 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                     No. 30,258

10 MARK TEX GILLIGAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Stephen Bridgforth, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Caren I. Friedman
18 Santa Fe, NM

19 for Appellant

20                                 MEMORANDUM OPINION

21 SUTIN, Judge.
1       Defendant appeals his conviction for first offense driving while intoxicated

2 (DWI). We issued a calendar notice proposing to affirm. Defendant has responded

3 with a memorandum in opposition. After due consideration, we affirm.




                                          2
 1 Arrest

 2        In this appeal, Defendant has argued that he was arrested without probable

 3 cause and that the arrest violated the misdemeanor-arrest rule. Our calendar notice

 4 treated these two issues together because we believe that they relate to the same

 5 evidence. The misdemeanor-arrest rule requires that the offense be committed in the

 6 officer’s presence to justify a warrantless arrest for its violation. See State v. Ochoa,

 7 2008-NMSC-023, ¶ 11, 143 N.M. 749, 182 P.3d 130. Subsequent to our calendar

 8 notice, the Supreme Court abolished the misdemeanor-arrest rule for purposes of

 9 analyzing the validity of a warrantless arrest for DWI. City of Santa Fe v. Martinez,

10 2010-NMSC-033, ¶ 16, ___ N.M. ___, ___ P.3d ___. “Instead, the warrantless arrest

11 of one suspected of committing DWI is valid when supported by both probable cause

12 and exigent circumstances.” Id.

13        “Probable cause exists when the facts and circumstances within the officers’

14 knowledge, and of which they had reasonably trustworthy information, are sufficient

15 to warrant a man of reasonable caution to believe that an offense has been, or is being,

16 committed.” State v. Duffy, 1998-NMSC-014, ¶ 69, 126 N.M. 132, 967 P.2d 807

17 (internal quotation marks and citation omitted).

18        We will not overturn the district court’s ruling on a motion to suppress if it is

19 supported by substantial evidence. State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476,


                                               3
 1 477 (Ct. App. 1993), misapplication of federal law recognized in State v. Cardenas-

 2 Alvarez, 2001-NMSC-017, ¶ 9, 130 N.M. 386, 25 P.3d 225 (recognizing

 3 misapplication of federal law, but acknowledging Galloway as “sound approach”

 4 under New Mexico Constitution). In making this determination, we review the facts

 5 in the light most favorable to the district court’s ruling. Id. Nevertheless, we conduct

 6 a de novo review on the ultimate issue concerning the reasonableness of an alleged

 7 constitutional violation. State v. Flores, 1996-NMCA-059, ¶ 6, 122 N.M. 84, 920

 8 P.2d 1038.

 9        In State v. Reger, 2010-NMCA-056, ___ N.M. ___, 236 P.3d 654, this Court

10 recently reviewed the type of evidence that could be relied on by an officer

11 investigating a suspected DWI where an officer encounters an intoxicated individual

12 outside of their vehicle. Even where an officer has not personally observed the

13 defendant drink alcohol or actually operate the vehicle, the officer may nonetheless

14 rely on his personal perceptions, including “observation of the circumstances

15 surrounding the presence of the defendant and the vehicle, observation and smells

16 evidencing the defendant’s intoxication, and hearing what the defendant and others

17 say.” Id. ¶ 16; see State v. Greyeyes, 105 N.M. 549, 551-52, 734 P.2d 789, 791-92

18 (Ct. App. 1987).




                                              4
 1        Here, Sergeant Renn observed a white pick-up truck traveling above the speed

 2 limit, but he did not elect to initiate a stop. [MIO 1] He then received a dispatch

 3 indicating that a vehicle matching that description had recently left a bar, with the

 4 driver suspected of being intoxicated. [MIO 1] Sergeant Renn located the truck after

 5 it had come to a stop. [MIO 1-2] Although nobody was specifically identified as the

 6 driver and Defendant was seated in the passenger seat, Defendant informed Officer

 7 Gomez that he was the driver, or at least this can rationally be inferred by Defendant’s

 8 comments. [MIO 3] Officer Gomez testified that Defendant exhibited signs of

 9 intoxication. [MIO 2] Officer Gomez also testified that Defendant told him that

10 Defendant was driving the vehicle 100% of the time. [MIO 3]

11        In light of the totality-of-circumstances approach inherent to the probable cause

12 analysis, we conclude that there was substantial evidence to support the district court’s

13 ruling denying the motion to suppress. Of particular note is Sergeant Renn’s

14 observation of the vehicle being driven, Defendant’s admission to being the driver,

15 and Defendant’s signs of intoxication. We also conclude that there were exigent

16 circumstances to support the arrest. See Martinez, 2010-NMSC-033, ¶ 15 (noting

17 inherent exigencies that justify abolishing misdemeanor-arrest rule).




                                               5
 1 Miranda

 2        Defendant also continues to argue that he should have received Miranda

 3 warnings prior to being questioned. [MIO 14] In order to establish that an individual

 4 is in custody for Miranda purposes, there must be a showing that the individual “lacks

 5 the freedom to leave to an extent equal to formal arrest” and is “in an isolated

 6 environment completely controlled by law enforcement officials.” State v. Javier M.,

 7 2001-NMSC-030, ¶ 18, 131 N.M. 1, 33 P.3d 1 (internal quotation marks and citation

 8 omitted).

 9        Defendant has not provided an adequate factual description of the statements

10 at issue to establish that the district court erred in denying his motion. The district

11 court concluded that the statements to Officer Gomez were made “without being

12 questioned.” [RP 110-11] In addition, we note that questions during traffic stops do

13 not amount to “custodial” interrogation for purposes of Miranda, even though the

14 individual is seized and cannot leave. State v. Sanchez, 2001-NMCA-109, ¶ 22, 131

15 N.M. 355, 36 P.3d 446 (applying this rationale in the context of a DWI investigation).

16 Because some of the statements do appear to have taken place after Defendant was

17 taken into custody, i.e., transported to the police station and processed, he would

18 undoubtedly be entitled to Miranda warnings at that time. However, the district court

19 determined that Defendant had received the Miranda warnings at the police station.


                                              6
 1 [RP 111] In other words, the district court determined that, to the extent statements

 2 were made at the station, Defendant knowingly, intelligently, and voluntarily waived

 3 his constitutional rights under Miranda. See State v. Barrera, 2001-NMSC-014, ¶ 22,

 4 130 N.M. 227, 22 P.3d 1177. In the absence of a specific factual showing rebutting

 5 the district court’s determination that the statements were either made in the absence

 6 of questioning, prior to custodial interrogation, or made voluntarily after being

 7 mirandized, we conclude that Defendant has not established that the district court

 8 erred in denying his motion. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M.

 9 393, 981 P.2d 1211 (noting that there is a presumption of correctness in the rulings or

10 decisions of the district court and the party claiming error bears the burden of showing

11 such error).

12        For the reasons stated in this opinion, we affirm.

13        IT IS SO ORDERED.


14                                          __________________________________
15                                          JONATHAN B. SUTIN, Judge
16 WE CONCUR:


17 ______________________________________
18 CYNTHIA A. FRY, Chief Judge


19 ______________________________________
20 JAMES J. WECHSLER, Judge

                                              7
