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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellant,

 4 v.                                                                     No. 29,174

 5 MELISSA BENAVIDEZ,

 6        Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Robert M. Schwartz, District Judge

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

13 for Appellant

14 Hugh W. Dangler, Chief Public Defender
15 Santa Fe, NM

16 for Appellee

17                               MEMORANDUM OPINION

18 KENNEDY, Judge.

19        The State appeals the district court’s order suppressing evidence pursuant to

20 NMSA 1978, Section 39-3-3(B)(2) (1972). This Court issued a calendar notice

21 proposing to affirm and the State responded with a memorandum in opposition which

22 we have duly considered. For the reasons discussed below, we affirm.
 1 BACKGROUND

 2        Officer Ficke was dispatched to a motel to investigate a report of a suspicious

 3 person. [DS 2] On arriving at the motel, the officer noticed three young girls playing

 4 in the parking lot next to a vehicle. [Id.] The officer asked an unidentified man

 5 whether he knew the children, and the man indicated that the children’s mother was

 6 in Room 110. [Id.] The officer located Defendant outside of Room 110, asked her for

 7 her name and asked her where her children were. [DS 2-3] Defendant initially asked

 8 the officer “why,” but when asked again identified herself as Melissa Benavidez and

 9 stated that she believed her children were outside. [DS 3] The officer asked

10 Defendant for identification, which Defendant indicated was in her purse inside her

11 motel room. [Id.] The officer accompanied Defendant to get a key from the desk and

12 went to her motel room to check her identification. [Id.]

13        Upon arriving at the room, Defendant immediately retrieved her identification

14 from her purse and presented it to the officer; however, the officer testified that the

15 manner in which Defendant retrieved her identification caught his attention, because

16 she did so in a manner that prohibited the officer from seeing inside her purse. [Id.]

17 The officer testified that he demanded to look in the purse and Defendant refused.

18 [Id.] The officer further testified that Defendant appeared nervous and was clutching

19 her purse tightly. [Id.] The officer requested that Defendant accompany him outside

20 and had Defendant walk in front of him out of concern for his safety, because he

21 feared she might have a weapon in her purse. [Id.]

22        The officer testified he noticed Defendant was hugging her purse tightly, was

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 1 concerned for his safety, and ordered Defendant to give him the purse so he could

 2 check for weapons. [DS 4] Defendant again refused. [Id.] When the officer tried to

 3 take the purse from Defendant, she turned away. [Id.]            The officer grabbed

 4 Defendant’s arm, applying pressure to her elbow and wrist, and took the purse from

 5 Defendant. [Id.] The officer searched the purse and found a digital scale and two

 6 small baggies with white residue. [Id.] The district court issued an order suppressing

 7 this evidence on the grounds that the facts articulated by the officer — Defendant’s

 8 nervousness, clutching of her purse, and refusal to consent to the search of her purse

 9 — were insufficient to permit the officer to search Defendant’s purse out of concern

10 for his safety. [RP 54] The State appeals.

11 DISCUSSION

12        This Court issued a calendar notice in which we proposed to affirm the district

13 court’s order suppressing evidence obtained from a search of Defendant’s purse. In

14 response, the State relied on State v. Chapman, 1999-NMCA-106, 127 N.M. 721, 986

15 P.2d 1122, to argue that the officer identified specific behaviors and changes in

16 Defendant’s demeanor and attitude to explain why he believed that Defendant might

17 be armed and dangerous. [MIO 6] The State argued that, as in Chapman, Defendant’s

18 uncooperative behavior escalated during the encounter. Specifically, the State argued

19 that Defendant was uncooperative at the beginning of the encounter, responding

20 “why?” when the officer asked her name, and clutching her purse to her chest to

21 prevent the officer from seeing inside. [MIO 7] The State also relied on the fact that,

22 after the officer had demanded to inspect Defendant’s purse for the second time and

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 1 attempted to take Defendant’s purse from her, Defendant turned away, as if to run

 2 from the officer. [MIO 7]

 3        We find the State’s reliance on Chapman unpersuasive. In Chapman, this Court

 4 held that the defendant’s failure to make eye contact, unusual level of nervousness,

 5 high-pitched tone of voice, anxious and aggressive response to the deputy questioning

 6 him about weapons, and uncontrollable shaking provided justification for the deputy’s

 7 pat down of the defendant. 1999-NMCA-106, ¶¶ 17-18. Here, Defendant did not

 8 display the type or level of nervousness present in Chapman. To the contrary, in this

 9 case, the State has not indicated any nervousness by Defendant other than her

10 clutching her purse to her chest and turning away from the officer when he attempted

11 to forcibly take the purse from her. We conclude that Defendant clutching her purse

12 to her chest, without a furtive movement or something more, was insufficient to cause

13 the officer to reasonably believe that Defendant was armed and dangerous.

14        To the extent the State relies on Defendant asking the officer why he wanted her

15 name to argue that Defendant’s uncooperativeness caused the officer to reasonably

16 believe Defendant was armed and dangerous, we find this argument unpersuasive

17 where, after asking the officer “why,” Defendant cooperated with the officer by going

18 to get her room key, taking the officer to her room to retrieve her identification,

19 showing the officer her identification, and accompanying the officer outside and

20 walking in front of the officer at the officer’s request. We therefore conclude that

21 Defendant’s asking the officer why he wanted her name, holding her purse to her

22 chest, and refusing to grant the officer her consent to search her purse was insufficient

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 1 to constitute a reasonable and articulable suspicion that Defendant was armed and

 2 dangerous.

 3        The State relies on State v. Amaya, 89 P.3d 1163 (Or. 2004), but our review of

 4 the facts in that case lead us to conclude that the State’s reliance is misplaced. In

 5 Amaya, the defendant informed the officer that there was a gun in her purse, a critical

 6 fact that is not present in the case before us. Id. at 1165.

 7        Turning to the reasons articulated by the officer in this case in support of the

 8 search, we note that Defendant’s refusal to consent to a search of her purse may not

 9 be considered in determining whether the officer had reasonable and articulable

10 suspicion that Defendant was armed and dangerous. See State v. Vandenberg, 2003-

11 NMSC-030, ¶ 46, 134 N.M. 566, 81 P.3d 19 (“[W]e think it self-evident that

12 [d]efendants’ refusal is not a probative fact of guilt, suspicion, or dangerousness.”).

13 In Vandenberg, the Court drew no distinction between a refusal of a search and a

14 refusal of a canine sniff. Id. To search in the present case, the officer was required

15 to show a reasonable and articulable suspicion that Defendant was armed and

16 dangerous. In Vandenberg, the Court determined that the defendant’s refusal to

17 consent to a canine sniff could not be considered in determining whether the officer

18 had reasonable and articulable suspicion that the defendants were armed and

19 dangerous. Id. The Court also stated, “[W]hen [d]efendants refused the canine sniff,

20 their conduct was a neutral act which neither incriminated nor exculpated them.

21 Therefore, in determining whether [the officer] had reasonable suspicion to believe

22 that [d]efendants were dangerous, we do not consider [d]efendants’ refusal to consent

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 1 as a relevant fact.” Id. ¶ 47.

 2        Further, to the degree the State relied on Defendant clutching her purse and

 3 turning away from the officer after the officer ordered Defendant to allow him to

 4 search her purse and attempted to take Defendant’s purse from her, [RP 52]

 5 Defendant’s acts were consistent with her assertion of her right to refuse to consent

 6 to the search of her belongings and would not have caused a reasonable officer to feel

 7 threatened. Finally, Defendant’s nervousness, alone, was not “sufficient to justify .

 8 . . a protective frisk for safety reasons.” State v. Pablo R., 2006-NMCA-072, ¶ 15,

 9 139 N.M. 744, 137 P.3d 1198. Also, the officer failed to articulate specific reasons

10 why Defendant’s nervousness caused him to believe his safety was compromised or

11 describe any type of “erratic, hostile, aggressive, uncooperative, or unpredictable

12 behavior” that would cause the officer to feel threatened. State v. Gutierrez, 2008-

13 NMCA-015, ¶ 18, 143 N.M. 522, 177 P.3d 1096 (citation omitted). An observation

14 that Defendant is simply nervous “is entitled to little weight in determining whether

15 officers had reasonable suspicion to search a defendant for weapons.” Id. Thus, we

16 give it little weight here. Therefore, we conclude that Defendant’s nervousness,

17 clutching of her purse, and refusal to consent to the search of her purse, did not

18 constitute a sufficient degree of articulable suspicion for the officer to reasonably

19 conclude that Defendant was armed and dangerous.

20 CONCLUSION

21        Accordingly, for the reasons stated above, we affirm.

22        IT IS SO ORDERED.

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1                               ____________________________________
2                               RODERICK T. KENNEDY, Judge

3 WE CONCUR:



4 ________________________________
5 JONATHAN B. SUTIN, Judge



6 ________________________________
7 CELIA FOY CASTILLO, Judge




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