State v. Otero

• Court: New Mexico Court of Appeals
• Decided: August 26, 2013
• Docket: 32,746
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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

2 STATE OF NEW MEXICO

3 Plaintiff-Appellee,

4 v. NO. 32,746

5 YVETTE OTERO,

6 Defendant-Appellant.

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

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Acting Chief Public Defender 13 Vicki W. Zelle, Assistant Appellate Defender, Metro Appeals 14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION

17 WECHSLER, Judge. 1 {1} Defendant appeals from the district court’s on record review and affirmance

2 of the metropolitan court’s denial of Defendant’s motion to suppress. This Court

3 issued a calendar notice proposing to affirm the denial of Defendant’s motion to

4 suppress. Defendant has filed a memorandum in opposition to this Court’s notice of

5 proposed disposition, which we have duly considered. Unpersuaded, we affirm.

6 {2} Defendant contends that there was not reasonable suspicion to support the

7 officer’s stop of her vehicle. In this Court’s calendar notice, we relied on State v.

8 Contreras, 2003-NMCA-129, 134 N.M. 503, 79 P.3d 1111, to propose that the

9 anonymous tip in the present case was sufficiently specific to give rise to reasonable

10 suspicion given the late hour, the tipster’s specific location, the lack of other traffic,

11 and the fact that the Mitsubishi had a car traveling directly behind it and the tipster

12 had indicated he was traveling directly behind the suspected drunk driver. [CN 3] We

13 further suggested that, to the extent Defendant was arguing that Contreras provided

14 less protection than the federal government provided in Florida v. J.L., 529 U.S. 266

15 (2000), this Court in Contreras considered the applicability of J.L. and concluded that

16 the exigency present in drunk driving cases leads to a different result.

17 {3} In Defendant’s memorandum in opposition, she takes issue with this Court’s

18 assessment of the totality of the circumstances, stating that “[a] reviewing court is to

19 assess the totality of the circumstances in each case to determine whether the possible

2 1 danger to the public presents a sufficiently exigent circumstance that tips the balance

2 in favor of the stop.” [MIO 6-7] To the extent Defendant continues to rely on J.L. in

3 her opposition to this Court’s notice of proposed disposition to argue that the tip in

4 this case did not sufficiently demonstrate the tipster’s veracity, we again point out that

5 Contreras distinguishes J.L. based on the exigency that DWI presents. We agree that,

6 in distinguishing J.L., Contreras “does not do away with the anonymous tip analysis

7 of credibility and reliability that the Fourth Amendment requires.” 2003-NMCA-129,

8 ¶ 21. However, given “the exigency of the possible threat to public safety that a drunk

9 driver poses, New Mexico’s grave concern about the dangers of drunk drivers, and the

10 minimal intrusion of a brief investigatory stop,” Contreras holds that an anonymous

11 call providing information detailed enough for deputies to find the vehicle in question

12 and confirm the description is reasonable under the totality of the circumstances. Id.

13 We conclude that the circumstances present in this case satisfy that standard.

14 {4} While Defendant argues that the exigency of this case was not great and that the

15 officer could have attempted to corroborate the reported bad driving prior to stopping

16 Defendant, we note that requiring an officer to “expose the suspect and the public to

17 the danger of a drunk driver” in order to corroborate a tip regarding erratic driving is

18 precisely the scenario that Contreras is aimed at avoiding. Id. ¶ 15. Moreover, it is

19 the exigency of DWI in general, and not the exigency created by a particular driver,

3 1 that Contreras determined gives rise to the exception that predictive information is not

2 required. To the extent Defendant is asking this Court to reconsider our decision in

3 Contreras, we decline to do so.

4 {5} For the reasons stated above and in this Court’s notice of proposed disposition,

5 we affirm.

6 {6} IT IS SO ORDERED.

7 ________________________________ 8 JAMES J. WECHSLER, Judge

9 WE CONCUR:

10 ________________________________ 11 CYNTHIA A. FRY, Judge

12 ________________________________ 13 J. MILES HANISEE, Judge