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                                                          New Mexico Compilation
                                                        Commission, Santa Fe, NM
                                                       '00'04- 08:41:06 2013.05.20
Certiorari Denied, April 3, 2013, No. 34,053

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-056

Filing Date: February 18, 2013

Docket No. 30,370

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

BRIAN HICKS,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellant

Bennett J. Baur, Acting Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                        OPINION

WECHSLER, Judge.

{1}    This case presents the question of whether an officer’s knowledge that the registered
owner of a vehicle has a revoked license provides reasonable suspicion to stop the vehicle
when the officer makes no effort to determine, prior to the stop, whether the driver of the
vehicle is the registered owner. The State appeals from the district court’s grant of

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Defendant Brian Hicks’s motion to suppress. See NMSA 1978, § 39-3-3(B)(2) (1972)
(permitting the state to take an interlocutory appeal from an order granting a defendant’s
motion to suppress). The State contends that the district court erred in concluding that the
stop of Defendant’s vehicle was not supported by reasonable suspicion and thus violated the
New Mexico Constitution. In State v. Candelaria, which was decided after the district
court’s decision in this case, we held that a stop effected on the basis of similar information
did not violate the United States Constitution because it was supported by reasonable
suspicion. 2011-NMCA-001, ¶ 15, 149 N.M. 125, 245 P.3d 69. We now hold that the same
result is warranted under the New Mexico Constitution. Accordingly, we reverse.

BACKGROUND

{2}     Defendant was charged by criminal information with driving while under the
influence of intoxicating liquor (DWI), a fourth or subsequent offense, and driving with a
suspended or revoked license. Defendant filed a motion to suppress, arguing inter alia that
the stop of his vehicle was not supported by reasonable suspicion because the arresting
officer did not confirm, prior to the stop, that Defendant was the registered owner of the
vehicle. The parties stipulated to the following facts at the suppression hearing:

       1.      . . . Defendant’s motor vehicle was being driven in San Juan County,
               New Mexico.

       2.      Officer [Matt] Costen observed the motor vehicle and “ran” the
               license plate of the vehicle through the New Mexico Motor Vehicle
               Department (“MVD”).

       3.      The information from the MVD came back with the fact that the
               driving privileges of the registered owner of the motor vehicle had
               been revoked.

       4.      Officer Costen made no effort to visually observe the driver prior to
               the stop.

       5.      Based on the revocation information from the MVD, Officer Costen
               stopped the motor vehicle.

       6.      Upon contacting the driver, Officer Costen discovered that . . .
               Defendant was driving the vehicle, that . . . Defendant was the owner
               of the vehicle who had a revoked license[,] and that . . . Defendant
               appeared intoxicated.

{3}    The district court orally granted Defendant’s motion to suppress. The State filed a
motion to reconsider. The State noted that there did not appear to be any New Mexico case
law on point, but cited numerous cases from other jurisdictions supporting its position that

                                              2
the stop of Defendant’s vehicle was supported by reasonable suspicion and thus did not
violate the United States or New Mexico Constitutions. In response, Defendant argued the
stop violated the New Mexico Constitution because New Mexico affords greater protection
than the United States Constitution against unreasonable searches and seizures involving
automobiles.

{4}      The district court denied the State’s motion. In a written order, dated March 25,
2010, the district court acknowledged that “[c]ase law from other [s]tates could be construed
to mean that Officer Costen had . . . reasonable suspicion to stop Defendant’s vehicle.”
However, the district court held that the stop violated the New Mexico Constitution. The
district court quoted State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 15, 130 N.M. 386, 25
P.3d 225, for the proposition that the New Mexico Constitution affords an “extra layer of
protection from unreasonable searches and seizures involving automobiles.” The district
court noted it might have upheld the stop if the officer had observed the driver before
stopping the vehicle to determine whether he matched the basic description of the registered
owner.

MOTION TO SUPPRESS

{5}      In reviewing a motion to suppress, “[w]e review factual determinations by the
[district] court under a substantial evidence standard and legal questions de novo.” State v.
Brusuelas, 2009-NMCA-111, ¶ 5, 147 N.M. 233, 219 P.3d 1 (internal quotation marks and
citation omitted). The question on appeal is whether the officer had reasonable suspicion
to stop Defendant’s vehicle solely on the basis of information that the registered owner of
the vehicle had a revoked license. Because this is a legal question, our review is de novo.
See id.

{6}     The State contends that Candelaria is controlling. In Candelaria, we considered
whether a traffic stop violated the Fourth Amendment of the United States Constitution
when, at the time they effected the stop, the police officers “knew only that the [vehicle] was
registered to [a person], whose license had been suspended.” 2011-NMCA-001, ¶¶ 9, 11.
We recognized this question as one of first impression in New Mexico and elected to follow
“an overwhelming majority of jurisdictions” in holding the stop was supported by reasonable
suspicion and thus did not violate the Fourth Amendment. Id. ¶¶ 11, 13. Defendant
contends that Candelaria is not controlling because, in addition to knowing that the
registered owner’s license had been suspended, the police officers in Candelaria observed
the vehicle under suspicious circumstances prior to the stop.

{7}     It is true that, in Candelaria, the police officers observed the vehicle in which the
defendant was driving “under suspicious circumstances.” Id. ¶ 1. Specifically, the police
observed that, after they pulled into a parking lot, the vehicle “sped away.” Id. ¶ 2. A
careful reading of Candelaria reveals this distinction is one without a difference, however,
as we did not consider the “suspicious circumstances” in concluding the officers had
reasonable suspicion to effect the stop. We explained:

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       When police observe a vehicle registered to an owner whose license has been
       suspended, it is reasonable to conclude that the driver is the registrant—that
       is, until officers become aware of facts to contradict their assumption. The
       concept of reasonable suspicion has always embraced a certain degree of
       uncertainty. In the case before us, because [the officers] were aware of no
       facts to contradict their inference that [the person] was driving the car for
       which he was the registered owner, we follow the approach of the majority
       of jurisdictions and hold that police possessed reasonable suspicion to
       [e]ffect a traffic stop.

Id. ¶ 15. We noted that “[o]ur holding should come as no surprise” because “New Mexico’s
civil law has long recognized a presumption that, in the absence of evidence to the contrary,
the registered owner of a vehicle is that vehicle’s driver.” Id.

{8}     In deciding Defendant’s motion to suppress, the district court did not have the benefit
of our decision in Candelaria. Without any clear authority from either this Court or our
Supreme Court, the district court declined to follow the out-of-state cases cited by the State
and held that suppression was warranted under the New Mexico Constitution. On appeal,
Defendant focuses entirely on distinguishing Candelaria, which is premised on a federal
constitutional analysis. Defendant does not argue the district court’s decision should be
upheld under the New Mexico Constitution. We nonetheless consider the issue because it
was the express basis for the district court’s ruling. We do not normally consider arguments
that are not developed on appeal. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M.
761, 228 P.3d 1181 (explaining that this Court does not review unclear or undeveloped
arguments); see, e.g., State v. Dickert, 2012-NMCA-004, ¶ 46, 268 P.3d 515 (declining to
address argument inadequately developed by the defendant), cert. denied, 2011-NMCERT-
012, 291 P.3d 158. However, because the order being appealed from is based on a state
constitutional analysis, we will review the issue under the New Mexico Constitution.

{9}     The United States and New Mexico Constitutions “provide overlapping protections
against unreasonable searches and seizures[.]” State v. Rowell, 2008-NMSC-041, ¶ 12, 144
N.M. 371, 188 P.3d 95; see U.S. Const. amend. IV (guaranteeing “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures”); N.M. Const. art. II, § 10 (“The people shall be secure . . . from unreasonable
searches and seizures[.]”). Our Supreme Court has adopted an interstitial approach for
reviewing constitutional questions under federal and state law. See State v. Gomez, 1997-
NMSC-006, ¶ 21, 122 N.M. 777, 932 P.2d 1. Under this approach, we first ask “whether the
right being asserted is protected under the federal constitution. If it is, then the state
constitutional claim is not reached. If it is not, then the state constitution is examined.” Id.
¶ 19.

{10} We have already determined that, under Candelaria, Defendant’s rights are not
protected under the United States Constitution. We now examine Defendant’s rights under
the New Mexico Constitution. Gomez instructs that we may “diverge from federal precedent

                                               4
for three reasons: a flawed federal analysis, structural differences between state and federal
government, or distinctive state characteristics.” 1997-NMSC-006, ¶ 19. We find no flaws
in the federal analysis undertaken in Candelaria; nor do we perceive any structural
differences between state and federal government relevant to the question presented. If we
were to reach a different result, it would be because of distinctive state characteristics.

{11} “It is well-established that Article II, Section 10 provides more protection against
unreasonable searches and seizures than the Fourth Amendment.” State v. Leyva, 2011-
NMSC-009, ¶ 51, 149 N.M. 435, 250 P.3d 861. Our Supreme Court has specifically
recognized that “[t]he extra layer of protection from unreasonable searches and seizures
involving automobiles is a distinct characteristic of New Mexico constitutional law.”
Cardenas-Alvarez, 2001-NMSC-017, ¶ 15.

{12} In Cardenas-Alvarez, the case relied upon by the district court in the present case,
our Supreme Court held that a federal agent violated the New Mexico Constitution by
referring the defendant to a secondary inspection area after a traffic stop at a permanent
border checkpoint in the absence of reasonable suspicion. Id. ¶¶ 3, 21. Our Supreme Court
held that the agent’s actions did not violate the United States Constitution because “[u]nder
federal law, [the d]efendant’s detention constituted a routine border checkpoint stop and
therefore need not have been supported by suspicious circumstances.” Id. ¶ 7. Importantly,
our Supreme Court did not hold that reasonable suspicion was present under federal law and
lacking under state law; instead, it held that reasonable suspicion was required under state
law and not required under federal law. See id. ¶ 49 (Baca, J., concurring in the result).

{13} In State v. Ochoa, we refused to follow the lead of the United States Supreme Court
in upholding pretextual traffic stops. 2009-NMCA-002, ¶ 1, 146 N.M. 32, 206 P.3d 143.
We “depart[ed] from federal constitutional law . . . because we [found] the federal analysis
unpersuasive and incompatible with our state’s distinctively protective standards for searches
and seizures of automobiles.” Id. ¶ 12. We were especially concerned about the mechanical
nature of the federal rule because our Constitution requires “that searches and seizures be
reasonable based on the particular facts of each case.” Id. ¶ 26. We noted that at least two
other states, Washington and Delaware, had interpreted their state constitutions to provide
greater protection than the federal constitution in the context of pretextual traffic stops. See
id. ¶¶ 27-28.

{14} “The fact that we have departed from the analysis used to determine whether a
violation of the Fourth Amendment occurred in certain contexts, however, does not require
us to do so in all contexts.” Leyva, 2011-NMSC-009, ¶ 51. We must conduct a “de novo
review of the law[.]” Id. In the context of a non-pretextual traffic stop, we require that, to
satisfy Article II, Section 10, a police officer must have “reasonable suspicion of criminal
activity or probable cause that the traffic code has been violated.” Ochoa, 2009-NMCA-002,
¶ 25. Driving with a revoked license is a criminal offense. See NMSA 1978, § 66-5-39(A)
(1993) (“Any person who drives a motor vehicle on any public highway of this state at a
time when his privilege to do so is suspended or revoked and who knows or should have

                                               5
known that his license was suspended or revoked is guilty of a misdemeanor [.]”). Thus, the
standard in this case is reasonable suspicion.

{15} “In determining whether reasonable suspicion exists, we examine the totality of the
circumstances.” Cardenas-Alvarez, 2001-NMSC-017, ¶ 21. “Reasonable suspicion must
be based on specific articulable facts and the rational inferences that may be drawn from
those facts.” Id. (internal quotation marks and citation omitted). “Unsupported intuition and
inarticulate hunches are not sufficient.” State v. Garcia, 2009-NMSC-046, ¶ 43, 147 N.M.
134, 217 P.3d 1032 (internal quotation marks and citation omitted). “The purpose of
requiring objectively reasonable suspicion based on the circumstances is to prevent and
invalidate police conduct based on hunches, which are, by definition, subjective.” Ochoa,
2009-NMCA-002, ¶ 25 (internal quotation marks and citation omitted).

{16} In this case, the officer stopped Defendant’s vehicle after learning that the license of
the registered owner of the vehicle had been revoked. The officer did not have a subjective
hunch that Defendant was breaking the law; rather, he had a particularized suspicion that
Defendant was breaking the law by driving with a revoked license. The officer could have
been incorrect; he could have discovered that Defendant was not the registered owner and
was not otherwise breaking the law. But, as we noted in Candelaria, and we believe equally
applicable under a state constitutional analysis, “[t]he concept of reasonable suspicion has
always embraced a certain degree of uncertainty.” 2011-NMCA-001, ¶ 15.

{17} In Gomez, our Supreme Court determined that the New Mexico Constitution provides
broader protection for warrantless searches of automobiles, holding that they required a
showing of exigent circumstances. 1997-NMSC-006, ¶¶ 39-40. In Ochoa, we said that the
Gomez Court “determined that where there is no reasonable basis to believe that the delay
in obtaining a search warrant will jeopardize legitimate law enforcement interests, there is
no justification for an exception to the warrant requirement.” Ochoa, 2009-NMCA-002, ¶
22 (citing Gomez, 1997-NMSC-006, ¶¶ 41-43). In this case, we believe that it would
potentially jeopardize legitimate law enforcement interests to require police officers to
determine, prior to effecting a traffic stop, whether the driver of a vehicle matches the basic
description of the registered owner. In upholding a stop similar to the stop at issue here, the
Indiana Supreme Court explained:

       We agree with the [s]tate that requiring the officer to verify the driver of the
       vehicle strikes against basic principles of safety because it puts the onus on
       the officer to maneuver himself into a position to clearly observe the driver
       in the midst of traffic. In addition, we acknowledge the difficulty that the
       driver verification requirement would impose on officers during late night
       hours and in situations where car windows are darkly tinted[.]

Armfield v. State, 918 N.E.2d 316, 322 (Ind. 2009) (alteration, internal quotation marks, and
citation omitted); see also State v. Vance, 790 N.W.2d 775, 782 (Iowa 2010) (“[T]o forbid
the police from relying on such an inference [that the driver of a vehicle is the registered

                                              6
owner] would seriously limit an officer’s ability to investigate suspension violations because
there are few, if any, additional steps the officer can utilize to establish the driver of a
vehicle is its registered owner.”). Armfield and Vance were based on the United States
Constitution, but we believe the policy considerations underlying these decisions are relevant
to this case. Requiring police officers to do more than what the officer did here could
potentially jeopardize the legitimate law enforcement interest of removing drivers with
revoked or suspended licenses from our roadways.

{18} We agree with the State that the best and least intrusive way for the officer to confirm
or dispel his suspicion that the driver of the vehicle he observed had a revoked license was
through an investigatory traffic stop. See State v. Affsprung, 115 N.M. 546, 550, 854 P.2d
873, 877 (Ct. App. 1993) (“While it is true that reasonable suspicion does not provide carte
blanche, it does allow detention sufficient to verify or dispel the circumstances giving rise
to the suspicion.”). In holding that the officer had reasonable suspicion to stop Defendant’s
vehicle, we are not adopting a bright-line rule of the type we criticized in Ochoa. 2009-
NMCA-002, ¶ 26. Instead, consistent with our precedent, we base our conclusion on the
totality of the circumstances presented in this case. Notably, and unlike in Ochoa, we have
not located any case in which a state court has concluded that, under its constitution, an
officer lacks reasonable suspicion to stop a vehicle on the basis of the same limited
information the officer here possessed. In Candelaria, we explained that we found only one
case “that still bears the force of law” supporting the argument that reasonable suspicion is
lacking on these facts. 2011-NMCA-001, ¶ 12. That case, State v. Cerino, 117 P.3d 876,
878 (Idaho Ct. App. 2005), was premised on a federal constitutional analysis.

{19} We conclude that, in this circumstance, the result under the New Mexico Constitution
is the same as under the United States Constitution. Like the officers in Candelaria, the
officer here “possessed reasonable suspicion to believe that [Defendant’s] vehicle, as well
as its occupant . . . were subject to seizure.” 2011-NMCA-001, ¶ 16. Accordingly, the stop
of Defendant’s vehicle did not violate the New Mexico Constitution.

CONCLUSION

{20} We reverse the district court’s grant of Defendant’s motion to suppress and remand
for further proceedings consistent with this opinion.

{21}   IT IS SO ORDERED.

                                              ____________________________________
                                              JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

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____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Hicks, No. 30,370

CONSTITUTIONAL LAW
Fourth Amendment
Suppression of Evidence

CRIMINAL LAW
Driving While Intoxicated
Motor Vehicle Violations

CRIMINAL PROCEDURE
Motion to Suppress
Reasonable Suspicion
Search and Seizure
Warrantless Search




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