State v. Patterson

• Decision Date: 03 February 2006
• Docket Number: No. 25,049.,No. 24,853.,24,853.,25,049.
• Citation: 131 P.3d 1286,2006 NMCA 037
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ferney PATTERSON, Defendant-Appellant. State of New Mexico, Plaintiff-Appellee, v. Dominique Lee Swanson a/k/a Dominic Swanson, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

131 P.3d 1286

2006 NMCA 037

STATE of New Mexico, Plaintiff-Appellee, v. Ferney PATTERSON, Defendant-Appellant.

State of New Mexico, Plaintiff-Appellee, v. Dominique Lee Swanson a/k/a Dominic Swanson, Defendant-Appellant.

No. 24,853.

No. 25,049.

Court of Appeals of New Mexico.

February 3, 2006.

Certiorari Denied, No. 39,688, March 14, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee in No. 24,853.

John Bigelow, Chief Public Defender, Catherine A. Begaye, Assistant Appellate Defender, Santa Fe, NM, for Appellant in No. 24,853.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee in No. 25,049.

John Bigelow, Chief Public Defender, Santa Fe, NM, Josephine H. Ford, Assistant Appellate Defender, Albuquerque, NM, for Appellant in No. 25,049.

OPINION

WECHSLER, Judge.

{1} These two appeals allow us to address the requirement that law enforcement officers have individualized, particular suspicion with regard to a passenger in a vehicle prior to initiating a seizure, when the circumstances of the encounter and the actions of other passengers contribute to the suspicious nature of the encounter. In both cases, the officers approached occupants of a car stopped in a business parking lot, found drug paraphernalia in a patdown search of an occupant of the car, and observed other suspicious behavior or circumstances. An officer asked Defendant Patterson for his identification. Defendant Swanson was initially asked to remain in the vehicle. The district court in both cases denied motions to suppress evidence obtained during the encounters. Because we conclude that there was no individualized reasonable suspicion that Defendant Patterson and Defendant Swanson had been or were engaged in criminal activity, we reverse the convictions in both cases.

FACTS OF STATE V. PATTERSON

{2} Defendant Patterson appeals his conviction for possession of methamphetamine after pleading guilty to the charge. The facts are undisputed. While on patrol at about 10:40 p.m., Officer Ray Merritt observed a car drive into the parking lot of a closed business, behavior which he thought was odd. Because there had been several burglaries in the twenty-block area, Officer Merritt pulled his patrol car behind the stopped car to investigate why it had stopped at that location. Someone, later identified as William Wilson, was standing outside the open rear passenger door on the driver's side of the car. Defendant Patterson was sitting in the front passenger seat. There were also two women in the car, the driver and a passenger in the backseat.

{3} Officer Merritt identified himself and asked Wilson what they were doing there. Wilson stated that they were there to pick up a truck from a friend, but he did not know the friend's name. Officer Merritt observed that there was no truck in the area and found this answer to be suspicious. As he was talking with Wilson, Officer Merritt observed an open can of beer on the backseat floorboard closest to where Wilson had been sitting behind the driver. He conducted a patdown search of Wilson for officer safety because he was alone and it was dark. This search revealed a glass smoking pipe, and he placed Wilson in handcuffs. After Wilson was secured in the patrol car and as Officer Merritt was ready to make contact with Defendant Patterson, a second officer arrived on the scene.

{4} After Officer Merritt discovered the drug paraphernalia on Wilson's person and saw the open container of beer on the floorboard near where Wilson had been sitting, he asked all the occupants of the vehicle for their identification. Officer Merritt testified that he asked for the identifications to check for warrants for arrest, to see "who [he] was dealing with," and to give him "a point of reference" if there were burglaries later that evening. He testified that he had no reason to detain Defendant Patterson initially, but that he did have Defendant Patterson's identification card.

{5} Officer Merritt recognized Defendant Patterson's name from his identification card and recognized the picture on the card as being that of someone he had seen being booked a few days earlier. A check on Defendant Patterson's identification card revealed that it was valid and that there were no warrants for his arrest. Although he did not know why Defendant Patterson had been booked a few days previously, Officer Merritt testified that he believed Defendant Patterson was violating conditions of release because he was in a car with an open container of beer and because he was with someone who had drug paraphernalia. Based on this suspicion, Officer Merritt asked Defendant Patterson to get out of the car to ask about his conditions of release and to check to see whether he was on probation.

{6} As Defendant Patterson was getting out, Officer Merritt saw Defendant Patterson pull something out of his pocket and move as if throwing it toward the center console. Officer Merritt immediately handcuffed Defendant Patterson because of concern for his own safety and because he suspected that Defendant Patterson had discarded contraband into the vehicle. After looking inside the vehicle, Officer Merritt saw a clear plastic sandwich-type baggie containing a white powdery substance, which later tested positive for methamphetamine. Defendant Patterson was then arrested and, as he was being searched, told Officer Merritt that he had a syringe in his sock.

{7} Defendant Patterson was charged with possession of a controlled substance (methamphetamine) in violation of NMSA 1978, § 30-31-23(D) (1990) (amended 2005) and possession of drug paraphernalia in violation of NMSA 1978, § 30-31-25.1(A) (2001). After his motion to suppress was denied, Defendant Patterson pleaded guilty to possession of methamphetamine.

FACTS OF STATE V. SWANSON

{8} On August 23, 2003, at around 1:30 a.m., Officer Terry McCoy observed a car pull into a parking lot of a business about 150 yards before a DWI roadblock. There were three occupants of the car: the driver; Defendant Swanson, seated in the front passenger seat; and another passenger, seated in the backseat.

{9} Officer McCoy stopped behind the car and told the driver and Defendant Swanson to stay in the vehicle. Officer McCoy asked why they were avoiding the roadblock. The backseat passenger stated that the car was overheating and leaking fluid. Two other officers, who had arrived on the scene, looked under the hood but saw nothing wrong with the car. Officer McCoy noted that "all three occupants of the car were very nervous and avoiding eye contact." He also observed the backseat passenger rummaging around the floorboard area.

{10} The officers then asked the occupants to step out of the car so that they could be interviewed separately. When asked for identification, Defendant Swanson provided a Colorado driver's license. Officer McCoy asked Defendant Swanson why the driver was trying to avoid the DWI checkpoint. Defendant Swanson replied that he did not know.

{11} One of the other officers found a marijuana pipe in the driver's possession. After this discovery, Officer McCoy asked Defendant Swanson if he had anything the officers should know about. Defendant Swanson said he did not. Officer McCoy asked Defendant Swanson whether he would mind emptying his pockets. Defendant Swanson answered "sure," displaying the contents of his pockets, including items that were alleged to be drug paraphernalia. When Officer McCoy asked Defendant Swanson if he had anything else, Defendant Swanson handed him a coat, which contained marijuana and methamphetamine.

{12} Defendant Swanson was charged with possession of a controlled substance (methamphetamine) in violation of Section 30-31-23(D), possession of one ounce or less of marijuana in violation of Section 30-31-23(B)(1), and possession of drug paraphernalia in violation of Section 30-31-25.1(A). Defendant Swanson subsequently entered a plea to one charge of possession of methamphetamine.

STANDARD OF REVIEW

{13} In reviewing the denial of a motion to suppress evidence, this Court will view the facts in the light most favorable to the decision below and will review the application of the law to these facts, including determinations of reasonable suspicion, under a de novo standard of review. See generally State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964; State v. Affsprung, 2004-NMCA-038, ¶ 6, 135 N.M. 306, 87 P.3d 1088. With respect to the issues we find dispositive, Defendants do not argue that the New Mexico Constitution affords greater protection than the Federal Constitution and we will assume, without deciding, that both constitutions provide the same protection against unreasonable searches and seizures in this context. See State v. Ochoa, 2004-NMSC-023, ¶ 6, 135 N.M. 781, 93 P.3d 1286; cf. State v. Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1 (outlining the requirements for preserving a state constitutional issue).

GENERAL FOURTH AMENDMENT PRINCIPLES

{14} The Fourth Amendment to the United States Constitution establishes an individual's right to be free from unreasonable searches and seizures. Generally, a search or seizure is an intrusion that requires a warrant based upon a demonstration of probable cause. See State v. Wagoner, 1998-NMCA-124, ¶ 9, 126 N.M. 9, 966 P.2d 176; see also Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam) ("The Fourth Amendment generally requires police to secure a warrant before conducting a search."). The Fourth Amendment, however, establishes a reasonableness standard that permits lesser intrusions without warrants, based on a balance of "the degree of intrusion into an individual's privacy against the interest of the government in promoting crime prevention and detection." State v. Jones, 114 N.M. 147, 150, ...