State v. Sewell

• Decision Date: 10 January 2008
• Docket Number: No. 26,742.,26,742.
• Citation: 2008 NMCA 026,177 P.3d 536
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kamil SEWELL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

177 P.3d 536

2008 NMCA 026

STATE of New Mexico, Plaintiff-Appellee, v. Kamil SEWELL, Defendant-Appellant.

No. 26,742.

Court of Appeals of New Mexico.

January 10, 2008.

Certiorari Granted, No. 30,897, February 19, 2008.

Gary K. King, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.

McGarry Law Office, Kathleen McGarry, Glorieta, NM, for Appellant.

OPINION

KENNEDY, Judge.

{1} Defendant Kamil Sewell appeals from his convictions for trafficking in cocaine and child abuse, having reserved in his conditional plea agreement the issue of whether his motion to suppress evidence was properly denied by the district court. At issue is the propriety of a traffic stop and the expansion of the scope of police action during its course. We reverse the district court.

FACTS AND PROCEDURAL HISTORY

{2} On the night of April 9, 2004, Detective Dan Porter was working undercover around Central Avenue and Pennsylvania Avenue in Albuquerque, New Mexico. He observed a woman he knew to be a prostitute trying to flag down cars. A tan truck pulled up, and after a short conversation, the woman got in the truck. The truck pulled away, and made several unusual stops, executing erratic maneuvers and U-turns that Detective Porter took to be evasive moves commonly used to defeat police surveillance in such circumstances. Not fooled, and with his target in sight, Porter observed the truck stop next to a pay phone. The woman got out of the truck and made a short phone call while the truck waited. The truck went on to a convenience store at Indiana and Zuni, where the woman again left the truck, and went into the store for a few minutes before re-entering the truck. The truck then pulled into a shopping plaza and stopped. The woman and the driver just sat there.

{3} Detective Porter testified that prostitution and drug sales are activities frequently undertaken in conjunction with each other. He also testified that most people who pick up prostitutes are looking for sex, not drugs, but he had seen the phone she used on this night used before in conjunction with drug buys. He thought that this case might involve such a context of commercial drug activity, since it was not uncommon in his experience for a prostitute to make phone calls for that purpose.

{4} After a few minutes, a car arrived in the parking lot. The woman Detective Porter believed to be a prostitute got out of the truck and into the car. Detective Porter could not see what was going on inside, as the windows had mirror tinting on them. Less than a minute later, the woman got out of the car and returned to the truck, which immediately left the lot, as did the car. Detective Porter, who had been on the radio with other members of his team throughout his surveillance, arranged to have both vehicles stopped "for reasonable suspicion of drug trafficking." The car was then stopped by marked police units. Detective Porter remained some distance away, and did not have any contact with events transpiring at that scene.

{5} When the car was stopped by Officer Borunda and his training officer,¹ Defendant was driving. He was asked for his driver's license. A woman named Collette Wise² was in the passenger seat, and two small children were in the back seat. The training officer asked Wise to get out of the car, followed by Officer Borunda asking Defendant to exit the car. Defendant was patted down for weapons, Defendant and Wise were moved to the rear of the car, and the children were taken from the car to be with Wise. Nothing illegal was found at this time. About this time, both Defendant and Wise were read their Miranda warnings when they were standing together. Wise wound up sitting on the curb with the children. She was asked if there was anything in the car, and she responded that there was not. Someone apparently gave consent for what Officer Borunda agreed was a "complete, thorough search of the interior of the car," that took about three minutes. No contraband was found. Although no one was formally arrested, because "there was a traffic stop and an investigation going on," neither Defendant nor Wise were free to leave because the officers "wanted to investigate the matter more." Following the search, Officer Borunda testified that Defendant and Wise were not released because based on Detective Porter's "observation, [that] there were some illegal narcotics activity taking place."

{6} Both Defendant and Wise were detained at the back of the car during the search. After the search, they were separated. Officer Borunda testified that during the encounter, although Defendant did not, Wise appeared nervous. Wise glanced at the officer and then at Defendant in a way that made the officer think she was "afraid of something" that he "needed to investigate." He took her aside, and when he asked her what they "were doing in the parking lot over there." She responded that she could not talk in front of Defendant. The officer told Wise that she was safe and again asked what was going on, at which time she said that she and Defendant "were making a crack deal." When the officer asked her if she had any drugs on her person or in the car, she said she had some in her bra, and produced it. Defendant was then arrested.

{7} Defendant moved to suppress the drugs, maintaining the illegality of the stop of his car. After the district court denied the motion, Defendant entered a conditional plea, which has brought the case before us.

DISCUSSION

{8} "Generally, the denial of a motion to suppress evidence will not be overturned on appeal if the denial is supported by substantial evidence." State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932 P.2d 499. However, when we review issues involving constitutional rights, such as search and seizure cases, which are mixed questions of law and fact, our review is de novo. Id.; State v. Williams, 2006-NMCA-062, ¶ 12, 139 N.M. 578, 136 P.3d 579 (internal quotation marks and citation omitted).

Standing

{9} The State contests whether Defendant has standing to contest incursions by the police into Wise's brassiere. During the suppression hearing, the State conceded that if Defendant was merely contesting the stop and subsequent detention, he would have standing. On appeal, the State concedes that "Defendant would be entitled to suppression under the `fruit of the poisonous tree' doctrine," if the initial stop were found to be illegal "and it was further established that the police seized the drugs from [] Wise's bra in exploitation of that initial illegality."

{10} In Hernandez, this Court held that "a defendant may have standing to challenge evidence seized from a third party if the search leading to the seizure of that evidence is an exploitation of the defendant's own unlawful arrest." 1997-NMCA-006, ¶ 17, 122 N.M. 809, 932 P.2d 499. If there was an unlawful detention and arrest of the defendant, the evidence seized must be suppressed, as fruit of the unlawful arrest and detention. Id. ¶¶ 16-17. This Court further held that the evidence was the "fruit of the poisonous tree" based on the past police illegalities. Id. ¶ 17.

{11} Defendant had a reasonable expectation of privacy in not being detained beyond the time necessary for the officer to assuage any articulable suspicion and complete an investigation. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). To the extent that the detention of both Defendant and Wise was unreasonable, Defendant has standing to complain about a subsequent search of Wise to the extent that it constituted an exploitation of the illegal detention. Hernandez, 1997-NMCA-006, ¶ 17, 122 N.M. 809, 932 P.2d 499. The State does not dispute that if further detention of Defendant and Wise became unreasonable after the car had been searched, Defendant frisked, and no evidence had been found, that Defendant has standing to challenge the legality of the detention and seek suppression of the evidence that flowed from it.

{12} Next, we engage in a dual inquiry: first, whether the officer's action was justified at the inception of the stop, State v. Neal, 2007-NMSC-043, ¶¶ 18-19, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citation omitted), and second, "whether the officer's actions during the investigatory detention were reasonably related in scope to the circumstances that initially justified the stop." State v. Rubio, 2006-NMCA-067, ¶ 11, 139 N.M. 612, 136 P.3d 1022.

We Assume That the Initial Stop Was Justified

{13} This case does not involve a traffic stop, as Officer Borunda stated, but an investigatory detention. State v. Wilson, 2007— NMCA-111, ¶ 18, 142 N.M. 737, 169 P.3d 1184 ("An investigatory detention occurs when an officer briefly detains and investigates a person based on reasonable suspicion of criminal activity."). Officer Borunda testified that Defendant's car was not pulled over because of observed illegal behavior, rather, it was pulled over based on Detective Porter's suspicions.

{14} Defendant assumes in his brief that the stop of his car was reasonable, arguing only that the scope of the stop exceeded its initial basis. Detective Porter's observation of a person who to him was a "known" prostitute getting into and out of the truck and then Defendant's car, gave him reason to believe, based on his experience, that a drug transaction had occurred. Detective Porter requested that Defendant's car be pulled over based on a course of conduct that Detective Porter regarded as consistent with previous circumstances he had observed in which prostitutes had assisted in the procurement of drugs.

{15} Detective Porter did not participate in the stop, or the searches of Defendant or the car. He intentionally had no direct contact with Defendant or events transpiring around Defendant's car. Despite arguing the reasonableness of the stop at trial, Defendant does not raise in his brief the issues of Officer Borunda's...