State v. Alderete

• Decision Date: 08 April 2011
• Docket Number: No. 29,214.,29,214.
• Citation: 2011 -NMCA- 055,149 N.M. 799,255 P.3d 377
• Parties: STATE of New Mexico, Plaintiff–Appellant,v.Gisela ALDERETE, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

149 N.M. 799

255 P.3d 377

2011 -NMCA- 055

STATE of New Mexico, Plaintiff–Appellant,

v.Gisela ALDERETE, Defendant–Appellee.

No. 29,214.

Court of Appeals of New Mexico.

April 8, 2011.

Gary K. King, Attorney General, Santa Fe, NM, James W. Grayson, Assistant Attorney General, Albuquerque, NM, for Appellant.Gorence & Oliveros, P.C., Robert J. Gorence, Albuquerque, NM, for Appellee.

OPINION

FRY, Judge.

{1} Defendant Gisela Alderete was charged with possession of over one hundred pounds of marijuana with intent to distribute, along with other related charges, after detectives discovered a large amount of marijuana in her vehicle following a traffic stop. In a motion to suppress the evidence seized during the search of her vehicle, Defendant argued that the traffic stop was pretextual and that the actual motivation for the stop was that she had just left a house that was under surveillance for drug trafficking. The district court agreed, concluding that but for the drug investigation, Defendant would not have been pulled over for her traffic offense, and it suppressed all of the evidence obtained during the search of Defendant's vehicle. On appeal from the district court's ruling, the State argues that the subjective motivations of officers other than the stopping officer cannot be imputed to the stopping officer and that if the motivations of the other officers are considered, the detective who requested the stop had a constitutionally valid basis for doing so. For the following reasons, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

{2} In March 2007, detectives with the Albuquerque Police Department received a tip from a confidential informant that a house in Albuquerque was being used as a stash house for large amounts of marijuana and that a large quantity of the drug would be delivered to the house sometime during the week of March 12. The detectives had previously received reliable information from the informant. Throughout the week of March 12, the detectives conducted surveillance of the house and, at 7:10 a.m. on March 16, a black pickup truck arrived at the house and a man got out and approached the front door. A second man came out of the house, and the two men returned to the truck, where they began to have a conversation while looking at three large moving boxes in the back of the truck. According to the affidavit for a search warrant, the two men were “looking around in all directions and appeared to be conducting counter surveillance ... in [an] attempt to locate police.” The two men removed the boxes from the truck and carried them into the house. At some point after the detectives observed this activity, the confidential informant contacted the detectives and informed them that he or she knew “first hand, through conversations with the residents [of the home], that a large quantity of marijuana is currently being stored at the residence.” Based on their observations and the information provided by the informant, one of the detectives obtained a warrant for a search of the house.

{3} At 10:20 a.m., approximately three hours after the boxes were taken into the house, and while the signed search warrant was en route, the detectives observed a Hispanic male, later identified as Defendant's husband, Mario Alderete, load a box resembling the three boxes that had been delivered in the morning into a truck and leave the premises. Mr. Alderete's vehicle was stopped for a traffic violation and, at the time of the stop, Mr. Alderete was on his cell phone. He was given a warning for talking on the phone while driving. When the stopping officer approached the vehicle, he could see that the box was opened and that it contained several packages wrapped in brown packing tape, which was consistent with the packaging of large quantities of drugs. Mr. Alderete subsequently consented to a search of his vehicle, and approximately forty-nine bundles of marijuana were discovered in the box.

{4} Approximately ten minutes after Mr. Alderete left the house and was stopped, the detectives surveilling the house observed a white Ford Expedition leave the residence's garage. Sergeant Christman radioed for someone to pull the vehicle over, and Officer Jason Westbrook, who was waiting in a nearby staging area in preparation for the execution of the search warrant, responded. Officer Westbrook testified that he heard on the radio that a white Ford Expedition had just come out of the garage at the subject house, and he heard someone say that “they would like the vehicle ... that was leaving the residence to be stopped.” Officer Westbrook testified that this was not an order or a directive but “more of a request.” After hearing the request to stop the vehicle, Officer Westbrook immediately left the staging area and observed the vehicle make a left turn onto Juan Tabo and begin traveling northbound. Officer Westbrook caught up to the vehicle and observed it make two sudden lane changes without signaling. Officer Westbrook testified that he believed that the driver might have been trying to get out of the lane he was in “to avoid being stopped or just to not be ahead of” him.

{5} When he stopped the vehicle, Officer Westbrook asked the driver (later identified as Defendant) for the bill of sale for the vehicle and her insurance information. Defendant provided him with paperwork for a completely different vehicle and advised him that she did not have insurance. Officer Westbrook advised Defendant that he was going to have to tow her vehicle pursuant to the police department's standard operating procedure requiring the towing of uninsured vehicles.

{6} Prior to beginning an inventory search of the vehicle, Officer Westbrook advised Defendant that he had seen two large cardboard boxes in the back of the vehicle and asked her if she had anything valuable in the boxes. According to Officer Westbrook, Defendant “became extremely nervous at that point[,] stated that she did not have any idea what was in those boxes,” and told Officer Westbrook that she would need to call her husband. During a subsequent inventory search of the vehicle, Officer Westbrook opened the boxes and observed “small brick-like shaped items” in the boxes. Another detective later obtained a search warrant for Defendant's vehicle and its contents and discovered fifty-eight bundles of marijuana in one box and fifty-six bundles in the other.

{7} Defendant was arrested and charged with possession of marijuana (over one hundred pounds) with intent to distribute, conspiracy to possess, and child abuse based on the fact that her two-year-old daughter was in the car at the time of the stop. Prior to trial, Defendant moved to suppress the evidence obtained during the inventory search of her vehicle, arguing that Officer Westbrook's traffic stop was pretextual, that the real reason she was stopped was to investigate her involvement in drug activity, and that Officer Westbrook did not have reasonable suspicion to justify stopping Defendant to investigate her involvement in drug activity. Relying on our recent decision in State v. Ochoa, 2009–NMCA–002, 146 N.M. 32, 206 P.3d 143 (filed 2008), cert. quashed, 2009–NMCERT–011, 147 N.M. 464, 225 P.3d 794, the district court concluded that while Officer Westbrook had reasonable suspicion to stop Defendant for the traffic offense she committed, the underlying reason for the stop was the ongoing drug investigation at the residence and the stop was therefore pretextual. The court noted that “but for the request of the drug investigation officer ... that [Defendant] be stopped, there[ is] no indication that there otherwise would have been a stop.” The court also concluded that there was no individualized reasonable suspicion directed at Defendant herself that would otherwise make the stop lawful. The court explained that Defendant was not a prime suspect and that there was not “enough of a factual predicate for there to be a reasonable suspicion directed specifically to her.” Based on its conclusion that the stop was pretextual, the district court suppressed all of the evidence found in Defendant's vehicle. The State appeals.

{8} On appeal, the State argues that the evidence should not have been suppressed because: (1) the subjective motivations of officers other than the stopping officer cannot be imputed to the stopping officer; (2) if the motivations of the other officers are considered, the detective who requested the stop had a constitutionally valid basis for doing so; and (3) we should reconsider our decision in Ochoa. Because we agree with the State's assertion that the detectives had a constitutionally valid basis for stopping Defendant's vehicle, we do not address the State's remaining arguments.

DISCUSSIONStandard of Review

{9} Because suppression of evidence is a mixed question of law and fact, we apply a two-part review to a district court's decision regarding a motion to suppress. We review any factual questions under a deferential substantial evidence standard, and we review the application of the law to the facts de novo. State v. Neal, 2007–NMSC–043, ¶ 15, 142 N.M. 176, 164 P.3d 57. In doing so, we “review the facts in the light most favorable to the ... district court's factual findings so long as substantial evidence exists to support those findings.” Id.

Pretext

{10} The district court determined that Officer Westbrook's stated reason for stopping Defendant, an unsafe lane change, was pretextual and that the actual motive for the stop was to investigate whether she was involved in drug activity. The court based this determination on the test we delineated in Ochoa, 2009–NMCA–002, ¶ 40, 146 N.M. 32, 206 P.3d 143, for determining whether a stop is pretextual. In Ochoa, we explained that the district court should first determine whether there was reasonable suspicion or probable cause for the stop and then decide if the officer's...