State v. Freeman

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 FOR THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-33977 5 CARL FREEMAN, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 George P. Eichwald, District Judge

9 Hector H. Balderas, Attorney General 10 Maha Khoury, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant 17 MEMORANDUM OPINION 18 FRENCH, Judge. 19 {1} Defendant Carl Freeman appeals his conviction for possession of a 20 controlled substance, contrary to NMSA 1978, Section 30-31-23 (2011). On

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1 appeal, Defendant argues his trial counsel was ineffective because he did not file a 2 motion to suppress the State’s evidence, and if such motion was filed, it would 3 have likely altered the trial result. Because Defendant has made a prima facie 4 showing of ineffective assistance of counsel by demonstrating both that his trial 5 counsel’s performance was deficient and this deficient performance caused 6 Defendant prejudice, we remand this case for an evidentiary hearing on whether 7 Defendant received effective assistance of counsel. 8 BACKGROUND 9 {2} Early in the morning of June 5, 2013, Defendant allegedly slashed the tires 10 of a vehicle in the parking lot of the Santa Ana Star Casino. A casino security 11 supervisor contacted the Santa Ana Police Department (SAPD) and Officer 12 Herman Sanchez was dispatched to assist. Officer Sanchez watched security 13 footage showing a man getting out of a car, slashing the tires of a van, and leaving 14 the area. By rewinding the video, casino surveillance was able to track the 15 individual who slashed the tires back to when he was in the casino using his 16 player’s card, and thereby identify him as Defendant. 17 {3} On June 10, 2013, casino security recognized Defendant playing machines 18 in the casino and brought him to the security office. Casino security called the 19 SAPD and Officer Sanchez was again dispatched to the casino. Upon arriving at 20 the security office, Officer Sanchez explained why he was there and noted

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1 Defendant was “extremely nervous.” Mindful that Defendant was suspected of 2 slashing tires and therefore may be armed with a knife, and concerned for his own 3 safety, Officer Sanchez asked Defendant to stand up, place his hands behind his 4 back, and placed Defendant in handcuffs. Officer Sanchez read Defendant his 5 Miranda rights and Defendant stated he understood them. As Officer Sanchez 6 began to perform a patdown for weapons, Defendant started to struggle. During 7 this struggle, both Officer Sanchez and casino security observed a small plastic 8 baggy containing a white crystalline substance fall out of Defendant’s pocket. In 9 response to the bag falling on the ground, Defendant stated that he “did not want to 10 go to jail for the meth.” Officer Sanchez then took Defendant into custody and 11 transported him to the police station. A forensic scientist later identified the 12 contents of the bag as methamphetamine. 13 {4} Defendant’s trial counsel did not move to suppress the bag of 14 methamphetamine before trial. Instead, after the State rested its case, Defendant’s 15 trial counsel told the court he sought “to suppress any evidence that was intending 16 to be admitted by the State.” Defendant’s trial counsel argued Defendant was 17 arrested without probable cause when he was handcuffed and read his Miranda 18 rights. The State responded that moving for suppression of evidence half-way 19 through trial was untimely under City of Santa Fe v. Marquez, 2012-NMSC-031, 20 ¶ 25, 285 P.3d 637. Defendant’s trial counsel responded, “I don’t know whether

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1 I’m arguing a [m]otion to [s]uppress or a directed verdict, because the State 2 discussed it.” Defendant’s motion was denied and he was convicted of possession 3 of a controlled substance. 4 DISCUSSION 5 {5} As the sole grounds for reversal, Defendant argues his trial counsel was 6 ineffective because the failure to file a timely motion to suppress constitutes 7 deficient performance and Defendant was prejudiced by this failure. The State 8 argues Defendant’s counsel engaged in a viable strategy by seeking to “confuse the 9 issues” because the facts and the law were not in Defendant’s favor, and Defendant 10 failed to establish a reasonable probability that, had a motion to suppress been 11 heard Defendant would have prevailed. 12 {6} “We review claims of ineffective assistance of counsel de novo.” State v. 13 Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. “To evaluate a 14 claim of ineffective assistance of counsel, we apply the two-prong test in 15 Strickland v. Washington, 466 U.S. 668 (1984)[.]” Dylan J., 2009-NMCA-027, ¶ 16 36. “That test places the burden on the defendant to show that his counsel’s 17 performance was deficient and that the deficient performance prejudiced his 18 defense.” Id. “We refer to the prongs of this test as the reasonableness prong and 19 the prejudice prong.” State v. Howl, 2016-NMCA-084, ¶ 10, 381 P.3d 684 (internal 20 quotation marks and citation omitted). “If facts necessary to a full determination

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1 are not part of the record, an ineffective assistance claim is more properly brought 2 through a habeas corpus petition, although an appellate court may remand a case 3 for an evidentiary hearing if the defendant makes a prima facie case of ineffective 4 assistance.” State v. Crocco, 2014-NMSC-016, ¶ 14, 327 P.3d 1068 (internal 5 quotation marks and citation omitted). “A prima facie case of ineffective assistance 6 of counsel is made on appeal where: (1) it appears from the record that counsel 7 acted unreasonably; (2) the appellate court cannot think of a plausible, rational 8 strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel are 9 prejudicial.” State v. Smith, 2016-NMSC-007, ¶ 62, 367 P.3d 420 (internal 10 quotation marks and citation omitted). 11 I. Reasonableness of Failing to Bring a Motion to Suppress 12 {7} “Where, as here, the ineffective assistance of counsel claim is premised on 13 counsel’s failure to move to suppress evidence, [the d]efendant must establish that 14 the facts support the motion to suppress and that a reasonably competent attorney 15 could not have decided that such a motion was unwarranted.” State v. Mosley, 16 2014-NMCA-094, ¶ 20, 335 P.3d 244 (internal quotation marks and citation 17 omitted). Defendant argues the facts support a motion to suppress because the bag 18 of methamphetamine fell out of his pocket after he was illegally arrested and a 19 reasonably competent attorney would have known to challenge whether the state 20 had probable cause for an arrest through a suppression motion. The State argues a

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1 competent attorney could have decided a motion to suppress was unwarranted in 2 this case and without development of the record, it is uncertain whether such a 3 motion would have succeeded. We first address whether the facts in this case 4 support, not guarantee the success of a motion to suppress. 5 {8} To “effectuate the constitutional right to be free from unreasonable search 6 and seizure[,]” the government is denied “the use of evidence obtained pursuant to 7 an unlawful search.” State v. Gutierrez, 1993-NMSC-062, ¶ 50, 116 N.M. 431, 863 8 P.2d 1052. This protection extends “to brief investigatory stops of persons or 9 vehicles that fall short of traditional arrest.” State v. Yazzie, 2016-NMSC-026, ¶ 18, 10 376 P.3d 858 (internal quotation marks and citation omitted). “Arrests and 11 investigatory stops are seizures invoking Fourth Amendment protections [under the 12 United States Constitution]; . . . [a]n arrest must be supported by probable cause 13 and an investigatory stop must be supported by reasonable suspicion.” State v. 14 Jason L., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856 (citation omitted). “A 15 person has been seized only if, in view of all of the circumstances surrounding the 16 incident, a reasonable person would have believed that he was not free to leave.” 17 State v. Garcia, 2009-NMSC-046, ¶ 37, 147 N.M. 134, 217 P.3d 1032 (alteration, 18 omission, internal quotation marks, and citation omitted). 19 {9} The facts show Officer Sanchez walked into the security office to find 20 Defendant nervously waiting for him. After Officer Sanchez explained why he was

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1 there, he asked Defendant to stand up, turn around, and proceeded to both handcuff 2 and read Defendant his Miranda rights. Upon being handcuffed by a police officer, 3 any reasonable person would believe they were no longer free to leave and 4 Defendant was unquestionably seized at this point. To be a legal seizure, Officer 5 Sanchez needed either reasonable suspicion to justify an investigatory stop or 6 probable cause to justify an arrest. See Jason L., 2000-NMSC-018, ¶ 14. 7 A. Reasonable Suspicion 8 {10} “The police may make an investigatory stop in circumstances that do not rise 9 to probable cause for an arrest if they have a reasonable suspicion that the law has 10 been or is being violated.” State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 11 920 P.2d 1038. “Reasonable suspicion must be based on specific articulable facts 12 and the rational inferences that may be drawn from those facts.” Id. The 13 identification of Defendant in surveillance footage and through the security 14 database as the individual who slashed the tires in the casino parking lot was 15 sufficient evidence to give Officer Sanchez reasonable suspicion Defendant had 16 committed a crime, specifically criminal damage to property, contrary to NMSA 17 1978, Section 30-15-1 (1963). This reasonable suspicion was sufficient to justify 18 an investigatory stop and an ensuing investigatory detention.

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1 B. De Facto Arrest 2 {11} Defendant argues he was arrested when he was handcuffed and read his 3 Miranda rights. The State argues the handcuffing and reading of Miranda rights 4 did not necessarily convert the investigatory detention into a de facto arrest. “There 5 is no bright-line test for evaluating when an investigatory detention becomes 6 invasive enough to become a de facto arrest[;]” however, “[w]hen an officer with 7 reasonable suspicion but without probable cause detains an individual in an 8 unreasonable manner, the detention may amount to a de facto arrest, rather than an 9 investigatory detention.” State v. Skippings, 2014-NMCA-117, ¶ 14, 338 P.3d 128 10 (internal quotation marks and citation omitted). When determining whether a 11 detention was unreasonable, “there are several factors that we consider, including 12 (1) the government’s justification for the detention[;] (2) the character of the 13 intrusion on the individual[;] (3) the diligence of the police in conducting the 14 investigation[;] and (4) the length of the detention.” Id. (internal quotation marks 15 and citation omitted). 16 {12} The State argues it was justified in detaining Defendant because of its 17 interest in preventing destruction of private property. While not of record, it is 18 unlikely the tire or tires had a value in excess of $1,000, and the State does not 19 argue so. Therefore, the crime Defendant was suspected of committing was a petty 20 misdemeanor. See § 30-15-1 (describing criminal damage to property worth less

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1 than $1,000 as a petty misdemeanor). As this Court explained in State v. Ortiz, the 2 state’s interest in preventing misdemeanors cannot be discounted, but is less than 3 the significant interest the state has in preventing the use and distribution of drugs 4 as described in our other cases discussing de facto arrests. 2017-NMCA-062, ¶¶ 5 17-19, 400 P.3d 312; see Skippings, 2014-NMCA-117, ¶ 17 (holding in part the 6 “government has a significant interest in preventing the use and distribution of 7 drugs like cocaine”). As such, it justifies less intrusion than instances where a 8 police officer’s justification for detention is based on the state’s interest to prevent 9 the use and distribution of drugs. Additionally, in Ortiz the defendant was 10 “suspected of committing a criminal trespass, a misdemeanor.” 2017-NMCA-062, 11 ¶ 16. As Defendant was only suspected of committing a petty misdemeanor in this 12 case, the State’s justification for the character of its intrusion was even weaker 13 here. 14 {13} We balance the government’s justification for the intrusion “against the 15 character of the intrusion on a person’s right to be free from police interference.” 16 State v. Robbs, 2006-NMCA-061, ¶ 21, 139 N.M. 569, 136 P.3d 570. In balancing 17 the character of the intrusion, we also look at the length of detention and diligence 18 of the investigation. See Skippings, 2014-NMCA-117, ¶ 14. The facts show that 19 after a brief explanation of Officer Sanchez’s presence, Defendant was handcuffed, 20 read his Miranda rights, and patted down for weapons. The State argues that

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1 handcuffing a defendant with a history of violence “does not transform the 2 detention into an arrest” and that this Court “avoid[s] unrealistic second-guessing 3 of police officers’ decisions.” Id. ¶¶ 20-21. While this is true, for the purposes of 4 this analysis we are only concerned with whether the facts supported the filing of a 5 motion to suppress. The facts in the record do not indicate whether Officer 6 Sanchez knew Defendant had any history of violence and the State does not point 7 us to any such evidence. The State also argues Officer Sanchez handcuffed 8 Defendant because Defendant seemed nervous and had previously used a knife to 9 slash the tires of a van. As to nervousness, our Supreme Court has expressly 10 “caution[ed] that while nervousness may be a relevant factor in the calculus, we do 11 not consider nervousness alone sufficient to justify a frisk for weapons.” State v. 12 Vandenberg, 2003-NMSC-030, ¶ 31, 134 N.M. 566, 81 P.3d 19. “[I]nstead it is the 13 articulation by the officer of specific reasons why the nervousness displayed by the 14 defendant caused the officer to reasonably believe that his or her safety would be 15 compromised.” Id. (internal quotation marks and citation omitted). However, the 16 facts here show Officer Sanchez only knew that five days earlier Defendant was 17 armed with a knife after leaving his vehicle and that the knife was employed to 18 slash the tires of another vehicle. Officer Sanchez offers no other articulation of his 19 concerns for his personal safety and the State points to no other evidence of record 20 that Officer Sanchez knew or suspected Defendant was regularly armed with a

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1 knife. While we are sensitive to the safety concerns of our officers who regularly 2 risk life and limb to ensure the safety of our community, knowledge that at some 3 point in time an individual illegally damaged property is not the same as 4 knowledge that an individual has a history of violence and regularly harms others. 5 The facts do not show how long Defendant would have been handcuffed absent his 6 decision to resist Officer Sanchez and we decline to speculate either way on this 7 factor. 8 {14} Officer Sanchez had reasonable suspicion to detain Defendant for 9 questioning regarding the criminal damage to property that occurred on June 5, 10 2013. However, given the facts of record in this case and balancing the justification 11 for the State’s intrusion against the character of the intrusion, we conclude there 12 was a sufficient factual basis for Defendant’s trial counsel to challenge whether the 13 investigatory detention was converted into a de facto arrest. We note that while 14 these facts support a motion to suppress, the success of said motion was not 15 guaranteed. 16 {15} This conclusion is particularly compelling when considered from 17 Defendant’s point of view. Defendant was interrupted by casino security while 18 playing machines and escorted to a security office. Defendant waited with casino 19 security until Officer Sanchez showed up to question him about a tire slashing 20 from five days earlier. After Officer Sanchez explained he was there to investigate

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1 the tire slashing, he asked Defendant to stand up, turn around, and placed him in 2 handcuffs. Defendant was then read his Miranda rights. Officer Sanchez did not 3 probe for more information, verify identity, or take any other investigatory action. 4 Instead, Officer Sanchez proceeded almost directly to handcuffing Defendant and 5 reading him his Miranda rights. Would a reasonable citizen reasonably think they 6 were not under arrest at this point? Moreover, given these facts, would a 7 reasonably competent attorney forego a motion to suppress? We think not. 8 {16} Despite not having the benefit of an evidentiary hearing on a motion to 9 suppress, the record supports Defendant’s contention that his trial counsel acted 10 unreasonably in failing to bring a motion to suppress. This conclusion is bolstered 11 by the fact Defendant’s trial counsel attempted to belatedly pursue an effort to 12 suppress the evidence, by oral motion, after the State rested its case. Clearly, 13 Defendant’s trial counsel thought the motion had merit, otherwise he would not 14 have brought the motion at all. The State argues Defendant’s trial counsel was 15 attempting to “confuse the issues” and he could have reasonably determined that a 16 motion to suppress was unwarranted prior to trial. However, the gravamen of our 17 test focuses on what a reasonably competent attorney would have done, not what 18 the allegedly ineffective counsel decided to do. We can think of no plausible, 19 rational strategy or tactic for a reasonably competent attorney to fail to file a 20 potentially meritorious motion to suppress.

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1 {17} Because the facts support the filing of a motion to suppress and a reasonably 2 competent attorney could not have decided such a motion was unwarranted, we 3 conclude Defendant has shown his trial counsel’s performance was deficient 4 because he failed to file a motion to suppress. 5 II. Prejudice of Failure to Bring a Motion to Suppress 6 {18} To make a prima facie showing of ineffective assistance of counsel, 7 Defendant is still required to show the deficient performance caused prejudice. See 8 State v. Smith, 2016-NMSC-007, ¶ 62, 367 P.3d 420. In this case, Defendant must 9 show that absent counsel’s deficient performance, there is a reasonable probability 10 the “result of the proceeding would have been different. A reasonable probability is 11 a probability sufficient to undermine confidence in the outcome.” Lytle v. Jordan, 12 2001-NMSC-016, ¶ 27, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and 13 citation omitted). “Where a meritorious motion to suppress key evidence could 14 weaken the prosecution’s case against the defendant, counsel’s failure to make 15 such a motion may prejudicially affect the defendant.” Mosley, 2014-NMCA-094, 16 ¶ 30. 17 {19} Defendant was convicted of possession of a controlled substance. This 18 required the State to prove, in part, that Defendant had the bag of 19 methamphetamine in his possession. See NMSA 1978, 30-31-23(A) (2011) (“It is 20 unlawful for a person intentionally to possess a controlled substance[.]”). A

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1 successful motion to suppress would have excluded the bag of methamphetamine 2 and the testimony of the expert identifying the contents of the clear plastic bag as 3 methamphetamine. It would have then been difficult for the State to prove beyond 4 a reasonable doubt that Defendant possessed methamphetamine without discussing 5 the bag of methamphetamine itself. The trial testimony presented by the State 6 focused on the contents of and circumstances through which the State found the 7 bag of methamphetamine in the first place. The evidence of record shows that 8 before the bag fell from his pocket, Defendant was only suspected of having 9 slashed tires. 10 {20} If the bag of methamphetamine was excluded from trial, nearly all of the 11 State’s case for possession of a controlled substance would have vanished. Without 12 this key evidence, our confidence that the results of the trial, if it even took place, 13 would have been the same, is undermined. See Lytle, 2001-NMSC-016, ¶ 27. For 14 this reason, we conclude Defendant was prejudiced because of his trial counsel’s 15 failure to file a motion to suppress. 16 CONCLUSION 17 {21} Defendant has made a prima facie case for ineffective assistance of counsel 18 and we accordingly remand for an evidentiary hearing on whether he received 19 effective assistance of counsel. 20 {22} IT IS SO ORDERED.

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1 ______________________________ 2 STEPHEN G. FRENCH, Judge

3 I CONCUR:

4 _________________________ 5 JULIE J. VARGAS, Judge

6 J. MILES HANISEE, Judge (dissenting).

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1 HANISEE, Judge (dissenting). 2 {23} I respectfully dissent, and take this opportunity to reiterate my view 3 regarding ineffective assistance of counsel claims on direct appeal. See State v. 4 Castro, 2016-NMCA-085, ¶¶ 58-59, 381 P.3d 694 (Hanisee, J., dissenting) (stating 5 that “[t]he majority’s analysis also depends on [unsupported] assumption[s]” 6 regarding both the legal viability of an unfiled motion and unknown defense trial 7 strategy and noting our Supreme Court’s “preference that ineffective assistance of 8 counsel claims be presented and resolved in collateral proceedings”), rev’d by 9 2017-NMSC-027, ¶ 36, 402 P.3d 688 (holding that “[b]ecause there are 10 insufficient facts in the record, [the d]efendant’s argument . . . is more properly 11 brought through a habeas corpus petition” and that “an appellate court may remand 12 a case for an evidentiary hearing if the defendant makes a prima facie case” 13 (internal quotation marks and citation omitted)). 14 {24} More and more frequently, this Court is invited to conclude—on records 15 largely devoid of salient facts regarding a given defense attorney’s pretrial or trial 16 representation—that a prima facie showing of ineffective assistance of counsel has 17 been made, and that immediate remand is needed to flesh out unknown facts that 18 might or might not lend themselves to the conclusion that trial counsel was 19 constitutionally deficient. Because of the availability of habeas proceedings 20 designed to examine this exact question, I consider the requisite prima facie

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1 showing to be one that should be tightly enforced. Indeed, when asked to 2 prematurely resolve the question of attorney effectiveness on direct appeal, we 3 frequently—as here—can do little more than speculate regarding a variety of 4 things that cannot be known from the trial record, including: (1) whether missing 5 facts would render a given motion an attorney did not file more or less likely to 6 have been successful had the motion been filed; (2) whether the defense strategy 7 employed during trial proceedings was reasonably different from that which a 8 defendant later found to be guilty wishes would instead have been pursued; (3) 9 whether the State could have established facts repudiating the unraised contention 10 or presented a winning legal argument in opposition to a given unfiled motion; and 11 (4) whether the motion was not filed simply because a constitutionally effective 12 attorney would have acted reasonably to predict its failure on the merits. While 13 hardly a complete missing-items list from a given record on appeal, the foregoing 14 unknowns illustrate why the direct appellate process does not lend itself to second- 15 guessing attorney performance. Nor do I believe that busy district courts should be 16 compelled—other than in rare circumstances and without reliance on factual 17 assumptions—to undertake such innately ancillary proceedings before a conviction 18 has even been affirmed. See State v. Paredez, 2004-NMSC-036, ¶ 22, 136 N.M. 19 533, 101 P.3d 799 (“[W]e have held when the record does not contain all the facts 20 necessary for a full determination of the issue, an ineffective assistance of counsel

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1 claim is more properly brought through a habeas corpus petition[.]” (internal 2 quotation marks and citation omitted)). But see State v. Miera, 2018-NMCA-020, ¶ 3 40, 413 P.3d 491 (“This is not a case where a defendant makes a vague assertion 4 that his attorney [was ineffective; rather, the d]efendant placed evidence in the 5 record that defense counsel failed to pursue [evidence of an] alternate perpetrator 6 [and evidence that] called into question [the alleged victim’s] credibility.”). 7 {25} While we know little from the trial record about many of the considerations 8 pertinent to the question of whether Defendant’s attorney was effective or 9 ineffective in not filing a motion to suppress evidence, that which we know 10 suggests that (1) Defendant was recognized by security personnel as the individual 11 that left the casino five days earlier armed with the knife he then used to slash the 12 tires of another casino patron’s vehicle; (2) Defendant’s appearance and identity 13 had been ascertained based upon surveillance video and his having used his 14 player’s card prior to that crime; (3) when spotted back at the same casino five 15 days later, Defendant was escorted from the casino floor to a security office, where 16 a police officer arrived, handcuffed Defendant, provided Miranda warnings, and 17 subjected Defendant to a patdown search; and (4) during the patdown search, 18 Defendant began to struggle with officers and evidence of a separate narcotic 19 crime fell from his pocket.

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1 {26} With little more than these facts attendant to the circumstances in which 2 Defendant was detained, I cannot agree that a prima facie case has been established 3 that Defendant’s attorney was constitutionally ineffective, and that the identified 4 deficiency was prejudicial insofar as—the standard employed by the majority—the 5 “result of the proceeding would have been different.” Majority Op. ¶ 18. Regarding 6 these facts, the majority first holds that “reasonable suspicion [existed] to detain 7 Defendant for questioning regarding the criminal damage to property that 8 occurred.” Majority Op. ¶ 14. If correct, the legality of Defendant’s initial 9 detention could not have been the basis of a successful motion to suppress. But the 10 majority next turns around to conclude, despite a seemingly brief period of time 11 between the detention and the drug evidence falling from Defendant’s pocket, that 12 what it maintains was a justified initial detention might well have morphed into an 13 impermissible de facto arrest or otherwise became unconstitutional. 14 {27} While I express no opinion as to the probable outcome of the unfiled motion, 15 the majority’s reliance upon Ortiz, 2017-NMCA-062, is misplaced. In Ortiz, this 16 Court reiterated that courts are to balance the competing interests of governmental 17 justification and the nature of the intrusion, including its duration and 18 consideration of the nature of the crime on which it is premised. While “[n]o single 19 factor is dispositive[,]” id. ¶ 13, the majority misses the importance of that which 20 distinguishes Ortiz from this case: the belief on the part of the officers that

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1 Defendant had recently possessed a dangerous weapon in the casino, the seemingly 2 quick discovery of an additional narcotic crime, and an investigatory detention 3 that—absent the sort of developed record for which habeas proceedings are well 4 suited—appears less invasive than that analyzed in Ortiz. Quite dissimilarly, in 5 Ortiz the defendant was detained pursuant to a vehicle stop in a casino parking lot, 6 handcuffed and placed in a patrol car despite the officers having no information 7 regarding the defendant’s possession of weapons on the casino premises that might 8 make them fear for their safety, and further detained despite no narcotic evidence 9 being discovered on his person during a patdown search. Id. ¶¶ 5, 22-23 (“The key 10 in this case is the complete absence of any evidence whatsoever suggesting there 11 were mitigating circumstances that may have justified [the casino officers’] 12 intrusive actions[,]” and noting that “drug-related offenses . . . elevate[] the 13 government’s interest to significant, thereby justifying a higher level of 14 intrusiveness” (internal quotation marks omitted)). Considering the many factual 15 differences between this case and Ortiz, my view is that Defendant has failed to 16 establish that he was prejudiced by his attorney’s inaction, and has therefore failed 17 to present a prima facie case of ineffective assistance of counsel. 18 {28} As in Castro, when our Supreme Court stopped this Court’s mistaken 19 remand in a circumstance that entailed similarly hypothetical possibilities 20 regarding attorney performance, my view remains that in the absence of an

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1 existing, factually developed record upon which a prima facie determination of 2 prejudice can be established and not hypothesized, remand on direct appeal is 3 improper. The majority instead creates unnecessary responsibilities in our already 4 over-tasked district courts, encourages the proliferation of this sort of theoretical 5 point of direct appeal, and prematurely bypasses proceedings designed to address 6 this very sort of constitutional claim.

7 ______________________________ 8 J. MILES HANISEE, Judge