State v. TaylorState v. Taylor
Lead Opinion
{1} The State appeals from the trial court’s order granting Defendant’s motion to suppress evidence. Defendant argued, and the trial court agreed, that Defendant’s federal and state constitutional right to be free from unlawful searches was violated when, during an investigatory stop, a second officer approached Defendant and began questioning him without reasonable suspicion. Although we agree with the State that the trial court erred in concluding that the second officer was required to have independent reasonable suspicion before approaching and questioning Defendant, we uphold the trial court’s order suppressing the evidence of cocaine because the second officer’s questions exceeded the scope of the reasonable suspicion, and because Defendant’s consent, even if voluntary, did not purge the taint of the illegal questions. Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} On August 28, 1996, Officer Greg Tiano (Officer Tiano), who was on patrol alone, was stopped by a citizen, Jay Beam (Beam). Beam informed Officer Tiano that he had seen a white, two-door Oldsmobile sedan that looked like the car used in the theft of his air compressor approximately six months earlier. Beam also told Officer Tiano that he had seen the two men in the Oldsmobile throwing trash out the windows of the car. Based on this citizen complaint, Officer Tiano decided to investigate, in part because littering is a citable offense. Because Beam could not provide verbal directions to the location of the Oldsmobile, Officer Tiano followed Beam to a dirt lot where the identified car was parked. Lamont Taylor (Defendant) was in the car, as was Larry Johnson, a passenger. When Officer Tiano arrived, approximately seventeen other people were present in the parking lot.
{3} Officer Tiano parked approximately fifty or sixty feet in front of Defendant’s car. Because he considered this parking position unsafe, Officer Tiano radioed for backup before approaching Defendant’s car. Officer Tiano then approached Defendant and his passenger and informed them that he had been told that they were littering. Defendant and his passenger denied throwing trash. Officer Tiano was satisfied that he could do nothing more regarding the littering allegation, but asked the men in the car if they would produce identification. They agreed. Officer Tiano then asked if he could check for wants and warrants. The men agreed, so Officer Tiano returned to his vehicle to run the check for wants and warrants.
{4} Officer Tiano waited no longer than two minutes for backup to arrive, and then began the wants and warrants check. Officer Nelson was the first backup officer to
{5} At some point during this interaction, a third police officer arrived. Officer McFeeters parked his patrol car behind Officer Nelson’s car. The record is unclear, but it appears that Officer McFeeters did not actively participate in the questioning, search, or arrest of Defendant. Likewise, Officer Tiano did not take part in the search and arrest. Officer Tiano completed his wants and warrants check, which uncovered no outstanding wants or warrants, just as Defendant was being arrested for possession of cocaine with intent to distribute, contrary to NMSA 1978, § 30-31-20 (1990). Prior to trial, Defendant moved to suppress the evidence of crack cocaine. The court granted Defendant’s motion on the ground that Officer Nelson did not have reasonable suspicion necessary to conduct a second investigatory stop.
{6} On appeal, the State argues that Officer Nelson’s approach of Defendant was not a second investigatory stop requiring reasonable suspicion, but was part of Officer Tiano’s initial, and valid, investigatory stop. As a consequence, Officer Nelson was permitted to seek consent to search Defendant’s car. In addition, the State argues that the search itself was valid because it was conducted with Defendant’s voluntary consent. Accordingly, the evidence of crack cocaine was obtained lawfully and was therefore admissible. We will address each issue in order.
II. DISCUSSION
A. The Initial Investigatory Stop Was Valid Because it was Based on Reasonable Suspicion
{7} We first address whether Officer Tiano’s initial approach of Defendant’s vehicle was supported by reasonable suspicion of criminal activity, or was a pretextual approach in order to investigate a more serious offense. A police officer may approach an individual in order to investigate possible criminal behavior when the officer has “a reasonable suspicion that the law has been or is being violated.” State ex rel. Taxation & Revenue Dep’t, Motor Vehicle Div. v. Van Ruiten,
{8} Here, Officer Tiano approached Defendant’s vehicle after receiving a tip from a citizen. The citizen informed Officer Tiano that he had seen two men in a white Oldsmobile littering, and that their car resembled the car used in the theft of an air compressor from the citizen’s home approximately six months earlier. Because the citizen was unable to provide directions to the Oldsmobile, Officer Tiano followed the citizen to the parking lot where the Oldsmobile was parked. Whether the officer's approach at that point was based on reasonable suspicion depends on whether this tip, and the citizen’s ability to bring the officer to the site of the
{9} Defendant contends that Officer Tiano could not have arrested Defendant for misdemeanor littering because Officer Tiano did not actually observe Defendant littering. See State v. Johnson,
{10} Moreover, we know of no law, and Defendant has cited none, that limits investigatory stops to suspected felony offenses. Thus, the officer’s stop of Defendant was valid even though the littering allegation was only a misdemeanor. See 4 Wayne R. La-Fave, Search and Seizure § 9.2(c), at 29 (3d ed. 1996) (“With rare exception, cases declaring that the stop was improper because of the nature of the offense under investigation have been decided upon a statutory provision limiting stops to the investigation of certain crimes.”) (footnotes omitted).
{11} Finally, Defendant’s reliance on State v. Frazier,
{12} We also hold that Defendant’s claim that the approach was pretextual is merit-less. See Pallor,
B. Because Officer Nelson Approached and Questioned Defendant While Officer Tiano’s Investigation Was Ongoing, Officer Nelson Did Not Need Independent or Additional Reasonable Suspicion
{13} The trial court granted Defendant’s motion to suppress the evidence of crack cocaine obtained in the search of the vehicle on the grounds that Officer Nelson’s approach of Defendant amounted to a second investigatory stop made without the requisite reasonable suspicion. The State argues on appeal that the trial court improperly granted Defendant’s motion to suppress because Officer Nelson’s conduct was not a second investigatory stop, but simply a continuation of the ongoing investigation initiated by Officer Tiano. We agree.
{15} Additionally, Officer Tiano retained Defendant’s driver’s license throughout the wants and warrants check so that Defendant was not yet free to leave when Officer Nelson began questioning him. See United States v. Lambert,
{16} Finally, we see no meaningful distinction between this case, in which the two investigating officers arrived separately but within moments of each other, and who conferred with each other about the nature of the investigation, and a case in which two officers arrive together in the same vehicle. In the latter case, it is unquestionable that the second officer would not need independent reasonable suspicion before questioning the defendant. The case before us is essentially the same. In State v. Magnano,
[T]he initial officers responded to the defendant’s call that an intruder was in the house. During the course of the response they legitimately searched and secured the premises, observing items of evidence in plain view. Pursuant to department policy, they did not attempt to take any evidence into custody. The detectives arrived on the scene only thirty-five minutes after the responding officers’ initial entry and while they were still on the premises. They proceeded to process evidence and to take photographs and measurements____ We conclude that under the facts of this case, the initial entry of the patrol officers and subsequent entry of the detectives were analytically inseparable, and that the later entry ivas a mere continuation of the earlier legal entry. As such, the photographs and measurements depicting the plain view observations of the patrol officers who had responded to the emergency were admissible.
Id. at 766 (emphasis added). Just as the detectives continued the earlier investigation in Magnano, Officer Nelson’s actions were a continuation of the investigation initiated by Officer Tiano. Thus, the trial court erred in holding that Officer Nelson needed independent reasonable suspicion before lawfully approaching Defendant.
C. Officer Nelson Impermissibly Exceeded the Scope of the Reasonable Suspicion
{17} Although the trial court erred in requiring additional reasonable suspicion, we
1. An Officer’s Conduct and Questioning During an Investigatory Stop Are Constrained by the Facts Giving Rise to the Officer’s Reasonable Suspicion
{18} As this Court’s recent opinion in Haywood explains, the scope of an officer’s activities during a valid investigatory stop is limited:
Under Werner, “[a]n officer who makes a valid investigatory stop may briefly detain those he suspects of criminal activity to verify or quell that suspicion.”117 N.M. at 317 ,871 P.2d at 973 . “The scope of activities during [this] investigatory detention must be reasonably related to the circumstances that initially justified the stop.” Id. (relying on Terry v. Ohio,392 U.S. 1 , 20,88 S.Ct. 1868 ,20 L.Ed.2d 889 (1968)) (emphasis added); accord State v. Bidegain,88 N.M. 466 , 469,541 P.2d 971 , 974 (1975) (“A police officer making a lawful stop of a motorist is not precluded from making reasonable inquiries concerning the purpose or purposes for the stop.” (emphasis added)); United States v. Perez,37 F.3d 510 , 513 (9th Cir.1994) (“Questions asked during an investigative stop must be ‘reasonably related in scope to the justification for their initiation.’ ” (emphasis added, citation omitted))[.]
{19} Here, immediately prior to requesting consent to search Defendant’s car, Officer Nelson asked Defendant if he had any weapons, and then asked if he had any illegal drugs or alcohol in the car. Defendant responded that he did not have guns, drugs, or alcohol.
{20} An officer may expand the scope of his detention beyond that which is reasonably related to the circumstances which justified his initial stop only where the officer has reasonable and articulable suspicion that other criminal activity has been or may be afoot. See Terry v. Ohio,
{22} Thus, the subjects of drugs and alcohol could have come within the scope of the officers’ investigation if evidence of drugs and alcohol had become apparent during their interactions with Defendant. However, nothing in the investigation reasonably raised the officers’ suspicion of any criminal activity other than littering or larceny and the officers observed no conduct which tended to indicate that Defendant was in possession of drugs or alcohol. Therefore, it was impermissible for Officer Nelson to inquire about the possession of illegal drugs and alcohol when the initial stop was not in any way related to drugs and alcohol, and nothing uncovered during the investigatory stop indicated that Defendant may have been in possession of illegal drugs and alcohol. The police are not entitled to go on fishing expeditions simply because the investigation is continued while waiting for the results of the wants and warrants check. See Werner,
{23} Any questioning and searching for weapons during a stop made to investigate unrelated matters must be based on specific, articulable facts, not unsupported intuitions or inarticulate hunches. See State v. Galvan,
{24} Here, neither officer identified particularized, objective factors that caused them to suspect that Defendant had a weapon. Additionally, even if the officers were permitted to make a Terry search of the car for weapons, such a search would not include the removal of a cigarette pack found between the car seat and transmission housing and the search of that package that uncovered the rocks of cocaine. See State v. Arredondo,
{25} Nothing in this opinion would prohibit an officer from questioning a person on any subject during an encounter that does not rise to the level of a stop or seizure. See Florida v. Royer,
2. Officer Nelson’s Impermissible Questions Were Not Sufficiently Attenuated From Defendant’s Consent to Purge the Taint of Illegality
{26} The State has argued that any illegality in Officer Nelson’s conduct is vitiated by Defendant’s voluntary consent to the search for guns, drugs, and alcohol. Consequently, argues the State, the evidence of cocaine should not have been suppressed. Voluntariness is not the precise concern raised by these facts, however. The question before us is whether Defendant’s consent was tainted by the prior illegality (exceeding the scope of the reasonable suspicion), such that the evidence obtained in the consensual search is no longer admissible under the exclusionary rule.
{27} The Fourth Amendment taint analysis is distinct from the voluntariness analysis required by the Fifth Amendment. For evidence obtained in a consensual search to be admissible under a Fourth Amendment challenge, the consent must be both voluntary and purged of all taint under a Fourth Amendment challenge. See State v. Bedolla,
{28} In order for evidence obtained after an illegality, but with the voluntary consent of the defendant, to be admissible, there must be “a break in the causal chain from the [illegality] to the search[.]” State v. Jutte,
{29} Here, there was no attenuation whatsoever. Officer Nelson asked the improper questions immediately before asking for consent to search, and no other events occurred to separate the consent and the questions. More significantly, the purpose of requesting consent to search was to verify Defendant’s answers to the improper questions. Thus, the very purpose of seeking consent was to continue an investigation that was beyond the scope of the officer’s reasonable suspicion. Thus, we conclude that the consent was not sufficiently attenuated from the illegality to remove its taint.
III. CONCLUSION
{30} For the foregoing reasons, we conclude that the trial court’s rationale for suppressing the evidence was erroneous, but that the evidence should have been suppressed on the ground that Officer Nelson’s questions were not within the scope of the reasonable suspicion and Defendant’s consent did not purge the taint of the illegal questions. Thus, we affirm.
{31} IT IS SO ORDERED.
Dissenting Opinion
(Dissenting).
{32} I disagree with the decision of the majority which holds that a police officer who makes a valid stop of a motorist is precluded from asking any questions of the person detained if the inquiries go beyond those related to the purposes leading to the initial stop. Specifically, I disagree with the majority’s conclusion that because Officer Nelson asked Defendant whether he had any guns, alcohol, or illegal drugs in his car, his inquiry tainted and rendered Defendant’s subsequent consent to search the vehicle unlawful.
{33} Both the United States Supreme Court, in Terry v. Ohio,
{34} When an officer has made a valid investigatory stop of a motorist, he is permitted to verify whether the driver is licensed and is operating a car that is properly registered and insured. See State v. Reynolds,
{35} Here, the questions posed to Defendant came while Officer Tiano was awaiting the results of the computer check following an initial lawful stop, and Defendant gave his consent to the search. Thus, neither the questions of Officer Nelson nor the search extended the duration of the initial detention. As observed by Justice Oman in State v. Bidegain,
{36} Both Terry and Werner primarily focused on the basis for detaining an individual who has been stopped based on reasonable suspicion for further investigation beyond the purposes of the initial stop. In the present case the detention was not extended by the questions asked by Officer Nelson. Additionally, the present case is distinguishable from City of Albuquerque v. Haywood,
{37} As pointed out by the court in Hunnicutt, a routine traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Constitution. See
{38} The Hunnicutt court further notes: The investigative detention usually must “last no longer than is necessary to effectuate the purpose of the stop,” and “[t]he scope of the detention must be carefully tailored to its underlying justification.” Florida v. Royer,460 U.S. 491 , 500,103 S.Ct. 1319 , 1325,75 L.Ed.2d 229 (1983).
Lengthening the detention. for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. See United States v. Soto,988 F.2d 1548 , 1554 (10th Cir.1993). Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter. See [United States v.] Gonzalez-Lerma, 14 F.3d [1479,] at 1483 [ (10th Cir.1994) ].
{39} The mere fact that an individual has been detained, or even arrested, does not per se invalidate an otherwise voluntary consent to search. See State v. Blakely,
, {40} If there is a valid basis for the stop, it is permissible for the officers to ask permission to search the vehicle. See State v. Pallor,
{41} Under these circumstances, I am unable to agree with the majority that merely asking questions, which touch on subjects beyond the scope of the basis for the initial stop, and which do not materially lengthen the initial detention, automatically taints an individual’s subsequent consent. In such instance, the court should evaluate the validity of the consent under the totality of the circumstances. I would reverse and remand the case to the trial court for an express determination of whether Defendant’s consent was freely and voluntarily given so as to validate the basis for the search and seizure.