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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 35,826
5 DAVID GOMEZ-AGUILERA,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 William G. Shoobridge, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson 12 Albuquerque, NM
13 for Appellant
14 Fredlund & Bryan Attorneys at Law 15 Jon Charles Fredlund 16 Hobbs, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge. 1 {1} Plaintiff State of New Mexico appeals from the district court’s order
2 suppressing evidence, entered on August 9, 2016. In this Court’s notice of proposed
3 disposition, we proposed to summarily affirm. The State filed a memorandum in
4 opposition to proposed summary disposition (MIO), which we have duly considered.
5 Remaining unpersuaded, we affirm the district court’s suppression of the evidence.
6 {2} In its memorandum in opposition, the State continues to argue that the
7 expansion of the traffic stop did not violate the Fourth Amendment to the United
8 States Constitution [MIO 4-6] or Article II, § 10 of the New Mexico Constitution
9 [MIO 6-9]. The thrust of the State’s arguments has largely been addressed by our
10 notice of proposed disposition, so we refer the State to our analysis therein. [See CN
11 6-9] With regard to the State’s contention that Defendant may not have sufficiently
12 preserved his argument pursuant to the New Mexico Constitution [MIO 7], the district
13 court clearly addressed both constitutions [see CN 5-6] and, as acknowledged by the
14 State, Defendant’s reference to the New Mexico Constitution before the district court
15 was sufficient [see MIO 7]. See State v. Leyva, 2011-NMSC-009, ¶¶ 49-50, 149 N.M.
16 435, 250 P.3d 861 (reiterating that preservation requires that a ruling or decision by
17 the district court be fairly invoked and concluding that the defendant met the
18 requirement by pleading his right to be free from unreasonable search and seizure
19 under both constitutions).
2 1 {3} We additionally note that none of the facts asserted by the State in its
2 memorandum in opposition changes our analysis. [MIO 1-4] Indeed, the facts are
3 generally as asserted in our calendar notice [see CN 3-6], and the few additional
4 details—such as that the officers not only told Defendant that someone could get in
5 trouble if there were drugs in Defendant’s truck, but also told him that Officer Ray
6 was a K9 officer and that the dog would alert them to drugs; that they also had the dog
7 sniff the truck; and that Defendant only admitted to having drugs in his truck after the
8 dog’s behavior changed and the dog alerted the officers to the presence of the drug
9 [MIO 3]—do not change the fact that, prior to expanding the search, the officers had
10 no reasonable suspicion to do so because their expansion was based solely on one
11 officer’s observation of Defendant’s elongated pinky nail, longer than any of his other
12 fingernails, which he advised is “a common indicator of narcotic use.” [MIO 2] In
13 fact, the officers’ threatening Defendant with the K9 drug dog, having the dog sniff
14 the truck with no reasonable suspicion, and Defendant admitting the presence of drugs
15 only after the illegal search began, is more a cause for concern, than a factor that
16 would weigh in the State’s favor. See, e.g., State v. Monteleone, 2005-NMCA-129, ¶
17 17, 138 N.M. 544, 123 P.3d 777 (“To determine whether the evidence discovered by
18 the officer’s search should have been suppressed under the ‘fruit of the poisonous
19 tree’ doctrine, we determine whether the officers obtained [the d]efendant’s consent
3 1 by means sufficiently distinguishable to be purged of the primary taint.” (internal
2 quotation marks and citations omitted)).
3 {4} Moreover, even if there were no violation pursuant to the Fourth Amendment
4 of the United States Constitution based on the brief time that elapsed between when
5 Officer Ray informed Officer Glashaukas about the long pinky nail and when
6 Defendant admitted to having drugs in his truck, as argued by the State [MIO 3-6], the
7 New Mexico Supreme Court rejected “[t]he creation by the United States Supreme
8 Court of a bright-line rule for permissible questioning during traffic stops under the
9 Fourth Amendment [a]s incompatible with the approach . . . adopted in Duran.”
10 Leyva, 2011-NMSC-009, ¶ 17; see id. (indicating that “[t]he proper Fourth
11 Amendment inquiry, as stated by the Tenth Circuit, is whether an officer’s traffic stop
12 questions extended the time that a driver was detained, regardless of the questions’
13 content” (internal quotation marks and citation omitted)); see also State v. Duran,
14 2005-NMSC-034, ¶¶ 33-35, 138 N.M. 414, 120 P.3d 836 (discussing permissible
15 questioning by police officers during a traffic stop); overruled by Leyva,
16 2011-NMSC-009, ¶ 17. Thus, our Supreme Court has directed that we follow Duran
17 even pursuant to a Fourth Amendment analysis. We discuss the standard in Duran
18 further below.
19 {5} Additionally, contrary to the State’s assertions [MIO 6-9], there is certainly a
20 violation under the New Mexico Constitution, precluding the need to further evaluate
4 1 the Fourth Amendment. See State v. Olson, 2012-NMSC-035, ¶ 10, 285 P.3d 1066
2 (concluding that, “even though [the d]efendant ha[d] preserved both claims, we need
3 only to address the broader protections under Article II, Section 10 of the New Mexico
4 Constitution”). Indeed, New Mexico case law establishes that it is well settled that
5 “[r]easonable suspicion must be based on specific articulable facts and the rational
6 inferences that may be drawn from those facts.” State v. Flores, 1996-NMCA-059,
7 ¶ 7, 122 N.M. 84, 920 P.2d 1038. “[R]easonable suspicion is a commonsense,
8 nontechnical conception, which requires that officers articulate a reason, beyond a
9 mere hunch, for their belief that an individual has committed a criminal act.” State v.
10 Funderburg, 2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (alteration, internal
11 quotation marks, and citation omitted). The proper inquiry, under the New Mexico
12 Constitution, was articulated in Duran, 2005-NMSC-034, ¶ 35:
13 [A]ll questions asked by police officers during a traffic stop must be 14 analyzed to ensure they are reasonably related to the initial justification 15 for the stop or are supported by reasonable suspicion. . . . [T]his 16 determination must also include an examination of both the length of the 17 detention and the manner in which it is carried out.
18 Id. (emphasis added) (internal quotation marks and citation omitted). “An officer may
19 expand the scope of the search or seizure during the investigatory stop only where the
20 officer has reasonable and articulable suspicion that other criminal activity has been
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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 OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 35,826
5 DAVID GOMEZ-AGUILERA,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 William G. Shoobridge, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 M. Victoria Wilson 12 Albuquerque, NM
13 for Appellant
14 Fredlund & Bryan Attorneys at Law 15 Jon Charles Fredlund 16 Hobbs, NM
17 for Appellee
18 MEMORANDUM OPINION
19 VANZI, Judge. 1 {1} Plaintiff State of New Mexico appeals from the district court’s order
2 suppressing evidence, entered on August 9, 2016. In this Court’s notice of proposed
3 disposition, we proposed to summarily affirm. The State filed a memorandum in
4 opposition to proposed summary disposition (MIO), which we have duly considered.
5 Remaining unpersuaded, we affirm the district court’s suppression of the evidence.
6 {2} In its memorandum in opposition, the State continues to argue that the
7 expansion of the traffic stop did not violate the Fourth Amendment to the United
8 States Constitution [MIO 4-6] or Article II, § 10 of the New Mexico Constitution
9 [MIO 6-9]. The thrust of the State’s arguments has largely been addressed by our
10 notice of proposed disposition, so we refer the State to our analysis therein. [See CN
11 6-9] With regard to the State’s contention that Defendant may not have sufficiently
12 preserved his argument pursuant to the New Mexico Constitution [MIO 7], the district
13 court clearly addressed both constitutions [see CN 5-6] and, as acknowledged by the
14 State, Defendant’s reference to the New Mexico Constitution before the district court
15 was sufficient [see MIO 7]. See State v. Leyva, 2011-NMSC-009, ¶¶ 49-50, 149 N.M.
16 435, 250 P.3d 861 (reiterating that preservation requires that a ruling or decision by
17 the district court be fairly invoked and concluding that the defendant met the
18 requirement by pleading his right to be free from unreasonable search and seizure
19 under both constitutions).
2 1 {3} We additionally note that none of the facts asserted by the State in its
2 memorandum in opposition changes our analysis. [MIO 1-4] Indeed, the facts are
3 generally as asserted in our calendar notice [see CN 3-6], and the few additional
4 details—such as that the officers not only told Defendant that someone could get in
5 trouble if there were drugs in Defendant’s truck, but also told him that Officer Ray
6 was a K9 officer and that the dog would alert them to drugs; that they also had the dog
7 sniff the truck; and that Defendant only admitted to having drugs in his truck after the
8 dog’s behavior changed and the dog alerted the officers to the presence of the drug
9 [MIO 3]—do not change the fact that, prior to expanding the search, the officers had
10 no reasonable suspicion to do so because their expansion was based solely on one
11 officer’s observation of Defendant’s elongated pinky nail, longer than any of his other
12 fingernails, which he advised is “a common indicator of narcotic use.” [MIO 2] In
13 fact, the officers’ threatening Defendant with the K9 drug dog, having the dog sniff
14 the truck with no reasonable suspicion, and Defendant admitting the presence of drugs
15 only after the illegal search began, is more a cause for concern, than a factor that
16 would weigh in the State’s favor. See, e.g., State v. Monteleone, 2005-NMCA-129, ¶
17 17, 138 N.M. 544, 123 P.3d 777 (“To determine whether the evidence discovered by
18 the officer’s search should have been suppressed under the ‘fruit of the poisonous
19 tree’ doctrine, we determine whether the officers obtained [the d]efendant’s consent
3 1 by means sufficiently distinguishable to be purged of the primary taint.” (internal
2 quotation marks and citations omitted)).
3 {4} Moreover, even if there were no violation pursuant to the Fourth Amendment
4 of the United States Constitution based on the brief time that elapsed between when
5 Officer Ray informed Officer Glashaukas about the long pinky nail and when
6 Defendant admitted to having drugs in his truck, as argued by the State [MIO 3-6], the
7 New Mexico Supreme Court rejected “[t]he creation by the United States Supreme
8 Court of a bright-line rule for permissible questioning during traffic stops under the
9 Fourth Amendment [a]s incompatible with the approach . . . adopted in Duran.”
10 Leyva, 2011-NMSC-009, ¶ 17; see id. (indicating that “[t]he proper Fourth
11 Amendment inquiry, as stated by the Tenth Circuit, is whether an officer’s traffic stop
12 questions extended the time that a driver was detained, regardless of the questions’
13 content” (internal quotation marks and citation omitted)); see also State v. Duran,
14 2005-NMSC-034, ¶¶ 33-35, 138 N.M. 414, 120 P.3d 836 (discussing permissible
15 questioning by police officers during a traffic stop); overruled by Leyva,
16 2011-NMSC-009, ¶ 17. Thus, our Supreme Court has directed that we follow Duran
17 even pursuant to a Fourth Amendment analysis. We discuss the standard in Duran
18 further below.
19 {5} Additionally, contrary to the State’s assertions [MIO 6-9], there is certainly a
20 violation under the New Mexico Constitution, precluding the need to further evaluate
4 1 the Fourth Amendment. See State v. Olson, 2012-NMSC-035, ¶ 10, 285 P.3d 1066
2 (concluding that, “even though [the d]efendant ha[d] preserved both claims, we need
3 only to address the broader protections under Article II, Section 10 of the New Mexico
4 Constitution”). Indeed, New Mexico case law establishes that it is well settled that
5 “[r]easonable suspicion must be based on specific articulable facts and the rational
6 inferences that may be drawn from those facts.” State v. Flores, 1996-NMCA-059,
7 ¶ 7, 122 N.M. 84, 920 P.2d 1038. “[R]easonable suspicion is a commonsense,
8 nontechnical conception, which requires that officers articulate a reason, beyond a
9 mere hunch, for their belief that an individual has committed a criminal act.” State v.
10 Funderburg, 2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (alteration, internal
11 quotation marks, and citation omitted). The proper inquiry, under the New Mexico
12 Constitution, was articulated in Duran, 2005-NMSC-034, ¶ 35:
13 [A]ll questions asked by police officers during a traffic stop must be 14 analyzed to ensure they are reasonably related to the initial justification 15 for the stop or are supported by reasonable suspicion. . . . [T]his 16 determination must also include an examination of both the length of the 17 detention and the manner in which it is carried out.
18 Id. (emphasis added) (internal quotation marks and citation omitted). “An officer may
19 expand the scope of the search or seizure during the investigatory stop only where the
20 officer has reasonable and articulable suspicion that other criminal activity has been
21 or may be afoot.” Duran, 2005-NMSC-034, ¶ 23 (emphasis added) (internal quotation
22 marks and citation omitted), see Leyva, 2011-NMSC-009, ¶ 17 (explaining that the
5 1 Fourth Amendment no longer provides the same protections against expanding the
2 scope of the stop as New Mexico). In the present case, after Defendant satisfactorily
3 completed the field sobriety tests and was told to leave, there was no reasonable
4 suspicion that criminal activity had been or may have been afoot.
5 {6} To the extent the State argues that Defendant’s elongated fingernail is somehow
6 “conduct that is consistent with innocent behavior [that nevertheless] establish[es]
7 reasonable suspicion,” [MIO 7-8], we disagree. First, the State has pointed to no law
8 that equates the presence of a single feature in a defendant’s physical appearance with
9 conduct that gives way to reasonable suspicion that criminal activity has occurred or
10 is occurring, so we assume none exists. See State v. Casares, 2014-NMCA-024, ¶ 18,
11 318 P.3d 200 (stating that “[w]e will not consider an issue if no authority is cited in
12 support of the issue, because absent cited authority to support an argument, we assume
13 no such authority exists”). Second, we decline to hold that a single physical feature
14 of a defendant, even if it is one that is often associated with certain criminal activity,
15 gives rise to reasonable suspicion that such criminal activity is afoot, without anything
16 further. As our case law has made clear, reasonable suspicion must be based on
17 specific, articulable facts and may not be based on a mere hunch. See Flores, 1996-
18 NMCA-059, ¶ 7; Funderburg, 2008-NMSC-026, ¶ 15. The presence of an elongated
19 pinky nail, even combined with the absence of long fingernails on a defendant’s other
20 fingers, does not rise to that level.
6 1 {7} Accordingly, for the reasons stated in our notice of proposed disposition and
2 herein, we affirm the district court’s order suppressing the evidence.
3 {8} IT IS SO ORDERED.
4 __________________________________ 5 LINDA M. VANZI, Chief Judge
6 WE CONCUR:
7 _________________________________ 8 MICHAEL E. VIGIL, Judge
9 _________________________________ 10 TIMOTHY L. GARCIA, Judge