State v. Madrid

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 34,763 5 SELINA MADRID, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Stan Whitaker, District Judge

9 Hector H. Balderas, Attorney General 10 Aaron Baca, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Santa Fe, NM 15 Josephine H. Ford, Assistant Public Defender 16 Albuquerque, NM

17 for Appellant 18 MEMORANDUM OPINION 19 VARGAS, Judge.

1 {1} Defendant, Selina Madrid, was convicted, pursuant to a conditional plea, of 2 driving under the influence of intoxicating liquor (DWI). NMSA 1978, § 66-8-102 3 (2010). She reserved her right to appeal the metropolitan court’s denial of her motion 4 to suppress based on pretext. On appeal, Defendant argues the stop was pretextual, 5 that the location of the stop was a de facto sobriety checkpoint, and that the officer 6 impermissibly expanded the scope of the original stop. We do not address Defendant’s 7 arguments regarding the de facto sobriety checkpoint or the expansion of the scope 8 of the stop because she failed to reserve her right to appeal those issues. We affirm the 9 metropolitan court’s decision with regard to pretext. 10 I. BACKGROUND 11 {2} On July 2, 2012, after observing Defendant roll through a stop sign at Oak 12 Street and Tijeras Avenue in Albuquerque, New Mexico without coming to a 13 complete stop, Albuquerque Police Officer John Kelly pulled her over. Prior to 14 approaching her car, Officer Kelly noted nothing out of the ordinary in the distance 15 Defendant traveled before pulling over or the manner in which she parked at the curb. 16 {3} Officer Kelly greeted Defendant and requested her license, insurance, and 17 registration. While he waited for her to produce the requested documents, he 18 explained that he stopped Defendant because, rather than stop at the stop sign, she had 19 “just rolled through it.” Defendant offered a brief explanation, to which Officer Kelly

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1 responded by identifying himself as a member of the DWI unit. He testified that upon 2 making contact with Defendant and requesting her documents, he detected a strong 3 odor of alcohol, at which point he told Defendant, “everyone I’m stopping tonight, 4 I’m checking to make sure. I’m just doing a real quick eye check.” Officer Kelly 5 administered a horizontal gaze nystagmus (HGN) test to Defendant, see generally 6 State v. Torres, 1999-NMSC-010, ¶¶ 35-42, 127 N.M. 20, 976 P.2d 20, and ultimately 7 arrested and charged her with DWI, a stop sign violation, and having no proof of 8 insurance. 9 {4} At a pretrial hearing on Defendant’s motion to suppress the stop on the grounds 10 of pretext, Officer Kelly testified on direct examination about his general approach to 11 stop sign violations, explaining that if a person violated the stop sign but did not have 12 any other violations, he tries to “give them the benefit of the doubt,” by not writing 13 a citation. However, if there was a stop sign violation coupled with no proof of 14 insurance, no license, or expired tags, then he typically issued a citation. He 15 acknowledged, however, that he used his discretion in deciding whether to issue a 16 citation depending on the circumstances. He explained that most people fail to 17 completely stop at the Oak Street and Tijeras Avenue stop sign and that his 18 determination of who to stop depends on the day, the shift he’s working: “If they blow 19 through it, I’ll stop them. If they appear to just barely slow down and have ill-regard

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1 for the stop sign, I’ll definitely stop them. If they slow down and appear to make a 2 pretty good effort at stopping, it’s discretionary I guess. It’s not the same every night; 3 depends on my mood I suppose.” Officer Kelly explained that Defendant did not even 4 attempt to stop at the stop sign. 5 {5} Finally, Officer Kelly testified that the manner in which he conducted the stop 6 of Defendant is generally the same way that he conducts other stops, starting the 7 encounter with a greeting and request for the driver’s license, registration, and 8 insurance. When asked whether he was specifically looking for DWI violations on 9 July 2, 2012, Officer Kelly answered that he was not, explaining that he was “looking 10 for stop sign violations.” Officer Kelly testified that, although he was working DWI 11 saturation patrol on that evening, he was also authorized to enforce traffic laws as 12 well. He noted, however, that rolling through a stop sign could be a “potential 13 indicator” of DWI. 14 {6} On cross-examination, defense counsel questioned Officer Kelly about other 15 citations he had issued, including citations for violations committed at the same 16 location. Defense counsel represented that during an eight-month span, Officer Kelly 17 issued thirty-six citations, eight of which involved violations committed at the Oak 18 Street and Tijeras Avenue stop sign. Of those eight stop sign violations, defense 19 counsel claimed six resulted in DWI arrests. Officer Kelly disagreed with defense

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1 counsel’s claims, responding, “I don’t think that’s accurate at all.” Officer Kelly was 2 unable to recall or otherwise quantify the number of citations he had issued at the Oak 3 Street and Tijeras Avenue stop sign in that eight-month span, but testified he would 4 expect many more stops in an eight-month period than those found by defense 5 counsel. The metropolitan court agreed it would consider the evidence for its weight 6 if defense counsel chose to proceed to introduce the complaints of Officer Kelly’s 7 other stops, but concluded that unless Officer Kelly was allowed to conduct his own 8 search and allowed to review the results, there was no way to verify defense counsel’s 9 representations. Defense counsel did not ask any other questions about or seek to 10 introduce any other evidence of Officer Kelly’s other stops. Other than an 11 approximately one-minute-long video of the initiation of the stop, Officer Kelly’s 12 testimony was the only evidence offered. 13 {7} At the close of the evidence and after the parties had made their arguments, the 14 metropolitan court concluded that Officer Kelly had reasonable suspicion to conduct 15 a traffic stop because he had witnessed Defendant failing to stop at the stop sign. 16 Looking at the totality of the circumstances, the metropolitan court determined that 17 Defendant had not met her burden of showing that there was an unrelated purpose for 18 the stop; it did not make any determination as to whether there would have been 19 reasonable suspicion to support any alleged unrelated purpose. As a result, the

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1 metropolitan court concluded that the stop of Defendant was not a pretextual stop. 2 The court also specifically noted in its analysis of the pretext issue that it did not 3 consider whether Officer Kelly had developed reasonable suspicion of DWI after the 4 stop was initiated. Addressing Defendant’s roadblock argument, the court noted that 5 there was no evidence Officer Kelly stopped any car without the requisite reasonable 6 suspicion. Emphasizing evidence that Officer Kelly did not stop every car, the 7 metropolitan court concluded the evidence was insufficient to “even get[] close to any 8 kind of roadblock analysis.” Following the metropolitan court’s decision, Defendant 9 entered a conditional guilty plea, reserving the right to appeal the “denial of [her] 10 motion to suppress/dismiss for pretext issue.” Defendant filed an on-record appeal in 11 the district court. The district court, in a memorandum opinion, affirmed the 12 metropolitan court’s decision. Defendant appeals. 13 II. STANDARD OF REVIEW 14 {8} “Appellate review of a motion to suppress presents a mixed question of law and 15 fact.” State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. “[W]e 16 first look for substantial evidence to support the trial court’s factual finding, with 17 deference to the [trial] court’s review of the testimony and other evidence[.]” State v. 18 Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861; see State v. Peterson, 19 2014-NMCA-008, ¶ 4, 315 P.3d 354 (“[W]e view the evidence in the light most

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1 favorable to the [trial] court’s decision and draw all inferences and indulge all 2 presumptions in favor of the [trial] court’s ruling.” (internal quotation marks and 3 citation omitted)). We then review de novo the trial court’s application of law to those 4 facts to determine whether the seizure was reasonable. Leyva, 2011-NMSC-009, ¶ 30; 5 Peterson, 2014-NMCA-008, ¶ 4. 6 III. DISCUSSION 7 {9} On appeal, Defendant makes three assertions of error. First, she asserts that the 8 metropolitan court erred in denying her motion to suppress based on pretext. Second, 9 she asserts that the evidence supported a conclusion that Officer Kelly impermissibly 10 used the stop sign in question as a de facto sobriety checkpoint to investigate DWIs. 11 Third, Defendant suggests Officer Kelly improperly expanded the scope of the initial 12 stop. We first address Defendant’s pretext argument, then turn our attention to her 13 remaining arguments. 14 A. Pretextual Stop 15 {10} “[P]retextual traffic stops are not constitutionally reasonable in New Mexico.” 16 State v. Ochoa, 2009-NMCA-002, ¶ 38, 146 N.M. 32, 206 P.3d 143. A pretextual stop 17 is “a detention supportable by reasonable suspicion or probable cause to believe that 18 a traffic offense has occurred, but is executed as a pretense to pursue a ‘hunch,’ a 19 different more serious investigative agenda for which there is no reasonable suspicion

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1 or probable cause.” Id. ¶ 25. Our courts follow a three-step approach in determining 2 whether a pretextual stop has occurred:

3 First, the State has the burden to establish reasonable suspicion to stop 4 the motorist. If the State fails in its burden, the stop is unconstitutional. 5 Second, if the State satisfies its burden, the defendant may still establish 6 that the seizure was unreasonable by proving that the totality of the 7 circumstances indicates the officer had an unrelated motive to stop the 8 motorist that was not supported by reasonable suspicion. If the defendant 9 does not satisfy the burden, the stop is constitutional. Third, if the 10 defendant satisfies the burden, there is a presumption of a pretextual 11 stop, and the State must prove that the totality of the circumstances 12 supports the conclusion that the officer who made the stop would have 13 done so even without the unrelated motive.

14 State v. Gonzales, 2011-NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (citations 15 omitted). 16 {11} Here, the parties do not dispute the fact that Defendant committed a stop sign 17 violation. Officer Kelly testified that he observed Defendant fail to stop at the stop 18 sign and that he pulled her over as a result. These facts are sufficient to support 19 Officer Kelly’s reasonable suspicion to believe Defendant’s driving violated a traffic 20 law, allowing him to stop her for that violation. See NMSA 1978, § 66-7-345(C) 21 (2003) (explaining where drivers approaching a stop intersection are required to stop); 22 NMSA 1978, § 66-7-330(B) (1978) (requiring “every driver of a vehicle approaching 23 a stop intersection indicated by a stop sign” to stop as required by Section 66-7- 24 345(C)); see also State v. Hubble, 2009-NMSC-014, ¶ 35, 146 N.M. 70, 206 P.3d 579

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1 (holding that a reasonable suspicion existed for a traffic stop where an officer 2 observed the defendant violate the turn signal statute). We therefore agree with the 3 metropolitan court’s determination that, upon seeing Defendant fail to stop at the stop 4 sign, Officer Kelly had reasonable suspicion to stop Defendant for a traffic code 5 violation. The State having satisfied its burden in this regard, we move to the second 6 step in our pretext analysis. 7 {12} For this step, Defendant must prove that the totality of the circumstances 8 indicates Officer Kelly had a motive to stop Defendant that was unrelated to the stop 9 sign violation and that was not supported by reasonable suspicion. “The totality of the 10 circumstances includes considerations of the objective reasonableness of an officer’s 11 actions and the subjective intent of the officer—the real reason for the stop.” Ochoa, 12 2009-NMCA-002, ¶ 39. In addition, Ochoa set out a non-exhaustive list of factors that 13 are relevant to the totality of the circumstances:

14 [W]hether the defendant was arrested for and charged with a crime 15 unrelated to the stop; the officer’s compliance or noncompliance with 16 standard police practices; whether the officer was in an unmarked car or 17 was not in uniform; whether patrolling or enforcement of the traffic code 18 were among the officer’s typical employment duties; whether the officer 19 had information, which did not rise to the level of reasonable suspicion 20 or probable cause, relating to another offense; the manner of the stop, 21 including how long the officer trailed the defendant before performing 22 the stop, how long after the alleged suspicion arose or violation was 23 committed the stop was made, how many officers were present for the 24 stop; the conduct, demeanor, and statements of the officer during the 25 stop; the relevant characteristics of the defendant; whether the objective

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1 reason articulated for the stop was necessary for the protection of traffic 2 safety; and the officer’s testimony as to the reason for the stop.

3 Id. ¶ 41. If, after the court considers all these facts, Defendant “has not placed 4 substantial facts in dispute indicating pretext, then the seizure is not pretextual.” Id. 5 ¶ 40. 6 {13} In analyzing the second step, the metropolitan court reviewed the Ochoa factors 7 and concluded that very few of them favored the defense. Instead, the metropolitan 8 court found that Officer Kelly complied with standard practices when he stopped 9 Defendant, stating, “it seems like he was doing what he was supposed to do.” Further, 10 while recognizing that he was a detective, the metropolitan court found that his actions 11 were within the scope of his typical employment duties, as he was working a traffic 12 and DWI saturation patrol. The amount of time Officer Kelly trailed Defendant was 13 also of little assistance to Defendant, as the stop occurred shortly after he saw her run 14 the stop sign, as was the fact that Officer Kelly was the lone officer involved in the 15 stop. Finally, the metropolitan court found that Officer Kelly’s observation of 16 Defendant’s failure to stop at the stop sign was sufficient to give rise to reasonable 17 suspicion for the stop. 18 {14} Recognizing those Ochoa factors that supported Defendant’s pretext argument, 19 the metropolitan court considered that Officer Kelly was in an unmarked car at the 20 time of the stop and Officer Kelly’s statement to Defendant on the video of the stop

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1 that he was giving everyone the HGN test. These factors alone, the metropolitan court 2 concluded, were insufficient to establish a pretextual stop on the part of Officer Kelly. 3 {15} The testimony presented at trial is sufficient to support the metropolitan court’s 4 findings. Even the fact that is most favorable to Defendant—Officer Kelly’s statement 5 that he was giving everyone he stopped that night an HGN test—was mitigated by the 6 video evidence presented at the hearing. The video conclusively showed that Officer 7 Kelly introduced himself, asked for Defendant’s identification, registration, and 8 insurance, explained why he stopped Defendant, and allowed Defendant to offer a 9 short explanation, all prior to identifying himself as part of the DWI unit and 10 administering the HGN. The metropolitan court acknowledged the possibility that 11 Officer Kelly may have developed reasonable suspicion of DWI prior to administering 12 the HGN. Similarly, though Officer Kelly was working as a member of a DWI 13 saturation patrol at the time of the stop, traffic enforcement like the stop sign violation 14 committed by Defendant was within the scope of his duties as part of that patrol. In 15 sum, Defendant never elicited any testimony that Officer Kelly’s presence at the stop 16 sign in question was due to a subjective intent to catch DWI offenders; to the contrary, 17 Officer Kelly’s testimony attributed his presence at the stop sign to his belief that the 18 intersection was dangerous.

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1 {16} To the extent that Defendant asks this Court to draw inferences regarding 2 Officer Kelly’s subjective intent that evening, we decline to do so, as we are required 3 by our standard of review to view the evidence in the light most favorable to the State 4 in this case. See Gonzales, 2011-NMSC-012, ¶ 16 (reviewing factual questions under 5 substantial evidence standard and viewing the evidence in the light most favorable to 6 the prevailing party). Because we defer to the metropolitan court’s findings and view 7 the record in the light most favorable to the State in this case, we reject Defendant’s 8 contention that the metropolitan court erred in finding that the stop was not pretextual. 9 The testimony and evidence adduced at the suppression hearing was sufficient to 10 support findings that all but two of the Ochoa factors weighed in favor of the State. 11 We acknowledge that Officer Kelly’s statement in the video that he was conducting 12 an HGN test on everyone he stopped is troubling. However, without more, the State 13 presented substantial evidence to support the metropolitan court’s conclusion that the 14 totality of circumstances still weighed against finding the stop was pretextual. That, 15 coupled with the metropolitan court’s proper finding that Officer Kelly had reasonable 16 suspicion for the initial traffic stop, leads us to conclude the metropolitan court did not 17 err in denying Defendant’s motion to suppress. 18 {17} Defendant likens this case to State v. Deleon, No. 30,813, 2013 WL 4511939, 19 mem. op. (N.M. Ct. App. Feb. 14, 2013) (non-precedential). In Deleon, the officer in

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1 question conducted a traffic stop after the defendant allegedly made a wide turn 2 leaving a local bar. Id. at *1. The officer testified at the suppression hearing that “he 3 had made stops for minor traffic violations, like the one at issue here, in order to 4 investigate DWIs for which he lacked reasonable suspicion.” Id. The defendant called 5 seven other drivers to testify that, within the past eighteen months, they had each been 6 pulled over for minor traffic violations after leaving the same bar. Id. The officer in 7 that case “provided no separately valid reason for stopping [the d]efendant,” and as 8 a result, we concluded that the stop itself was not supported by reasonable suspicion. 9 Id. at *4. In addition, we concluded that the defense witnesses “established a clear 10 pattern of state police officers patrolling the area around the [b]ar, stopping drivers for 11 minor traffic infractions . . . , first asking the driver whether he or she has been 12 drinking[.]” Id. 13 {18} Defendant suggests that the only difference between this case and Deleon is the 14 lack of witnesses who were willing to testify. Instead, in an attempt to analogize this 15 case to the facts of Deleon, Defendant argues that “the record shows that [Officer 16 Kelly] and many other APD officers habitually used this stop sign [at Oak Street and 17 Tijeras Avenue] as a fishing hole” to stop drivers who fail to stop at the stop sign so 18 that they could investigate for DWI. In support of Defendant’s argument, counsel for 19 Defendant cross-examined Officer Kelly at the suppression hearing about traffic stops

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1 he made in the eight-month period around Defendant’s stop. Officer Kelly admitted 2 that between June 2012 and August 2012, he made sixty-two stops for stop sign 3 violations at the same intersection where he stopped Defendant. Of those sixty-two 4 stops, six resulted in DWI charges. Counsel for Defendant also cross-examined 5 Officer Kelly about his citation history between June 2012 and January 2013, 6 representing that her review of court records discovered thirty-six metropolitan court 7 complaints during that time period. Of those thirty-six cases, defense counsel 8 represented, eight were for stop sign violations; and six of those eight involved DWI 9 charges. When asked to confirm these numbers, Officer Kelly testified that he did not 10 believe those numbers were accurate, explaining that he thought he wrote more traffic 11 violations. Counsel for Defendant did not move the introduction of any of the thirty- 12 six metropolitan court complaints, and those complaints are not part of our record on 13 appeal. 14 {19} We do not find the facts of this case to be analogous to those of Deleon. In 15 Deleon, the defendant presented evidence from seven different witnesses, each of 16 whom had been pulled over by State Police after leaving the same bar. Id. at *3. 17 Employees of the bar testified that State Police officers parked near the bar and waited 18 for drivers to drive away. Id. All but one of the defendant’s seven witnesses testified 19 that they were pulled over for making an illegally wide turn and that the first question

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1 asked by the officer was whether he or she had been drinking. Id. Further, in Deleon, 2 the officer acknowledged during the hearing that it was his practice to conduct traffic 3 stops with the sole intention of investigating for DWI. Id. at *4. Here, Officer Kelly 4 made no such representation. Instead, he repeatedly testified that he chose to monitor 5 that intersection due to its dangerous nature and in order to make drivers aware of the 6 stop sign there. In addition, while the officer in Deleon could not point to a valid 7 reason for the stop in that case, Officer Kelly pointed to the traffic violation and 8 hazard presented by the intersection as justification for the initial stop, stating, “I think 9 it’s a dangerous intersection due to the people coming off the freeway.” The video of 10 Officer Kelly’s initial contact with Defendant further distinguishes this case from 11 Deleon, as Officer Kelly greeted Defendant, asked for documentation, and explained 12 his reasons for pulling her over, rather than beginning his encounter with questions 13 blatantly aimed at a DWI investigation, as the Deleon officer did. 14 {20} Officer Kelly’s admission that six of his sixty-two stop sign traffic stops at Oak 15 Street and Tijeras Avenue resulted in DWI charges, without more, is insufficient to 16 establish a pretextual stop. We do not agree with Defendant that she has “established 17 a clear pattern” of police behavior that warrants reversal on the pretext issue.

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1 B. Defendant Did Not Reserve Her De Facto Sobriety Checkpoint or Scope 2 of the Stop Arguments

3 {21} In her conditional guilty plea, Defendant reserved her right to appeal one issue: 4 “[the] denial of Defendant’s motion to suppress/dismiss for pretext issue.” Defendant 5 undoubtedly preserved her argument that Officer Kelly was operating a de facto 6 sobriety checkpoint by arguing the issue before the trial court. However, preservation 7 and reservation are not equivalent. See State v. Handa, 1995-NMCA-042, ¶ 11, 120 8 N.M. 38, 897 P.2d 225 (noting “there is a difference between ‘preserving’ and 9 ‘reserving’ an issue for appeal” and explaining that preservation occurs by invoking 10 a ruling on the question, and reservation occurs by specifying the issue as a condition 11 to a guilty plea). To reserve an issue, it must be “obvious to the trial court and the state 12 that [the] defendant intends to seek appellate review of the issue and neither the trial 13 court nor the state indicates opposition to the plea under the circumstances.” State v. 14 Sanchez, 1996-NMCA-089, ¶ 13, 122 N.M. 280, 923 P.2d 1165; see State v. Hodge, 15 1994-NMSC-087, ¶ 27, 118 N.M. 410, 882 P.2d 1 (concluding a valid conditional 16 plea had been entered where the defendant reserved the right to appeal by making 17 clear, on the record, her intention to reserve the issue for appeal and where “[t]he court 18 and the prosecution each acknowledged, without objection, the conditional nature of 19 her plea”).

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1 {22} It is clear from the record that everyone involved understood that Defendant 2 intended to reserve the pretext issue in her conditional plea. It is not clear, however, 3 that she reserved her right to appeal the roadblock argument. The district court refused 4 to address the merits of Defendant’s de facto roadblock argument on appeal based on 5 Defendant’s failure to reserve her right to appeal that issue. Despite being alerted to 6 this possible defect through the district court’s opinion, Defendant’s brief does 7 nothing to address how she reserved her right to appeal the issue. Defendant cites to 8 nothing in the record to suggest that either the trial court or the State knew of 9 Defendant’s intention to seek appellate review of the de facto roadblock issue. She 10 similarly proffers no argument as to why she is entitled to raise the issue on appeal 11 and cites to no authority regarding reservation of right to appeal. Appellate courts are 12 under no obligation to review unclear or undeveloped arguments. See State v. Guerra, 13 2012-NMSC-014, ¶ 21, 278 P.3d 1031; see also State v. Fuentes, 2010-NMCA-027, 14 ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not review unclear or 15 undeveloped arguments [that] require us to guess at what [a party’s] arguments might 16 be”). We therefore decline to address the merits of her de facto roadblock argument. 17 {23} With regard Defendant’s argument that Officer Kelly impermissibly expanded 18 the scope of the traffic stop, Defendant’s brief focuses solely on the merits of that 19 argument and an explanation of how she preserved the argument. See Rule 12-216(A)

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1 NMRA (2014, recompiled and amended as Rule 12-321 NMRA, effective Dec. 31, 2 2016) (“To preserve a question for review, it must appear that a ruling or decision by 3 the [trial] court was fairly invoked[.]”). We need not determine whether Defendant 4 preserved her argument, however, because it is clear from the record that Defendant 5 did not reserve her right to appeal it, just as she did not reserve her roadblock claim. 6 Even if Defendant is correct in her assertion that she preserved her argument, we still 7 do not address it on appeal. Defendant cites to no authority to explain why 8 preservation alone—without having reserved the right to appellate review—is 9 sufficient to trigger our review. Again, she offers no argument as to why she is entitled 10 to raise the issue on appeal despite her failure to reserve the right to appeal it. As 11 Defendant failed to reserve her right to appeal the scope of the search, we decline to 12 address the merits of that argument. 13 III. CONCLUSION 14 {24} We affirm the metropolitan court’s decision. 15 {25} IT IS SO ORDERED.

16 17 JULIE J. VARGAS, Judge

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1 WE CONCUR:

2 3 LINDA M. VANZI, Chief Judge

4 5 MICHAEL E. VIGIL, Judge