State v. Cabrera

• Court: New Mexico Court of Appeals
• Decided: April 24, 2012
• Docket: 31,732
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 31,732

5 GEORGE CABRERA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Reed S. Sheppard, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jacqueline Cooper, Chief Public Defender 13 Santa Fe, NM

14 Josephine H. Ford, Assistant Appellate Defender 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 BUSTAMANTE, Judge. 1 Defendant-Appellant George Cabrera (Defendant) has appealed from a

2 conviction for DWI. We issued a notice of proposed summary disposition, proposing

3 to affirm. Defendant has filed a memorandum in opposition. After due consideration,

4 we remain unpersuaded. We therefore affirm.

5 Defendant has raised a single issue, arguing that the traffic stop which

6 ultimately led to his conviction was not supported by reasonable suspicion. [DS 18;

7 MIO 13-19]

8 The traffic stop was initiated after a police officer observed Defendant making

9 a U-turn through an area marked off by cones, thereby avoiding a DWI checkpoint.

10 [DS 4; MIO 2-3, 7] As we observed in the notice of proposed summary disposition,

11 the New Mexico Supreme Court has held that conduct of this nature is sufficient to

12 give rise to reasonable suspicion. See State v. Anaya, 2009-NMSC-043, ¶ 15, 147

13 N.M. 100, 217 P.3d 586 (“Evading a marked DWI checkpoint is a specific and

14 articulable fact that is sufficient to predicate reasonable suspicion for an investigatory

15 stop.”).

16 In his memorandum in opposition Defendant attempts to distinguish Anaya on

17 its facts. [MIO 14-15] Specifically, Defendant contends that the circumstances

18 presented in this case, including the fact that the sky was dark such that the purpose

19 of the traffic stop would not necessarily be evident, as well as the relatively high

2 1 traffic flow in the area, indicate that Defendant’s conduct “was consistent with typical

2 driving patterns in the neighborhood,” and as such, it did not give rise to a reasonable

3 suspicion that Defendant was trying to avoid the checkpoint. [MIO 15-17] However,

4 the traffic stop at issue in Anaya also occurred after dark, at a time when the

5 emergency lights would be readily visible to approaching motorists, and at a location

6 (a highway) that would appear to involve a relatively high flow of traffic. Id. ¶ 2.

7 Accordingly, neither the time of day nor the location of the checkpoint warrant a

8 departure from Anaya.

9 Defendant also attempts to distinguish Anaya on grounds that the officer did not

10 testify that he thought Defendant was trying to avoid the checkpoint. [MIO 15]

11 However, because the existence of reasonable suspicion is analyzed objectively, the

12 officer’s subjective state of mind does not affect the validity of the stop. State v.

13 Hubble, 2009-NMSC-014, ¶¶ 8, 23, 146 N.M. 70, 206 P.3d 579. We therefore remain

14 of the opinion that Defendant’s conduct, when objectively evaluated, supplied an

15 adequate basis for initiating a traffic stop.

16 Accordingly, for the reasons stated in the notice of proposed summary

17 disposition and above, we affirm.

18 IT IS SO ORDERED.

3 1 2 MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:

4 5 CYNTHIA A. FRY, Judge

6 7 LINDA M. VANZI, Judge