State v. Figueroa

2010 NMCA 48, 2010 NMCA 048, 242 P.3d 378, 148 N.M. 811
CourtNew Mexico Court of Appeals
DecidedMarch 31, 2010
Docket28,798; 32,360
StatusPublished
Cited by20 cases

This text of 2010 NMCA 48 (State v. Figueroa) 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
State v. Figueroa, 2010 NMCA 48, 2010 NMCA 048, 242 P.3d 378, 148 N.M. 811 (N.M. Ct. App. 2010).

Opinion

OPINION

GARCIA, Judge.

{1} Defendant entered a conditional plea to possession of cocaine, reserving the right to appeal the denial of his motion to suppress. We conclude that the drugs were obtained as a result of an illegal search and reverse. Once the officer dispelled his suspicions and told Defendant he was free to go, the officer was not justified in asking further questions about drugs and weapons or in placing Defendant in a secure, spread-eagle position and patting him down. We also conclude that any consent given by Defendant was tainted by the prior illegality. Consequently, the drugs removed from Defendant’s pocket should be suppressed.

BACKGROUND

{2} Officer Mullins was the only witness at the hearing on the motion to suppress. He testified that on the date in question, at 6:59 p.m., a woman called stating that her brother had been harassing her. The police investigated but made no arrest. Later that evening, at 8:40 p.m., the police received a second call that the woman’s brother had been harassing her, this time throwing her cell phone on the roof. Officer Mullins testified that he and his partner decided to park about fifty to seventy-five yards away from the home to observe in case there were any additional problems. While they were observing, the sister came outside and told them her brother again had been calling her and harassing her.

{3} During the observation, a pick-up truck drove up and stopped in front of the house. It was facing the wrong way on the street. The driver remained in the truck with the engine running, while Defendant, the passenger, went inside the house. Officer Mullins decided to approach the track to make sure they were not part of the “domestic problem,” though he had seen Defendant at the house when responding to the first call and knew that the woman had been reporting problems with her brother, not with Defendant. Officer Mullins added that, based on his training and experience, having a driver pull up and leave the engine running, while a passenger went inside, looked like a drug transaction.

{4} Officer Mullins talked to the driver, who said they had come to visit a friend. After one to two minutes, Defendant came out of the house. Officer Mullins approached him and asked why they were there. Defendant said he was checking on his friend. Officer Mullins asked for their identification, ran checks on the men, and found nothing. In his police report, Officer Mullins wrote that “[b]oth subjects were identified and after finding that there was no cause to keep them any further, they were given their information back and advised they could leave.”

{5} Officer Mullins testified that he gave Defendant his identification back because there was “no need to hold onto them any longer,” and “then I asked him if he had anything illegal on him.” At this point, Officer Mullins also asked him if he had any weapons. Defendant said no. Officer Mullins then asked if he could pat Defendant down; Defendant agreed. Officer Mullins admitted that Defendant was free to leave, but that he wanted to do a weapons check. He placed Defendant in a secure position, with both hands behind his back, fingers interlaced, and his feet spread apart. He cheeked Defendant’s pocket and asked if he could remove what he felt. Defendant agreed. Officer Mullins removed cigarettes, change, and a bindle of drugs.

{6} Defendant moved to suppress the evidence. He argued that (1) there was no reasonable suspicion to detain him; (2) the officer illegally expanded the scope of the stop; (3) once the stop was expanded, the officer was not justified in placing Defendant in a secure position and conducting a pat down search; and (4) any consent given was tainted. He further argued that the stop was not a consensual encounter because he was not free to leave. He argued that the check for weapons was unjustified and he was illegally searched. The State argued that reasonable suspicion existed to question Defendant regarding his presence at the house and possible drug activity. It also argued that, even if there was no reasonable suspicion, once the officer told Defendant he was free to leave, the encounter became consensual. The State asserted that Defendant consented to the search.

{7} The district court denied Defendant’s motion to suppress. The court found: “Officer Mullins then asked [Defendant if he could ask him a few more questions. Defendant agreed and consented to the pat-down and to the removal of the object in [Djefendant’s pocket.” Implicit in the court’s ruling is the conclusion that after being told he was free to go, the encounter became consensual, and, therefore, Defendant’s consent was valid.

DISCUSSION

I. Preservation

{8} Defendant argues that his consent was “an extension of the continuous illegal detention.” The State contends that this issue was not preserved below. In the State’s view, only one issue was preserved, and it was very narrow: whether Defendant’s motion to suppress should have been granted because there was no reasonable suspicion to stop him at the outset. We disagree.

{9} At the suppression hearing, the State argued that the encounter became consensual and that Defendant’s consent was therefore validly given. In response, Defendant stated, “As far as consent breaking the chain, at no time was [Defendant] free to leave. In fact, Officer Mullins ... expanded the stop after he gave him the ID back. Just by stating that he was free to leave does not make it so, especially when Officer Mullins plaee[d] him in a secure position____ He clearly was not free to leave.”

{10} As in many search and seizure cases, the proper analysis consists of multiple steps. In this case, the facts require consideration of whether there was reasonable suspicion to justify the detention, whether the encounter became consensual after the officer told Defendant he was free to go, whether the officer’s expansion of the stop was legal, and whether Defendant’s consent was valid. The issues concerning the legality of the questions immediately after Defendant was told he was free to go and whether the comment that he was free to go transformed the seizure into a consensual encounter are squarely presented by the facts and are logically linked.

{11} Defendant specifically argued below that the officer illegally “expanded the stop” and that Defendant was not free to go no matter what the officer said. These contentions focus on the expansion of the investigation and can be reasonably viewed to include the legality of the questions about weapons and drugs. From Defendant’s argument, one can legitimately conclude that his attack on this investigation included an attack on each link in the analysis, even if he did not primarily focus on the expansion during the suppression hearing. In addition, Defendant specifically argued that he remained illegally seized despite the comment that he was free to go and that the encounter never became consensual.

{12} Defendant’s challenge to every aspect of the investigation, from beginning to end, was sufficient to preserve the argument that the continued questioning was illegal and did not become consensual at any point. See Garcia ex rel. Garcia v. La Farge, 119 N.M. 532, 540,

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State v. Flores
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State v. Mosley
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State v. Paananen
2014 NMCA 041 (New Mexico Court of Appeals, 2014)
State v. Davis
2014 NMCA 042 (New Mexico Court of Appeals, 2014)
State v. VanWalton
New Mexico Court of Appeals, 2012
State v. Portillo
2011 NMCA 079 (New Mexico Court of Appeals, 2011)
State v. Esparza
New Mexico Court of Appeals, 2011
State v. Figueroa
242 P.3d 378 (New Mexico Court of Appeals, 2010)

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Bluebook (online)
2010 NMCA 48, 2010 NMCA 048, 242 P.3d 378, 148 N.M. 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-figueroa-nmctapp-2010.