1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: __________________
3 Filing Date: April 27, 2017
4 NO. 34,783
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellant,
7 v.
8 JOHNNY ORTIZ,
9 Defendant-Appellee.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Jacqueline D. Flores, District Judge
12 Hector H. Balderas, Attorney General 13 Santa Fe, NM 14 Charles J. Gutierrez, Assistant Attorney General 15 Albuquerque, NM
16 for Appellant
17 Law Offices of Jennifer J. Wernersbach, P.C. 18 Jennifer J. Wernersbach, P.C. 19 Albuquerque, NM
20 for Appellee 1 OPINION
2 HANISEE, Judge.
3 {1} The State appeals the district court’s order suppressing evidence seized from
4 Defendant Johnny Ortiz’s vehicle. The district court suppressed the evidence because
5 it concluded that what began as an investigatory detention of Defendant
6 impermissibly ripened into a de facto arrest in violation of the Fourth Amendment
7 right to be free from unreasonable seizure. We agree with the district court and affirm.
8 BACKGROUND
9 {2} On the morning of June 1, 2012, Sandia Resort & Casino (the casino) security
10 personnel came into possession of a found wallet. Upon searching its contents for
11 identifying information, a security dispatcher found Defendant’s name and an
12 unidentified female’s name whose contact information was in the wallet. The
13 dispatcher contacted the female, who reported that her wallet had been stolen at the
14 casino. Shortly thereafter, Defendant inquired with security about the wallet, at which
15 point the dispatcher searched the casino’s private security database to see if
16 Defendant had any prior infractions at the casino. The dispatcher discovered a person
17 with Defendant’s name who had been banned from the casino in 2007.
18 {3} The dispatcher then contacted the Pueblo of Sandia Police Department (PSPD)
19 to report a possible criminal trespass in progress. PSPD Detective James Chavez and 1 Officer Stephen Garcia responded to the dispatch. Detective Chavez arrived at the
2 casino first and proceeded to the security office, planning to confirm Defendant’s ban
3 with security personnel. Before he could do so, however, security informed him that
4 surveillance video showed Defendant walking out the main doors of the casino.
5 {4} Detective Chavez, electing to attempt to intercept Defendant before Defendant
6 could leave the premises, left the security office before he was able to confirm
7 Defendant’s ban. As Detective Chavez ran through the casino, security personnel
8 relayed information about Defendant’s location to him over the phone. Detective
9 Chavez, in turn, communicated that information to Officer Garcia via radio so that
10 Officer Garcia could pursue Defendant in his patrol car. Security personnel observed
11 Defendant walk toward the parking lot, enter a white vehicle, and proceed eastbound
12 through the parking lot. Officer Garcia located the vehicle, initiated his emergency
13 equipment, and effectuated a stop in the casino parking lot.
14 {5} Detective Chavez, who witnessed the stop, arrived on foot and made contact
15 with Defendant. Detective Chavez patted down Defendant, handcuffed him, and
16 placed him in the back of Officer Garcia’s car in what Detective Chavez described as
17 “just detention, investigative detention” so that he could confirm Defendant’s ban
18 with security personnel in order to determine if there was probable cause to arrest
19 Defendant for criminal trespass. It took approximately ten minutes for Detective
2 1 Chavez to receive confirmation of Defendant’s ban. Detective Chavez testified that
2 after the ban was confirmed, he placed Defendant under arrest, called for a tow truck,
3 and commenced an inventory search of Defendant’s vehicle. The search produced,
4 among other things, syringes, a scale, and a bank bag containing baggies of a crystal-
5 like substance, later confirmed to be methamphetamine.
6 {6} Defendant was indicted on one count of trafficking by possession with intent
7 to distribute methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006),
8 one count of criminal trespass, contrary to NMSA 1978, Section 30-14-1 (1995), and
9 one count of possession of drug paraphernalia, contrary to NMSA 1978, Section 30-
10 31-25.1(A) (2001). Defendant moved to suppress the evidence seized from his car,
11 arguing that it was “obtained pursuant to an illegal arrest and subsequent inventory
12 search . . . in violation of the Fourth and Fourteenth Amendments of the United States
13 Constitution[.]”
14 {7} At the conclusion of the hearing on Defendant’s motion to suppress, the district
15 court granted the motion, finding that PSPD’s investigatory detention of Defendant
16 had ripened into a de facto arrest lacking probable cause, violating Defendant’s right
17 to be free from unreasonable seizure. This appeal resulted. See NMSA 1978, § 39-3-
18 3(B)(2) (1972) (providing that the State may immediately appeal an order suppressing
19 evidence if the district attorney certifies to the district court that “the appeal is not
3 1 taken for the purpose of delay and that the evidence is a substantial proof of a fact
2 material in the proceeding”).
3 DISCUSSION
4 {8} Defendant concedes—and we agree—that PSPD had reasonable suspicion to
5 stop Defendant and place him in an investigatory detention. The only issue before us,
6 then, is whether the character of PSPD’s investigatory detention ripened into a de
7 facto arrest, which, absent probable cause, constituted a violation of Defendant’s
8 Fourth Amendment rights.
9 I. Standard of Review
10 {9} “Appellate review of a motion to suppress presents a mixed question of law and
11 fact.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation
12 marks and citation omitted). “We review the trial court’s ruling on [a d]efendant’s
13 motion to suppress to determine whether the law was correctly applied to the facts,
14 viewing them in the manner most favorable to the prevailing party.” State v. Leyba,
15 1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171 (internal quotation marks and
16 citation omitted). “While we afford de novo review of the trial court’s legal
17 conclusions, we will not disturb the trial court’s factual findings if they are supported
18 by substantial evidence.” Id.
4 1 II. The Test for Determining the Reasonableness of an Investigatory 2 Detention
3 {10} “It is well established that stopping an automobile and detaining its occupants
4 constitute a seizure under the Fourth and Fourteenth Amendments.” State v.
5 Skippings, 2014-NMCA-117, ¶ 9, 338 P.3d 128 (internal quotation marks and citation
6 omitted). The Fourth Amendment to the United States Constitution prohibits only
7 seizures that are unreasonable. See U.S. Const. amend. IV. “Consistent with the
8 reasonableness requirement of the Fourth Amendment, police officers may stop a
9 person for investigative purposes where, considering the totality of the circumstances,
10 the officers have a reasonable and objective basis for suspecting that particular person
11 is engaged in criminal activity.” State v. Sewell, 2009-NMSC-033, ¶ 13, 146 N.M.
12 428, 211 P.3d 885 (internal quotation marks and citation omitted). The
13 reasonableness of an officer’s actions during an investigatory detention “is
14 determined by objectively evaluating the particular facts of the stop within the context
15 of all the attendant circumstances.” Id. ¶ 16.
16 {11} “There is no bright-line test for evaluating when an investigatory detention
17 becomes invasive enough to become a de facto arrest.” Skippings, 2014-NMCA-117,
18 ¶ 14. The reasonableness of a detention “rests on the balancing of competing
19 interests: the nature and quality of the intrusion on the individual’s Fourth
20 Amendment interests against the importance of the governmental interests alleged to
5 1 justify the intrusion.” State v. Cohen, 1985-NMSC-111, ¶ 19, 103 N.M. 558, 711 P.2d
2 3 (alteration, internal quotation marks, and citation omitted). Where the government’s
3 justification for the intrusion outweighs the nature and quality of the intrusion upon
4 a defendant’s right to privacy, the detention is more likely to be considered
5 reasonable. See State v. Robbs, 2006-NMCA-061, ¶ 20, 139 N.M. 569, 136 P.3d 570
6 (“If the nature and extent of the detention minimally intrude on an individual’s Fourth
7 Amendment interests, opposing law enforcement interests can support a seizure based
8 on less than probable cause.” (internal quotation marks and citation omitted)).
9 Conversely, where the intrusion is significant and the government’s justification is
10 not, the detention is considered a de facto arrest and, thus, an unreasonable seizure.
11 See State v. Werner, 1994-NMSC-025, ¶¶ 16-21, 117 N.M. 315, 871 P.2d 971
12 (describing the character of the defendant’s detention as “a significant intrusion” and
13 holding that the detention was a de facto arrest because the government’s purported
14 justification for restricting the defendant to the degree it did failed to outweigh the
15 intrusion).
16 {12} Regarding characterization of the government’s interest—i.e., the
17 government’s justification for the intrusion—courts typically focus on one or both of
18 two considerations: (1) the nature of the criminal activity suspected or afoot, see, e.g.,
19 Skippings, 2014-NMCA-117, ¶ 17 (explaining that “[t]he government has a
6 1 significant interest in preventing the use and distribution of drugs like cocaine”); see
2 also State v. Lovato, 1991-NMCA-083, ¶¶ 23-27, 112 N.M. 517, 817 P.2d 251
3 (holding, as a matter of law, that the intrusiveness of a stop by officers investigating
4 a drive-by shooting was reasonable “in view of the level of danger the officers
5 reasonably could assume to exist” given the nature of the crime being investigated);
6 cf. State v. Contreras, 2003-NMCA-129, ¶ 14, 134 N.M. 503, 79 P.3d 1111 (holding
7 that “the gravity of the public concern and the public interest served by the seizure”
8 of a suspected drunk driver “weigh heavily in the [reasonableness] balancing test”);
9 and/or (2) the specific reasons supporting particular intrusive actions taken by an
10 officer during a detention. See, e.g., Werner, 1994-NMSC-025, ¶ 17 (rejecting the
11 claimed reasonableness of placing a suspect in a police vehicle—purportedly to
12 prevent the suspect’s flight and minimize risk of harm to the officer—when the
13 officer knew where the suspect lived and there was no indication the officer, who had
14 already removed a knife from the suspect, feared for his safety); Skippings, 2014-
15 NMCA-117, ¶ 20 (concluding that officers did not act unreasonably by patting down
16 and handcuffing the suspect, who had a history of violence, out of concern for officer
17 safety); State v. Flores, 1996-NMCA-059, ¶ 17, 122 N.M. 84, 920 P.2d 1038
18 (explaining that “[t]he nature of the crime being investigated may also justify a
19 patdown search”).
7 1 {13} In analyzing the defendant’s privacy interest—specifically, the nature and
2 quality of the intrusion thereon—courts consider and weigh numerous factors,
3 including but not limited to: (1) the extent to which the suspect’s freedom of
4 movement is restricted, such as placement in the back of a police vehicle, see Werner,
5 1994-NMSC-025, ¶ 15, or being detained at gunpoint or through the use of handcuffs,
6 see Lovato, 1991-NMCA-083, ¶¶ 4, 27-32; (2) the overall length of the detention and,
7 relatedly, the officer’s diligence in investigating in order to be able to confirm or
8 dispel his suspicion, see Werner, 1994-NMSC-025, ¶¶ 13, 16; and (3) other fact-
9 dependent factors, such as giving a defendant his Miranda rights, see Skippings,
10 2014-NMCA-117, ¶ 23, using a drug-sniffing dog, see Robbs, 2006-NMCA-061,
11 ¶ 29, or relocating the defendant during the course of an investigation, see Flores,
12 1996-NMCA-059, ¶ 15 (holding that moving a suspect from the location of the initial
13 traffic stop to a police warehouse in order to continue the investigation constituted
14 a de facto arrest). No single factor is dispositive. See Sewell, 2009-NMSC-033, ¶ 18
15 (explaining that “[t]emporal duration is neither the controlling nor the only factor to
16 be considered in assessing the reasonableness of the extent of an investigatory
17 detention”); Werner, 1994-NMSC-025, ¶ 14 (explaining that “[a]lthough the back of
18 a patrol car is not an ideal location for the purposes of an investigatory detention,
19 detention in a patrol car does not constitute an arrest per se” (internal quotation marks
8 1 and citations omitted)); Skippings, 2014-NMCA-117, ¶¶ 20, 22-23 (explaining that
2 “while we consider the fact that [the d]efendant was handcuffed, it is not
3 determinative” and collecting cases supporting the proposition as well as explaining
4 that giving a defendant Miranda rights does not automatically convert an
5 investigatory detention into an arrest). We emphasize that the above-listed factors
6 should be understood as illustrative, not an exhaustive list of possible considerations.
7 See Skippings, 2014-NMCA-117, ¶ 14 (explaining that courts “are also guided by the
8 circumstances in other cases in which investigative detentions have been held to be
9 de facto arrests or impermissibly invasive”).
10 {14} On a defendant’s motion to suppress evidence obtained without a warrant, the
11 State bears the burden of establishing the reasonableness of the officer’s conduct. See
12 State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95 (“Warrantless
13 seizures are presumed to be unreasonable and the [s]tate bears the burden of proving
14 reasonableness.” (internal quotation marks and citation omitted)). If the State fails to
15 “present testimony or other evidence showing that the arrest or search met
16 constitutional muster[,]” the defendant’s motion should be granted. State v. Ponce,
17 2004-NMCA-137, ¶ 7, 136 N.M. 614, 103 P.3d 54.
9 1 III. Whether PSPD’s Investigatory Detention of Defendant Ripened Into a De 2 Facto Arrest 3 {15} We turn, now, to an application of this balancing test to the facts of this case.
4 We first consider and characterize the government’s interest because doing so
5 sharpens the lens through which we analyze the reasonableness of the officers’
6 particular actions and the overall nature and quality of the detention. Once we
7 determine the weight of the government’s interest, we determine whether the
8 intrusiveness of PSPD’s actions was justified by or outweighed the government’s
9 interest. See Skippings, 2014-NMCA-117, ¶¶ 17-18.
10 A. The Government’s Justification for the Intrusion
11 {16} PSPD’s only basis for stopping and detaining Defendant was the yet-to-be-
12 confirmed report from casino dispatch that Defendant was banned and therefore
13 suspected of committing a criminal trespass, a misdemeanor offense. See § 30-14-
14 1(E) (“Whoever commits criminal trespass is guilty of a misdemeanor.”). Tellingly,
15 the State argues that PSPD has “a significant interest in preventing criminal trespass
16 on property under [its] jurisdiction” and that such interest “is even stronger under the
17 circumstances of this case [based on the officers’] reasonable suspicion that
18 Defendant was permanently banned from [the c]asino specifically for narcotics.” Yet
19 the State ignores the uncontradicted evidence that at the time Defendant was detained,
20 neither Detective Chavez nor Officer Garcia acted upon knowledge that Defendant’s
10 1 original ban was “for narcotics.” While the State relies on the district court’s finding
2 that Detective Chavez “had received information through the dispatcher that [the
3 c]asino Security had observed a male subject on casino property who they believe to
4 have previously been banned from casino property for narcotics[,]” the evidence in
5 the record, in fact, does not support this finding. When asked if he “remember[ed]
6 exactly what dispatch said when they asked you to come to Sandia” and, specifically,
7 if he remembered “that dispatch told you to come up for a banned subject who’s
8 banned for narcotics[,]” Detective Chavez responded, “I don’t remember the ban for
9 narcotics.” The State’s reliance on Defendant’s assertion in his motion to suppress
10 that “Sandia police officers were dispatched with the knowledge that . . . Defendant
11 had possibly been previously banned from the casino for narcotic use or possession”
12 is equally unavailing. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256
13 P.3d 987 (“The mere assertions and arguments of counsel are not evidence.” (internal
14 quotation marks and citation omitted)). And the State failed to present any testimony
15 or evidence establishing that even if the officers knew that Defendant’s ban was
16 related to narcotics, they had reasonable suspicion that Defendant was engaged in
17 drug-related criminal activity on June 1, 2012, which may have heightened PSPD’s
18 justification for intruding on Defendant’s privacy interest. See Pacheco, 2008-
19 NMCA-131, ¶ 20, 145 N.M. 40, 193 P.3d 587 (“Insofar as [the officer] had a
11 1 reasonable, articulable suspicion that drug-related criminality was afoot, the
2 justification for the intrusion was substantial.”).
3 {17} It is true that our cases have consistently characterized the government’s
4 interest in “preventing the use and distribution of drugs” as “significant,” thereby
5 presumptively justifying a higher level of intrusion during an investigatory detention.
6 Skippings, 2014-NMCA-117, ¶ 17. See State v. Pacheco, 2008-NMCA-131, ¶ 20;
7 Robbs, 2006-NMCA-061, ¶ 22. However, the fact that the case ended as a narcotics
8 investigation does not mean it began as one. More importantly, the record does not
9 support an inference that Detective Chavez was concerned about narcotics when he
10 detained Defendant. And the State has not pointed to any authority suggesting that
11 the government has a similar interest in the prevention of misdemeanor criminal
12 trespass alone. As such, we assume no such authority exists. See In re Adoption of
13 Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Consequently, we are left
14 only with the State’s lesser, but certainly not non-existent, interest in enforcing
15 misdemeanor trespass violations.
16 {18} Additionally, the State failed to present any evidence that the circumstances
17 evolved over the course of PSPD’s response in a way that would have justified a
18 graduated response based on a more substantial government interest. Cf. State v.
19 Funderburg, 2008-NMSC-026, ¶ 16, 144 N.M. 37, 183 P.3d 922 (“An officer’s
12 1 continued detention of a suspect may be reasonable if the detention represents a
2 graduated response to the evolving circumstances of the situation.”). While the State
3 attempted to portray Defendant as fleeing at the time he was stopped, the district court
4 expressly found that “[t]he State did not present any evidence that Defendant was
5 fleeing from apprehension, disruptive or not obeying commands by casino security
6 or [PSPD].” This finding is substantially supported by Detective Chavez’s testimony
7 that (1) casino security reported seeing Defendant walking, not running, out of the
8 casino, (2) Defendant appeared to simply be “proceeding along through the parking
9 lot” just prior to being stopped by Officer Garcia, (3) Defendant’s tires were not
10 squealing while he was driving through the parking lot, and (4) Defendant stopped
11 once Officer Garcia activated his emergency equipment and while still in the casino
12 parking lot. Further, the State failed to call any witness to testify as to what Defendant
13 had been told by casino security prior to PSPD’s arrival—i.e., whether he was
14 informed that security suspected him of committing criminal trespass and was told not
15 to leave the premises. There is no evidence that Defendant was even aware that he
16 was being investigated for—or that PSPD had been called regarding—a possible
17 criminal trespass. All that Detective Chavez could establish was that Defendant had
18 been in contact with casino security regarding the found wallet.
13 1 {19} We are unpersuaded by the State’s argument that the facts developed before the
2 district court support a conclusion that the government’s interest at the time it
3 detained Defendant was “significant” and that the “law enforcement justification in
4 this case was substantial.” While we hold, here, that the government’s interest in
5 stopping a possible criminal trespass was less than “significant,” our decision should
6 not be read as establishing a categorical rule. Because the test of reasonableness is
7 one based on the totality of the circumstances, see Werner, 1994-NMSC-025, ¶ 16,
8 we leave open the possibility that under a different set of facts, the government’s
9 interest in preventing criminal trespass may be deemed “significant,” thereby
10 potentially justifying a more intrusive detention. Cf. State v. McCormack, 1984-
11 NMCA-042, ¶¶ 16-20, 27, 101 N.M. 349, 682 P.2d 742 (affirming a journalist’s
12 conviction for criminal trespass of the Waste Isolation Pilot Plant and rejecting a First
13 Amendment challenge to government-imposed access restrictions, which were based
14 on the need to protect the property and people working thereon). As the next part of
15 our discussion elucidates, we need not assign a specific descriptor—such as
16 “minimal” or “important”—to the nature of the government’s interest here.
17 B. The Nature and Quality of the Intrusion
18 {20} The State argues that “the intrusion on Defendant’s liberty during the
19 investigatory detention was slight or minimal” and reasons that “[a]lthough the
14 1 detention occurred in a police vehicle and included handcuffing Defendant, these
2 intrusions are ameliorated by the brevity of the detention[.]” Based on our case law,
3 we disagree.
4 {21} The focus of our inquiry, here, is whether the particular activities—i.e.,
5 intrusions—during the investigatory detention were “reasonably related to the
6 circumstances that initially justified the stop” and whether there was “some
7 reasonable justification” to support the intrusions. Werner, 1994-NMSC-025, ¶¶ 13,
8 15 (internal quotation marks and citation omitted). We also consider the length of
9 Defendant’s detention and the officers’ diligence in confirming or dispelling their
10 suspicion, which factors inform—but do not control—our characterization of the
11 nature and quality of the detention and, ultimately, our determination of whether it
12 was reasonable.
13 1. Restraint on Defendant’s Freedom of Movement
14 {22} Detective Chavez testified that Defendant was patted down, handcuffed, and
15 put in the back of Officer Garcia’s patrol car immediately upon exiting his vehicle.
16 But there is no evidence that the officers knew that Defendant had a history of
17 violence or feared for their safety, see Skippings, 2014-NMCA-117, ¶ 20; that
18 Defendant attempted to leave the scene upon exiting his car, see State v. Wilson,
19 2007-NMCA-111, ¶¶ 3, 19, 142 N.M. 737, 169 P.3d 1184; or that Defendant was
15 1 unstable, swaying back and forth, or unable to safely stand on his own, see id.
2 ¶ 3—all of which may be reasonable justifications for the officers’ actions. We do not
3 mean to suggest that these are the only reasons that could have justified the actions
4 taken in this case. Rather, these examples provide guidance regarding what may
5 establish the reasonableness of such intrusions. The key in this case is the complete
6 absence of any evidence whatsoever suggesting there were mitigating circumstances
7 that may have justified PSPD’s intrusive actions upon Defendant.1 And absent a
8 reasonable justification for restricting a person’s freedom of movement—particularly
9 in as highly restrictive a way as occurred in this case—such intrusion is considered
10 “significant.” See Werner, 1994-NMSC-025, ¶ 16.
11 1 The State effectively concedes this point, acknowledging that “the testimony 12 may have been thin regarding the specific reasons that the officers placed Defendant 13 in the back of a patrol car, patted Defendant down, and handcuffed Defendant,” but 14 attempts to justify this by pointing out that the district court granted Defendant’s 15 motion to suppress on a legal principle (de facto arrest) other than the one initially 16 argued by Defendant (lack of exigent circumstances). [RB 13 n.7] We observe, 17 however, that the State made no attempt to reopen testimony, continue the hearing, 18 move the district court to reconsider its order, or take any other steps prior to 19 appealing the suppression order to remedy the claimed “unfairness” the State says 20 resulted. Additionally, the State has neither raised this as an issue on appeal—other 21 than in a footnote in its reply brief—nor cited any authority suggesting that the 22 district court acted improperly or that our review of the suppression order is somehow 23 affected by this unusual circumstance. We therefore address this matter no further.
16 1 2. Duration and Diligence
2 {23} In an attempt to “ameliorate” these intrusions on Defendant’s liberty in order
3 to allow the balance to tip back in favor of the government’s interest, the State relies
4 on the brevity of the investigatory detention and Detective Chavez’s diligence in
5 confirming Defendant’s ban from the casino. As to brevity, the State contends that
6 “our Supreme Court has strongly suggested that a ten-minute detention will not rise
7 to an arrest under any set of facts.” To support this position, the State cites our
8 Supreme Court’s observation in Sewell that it had “found no reported case in which
9 a New Mexico court has ever held that a ten[-]minute detention was impermissibly
10 long in any set of circumstances where there was reasonable suspicion to make a
11 roadside drug stop.” 2009-NMSC-033, ¶ 17. The State also relies on this Court’s
12 recent observation in Skippings that all New Mexico cases that have held that a de
13 facto arrest occurred involve “circumstances in which the defendant was detained for
14 at least an hour.” 2014-NMCA-117, ¶ 18. The State places heavy emphasis on the
15 brevity of Defendant’s detention and asks us to “give great weight” to this factor as
16 well. We decline to do so because while the length of a detention is generally an
17 important factor in determining whether it is reasonable, it is but one of a myriad
18 factors that is neither controlling nor dispositive on the ultimate question of
19 reasonableness. See Sewell, 2009-NMSC-033, ¶ 18; Skippings, 2014-NMCA-117,
17 1 ¶¶ 18, 24. We also observe that Sewell and Skippings are factually distinguishable
2 from the instant case in two key respects. First, neither involved the defendant being
3 patted down, handcuffed, and placed in the back of a patrol car while handcuffed for
4 any amount of time—i.e., the nature and quality of the intrusions in those cases were
5 palpably less significant. See Sewell, 2009-NMSC-033, ¶¶ 6-7; Skippings, 2014-
6 NMCA-117, ¶ 18. Second, both involved drug-related offenses, which, as we have
7 already discussed, elevated the government’s interest to “significant,” thereby
8 justifying a higher level of intrusiveness and making the detentions reasonable. See
9 Sewell, 2009-NMSC-033, ¶ 20; Skippings, 2014-NMCA-117, ¶ 17.
10 {24} As to diligence, the State relies on Werner’s pronouncement that “[d]iligence
11 in the investigation is key[.]” 1994-NMSC-025, ¶ 20. While we agree that the
12 evidence indicates that Detective Chavez acted diligently to confirm Defendant’s ban
13 with casino security and that there is no evidence suggesting that Detective Chavez
14 intentionally delayed confirmation in order to fish for evidence of other crimes, that
15 alone is not enough to offset the significant intrusions upon Defendant’s liberty or
16 establish the reasonableness of the detention. See id. (explaining that “[i]f authorities,
17 acting without probable cause, can seize a person, hold him in a locked police car . . .,
18 and keep him available for arrest in case probable cause is later developed, the
19 requirement for probable cause for arrest has been turned upside down”). And while
18 1 we observe that all of our prior cases holding that there was no de facto arrest also
2 found that the officer had acted diligently, none of those cases involved the unique
3 facts and circumstances present in this case. See Skippings, 2014-NMCA-117, ¶ 24;
4 Pacheco, 2008-NMCA-131, ¶¶ 23-25; Robbs, 2006-NMCA-061, ¶ 29. As this case
5 proves, an officer’s diligence and ability to confirm or dispel his suspicions in a short
6 amount of time may be insufficient to overcome the intrusions upon a defendant’s
7 privacy interest where such intrusions result in a highly-restrictive detention and are
8 not supported by reasonable justification.
9 CONCLUSION
10 {25} Viewing the evidence in the light most favorable to Defendant, the
11 government’s interest in investigating and stopping criminal trespass was far
12 outweighed by the significant intrusion on Defendant’s Fourth Amendment interests.
13 We hold that PSPD’s investigatory detention of Defendant ripened into an
14 unconstitutional de facto arrest. The district court’s order of suppression is affirmed.
15 {26} IT IS SO ORDERED.
16 _________________________________ 17 J. MILES HANISEE, Judge
19 1 WE CONCUR:
2 _________________________________ 3 JAMES J. WECHSLER, Judge
4 _________________________________ 5 JULIE J. VARGAS, Judge