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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                          NO. 27,507

 5 MIGUEL ANGEL JASSO,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   James W. Grayson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Eleanor Brogan, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant
18                              MEMORANDUM OPINION

19 VIGIL, Judge.

20        Defendant was arrested on an outstanding municipal warrant, and during a

21 pat-down incident to being booked into jail, a baggy of cocaine was found in

22 Defendant’s sock.     The warrant was discovered during an encounter between
 1 Defendant and Officer Solis after Defendant produced his identification for Officer

 2 Solis. Defendant’s motion to suppress was denied by the district court after a hearing.

 3 Defendant thereupon entered into a conditional plea of guilty to possession of a

 4 controlled substance, reserving his right to appeal the denial of his motion to suppress,

 5 and Defendant now appeals. We hold that Defendant was seized by Officer Solis

 6 without a reasonable suspicion when Defendant produced his identification for Officer

 7 Solis. We therefore reverse the district court.

 8 FACTS

 9        The only witness who testified at the hearing on the motion to suppress was

10 Officer Solis of the Las Cruces Police Department, and the material facts are

11 undisputed. Officer Solis was in uniform and on patrol in his marked police car when

12 he saw Defendant walking through a vacant lot at approximately 8:53 a.m. Although

13 he did not observe any criminal activity and he was not investigating any crime,

14 Officer Solis advised central control he was going to stop and talk to him. Officer

15 Solis pulled up behind Defendant, got out of his police car, called out to Defendant,

16 and identified himself as a police officer. Officer Solis approached Defendant and

17 asked if he could talk to Defendant. Defendant answered, “Yeah.” Officer Solis

18 asked Defendant if he could pat down Defendant, “just for my safety since I was

19 going to be talking to him, so that I could feel more comfortable talking to him

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 1 knowing that he didn’t have any weapons on him.” Defendant responded, “Yes. Go

 2 ahead.” Officer Solis’ stated reason for asking to search for weapons was because

 3 Defendant was wearing baggy pants—although he admitted he does not stop everyone

 4 who is wearing baggy pants, and he does not pat down everybody on the street who

 5 is wearing baggy pants. Officer Solis asked Defendant what he was doing and where

 6 he was going. Defendant said he was going to a friend’s house. While conducting the

 7 pat-down search of Defendant, Officer Solis felt a hard object in one of his pockets

 8 and asked Defendant what it was. Defendant responded that it was a cell phone.

 9 Officer Solis asked if he could take the cell phone out of his pocket and, after

10 Defendant said he could, Officer Solis took not only the cell phone, but also cigarettes

11 and a new glass pipe out of Defendant’s pocket and placed them on the hood of his

12 police unit. Although these items were not illegal, and Defendant violated no law,

13 Officer Solis asked Defendant if he had an identification card, and Defendant gave it

14 to him. “I told him that I was just going to write his information down and then I ran

15 him for warrants. I advised him as soon as I got the return from central control, he

16 would be free to go. He could continue on his way.” The check revealed that there

17 was an outstanding arrest warrant from the City of Las Cruces, and Officer Solis

18 arrested Defendant. During the booking process which followed at the jail, a baggy

19 of cocaine was found in Defendant’s sock, which resulted in Defendant being charged

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 1 with one count of felony possession of a controlled substance. Defendant argued in

 2 the district court and continues to assert on appeal that the discovery of the baggy was

 3 the result of a seizure of his person by Officer Solis in violation of the Fourth

 4 Amendment and that its use at trial must be suppressed. On the other hand, the State

 5 argues that suppression is not required because Defendant consented to being stopped,

 6 searched, and in providing his identification to Officer Solis.

 7 ANALYSIS

 8        The applicable principles and standard of review governing this case are well

 9 settled as stated in City of Roswell v. Hudson, 2007-NMCA-034, ¶ 8, 141 N.M. 261,

10 154 P.3d 76:

11               The Fourth Amendment to the United States Constitution protects
12        persons against unreasonable searches and seizures. While a police
13        officer does not need any justification to approach a person and ask that
14        individual questions, when a police officer restrains the person's freedom
15        to walk away, by either physical force or a show of authority, he has
16        ‘seized’ that person. Therefore, if all of the circumstances surrounding
17        the encounter establish that a reasonable person would believe he is not
18        free to leave, the encounter must be scrutinized for its reasonableness
19        under the Fourth Amendment . . . .While we defer to the district court’s
20        factual determinations for substantial evidence, the question of whether
21        Defendant was free to leave, and therefore seized, is a legal question,
22        which we review de novo.

23 (Internal quotation marks and citations omitted). To determine “whether a reasonable

24 person would feel free to leave, courts should look at all of the factual circumstances,


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 1 and specifically consider: (1) the conduct of the police, (2) the person of the individual

 2 citizen, and (3) the physical surroundings of the encounter.” Id. ¶ 9. (internal

 3 quotation marks and citations omitted); see State v. Soto, 2008-NMCA-032, ¶ 6, 143

 4 N.M. 631, 179 P.3d 1239 (“The question of whether the circumstances would have

 5 caused a reasonable person to believe he or she was not free to decline the officers’

 6 requests is a legal inquiry, which we review de novo.”), cert. granted, 2008-

 7 NMCERT-002, 143 N.M. 667, 180 P.3d 674. We conclude that this case is governed

 8 by Soto and hold that Defendant was seized when Officer Solis asked Defendant for

 9 his identification. We do so without deciding whether Defendant was seized by

10 Officer Solis at some earlier time in the encounter.

11        In Soto, two police officers in a marked police car saw the defendant riding his

12 bicycle on a road near a racetrack’s secured area around 2:30 a.m., and the officers

13 decided to see where he was heading. Id. ¶ 1. When the patrol car pulled up next to

14 the defendant’s bicycle, the defendant stopped, dropped something out of his hand,

15 and put his foot on it. Id. The officers introduced themselves and asked the defendant

16 questions concerning where he was going, where he lived, and then asked him for his

17 identification. Id. The defendant produced his driver’s license, and the officers ran

18 a warrant check, discovering that there was a felony warrant for the defendant. Id.

19 After arresting the defendant and placing him in the patrol car, the officers retrieved

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 1 the object the defendant had dropped earlier. Id. ¶ 3. It was a jeweler’s bag

 2 containing methamphetamine, and the defendant was charged with possession of a

 3 controlled substance. Id. ¶¶ 3-4. We concluded that the defendant was seized without

 4 reasonable, individualized suspicion in violation of the Fourth Amendment. Id. ¶ 1.

 5 Answering the state’s argument that the defendant had not submitted to police

 6 authority and was therefore not seized, id. ¶¶ 9-10, we said:

 7        In the present case, the patrol car containing two officers pulled up next
 8        to [the d]efendant’s bicycle, and [the d]efendant submitted to this show
 9        of authority by stopping his bicycle. In addition to the assertion of
10        authority evidenced by the patrol car pulling up next to [the d]efendant,
11        the officers then began questioning [the d]efendant about his activities,
12        asked [the d]efendant for identification, and retained [the d]efendant’s
13        driver's license in order to run a warrant check, all of which, in
14        combination with the lateness of the hour and [the d]efendant’s isolation
15        on the road, conveyed to [the d]efendant that the officers expected [the
16        d]efendant to comply with their requests.

17 Id. ¶ 13.

18        This case is not materially different from Soto. Officer Solis was in uniform

19 and in his marked police car when he decided he was going to stop and talk to

20 Defendant who was walking through a vacant lot. Officer Solis pulled up behind

21 Defendant, got out of his police car, identified himself to Defendant as a police

22 officer. Officer Solis approached Defendant and asked if he could talk to Defendant.

23 Defendant answered affirmatively, but Officer Solis said he first wanted to search


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 1 Defendant, telling Defendant it was “for my safety.” Officer Solis then searched

 2 Defendant, and feeling something hard, asked what it was. When Defendant said it

 3 was a cell phone and Officer Solis said he wanted to take it out of Defendant’s pocket,

 4 he not only took the cell phone, he also took out cigarettes and a glass pipe, and put

 5 all three items on top of the police car. With Defendant’s property on the police car,

 6 Officer Solis asked Defendant for his identification, telling Defendant he wanted to

 7 check for warrants on Defendant. We hold that given what had already taken place,

 8 when Officer Solis put Defendant’s property on the police car, and asked Defendant

 9 for his identification, telling Defendant he wanted to check for warrants, no reasonable

10 person would have come to any conclusion other than that compliance with Officer

11 Solis’ request for identification was expected. The totality of the police conduct in

12 this case communicated to Defendant, as a reasonable person, that he was not free to

13 decline Officer Solis’ request for identification or to terminate the encounter at that

14 time and demand that his identification be returned to him. Our Statement in Soto that

15 “the surrounding circumstances reflected more coercion than mere questioning and

16 a request for identification” applies with equal force to the facts of this case. Id. ¶ 16.

17 In fact, Officer Solis expressly told Defendant he would be “free to go” and that “he

18 could continue on his way” after “I got the return from central control.”

19        Hudson is also quite similar to the facts before us in this case. In Hudson, a

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 1 police officer who was on patrol received a call from one of her neighbors that a

 2 vehicle was parked in their neighborhood which did not belong to anyone in the

 3 neighborhood.     2007-NMCA-034, ¶ 2.          She radioed another police officer at

 4 approximately 11:30 p.m. who was on patrol in the vicinity of the neighborhood and

 5 asked him to investigate. Id. ¶ 3. The officer decided he was going to complete a

 6 field investigation card, which contains personal and descriptive information about the

 7 people at the scene. Id. The officer arrived at the scene in his marked police unit and

 8 saw the vehicle parked on the street, occupied by the defendant and another person.

 9 Id. ¶ 4. The officer pulled up behind the parked vehicle, shined his spotlight into the

10 car, and ran a check on the license plate. Id. The officer then approached the car and

11 asked the occupants what their purpose was in being parked on the street. Id. ¶ 5. The

12 driver said he lived in the house the car was parked in front of, but when the address

13 on his driver’s license did not match the address (the officer had asked for the license

14 to verify his address), the driver said it was really the defendant who lived there. Id.

15 The officer then asked the defendant for his identification, and the defendant told him

16 his name and address but refused to produce his identification. Id. After the

17 defendant refused a third request from the officer to produce his identification, the

18 officer arrested him for obstructing an officer in violation of a city ordinance. Id. ¶

19 6. After analyzing the factual context and existing precedent, we concluded, “[g]iven

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 1 the totality of the circumstances, when [the officer] demanded identification from [the

 2 d]efendant, he was detained in such a way that a reasonable person would not feel free

 3 to leave. We therefore hold that [the d]efendant was seized under the Fourth

 4 Amendment when [the officer] demanded that [the d]efendant produce identification.”

 5 Id. ¶ 14 (citations omitted).

 6        Since Defendant was seized under the Fourth Amendment and it is uncontested

 7 that Officer Solis had no reasonable suspicion of criminal activity on Defendant’s part,

 8 the seizure violated the Fourth Amendment. See State v. Patterson, 2006-NMCA-037,

 9 ¶¶ 15, 16, 139 N.M. 322, 131 P.3d 1286 (explaining that an investigatory detention

10 must be supported by reasonable suspicion of criminal activity and that to justify

11 detention, suspicion must be particular to the individual being detained).

12 Nevertheless, the State argues that discovery of the contraband in Defendant’s sock

13 was sufficiently attenuated from the Fourth Amendment violation to permit its

14 admission into evidence. We disagree. The same argument was made in Soto, and

15 we rejected it. Soto, 2008-NMCA-032, ¶¶ 21-27. We have considered the State’s

16 attempt to distinguish Soto, and we conclude that its arguments are unpersuasive. We

17 therefore hold that the discovery of the outstanding warrant did not dissipate the taint

18 of Defendant’s illegal detention.

19 CONCLUSION

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1       The order of the district court denying Defendant’s motion to suppress is

2 reversed and the case is remanded for further proceedings.

3       IT IS SO ORDERED.



4                                              ________________________________
5                                              MICHAEL E. VIGIL, Judge

6 WE CONCUR:


7 ________________________________
8 JONATHAN B. SUTIN, Judge


 9 ________________________________
10 CELIA FOY CASTILLO, Judge




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