     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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                            NO. 31,726

 5 TINA FERRELL,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF SIERRA COUNTY
 8 Edmund H. Kase, III, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Victoria Wilson, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Acting Chief Public Defender
15 Eleanor Brogan, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee
 1                              MEMORANDUM OPINION

 2 HANISEE, Judge.

 3        The State appeals the district court’s order granting Defendant Tina Ferrell’s

 4 motion to suppress. Viewing the facts in the light most favorable to the district court’s

 5 ruling and applying the law to those facts, we find no error. Accordingly, we affirm.

 6        In the district court, Defendant moved to suppress the evidence obtained during

 7 a traffic stop and pursuant to the warrant obtained as a result of the evidence

 8 discovered during the stop. She argued that the original purpose of the stop was to

 9 investigate her boyfriend Tyler Coslin’s traffic violation of driving at night without

10 headlights, and that the officers improperly expanded the scope of the stop to question

11 her regarding drugs without reasonable suspicion. After a hearing and supplemental

12 briefing, the district court granted the motion to suppress.

13        An order of evidence suppression based upon an alleged violation of the United

14 States or New Mexico Constitutions entails a mixed question of fact and law. State

15 v. Funderburg, 2008-NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922. “We review

16 factual determinations for substantial evidence and legal determinations de novo.”

17 State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. Where, as

18 here, the district court did not set out its findings of fact and conclusions of law, we

19 will draw all reasonable inferences from the facts in favor of the district court’s ruling.


                                                2
 1 Funderburg, 2008-NMSC-026, ¶ 10.

 2        Because of the manners in which the case proceeded in the district court and

 3 is now argued by the parties on appeal, we need not address the constitutionality of

 4 the stop under the Fourth Amendment to the United States Constitution. See Ketelson,

 5 2011-NMSC-023, ¶ 10 (explaining that under the interstitial approach to state

 6 constitutional interpretation, a court will first consider whether the right asserted is

 7 protected under the federal constitution; if it is, the state constitution is not reached;

 8 if it is not, a court will address a state constitutional claim). Article II, Section 10 of

 9 the New Mexico Constitution protects against unreasonable searches and seizures.

10 See N.M. Const., art. II, § 10 (providing that “[t]he people shall be secure in their

11 persons, papers, homes and effects, from unreasonable searches and seizures”). This

12 section has been construed to provide a level of protection that exceeds that of the

13 Fourth Amendment in particular contexts. For example, our Supreme Court has held

14 that under Article II, Section 10, when an officer conducts a traffic stop, “all questions

15 asked during the stop [must] be reasonably related to the reason for the stop or

16 otherwise supported by reasonable suspicion.” State v. Leyva, 2011-NMSC-009, ¶ 55,

17 149 N.M. 435, 250 P.3d 861. If an officer wishes to ask any questions about other

18 criminal activity that is unrelated to the original reason for the stop, he may only do

19 so when the questions are supported by an independent reasonable suspicion of


                                                3
 1 unrelated illegal activity. See id. A reasonable suspicion “must consist of more than

 2 an officer’s hunch that something is amiss; it requires objectively reasonable

 3 indications of criminal activity.” Id. ¶ 23.

 4        Applying these principles, New Mexico courts have held that reasonable

 5 suspicion exists to expand the scope of a traffic stop to permit the questioning of a

 6 defendant about other illegal activity only under circumstances that give rise to a

 7 specific and individualized reasonable suspicion that the defendant herself is engaged

 8 in such activity. When two or more people are in a car together, a court will not

 9 attribute the suspicious or confirmed criminal behavior of another occupant to the

10 defendant in the absence of evidence of criminal activity on the part of the defendant.

11 See State v. Patterson, 2006-NMCA-037, ¶¶ 27-29, 139 N.M. 322, 131 P.3d 1286

12 (holding, first, that the police could not detain and question a defendant based on

13 evidence that another occupant of the car possessed drug paraphernalia and had an

14 open container of alcohol, and, second, that the police could not detain and question

15 a defendant based on the fact that another occupant of the car lied about the reason for

16 avoiding a roadblock and rummaged around the floorboard, despite all three

17 occupants, including the defendant, appearing to be nervous). The fact that others in

18 the car have engaged in criminal activity and that the defendant appears nervous is

19 insufficient. Id. ¶ 29. The police may expand the scope of a traffic stop to include


                                              4
 1 questioning of a defendant about drugs based on the drug activity of another person

 2 in the car only when there are other indicia of drug activity by the defendant, such as

 3 when the defendant herself seems impaired. See State v. Williamson, 2000-NMCA-

 4 068, ¶¶ 4, 10, 129 N.M. 387, 9 P.3d 70 (holding that after the police discovered drugs

 5 in the passenger’s possession, they had a reasonable suspicion to question the

 6 defendant about whether he also possessed drugs, since he also seemed to be

 7 impaired). When someone in the car is found to possess drugs, the police also have

 8 a reasonable suspicion to ask the person who has control over the vehicle, such as the

 9 owner or driver, for permission to search the car for drugs, since possession by an

10 occupant provides reasonable suspicion that there might be drugs or paraphernalia in

11 the vehicle. See Funderburg, 2008-NMSC-026, ¶¶ 28-29. However, evidence of one

12 occupant’s drug activity does not give the police a reasonable suspicion to question

13 another occupant regarding the existence of illegal drugs on her person or her own

14 illegal drug activity. Id. ¶¶ 28-31; see also Patterson, 2006-NMCA-037, ¶¶ 27-29.

15        The expansion of the scope of a traffic stop to question a defendant regarding

16 possible drug activity is also permitted when other evidence, under the totality of the

17 circumstances, suggests possible illegal conduct. See State v. Van Dang, 2005-

18 NMSC-033, ¶16, 138 N.M. 408, 120 P.3d 830 (holding that there was a reasonable

19 suspicion to ask about drug activity when the car was a rental car, the driver’s name


                                              5
 1 was not on the rental agreement, and the driver provided an unclear explanation

 2 regarding his permissive use of the vehicle; the occupants of the car provided

 3 inconsistent stories about their travel plans; and the defendant appeared nervous);

 4 State v. Duran, 2005-NMSC-034, ¶¶ 3-15, 138 N.M. 414, 120 P.3d 836 (holding that

 5 there was a reasonable suspicion to ask a defendant if there were drugs in the car when

 6 the car had a temporary license plate and the driver’s paperwork showing ownership

 7 of the vehicle was incomplete, suspicious objects were visible in the car, the occupants

 8 of the car gave inconsistent accounts of their travel itinerary, the route they were

 9 taking was indirect and was a common drug-trafficking route, the driver seemed to be

10 making things up as she described them, and her hands were shaking and she kept

11 covering her face such that she seemed more nervous than most people during traffic

12 stops), overruled on other grounds by Leyva 2011-NMSC-009, ¶ 17. In short, our

13 precedent has consistently established the principle that Article II, section 10 of the

14 New Mexico Constitution requires specific evidence that points to the defendant’s

15 own possible criminal activity—not mere proximity to another person’s criminal

16 activity—in order for investigative questioning to be justified.

17        During the hearing on Defendant’s motion to suppress, the evidence that Officer

18 Baker repeatedly pointed to as the basis of his suspicion that Defendant was engaged

19 in drug activity included the following facts: (1) Coslin’s eyes were dilated, indicating


                                               6
 1 that he might be under the influence of an illegal drug, (2) Coslin seemed extremely

 2 nervous since he was tapping his foot and refusing to make eye contact with Officer

 3 Baker, (3) Defendant answered questions that were addressed to Coslin, (4) the car

 4 Coslin was driving was Defendant’s, (5) once separated, Coslin and Defendant gave

 5 different answers about the nature of their relationship, and (6) Defendant and Coslin

 6 both lived in town but were going to stay at a motel together.

 7        Additional evidence presented by the State showed that Officer Baker relied on

 8 the fact that, after he asked Defendant whether she was in personal possession of

 9 drugs and whether he could search her pockets, her response seemed unusual to him.

10 However, this evidence was obtained after a question about illegal drugs, and the issue

11 before the district court was whether Officer Baker had reasonable suspicion to ask

12 such a question in the first place. Thus, we do not consider Defendant’s response as

13 part of the totality of the circumstances that the officer could have relied on to support

14 the expansion of the stop to inquire about drugs. Additionally, Officer Baker stated

15 that he had received information from another officer several weeks earlier that a car

16 that looked similar to Defendant’s car “possibly” may contain narcotics. However,

17 Officer Baker admitted that he did not know the identity of the informant who gave

18 this information to the officer, and he therefore did not know whether the informant

19 was reliable. The State does not argue in its brief that this information should be


                                               7
 1 considered by this Court as a basis for reasonable suspicion. Accordingly, we do not

 2 consider this fact when assessing the reasonableness of Officer Baker’s suspicion.

 3        Viewing the evidence in the light most favorable to the district court’s ruling,

 4 we hold that the district court did not err in concluding that the facts known to Officer

 5 Baker were not the kind of particularized and objective indicia of Defendant’s own

 6 criminal activity that would support a reasonable suspicion to expand the scope of the

 7 traffic stop to question Defendant about whether she had illegal drugs on her person.

 8 First, while the appearance of Coslin’s eyes and his nervousness might have supported

 9 a reasonable suspicion to investigate whether Coslin had drugs or whether there might

10 be drugs in Defendant’s car, courts cannot attribute one occupant’s criminal activity

11 to another, and these facts did not provide a reasonable suspicion that Defendant had

12 drugs on her person. See Funderburg, 2008-NMSC-026, ¶¶ 29-31 (holding that when

13 there was evidence that a passenger in a car possessed illegal drugs on his person,

14 there was reasonable suspicion to support an inquiry about whether there were drugs

15 in the car, but stating that such evidence would not have provided a reasonable

16 suspicion to ask the driver whether there were drugs on his person).

17        Although Officer Baker stated that Coslin and Defendant gave conflicting

18 stories about the nature of their relationship, we note that people involved in romantic

19 relationships often do not share the exact same level of commitment to the relationship


                                               8
 1 or view it in exactly the same way, such that the district court could properly have

 2 found that such an inconsistency—unlike an inconsistency about a travel

 3 itinerary—was not suspicious. Furthermore, during the suppression hearing the State

 4 played the video recording of Officer Baker’s encounter with Coslin and Defendant,

 5 which provided evidence that could be viewed as contrary to Officer Baker’s

 6 characterization of their statements as inconsistent. When Officer Baker asked Coslin

 7 how he knew Defendant, Coslin said that she was his girlfriend. A few seconds later,

 8 Officer Baker asked how they met, and Coslin said that they met through Defendant’s

 9 cousin. When Officer Baker asked Defendant how she knew Coslin, she stated that

10 she knew him through her cousin. When he asked whether she and Coslin were “an

11 item” like “boyfriend and girlfriend,” Defendant said “yes”. Officer Baker clearly

12 understood Defendant’s answer to be yes, since he then asked whether she thought

13 that she was “robbing the cradle.” Viewing this evidence in the light most favorable

14 to the district court’s ruling, Coslin’s and Defendant’s statements were not

15 inconsistent and the district court could have found that Officer Baker’s

16 characterization was inaccurate.

17        As for the remaining evidence: that Defendant answered questions that were

18 addressed to Coslin, that the car Coslin was driving was Defendant’s, and that

19 Defendant and Coslin both lived in town but were going to stay at a motel together,


                                             9
1 the district court could have reasonably inferred that these facts simply demonstrated

2 an intimate relationship, and not suspicious activity on the part of Defendant.

3 Accordingly, the district court did not err in concluding that Officer Baker lacked

4 reasonable suspicion to expand the scope of the traffic stop to question Defendant

5 about illegal drugs.

6        For these reasons, we affirm the order of the district court.

7        IT IS SO ORDERED.



8                                                _________________________________
9                                                J. MILES HANISEE, Judge



10 WE CONCUR:


11 _________________________________
12 JAMES J. WECHSLER, Judge


13 _________________________________
14 MICHAEL D. BUSTAMANTE, Judge




                                            10
