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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.    34,442

 5 QUALYNN SHINDLEDECKER,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean Jr., District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John J. Woykovsky, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Tania Shahani, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1   {1}   Defendant Qualynn Shindledecker (Defendant) appeals from an order of

 2 conditional discharge and probationary supervision, entered after he pleaded guilty to

 3 possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23(D)

 4 (2005, amended 2011) (current version at Section 30-31-23(E)), pursuant to a

 5 conditional plea agreement. Defendant reserved one issue, challenging the district

 6 court’s denial of his motion to suppress for an alleged pretextual traffic stop. Because

 7 the district court failed to enter findings of fact or conclusions of law and it is unclear

 8 to this Court what the district court relied on in concluding that the stop was not

 9 pretextual, we reverse and remand to the district court with instructions to enter

10 findings to support its ruling on Defendant’s motion to suppress.

11 BACKGROUND

12   {2}   The facts relevant to Defendant’s motion to suppress were developed via the

13 testimony of Officer Timothy Brown at the hearing on Defendant’s motion to

14 suppress. Officer Brown was on patrol in Bloomfield, New Mexico when he observed

15 a vehicle drive down an alley in an area that had been the subject of citizen complaints

16 due to high drug activity “in the alley at night.” He noticed that the vehicle did not

17 have working license plate lights and that the holder around the license plate partially

18 obscured the registration sticker. See NMSA 1978, § 66-3-805(C) (1978) (requiring

19 that there be a white light that illuminates the rear registration plate on a vehicle);

20 NMSA 1978, § 66-3-18(A) (2007) (requiring, among other things, that a registration

                                                2
 1 plate “be maintained free from foreign material and in a condition to be clearly

 2 legible”). Officer Brown followed the vehicle for approximately two blocks before

 3 initiating a traffic stop, noting that there was no good place to pull someone over

 4 before then. Officer Brown further testified that as part of his duties that night, he was

 5 looking for suspicious activity in that area. However, he also testified that with respect

 6 to Defendant’s vehicle, he did not see it leave any suspected drug houses or otherwise

 7 receive any information that would lead him to believe that Defendant was involved

 8 in suspicious activity. Based on the two noted traffic violations, Officer Brown

 9 testified that he initiated a traffic stop.

10   {3}   Upon coming into contact with Defendant, Officer Brown explained to

11 Defendant that he stopped him because his light was not working and because the

12 license plate holder was covering the bottom of the registration sticker. He then asked

13 Defendant what he was doing. Defendant explained that he was trying to find a girl’s

14 house, but upon additional questioning, was unable to provide the girl’s last name or

15 tell the officer where she lived. As a result of his interaction with Defendant, Officer

16 Brown testified that he became suspicious that Defendant was involved in drug

17 activity. Officer Brown then asked Defendant for his license, registration, and

18 insurance papers, and when Defendant moved to get those materials, Officer Brown

19 noticed a screwdriver in Defendant’s lap and a knife mounted to the side of the

20 console, within Defendant’s reach. At that point, Officer Brown asked Defendant to

                                                 3
 1 step out of his vehicle based on safety concerns. He also asked whether there were any

 2 other weapons in the vehicle and asked for consent to search it. Defendant consented

 3 to the search, and in the glove box of Defendant’s vehicle, Officer Brown discovered

 4 marijuana, pieces of Brillo, and a small clear plastic container with a white powdery

 5 substance in it. As a result, Defendant was charged with (1) possession of a controlled

 6 substance, (2) possession of drug paraphernalia, and (3) possession of marijuana. He

 7 was not cited for any traffic code violations.

 8   {4}   Defendant filed a motion to suppress, arguing that the stop was pretextual under

 9 the standard set forth in State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d

10 143. At the end of the hearing on Defendant’s motion, the district court ruled orally

11 from the bench, saying, “I find that it is not a pretextual stop. The motion is denied.

12 The State will submit an appropriate order. The defense also may submit an

13 appropriate order for the record within ten days.” There was, however, no order

14 entered denying the motion, and the district court did not enter any findings of fact or

15 conclusions of law. Defendant subsequently entered into a conditional plea agreement

16 pursuant to which he pleaded guilty to one count of possession of a controlled

17 substance, contrary to Section 30-31-23(D). The plea agreement reserved “the right

18 to appeal [the] order denying motion to suppress of May 13, 2014.” This appeal

19 followed.

20 Pretextual Stops Under Ochoa

                                               4
 1   {6}   In Ochoa, this Court concluded that pretextual stops violate New Mexico’s

 2 Constitution under Article II, Section 10. Ochoa, 2009-NMCA-002, ¶ 1. We clarified

 3 that a pretextual traffic stop occurs when “a police officer is stopping the driver, not

 4 to enforce the traffic code, but to conduct a criminal investigation unrelated to the

 5 driving.” Id. ¶ 16 (internal quotation marks omitted). In rejecting federal authority on

 6 pretextual stops, we acknowledged that, while there may be a technical violation of

 7 the traffic law that would give rise to reasonable suspicion or probable cause to

 8 conduct a traffic stop, the actual reason that a police officer conducts a stop may lack

 9 legal sufficiency. Id. We held that a district court should therefore determine whether

10 a stop is “pretextual subterfuge” by considering the totality of the circumstances,

11 judging the credibility of witnesses, weighing the evidence, and ultimately, making

12 the decision whether to exclude evidence depending on the objective and subjective

13 reasonableness of the stop at its inception. Id. ¶ 39. “[T]he officer’s intent is

14 determined like any other fact, based on the evidence presented” and consideration of

15 various factors. Id. The district court is required to employ a three-step approach in

16 determining whether a pretextual stop has occurred.

17         First, the [s]tate has the burden to establish reasonable suspicion to stop
18         the motorist. If the [s]tate fails in its burden, the stop is unconstitutional.
19         Second, if the [s]tate satisfies its burden, the defendant may still establish
20         that the seizure was unreasonable by proving that the totality of the
21         circumstances indicates the officer had an unrelated motive to stop the
22         motorist that was not supported by reasonable suspicion. If the defendant
23         does not satisfy the burden, the stop is constitutional. Third, if the

                                                 5
 1         defendant satisfies the burden, there is a presumption of a pretextual
 2         stop, and the [s]tate must prove that the totality of the circumstances
 3         supports the conclusion that the officer who made the stop would have
 4         done so even without the unrelated motive.

 5 State v. Gonzales, 2011-NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (citations

 6 omitted) (citing Ochoa, 2009-NMCA-002, ¶ 40). Factors relevant in analyzing the

 7 totality of the circumstances may include:

 8         whether the defendant was arrested for and charged with a crime
 9         unrelated to the stop; the officer’s compliance or non-compliance with
10         standard police practices; whether the officer was in an unmarked car or
11         was not in uniform; whether patrolling or enforcement of the traffic code
12         were among the officer’s typical employment duties; whether the officer
13         had information, which did not rise to the level of reasonable suspicion
14         or probable cause, relating to another offense; the manner of the stop,
15         including how long the officer trailed the defendant before performing
16         the stop, how long after the alleged suspicion arose or violation was
17         committed the stop was made, how many officers were present for the
18         stop; the conduct, demeanor, and statements of the officer during the
19         stop; the relevant characteristics of the defendant; whether the objective
20         reason articulated for the stop was necessary for the protection of traffic
21         safety; and the officer’s testimony as to the reason for the stop.

22 Ochoa, 2009-NMCA-002, ¶ 41. We noted in Ochoa that the foregoing list is not

23 intended to be an exhaustive list; rather, it supplies some of the factors relevant to the

24 pretext inquiry. Id.

25 DISCUSSION

26   {7}   In this case, it appears that several of the Ochoa factors weigh in favor of

27 finding that the traffic stop was pretextual. There appears to be no dispute that under

28 the first step, because Defendant committed a traffic code violation, Officer Brown

                                               6
 1 had reasonable suspicion to conduct the stop. Under the second step, we repeat many

 2 of the facts recited above. We point out that Officer Brown testified that he was on

 3 patrol in an area where there had been a request for heightened officer presence due

 4 to the complaints of drug activity “in the alley at night” when he observed

 5 Defendant’s vehicle drive into an alley. See id. ¶ 41 (listing one factor as “whether the

 6 officer had information, which did not rise to the level of reasonable suspicion or

 7 probable cause, relating to another offense”). He further testified that as part of his

 8 duties that night, he was looking for suspicious activity in the area. See id. Officer

 9 Brown noted that the vehicle did not have working license plate lights and that the

10 holder around the license plate partially obscured the registration sticker. While

11 Officer Brown testified that it is his practice to initiate a traffic stop for these kinds of

12 violations, we note that this sort of violation is not one where there is an obvious need

13 to conduct a stop for traffic safety. See id. (listing one factor as “whether the objective

14 reason articulated for the stop was necessary for the protection of traffic safety”); id.

15 ¶ 35 (“Police officers may enforce any and all traffic laws, so long as it is done with

16 reasonable suspicion and in good faith for that purpose.”). We also observe that

17 Officer Brown began asking Defendant questions unrelated to the traffic stop very

18 soon after coming into contact with him. See id. ¶ 41. (listing a factor as “the manner

19 of the stop,” which includes “the conduct, demeanor, and statements of the officer

20 during the stop”). Upon questioning by the State, Officer Brown discussed that he was

                                                 7
 1 trained to ask certain questions as part of his “drug interdiction training” when he

 2 suspected drug activity, and his questioning of Defendant seemed consistent with that

 3 training. See id. Officer Brown also testified that his interaction with Defendant led

 4 him to believe that Defendant was in fact involved in drug activity. See id. Finally, we

 5 note that Defendant was not cited for the traffic violations that served as the basis for

 6 the stop, but was charged with three drug-related crimes. See id. (listing one factor as

 7 “whether the defendant was arrested for and charged with a crime unrelated to the

 8 stop”). Under these circumstances, it is unclear what the district court relied on in

 9 determining that the stop was not pretextual—particularly because there were no

10 findings entered in this case. We, again, point out that the factors set forth in Ochoa

11 are not exhaustive, id., and so, there could be a sound basis for determining that the

12 stop was not pretextual. However, because the district court failed to articulate its

13 rationale, we cannot meaningfully review its decision in this case.

14   {8}   Because the determination of pretext is highly fact dependent, we rely heavily

15 on the district court to weigh the evidence presented by the respective parties and

16 reach a determination. See State v. Gonzales, 1999-NMCA-027, ¶ 13, 126 N.M. 742,

17 975 P.2d 355 (“The vantage of the appellate bench is a poor one from which to assess

18 credibility and perform other components of the fact-finding task.”). The district court

19 has the responsibility to look at the totality of the circumstances to determine the

20 subjective intent of the officer and the objective reasonableness of his actions in order

                                               8
 1 to make the ultimate decision of whether the stop was “pretextual subterfuge.” Ochoa,

 2 2009-NMCA-002, ¶ 39; see id. ¶ 38 (explaining that rejection of the pretext doctrine

 3 “would be an abdication of our judicial responsibility to meaningfully review police

 4 action, ferret out police perjury, weigh the evidence, and guard our citizens’ privacy

 5 rights . . . [and] would in effect legitimize a charade, a mockery of the legal

 6 justifications we recognize for permitting the most common of police intrusions”).

 7 Without findings, it is difficult for this Court to ascertain the basis for the district

 8 court’s decision—particularly in a case like this where there appear to be many factors

 9 that would support a determination that the stop was pretextual, and yet, there is a

10 determination that it was not. We conclude that remand is appropriate.

11   {9}   In reaching this conclusion, we acknowledge that there is no requirement in the

12 criminal context that a district court set forth the factual basis for its decision, and in

13 fact, courts often do not do so when deciding criminal suppression issues. Gonzales,

14 1999-NMCA-027, ¶¶ 9-11. Typically, we would resort to employing

15 presumptions—“indulg[ing] in all reasonable presumptions in support of the district

16 court’s ruling.” Id. ¶ 15. However, in a case like this, we are unable to simply apply

17 presumptions to determine whether the Ochoa standard was properly applied.

18 Although we only have the uncontradicted testimony of Officer Brown, the pretext

19 inquiry is such that it requires the district court to assess witness credibility to

20 determine intent to reach the ultimate conclusion as to the real reason for the stop. See

                                                9
 1 Ochoa, 2009-NMCA-002, ¶ 39. This sort of determination, by its very nature, requires

 2 the district court to question the real motive behind stopping an individual, and where

 3 many of the factors weigh in favor of finding pretext, we need the district court to

 4 justify its decision that it was not pretextual by entering findings.

 5 Expansion of the Stop

 6   {10}   Lastly, we address Defendant’s argument that the officer impermissibly

 7 expanded the scope of the stop by asking questions unrelated to the initial reason for

 8 the stop. The State asserts that Defendant waived this argument because he failed to

 9 raise it below.

10   {11}   As we noted previously, Defendant entered into a conditional plea agreement

11 wherein he reserved “the right to appeal [the] order denying motion to suppress of

12 May 13, 2014.” While Defendant’s motion to suppress focuses on arguing that the

13 stop was pretextual, it also asserts that the stop was unconstitutional because

14 “questions asked by police officers during the course of a stop must be either

15 reasonably related to the reason for the stop or supported by reasonable suspicion.”

16 Whether an officer asks questions unrelated to the articulated reason for a stop is

17 certainly something that should be pointed out as part of a pretext argument, and it

18 also raises an independent issue that could result in suppression. See State v. Leyva,

19 2011-NMSC-009, ¶¶ 10, 55, 149 N.M. 435, 250 P.3d 861 (“Article II, Section 10 [of

20 the New Mexico Constitution] requires that all questions asked during the

                                              10
 1 investigation of a traffic stop be reasonably related to the initial reason for the stop.

 2 Unrelated questions are permissible when supported by independent reasonable

 3 suspicion, for reasons of officer safety, or if the interaction has developed into a

 4 consensual encounter.”). Although the focus of the arguments at the suppression

 5 hearing was whether the stop was pretextual, it appears that the issue was adequately

 6 raised in Defendant’s written motion and the relevant facts—which in this case

 7 overlap with those related to pretext—were developed below. See State v. Gomez,

 8 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1.

 9          [The appellate courts] require parties to assert the legal principle upon
10          which their claims are based and to develop the facts in the [district]
11          court primarily for two reasons: (1) to alert the [district] court to a claim
12          of error so that it has an opportunity to correct any mistake, and (2) to
13          give the opposing party a fair opportunity to respond and show why the
14          court should rule against the objector.

15 Id. Because the district court did not enter an order denying the motion, we are unsure

16 whether the court considered this issue, and consequently, whether its oral ruling

17 denying Defendant’s motion was intended to also address Defendant’s secondary

18 basis for suppression. We can conceive of nothing that would preclude the district

19 court from ruling on this issue on remand, and we instruct the court to do so.

20 CONCLUSION

21   {12}   We reverse and remand to the district court with instructions to rule on

22 Defendant’s full motion to suppress and enter findings supporting its decision.


                                                 11
1   {13}   IT IS SO ORDERED.



2
3                               MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5 __________________________________
6 JONATHAN B. SUTIN, Judge


7 __________________________________
8 J. MILES HANISEE, Judge




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