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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 28,405
10 FERNANDO MURIEL,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General 15 Anita Carlson, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 Will O’Connell, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 CASTILLO, Judge. 1 In this appeal, Defendant appeals on two grounds. First we consider whether
2 the actions of the investigating officers elevated an investigatory detention to a de
3 facto arrest. Because we conclude that the officers acted reasonably to ensure their
4 own safety, we affirm the district court’s denial of Defendant’s motion to suppress the
5 evidence that was discovered during the investigation. As to Defendant’s second
6 claim of error, we hold that there was no violation of Defendant’s right to a speedy
7 trial and affirm on that issue, too.
8 I. BACKGROUND
9 On February 5, 2006, security guards at the Sunland Park Casino notified the
10 police that they had observed two men in the casino with a concealed weapon. NMSA
11 1978, Section 30-7-3(A) (1999) (amended 2007), makes it unlawful to carry “a
12 firearm in an establishment licensed to dispense alcoholic beverages.” During the
13 time it took for two police officers to arrive at the casino, Defendant and his brother
14 left the casino and got into a car. The security guards directed the officers to that
15 vehicle, and the officers engaged their emergency lights and stopped the car. Drawing
16 their weapons, the officers ordered the two men out of the car and onto the ground.
17 Defendant exited from the passenger side of the vehicle and, as he bent over to lie
18 down, one of the officers saw a bulge in Defendant’s shirt. After Defendant was on
19 the ground, the officers discovered a knife on Defendant’s belt, as well as cocaine
2 1 lying on the pavement between Defendant and the passenger side door of the vehicle.
2 On February 6, 2006, Defendant was charged in magistrate court with one count
3 of possession of a controlled substance and one count of unlawful carrying of a
4 concealed weapon. On February 24, 2006, the State filed identical charges in district
5 court and obtained a grand jury indictment on June 22, 2006. The magistrate court
6 charges were dismissed on June 23, 2006. After a period of delay, which we will
7 detail in subsequent paragraphs, Defendant was arraigned on January 16, 2007. The
8 case proceeded toward a May 2, 2007 trial date. On April 27, 2007, Defendant filed
9 a motion to suppress the drug evidence, which the district court denied.
10 The case was reset for trial on July 2, 2007, and again for December 11, 2007.
11 On November 30, 2007, Defendant filed a motion to dismiss, arguing that the pretrial
12 delay violated his right to a speedy trial. The district court denied Defendant’s
13 motion. On December 11, 2007, Defendant entered into a conditional plea agreement.
14 II. DISCUSSION
15 Defendant makes two arguments on appeal: (1) the district court improperly
16 denied the motion to suppress the evidence of cocaine and (2) the district court
17 improperly denied the motion to dismiss for speedy trial violations. We address each
18 argument in turn.
3 1 A. Motion to Suppress
2 On appeal, Defendant argues that the officers’ actions were so unreasonable as
3 to elevate the investigatory stop into a de facto arrest and that because the officers
4 lacked probable cause to arrest, the evidence gained as a result of their actions should
5 have been suppressed. The district court, in response to the same argument, denied
6 Defendant’s motion to suppress because it found that the officers had reasonable
7 suspicion that Defendant had been carrying a firearm in a liquor establishment and
8 that the officers were reasonably concerned for their safety. “When reviewing a ruling
9 on a motion to suppress, we observe the distinction between factual determinations
10 which are subject to a substantial evidence standard of review and application of law
11 to the facts[,] which is subject to de novo review.” State v. Pacheco, 2008-NMCA-
12 131, ¶ 3, 145 N.M. 40, 193 P.3d 587 (alteration in original) (internal quotation marks
13 and citation omitted).
14 “When a detention exceeds the boundaries of a permissible investigatory stop,
15 it becomes a de facto arrest requiring probable cause.” State v. Flores, 1996-NMCA-
16 059, ¶ 15, 122 N.M. 84, 920 P.2d 1038. To determine whether probable cause was
17 required by a particular set of circumstances, we evaluate three factors: the length of
18 the detention, the place of detention, and the restriction on the defendant’s freedom
19 of movement. Id. “The ultimate question of whether an arrest was made is whether
4 1 the officers’ actions . . . were reasonable under the circumstances.” State v. Lovato,
2 112 N.M. 517, 522, 817 P.2d 251, 256 (Ct. App. 1991).
3 Defendant does not appear to argue that the length or place of his detention
4 were unreasonable. Defendant focuses on the final factor and argues that the officers’
5 drawn weapons, together with their orders for Defendant to exit the vehicle and lie on
6 the pavement, “exceeded the force and degree of restraint necessary in an
7 investigatory detention under the circumstances.” The district court appears to have
8 found the force exerted was reasonable under the circumstances, and we agree. When
9 the officers arrived on the scene, they had reliable information that an occupant of the
10 car was possibly in possession of a concealed weapon. Further, the casino security
11 guards—the sources of the officers’ information—identified Defendant as the suspect.
12 Officers approaching occupied vehicles are faced with heightened danger and
13 uncertainty. See id. (noting that the United States Supreme Court has “recognized the
14 inordinate risks police take when they approach cars with persons seated in them[] and
15 approved the practice of requiring the persons to get out of the car and be subject to
16 a protective frisk even in the absence of individualized suspicion”). In the present
17 case, not only were the officers approaching an occupied car, but their investigation
18 was based on a tip that at least one of the occupants was carrying a concealed weapon.
19 Defendant contends that a frisk or a pat down would have been the only
5 1 acceptable level of force. Such a limitation, however, under these circumstances,
2 would have required the officers to approach the car that they suspected contained at
3 least one armed person without the assurance that the person was unable to reach any
4 weapons. Thus, we are satisfied that “the level of intrusion under these circumstances
5 was not inappropriate in view of the level of danger the officers reasonably could
6 assume to exist.” Id.
7 Defendant also appears to argue that the level of force employed by the officers
8 was excessive because they were investigating whether Section 30-7-3 had been
9 broken in the past. Specifically, Defendant contends that because he was no longer
10 in the casino at the time that the officers stopped him, he could not have been violating
11 the law against carrying a concealed firearm in a liquor establishment. As a result,
12 Defendant posits that the officers were justified in investigating whether Defendant
13 had a firearm, but that “they were not justified in using the excessive force they
14 employed.” We are unpersuaded. There is no dispute that based on the facts known
15 to the officers, they had reasonable suspicion to believe that at least one of the
16 occupants of the vehicle was armed. See State v. Robbs, 2006-NMCA-061, ¶ 26, 139
17 N.M. 569, 136 P.3d 570 (“[R]easonable suspicion can arise from wholly lawful
18 conduct.” (internal quotation marks and citation omitted)). As a result, as we have
19 explained, the officers’ actions in requiring the occupants to exit the vehicle and lie
6 1 on the ground were reasonable safety precautions.
2 In addition, Defendant attempts to distinguish the facts in the present case from
3 those in Lovato. In Lovato, police officers received a dispatch regarding a drive-by
4 shooting in the area, and the dispatch provided a description of the car. Lovato, 112
5 N.M. at 518, 817 P.2d at 252. When the officers saw a car matching the description,
6 they stopped it and required the five occupants of the vehicle to lace their fingers
7 behind their necks. Id. When backup arrived, each occupant of the vehicle was made
8 to exit, one at a time, through the driver’s door and walk backwards toward the rear
9 of the car. Id. The officers had their guns drawn during this procedure. Id. This
10 Court held that “the intrusive nature of the encounter did not, as a matter of law, turn
11 the investigative stop in this case into an arrest.” Id. at 522, 817 P.2d at 256.
12 By way of distinction, Defendant points out that in Lovato, the officers only
13 frisked the suspects and did not force them to lie down on the pavement. In addition,
14 Defendant observes that the officers in Lovato had information that weapons had
15 actually been used. To address Defendant’s arguments, we turn to the facts in State
16 v. Jimmy R., 1997-NMCA-107, 124 N.M. 45, 946 P.2d 648. In Jimmy R., a police
17 officer responded to a shots-fired call, and when he arrived in the area of the incident,
18 he saw three juveniles. Id. ¶ 2. On seeing the officer, the juveniles started to walk
19 away, but the officer “drew his gun, ordered the three to the ground, handcuffed them,
7 1 and searched them.” Id. This Court held that “the officer had reasonable suspicion
2 that the juveniles might have a gun or guns, based on the concerned citizen’s report,
3 and reasonably subjected them to a limited search to protect his own safety.” Id. ¶ 3.
4 Just as in Jimmy R., the officers in the present case conducted a limited search in
5 response to a reliable tip that at least one of the particular suspects was armed.
6 Although shots had already been fired in both Lovato and Jimmy R., police officers
7 are not required to “await the glint of steel” before taking reasonable steps to ensure
8 their own safety. State v. Cobbs, 103 N.M. 623, 630, 711 P.2d 900, 907 (Ct. App.
9 1985) (internal quotation marks and citation omitted).
10 Because Defendant does not dispute that the officers had reasonable suspicion
11 to initially stop the vehicle and because the officers’ subsequent actions did not
12 elevate the stop to a de facto arrest, we affirm the district court’s denial of Defendant’s
13 motion to suppress. We now turn to Defendant’s arguments regarding the violation
14 of his right to a speedy trial.
15 B. Speedy Trial
16 In order to determine whether a defendant’s right to a speedy trial has been
17 violated, we evaluate the length of the delay, the reasons for the delay, the defendant’s
18 assertion of the right to a speedy trial, and the prejudice to the defendant. State v.
19 Garza, 2009-NMSC-038, ¶ 13, ___ N.M. ___, ___ P.3d ___ . “When reviewing a
8 1 district court’s denial of a motion to dismiss on speedy trial grounds, we give
2 deference to the court’s factual findings. Weighing and balancing the . . . factors is
3 a legal determination that we review de novo.” State v. Maddox, 2008-NMSC-062,
4 ¶ 8, 145 N.M. 242, 195 P.3d 1254 (citation omitted). We begin by evaluating the
5 length of the delay.
6 1. Length of Delay
7 The length of the delay is a threshold determination, and a sufficiently lengthy
8 delay triggers analysis of the four Barker factors. Garza, 2009-NMSC-038, ¶ 21. Our
9 Supreme Court recently adjusted the standard for determining when a period of delay
10 triggers the analysis. Id. ¶ 48. These new guidelines apply to those motions to
11 dismiss that were filed after August 13, 2007. Id. ¶ 50. As Defendant’s motion to
12 dismiss was filed on November 30, 2007, we apply the new guidelines set forth in
13 Garza. Accordingly, further inquiry is triggered by a delay of twelve months in
14 simple case, a delay of fifteen months in a case of intermediate complexity, and a
15 delay of eighteen months in a complex case. Id. ¶ 48.
16 Defendant argues that his case is simple and that the speedy trial right attached
17 from the date of his arrest. Thus, by Defendant’s calculation, the delay was twenty-
18 two months, which exceeds the twelve-month standard for a simple case. The district
19 court agreed with Defendant that this is a simple case and considered the delay to be
9 1 presumptively prejudicial at nine months—the threshold previously established for
2 simple cases. See Maddox, 2008-NMSC-062, ¶ 9 (identifying the threshold
3 presumptively prejudicial delay as nine months in simple cases). The State contends
4 that, pursuant to State v. Ross, 1999-NMCA-134, ¶ 12, 128 N.M. 222, 991 P.2d 507,
5 the right attached not on the date of arrest but on the date that felony charges were
6 filed in the district court—February 24, 2006. As a result, the State maintains that the
7 delay was twenty-one months and two weeks. We do not resolve these differences
8 because the calculation of the delay requires the analysis of the remaining factors
9 irrespective of whether the delay is twenty-one and a half or twenty-two months.
10 State v. Marquez, 2001-NMCA-062, ¶ 10, 130 N.M. 651, 29 P.3d 1052 (noting that
11 the distinction between sixteen and eighteen months is “without significance, in that
12 either duration of time is significantly well beyond the presumptively prejudicial time
13 period of nine months”).
14 The State also presents an argument that Defendant improperly characterized
15 this case as “extremely simple.” Because the State does not challenge the district
16 court’s determination that the case is best categorized as simple for the purposes of
17 triggering the remainder of the speedy trial analysis, we do not consider a finer
18 distinction between “simple” and “extremely simple.”
19 Length of delay is also one of the four Barker factors. In this case, the total
10 1 delay is between twenty-one and one-half and twenty-two months. For purposes of
2 this opinion, we will round it off to twenty-two months. The time for resolution of
3 this case extended ten months past the standard of twelve months—the time allowed
4 for simple cases as set out in Garza. 2009-NMSC-038, ¶¶ 48, 50. Although we do
5 not view this period as extraordinary, it is substantially more than the bare minimum
6 described in Garza. Id. ¶ 24 (stating that “the greater the delay the more heavily it
7 will potentially weigh against the [s]tate”). Accordingly, this factor weighs in
8 Defendant’s favor, but not heavily. See id.
9 2. Reasons for Delay
10 In Garza, our Supreme Court summarized the three types of delay and the
11 appropriate allocation of responsibility for that delay. 2009-NMSC-038, ¶¶ 25-27.
12 “[O]fficial bad faith in causing delay will be weighed heavily against the
13 government.” Id. ¶ 25 (internal quotation marks and citation omitted). Negligent or
14 administrative delay “should be weighted less heavily but nevertheless should be
15 considered since the ultimate responsibility for such circumstances must rest with the
16 government rather than with the defendant.” Id. ¶ 26 (internal quotation marks and
17 citation omitted). Finally, valid reasons in causing a delay “serve to justify
18 appropriate delay.” Id. ¶ 27 (internal quotation marks and citation omitted). The time
19 period during which a case is moving toward trial with customary promptness would
11 1 be included in this category and would be weighed neutrally between the parties.
2 Maddox, 2008-NMSC-062, ¶ 27 (weighing the period in which a case proceeded
3 “with customary promptness” against neither party); see Garza, 2009-NMSC-038, ¶
4 27. In order to best analyze the reasons for the delays in the present case, we divide
5 the twenty-two month delay into segments.
6 The first period of time is between Defendant’s arrest on February 5, 2006, and
7 the first scheduled arraignment on July 24, 2006. Although Defendant includes this
8 time period in the calculation of the twenty-two month delay, he did not argue below
9 nor does he argue on appeal how this period of time should be allocated. Instead,
10 Defendant focuses on his premise that the State needed to physically bring him to
11 court for arraignment, an argument we address later in this opinion.
12 The State contends that the activities during this period of time included plea
13 negotiations and obtaining a grand jury indictment. According to the State, these
14 activities were conducted with reasonable diligence and are valid reasons for delay.
15 Although the State does not separate out the time from the indictment on June 22,
16 2006, to the first scheduled arraignment on July 24, 2006, the State points out that the
17 setting scheduled for just seventeen days after indictment “could not have been much
18 faster.” In its letter decision, the district court observed that Defendant did not appear
19 on July 24, but the court made no additional specific findings for this period of time.
12 1 Based on this record and the arguments of the parties, we conclude that from arrest to
2 the first scheduled arraignment, this case was moving toward trial with customary
3 promptness. Accordingly, we weigh this period of time neutrally between the parties.
4 See Maddox, 2008-NMSC-062, ¶ 27.
5 On July 24, 2006, Defendant failed to appear in district court to plea to the
6 charges in the grand jury indictment. The time from that date until he finally appeared
7 on January 16, 2007, weighs against Defendant. During this period of slightly less
8 than six months, the district court issued an additional criminal summons for a hearing
9 on August 21, 2006, a bench warrant, an order to show cause and notice of forfeiture
10 of bond, and an order entering default judgment on the bond. Each of these notices
11 were sent to the address on file for Defendant. Defendant argues that the State had a
12 responsibility to “bring [him] to court during this time period.” Because it is clear that
13 notice of the proceedings were sent to the address that Defendant acknowledges is his
14 and because Defendant does not claim that he did not receive notice, we understand
15 Defendant to be arguing that the State is required to physically bring a defendant into
16 court for arraignment. We disagree.
17 Defendant’s sole authority for this proposition is Marquez, 2001-NMCA-062.
18 In Marquez, the defendant was indicted on May 7, 1998, and a warrant was issued for
19 his arrest. Id. ¶ 15. The state, however, did not serve the warrant until July 3, 1998,
13 1 ten days before the scheduled arraignment. Id. This Court weighed the period
2 between indictment and arraignment heavily against the State because “[t]he State has
3 a constitutional duty to make a diligent, good-faith effort to bring [the d]efendant to
4 trial” and, in that case, we “fail[ed] to ascertain that this duty was honored.” Id. In
5 Marquez, the state’s bureaucratic indifference resulted in the delay.
6 We see no indifference to duty in the present case. After the State obtained a
7 grand jury indictment on June 22, 2006, a criminal summons was immediately issued
8 to Defendant’s undisputed address, requiring Defendant to appear on July 10, 2006.
9 Defendant did not appear. A second criminal summons was sent on July 11, 2006, to
10 the same address, requiring Defendant to appear on July 24, 2006. Defendant failed
11 to appear on that date as well, and the district court issued a bench warrant. A third
12 criminal summons was issued on August 1, 2006, requiring Defendant’s presence in
13 court on August 21, 2006, and again, Defendant failed to appear. This record
14 demonstrates repeated good-faith efforts by the State to secure Defendant’s presence
15 for arraignment. Thus, we need not conclude, as did the Marquez Court, that this
16 period between indictment and arraignment weighs against the State. Defendant did
17 not respond to numerous summonses and does not claim that he did not receive the
18 documents. As a result, his arraignment was delayed by almost six months.
19 Accordingly, this approximate six-month period of time weighs against Defendant.
14 1 Between January 16, 2007, and April 27, 2007, the case was again proceeding
2 with customary promptness. As we have stated, such periods weigh against neither
3 party. See Maddox, 2008-NMSC-062, ¶ 27. Trial had been set for May 2, 2007, and
4 five days before trial, on April 27, 2007, Defendant filed a motion to suppress the
5 cocaine found after the officers ordered him out of the car. The approximate two-
6 month delay between that date and the date on which the motion was denied, June 21,
7 2007, is attributable to Defendant. See State v. O’Neal, 2009-NMCA-020, ¶ 21, 145
8 N.M. 604, 203 P.3d 135 (filed 2008) (weighing the time attributable to hearing the
9 defendant’s motions against the defendant).
10 Next, we consider the period between June 21, 2007, and the filing of
11 Defendant’s motion to dismiss on November 30, 2007. The State attributes this period
12 of delay to scheduling difficulties, which we consider to be negligent delay and
13 slightly weighed against the State. See Garza, 2009-NMSC-038, ¶ 26 (identifying
14 negligence and overcrowded courts as “more neutral” reasons for delay and determining
15 that such delay should be “weighted less heavily” than intentional delay) (internal
16 quotation marks and citation omitted). Finally, the period between the November 30,
17 2007, filing of the motion to dismiss and Defendant’s guilty plea on December 10,
18 2007, is attributable to Defendant’s motion. Accordingly, this period weighs against
19 Defendant. See O’Neal, 2009-NMCA-020, ¶ 21.
15 1 We summarize. Approximately eight months of delay are attributable to
2 Defendant, five months weigh slightly against the State, and almost nine months
3 weigh neutrally. Consequently, this factor weighs slightly against Defendant.
4 3. Assertion of the Right
5 “[T]he defendant’s assertion of or failure to assert his right to a speedy trial is
6 one of the factors to be considered in an inquiry into the deprivation of the right.”
7 Garza, 2009-NMSC-038, ¶ 31 (internal quotation marks and citation omitted). In
8 order to evaluate Defendant’s assertion of the right, we consider the timing of the
9 assertion as well as the manner in which the right was asserted. Id. ¶ 32. Defendants
10 made only one assertion of the right to a speedy trial, which took the form of a motion
11 to dismiss filed on November 30, 2007—eleven days before trial. No alternative
12 motion for an immediate trial accompanied Defendant’s motion to dismiss. See State
13 v. Ortiz-Burciaga, 1999-NMCA-146, ¶ 35, 128 N.M. 382, 993 P.2d 96 (according
14 little weight to the defendant’s assertion of the right to a speedy trial because “most
15 of the delay had already passed and he moved for dismissal rather than for a prompt
16 trial”).
17 In addition, Defendant appears to have acquiesced to the delay. Cf. Garza,
18 2009-NMSC-038, ¶ 34 (weighing this factor in the defendant’s favor even though the
19 assertion “was not especially vigorous” because the assertion was not mitigated “by
16 1 any apparent acquiescence to the delay”). Much of the delay—approximately eight
2 months—is attributable to Defendant’s failure to appear and to his last-minute filing
3 of a motion to suppress. In addition, Defendant took no position on the State’s two
4 requests for extensions of time. Thus, the record indicates that Defendant did not
5 assert the right to a speedy trial until over twenty-one months had passed and that he
6 either caused the delay or permitted further delay without objection. Consequently,
7 this factor weighs against Defendant. See O’Neal, 2009-NMCA-020, ¶ 22 (“[O]ne
8 might reasonably conclude that [the d]efendant was either unconcerned about delay
9 or expected to take advantage of the delay in which he had acquiesced.”).
10 4. Prejudice
11 We consider three types of prejudice resulting from pretrial delay: oppressive
12 pretrial incarceration, the anxiety and concern of the accused, and impairment of the
13 defense. See Garza, 2009-NMSC-038, ¶ 35. Defendant does not argue that he
14 suffered undue pretrial incarceration or that his defense was impaired by the delay.
15 Instead, Defendant focuses on the conditions of his bond, which imposed restrictions
16 on his liberty and required him to avoid contact with his brother, who was a potential
17 witness in the case. Defendant has not established that the bond restrictions were out
18 of the ordinary—there is no indication in the record that the prohibition against
19 contact with his brother is more than a standard restriction on “contact with the
17 1 victim(s) or any potential witnesses.” As a result, Defendant has not satisfied his
2 burden to demonstrate actual prejudice. See id. ¶ 37 (holding that two hours of
3 pretrial incarceration combined with normal bond restrictions did not constitute a
4 showing of cognizable prejudice).
5 Defendant argues that because the length of the delay is presumptively
6 prejudicial, we must presume that the prejudice factor is satisfied unless the State
7 demonstrates otherwise. The Garza Court recently rejected this argument: “[W]e
8 abolish the presumption that a defendant’s right to a speedy trial has been violated
9 based solely on the threshold determination that the length of delay is ‘presumptively
10 prejudicial’ [and] hold instead that a ‘presumptively prejudicial’ length of delay is
11 simply a triggering mechanism[.]” Id. ¶ 21. According to Garza, the length of the
12 delay is to be considered as one of four factors—“none of which alone are sufficient
13 to find a violation of the right.” Id. ¶ 23. A defendant must show particularized
14 prejudice unless “the length of delay and the reasons for the delay weigh heavily in
15 [the] defendant’s favor and [the] defendant has asserted his right and not acquiesced
16 to the delay[.]” Id. ¶ 39. Thus, Defedant was required to show particularized
17 prejudice in this case and has failed to do so.
18 5. Balancing the Factors
19 Although the length of the delay weighs in Defendant’s favor, three factors
18 1 weigh against Defendant. Of the twenty-two months, only five months weigh slightly
2 against the State. Further, Defendant made no meaningful assertion of the right to a
3 speedy trial, and he demonstrated no cognizable prejudice. Accordingly, we conclude
4 that Defendant’s right to a speedy trial was not violated. See id. ¶ 40 (determining that
5 there was no speedy trial violation because the defendant “failed to show prejudice,
6 and the other factors [did] not weigh heavily in [his] favor”).
7 III. CONCLUSION
8 We affirm the district court.
9 IT IS SO ORDERED.
10 ________________________________ 11 CELIA FOY CASTILLO, Judge
12 WE CONCUR:
13 ________________________________ 14 JONATHAN B. SUTIN, Judge
15 ________________________________ 16 TIMOTHY L. GARCIA, Judge