State v. OlsonState v. Olson
{19} The detention center calculated that Defendant completed his sentence on November 28, 2006, during the furlough. There is no objection by the State to this calculation. Accordingly, we adopt this conclusion and hold that the metro court did not have authority to sentence Defendant to 271 days of incarceration as per the 2007 judgment and sentence because Defendant had already completed his sentence by the date of the judgment. See State v. Baros, 78 N.M. 623, 626, 435 P.2d 1005, 1008 (1968) (observing that after a defendant has fully served his or her sentence, even if that sentence is an irregular sentence and subject to being set aside for that reason, the court‘s jurisdiction over him is at an end as it is impermissible, under
C. Community Service and Monetary Fines
{20}
III. CONCLUSION
{21} While the metro court was responsible for determining Defendant‘s eligibility for good time, the specific amount of good time Defendant would receive was to be determined by the detention center. Defendant continued to serve his sentence while on furlough and completed his sentence on November 28, 2006. Thereafter, neither the district court nor the metro court had authority to impose an additional period of incarceration or to impose new penalties on remand. This matter is remanded to the metro court where the 2007 judgment and sentence shall be vacated, and Defendant shall be discharged as having completed his sentence.
{22} IT IS SO ORDERED.
WE CONCUR: RODERICK T. KENNEDY and TIMOTHY L. GARCIA, Judges.
Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
OPINION
SUTIN, Judge.
{1} Defendant Gunnar Olson pleaded no contest to possession of a controlled substance (cocaine). He reserved his right to appeal from the judgment convicting him of that offense upon a “guilty plea” in order to attack the court‘s denial of his motion to suppress evidence. He now appeals from the judgment and asks this Court to reverse the district court‘s denial of his motion to suppress on the grounds that the search and seizure of his person and property violated the United States and New Mexico Constitutions. We reverse.
BACKGROUND
{2} As factual background, we have only the testimony offered by Officer Trey Economidy, the officer who conducted the search and seizure of Defendant. On an evening in December 2007, just prior to 12:30 a.m., Officer Economidy was parked in his patrol car in an alley behind a convenience store near the intersection of University Boulevard and Central Avenue in Albuquerque, New Mexico. Defendant drove his vehicle into the alley, then pulled back out and continued on University Boulevard. Officer Economidy found this behavior suspicious “[b]ecause the vehicle pulls in the alley, doesn‘t conduct any business in the alley, kind of sees me in my marked police unit, kind of gives me the impression like, oh, no, the police, then backs out and then heads back southbound.” Because of the suspicious behavior, the officer pulled out of the alley to follow Defendant. Upon seeing a “significantly expired” temporary tag, he conducted a traffic stop.
{3} Officer Economidy approached Defendant‘s vehicle alone because he was not patrolling with a partner. Defendant had already begun “digging for paperwork” when the officer approached, and Defendant did not make eye contact with him. The officer
{4} “[P]retty much immediately” after the stop, the officer requested Defendant to exit the car. Requiring the driver to exit the vehicle was the officer‘s typical practice where there was a known prostitute involved, so that the officer could interview the driver and passenger separately and see how they knew one another and what business they had with each other that evening. After Defendant was out of the car, the officer asked him who his passenger was, “at which point he told me it was him.” Defendant also told the officer that the transvestite, “Emily,” was a friend he had known for about a year and was a “working girl,” but was not working that evening and that he was “just giving her a ride.” At this point, the officer was investigating possible criminal solicitation of prostitution. The officer asked if Defendant had any weapons or anything illegal on his person because he saw that Defendant was holding a fanny pack like a purse. In response, Defendant responded that he did not “believe in violence.” The officer explained to Defendant that his temporary tag was “significantly expired” and asked what Defendant was doing in the alley. Defendant replied that he saw the officer in the alley and he “didn‘t know if there was something going on, so he backed out.”
{5} For his safety, the officer had Defendant place the fanny pack on the hood while he continued the interview. He asked Defendant if he had a driver‘s license on him. Defendant “went to the fanny pack” as though he was possibly going to retrieve his identification from it, the officer asked Defendant if his identification was in the fanny pack, and Defendant said it was. Still concerned that Defendant might have had “a gun or knives or any kind of edge weapon” in the fanny pack, for safety reasons the officer asked Defendant if he could “take a look to make sure there [was] no weapon in the fanny pack before [Defendant] started grabbing things out of it[.]” Defendant consented to the officer looking in the fanny pack for weapons.
{6} The officer looked in the fanny pack and saw “two glass crack pipes and one metal crack pipe in one of the far compartments that was in the back zipper that would be closest to your body.” When questioned by the officer about the pipes, Defendant admitted to using the pipes to smoke cocaine. Defendant was placed under arrest, and the officer asked him where his cocaine was. Defendant said it was in his front pocket. The officer found the cocaine in a container pulled from Defendant‘s front pocket.
{7} Defendant moved to suppress all evidence obtained as a result of the search and seizure. In his motion, Defendant argued that the officer did not have reasonable, articulable suspicion of any criminal activity on his part beyond a traffic violation and did not have authority to ask him to step out of the vehicle. Defendant further argued that the officer did not have probable cause or reasonable suspicion of any criminal activity to support a warrantless search or seizure of the fanny pack. He also argued that his consent to search was not voluntary.
{8} The district court denied Defendant‘s motion to suppress. In sum, the court‘s reasoning was that it found nothing in the evidence that would cause it to conclude that the officer‘s actions were unreasonable in any way. The court further found that Defendant was not coerced or threatened in any way and that his consent to search the fanny pack was given knowingly, voluntarily, and intelligently. After entry of his plea, Defendant reserved his right to appeal on the ground that the denial of his suppression motion constituted reversible error.
{9} Defendant contends that his rights under the United States and New Mexico Constitutions were violated by the warrantless search of his person and property and without a valid exception to the warrant requirement. In support of this contention, Defendant argues that the officer illegally expanded the scope of the traffic stop, without reasonable suspicion or concern for safety. Defendant also argues that consent to search his fanny pack was not voluntarily
DISCUSSION
Standard of Review and Related Rules
{10} A motion to suppress evidence based on an alleged unlawful detention involves a mixed question of fact and law. Our review procedure is set out in State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861, State v. Funderburg, 2008-NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922, and State v. Vandenberg, 2003-NMSC-030, ¶¶ 17-19, 134 N.M. 566, 81 P.3d 19. In the present case, we review de novo whether the officer‘s actions were objectively reasonable; this includes addressing whether reasonable suspicion or safety concerns existed to support the officer‘s questioning and continuing detention on matters unrelated to the reasons for the traffic stop. Leyva, 2011-NMSC-009, ¶ 30; Vandenberg, 2003-NMSC-030, ¶ 19. We look at the totality of circumstances. Leyva, 2011-NMSC-009, ¶¶ 30, 59; Vandenberg, 2003-NMSC-030, ¶ 19. “By assessing the totality of circumstances, we recognize that officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” State v. Neal, 2007-NMSC-043, ¶ 21, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted). We examine the evolving circumstances facing the officer. State v. Sewell, 2009-NMSC-033, ¶ 22, 146 N.M. 428, 211 P.3d 885; Funderburg, 2008-NMSC-026, ¶ 16; State v. Duran, 2005-NMSC-034, ¶ 36, 138 N.M. 414, 120 P.3d 836. We consider whether an “officer‘s ... actions were fairly responsive to the emerging tableau—the circumstances originally warranting the stop, informed by what occurred, and what the officer learned, as the stop progressed.” Funderburg, 2008-NMSC-026, ¶ 27 (internal quotation marks and citation omitted).
Expansion of the Traffic Stop Tests
{11} “The [F]ederal and New Mexico Constitutions are not a guarantee against all searches and seizures, only unreasonable ones.” Sewell, 2009-NMSC-033, ¶ 16 (internal quotation marks and citation omitted). New Mexico courts apply a two-part test to analyze the reasonableness of an officer‘s actions during a traffic stop under the Fourth Amendment to the Federal Constitution. Leyva, 2011-NMSC-009, ¶¶ 10, 31; Duran, 2005-NMSC-034, ¶ 23. First, we must ascertain whether the traffic stop was justified at its inception. Leyva, 2011-NMSC-009, ¶ 31; Duran, 2005-NMSC-034, ¶ 23. The requirements under the second part of the test are different depending on whether we are analyzing Fourth Amendment protections or protections under
{12} Defendant concedes that under the first test in the analysis there existed reasonable suspicion for the traffic stop. Defendant was driving with an expired temporary registration tag. This constituted a traffic violation, which supplied an appropriate basis for the traffic stop. See, e.g., Vandenberg, 2003-NMSC-030, ¶ 21 (noting that suspicion of violating a traffic law supplies the initial justification for stopping a vehicle); cf. Leyva, 2011-NMSC-009, ¶¶ 31, 58 (stating that the defendant conceded that the initial stop for excessive speed was reasonable).
{13} Relating to the second test in the analysis, Defendant argues that the officer‘s actions after the initial stop violated the Fourth Amendment, but if this Court were to determine that the Fourth Amendment was not violated, Defendant argues that
{14} Leyva refers to the Fourth Amendment test as a “bright-line temporal test[ ][.]” Id. ¶¶ 53-55. The focus of the Fourth Amendment inquiry is whether the officer‘s questioning “did not measurably extend the length of the valid stop; that is, whether the questioning exceeded the temporal limitations on the scope of the investigation.” Id. ¶ 31. Temporal limitations are to be analyzed based on whether the questioning “was a permissible de minimis extension of a valid stop” and whether they “measurably extend[ed] the length of the valid stop[.]” Id. ¶¶ 31, 33, 35.
{15} Significantly different than that in the Fourth Amendment test, the Article II, Section 10 test is expressed by our Supreme Court in Leyva as follows.
Article II, Section 10 requires that all questions asked during the investigation of a traffic stop be reasonably related to the initial reason for the stop. Unrelated questions are permissible when supported by independent reasonable suspicion, for reasons of officer safety, or if the interaction has developed into a consensual encounter. The overall reasonableness of the stop continues to be determined by balancing the public interest in the enforcement of traffic laws against an individual‘s right to liberty, privacy, and freedom from arbitrary police interference.
Leyva, 2011-NMSC-009, ¶ 55 (internal quotation marks and citations omitted). “Reasonable suspicion is measured by an objective standard based on the totality of the circumstances.” Id. ¶¶ 59, 61. “[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.” Funderburg, 2008-NMSC-026, ¶ 15 (internal quotation marks and citation omitted).
Inquiry Related to Prostitution
{16} In the present case, the officer quickly focused his investigation on prostitution because of the passenger‘s identity and the passenger‘s clothing and makeup. There exist several criminal statutes relating to prostitution. See
{17} In line with Leyva‘s requirement that “all questions asked ... be reasonably related to the initial reason for the stop” and that “[u]nrelated questions” are not permissible unless they are supported by “independent reasonable suspicion,” 2011-NMSC-009, ¶ 55, we hold that under Article II, Section 10, the officer did not have sufficient independent articulable and reasonable suspicion to expand the scope
{18} Because we determine that Defendant was unlawfully detained in violation of Article II, Section 10, his consent to search and the search itself were not purged of taint, and it was error not to grant Defendant‘s motion to suppress.
CONCLUSION
{19} We reverse the district court‘s denial of Defendant‘s motion to suppress. The motion should have been granted, and the evidence obtained in the search should be suppressed.
{20} IT IS SO ORDERED.
WE CONCUR: MICHAEL D. BUSTAMANTE and TIMOTHY L. GARCIA, Judges.