State v. Nathan

Opinion

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

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellant, 4 v. NO. 31,843

5 NIKKO NATHAN, 6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY 8 John M. Paternoster, District Judge

9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 Francine A. Baca-Chavez, Assistant Attorney General 13 Albuquerque, NM

14 for Appellant

15 Alsup Law Office 16 Gary D. Alsup 17 Clayton, NM

18 for Appellee

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1 MEMORANDUM OPINION 2 HANISEE, Judge. 3 {1} The State appeals the district court’s decision and order granting Defendant’s 4 motion to suppress evidence obtained following a traffic stop near or within Clayton, 5 New Mexico, in Union County. On appeal, the State maintained that the district 6 court’s ruling was unsupported by substantial evidence. Concluding otherwise, we 7 affirm the district court’s determination that the vehicle stop was unsupported by 8 reasonable suspicion. Accordingly, we do not reach the State’s remaining contentions 9 regarding the propriety of the arresting officer’s actions following the stop. 10 BACKGROUND 11 {2} On March 6, 2011, Defendant’s vehicle was pulled over by the town of 12 Clayton’s K-9 certified police officer. The vehicle stop and the minutes preceding it, 13 during which the officer followed Defendant’s vehicle, were recorded by the dash 14 camera located in the officer’s marked police cruiser. The officer testified that he 15 initiated the traffic stop because Defendant failed to maintain his lane of traffic by 16 crossing over the double yellow line. Following the traffic stop, the officer ran his 17 canine around Defendant’s vehicle, while another officer searched Defendant’s 18 person. During the search, the canine alerted to the presence of narcotics in the vehicle 19 and, following a search of the vehicle, methamphetamine was discovered. Defendant

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1 was charged with trafficking by possession with intent to distribute methamphetamine 2 contrary to NMSA 1978, Section 30-31-20(A)(3) (2006). 3 {3} Defendant moved to suppress the evidence obtained during the search, alleging 4 that the stop was a pretext to conduct a narcotics investigation. At the hearing on the 5 motion to suppress, the arresting officer testified that after Defendant failed to 6 maintain his lane of traffic by crossing over the double yellow line, the officer 7 developed a suspicion that Defendant may have been impaired. Instead of initiating 8 a traffic stop immediately, the officer decided to follow the vehicle in an effort to 9 obtain more information to establish probable cause. The officer recalled that 10 Defendant periodically swerved back and forth from the center line to the outer line. 11 The officer then testified that when he engaged his lights, the vehicle failed to stop. 12 The officer stated that Defendant’s vehicle then completely crossed from the 13 southbound lane of traffic into the northbound lane. As a result, the officer sounded 14 his siren, and Defendant eventually brought his vehicle to a stop. 15 {4} After reviewing the vehicle’s dash camera footage, the district court, in its 16 findings of fact, found that Defendant “did not appreciably drive in a suspicious or 17 careless manner until the officer engaged his lights and/or siren.” The district court 18 further found that “[t]he videotape [does not] show such erratic driving as would cause 19 a reasonable officer to conduct a traffic stop.” In its conclusions of law, the district

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1 court ruled that the “arresting officer did not have a reasonable suspicion that the 2 driver of the vehicle was violating the traffic laws of the [s]tate or municipality.” It 3 held that the police officer’s testimony was “inconsistent and not reliably credible” 4 and that the “officer’s determination that the driver was impaired by narcotics is 5 judgmental and arbitrary.” Further, the district court ruled that there “was no objective 6 indicia of impairment.” Thus, the district court suppressed and excluded the evidence 7 seized during the traffic stop from use during trial. The State appeals from this 8 decision. 9 DISCUSSION 10 A. Standard of Review 11 {5} Appellate review of a district court’s decision on a motion to suppress evidence 12 is a mixed question of law and fact. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 13 592, 52 P.3d 964. “[W]e must determine whether the law was correctly applied to the 14 facts, viewing them in a manner most favorable to the prevailing party.” State v. 15 Trudelle, 2007-NMCA-066, ¶ 13, 142 N.M. 18, 162 P.3d 173 (internal quotation 16 marks and citation omitted). Thus, we review the factual findings of the district court 17 for substantial evidence. See id. Substantial evidence is “relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” State v. Gonzales, 19 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alteration, internal quotation

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1 marks, and citation omitted). In reviewing for substantial evidence, “[t]he question is 2 not whether substantial evidence exists to support the opposite result, but rather 3 whether such evidence supports the result reached.” Las Cruces Prof’l Fire Fighters 4 v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. Further, 5 “we will not reweigh the evidence nor substitute our judgment for that of the 6 [factfinder.]” Id. After deferring to the district court’s factual findings, we then review 7 the “constitutional question of whether the search and seizure was reasonable de 8 novo.” Gonzales, 2010-NMCA-023, ¶ 4. 9 {6} Although the State agrees that the appropriate standard of review for a district 10 court’s ruling on a motion to suppress is substantial evidence review, it also appears 11 to argue that we should review the dash camera footage de novo. The State contends 12 that because the “district court solely relied upon the dash cam video” in making a 13 determination on the motion to suppress, this Court is as in as good a position as the 14 district court to review the video and make our own determination as to whether there 15 was reasonable suspicion for the stop. We disagree. The State has overlooked that the 16 district court did not merely rely on the videotape, which the State contends to be 17 documentary evidence, in making its determination. Along with considering the 18 videotape, it is clear from the district court’s findings of fact that it also considered 19 and weighed the arresting officer’s testimony. In fact, the State acknowledges as much

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1 in its brief in chief when it asserts that the “district court discredited [the officer’s] 2 testimony.” This Court has previously recognized that when a district court accepts 3 oral testimony in conjunction with documentary evidence, we review its findings of 4 facts under a substantial evidence standard. See Shearton Dev. Co., v. Town of Chilili 5 Land Grant, 2003-NMCA-120, ¶ 32, 134 N.M. 444, 78 P.3d 525. Accordingly, 6 because the district court relied on both the videotape and the arresting officer’s 7 testimony, we review the factual findings for substantial evidence. 8 B. Reasonable Suspicion 9 {7} “Before a police officer makes a traffic stop, he must have a reasonable 10 suspicion of illegal activity.” State v. Anaya, 2008-NMCA-020, ¶ 6, 143 N.M. 431, 11 176 P.3d 1163. Reasonable suspicion must be based upon specific and articulable 12 facts and the reasonable inferences that can be drawn therefrom. Id. It is a 13 particularized suspicion, based on the totality of the circumstances, that a specific 14 individual has broken, or is currently breaking, the law. State v. Hubble, 2009-NMSC- 15 014, ¶ 8, 146 N.M. 70, 206 P.3d 579. This is an objective test. Id. It is not the arresting 16 officer’s subjective beliefs that govern the validity of the stop, but the evidence known 17 to the officer in the time leading up to the stop. Id. In analyzing reasonable suspicion, 18 we ask whether the facts available to the officer warrant the officer to believe that the 19 appropriate action was undertaken. Id. Thus, we find reasonable suspicion, “if the

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1 officer is aware of specific articulable facts, together with rational inferences from 2 those facts, that, when judged objectively, would lead a reasonable person to believe 3 criminal activity occurred or was occurring.” Id. (internal quotation marks and citation 4 omitted). 5 {8} At the suppression hearing, the arresting officer testified that Defendant 6 committed a traffic violation by crossing the double yellow line and that this 7 occurrence was what drew the officer’s attention to Defendant’s vehicle. The officer 8 recalled that as a result of Defendant failing to maintain his travel lane, crossing the 9 center line multiple times, and periodically swerving within his lane, the officer 10 engaged his lights. Immediately thereafter, Defendant’s vehicle completely crossed 11 from the southbound lane of traffic into the northbound lane. At this point, according 12 to the officer’s testimony, the officer initiated his siren. However, the video footage 13 is not in accord with the officer’s testimony regarding the sequence of events that led 14 up to the traffic stop. In viewing the dash camera footage, we see no indication that 15 Defendant’s vehicle markedly exited the northbound lane until after the officer 16 initiated his siren. Thus, the testimony of the officer and the events as recorded by the 17 dash camera are in conflict. As we have recognized, the district court is entitled to 18 resolve any conflicts in evidence, and we will not reweigh evidence on appeal. See 19 Las Cruces Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12. Accordingly, based on the

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1 footage contained in the video, we determine that there is such evidence that a 2 reasonable mind might accept the findings of the district court that the “videotape [did 3 not] show such erratic driving as would cause a reasonable officer to conduct a traffic 4 stop” and that Defendant “did not appreciably drive in a suspicious or careless manner 5 until the officer engaged his lights and/or siren” to be accurate, thus constituting 6 substantial evidence. 7 {9} With regard to the district court’s legal conclusions, in looking at the totality 8 of the circumstances through an objective lens, there is no indication that the officer 9 had a “particularized suspicion that [the d]efendant was breaking, or had broken the 10 law.” Hubble, 2009-NMSC-014, ¶ 35 (alterations, internal quotation marks, and 11 citation omitted). The specific and articulable facts relied upon by the arresting 12 officer in his testimony are not supported by the recorded documentation. We 13 determine that these events would not lead a reasonable officer to believe that 14 Defendant committed a traffic infraction warranting a vehicle stop. Thus, viewing the 15 facts in the light most favorable to Defendant, we affirm the findings and conclusion, 16 of the district court and agree that the arresting officer had no reasonable suspicion to 17 stop Defendant. 18 {10} Because of our ruling, we do not address the State’s remaining arguments that 19 the officer’s request that Defendant exit the vehicle and the use of a drug dog

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1 expanded the scope of the stop. Nor do we reach the State’s contention that the 2 officer’s frisk of Defendant was justified or the search of Defendant’s pockets was 3 legal. See State v. Jason L., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856 (“[A]n 4 investigatory stop must be supported by reasonable suspicion.”). 5 CONCLUSION 6 {11} For the foregoing reasons, we affirm the findings of the district court. 7 {12} IT IS SO ORDERED.

8 _______________________________ 9 J. MILES HANISEE, Judge

10 WE CONCUR:

11 ___________________________________ 12 RODERICK T. KENNEDY, Chief Judge

13 ___________________________________ 14 LINDA M. VANZI, Judge