State v. Raber

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 30,539 10 EDWARD RABER, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 13 Gary Jeffreys, District Judge

14 Gary K. King, Attorney General 15 William Lazar, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Liane E. Kerr 19 Albuquerque, NM

20 for Appellant

21 MEMORANDUM OPINION 22 BUSTAMANTE, Judge.

1 Defendant Edward Raber was traveling as a passenger in a vehicle he had 2 rented when Officer Johnston pulled the vehicle over to investigate a traffic violation. 3 After determining that no violation had occurred and verifying that Defendant was in 4 fact the person listed on the rental contract, Officer Johnston continued to question 5 Defendant about his travel plans. Because we hold that these additional questions 6 violated Article II, Section 10 of the New Mexico Constitution, we reverse the order 7 denying Defendant’s motion to suppress. 8 I. BACKGROUND 9 Late at night on June 11, 2009, Officer Johnston looked in his rearview mirror 10 and noticed that the car that had just passed him going the opposite direction did not 11 have a license plate. The officer turned around and stopped the car. Upon 12 approaching the car, the officer noticed that the license plate holder contained a 13 placard for Whitehead Chevrolet and that a demo permit was located in the left corner 14 of the rear window. He had not previously been able to see the dealer permit because 15 it was above the beam of his headlights. 16 The officer asked the driver, Ms. Stephens, for her license and registration. Ms. 17 Stephens provided her license and a document showing that Defendant, who was a 18 passenger, had rented the vehicle from Whitehead Auto Sales. Defendant also

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1 provided his identification. Defendant explained that Ms. Stephens was driving 2 because his license was suspended. 3 Officer Johnston asked Ms. Stephens to accompany him to his patrol car. 4 While he waited for the results from the license check and wants and warrants check, 5 he examined the rental contract, noticing that Ms. Stephens was not listed as an 6 authorized driver. The contract also indicated that Defendant was unemployed but 7 had paid cash for the rental. Officer Johnston asked Ms. Stephens about her travel 8 plans, and she told him that she and Defendant were returning from the Phoenix- 9 Tucson area, where they had attended a funeral. The officer testified that Ms. 10 Stephens was extremely nervous, and at one point had trouble lighting a cigarette 11 because her hands were shaking. At this point, the officer told Ms. Stephens that he 12 did not plan on issuing a citation since the dealer’s placement of the demo permit was 13 not her fault. 14 Leaving Ms. Stephens near his vehicle, the officer next went back to the rental 15 car to return Defendant’s identification. He asked Defendant where the pair had been 16 traveling, and Defendant responded that they were returning from “Tucson, Phoenix” 17 and that they had been visiting relatives. The officer testified that when he was 18 speaking to Defendant, he noticed that Defendant was “fidgety,” that he seemed to be 19 having a hard time concentrating, and that his eyes were bloodshot and glassy, with

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1 pupils like “pinholes.” The officer testified that he was concerned that the driver and 2 passenger might “be under the influence of some drug or narcotic.” 3 The officer returned once again to his car, where he gave Ms. Stephens her 4 papers and told her to have a good night. As he was handing back the documents, he 5 asked her, “Oh, who passed away?” The officer testified that Ms. Stephens’ “whole 6 demeanor changed, and she quit smiling and she looked down and was unsure what 7 to say.” Nevertheless, the officer told Ms. Stephens that he was not going to issue a 8 citation and that she was free to go. 9 As Ms. Stephens was walking away, the officer called her back, saying that she 10 was free to leave but that he would like to ask her some more questions. Officer 11 Johnston testified that at this point, the circumstances led him to believe that the pair 12 might be transporting drugs. When Officer Johnston questioned Ms. Stephens about 13 the funeral, Ms. Stephens gave varied and conflicting responses about the funeral. 14 The officer then separately questioned Defendant about his travel. Defendant did not 15 mention a funeral. 16 Finally, the officer asked Defendant whether there were drugs or large amounts 17 of cash in the car. When Defendant claimed that there were not, the officer asked if 18 he could search the vehicle for drugs. Defendant and Ms. Stephens gave both verbal 19 and written consent to the search. Officer Johnston and Officer Wood, who had

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1 shown up to assist, eventually discovered a cigarette box containing approximately 2 two grams of methamphetamine and six tablets of flexeril. Defendant indicated that 3 the drugs were his and that Ms. Stephens knew nothing about them. Defendant was 4 then arrested. Although Officer Johnston still harbored suspicions about Ms. 5 Stephens’ involvement, he decided it was preferable to let her drive the child home 6 than to arrest her, which would have involved CYFD. 7 Defendant moved to suppress, arguing that the evidence was tainted by 8 impermissible questioning after the officer had determined that Ms. Stephens and 9 Defendant had valid paperwork and that no traffic infraction had occurred. The 10 district court denied the motion to suppress. In support of the denial, the court made 11 numerous findings of fact. The court found that Defendant and Ms. Stephens had 12 given differing accounts of their trip, that they were traveling late at night on a route 13 commonly used by drug traffickers, that they were coming from a source city known 14 for methamphetamine trafficking, that Defendant had paid for the rental car with cash 15 despite the fact that he was unemployed and did not have a valid driver’s license, that 16 Defendant had bloodshot eyes and pupils like pinholes, and that the driver was 17 extremely fidgety and nervous. However, the court did not indicate when each of 18 these facts became known to the officer. Additionally, the court appears not to have 19 analyzed any of the officer’s questions individually in light of what was known to the

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1 officer at that time. Instead, the court issued a general conclusion that the officer “had 2 reasonable suspicion to extend the duration of the traffic stop of defendant’s rental 3 vehicle and ask additional questions to quell his suspicions that defendant may be 4 involved in criminal activity.” 5 II. DISCUSSION 6 Defendant asserts that his rights under both the Fourth Amendment and the 7 New Mexico Constitution were violated when, after Officer Johnston had decided not 8 to issue a citation and told the driver she was free to go, the officer continued to 9 question Defendant and the driver. The State argues that the questions did not 10 measurably extend the duration of the stop and that the questions about drugs were 11 supported by independent reasonable suspicion. The State concedes that the detention 12 was not consensual and that officer safety is not at issue in this case. The question 13 before us is whether the consent for the searches was tainted by questions asked 14 during the non-consensual detention. 15 “New Mexico courts apply a two-part test to analyze the reasonableness of an 16 officer’s actions during a traffic stop under the Fourth Amendment to the Federal 17 Constitution.” State v. Olson, 2011-NMCA-056, ¶ 11, 150 N.M. 348, 258 P.3d 1140, 18 cert. granted, 2011-NMCERT-005, 150 N.M. 348, 258 P.3d 1140. First, the stop 19 must be justified at its inception. See State v. Leyva, 2011-NMSC-009, ¶ 31, 149

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1 N.M. 435, 250 P.3d 861. The parties do not dispute that the officer was justified in 2 pulling over Defendant’s rental car when he was unable to see a license plate or 3 temporary tag. 4 The second part of the analysis depends on whether the analysis is made under 5 the Fourth Amendment or under Article II, Section 10. Olson, 2011-NMCA-056, ¶ 6 11. We therefore apply our interstitial approach, examining first whether the right 7 being asserted is protected under the Fourth Amendment, and, if it was not, 8 proceeding to whether it is protected under the New Mexico Constitution. See State 9 v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. 10 Review of a motion to suppress involves mixed questions of fact and law. State 11 v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

12 We review any factual questions under a substantial evidence standard 13 and we review the application of law to the facts de novo. We first 14 review the facts found by the district court, recognizing that the district 15 court has the best vantage from which to resolve questions of fact and to 16 evaluate witness credibility. Accordingly, we review the facts in the 17 light most favorable to the prevailing party, deferring to the district 18 court’s factual findings so long as substantial evidence exists to support 19 those findings. We then review the application of the law to those facts, 20 making a de novo determination of the constitutional reasonableness of 21 a search or seizure.

22 State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885 (alteration 23 omitted) (internal quotation marks and citations omitted). The standard of review is

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1 the same under both the Fourth Amendment and Article II, Section 10. Leyva, 2011- 2 NMSC-009, ¶ 57.

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1 A. Fourth Amendment 2 We begin with the Fourth Amendment. The focus of the Fourth Amendment 3 analysis is on the duration of the stop, not the content of the questions. See Leyva, 4 2011-NMSC-009, ¶ 17. So long as a question does not measurably extend the initial 5 investigation, it is reasonable. See id. ¶ 29. Questions that measurably extend the 6 investigation must be supported by reasonable suspicion of criminal activity, concern 7 for police safety, or consent. Id. Of course, reasonable suspicion can develop during 8 the duration of the initial investigation. See id. ¶ 19. 9 In Leyva, an officer saw what appeared to be a driver hiding something under 10 his seat as he was being pulled over for speeding. Id. ¶ 4. Immediately after the 11 officer finished his traffic investigation and issued citations, the officer asked the 12 driver whether there were any guns or drugs in the car. Id. ¶¶ 5, 33. The question 13 added only ten seconds to the ten-minute stop. Id. ¶ 33. Our Supreme Court held that 14 the question did not violate the Fourth Amendment because it was a “de minimis 15 extension of a valid stop posed for reasons of officer safety.” Id. ¶ 35. 16 With respect to the Fourth Amendment, the instant case is quite similar to 17 Leyva. The district court found that the duration of the stop was brief. The officer 18 appears to have diligently proceeded with the traffic stop, completing it in seven or 19 eight minutes. During that time, the officer observed that Ms. Stephens was extremely

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1 nervous, that there was a slight discrepancy between her story and Defendant’s story, 2 that Defendant may have been under the influence of drugs, and that the couple were 3 traveling on a public highway commonly used by drug traffickers. Immediately after 4 the stop concluded, the officer asked Ms. Stephens who had died. This question added 5 only seconds to a seven- or eight-minute stop. Her answer left the officer convinced 6 that she was making up her story. Looking at all of these circumstances together, we 7 conclude that at this point the officer had sufficient reasonable suspicion to justify 8 expanding his investigation by questioning the couple about their travel plans and 9 about whether there were drugs in the car. Accordingly, there was no Fourth 10 Amendment violation in this case. 11 B. Article II, Section 10 12 As an initial matter, we note that many of our Fourth Amendment cases have 13 been overruled by Leyva. However, to the extent that those cases analyze searches 14 and seizures using the analysis from State v. Duran, 2005-NMSC-034, 138 N.M. 414, 15 120 P.3d 836, overruled by Leyva, 2011-NMSC-009, ¶ 3, which in turn relied on 16 Terry v. Ohio, 392 U.S. 1 (1968), we understand Leyva to mean that the analysis in 17 those cases is still at least persuasive, if not binding, under Article II, Section 10. See 18 Leyva, 2011-NMSC-009, ¶ 3 (“[W]e maintain the Duran standard for reviewing

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1 searches and seizures under the New Mexico Constitution.”). Our reliance in this 2 section upon cases overruled by Leyva is made with this understanding. 3 Leyva summarizes the Duran standard as follows:

4 Article II, Section 10 requires that all questions asked during the 5 investigation of a traffic stop be reasonably related to the initial reason 6 for the stop. Unrelated questions are permissible when supported by 7 independent reasonable suspicion, for reasons of officer safety, or if the 8 interaction has developed into a consensual encounter.

9 Leyva, 2011-NMSC-009, ¶ 55. An officer “does not have to ignore new information 10 that becomes known to him after the initial stop,” but may take into account “the 11 circumstances originally warranting the stop, informed by what occurred, and what 12 the officer learned, as the stop progressed.” Sewell, 2009-NMSC-033, ¶ 19 (internal 13 quotation marks and citations omitted). This test provides greater protection than the 14 bright-line temporal test of the Fourth Amendment and “ensures that investigating 15 officers do not engage in ‘fishing expeditions’ during traffic stops.” See Leyva, 2011- 16 NMSC-009, ¶ 55. 17 The State contends that the district court correctly concluded that the instant 18 case was analogous to Duran. In Duran, an officer pulled over a vehicle with no 19 license plate whose temporary tag was improperly displayed. 2005-NMSC-034, ¶ 3. 20 When he approached the car, he observed that it contained various tools and smelled 21 of gasoline. Id. ¶ 4. As in this case, the officer separated the driver from the

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1 passenger and asked the driver about her travel plans while he ran the wants and 2 warrants check. Id. ¶¶ 5, 8. He discovered that there were numerous irregularities in 3 the purchase paperwork and that the driver, who had recently purchased the vehicle, 4 was not familiar with the basic details of the sale of the vehicle. Id. ¶¶ 7, 11-12. He 5 questioned the passenger separately and was given a dramatically different story of 6 their travel plans. See id. ¶ 9. The officer issued a citation for the misplaced 7 temporary tag and then asked whether there were drugs in the car. Id. ¶¶ 14-15. 8 When the driver and passenger denied the presence of drugs in the car, the officer 9 obtained verbal and written consent to search. Id. ¶ 15. He then immediately 10 searched in the gas tank and found thirteen bags of marijuana. Id. ¶ 16. 11 The State appealed this Court’s determination that the officer’s questions about 12 the driver’s travel plans were impermissible. Id. ¶ 21. Our Supreme Court began its 13 analysis by noting that “all questions asked by police officers during a traffic stop 14 must be analyzed to ensure they are reasonably related to the initial justification for 15 the stop or are supported by reasonable suspicion.” Id. ¶ 35. It then observed that the 16 “strange or suspicious circumstances surrounding the initial justification for the traffic 17 stop” did not provide reasonable suspicion. Id. ¶ 37. However, it reasoned that the 18 questions about travel plans were reasonably related to the scope of the initial stop 19 because they were “minimally intrusive questions to confirm or dispel [the officer’s]

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1 initial suspicion after [the driver] told him of the circuitous route she was driving.” 2 Id. In other words, the questions about travel plans were justified by the driver’s 3 answers to those questions. Although the Court did not discuss or identify any 4 specific State interests, it nevertheless concluded by stating that the State’s “strong 5 interest in asking the questions outweighed the limited intrusion into [the driver’s] 6 privacy.” Id. 7 The standard from Duran thus appears to present a rather low barrier for police 8 questions. However, although most questions asked by police officers are minimal 9 intrusions, this Court has repeatedly held that not every minimal intrusion is 10 permissible. For example, in State v. Affsprung, an officer stopped a car for having 11 a faulty license plate light. 2004-NMCA-038, ¶ 2, 135 N.M. 306, 87 P.3d 1088. The 12 officer, who had observed no other indications of suspicious or illegal activity, asked 13 for the identification of both the driver and the passenger. Id. The passenger had no 14 identification, but orally gave his name, date of birth, and social security number. Id. 15 The officer ran a wants and warrants check and discovered that there was an 16 outstanding warrant for the passenger. Id. ¶ 3. The district court denied the 17 passenger’s motion to suppress based on the officer’s request for his information. Id. 18 ¶ 1. This Court reversed, holding that “[w]ith no suspicion, much less reasonable 19 suspicion, regarding criminal activity on the part of [the passenger], and no

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1 particularized concern about his safety, the officer had no legitimate basis on which 2 to obtain the identifying information for the purpose of checking it out through a 3 wants and warrants check.” Id. ¶ 19. We also distinguished between drivers and 4 passengers in traffic stops, observing that the passenger’s “mere presence in a vehicle 5 with a faulty license plate light adds nothing of significance that causes this even 6 minimal intrusion to tip the balance in favor of public or officer safety over individual 7 Fourth Amendment privacy.” Id. ¶ 20. 8 Similarly, in City of Albuquerque v. Haywood, an officer stopped a vehicle that 9 had no license plate only to discover as he approached the vehicle that it in fact 10 displayed a temporary tag. 1998-NMCA-029, ¶ 3, 124 N.M. 661, 954 P.2d 93, 11 overruled by Leyva, 2011-NMSC-009, ¶ 17 n.1. Immediately after obtaining the 12 driver’s license and registration, the officer asked whether the driver had any guns or 13 knives in the car. Id. ¶ 5. Reasoning that the question was not reasonably related to 14 “verifying or quelling [the officer’s] suspicion that [the driver] was operating a motor 15 vehicle without the proper vehicle registration,” this Court concluded that the question 16 exceeded the scope allowed under Terry. Haywood, 1998-NMCA-029, ¶¶ 15-16. 17 Our cases also suggest that suspicion that a driver or passenger has engaged in 18 criminal activity on other occasions does not create a reasonable suspicion that the 19 occupants are engaged in criminal activity at the time of the traffic stop. For example,

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1 in Olson, an officer converted a traffic stop into a prostitution investigation when he 2 noticed that the passenger was a person known to him as a prostitute. 2011-NMCA- 3 056, ¶ 3. This Court held that the mere presence of a known prostitute as a passenger 4 did not provide reasonable suspicion that the driver had hired or offered to hire the 5 passenger to perform a sex act. Id. ¶ 17. Accordingly, the expansion of the traffic 6 stop into a prostitution investigation violated Article II, Section 10. Id. ¶ 18. 7 Similarly, in State v. Jones, we held that the fact that a person was dressed like a gang 8 member could not, by itself, provide reasonable suspicion that the person was armed 9 and dangerous. 114 N.M. 147, 151, 835 P.2d 863, 867 (Ct. App. 1992) (“We will not 10 make the final leap of faith the state urges upon us, i.e., that the inference arising from 11 gang membership and presence in a gang activity area is sufficient alone to support 12 reasonable suspicion.”). 13 With these cases in mind, we turn to the officer’s interactions with Defendant. 14 As in Affsprung, this case began as a traffic investigation, and the officer obtained the 15 identification of both the driver and Defendant, a passenger. However, unlike 16 Affsprung, here there was reason to obtain Defendant’s information because the 17 vehicle was rented in his name. The officer then separately questioned the driver 18 about her travel history. This too was a minimal intrusion. As we have discussed, the 19 State’s interest in enforcing traffic laws outweighs a driver’s interest in not being

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1 questioned about her travel plans when detained for traffic violations. See Duran, 2 2005-NMSC-034, ¶¶ 28-29. 3 The officer next returned Defendant’s identification and asked him about his 4 travel plans. Like the request for the passenger’s identification in Affsprung, asking 5 the passenger about his travel history was not calculated to confirm or dispel any 6 suspicions the officer may have had based on the reason for the traffic stop. Instead, 7 it was calculated to create suspicion to justify turning a traffic stop into a drug 8 investigation. In fact, although we express no opinion on whether it was permissible, 9 it would appear that the only reason for the officer to return the documents separately 10 to Defendant, rather than simply giving them to Ms. Stephens, was to create an 11 opportunity to separately ask Defendant the impermissible questions. See generally 12 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.3(d), 13 at 393-95 (4th ed. 2004) (discussing the use of separate questioning about travel plans 14 by police as a method of creating reasonable suspicion). This is exactly the sort of 15 fishing expedition that our case law forbids. 16 The State contends that under Duran, questioning a passenger about travel plans 17 during a traffic stop is permissible because such questions are reasonably related to 18 the scope of the initial stop. This reading of Duran is too broad. In Duran, our 19 Supreme Court held that questioning a passenger about travel plans was reasonable

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1 because the presence of “strange and suspicious tools,” irregular paperwork, and a 2 gasoline smell, although not enough to provide reasonable suspicion, permitted the 3 Court to conclude that limited questions about travel plans were reasonably related to 4 the initial investigation into the misplaced temporary tag. 2005-NMSC-034, ¶ 37. 5 Here, however, at the time when the officer asked Defendant about his travel history 6 he was aware of no information that could have provided reasonable suspicion that 7 Defendant was involved in criminal activity. Furthermore, the officer had already 8 satisfied himself that Defendant was the renter of the car, that there had been no traffic 9 infraction, and that there were no warrants for either occupant. The questions were 10 not calculated to confirm or dispel Officer Johnston’s suspicions because the officer 11 had already concluded that Defendant was not engaged in any criminal activity. 12 The State also argues that the questions in this case were permissible under 13 State v. Van Dang, 2005-NMSC-033, 138 N.M. 408, 120 P.3d 830. In Van Dang, an 14 officer stopped a car for speeding and the driver provided his identification and a 15 vehicle rental contract. Id. ¶ 1. Neither the driver nor the passenger was listed on the 16 rental contract as a driver. See id. ¶ 2. The officer received different answers when 17 he questioned the driver and the passenger about their travel plans. Id. ¶ 16. The 18 officer was concerned that the car was stolen, and also testified that in his experience, 19 it was common for rental cars to be used to transport drugs, frequently when the renter

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1 was not present. Id. The Court found that this was sufficient to support reasonable 2 suspicion. Id. 3 We do not agree that Van Dang is on point. Unlike Van Dang, there was no 4 testimony in this case that the officer’s training or experience would lead him to 5 believe that the use of a rental car in this case suggested that drugs might be involved. 6 Furthermore, and again unlike Van Dang, the renter was in the vehicle, and there was 7 no question about whether Ms. Stephens was a permissive user of the car or about 8 whether the car had been stolen. The circumstances that justified the questioning in 9 Van Dang simply are not present in this case. 10 Once the officer had dispelled any suspicions regarding Defendant’s right to use 11 the rental vehicle, the case again became a simple traffic stop. As in Affsprung, 12 questions to Defendant, who was a passenger, were not reasonably related to the 13 original traffic investigation. The instant case is also similar to Haywood, where 14 questions about weapons were not reasonably related to a traffic stop and where the 15 officer had no information upon which to base a suspicion that the passenger might 16 be armed and dangerous. 17 Furthermore, Officer Johnston could not rely on his impression that Ms. 18 Stephens looked like a drug user to create reasonable suspicion to question Defendant. 19 Officer Johnston did not suspect Ms. Stephens was under the influence of drugs. The

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1 fact that he suspected that she used drugs at other times, combined with her extreme 2 nervousness, may have given him reason to question her about her travel plans. 3 However, as in Affsprung, Defendant’s presence in a car with Ms. Stephens did not 4 give rise to reasonable suspicion that Defendant might also be involved in a crime. 5 See 2004-NMCA-038, ¶ 20; see also Olson, 2011-NMCA-056, ¶ 17 (holding that the 6 presence of a passenger who was a known prostitute in the vehicle did not create 7 reasonable suspicion that the driver had solicited her to perform a sex act). Even 8 assuming the driver’s appearance provided reasonable suspicion to question the driver 9 about her travel plans, on the facts before us that reasonable suspicion did not 10 automatically extend to the passenger. To the extent that the district court found that 11 Defendant looked like he might be under the influence of drugs, we need only note 12 that the officer testified that he observed these facts after he had returned Defendant’s 13 identification. 14 Finally, we must address Leyva’s assertion that “[t]he overall reasonableness 15 of the stop continues to be ‘determined by balancing the public interest in the 16 enforcement of traffic laws against an individual’s right to liberty, privacy, and 17 freedom from arbitrary police interference.’” Leyva, 2011-NMSC-009, ¶ 55. On one 18 hand, this balancing test is at odds with the rest of the opinion and does not appear to 19 be used in other cases (indeed, it was not used in Leyva). On the other hand, the

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1 Duran Court made passing reference to a balancing of interests in its analysis. See 2 Duran, 2005-NMSC-034, ¶ 37. Our case law does not inform us how or when this 3 balancing test should be considered. However, we need not consider this issue today. 4 At the point when Officer Johnston questioned Defendant about his travel plans in this 5 case, the State had determined that no traffic laws had been violated, at least by 6 Defendant, who was a passenger. The State therefore had no remaining interest in 7 traffic enforcement to balance against the minimal intrusion of the additional 8 questioning. 9 Our Supreme Court has repeatedly stated that an officer need not ignore what 10 he sees and hears, but must respond to the “emerging tableau” he is confronted with. 11 Implicit in this, and in our requirement that questions be reasonably related to the 12 initial stop or supported by reasonable suspicion, is that the “tableau” must already 13 have emerged. In this case, as in Affsprung, Haywood, and Olson, the officer began 14 questioning Defendant before the “emerging tableau” justified an expansion of the 15 investigation. In doing so, he violated Defendant’s rights under Article II, Section 10 16 of the New Mexico Constitution. 17 III. CONCLUSION 18 For the foregoing reasons, we reverse the order denying the motion to suppress 19 and remand for further proceedings consistent with this Opinion.

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1 IT IS SO ORDERED.

2 3 MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:

5 6 MICHAEL E. VIGIL, Judge

7 8 LINDA M. VANZI, Judge