State v. Garcia

• Decision Date: 01 September 2009
• Docket Number: No. 30,937.,30,937.
• Citation: 217 P.3d 1032,2009 NMSC 046
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Joshua GARCIA, Defendant-Petitioner.
• Court: New Mexico Supreme Court

217 P.3d 1032

2009 NMSC 046

STATE of New Mexico, Plaintiff-Respondent, v. Joshua GARCIA, Defendant-Petitioner.

No. 30,937.

Supreme Court of New Mexico.

September 1, 2009.

Hugh W. Dangler, Chief Public Defender, Joseph P. Walsh, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Defendant Joshua Garcia appeals his convictions for possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(A) (1972, as amended through 2005), and resisting, evading, or obstructing an officer, contrary to NMSA 1978, Section 30-22-1(B) (1963, as amended through 1981). He maintains that the evidence obtained against him was the fruit of an unreasonable seizure. We granted certiorari to consider whether Defendant was seized under Article II, Section 10 of the New Mexico Constitution. After applying our interstitial analysis of the federal constitution and concluding that Defendant may not be protected under the Fourth Amendment, we hold that the standard for a seizure under Article II, Section 10 is whether a reasonable person would feel free to leave. Therefore, Defendant was seized when the officer stopped his patrol car in the intersection near where Defendant was walking, shone his spotlight on Defendant, and told him to stop. Because there was no reasonable suspicion to support seizing Defendant, the evidence obtained against him was the fruit of an unreasonable seizure under Article II, Section 10 and must be suppressed. We reverse.

I. BACKGROUND AND PROCEEDINGS BELOW

{2} The following account of the events on the evening of Defendant's arrest comes from Officer Lyndell Stansell, Jr.'s narrative of his encounter with Defendant. Neither side contests the narrative; the facts are not in dispute and it contains the only evidence on point. On January 17, 2005, at approximately seven o'clock p.m., the officer was called to a "possible domestic in progress" at an address in Clovis. The dispatcher told the officer that the caller wished to have a man named Joshua Garcia removed from the residence. When the officer arrived at the intersection nearest the address, he saw Defendant walking across the street. There is no evidence that the officer had been acquainted with Defendant, had any prior contact with him, had received a description of him from dispatch, or knew by any other means that Defendant was the man to which the caller was referring.

{3} Immediately upon seeing Defendant, the officer stopped his patrol car in the intersection near Defendant, shone his spotlight on Defendant, exited the patrol car, and "told [Defendant] to stop." Defendant continued walking past the patrol car and the officer "again ordered" Defendant to stop walking. Defendant told the officer that he was "just going to [his] cousin's house." Defendant had his hands in his jacket pockets and was fumbling with something. The officer thought Defendant was about to run, so he shone his flashlight on him, tried to get in front of him, and "yelled at [him] again" to stop. Defendant kept on his way, still fumbling in his pockets.

{4} Fearing that Defendant had a weapon, the officer pulled out his gun and twice ordered Defendant to remove his hands from his pockets. Defendant did not take his hands out of his pockets and continued to try to walk around the officer. Because he continued to fear that Defendant had a weapon and because Defendant had not obeyed his orders, the officer "realized [he] was going to have to physically stop" Defendant.

{5} The officer sprayed Defendant with a one-second burst of pepper spray. Defendant turned to his right and kept walking, still with his hands in his pockets. As Defendant passed in front of a car, the officer saw something fall to the ground. The officer then tackled Defendant and handcuffed him.

{6} The item that fell to the ground appeared to be, and was subsequently confirmed to be, crack cocaine. Another officer searched Defendant incident to his arrest and found marijuana on his person.

{7} Defendant was charged with possession of cocaine, marijuana, and drug paraphernalia and resisting, evading or obstructing an officer. He moved to suppress any evidence obtained against him as the result of an illegal seizure under either the United States or New Mexico Constitutions. The district court denied the motion, apparently concluding that Defendant had been seized but that there was reasonable suspicion to support the seizure. The district court did not specify whether it considered the issue under both constitutions or the federal constitution alone. Defendant pled guilty to possession of a controlled substance and resisting, evading or obstructing an officer, but reserved his right to appeal the suppression ruling. In a published opinion, the Court of Appeals affirmed the district court on different grounds. See State v. Garcia, 2008-NMCA-044, ¶¶ 1, 13, 143 N.M. 765, 182 P.3d 146. It held that, under the Fourth Amendment, Defendant had not been seized and that there was thus no reason to inquire into reasonable suspicion. See id. ¶ 1. In opposition to this alternative basis for affirming the district court, Defendant argued that under the Article II, Section 10 of the New Mexico Constitution, he had been seized. The Court of Appeals did not reach Defendant's Article II, Section 10 claim, concluding that he failed to preserve it at the district court. See id. We granted certiorari to consider whether Defendant was seized under Article II, Section 10 of the New Mexico Constitution.¹

{8} On appeal to this Court, Defendant argues that he was seized under Article II, Section 10 of the New Mexico Constitution and that the seizure was unlawful because the officer did not have reasonable suspicion to stop him. Therefore, Defendant argues, the cocaine that he dropped and the marijuana that was on his person were fruits of an illegal seizure and must be suppressed. We agree with Defendant and hold that he was seized under the New Mexico Constitution when the officer stopped his marked patrol car in the intersection near Defendant, shone his flashlight on him, and told him to stop. The officer did not have reasonable suspicion to seize Defendant, and the evidence obtained against him was therefore the fruit of an illegal seizure and must be suppressed.

II. DISCUSSION

A. STANDARD OF REVIEW

{9} The standard of review for suppression rulings is whether the law was correctly applied to the facts, viewing the facts in the manner most favorable to the prevailing party. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. Factual determinations are reviewed for substantial evidence and the application of the law to the facts is reviewed de novo. State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442. Determinations of reasonable suspicion are reviewed de novo. State v. Harbison, 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d 30.

B. PRESERVATION AND THE INTERSTITIAL APPROACH

{10} The State argues that Defendant did not preserve his state constitutional argument in accordance with Gomez, 1997-NMSC-006, ¶¶ 22-23, and that it is therefore not properly before this Court. We conclude that we may properly address it.

{11} A close examination of the record reveals that whether Defendant was seized in the first instance was not a contentious issue before the district court. Rather, it appears that it was tacitly agreed that Defendant was seized at some point during his encounter with the officer. For example, the State's response to Defendant's motion to suppress did not argue that Defendant had not been seized, but rather spoke in terms of reasonable suspicion:

An officer's reasonable belief that a suspect is armed and dangerous may follow from a reasonable suspicion that the suspect has committed, is committing, or will commit an `inherently dangerous crime.' A domestic violence case is an inherently dangerous crime.... Consequently, the actions of [the officer] in this case were completely appropriate and led to admissible evidence against [Defendant].

Similarly, the argument at the hearing concerned not whether there was a seizure, but whether reasonable suspicion existed to seize Defendant. To that end, defense counsel stated, "The issue here, Judge, is whether the officer had an articulable suspicion that the person he saw walking across the street at 7 p.m. was committing any crime."

{12} It was not until the case reached the Court of Appeals that the issue of whether there had been a seizure became contentious. See Garcia, 2008-NMCA-044, ¶¶ 23-28. The State proposed in its briefing to the Court of Appeals that the district court be affirmed on the alternative grounds that Defendant was never seized. Defendant's state constitutional claim was a response to the State's argument for affirmance on what amounted to right-for-any-reason grounds. See State v. Granville, 2006-NMCA-098, ¶ 12, 140 N.M. 345, 142 P.3d 933 ("[W]e affirm if the trial court decision was right for any reason. ..."). Given such a posture, we will not impose any preservation requirement on Defendant's response. In this context, it was not incumbent on Defendant to anticipate such a holding by the Court of Appeals and preserve his argument when it was not at issue before the district court. We will review his state constitutional claim.

{13} However, before we can reach that claim, our interstitial approach to state constitutional interpretation mandates that we consider whether Defendant was protected under the federal constitution. In Gomez, 1997-NMSC-006, ¶ 19, we held that "[u]nder the interstitial approach, the court asks first whether the right being asserted is protected under the federal constitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined."

C. THE FOURTH AMENDMENT

{14} We believe...