State v. Johnson

2010 NMCA 045, 233 P.3d 371, 148 N.M. 237
New Mexico Court of Appeals·Decided April 16, 2010·No. 28,198·Published·Cited by 4 cases

Opinion

OPINION

SUTIN, Judge.

{1} This search and seizure case results from a 911 call in which the caller reported criminal activity involving the firing of weapons from two vehicles. Officers were dispatched to the area of the reported activity. The issues raised involve whether the officers had lawful bases on which to initiate an investigation, to approach a parked vehicle thought to be involved in the activity in the manner they did with weapons drawn, to seize Defendant who was a passenger in the vehicle, to conduct a Terry patdown, and to seize a glass pipe and then arrest Defendant for possession of the pipe. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{2} Defendant William Johnson seeks to overturn his conviction on the grounds that the officers had no legal justification for any of these actions that ultimately led to his arrest for possession of drug paraphernalia. We hold that the officers acted lawfully up to the point when one of the officers seized the pipe. However, we hold that the officer did not have justification to seize the pipe because the officer impermissibly went beyond the lawful parameters of a Terry patdown for weapons. When the officer first felt the object later determined to be a glass pipe, it was immediately apparent to the officer that the object was not a weapon, and the officer nevertheless continued to manipulate the object and ultimately determined it was contraband. We therefore reverse Defendant’s conviction.

BACKGROUND

{3} Police dispatch received a call from a person reporting criminal activity in the close vicinity of the caller’s home. We begin with a summary of the facts related to the call to dispatch and the follow-up activities. We then turn to the points Defendant raises on appeal. In the discussion portion of the opinion, we set out further facts in the context of those points.

The Call to Dispatch

{4} Police dispatch received the following call:

Caller: I live on South First Street in Bloomfield across from the soccer field. There was just two trucks in the parking lot between the soccer field and the baseball field and my daughter was just leaving. I thought I heard a gunshot. It looked like the two vehicles were going back behind ... I think ... I don’t know what street that is down there, that goes out there, but I think there was ... one was a smaller kind of orangish ugly truck, and the other was a big truck like maybe a 70[s] or 80[s] Chevy or Ford pickup. They’re chasing each other around here and they are shooting at each other.

After the dispatch asked what color the Chevrolet was, the caller stated:

Caller: It was ... I think it was ... I got in real quick I didn’t want them shooting me. [It] looked to me like it was part orange and part cream colored____ And I definitely heard a gunshot and I see a lot of drug activity back here. But I don’t want them coming after me, so I’d appreciate it if you didn’t let my name out.

The dispatch operator asked if it was the parking lot of the soccer field, and the caller answered, “Right. There’s a parking lot between the soccer field and the ball field. And I heard the gun fire there[.]” The caller continued, again confirming that the two trucks were in the vicinity of the soccer field near her home and noting that her specific location was on “[First] Street ... across from the soccer field.”

The Dispatch Communication With Officer Scott

{5} Dispatch informed Officer Scott that there was a “shots-fired” call involving two vehicles on south First Street driving in circles shooting at each other. The dispatcher also described the vehicles to Officer Scott as being a smaller orange truck and an older model Chevrolet truck. Dispatch informed him that the trucks were last seen chasing each other eastbound from Bluffview from First, and that the reporting party believed that the person who owned the orange truck may live on south Turner Street.

STANDARD OF REVIEW

{6} “We view the facts in a manner most favorable to the prevailing party and defer to the district court’s findings of fact if substantial evidence exists to support those findings.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “All reasonable inferences in support of the district court’s decision will be indulged in, and all inferences or evidence to the contrary will be disregarded.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (alterations omitted) (internal quotation marks and citation omitted). When a seizure occurred, and whether it was based on reasonable suspicion, involve mixed questions of fact and law which we review de novo. See Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964 (indicating that search and seizure issues and determinations of reasonable suspicion are mixed questions of fact and law that should be reviewed de novo).

DISCUSSION

Whether the Call and the Dispatch Communication Justified Officer Scott’s Investigative Activities and Patdown

{7} Defendant raises two issues on appeal to support his contention that the officer did not have sufficient evidence to conduct the investigation and to seize Defendant and then conduct a patdown and, therefore, that the seizure of the glass pipe should be suppressed as being the fruit of an unreasonable search and seizure. First, he asserts that Officer Scott did not possess sufficient information to justify his seizure of Defendant. The underlying reasons for this assertion are summarized by Defendant as follows:

[T]here were no specific, articulable facts given to the officer and the informant was not a known, reliable source of information. Moreover, the officer could not independently confirm anything the anonymous informant told dispatch, other than the mere location and vague description of the vehicles involved. Officer Scott did not receive any information from dispatch or from the anonymous informant about the facts giving rise to the suspicion that the people in the described vehicles were actually shooting guns. [Defendant] did not commit any traffic or moving violations, and Officer Scott’s initial seizure was based solely on the dispatch report. The officer was responding to the conclusion rendered by dispatch that the drivers of the described vehicles were suspected of gunfire, and he was not acting on any specific, articulated facts that would give rise to reasonable suspicion.

(Footnote omitted.) At oral argument, Defendant added that the officers had insufficient information to approach the vehicle where Defendant was sitting with guns drawn.

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State v. Johnson, 2010 NMCA 045, 233 P.3d 371, 148 N.M. 237 (N.M. Ct. App. 2010).

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