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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 14:56:54 2014.12.01

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-117

Filing Date: September 16, 2014

Docket No. 32,990

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CLINTON SKIPPINGS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellee

The Law Offices of the Public Defender
Jorge A. Alvarado, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

WECHSLER, Judge.

{1}     Defendant Clinton Skippings appeals the district court’s denial of his motions to
suppress evidence, having reserved the issue of whether his motions were properly denied
in his conditional plea agreement. Defendant argues that police officers lacked reasonable
suspicion to stop him based on a confidential informant’s tip and also asserts that he was
subject to a de facto arrest without probable cause, tainting Defendant’s consent and making

                                             1
the evidence discovered fruit of an illegal search. Accordingly, Defendant asks this Court
to reverse the district court’s denial of his motions to suppress. We conclude that
Defendant’s motions were properly denied and therefore affirm the district court.

BACKGROUND

{2}     The factual context in this case is central to the resolution of this appeal and is
established by the testimony of Defendant and Lea County Drug Task Force (Task Force)
Agents Byron Wester and Keith Clayton at the hearings on Defendant’s motions to suppress
evidence. On August 29, 2012, Agents Wester and Clayton were working with a
confidential informant in Hobbs, New Mexico. With the officers present, the informant set
up a purchase of crack cocaine with Defendant in a cell phone conversation. The informant
provided the following details regarding the deal: (1) Defendant immediately would be in
the parking lot of Big Lots with the crack cocaine; and (2) Defendant would be in one of two
vehicles that he was known to drive (either a white passenger car or a gold-colored pickup).
The Drug Task Force had used this confidential informant on numerous past occasions, and
the confidential informant had provided reliable information that led to multiple arrests and
convictions.

{3}     Upon receiving the informant’s tip, Agent Wester proceeded to the Big Lots parking
lot, where he observed Defendant and a female passenger in a white vehicle, as described
by the informant. Agent Wester watched Defendant drive across the street to an apartment
complex, at which time he briefly lost sight of the vehicle; Defendant returned shortly
thereafter in the same vehicle but without the female passenger. Defendant then exited the
parking lot and drove south on Dal Paso Street. At that time, Agent Wester requested that
the Hobbs Police Department stop Defendant. The parties stipulated below that the sole
purpose of the stop was to further the agents’ investigation of Defendant based on the
informant’s information.

{4}     Hobbs police officers stopped Defendant at approximately 7:25 p.m., when there was
still daylight. Agent Wester arrived at the scene within a few minutes, at which time he
observed Defendant standing outside his vehicle with a police officer. Agent Wester
approached Defendant, explained who he was, and told Defendant that he was not under
arrest but being detained for investigative purposes. Agent Wester patted down Defendant
for weapons. Defendant was then handcuffed and read his Miranda rights. Defendant
indicated his willingness to talk with the agent, he and Agent Wester sat down on a curb, and
Agent Wester engaged Defendant in a conversation. Agent Wester testified that Defendant
was handcuffed for safety purposes because Defendant had a history of violence. Several
other officers were present, but they did not engage in conversation with Defendant. Agent
Wester told Defendant about the investigation into his alleged trafficking of crack cocaine.

{5}    Within ten minutes of the initial stop, while speaking to Agent Wester, Defendant
told Agent Wester that he was willing to consent to a search of his vehicle. At that time,
Defendant’s handcuffs were removed so that he could sign a consent form. Agent Clayton

                                             2
read the consent form to Defendant and gave it to Defendant to sign. The handcuffs were
not placed back on Defendant; Defendant was in handcuffs no more than ten minutes. After
signing the consent form, Defendant and Agent Wester resumed sitting on the curb and
conversing, while other agents performed the search of Defendant’s vehicle. As soon as the
agents opened the door of Defendant’s vehicle, the agents discovered marijuana.

{6}     During the search, Agent Wester and Defendant continued to sit on the curb and talk
about Defendant’s alleged involvement in narcotics activity in the area. Agent Wester also
talked to Defendant about whether he would be willing to do some work for the Task Force
and various other topics, including Defendant’s addiction to narcotics. Agent Wester
maintained a professional and non-threatening tone of voice throughout his conversation
with Defendant. After the search of the vehicle was complete, Agent Wester asked
Defendant “if he had anything on him” and asked for consent to search his person, which
Defendant gave. Agent Wester found approximately $1200 and a plastic bag of crack
cocaine on Defendant. By that time, approximately forty-five minutes had passed since the
stop. Defendant was then arrested for trafficking a controlled substance contrary to NMSA
1978, Section 30-31-20 (2006).

{7}      Defendant moved to suppress all contraband found and seized by the Task Force,
asserting that (1) the agents lacked reasonable suspicion to initiate an investigatory detention
based on a confidential informant’s tip, and (2) Defendant was subjected to a de facto arrest
requiring probable cause and tainting his consent to search his vehicle and his person. The
district court denied his motions, and Defendant entered a conditional plea in which he
reserved the right to appeal the denials of the motions. Defendant renews both arguments
on appeal.

STANDARD OF REVIEW

{8}     “[R]eview of a district court’s ruling on a motion to suppress involves a mixed
question of fact and law.” State v. Rowell, 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d
95 (internal quotation marks and citation omitted). We review factual questions under a
substantial evidence standard and the application of law to facts de novo. State v. Pacheco,
2008-NMCA-131, ¶ 3, 145 N.M. 40, 193 P.3d 587. We recognize that “the district court has
the best vantage from which to resolve questions of fact and to evaluate witness credibility.
Accordingly, we review the facts in the light most favorable to the prevailing party”
provided that substantial evidence exists to support the factual findings. State v. Sewell,
2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885 (internal quotation marks and citation
omitted). Finally, we “review the application of the law to those facts, making a de novo
determination of the constitutional reasonableness of a search or seizure.” Id.

LEGALITY OF THE INITIAL STOP

{9}     It is well established that “stopping an automobile and detaining its occupants
constitute a seizure under the Fourth and Fourteenth Amendments.” State v. Werner, 1994-

                                               3
NMSC-025, ¶ 11, 117 N.M. 315, 871 P.2d 971 (alteration, internal quotation marks, and
citation omitted); State v. Funderburg, 2008-NMSC-026, ¶ 13, 144 N.M. 37, 183 P.3d 922.
However, only unreasonable searches and seizures are proscribed. Werner, 1994-NMSC-
025, ¶ 11. Under New Mexico and federal case law, “[p]olice may make an investigatory
stop in circumstances that do not rise to the level of probable cause for an arrest if the
officers have a reasonable suspicion that the law has been or is being violated.” State v.
Alderete, 2011-NMCA-055, ¶ 15, 149 N.M. 799, 255 P.3d 377 (internal quotation marks and
citation omitted); see Werner, 1994-NMSC-025, ¶ 11 (“Under Terry v. Ohio, 392 U.S.
1 . . . (1968), and its progeny, police officers may stop a person for investigative purposes
where, considering the totality of the circumstances, the officers have a reasonable and
objective basis for suspecting that particular person is engaged in criminal activity.” (internal
quotation marks and citation omitted)). “A valid investigatory stop allows an officer to
detain suspects briefly to verify or quell that suspicion.” Sewell, 2009-NMSC-033, ¶ 13.

{10} To justify a stop based on reasonable suspicion, there must be “specific and
articulable facts that, together with the rational inferences from those facts, reasonably
warrant the intrusion.” Alderete, 2011-NMCA-055, ¶ 15 (internal quotation marks and
citation omitted). This Court’s case law establishes that information supplied by a
confidential informant may support a reasonable suspicion, thereby justifying an
investigatory detention. See, e.g., id. ¶¶ 2, 18-20 (upholding a traffic stop based in part on
information from a confidential informant that the house from which the vehicle had
departed was being used as a stash house for large quantities of marijuana); State v. Robbs,
2006-NMCA-061, ¶¶ 2-4, 12-19, 139 N.M. 569, 136 P.3d 570 (holding that a tip received
from a confidential informant that accurately described the vehicle, route, and time of
movement, supplied reasonable suspicion justifying a traffic stop); State v. De Jesus-
Santibanez, 1995-NMCA-017, ¶¶ 11-13, 119 N.M. 578, 893 P.2d 474 (upholding a traffic
stop based on a “Be-On-the-Lookout” alert premised on information supplied by a
confidential informant, who had supplied a description of the vehicle, time and direction of
travel, route, and the origin of the vehicle’s license plate).

{11} Because “[r]easonable suspicion depends on the reliability and content of the
information possessed by the officers[,]” Robbs, 2006-NMCA-061, ¶ 13, we look to the
information processed by the agents in this case. The agents were working with an
informant that the Task Force had used on numerous occasions and who had proven to be
a reliable source of information. The agents were present when the informant telephonically
arranged the drug deal with Defendant. The informant supplied the agents with specific
information, including a description of the vehicle that Defendant would be in, the type of
drug Defendant would be selling, and the time and location of the drug deal. The informant
was able to predict Defendant’s future behavior, indicating that the informant had access to
reliable information about the person’s illegal activities. See id. ¶ 14.

{12} This case is similar to Robbs, in which the informant (1) told detectives that the
defendant would be delivering methamphetamine to an address in a city in New Mexico, and
(2) described the defendant’s vehicle with a personalized license plate. Id. ¶ 2. In that case,

                                               4
we concluded that the tip was enough to support reasonable suspicion necessary for the
investigatory stop of the defendant’s vehicle. Id. ¶ 19. The informant in this case provided
a similar level of detail, and the agents verified the information when the movements of
Defendant accorded with the informant’s tip. Under the totality of the circumstances,
specific and articulable facts supported the agents’ suspicion that Defendant was engaged
in drug trafficking.

{13} To the extent that Defendant argues the stop was “pretextual” under State v. Ochoa,
we do not agree; the issue in this case is one of reasonable suspicion, not whether officers
engaged in an unreasonable, pretextual stop. 2009-NMCA-002, ¶¶ 39-42, 146 N.M. 32, 206
P.3d 143; see id. ¶ 25 (“A pretextual traffic stop is a detention supportable by reasonable
suspicion or probable cause to believe that a traffic offense has occurred, but is executed as
a pretense to pursue a ‘hunch,’ a different more serious investigative agenda for which there
is no reasonable suspicion or probable cause.”). Having determined that reasonable
suspicion supported the agents’ decision to have Defendant stopped, we turn to the second
issue: whether the lawful investigatory detention became a de facto arrest requiring probable
cause.

INVESTIGATORY DETENTION AS A DE FACTO ARREST

{14} While an investigatory detention supported by reasonable suspicion is permitted, an
arrest requires probable cause. State v. Wilson, 2007-NMCA-111, ¶ 18, 142 N.M. 737, 169
P.3d 1184. “When an officer with reasonable suspicion but without probable cause detains
an individual in an unreasonable manner, the detention may amount to a de facto arrest,
rather than an investigatory detention.” Id. There is no bright-line test for evaluating when
an investigatory detention becomes invasive enough to become a de facto arrest. Werner,
1994-NMSC-025, ¶ 13. However, there are several factors that we consider, including (1)
“the government’s justification for the detention,” (2) “the character of the intrusion on the
individual,” (3) “the diligence of the police in conducting the investigation,” and (4) “the
length of the detention.” Robbs, 2006-NMCA-061, ¶ 21. We are also guided by the
circumstances in other cases in which investigative detentions have been held to be de facto
arrests or impermissibly invasive. Pacheco, 2008-NMCA-131, ¶ 22.

{15} The State points out, and the facts when viewed in the light most favorable to the
prevailing party indicate, that contraband was discovered within ten minutes from the time
the agents made contact with Defendant, but did not then result in an arrest. If the ten minute
detention of Defendant was impermissibly invasive, Defendant’s consent to search his
vehicle and his person would be tainted, and the evidence should have been suppressed. See
State v. Jutte, 1998-NMCA-150, ¶ 14, 126 N.M. 244, 968 P.2d 334 (“[I]f [the defendant’s]
detention constituted a de facto arrest prior to the search, then that arrest was unlawful and
it may have tainted his consent to the search.”). If, however, the ten minute detention was
a valid investigatory detention, at the point that the agents found contraband, they had
probable cause to arrest Defendant for possession of a controlled substance contrary to
NMSA 1978, Section 30-31-23 (2011) and to search his person. See State v. Weidner, 2007-

                                              5
NMCA-063, ¶¶ 18-20, 141 N.M. 582, 158 P.3d 1025 (explaining the “search incident to
arrest” exception to the warrant requirement and concluding that even if a search occurs
before formal arrest, it is lawful if the evidence discovered was not necessary to justify the
arrest). Thus, we focus our inquiry on the time between Defendant’s stop and the discovery
of the marijuana.

{16} In support of his argument that he was subject to a de facto arrest, Defendant
states that “officers swarmed the scene and demanded his identity” and that he was removed
from his car, handcuffed, patted down, seated on the ground, and read his Miranda rights.
Defendant asserts that, based on the duration and circumstances of his detention, his consent
was invalid and the contraband discovered should have been suppressed. For the following
reasons, we do not agree.

{17} With regard to the first factor—the government’s justification for intrusion— we
have explained that “[i]f the nature and extent of the detention minimally intrude on an
individual’s Fourth Amendment interests, opposing law enforcement interests can support
a seizure based on less than probable cause.” Robbs, 2006-NMCA-061, ¶ 20 (internal
quotation marks and citation omitted). The government has a significant interest in
preventing the use and distribution of drugs like cocaine. See Pacheco, 2008-NMCA-131,
¶ 20 (explaining that prevention of use and distribution of methamphetamine was a
significant governmental interest); Robbs, 2006-NMCA-061, ¶ 22 (same). Therefore,
“[i]nsofar as [the agents] had a reasonable, articulable suspicion that drug-related criminality
was afoot, the justification for the intrusion was substantial.” Pacheco, 2008-NMCA-131,
¶ 20.

{18} The second factor—the character of the intrusion—requires careful parsing in this
case. While Defendant was only detained for ten minutes and told he was not under arrest,
he was handcuffed and given his Miranda rights. There exists no New Mexico case
addressing this unique set of circumstances; accordingly, we examine, in light of the
authority that we do have, where on the continuum this case falls. Those cases that conclude
that an initially lawful investigatory detention became a de facto arrest all present
circumstances in which the defendant was detained for at least one hour. See, e.g., Werner,
1994-NMSC-025, ¶¶ 11-20 (holding that when the defendant was told that he was not free
to leave and detained for one hour, including forty-five minutes in the back of a patrol car
while awaiting identification, it was a de facto arrest); see also Jutte, 1998-NMCA-150, ¶¶
14-20 (holding that one-hour detention at an inspection checkpoint ripened into an improper
de facto arrest when the officers had exhausted the means of investigation by which they
could confirm or dispel their suspicions quickly); State v. Hernandez, 1997-NMCA-006, ¶
22, 122 N.M. 809, 932 P.2d 499 (concluding that a nearly two-hour detention in a trailer at
a checkpoint while waiting for a female agent who had to be summoned from another
location to search the female defendant after search of vehicle turned up no contraband,
constituted a de facto arrest); State v. Flores, 1996-NMCA-059, ¶¶ 4, 15, 122 N.M. 84, 920
P.2d 1038 (holding that a two- to three-hour detention in handcuffs at a police warehouse
after a one-hour roadside detention constituted a de facto arrest). Although the duration of

                                               6
detention is not dispositive, as we note below, it is an important consideration as evidenced
by our case law.

{19} Perhaps even more helpful to our analysis are those cases in which investigative
detentions were held not to have become de facto arrests. See, e.g., Sewell, 2009-NMSC-
033, ¶¶ 15-25 (holding that a ten minute detention during which time officers questioned the
defendant outside his vehicle about possible drug trafficking and performed search of his
vehicle after obtaining consent was not a de facto arrest); see also Pacheco, 2008-NMCA-
131, ¶¶ 19-25 (holding that thirty minute roadside detention was not impermissively invasive
or extended); Robbs, 2006-NMCA-061, ¶¶ 29-30 (holding that thirty-five to forty minute
detention while awaiting a canine unit to perform a narcotics investigation was reasonable);
State v. Lovato, 1991-NMCA-083, ¶¶ 23-32, 112 N.M. 517, 817 P.2d 251 (holding that the
defendants were not arrested when they were pulled over, ordered to get out of the vehicle
at gunpoint, and handcuffed prior to questioning). While at first glance this case appears to
be analogous to Sewell, when examined more carefully, the circumstances in this case were
more invasive. Although Defendant was only detained for ten minutes, he was also patted
down for weapons, handcuffed, and read his Miranda rights. Nevertheless, even these
circumstances do not indicate that Defendant’s lawful investigatory detention had become
a de facto arrest.

{20} The evidence indicates that Defendant was patted down for weapons and handcuffed
because of Agent Wester’s concern for officer safety because Defendant had a history of
violence. The defendant in Flores, in which we concluded the defendant was subject to a
de facto arrest, was handcuffed; however, he was detained for two to three hours and
handcuffed for most of that time. 1996-NMCA-059, ¶ 15. Additionally, he was “faced with
heavy weaponry in a hostile environment, while subjected to a second search that differed
significantly in scope and location from the first.” Id. ¶ 26. In Lovato, the defendants were
handcuffed upon exiting their vehicle, and we concluded that the level of force did not
convert the investigatory detention into an arrest. 1991-NMCA-083, ¶¶ 24-27, 32.
Therefore, while we consider the fact that Defendant was handcuffed, it is not determinative.
See Wilson, 2007-NMCA-111, ¶ 19 (“[I]n the context of the Fourth Amendment, without
transforming a seizure from an investigatory detention to a de facto arrest, courts have
upheld the use of handcuffs . . . and other measures of force.” (internal quotation marks and
citation omitted)); see also In re David S., 789 A.2d 607, 614 (Md. 2002) (“[A]n
investigatory stop is not elevated automatically into an arrest because the officers handcuffed
the suspect.”). In this case, as in Lovato and unlike in Flores, Defendant was handcuffed due
to his known history of violence and consequent officer safety concerns. Agent Wester
testified that upon removing the handcuffs, Defendant remained calm and was no longer a
safety concern and was therefore not recuffed. Based on the foregoing and viewing the facts
most favorable to the prevailing party, the agents did not act unreasonably in dealing with
the risk that they faced and were not unreasonable in patting down and handcuffing
Defendant; therefore, the fact that Defendant was handcuffed does not transform the
detention into an arrest. See Lovato, 1991-NMCA-083, ¶¶ 26-27 (explaining that officers
may adopt precautionary measures, including performing a protective frisk and handcuffing,

                                              7
based on reasonable fears).

{21} We pause to note that we reach this conclusion with very limited evidence before us.
There was little testimony at the suppression hearing regarding Defendant’s alleged “history
of violence.” By comparison, in Lovato, 1991-NMCA-083, ¶¶ 24-32, the basis for the use
of handcuffs was apparent, and we determined that the use of force was reasonable because
the officers stopped a vehicle carrying suspects in a drive-by shooting that had been
committed minutes before. This case is not as clear. However, we must view the facts in
the light most favorable to the prevailing party (here, the State), and Defendant failed to
present any evidence to the contrary or to challenge the reasonableness of the use of
handcuffs under these circumstances either below or on appeal. We avoid “unrealistic
second-guessing of police officers’ decisions in this regard” and do not require that they use
the least intrusive means, only reasonable ones. United States v. Melendez-Garcia, 28 F.3d
1046, 1052 (10th Cir. 1994) (internal quotation marks and citation omitted). Thus, because
there was uncontroverted evidence that Defendant was known to be violent, we cannot
conclude that handcuffing Defendant was unreasonable. The evidence presented at the
suppression hearing indicates that the agents relied on their knowledge of Defendant’s
history of violence in determining that he needed to be handcuffed; thus, while the State
bears the burden in proving the reasonableness of the detention, we cannot say that the
agents’ fears were unfounded without evidence to the contrary. It is also significant that
Defendant’s handcuffs were removed within ten minutes and he was not recuffed, because,
according to Agent Wester’s testimony, Defendant’s calm demeanor during the detention
led him to believe that Defendant did not pose a safety threat any longer.

{22} We are likewise not convinced that the fact Defendant was given his Miranda rights
turned the detention into a de facto arrest. Miranda warnings are designed to safeguard Fifth
Amendment protections. Cotton v. State, 872 A.2d 87, 97 (Md. 2005).

       Although the giving of those warnings may be considered along with more
       relevant factors as part of all that occurred, it should have no special
       significance in determining whether a temporary detention constitutes an
       arrest for Fourth Amendment purposes because it may well be required even
       when there is clearly no arrest.

Id.; see Wilson, 2007-NMCA-111, ¶ 20 (“[I]f police officers take highly intrusive steps to
protect themselves from danger, they must similarly provide protection to their suspects by
advising them of their constitutional rights.” (internal quotation marks and citation omitted));
accord United States v. Perdue, 8 F.3d 1455, 1465 (10th Cir. 1993). In Wilson, 2007-
NMCA-111, ¶ 21, we rejected the argument that “Miranda warnings are never required
during an investigatory detention.” Relying on federal case law, we explained that “‘[i]f a
motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment
that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply
of protections prescribed by [Miranda].’” Id. ¶ 20 (quoting Berkemer v. McCarty, 468 U.S.
420, 421 (1984)). In other words, during an investigatory detention, a defendant may also

                                               8
be subject to a custodial interrogation, and, if that is the case, Miranda warnings need to be
given. Cotton, 872 A.2d at 97 (“Miranda warnings need to be given whenever there is a
custodial interrogation, and a custodial interrogation can arise from a pure Terry stop that
never crosses into an arrest.”). As a result, a “cautious or gratuitous recitation of Miranda
warnings” is not determinative of whether a defendant has been subject to a de facto arrest.
Id. In Cotton, the court explained,

       [I]f the police proceed to interrogate a person seized and temporarily
       detained pursuant to Terry and do not give Miranda warnings, any
       incriminating evidence revealed by that interrogation may, depending on the
       circumstances, be held inadmissible as the product of a custodial
       interrogation and thereby doom the validity of an ensuing arrest based on that
       evidence. The law should encourage police to give those warnings when
       questioning a suspect, not discourage them by regarding the warnings as
       converting a good Terry stop into a bad arrest.

Id.

{23} In Wilson, we concluded that “in deciding whether a defendant is in Miranda
custody, the question is not whether he or she is being questioned as a part of an
investigatory detention.” 2007-NMCA-111, ¶ 20. Whether Miranda rights are violated and
whether a defendant is subject to an investigatory detention are different inquiries.
However, whether a defendant is given Miranda rights can and should be considered, along
with all the other circumstances in a case, in determining whether a defendant was subject
to a de facto arrest. In this case, Defendant was read his Miranda rights before Agent Wester
began asking him questions about his alleged involvement in trafficking cocaine. The
reading of his rights did not convert the investigatory detention into an arrest. See Perdue,
8 F.3d at 1463 (concluding that when officers employ force normally associated with an
arrest during an investigative detention, Miranda warnings are required).

{24} Finally, we turn to the duration of the detention and the diligence of the agents’
investigation. See Pacheco, 2008-NMCA-131, ¶ 19 (addressing duration and diligence
prongs together because they “both rest on the same underlying premise, an impermissibly
protracted detention”). “A valid investigatory stop allows an officer to detain suspects
briefly to verify or quell . . . suspicion.” Sewell, 2009-NMSC-033, ¶ 13. The evidence in this
case, when viewed in the light most favorable to the prevailing party, indicates that, in the
first ten minutes of the detention before the discovery of contraband, Defendant was stopped,
patted down, given Miranda rights, and handcuffed. Agent Wester then talked to Defendant
for a short time to investigate his suspicion. At that point, after removing Defendant’s
handcuffs, explaining the consent form, and allowing Defendant to sign it, the search of
Defendant’s vehicle began and contraband was discovered almost immediately. The length
of the detention (ten minutes) was reasonably limited to the time required to perform all of
these activities. There is nothing to indicate that the agents delayed the investigation or were
otherwise unreasonable in conducting the investigation. Under these circumstances, the

                                               9
agents were diligent in their investigation and detained Defendant no longer than necessary
to verify or quell their suspicion.

{25} While “[t]emporal duration is neither the controlling nor the only factor” to consider,
our Supreme Court remarked in Sewell, “we have found no reported case in which a New
Mexico court has ever held that a ten minute detention was impermissibly long in any set of
circumstances where there was reasonable suspicion to make a roadside drug stop.” 2009-
NMSC-033, ¶¶ 17, 18. That statement is still true, and, taking into account duration and all
of the other factors, this case does not present circumstances in which a ten minute detention
turned into a de facto arrest. Because Defendant was not subject to a de facto arrest, “the
ensuing consensual search of the vehicle [and his person] was not tainted.” Pacheco, 2008-
NMCA-131, ¶ 25.

CONCLUSION

{26} The agents in this case had reasonable suspicion to conduct an investigatory
detention, and that detention did not become a de facto arrest prior to the agents’ discovery
of contraband. Therefore, the district court properly denied Defendant’s motions to
suppress. We affirm.

{27}   IT IS SO ORDERED.

                                              ____________________________________
                                              JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

____________________________________
M. MONICA ZAMORA, Judge




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