State v. Harbison

• Decision Date: 28 November 2005
• Docket Number: No. 24,940.,24,940.
• Citation: 2006 NMCA 016,128 P.3d 487
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Clarence HARBISON, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

128 P.3d 487

2006 NMCA 016

STATE of New Mexico, Plaintiff-Appellant, v. Clarence HARBISON, Defendant-Appellee.

No. 24,940.

Court of Appeals of New Mexico.

November 28, 2005.

Certiorari Granted, No. 29,597, February 2, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, M. Anne Kelly, Assistant Attorney General, Albuquerque, for Appellant.

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

OPINION

WECHSLER, J.

{1} The State of New Mexico appeals the district court's grant of Defendant's motion to suppress evidence. The State argues that the district court erred in granting the motion with regard to a rock of crack cocaine Defendant allegedly threw underneath a car before being handcuffed because Defendant was not seized by the arresting officer until he was placed in handcuffs and therefore Defendant abandoned the crack cocaine. The State also argues that Defendant's seizure was supported by reasonable suspicion. Because we believe, based on the totality of the circumstances, that the arresting officer had reasonable suspicion to briefly detain Defendant, we reverse the district court's grant of Defendant's motion to suppress evidence.

FACTUAL AND PROCEDURAL HISTORY

{2} On June 13, 2003, Albuquerque Police Department detectives from the Northeast Impact Team organized and executed an undercover "buy-bust" operation in northeast Albuquerque. The detectives chose the neighborhood in question because they had received "reports of the prevalence of drugs and drug dealing in the area." Six of the detectives involved in the operation, who were part of the "arrest team," were dressed in jeans, shirts, and black "tuck" vests that said "Albuquerque Police" with a badge on the front and the word "Police" on the back. The remaining team member, Detective J.R. Potter, who was undercover, wore plain clothes without any insignia identifying him as a detective. All of the detectives were driving unmarked police vehicles.

{3} The "buy-bust" operation consisted of Detective Potter posing as a drug purchaser by driving through the neighborhood and nodding at individuals on the corner. "[I]f he got a nod back, . . . he would turn around" and attempt to buy drugs from the individual. At approximately 9:22 p.m., Detective Ray Soto, one of the "arrest team" members, observed Detective Potter interacting with an individual. After pulling his vehicle away from the individual, Detective Potter, using his radio, informed Detective Soto and the rest of his team members that he had just made a cocaine "buy" from that individual. Detective Potter described the suspect as a "black male[,] gray sweatshirt, black pants." He also informed the detectives that the suspect's sweatshirt was emblazoned with the phrase: "Real Men Don't Need Directions" and gave a height estimate of the suspect. The suspect was later identified as Lawrence Clark.

{4} Within thirty seconds of Detective Potter's cocaine purchase, the remaining members of the "arrest team" arrived and observed a group of "eight to ten subjects" near a building approximately fifty feet away from where the buy had occurred. In addition to this group standing outside, there was a female sitting inside a Bronco SUV and three males inside another car, all within the immediate vicinity in question. As the detectives approached the group of people who were standing by the building, Detective Soto testified that he could see a subject fitting the suspect's description among the group.

{5} Defendant, who was in the group, was not standing immediately next to Clark. They were described as being "at ten and two [o'clock] in relation to each other around the circle." The officers did not observe any interaction between Defendant and Clark. As the detectives got out of their vehicles, the group began to scatter. Detective Soto had his gun drawn. Clark attempted to run and was captured and placed under arrest.

{6} Defendant also departed from the group, in the opposite direction from Clark, in what Detective Soto described as a "slow run." Detective Soto pursued Defendant, with his gun drawn, shouting "Police; don't move. Please don't move." After Detective Soto told Defendant to get on the ground, Defendant stopped running and "went to his knees" in front of a car and "threw something under 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 around to face Defendant, he noticed that Defendant, while handcuffed, "had his finger on his coin pocket" and was trying to remove something. Detective Soto then reached into Defendant's pocket and retrieved a second rock of crack cocaine. Defendant was formally arrested and charged with possession of crack cocaine and drug paraphernalia.

{7} Defendant filed a motion to suppress evidence, arguing that Detective Soto lacked reasonable suspicion when he pursued and seized Defendant. After hearing argument, the district court granted Defendant's motion and entered the order from which the State now appeals.

STANDARD OF REVIEW

{8} The applicable standard of review of a ruling on a motion to suppress is "whether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party." State v. Joe, 2003-NMCA-071, ¶ 6, 133 N.M. 741, 69 P.3d 251. We "must defer to the district court with respect to findings of historical fact so long as they are supported by substantial evidence." State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. We will indulge in all reasonable inferences in support of the district court's ruling and disregard all evidence and inferences to the contrary. Id. The issues of whether Defendant was seized and whether Defendant abandoned evidence prior to being seized by police detectives are legal issues that we review de novo. See State v. Rector, 2005-NMCA-014, ¶ 4, 136 N.M. 788, 105 P.3d 341 (reviewing de novo the issue of whether the defendant abandoned contraband prior to being seized by police officers); State v. Walters, 1997-NMCA-013, ¶ 8, 123 N.M. 88, 934 P.2d 282 ("Seizure under the Constitution is a question of law, but it is a question of fact whether a person was accosted and restrained in such a manner that a reasonable person in the same circumstances would believe he was not free to leave."). We review determinations of reasonable suspicion and probable cause de novo. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

ABANDONMENT ARGUMENTS

{9} The State appears to argue that the initial encounter between Detective Soto and Defendant was consensual and therefore Defendant abandoned the evidence he allegedly threw under the car. As a result, the State's position appears to be that no seizure took place until Defendant was handcuffed. We do not agree. Our case law recognizes three types of encounters between police officers and citizens in the context of crime investigation. They are "consensual encounters, investigatory detentions, and arrests." State v. Ryon, 2005-NMSC-005, ¶ 20, 137 N.M. 174, 108 P.3d 1032. "Consent is an exception to the Fourth Amendment probable cause and reasonable suspicion requirements that police often rely on to investigate suspected criminal activity." Id. To determine whether a police-citizen encounter is consensual, we consider "the totality of the circumstances surrounding the encounter [to ascertain whether] the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Walters, 1997-NMCA-013, ¶ 12, 123 N.M. 88, 934 P.2d 282 (internal quotation marks and citation omitted).

{10} In this case, the record indicates that Detective Soto had his weapon drawn and pursued Defendant while commanding him to stop and get down on the ground. A reasonable person would not have felt free to leave in that situation. See Jason L., 2000-NMSC-018, ¶ 17, 129 N.M. 119, 2 P.3d 856 (stating that the "use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory" by armed police officers, in addition to threatening presence of several officers, could be considered as factors in determining that a reasonable person would not feel free to leave) (internal quotation marks and citations omitted). The initial contact between Officer Soto and Defendant cannot be characterized as a consensual encounter.

{11} The State also argues that Defendant abandoned the drug paraphernalia and a crack rock because he fled from Detective Soto and therefore he was not seized until Detective Soto placed him in handcuffs. The crux of the State's argument is that California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), and Rector stand for the proposition that once a person flees from an officer, the person is not seized for Fourth Amendment purposes until the person is physically apprehended. However, our reading of Hodari D. and Rector does not lead us to the State's conclusion that Defendant was not seized until Detective Soto placed him in handcuffs.

{12} The defendant in Hodari D. was standing on a street curb, in a high crime area, when he saw an unmarked police cruiser approaching. Hodari D., 499 U.S. at 622-23, 111 S.Ct. 1547. The defendant apparently "panicked" at the sight of the police cruiser and fled. Id. at 623, 111 S.Ct. 1547. One of the officers in the cruiser chased the defendant, and as he ran, noticed that the defendant discarded what was later determined to be a rock of crack cocaine. Id. The California Court of Appeal held that the defendant was seized when he saw the officer chasing him and that the seizure was unreasonable under the Fourth Amendment. Id. The...