 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                                   NO. 31,112

10 LOUIS REED,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 George P. Eichwald, District Judge

14 Gary K. King, Attorney General
15 Ann M. Harvey, Assistant Attorney General
16 Santa Fe, NM

17 for Appellant

18 Jacqueline L. Cooper, Acting Chief Public Defender
19 Kathleen T. Baldridge, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 VANZI, Judge.
 1        The State of New Mexico appeals the district court’s grant of Defendant Louis

 2 Reed’s motion to suppress evidence. This Court’s first notice of proposed summary

 3 disposition proposed to reverse. After Defendant filed a persuasive memorandum in

 4 opposition, we filed a second notice, proposing to affirm.          The State filed a

 5 memorandum in opposition to proposed summary affirmance, which we have given

 6 due consideration. Unpersuaded, we affirm the district court’s grant of Defendant’s

 7 motion to suppress evidence.

 8        Issue: The State asks whether it was reasonable in the circumstances for a

 9 police officer to stop and pat down Defendant, in the course of which the officer

10 discovered methamphetamine. The State’s memorandum in opposition argues that

11 both the investigatory detention of Defendant and the subsequent protective frisk were

12 proper.    We agree with the State that the circumstances in which the officer

13 encountered Defendant—at around 3:00 a.m. in the vicinity of a report of a suspicious

14 person, and generally matching the description of the reported person [MIO 2-3]—

15 justified an investigatory detention under our case law. See, e.g., State v. Watley, 109

16 N.M. 619, 624, 788 P.2d 375, 380 (Ct. App. 1989) (approving late-night investigatory

17 stop in the general vicinity of a crime even though the defendant was of a different

18 ethnicity than that reported and was sitting in a truck rather than walking).




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 1        We disagree with the State, however, regarding the subsequent search of

 2 Defendant. Applying the standard of review where we consider “whether the law was

 3 correctly applied to the facts, viewing them in a manner most favorable to the

 4 prevailing party,” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856

 5 (internal quotation marks and citation omitted), we disagree with the State’s argument

 6 that the officer had “a sufficient degree of articulable suspicion that [Defendant was]

 7 both armed and presently dangerous.” State v. Vandenberg, 2003-NMSC-030, ¶ 22,

 8 134 N.M. 566, 81 P.3d 19 (emphasis omitted).

 9        Although Defendant’s behavior was somewhat odd in the manner he

10 approached the patrol car and in initially placing the items in his hands on the ground

11 instead of on the hood of the patrol car as instructed, [MIO 3] we do not see anything

12 suggesting that he might have been armed and presently dangerous. We note that any

13 apprehension that the officer initially might have had about the items in Defendant’s

14 hands had been dispelled at the time he conducted the pat-down. We also note that

15 no specific crime had been reported, only a suspicious person who might have been

16 trespassing on private property. [MIO 2-3] In these circumstances, where subtleties

17 of the facts as viewed by the district court, including the officer’s credibility, were

18 potentially dispositive of the outcome, we conclude that “viewing [the facts] in a

19 manner most favorable to the prevailing party,” and where “[a]ll reasonable inferences


                                              3
1 in support of the district court’s decision will be indulged in, and all inferences or

2 evidence to the contrary will be disregarded,” affirmance of the district court is

3 required. Jason L., 2000- NMSC-018, ¶ 10 (alteration, internal quotation marks, and

4 citation omitted).

5        For the reasons stated above, we affirm the district court.

6        IT IS SO ORDERED.

7                                         __________________________________
8                                         LINDA M. VANZI, Judge

9 WE CONCUR:



10 _________________________________
11 JAMES J. WECHSLER, Judge



12 _________________________________
13 RODERICK T. KENNEDY, Judge




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