State v. BellState v. Bell
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellant
Bregman & Loman, P.C.
Sam Bregman
Albuquerque, NM
for Appellee
OPINION
HANISEE, Judge.
{1} In its appellate capacity, the district court entered an opinion and order reversing a metropolitan court conviction for speeding, failure to maintain lane, and driving while impaired (first offense), on the basis that the metropolitan court should have excluded prosecution evidence that was admitted at trial in violation of the New Mexico Constitution. The State now appeals the district court order, arguing that Defendant failed to рreserve the grounds relied upon by the district court for suppressing the evidence at issue and that the challenged evidence was properly admitted during trial. Because we agree with the district court that the grounds it relied upon to reverse were sufficiently preserved in the metropolitan court and constituted reversible error, we affirm.
Standard of Review
{2} Because this is a criminal action “involving driving while under the influence of intoxicating liquors or drugs[,]” the
(1) to specifically alert the [trial] court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the [trial] court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue.
Gerke v. Romero, 2010-NMCA-060, ¶ 18, 148 N.M. 367, 237 P.3d 111 (internal quotation marks and citation omitted).
Proceedings Before the Metropolitan Court
{3} The sole evidence relevant to the metropolitan court‘s ruling denying suppression was the trial testimony of Deputy Allen. The relevant portions of Deputy Allen‘s testimony described a sequence of events that began with Defendant‘s cаr passing Deputy Allen, who was driving northbound on Tramway Boulevard in Albuquerque, New Mexico. Deputy Allen then caught up with Defendant‘s car and determined, by reference to his own speedometer, that Defendant was driving at a speed of sixty miles per hour in an area with a posted speed limit of fifty miles per hour. At the intersection of Tramway and Spain Road, both cars stopped at a red light, but Defendant‘s car improperly stopped in the intersection crosswalk. When the light turned green, Defendant re-accеlerated to sixty miles per hour, with Deputy Allen still following. The cars again stopped for a red light at the intersection of Tramway and Academy Road, and Defendant again accelerated to sixty miles per hour after the stop. Just north of Academy, Defendant crossed partially over the white line dividing the roadway from the shoulder, so that “the middle of the vehicle was over the white line,” and continued to drive partially on the shoulder until Deputy Allen pulled him over just past the intersection of Tramway and San Rаfael Avenue. As he pulled Defendant over, Deputy Allen used his radio to ask dispatch whether a DWI unit was available because “[j]ust on the observation of the driving[, Deputy Allen] wasn‘t sure if that was what [he] was looking at or not.”
{4} Deputy Allen approached Defendant, explained the basis for the stop, and asked Defendant for his driver‘s license, automobile registration, and proof of insurance. He noticed that Defendant‘s hands were shaky when he handed over those documents and that “it sounded like something wаsn‘t correct; something didn‘t sound correct about his voice.” Deputy Allen described Defendant as sounding as if he were speaking with a “thick tongue.”
{5} Deputy Allen asked Defendant if he was “under the influence,” and Defendant said “no.” Deputy Allen then had Defendant put both of his hands on the car window frame and move his head closer to the car window in order to conduct a horizontal gaze nystagmus (HGN) test. It took four attempts by Deputy Allen to conclude that Defendant bore no sign of nystagmus, a delay Deputy Allen attributed to Defendant‘s non-compliance with instructions. Yet Deputy Allen agreed when cross-examined that performing an HGN test while the subject is seated in his car does not comply with standards
{6} Deputy Allen next asked Defendant whether “he [had] any grenades, rocket launchers in the vehicle” and whether “he had any dead bodies in the car.” In response to both of those questions, Defendant said “no” while shaking his head. Deputy Allen then asked whether Defendant “had any narcоtics in the vehicle, prescription or otherwise,” and Defendant answered “no,” but this time simultaneously nodded his head in the affirmative. Deputy Allen then asked whether there were any prescriptions in Defendant‘s car and Defendant again said “no” while contradictorily nodding his head affirmatively. Deputy Allen testified that he did not, in fact, believe that Defendant had any grenades, rocket launchers, or dead bodies in his car, but that he asked those questions to determine “what type of response” he would get from Defendant and to help “decide if [Defendant was] being truthful.” Afterward, evidence was uncovered leading to Defendant‘s arrest and ultimately his conviction in the metropolitan court.
{7} Following Deputy Allen‘s testimony, Defendant moved to suppress based upon “lack of reasonable suspicion to even conduct a further investigation along with the lack of reasonable suspicion based on the stop.” The metropolitan court heard argument from both sides on those issues and ruled that the initial traffic stop was based upon reasonable suspicion. Defendant does not challenge that ruling on appeal. Defense counsel then asked the metropolitan court for a ruling regarding whether there was sufficient reasonable suspicion for “it to go from a [traffic] stop to conducting a DWI investigation.” Following further argument, the metropolitan court denied Defendant‘s motion and ruled Deputy Allen‘s testimony to be admissible, specifically noting that Defendant was speeding, failed to maintain his traffic lane, and thаt Deputy Allen had to “go over [the HGN] directions on three different occasions.”
Appeal on the Record to the District Court
{8} Following a four-day bench trial in metropolitan court resulting in a conviction and the entry of a sentencing order, Defendant appealed to the district court arguing, inter alia, that “the metropolitan court erred in ruling independent reasonable suspicion arose outside of the scope of the initial . . . stop for traffic violations in violation of the Fourth Amendment of the United States Constitution and [
{9} As directed, the parties submitted briefs addressing the question of whether Defendant had asserted any protection existing under the state constitution at trial. In doing so, Defendant maintained that, although his argument at trial made no specific reference to any provision of the state constitution, he had argued an established principle protected uniquely by the New Mexico Constitution. The State‘s disagreement notwithstanding, the district court concluded that “Defendant preserved these issues for review.” If Defendant was correct in his claim before the district court, the central question raised in this appeal was preserved for review both in that court and here.
{10} In then substantively analyzing Defendant‘s state constitutional argument, the district court further concluded that “Deputy Allen lacked reasonable susрicion to expand the scope of the investigation to inquire into weapons and dead bodies” and therefore that “Defendant‘s motion to suppress should have been granted [in the metropolitan court] as to any evidence obtained after that inquiry.” The State appeals from the district court‘s
Preservation of Defendant‘s Claims
{11} The question of whether a claim under
To this inquiry, New Mexico courts have long held that:
[t]he purpose of an objection or motion is to invoke a ruling of the court upon a question or issue, and it is essential that the ground or grounds of the objection or motion be made with sufficient specificity to alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then be invoked.
State v. Lopez, 1973-NMSC-041, ¶ 23, 84 N.M. 805, 508 P.2d 1292; see City of Portales v. Shiplett, 1960-NMSC-095, ¶ 6, 67 N.M. 308, 355 P.2d 126 (holding that a defendant‘s failure “to point out the claimed errors and to bring them to the attention of the trial court prevent his relying on them for the first time on appeal“). But see State v. Gomez, 1997-NMSC-006, ¶¶ 24-25, 122 N.M. 777, 932 P.2d 1 (stating that the defendant “need not have asserted . . . that
{12} Most recently, our Supreme Court has clarified that the less stringent of New Mexico jurisprudence‘s preservation requirements applies in this very context due to the “plethora of precedent already [establishing]
{13} Because we conclude that Defendant‘s challenge in the metropolitan court triggered protections pursuant to
Propriety of Questions Regarding Rocket Launchers and Dead Bodies
{14} It is well-rooted within New Mexico jurisprudence that our interstitial approach to state constitutional analysis entails review of parallel or analogous provisions of the United States Constitution to determine whether the federal protections are deficient to a degree requiring supplementation to protect the rights of New Mexico citizens. Id. ¶¶ 40-42. The rule is:
“[w]here New Mexico courts have taken а different path than federal courts, our precedent governs regardless of whether a party cites specific cases in support of a constitutional principle, so long as the party asserted the principle recognized in the cases and has developed the facts adequately to give the opposing party an opportunity to respond and to give the court an opportunity to rule.”
Id. ¶ 41 (quoting Gomez, 1997-NMSC-006, ¶ 30). Leyva also clarified that the “less stringent of Gomez’[s] preservation requirements[,]” namely the “asserti[on of] the constitutional prinсiple” and a “showing [of] the factual basis needed for the [district] court to rule on the issue[,]” Leyva, 2011-NMSC-009, ¶¶ 40, 44, 50 (internal quotation marks and citation omitted), applies to issues such as that raised herein because ” ‘a plethora of precedent already interprets
{15} Further instructive to our analysis is Leyva‘s reaffirmation of the state constitutional principle that Defendant maintains he invoked at trial, namely that
{16} For purposes of
{17} Regarding the specific questions at issue, we note that the State has not asserted that the facts of the vehicle stop gave rise to any reasonable suspicion involving the disallowed possession of certain weapons or corpses. Had such a concern been argued by the State and determined to be valid, it would constitute a permissible expansion of the scope of the traffic stop. Contrary to such a finding, the district court dеtermined that:
Deputy Allen jumped from a traffic investigation to an impairment investigation to questions regarding weapons and dead bodies. . . . There were no articulable facts introduced suggesting the Deputy had reasonable suspicion to suspect Defendant was in possession of illegal weapons or corpses.
. . . .
Such questions, which expand the scope of the investigation, are not permitted in New Mexico, absent reasonable suspicion, irrespective of the Deputy‘s alleged intеnt to simply elicit truthful responses.
{18} On the record before it, the district court‘s analysis was correct. Indeed, when given the opportunity to explain or establish an investigative foundation for his non-traffic-related inquiries in a manner that related to his immediate investigation, Deputy Allen offered only two related justifications: that he needed help generally deciding whether Defendant was “being truthful,” and in “trying to determine the truthfulness of a response.” On appeal, the State similarly contends that “Deputy Allen did not ask the questions about weapons and dead bodies with the intent to investigate whether Defendant had such things. Rather, he asked the questions as an interview technique designed to help him gauge the truthfulness of Defendant‘s responses about DWI.” However, nothing in the record indicates a preexisting awareness on the part of Deputy Allen as to whether grenades, dead bodies or rocket launchers were located within Defendant‘s vehicle such to where Deputy Allen could ascertain the honesty or dishonesty of Defendаnt‘s responses. Furthermore, there is no basis under Leyva for us to assume an alternatively appropriate reason existed for asking these unrelated, and what Deputy Allen conceded to be “outrageous” questions regarding items Defendant could not have lawfully possessed. See id. ¶ 55; see also Duran,
{19} When a motorist is subjected to inquiries unsupported by reasonable suspicion during a vehicle stop, our precedent establishes that the continuing detention of that person is illegal. State v. Portillo, 2011-NMCA-079, ¶ 24, 150 N.M. 187, 258 P.3d 466. It is likewise settled law that evidence “discovered as a result of the exploitation of an illegal seizure must be suppressed unless it has been purged of its primary taint.” Id. ¶ 25 (citing Garcia, 2009-NMSC-046, ¶¶ 14, 23, for its recitation of the “fruit of the poisonous tree doctrine” set forth in Wong Sun v. United States, 371 U.S. 471 (1963)). See Leyva, 2011-NMSC-009, ¶ 2 (stating that when an investigative officer‘s questions are not based upon reasonable suspicion, the proper remedy is to suppress “evidence gathered аs a result of the questioning“); see also id. ¶ 10 (stating “[w]here evidence has been obtained as a result of questions not justified under the Fourth Amendment, suppression of that evidence is the proper remedy“). On appeal, the State‘s argument is limited to defending the propriety of the questions asked by Deputy Allen. The State does not argue that the evidence that led to Defendant‘s conviction did not result from the exploitation of his illegal detention, or maintain specifically that it derived from something other than the impermissible questions themselves. Nor did it challenge the district court‘s determination that Defendant‘s conviction must be reversed if the questions are determined to be constitutionally impermissible. We do not address issues or questions unraised by litigants. See State v. Bent, 2013-NMCA-108, ¶ 27, 328 P.3d 677 ([W]e disregard . . . issue[s] . . . not raised on appeal.“).
{20} Here, the entirety of Deputy Allen‘s testimony leading to Defendant‘s arrest was admitted into evidence during trial, including that regarding events that transpired after the improper questions were asked and during the illegal detention. As Deputy Allеn‘s testimony constituted the sole basis for the metropolitan court‘s determination of Defendant‘s guilt, Defendant‘s conviction must be reversed.
CONCLUSION
{21} The order of the district court is affirmed.
{22} IT IS SO ORDERED.
J. MILES HANISEE, Judge
I CONCUR:
MICHAEL E. VIGIL, Judge
JONATHAN B. SUTIN, Judge (specially concurring).
SUTIN, Judge (specially concurring).
{23} I concur but add the following thoughts.
{24} The Opinion‘s analysis of whether Defendant properly invoked the state constitution indirectly permits a result without having to outright reject present preservation jurisprudence. It is too bad that we must resort to this indirect approach to reach a just result. I fully agree with what the Opinion states in its footnote 2. It is time to hold that in search and seizure cases our courts will automatically examine whether relief under
{25} Insofar as the questioning about grenades, rocket launchers, and dead bodies is concerned, no one, neither Deputy Allen or Defendant, nor the metropolitan court, thought that the questioning was intended to relate to whether Defendant may have had such unlawful items in his vehicle. Furthermore,
{26} Again, assuming, without deciding whether questions related to telling the truth in a DWI investigation might be legitimate and not constitute an unlawful expansion of the investigation, it appears to me that an officer would have to show a court that the questioning was grounded in a particular skill, knowledge, experience, education, and perhaps even science, and that the questioning was likely to give an indication of truthfulness that would assist the officer in his or her investigation.
JONATHAN B. SUTIN, Judge