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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                   NO. 29,045

 5 JOHN SUSKEY,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals from an order of the district court denying his motion to

19 suppress and remanding to magistrate court for imposition of the sentence for
 1 Defendant’s DWI conviction. [RP 85] We issued a proposed notice of summary

 2 disposition proposing to affirm. Defendant filed a memorandum in opposition. We

 3 have considered Defendants arguments but remain unpersuaded. We affirm.

 4        In his memorandum in opposition, Defendant argues that the scope of the traffic

 5 stop leading to his arrest for DWI violated his right to be free from unreasonable

 6 searches and seizures under both the United States and New Mexico Constitutions.

 7 [MIO 3] Defendant contends that while the initial traffic stop was permissible, the

 8 officer illegally expanded the scope of the stop by asking him to step out of the car

 9 because there were no specific, articulable facts from which the officer could have

10 developed a reasonable suspicion that he was driving while intoxicated. [MIO 7]

11 Thus, Defendant argues, his motion to suppress evidence was erroneously denied by

12 the district court. [MIO 2-3]

13        We review questions of law de novo. State v. Diaz, 2007-NMCA-026, ¶ 7, 141

14 N.M. 223, 153 P.3d 57. The standard of review for suppression rulings is “whether

15 the law was correctly applied to the facts, viewing them in a manner most favorable

16 to the prevailing party.” State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973

17 (1994) (internal quotation marks and citation omitted). An officer who makes a valid

18 investigatory stop may briefly detain those he suspects of criminal activity to verify

19 or quell that suspicion. Id. A determination of whether a peace officer conducted a


                                             2
 1 permissible detention of a defendant ultimately depends on whether his actions were

 2 reasonable under Fourth Amendment standards. Id.

 3        To expand the scope of a traffic stop, an officer must look at the totality of the

 4 circumstances and form a reasonable suspicion based on objective facts that the

 5 individual in question is, or is about to be, engaged in criminal activity. State v.

 6 Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964. Reasonable suspicion

 7 of criminal activity sufficient to justify detention must be based upon specific

 8 articulable facts. State v. Lowe, 2004-NMCA-054, ¶ 12, 135 N.M. 520, 90 P.3d 539.

 9 The scope of activities permitted during an investigative detention must be reasonably

10 related to the circumstances that initially justified the stop. State v. Romero, 2002-

11 NMCA-064, ¶ 10, 132 N.M. 364, 48 P.3d 102.

12        Here, Defendant argues that the officer impermissibly expanded the scope of

13 the traffic stop by asking him to exit the vehicle. [MIO 4] According to the State’s

14 evidence, a vehicle matching the description of Defendant’s vehicle had been reported

15 twice by other motorists as a possible drunk driver. [RP 79] The officer had been

16 informed that a red passenger car had veered off the road, crashed, and had then

17 driven away. [RP 83] Statements by eyewitness citizen-informants are presumed to

18 be reliable because the informant has nothing to gain by fabrication. State v.

19 Contreras, 2003-NMCA-129, ¶ 10, 134 N.M. 503, 79 P.3d 1111. This Court has held


                                               3
 1 that anonymous citizen’s eyewitness account of an intoxicated man, combined with

 2 a description and last-seen location of the vehicle, provided sufficient information to

 3 form a reasonable suspicion that the defendant was driving while intoxicated. Id. In

 4 this case, the description and location of Defendant’s vehicle, combined with the flat

 5 tire, was enough to corroborate the anonymous tips.

 6        The officer who pulled Defendant over had a reasonable suspicion based upon

 7 the above-listed facts that Defendant may have left the scene of an accident and may

 8 have been driving while intoxicated. Further, the officer could plainly see that

 9 Defendant was driving with a flat tire. It was reasonable for the officer to order

10 Defendant out of the vehicle to ascertain whether he had been hurt, was intoxicated,

11 or had left the scene of the reported accident. Thus, the purpose of the investigative

12 detention was reasonably related to the circumstances justifying the initial stop.

13        The investigative methods employed during an investigatory stop should be the

14 least intrusive means reasonably available to verify or dispel the officer’s suspicion.

15 State v. Taylor, 1999-NMCA-022, ¶ 25, 126 N.M. 569, 973 P.2d 246. The State has

16 the burden of showing that the seizure was a justified exception to the warrant

17 requirement. State v. Gutierrez, 2005-NMCA-015, ¶ 11, 136 N.M. 779, 105 P.3d 332.

18 Defendant argues that the officer could have determined whether he had left the scene

19 of an accident, was injured, or was driving under the influence using less intrusive


                                              4
 1 means. [MIO 5] However, the officer had a valid concern that Defendant could drive

 2 off, possibly endangering himself or other motorists. [RP 83] Therefore, asking

 3 Defendant to step out of the vehicle was the most expedient and least intrusive means

 4 available for the officer to quell or confirm his suspicions. Defendant’s detention was

 5 not unreasonably lengthy. Once out of the vehicle, the officers on the scene could

 6 ascertain Defendant’s physical signs of intoxication and conduct field sobriety tests

 7 on that basis.

 8        We hold that the State met its burden of showing that the brief seizure of

 9 Defendant was a justifiable exception to the warrant requirement.

10        Defendant also appears to argue in his memorandum in opposition that the

11 search of his vehicle violated the New Mexico Constitution. [MIO 10-12] However,

12 the search of Defendant’s vehicle is not part of this appeal and was not addressed in

13 the motion to suppress or the order of remand below. [RP 85] We therefore do not

14 address Defendant’s arguments relating to the search of his vehicle.

15        IT IS SO ORDERED.



16                                                ________________________________
17                                                CELIA FOY CASTILLO, Judge




                                              5
1 WE CONCUR:



2 ________________________________
3 JAMES J. WECHSLER, Judge



4 ________________________________
5 LINDA M. VANZI, Judge




                                     6
