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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                         NO. 28,965

 5 ELSON HONNIE,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Stephanie Erin Brunson, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant appeals from the district court’s order affirming the magistrate

19 court’s denial of his motion to suppress on grounds that the officer’s stop was invalid,
 1 and not based on the community caretaker doctrine. This Court’s first notice proposed

 2 to affirm the district court. Defendant filed a memorandum in opposition to the

 3 proposed disposition. We are not persuaded by Defendant’s arguments and affirm.

 4        Defendant urges this Court to revisit State v. Walters, 1997-NMCA-013, 123

 5 N.M. 88, 934 P.2d 282, because he asserts that it conflicts with the determination in

 6 State v. Ryon, 2005-NMSC-005, 137 N.M. 174, 108 P.3d 1032, that the community

 7 caretaking function must be totally divorced from the detection, investigation, or

 8 acquisition of evidence relating to the violation of a criminal statute. [MIO 3, 7]

 9 Defendant contends that in Walters, the community caretaking doctrine was expanded

10 to cover even those instances in which an officer is actually acting on a non-specific,

11 inarticulable hunch that the defendant is committing a crime but has no reasonable

12 suspicion for an investigatory detention. [MIO 7] We disagree.

13        In Walters, the defendant argued that the police officer did not conduct the stop

14 based on the community caretaker doctrine because the stop was not voluntary. 1997-

15 NMCA-013, ¶ 11. The Walters defendant pulled over because he felt compelled by

16 the manner in which the officer followed him, and that because the stop was not

17 consensual, reasonable suspicion was required. Id. This Court disagreed, analyzed

18 whether the stop was consensual, and determined that a district court could have

19 reasonably concluded that the defendant was not compelled to stop and that the officer


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 1 was acting within his caretaker function. Id. ¶¶ 11-12, 15, 25. Ryon later clarified the

 2 community caretaker exception: “[c]haracterization of the exception as a voluntary or

 3 consensual encounter was wrong.” 2005-NMSC-005, ¶ 20. Despite this later

 4 explanation, nothing in Ryon suggests that Walters impermissibly broadened the scope

 5 of the community caretaker doctrine, as Defendant argues. In fact, Ryon appears to

 6 have broadened the community caretaker inquiry. See 2005-NMSC-005, ¶ 20

 7 (“Walters ought not be viewed as limiting the community caretaker exception to

 8 voluntary or consensual police-citizen encounters.”).

 9        When police are acting as community caretakers, reasonable suspicion and

10 probable cause are not at issue. Ryon, 2005-NMSC-005, ¶ 20. “In New Mexico we

11 have recognized that officers may stop a vehicle on a public road without probable

12 cause or reasonable suspicion on the basis of a specific, articulable safety concern in

13 their capacity as community caretakers.” Id. ¶ 16 (internal quotation marks and

14 citation omitted). Where the initial contact by the police is motivated by a concern for

15 public safety rather than a criminal investigation, police need not justify their decision

16 to approach a person and ask questions. See id. ¶ 17. In a community caretaker case

17 involving an automobile, we consider whether the officer had “a specific and

18 articulable concern for public safety requiring the officer’s general assistance.” Ryon,

19 2005-NMSC-005, ¶ 26. There was sufficient evidence in the present case to establish


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 1 that the officer articulated a specific concern for Defendant’s safety.

 2          The officer testified that he saw Defendant’s vehicle moving slowly on a state

 3 highway and then followed the car as it pulled into the parking lot of a closed

 4 business. [RP 082] The officer approached the car after seeing Defendant get out of

 5 the driver’s side and run around to the passenger side. [RP 083] Specifically, the

 6 officer testified that he made contact with Defendant in order to determine if any help

 7 was needed. [RP 084] Based on these facts, we conclude that the district court could

 8 reasonably conclude that the officer stopped to see if anything was wrong and that as

 9 a result, the officer acted as a community caretaker. See State v. Reynolds, 117 N.M.

10 23, 25, 868 P.2d 668, 670 (Ct. App. 1993) (“It is appropriate, then, for police officers

11 to stop vehicles for a specific, articulable safety concern.”), rev’d on other grounds,

12 119 N.M. 383, 890 P.2d 1315. Therefore, Defendant was not seized in violation of

13 the Fourth Amendment. See Walters, 1997-NMCA-013, ¶ 10 (explaining that a

14 community caretaker stop is not a seizure that implicates the Fourth Amendment).

15          For these reasons, and those stated in the first notice, we affirm the district

16 court.



17          IT IS SO ORDERED.




                                               4
1                                     ________________________________
2                                     CELIA FOY CASTILLO, Judge

3 WE CONCUR:



4 _________________________________
5 MICHAEL D. BUSTAMANTE, Judge



6 _________________________________
7 LINDA M. VANZI, Judge




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