In Re Jason L.

1999 NMCA 095, 985 P.2d 1222, 127 N.M. 642
CourtNew Mexico Court of Appeals
DecidedJuly 8, 1999
Docket19,154
StatusPublished
Cited by14 cases

This text of 1999 NMCA 095 (In Re Jason L.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Jason L., 1999 NMCA 095, 985 P.2d 1222, 127 N.M. 642 (N.M. Ct. App. 1999).

Opinions

OPINION

DONNELLY, Judge.

{1} The State appeals from an order granting a motion to suppress a concealed firearm seized by the police from Jason L. (Defendant), a minor, following a stop and frisk of both Defendant and his companion. The central issue presented on appeal is whether the stop and search of Defendant was lawful. For the reasons discussed herein, we reverse.

FACTS

{2} During their evening patrol on July 17, 1997, two Roswell, New Mexico, city police officers, Dallas McDaniel and Stanley Jordan, observed two youths walking together on Thirteenth Street at approximately 10:00 p.m. As the patrol car drove past the two individuals, Officer McDaniel noticed that one of the youths, Filemon M., kept looking back repeatedly at the patrol ear. What particularly caught the eye of the officers was that Filemon M. repeatedly made motions at the left side of the waistband of his pants as if seemingly “adjusting something or messing with something up underneath his big, heavy coát.” Although the evening was warm, the officers noted that Filemon M. was wearing a big, heavy jacket and baggy pants. His jacket was zipped closed. Defendant was also wearing a jacket. Officer Jordan stated that it appeared “peculiar” for individuals to have heavy jackets on in the middle of July. Officer McDaniel also testified that the police had received previous reports of juveniles stealing property about a block and a half away, but no reports of criminal activity that night in that area of town.

{3} The officers passed the youths and then drove back to where the two youths were walking. McDaniel asked what the two were doing. Responding to the officer’s inquiry, the two youths said that they were just walking. When the officers approached, Filemon M. moved to a position behind Defendant. According to Officer Jordan, Defendant, however, stood still and appeared willing to talk. During this time, Filemon M. continued to make movements as if adjusting something on the left side of the waistband of his pants. This prompted McDaniel to ask whether the two were carrying any knives or other weapons. Neither of the youths responded to this question. McDaniel repeated the question, and one of the youths replied that they did not have any weapons.

{4} Officer McDaniel, noting that Filemon M. several times had pulled at the left side of the waistband of his pants, stated that this action prompted him to believe that Filemon M. had a gun hidden in the waistband of his pants. McDaniel then asked Filemon M. to unzip his coat so he could see what was under it. The youth was nervous and partially unzipped his coat. McDaniel asked him again to open his jacket. Officer Jordan stated that at this point Filemon M. suddenly reached toward his waistband and that Officer McDaniel grabbed the youth’s hand. Officer Jordan testified that he saw a gun protruding from the waistband of Filemon M.’s pants and he yelled out, “gun.” Jordan stated that when Filemon M. made a sudden movement toward the waistband of his pants, he then patted down the inside of the left waistband of Filemon M. and found a .22 caliber pistol. Filemon M. then informed the officers that he was carrying a second gun. Officer Jordan handcuffed him and conducted a pat-down which revealed another firearm hidden under the youth’s clothing.

{5} At this juncture, Officer McDaniel testified that he became concerned for officer safety from Defendant, who was standing near Filemon M. Accordingly, he conducted a pat-down of Defendant which disclosed that he also had a .22 caliber semi-automatic pistol in the waistband of his pants.

{6} The State charged both youths with unlawful possession of a handgun, contrary to NMSA1978, § 30-7-2.2 (1994).

DISCUSSION

{7} The State argues on appeal that the trial court erred in determining that the officers did not have individualized, articulable, reasonable suspicion to approach Defendant and to conduct a pat-down search. Determination of whether a person “has been seized in violation of the Fourth Amendment is a mixed question of law and fact.” State v. Walters, 1997-NMCA-013, ¶ 8, 123 N.M. 88, 934 P.2d 282.

{8} When reviewing an appeal from an order suppressing evidence, we examine the facts underlying such motion in the light most favorable to the prevailing party. See State v. Pallor, 1996-NMCA-083, ¶ 10, 122 N.M. 232, 923 P.2d 599. However, the ultimate determination of the existence of reasonable suspicion is reviewed de novo. See State v. Eli L., 1997-NMCA-109, ¶ 6, 124 N.M. 205, 947 P.2d 162; see also State v. Jimmy R., 1997-NMCA-107, ¶ 1, 124 N.M. 45, 946 P.2d 648 (stating that appeal challenging denial of motion to suppress police officer’s stop and search reviewed de novo). Reasonable suspicion exists if a law enforcement officer has a reasonable and articulable suspicion that the person stopped is or has been involved in illegal activity. See State v. Cobbs, 103 N.M. 623, 626, 711 P.2d 900, 903 (Ct.App.1985).

{9} Investigatory stops of individuals may be authorized under narrowly defined circumstances, absent probable cause for arrest without implicating the Fourth Amendment. To validate this limited intrusion, a peace officer must have a specific and articulable basis in fact for suspecting that criminal activity has occurred or is about to take place, the intrusion must be reasonable when viewed objectively in light of the circumstances, and the scope and character of the intrusion must be reasonably related to its purpose. See Terry v. Ohio, 392 U.S. 1, 21-22, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{10} Whether these conditions exist is evaluated under an objective standard taking into consideration the facts and circumstances known to the officer at the time of the intrusion. See State v. Lyon, 103 N.M. 305, 307, 706 P.2d 516, 518 (Ct.App.1985). The existence of reasonable suspicion is not susceptible to a bright-line test; instead, it must be judged under the totality of the circumstances and the reasonable inferences which may properly be drawn therefrom. See Cobbs, 103 N.M. at 626, 711 P.2d at 903 (under objective standard, the critical inquiry is “ ‘[w]ould the facts available to the officer warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate’” (quoting State v. Galvan, 90 N.M. 129, 131, 560 P.2d 550, 552 (Ct.App.1977))); see also United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). An investigative detention, however, may not be based upon “an inchoate and unparticularized suspicion or hunch.” Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868) (internal quotation marks omitted).

{11} The State argues, among other things, that a showing of reasonable suspicion was not necessary to permit the officers to approach the two youths and ask a few questions. See Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (citing Florida v.

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Bluebook (online)
1999 NMCA 095, 985 P.2d 1222, 127 N.M. 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jason-l-nmctapp-1999.