State v. Scheller
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,865 5 KENNETH SCHELLER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Gary L. Clingman, District Judge 9 10 11 12 Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM 13 for Appellee 14 Bennett J. Baur, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 19 HANISEE Judge. MEMORANDUM OPINION 1 {1} Defendant appeals from his convictions for trafficking a controlled substance 2 in violation of NMSA 1978, Section 30-31-20 (2006); possession of a controlled 3 substance in violation of NMSA 1978, Section 30-31-23(A) (2011); and use or 4 possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1(A) 5 (2001), following a conditional plea. This Court issued a calendar notice proposing 6 to conclude that the district court erred in denying Defendant’s motion to suppress. 7 Specifically, we proposed to hold that, because Officer Berdoza appeared to have 8 relied solely on Defendant’s nervousness to justify his expansion of the scope of the 9 stop, that the expansion was constitutionally impermissible. The State has filed a 10 response concurring with this Court’s proposed summary reversal and informing this 11 Court that it will not be filing a memorandum in opposition. Accordingly, for the 12 reasons stated in this Court’s notice of proposed disposition, we reverse Defendant’s 13 convictions. 14 {2} IT IS SO ORDERED. 15 16 17 WE CONCUR: J. MILES HANISEE, Judge 18 19 LINDA M. VANZI, Chief Judge 2 1 2 MICHAEL E. VIGIL, Judge 3
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