State v. Martinez

• Citation: 348 P.3d 1022
• Decision Date: 06 January 2015
• Docket Number: 32,516.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Jennifer MARTINEZ, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

348 P.3d 1022

STATE of New Mexico, Plaintiff–Appellee

v.Jennifer MARTINEZ, Defendant–Appellant.

32,516.

Court of Appeals of New Mexico.

Jan. 6, 2015.

Certiorari Granted, May 11, 2015, No. 35,116.

Hector H. Balderas, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} This case presents a new wrinkle on reasonable suspicion. The arresting officer testified that Defendant ran a stop sign and came to a stop in the middle of the intersection, blocking his lane of travel. However, the dashboard camera in the officer's police car demonstrated that this was not the case. The district court found that the officer exaggerated, at least, and gave no credence to the officer's testimony. Nevertheless, relying on the dashboard camera video, the district court found that the officer had reasonable suspicion to stop Defendant and denied Defendant's motion to suppress. On review, we find the video evidence to be ambiguous. Because the district court found that the officer was not credible, and we do not agree with the district court that the video evidence alone supports a finding of reasonable suspicion, we reverse.

I. BACKGROUND

{2} Defendant was charged in the magistrate court with driving under the influence of intoxicating liquor (DWI), having an open container in the vehicle, and failure to stop at a stop sign. Defendant's motion to suppress on the basis that the officer had no reasonable suspicion to stop her vehicle was denied, and Defendant entered into motion to suppress. In Defendant's de novo appeal to the district court, an evidentiary hearing was held on Defendant's motion to suppress. Concluding that reasonable suspicion supported the stop of Defendant's vehicle, the district court denied the motion and remanded the case to the magistrate court. Additional proceedings took place in the magistrate court and district court, which we discuss in more detail below, and Defendant appeals.

II. DISCUSSION

A. Timely Appeal

{3} We first address the State's assertion that the appeal is not properly before us because Defendant is appealing from the order denying her motion to suppress, and the notice of appeal from that order was not filed on time. “The timely filing of a notice of appeal is a mandatory precondition to this Court's exercise of jurisdiction.” State v. Vigil, 2014–NMCA–096, ¶ 7, 336 P.3d 380, cert. granted, 2014–NMCERT–009, 337 P.3d 95. The State's argument arises in the following context.

{4} The district court order denying Defendant's motion to suppress and remanding the case to the magistrate court was filed on July 22, 2010. Over two months later on October 12, 2010, Defendant attempted to fax file a notice of appeal in the magistrate court, appealing the district court order to this Court, but the notice of appeal does not seem to have been filed. In any event, the attempted filing was not timely, and the notice should have been filed with the district court, not the magistrate court. See Rule 12–201(A)(2) NMRA (directing that a notice of appeal from the district court is to be filed with the clerk of the district court within thirty days from the date the order or judgment is filed). Defendant was then sentenced in the magistrate court, and Defendant again appealed to the district court, creating a new district court cause number. Defendant then filed a motion to incorporate the original district court appeal with the new case on grounds that the failure to perfect the original appeal was the fault of defense counsel. The district court denied the motion and dismissed the case. Defendant appeals.

{5} In State v. Duran, 1986–NMCA–125, ¶ 1, 105 N.M. 231, 731 P.2d 374, we held that there is a conclusive presumption of ineffective assistance of counsel where a notice of appeal is not filed within the time limit required. In such cases, we will entertain a criminal appeal on the merits. State v. Lope, 2015–NMCA–011, ¶ 8, 343 P.3d 186. We have recently applied the presumption in several contexts. See State v. Dorais, 2014–NMCA––––, ¶¶ 4–5, 7, ––– P.3d ––––, 2014 WL 2367938 (No. 32,235, May 21, 2014) (concluding that the Duran presumption applies where the notice of appeal was not filed for four years following a de novo trial in the district court in an appeal from the magistrate court); Vigil, 2014–NMCA–096, ¶ 16, 336 P.3d 380 (applying the Duran presumption when “an untimely notice of appeal is filed following the district court's on-record review of a metropolitan court decision”); State v. Eger, 2007–NMCA–039, ¶ 5, 141 N.M. 379, 155 P.3d 784 (holding that the Duran presumption of ineffectiveness of counsel applies to a defendant's right to appeal a conditional plea agreement to the district court). Cf. State v. Lope, 2015–NMCA–011, ¶ 9, 343 P.3d 186 (applying the Duran presumption where the notice of appeal was timely filed, but the inaction of counsel resulted in the appeal being dismissed); Olguin v. State, 1977–NMSC–034, ¶¶ 1, 7, 90 N.M. 303, 563 P.2d 97 (concluding that dismissal of the appeal was not warranted where counsel filed a timely notice of appeal but did not perfect the appeal because the docketing statement was not filed on time).

{6} Here, defense counsel unsuccessfully attempted to fax file a notice of appeal from the district court order denying Defendant's motion to suppress in the wrong court, and it was untimely. Not applying the Duran presumption in this case will result in denying Defendant her constitutional right to appeal because of counsel's failure to comply with the requirements for perfecting the appeal. Because there is no material distinction between the case now before us and our existing precedent in this regard, we conclude the presumption applies and proceed to decide the merits.

B. Motion to Suppress

{7} The sole issue on appeal is whether Sergeant Rascon had a reasonable suspicion that Defendant failed to stop at a stop sign. In the context of a non-pretextual traffic stop, “a police officer must have reasonable suspicion of criminal activity or probable cause that the traffic code has been violated.” State v. Hicks, 2013–NMCA–056, ¶ 14, 300 P.3d 1183 (internal quotation marks and citation omitted), cert. denied, 2014–NMCERT–004, 301 P.3d 858. Thus, “the State has the burden to establish reasonable suspicion to stop the motorist. If the State fails in its burden, the stop is unconstitutional.” State v. Gonzales, 2011–NMSC–012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (citing State v. Ochoa, 2009–NMCA–002, ¶ 40, 146 N.M. 32, 206 P.3d 143 ). “As usual, the State has the burden of proof to justify the stop under an exception to the warrant requirement.” Ochoa, 2009–NMCA–002, ¶ 40, 146 N.M. 32, 206 P.3d 143.

{8} A reasonable suspicion is “a particularized suspicion, based on all the circumstances that a particular individual, the one detained, is breaking, or has broken, the law.” State v. Neal, 2007–NMSC–043, ¶ 21, 142 N.M. 176, 164 P.3d 57 (emphasis, internal quotation marks, and citation omitted). On appeal, we determine whether the facts found by the district court are supported by substantial evidence, and we review the application of the law to the facts under a de novo standard of review. State v. Alderete, 2011–NMCA–055, ¶ 9, 149 N.M. 799, 255 P.3d 377. Therefore, “[q]uestions of reasonable suspicion are reviewed de novo by looking at the totality of the circumstances to determine whether the detention was justified.” State v. Hubble, 2009–NMSC–014, ¶ 5, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted); see Alderete, 2011–NMCA–055, ¶¶ 13–14, 149 N.M. 799, 255 P.3d 377 (stating that with respect to a district court's determination of reasonable suspicion, our review is de novo); State v. Candelaria, 2011–NMCA–001, ¶ 8, 149 N.M. 125, 245 P.3d 69 (“[W]e consider de novo whether the disputed police activity was reasonable given the totality of the circumstances.”). “We will find reasonable suspicion if the officer is aware of specific articulable facts, together with rational inferences from those facts, that, when judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.” Hubble, 2009–NMSC–014, ¶ 8, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and citation omitted). In making this determination, “it is the evidence known to the officer that counts [.]” Id. Finally, we must determine that “the officer's action was justified at its inception.” Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{9} At the evidentiary hearing in the district court Sergeant Rascon testified that at approximately 10:00 p.m., he was on patrol traveling south on a two-lane road when he observed Defendant approaching an intersection with a four-way stop sign at a high rate of speed. “And at the four-way stop sign the vehicle just went past the stop sign completely into the lane of traffic, southbound lane of traffic. She stepped on her brakes completely and she made a complete stop, but it was in the middle, in the lane of traffic.” Sergeant Rascon said that Defendant then made a wide left turn and proceeded north. On cross examination, Sergeant Rascon clarified that Defendant was traveling east and traveled past the stop sign so far, that when she stopped, she was in the middle of the southbound traffic lane, blocking his lane of travel. Sergeant Rascon did not cite Defendant for speeding (he did not know how fast Defendant was driving), or for making a wide turn. The only traffic infraction he cited Defendant with was failure to stop at a stop sign.

{10} The stop was recorded by Sergeant Rascon's dashboard camera, and the video was admitted into evidence. After viewing the video, the district court said:

Alright, well you know after hearing Sergeant Rascon's testimony I was certainly confused as to why the

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