       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ______________

Filing Date: September 9, 2014

Docket No. 31,890

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

RON BELL,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Appellant

Bregman & Loman, P.C.
Sam Bregman
Albuquerque, NM

for Appellee

                                        OPINION

HANISEE, Judge.

{1}    In its appellate capacity, the district court entered an opinion and order reversing a
metropolitan court conviction for speeding, failure to maintain lane, and driving while
impaired (first offense), on the basis that the metropolitan court should have excluded
prosecution evidence that was admitted at trial in violation of the New Mexico Constitution.
The State now appeals the district court order, arguing that Defendant failed to preserve the
grounds relied upon by the district court for suppressing the evidence at issue and that the

                                             1
challenged evidence was properly admitted during trial. Because we agree with the district
court that the grounds it relied upon to reverse were sufficiently preserved in the
metropolitan court and constituted reversible error, we affirm.

Standard of Review

{2}     Because this is a criminal action “involving driving while under the influence of
intoxicating liquors or drugs[,]” the metropolitan court acted as the trial court of record, and
the district court acted in its appellate capacity when it reviewed the conviction. NMSA
1978, § 34-8A-6(C) (1993); Rule 1-073 NMRA; see State v. Trujillo, 1999-NMCA-003, ¶
4, 126 N.M. 603, 973 P.2d 855 (stating that “[f]or on-record appeals the district court acts
as a typical appellate court, with the district judge simply reviewing the record of the
metropolitan court trial for legal error”). In subsequent appeals such as this, we apply the
same standards of review employed by the district court. See id. ¶¶ 1, 5. A trial court’s
determination on a motion to suppress evidence involves a mixed question of law and fact,
as to which our review is de novo. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116
P.3d 72. Our scope of review, like that of the district court, is defined by Supreme Court
rules that require that in order “[t]o preserve a question for review it must appear that a
ruling or decision by the metropolitan court was fairly invoked[.]” Rule 1-073(O); cf. Rule
12-216(A) NMRA. The preservation rule is applied to advance its three primary purposes:

       (1) to specifically alert the [trial] court to a claim of error so that any mistake
       can be corrected at that time, (2) to allow the opposing party a fair
       opportunity to respond to the claim of error and to show why the [trial] court
       should rule against that claim, and (3) to create a record sufficient to allow
       this Court to make an informed decision regarding the contested issue.

Gerke v. Romero, 2010-NMCA-060, ¶ 18, 148 N.M. 367, 237 P.3d 111 (internal quotation
marks and citation omitted).

Proceedings Before the Metropolitan Court

{3}     The sole evidence relevant to the metropolitan court’s ruling denying suppression
was the trial testimony of Deputy Allen. The relevant portions of Deputy Allen’s testimony
described a sequence of events that began with Defendant’s car passing Deputy Allen, who
was driving northbound on Tramway Boulevard in Albuquerque, New Mexico. Deputy
Allen then caught up with Defendant’s car and determined, by reference to his own
speedometer, that Defendant was driving at a speed of sixty miles per hour in an area with
a posted speed limit of fifty miles per hour. At the intersection of Tramway and Spain Road,
both cars stopped at a red light, but Defendant’s car improperly stopped in the intersection
crosswalk. When the light turned green, Defendant re-accelerated to sixty miles per hour,
with Deputy Allen still following. The cars again stopped for a red light at the intersection
of Tramway and Academy Road, and Defendant again accelerated to sixty miles per hour
after the stop. Just north of Academy, Defendant crossed partially over the white line

                                               2
dividing the roadway from the shoulder, so that “the middle of the vehicle was over the
white line,” and continued to drive partially on the shoulder until Deputy Allen pulled him
over just past the intersection of Tramway and San Rafael Avenue. As he pulled Defendant
over, Deputy Allen used his radio to ask dispatch whether a DWI unit was available because
“[j]ust on the observation of the driving[, Deputy Allen] wasn’t sure if that was what [he]
was looking at or not.”

{4}     Deputy Allen approached Defendant, explained the basis for the stop, and asked
Defendant for his driver’s license, automobile registration, and proof of insurance. He
noticed that Defendant’s hands were shaky when he handed over those documents and that
“it sounded like something wasn’t correct; something didn’t sound correct about his voice.”
Deputy Allen described Defendant as sounding as if he were speaking with a “thick tongue.”

{5}     Deputy Allen asked Defendant if he was “under the influence,” and Defendant said
“no.” Deputy Allen then had Defendant put both of his hands on the car window frame and
move his head closer to the car window in order to conduct a horizontal gaze nystagmus
(HGN) test. It took four attempts by Deputy Allen to conclude that Defendant bore no sign
of nystagmus, a delay Deputy Allen attributed to Defendant’s non-compliance with
instructions. Yet Deputy Allen agreed when cross-examined that performing an HGN test
while the subject is seated in his car does not comply with standards promulgated by the
National Highway Traffic Safety Administration.

{6}     Deputy Allen next asked Defendant whether “he [had] any grenades, rocket
launchers in the vehicle” and whether “he had any dead bodies in the car.” In response to
both of those questions, Defendant said “no” while shaking his head. Deputy Allen then
asked whether Defendant “had any narcotics in the vehicle, prescription or otherwise,” and
Defendant answered “no,” but this time simultaneously nodded his head in the affirmative.
Deputy Allen then asked whether there were any prescriptions in Defendant’s car and
Defendant again said “no” while contradictorily nodding his head affirmatively. Deputy
Allen testified that he did not, in fact, believe that Defendant had any grenades, rocket
launchers, or dead bodies in his car, but that he asked those questions to determine “what
type of response” he would get from Defendant and to help “decide if [Defendant was] being
truthful.” Afterward, evidence was uncovered leading to Defendant’s arrest and ultimately
his conviction in the metropolitan court.

{7}     Following Deputy Allen’s testimony, Defendant moved to suppress based upon “lack
of reasonable suspicion to even conduct a further investigation along with the lack of
reasonable suspicion based on the stop.” The metropolitan court heard argument from both
sides on those issues and ruled that the initial traffic stop was based upon reasonable
suspicion. Defendant does not challenge that ruling on appeal. Defense counsel then asked
the metropolitan court for a ruling regarding whether there was sufficient reasonable
suspicion for “it to go from a [traffic] stop to conducting a DWI investigation.” Following
further argument, the metropolitan court denied Defendant’s motion and ruled Deputy
Allen’s testimony to be admissible, specifically noting that Defendant was speeding, failed

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to maintain his traffic lane, and that Deputy Allen had to “go over [the HGN] directions on
three different occasions.”

Appeal on the Record to the District Court

{8}     Following a four-day bench trial in metropolitan court resulting in a conviction and
the entry of a sentencing order, Defendant appealed to the district court arguing, inter alia,
that “the metropolitan court erred in ruling independent reasonable suspicion arose outside
of the scope of the initial . . . stop for traffic violations in violation of the Fourth Amendment
of the United States Constitution and [Article II, Section 10] of the New Mexico
Constitution[.]” The State’s response asserted that Defendant relied solely upon the Fourth
Amendment at trial and thus had not preserved any claim based upon the concededly broader
protections afforded by Article II, Section 10 of the New Mexico Constitution, because that
provision of the state constitution was never expressly referenced before the metropolitan
court. The district court, sua sponte, ordered the parties to submit supplemental briefing on
the question of “whether Defendant preserved his claim, under Article II, Section 10 of the
New Mexico Constitution, as to whether or not Deputy Allen lacked reasonable suspicion
to question Defendant regarding additional criminal activity thereby improperly expanding
the scope of the traffic stop.”

{9}      As directed, the parties submitted briefs addressing the question of whether
Defendant had asserted any protection existing under the state constitution at trial. In doing
so, Defendant maintained that, although his argument at trial made no specific reference to
any provision of the state constitution, he had argued an established principle protected
uniquely by the New Mexico Constitution. The State’s disagreement notwithstanding, the
district court concluded that “Defendant preserved these issues for review.” If Defendant was
correct in his claim before the district court, the central question raised in this appeal was
preserved for review both in that court and here.

{10} In then substantively analyzing Defendant’s state constitutional argument, the district
court further concluded that “Deputy Allen lacked reasonable suspicion to expand the scope
of the investigation to inquire into weapons and dead bodies” and therefore that
“Defendant’s motion to suppress should have been granted [in the metropolitan court] as to
any evidence obtained after that inquiry.” The State appeals from the district court’s ruling,
reiterating its contentions that Defendant’s state constitutional arguments were not raised and
are therefore not preserved and that Article II, Section 10 was not violated by questions
unrelated to the DWI investigation that did not expand the investigation’s scope.

Preservation of Defendant’s Claims

{11} The question of whether a claim under Article II, Section 10 is preserved in this case
depends upon what grounds or principle Defendant asserted at trial for the suppression of
evidence. Specifically, we must resolve whether Defendant’s challenges that Deputy Allen
lacked reasonable suspicion “to even conduct a further investigation” or “to go from a

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[traffic] stop to conducting a DWI investigation” must be strictly understood to challenge
only investigative steps undertaken with regard to DWI. If so constrained, the objections
would fail to assert the broader, well established state constitutional principle that limits
police inquiries of an individual suspected of having committed a vehicle infraction to
questions reasonably related to the basis for the vehicle stop. If understood to challenge any
progression of investigation beyond that needed in relation to the traffic infractions observed
by Deputy Allen, the time-of-trial challenge by Defendant was sufficient to garner review
of the propriety of questions about grenades, rocket launchers, and dead bodies, topics of
criminality plainly afield of traffic infractions.

       To this inquiry, New Mexico courts have long held that:

       [t]he purpose of an objection or motion is to invoke a ruling of the court upon
       a question or issue, and it is essential that the ground or grounds of the
       objection or motion be made with sufficient specificity to alert the mind of
       the trial court to the claimed error or errors, and that a ruling thereon then be
       invoked.

State v. Lopez, 1973-NMSC-041, ¶ 23, 84 N.M. 805, 508 P.2d 1292; see City of Portales v.
Shiplett, 1960-NMSC-095, ¶ 6, 67 N.M. 308, 355 P.2d 126 (holding that a defendant’s
failure “to point out the claimed errors and to bring them to the attention of the trial court
prevent his relying on them for the first time on appeal”). But see State v. Gomez, 1997-
NMSC-006, ¶¶ 24-25, 122 N.M. 777, 932 P.2d 1 (stating that the defendant “need not have
asserted . . . that Article II, Section 10 should be interpreted differently from the Fourth
Amendment” because there is “established New Mexico law interpreting Article II, Section
10 more expansively”).

{12} Most recently, our Supreme Court has clarified that the less stringent of New Mexico
jurisprudence’s preservation requirements applies in this very context due to the “plethora
of precedent already [establishing] Article II, Section 10[’s] more expansiv[e protection than
that afforded by] the Fourth Amendment.”1 State v. Leyva, 2011-NMSC-009, ¶ 50, 149 N.M.
435, 250 P.3d 861. Having reviewed the trial proceedings and Leyva, we disagree with the
State that the issue before us was inadequately preserved for appellate review. We conclude
that not only did Defendant assert that the facts known to Deputy Allen were insufficient to


       1
         As clear as this controlling precedent now is, we question why it is any longer
necessary that the simultaneously applicable protections of the Fourth Amendment and
Article II, Section 10 must be independently preserved when challenging the constitutional
legality of a vehicle stop in New Mexico. To require dual assertions of such persistently
overlapping protections, known well to both attorneys and the judges in whose courts these
issues are most frequently raised, unnecessarily risks the waiver of important protections to
motorists’ liberty. It is, however, for our Supreme Court to effectuate change to its own
jurisprudence, and we review the district court’s ruling under Leyva and cases preceding it.

                                              5
justify prolonging the traffic stop for purposes of a DWI investigation, he broadly argued
that there existed no “reasonable suspicion to even conduct a further investigation[.]” The
principle asserted by Defendant was sufficient to question the propriety of Deputy Allen’s
questions about grenades, rocket launchers, and dead bodies. See id. ¶ 42 (“[O]nly where a
state constitutional provision had never been interpreted to provide greater protection than
its federal analog are parties required to alert the trial court [to the applicable constitutional
provisions] and articulate reasons for departure.”).2 While we recognize that Defendant
emphasized what he perceived to be the unfounded expansion of Deputy Allen’s
investigation into the realm of DWI, we construe Leyva to caution against overly technical
resolutions to preservation challenges in areas of law where heightened state constitutional
protections are entrenched in our jurisprudence. See id. ¶ 38 (upholding principles of
preservation set forth in Gomez and noting that since its issuance “some opinions have
strayed by imposing a higher standard”). One such well-rooted principle is the prohibition
in New Mexico on police questioning that strays from the initial justification for a vehicle
stop and that is not otherwise separately supported by reasonable suspicion. Leyva, 2011-
NMSC-009, ¶ 55.

{13} Because we conclude that Defendant’s challenge in the metropolitan court triggered
protections pursuant to Article II, Section 10 of the New Mexico Constitution, and was
asserted in the metropolitan court and therefore preserved, we need not address Defendant’s
remaining arguments related to this issue. We turn now to whether questions asked by
Deputy Allen during his investigation impermissibly expanded the scope of the traffic stop
contrary to the New Mexico Constitution.

Propriety of Questions Regarding Rocket Launchers and Dead Bodies

{14} It is well-rooted within New Mexico jurisprudence that our interstitial approach to
state constitutional analysis entails review of parallel or analogous provisions of the United
States Constitution to determine whether the federal protections are deficient to a degree
requiring supplementation to protect the rights of New Mexico citizens. Id. ¶¶ 40-42. The
rule is:
         “[w]here New Mexico courts have taken a different path than federal courts,
         our precedent governs regardless of whether a party cites specific cases in
         support of a constitutional principle, so long as the party asserted the


        2
          Although unnecessary to our resolution of this issue, we note that our Supreme
Court has also stated that even if the defendant “had failed to preserve the state constitutional
claim, we could nevertheless consider it because freedom from illegal search and seizure is
a fundamental right.” Gomez, 1997-NMSC-006, ¶ 31 n.4. Also cited in the same footnote is
State v. Sutton, 1991-NMCA-073, ¶ 20, 112 N.M. 449, 816 P.2d 518, which discusses search
and seizure protections under the state constitution as a matter of general public interest that
exists despite the defendant’s failure to preserve the claim for appellate review. See Gomez,
1997-NMSC-006, ¶ 31 n.4.

                                                6
        principle recognized in the cases and has developed the facts adequately to
        give the opposing party an opportunity to respond and to give the court an
        opportunity to rule.”

Id. ¶ 41 (quoting Gomez, 1997-NMSC-006, ¶ 30). Leyva also clarified that the “less stringent
of Gomez’[s] preservation requirements[,]” namely the “asserti[on of] the constitutional
principle” and a “showing [of] the factual basis needed for the [district] court to rule on the
issue[,]” Leyva, 2011-NMSC-009, ¶¶ 40, 44, 50 (internal quotation marks and citation
omitted), applies to issues such as that raised herein because “ ‘a plethora of precedent
already interprets Article II, Section 10 more expansively than the Fourth Amendment.’ ”
Leyva, 2011-NMSC-009, ¶ 50 (quoting State v. Garcia, 2009-NMSC-046, ¶ 52, 147 N.M.
134, 217 P.3d 1032 (Bosson, J., specially concurring).

{15} Further instructive to our analysis is Leyva’s reaffirmation of the state constitutional
principle that Defendant maintains he invoked at trial, namely that Article II, Section 10
requires “a reasonable justification for the initial stop and that all questions asked during the
stop be reasonably related to the reason for the stop or otherwise supported by reasonable
suspicion[.]” Leyva, 2011-NMSC-009, ¶ 55 (emphasis added); see State v. Duran,
2005-NMSC-034, ¶ 35, 138 N.M. 414, 120 P.3d 836 (holding that “all questions asked by
police officers during a traffic stop must be analyzed to ensure they are reasonably related
to the initial justification for the stop or are supported by reasonable suspicion”) overruled
in part and on other grounds by Leyva, 2011-NMSC-009, ¶ 17. Leyva reminds us that
Article II, Section 10 bestows upon drivers “broader protection to individual privacy under
the New Mexico Constitution than under the Fourth Amendment.” 2011-NMSC-009, ¶ 53
(internal quotation marks and citation omitted). As a result, the propriety of police conduct
during a traffic stop is measured from the perspective of the state constitution by a standard
distinct from that of the Fourth Amendment. Pursuant to modern Fourth Amendment
jurisprudence, a traffic stop will be held valid so long as the officer does not prolong the stop
“beyond the time needed to investigate the circumstances that caused the stop, unless he
develops reasonable suspicion of additional criminal activity in the meantime.” Id. ¶ 19
(internal quotation marks and citation omitted). Thus, for Fourth Amendment purposes, the
proper inquiry is “[w]hether an officer’s questioning measurably extends the length of a
traffic stop.” Id. ¶ 21; see Ariz. v. Johnson, 555 U.S. 323, 333 (2009) (noting that “inquiries
into matters unrelated to the justification for the traffic stop . . . do not convert the encounter
into something other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop”).

{16} For purposes of Article II, Section 10, however, our courts continue to adhere to the
two-part test first articulated in Terry v. Ohio, that requires an officer’s action be both
“justified at its inception” and “reasonably related in scope to the circumstances which
justified the interference in the first place.” 392 U.S. 1, 19-20 (1968). Thus, under Article
II, Section 10, both the duration and scope of a stop must be reasonable under the
circumstances and, unlike under the Fourth Amendment, even questions that do not prolong
the encounter are improper if they are not “reasonably related to the reason for the stop or

                                                7
otherwise supported by reasonable suspicion[.]” Leyva, 2011-NMSC-009, ¶ 55. This
approach “ensures that investigating officers do not engage in ‘fishing expeditions’ during
traffic stops.” Id.

{17} Regarding the specific questions at issue, we note that the State has not asserted that
the facts of the vehicle stop gave rise to any reasonable suspicion involving the disallowed
possession of certain weapons or corpses. Had such a concern been argued by the State and
determined to be valid, it would constitute a permissible expansion of the scope of the traffic
stop. Contrary to such a finding, the district court determined that:

        Deputy Allen jumped from a traffic investigation to an impairment
        investigation to questions regarding weapons and dead bodies. . . . There
        were no articulable facts introduced suggesting the Deputy had reasonable
        suspicion to suspect Defendant was in possession of illegal weapons or
        corpses.

        ....

        Such questions, which expand the scope of the investigation, are not
        permitted in New Mexico, absent reasonable suspicion, irrespective of the
        Deputy’s alleged intent to simply elicit truthful responses.

{18} On the record before it, the district court’s analysis was correct. Indeed, when given
the opportunity to explain or establish an investigative foundation for his non-traffic-related
inquiries in a manner that related to his immediate investigation, Deputy Allen offered only
two related justifications: that he needed help generally deciding whether Defendant was
“being truthful,” and in “trying to determine the truthfulness of a response.” On appeal, the
State similarly contends that “Deputy Allen did not ask the questions about weapons and
dead bodies with the intent to investigate whether Defendant had such things. Rather, he
asked the questions as an interview technique designed to help him gauge the truthfulness
of Defendant’s responses about DWI.” However, nothing in the record indicates a
preexisting awareness on the part of Deputy Allen as to whether grenades, dead bodies or
rocket launchers were located within Defendant’s vehicle such to where Deputy Allen could
ascertain the honesty or dishonesty of Defendant’s responses. Furthermore, there is no basis
under Leyva for us to assume an alternatively appropriate reason existed for asking these
unrelated, and what Deputy Allen conceded to be “outrageous” questions regarding items
Defendant could not have lawfully possessed. See id. ¶ 55; see also Duran, 2005-NMSC-
034, ¶ 35 (stating that “all questions asked by police officers during a traffic stop must be
analyzed to ensure they are reasonably related to the initial justification . . . or are supported
by reasonable suspicion” that may unfold during the investigation or traffic stop). There
being no such legitimate investigative purpose asserted herein, no basis for Deputy Allen to
accurately ascertain the truthfulness of the answers given by Defendant, and nothing in the
record to otherwise place the questions in the context of what was properly being
investigated, we hold that the district court correctly concluded that the questions were

                                                8
constitutionally improper under Leyva.

{19} When a motorist is subjected to inquiries unsupported by reasonable suspicion during
a vehicle stop, our precedent establishes that the continuing detention of that person is
illegal. State v. Portillo, 2011-NMCA-079, ¶ 24, 150 N.M. 187, 258 P.3d 466. It is likewise
settled law that evidence “discovered as a result of the exploitation of an illegal seizure must
be suppressed unless it has been purged of its primary taint.” Id. ¶ 25 (citing Garcia, 2009-
NMSC-046, ¶¶ 14, 23, for its recitation of the “fruit of the poisonous tree doctrine” set forth
in Wong Sun v. United States, 371 U.S. 471 (1963)). See Leyva, 2011-NMSC-09, ¶ 2 (stating
that when an investigative officer’s questions are not based upon reasonable suspicion, the
proper remedy is to suppress “evidence gathered as a result of the questioning”); see also id.
¶ 10 (stating “[w]here evidence has been obtained as a result of questions not justified under
the Fourth Amendment, suppression of that evidence is the proper remedy”). On appeal, the
State’s argument is limited to defending the propriety of the questions asked by Deputy
Allen. The State does not argue that the evidence that led to Defendant’s conviction did not
result from the exploitation of his illegal detention, or maintain specifically that it derived
from something other than the impermissible questions themselves. Nor did it challenge the
district court’s determination that Defendant’s conviction must be reversed if the questions
are determined to be constitutionally impermissible. We do not address issues or questions
unraised by litigants. See State v. Bent, 2013-NMCA-108, ¶ 27, 328 P.3d 677 ([W]e
disregard . . . issue[s] . . . not raised on appeal.”

{20} Here, the entirety of Deputy Allen’s testimony leading to Defendant’s arrest was
admitted into evidence during trial, including that regarding events that transpired after the
improper questions were asked and during the illegal detention. As Deputy Allen’s testimony
constituted the sole basis for the metropolitan court’s determination of Defendant’s guilt,
Defendant’s conviction must be reversed.

CONCLUSION

{21}   The order of the district court is affirmed.

{22}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

I CONCUR:



____________________________________
MICHAEL E. VIGIL, Judge


                                               9
JONATHAN B. SUTIN, Judge (specially concurring).

SUTIN, Judge (specially concurring).

{23}    I concur but add the following thoughts.

{24} The Opinion’s analysis of whether Defendant properly invoked the state constitution
indirectly permits a result without having to outright reject present preservation
jurisprudence. It is too bad that we must resort to this indirect approach to reach a just result.
I fully agree with what the Opinion states in its footnote 2. It is time to hold that in search
and seizure cases our courts will automatically examine whether relief under Article II,
Section 10 of the New Mexico Constitution should be available whenever it appears that
relief is unavailable under the Fourth Amendment.

{25} Insofar as the questioning about grenades, rocket launchers, and dead bodies is
concerned, no one, neither Deputy Allen or Defendant, nor the metropolitan court, thought
that the questioning was intended to relate to whether Defendant may have had such
unlawful items in his vehicle. Furthermore, the officer testified that he had learned the
questioning technique in “interviews and interrogation school” and that he had used similar
types of questions in other traffic stop DWI investigations. Assuming, without deciding, that
questioning to ascertain truthfulness in DWI (alcohol or drugs) investigations might under
some particular circumstance be a legitimate investigatory process, the failure here was
Deputy Allen’s complete failure to lay an adequate foundation in that regard.

{26} Again, assuming, without deciding whether questions related to telling the truth in
a DWI investigation might be legitimate and not constitute an unlawful expansion of the
investigation, it appears to me that an officer would have to show a court that the questioning
was grounded in a particular skill, knowledge, experience, education, and perhaps even
science, and that the questioning was likely to give an indication of truthfulness that would
assist the officer in his or her investigation.

                                                __________________________________
                                                JONATHAN B. SUTIN, Judge




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