1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 28,863
10 JERRY CASTILLO,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Albert S. “Pat” Murdoch, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 Francine A. Chavez, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Karl Erich Martell, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 SUTIN, Judge. 1 Defendant Jerry Castillo entered into a conditional plea of guilty for trafficking
2 methamphetamine. Based on the conditional plea, Defendant appeals the denial of his
3 motions to suppress physical evidence and admissions made by him during the stop
4 and detention in this case. We affirm.
5 BACKGROUND
6 While conducting a saturation patrol on Central Avenue, in Albuquerque, New
7 Mexico, Detective Candelaria and her partners, Sergeant Campbell and Detective
8 Scrivner, observed a white SUV parked at a Long John Silver’s restaurant with several
9 individuals huddled around the rear passenger side of the vehicle. Detective
10 Candelaria thought it was unusual for the individuals to be huddled around the
11 vehicle, particularly because it was in the parking lot of a sit-down eatery. The
12 location was a “high area for criminal activity,” with “business complaints” of fights
13 and loitering. The officers were working a specific plan in the area that included
14 saturation of Central Avenue and addressing situations that appeared to be out of the
15 ordinary. After noticing the individuals in the parking lot, Detective Candelaria and
16 her partners parked nearby to observe. Detective Candelaria testified that she did not
17 see any merchandise “such as a Coke or a bag from [the restaurant].” The officers
18 watched the individuals for about eight to ten minutes and then drove closer to where
19 the individuals were located and stopped about ten feet away. At that point, Detective
2 1 Candelaria saw one of the male individuals drinking a beer and observed him putting
2 it in the SUV. Sergeant Campbell also observed the same male drinking a beer.
3 Detective Candelaria and Sergeant Campbell testified that drinking in public was
4 considered a violation of a city ordinance.
5 The officers exited their vehicle. As the officers approached the group,
6 Detective Candelaria noticed two males sitting inside the vehicle. She testified that
7 for safety reasons she told everyone, including the two individuals inside the vehicle,
8 to show their hands and to exit the vehicle. The driver complied with the officer’s
9 commands, but Defendant, who was sitting in the rear passenger seat, stayed in the
10 vehicle and reached behind the seat. Due to Defendant’s non-compliance with the
11 officer’s verbal commands, Detective Candelaria drew her weapon for her safety and
12 the other officer’s safety, out of concern that Defendant “was going for a firearm or
13 any kind of weapon.” Detective Candelaria had repeatedly told Defendant to show
14 his hands and to get out of the vehicle, but Defendant did not do so right away.
15 Defendant eventually put his hands out where the officer could see them and exited
16 the vehicle. At this point, for safety reasons and for investigation purposes, because
17 he had not complied, the officer conducted a patdown of Defendant, handcuffed him,
18 and had him sit on the ground.
3 1 While Defendant was sitting on the ground, the restaurant manager came out
2 of the restaurant and asked the female, who was wearing a shirt that identified her as
3 an employee of the restaurant, to change her shirt. Detective Candelaria walked the
4 female to the SUV where the female pulled a shirt out of a duffel bag. When the shirt
5 was pulled out of the bag, a plastic bag containing a white substance, as well as
6 numerous other little baggies, some of which also contained the white substance, fell
7 to the floor of the SUV. Detective Candelaria and the female individual looked at
8 each other, and Defendant yelled, “That’s mine. That’s all mine.” Defendant was
9 then read his Miranda rights, after which “he indicated that the substance that was
10 tangled up in the shirt was all his.” The white substance was identified by Defendant
11 as methamphetamine.
12 Defendant filed a motion to suppress the methamphetamine, arguing that there
13 was no individualized suspicion that Defendant was involved in wrongdoing, and
14 therefore, he was subjected to unlawful detention and seizure. Defendant also filed
15 a motion to suppress his pre-Miranda admissions, arguing that due to the unlawful
16 seizure, his statements should be suppressed, that his first admission was made prior
17 to being Mirandized, and that his second admission was made too close in time to his
18 pre-Miranda admission. The district court issued an order denying both motions. The
19 district court found that the actions of the officers were justified, Defendant’s first
4 1 admission was voluntary and not a result of custodial interrogation, and although
2 Defendant’s standing to contest the seizure of the methamphetamine was
3 “questionable,” the methamphetamine was seized without a search when the drugs
4 were dropped in the presence of one of the officers. Defendant entered into a
5 conditional plea and appealed the district court’s judgment, sentence and order
6 partially suspending sentence.
7 DISCUSSION
8 Defendant raises two issues on appeal: (1) whether the methamphetamine and
9 Defendant’s admissions should have been suppressed as fruits of an unlawful stop and
10 arrest, and (2) whether Defendant’s admissions should have been suppressed based
11 on violation of Miranda. On appeal from a district court’s ruling on a motion to
12 suppress, findings of fact are reviewed to determine if they are supported by
13 substantial evidence and legal conclusions are reviewed de novo. See State v. Leyba,
14 1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171. “We review the district court’s
15 ruling on a motion to suppress to determine whether the law was correctly applied to
16 the facts, viewing the facts in the light most favorable to the prevailing party.” State
17 v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785.
18 State Constitutional Claims
5 1 The State claims that Defendant failed to adequately preserve his claims under
2 the State Constitution. In both motions to suppress filed below, Defendant argued that
3 our State Constitution “provides an additional layer of protection to criminal
4 defendants than does the [F]ederal [C]onstitution.” In both motions, Defendant
5 argued that his detention was unlawful and referred to the facts to support his claim
6 and to various New Mexico cases discussing unlawful detention. Defendant stated
7 that he “preserves his claim[s] . . . under the [S]tate [C]onstitution” and cited to State
8 v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.
9 In Gomez, our Supreme Court stated that “[w]here New Mexico courts have
10 taken a different path than federal courts, our precedent governs regardless of whether
11 a party cites specific cases in support of a constitutional principle, so long as the party
12 has asserted the principle recognized in the cases and has developed the facts
13 adequately to give the opposing party an opportunity to respond and to give the court
14 an opportunity to rule.” Id. ¶ 30. While Defendant did adequately develop the
15 relevant facts in this case, he did not assert any specific principle of state
16 constitutional law that might apply to this case. It is therefore questionable whether
17 Defendant adequately preserved his claims under our State Constitution. In any event,
18 we have reviewed the case law, and we do not believe the result would be different
19 under either the New Mexico Constitution or the Federal Constitution.
6 1 Standing to Challenge Seizure of Drugs
2 Defendant argues that, as a result of an unlawful detention and arrest, the
3 officers engaged in “exploitation of that illegality” or “created the situation” whereby
4 the female individual returned to the SUV and the drugs were discovered. Defendant
5 claims that he has standing to challenge the seizure of the methamphetamine because
6 the seizure was a result of his own unlawful detention.
7 The methamphetamine was not discovered in Defendant’s vehicle, on his
8 person, or in his personal effects. Instead, the drugs were found when they
9 inadvertently fell out of a bag belonging to a third person. Under these circumstances,
10 Defendant would not have standing to object to the seizure of the drugs unless the
11 seizure of the drugs occurred because of police exploitation of Defendant’s own
12 unlawful detention. See State v. Sewell, 2009-NMSC-033, ¶ 16, 146 N.M. 428, 211
13 P.3d 885; State v. Hernandez, 1997-NMCA-006, ¶ 17, 122 N.M. 809, 932 P.2d 499.
14 In order to answer the question of whether Defendant had standing to challenge the
15 seizure of the drugs, we must determine first whether Defendant was unlawfully
16 stopped and detained, and second, whether the officers were exploiting unlawful
17 conduct with respect to Defendant in order to obtain the evidence.
18 Legality of Stop and Detention
7 1 In this case, the incident began as an encounter between several officers and
2 four individuals, including Defendant. Defendant challenges the legality of the stop
3 as to all of the individuals. In addition, Defendant claims that Detective Candelaria
4 acted unlawfully when she ordered him to show his hands and exit the vehicle, when
5 she drew her weapon while directing commands to Defendant, and when she
6 handcuffed Defendant and placed him on the ground after conducting a patdown
7 search for weapons.
8 The officers were conducting a saturation patrol, witnessed one of the
9 individuals drinking a beer, and approached the group. An officer may make an
10 investigatory stop if there exists reasonable suspicion, based on specific articulable
11 facts and rational inferences, that the law has been or is being violated. State v.
12 Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038. “In determining whether
13 reasonable suspicion exists, we examine the totality of the circumstances.” State v.
14 Cardenas-Alvarez, 2001-NMSC-017, ¶ 21, 130 N.M. 386, 25 P.3d 225. “This is a
15 fact-specific inquiry that does not lend itself to bright-line rules.” State v. Duran,
16 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836.
17 We are aware that a seizure does not occur merely because officers approach
18 individuals and ask questions so long as the actions of the officers do not suggest that
19 the individuals are required to answer the questions put to them. See id. ¶ 31.
8 1 However, the officers in this case did not simply approach and ask questions of the
2 group, and in fact, the officers did not pose individual questions to the person who had
3 been seen drinking the beer. Instead, immediately upon approaching the group,
4 Detective Candelaria told everyone to show their hands and exit the vehicle.
5 In a previous case decided by this Court, we discussed an encounter that, at the
6 outset, might have been characterized as a voluntary and consensual encounter, but
7 was transformed into a non-consensual encounter based on the officer’s primary goal
8 of investigating a criminal matter. See State v. Montaño, 2009-NMCA-130, ¶ 21, 147
9 N.M. 379, 223 P.3d 376. We held that any initial consensual encounter did not
10 surpass the officer’s actions taken for the purposes of conducting a criminal
11 investigation. Id. ¶ 22; see State v. Gutierrez, 2008-NMCA-015, ¶ 14, 143 N.M. 522,
12 177 P.3d 1096 (explaining that, despite the initial intention to merely ask a few
13 questions, the officer’s encounter with the defendant escalated into an investigatory
14 detention requiring as support an objective belief that reasonable suspicion existed
15 based on the totality of the circumstances and the information available to the officer).
16 Here, Detective Candelaria was suspicious of the group because they were
17 “huddled behind the rear” door of the vehicle for some time, but she testified that the
18 officers approached the group in order to investigate the commission of a crime based
19 on their belief that a city ordinance was being violated. Detective Candelaria testified
9 1 that, if they had not seen one individual drinking alcohol, they “probably would have
2 just kept on driving.” Clearly, the encounter was for the purpose of investigating the
3 possibility of a crime and simply does not fit within the guidelines for a consensual
4 or voluntary encounter. Therefore, in order to justify the stop in this case, the officers
5 must have had reasonable suspicion based on the circumstances and the information
6 known to the officers at the time of the stop.
7 Detective Candelaria testified that reasonable suspicion permitted the officers
8 to approach and conduct an investigation because drinking in public is illegal as a
9 violation of a city ordinance. The parties stipulated at the suppression hearing that the
10 location of the stop was on privately owned property that was open to the public. The
11 ordinance relied on by the officer provides:
12 [Section] 12-4-8 DRINKING IN PUBLIC.
13 Drinking in public consists of drinking or consuming alcoholic 14 liquors (as the term is defined in Section 60-3A-3 NMSA 1978, as 15 amended):
16 (A) In any city-owned park, except a park in which drinking is 17 expressly permitted by resolution.
18 (B) (1) In any public way, except a public way within a city-owned 19 park in which drinking is expressly permitted by resolution.
20 (2) For purposes of this division (B), PUBLIC WAY is 21 defined as the entire width between the property lines of every way 22 publicly maintained when any part thereof is customarily open to the use 23 of the public for purposes of vehicular travel and includes the street,
10 1 sidewalk, and any other area between the curb lines or lateral lines of the 2 roadway and the adjacent property lines.
3 (C) In any city owned parking lot, except a parking lot in a 4 city-owned park in which drinking is expressly permitted by resolution.
5 (D) Within 100 feet of any establishment licensed to dispense 6 alcoholic liquors.
7 In the district court, Defendant argued that the male individual suspected of
8 drinking a beer had not committed a crime because he was in a privately owned
9 parking lot at the time the officers approached. Defendant argued that the “police
10 misread” the ordinance, which applies only to public streets and public ways and not
11 to private property. In Defendant’s briefs, he continues to claim that the stop was
12 made on “undeniably private property,” and the officers approached the group based
13 on a mistake of law, which cannot be used as the basis for a lawful stop. The State,
14 on the other hand, contends the officers’ mistake was one of fact, not law, and
15 therefore does not affect the legality of the stop.
16 Our Supreme Court, in State v. Hubble, 2009-NMSC-014, 146 N.M. 70, 206
17 P.3d 579, discussed mistakes of law and fact in relation to reasonable suspicion. Id.
18 ¶¶ 21-25. The Court explained that a mistake of law is a “mistake about the legal
19 effect of a known fact or situation,” and a mistake of fact is a “mistake about a fact
20 that is material to a transaction; any mistake other than a mistake of law.” Id. ¶ 22
21 (internal quotation marks and citation omitted). The Court further recognized that a
11 1 mistake of law, even a good faith and reasonable mistake cannot provide objective
2 grounds to support reasonable suspicion. Id. Detective Candelaria’s belief that one
3 individual was violating the ordinance against drinking in public was based on a
4 mistake of law. The officer testified repeatedly that she had no idea “who owned” the
5 property, and she had no idea whether the property was privately or publicly owned
6 at the time the officers decided to approach the group. Significantly, she did not
7 testify that she thought the property might be owned by the city. In other words, the
8 officer was mistaken about the law in that she mistakenly believed that the individual
9 that was drinking alcohol was violating the city ordinance by drinking in public
10 regardless of whether the conduct was carried out on public or private property.
11 Because a mistake of law, even a reasonable or good faith mistake, does not provide
12 the requisite reasonable suspicion to conduct a stop, the belief that one individual was
13 violating a city ordinance did not provide justification for the stop.
14 We recognize that, even if a stop is based on a mistake of law, the stop may still
15 be justified if facts articulated by the officer provide reasonable suspicion on another
16 basis. Id. ¶¶ 28-29. However, there are no facts articulated by the officers, other than
17 the belief that an ordinance was being violated, to support the stop in this case. In
18 sum, the officers’ approach cannot be characterized as a simple approach for
19 questioning, and Detective Candelaria’s mistake of law with respect to the city
12 1 ordinance did not provide reasonable suspicion to approach the group based on the
2 observation that one individual was drinking alcohol. Therefore, the stop was
3 unlawful.
4 Detective Candelaria approached the vehicle and asked that everyone, including
5 Defendant, show their hands and exit the vehicle. She testified that her actions were
6 out of concern for officer safety and that it was typical for her to make such requests.
7 Defendant did not comply with the officer’s requests, but instead “reached behind the
8 seat,” so that the officer was unable to see what Defendant was doing with his hand.
9 At that moment, the officer drew her gun and repeated her commands for Defendant
10 to show his hands and exit the vehicle. According to the officer’s testimony,
11 Defendant refused to comply for several minutes despite the fact that the officer had
12 drawn her gun and was pointing it at him. Defendant kept his arm behind the seat.
13 Ultimately, Defendant complied with the officer’s demands.
14 These facts give rise to a possible issue as to whether, despite the illegality of
15 the initial stop, there was a sufficient break between that unlawful stop and the further
16 detention of Defendant, such that the detention was not tainted by the illegality of the
17 stop. Cf. State v. Neal, 2007-NMSC-043, ¶ 34, 142 N.M. 176, 164 P.3d 57
18 (discussing the test for determining whether discovery of evidence as a result of
19 consent was sufficiently attenuated from the prior illegal action of police). However,
13 1 the State did not make such an argument and, given our disposition of the case, we
2 need not address that issue. We therefore assume, for purposes of this opinion, that
3 the continued detention of Defendant, following the unlawful stop and continuing to
4 the point where Defendant was placed on the ground, was unlawful. We now turn to
5 the question of whether the illegal detention of Defendant was exploited in order to
6 reveal the methamphetamine seized by the officers.
7 Exploitation of Illegality
8 The district court found that the baggies containing methamphetamine were not
9 discovered as a result of the continued detention of Defendant. According to
10 Defendant, the restaurant manager directed the female individual to cover her uniform
11 as a direct result of the “improper and unlawful” arrest of Defendant. Defendant
12 argues that the discovery of the methamphetamine “flowed” from the “exploitation”
13 of the illegal arrest. Defendant claims that all evidence obtained in this case,
14 including the drugs and Defendant’s statements, must be suppressed as fruits of the
15 poisonous tree.
16 The “fruit of the poisonous tree” doctrine requires suppression of all evidence
17 discovered as a direct result of an illegal seizure. State v. Garcia, 2009-NMSC-046,
18 ¶ 23, 147 N.M. 134, 217 P.3d 1032. The “fruit of the poisonous tree” doctrine
19 prohibits evidence obtained as a result of an illegal arrest or detention to be admitted,
14 1 except in situations where there is a break in the chain between an unlawful arrest and
2 a subsequent discovery of evidence. State v. Hawkins, 1999-NMCA-126, ¶ 16, 128
3 N.M. 245, 991 P.2d 989 (internal quotation marks and citation omitted). In order to
4 determine whether there was sufficient attenuation between the illegality of the
5 detention and the discovery of the drugs in this case, we give consideration to certain
6 factors, including the presence of intervening circumstances and the flagrancy of the
7 official misconduct. See State v. Monteleone, 2005-NMCA-129, ¶ 17, 138 N.M. 544,
8 123 P.3d 777.
9 The independent source doctrine provides that not all evidence is categorized
10 as the “‘fruit of the poisonous tree’ simply because it would not have come to light but
11 for the illegal actions of the police.” State v. Wagoner, 2001-NMCA-014, ¶ 22, 130
12 N.M. 274, 24 P.3d 306 (internal quotation marks and citation omitted). Instead, even
13 if it is shown that officers engaged in a “primary illegality,” it must still be determined
14 whether disputed evidence was obtained through the “exploitation of that illegality”
15 or through other means that are “sufficiently distinguishable” so as “to be purged of
16 the primary taint.” Id. (internal quotation marks and citation omitted) (relying on
17 Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)).
18 We agree with the district court’s conclusion that the discovery of the drugs was
19 a result of a source independent of any illegality in police actions concerning
15 1 Defendant. Here, the methamphetamine was discovered when the restaurant manager
2 directed the female individual to change her employee shirt. It is clear that the
3 manager’s request that the female individual cover her uniform was sufficiently
4 distinguishable from any “primary illegality” involved in the stop or detention of
5 Defendant. The chain of events with respect to Defendant involved an unlawful
6 detention and seizure, a patdown search for weapons, and a further detention when he
7 was placed on the ground in handcuffs. On the other hand, the chain of events
8 involving the female individual and leading to discovery of the drugs began when the
9 manager asked the female to change her shirt, continued when the female went to the
10 vehicle to retrieve a shirt from a duffel bag inside the vehicle, and ended when the
11 female pulled her shirt out of the bag inadvertently causing the drugs to fall to the
12 floor of the vehicle.
13 Defendant points to no facts to support an argument or an inference that the
14 officer accompanied the female to the SUV for exploitation purposes. We are not
15 informed about why the officer followed the female. It would be reasonable, under
16 the circumstances, that the officer could have been concerned about the female
17 obtaining a weapon from the vehicle. Nothing indicates that the officer was aware of
18 or anticipated that illegal contraband would be found in the SUV if the officer went
19 with the female to the vehicle. For that matter, nothing indicates that the female knew
16 1 about the illegal contraband. There is simply no connection between the actions
2 concerning Defendant and the discovery of the drugs. See Monteleone, 2005-NMCA-
3 129, ¶ 17; cf. State v. Santiago, 2009-NMSC-045, ¶ 5, 147 N.M. 76, 217 P.3d 89
4 (noting that “courts have routinely held” that suppression of evidence is not required
5 in situations where a third party voluntarily provides evidence belonging to another,
6 and the direct or indirect involvement of the government in that transaction is minor
7 or nonexistent).
8 In addition, there exists no evidence of misconduct by the officers in conducting
9 the stop or placing Defendant on the ground in handcuffs. Cf. Monteleone, 2005-
10 NMCA-129, ¶ 19 (explaining that the nature of the police misconduct and the state of
11 vulnerability the defendant was placed in were an exploitation of the illegal entry and
12 holding that the defendant’s consent “was not obtained by means sufficiently
13 distinguishable as to be purged of the primary taint” (internal quotation marks and
14 citation omitted)). Furthermore, there is nothing to suggest that the officers exploited
15 the situation in this case by causing the female individual to retrieve the shirt from her
16 bag located in the vehicle, which resulted in the discovery of the drugs. The discovery
17 of the methamphetamine was completely accidental and not a result of an order,
18 request, or search by officers. In other words, the discovery of the drugs was not
19 tainted by any illegal conduct directed at Defendant by the officers.
17 1 We hold that the district court was correct in determining that the
2 methamphetamine was discovered as a result of an independent source. We therefore
3 conclude that, because the drugs were not discovered as a result of actions toward
4 Defendant or as a result of exploitation by the officers, Defendant had no standing to
5 challenge the seizure of the evidence. See Hernandez, 1997-NMCA-006, ¶ 17.
6 Defendant’s Admissions
7 Defendant claims that his pre and post-Miranda admissions should have been
8 suppressed. Defendant raises his claims pursuant to State v. Franklin, 78 N.M. 127,
9 428 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985).
10 Defendant was sitting on the ground in handcuffs when the methamphetamine fell to
11 the floor of the SUV as the female pulled her shirt from the duffel bag. When the
12 methamphetamine fell to the floor of the vehicle, Defendant yelled, “That’s mine.
13 That’s all mine.” Defendant claims that this statement was made “subject to
14 interrogation when he was in custody.” Contrary to Defendant’s claim, there is
15 nothing to indicate that the statement was made in response to any interrogation by
16 police. See State v. Greene, 91 N.M. 207, 214, 572 P.2d 935, 942 (1977). There is
17 nothing to suggest that the officers attempted to elicit Defendant’s statement or that
18 his statement was in response to questioning by police. See State v. Fekete, 120 N.M.
18 1 290, 300, 901 P.2d 708, 718 (1995). On the contrary, Defendant’s statement was not
2 the type of statement that the officers could have foreseen in this case. Id.
3 Defendant was subsequently provided with Miranda warnings, and he stated
4 that he understood his rights. Defendant then admitted that the drugs belonged to him.
5 Defendant claims that there was no break in the causal chain before any purported
6 consent was obtained after the unlawful arrest, and therefore his second admission
7 should have been suppressed. However, Defendant does not suggest that he did not
8 voluntarily waive his Miranda rights before giving his statement or that police coerced
9 him into giving the post-Miranda statement. See Fekete, 120 N.M. at 301, 901 P.2d
10 at 719. The district court did not err in refusing to suppress Defendant’s admissions.
11 CONCLUSION
12 We hold that the district court properly refused to suppress the
13 methamphetamine and Defendant’s admissions. We affirm the judgment and sentence
14 in this case.
15 IT IS SO ORDERED.
16 __________________________________ 17 JONATHAN B. SUTIN, Judge
19 1 WE CONCUR:
2 __________________________________ 3 CYNTHIA A. FRY, Chief Judge
4 __________________________________ 5 MICHAEL D. BUSTAMANTE, Judge