State v. Lopez

783 P.2d 479, 109 N.M. 169
CourtNew Mexico Court of Appeals
DecidedNovember 19, 1989
Docket10800
StatusPublished
Cited by44 cases

This text of 783 P.2d 479 (State v. Lopez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lopez, 783 P.2d 479, 109 N.M. 169 (N.M. Ct. App. 1989).

Opinion

OPINION

MINZNER, Judge.

This case raises important questions concerning the distinction between police encounters with citizens that do not implicate the fourth amendment, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and those that do. See, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The state appeals an order of the trial court suppressing “all evidence resulting from the police stop and seizure of defendant’s 1974 GMC pickup truck.” Relying on State v. Powell, 99 N.M. 381, 658 P.2d 456 (Ct.App.1983), and State v. Montoya, 94 N.M. 542, 612 P.2d 1353 (Ct.App.1980), the state argues that the police officers did not seize defendant within the meaning of the fourth amendment until after the officers saw the contraband in plain view as a result of an encounter not implicating the fourth amendment. Finding Powell and Montoya distinguishable, we affirm.

The state vigorously argues the issues in this case are legal issues, freely reviewable by this court. See Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986) (reviewing court not bound by a trial court’s ruling that is predicated on a mistake of law). Defendant equally vigorously argues the issues are factual, requiring deference to the trial court’s ruling. See State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979), overruled on other grounds, Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981) (rulings on motions to suppress governed by the substantial evidence standard). Therefore, it is first necessary to determine whether we are reviewing a legal issue or a factual issue.

Terry states, “[Wjhenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. at 16, 88 S.Ct. at 1877. See also State v. Frazier, 88 N.M. 103, 537 P.2d 711 (Ct.App.1975). The restraint on the person’s freedom of movement may be effected either by physical force, id., or a show of authority. United States v. Mendenhall, 446 U.S. at 553, 100 S.Ct. at 1876. Mendenhall in fact provides examples as well as a guideline:

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Footnote omitted.]

Id. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.). Although only one other justice joined this portion of Mendenhall, the Supreme Court has since adopted this test. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion).

Under Mendenhall, a person is seized within the meaning of the fourth amendment when, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Based on these statements, as a matter of law, a person is seized when the facts show accosting and restraint such that a reasonable person would believe he is not free to leave. However, we believe the question of whether the facts show such accosting and restraint is factual in nature. We are supported in this belief by State v. Swise, 100 N.M. 256, 669 P.2d 732 (1983). There the supreme court treated the question of whether the defendant was deprived of freedom in some significant way as a factual question and applied the substantial evidence test to it.

Thus, we conclude the question of whether defendant was seized, thereby invoking fourth amendment protections, is a legal question. However, whether defendant was accosted and restrained such that a reasonable person in the same circumstances would believe he was not free to leave is a factual question. We now apply the appropriate standards to the issues in this case.

Federal and state courts have found it useful in analyzing claims based on the fourth amendment to distinguish among three levels of police/citizen encounters. See, e.g., United States v. Black, 675 F.2d 129 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983); United States v. Berry, 670 F.2d 583 (5th Cir.1982); see also Wilson v. Superior Court of Los Angeles County, 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325 (1983) (In Bank), cert. denied, 466 U.S. 944, 104 S.Ct. 1929, 80 L.Ed.2d 474 (1984). Our cases are consistent with this approach.

At one extreme is a full-scale arrest that must be supported by probable cause. See State v. Frazier. At the other extreme is an approach in a non-coercive manner, during which the individual approached is free to leave. See United States v. Mendenhall. In between these two extremes lie a variety of confrontations amounting to seizures that must be justified by something less than probable cause but more than an inarticulate hunch. See State v. Cohen, 103 N.M. 558, 711 P.2d 3 (1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986); State v. Ray, 91 N.M. 67, 570 P.2d 605 (Ct.App.1977). Neither unsupported intuition nor an inarticulable hunch is enough. See State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977).

The state argues this case is at the extreme of non-coercive approach, and that the police officers’ actions do not involve the fourth amendment. Defendant argues this case is a seizure not amounting to an arrest, thereby requiring the officers to justify it by a reasonable suspicion that the law is being or has been violated. Although the state argues the police legally approached defendant in furtherance of an investigation, it does not argue the officers possessed the requisite reasonable suspicion to justify a mid-level seizure or a Terry stop. Therefore, the only question we address is whether, as the state contends, there was no seizure under the facts of this case.

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Cite This Page — Counsel Stack

Bluebook (online)
783 P.2d 479, 109 N.M. 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-nmctapp-1989.