State Of N.M. v. Eric K.

• Decision Date: 01 April 2010
• Docket Number: No. 28,583.,28,583.
• Citation: 237 P.3d 771,148 N.M. 469
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. ERIC K., Child-Appellant.
• Court: Court of Appeals of New Mexico

148 N.M. 469

237 P.3d 771

STATE of New Mexico, Plaintiff-Appellee, v. ERIC K., Child-Appellant.

No. 28,583.

Court of Appeals of New Mexico.

April 1, 2010.

Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Navin H. Jayaram, Assistant Appellate Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} This is another Fourth Amendment seizure case that arrives at our doorstep for development of the law of reasonable suspicion involving an extended detention of a person on foot who happens to be in the area of possible criminal activity reported in an anonymous 911 call. Upon being dispatched to an area of reported criminal activity, a police officer attempted an encounter with Eric K. (Child) and a companion as they were about to enter a Laundromat located in the vicinity of a reported crime. Child first ignored the officer's summon and entered the Laundromat but then complied upon the officer's second summon, after which the officer on more than one occasion told Child to remove his hands from the pockets of his jacket. After Child's hands were out of his jacket pockets, the officer noticed something about the pockets that indicated to the officer that Child may have a weapon. The officer conducted a patdown and discovered drug paraphernalia, drugs, and a weapon. After he was arrested and charged, Child sought suppression of the evidence on the ground he was seized without the requisite reasonable suspicion. The district court denied Child's motion to suppress as to the weapon and the drug paraphernalia. We reverse.

BACKGROUND

{2} A 911 caller who identified himself as Johnny Smith reported that someone, referred to in the conversation with dispatch as “she,” pulled a gun and took his money apparently during a drug transaction in the vicinity of Tibbetts Middle School in Farmington, New Mexico. When the 911 call was suddenly dropped, dispatch called the reporting party back asking for Johnny Smith, and a female named “Keisha Red” answered, indicatedthat she was talking on a cell phone, and stated that “There's no Johnny here” and that “[h]e left walking down the street.”

{3} The dispatcher relayed information to Officer Mark Gaines. The information relayed was that there was an “armed subject” in the area of the school and named “Johnny Smith” as the party who reported to dispatch that someone just pulled a gun on him when “buying Code 12.” The dispatcher did not mention that the reporting party indicated that the assailant was female. The officer testified that he had no other description of the 911 caller, had no description of the person with the gun, and did not have a specific location where the reported incident occurred when he proceeded to the area. It was mid-afternoon on a day when the school was closed for Christmas break.

{4} Approximately two blocks from the school, Officer Gaines observed two males walking toward the back door of a Laundromat. There were a few other people in the Laundromat parking lot but “nobody walking.” The officer was looking for people on foot “that could be a danger.” The officer was concerned about community safety given the report that someone had pulled a gun on someone, and the officer intended to ask the two males if they knew anything about what had happened, to see if they had heard or seen anything, and to ascertain if they might be a suspect. The two looked “a little bit nervous” to the officer, and he decided to contact them without really knowing “where it was gonna go at that point.”

{5} When they saw the officer, the two persons moved quickly to the Laundromat, whereupon the officer hollered for them to talk to him. One of the two persons, Child, darted quickly into the Laundromat; his companion, whom Child testified was his cousin, approached the officer. The officer “yelled-hollered-asked” Child to come out and to come over to talk to the officer, and Child came out of the Laundromat. The officer saw nothing incriminating in the conduct of the two at this point.

{6} In answer to the State's question whether he saw anything in Child's behavior that he thought was suspicious, the officer testified that “it was a little strange that as ... they were on the south side of the Laundromat approaching the Laundromat from the east, ... as I pulled up ... coming from the west toward[ ] the east, they saw me [and] they began immediately walking to the back of the Laundromat.... Nothing real suspicious at that time but it is one of those things that makes you say well maybe I should talk to these people.... Nothing incriminating, but possibly suspicious.” The officer nevertheless thought Child “appeared to be acting nervous initially just by running” into the Laundromat and that Child appeared “a little more nervous” as the officer began talking to him, which added to the officer's suspicions. Because Child and his companion had their hands in the pockets of their jackets, for safety the officer asked them both to show their hands. The companion complied, but Child did not, and the officer started to wonder why Child was not pulling his hands out of his pockets. Officer Gaines again asked Child to pull his hands out but Child pulled out only his left hand, which seemed strange to the officer. The officer took a step closer to Child, and Child immediately took his right hand out. The officer noticed that the right side of Child's jacket was hanging lower than the other side, indicating something heavy in the front jacket pocket.

{7} For his safety, the officer approached Child and patted the pocket for a weapon and he immediately recognized what he knew was a revolver in the jacket pocket. He asked Child what was in the pocket; Child began stuttering and could not answer. The officer pulled out the revolver and continued a patdown for any additional weapons. During the continued patdown, a large glass pipe which the officer recognized as a marijuana pipe fell out of Child's pocket. The officer asked Child where the drugs were, and Child said they were in his front pants pocket. The officer asked if he could retrieve them and he pulled marijuana from Child's pants pocket.

{8} The State filed a petition alleging that Child was a delinquent child and charging Child with unlawful possession of a handgun by a person less than nineteen years, possession of marijuana one ounce or less, and useor possession of drug paraphernalia. Child moved to suppress the evidence obtained from the search. Child asserted that the officer had no legal basis on which to stop him and that the patdown search was a direct result of an illegal seizure.

{9} In its response, the State argued that the officer did not need reasonable suspicion to stop Child and to frisk him. The State also argued that the officer had reasonable and individualized suspicion based on the facts that “[t]he juveniles were in the area where a crime had been reported and they ran from Officer Gaines when Officer Gaines tried to approach them.” Somewhat differently, in the hearing on the motion to suppress, the State argued that the officer had reasonable suspicion to stop Child based on the information the officer had been given by dispatch, and he had reasonable suspicion to conduct a patdown for weapons based on Child's nervous, evasive, and suspicious behavior.

{10} Child testified at the suppression hearing. He stated that he was playing X-Box at his brother-in-law's house. He was waiting for his mother to pick him up. His mother did not arrive, and Child and his cousin walked to the Laundromat to call Child's mother from a pay phone to come pick him up. The phone was in the back of the Laundromat, and Child typically entered the Laundromat at that location. He did not see the police until he walked out of the Laundromat. Upon exiting the building, Child saw three police cars in front of the building. Child said he was not asked any investigative questions before Officer Gaines patted him down and discovered the revolver, marijuana, and marijuana pipe. In rebuttal testimony, Officer Gaines testified that he was the only officer at the Laundromat until after he retrieved the gun from Child's pocket.

{11} Following the testimony and counsel's argument at the hearing on Child's motion to suppress, the court indicated that the officer's initial contact with Child was appropriate and justified based first on the report of a gun in the area and based also on having observed Child and the other person as the only people walking in the area followed by Child's evasive behavior upon seeing the officer. The court stated that the patdown was reasonable considering Child's continued evasive behavior in refusing to show his hands combined with the officer's observation of Child's jacket hanging low after Child did finally remove both hands.

{12} Following the hearing, Child agreed to admit to the charge of use or possession of drug paraphernalia, reserving his right to appeal the court's decision on his motion to suppress. Not long afterward, Child filed a motion to reconsider. In his motion, Child discussed circumstances relating to the 911 call, particularly stressing the fact that the call was from an anonymous caller who identified a female as the person who pulled the gun on him and arguing that the information in the call was insufficient for the police to suspect Child was involved in the incident. Child also argued that “Officer Gaines' investigatory seizure of the Child, after merely observing ... Child quickly enter the rear entrance of the Laundromat was not enough to establish reasonable suspicion that ... Child was or had been engaging in any criminal activity.”

{13} The court did not enter written findings of fact or a written order denying Child's motion to suppress or motion for reconsideration. Within several...