State v. Ketelson

• Decision Date: 20 May 2011
• Docket Number: No. 32,170.,32,170.
• Citation: 150 N.M. 137,2011 -NMSC- 023,257 P.3d 957
• Parties: STATE of New Mexico, Plaintiff–Petitioner,v.Gregory KETELSON, Defendant–Respondent.
• Court: New Mexico Supreme Court

150 N.M. 137

257 P.3d 957

2011 -NMSC- 023

STATE of New Mexico, Plaintiff–Petitioner,

v.Gregory KETELSON, Defendant–Respondent.

No. 32,170.

Supreme Court of New Mexico.

May 20, 2011.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Respondent.Goldberg Segalla, LLP, Matthew S. Lerner, Brian T. Stapleton, Albany, NY, for Amicus Curiae National Rifle Association of America.

OPINION

MAES, Justice.

{1} The issue presented in this appeal is whether a police officer can temporarily remove a visible firearm from a vehicle to prevent immediate access to it by an occupant during the short duration of a lawful traffic stop, consistent with the strictures of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. Pursuant to our interstitial approach to constitutional analysis, we first address the federal constitutional issue. With respect to the Fourth Amendment, we conclude that the officers had reasonable articulable suspicion permitting them to remove the weapon. Accordingly, their actions were consistent with the federal constitution. With respect to Article II, Section 10, we conclude that the officers' removal of the firearm was a minimal intrusion, which was reasonable given the grave need for officer safety during traffic stops. Thus, we hold that the temporary removal of the firearm was consistent with our state constitution. We reverse the judgments of the Court of Appeals and the district court and remand for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

{2} The record reflects the following facts found by the district judge during the suppression hearing. On the evening of November 13, 2008, Officer Shane Blevins of the Hobbs Police Department stopped a GMC Jimmy with expired temporary tags. Officer Blevins approached the driver side of the vehicle and informed the driver, Kerri Allen, of the reason for the stop. Meanwhile, Officer Miroslava Belyeu (née Jurado) approached the passenger side of the vehicle, where Gregory Ketelson (Defendant) was seated. Officer Belyeu saw a black nine millimeter handgun lying on the back seat floorboard. Officer Belyeu asked Defendant to step out of the vehicle, and Officer Blevins retrieved the firearm from the back seat floorboard. Neither Defendant nor Ms. Allen was in the vehicle when Officer Blevins retrieved the firearm. After Officer Blevins retrieved the firearm, Defendant signed a card consenting to the search and admitted that the firearm belonged to him.

{3} Officer Blevins requested dispatch to run a background check on Defendant. The background check revealed that Defendant had a prior felony conviction in Texas for burglary in 1999. Defendant was placed under arrest as a felon in possession of a firearm in violation of NMSA 1978, Section 30–7–16 (2001).

{4} Prior to trial, Defendant moved to suppress the firearm and statements made to the police regarding its ownership. Defendant argued that pursuant to State v. Garcia, 2005–NMSC–017, ¶ 29, 138 N.M. 1, 116 P.3d 72, an officer does not have authority to enter a car and seize an object absent a search warrant, consent, or exigent circumstances. The State responded that the entry into the vehicle and removing the firearm were lawful as a “minimal intrusion” necessary for officer safety while the officers determined that Defendant was a felon. The district court found that the State did not make a showing sufficient to support exigent circumstances; rather, it found that both Defendant and the driver of the car were “at all times cooperative, and they created no apparent threat or imminent danger to life or serious damage to property.” Accordingly, the district court granted the motion to suppress, noting that non-felons may legally carry loaded handguns in private automobiles, and thus, the State must make some showing beyond the mere presence of a firearm in the car before officers effect a warrantless “seizure.”

{5} The State appealed to the Court of Appeals. See NMSA 1978, Section 39–3–3(B)(2) (1972) (permitting appeal upon a district court's order to suppress evidence). In a memorandum opinion, the Court of Appeals affirmed the district court, determining that “there was no proper basis upon which to justify the warrantless seizure of the firearm.” State v. Ketelson, No. 29,876, slip op. at 3, 2009 WL 6669350 (N.M.Ct.App. Dec. 28, 2009). Relying on State v. Bomboy, 2008–NMSC–029, ¶ 17, 144 N.M. 151, 184 P.3d 1045, and Garcia, 2005–NMSC–017, ¶ 31, 138 N.M. 1, 116 P.3d 72, the Court held that either exigent circumstances or another exception to the warrant requirement was required before an officer may seize an object in plain view from a vehicle and found no such exception applicable here. Ketelson, No. 29,876, slip op. at 3, 5.

{6} The Court rejected several bases for exigent circumstances. It noted that the driver's allegedly nervous behavior after the stop could support exigent circumstances, which would provide a basis for the warrantless seizure of the firearm, but deferred to the district court's finding that no exigencies were present. Ketelson, No. 29,876, slip op. at 3–4. The Court also noted that evidence of a crime in plain view could support exigent circumstances pursuant to Bomboy. Ketelson, No. 29,876, slip op. at 6. Bomboy held that incident to a lawful traffic stop an officer may seize an object in plain view provided the officer has probable cause to believe the object is evidence of a crime. 2008–NMSC–029, ¶ 17, 144 N.M. 151, 184 P.3d 1045. However, the Court distinguished the present stop from Bomboy, concluding that in this case the officers did not have probable cause to believe the firearm was evidence of a crime because they only learned after it had been removed from the car that Defendant was a felon. Ketelson, No. 29,876, slip op. at 6.

{7} Finally, the Court rejected officer safety as a potential basis for exigent circumstances. Id. at 4. It found unpersuasive the State's argument that removing the firearm from the car was a “minimal intrusion” justified by the needs of officer safety. Id. The State argued that “a weapon in plain view during a traffic stop creates a reasonable suspicion that the vehicle's occupants are armed and dangerous, and thus is subject to seizure to ensure officer safety.” Id. at 5. The State grounded its argument in federal authority, which permits an officer to disarm a suspect during an investigatory detention when the officer has a reasonable suspicion that the suspect is armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”); see also Pennsylvania v. Mimms, 434 U.S. 106, 111–12, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (concluding that, under the principles of Terry, an officer could conduct a protective frisk for weapons after observing a bulge in the suspect's jacket). To the Court of Appeals, accepting the State's argument was tantamount to establishing a presumption of exigent circumstances whenever an officer observed a firearm in a lawfully stopped vehicle. Ketelson, No. 29,876, slip op. at 4–5. It declined to adopt such a presumption, noting that New Mexico had not adopted other “bright line” presumptions from federal law, such as the federal automobile exception. Id. at 5; see State v. Weidner, 2007–NMCA–063, ¶ 16, 141 N.M. 582, 158 P.3d 1025.

{8} We granted the State's petition for writ of certiorari pursuant to NMSA 1978, Section 34–5–14(B) (1972) and Rule 12–502 NMRA to determine whether it is unreasonable under the state and federal constitutions for a police officer to remove a visible firearm from a vehicle subject to a lawful traffic stop.

DISCUSSIONI. Standard of Review

{9} Appellate review of a motion to suppress presents a mixed question of law and fact. We review factual determinations for substantial evidence and legal determinations de novo. State v. Urioste, 2002–NMSC–023, ¶ 6, 132 N.M. 592, 52 P.3d 964. Because the district court “is in a better position to judge the credibility of witnesses and resolve questions of fact, the factual analysis should be viewed in a light favorable to the prevailing party.” Garcia, 2005–NMSC–017, ¶ 27, 138 N.M. 1, 116 P.3d 72.

II. Interstitial Approach and Preservation

{10} “Because both the United States and the New Mexico Constitutions provide overlapping protections against unreasonable searches and seizures, we apply our interstitial approach.” State v. Rowell, 2008–NMSC–041, ¶ 12, 144 N.M. 371, 188 P.3d 95 (citing State v. Gomez, 1997–NMSC–006, ¶¶ 19–23, 122 N.M. 777, 932 P.2d 1). The interstitial approach requires that we first consider “whether the right being asserted is protected under the federal constitution.” Gomez, 1997–NMSC–006, ¶ 19, 122 N.M. 777, 932 P.2d 1. If the right is protected by the federal constitution, then the state constitutional claim is not reached. Id. If not, we next consider whether the New Mexico Constitution provides broader protection, and we may diverge from federal precedent for three reasons: “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Gomez, 1997–NMSC–006, ¶ 19, 122 N.M. 777, 932 P.2d 1. As we recently explained in State v. Leyva, a defendant must properly preserve his argument under the state constitution in order for us to consider it on appeal. 2011–NMSC–009, ¶ 36, 149 N.M. 435, 250 P.3d 861. Thus, as an initial matter, we must determine whether our analysis is confined to the Fourth Amendment or whether Defend...