     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                     No. 33,142

 5 TASHA BROWN,

 6          Defendant-Appellant,

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Brett Loveless, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Sri Mullis, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jorge A. Alvarado, Chief Public Defender
15   Santa Fe, NM
16   Sergio J. Viscoli, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 FRY, Judge.
 1   {1}   Following entry of a conditional guilty plea of DWI, Defendant appeals the

 2 denial of her motion to suppress evidence obtained as a result of a traffic stop

 3 purportedly based on her failure to signal a lane change. For the reasons that follow,

 4 we reverse.

 5 BACKGROUND

 6   {2}   Defendant was charged with DWI (first offense), failure to produce a driver’s

 7 license, and a turn signal violation pursuant to NMSA 1978, § 66-7-325 (1978).

 8 When the metropolitan court denied Defendant’s motion to suppress evidence

 9 obtained during what Defendant maintained was an illegal stop, Defendant entered a

10 conditional guilty plea to the charge of DWI and appealed to the district court. The

11 district court affirmed the ruling of the metropolitan court, and this appeal followed.

12 We include additional background facts in our analysis.

13 DISCUSSION

14   {3}   Defendant argues that Officer Justin Hunt did not have reasonable suspicion to

15 initiate a traffic stop of Defendant’s vehicle. Review of an order granting or denying

16 a suppression motion is a mixed question of law and fact. State v. Anaya, 2008-

17 NMCA-020, ¶ 5, 143 N.M. 431, 176 P.3d 1163. We view the facts “in the light most

18 favorable to the prevailing party and defer to the [trial] court’s findings of fact if those




                                                2
 1 findings are supported by substantial evidence.” Id. We review de novo the

 2 application of the law to the facts. Id.

 3   {4}   In order to initiate a traffic stop, a police officer must have reasonable suspicion

 4 of illegal activity. Id. ¶ 6. “Reasonable suspicion must be based on specific

 5 articulable facts and the rational inferences that may be drawn from those facts.” Id.

 6 (internal quotation marks and citation omitted).

 7   {5}   At the suppression hearing, Officer Hunt testified that on August 22, 2009, at

 8 about 2:34 a.m., he was traveling westbound in the center lane on Montgomery just

 9 east of Carlisle in Albuquerque. Defendant’s vehicle was ahead of him by three to

10 four car lengths, also in the center lane. Officer Hunt saw Defendant’s vehicle

11 abruptly move from the center lane to the left lane, but he saw nothing in the roadway

12 that would have caused the movement. Because Defendant never made a turn signal,

13 Officer Hunt initiated a traffic stop and cited Defendant for an unsafe lane change.

14 At the time of the lane change, there were no cars directly in front of or behind

15 Defendant’s vehicle.

16   {6}   The applicable statute provides:

17         A.     No person shall . . . move right or left upon a roadway unless and
18         until such movement can be made with reasonable safety. No person
19         shall so turn any vehicle without giving an appropriate signal in the
20         manner hereinafter provided in the event any other traffic may be
21         affected by such movement.



                                                3
 1 Section 66-7-325(A) (emphasis added). Our Supreme Court interpreted the same

 2 statute and explained that it has two elements “that must be satisfied in order for its

 3 mandate to be triggered: (1) there must be other ‘traffic’ (2) that ‘may be affected’ by

 4 the motorist’s turn.” State v. Hubble, 2009-NMSC-014, ¶ 11, 146 N.M. 70, 206 P.3d

 5 579.

 6   {7}   Defendant argues that the State did not meet its burden to establish that Officer

 7 Hunt had available to him specific, articulable facts warranting a reasonable person

 8 to believe that Defendant was breaking or had broken the law codified in Section 66-

 9 7-325. She maintains that Officer Hunt never testified that there was traffic on the

10 roadway at the relevant time that may have been affected by her failure to signal the

11 lane change and, consequently, Officer Hunt did not articulate a basis for reasonable

12 suspicion.

13   {8}   In light of our case law interpreting the applicable statute, we agree with

14 Defendant. This Court first addressed the lane change statute in Anaya, where the

15 officer conceded that he understood Section 66-7-325(A) to require the use of a turn

16 signal under all circumstances stated in the statute. Anaya, 2008-NMCA-020, ¶ 3.

17 After citing the defendant for failing to signal a right turn at a green light, the officer

18 “learned that the failure to signal is not a per se infraction and is not a violation, unless

19 that failure could have affected traffic.” Id. Significantly, “[t]he officer did not testify



                                                 4
 1 that he, in his patrol car, was affected by the right turn.” Id. Because the officer

 2 believed that failure to signal was a per se violation, he initiated the traffic stop on the

 3 basis of a mistake of law. Id. ¶ 17. If he had articulated facts supporting reasonable

 4 suspicion on another basis, the stop could have been upheld. Id. ¶ 15. But because

 5 the officer testified that there were no other vehicles in the area at the time of the stop

 6 and because he failed to testify that he had been affected by the defendant’s failure to

 7 signal, there were no facts supporting violation of the applicable statute. Id. ¶ 19.

 8   {9}    The present case is similar to Anaya. Officer Hunt testified that there were no

 9 vehicles directly in front of or behind Defendant’s vehicle, and he did not testify that

10 there was traffic that may have been affected by Defendant’s failure to signal.

11 Therefore, under Anaya, Officer Hunt did not articulate facts supporting reasonable

12 suspicion to stop Defendant’s car.

13   {10}   The State argues that our Supreme Court’s decision in Hubble supports the view

14 that the stop was supported by reasonable suspicion. In Hubble, the Court affirmed

15 the denial of the defendant’s motion to suppress, which was based on a traffic stop

16 prompted by the alleged violation of the same statute at issue in the present case.

17 2009-NMSC-014, ¶¶ 1-2. However, unlike the circumstances in Anaya and in the

18 present case, the officer in Hubble apparently testified that “he, while driving his

19 vehicle on the highway, was ‘traffic,’ and that he ‘may [have been] affected’ by [the



                                                5
 1 d]efendant’s turn.” Id. ¶ 32. “[I]t is the evidence known to the officer that counts” in

 2 determining whether reasonable suspicion exists. Id. ¶ 8 (internal quotation marks and

 3 citation omitted). The absence of testimony regarding traffic that may have been

 4 affected by Defendant’s failure to signal eliminates the basis for the traffic stop in this

 5 case.

 6   {11}   The State argues that we must defer to the metropolitan court’s finding that

 7 Officer Hunt was “other traffic” that may have been affected, but we are not

 8 persuaded. The metropolitan court never made such a finding and, indeed, the court

 9 stated that “the higher courts of this state held that a turn signal violation can be

10 upheld even if nobody else was affected by the signal.” The court therefore

11 misapprehended the applicable law. Furthermore, even if the metropolitan court’s oral

12 comments at the suppression hearing could somehow be construed as a finding that

13 Officer Hunt was traffic that may have been affected, there was no evidence in the

14 record to this effect.

15   {12}   The State maintains that the metropolitan court could infer that Officer Hunt

16 was other traffic that may have been affected. While reasonable inferences can

17 provide support for a traffic stop, see State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M.

18 84, 920 P.2d 1038 (explaining that “[r]easonable suspicion must be based on specific

19 articulable facts and the rational inferences that may be drawn from those facts”),



                                                6
 1 those inferences must be based on facts available to the officer. See Hubble, 2009-

 2 NMSC-014, ¶ 8 (stating that courts “objectively examine whether the facts available

 3 to the officer warrant the officer, as a person of reasonable caution, to believe the

 4 action taken was appropriate”). If the officer does not testify to the existence of facts

 5 supporting the foundational elements of a lane change violation under Section 66-7-

 6 325(A)—i.e., the existence of traffic that may be affected by the lack of a turn

 7 signal—then there are no facts from which reasonable inferences may be drawn.

 8 Here, Officer Hunt testified that there were no other vehicles besides his patrol car in

 9 the area near Defendant’s car and that his car was three to four car lengths behind

10 Defendant’s. And he never testified that Defendant’s failure to signal may have

11 affected him. As a result, there was no basis on which to conclude that Defendant was

12 breaking or had broken the law.

13 CONCLUSION

14   {13}   For the foregoing reasons, we reverse the denial of Defendant’s motion to

15 suppress and remand to the metropolitan court for proceedings consistent with this

16 Opinion.

17   {14}   IT IS SO ORDERED.


18
19                                          CYNTHIA A. FRY, Judge



                                               7
1 WE CONCUR:


2
3 RODERICK T. KENNEDY, Chief Judge


4
5 M. MONICA ZAMORA, Judge




                                8
