State v. Henderickson

• Court: New Mexico Court of Appeals
• Decided: August 12, 2009
• Docket: 29,349
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,349

10 TRAVIS HENDERICKSON,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 Edmund H. Kase, III, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Karl Erich Martell, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.

23 Defendant appeals the denial of his motion to suppress, a claim he reserved

24 in his conditional plea. We proposed to affirm in a calendar notice, and we have 1 received a response from Defendant. After due consideration of the arguments

2 made by Defendant, we affirm.

3 Defendant continues to argue that the traffic stop in this case was improperly

4 expanded into a drug investigation though officers lacked reasonable suspicion that

5 Defendant possessed drugs. Defendant also challenges the testimony that he

6 consented to a pat-down search or to removal of an object from his pocket.

7 According to Defendant, the main issue in this case is whether there was a reason

8 to conduct a pat-down search. [MIO 8] Below, Defendant claimed he was not

9 contesting the stop, but was challenging the authority of officers to search him or

10 ask for consent to search once it was revealed that there was no outstanding

11 warrant. [RP 184-85]

12 As discussed in our calendar notice, we view the evidence in the light most

13 favorable to the State to determine whether the law was correctly applied to the

14 facts. State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. When

15 reviewing the denial of a motion to suppress, findings of fact are reviewed to

16 determine if they are supported by substantial evidence and legal conclusions are

17 reviewed de novo. See State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12

18 P.3d 442; State v. Leyba, 1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171.

2 1 There was testimony presented to show that officers believed that Defendant

2 was driving on a suspended license and that there was possibly an outstanding

3 warrant for Defendant. Defendant did not pull over when emergency lights were

4 activated, forcing police to use one of their own vehicles in order to stop

5 Defendant. [DS 3-4; RP 158; RP 185-86] There was testimony from Officer

6 Sedillo that he was concerned for officer safety, and testimony from Officer

7 Benavidez that he was concerned because Defendant did not pull over right away,

8 was acting nervous, and was sweating. [RP 154, 158] Officer Sedillo was

9 conducting a background check when he asked Defendant “if he had anything on

10 him he shouldn’t have,” to which Defendant responded, “no.” Officer Sedillo

11 asked and received permission to conduct a pat-down search on Defendant, and

12 received permission from Defendant to retrieve a hard object in Defendant’s

13 pocket. As Officer Sedillo was handing the object to another officer, Defendant

14 grabbed the object and fled. [RP 154-155]

15 The district court found it highly relevant that an officer had to pull in front

16 of Defendant in order to force him to stop, even though emergency lights had been

17 engaged, and this supported the officers’ safety concerns and the decision to

18 conduct a pat-down search. [RP 185-86] The district court also found that

19 Defendant consented to the pat-down search. [RP 186] Defendant claims that the

3 1 testimony regarding his consent was contradicted, and that the officers lacked the

2 requisite suspicion to detain him to ask a question and conduct the pat-down

3 search. [MIO 8-9]

4 With respect to Defendant’s claim that there was conflicting evidence

5 presented by the witnesses in the case, we point out that conflicts in testimony or

6 evidence are for the district court to resolve. See State v. Salas, 1999-NMCA-099,

7 ¶ 13, 127 N.M. 686, 986 P.2d 482. Viewing the testimony and evidence in the light

8 most favorable to the State, we hold that the district court’s findings are supported

9 by substantial evidence. We hold that the district court correctly determined that,

10 based on the totality of circumstance surrounding the stop, it was reasonable for the

11 officers to be concerned for their safety. Those circumstances included

12 Defendant’s refusal to stop until forced to do so, his nervousness, and the fact that

13 he was sweating. Due to safety concerns, the officers were authorized to detain

14 Defendant to ask if he had anything he should not have and to request permission

15 to conduct a pat-down search. Cf. State v. Affsprung, 2004-NMCA-038, ¶ 11, 135

16 N.M. 306, 87 P.3d 1088 (stating that a driver may be detained under certain

17 circumstances for safety concerns regarding weapons); State v. Chapman,

18 1999-NMCA-106, ¶ 17, 127 N.M. 721, 986 P.2d 1122 (holding that it was lawful

19 for officer to ask questions about weapons and conduct a pat-down search where

4 1 the officer described nervousness, as well as specific behaviors that explained why

2 he was concerned that the defendant was dangerous). In addition, as noted in our

3 calendar notice, there was substantial evidence to show that Defendant consented

4 to the pat-down search. See State v. Gutierrez, 2005-NMCA-015, ¶ 11, 136 N.M.

5 779, 105 P.3d 332 (stating that one recognized exception to the warrant

6 requirement is consent).

7 For the reasons discussed in this opinion and in our calendar notice, we

8 affirm the district court’s denial of Defendant’s motion to suppress.

9 IT IS SO ORDERED.

10 11 MICHAEL E. VIGIL, Judge

12 WE CONCUR:

13 14 RODERICK T. KENNEDY, Judge

15 16 TIMOTHY L. GARCIA, Judge