State v. Vandenberg
| Decision Date | 01 October 2003 |
| Docket Number | No. 27509, 27510.,27509, 27510. |
| Parties | STATE of New Mexico, Plaintiff-Petitioner, v. Shawn VANDENBERG, Defendant-Respondent. State of New Mexico, Plaintiff-Petitioner, v. Jason Swanson, Defendant-Respondent. |
| Court | New Mexico Supreme Court |
Patricia A. Madrid, Attorney General Arthur W. Pepin, Assistant Attorney General Santa Fe, for Petitioner.
John Bigelow, Chief Public Defender Vicki W. Zelle, Assistant Appellate Defender Santa Fe, for Respondents.
{1} In this opinion, we trace the outer boundary of facts and circumstances sufficient to justify a protective frisk (pat down) for weapons during an ordinary traffic stop on the ground of officer safety pursuant to the Fourth Amendment to the United States Constitution. We hold that a weapons frisk was reasonable under the circumstances of this case. The Court of Appeals having decided differently, we now reverse and affirm the convictions below.
{2} Jason Swanson and Shawn Vandenberg (Defendants) were indicted on charges of possession of marijuana with intent to distribute and conspiracy to distribute marijuana. Vandenberg filed a motion to suppress in which Swanson joined. After a hearing, the district court denied the motion, concluding that the evidence was obtained through a valid, protective frisk for weapons. On appeal, the Court of Appeals reversed and ordered the evidence suppressed. State v. Vandenberg, 2002-NMCA-066, 132 N.M. 354, 48 P.3d 92; State v. Swanson, No. 21,845, slip. op. (N.M.Ct.App. Apr. 17, 2002). The State petitioned this Court for a writ of certiorari which we granted. For purposes of this opinion, we consolidate the two cases.
{3} On July 29, 1999, at approximately 5:00 p.m., Otero County Sheriff's Deputy House stopped a blue 1975 Monte Carlo on Highway 54 about two or three miles south of Alamogordo. Highway 54 is an area of heavy drug trafficking with a permanent Border Patrol station. Deputy House stopped the car because he thought it did not have a license plate. After stopping the car, the deputy noticed the vehicle did have a license plate located off to the side in a place where the manufacturer had designed it to be. Notwithstanding the presence of the license plate, Deputy House approached the driver, Swanson, and requested his driver's license, proof of insurance, and vehicle registration. He told Swanson that the license plate needed to be in a more visible location. Although Deputy House considered the inconspicuous placement of the license plate to be an offense under the traffic laws, he decided not to issue a citation.
{4} After Deputy House told the passengers they were free to go, Deputy Hill arrived on the scene. Deputy Hill is a canine officer who often provides assistance to Deputy House when he is on patrol. Before Swanson could leave, Deputy House asked for Swanson's permission to have Deputy Hill walk his dog around the car. Swanson asked if he had to consent to the canine sniff, and Deputy House replied that he did not. Swanson refused. According to Deputy House, Swanson and Vandenberg, the passenger, looked at each other, refused to make eye contact with Deputy House, and became very nervous when asked about the canine sniff.
{5} Deputy House allowed Defendants to continue on their way, yet his suspicions were aroused. In addition to the nervous behavior he observed, Deputy House had other concerns associated with the traffic stop. During the stop, another vehicle drove by and "honked and hollered" at Defendants. Swanson told Deputy House they had taken a friend to the El Paso airport and were on their way home. Deputy House assumed that the other car had also traveled to El Paso with them. Although Deputy House did not ask Swanson directly if this other car was traveling with them, he found it "unusual" that they had taken two vehicles to the airport. Their story seemed somehow inconsistent to Deputy House.
{6} Because Deputy House thought Defendants had acted in a suspicious and nervous manner, he issued a be-on-the-lookout (BOLO) to the Alamogordo city police. Officer Roberts responded to the call. Deputy House gave a description of the vehicle and the direction it was traveling. Deputy House told Officer Roberts about the nervousness he had observed and the alleged inconsistencies in their statements. The deputy also informed Officer Roberts that Defendants had refused the canine sniff.
{7} After Officer Roberts talked with Deputy House, he spotted a vehicle fitting the description in the BOLO. According to Officer Roberts, the car was traveling at an unsafe speed, 35 miles per hour in a 25 miles per hour construction zone. Officer Roberts stopped the vehicle for speeding. Officer Roberts also indicated that he had no problem seeing the license plate.
{8} Officer Roberts approached the car and asked Swanson for his driver's license, proof of insurance, and vehicle registration. Swanson was cooperative and provided the information. Officer Roberts returned to his police car to run a license inquiry and complete a speeding citation. Meanwhile, Officer Roberts observed Swanson tapping his fingers on the hood of his car, glancing back at him in both the driver's side view mirror and the rearview mirror, and glancing over his shoulder. He also observed Vandenberg rolling his window up and down several times, looking back toward Officer Roberts, and conversing with Swanson.
{9} Officer Roberts is an experienced police officer. He makes approximately fifty traffic stops a night. Based on what he observed of Defendants, as well as on the BOLO and his radio conversation with Deputy House, Officer Roberts became nervous about his safety. He requested assistance, and within a few minutes Officer Yost arrived on the scene.1 Officer Yost observed the passenger looking around, fidgeting, and looking in the glove compartment. She testified that the two men were talking to each other, and that Swanson was looking in his rearview mirror. Like Officer Roberts, Officer Yost testified that Defendants were acting in a manner more nervous than most people involved in a routine traffic stop.
{10} After Officer Yost arrived for backup, Officer Roberts approached the car again and told Swanson that his movements were making him nervous. Officer Roberts asked Swanson if he had any weapons inside the car, and Swanson responded in the negative. Officer Roberts then asked Swanson to get out of the car so he could frisk him for weapons. Swanson asked why he had to submit to a frisk, and Officer Roberts told him it was because he was making him (Roberts) nervous for his safety. After hesitating for a moment, Defendants both stepped out of the car.
{11} Officer Roberts requested that Swanson step to the rear of the car. Instead of complying, Swanson took a "very large" step away from Officer Roberts and again asked why Officer Roberts wanted to conduct a frisk. Swanson protested that he did not believe the officer had the authority to search him. Officer Roberts explained that he was not conducting a search, but simply a pat down for weapons. Swanson then became even more nervous, and Officer Roberts again requested that he move towards the rear of the vehicle. Swanson hesitated, and Officer Roberts touched Swanson's right shoulder to escort him to the rear of his vehicle. When Officer Roberts touched Swanson's shoulder, Swanson pulled away. At this time, Officer Roberts became even more concerned for his safety because of Swanson's body language and demeanor. Officer Roberts ordered Swanson to place his hands behind his head. Swanson hesitated, but eventually complied with Officer Roberts' directives, and Officer Roberts began his pat down.
{12} During the pat down, Swanson's body became very rigid. When Officer Roberts got near the waist area of Swanson's pants, Swanson pulled away. Officer Yost saw an object in the waistband of Mr. Swanson's pants. As Officer Roberts leaned Swanson over the trunk of the car, Officer Yost removed the object from Swanson's waistband. As Officer Yost struggled to remove the object from Swanson's waistband, Swanson told Officer Roberts that he did not have to be so rough with him "because it was only dope." Officer Roberts then placed Swanson in the back seat of Officer Yost's police car.
{13} Meanwhile, Vandenberg disclosed to Officer Yost that he also had an object concealed in his pants, which Officer Roberts removed. The officers called for additional backup and placed Vandenberg in the back of the other police car. After Swanson and Vandenberg were arrested, Officer Roberts searched the vehicle with his canine but did not discover any additional drugs or weapons. The objects seized by the officers were tested and found to contain marijuana.
{14} Vandenberg filed a motion to suppress the marijuana, and Swanson joined the motion. In denying the motion to suppress, the district court stated:
[L]et me start with an observation and a ruling and the two are going to seem inconsistent. The observation is from a defendant's point of view or a defense counsel's point of view, and maybe from an ordinary skeptical point of view, this one looks fishy. [However,] the ruling is I'm going to deny the motion to suppress.
The district court acknowledged that "Deputy House's testimony about the license plate does seem odd, based on the later testimony that everything looked fine to the other two officers."
{15} Nevertheless, the court was "not convinced, just on that conflict, that Deputy House lied about the basis for his stop." The court was also "not convinced Officer Roberts lied about speeding as the basis for his stop." With regard to the frisk for weapons, the district court concluded that, "[u]nder these circumstances, ... Officer Roberts and Officer Yost have provided specific articulable facts which are the basis of a reasonable belief that the individuals may be...
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