State v. Taylor

1999 NMCA 022, 973 P.2d 246, 126 N.M. 569
New Mexico Court of Appeals·Decided November 25, 1998·No. 18681·Published·Cited by 67 cases

Opinions

OPINION

FLORES, Judge.

{1} The State appeals from the trial court’s order granting Defendant’s motion to suppress evidence. Defendant argued, and the trial court agreed, that Defendant’s federal and state constitutional right to be free from unlawful searches was violated when, during an investigatory stop, a second officer approached Defendant and began questioning him without reasonable suspicion. Although we agree with the State that the trial court erred in concluding that the second officer was required to have independent reasonable suspicion before approaching and questioning Defendant, we uphold the trial court’s order suppressing the evidence of cocaine because the second officer’s questions exceeded the scope of the reasonable suspicion, and because Defendant’s consent, even if voluntary, did not purge the taint of the illegal questions. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} On August 28, 1996, Officer Greg Tiano (Officer Tiano), who was on patrol alone, was stopped by a citizen, Jay Beam (Beam). Beam informed Officer Tiano that he had seen a white, two-door Oldsmobile sedan that looked like the car used in the theft of his air compressor approximately six months earlier. Beam also told Officer Tiano that he had seen the two men in the Oldsmobile throwing trash out the windows of the car. Based on this citizen complaint, Officer Tiano decided to investigate, in part because littering is a citable offense. Because Beam could not provide verbal directions to the location of the Oldsmobile, Officer Tiano followed Beam to a dirt lot where the identified car was parked. Lamont Taylor (Defendant) was in the car, as was Larry Johnson, a passenger. When Officer Tiano arrived, approximately seventeen other people were present in the parking lot.

{3} Officer Tiano parked approximately fifty or sixty feet in front of Defendant’s car. Because he considered this parking position unsafe, Officer Tiano radioed for backup before approaching Defendant’s car. Officer Tiano then approached Defendant and his passenger and informed them that he had been told that they were littering. Defendant and his passenger denied throwing trash. Officer Tiano was satisfied that he could do nothing more regarding the littering allegation, but asked the men in the car if they would produce identification. They agreed. Officer Tiano then asked if he could check for wants and warrants. The men agreed, so Officer Tiano returned to his vehicle to run the check for wants and warrants.

{4} Officer Tiano waited no longer than two minutes for backup to arrive, and then began the wants and warrants check. Officer Nelson was the first backup officer to arrive. Officer Nelson arrived in a second vehicle and immediately engaged in a brief conversation with Officer Tiano about the nature of the ongoing investigation. Based on this conversation, Officer Nelson believed that Officer Tiano was in possession of Defendant’s driver’s license and that Officer Tiano intended to continue his investigation. Officer Nelson then parked behind Defendant’s car without blocking Defendant’s egress. While Officer Tiano was performing the wants and warrants check, Officer Nelson approached Defendant and asked him if he had any guns, alcohol, or illegal drugs in the car. Defendant said that he did not. Officer Nelson then asked if he could search Defendant’s car to see if there were any guns, alcohol, or illegal drugs. Defendant agreed. Upon Officer Nelson’s request, Defendant and his passenger stepped out of the vehicle so that Officer Nelson could conduct the search. During his search of the car, Officer Nelson found a cigarette package located between the seat and the hump of the transmission housing that contained what appeared to be several rocks of crack cocaine. After having a mobile drug investigation unit confirm that the rocks were cocaine, Officer Nelson arrested Defendant.

{5} At some point during this interaction, a third police officer arrived. Officer McFeeters parked his patrol car behind Officer Nelson’s car. The record is unclear, but it appears that Officer McFeeters did not actively participate in the questioning, search, or arrest of Defendant. Likewise, Officer Tiano did not take part in the search and arrest. Officer Tiano completed his wants and warrants check, which uncovered no outstanding wants or warrants, just as Defendant was being arrested for possession of cocaine with intent to distribute, contrary to NMSA 1978, § 30-31-20 (1990). Prior to trial, Defendant moved to suppress the evidence of crack cocaine. The court granted Defendant’s motion on the ground that Officer Nelson did not have reasonable suspicion necessary to conduct a second investigatory stop.

{6} On appeal, the State argues that Officer Nelson’s approach of Defendant was not a second investigatory stop requiring reasonable suspicion, but was part of Officer Tiano’s initial, and valid, investigatory stop. As a consequence, Officer Nelson was permitted to seek consent to search Defendant’s car. In addition, the State argues that the search itself was valid because it was conducted with Defendant’s voluntary consent. Accordingly, the evidence of crack cocaine was obtained lawfully and was therefore admissible. We will address each issue in order.

II. DISCUSSION

A. The Initial Investigatory Stop Was Valid Because it was Based on Reasonable Suspicion

{7} We first address whether Officer Tiano’s initial approach of Defendant’s vehicle was supported by reasonable suspicion of criminal activity, or was a pretextual approach in order to investigate a more serious offense. A police officer may approach an individual in order to investigate possible criminal behavior when the officer has “a reasonable suspicion that the law has been or is being violated.” State ex rel. Taxation & Revenue Dep’t, Motor Vehicle Div. v. Van Ruiten, 107 N.M. 536, 538, 760 P.2d 1302, 1304 (Ct.App.1988). An investigatory stop is based on reasonable suspicion if the officer is “aware of specific articulable facts, together with rational inferences from those facts, that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.” State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232, 923 P.2d 599 (citations and internal quotations omitted).

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State v. Taylor, 1999 NMCA 022, 973 P.2d 246, 126 N.M. 569 (N.M. Ct. App. 1998).

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