1999 -NMCA- 27, State v. Gonzales

• Decision Date: 21 December 1998
• Docket Number: No. 18818,18818
• Citation: 126 N.M. 742,1999 NMCA 27,975 P.2d 355
• Parties: 1999 -NMCA- 27 STATE of New Mexico, Plaintiff-Appellant, v. Benjamin C. GONZALES and Richard Quintana, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 355

975 P.2d 355

1999 -NMCA- 27

STATE of New Mexico, Plaintiff-Appellant, v. Benjamin C. GONZALES and Richard Quintana, Defendants-Appellees.

No. 18818.

Court of Appeals of New Mexico.

Dec. 21, 1998.

Certiorari Denied, No. 25540,

Feb. 2 and No. 25551, Feb. 4, 1999.

Tom Udall, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellant.

Wade H. Russell, Santa Fe, for Appellee Gonzales.

Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Assistant Appellate Defender, Santa Fe, for Appellee Quintana.

OPINION

HARTZ, Chief Judge.

¶1 The State appeals the district court's order suppressing drugs discovered during a consensual search of Defendants' vehicle. Officers had stopped the vehicle on the basis of an informant's tip. The district court ruled that the informant's tip did not create the reasonable suspicion necessary to justify the stop. We disagree and reverse.

¶2 The only evidence concerning the tip was testimony by the officer who claimed to have received the tip. That testimony, if believed, required a finding of reasonable suspicion. Although the district court was not required to believe the testimony, we presume that it did so because (1) the testimony was uncontradicted, (2) the court failed to set forth on the record any reason for disbelieving it, see State v. Lovato, 112 N.M. 517, 521, 817 P.2d 251, 255 (Ct.App.1991), and (3) the court's oral statements and its ruling on another issue indicate that the court believed the officer.

I. BACKGROUND

¶3 The testifying officer was Agent John Garcia of the Santa Fe Police Department. On January 20, 1996, he received a tip from a confidential informant that Benjamin Gonzales and Richard Quintana were making deliveries of methamphetamine on Airport Road near the golf course. According to the informant, the men were driving a tan Dodge Ram Charger with New Mexico license plate number 134-HML. The informant reported having seen methamphetamine in the vehicle earlier in the day. Approximately twenty times in the past the informant had given information to police officers, with "probably about a ninety percent case clearance."

¶4 Agent Garcia and two other narcotics officers drove to Airport Road and set up a surveillance. They apparently knew where the vehicle was parked but decided not to move close enough to "eyeball" it in order to avoid jeopardizing another police narcotics operation taking place in the same area. After waiting about thirty minutes, the officers saw the vehicle drive by. They called for backup assistance and stopped the vehicle.

¶5 There is conflicting testimony about what happened next. Agent Garcia testified as follows: After separating and pat-searching the two men, he told Gonzales that the police had received information that he and Quintana were currently in possession of controlled substances. He asked Gonzales for permission to search the vehicle. Gonzales said that there was nothing in the vehicle and told the officers that they could "go ahead and check it." Garcia searched the vehicle and found a plastic bag containing a small amount of white powder, which field-tested as methamphetamine. The officers then arrested Gonzales and Quintana for possession of a controlled substance, handcuffed them, and drove them to the police station.

¶6 In contrast, Gonzales and Quintana testified that the officers pulled them out of the vehicle at gunpoint and immediately handcuffed them, frisked them, and put them into a police car. All that the officers said to Gonzales at the scene was "manos para arriba" (hands up). The officers never asked for permission to search the vehicle, and neither Gonzales nor Quintana consented to a search.

¶7 Defendants moved to suppress the methamphetamine on three grounds: (1) the police lacked reasonable suspicion to stop the vehicle, (2) the stop was actually an arrest unsupported by probable cause, and (3) there was no valid consent to the search. Defendants challenged the credibility of Agent Garcia and the trustworthiness of the informant's tip.

¶8 Following the presentation of testimony at the hearing, the district court rejected Defendants' contentions 2 and 3 but agreed with the first contention. The court explained:

[T]he view of the court is that the defense loses on both whether or not this was an arrest situation and whether or not there was a consent. The only issue before me is whether or not this is a case of the officers having reasonable suspicion at the time they stopped the vehicle.

I agree with defense counsel that this is not the [State v. Pallor, 1996-NMCA-083, 122 N.M. 232, 923 P.2d 599] scenario. This is not a concerned citizen giving information to the police; that this is a confidential informant giving information to the police which is then, in the view of the court, not corroborated by the police.

The evidence that was presented that I turn on is the fact that the confidential informant told the officers that these individuals were making deliveries. So, in addition to the identification of the car, the licence plate number, the officers were given information which could be checked by surveillance. And I find that they did no surveillance to speak of.

They located the car and had it pulled over, and the officer's testimony was they didn't want to burn something else that they were doing, something else that was going on. There was no attempt made by the officers to observe what these individuals were doing--whether or not there was any other observable activity going on that would verify or confirm the information given to them by the confidential informant.

This is the scenario that wasn't addressed under [State v. De Jesus-Santibanez, 119 N.M. 578, 581, 893 P.2d 474, 477 (Ct.App.1995)] ... because the facts in that case didn't get to the issue of whether or not the uncorroborated statements of a confidential informant are sufficient to establish reasonable suspicion.

In this case we have no other observations from the officers that can objectively be looked at to decide whether or not the officer had enough information for pulling this vehicle over. The officer's only statement was that this confidential informant had been helpful or that information had been correct in, and I put that down, about ninety percent of the time. Without any other follow-up or other investigation from the officers on the scene, they were very hasty in making their stop.

In its written order, the district court stated:

On defendants' arguments that this was an arrest situation requiring probable cause for a stop and that a valid consent was not given, the Court rules against defendants. On the issue of reasonable suspicion for the initial stop, the Court finds against the state, finding there was insufficient evidence to establish reasonable suspicion for this particular stop.

The court did not enter any findings of fact.

II. DISCUSSION

A. Standard of Review

¶9 It is a bedrock principle of appellate practice that appellate courts do not decide the facts in a case. Fact-finding is the task of the trial judge or the jury. Our role is to determine whether the lower court has applied the law properly. Yet the rulings that come before us for review ordinarily have both factual and legal components. To determine whether the law has been properly applied, we need to know what facts were found. Given one set of facts, the ruling would be legally correct; given a different set of facts, the ruling would be unsound.

¶10 On most occasions, the procedures below enable us to determine the factual basis of the ruling. For example, when the ruling below was based on a jury verdict, we ordinarily can tell what facts the jury found, because we know how the jury was instructed on the law. And when the ruling below was a judgment in a civil case after a non-jury trial, we ordinarily know what facts were found by the trial judge, because the judge is required to enter a decision setting forth findings of fact. See Rule 1-052(B) NMRA 1998.

¶11 There are some proceedings, however, in which the decision comes to us in a form that does not disclose what facts were found below. This is a regular occurrence when we review decisions on motions to suppress evidence in criminal cases. No rule of criminal procedure requires the district court to set forth the factual basis of its decision.

¶12 How should an appellate court perform its task of reviewing for legal error when it does not know what facts were found below? In particular, how should it proceed in reviewing a ruling on a motion to suppress when the district court has entered no findings of fact?

¶13 One alternative would be for the appellate court to find the facts itself. Of course, as noted above, we reject that approach. The vantage of the appellate bench is a poor one from which to assess credibility and perform other components of the fact-finding task.

¶14 A second alternative would be to remand to the district court for findings of fact. But that practice would conflict with our Supreme Court's determination--as reflected in the Rules of Criminal Procedure that it has promulgated--not to require findings of fact for rulings on suppression motions. Hence, we should be reluctant to remand.

¶15 Thus, our practice has been to take a third course--employ presumptions. As a general rule, we will indulge in all reasonable presumptions in support of the district court's ruling. See State v. Wagoner, 1998-NMCA-124, p 16, 126 N.M. 9, 966 P.2d 176.

¶16 But there is one constraint on this approach. We will not presume that the district court has rejected uncontradicted testimony. Indeed, we presume the opposite. In Lovato, 112 N.M. at 521, 817 P.2d at 255, this Court adopted the rule for suppression motions that a trial judge who "rejects uncontradicted testimony based solely on a determination of credibility, [should] indicate in the record the reasons for [doing so]." In the absence of such a statement...