leyva,
2011-NMSC-009, ¶ 17. As set forth in
Duran, the proper
inquiry under Article II, Section 10 is that “all questions asked by police
officers during a traffic stop must be analyzed to ensure they are reasonably
related to the initial justification for the stop or are supported by
reasonable suspicion.”
2005-NMSC-034, ¶ 35. “An officer may expand the scope of
the search or seizure during the investigatory stop only where the officer has
reasonable and articulable suspicion that other criminal activity has been or
may be afoot.”
Id. ¶ 23 (internal quotation marks and citation omitted).
“Reasonable suspicion must be based on specific articulable facts and the
rational inferences that may be drawn from those facts.”
Id. (internal
quotation marks and citation omitted). “In determining whether reasonable
suspicion exists, we examine the totality of the circumstances.”
Id.
(internal quotation marks and citation omitted).
1
{12} Defendant does not
challenge the lawfulness of the initial stop, and the State does not argue that
grounds other than independent reasonable suspicion existed for expanding the
stop.
See Olson,
2012-NMSC-035, ¶ 11 (“Under
Duran, an
officer may ask questions unrelated to the traffic stop so long as those
questions are ‘supported by independent reasonable suspicion, for reasons of
officer safety, or if the interaction has developed into a consensual
encounter.’” (quoting
Leyva,
2011-NMSC-009, ¶ 55)). Thus, the issue
before us is whether Deputy Lem’s questions about matters unrelated to the
obstruction of the registration sticker and the licensure offenses were
supported by reasonable suspicion.
{13} Defendant first
argues that questions relating to Arzate’s motivations for fleeing
impermissibly went beyond the scope of the stop. At the time of these
questions, Arzate had fled, Deputy Lem knew Arzate had outstanding felony
warrants, and Deputy Lem had called other officers to the scene to assist in
locating Arzate. Deputy Lem’s inquiry about Arzate’s motivations and his
whereabouts were responsive to the evolving circumstances of the stop, which now
included the flight of Defendant’s passenger. These circumstances, “while not
rising to the level of reasonable suspicion of other criminal activity” on the
part of Defendant, permitted Deputy Lem to ask limited questions about Arzate’s
motivations.
See Duran,
2005-NMSC-034, ¶ 37. Deputy Lem acted properly
as he employed “graduated response[s] to the evolving nature of the stop.”
See
State v. Funderburg,
2008-NMSC-026, ¶¶ 28-29,
144 N.M. 37,
183 P.3d 922.
We, therefore, conclude that Deputy Lem’s limited questions “were fairly
responsive to the emerging tableau” and “reasonably related in scope to the
circumstances of the case.”
Id. ¶ 27 (internal quotation marks and
citation omitted).
{14} Defendant next
argues that Deputy Lem’s questions about whether Defendant had anything illegal
on her, such as narcotics, and seeking permission to search Defendant’s purse
impermissibly expanded the scope of the stop. In making this argument,
Defendant contends that Deputy Lem impermissibly relied on the actions of Arzate
and on her nervousness.
{15} Defendant’s
suggestion that law enforcement and reviewing courts cannot consider the
actions of a defendant’s passenger in assessing reasonable suspicion is
incorrect. Indeed, our Court addressed this issue a number of years ago in
State
v. Williamson,
2000-NMCA-068,
129 N.M. 387,
9 P.3d 70. In
Williamson,
the defendant driver exhibited some signs of impairment, but they were
insufficient to arrest him for driving while intoxicated.
2000-NMCA-068, ¶ 4.
At the same time, an illegal substance was found on passenger’s person.
Id. This
Court held that the officer reasonably expanded the scope of the traffic stop
to question the defendant about illegal substances and ask for consent to
search his person.
Id. ¶ 10. This reasonable suspicion was based in part
on factors individualized to the defendant and in part on the passenger’s
possession of drugs.
Id. ¶ 14.
{16} Defendant cites to
State
v. Patterson,
2006-NMCA-037,
139 N.M. 322,
131 P.3d 1286, for the
proposition that the behavior of vehicle occupants cannot be attributed to a
defendant driver.
Patterson is distinguishable. Unlike the case before
us, “[t]he only fact concerning [the d]efendant . . . [in
Patterson]
was that he was present in the car” where criminal activity was occurring.
Id.
¶ 28. Our Court held that “mere presence was not sufficient to create an
individualized suspicion that [the d]efendant . . . was
violating the . . . law.”
Id. Patterson merely stands for the
proposition that when an officer provides no articulable facts that give rise
to individualized suspicion as to the defendant, a general concern based on
proximity to illegal activity is insufficient.
See id. Such is not the
case here.
{17} Defendant finally
contends that the only fact—other than Arzate’s flight—supporting suspicion
toward her was her nervousness. While nervousness
alone may be
insufficient to form the basis of reasonable suspicion, we must look at the
totality of the circumstances.
See id. ¶ 29;
State v. Martinez,
2018-NMSC-007, ¶ 12,
410 P.3d 186 (“On appeal, we must review the totality
of the circumstances and must avoid reweighing individual factors in
isolation.”). In doing so, we find that mere nervousness was not the basis for
Deputy Lem’s expansion of his investigation. Deputy Lem described Defendant as
more nervous than the normal motoring public, sweating profusely
notwithstanding the cold weather, and avoiding eye contact. The district court
noted that these behaviors were indicative of drug activity.
2 Deputy Lem articulated that his
suspicion toward Defendant developed over the course of the traffic stop based
on all the foregoing factors, as well as: (1) Arzate’s flight from the scene
after throwing something back toward the vehicle where Defendant sat; (2)
Defendant’s own attempt to leave the scene; (3) Defendant’s inconsistent and
evasive answers regarding where she resided; and (4) Defendant’s clutching of
her purse when she got out of the vehicle. These facts support individualized
suspicion as to Defendant, well beyond her mere proximity to her fleeing
passenger and her own nervousness.
{18} “All of these facts,
considered in the totality of the circumstances, gave [Deputy Lem] reasonable
suspicion that criminal activity may have been afoot.”
Duran,
2005-NMSC-034, ¶ 38. As such, Deputy Lem permissibly expanded the scope of the
stop by asking Defendant whether she had anything illegal, including narcotics,
and requesting consent to search Defendant’s purse.
See State v. Portillo,
2011-NMCA-079, ¶ 23,
150 N.M. 187,
258 P.3d 466 (holding that officer “could
ask questions about narcotics and weapons only if he had developed independent,
reasonable suspicion giving rise to such questions”);
see also Duran,
2005-NMSC-034, ¶ 38 (finding reasonable suspicion for drug investigation, the
court considered, among other things, the defendant’s nervousness and conflicting
accounts of travel itinerary);
State v. Pacheco,
2008-NMCA-131, ¶¶
16-17,
145 N.M. 40,
193 P.3d 587 (same);
Funderburg,
2008-NMSC-026, ¶¶
32-33 (considering the passenger’s possession of drugs and drug paraphernalia
in lawfully requesting to search the defendant’s vehicle);
State v. Harbison,
2007-NMSC-016, ¶ 18,
141 N.M. 392,
156 P.3d 30 (finding reasonable suspicion,
the court considered the defendant’s flight from area where another individual
had just completed a drug sale);
Williamson,
2000-NMCA-068, ¶ 14
(finding reasonable suspicion, the court considered the defendant’s signs of
impairment in connection with the passenger’s possession of illegal narcotics).
{19} Additionally, as
found by the district court, Deputy Lem’s inquiries did not impermissibly
extend the duration of the stop.
See Duran,
2005-NMSC-034, ¶ 35
(“We believe that [the reasonable suspicion] determination must also include an
examination of both the length of the detention and the manner in which it is
carried out. The length of the detention should be reasonably limited to the
time it takes to complete the underlying justification for the stop.” (internal
quotation marks and citation omitted)). Because of the need to wait for a tow
truck, as well as the concurrent investigation into Defendant’s fleeing
passenger, the duration of the stop already was permissibly lengthened beyond
the scope of a usual traffic stop.
{20} Because we determine
that Deputy Lem had reasonable suspicion to inquire about illegal items,
including narcotics, and to request consent to search, Defendant’s argument
that her consent to search was tainted by prior illegality is without merit.
See
Williamson,
2000-NMCA-068, ¶ 17;
Funderburg,
2008-NMSC-026, ¶ 33
(“Because the detention was reasonable, [officer’s] request for consent was
lawful.”).
C. Voluntariness
of Defendant’s Consent to Search
{21} Defendant
additionally argues that her consent to the search of her purse was
involuntary. Defendant specifically argues that she could not voluntarily
consent to the search because she was “seized” at the time consent was sought.
The cases Defendant cites for this proposition are inapposite and the
well-settled law is to the contrary. “The fact that a suspect has been
subjected to arrest or detention does not automatically invalidate a subsequent
consent to search.”
State v. Mann,
1985-NMCA-107, ¶ 30,
103 N.M. 660,
712 P.2d 6. Indeed, “a person may validly consent to a search even though the
consent is given while he is in custody . . . the fact of
custody does not inherently render the consent invalid.”
Id. (omission
in original) (internal quotation marks and citation omitted). “To determine the
voluntariness of consent, we examine whether the consent was specific and
unequivocal, and whether the consent was the result of duress or coercion, in
light of the presumption disfavoring the waiver of constitutional rights.”
State
v. Shaulis-Powell,
1999-NMCA-090, ¶ 8,
127 N.M. 667,
986 P.2d 463.
{22} “The voluntariness
of consent is a factual question in which the [district] court must weigh the
evidence and decide if it is sufficient to clearly and convincingly establish
that the consent was voluntary.”
State v. Davis,
2013-NMSC-028, ¶ 10,
304 P.3d 10 (internal quotation marks and citation omitted). “In conducting
such a review, the question is whether the [district] court’s decision is
supported by substantial evidence, not whether the trial court could have
reached a different conclusion.”
Id. (alterations, internal quotation
marks, and citation omitted). The uncontroverted evidence in this case is that
Deputy Lem requested consent to search Defendant’s purse and Defendant said,
“Sure.” At that time, one other officer was on scene, peering into the vehicle.
No factors indicate coercion.
See id. ¶ 23 (“Specific factors indicating
coercion include the use of force, brandishing of weapons, threat of violence
or arrest, lengthy and abusive questioning, deprivation of food or water and
promises of leniency in exchange for consent.”). Substantial evidence supports
the district court’s finding that Defendant “explicitly and unambiguously gave
the [d]eputy consent to search her purse[,]” and that “[t]here [was] no
evidence of duress or coercion.”
II. The
Denial of Defendant’s Motion to Dismiss is Not Preserved
{23} Finally, Defendant
argues that the district court erred in denying her motion to dismiss based on
compulsory joinder. Defendant entered into a conditional plea in this case,
reserving only the suppression issue addressed above; the conditional plea did
not reserve the compulsory joinder issue. As such, Defendant waived her right
to appeal the district court’s denial of her motion to dismiss by pleading
guilty and failing to reserve the issue in her conditional plea agreement.
See
State v. Morgan,
2016-NMCA-089, ¶ 29,
382 P.3d 981.
{24} For all the
foregoing reasons, we affirm the district court’s denials of Defendant’s motion
to suppress and Defendant’s motion to dismiss.
JENNIFER L. ATTREP, Judge