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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 33,716

 5 DANE HUNT,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Walter Hart, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Kathleen T. Baldridge, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 GARCIA, Judge.
 1   {1}   Defendant Dane Hunt appeals the district court’s conditional discharge order

 2 finding him guilty of trafficking heroin by distribution pursuant to a conditional plea

 3 agreement. Defendant challenges the denial of his motion to suppress evidence

 4 following a controlled buy of heroin and his warrantless arrest. We conclude that the

 5 evidence established probable cause to believe Defendant committed the crime of

 6 trafficking heroin by distribution during the controlled buy, and exigent circumstances

 7 also supported Defendant’s subsequent warrantless arrest. As a result, we affirm the

 8 district court’s denial of Defendant’s motion to suppress the evidence seized in this

 9 case.

10 BACKGROUND

11   {2}   A confidential informant (CI) met with Detective Irwin and indicated he could

12 purchase heroin from David Rosales (Rosales). Detective Irwin met with the CI at the

13 location of the controlled buy and the CI contacted Rosales by telephone. The CI then

14 informed Detective Irwin that Rosales would be arriving at the location shortly and

15 driving a red, two-door vehicle. Prior to the controlled buy, Detective Irwin searched

16 the CI for any illegal substances or currency and found neither. Detective Irwin

17 indicated he was present with the CI at all times prior to the arrival of the red vehicle.

18 The red two-door vehicle arrived as described, and Detective Irwin observed that it

19 contained two individuals, Rosales (the driver) and Defendant (the front-seat

                                               2
 1 passenger). The CI exited Detective Irwin’s vehicle and walked 75 to 100 yards to the

 2 passenger side of the red vehicle. Detective Irwin observed the CI engage in a

 3 conversation with occupants of the red vehicle and also observed hand movements

 4 and gestures within the vehicle between the CI and the vehicle’s occupants. After the

 5 controlled buy was completed, the CI stepped away from the red vehicle and gave

 6 Detective Irwin a pre-determined hand signal. The police team that was working with

 7 Detective Irwin then stopped the red vehicle as it left the scene and arrested Rosales

 8 and Defendant.

 9   {3}   Police seized the following evidence: (1) the controlled buy money retrieved

10 from the front pants pocket of Rosales, (2) a package of heroin recovered in plain

11 sight from the console of the red vehicle, and (3) a package of heroin obtained from

12 the CI after the controlled buy transaction. Defendant moved jointly with Rosales to

13 suppress all evidence seized, contending that he was arrested without a warrant and

14 without the probable cause and exigent circumstances needed to conduct a warrantless

15 arrest. After a hearing on the matter, the district court issued a written order denying

16 the motion to suppress.

17   {4}   Defendant then entered into a conditional plea of guilt for the crime of

18 trafficking heroin by distribution in which Defendant admitted to conspiracy with

19 Rosales. Specifically, Defendant admitted that he and Rosales agreed together to


                                              3
 1 commit, intended to commit, and in fact committed, trafficking heroin by distribution.

 2 In the conditional plea agreement, Defendant expressly reserved the right to appeal

 3 the district court’s denial of his motion to suppress the evidence.

 4 DISCUSSION

 5 I.      Standard of Review

 6   {5}   Reviewing a motion to suppress involves an analysis of both law and fact. See

 7 State v. Gutierrez, 2005-NMCA-015, ¶ 9, 136 N.M. 779, 105 P.3d 332. A “denial of

 8 a motion to suppress will not be disturbed if it is supported by substantial evidence

 9 unless it also appears that the ruling was incorrectly applied to the facts.” Id.(internal

10 quotation marks and citation omitted) (citing State v. Cline, 1998-NMCA-154, ¶ 6,

11 126 N.M. 77, 966 P.2d 785) We review whether the facts were correctly applied to the

12 law under a de novo standard of review, viewing the facts in the light most favorable

13 to the prevailing party, indulging all reasonable inferences in support of the ruling and

14 disregarding all evidence and inferences to the contrary. See Gutierrez, 2005-NMCA-

15 015, ¶ 9; see also State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72

16 (“Since the trial court is in a better position to judge the credibility of witnesses and

17 resolve questions of fact, the factual analysis should be viewed in a light favorable to

18 the prevailing party.”); State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809,




                                               4
 1 932 P.2d 499 (“[W]e review mixed questions of law and facts de novo, particularly

 2 when they involve constitutional rights.”).

 3 II.     Issue of Standing

 4   {6}   We first consider threshold matters that would obviate reviewing the merits of

 5 Defendant’s challenge to his warrantless arrest. In its answer brief, the State argues

 6 that Defendant lacks standing to challenge suppression of the evidence obtained on

 7 Rosales’ personal body (the controlled buy money) or in the red vehicle (the heroin

 8 on the console). The State argues that standing is lacking because Defendant was a

 9 passenger in the red vehicle and there was no additional evidence to establish

10 Defendant’s interest in the red vehicle. However, standing is a fact-based issue that

11 requires development of the record. See State v. Porras-Fuerte, 1994-NMCA-141, ¶

12 10, 119 N.M. 180, 889 P.2d 215 (holding that “standing [to challenge unlawful

13 searches and seizures] may not be raised for the first time on appeal since it is a fact-

14 based issue.”) Because the State failed to raise standing below and to develop the

15 factual basis for this Court’s review, we now consider such argument to be waived and

16 decline to address it. See State v. Franks, 1994-NMCA-097, ¶ 8, 119 N.M. 174, 889

17 P.2d 209 (holding that “it would be unfair to an appellant to affirm on a fact-

18 dependent ground not raised below[,]” as the parties would lack an opportunity to




                                               5
 1 present admissible evidence relating to the facts and it is improper for an appellate

 2 court to engage in fact-finding).



 3 III.    Notice of Specific Evidence to Be Suppressed

 4   {7}   Additionally, as a threshold matter, the State argues that Defendant provided

 5 inadequate notice to the State by failing to specifically identify the evidence to be

 6 suppressed. Defendant moved to suppress “any and all alleged controlled substances

 7 seized” and “[a]ll other fruits of the search and seizure” as fruits of an illegal arrest.

 8 The State claims that by failing to adequately identify the evidence that might be

 9 suppressed and the manner of police seizure of any evidence, Defendant failed to

10 develop an argument in support of suppression and his appeal should be denied. In

11 response, Defendant contends that the motion to suppress was fully argued and

12 determined below. We agree with Defendant.

13   {8}   Once a Defendant has raised an issue as to an illegal search and seizure claim,

14 the burden shifts to the State to justify the warrantless search or seizure. See State v.

15 Baldonado, 1992-NMCA-140, ¶ 19, 115 N.M. 106, 847 P.2d 751. In the district court,

16 the State failed to raise its inadequate notice claim when it argued the merits of

17 Defendant’s suppression motion. At the hearing on the motion to suppress, the State

18 called only Detective Irwin as a witness to describe the circumstances of the


                                               6
 1 controlled buy and, in argument, focused on whether Detective Irwin’s testimony

 2 established that probable cause and exigent circumstances existed to effectuate the

 3 subsequent stop and warrantless arrest. Furthermore, the State asserted that calling

 4 additional witnesses to further develop facts, “would have been a waste of [the district

 5 court’s] time insofar as they didn’t observe [the controlled buy].” Under these

 6 circumstances, the State was provided adequate notice that Defendant was asking the

 7 district court to suppress the heroin sold to the CI during the controlled buy; the

 8 subsequent seizure of the controlled buy money; as well as the heroin found in the red

 9 vehicle after the stop and arrests occurred. The State recognized that this was the

10 nature of Defendant’s motion and addressed both circumstances when Detective Irwin

11 testified at the suppression hearing. We thus hold that the State was properly notified

12 of the evidence Defendant sought to suppress.

13 IV.     Heroin Evidence From the Controlled Buy to the CI

14   {9}   Next, we must address the package of heroin sold to the CI and whether the

15 district court erred when it ruled this evidence was not subject to suppression. The

16 heroin from the CI was obtained prior to the stop of the red vehicle and separate from

17 Defendant’s warrantless arrest. Therefore, this evidence cannot be considered fruit of

18 the subsequent vehicle stop and arrest. See State v. Rivas, 2007-NMCA-020, ¶ 16, 141

19 N.M. 87, 150 P.3d 1037 (“The fruit of the poisonous tree doctrine bars the admission


                                              7
 1 of evidence obtained after an illegal arrest[.]” (emphasis added)). Because Defendant

 2 does not attack the events occurring during the controlled buy, the heroin purchased

 3 and delivered to the CI prior to the subsequent stop will not be suppressed. Id.

 4 V.       Sufficiency of the Evidence to Support a Conviction

 5   {10}   The State argues that the admissible heroin evidence obtained from the CI after

 6 the controlled buy is fatal to Defendant’s appeal, as the exclusion of the controlled

 7 buy money or heroin later seized from the red vehicle would not change the outcome

 8 of this case or Defendant’s guilty plea. Effectively, the State argues, where sufficient

 9 evidence in the record supports Defendant’s conviction for trafficking heroin by

10 distribution, any error regarding suppression of the additional evidence seized

11 pursuant to the subsequent stop is irrelevant and unnecessary to support Defendant’s

12 guilty plea. Although this issue was not raised in the district court, Defendant failed

13 to address the State’s new sufficiency of evidence argument in his reply brief. See

14 State v. Alingog, 1994-NMSC-063, ¶ 10, 117 N.M. 756, 877 P.2d 562 (recognizing

15 that the state’s new legal issue may only be raised for the first time on appeal when

16 the unpreserved error resulted in a miscarriage of justice).

17   {11}   A conditional plea agreement enables a defendant to reserve a significant

18 pretrial issue for appeal where a conviction seems certain unless the defendant

19 prevails on the pretrial issue. See State v. Winters, 2015-NMCA-050, ¶ 17, 349 P.3d


                                               8
 1 524, cert. denied, 2015-NMCERT-004, 348 P.3d 695. Although we are intrigued by

 2 this new sufficiency argument raised for the first time on appeal, the State has cited

 3 to no authority to support its position that if sufficient evidence supports a conditional

 4 guilty plea regardless of the suppression issues reserved for appeal, affirmance of the

 5 underlying plea and conviction is required irrespective of Defendant’s success on

 6 appeal. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d

 7 1329 (“We assume where arguments in briefs are unsupported by cited authority,

 8 counsel after diligent search, was unable to find any supporting authority.”). Although

 9 there could be a logical basis for the State’s sufficiency argument, it is dependent on

10 the unique facts of each particular case and would best be developed and resolved in

11 the district court during the process of addressing a defendant’s conditional plea. See

12 State v. Jesus-Santibanez, 1995-NMCA-017, ¶ 10, 119 N.M. 578, 893 P.2d 474

13 (recognizing the general principle that an appellate court will not address issues raised

14 for the first time on appeal, especially when the failure to raise the issue in the trial

15 court would deprive the opposing party “of an opportunity to develop facts that might

16 bear on the contentions”). Therefore, we do not recognize that a miscarriage of justice

17 occurred in this instance and we do not address the State’s unpreserved sufficiency

18 argument for the first time on appeal. See Alingog, 1994-NMSC-063, ¶ 10. We

19 proceed to address the remainder of Defendant’s suppression arguments.


                                               9
 1 VI.      Warrantless Arrest

 2   {12}   We proceed to address the merits of Defendant’s challenge to his warrantless

 3 arrest and determine whether the controlled buy money and heroin seized from the

 4 console after the subsequent stop of the red vehicle should have been suppressed.

 5 Defendant relies on the search and seizure provisions of the United States Constitution

 6 and New Mexico Constitution to challenge his warrantless arrest, arguing that the

 7 officer lacked probable cause and exigent circumstances for the arrest. See U.S. Const.

 8 amend. IV; N.M. Const. art. II, § 10. Because the New Mexico Constitution affords

 9 greater search and seizure protections than the United States Constitution in the

10 context of warrantless arrests, we will focus our analysis on Article II, Section 10 of

11 the New Mexico Constitution. See Campos v. State, 1994-NMSC-012, ¶ 10, 117 N.M.

12 155, 870 P.2d 117 (establishing that, unlike the United States Constitution, the New

13 Mexico Constitution does “not assume that warrantless public arrests of felons are

14 constitutionally reasonable”). New Mexico has an express preference for warrants, see

15 Campos, 1994-NMSC-012, ¶ 14, and permits warrantless arrests only where it is,

16 “reasonable for the officer not to procure an arrest warrant.” Id. ¶ 15. For a reasonable

17 warrantless arrest, the officer must have had probable cause to believe that the person

18 arrested had committed or was about to commit a felony and some exigency must

19 have existed to preclude the officer from securing a warrant. See id. ¶ 14. We examine


                                              10
 1 probable cause and exigent circumstances under a de novo standard of review,

 2 viewing the facts in the light most favorable to the prevailing party, indulging all

 3 reasonable inferences in support of the ruling and disregarding all evidence and

 4 inferences to the contrary. See Hernandez, 1997-NMCA-006, ¶ 18 (“[W]e review

 5 mixed questions of law and facts de novo, particularly when they involve

 6 constitutional rights.”); see Garcia, 2005-NMSC-017, ¶ 27 (“Since the trial court is

 7 in a better position to judge the credibility of witnesses and resolve questions of fact,

 8 the factual analysis should be viewed in a light favorable to the prevailing party.”).

 9 A.       Probable Cause for an Arrest

10   {13}   Probable cause exists “when the facts and circumstances within the officer’s

11 knowledge are sufficient to warrant the officer to believe that [a criminal] offense has

12 been or is being committed.” State v. Granillo-Macias, 2008-NMCA-021, ¶ 9, 143

13 N.M. 455, 176 P.3d 1187. Defendant asserts that because neither Detective Irwin nor

14 any other member of the police team actually observed a drug transaction take place,

15 there was no probable cause to stop the red vehicle and arrest Defendant and Rosales.

16 Further, Defendant argues, “[i]t was not reasonable for Detective Irwin to believe that

17 [Defendant] engaged in drug trafficking simply because [the CI] gave a hand signal.”

18 We disagree with Defendant’s characterization of the facts presented to establish

19 probable cause.


                                              11
 1   {14}   A warrantless arrest may be based upon information from other persons where

 2 the information is “corroborated or verified to an extent sufficient to establish the

 3 informant’s credibility.” State v. Jones, 1981-NMSC-013, ¶ 8, 96 N.M. 14, 627 P.2d

 4 409. Here, Detective Irwin knew the CI from prior undercover work and had no

 5 reason to distrust him or believe that the information regarding Rosales was

 6 unreliable. We conclude that the CI’s prior work with Detective Irwin and the

 7 corroboration of the red vehicle, location, and time of the controlled buy sufficiently

 8 establish the CI’s credibility. See Campos, 1994-NMSC-012, ¶ 4 (recognizing that

 9 probable cause requires that officers believe, and have good reason to believe, that the

10 persons they arrest have committed or are committing a felony); see also State v.

11 Morales, 2008-NMCA-102, ¶ 19, 144 N.M. 537, 189 P.3d 670 (discussing reasonable

12 assumptions and probable cause when drugs were sold from a vehicle and the

13 defendant was the front seat passenger in vehicle alongside the seller during the

14 transaction). We acknowledge that there was no indication Detective Irwin or

15 members of the police team directly observed actual drugs being exchanged, but

16 Detective Irwin relied on much more than a hand signal to support his belief that

17 Defendant was engaging in drug trafficking. The CI’s established credibility and the

18 detective’s indirect observation of the pre-arranged controlled buy, including the

19 observed interactions, activity, gestures, and communication with both occupants of


                                              12
 1 the red vehicle, sufficiently established that the officers had good reason to believe the

 2 occupants of the red vehicle, including Defendant, engaged in the pre-arranged sale

 3 of heroin to the CI, a felony drug trafficking offense. See Jones, 1981-NMSC-013, ¶

 4 8. The undisputed factual basis was also set forth in Defendant’s plea agreement.

 5 Based upon this evidence, the State sufficiently established the probable cause factor

 6 necessary to support a warrantless arrest.

 7 B.       Exigent Circumstances

 8   {15}   Next, we address Defendant’s assertion that officers lacked the exigent

 9 circumstances required to effectuate a warrantless arrest. An exigent circumstance is

10 an emergency situation “requiring swift action to prevent imminent danger to life or

11 serious damage to property, or to forestall the imminent escape of a suspect or

12 destruction of evidence.” Campos, 1994-NMSC-012, ¶ 11 (internal quotation marks

13 omitted) (quoting State v. Copeland, 1986-NMCA-083, ¶ 14, 105 N.M. 27, 727 P.2d

14 1342). Defendant argues that Detective Irwin did not testify that he believed the

15 money or drugs in the red vehicle were in danger of being destroyed or that there was

16 any danger to anyone.

17   {16}   Our Supreme Court has recently held that an arrest pursuant to a situation where

18 probable cause was developed on the scene “will usually supply the requisite

19 exigency” because in such situations it would not be “reasonably practicable” to get


                                               13
 1 a warrant. State v. Paananen, 2015-NMSC-031, ¶¶ 26-27, 357 P.3d 958. Our Supreme

 2 Court has also acknowledged that there will be exigent circumstances in most cases

 3 involving vehicles. See State v. Gomez, 1997-NMSC-006, ¶ 44, 122 N.M. 777, 932

 4 P.2d 1; see also State v. Contreras, 2003-NMCA-129, ¶ 15, 134 N.M. 503, 79 P.3d

 5 1111 (“[A] moving car on a public roadway presents an exigent circumstance[.]”)

 6   {17}   In the instant case, officers had both probable cause and an exigency by

 7 observing the controlled buy, receiving the hand signal from the CI, and observing the

 8 red vehicle attempting to leave the scene. Paananen articulates that such factors

 9 typically supply exigency, and the circumstances leading to the stop of the red vehicle

10 and Defendant’s subsequent warrantless arrest demonstrate similar exigency. 2015-

11 NMSC-031, ¶¶ 26-27. Notably, the red vehicle started leaving the scene following the

12 completion of the controlled buy and the CI’s hand signal. Detective Irwin testified

13 that “[t]he vehicle headed south toward the alley, and [the CI] turned and walked

14 directly back to my vehicle.” Only then did the police team block the red vehicle from

15 exiting the parking lot. Had the officers not stopped the moving red vehicle when they

16 did, it was reasonable for Detective Irwin to presume that Rosales and Defendant

17 would have left the scene with the controlled buy money, and any other relevant

18 evidence related to the controlled buy would also have been lost or destroyed. See

19 Gomez, 1997-NMSC-006, ¶ 40 (recognizing that the inquiry is an objective test into


                                             14
 1 whether a reasonable well-trained officer would have made the judgment this officer

 2 did). The decision to stop the red vehicle from leaving the scene with the controlled

 3 buy money inside was reasonable under the circumstances of this controlled buy.

 4   {18}   Additionally, although the CI informed Detective Irwin of Rosales’ identity,

 5 Detective Irwin observed two occupants in the red vehicle. Detective Irwin was

 6 unaware of Defendant’s identity during the controlled buy. Had the red vehicle

 7 disappeared from the scene, Defendant could have escaped prosecution because his

 8 identity was unknown to the officers. As a result, sufficient exigent circumstances

 9 were established when the CI completed the controlled buy in the officers’ presence

10 and the red vehicle attempted to leave the scene with evidence needed to prosecute

11 Defendant for the drug trafficking offense that had just taken place. Under the facts

12 presented, exigent circumstances existed, and it was not reasonably practicable or

13 necessary to get a warrant prior to stopping the red vehicle in order to arrest Defendant

14 and Rosales.



15 CONCLUSION

16   {19}   For the foregoing reasons, we affirm the district court’s order denying

17 Defendant’s motion to suppress the evidence seized in this case.

18   {20}   IT IS SO ORDERED.


                                              15
1                               _________________________________
2                               TIMOTHY L. GARCIA, Judge



3 WE CONCUR:


4 _______________________________
5 MICHAEL E. VIGIL, Chief Judge


6 _______________________________
7 JAMES J. WECHSLER, Judge




                                    16
