     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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

 2 REMIGIO PADILLA,

 3          Petitioner-Appellant,

 4 v.                                                                                   NO. 30,646

 5   MOTOR VEHICLE DIVISION,
 6   DEPARTMENT OF TAXATION AND
 7   REVENUE, STATE OF NEW MEXICO,
 8   MICHAEL SANDOVAL, DIRECTOR,

 9          Respondent-Appellee.

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

12 Titus & Murphy Law Firm
13 D. Zane Swank
14 Farmington, NM

15 for Appellant

16 Gary K. King, Attorney General
17 Julia Belles, Special Assistant Attorney General
18 Santa Fe, NM

19 for Appellee

20                                 MEMORANDUM OPINION
 1 VIGIL, Judge.

 2        This case raises issues controlled by the New Mexico Supreme Court’s recent

 3 decision in Schuster v. State of New Mexico Department of Taxation and Revenue,

 4 2012-NMSC-___, ___ P.3d ___ (No. 32,942, July 26, 2012). Finding no error, we

 5 affirm the district court.

 6 I.     BACKGROUND

 7        Defendant was arrested on suspicion of driving while intoxicated (DWI), and

 8 his driver’s license was subsequently revoked by the Motor Vehicle Division (MVD)

 9 after a revocation hearing, pursuant to the Implied Consent Act, NMSA 1978,

10 Sections 66-8-105 to -112 (1978, as amended through 2007). Because this is a

11 memorandum opinion and the parties are familiar with the facts and procedural

12 background, we reserve discussion of the pertinent facts within the context of

13 Defendant’s arguments.

14 II.    ANALYSIS

15        Defendant raises three issues on appeal: (1) that the MVD did not have

16 authority to decide the constitutionality of the traffic stop and that the district court

17 was required to conduct a de novo hearing on those issues; (2) that the officer did not

18 have reasonable suspicion to approach Defendant’s parked vehicle; and (3) that the

19 officer pretextually approached Defendant’s parked vehicle. We address each

                                               2
 1 argument in turn, applying a whole record review to the MVD’s decision to determine

 2 whether substantial evidence supports the MVD’s findings. See Miller v. Bd. of Cnty.

 3 Comm’rs, 2008-NMCA-124, ¶ 16, 144 N.M. 841, 192 P.3d 1218 (“This Court applies

 4 the same statutorily defined standard of review as the district court. The district court

 5 may reverse an administrative decision only if it determines that the administrative

 6 entity acted fraudulently, arbitrarily, or capriciously; if the decision was not supported

 7 by substantial evidence in the whole record; or if the entity did not act in accordance

 8 with the law.” (alterations, internal quotation marks, and citations omitted)).

 9 A.     The District Court Properly Reviewed the MVD Decision in Its Appellate
10        Capacity

11        We stayed this case pending our Supreme Court’s resolution of Schuster, 2012-

12 NMSC-___. Schuster holds that with respect to license revocation proceedings, the

13 MVD must make a determination as to whether a traffic stop was constitutional and

14 that the district court reviews that decision in its appellate jurisdiction. See id. ¶ 8.

15 Because the MVD and the district court acted consistently with the directives laid out

16 in Shuster, we find no error on this issue.

17        Defendant also argues that the district court erred in refusing to hold oral

18 argument on whether a de novo hearing was required. The district court has discretion

19 to permit oral argument on appeal, and we cannot conclude that it abused that


                                                 3
 1 discretion in relying solely on the written briefs to decide this issue. See Rule 1-

 2 074(O) NMRA (“[T]he court may allow oral argument.” (Emphasis added.)).

 3 Furthermore, Schuster holds that the district court sits in its appellate capacity when

 4 reviewing a revocation decision of the MVD. See Schuster, 2012-NMSC-__, ¶ 8. The

 5 law firm for Defendant was also the law firm that represented the defendant in

 6 Schuster, and we presume is familiar with the facts of both Schuster and this case. As

 7 this is a memorandum opinion, we do not engage in any further discussion on this

 8 issue.

 9 B.       The Officer’s Encounter With Defendant Did Not Violate His
10          Constitutional Rights

11          Defendant contends that the officer unlawfully seized him by approaching and

12 tapping on his parked vehicle’s window when the officer had observed no activity

13 giving rise to a reasonable suspicion that Defendant was committing a crime. See

14 State v. Vandenberg, 2003-NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19 (“Reasonable

15 suspicion arises if the officer can point to specific articulable facts that, when judged

16 objectively, would lead a reasonable person to believe criminal activity occurred or

17 was occurring.” (alteration, internal quotation marks, and citations omitted)). This

18 issue is “reviewed on appeal as a mixed question of law and fact in which factual




                                               4
 1 questions are considered for substantial evidence and the application of law to the

 2 facts is reviewed de novo.” Schuster, 2012-NMSC-___, ¶ 23.

 3        We conclude that the officer did not require reasonable suspicion to initiate

 4 contact with Defendant when he observed Defendant walking near a business before

 5 getting into his vehicle and driving around the building, and then turning abruptly to

 6 park and turn his headlights off in front of a neighboring business that was closed and

 7 had been the site of break-ins, thefts, and other criminal activity during that time of

 8 night. See State v. Eric K., 2010-NMCA-040, ¶¶ 6, 18, 148 N.M. 469, 237 P.3d 771

 9 (concluding that the officer was entitled to approach individuals in the area of a

10 reported crime that he saw doing nothing incriminating, but were acting suspicious

11 and behaving in an evasive manner). Further, we conclude that no seizure occurred

12 where the officer parked his marked patrol unit fifteen feet away from Defendant’s

13 vehicle, approached Defendant’s vehicle on foot, in uniform and displaying his badge,

14 and tapped on the vehicle’s window. See id. ¶ 18 (stating that no seizure occurs where

15 an officer approaches an individual for questioning so long as the reasonable

16 individual would have felt free to leave); State v. Jason L., 2000-NMSC-018, ¶ 14,

17 129 N.M. 119, 2 P.3d 856 (“The police do not need any justification to approach a

18 person and ask that individual questions; however, the officer may not convey a

19 message that compliance with their requests is required.” (internal quotation marks

                                              5
 1 and citation omitted)). Moreover, we conclude that before any seizure of Defendant

 2 occurred, the officer developed reasonable suspicion to investigate further when

 3 Defendant rolled down his window and the smell of alcohol emanated from the

 4 vehicle, and Defendant admitted to having had one drink. See State v. Walters, 1997-

 5 NMCA-013, ¶ 26, 123 N.M. 88, 934 P.2d 282 (stating that an officer’s initial

 6 caretaking encounter that is not supported by reasonable suspicion does not prevent

 7 the officer from making observations that lead to reasonable suspicion for a further

 8 investigation, including by noting alcohol on a driver’s breath).

 9        Accordingly, we conclude that substantial evidence supported the MVD’s

10 conclusion that Defendant’s encounter with the officer did not violate Defendant’s

11 constitutional rights.

12 C.     Defendant Failed to Preserve His Argument That the Stop Was Pretextual

13        Defendant also contends that the officer’s investigation of his parked vehicle

14 was pretextual and unconstitutional under State v. Ochoa, 2009-NMCA-002, 146

15 N.M. 32, 206 P.3d 143. Pursuant to Schuster, the constitutionality of the stop must

16 be decided by the MVD, and any objections to the constitutionality of the stop must

17 also be raised before the MVD to preserve those issues for appellate review by the

18 district court. See Schuster, 2012-NMSC-__, ¶ 8; Woolwine v. Furr’s, Inc., 106 N.M.

19 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve an issue for review on

                                             6
1 appeal, it must appear that appellant fairly invoked a ruling of the trial court on the

2 same grounds argued in the appellate court.”). Because Defendant failed to preserve

3 this issue before the MVD, we decline to address it.

4 III.   CONCLUSION

5        We affirm.

6        IT IS SO ORDERED.


7                                                ______________________________
8                                                MICHAEL E. VIGIL, Judge

9 WE CONCUR:



10 _________________________________
11 LINDA M. VANZI, Judge



12 _________________________________
13 J. MILES HANISEE, Judge




                                             7
