State v. Olson

2011 NMCA 56, 2011 NMCA 056, 258 P.3d 1140, 150 N.M. 348
CourtNew Mexico Court of Appeals
DecidedApril 8, 2011
Docket29,010; Docket 32,976
StatusPublished
Cited by4 cases

This text of 2011 NMCA 56 (State v. Olson) 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. Olson, 2011 NMCA 56, 2011 NMCA 056, 258 P.3d 1140, 150 N.M. 348 (N.M. Ct. App. 2011).

Opinion

OPINION

SUTIN, Judge.

{1} Defendant Gunnar Olson pleaded no contest to possession of a controlled substance (cocaine). He reserved his right to appeal from the judgment convicting him of that offense upon a “guilty plea” in order to attack the court’s denial of his motion to suppress evidence. He now appeals from the judgment and asks this Court to reverse the district court’s denial of his motion to suppress on the grounds that the search and seizure of his person and property violated the United States and New Mexico Constitutions. We reverse.

BACKGROUND

{2} As factual background, we have only the testimony offered by Officer Trey Eeonomidy, the officer who conducted the search and seizure of Defendant. On an evening in December 2007, just prior to 12:30 a.m., Officer Eeonomidy was parked in his patrol ear in an alley behind a convenience store near the intersection of University Boulevard and Central Avenue in Albuquerque, New Mexico. Defendant drove his vehicle into the alley, then pulled back out and continued on University Boulevard. Officer Eeonomidy found this behavior suspicious “[bjecause the vehicle pulls in the alley, doesn’t conduct any business in the alley, kind of sees me in my marked police unit, kind of gives me the impression like, oh, no, the police, then backs out and then heads back southbound.” Because of the suspicious behavior, the officer pulled out of the alley to follow Defendant. Upon seeing a “significantly expired” temporary tag, he conducted a traffic stop.

{3} Officer Eeonomidy approached Defendant’s vehicle alone because he was not patrolling with a partner. Defendant had already begun “digging for paperwork” when the officer approached, and Defendant did not make eye contact with him. The officer recognized right away that Defendant had a passenger known to the officer to be a prostitute. The officer had previous law enforcement interactions with the prostitute and knew the passenger by name. “It was a known male[-] dressed[-] female prostitute[.]”

{4} “[P]retty much immediately” after the stop, the officer requested Defendant to exit the car. Requiring the driver to exit the vehicle was the officer’s typical practice where there was a known prostitute involved, so that the officer could interview the driver and passenger separately and see how they knew one another and what business they had with each other that evening. After Defendant was out of the car, the officer asked him who his passenger was, “at which point he told me it was him.” Defendant also told the officer that the transvestite, “Emily,” was a friend he had known for about a year and was a “working girl,” but was not working that evening and that he was “just giving her a ride.” At this point, the officer was investigating possible criminal solicitation of prostitution. The officer asked if Defendant had any weapons or anything illegal on his person because he saw that Defendant was holding a fanny pack like a purse. In response, Defendant responded that he did not “believe in violence.” The officer explained to Defendant that his temporary tag was “significantly expired” and asked what Defendant was doing in the alley. Defendant replied that he saw the officer in the alley and he “didn’t know if there was something going on, so he backed out.”

{5} For his safety, the officer had Defendant place the fanny pack on the hood while he continued the interview. He asked Defendant if he had a driver’s license on him. Defendant “went to the fanny pack” as though he was possibly going to retrieve his identification from it, the officer asked Defendant if his identification was in the fanny pack, and Defendant said it was. Still concerned that Defendant might have had “a gun or knives or any kind of edge weapon” in the fanny pack, for safety reasons the officer asked Defendant if he could “take a look to make sure there [was] no weapon in the fanny pack before [Defendant] started grabbing things out of it[.]” Defendant consented to the officer looking in the fanny pack for weapons.

{6} The officer looked in the fanny pack and saw “two glass crack pipes and one metal crack pipe in one of the far compartments that was in the back zipper that would be closest to your body.” When questioned by the officer about the pipes, Defendant admitted to using the pipes to smoke cocaine. Defendant was placed under arrest, and the officer asked him where his cocaine was. Defendant said it was in his front pocket. The officer found the cocaine in a container pulled from Defendant’s front pocket.

{7} Defendant moved to suppress all evidence obtained as a result of the search and seizure. In his motion, Defendant argued that the officer did not have reasonable, articulable suspicion of any criminal activity on his part beyond a traffic violation and did not have authority to ask him to step out of the vehicle. Defendant further argued that the officer did not have probable cause or reasonable suspicion of any criminal activity to support a warrantless search or seizure of the fanny pack. He also argued that his consent to search was not voluntary.

{8} The district court denied Defendant’s motion to suppress. In sum, the court’s reasoning was that it found nothing in the evidence that would cause it to conclude that the officer’s actions were unreasonable in any way. The court further found that Defendant was not coerced or threatened in any way and that his consent to search the fanny pack was given knowingly, voluntarily, and intelligently. After entry of his plea, Defendant reserved his right to appeal on the ground that the denial of his suppression motion constituted reversible error.

{9} Defendant contends that his rights under the United States and New Mexico Constitutions were violated by the warrant-less search of his person and property and without a valid exception to the warrant requirement. In support of this contention, Defendant argues that the officer illegally expanded the scope of the traffic stop, without reasonable suspicion or concern for safety. Defendant also argues that consent to search his fanny pack was not voluntarily given and that his consent was not purged of the Fourth Amendment violation.

DISCUSSION

Standard of Review and Related Rules

{10} A motion to suppress evidence based on an alleged unlawful detention involves a mixed question of fact and law. Our review procedure is set out in State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861, State v. Funderburg, 2008-NMSC-026, ¶10, 144 N.M. 37, 183 P.3d 922, and State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-19, 134 N.M. 566, 81 P.3d 19. In the present case, we review de novo whether the officer’s actions were objectively reasonable; this includes addressing whether reasonable suspicion or safety concerns existed to support the officer’s questioning and continuing detention on matters unrelated to the reasons for the traffic stop. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861; Vandenberg, 2003-NMSC-030, ¶ 19, 134 N.M. 566, 81 P.3d 19. We look at the totality of circumstances. Leyva, 2011-NMSC-009, ¶¶ 30, 59, 149 N.M. 435, 250 P.3d 861; Vandenberg, 2003-NMSC-030, ¶19, 134 N.M. 566, 81 P.3d 19.

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Related

State v. Olson
2012 NMSC 35 (New Mexico Supreme Court, 2012)
State v. Raber
New Mexico Court of Appeals, 2011
State v. Ayala
New Mexico Court of Appeals, 2011
State v. Olson
258 P.3d 1140 (New Mexico Court of Appeals, 2011)

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Bluebook (online)
2011 NMCA 56, 2011 NMCA 056, 258 P.3d 1140, 150 N.M. 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olson-nmctapp-2011.