State v. Hernandez
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ___________ 3 Filing Date: October 13, 2015 4 NO. 33,156 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 OSCAR HERNANDEZ, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 11 Darren M. Kugler, District Judge 12 13 14 15 Hector H. Balderas, Attorney General Santa Fe, NM M. Anne Kelly, Assistant Attorney General Albuquerque, NM 16 for Appellee 17 Jorge A. Alvarado, Chief Public Defender 18 Tania Shahani, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 1 OPINION 2 SUTIN, Judge. 3 I. Introduction 4 Defendant Oscar Hernandez challenges the district court’s denial of his motion {1} 5 to suppress contraband seized from him and statements he made during an 6 investigatory stop of an SUV in which he was a passenger. He asserts that law 7 enforcement agents did not have reasonable suspicion when they stopped the SUV. 8 We hold that the stop was supported by reasonable suspicion, and we affirm the 9 district court. 10 Procedural History 11 {2} Following his arraignment for possession of a controlled substance, in violation 12 of NMSA 1978, Section 30-31-23(E) (2011), Defendant filed a motion to suppress 13 the controlled substances seized, as well as all statements made by him, following an 14 August 23, 2012, stop of an SUV in which he was a passenger. The district court held 15 an evidentiary hearing on the motion during which the State proffered testimony from 16 the two undercover agents concerning events preceding the stop of the SUV. 17 {3} The district court denied Defendant’s motion to suppress, listing the following 18 factors that were considered in its totality of the circumstances analysis. 19 20 21 22 23 24 (1) the established drug house through undercover buys, (2) previous identification of the SUV through an undercover buy at [a] separate drug house, (3) observation of activities consistent with previous drug buys which included the dropping off and picking up of the male passengers, and (4) the [three to five] minute time frame that was found to be consistent with drug trafficking. 1 Following the denial of Defendant’s motion to reconsider, Defendant entered a 2 conditional plea, reserving his right to appeal the district court’s denial of his motion 3 to suppress. Judgment was entered against Defendant, and Defendant filed a timely 4 notice of appeal. 5 II. Background 6 This case involved an ongoing narcotics investigation that culminated in the {4} 7 stop of the SUV and the arrest of Defendant, who was a passenger in the vehicle. 8 Following the stop, Defendant was described by another passenger in response to an 9 agent’s query about the location of the narcotics. The stop was based on three 10 previous incidents occurring in the agents’ ongoing investigation, incidents that the 11 State maintains supported reasonable suspicion for the stop of the SUV. We describe 12 those incidents. 13 A. July 3, 2012 14 Undercover narcotics Agents Gabriel Arenibas and Joseph Misquez arranged {5} 15 an undercover heroin buy on July 3, 2012, through a man named Kyle Mendenhall. 16 The agents referred to Mendenhall as a “suspect” and used him not as a confidential 17 informant, but rather as a source of drugs and a way to track down other heroin 18 dealers in the area.1 The agents drove with Mendenhall to the Oñate Greens Trailer 19 20 21 22 23 1 Our impression that Mendenhall was not a confidential informant and was unaware of the agents’ positions with law enforcement is enhanced by the fact that no mention appears in the record of the agents conducting controlled buys, where the informant is first checked to see if they possess drugs prior to making the buy at the request of officers, see State v. Lujan, 1998-NMCA-032, ¶ 2, 124 N.M. 494, 953 P.2d 2 1 Park. Mendenhall directed the agents toward a trailer in Space 104 in the trailer park. 2 He requested that the agents drop him off a few spaces away so that he could 3 approach on foot, as the resident of Space 104 did not like new people to go there. 4 The agents parked a few spaces away from Space 104, moved to a vantage point 5 where they could observe Mendenhall, and saw him go into the white trailer. 6 Mendenhall remained in the trailer for two to five minutes, returned to the car, they 7 proceeded to Mendenhall’s residence to drop him off, and Mendenhall gave a packet 8 of heroin to the agents. Both agents testified that Mendenhall’s presence in the trailer 9 for two to five minutes was consistent with drug trafficking. 10 B. July 23, 2012 11 Sometime after the July 3 buy, Mendenhall violated his parole, and the agents {6} 12 were no longer able to make buys through him. The agents accepted an offer from 13 Brandon Hall and Zach Malchete, who were relatives of Mendenhall, “to hook us up 14 meaning to sell us heroin” and arranged to buy heroin from them instead of 15 Mendenhall.2 On July 23, 2012, Hall and Malchete met with Agent Misquez, while 16 Agent Arenibas conducted surveillance from approximately twenty feet away. Agent 17 29 (describing a typical controlled buy), and the fact that his role in the investigation 18 ended due to an unrelated parole violation. 19 20 21 22 23 2 It appears from the record that the agents’ interactions with Hall and Malchete were not controlled buys and that Hall and Malchete were also not confidential informants. This position is based on repeated references to “undercover buys” with Hall and Malchete, references to them as “suspects,” and the fact that Agent Arenibas remained with Agent Misquez during the July 23 buy for “safety.” 3 1 Misquez gave Malchete $40 to purchase the heroin, and Malchete left, stating that he 2 had to go to the Oñate Greens to his “connect.” Agent Misquez testified that 3 Malchete, Hall, Mendenhall, and several other subjects were part of the investigation 4 that the agents were working, and they knew their sources to be at two locations, one 5 of which was Space 104 in the Oñate Greens Trailer Park. Agent Misquez confirmed 6 that Malchete stated that he was “going to that white trailer,” and Hall also confirmed 7 the same information to Agent Misquez, that it was the white trailer in Space 104 8 from which Mendenhall had purchased heroin on July 3. Malchete returned 9 approximately five to ten minutes later; upon his return, Malchete gave Agent 10 Misquez $40 worth of heroin. 11 C. August 10, 2012 12 On August 10, 2012, the agents contacted Hall in order to purchase more {7} 13 heroin; Hall did not have the amount that the agents requested, but offered to get it 14 if they agreed to drive him to a location where he could purchase it. The agents 15 agreed, and Hall directed them to 2801 Merriweather Street. This buy played out 16 under the “same circumstances” as the July 3 purchase by Mendenhall at Space 104, 17 in that the agents parked down the street from the house and waited while Hall went 18 into the Merriweather home on foot; again, the reason for this was that the individual 19 at the Merriweather home disliked new people coming to the house. While Hall was 20 in the house, the agents noticed a tan or golden colored SUV parked in the driveway 21 of the Merriweather home and “got the plate” of that vehicle. Hall came out of the 22 residence three to five minutes later, got into the agents’ car, and handed Agent 4 1 Misquez a small amount of heroin. At the time, the agents did not know who resided 2 at 2801 Merriweather. The agents later determined that a family lived at the residence 3 and that the SUV was registered to a person living at that address. 4 D. August 23, 2012 5 The agents participated in other buys with Hall and Malchete between July 3 {8} 6 and August 23, but in none of those additional buys did Hall and Malchete go to 7 Space 104; instead, they took the agents to different addresses to buy heroin. The 8 agents began conducting surveillance on Space 104 on their own. At the inception of 9 the August 23rd surveillance, the agents determined that they would stop any vehicle 10 engaged in “suspicious activity” and also had a marked police unit waiting in the area 11 to conduct such stops. The agents observed a gold SUV stop in the trailer park, drop 12 off two passengers down the road from Space 104, and proceed to pull into Space 13 104’s driveway. The vehicle remained there for three to five minutes, and the two 14 remaining individuals in the SUV “made contact with the subject inside Space 104.” 15 The vehicle left Space 104, picked up the two passengers down the street, and exited 16 the trailer park. Agent Arenibas testified that the agents noticed that the gold SUV 17 was the same one they had seen parked outside 2801 Merriweather during the buy on 18 August 10. When the SUV passed in front of the agents, they were able to see its 19 license plate number, thereby confirming that the SUV was the same one that they 20 had seen outside of 2801 Merriweather. The SUV having been parked at Space 104 21 for the short length of time it was parked there, and having dropped off and picked 22 up the passengers down the street from Space 104, was consistent with drug 5 1 trafficking that the agents had observed during the previous undercover buys during 2 their investigation. Based on the circumstances of this August 23rd buy and the 3 similarities it had with the earlier undercover heroin purchases at Space 104 and at 4 2801 Merriweather, the agents believed that the occupants of the SUV were involved 5 in picking up or purchasing heroin. 6 {9} Because of these similarities, as well as the same SUV’s involvement, the 7 agents requested that the marked police unit stop the SUV. The stop was conducted 8 approximately one block away from the trailer park, minutes after the SUV pulled 9 away from Space 104. The agents drove to the place where the marked unit had 10 stopped the SUV, approached the vehicle, advised the occupants of the narcotics11 related reason for the stop, and separated them. After a female passenger described 12 Defendant as being the person with the heroin, Defendant was confronted by the 13 agents, and eventually, Defendant voluntarily gave Agent Misquez a package of 14 heroin. 15 III. Discussion 16 Standard of Review 17 {10} When we review an appeal from a determination on a motion to suppress in a 18 criminal case, we look at the totality of circumstances. State v. Leyva, 19 2011-NMSC-009, ¶¶ 30, 59, 149 N.M. 435, 250 P.3d 861; State v. Vandenberg, 20 2003-NMSC-030, ¶ 19, 134 N.M. 566, 81 P.3d 19. We view the facts in a light most 21 favorable to the prevailing party. State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 22 428, 211 P.3d 885. At the same time, if the district court makes findings of fact, and 6 1 if any finding is attacked for lack of substantial evidence, we will review the finding 2 under a substantial evidence standard of review. State v. Neal, 2007-NMSC-043, 3 ¶ 15, 142 N.M. 176, 164 P.3d 57. If the finding is supported by substantial evidence, 4 we will defer to the court’s finding. Id. Once the operative facts are ascertained, we 5 review the constitutional reasonableness of the actions of law enforcement. 6 Vandenberg, 2003-NMSC-030, ¶ 19; State v. Attaway, 1994-NMSC-011, ¶¶ 6-10, 7 117 N.M. 141, 870 P.2d 103. A constitutional reasonableness analysis engages a 8 process of evaluating both fact and law and is appropriately labeled a mixed question 9 of fact and law. Attaway, 1994-NMSC-011, ¶¶ 6-7; see generally Randall H. Warner, 10 All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101 (2005). Despite 11 the fact that our review requires determinations of what the operative facts are, 12 because the process involves evaluative judgments in regard to reasonableness, we 13 review the district court’s determination de novo. Vandenberg, 2003-NMSC-030, 14 ¶¶ 17, 19; Attaway, 1994-NMSC-011, ¶ 10. 15 The Stop Was Supported by Reasonable Suspicion 16 {11} The Fourth Amendment to the United States Constitution “prohibits 17 unreasonable searches and seizures . . ., and its protections extend to brief 18 investigatory stops of persons or vehicles that fall short of traditional arrest.” United 19 States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks and citation 20 omitted).3 While warrantless seizures are presumed to be unreasonable, State v. 3 21 We limit our analysis to the federal constitution when the defendant does not 22 argue on appeal how and why the New Mexico Constitution provides greater 7 1 Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95, brief investigatory stops 2 are permissible if they are supported by reasonable suspicion that criminal activity 3 may be afoot. Arvizu, 534 U.S. at 273. 4 {12} “[T]he concept of reasonable suspicion is somewhat abstract” and has not been 5 reduced to a neat set of legal rules. Arvizu, 534 U.S. at 274. In reviewing a reasonable 6 suspicion determination, an appellate court “must look at the totality of the 7 circumstances” to determine “whether the detaining officer [had] a particularized and 8 objective basis for suspecting legal wrongdoing.” Id. at 273 (internal quotation marks 9 and citation omitted). The appellate court must give due weight to the factual 10 inferences and deductions drawn by a law enforcement officer based upon his 11 experience and specialized training. Id. at 273-74. “Although an officer’s reliance on 12 a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need 13 not rise to the level required for probable cause, and it falls considerably short of 14 satisfying a preponderance of the evidence standard[.]” Id. at 274 (internal quotation 15 marks and citation omitted). Finally, we are not to engage in a “divide-and-conquer 16 analysis[,]” looking at each act in a series of acts that, taken alone, may be susceptible 17 of an innocent explanation. Id. “A determination that reasonable suspicion exists . . . 18 need not rule out the possibility of innocent conduct.” Id. at 277. 19 protection. See generally State v. Lorenzo P., 2011-NMCA-013, ¶ 9, 149 N.M. 373, 20 249 P.3d 85. Defendant provides no such argument here. We therefore analyze 21 Defendant’s case only under the Fourth Amendment. 8 1 {13} In Defendant’s view, the agents’ investigations “were fragmented and flawed,” 2 were based on their “hunch that [the SUV] was involved in drug-related activity[,]” 3 and were not adequate to support reasonable suspicion and the seizure of the SUV. 4 Defendant relies on Neal, 2007-NMSC-043. In Neal, a law enforcement officer 5 effected a valid traffic stop of the defendant and then detained the defendant for ten 6 minutes to await a drug dog to perform a perimeter sniff of his vehicle. Id. ¶¶ 1, 28, 7 31. Our Supreme Court held that the factual bases asserted by the officer to justify the 8 ten minute detention did not satisfy the reasonable suspicion standard. Id. ¶ 31. The 9 officer’s stated grounds for detaining the defendant were that the defendant had 10 parked in front of a house that was under surveillance in an ongoing drug 11 investigation, the defendant had a discussion with the resident who was a felon, the 12 officer’s “belief that a drug transaction had taken place[,]” the defendant’s demeanor, 13 his desire to leave, and the fact that the defendant had a criminal history. Id. ¶¶ 9, 28, 14 30. The Court determined that the defendant’s innocent conduct, presence at a known 15 drug house, and prior involvement in drug-related activity were not sufficient to 16 constitute reasonable suspicion to detain the defendant beyond the valid traffic stop. 17 Id. ¶¶ 9, 23, 31. The Court reasoned that “[the d]efendant’s mere association with a 18 convicted felon . . ., who was under surveillance in an ongoing drug investigation, 19 was insufficient to create reasonable suspicion[,]” id. ¶ 30, explaining that the totality 20 of the facts presented did not “constitute the type of individualized, specific, 21 articulable circumstances necessary to create reasonable suspicion that [the 22 d]efendant himself was involved in criminal activity[.]” Id. ¶ 31. Instead, it 9 1 characterized the circumstances as “the type of conjecture and hunch we have rejected 2 in the past as insufficient to constitute reasonable suspicion.” Id. 3 {14} Defendant’s reliance on Neal derives from his view that the SUV’s mere 4 presence at a house that was under investigation for suspected drug activity is 5 inadequate to support reasonable suspicion. See id. ¶¶ 4, 28, 30 (stating, among other 6 things, that the defendant’s presence at a house that was under investigation for drug 7 activity did not give rise to reasonable suspicion). We are not persuaded by this 8 comparison. Here, the grounds for the agents’ reasonable suspicion were based on far 9 more than the SUV’s mere presence at a suspected drug house. 10 {15} Further, Defendant’s arguments ignore the teachings of Arvizu. See 534 U.S. 11 273-74. Defendant parses the agents’ investigation and attacks the reasonableness of 12 the underlying inferences and conclusions as to each stage of the investigation that, 13 combined, ultimately led to the stop.4 14 {16} For example, Defendant argues that the agents “could not be certain” that the 15 Merriweather address or Space 104 were sources of heroin. To that end, Defendant 16 points to the facts that the agents did not see or hear any drug transaction at either 17 address and did not confirm that Mendenhall, Hall, or Malchete were honest in their 18 19 20 21 22 23 24 4 The special concurrence follows suit and goes further than Defendant by more finely parsing the facts with innocent explanations for the circumstances observed by the agents during their ongoing investigation. Defendant’s and the special concurrence’s approaches fail to consider the totality of the circumstances, fail to give due deference to law enforcement’s training and experience, and engage in an unwarranted divide-and-conquer approach by attempting to find an innocent explanation for each piece and parcel of the ongoing investigation. 10 1 representations that they purchased heroin from either address by somehow ensuring 2 that they did not have heroin before they went to those addresses or somehow 3 confirming that they did not keep the agents’ money themselves. Defendant’s 4 argument evokes the sense of certainty that is required in a probable cause 5 determination, but it misses the mark in terms of the reasonable suspicion standard. 6 See Alabama v. White, 496 U.S. 325, 330 (1990) (stating that because “[r]easonable 7 suspicion is a less demanding standard than probable cause” it “can arise from 8 information that is less reliable than that required to show probable cause”); United 9 States v. Cortez, 449 U.S. 411, 418 (1981) (stating that the process of developing 10 reasonable suspicion sufficient to justify a brief investigatory stop “does not deal with 11 hard certainties, but with probabilities” developed from “common sense conclusions 12 about human behavior . . . as understood by those versed in the field of law 13 enforcement”). The agents’ training and experience, their observations during the 14 drug buys, and the involvements of the SUV, objectively support the agents’ 15 reasonable suspicion that the addresses were sources of heroin5 and the SUV was 16 17 18 19 20 21 22 23 24 25 26 5 Arguably, the agents’ observations were sufficient to establish Mendenhall’s and Hall’s reliability even under the heightened standard of probable cause applicable to a search warrant. See, e.g., State v. Mejia, 766 P.2d 454, 457 (Wash. 1989) (en banc) (considering the reliability of information gained from a middleman who purchased drugs for a confidential informant and concluding that law enforcement’s observations of his travel to a suspected drug house, then back to the confidential informant to deliver drugs demonstrated probable cause); State v. Morehouse, 684 P.2d 1348, 1350 (Wash. Ct. App. 1984) (stating that, in the context of a search warrant for a suspected drug house, any deficiency concerning a middleman’s reliability was overcome by law enforcement’s “observation of two separate [drug] transactions involving the same residence and the same pattern of activity”). 11 1 connected. See Arvizu, 534 U.S. at 273-74 (discussing the standard used to determine 2 whether law enforcement “[had] a particularized and objective basis for suspecting 3 legal wrongdoing” (internal quotation marks and citation omitted)). 4 {17} Defendant also attacks reasonable suspicion on the ground that neither the SUV 5 nor its owner was known to have been previously involved in any suspicious, drug6 related activity. Defendant states that “[t]he agents had not identified [to whom] at the 7 Merriweather residence the SUV belonged . . . or if that person was, in fact, involved 8 with drug sales.” In support of this attack, Defendant relies on State v. Graves, 19949 NMCA-151, ¶ 8, 119 N.M. 89, 888 P.2d 971, for the inapplicable proposition that, 10 in Defendant’s words, “presence on the premises subject to a search warrant does not 11 justify detaining or searching the defendant[.]” We are not made aware of any 12 authority to support the notion that an investigatory stop requires law enforcement 13 officers to know of prior suspicious or criminal activity or to know that the owner of 14 the subject vehicle was “in fact” involved in criminal activity. Again, reasonable 15 suspicion “does not deal with hard certainties, but with probabilities.” Cortez, 449 16 U.S. at 418. Further, focusing on what the agents did know instead of what they did 17 not know about the SUV, that is, its presence at the Merriweather address during a 18 heroin purchase, its later presence at the Oñate Greens Trailer Park, and the fact that, 19 while at the trailer park, it followed the particular pattern known to the agents to be 20 associated with heroin purchases from Space 104, objectively supported the agents’ 21 reasonable suspicion of criminal activity. See, e.g, United States v. Askew, 403 F.3d 22 496, 508 (7th Cir. 2005) (confirming that the totality of the circumstances firmly 12 1 established reasonable suspicion and that, although one event could be interpreted as 2 an innocent one, “a pattern of behavior interpreted by the untrained observer as 3 innocent may justify a valid investigatory stop when viewed collectively by 4 experienced drug enforcement agents” (internal quotation marks and citation 5 omitted)); United States v. Harley, 682 F.2d 398, 401 (2d Cir. 1982) (holding that 6 reasonable suspicion supported an investigatory stop because the characteristics of 7 the defendant’s “brief stop” at a place that agents “were pretty well convinced” was 8 a place that narcotics were being sold was typical of the activities related to narcotics 9 sales that the law enforcement agents had previously observed); United States v. 10 Gomez, 633 F.2d 999, 1004-05 (2d Cir. 1980) (holding that reasonable suspicion of 11 criminal activity was supported by experienced police officers’ observations in an 12 area of high narcotics activity of a pattern of behavior that they had seen many times 13 before, notwithstanding that “viewed singly by an untrained eye, these events might 14 be susceptible of an innocent interpretation”). 15 {18} In Defendant’s next attack on whether the agents’ investigation supported their 16 reasonable suspicion, he argues that the agents “had no reason to be suspicious that 17 illegal activity was occurring at Space 104” on the day that the SUV was seized. We 18 disagree. The totality of the circumstances gave the agents sufficient objective reason 19 to be suspicious of illegal drug-related activity. Again, the factors included 20 Mendenhall’s and Hall’s respective heroin purchases from Space 104, the fact that 21 the SUV was registered to a resident and was in the driveway during the previous 22 Merriweather heroin transaction on August 10, and the occupants’ actions that were 13 1 consistent with the pattern of drug-related behavior occurring during their 2 investigation and the previous heroin purchases from Space 104. 3 {19} Finally, Defendant argues that “the agents were [not] operating under a 4 specific, predictive tip that criminal activity was presently afoot[] or was about to 5 occur.” Consideration of a specific, predictive tip that criminal activity is about to 6 occur may be relevant to a reasonable suspicion determination in a circumstance 7 where a tip from an informant contributes to reasonable suspicion. See State v. Robbs, 8 2006-NMCA-061, ¶ 19, 139 N.M. 569, 136 P.3d 570 (concluding that an informant’s 9 tip was reliable and supported by reasonable suspicion because, among other things, 10 it predicted the defendant’s future movement as corroborated by law enforcement). 11 Such considerations are not relevant here where the agents’ reasonable suspicion 12 stemmed from their own undercover investigation and surveillance and not from a tip 13 from an informant. 14 {20} In sum, the totality of the circumstances known to the agents as a result of their 15 undercover activities with Mendenhall, Hall, and Malchete, their surveillance of the 16 Merriweather address and Space 104 during Mendenhall’s and Hall’s respective 17 heroin purchases, the information gathered from Malchete, the presence of the SUV 18 at both at-issue addresses, and the surveillance of Space 104 that ultimately led to the 19 seizure of the SUV, amply supported the agents’ reasonable suspicion that criminal 20 activity was afoot when the marked police unit stopped the SUV. Through the course 21 of their investigation, the agents gathered information that allowed them to observe 22 a pattern of behavior associated with heroin transactions at the two specific addresses 14 1 that were reasonably sufficient, to link the SUV to both addresses and, ultimately, to 2 connect the SUV belonging to a resident of the Merriweather address to the pattern 3 of behavior associated with a suspected purchase of heroin from Space 104 on August 4 23, 2012. The “mere hunch” label is a stretch too far here. Viewed in total and with 5 the required deference to the inferences and deductions drawn by the agents based on 6 their experience and training, these circumstances were sufficient to give rise to more 7 than a “mere hunch.” See Arvizu, 534 U.S. at 273-74 (recognizing that a mere hunch 8 will not support reasonable suspicion, but also recognizing that the appellate courts 9 must give due weight to the factual inferences and deductions drawn by law 10 enforcement based upon experience and specialized training). To the contrary, the 11 circumstances here provided an objective basis upon which the agents could 12 reasonably suspect criminal activity and conduct a lawful investigatory stop. 13 CONCLUSION 14 {21} We affirm. 15 {22} IT IS SO ORDERED. 16 17 _______________________________ JONATHAN B. SUTIN, Judge 15 1 WE CONCUR: 2 _______________________________ 3 TIMOTHY L. GARCIA, Judge 4 RODERICK T. KENNEDY, Judge (specially concurring). 16 1 KENNEDY, Judge, (specially concurring). 2 {23} It is impossible to ascertain whether, after a month and a half, the agents tired 3 of their investigative methods and just decided to return to an “established drug 4 house” to arrest someone. In my view, the facts here establish legitimate reasonable 5 suspicion by barely a nose. Only upon a re-reading of this Opinion did a single fact 6 convince me to concur. Self-reference and subjective hunch-confirming seems to 7 abound without much hard evidence. The district court acknowledged that the agents 8 saw no drugs at any point in their investigations on the day of Defendant’s arrest 9 leading up to the stop of the SUV and acknowledged that “none of the indicators 10 shown here, on their own, taken individually, would provide reasonable suspicion.” 11 {24} Knowing the deferential standard of review, however, I must reluctantly 12 concur. I write to emphasize the objective standard we must apply and recall the law 13 that “[q]uestions of reasonable suspicion are reviewed de novo by looking at the 14 totality of the circumstances to determine whether the detention was justified.” Robbs, 15 2006-NMCA-061, ¶ 9. Hindsight, whether investigative or judicial, creates a terrific 16 bias for confirmation of bad evidence. The agents seem not to have once corroborated 17 these “suspects’ ” stories with hard evidence, yet paint a barely sufficient picture for 18 this appeal to sustain their actions. I question the quality of the evidence, even while 19 I vote to affirm its sufficiency in this case. 17 1 {25} Our courts have routinely rejected adopting rules equating innocent conduct 2 with reasonable suspicion, absent articulable suspicion of criminal activity. Neal, 3 2007-NMSC-043, ¶¶ 28-29; see also Leyva, 2011-NMSC-009, ¶ 24 (“ ‘Whether you 4 stand still or move, drive above, below, or at the speed limit, you will be described 5 by the police as acting suspiciously should they wish to stop or arrest you. Such 6 subjective, promiscuous appeals to an ineffable intuition should not be credited.’ ” 7 (quoting United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005))). Law 8 enforcement officers are permitted to “draw on their own experience and specialized 9 training to make inferences from and deductions about the cumulative information 10 available to them that might well elude an untrained person. However, this does not 11 mean that unsupported intuition and inarticulate hunches are sufficient to constitute 12 reasonable suspicion justifying a detention.” Neal, 2007-NMSC-043, ¶ 21 (alteration, 13 omission, internal quotation marks, and citations omitted). The purpose for this 14 objectivity “is to prevent officers from arbitrarily acting on whims or unsupported 15 hunches[.]” State v. Alderete, 2011-NMCA-055, ¶ 11, 149 N.M. 799, 255 P.3d 377. 16 {26} There is no legal standard for where the “suspects” with whom the agents 17 associated during this three-buy investigation fall on the contiuum of sources of 18 information between anonymous tipsters, confidential informants, and identified 19 sources. They certainly have no obligation to be honest; they were all actively 18 1 committing criminal acts with the agents asking them to do so. None of them ever 2 allowed the agents near one of the “buys,” saying in each instance that the individuals 3 at those locations did not like strangers. This is a great opportunity for misdirection 4 and the suspects’ control of the circumstances. Mendenhall was arrested for other 5 crimes in the course of the investigation. Hall and Malchete were also not confidential 6 informants, because they, too, were “suspects,” who on July 23, necessitated the 7 agents staying together for “safety” when Hall went to make the buy at the “white 8 trailer.” Neither the term “suspect,” nor the concern for officer safety bespeak any 9 level of trust for these collaborators. 10 {27} In this case there are the three relevant events preceding the August 23 stop of 11 the SUV: the Mendenhall buy at Space 104 on July 3, the July 23 “buy” that may or 12 may not have occurred where Hall said it did, and seeing the SUV on Merriweather 13 on August 10. In the first, Mendenhall went in, came out, and turned over drugs. 14 Because the agents were acting as co-criminals with Mendenhall, who was not 15 controlled by them or working off charges, they could not ascertain if he had drugs 16 on his person before he went in, or still had their money when he came out.6 Nothing 17 18 19 20 21 22 6 This would be what’s known as a “controlled buy”: “[T]he informant entered the residence with some money and no drugs and came out of the residence a few minutes later with drugs and no money. The informant stated that he had purchased the packet of suspected heroin from [the d]efendant . . . . The informant then turned over the packet of suspected heroin to the police. The informant saw or perceived the facts asserted.” Lujan, 1998-NMCA-032, ¶ 12. 19 1 appears in the record as to who occupied the trailer at Space 104, whether they had 2 criminal records, or were innocent diversions for Mendenhall. E.g., State v. Barker, 3 1992-NMCA-117, ¶ 2, 114 N.M. 589, 844 P.2d 839 (describing an informant’s 4 detailed contacts within a drug house). Regarding the SUV, as mentioned later, no 5 facts establish its association with anyone dealing drugs at the Merriweather address 6 on August 10. At the Merriweather buy, the “suspect” already had heroin with him, 7 just “not enough” to satisfy the agents’ request—without a controlled buy, it would 8 be beyond the agents’ capability to demonstrate how much heroin later turned over 9 to the agents even came from the house. All of these buys rest only on the say-so of 10 the “suspects” themselves, and the tunnel vision of the agents. Our deference may be 11 little more than a gloss; the agents were quite unclear in their testimony about 12 whether they recognized the SUV before or after the August 23 stop. However, the 13 majority is correct that minute deconstruction is not the standard we must apply, and 14 Defendant’s doing so is unpersuasive in a “totality of the circmustances” deferential 15 review. 16 {28} In Alderete, an established and reliable confidential informant gave well- 17 corroborated information constituting “specific, predictive information” that was 18 confirmed by police observation that drugs were being delivered to a house. A search 19 warrant for the house had been obtained, and the officers knew it. Alderete, 201120 NMCA-055, ¶ 18. One vehicle had left the house; another capable of carrying such 20 1 boxes as had been delivered left ten minutes thereafter. The combination of facts and 2 corroboration of a reliable informant’s information supported reasonable suspicion 3 to pull over the car. Id. ¶ 20. A confidential informant is someone who is known to 4 the police, has assisted them with investigations, and whose information led to the 5 seizure of controlled substances and many controlled substances related arrests. Cf. 6 State v. Whitley, 1999-NMCA-155, ¶ 2, 128 N.M. 403, 993 P.2d 117. In this case, 7 there are no reliable informants, no corroboration, and only one observed prior 8 contact with Space 104 that was similar to the July 3 stop the agents made. 9 {29} The “suspects” did not testify here in support of the State to support the 10 conclusions the agents made with actual facts from the buys. All the places from 11 which the “suspects” bought drugs did not like new people, such as the agents, 12 showing up. This trope kept the agents from the possibility of gathering corroborating 13 evidence. The agents, because they were dealing with active criminal suspects and not 14 an informant under their control, did not control the “buys” their compatriots made 15 in their service that might have reduced what I regard as the uncertainty and risk of 16 falsehood about the information provided by an informant. State v. Steinzig, 199917 NMCA-017, ¶¶ 23-24, 127 N.M. 752, 987 P.2d 409. I regard the “suspects” as less 18 reliable than anonymous tipsters, whose information we have previously regarded as 19 “generally less reliable than tips from known informants and can form the basis for 20 reasonable suspicion only if accompanied by specific indicia of reliability, for 21 1 example the correct forecast of a subject’s not easily predicted movements.” State v. 2 Urioste, 2002-NMSC-023, ¶ 12, 132 N.M. 592, 52 P.3d 964 (internal quotation marks 3 and citation omitted). 4 {30} The sole operative question is whether the stop of the SUV was justified at its 5 inception. I am troubled with the agents’ testimony that they had determined even 6 before the SUV showed up that they would detain anyone involved in “suspicious 7 activity” at Space 104 and had a patrol car already waiting for that purpose. 8 {31} This case resembles Alderete in that the car in that case was stopped based on 9 reasonable suspicion from the investigation, and not a traffic stop. The SUV showed 10 up for a brief time, disgorged some passengers who had some contact with Space 104, 11 returned to the car, and left. Since it is unclear whether the SUV was recognized at 12 the time of the stop, the facts indicate that this stop occurred solely because of the 13 agents’ surveillance of Space 104 and their admitted predilection to stop any car that 14 they thought was acting suspiciously. However, it fit the classic short-time turnaround 15 of a typical drug transaction, and the totality of the circumstances as found by the 16 district court gets the deferential nod. 17 {32} Neal is just a whisker on the other side of the line from this case. In Neal, an 18 officer lacked reasonable suspicion to detain an individual in order to search for drugs 19 where the officer observed the defendant, who had prior drug-related convictions, 20 stop briefly in front of a house and speak to a known felon who resided at the house 22 1 and was under investigation for drug trafficking. 2007-NMSC-043, ¶ 28. The officer 2 had no specific information that criminal activity had occurred. Id. Our Supreme 3 Court held that the defendant’s suspicious behavior, presence at a known drug house, 4 and prior involvement in drug-related activity were not sufficient to constitute 5 reasonable suspicion to detain the defendant beyond the valid traffic stop. Id. ¶ 23. 6 The Court reasoned that “[the d]efendant’s mere association with a convicted felon 7 . . . who was under surveillance in an ongoing drug investigation[] was insufficient 8 to create reasonable suspicion.” Id. ¶ 30. The Court explained that the totality of the 9 facts presented did not “constitute the type of individualized, specific, articulable 10 circumstances necessary to create reasonable suspicion that [the d]efendant . . . was 11 involved in criminal activity,” id. ¶ 31, and instead characterized the circumstances 12 as “the type of conjecture and hunch we have rejected in the past as insufficient to 13 constitute reasonable suspicion.” Id. 14 {33} In State v. Ochoa, an officer surveilling a house for drug trafficking observed 15 an unknown vehicle at the house, at the officer’s request, another officer stopped the 16 vehicle in order to identify and question the driver. 2009-NMCA-002, ¶ 2, 146 N.M. 17 32, 206 P.3d 143. We held that the officer, based on these facts, “lacked a 18 constitutionally reasonable suspicion that [the d]efendant was involved in drug 19 activity” to justify the stop. Id. ¶ 45. We concluded that the stop was pretextual 20 because the officer lacked reasonable suspicion to support the underlying basis for 23 1 the stop—investigation of drug activity. Id. ¶ 46. Here, I recall the agents’ intention 2 to stop any suspicious vehicle that stopped at Space 104. Only they were defining 3 “suspicious” at that point. 4 {34} I regard the reasoning we used in State v. Prince, 2004-NMCA-127, 136 N.M. 5 521, 101 P.3d 332, worthy of repeating, as we held there that the combination of 6 being under investigation for drug involvement and a tip tying the defendant’s 7 movements to drug activity were insufficient to constitute reasonable suspicion to 8 detain the vehicle beyond a valid traffic stop. 9 10 11 12 13 14 15 Guilt by association and generalized suspicions are insufficient grounds upon which to base an investigatory detention. In the absence of specific and particularized incriminating information about the criminal activity that the defendant is or is about to [be] engage[d] in, generalized suspicions and mere corroboration of innocent activity, even if it is not readily available to the general public, is insufficient to create reasonable suspicion for an investigatory detention. 16 Id. ¶ 17 (emphasis added). However, because I believe the totality of the 17 circumstances in this case barely supports our conclusion, I can join the majority in 18 applying the standard of review in this case. I therefore concur. 19 20 _______________________________ RODERICK T. KENNEDY, Judge 24
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