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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                         NO. 29,099

 5 BRIAN MADSEN,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Charles Cruse Currier, District Judge

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

11 for Appellee

12 The Rose Law Firm, P.C.
13 Timothy L. Rose
14 Ruidoso, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant entered a conditional plea, but reserved his right to appeal the denial

19 of his motion to suppress evidence. We proposed to affirm in a calendar notice, and
 1 Defendant has responded with a memorandum in opposition. Unpersuaded by

 2 Defendant’s arguments, we affirm.

 3        In the district court, Defendant asked for and was granted a thirty-day extension

 4 to file the notice of appeal, making the notice of appeal due on or before November

 5 24, 2008. [RP 108, 115] A un-stamped copy of the notice of appeal was attached to

 6 the motion for extension filed in the district court. [RP 110] In our calendar notice,

 7 we proposed to construe the un-stamped copy of the notice of appeal as timely filed

 8 based on the fact that Defendant had certified that the notice of appeal was served on

 9 the State on November 14, 2008. Defendant has now provided us with a stamped

10 copy of the notice of appeal showing that the notice of appeal was timely filed in the

11 district court on November 17, 2008.

12        Defendant explains that, at the hearing on his suppression motion, he argued

13 that the officer conducted an illegal pat-down search and, therefore, all evidence

14 obtained as a result of the pat-down search should be suppressed. Defendant does not

15 argue that the officer did not have a reason to ask for consent to search his vehicle.

16 [MIO 3] Instead, Defendant contends that Defendant’s voluntary consent to a search

17 of his vehicle does not allow the officer to conduct an “involuntary search of his

18 person.” Defendant claims that, if the officer was concerned about weapons or his

19 safety, he should have asked Defendant if a pat-down search could be conducted. If


                                              2
 1 Defendant refused to consent to a pat-down search, the officer could have proceeded

 2 to search the vehicle or could have allowed Defendant to leave. In our calendar

 3 notice, we referred to the officer’s statement for the relevant facts.            In his

 4 memorandum in opposition to our calendar notice, Defendant does not dispute the

 5 facts contained in the officer’s statement.

 6        On appeal of the denial of a motion to suppress, we review the district court’s

 7 decision to determine whether the law was correctly applied to the facts. State v.

 8 Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785.                  In making that

 9 determination, we view the facts in the light most favorable to the prevailing party.

10 Id. As discussed in our calendar notice, during an investigatory stop the scope of a

11 search may be expanded if the officer “has reasonable and articulable suspicion that

12 other criminal activity has been or may be afoot.’” State v. Duran, 2005-NMSC-034,

13 ¶ 23, 138 N.M. 414, 120 P.3d 836 (internal quotation marks and citation omitted).

14        The stop in this case was made late at night, in a dimly lit, high-crime area. The

15 officer observed one passenger attempt to exit the vehicle, another passenger moving

16 around as if looking for or hiding something, and Defendant opening the driver’s door

17 when the officer approached. The officer smelled alcohol as he approached and

18 noticed a six pack of unopened beer bottles in the vehicle. Defendant was unable to

19 produce the vehicle registration or any proof of insurance. Defendant appeared very


                                                 3
 1 nervous and was moving around and shaking. Due to the number of people in the

 2 vehicle, the behavior of the occupants, and Defendant’s nervous behavior, the officer

 3 had Defendant exit the vehicle and stand away from the other occupants of the

 4 vehicle. Defendant was unable to stand still, appeared very nervous, and put his hands

 5 into his pockets more than once despite being asked by the officer to keep his hands

 6 out of his pockets. When the officer asked if there were any open containers of

 7 alcohol in the vehicle, Defendant responded, “no, no alcohol, weapons. No drugs, you

 8 can look if you want.” [RP 8] The officer informed Defendant that he wanted to pat

 9 him down for weapons. [RP 8]

10        Based on Defendant’s behavior and statements, the behavior of the other

11 occupants of the vehicle, the location and time of the stop, and the smell of alcohol

12 coming from the vehicle, we hold that it was reasonable for the officer to believe that

13 a pat-down search was justified in order to ensure the safety of the officer. See State

14 v. Vandenberg, 2003-NMSC-030, ¶ 23, 134 N.M. 566, 81 P.3d 19.

15        For the reasons discussed in this opinion and in our calendar notice, we affirm

16 the decision of the district court.

17        IT IS SO ORDERED.



18                                                ________________________________
19                                                CELIA FOY CASTILLO, Judge

                                              4
1 WE CONCUR:



2 ________________________________
3 JAMES J. WECHSLER, Judge



4 ________________________________
5 TIMOTHY L. GARCIA, Judge




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