State v. Harbison

• Decision Date: 10 April 2007
• Docket Number: No. 29,597.,29,597.
• Citation: 2007 NMSC 016,156 P.3d 30
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Clarence HARBISON, Defendant-Petitioner.
• Court: New Mexico Supreme Court

156 P.3d 30

2007 NMSC 016

STATE of New Mexico, Plaintiff-Respondent, v. Clarence HARBISON, Defendant-Petitioner.

No. 29,597.

Supreme Court of New Mexico.

April 10, 2007.

Rehearing Denied April 10, 2007.

John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} The opinion filed on February 5, 2007, in this case is withdrawn and the following substituted therefor.

{2} In this opinion, we decide two questions bearing on the requirements under the Fourth Amendment of the United States Constitution for a valid seizure: (1) when is a person who does not submit to a show of authority considered seized; and (2) when may a person's flight upon the arrival of police be taken into account in determining whether the officers had reasonable suspicion to conduct an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Applying the analysis set forth by the United States Supreme Court in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), and Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), we conclude that under the Fourth Amendment there is no seizure and, thus, no requirement for reasonable suspicion until the individual actually submits to a show of authority. We also conclude that an individual's flight may properly be considered in determining the existence of reasonable suspicion unless that flight can be considered unlawfully provoked. We therefore affirm the Court of Appeals and reverse the district court's order suppressing the evidence against Defendant Clarence Harbison for lack of reasonable suspicion.

BACKGROUND

{3} On the evening of June 13, 2003, detectives from the Albuquerque Police Department's Northeast Impact Team organized and executed an undercover "buy-bust" operation in a northeast Albuquerque neighborhood after receiving reports of the prevalence of drugs and drug dealing in that area. Posing as a drug purchaser, Detective Potter drove into the parking lot of an apartment complex and purchased a rock of crack cocaine from a subject later identified as Lawrence Clark for twenty dollars. As he drove away, Detective Potter radioed the other members of his team to inform them of the buy and gave a description of Clark.

{4} Within one minute of Detective Potter's cocaine purchase, the remaining members of the "arrest team" arrived in two vehicles and observed a group of eight to ten people gathered in front of a building at the far end of the parking lot from where the drug transaction had occurred. In addition to this group standing outside, there were two cars with a total of four people in them in the immediate vicinity of the group. Detective Soto, the officer who ultimately arrested Defendant, testified that as he approached he could see a subject who fit Detective Potter's description of Clark among the group. Defendant was also in this group, though not immediately next to Clark. The officers did not observe any interaction between Defendant and Clark as they approached.

{5} As the detectives got out of their cars, the group began to scatter. Clark attempted to run but was quickly overtaken and placed under arrest. Defendant also split off from the group, in the opposite direction from Clark, in what Detective Soto described as a "slow run." This caught Detective Soto's attention, and he pursued Defendant with his gun drawn yelling for Defendant to stop. Defendant did not stop immediately and Detective Soto continued following him telling him to get down on the ground. Detective Soto told Defendant to stop three or four times before Defendant responded by stopping in front of a vehicle parked in the lot. When Defendant stopped, he went to his knees and threw something underneath the car. Detective Soto placed Defendant in handcuffs and looked under the car to see what Defendant had thrown. He found a broken glass crack pipe, a lighter, and a small piece of what was later identified as crack cocaine. Detective Soto testified that, as he turned back around to face Defendant, he noticed that Defendant "had his finger in his coin pocket" and was attempting to remove something, at which point Detective Soto reached into Defendant's pocket and retrieved a second rock of crack cocaine. Defendant was formally arrested and charged with possession of crack cocaine, tampering with evidence, and possession of drug paraphernalia.

{6} Defendant filed a motion to suppress evidence, claiming that Officer Soto lacked reasonable suspicion when he pursued and seized Defendant. The district court entered an order granting Defendant's motion and the State appealed. Reversing the district court's order, the Court of Appeals first held that Defendant had not abandoned the evidence because Officer Soto had seized Defendant prior to Defendant throwing the drugs and paraphernalia under the car. See State v. Harbison, 2006-NMCA-016, ¶¶ 14-15, 139 N.M. 59, 128 P.3d 487. Next, the Court of Appeals held that Officer Soto had reasonable suspicion when he seized Defendant based on Defendant's presence in a group with a person who had just completed a drug transaction combined with Defendant's flight upon the arrival of the police. Id. ¶ 27.

{7} We granted certiorari in part based on Defendant's arguments that the opinion of the Court of Appeals is inconsistent with New Mexico case law. See NMSA 1978, § 34-5-14(B)(1), (2) (1972); Rule 12-502(C)(4)(a), (b) NMRA. Upon review, we are persuaded that this appeal presents issues of first impression and that the Court of Appeals' opinion appropriately applied federal constitutional law.

STANDARD OF REVIEW

{8} "The standard of review for suppression rulings is whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party." State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (quoted authority omitted). In conducting our review, "we observe the distinction between factual determinations which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review." State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration in original) (quoted authority omitted). Determinations of reasonable suspicion are reviewed de novo. See Jason L., 2000-NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856.

{9} Defendant makes no argument on appeal that the New Mexico Constitution affords him greater protection than that afforded under the United States Constitution. Therefore, our analysis proceeds under the Fourth Amendment of the United States Constitution and is governed by federal constitutional law as set forth by the United States Supreme Court. See State v. Walters, 1997-NMCA-013, ¶ 9, 123 N.M. 88, 934 P.2d 282 (recognizing when defendant fails to present argument that state constitution provides greater protection than federal constitution, we assume protection is the same under both).

SEIZURE

{10} In determining whether Defendant was seized in violation of the Fourth Amendment, our first inquiry is at what moment Defendant was seized: when Detective Soto pursued Defendant ordering him to stop, or when Defendant in fact stopped? The point at which the seizure occurs is pivotal because it determines the point in time the police must have reasonable suspicion to conduct an investigatory stop. See Hodari D., 499 U.S. at 623-24, 111 S.Ct. 1547. More particularly, if Defendant was not seized at the time he discarded the contraband, then the evidence would be considered abandoned and Fourth Amendment protections would not apply. We also note and subsequently discuss the question of whether the police had a basis for an investigatory stop at the time they arrived on the scene. We do so to address the issue of whether Defendant's flight might have been unlawfully provoked and thus not an appropriate part of a reasonable suspicion analysis under Wardlow.

{11} Under Terry, a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." 392 U.S. at 16, 88 S.Ct. 1868. Our courts have held that a restraint on a person's freedom, within the meaning of Terry, can result either from the application of physical force or by a showing of authority. Jason L., 2000-NMSC-018, ¶ 15, 129 N.M. 119, 2 P.3d 856 (citing State v. Lopez, 109 N.M. 169, 170, 783 P.2d 479, 480 (Ct.App.1989)). In making our determination, "we consider all of the circumstances surrounding the incident in order to determine whether a reasonable person would have believed that he [or she] was not free to leave." Id. (alteration in original) (quoted authority omitted). In Jason L. we identified examples of circumstances that might indicate a seizure in a given incident. Such circumstances include "`the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" Id. ¶ 16 (quoting Lopez, 109 N.M. at 170, 783 P.2d at 480).

{12} Three of these four examples were present in the instant case in the parking lot when the police arrived. Thus, there is no question of a show of authority at the time the detectives drew their weapons and gave orders for people to stop moving. If Defendant had immediately submitted to this show of authority, then he would have been seized at that time and we would apply a reasonable suspicion analysis as of that time. However, Defendant did not immediately submit to Detective Soto's show of authority; instead, he fled when the officers arrived and continued to move away from Detective Soto at a "slow run."¹ Pursuing Defendant with his gun drawn,...