State v. Neal

• Decision Date: 27 June 2007
• Docket Number: No. 30,005.,30,005.
• Citation: 2007 NMSC 043,164 P.3d 57
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. David NEAL, Defendant-Petitioner.
• Court: New Mexico Supreme Court

164 P.3d 57

2007 NMSC 043

STATE of New Mexico, Plaintiff-Respondent, v. David NEAL, Defendant-Petitioner.

No. 30,005.

Supreme Court of New Mexico.

June 27, 2007.

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Respondent.

John Bigelow, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

OPINION

SERNA, Justice.

{1} Alamogordo Department of Public Safety Officer Neil LaSalle stopped David Neal ("Defendant") for a cracked windshield. Officer LaSalle asked for Defendant's consent to search the truck for drugs and weapons, but Defendant refused consent. Believing he had reasonable suspicion, Officer LaSalle detained Defendant's truck for approximately ten minutes to await a drug dog to perform a perimeter sniff of the truck, while allowing Defendant to leave the scene. Defendant called his father, James Neal ("Neal"), the owner of the truck, who arrived at the scene and subsequently gave written consent to search the truck. The search revealed a handgun and methamphetamine.

{2} Defendant moved to suppress the evidence as the fruit of an illegal search and seizure, claiming protection under both the Fourth Amendment to the United States Constitution and article II, section 10 of the New Mexico Constitution. The district court granted Defendant's motion, finding that reasonable suspicion supported the expansion of the traffic stop, but that the ten-minute detention of the truck was too long and required probable cause, which the court found lacking. The Court of Appeals reversed in a split memorandum opinion, concluding that Officer LaSalle had reasonable suspicion to expand the traffic stop to investigate drug activity, and that this reasonable suspicion supported the ten-minute detention of the truck to await the drug dog, based on the recent Court of Appeals case of State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570, cert. denied, 2006-NMCERT-005, 139 N.M. 568, 136 P.3d 569. State v. Neal, No. 25,864, memorandum op. (Ct.App. Aug. 16, 2006).

{3} We conclude that the Court of Appeals erred in holding that Officer LaSalle had reasonable suspicion to detain Defendant's truck beyond that necessary to issue a citation for the cracked windshield and that Neal's subsequent consent to search the truck was tainted by the original police illegality. Accordingly, we reverse the Court of Appeals and hold that the evidence should have been suppressed.

I. FACTS

{4} At approximately 10:00 a.m. on July 31, 2004, Officer LaSalle, in uniform and driving a marked patrol car, observed a truck in front of a house that was under investigation for drug activity. Defendant was in the driver's seat, and a man was leaning into the truck through the driver's side window. Although Officer LaSalle did not recognize either person when he first observed them, he was aware that the house was the subject of an ongoing drug investigation. Several individuals with criminal backgrounds, including Jeff Horton ("Horton"), were known to live at and frequent the house. Defendant, however, was not among the persons associated with the house.

{5} Based on the interaction at the truck, Officer LaSalle believed that he had observed a drug transaction, although he could not see the two individuals' hands, nor could he hear what they were saying. He, therefore, intended to approach the truck to talk to the two men, but before he could, the man leaning into the truck walked back into the house, and Defendant drove away. Officer LaSalle thus decided to follow the truck in his patrol car and observed that it had a cracked windshield. He then initiated a traffic stop for obstruction of driver's view/vehicle in unsafe condition. Upon approaching the truck, Officer LaSalle recognized Defendant, whom he knew had prior drug-related and assault convictions.

{6} Officer LaSalle obtained Defendant's driver's license, registration, and insurance. He ran a wants and warrants check and was advised to proceed with caution in dealing with Defendant because Defendant might be armed and dangerous. In addition, Officer LaSalle was informed that a back-up officer was on the way because of Defendant's prior criminal record.

{7} Officer LaSalle asked Defendant about the identity of the man with whom he was talking when parked in front of the house under investigation and learned that it was Horton. Horton was under investigation for drugs, and Officer LaSalle knew that Horton had been involved in other criminal activity. Officer LaSalle described Defendant as nervous and becoming agitated during this exchange. He said Defendant's hands were very fidgety, Defendant avoided eye contact and his questions, and Defendant appeared as though he wanted to leave. Officer LaSalle returned Defendant's documents and issued a citation for the cracked windshield.

{8} Officer LaSalle realized from examining the truck's registration that it belonged to James Neal, Defendant's father, and he did not know at that time whether Defendant had permission to drive the vehicle. Nevertheless, Officer LaSalle asked for Defendant's consent to search the truck for drugs and weapons, but Defendant denied consent. Officer LaSalle told Defendant that he was free to stay or leave, but that the truck would be held until a drug dog arrived to perform a perimeter sniff of it. Defendant left to find a pay phone.

{9} Officer LaSalle believed that he had reasonable suspicion to detain the truck to conduct the canine sniff based upon his observations of Defendant prior to and during the stop, including his observations of the two men at the truck; his belief that a drug transaction had taken place; Defendant's nervous, fidgety, and agitated demeanor; Defendant's desire to leave; and Officer LaSalle's prior personal knowledge of Defendant's and Horton's criminal history.

{10} Within approximately ten minutes, Border Patrol Officer Jimmy Ross arrived with his drug dog. The dog alerted to the presence of drugs without entering the vehicle but then jumped into the open window of the truck, without prompting, apparently due to the strong odor of drugs. Thereupon, Officer LaSalle left the truck under the observation of another officer and went to obtain a search warrant for the truck.

{11} Shortly after Officer LaSalle left the scene, Defendant's father, James Neal, the owner of the truck, arrived at the scene in response to a phone call from Defendant. According to Defendant's suppression motion and Officer Ross's and Neal's testimony at the suppression hearing, Neal consented to the search after having observed the drug-sniffing dog jump in and out of the truck, and after having been told that a search warrant was in progress. The State characterized the events differently, i.e., that before Officer LaSalle could obtain the warrant, the officers still at the scene called and told him that he should return because Neal had given verbal consent to search the truck. The district court found that while Officer LaSalle was on his way to obtain the warrant, Neal arrived at the scene, gave his verbal consent to search the truck, and subsequently signed a written consent form. The subsequent search of the truck revealed a loaded firearm and a substance that tested as methamphetamine.

{12} The district court found that the truck had been illegally detained and thus granted Defendant's motion to suppress the evidence collected during the search. In explaining its decision, the court noted that it was "hesitant to put too much weight on the reputation/history of the people/residence involved in this case, although he knows they are important factors for the officer on the beat and probably properly so," and that "[i]t is not illegal to lean in a vehicle[,] and there may be innocent reasons for doing so." The court found that Officer LaSalle had reasonable suspicion to expand the scope of the traffic stop, request consent to search the vehicle, and investigate further. However, the court found that the ten-minute detention of the truck, while waiting for the drug dog to arrive, was too long and required probable cause. Therefore, the detention of the truck was illegal, and the court suppressed the evidence.

{13} In a split memorandum opinion, the Court of Appeals reversed the district court's grant of the motion to suppress and remanded the case. Neal, No. 25,864, memorandum op. at 1, 8. First, the Court of Appeals held that Defendant failed to preserve his argument under the New Mexico Constitution and thus only considered his rights under the Fourth Amendment to the federal Constitution. Id. at 3. The Court of Appeals then concluded that Officer LaSalle had reasonable suspicion to expand the duration of the traffic stop to investigate drug activity, and that this reasonable suspicion supported the ten-minute detention of the truck to await the drug dog, based on the recent Court of Appeals case, State v. Robbs, 2006-NMCA-061, 139 N.M. 569, 136 P.3d 570. Neal, No. 25,864, memorandum op. at 6-8. Judge Kennedy dissented, concluding that "more hunch and conjecture support[ed] the detention than we should allow" because "[t]he officer's knowledge that people were going in and out of the house and Defendant's stopping in front of it to talk with a resident does not support the individualized, articulable suspicion required to justify a detention." Id. at 9 (Kennedy, J., dissenting).

{14} The State urges us to affirm the Court of Appeals, contending that Officer LaSalle had reasonable suspicion to detain the truck, based on his observations of Defendant, which was sufficient to justify the detention. In addition, the State argues that Neal's subsequent consent justified the search of the truck and was purged of any taint. Defendant asks us to reverse the Court of Appeals, contending that Officer LaSalle lacked both probable cause and reasonable suspicion to expand the scope of the valid traffic stop into a...