State v. Urioste

• Decision Date: 24 July 2002
• Docket Number: No. 26,287.,26,287.
• Citation: 52 P.3d 964,2002 NMSC 23,132 N.M. 592
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Rudolfo URIOSTE, Defendant-Petitioner.
• Court: New Mexico Supreme Court

52 P.3d 964

132 N.M. 592

2002 NMSC 23

STATE of New Mexico, Plaintiff-Respondent, v. Rudolfo URIOSTE, Defendant-Petitioner.

No. 26,287.

Supreme Court of New Mexico.

July 24, 2002.

Border Law Office, Dean E. Border, Tucumcari, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} Defendant Rudolfo Urioste entered into a conditional plea for possession of a controlled substance contrary to NMSA 1978, § 30-31-23(D) (1990), reserving the right to appeal his conviction on the issue of suppression of evidence. Defendant argued that the cocaine should be suppressed because the information leading to his arrest was received by police through an anonymous tip and was not sufficiently corroborated to constitute reasonable suspicion to justify stopping Defendant on the highway. The district court entered findings of fact and conclusions of law and determined that the information and corroboration provided enough reasonable suspicion that the law was being violated. Defendant appealed his conviction. The Court of Appeals, in a memorandum opinion, affirmed the district court's finding that the information came from a confidential informant. State v. Urioste, NMCA 20,257, slip op. At 5-6 (Mar. 23, 2000). The Court determined the information was sufficiently corroborated and held that the information provided the reasonable suspicion necessary for the investigative stop. Id. We affirm the Court of Appeals.

FACTS

{2} "The following facts are conclusive because they are based on the trial court's findings of fact, which [D]efendant does not challenge on appeal." State v. Werner, 110 N.M. 389, 390, 796 P.2d 610, 611 (Ct.App. 1990); accord Rule 12-213 NMRA 2002 ("The argument must set forth a specific attack on any finding, or such finding shall be deemed conclusive."). Defendant acknowledges that "all factual issues are uncontested." At approximately 4:30 p.m. on November 20, 1997, the Tucumcari Police Department received information that cocaine was being transported from Albuquerque to Tucumcari. Officer Tony Alvidrez of the Tucumcari Police passed on the information to Deputy Greg Greenlee of the Quay County Sheriff's Department at approximately 10:00 p.m. The following details were included in the report received by Deputy Greenlee: (1) The individual transporting the cocaine would be an Hispanic male with a long black ponytail, (2) driving a green, older model Ford Econoline van, (3) heading from the direction of Albuquerque toward Tucumcari, (4) arriving in Tucumcari at about 10:30 p.m., and (5) the driver lived at 1115 South Fifth Street, Tucumcari.

{3} At a suppression hearing, Deputy Greenlee testified that he was familiar with the vehicle at the address described above, and drove to the location and observed that the vehicle was not there. He then went to Interstate 40, proceeding toward Albuquerque, when he saw a green older model Ford Econoline van going the opposite way. Greenlee turned around and pursued the van. He corroborated the time of the van's appearance, it was 10:14 p.m., as well as the make, age and color of the van. He verified the apparent route of the van as consistent with a route going from Albuquerque to Tucumcari.

{4} Upon this information, Deputy Greenlee stopped the van. Suspecting one handling illegal drugs might be armed, he asked Defendant to get out of the van and submit to a frisk. He asked Defendant whether he had any guns or drugs in his possession, and Defendant said he did not. The situation then went out of control when Defendant bolted and ran away down the interstate. Deputy Greenlee yelled for him to stop, but he kept running, turning down a little driveway leading into a pasture. Deputy Greenlee finally caught up with Defendant, and, at gunpoint, placed him into custody. Defendant was arrested for evading and eluding an officer. Approximately four officers conducted a lengthy search of the area between midnight and 1:00 a.m. for cocaine Defendant might have thrown. Nothing was found at that time. Another search was conducted the next day, and the contraband was discovered.

{5} Defendant pleaded guilty to possession of cocaine, contrary to NMSA 1978, § 30-31-23(D) (1990), and reserved the right to appeal the district court's denial of his motion to suppress the physical evidence of cocaine. Defendant appealed unsuccessfully to the New Mexico Court of Appeals on the theory that the Deputy Sheriff's stop of Defendant's van, which resulted in the seizure of the evidence, was not based on reasonable suspicion as required by law. We granted certiorari on May 24, 2000 (No. 26,287) and now consider Defendant's claim.

STANDARD OF REVIEW

{6} Appellate review of a district court's decision regarding a motion to suppress evidence involves mixed questions of fact and law. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). As a reviewing court we do not sit as a trier of fact; the district court is in the best position to resolve questions of fact and to evaluate the credibility of witnesses. Id. at 699, 116 S.Ct. 1657. We view the facts in the manner most favorable to the prevailing party and defer to the district court's findings of fact if substantial evidence exists to support those findings. State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct. App.1983). Determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). See also State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994)

(concluding issues, such as search and seizure issues, lending themselves to the application of constitutional principles, abstract legal doctrines, and underlying policy, should be decided by an appellate court de novo). In making a determination about reasonable suspicion, a reviewing court must look at the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, ___, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). Police officers possess reasonable suspicion when they are "aware of specific articulable facts" that, judged objectively, "would lead a reasonable person to believe criminal activity occurred or was occurring." State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232, 923 P.2d 599 (internal quotations and citation omitted).

CONFIDENTIAL INFORMANT OR ANONYMOUS TIP?

{7} The parties argue extensively over whether the information that was supplied to the Deputy came from a "confidential informant" or was an "anonymous tip." The distinction is important because "the veracity of persons supplying anonymous tips is `by hypothesis unknown and unknowable,'" Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), while the reliability of a tip can be better gauged if it comes from a known source. Defendant argues on the basis of Deputy Greenlee's testimony at the hearing on the motion to suppress that he received the information from Tucumcari Police Officer Alvidrez, who had received the information from an unidentified third person. Officer Alvidrez did not testify at the suppression hearing, and the State presented no evidence that this informant had provided reliable information in the past. Deputy Greenlee testified that Officer Alvidrez had told him that the third person was a "confidential informant." Defendant argues that the tip must have come from a reliable confidential informant or the details in the tip must be "reliable in [their] assertion of illegality, not just in [their] tendency to identify a determinate person," citing Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

{8} The State argues contrarily that "[t]here is no evidence in the record to suggest that the tip was anonymous," seeming to suggest this Court should presume it was not, and invokes the "fellow officer rule," whereby "probable cause is determined by the courts on the basis of the collective information of the police involved in the arrest, rather than exclusively on the extent of the knowledge of the particular officer who may actually make the arrest." Karr v. Smith, 774 F.2d 1029, 1031-32 (10th Cir.1985); see also State v. Warren, 103 N.M. 472, 476, 709 P.2d 194, 198 (Ct.App.1985) (finding that the "police team qualification" rule applies when "the arresting officer relied upon information and observations made by other officers to establish the probable cause for his belief that [a misdemeanor] was being committed in his presence."). However, the State never called Officer Alvidrez to testify concerning whether the information was from a known informant whose reputation could be assessed and who could be held responsible if the allegations turned out to be fabricated. Because, under the facts of this case, a stronger showing than this would have to be made by the State to establish that the information came from a confidential informant, we analyze the source of the information as though it were an anonymous tip.

SUPPRESSION OF THE EVIDENCE

{9} Generally, in cases involving informants, "the central issue ... is whether the informant's information is so reliable and complete that it makes past, present or pending criminal conduct sufficiently likely to justify a stopping of the designated person for investigation." 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(h), at 213 (3d ed.1996). More specifically to this case, "[t]he central question ... is whether `verification of part of the informant's story [made] it sufficiently likely that the crucial part of the informant's story (i.e., allegations that criminal activity has occurred and that evidence pertaining thereto will be found in the location to be searched) [was] true.'" United States v. Link, 238 F.3d 106,...