State v. Lowe
| Decision Date | 15 March 2004 |
| Docket Number | No. 22,523.,22,523. |
| Citation | 135 N.M. 520,90 P.3d 539,2004 NMCA 54 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Kimberle LOWE, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellant.
John B. Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellee.
Certiorari Granted, No. 28,584, May 3, 2004.
{1} The State appeals an order suppressing evidence of Defendant Kimberle Lowe's possession of drugs discovered after a search. During a traffic stop for an outdated registration tag, Defendant voluntarily offered to allow the officer to search her vehicle. This volunteered offer immediately followed the officer's question at the outset of the stop as to whether Defendant had any drugs or weapons. The district court concluded the officer had reasonable suspicion to ask about drugs, but did not have reasonable suspicion to ask about weapons. The court held that the inclusion of the word "weapons" in the question tainted the volunteered consent and a subsequent search of a bag containing drugs. We reverse.
{2} Officer Rodriguez (the officer) stopped Defendant in 1998 after noticing a 1996 registration tag on the vehicle. The officer did not observe impaired or illegal driving. The stop was around midnight on Menaul Boulevard in Albuquerque, New Mexico. Defendant came to a safe and diligent stop. Upon approaching Defendant on the driver's side of the vehicle, the officer requested Defendant's license, registration, and insurance. The officer observed that Defendant was "really nervous," was sweating, had some "nervous twitches" or "slight[] tweaking," had bloodshot and watery eyes, and slurred speech. Based on the officer's experience, he believed Defendant's behavior was consistent with drug use. The area of the stop was near an area of prostitution and drug activity, although the officer did not necessarily suspect Defendant was involved in prostitution.
{3} Defendant's level of nervousness was making the officer suspicious. He asked Defendant if she had any drugs or weapons in the vehicle. Defendant responded, "No, but you can search the car." The officer had Defendant get out of the vehicle and, as she did, the officer noticed that she slid a small black bag under the driver's seat. The officer had Defendant stand on a sidewalk nearby so he could observe her from a safe distance as he searched the car. The officer did not conduct a patdown, and he testified that Defendant was cooperative and did not make any overt threats toward him. He retrieved the bag. With regard to the bag, the prosecutor asked the officer during the suppression hearing if the bag was big enough to contain a handgun or any other weapon and the officer responded that it "[p]robably would have to be a pretty small caliber weapon." He did not think the bag to be "anything enormous," just a "regular-sized makeup bag." A backup officer arrived at the scene, but it is unclear when.
{4} The officer asked Defendant if the bag was hers and she responded that it was. He asked Defendant, "Do you have any drugs or weapons in there?" She said "No." He asked Defendant, "Do you mind if I look inside the bag," to which Defendant answered "No." The officer found plastic bags with powdered substances later confirmed to be cocaine and methamphetamine, and Defendant was arrested. The officer testified that if he had not received Defendant's consent to search the bag, he would not have done so.
{5} Defendant did not testify at the suppression hearing regarding any aspect of the stop or the search. In its comments at the conclusion of the hearing, the district court stated that the stop was valid and that the officer had reasonable suspicion to inquire about drugs in the vehicle. However, although determining that the officer was "acting in utmost good faith," the court determined that Defendant's volunteered offer to allow a search of the vehicle was "not validly given" because the officer exceeded what he was authorized to ask Defendant when he asked if she had any weapons in the vehicle. The court determined that the officer did not have a "reasonable suspicion about weapons or that he was in danger of weapons," and the lack of reasonable suspicion tainted the question "do you have any drugs or weapons in the car" and thereby tainted Defendant's volunteered response. The court felt that Defendant "probably would not have authorized the search of the vehicle if the word `weapons' ... had not been in the question." The court concluded the word "weapons" in the question tainted Defendant's consent and that it would have upheld the consent and the search "[i]f the word `weapons' had not been in the question."
{6} The court's suppression order set out the following findings:
{7} The State appeals the court's suppression order on the ground the officer had the right to search the vehicle and arrest Defendant for possession of drugs. The State's two points on appeal are: (1) the officer had reasonable suspicion to ask about weapons in the vehicle and Defendant's volunteered consent to search the vehicle provided the officer lawful grounds on which to conduct the search; and (2) even if the officer did not have the right to ask about weapons, Defendant's voluntary consent to search was not tainted by the addition of the word "weapons." The State does not attack any of the district court's findings of fact. No material facts are in dispute.
{8} In regard to a motion to suppress evidence, this Court analyzes the legality of an initial stop, the scope of inquiry during detention, and any ensuing search or seizure, as mixed questions of law and fact, using a substantial evidence standard to review the facts and a de novo review of the district court's application of the law to those facts. State v. Vandenberg, 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19; State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Werner, 117 N.M. 315, 316-17, 871 P.2d 971, 972-73 (1994); State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994); City of Albuquerque v. Haywood, 1998-NMCA-029, ¶ 10, 124 N.M. 661, 954 P.2d 93.
{9} We give deference to the facts as found by the district court that are supported by substantial evidence. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. "[W]e review the facts in a light most favorable to the prevailing party, as long as the facts are supported by substantial evidence." Vandenberg, 2003-NMSC-030, ¶ 18, 134 N.M. 566, 81 P.3d 19.
{10} Within the confines of the undisputed facts and the findings of fact supported by substantial evidence, we look at the totality of the circumstances in determining the existence of reasonable suspicion. State v. Urioste, 2002-NMSC-023, ¶¶ 6, 10, 132 N.M. 592, 52 P.3d 964; see also United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)
(). We review the legal determination of reasonable suspicion de novo. Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856.
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