State v. Granados

Opinion

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Filing Date: February 6, 2023 3 STATE OF NEW MEXICO, 4 Plaintiff-Respondent, 5 v. NO. S-1-SC-39004 6 FRANCISCO JAVIER GRANADOS, 7 Defendant-Petitioner.

8 ORIGINAL PROCEEDING ON CERTIORARI 9 Steven Blankinship, District Judge

10 Bennett J. Bauer, Chief Public Defender 11 Kimberly M. Chavez Cook, Assistant Appellate Defender 12 Santa Fe, NM

13 for Petitioner

14 Hector H. Balderas, Attorney General 15 Charles J. Gutierrez, Assistant Attorney General 16 Santa Fe, NM

17 for Respondent 18 DECISION 19 VARGAS, Justice. 20 {1} Four narcotics agents working with the Otero County Narcotics Enforcement 21 Unit (NEU) attempted to stop Defendant Francisco Javier Granados based on a

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1 confidential informant tip and the agents’ brief surveillance of Defendant interacting 2 with a woman at an Alamogordo gas station. When confronted by the agents, 3 Defendant fled. During the ensuing vehicle pursuit, one of the agents saw Defendant 4 toss an object out of his left front window. Shortly after, Defendant stopped and 5 spoke with the agents. Another agent backtracked and recovered the object 6 Defendant had discarded. That object turned out to be a plastic bag containing 7 approximately fifty grams of cocaine. 8 {2} Defendant made two motions to suppress, arguing that the NEU agents did 9 not have a legitimate basis on which to stop him. The district court denied the 10 motions because it concluded that Defendant was not seized and that the agents 11 possessed a reasonable suspicion that Defendant was engaging or about to engage in 12 illegal conduct. Defendant was convicted of trafficking a controlled substance 13 (possession with intent to distribute), contrary to NMSA 1978, Section 30-31- 14 20(A)(3) (2006) and tampering with evidence, contrary to NMSA 1978 Section 30- 15 22-5 (2003). The Court of Appeals affirmed the district court’s order denying 16 suppression in a split opinion, concluding only that the agents possessed reasonable 17 suspicion to stop Defendant when they first confronted him. State v. Granados, A- 18 1-CA-37417, mem. op. ¶¶ 6-14 (N.M. Ct. App. July 26, 2021) (nonprecedential).

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1 {3} We granted Defendant’s petition for writ of certiorari and reverse the Court 2 of Appeals. We hold that Defendant’s seizure was unreasonable under Article II, 3 Section 10 of the New Mexico Constitution. Because the issues have been previously 4 decided and we reverse based on the absence of substantial evidence, we dispose of 5 this case by nonprecedential memorandum opinion. Rule 12-405(B)(1), (2) NMRA. 6 I. BACKGROUND 7 {4} The relevant facts are largely undisputed. On April 29, 2013, NEU Agent 8 Rodney Scharmack received a phone call from a confidential informant. This 9 informant was a “documented reliable informant,” meaning that the informant was 10 known to the NEU and had previously assisted in narcotics investigations. The 11 informant said that Defendant was in possession of and distributing a large amount 12 of cocaine. The informant was not able to provide a physical address for Defendant, 13 but described two of Defendant’s vehicles: a black pickup truck and a black Chrysler 14 300 sedan. 15 {5} Agent Scharmack was already familiar with Defendant from past narcotics 16 investigations. NEU agents had also received incriminating information about 17 Defendant “here and there” in the weeks prior to this particular informant tip, and 18 Defendant was currently “on [NEU’s] radar” for narcotics trafficking offenses.

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1 {6} On May 2, 2013, Agent Scharmack, NEU Commander Neil LaSalle, Border 2 Patrol Agent Timothy Huffman, and NEU Agent Obed Marte were patrolling 3 Alamogordo in an unmarked surveillance vehicle. The four agents spotted 4 Defendant sitting alone in his black pickup truck in the parking lot of a local grocery 5 store. The agents decided to follow Defendant and trailed him to a Giant gas station 6 on the outskirts of Alamogordo. 7 {7} As the agents drove by the gas station, they observed Defendant reversing his 8 truck into a parking spot in an open gravel lot next to the convenience store. The 9 agents then saw a smaller white pickup pull up near Defendant’s truck. The agents 10 recognized the white pickup and believed that it belonged to a previous target of 11 their narcotics trafficking investigations, Anthony Montoya. 12 {8} The agents saw a woman exit the white pickup and approach Defendant’s 13 open left front window. Although the agents described the interaction between the 14 woman and Defendant as “almost like an exchange,” the agents did not actually see 15 Defendant and the woman exchange anything. Nevertheless, each of the agents 16 asserted that, in light of their “training and experience,” they believed that Defendant 17 was then engaging or about to engage in a narcotics transaction with the woman. 18 However, the agents did not identify which facts about this interaction led them to 19 suspect that the two individuals were exchanging narcotics, or explain how their

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1 training and experience infused special meaning into the interaction that they 2 observed. For example, Agent Huffman testified that his suspicions were aroused 3 because of the tip and his knowledge of Defendant and Anthony Montoya through 4 past investigations. 5 {9} The agents decided to “make contact” with Defendant at that point. Having 6 already driven about half a block away, the agents made a U-turn and proceeded 7 back to the gas station. The agents planned to stop their surveillance vehicle in front 8 of Defendant’s truck, but their vehicle overshot its intended destination and skidded 9 to a stop just past the truck. The agents exited their vehicle, approached Defendant’s 10 open window, shouted “Sherriff’s Office” or “Otero County,” and ordered 11 Defendant to exit his vehicle. The agents were dressed in civilian clothes but were 12 displaying official badges in either their hands or hanging from lanyards around their 13 necks. At least one of the agents had his hand on his holstered weapon. 14 {10} Defendant pointed his finger at the agents with a surprised look on his face. 15 He then grabbed his steering wheel and sped out of the lot. Agent Scharmack, 16 Commander LaSalle, and Agent Huffman returned to their vehicle and followed 17 Defendant. Agent Marte stayed behind and briefly spoke with the woman from the 18 white pickup. The woman was Defendant’s mother, but the agents only later learned 19 of her identity and relationship to Defendant.

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1 {11} The agents followed Defendant through a nearby residential area. At one point 2 during the pursuit, Agent Huffman saw Defendant toss a white, softball-sized object 3 out of his front window. After taking a few more turns, Defendant stopped his truck 4 in the middle of the road. The agents pulled up directly behind Defendant’s truck. 5 Defendant exited his vehicle and began asking the agents questions. During this 6 conversation, Defendant specifically addressed Commander LaSalle as “Neil,” 7 using the Commander’s given name. 8 {12} While the other agents spoke with Defendant, Commander LaSalle 9 backtracked into the nearby residential area and recovered the object that Defendant 10 had discarded. That object was a plastic bag containing 49.97 grams (1.76 ounces) 11 of cocaine. 12 {13} In response to the State’s charges, Defendant made motions to suppress both 13 prior to and at trial, arguing that the narcotics evidence was obtained in violation of 14 his rights under the Fourth Amendment to the United States Constitution and Article 15 II, Section 10 of the New Mexico Constitution. The State argued that the motions 16 should be denied because Defendant was not seized at the gas station. Alternatively, 17 the State argued that the agents had reasonable suspicion to stop Defendant when 18 they first approached him at the gas station. The district court denied suppression, 19 agreeing with the State that Defendant was not seized at the gas station.

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1 {14} On direct appeal from his convictions for trafficking and tampering with 2 evidence, a majority of the Court of Appeals affirmed the district court. Granados, 3 A-1-CA-37417, mem. op. ¶¶ 6-14. Unlike the district court, however, the Court of 4 Appeals did not consider when Defendant was effectively seized. Id. ¶ 7 n.2. The 5 Court of Appeals instead explained that the totality of the circumstances supported 6 a reasonable suspicion to stop Defendant at the time the agents decided to confront 7 Defendant at the gas station. Id. ¶ 7. According to the majority, those circumstances 8 included: “(1) the agents’ knowledge that Defendant was a known drug trafficker; 9 (2) a tip from a reliable [confidential informant]; (3) the agents’ verification of 10 specific aspects of the tip’s information; and (4) the agents’ belief, based on 11 substantial training and experience, that Defendant was engaged in criminal 12 activity.” Id. ¶ 7. Judge Attrep filed a dissenting opinion, arguing that Defendant’s 13 seizure was not shown to be objectively reasonable for reasons that we find 14 persuasive here. Id. ¶¶ 30-39 (Attrep, J., dissenting). 15 {15} We granted Defendant’s petition for writ of certiorari and have jurisdiction. 16 Rule 12-502 NMRA. In addition to challenging the decision on his motion to 17 suppress, Defendant raises three other issues for our review. As we hold that 18 Defendant’s seizure was unreasonable under Article II, Section 10, we discuss only 19 the suppression issue and do not reach the merits of Defendant’s remaining

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1 challenges. We also do not address Defendant’s arguments regarding the asserted 2 staleness of the confidential informant tip because we conclude that the tip was not 3 shown to be reliable. 4 II. STANDARD OF REVIEW 5 {16} Our review of a motion to suppress evidence presents mixed questions of law 6 and fact. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57. With 7 respect to questions of fact, we defer to the findings of the district court if supported 8 by substantial evidence. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 9 P.3d 964. Further, “[a]n appellate court must indulge in all reasonable inferences in 10 support of the district court’s decision and disregard all inferences or evidence to the 11 contrary.” State v. Martinez, 2018-NMSC-007, ¶ 15, 410 P.3d 186 (text only)1 12 (citation omitted). 13 {17} We review questions of law de novo. Urioste, 2002-NMSC-023, ¶ 6. “This 14 Court sits as final arbiter of what the law is and how it applies to any given set of 15 facts.” State v. Martinez, 2020-NMSC-005, ¶ 16, 457 P.3d 254. As relevant to the 16 current appeal, these questions of law include whether, in light of the facts presented,

The “text only” parenthetical as used in this decision indicates the

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omission—for enhanced readability—of all of the following nontextual marks that may be present in the source text: brackets, ellipses, and internal quotation marks.

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1 a defendant was subjected to “such a level of accosting and restraint” so as to be 2 seized, State v. Jason L., 2000-NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856, or 3 whether a seizure was objectively reasonable. State v. Rowell, 2008-NMSC-041, ¶ 4 8, 144 N.M. 371, 188 P.3d 95. “Warrantless seizures are presumed to be 5 unreasonable and the State bears the burden of proving reasonableness.” Id. ¶ 10 6 (internal quotation marks and citation omitted). 7 III. DISCUSSION 8 A. Reasonable Suspicion 9 {18} The Fourth Amendment to the United States Constitution and Article II, 10 Section 10 of the New Mexico Constitution “provide overlapping protections against 11 unreasonable searches and seizures, including safeguards for brief investigatory 12 stops of persons or vehicles that fall short of traditional arrest.” Martinez, 2018- 13 NMSC-007, ¶ 10 (text only) (citations omitted). Although Defendant previously 14 asserted that his seizure violated both the federal and state constitutions, in his 15 briefing to this Court, Defendant argues only that his seizure violated Article II, 16 Section 10. We therefore consider the issues presented only under state 17 constitutional law. 18 {19} Like the federal constitution, the New Mexico constitution permits a law 19 enforcement officer with “a reasonable suspicion that the law is being or has been

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1 broken to conduct a temporary, investigatory . . . stop.” State v. Yazzie, 2016-NMSC- 2 026, ¶ 38, 376 P.3d 858. “Police officers possess reasonable suspicion when they are 3 aware of specific articulable facts that, judged objectively, would lead a reasonable 4 person to believe criminal activity occurred or was occurring.” Urioste, 2002- 5 NMSC-023, ¶ 6 (internal quotation marks and citation omitted). In evaluating 6 whether an officer possessed a reasonable suspicion of illegal conduct, “the totality 7 of the circumstances—the whole picture—must be taken into account.” Martinez, 8 2020-NMSC-005, ¶ 19 (quoting United States v. Cortez, 449 U.S. 411 (1981)). An 9 officer’s “[u]nsupported intuition and inarticulate hunches are not sufficient.” State 10 v. Cobbs, 1985-NMCA-105, ¶ 12, 103 N.M. 623, 711 P.2d 900. 11 {20} In the present appeal, the parties dispute whether the NEU agents had 12 reasonable suspicion to stop Defendant at the gas station. The parties specifically 13 debate whether the confidential informant’s tip and the agent’s surveillance provided 14 sufficient grounds for the stop. As the parties center their debate on these two facts, 15 we specifically discuss the standards relevant to each; but in keeping with the totality 16 of the circumstances approach to reasonable suspicion analysis, see Martinez, 2020- 17 NMSC-005, ¶ 19 (requiring court to consider the totality of the circumstances when 18 evaluating reasonable suspicion), we consider all facts and reasonable inferences 19 available to the agents at the time they confronted Defendant. See Yazzie, 2016-

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1 NMSC-026, ¶ 19 (explaining that courts must consider whether the officer’s action 2 was justified at its inception). 3 1. The confidential informant’s tip 4 {21} Defendant argues that the confidential informant’s tip was unreliable. In State 5 v. Cordova, 1989-NMSC-083, 109 N.M. 211, 784 P.2d 30, this Court adopted the 6 two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United 7 States, 393 U.S. 410 (1969) (“Aguilar-Spinelli test”), to evaluate whether an officer 8 could reasonably rely on information obtained from an unnamed informant under 9 Article II, Section 10. Cordova, 1989-NMSC-083, ¶ 17. In adopting the Aguilar- 10 Spinelli test, we declined to follow the totality of the circumstances approach 11 adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238- 12 39 (1983), to evaluate tips from confidential informants under the Fourth 13 Amendment. Cordova, 1989-NMSC-083, ¶ 17. 14 {22} Cordova and Aguilar-Spinelli require officers who rely “wholly or in part on 15 hearsay provided by an unnamed informant” in justifying a seizure to identify (1) 16 “some of the underlying circumstances from which the informant concluded that the 17 facts were as he claimed they were,” and (2) “some of the underlying circumstances 18 from which the officer concluded that the informant was credible or his information 19 reliable.” Cordova, 1989-NMSC-083, ¶ 6 (text only) (quoting Aguilar, 378 U.S. at

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1 114); see also Rule 5-208(C) NMRA (“The showing of probable cause shall be 2 based upon substantial evidence, which may be hearsay in whole or in part, provided 3 there is a substantial basis for believing the source of the hearsay to be credible and 4 for believing that there is a factual basis for the information furnished.”). “[T]he two 5 prongs of Aguilar-Spinelli and of [Rule 5-208(C)] have been characterized as 6 independent and analytically severable requirements.” Cordova, 1989-NMSC-083, 7 ¶ 12 (internal quotation marks and citation omitted). 8 {23} The first prong of Aguilar-Spinelli is referred to as the reliability or basis of 9 knowledge prong. See State v. Eskridge, 1997-NMCA-106, ¶ 19, 124 N.M. 227, 947 10 P.2d 502 (“Our Supreme Court in Cordova held that the allegations of an informant 11 alone cannot provide probable cause to issue a search warrant unless officers can 12 show both (1) the reliability of the information and (2) credibility of the informant.”); 13 see also State v. Gonzales, 1999-NMCA-027, ¶ 23, 126 N.M. 742, 975 P.2d 355 14 (“[A] more precise name for the reliability prong is the basis-of-knowledge prong.”). 15 The basis of knowledge prong requires that the officer provide “the factual basis for 16 any conclusions drawn by the informant to enable the court to perform an 17 independent analysis of the facts and conclusions.” State v. Barker, 1992-NMCA- 18 117, ¶ 4, 114 N.M. 589, 844 P.2d 839. “Under the basis of knowledge prong of the 19 test, we ask whether the affidavit provides a substantial basis for concluding the

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1 informants gathered the information of illegal activity in a reliable fashion.” State v. 2 Haidle, 2012-NMSC-033, ¶ 23, 285 P.3d 668 (text only) (citation omitted). “First- 3 hand observations by the informant serve to meet the ‘basis of knowledge’ prong of 4 the Cordova test.” Barker, 1992-NMCA-117, ¶ 5; see also State v. Lujan, 1998- 5 NMCA-032, ¶ 9, 124 N.M. 494, 953 P.2d 29 (explaining that an informant’s 6 participation in a controlled buy was sufficient to establish a reliable factual basis 7 for the tip). 8 {24} The second prong of Aguilar-Spinelli, known as the credibility or veracity 9 prong, requires that “facts be presented to the court to show either that the informant 10 is inherently credible or that the information from the informant is reliable on this 11 particular occasion.” Barker, 1992-NMCA-117, ¶ 4. Defendant does not challenge 12 the informant’s veracity, but argues only that the informant’s tip lacked a reliable 13 basis of knowledge. We therefore limit our analysis to the first prong of Cordova 14 and Aguilar-Spinelli. 15 {25} We agree with Defendant that the confidential informant tip was not shown to 16 have a reliable factual basis. Agent Scharmack explained that he received 17 information from a credible informant that Defendant was trafficking a large amount 18 of cocaine. However, Agent Scharmack did not explain how this informant became 19 aware of the information. It is unknown whether the informant, for example,

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1 participated in a controlled buy, otherwise personally observed Defendant’s illicit 2 conduct, or simply conveyed rumors or suppositions based on Defendant’s 3 reputation as a drug dealer. Given this, no evidence was presented upon which the 4 district court could evaluate whether Agent Scharmack’s reliance on the hearsay 5 information was reasonable. 6 {26} In this regard, the present appeal is analogous to Cordova, 1989-NMSC-083, 7 as the affidavit at issue in that case asserted that the defendant was distributing 8 heroin, but was utterly “devoid of any indication of how the informant gathered this 9 information.” Id. ¶ 21. The Cordova Court concluded that the tip was thus entitled 10 to “little or no weight in determining” whether a search was warranted. Id. ¶ 22. 11 Similarly, the tip received by Agent Scharmack is devoid of any supporting detail 12 regarding the source of the informant’s knowledge. The tip thus lacks a reliable 13 factual basis and is entitled to little or no weight in our reasonable suspicion analysis. 14 {27} Also, like the tip in Cordova, the tip at issue here was not sufficiently detailed 15 so that we may assume that the informant had a reliable factual basis for the 16 information provided. See id. ¶ 25 (concluding that the police officer’s corroboration 17 of “only the informant’s description of the house and car” was not sufficient to 18 establish that the informant had a reliable factual basis to support the allegations of 19 criminal conduct). When an informant’s tip fails to specify the basis of the

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1 informant’s knowledge, a court may nevertheless assume that the informant has a 2 reliable factual basis for that information “if the informant describes the criminal 3 activity in such detail that a judge will know the informant relies on more than a 4 casual rumor or reputation of the defendant.” State v. Baca, 1982-NMSC-016, ¶ 18, 5 97 N.M. 379, 640 P.2d 485. Such a detailed tip is said to be self-verifying. See 6 Cordova, 1989-NMSC-083, ¶ 9 (“[W]hen an affidavit does not affirmatively state 7 an informant’s basis of knowledge, it may be inferred that an informant who 8 otherwise is known to be credible obtained the information set forth in the affidavit 9 in a reliable fashion if the tip contains enough detail to be self-verifying.” (second 10 emphasis added)). 11 {28} In assessing whether a tip is self-verifying, our courts frequently have made 12 “a distinction between a tip predicting a subject’s movements on the one hand, and 13 on the other, a tip which merely describes a status quo, or the state of things at a 14 given time, of which the subject is a part.” Urioste, 2002-NMSC-023, ¶¶ 11-13. 15 Thus, “where an informant’s details were limited and provided only innocent facts 16 unrelated to the alleged illegal activity, we found there was insufficient 17 corroboration to rely on the hearsay.” Haidle, 2012-NMSC-033, ¶ 26. In contrast, 18 courts may infer that an informant possesses a reliable basis of knowledge when the 19 corroborated portions of the tip conveyed specific, predictive information about the

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1 defendant’s movements demonstrating a familiarity with the defendant’s criminal 2 conduct. See, e.g., State v. Robbs, 2006-NMCA-061, ¶¶ 2, 19, 139 N.M. 569, 136 3 P.3d 570 (concluding that hearsay information that a vehicle with a personalized 4 license plate would be delivering narcotics to a specific street address was reliable 5 “because significant aspects of the tip, including [the d]efendant’s future movement, 6 were corroborated by the officers prior to the stop”); State v. Alderete, 2011-NMCA- 7 055, ¶ 18, 149 N.M. 799, 255 P.3d 377 (explaining that reasonable suspicion arose 8 from “a tip from a reliable, confidential informant, which included specific, 9 predictive information that a large amount of marijuana was going to be delivered 10 to the house under surveillance”). 11 {29} The informant’s tip here did not predict Defendant’s future movements, but 12 only conveyed an allegation of trafficking and a generic description of Defendant’s 13 two vehicles. The agents partially corroborated this detail, as they confirmed that 14 Defendant drove at least one of the vehicles. However, standing alone, the type of 15 vehicle driven by an individual is an innocuous, status quo detail that is readily 16 observable by the public. See State v. Bedolla, 1991-NMCA-002, ¶ 15, 111 N.M. 17 448, 806 P.2d 588 (concluding that a search was unreasonable when the corroborated 18 portions of an informant’s tip, including a description of the defendant’s vehicle, 19 were all “readily available to any member of the public”). This detail does not reveal

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1 that the informant had any special familiarity with Defendant such that we can infer 2 that there was a reliable factual basis for the informant’s allegations. 3 {30} We thus conclude that the informant’s tip fails the first prong of Aguilar- 4 Spinelli and Cordova. The district court had insufficient evidence on which to 5 conclude that the basis of the informant’s knowledge was reliable, and thus the tip 6 does not support a reasonable suspicion of criminal conduct. 7 2. The agents’ surveillance 8 {31} We next consider whether the NEU agents’ surveillance of Defendant 9 supported a reasonable suspicion of illegal conduct. Defendant argues that the agents 10 did not have reasonable suspicion because they only saw innocent activity and did 11 not adequately explain why their training and experience suggested that he was 12 engaging or about to engage in a narcotics exchange. The State responds that the 13 agents described their qualifications as narcotics agents and sufficiently recounted 14 the facts leading them to reasonably suspect Defendant of illegal conduct. Both 15 parties also compare the facts of the current appeal to Martinez, 2020-NMSC-005, 16 and Neal, 2007-NMSC-043. 17 {32} In Neal, a police officer observed a defendant briefly interact with a suspected 18 narcotics dealer in front of a house that was under investigation for drug trafficking. 19 2007-NMSC-043, ¶¶ 4-5. The officer saw the two individuals meet at the window

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1 of the defendant’s vehicle, but “could not see what, if anything, they were doing, 2 aside from talking, and could not hear what they were saying.” Id. ¶ 27. In 3 concluding that the officer did not have reasonable suspicion to expand a subsequent 4 traffic stop, the Neal Court explained that the defendant’s “mere association with a 5 convicted felon . . . who was under surveillance in an ongoing drug investigation, 6 was insufficient to create reasonable suspicion.” Id. ¶ 30. The “[d]efendant’s 7 innocent conduct and the surrounding circumstances, viewed together and indulging 8 the factual inferences drawn by [the officer], do not constitute the type of 9 individualized, specific, articulable circumstances necessary to create reasonable 10 suspicion that [the d]efendant himself was involved in criminal activity.” Id. ¶ 31. 11 {33} In Martinez, an officer was surveilling a gas station in a high drug crime area 12 when he saw the defendant and his accomplice briefly interact with an individual in 13 the parking lot of a gas station and in the rear seat of the defendant’s vehicle. 14 Martinez, 2020-NMSC-005, ¶ 4. Shortly after, the officer saw the defendant and his 15 accomplice briefly meet with another, unrelated individual in the rear seat of the 16 defendant’s vehicle. Id. ¶ 5. The officer testified that, based on his training and 17 experience, the circumstances of the two meetings suggested the defendant might 18 have been trafficking narcotics. Id. ¶ 6. Importantly, “[w]hen asked why he 19 suspected” trafficking, the officer explained that he had participated in back-seat

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1 drug exchanges while working undercover at that gas station, and that the two 2 interactions he observed were “consistent with what [he had] done and seen.” Id. ¶¶ 3 3, 6. The Martinez Court concluded that the potentially innocent facts observed by 4 the officer supported a reasonable suspicion to stop. Id. ¶ 25. Because the officer 5 observed the defendant “partake in two instances of exactly the kind of drug activity 6 [the officer] had previously observed at the [gas station],” the Court explained that 7 the officer’s “suspicion was grounded upon specific facts and rational inferences 8 from those facts.” Id. 9 {34} We agree with Defendant that this appeal is analogous to Neal and 10 distinguishable from Martinez, in that the agents did not articulate specific facts 11 supporting a reasonable suspicion of illegal conduct. Like the Neal Court, we cannot 12 reasonably infer criminal activity based on the fact that Defendant met with a woman 13 who was driving a vehicle similar to Anthony Montoya’s white pickup. Although 14 the NEU agents described this meeting between Defendant and the then-unidentified 15 woman as “almost like an exchange,” they did not see Defendant and the woman 16 actually exchange anything. Nor could the agents hear anything the two individuals 17 were saying, as the agents were still driving when they decided to “make contact” 18 with Defendant. All the agents saw was Defendant meeting with someone potentially 19 associated with a suspected narcotics dealer.

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1 {35} Similar to Neal, Defendant’s “mere association” with an individual driving a 2 suspicious vehicle did not provide sufficient grounds for an investigatory stop. Neal, 3 2007-NMSC-043, ¶ 30. Our courts have repeatedly emphasized, “[g]uilt by 4 association and generalized suspicions are insufficient grounds upon which to base 5 an investigatory detention.” State v. Prince, 2004-NMCA-127, ¶ 17, 136 N.M. 521, 6 101 P.3d 332; see also State v. Jones, 1992-NMCA-064, ¶ 15, 114 N.M. 147, 835 7 P.2d 863 (refusing to infer that “gang membership and presence in a gang activity 8 area [were] sufficient alone to support reasonable suspicion”); In re Eli L., 1997- 9 NMCA-109, ¶ 13, 124 N.M. 205, 947 P.2d 162 (concluding that an officer’s 10 knowledge that juvenile was a gang member and “may have been warning other 11 gang members that officers were present” was insufficient to give rise to a reasonable 12 suspicion of criminal activity); State v. Graves, 1994-NMCA-151, ¶ 17, 119 N.M. 13 89, 888 P.2d 971 (holding that a defendant’s “mere presence” at a location subject 14 to a search warrant was insufficient to “justify the arrest or detention of a person, 15 other than the resident, at a residence lawfully being searched”). In the absence of 16 any additional facts suggestive of trafficking, it was not reasonable for the agents to 17 believe that Defendant was engaging or about to engage in a narcotics exchange with 18 the woman.

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1 {36} We also do not see the agents’ unadorned invocation of their “training and 2 experience” as sufficient to establish reasonable suspicion. Each of the NEU agents 3 recounted their qualifications as narcotics agents, testified to their observations, and 4 opined that Defendant was trafficking. However, the agents did not explain how their 5 expertise informed their understanding of the apparently innocent facts they 6 observed. In the absence of this explanation, we cannot conclude that these facts 7 were objectively suggestive of illegal conduct. 8 {37} We acknowledge that “[a] reasonable suspicion of criminal activity can arise 9 from wholly lawful conduct.” Urioste, 2002-NMSC-023, ¶ 10 (internal quotation 10 marks and citation omitted). An officer is not required to rule out innocent 11 explanations for suspicious activity before performing an investigatory stop, 12 “because the principal function of an investigation is to resolve whether certain 13 activity is in fact legal or illegal.” Martinez, 2020-NMSC-005, ¶ 31. We also 14 “recognize that officers may draw on their own experience and specialized training 15 to make inferences from and deductions about the cumulative information available 16 to them that might well elude an untrained person.” Neal, 2007-NMSC-043, ¶ 21 17 (internal quotation marks and citation omitted). A reviewing court considers an 18 officer’s training and experience when the officer’s expertise “enhanced [the 19 officer’s] ability to derive and articulate particularized and objective indicia of

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1 criminal activity” from otherwise innocent-seeming facts. State v. Van Dang, 2005- 2 NMSC-033, ¶ 16, 138 N.M. 408, 120 P.3d 830. 3 {38} However, if an officer intends to rely on the officer’s training and experience 4 to derive meaning from circumstances that would seem innocent to a lay observer, 5 then “it is incumbent upon the arresting or searching officer to explain the nature of 6 [the officer’s] expertise or experience and how it bears upon the facts which 7 prompted the officer to arrest or search.” 2 Wayne R. LaFave, Search & Seizure: A 8 Treatise on the Fourth Amendment § 3.2(c) (6th ed. 2021). Accordingly, in Martinez 9 we reiterated, “[w]hen an officer relies upon training and experience to effectuate a 10 stop, it is necessary that the officer explain why [the officer’s] knowledge of 11 particular criminal practices gives special significance to the apparently innocent 12 facts observed.” 2020-NMSC-005, ¶ 22 (internal quotation marks and citation 13 omitted). “Or, as was said in Terry v. Ohio, [392 U.S. 1, 21 (1968),] ‘the police 14 officer must be able to point to specific and articulable facts which, taken together 15 with rational inferences from those facts, reasonably warrant the intrusion.’” 16 Martinez, 2020-NMSC-005, ¶ 22 (brackets omitted). 17 {39} This requirement that officers provide specific, articulable facts is central to 18 our search and seizure jurisprudence and is in keeping with the judiciary’s role as 19 the ultimate arbiter of a seizure’s reasonableness. We employ an objective standard

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1 for assessing whether an officer’s suspicion was reasonable in light of all the 2 circumstances, and “the subjective belief of the officer does not in itself affect the 3 validity of the stop.” Yazzie, 2016-NMSC-026, ¶ 20 (text only) (citation omitted). 4 “The purpose of requiring objectively reasonable suspicion based on the 5 circumstances is to prevent and invalidate police conduct based on hunches, which 6 are, by definition, subjective.” State v. Ochoa, 2009-NMCA-002, ¶ 25, 146 N.M. 32, 7 206 P.3d 143 (internal quotation marks and citation omitted); see also Alderete, 8 2011-NMCA-055, ¶ 11 (noting that the purpose of an objective standard “is to 9 prevent officers from arbitrarily acting on whims or unsupported hunches” (internal 10 quotation marks and citation omitted)). 11 {40} For example, the Martinez Court concluded that the officer’s subjective 12 suspicions were reasonable because the officer explained why, in light of his training 13 and experience, the two interactions he observed in the back seat of the defendant’s 14 vehicle suggested the defendant may have been trafficking. Martinez, 2020-NMSC- 15 005, ¶¶ 3-6. Similarly, in State v. Hernandez, 2016-NMCA-008, ¶¶ 14-16, 364 P.3d 16 313, the Court of Appeals distinguished Neal and held that officers there had 17 reasonable suspicion to stop a vehicle because the officers linked the vehicle to a 18 pattern of narcotics transactions.

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1 {41} In the current appeal, we are missing that vital logical connection between the 2 agents’ expertise and the facts presented. Without this connection, this Court cannot 3 assess the objective reasonableness of the agent’s subjective suspicions. For 4 example, in its briefing on appeal, the State argues that the agents could have inferred 5 illegal activity from Defendant’s parking position, as the agents recounted that 6 Defendant reversed his vehicle into a parking spot. But the agents did not make this 7 inference or otherwise explain why Defendant’s parking position was suggestive of 8 illegal conduct. On the record presented, we cannot reasonably infer that reversing 9 into a parking space at a gas station objectively suggests that an individual is going 10 to exchange narcotics with another individual. We therefore conclude that the 11 agents’ surveillance did not establish reasonable suspicion that Defendant was about 12 to engage or was engaging in a narcotics exchange at the gas station. 13 3. Totality of the circumstances 14 {42} Although we have identified deficiencies in the two circumstances discussed 15 above, a “reasonable suspicion determination requires us to assess the totality of the 16 circumstances,” and we must not engage in “a divide-and-conquer analysis in which 17 we view each individual factor or circumstance in a vacuum.” Neal¸ 2007-NMSC- 18 043, ¶ 28 (text only) (citation omitted). However, we conclude that the facts, viewed 19 objectively and as a whole, did not support a reasonable suspicion to stop.

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1 {43} Aside from the unreliable informant tip and the agents’ subjective belief that 2 Defendant was engaging in a narcotics exchange, all the agents knew at the time 3 they confronted Defendant was that Defendant had a history and reputation as a drug 4 dealer and that they had received information from various other informants that 5 Defendant was currently selling drugs. However, it is unclear what role Defendant’s 6 history and reputation played in the district court’s findings, and on the record 7 presented, we see this factor as giving rise to no more than a generalized suspicion 8 of wrongdoing. The prior information received by the NEU agents, which placed 9 Defendant “on [their] radar,” also amounts to little more than rumor. The agents did 10 not explore whether these prior informants had reliable bases of knowledge, and 11 nothing was said about these informants’ veracity. Cordova, 1989-NMSC-083, ¶¶ 12 6, 17. 13 {44} We therefore hold that, in the totality of the circumstances, the agents did not 14 have a reasonable suspicion of criminal activity when they confronted Defendant. 15 B. Point of Seizure 16 {45} In light of our holding, we are called to address a question ruled on by the 17 district court but not reached by the Court of Appeals: specifically, whether 18 Defendant was seized when agents first confronted him at the gas station or at some 19 other point during the encounter. The district court concluded that Defendant was

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1 not seized, and thus suppression was not warranted, because Defendant fled from 2 the agents. The Court of Appeals assumed that Defendant was seized, but declined 3 to expressly rule on the moment of seizure or resolve the parties’ debate about 4 preservation of Defendant’s arguments under Article II, Section 10 regarding the 5 point of seizure. Granados, A-1-CA-37417, mem. op. ¶¶ 7 n.2, 30 n.4. The State 6 asks this Court to make a similar assumption and suggests that, if we reverse the 7 lower courts’ reasonable suspicion analysis, then we should remand to the Court of 8 Appeals to determine when Defendant was seized and whether he preserved his state 9 constitutional claims. 10 {46} This Court will address the issue, rather than remand for further appellate 11 consideration, as we reverse the lower courts’ reasonable suspicion analysis and 12 wish to provide clarity to the district court on remand. Cf. State v. Ellenberger, 1981- 13 NMSC-056, ¶ 12, 96 N.M. 287, 629 P.2d 1216 (reaching an issue left unaddressed 14 by the Court of Appeals due to this Court’s alternate disposition of the case); Ferrell 15 v. Allstate Ins. Co., 2008-NMSC-042, ¶ 58, 144 N.M. 405, 188 P.3d 1156 (same). 16 Determining the moment of seizure is “pivotal” to resolution of Defendant’s direct 17 appeal, because “[t]he point at which the seizure occurs . . . determines the point in 18 time the police must have reasonable suspicion to conduct an investigatory stop.” 19 State v. Harbison, 2007-NMSC-016, ¶ 10, 141 N.M. 392, 156 P.3d 30. “Reasonable

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1 suspicion must exist at the inception of the seizure. The officer cannot rely on facts 2 which arise as a result of the encounter.” Jason L., 2000-NMSC-018, ¶ 20 (citation 3 omitted). The parties had fair opportunity to brief the merits of this issue in filings 4 before this Court and the Court of Appeals. We therefore decide the moment of 5 Defendant’s seizure to promote judicial efficiency and meaningful appellate review. 6 1. Preservation of the seizure issue 7 {47} The State questions whether Defendant adequately preserved his arguments 8 about seizure under the state constitution. During the evidentiary hearing on 9 Defendant’s motion to suppress, the State cited State v. Maez, 2009-NMCA-108, 10 147 N.M. 91, 217 P.3d 104, to argue that Defendant was not effectively seized 11 because he fled from the agents. Maez was a decision made under Fourth 12 Amendment jurisprudence, and did not discuss the standards relevant to 13 determination of a seizure under Article II, Section 10. 2009-NMCA-108, ¶ 15. 14 Defense counsel did not cite any contradictory authority on this point or otherwise 15 inform the district court of the divergence in state constitutional precedent. The 16 district court ultimately agreed with the State’s analysis. Now on appeal, the State 17 asserts that Defendant did not preserve his state constitutional arguments. 18 {48} The State seeks to impose too high a burden for preservation of this issue, as 19 our established precedent has long construed Article II, Section 10 as providing

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1 greater protections than its federal counterpart. See, e.g., State v. Garcia, 2009- 2 NMSC-046, ¶ 31, 147 N.M. 134, 217 P.3d 1032 (“Article II, Section 10 is calibrated 3 slightly differently than the Fourth Amendment. It is a foundation of both personal 4 privacy and the integrity of the criminal justice system, as well as the ultimate 5 regulator of police conduct.”). In State v. Gomez, 1997-NMSC-006, ¶ 22, 122 N.M. 6 777, 932 P.2d 1, we explained that

7 [i]f established precedent construes [a] provision [of the New Mexico 8 Constitution] to provide more protection than its federal counterpart, 9 the claim may be preserved by (1) asserting the constitutional principle 10 that provides the protection sought under the New Mexico Constitution, 11 and (2) showing the factual basis needed for the trial court to rule on 12 the issue.

13 Where, as here, we have interpreted the relevant provision of our state constitution 14 as providing greater protections, a party may preserve its state constitutional claim 15 “in the same manner as any other argument.” State v. Leyva, 2011-NMSC-009, ¶ 42, 16 149 N.M. 435, 250 P.3d 861. “[O]nly where a state constitutional provision had 17 never been interpreted to provide greater protection than its federal analog are parties 18 required to alert the trial court and articulate reasons for departure.” Id. 19 {49} Defendant argued in his motion to suppress that his rights had been violated 20 under Article II, Section 10. He also developed the necessary factual record in an 21 evidentiary hearing and at trial. Cf. State v. Martinez, 1980-NMSC-066, ¶ 16, 94 22 N.M. 436, 612 P.2d 228 (concluding that an appellate court may examine the whole

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1 record to ascertain the reasonableness of a search and seizure); accord State v. 2 Monafo, 2016-NMCA-092, ¶ 10, 384 P.3d 134 (“Rather than being limited to the 3 record made on a motion to suppress, appellate courts may review the entire record 4 to determine whether there was sufficient evidence to support the trial court’s denial 5 of the motion to suppress.” (internal quotation marks and citation omitted)). Defense 6 counsel was not required to inform the district court of the divergent treatment of the 7 issue for preservation purposes. “Gomez held that, although the defendant did not 8 cite cases interpreting Article II, Section 10 more expansively, this did not operate 9 to prejudice the State in any way because the district court is charged with knowing 10 and correctly applying established New Mexico precedent interpreting the state 11 constitution.” Leyva, 2011-NMSC-009, ¶ 41 (internal quotation marks and citation 12 omitted). Defendant preserved his state constitutional claims for our review. Rule 13 12-321 NMRA. 14 2. Defendant was seized at the gas station 15 {50} In Jason L., 2000-NMSC-008, ¶ 19, we held that “[t]he determination of a 16 seizure has two discrete parts.” First “what were the circumstances surrounding the 17 stop, including whether the officers used a show of authority[?]” Id. Second, “did 18 the circumstances reach such a level of accosting and restraint that a reasonable 19 person would have believed he or she was not free to leave?” Id. The first part of

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1 this inquiry presents a question of fact that we review for substantial evidence; the 2 second part presents a question of law that we review de novo. Id. Although the 3 district court ruled that Defendant was not seized, it made no explicit findings as to 4 whether the agents made a show of authority when they approached Defendant at 5 the gas station. The absence of explicit findings is a “regular occurrence when we 6 review decisions on motions to suppress,” and in these circumstances, “our practice 7 has been to employ presumptions and as a general rule we will indulge in all 8 reasonable presumptions in support of the district court’s ruling.” Id. ¶ 11 (text only) 9 (citation omitted). 10 {51} However, we are not “bound by a trial court’s ruling when predicated upon a 11 mistake of law.” State v. Werner, 1994-NMSC-025, ¶ 10, 117 N.M. 315, 871 P.2d 12 971 (internal quotation marks and citation omitted). The district court in the 13 proceedings below was mistaken as to the appropriate standard applied to 14 determination of a seizure under the New Mexico Constitution, as the court applied 15 the federal constitutional standard. In California v. Hodari D., 499 U.S. 621, 627-28 16 (1991), the United States Supreme Court held that a defendant is not seized within 17 the meaning of the Fourth Amendment when the defendant does not yield to an 18 officer’s show of authority seeking to effectuate a stop. Thus, as correctly ruled on 19 by the district court, Defendant was not seized for Fourth Amendment purposes

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1 because he did not submit to the agents before abandoning the cocaine. “If [the 2 d]efendant was not seized at the time [the defendant] discarded the contraband, then 3 the evidence would be considered abandoned and Fourth Amendment protections 4 would not apply.” Harbison, 2007-NMSC-016, ¶ 10. 5 {52} However, this Court has explained that “Hodari D. does not comport with the 6 distinctive New Mexico protection against unreasonable searches and seizures” 7 under Article II, Section 10. Garcia, 2009-NMSC-046, ¶ 27. New Mexico courts 8 follow the standard set by United States v. Mendenhall, 446 U.S. 544 (1980), and its 9 progeny in evaluating claims of illegal seizure under our state constitution. Under 10 Mendenhall, “a person has been ‘seized’ . . . only if, in view of all of the 11 circumstances surrounding the incident, a reasonable person would have believed 12 that he [or she] was not free to leave.” Id. at 554. A “reasonable person would not 13 feel free to leave when his or her freedom of movement is restrained, or when the 14 facts show accosting and restraint.” Garcia, 2009-NMSC-046, ¶ 37 (citations 15 omitted). The district court did not consider whether the agents made a show of 16 authority as relevant to our analysis under state constitutional law. 17 {53} In analyzing whether a reasonable person would feel free to leave, we examine 18 the “(1) the conduct of the police, (2) the person of the individual citizen, and (3) the 19 physical surroundings of the encounter.” Jason L., 2000-NMSC-018, ¶ 15 (internal

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1 quotation marks and citation omitted). An officer may “approach an individual, ask 2 questions, and request identification without the encounter becoming a seizure.” 3 State v. Walters, 1997-NMCA-013, ¶ 18, 123 N.M. 88, 934 P.2d 282. “Only when 4 the officer, by means of physical force or show of authority, has in some way 5 restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. 6 ¶ 12 (quoting Terry, 392 U.S. at 19 n.16). Factors indicating a seizure include “the 7 threatening presence of several officers, the display of a weapon by an officer, some 8 physical touching of the person of the citizen, or the use of language or tone of voice 9 indicating that compliance with the officer’s request might be compelled.” State v. 10 Lopez, 1989-NMCA-030, ¶ 3, 109 N.M. 169, 783 P.2d 479 (quoting Mendenhall, 11 446 U.S. at 554), modified on other grounds by Jason L., 2000-NMSC-018, ¶ 19. 12 {54} The record shows that the agents attempted to prevent Defendant from leaving 13 the gas station parking lot by pulling in front of his vehicle, but failed to do so 14 because their vehicle skidded past Defendant’s truck. After coming to a stop, the 15 four agents exited their vehicle, displayed their official badges, invoked their 16 authority as law enforcement officers by shouting into Defendant’s open left front 17 window, and ordered Defendant to exit his vehicle. At least one of the agents had 18 his hand on his holstered weapon.

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1 {55} On the facts presented, the language and conduct displayed by the agents in 2 this case “would have communicated to a reasonable person that the person was not 3 free to decline the officers’ requests or otherwise terminate the encounter.” Walters, 4 1997-NMCA-013, ¶ 12 (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)). 5 Although the agents were not successful in their plan to block Defendant’s vehicle, 6 they approached Defendant in an accusatory and accosting manner and a reasonable 7 person in Defendant’s position would not have felt free to leave. See, e.g., Lopez, 8 1989-NMCA-030, ¶ 12 (finding that a defendant was seized when “[t]he police 9 officers used their vehicle to block [the] defendant’s vehicle, there were four police 10 officers approaching the pickup truck, and the officers were invoking their authority 11 as police officers by displaying badges”); State v. Boblick, 2004-NMCA-078, ¶ 10, 12 135 N.M. 754, 93 P.3d 775 (“[W]e doubt that a reasonable person would feel free to 13 leave after officers knocked on [the person’s] car window, asked [the person] to exit 14 the vehicle, and questioned [the person] about weapons.”). The agents displayed a 15 show of authority such that Defendant was seized at the gas station under Article II, 16 Section 10 of the New Mexico Constitution. Defendant’s refusal to submit to that 17 show of authority does not alter this conclusion. Garcia, 2009-NMSC-046, ¶¶ 37, 18 41.

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1 {56} As we have explained that the agents did not have a reasonable suspicion that 2 Defendant was engaged or about to be engaged in an illegal narcotics exchange when 3 they confronted Defendant, we hold the agents did not have a legitimate basis for 4 the stop and Defendant’s seizure violated Article II, Section 10. 5 IV. CONCLUSION 6 {57} Defendant was unreasonably seized under Article II, Section 10 of the New 7 Mexico Constitution. The district court erred when it denied Defendant’s motion to 8 suppress. The district court’s order denying suppression and the Court of Appeals’ 9 majority opinion affirming that order are reversed. We remand this matter to the 10 district court with instructions to grant the motion to suppress and for further 11 proceedings consistent with this opinion. 12 {58} IT IS SO ORDERED.

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2 JULIE J. VARGAS, Justice 3 WE CONCUR:

4 5 C. SHANNON BACON, Chief Justice

6 7 MICHAEL E. VIGIL, Justice

8 9 DAVID K. THOMSON, Justice