State v. Duran, 22,611.

• Decision Date: 31 July 2003
• Docket Number: No. 22,611.,22,611.
• Citation: 134 N.M. 367,76 P.3d 1124
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jaclyn DURAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

76 P.3d 1124

134 N.M. 367

STATE of New Mexico, Plaintiff-Appellee, v. Jaclyn DURAN, Defendant-Appellant.

No. 22,611.

Court of Appeals of New Mexico.

July 31, 2003.

Certiorari Granted September 3, 2003.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

Lawrence W. Allred, Michael W. Lilley, Lilley Law Offices, Las Cruces, NM, for Appellant.

Certiorari Granted, No. 28,241, September 3, 2003.

OPINION

ALARID, Judge.

{1} This appeal requires us to decide whether Defendant's constitutional right to be free from unreasonable searches and seizures was violated when, in the course of a routine traffic stop, Defendant and her passenger were separated and repeatedly questioned about their itinerary. We hold that the questioning of Defendant and her passenger was neither reasonably related to the purposes of the stop nor based upon particularized and objective factors giving rise to a reasonable suspicion that criminal activity was afoot. We further hold that Defendant's consent to a subsequent search of the car was tainted by the unconstitutional questioning. We therefore reverse the trial court's order refusing to suppress marijuana subsequently seized during a search of Defendant's car.

BACKGROUND

{2} On the afternoon of December 10, 2000, Defendant, Jaclyn Duran, and a passenger, Kate Williams, were driving northeast on Highway 26 in a 1987 Chevrolet Camaro hatchback. The car had a temporary registration permit affixed to the inside of the upper left-hand corner of the hatchback window. Defendant passed New Mexico State Police Officer Beau Johnston, whose car was parked on the side of Highway 26. Officer Johnston pursued Defendant's car for the purpose of determining why the car did not display a license plate. As he caught up to Defendant's car he noticed a piece of paper in the upper left corner of the rear window. He assumed it was a New Mexico temporary permit, but was not sure.

{3} After stopping Defendant's car, Officer Johnston parked his patrol car approximately twenty-five to thirty feet behind Defendant's car. He left his patrol car and approached Defendant's car from the passenger side.¹ Speaking through the open passenger-side window, Officer Johnston explained that he had stopped Defendant's car because the temporary registration permit was placed too high on the rear window to be visible. He asked Defendant for her driver's license, car registration, and proof of insurance; he asked Williams for identification as well. Officer Johnston noticed a jack, some assorted tools, an overnight bag, and a cellular phone plugged into the console. He also noticed the slight odor of gasoline. He looked at the temporary permit, which stated that Defendant was the purchaser of the car. Officer Johnston also noted that the temporary permit had not expired.

{4} Defendant was unable to produce proof of insurance. Officer Johnston directed Defendant to accompany him back to his patrol car. Williams remained in the car. On the way back to the patrol car, Officer Johnston pointed out to Defendant how the position of the temporary permit made it hard to read.

{5} At the patrol car, Officer Johnston reviewed the bill of sale that Defendant had produced. He noticed that it was handwritten, apparently with a "Sharpie" marker. Although most bills of sale he encountered were typewritten or computer-generated, it was not unusual to encounter a handwritten bill of sale. As he reviewed the paperwork, he asked Defendant about her itinerary. She explained that she and Williams were on their way to Las Cruces from Silver City. In Officer Johnston's view, his initial questioning of Defendant regarding her itinerary was "casual conversation."

{6} Officer Johnston was aware that Highway 26 is an indirect route from Silver City to Las Cruces. The most direct route from Silver City to Las Cruces is to take Interstate 10 east from Deming. Officer Johnston knew that by taking Highway 26, Defendant would bypass a twenty-four-hour Border Patrol checkpoint on I-25 north of Las Cruces.

{7} Officer Johnston asked Defendant why she had taken an indirect route. Defendant explained that she had never gone to Las Cruces by taking Highway 26 through Hatch, and she wanted to see how long it took. Officer Johnston left Defendant standing by his patrol car and returned to Defendant's car to compare the VIN on the bill of sale with the VIN on the front dashboard of Defendant's car. He asked Williams where she and Defendant had been and where they were going. Williams responded that they had left Las Cruces and were on their way to Albuquerque to see some friends. Officer Johnston asked Williams where she and Defendant were coming from. Williams responded "Las Cruces." Officer Johnston asked Williams if she and Defendant had been anywhere else that day. Williams responded "no." Officer Johnston then asked Williams to identify more specifically her Albuquerque friends. Williams told Officer Johnston that her friends were Derrick and Jesse, who live on San Mateo in Albuquerque. Officer Johnston then asked Williams if Defendant knew Derrick and Jesse. Williams replied that she was not sure and that she did not know whom Defendant was planning to see.

{8} Officer Johnston returned to his patrol car, where Defendant was standing. He ran a warrant check on Defendant and Williams and began writing out a citation for failure to provide proof of insurance and a warning citation for improper display of the temporary permit. The returns on the warrant checks were "clear." Officer Johnston again asked Defendant about her itinerary. Defendant once again stated that she was on her way to Las Cruces from Silver City. She also mentioned that she had been visiting relatives in Silver City. She could not provide their specific street addresses. She explained that she and Williams were just out for a drive and wanted to see how long it would take to get to Las Cruces via Hatch.

{9} Officer Johnston asked Defendant if there had been a co-signer on the purchase of the car. Defendant said that her uncle, Roman Garcia had co-signed. Officer Johnston then pointed out that the signature on the bill of sale was for Ramon, not Roman, Garcia. Defendant replied that Officer Johnston was correct, but that she called her uncle Roman. Officer Johnston also asked Defendant about the price she had paid for the car and what year it was manufactured. Defendant hesitated, and suggested that the car was a 1987. She stated that she had paid $5,500 for the car.

{10} Officer Johnston noticed that Defendant, who was standing outside in the cold, windy December weather, seemed more nervous than was typical for a motorist in a traffic stop.

{11} Officer Johnston returned to Defendant's car and once again asked Williams about their travel plans. Williams again responded that she and Defendant were on their way from Las Cruces to Albuquerque. Officer Johnston returned to the patrol car, where he returned all of the documents to Defendant, and had her sign the citations. Officer Johnston asked Defendant whether she would mind answering a few more questions. When Defendant said she would not mind, Officer Johnston asked her yet again about her itinerary. She repeated her previous story, adding that she and Williams had spent the night with an aunt in Silver City. Defendant could not recall her aunt's address but remembered the aunt lived by a school.

{12} The foregoing circumstances led Officer Johnston to begin wondering whether Defendant and Williams were involved in criminal activity. Officer Johnston asked Defendant and Williams if there were any drugs in the car and both answered that there were not. Officer Johnston asked both Defendant and Williams if they would consent to a search of the car. Both gave their consent.

{13} Officer Johnston then looked under the rear of Defendant's car and inspected the area surrounding the gas tank. Officer Johnston noticed signs of recent work on the gas tank. A Border Patrol agent arrived with a drug-sniffing dog. The Border Patrol agent searched Defendant's car with the dog. Officer Johnston and the Border Patrol agent then used a fiber-optic scope to examine the inside of the gas tank. Officer Johnston observed what he believed to be drugs wrapped in plastic. Officer Johnston arrested Defendant and Williams. Thirteen vacuum-packed bundles of marijuana were recovered from the gas tank.

{14} Defendant was charged with possession of marijuana with intent to distribute and conspiracy. Defendant was subsequently charged with two counts of falsifying title documents. Defendant moved to suppress the marijuana. The trial court held an evidentiary hearing on the motion. At the hearing, the trial court watched and listened to approximately the first twenty minutes of the videotape of the stop. Officer Johnston was then called as a witness by the State. The trial court also received into evidence a copy of the bill of sale and Officer Johnston's written report of the stop. The trial court denied the motion to suppress in an order containing detailed findings of fact and conclusions of law. Thereafter, Defendant entered a conditional plea of guilty, reserving the right to appeal the following issues: (1) the validity of the traffic stop; (2) the scope of Officer Johnston's questioning during the investigatory stop; and (3) the tainting of Defendant's consent to the search.

DISCUSSION

{15} On appeal from the district court's denial of a motion to suppress, we review to determine whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the [State]. Findings of fact are reviewed to determine if they are supported by substantial evidence and legal conclusions are reviewed de novo.... The legal conclusion that the officer's actions were reasonable or justified is a mixed issue of law and fact which we review de novo.

State v. Romero, 2002-NMCA...