1997 -NMCA- 13, State v. Walters

• Decision Date: 30 December 1996
• Docket Number: No. 16411,16411
• Citation: 934 P.2d 282,123 N.M. 88,1997 NMCA 13
• Parties: , 1997 -NMCA- 13 STATE of New Mexico, Plaintiff-Appellee, v. Ronald Ray WALTERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 282

934 P.2d 282

123 N.M. 88, 1997 -NMCA- 13

STATE of New Mexico, Plaintiff-Appellee, v. Ronald Ray WALTERS, Defendant-Appellant.

No. 16411.

Court of Appeals of New Mexico.

Dec. 30, 1996.

Certiorari Denied Feb. 11, 1997.

Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

Glenn T. Ellington, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

BOSSON, Judge.

¶1 Defendant Ronald Walters appeals his conviction for aggravated driving while intoxicated (DWI) for refusing to take a blood alcohol test as requested by a New Mexico state police officer. See NMSA 1978, § 66-8-102(D)(3), (E) (Repl.Pamp.1994). Defendant moved unsuccessfully to suppress incriminating evidence of DWI which resulted from his encounter with the police, arguing that the stop of his vehicle constituted an unconstitutional seizure. Defendant raises a single issue in this appeal: Whether the trial court erred in characterizing his contact with the officer as a community caretaker encounter and not a seizure, which did not implicate Fourth Amendment protections. We agree with the court below and affirm its denial of Defendant's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On January 2, 1994, just before midnight, Officer Charles Devine of the New Mexico State Police was on regular patrol when he observed Defendant's car turn east from U.S. 54 onto Dog Ranch Road in Alamogordo. Dog Ranch Road is about two to three miles long and connects U.S. 54 and Appler Road. It is an unlit, rural road with the surface changing from pavement to dirt. Officer Devine decided to follow the car, basing his decision on the lateness of the hour and on his knowledge, gained from police training and experience, that intoxicated drivers frequently take rural roads to avoid the police. Officer Devine has been a New Mexico state police officer for seven years and, on average, will handle ten DWI investigations in a five-day period.

¶3 The posted speed limit on Dog Ranch Road was 35 miles per hour. Officer Devine testified that he drove at 45 miles an hour until he caught up with Defendant and then paced his car with Defendant's, traveling at about 30 miles per hour and maintaining a constant distance of two to three car lengths behind. While following Defendant, Officer Devine observed nothing about Defendant's driving to indicate he was intoxicated or violating the law in any other way.

¶4 Defendant testified that he saw in his rear view mirror a car approach quickly and that the car lights appeared to shift from side to side on the dirt portion of the road creating the impression that the car was weaving. According to the officer, however, there was nothing that would have made his car appear to weave other than movement that naturally results from driving on a dirt road. Defendant acknowledged he could not see that the car behind him was a police vehicle.

¶5 Defendant testified that he thought the other driver "wanted the road" and might be impaired, and therefore he pulled over quickly and came to a stop on the side of the road. The officer stated that at the place Defendant pulled over, Dog Ranch Road was about thirty feet wide and that there was room for another car to pass without Defendant pulling over and stopping. Also, Defendant was only about one hundred feet from the intersection of Dog Ranch Road and Appler Road when he stopped. Because there were no homes or driveways in the area to explain the abrupt stop, Officer Devine decided to pull over and inquire whether there was anything wrong with the driver or his car. He stopped his marked patrol car twenty to twenty-five feet behind Defendant's car and turned on his emergency lights. Officer Devine said this was standard practice so that a driver would not be apprehensive about being approached at night and to ensure that his patrol car would be visible to traffic and to other police officers.

¶6 Officer Devine approached Defendant and asked him why he had stopped. Defendant responded that he wanted to see who was following him. When Defendant spoke, Officer Devine detected the odor of alcohol on his breath, and he then asked Defendant to perform field sobriety tests. Based on Defendant's performance on the tests, Officer Devine arrested Defendant and took him to the Alamogordo Department of Public Safety where Defendant refused to take a breath test.

¶7 Defendant filed a motion to suppress in magistrate court which was denied and after a bench trial Defendant was convicted of aggravated DWI. Defendant then appealed de novo to the district court, where he filed a motion to suppress which was denied. Thereafter, Defendant was tried and convicted of aggravated DWI. Defendant appeals his conviction, arguing that his motion to suppress should have been granted.

STANDARD OF REVIEW

¶8 Whether an individual has been seized in violation of the Fourth Amendment is a mixed question of law and fact. State v. Lopez, 109 N.M. 169, 170, 783 P.2d 479, 480 (Ct.App.), cert. quashed, 109 N.M. 131, 782 P.2d 384 (1989); see State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994). Seizure under the Constitution is a question of law, but it is a question of fact whether a person was accosted and restrained in such a manner that a reasonable person in the same circumstances would believe he was not free to leave. Lopez, 109 N.M. at 170, 783 P.2d at 480. A de novo review is given to the district court's application of the law to the facts. Attaway, 117 N.M. at 145, 870 P.2d at 107. Factual questions are reviewed on appeal for substantial evidence, viewing the facts in the light most favorable to the prevailing party. Lopez, 109 N.M. at 171, 783 P.2d at 481. The question for the reviewing court is whether the trial court's result is supported by substantial evidence, not whether the trial court could have reached a different conclusion. Id. When the trial court's ruling is supported by substantial evidence, this Court will not disturb the denial of a motion to suppress unless it appears that the ruling was erroneously premised on the law or the facts State v. Shaw, 115 N.M. 174, 176, 848 P.2d 1101, 1103 (Ct.App.1993).

¶9 Although Defendant asserts that he was subjected to an unreasonable seizure under both the state and federal constitutions, he advances no separate analysis under the New Mexico Constitution, nor does he argue that the state constitution affords any greater protection in this respect than the United States Constitution. Defendant makes a passing reference to Article II, Section 10 of the New Mexico Constitution, but his argument relies on federal law. Accordingly, we limit our analysis to the Fourth Amendment. See State v. Wright, 116 N.M. 832, 834, 867 P.2d 1214, 1216 (Ct.App.1993) (when defendant fails to present argument showing that state constitution provides greater protection than federal constitution, we assume protection is the same under both), cert. denied, 117 N.M. 121, 869 P.2d 820 (1994).

¶10 The trial court denied Defendant's motion to suppress, finding that the "initial contact between Officer Devine and Defendant was in the officer's public caretaker capacity," which did not implicate the Fourth Amendment. Not every encounter between a police officer and an individual is a seizure subject to Fourth Amendment scrutiny. Case law recognizes three types of police-citizen encounters: (1) arrests, which require probable cause, (2) investigatory stops, which require reasonable suspicion, and (3) community caretaking encounters. Lopez, 109 N.M. at 171, 783 P.2d at 481. The first two are seizures, invoking constitutional protections. See id. The third is a voluntary encounter, involving no coercion or detention; it thus falls outside the Fourth Amendment. See id; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973) (in some circumstances, without reasonable suspicion of criminal activity, police may intrude upon an individual's privacy to carry out community caretaker functions that further public safety).

¶11 Defendant maintains that his encounter with Officer Devine could not have been a community caretaker stop because he did not pull over voluntarily but only in response to being followed. Defendant argues that he felt as compelled to pull over by the manner in which he was followed as if the officer had activated his emergency lights while following him, and that his encounter with the officer amounted to an investigatory stop requiring reasonable suspicion of criminal activity. Because Officer Devine had no reasonable suspicion of criminal activity to justify an investigatory stop, Defendant protests that the resulting evidence should have been suppressed. We do not agree.

¶12 The test for determining if a police-citizen encounter is consensual depends on whether, under the totality of the circumstances surrounding the encounter, "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). The test is an objective one based upon a reasonable person standard, not the subjective perceptions of the particular individual. See 4 Wayne R. LaFave, Search and Seizure § 9.3(a), at 92 (3d ed. 1996). The test presumes an innocent reasonable person. Bostick, 501 U.S. at 438, 111 S.Ct. at 2388. In making this determination, the court should consider the sequence of the officer's actions and how a reasonable person would perceive those actions. State v. Baldonado, 115 N.M. 106, 110, 847 P.2d 751, 755 (Ct.App.1992),cert. denied, 115 N.M. 145, 848 P.2d 531 (1993). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty...