Lead Opinion
OPINION
{1} Defendant Jason L., a minor, appeals from a decision of the New Mexico Court of Appeals reversing a district court’s order suppressing a concealed weapon. See In re Jason L.,
I.
{2} Defendant was arrested and charged with unlawful possession of a handgun contrary to NMSA 1978, § 30-7-2.2 (1994). At the suppression hearing, the State presented the testimony of the two arresting officers, Officer McDaniel and Officer Jordan. McDaniel testified first and as follows.
{3} At approximately 10:00 p.m. on Thursday, July 17, 1997, the officers were returning from an unrelated call when they noticed two boys walking eastbound on 13th Street toward Washington in Roswell. No relevant activity had been reported in the area that evening. The officers proceeded past Defendant and his companion, Filemon M., and observed them. McDaniel believed their actions were suspicious. He stated that “they kept looking back over their shoulders to see where I was at or if I was gonna’ turn.” “Both boys looked at [us] ... [however] the one who kept looking at [me] was [Filemon M.].” McDaniel admitted that his police report only noted that Filemon M. was looking back at him. The boys never stopped walking; instead they continued forward, looking back over their shoulders. McDaniel noticed Filemon M. “messing with the left side of his waistband [as] if he was adjusting something or messing with something underneath his big, heavy coat.” Next, McDaniel turned off his headlights, parked behind a wall, and positioned himself behind a fence where he was not visible. McDaniel was suspicious because the boys had not traveled as far as he expected they would have had they continued walking at their previous speed.
{4} Based on these observations, McDaniel decided to approach the two boys. He returned to his vehicle and stopped them on the street without engaging emergency equipment. After approaching the boys, McDaniel believed they continued to act suspiciously. He based this belief on the fact that Filemon M. continued to fuss with his waistband and appeared to be trying to keep himself separated from the officers by positioning Defendant between them. McDaniel testified that he did not observe any criminal activity. Upon contact, McDaniel asked the boys what they were doing. The boys responded they were “just walking,” and McDaniel thought this was a good answer. Filemon M. continued to fuss with the left side of his waistband, which led McDaniel to ask an additional question. He asked the boys whether they had any knives or weapons on them. At first the boys did not respond; after McDaniel repeated the question, the boys eventually answered, “No.”
{5} McDaniel then asked Filemon M. to open his jacket. At this point, McDaniel described Filemon M.’s jacket as a big, baggy coat. McDaniel did not tell Filemon M. that he did not have to unzip his jacket. Nothing was visible when Filemon M. unzipped his jacket. McDaniel proceeded to pat down Filemon M. and felt a firearm in his waistband. The firearm was identified as a .22 caliber pistol. After McDaniel secured the weapon, Filemon M. stated he had another weapon. McDaniel searched Filemon M. and found another gun located on the right side of his belt. The officers then searched Defendant and found a .22 caliber firearm located in the front waistband of his pants under his coat.
{6} Jordan testified as follows. Filemon M. kept looking back at the police officers. He wore a “big, white jacket.” Jordan thought it was peculiar that Filemon M. was wearing a jacket in the middle of July and reaching for his side as he walked but commented, however, that maybe it was cold or “it could have been cooler than I thought it was.” He also noted that the boys were walking very slowly.
{7} The two officers pulled up behind the boys and McDaniel either said, “Can we talk to you for a minute?” or, “Come here.” Filemon M. was acting very nervous. He kept trying to move behind Defendant, who appeared to be more willing to talk with the officers. Jordan did not remember McDaniel asking the boys if they had weapons or guns. When asked if the conversation occurred, Jordan answered that it might have occurred after McDaniel asked Filemon M. to open his jacket. McDaniel asked Filemon M. to open his jacket and Filemon M. reacted by reaching for his waistband. At that point, McDaniel grabbed Filemon M.’s hand and again asked him to open his jacket. Both officers saw the weapon in plain view in Filemon M.’s waistband and both yelled, “Gun!” pursuant to their framing. After the officers saw the gun, they handcuffed Filemon M. and secured the weapon. Jordan searched Filemon M. to see if he was carrying any other weapons. During the search of Filemon M., Defendant was standing in front of the patrol car “like Officer McDaniel asked him to do.” After two guns were found on Filemon M., McDaniel searched Defendant. At no point did Jordan observe any suspicious conduct by Defendant.
{8} The State charged Defendant and Filemon M. with unlawful possession of a handgun. At the conclusion of the hearing, the district court granted Defendant’s motion to suppress stating:
[T]he most recent case dealing with this, [State v. Eli L.,1997-NMCA-109 ,124 N.M. 205 ,947 P.2d 162 ],... [held] that we will not dispense with the requirement of individualized particularized suspicion. In this particular case, both the officers testified that ... there was no criminal activity that was taking place. They were still within the permissible curfew time. In light of what our appellate courts have held, that there must be individualized, particularized suspicion, I can’t find, based on the testimony, that there was any reasonable suspicion relating to [Defendant].
The Court of Appeals held that once the search of Filemon M. revealed he was carrying two guns, reasonable suspicion existed to search Defendant. See Jason L.,
{9} Defendant has not argued on appeal that the New Mexico Constitution affords him greater protection than that afforded under the United States Constitution. Cf. State v. Gomez,
II.
{10} The standard of review for suppression rulings is “whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party.” State v. Werner,
{11} In this case, we have no findings of fact from the district court. “This is a regular occurrence when we review decisions on motions to suppress evidence in criminal cases.” State v. Gonzales,
{12} In this case there is conflicting evidence. For example, McDaniel testified that both boys kept looking back at the officers. Jordan indicated that Filemon M. kept looking back at the officers. McDaniel testified he asked the boys if they had any weapons; Jordan did not remember this exchange. McDaniel testified he could not see a weapon after Filemon M. unzipped his jacket so McDaniel conducted a pat-down. Jordan testified that Filemon M. reached for his waistband when asked to open his jacket. McDaniel grabbed his hand and again asked that Filemon M. open his jacket. At that point, the gun was visible. On some facts, the officers agreed. Sometimes one officer testified to something the other did not mention. We presume the district court believed the facts on which the officers agreed as well as the facts to which only one officer testified. We consider all that evidence; where the evidence conflicted, we consider only the evidence supporting the court’s ruling. The relevant facts then are as follows.
{13} Defendant and Filemon M. were walking down the street together and Filemon M. was looking back at the police officers. Filemon M. was wearing a big, baggy coat and Defendant was wearing a coat on an evening that may have been cool. Filemon M. was fussing with his waistband. Neither boy seemed to cover as much ground as the officers had expected. Based on these observations, the police officers decided to approach the two boys. The two officers pulled their vehicle up to the boys and Officer McDaniel said, “Come here.” Filemon M. appeared to be very nervous and was trying to position Defendant between the police officers and himself. McDaniel asked the boys what they were doing and the boys answered that they were “just walking.” McDaniel then asked the boys if they were armed. The boys failed to respond immediately; McDaniel repeated the question. Eventually, the boys responded, “No.” McDaniel then searched Filemon M. and found the first gun.
{14} Our task is to determine at what point during the encounter Defendant’s right to be free from unreasonable search and seizure was implicated. “[A] seizure subject to Fourth Amendment scrutiny” does not occur every time a police officer approaches a citizen. State v. Walters,
{15} In Terry v. Ohio, the United States Supreme Court held that a seizure occurs “whenever a police officer accosts an individual and restrains his freedom to walk away.”
{16} The State argues that Defendant was not seized until the officers initiated physical contact; or in other words, prior to the pat-down search the encounter was consensual. The district court’s oral ruling, however, suggests the court believed Defendant had been seized earlier. The court’s remarks refer only to the time of night and the absence of any reports of criminal activity; there is no mention of facts that became apparent during the encounter. Physical contact is not essential to a seizure. In Lopez, the Court of Appeals identified other circumstances in which a reasonable person might believe he or she could not end an encounter with the police.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
{17} The boys were approached at night on an empty street by two armed police officers whom they knew had been observing them prior to the encounter. See United States v. Sanchez,
{18} At no point did the officers tell either boy they were free to leave or that they were not required to answer their questions. While case law has not required such advice, its absence is a relevant factor. See Little II,
{19} In Lopez the Court of Appeals determined that whether a person has been seized in violation of the Fourth Amendment is a mixed question of law and fact.
{20} Having determined there was substantial evidence supporting the ruling that a seizure occurred prior to that search, we note that not all seizures are unconstitutional. We recognize an “officer may detain a person in order to investigate possible criminal activity.” State v. Cobbs,
{21} Eli L. is dispositive. In Eli L. the Court of Appeals held that officers must possess “at the time the Child was stopped ... reasonable individualized suspicion that the Child had committed or was about to commit a crime.”
{22} We also believe the district court correctly characterized Defendant’s detention as a stop and appropriately required a showing of reasonable suspicion. Under the appropriate standard of review, the only suspicious conduct attributable to Defendant in the record was that he was wearing a coat of unknown weight on a summer evening and walking slowly in the company of someone who was fussing with his waistband and looking back at police officers. Individualized, particularized suspicion is a prerequisite to a finding of reasonable suspicion, and the district court did not err in concluding that the State had not established individualized, particularized suspicion that Defendant had committed or was about to commit a crime. On this record, the district court correctly concluded that the officers lacked reasonable suspicion to detain Defendant for investigation.
III.
{23} On the evidence presented at the suppression hearing, viewed in the light most favorable to Defendant, the district court could find that the police officers detained Defendant with a show of authority and that a reasonable person in Defendant’s position would not have felt free to leave. The court also did not err in concluding that the officers made an investigatory stop, which required reasonable suspicion, and that they had not proved their suspicion of Defendant was reasonable. Therefore, we conclude that the district court was correct in ruling that Defendant was seized by the officers within the meaning of the Fourth Amendment and in violation of his rights under that amendment. Accordingly, we reverse the Court of Appeals and we affirm the order of the district court suppressing the evidence in this case.
{24} IT IS SO ORDERED.
Concurrence Opinion
(specially concurring).
{25} I concur in the majority opinion. I write separately only to emphasize the limited scope of the majority opinion and to provide additional guidance to trial courts on this issue.
{26} As the majority and dissenting opinions in this case explain, trial courts must assess a number of factors in determining whether a show of authority transformed an otherwise consensual encounter into an investigatory stop. Based on the trial court’s suppression of the evidence, we view the evidence relating to these factors in a light most favorable to the ruling. This ease involves two armed, uniformed officers approaching two juveniles on an empty street at night after making visual contact with the juveniles and observing their movements for a period of time. Indulging all reasonable presumptions in favor of the district court’s ruling, we must presume that the district court inferred from these historical facts, based on context, based on the characteristics of the individuals being approached, and based on witness demeanor, that this constituted a threatening officer presence. I do not believe that such an inference could be characterized as clearly erroneous or unsupported by substantial evidence. Additionally, the officers made a focused inquiry about illegal activity and did not accept the juveniles’ failure to answer. We must again presume that the district court inferred that this line of questioning was accusatory and indicated to the juveniles that a response to the question was compulsory. Although there is no indication from the audiotape transcript of the suppression hearing that the officers used a coercive tone of voice, the trial court is in a better position to draw such inferences from the officers’ demeanor and the background facts, including the locality in which the encounter occurred, the officers’ pointed interest in Filemon M., the failure to advise Jason L. that he was not under arrest and was free to leave, and the use of commanding language to initiate the encounter. See Michigan v. Chesternut,
{27} Of course, another district court could draw different inferences from these facts, especially considering that defendants bear the initial burden of demonstrating that a consensual encounter has been transformed into an investigatory stop by a show of authority, see State v. Baldonado,
{28} Once these historical facts, accompanied by reasonable inferences and presumptions, have been established, the question of whether these facts rise to the level of a seizure invoking the protections of the Fourth Amendment is reviewed de novo. Applying the historical facts, including the reasonable inferences of a threatening officer presence and coercive questioning, to the legal question of whether, under the totality of circumstances, a reasonable person would feel free to terminate the police encounter, I agree with the majority that the district court properly concluded that Jason L. was seized at the time the officers repeated the question about weapons.
{29} I would emphasize, however, the limited scope of this legal conclusion. This conclusion is not based on the sole fact of a repeated question concerning criminal activity. As courts have observed, the legal question of seizure should be determined on the basis of the totality of circumstances and will only rarely rest on any single factor. See Bostick,
{30} Additionally, the Court does not conclude that Defendant was seized prior to the time that Officer McDaniel repeated the question about weapon possession. In other words, even accepting the district court’s determination of a threatening officer presence and, viewing the evidence in a light most favorable to the ruling, accepting that the officers ordered the juveniles to “come here,” asked what they were doing, and asked for the first time whether the boys had weapons, these facts do not amount to a seizure as a matter of law, Cf. Hernandez,
{31} I would stress that, even with the district court’s inferences regarding the presence of the officers and the nature of the questioning, this case presents a very close question under the Fourth Amendment. See generally Glass,
{32} I would finally like to point out that the majority opinion should not be interpreted as expressing any view as to whether the officers had reasonable suspicion to stop Filemon M. Indeed, I agree with the dissent that, under the facts of this case, reasonable suspicion did exist with respect to Filemon M. prior to the frisk even though there was no particularized reasonable suspicion with respect to Jason L. at that time. I also agree with the dissent that, if Jason L. had not been seized by the officers prior to the frisk of Filemon M., the discovery of two firearms on Filemon M., combined with the close proximity of Jason L. to the officers, would sufficiently justify a limited pat-down of Jason L. for weapons in order to ensure officer safety. However, because I conclude that Jason L. was seized prior to the frisk of Filemon M., and thus prior to a credible threat to officer safety, I must agree with the majority that the district court properly granted Defendant’s motion to suppress.
Dissenting Opinion
dissenting.
{33} I must respectfully dissent from the majority’s opinion. I would reverse the district court’s suppression of evidence and hold that the officers’ search of Jason L. did not violate his Fourth Amendment rights. I disagree with the majority’s conclusion that a seizure of Jason L. occurred during the initial encounter between the youths and officers. Even when considering the facts in a light most favorable to the prevailing party, I do not believe that the initial encounter created an atmosphere such that a reasonable person would have believed that he or she was not free to leave. I would find that the initial encounter was consensual in nature. It was only after Officer McDaniel reached for and made contact with Filemon M.’s hand just prior to the discovery of the weapons, that the encounter escalated into a Terry stop as to Filemon M. only. I believe that it was objectively reasonable for the officers, having discovered two weapons on Jason L’s companion, to initiate a protective frisk of Jason L. limited only to the discovery of weapons.
{34} It is well-settled that police/citizen encounters fall within one of three categories: “(1) consensual encounters which do not implicate the Fourth Amendment!;] (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by reasonable suspicion of criminal activity [the “Terry ” stop][;] and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.” United States v. Hill,
{35} Although I agree with the majority’s modifications of State v. Lopez, I cannot agree that substantial evidence exists to show that the officers used a show of authority during the initial encounter nor that circumstances established that the officers’ display of authority rose to such a level that a reasonable person would have believed he or she was not free to leave.
{36} When the officers made their initial contact with the youths, the exchange appears to have been conducted in a conversational manner. After exiting their patrol car and approaching the youths, Officer Jordan testified that Officer McDaniel asked them, “ ‘Can we talk to you for a minute?’ or ‘Come here,’ one of the two.” He was not certain which. Officer McDaniel asked the youths what they were doing, and received an answer that they were “just walking” which Officer McDaniel considered a “pretty good” response. There is no evidence that the officers commanded the youths in a tone of voice that could be considered as compelling action. The officers did not have their emergency lights engaged which might have signaled to the youths that they were not free to terminate the encounter. Nor is there evidence that either officer had his weapon drawn. Furthermore, I cannot agree with the interpretation of the facts that there were several armed officers creating a threatening presence. I do not believe two officers, in one patrol car, constitutes “several” officers in the manner likely contemplated by Mendenhall and Lopez. To adhere to such a conclusion might presumptively transform every standard two person officer patrol into an intimidating situation even during what might otherwise be considered a consensual encounter. Furthermore, evidence that it was late at night on an empty street, without more, is not sufficient to transform the encounter into a Terry stop. Finally, there is no evidence that Jason L.’s education, psychological background, or his age of fifteen, made him particularly vulnerable to intimidation by the officers. See Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars,
{37} It is an established tenet of Fourth Amendment jurisprudence that investigatory detentions require that an officer have a reasonable suspicion that criminal activity is afoot before he [or she] may conduct a brief investigatory stop of a person. See Terry v. Ohio,
{38} The officers had sufficient reasonable suspicion to justify an investigatory stop of Filemon M. While both youths were walking and prior to the initial contact with the youths, the officers testified to several observations of Filemon M.’s conduct that raised their suspicion that criminal activity was afoot: Filemon M. glanced back at the officers several times, both youths appeared to alter the speed of their gait to avoid contact with the police after having been apprised of the officers’ presence, and perhaps, most importantly, Filemon M. appeared to be fidgeting with or adjusting something in his waistband under a heavy jacket. Later, while speaking with the youths, during what I believe was a consensual encounter, Filemon M. continued to adjust something in his waistband, appeared very nervous, hesitated upon being questioned about possession of any weapons, and finally reached for something at his waistband. I believe these facts were sufficient to justify the search of Filemon M. under the reasonable suspicion standard that criminal activity was afoot. It is only at the point where Officer McDaniel initiated physical contact with Filemon M., when he reached for his waistband and the officer discovered the first weapon, which from the officers’ testimony, appears to be a virtually simultaneous occurrence, that the consensual encounter transformed into a Terry stop — as to Filemon M. only. Only then could it be said that Officer McDaniel, “by means of physical force or show of authority” prevented Filemon M. from leaving. Terry,
{39} The question now arises as to whether the search of Filemon M. then transformed the consensual encounter between Jason L. and the officers into a Terry stop requiring reasonable suspicion. I do not believe that it did. In United States v. Davis,
{40} It is true that no reasonable suspicion existed to support a Terry stop search of Jason L. prior to the discovery of weapons on Filemon M. However, even during the search of Filemon M., Jason L. was not subject to a seizure that would invoke Fourth Amendment protections. It is clear from the officers’ testimony that only Filemon M.’s conduct had attracted their attention and that they noticed no suspicious conduct by Jason L., aside from previous observations that he was wearing a jacket during a July night, and had changed the pace of their walk after Filemon M. saw the officers. In addition, during the search, Jason L. was standing a short distance away from the activities occurring around Filemon M. and there is no evidence that during that time, he was commanded to move to a certain area or remain where he was. In contrast, Officer Jordan’s testimony reveals that Jason L. “was standing right in front of the patrol car just like Officer McDaniel asked him to do.” In short, the officers’ actions could not have led Jason L. to reasonably believe that he was not free to terminate the encounter; the encounter was not transformed into an investigatory detention by the search of Filemon M.
{41} The Davis Court states that “[t]he only relevant question is whether [the officer] reasonably concluded, after pat-searching [the defendant’s companion], that officer safety justified a pat-down search of [the defendant] because ‘criminal activity may be afoot and [Davis] may be armed and presently dangerous.’” Id. at 1063 (citing Terry,
{42} During the suppression hearing, the officers repeatedly testified that they conducted a pat-down search of Jason L. after discovering two weapons on Filemon M. for purposes of officer safety. The Court of Appeals cites to cases standing for the general proposition that officers may conduct a search for weapons on the associate of a person lawfully arrested, where that associate is a potential threat to officer safety. In re Jason L.,
In Terry v. Ohio,392 U.S. 1 ,88 S.Ct. 1868 ,20 L.Ed.2d 889 ... (1967), the Court affirmed the right of a limited search “to assure * * * that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him” despite the absence of probable cause for an arrest. We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest. It is inconceivable that a peace officer effecting a lawful arrest ... must expose himself to a shot in the back from defendant’s associate because he cannot on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance.
Id.; accord United States v. Poms,
{43} During a highly dangerous situation created by the discovery of two weapons on an individual lawfully searched, officers must be able to secure the immediate vicinity without pause. I find it entirely reasonable that the officers conducted a search of Jason L. precisely for the stated reason of officer safety. After Officer McDaniel completed the first pat-down of Filemon M., found a weapon and secured it in the patrol ear, Filemon M. then alerted the officers that they had failed to find his other concealed weapon stating, “I have another one on the other side.” Officer Jordan then found the second weapon on Filemon M. The fact that the officers testified that up until the search of Filemon M., that Jason L. was not acting suspiciously and that they did not have reason to suspect that Jason L. was armed and dangerous, does not prevent the officers from taking appropriate precautions to protect themselves and secure the area by conducting a limited pat-down on Jason L. for weapons.
{44} The district court’s conclusion that Jason L. was improperly seized is not supported by substantial evidence. I would find that the initial encounter of the officers with the youths was consensual in nature. As such, I would hold that the officer’s protective frisk of Jason L. was objectively reasonable having just discovered two weapons on his companion and consequently that Jason L.’s Fourth Amendment right to be free from unreasonable searches and seizures was not violated. Therefore, I would reverse the district court’s order suppressing the weapons.
Notes
. This factor requires courts to consider the characteristics of the defendant "in seeking to determine whether even a facially innocuous encounter might, in the circumstances, have overborne the citizen’s freedom to walk away.” United States v. Black,