State v. Morales

• Decision Date: 28 December 2004
• Docket Number: Certiorari Granted, No. 29,032,Docket No. 24,061.
• Citation: 107 P.3d 513,2005 NMCA 027,137 NM 73
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. ERIC PATRICK MORALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

2005 NMCA 027

107 P.3d 513

137 NM 73

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ERIC PATRICK MORALES, Defendant-Appellant.

Docket No. 24,061.

Court of Appeals of New Mexico.

Filing Date: December 28, 2004.

Certiorari Granted, No. 29,032, February 21, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

CASTILLO, Judge.

{1} Defendant Eric Patrick Morales appeals from an order denying his motion to suppress evidence of a gun seized from his person by an officer during an investigatory stop. Defendant challenges the constitutionality of the investigatory stop and detention, asserting that the officers lacked reasonable suspicion because the stop was based on an unreliable tip from an anonymous informant. We reverse on the ground that the anonymous tip lacked sufficient indicia of reliability. The investigatory stop was not constitutional, and the search of Defendant's person and seizure of the gun therefore violated Defendant's Fourth Amendment rights.

I. BACKGROUND

{2} The material facts of this case are undisputed. Detective Palos (Detective), of the Las Cruces Police Department, testified that he received an anonymous page on the afternoon of February 28, 2002. The message contained a phone number, which the Detective called; an anonymous informant told him that there were two subjects in a blue vehicle at the corner of Alamo and Utah who were "acting rather suspicious[ly]" and were "possibly armed." The Detective believed that the page may have been the result of his previous assignment to a neighborhood police program, during which time he handed out business cards to encourage the public to contact him and report illegal activity in their neighborhood.

{3} In response to the anonymous tip, the Detective requested assistance, and Officer Rodriguez (Officer) responded. Both officers arrived on the scene, where they saw a blue parked car. Two men were out of the car and leaning against a wall that was inside the property line of the corner house. According to the Detective, the men were acting suspiciously because they were at a corner house, and in his experience, corner houses are common targets for burglaries during the daytime. As both officers approached, they instructed the two men to keep their hands on the wall.

{4} While the Officer talked with the men, the Detective moved past them to check the corner house for signs of burglary, and at this point, he noticed that there was a "large bulge" in Defendant's pants pocket and that Defendant was awkwardly turning his hip toward the wall. The Detective proceeded to check the house, found no signs of burglary, and returned to where the men were standing.

{5} At that time, the Detective indicated to the Officer that they needed to do a pat-down search for officer safety. Before initiating the search, both officers asked the men if they were armed, and Defendant told them that he had a weapon in his pocket. Defendant was then instructed to put his hands on top of his head so that the Detective could safely reach into the pocket and retrieve the weapon. Defendant was carrying a 9 mm gun in a holster. The gun and holster were consistent with the bulge that the Detective observed earlier. Defendant was arrested and charged with the crime of possession of a firearm by a felon.

{6} Defendant moved to suppress evidence of the gun under the exclusionary rule on the ground that the officers did not have reasonable suspicion for the investigatory stop and thus violated Defendant's Fourth Amendment rights. The district court denied the motion to suppress and provided the following rationale for the decision: first, the Detective had experience receiving tips in this manner, and on many occasions, the tips had led to fruitful investigations of crimes; and second, when both officers arrived at the corner, they saw a blue car and two men as described in the tip. The district court viewed this as sufficient reason for the officers to approach the individuals and ask questions. When the officers did so, the Detective observed a bulge in Defendant's pocket, again matching the information provided, and saw Defendant suspiciously leaning against the wall as if he were trying to hide the bulge. In the district court's opinion, the bulge provided reasonable suspicion because it was against the law to carry a concealed weapon. The district court stated that for safety reasons, the officers are trained to ask if there are weapons and to do a pat-down and that their search did reveal there was a loaded weapon.

{7} Following a denial of his motion to suppress, Defendant pled guilty to the charge and was convicted and sentenced. Additional pertinent facts are set out in our discussion of the issues.

II. DISCUSSION

A. Standard of Review

{8} On appeal from a district court's ruling on a motion to suppress, we determine whether the law was correctly applied to the facts. State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. Such a mixed question of law and facts is reviewed de novo, particularly when the question involves predominantly legal conclusions and constitutional rights. State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994). The reasonableness of a search and seizure under the Fourth Amendment is such a question. State v. Martinez, 94 N.M. 436, 440, 612 P.2d 228, 232 (1980). The facts in this case are not in dispute; we therefore review only the legal conclusions of the district court in denying Defendant's motion to suppress.

B. Police-Citizen Encounter

{9} The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. The New Mexico Constitution also protects against unreasonable searches and seizures. N.M. Const. art. II, § 10. However, because Defendant does not argue that the New Mexico Constitution affords him greater protection than the United States Constitution does, we review his appeal only under the Fourth Amendment. State v. Jason L., 2000-NMSC-018, ¶ 9, 129 N.M. 119, 2 P.3d 856 (stating because the "[d]efendant has not argued on appeal that the New Mexico Constitution affords him greater protection than that afforded under the United States Constitution[,]" the court would "review his claim . . . only under the Fourth Amendment").

{10} Generally, there are three categories of stops under the Fourth Amendment:

First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Such brief, consensual exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may seize citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by reasonable suspicion. Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause.

Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993) (internal quotation marks and citations omitted).

{11} New Mexico recognizes a fourth type of police-citizen encounter, a community caretaking encounter, which may or may not implicate the Fourth Amendment. State v. Nemeth, 2001-NMCA-029, ¶ 27, 130 N.M. 261, 23 P.3d 936. Under this doctrine, a Fourth Amendment exception may exist if an officer has a "reasonable and articulable belief, tested objectively, that a person is in need of immediate aid or assistance or protection from serious harm." Id. ¶ 37. Defendant argues that the district court erroneously based its decision on the community caretaking doctrine. The record indicates that the district court considered the initial encounter to be a consensual one and did not discuss the community caretaking exception. We will therefore evaluate the encounter to determine when it progressed from a consensual one to an investigatory stop requiring reasonable suspicion.

{12} Our analysis begins with a determination of when the officers "seized" Defendant for purposes of Fourth Amendment analysis. Law enforcement officers are free to "approach an individual, ask questions, and request identification without the encounter becoming a seizure under the Fourth Amendment." State v. Walters, 1997-NMCA-013, ¶ 18, 123 N.M. 88, 934 P.2d 282. "A police officer seizes a person for purposes of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Harris, 313 F.3d 1228, 1234 (10th Cir. 2002) (internal quotation marks and citations omitted).

{13} In the present case, testimony introduced at the suppression hearing showed that both officers approached the subjects and immediately told them to keep their hands on the wall. According to the Detective, this instruction was given for safety purposes because officers are trained to keep a suspect's hands in view always. Nothing in the record indicates that Defendant failed to comply with this order; therefore, we assume that he submitted to the officers' authority. A seizure requires either the "use of physical force" by an officer "or submission by the individual" to the officer's assertion of authority. Id. When "a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 16 (1968); see United States v. Person, 134 F. Supp. 2d 517, 523 n.1 (E.D.N.Y. 2001) (emphasizing that asking, no matter how politely, a defendant to raise his hands and stand implicates the Fourth Amendment). A reasonable person would not feel free to leave under the circumstances of this case; thus, Fourth Amendment protections applied at the moment Defendant complied with the...