State v. OlsonState v. Olson
ORIGINAL PROCEEDING ON CERTIORARI
Neil C. Candelaria, District Judge
Andrew S. Montgomery, Assistant Attorney General
Margaret E. McLean, Assistant Attorney General
Santa Fe, NM
for Petitioner
Jacqueline L. Cooper, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Respondent
OPINION
DANIELS, Justice.
{1} We granted certiorari to review a Court of Appeals opinion that overturned the district court‘s denial of a motion to suppress drug evidence discovered during a traffic stop of Defendant Gunnar Olson. See State v. Olson, 2011-NMCA-056, ¶¶ 1-2, 5-6, 150 N.M. 348, 258 P.3d 1140. We hold that the arresting officer had reasonable suspicion to expand the scope of the valid traffic stop to an investigation of prostitution solicitation and that Defendant‘s subsequent consent to a protective search of his fanny pack was not a fruit of a prior unlawful search or seizure. Accordingly, we reverse the Court of Appeals and affirm the district court‘s denial of Defendant‘s motion to suppress.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} The relevant facts were established at a suppression hearing. On the night of December 1, 2007, an officer of the Albuquerque Police Department was parked in an alley behind a convenience store near the intersection of University and Central. While filling out paperwork in his car, the officer saw Defendant drive into the alley, appear to recognize the marked police vehicle, immediately back out of the alley, and continue driving in his previous direction of travel on University Boulevard. Because Defendant‘s behavior made the officer suspicious (Defendant “kind of [gave] me the impression like, oh, no, the police“), the officer followed Defendant. When he saw that the temporary tags on Defendant‘s vehicle were expired, he conducted a traffic stop.
{3} As the officer approached the driver‘s side of Defendant‘s car, he noticed Defendant rummaging for paperwork in the glove box and avoiding eye contact with the officer. The officer then recognized the passenger in the front seat of Defendant‘s car as a known transvestite prostitute he had encountered previously. Based on the passenger‘s clothing and heavy makeup, the officer thought it was “pretty obvious” the passenger was currently working as a prostitute. The officer had previously observed prostitutes on Central
{4} The officer then asked Defendant to step out of the car. He explained that separating the driver from the passenger is his routine practice when investigating solicitation of prostitution because it allows him to ask the parties how they know each other and what business they have with each other without either party interrupting or answering for the other.
{5} The officer then asked Defendant if he was armed or in possession of anything illegal, and Defendant responded that he did not believe in violence. When the officer noticed that Defendant was holding a fanny pack, he asked Defendant to place the fanny pack on the hood of the patrol car as a personal safety precaution. The officer then asked Defendant for his driver‘s license, and Defendant reached for his fanny pack. When the officer stopped him and asked if he could look in the fanny pack to make sure no weapons were inside, Defendant told the officer he could.
{6} In the course of inspecting the fanny pack, the officer discovered three crack pipes in a compartment near the back. He asked Defendant about the pipes, and Defendant admitted he used them to smoke cocaine. The officer then arrested Defendant for possession of drug paraphernalia, handcuffed him, and asked him where his cocaine was. Defendant admitted it was in a container in his right front pocket. The officer then took a small film case from Defendant‘s pocket that contained five crack rocks that later tested positive for cocaine.
{7} Defendant moved to suppress the evidence in the district court, arguing that the officer lacked reasonable suspicion to expand the traffic stop into a prostitution investigation, in violation of protections against unreasonable search and seizure under
{8} On appeal, the Court of Appeals reversed, holding that the officer did not have sufficient reasonable suspicion to expand the scope of the traffic stop into an investigation of prostitution solicitation, that Defendant‘s consent to the search and the evidence discovered in that search were therefore tainted, and that the district court erred in not granting Defendant‘s motion to suppress. See Olson, 2011-NMCA-056, ¶¶ 17-18. We granted the State‘s petition for writ of certiorari to review the Court of Appeals opinion.
II. DISCUSSION
A. Standard of Review
{9} “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. First, a reviewing court looks “for substantial evidence to support the trial court‘s factual finding, with deference to the district court‘s review of the testimony and other evidence presented.” State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. “We then review the application of the law to those facts, making a de novo determination of the constitutional reasonableness of a search or seizure.” State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885.
B. Reasonable Suspicion Analysis
{10}
{11} An automobile stop and the attendant detention of its occupants is a “seizure.” See State v. Duran, 2005-NMSC-034, ¶¶ 22-23, 138 N.M. 414, 120 P.3d 836, overruled on other grounds by Leyva, 2011-NMSC-009, ¶ 17. In Duran, this Court recognized the two-part test from Terry v. Ohio, 392 U.S. 1, 20 (1968) in determining the reasonableness of an expanded traffic stop under our state‘s constitutional protections, “whether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Duran, 2005-NMSC-034, ¶ 23. See also Leyva, 2011-NMSC-009, ¶¶ 3, 28 (upholding Duran as the appropriate inquiry for evaluating permissible officer questioning during traffic stops under
{12} Defendant concedes that the initial traffic stop meets the first requirement of Duran because the officer lawfully stopped Defendant for driving with expired registration. See
{13} Under the second requirement of Duran, “[a]n officer may expand the scope of the search or seizure during the investigatory stop only where the officer has reasonable and articulable suspicion that other criminal activity has been or may be afoot.” 2005-NMSC-034, ¶ 23 (internal quotation marks and citation omitted). Determining whether reasonable suspicion exists “is a fact-specific inquiry that does not lend itself to bright-line rules.” Id. “[R]easonable suspicion is a commonsense, nontechnical conception[], which requires that officers articulate a reason, beyond a mere hunch, for their belief that an individual has committed a criminal act.” State v. Funderburg, 2008-NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (second alteration in original) (internal quotation marks and citation omitted). A “reasonable suspicion determination requires us to assess the totality of the circumstances and precludes . . . [a] divide-and-conquer analysis in which we view each individual factor or circumstance in a vacuum.” State v. Neal, 2007-NMSC-043, ¶ 28, 142 N.M. 176, 164 P.3d 57 (alteration and omission in original) (internal quotation marks and citation omitted). Additionally, this Court defers to “the training and experience of the officer when determining whether particularized and objective indicia of criminal activity existed.” Leyva, 2011-NMSC-009, ¶ 23 (internal quotation marks and citation omitted).
{14} In this case, the Court of Appeals agreed with Defendant‘s argument that the officer lacked reasonable suspicion to investigate
{15} Unlike Jones, the officer in this case did not expand his investigation into solicitation of prostitution merely because Defendant was associating with someone known to have a criminal past. And unlike Affsprung, the officer did not detain Defendant merely because he appeared to be associating with a known prostitute. Instead, the officer articulated several specific reasons why he thought Defendant was actively engaged in soliciting his passenger for prostitution. First, the events occurred late at night and in an area of Albuquerque where the officer had previously seen prostitutes at work. Second, the officer testified that Defendant, after pulling into an alley and then seeing the officer‘s marked police car, immediately backed out of the alley and drove away on his previous course, an unusual maneuver for anyone using an alley to cross over to another street or to turn around. Third, when the officer pulled Defendant over for his expired tag, Defendant avoided eye contact. Fourth, the officer specifically recognized Defendant‘s passenger as a known prostitute and, because of the passenger‘s clothing and heavy make-up, suspected that the passenger was currently at work as a prostitute. Viewing all of these facts together supports the officer‘s reasonable suspicion that Defendant was turning into an alleyway late at night in an area known for prostitution in order to engage his passenger‘s services in violation of
{16} Defendant also argues that the officer‘s ordering him out of his car for the prostitution investigation was unlawful because (1) this Court has yet to explicitly adopt Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (holding that an officer‘s order to step out of a car during a traffic stop is a permissible de minimis intrusion that is justified by the need for officer safety), and (2) the officer did not order Defendant out of the car based on safety concerns. See Ketelson, 2011-NMSC-023, ¶¶ 19, 27 (“We conclude that removing Defendant‘s firearm from the vehicle in order to ensure that it was beyond the reach of any of the occupants during the stop was a reasonable and minimal intrusion, which does not outweigh legitimate concerns of officer safety.“). Defendant overlooks that the officer was not merely ordering him out of his car for the traffic stop. Instead, the officer testified that he ordered Defendant out of the car in order to investigate the parties separately for possible solicitation of prostitution, which we have already concluded was supported by reasonable suspicion. The broadened investigatory
{17} Defendant also argues that the seizure and search of his fanny pack were unlawful because the officer failed to articulate that Defendant posed a danger, relying on State v. Cobbs, 103 N.M. 623, 630, 711 P.2d 900, 907 (Ct. App. 1985) (reviewing whether an officer had reasonable suspicion to conduct a protective frisk). Defendant‘s reliance on Cobbs is misplaced.
{18} Cobbs addresses the reasonableness of a nonconsensual protective search. See id. at 630, 711 P.2d at 907 (“In order, however, to conduct a frisk of a person suspected of engaging in a nonviolent offense, additional articulable facts of potential danger must be present, as well as the suspicion of criminal activity.“). In this case, the officer never conducted a protective search. Instead, he obtained Defendant‘s consent to look into the fanny pack. Accordingly, Cobbs is not on point. When a person voluntarily consents to a search, it is lawful regardless of whether the officer had constitutional justification to conduct an unwarranted search. See State v. Duffy, 1998-NMSC-014, ¶ 72, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, 275 P.3d 110.
{19} “Whether consent was voluntarily given is a factual question, and the trial court‘s determination will not be disturbed on appeal unless it is not supported by substantial evidence.” State v. Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74.
{20} The uncontradicted evidence before the district court came from the officer who testified that, after Defendant started to retrieve his license from his fanny pack, “I asked him if [I] could take a look to make sure there is no weapon in the fanny pack before he started grabbing things out of it for my safety because at this point in time I still don‘t know if he could possibly have a gun or knives or any kind of edge weapon in that fanny pack. And he told me I could.” On cross-examination, when defense counsel asked the officer if he would “have considered [his] request an order,” the officer answered, “No.” There was no other significant evidence on the voluntariness of Defendant‘s consent. The court reviewed the evidence and made specific findings from the bench “that the consent was knowingly and voluntarily and intelligently made” and that “nothing [in the evidence established that] Defendant was coerced or threatened in any way.”
{21} The district court‘s findings were supported by substantial evidence in the record before us. See State v. Flores, 2008-NMCA-074, ¶¶ 3, 17, 144 N.M. 217, 185 P.3d 1067 (upholding a judge‘s finding of voluntary consent where an officer testified he knocked on the defendant‘s door and obtained his permission to search his house for drugs); State v. Fairres, 2003-NMCA-152, ¶¶ 2, 12, 134 N.M. 668, 81 P.3d 611 (upholding a finding of no duress or coercion where an officer testified that the defendant consented to a warrantless search of his wallet); State v. Chapman, 1999-NMCA-106, ¶ 20, 127 N.M. 721, 986 P.2d 1122 (upholding a finding of consent where the uncontradicted testimony of an officer was that the defendant had consented to the search of a bag in the trunk of a car during a traffic stop); State v. Goss, 111 N.M. 530, 534-35, 807 P.2d 228, 232-33 (Ct. App. 1991) (holding that even though “the contested evidence was subject to conflicting interpretations and inferences, the trial court as the fact finder was empowered to weigh
III. CONCLUSION
{22} We hold that (1) the officer had reasonable suspicion to expand the initial traffic stop to investigate prostitution solicitation and (2) the subsequent consensual search of Defendant‘s fanny pack was not the fruit of any prior unlawful search or seizure. Accordingly, we reverse the Court of Appeals and affirm the district court‘s denial of Defendant‘s motion to suppress.
{23} IT IS SO ORDERED.
CHARLES W. DANIELS, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for State v. Olson, No. 32,976
APPEAL AND ERROR
Fundamental Error
Harmless Error
Prejudicial Error
Standard of Review
CONSTITUTIONAL LAW
Fourth Amendment
Suppression of Evidence
CRIMINAL LAW
Controlled Substances
Motor Vehicle Violations
CRIMINAL PROCEDURE
Consent
Motion to Suppress
Reasonable Suspicion
Search and Seizure