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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                       NO. 29,284

 5 MICHAEL SAUCEDO,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 Jerry H. Ritter, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Susan Roth, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                              MEMORANDUM OPINION

17 KENNEDY, Judge.

18        Defendant is appealing from a district court judgment and sentence entered after

19 Defendant pled guilty to trafficking methamphetamine, specifically reserving [RP 76]

20 the right to challenge the denial of his motion to suppress. We issued a calendar

21 notice proposing to affirm, and Defendant has responded with a memorandum in
 1 opposition. We affirm.

 2        Defendant’s memorandum in opposition continues to challenge the denial of

 3 his motion to suppress and the rejection of his argument that the patdown was not

 4 justified. We will not overturn the trial court's ruling on a motion to suppress if it is

 5 supported by substantial evidence. See State v. Galloway, 116 N.M. 8, 9, 859 P.2d

 6 476, 477 (Ct. App. 1993). In making this determination, we review the facts in the

 7 light most favorable to the trial court's ruling. Id. Nevertheless, we conduct a de novo

 8 review on the ultimate issue concerning the reasonableness of an alleged constitutional

 9 violation. State v. Flores, 1996-NMCA-059, ¶ 6, 122 N.M. 84, 920 P.2d 1038.

10        “Police may initiate a protective patdown search for weapons if they have

11 specific and articulable facts which they contend support their assessment of danger.

12 The search must be limited to that which is necessary for the discovery of weapons

13 which might be used to harm the officer or others nearby.” State v. Pierce,

14 2003-NMCA-117, ¶ 9, 134 N.M. 388, 77 P.3d 292 (internal quotation marks and

15 citations omitted). The purpose of a frisk is to allow an officer to conduct an

16 investigation without fear of violence. See State v. Ingram, 1998-NMCA-177, ¶ 6,

17 126 N.M. 426, 970 P.2d 1151.

18        Here, Sergeant David Hunter testified that he made a routine traffic stop of

19 Defendant’s vehicle based on loud music. [RP 81] Sergeant Hunter made contact


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 1 with Defendant and explained to him the reason for the stop, at which time Defendant

 2 informed him that he had a weapon, an AK-47, in the backseat and a loaded magazine

 3 in the front seat. [RP 82] Sergeant Hunter had Defendant step out of the vehicle, but

 4 testified that the door remained open and the gun and ammunition were still within

 5 Defendant’s reach, and he had Defendant move away from the vehicle and toward the

 6 front of the patrol car. [RP 82-83] Sergeant Hunter testified that most people want

 7 to talk about the basis for the stop, but Defendant talked about his weapon, raising

 8 Hunter’s concern. [RP 82] Sergeant Hunter testified that at that point he was very

 9 concerned about Defendant’s proximity to the weapon and that he was concerned for

10 public safety. [RP 83] Sergeant Hunter testified that Defendant was nervous, and he

11 believed that Defendant was trying to distract him, perhaps from another weapon in

12 the vehicle or on his person. [RP 83] A patdown then ensued. [RP 83] The district

13 court concluded that the patdown was reasonable based on the presence of the weapon

14 and on Defendant’s unusual behavior. [RP 89]

15        Notwithstanding Defendant’s attempt to isolate each of the factors noted by

16 Sergeant Hunter to justify the patdown, we simply disagree with him on the issue of

17 reasonableness, particularly with respect to the access to the AK47; Hunter’s

18 testimony indicates that he was not just concerned with the AK47, but whether that

19 weapon and Defendant’s behavior indicated that he might have a separate weapon on


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 1 his person. [RP 83] Nor is this a case where the officer was relying solely on

 2 nervousness. In balancing the threat posed to Sergeant Hunter’s safety against

 3 Defendant’s right to be free from arbitrary interference, see State v. Vandenberg,

 4 2003-NMSC-030, ¶ 23, 134 N.M. 566, 81 P.3d 19, we believe that Sergeant Hunter’s

 5 testimony indicates that the patdown was justified in this case.

 6        In Vandenberg, ¶¶ 24-25, a case setting out broad guidelines for analyzing

 7 protective frisks during routine traffic stops, the Supreme Court cited approvingly to

 8 this Court’s opinion in State v. Chapman, 1999-NMCA-106, ¶¶ 13-18, 127 N.M. 721,

 9 986 P.2d 1122, which upheld a protective frisk after a stop for a seat belt violation

10 because the officer "reasonably believed that [the d]efendant might be armed and

11 dangerous." Id. ¶ 18. Here, Sergeant Hunter did not just suspect Defendant was

12 armed, but knew that he had a military assault weapon, with a loaded magazine close

13 by.   Like Chapman, Sergeant Hunter proceeded incrementally before frisking

14 Defendant, and during this time observed Defendant’s nervous and unusual behavior.

15 See Vandenberg, 2003-NMSC-030, ¶¶ 26-30. Importantly, as set forth above,

16 Sergeant Hunter articulated the reasons he felt a threat to officer and public safety

17 under these circumstances. See id., ¶ 31 (endorsing view that officer’s articulation of

18 their interpretation of a suspect’s behavior may provide justification for the patdown).

19 In summary, we defer to the district court’s determination on Sergeant Hunter’s


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1 credibility and the finding that Defendant’s behavior was “unusual,” [RP 89] and we

2 believe that the patdown was reasonable under the analysis set forth in Vandenberg.

3       For the reasons set forth above, we affirm.

4       IT IS SO ORDERED.
5                                       ___________________________________
6                                       RODERICK T. KENNEDY, Judge

7 WE CONCUR:



8 ___________________________
9 MICHAEL E. VIGIL, Judge



10 ___________________________
11 ROBERT E. ROBLES, Judge




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