1997 -NMCA- 81, State v. Arredondo

• Decision Date: 15 July 1997
• Docket Number: No. 16391,16391
• Parties: , 1997 -NMCA- 81 STATE of New Mexico, Plaintiff-Appellee, v. Armando ARREDONDO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 276

944 P.2d 276

123 N.M. 628, 1997 -NMCA- 81

STATE of New Mexico, Plaintiff-Appellee, v. Armando ARREDONDO, Defendant-Appellant.

No. 16391.

Court of Appeals of New Mexico.

July 15, 1997.

[123 N.M. 630] Tom Udall, Attorney General, Joan M. Waters, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

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

OPINION

ARMIJO, Judge.

¶1 This appeal stems from a plea by Defendant to the charges of possession of cocaine, a fourth degree felony, and possession of marijuana, a petty misdemeanor. Defendant reserved the right to challenge, on appeal, the trial court's denial of his motion to suppress certain drugs found in his vehicle. Defendant asks us to review the reasonableness of the search of his vehicle. Specifically, we are asked to decide the extent to which the police may search the automobile of a defendant who is the subject of a valid investigatory stop based on a reasonable suspicion that he recently used a gun to commit an assault. We affirm the decision of the trial court with respect to the reasonableness of the initial search of the front seat and floor area of Defendant's vehicle and the seizure of marijuana and drug paraphernalia found as a result of that search. However, we reverse the ruling of the trial court which denied suppression of other drugs found as a result of the expanded warrantless search of Defendant's vehicle for drug evidence.

I. FACTUAL BACKGROUND

¶2 Some moments before Defendant was stopped by Officer Carl Link of the Dona Ana County Sheriff's Office, a victim reported that he had been assaulted by a man with a handgun. The assailant reportedly escaped with two other persons in a maroon-colored Monte Carlo. The record discloses that at approximately 3:25 a.m. on November 6, 1994, Officer Link arrived at a Pic Quik store near Las Cruces, New Mexico, to investigatethe assault. Although the victim of the assault described himself as an alcoholic and smelled of alcohol, he was able to respond to the officer's questions and his story "made sense." The victim described the suspect's vehicle as a "maroon" colored Monte Carlo with custom wheels and a license plate with the letter "J" in it. The victim told Officer Link that there were three persons in the vehicle, and that one of them had pointed a .45 caliber handgun at him. The victim sometimes referred to one of the suspects as "Eloy De La O," but indicated he was not sure of the suspects' identity and could not identify the other two suspects.

¶3 This information was conveyed to other law enforcement personnel patrolling in the area. About fifteen minutes later, units of the Las Cruces Police Department spotted a Monte Carlo matching the victim's general description and reported this information by radio to Officer Link. While traveling toward the area where the vehicle had been sighted, Officer Link observed a "brown" Monte Carlo speeding in the opposite direction. Defendant was the driver of this vehicle. Noting that Defendant gave him a "funny look" as they passed one another, the officer turned around to follow the Monte Carlo. The Monte Carlo matched the victim's general description and its license plate contained the letter "J". Officer Link testified that, at night, the colors "brown" and "maroon" are sometimes confused, and he believed that the vehicle he spotted was the one used in the assault incident.

¶4 While driving the Monte Carlo, Defendant tried to evade the officer by making a series of left and right turns in quick succession. After following Defendant's vehicle through several of these turns, Officer Link drew closer and turned on his emergency lights. Despite the engaged emergency lights, Defendant continued to travel for another one or two blocks in the Monte Carlo, then turned into the parking lot of a Circle K store, exited the Monte Carlo and walked toward the store's entrance.

¶5 Officer Link pulled into the parking lot behind Defendant's vehicle. He asked Defendant to return to the Monte Carlo, and Defendant complied. After Defendant sat back down in the driver's seat of the Monte Carlo, Officer Link approached the Monte Carlo, observed that Defendant was the sole occupant, and requested Defendant's license and proof of insurance. Defendant stated that he had no insurance, his license was suspended, and he was wanted on warrants. Upon hearing this reply and observing Defendant's nervous demeanor, Officer Link returned to his vehicle to wait for backup. While waiting, the officer called in to confirm that Defendant's driver's license had been suspended and to check for warrants. He later found that Defendant's license was in fact suspended, but there were no other active warrants for Defendant in Las Cruces.

¶6 After backup arrived, Officer Link reapproached the Monte Carlo and asked Defendant to exit the vehicle. Officer Link then frisked Defendant's person. The frisk revealed a pager, but no weapons or contraband. After the frisk, Officer Link asked Defendant to move to an area between the Monte Carlo and Officer Link's vehicle. Defendant complied. Officer Link then searched the passenger compartment of Defendant's vehicle for a weapon. Based on his own experience of storing his gun, when off-duty, in the split between the front seats of an automobile, Officer Link first checked the area between the front seats of Defendant's vehicle. While doing this, he observed a package of rolling papers. Next, Officer Link searched the floor near the driver's seat, where he found "plastic baggie type items." Finally, Officer Link went to the other side of the vehicle, opened the door, and leaned into the vehicle to search the floor near the passenger seat. In the middle of the floor on the passenger side, Officer Link saw a "small roach" containing marijuana.

¶7 After finding the marijuana roach, Officer Link briefly spoke with Defendant and then returned to the Monte Carlo to scan the dashboard with his flashlight. While looking into a small hole about the size of a cigarette lighter that appeared to have been cut out from the dashboard, he saw a plastic baggie containing a white, powdery substance. Officer Link retrieved the baggie. The white powdery substance in the baggie was later determined to be cocaine.

¶8 No weapon was located in the vehicle.

II. DISCUSSION

A. Standard of Review

¶9 In reviewing a trial court's denial of a motion to suppress, an appellate court will affirm the trial court's factual findings if they are supported by substantial evidence, viewing the evidence in the light most favorable to the State. State v. Vargas, 120 N.M. 416, 418, 902 P.2d 571, 573 (Ct.App.), cert. denied, 120 N.M. 213, 900 P.2d 962 (1995); State v. Blakely, 115 N.M. 466, 468, 853 P.2d 168, 170 (Ct.App.1993). However, we afford a de novo review of the trial court's application of law to the facts. State v. Flores, 122 N.M. 84, 87, 920 P.2d 1038, 1041 (Ct.App.1996). Whether a search and seizure is reasonable under Article II, Section 10 of the New Mexico Constitution or the Fourth Amendment of the United States Constitution is a mixed question of law and fact. Id. De novo review of such questions is necessary to meaningfully discharge our "duty ... to shape the parameters of police conduct by placing the constitutional requirement of reasonableness in factual context...." State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994).

B. Preservation of Error

¶10 Defendant concedes the validity of the initial investigatory stop and did not challenge the validity of the frisk of his person in his motion to suppress or during the suppression hearing. Hence, we start from the assumption that the encounter which led to the seizure of illegal drugs from Defendant's vehicle began as a valid investigatory stop followed by a valid frisk of Defendant's person. The issues on appeal are: (1) whether it was reasonable for the law enforcement officer to extend the scope of his protective search for weapons from Defendant's person to the front seats and adjacent floor area of Defendant's vehicle, and, if so, (2) whether it was reasonable for the law enforcement officer to extend the scope of this protective search of Defendant's vehicle for weapons to the small hole in the dashboard of Defendant's vehicle where the cocaine was found.

¶11 In resolving these issues, we determine that this case is controlled by the New Mexico Supreme Court's recent decision in State v. Gomez, 122 N.M. 777, 932 P.2d 1 (1997).

C. Search of Defendant's Vehicle for Weapons

¶12 Defendant argues that the search of his vehicle leading to the discovery of the marijuana roach was unreasonable because there was no reason to suspect that Defendant was armed and dangerous after he exited his vehicle and was frisked. We disagree and hold that: (1) the officer's suspicion that Defendant was involved in an aggravated assault was reasonable and had not been dispelled at the time of the initial search of Defendant's vehicle for weapons; and (2) it was reasonable for the officer to search the front seats and adjacent floor area of Defendant's vehicle to check for weapons because there were exigent circumstances to justify this limited search for weapons during the investigatory stop.

¶13 Reasonable suspicion to allow an officer to make an investigatory stop exists if the officer is " 'aware of specific articulable facts, together with rational inferences from those facts,' and these facts and inferences ... provide the basis for the suspicion." State v. Galvan, 90 N.M. 129, 131, 560 P.2d 550, 552 (Ct.App.1977) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975)). Defendant does not dispute the reasonableness of Officer Link's initial suspicion that Defendant or Defendant's vehicle recently had been involved in an aggravated assault. Rather, Defendant asserts that the following...