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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. A-1-CA-35432 5 MANUEL VILLARREAL, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Kea W. Riggs, District Judge
9 Hector H. Balderas, Attorney General 10 Maha Khoury, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Robert E. Tangora, L.L.C. 14 Robert E. Tangora 15 Santa Fe, NM
16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Chief Judge.
1 {1} Defendant Manuel Villarreal was convicted of possession of methamphetamine, 2 possession of a firearm by a felon, and concealing identity, pursuant to a conditional 3 plea. See NMSA 1978, § 30-31-23(A) (2011); NMSA 1978, § 30-7-16(A) (2001); 4 NMSA 1978, § 30-22-3 (1963). Defendant reserved the right to appeal the district 5 court’s denial of his motion to suppress evidence. On appeal, Defendant argues that 6 he was subjected to a pretextual stop in violation of the New Mexico Constitution. We 7 hold that the stop of Defendant was not pretextual, and we therefore affirm the district 8 court’s denial of the motion to suppress. 9 BACKGROUND 10 {2} At the suppression hearing, Agent John Clay of the Chaves County Metro 11 Narcotics Task Force Unit testified that he and two other officers were traveling 12 northbound in an unmarked police car on a residential street in Roswell, New Mexico. 13 Agent Clay saw Defendant walking northbound with two other men, Matthew 14 Sifuentes and Herman Najar. Defendant and Sifuentes were walking in the street in 15 violation of NMSA 1978, Section 66-7-339(A) (1978), which provides, “Where 16 sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon 17 an adjacent roadway.” Agent Clay engaged his emergency lights and approached the 18 men along with the other officers. As they approached, Agent Clay saw Defendant 19 turn away as if to make the right side of his body less visible. Defendant also had his 20 right hand in his jacket pocket.
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1 {3} Agent Clay recognized Sifuentes based on several previous contacts as someone 2 who routinely possessed a handgun. He asked Sifuentes if he was armed, and 3 Sifuentes said no. He then asked Defendant and Najar if they were armed, and they 4 also responded no. Agent Clay then approached Defendant who sat down on the curb 5 without being asked to do so. Agent Clay observed that Defendant was acting 6 extremely nervous. Agent Clay asked Defendant his name and date of birth, and 7 Defendant falsely said his name was “Matthew Villareal.” Defendant then stuttered 8 while giving his birth date and also gave two different birth years. 9 {4} Agent Clay had dispatch run the name and birth date Defendant provided, but 10 did not conduct a pat-down. However, he asked Defendant to remove his right hand 11 from his jacket pocket, and Agent Clay saw that it was covered with a blue latex 12 glove, although Defendant’s left hand did not have a glove. Agent Clay also observed 13 that Defendant’s jacket pocket continued to sag as if it contained something heavy 14 even after Defendant removed his hand. Agent Clay walked onto the sidewalk behind 15 Defendant and could see the handle of a gun in Defendant’s pocket in plain view. 16 Agent Clay then told Defendant to put his hands on his head and handcuffed him. 17 Agent Clay retrieved the gun and also found methamphetamine inside Defendant’s 18 pocket. 19 {5} Defendant filed a motion to suppress, arguing in part that he was subjected to 20 a pretextual stop in violation of Article II, Section 10 of the New Mexico Constitution.
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1 The district court denied the motion, ruling that there was no basis to conclude that 2 Agent Clay had an ulterior motive when he stopped Defendant and the others. 3 Defendant then entered into a conditional plea, reserving the right to appeal the denial 4 of the motion to suppress. 5 STANDARD OF REVIEW 6 {6} “The review of a denial of a motion to suppress presents a mixed question of 7 fact and law.” State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. 8 “[T]he appellate court reviews the facts for substantial evidence, deferring to the lower 9 court’s findings regarding the evidence presented.” State v. Goodman, 2017-NMCA- 10 010, ¶ 5, 389 P.3d 311. “The application of law to fact is a legal determination, which 11 we review de novo.” State v. Garnenez, 2015-NMCA-022, ¶ 13, 344 P.3d 1054. 12 DISCUSSION 13 {7} Defendant contends that his stop was illegal because it was pretextual. 14 Defendant relies exclusively on State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 15 P.3d 143, for this argument. Ochoa involved a traffic stop and specifically discussed 16 pretextual stops in that context. See id. ¶¶ 4, 40 (holding that a pretextual traffic stop 17 violates Article II, Section 10 of the New Mexico Constitution if the real purpose for 18 the stop is not supported by reasonable suspicion or probable cause, and the officer 19 would otherwise not have stopped the vehicle). No New Mexico case has decided that 20 Ochoa applies to a pedestrian stop, as occurred in this case, and Defendant does not
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1 make that argument on appeal. Conversely, the State does not argue that Ochoa is 2 inapplicable to pedestrian stops. For purposes of this appeal, however, we will assume 3 without deciding that Ochoa applies to the circumstances of this case. For the 4 following reasons, we conclude that Defendant has not met his burden to show that 5 the stop was pretextual. 6 {8} “[A] pretextual stop [is] a detention supportable by reasonable suspicion or 7 probable cause to believe that a traffic offense has occurred, but is executed as a 8 pretense to pursue a ‘hunch,’ a different[,] more serious investigative agenda for 9 which there is no reasonable suspicion or probable cause.” State v. Gonzales, 2011- 10 NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (internal quotation marks and citation 11 omitted). We follow a three-step approach to determine whether a pretextual stop has 12 occurred. We first determine whether there was reasonable suspicion or probable 13 cause for the stop and then decide if the officer’s actual motive for the stop was 14 unrelated to the justification for the stop. Ochoa, 2009-NMCA-002, ¶ 40. “The 15 defendant has the burden of proof to show pretext based on the totality of the 16 circumstances [and, i]f the defendant has not placed substantial facts in dispute 17 indicating pretext, then the seizure is not pretextual.” Id. However, “[i]f the defendant 18 shows sufficient facts indicating the officer had an unrelated motive that was not 19 supported by reasonable suspicion or probable cause, then there is a rebuttable 20 presumption that the stop was pretextual[,]” at which point the burden shifts to the
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1 state to prove that the officer would have stopped the defendant even without the 2 alternate motive. Id. 3 {9} The parties do not dispute that, when the officers encountered him, Defendant 4 was walking in the street next to a sidewalk. Agent Clay testified that he saw 5 Defendant and Sifuentes walking in the road and that he would have had to pull into 6 the oncoming traffic lane to avoid them. These facts are sufficient to establish a 7 reasonable suspicion to stop Defendant for violating the law. See generally NMSA 8 1978, § 66-7-339(A) (1978) (“Where sidewalks are provided it shall be unlawful for 9 any pedestrian to walk along and upon an adjacent roadway.”). 10 {10} The burden then shifts to Defendant to show that the police had an unrelated 11 motive for stopping him that was not supported by reasonable suspicion. See Ochoa, 12 2009-NMCA-002, ¶ 40 (stating that if reasonable suspicion exists to support a stop, 13 to establish that the stop was pretextual the defendant has the burden to show that, 14 under the totality of the circumstances, there was an unrelated motive for the stop that 15 was not supported by reasonable suspicion). “The totality of the circumstances 16 includes considerations of the objective reasonableness of an officer’s actions and the 17 subjective intent of the officer—the real reason for the stop.” Id. ¶ 39. 18 {11} Defendant asserts that the officers’ real motive in stopping him and his 19 companions was to investigate Sifuentes as a suspect in a homicide and to search them 20 for weapons. Defendant argues that the investigation that occurred after the stop bore
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1 no relation to the municipal code violation for walking in the roadway, and that on 2 stopping them, Agent Clay immediately questioned Sifuentes about weapons. 3 Defendant also points out that Agent Clay never informed the men that they were 4 being stopped for walking in the street, and Defendant was never given a citation for 5 violating the ordinance. Defendant also argues that there was no evidence that 6 Defendant’s walking in the street presented a danger to anyone. 7 {12} We first disagree that there was nothing to show that Defendant’s walking in 8 the street created a danger because Agent Clay testified that it would have been 9 necessary to pull into the oncoming traffic lane to avoid the men. See id. ¶ 41 10 (considering whether the articulated reason for the stop was necessary for the 11 protection of traffic safety when determining whether a stop is pretextual). With 12 respect to the questions to the group about weapons, the district court determined that 13 they were reasonable under the circumstances and did not establish a pretextual stop. 14 The district court considered that Agent Clay was aware from prior encounters that 15 Sifuentes was often armed. Additionally, when Agent Clay approached the group, 16 Defendant tried to hide the right side of his body from the officers’ view and was 17 acting extremely nervous. Under these circumstances, we agree with the district court 18 that the brief questioning regarding weapons was reasonable and insufficient to show 19 a pretextual motive for the stop. See State v. Chapman, 1999-NMCA-106, ¶ 17, 127 20 N.M. 721, 986 P.2d 1122 (holding that it was lawful for the officer to ask questions
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1 about weapons where the officer described nervousness as well as specific behaviors 2 that explained why he was concerned that the defendant was dangerous); State v. 3 Flores, 1996-NMCA-059, ¶ 11, 122 N.M. 84, 920 P.2d 1038 (stating that when 4 making an investigatory stop, when an officer reasonably believes the individual may 5 be armed and dangerous, he or she may check for weapons to ensure personal safety). 6 {13} The district court also considered that Agent Clay accepted the men’s denials 7 that they were armed, and he did not ask further questions or conduct a pat-down 8 search for weapons. Although Agent Clay ultimately recovered a weapon from 9 Defendant, that occurred only after Agent Clay saw the handle of a gun in plain view 10 sticking out of his pocket. Information that Defendant was in possession of a gun 11 developed in the course of the encounter, however, and Defendant has not shown that 12 it was the true motive for the stop. 13 {14} Nor do we see anything in the record to support Defendant’s claim that the real 14 motive for the stop was to investigate Sifuentes as a suspect in a homicide. As the 15 district court found, the officers did not ask any questions of the group relating to any 16 separate investigation. Additionally, the district court found other factors weighing 17 against pretext such as the non-confrontational manner of the officers during the stop, 18 Agent Clay’s testimony that the only reason for the stop was the municipal code 19 violation, and the short period of time. See Ochoa, 2009-NMCA-002, ¶ 41 20 (considering factors such as the conduct, demeanor, and statements of the officer
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1 during the stop and the officer’s testimony as to the reason for the stop in determining 2 whether a stop was pretextual). For these reasons, we agree with the district court that, 3 under the totality of the circumstances, Defendant failed to show that Agent Clay had 4 a motive in stopping him other than for the municipal ordinance violation. See id. ¶ 5 40 (“If the defendant has not placed substantial facts in dispute indicating pretext, then 6 the seizure is not pretextual.”). 7 {15} As a final matter, we note that defense counsel argues in his brief in chief that 8 “Agent Clay[] candidly testified his stop was to investigate the possession of firearms, 9 for which there was no sufficient legal basis.” Counsel also states that “Agent Clay 10 relied upon [Defendant’s] nervousness to justify detaining him.” Counsel has not cited 11 to the record for these assertions, and our review of the suppression hearing reveals 12 no such testimony.
13 CONCLUSION 14 {16} For these reasons, we affirm the district court’s denial of the motion to 15 suppress. 16 {17} IT IS SO ORDERED.
17 __________________________________ 18 LINDA M. VANZI, Chief Judge
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1 WE CONCUR:
2 _________________________________ 3 M. MONICA ZAMORA, Judge
4 _________________________________ 5 JENNIFER L. ATTREP, Judge