State v. Dominguez

Opinion

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

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellant, 4 v. NO. 29,741 5 ANDREW DOMINGUEZ, 6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Steven L. Bell, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson, Assistant Attorney General 12 Albuquerque, NM

13 for Appellant

14 Jesse R. Cosby, P.C. 15 Jesse R. Cosby 16 Roswell, NM

17 for Appellee

18 MEMORANDUM OPINION 19 ROBLES, Judge.

1 The State appeals a district court’s ruling on a motion to suppress, pursuant to 2 State v. Ochoa, 2009-NMCA-002, ¶ 38, 146 N.M. 32, 206 P.3d 143 (filed 2008), cert. 3 quashed, 2009-NMCERT-011, 147 N.M. 464, 225 P.3d 794, and subsequent denial 4 of a motion to reconsider. Upon review, we affirm the district court. 5 I. BACKGROUND 6 At the hearing on the motion to suppress, the following material facts were 7 developed. On November 13, 2008, while attempting to locate a suspect on a matter 8 unrelated to the current appeal, Detective Mark Mahone of the Roswell Police 9 Department saw Andrew Dominguez’s (Defendant) vehicle being operated while the 10 passenger was not wearing a seatbelt. After stopping Defendant’s vehicle and 11 approaching, the detective smelled the odor of burnt marijuana and observed in plain 12 view a “smoking device” between Defendant and the passenger. A subsequent 13 consensual search revealed two plastic bags that were later determined to contain 14 marijuana and methamphetamine. 15 Detective Mahone testified that he is the only member of a special investigatory 16 unit with the Roswell Police Department, titled the Violent Crimes Reduction Unit 17 (VCRU). The VCRU’s mandate is to enforce all laws with a zero tolerance policy in 18 a proactive approach that allows him to initiate all citizen encounters and investigate 19 all types of infractions. The purpose of the VCRU is to reduce violent crime by

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1 providing high police presence and visibility. The VCRU originally targeted specific 2 high crime areas but, at the time of the incident, manpower issues limited the areas the 3 could be targeted. Further, the detective testified that he had not been instructed 4 where to patrol and, therefore, he patrols the entire city. As a member of the VCRU, 5 the detective reports to his supervisor, Sergeant Brackeen, who also works and/or 6 oversees another special investigations unit whose focus is on narcotics. The detective 7 works closely with the narcotics unit and consistently investigates narcotics incidents. 8 His narcotics investigations generally arise from other things involving consensual 9 contact or traffic stops. The sergeant likewise testified that (1) the VCRU has just one 10 officer, (2) stops made by the VCRU officer are at the discretion of that particular 11 officer, and (3) he did not know if the VCRU stopped all persons for every infraction 12 witnessed. 13 At the time the stop was made to enforce Defendant’s passenger’s seatbelt 14 violation, the detective was driving an unmarked Dodge Charger and was wearing a 15 polo shirt with an embroidered badge. The detective testified he knew Defendant 16 from prior investigations of other infractions, though he could not remember specifics. 17 After seeing a smoking device in plain view, the officer obtained Defendant’s consent 18 to search the vehicle. Although his unit provided consent forms, the detective did not 19 ask Defendant to sign a consent form and did not use his belt recorder. After finding

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1 what he believed to be two bags of marijuana in the vehicle, the detective only issued 2 Defendant a citation for possession of marijuana, but told Defendant that he would 3 “cut him a break” for the possession of drug paraphernalia. The detective did not 4 issue either the driver or passenger a citation for the seatbelt violation. The detective 5 then allowed both Defendant and the passenger to leave. Only after subsequent field 6 tests at the station revealed that the bags contained methamphetamine did the detective 7 decide to arrest Defendant. The district court concluded that “[i]t is obvious that 8 Detective Mahone’s traffic stops are not for the purpose of regulating the safe and 9 effective flow of traffic in Roswell, New Mexico, but rather to attempt to obtain 10 information regarding serious crimes such as possession and/or trafficking of narcotics 11 and weapons.” 12 II. DISCUSSION 13 Whether a search and seizure was constitutional is a mixed question of law and 14 fact. State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836 (citing 15 State v. Vandenberg, 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19). We review 16 factual determinations by a district court under a substantial evidence standard. Id. 17 “We review whether the laws were correctly applied to the facts de novo, viewing the 18 facts in the light most favorable to the prevailing party.” State v. Rivera, 2008- 19 NMSC-056, ¶ 10, 144 N.M. 836, 192 P.3d 1213.

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1 In Ochoa, this Court concluded that pretextual stops violate New Mexico’s 2 Constitution under Article II, Section 10. 2009-NMCA-002, ¶ 1. We clarified that 3 a pretextual traffic stop is where “a police officer is stopping the driver, not to enforce 4 the traffic code, but to conduct a criminal investigation unrelated to the driving.” 5 Ochoa, ¶ 16 (internal quotation marks omitted). We acknowledged that, in some 6 situations while there may have been a violation of the traffic law that would give rise 7 to reasonable suspicion or probable cause to conduct a traffic stop, the actual reason 8 that a police officer conducted the stop may lack legal sufficiency. Id. We held that 9 a district court should therefore determine whether a stop is “pretextual subterfuge” 10 by considering the totality of the circumstances, judging the credibility of witnesses, 11 weighing the evidence, and, ultimately, make the decision whether to exclude 12 evidence depending on the objective and subjective reasonableness of the stop at its 13 inception. Id. ¶ 39. “[T]he officer’s intent is determined like any other fact[.]” Id. 14 If the defendant claiming pretext meets the burden of showing that a stop was 15 pretextual based on the totality of the circumstances, the burden then shifts to the state 16 to demonstrate that “even without [the officer’s ulterior] motive, the officer would 17 have stopped the defendant” regardless. Id. ¶ 40. Factors relevant in analyzing the 18 totality of the circumstances may, but need not necessarily, include consideration of

19 whether the defendant was arrested for and charged with a crime 20 unrelated to the stop; the officer’s compliance or non-compliance with

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1 standard police practices; whether the officer was in an unmarked car or 2 was not in uniform; whether patrolling or enforcement of the traffic code 3 were among the officer’s typical employment duties; whether the officer 4 had information, which did not rise to the level of reasonable suspicion 5 or probable cause, relating to another offense; the manner of the stop, 6 including how long the officer trailed the defendant before performing 7 the stop, how long after the alleged suspicion arose or violation was 8 committed the stop was made, how many officers were present for the 9 stop; the conduct, demeanor, and statements of the officer during the 10 stop; the relevant characteristics of the defendant; whether the objective 11 reason articulated for the stop was necessary for the protection of traffic 12 safety; and the officer’s testimony as to the reason for the stop.

13 Id. ¶ 41. 14 In the instant case, the district court concluded that the facts under the totality 15 of the circumstances analysis supported suppression. Specifically, the district court 16 noted that (1) neither Defendant nor his passenger were cited for the seatbelt violation; 17 (2) Detective Mahone was in an unmarked car and not in uniform; (3) enforcement of 18 the traffic code was not “clearly” among the detective’s typical duties, nor was he a 19 patrol officer; and (4) although the detective had probable cause to stop the vehicle for 20 the passenger’s failure to wear a seatbelt, it was not the real reason for the stop. These 21 factual findings and credibility determinations were within the purview of the district 22 court, and the evidence developed at the hearing does provide substantial evidence for 23 the district court’s factual determinations. Duran, 2005-NMSC-034, ¶ 19. 24 On appeal, the State argues that the pretext doctrine announced in Ochoa should 25 not apply to traffic stops made pursuant to a zero tolerance policy designed to deter

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1 crime. It is the State’s contention that the instant case differs from Ochoa in that 2 Detective Mahone did not suspect Defendant of committing another crime at the time 3 the stop was initiated. Moreover, the State urges this Court to view the stop as being 4 akin to roadblocks that are constitutionally permissible because officer discretion is 5 limited. See, e.g., City of Las Cruces v. Betancourt, 105 N.M. 655, 658, 660, 735 P.2d 6 1161, 1164, 1166 (Ct. App. 1987). We conclude that the district court’s factual 7 determination that the stop was pretextual is controlling. Specifically, the district 8 court found the real reason that the stop occurred was for the purpose of investigating 9 other serious crimes unrelated to a traffic violation. Ochoa, 2009-NMCA-002, ¶ 16 10 (stating that a pretextual stop is simply where a stop is made to conduct an 11 investigation unrelated to enforcement of the traffic code). To the extent that the State 12 encourages this Court to reweigh, rejudge, or reevaluate the detective’s subjective 13 motivations for making the stop, or to conclude that an officer’s affiliation with a zero 14 tolerance police unit shields an officer’s pretexual motives from an inquiry and 15 examination under the totality of the circumstances, we decline to oblige. Id. ¶ 39 16 (holding that a police officer’s subjective intent is a question of fact); State v. Juan, 17 2010-NMSC-041, ¶ 33, ___ N.M. ___, ___ P.3d ___ (recognizing that appellate courts 18 “do not sit as a trier of fact” with respect to factual reviews, and “we will not reweigh 19 the evidence nor substitute our judgment for that of the fact finder” (internal quotation

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1 marks and citations omitted)). Nor are we persuaded that the zero tolerance policy by 2 the VCRU is sufficiently analogues to roadblocks, such that we would create a new 3 zero tolerance police unit exception to the constitutional protections recognized in 4 Ochoa. 5 III. CONCLUSION 6 We affirm the district court. 7 IT IS SO ORDERED.

8 _______________________________ 9 ROBERT E. ROBLES, Judge

10 WE CONCUR:

11 ___________________________ 12 JAMES J. WECHSLER, Judge

13 ___________________________ 14 TIMOTHY L. GARCIA, Judge