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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   No. 31,251

 5 JOSEPH CARRILLO,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Reed S. Sheppard, District Judge

 9 Gary K. King, Attorney General
10 James W. Grayson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Law Office of Craig C. Kling
14 Craig C. Kling
15 San Diego, CA

16 for Appellee

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   The State appeals from the district court order granting Defendant’s motion to

 2 suppress. We agree with the district court that the facts failed to establish reasonable

 3 suspicion to justify Defendant’s investigatory detention. We therefore affirm.

 4 BACKGROUND

 5   {2}   Following an evidentiary hearing, the district court made findings of fact in its

 6 order granting Defendant’s motion to suppress. On appeal, the parties do not dispute

 7 these findings by the district court or their support in the record, thus we accept them

 8 as conclusive. See State v. Slayton, 2009-NMSC-054, ¶ 11, 147 N.M. 340, 223 P.3d

 9 337 (“When there are no challenges to the district court’s factual findings, we accept

10 those findings as conclusive.” (internal quotation marks and citation omitted)). Those

11 findings are as follows.

12   {3}   Shortly before noon on October 6, 2009, Detectives Linson and Landavazo of

13 the Albuquerque Police Department (APD) were working undercover in separate

14 unmarked vehicles at the 4-H Park in Albuquerque. APD had previously received

15 complaints from residents in the area about possible narcotics activity in the park.

16 Detective Linson observed a male occupant of a parked pickup truck (the driver) make

17 a couple of quick phone calls. After about five minutes, a man, later identified as

18 Defendant, pulled up and parked behind the truck. The driver then exited his truck


                                               2
 1 and “walked with some motivation” to Defendant’s vehicle, at which time Detective

 2 Linson observed what appeared to be a hand-to-hand transaction that lasted three to

 3 four seconds. However, Detective Linson did not see what was exchanged. Detective

 4 Linson reported his observations to Detective Landavazo, whose view of this

 5 interaction between Defendant and the driver was blocked.

 6   {4}   Based on what Detective Linson had observed, the detectives believed

 7 Defendant was a drug dealer, and when he drove away from the park, they followed

 8 him. Defendant pulled into a Walgreens parking lot and parked, and the detectives

 9 stopped their vehicles beside him. As the detectives approached, Defendant started

10 to exit his vehicle, and the detectives unholstered their weapons and held them at the

11 low ready. Detective Linson ordered Defendant out of his vehicle and advised

12 Defendant that he was going to do a pat-down. Defendant threw down a cigarette

13 pack, saying, “It’s just personal use.” Defendant was handcuffed and Detective

14 Linson searched the cigarette pack and found three small round packages that tested

15 presumptively positive for heroin.

16   {5}   Prior to trial, Defendant moved to suppress the heroin as the fruit of an

17 unreasonable seizure, arguing that he was seized in the Walgreens parking lot and that

18 Detective Linson’s observations in the 4-H Park did not provide reasonable suspicion


                                             3
 1 to justify his seizure. See generally State v. Ingram, 1998-NMCA-177, ¶ 9, 126 N.M.

 2 426, 970 P.2d 1151 (“Evidence which is obtained as a result of an unconstitutional

 3 search or seizure may be suppressed under the exclusionary rule.” (internal quotation

 4 marks and citation omitted)). The district court granted Defendant’s motion to

 5 suppress, expressly relying on State v. Neal, 2007-NMSC-043, 142 N.M. 176, 164

 6 P.3d 57.

 7 ANALYSIS

 8   {6}   Reviewing a motion to suppress is typically a two-step process: we first look

 9 for substantial evidence to support the district court’s factual findings, with deference

10 to the district court’s review of the testimony and other evidence presented, and then

11 we review de novo the district court’s application of law to the facts to determine

12 whether the search or seizure was reasonable. Neal, 2007-NMSC-043, ¶ 15. The

13 burden to show reasonableness is on the State. State v. Rowell, 2008-NMSC-041,

14 ¶ 10, 144 N.M. 371, 188 P.3d 95. “Questions of reasonable suspicion are reviewed

15 de novo by looking at the totality of the circumstances to determine whether the

16 detention was justified.” State v. Robbs, 2006-NMCA-061, ¶ 9, 139 N.M. 569, 136

17 P.3d 570; see also State v. Vandenberg, 2003-NMSC-030, ¶ 19, 134 N.M. 566, 81

18 P.3d 19 (providing that it is “the duty of appellate courts to shape the parameters of


                                               4
 1 police conduct by placing the constitutional requirement of reasonableness in factual

 2 context” (internal quotation marks and citation omitted)).

 3   {7}   “Both the Fourth Amendment to the United States Constitution and Article II,

 4 Section 10, of the New Mexico Constitution protect the right of the people to be free

 5 from unreasonable searches and seizures.” State v. Gutierrez, 2004-NMCA-081, ¶ 6,

 6 136 N.M. 18, 94 P.3d 18. The parties’ arguments, the district court ruling, and the

 7 Neal decision upon which it was premised address only the scope of Fourth

 8 Amendment protections. For this reason, we limit our analysis to the Fourth

 9 Amendment and do not address whether the New Mexico Constitution provides

10 greater protections for issues involving reasonable suspicion. See generally State v.

11 Lorenzo P., 2011-NMCA-013, ¶ 9, 149 N.M. 373, 249 P.3d 85 (limiting our analysis

12 to federal constitutional protection when the appellee presented no argument on appeal

13 as to why Article II, Section 18 of the New Mexico Constitution may provide him

14 greater due process protection).

15   {8}   Fourth Amendment protections extend to investigatory detentions that fall short

16 of arrests. Neal, 2007-NMSC-043, ¶ 18; see also State v. Javier M., 2001-NMSC-

17 030, ¶ 19, 131 N.M. 1, 33 P.3d 1 (recognizing that investigatory detentions are Fourth

18 Amendment seizures of limited scope and duration). The central inquiry under the


                                              5
 1 Fourth Amendment is reasonableness, which involves two questions: “whether the

 2 officer’s action was justified at its inception, and whether it was reasonably related in

 3 scope to the circumstances which justified the interference in the first place.” Neal,

 4 2007-NMSC-043, ¶ 18 (internal quotation marks and citation omitted). The parties

 5 do not dispute the district court ruling that Defendant was seized in the parking lot;

 6 their arguments address only whether the seizure was justified at its inception.

 7   {9}   Under the Fourth Amendment, “police officers may stop a person for

 8 investigative purposes where, considering the totality of the circumstances, the

 9 officers have a reasonable and objective basis for suspecting that particular person is

10 engaged in criminal activity.” State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973

11 (1994) (internal quotation marks and citation omitted). While reasonable suspicion

12 requires a showing of less than a preponderance of the evidence, see State v. Urioste,

13 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964, the Fourth Amendment requires

14 at least a minimal level of objective justification. See State v. Funderburg, 2007-

15 NMCA-021, ¶ 14, 141 N.M. 139, 151 P.3d 911 (“Reasonable suspicion entails some

16 minimal level of objective justification . . . that is, something more than an inchoate

17 and unparticularized suspicion, but less than the level of suspicion required for

18 probable cause.”), rev’d on other grounds, 2008-NMSC-026, 144 N.M. 37, 183 P.3d


                                               6
 1 922. To this end, police officers must be “aware of specific articulable facts” that,

 2 judged objectively, “would lead a reasonable person to believe criminal activity

 3 occurred or was occurring.” State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232,

 4 923 P.2d 599 (internal quotation marks and citation omitted). When considering the

 5 facts and information known to the officer, the court may view all the circumstances

 6 keeping in mind the officer’s special training and experience. State v. Gonzales,

 7 2011-NMSC-012, ¶ 15, 150 N.M. 74, 257 P.3d 894.

 8   {10}   As noted above, the district court expressly relied on Neal to conclude that

 9 Detective Linson’s observations in the 4-H Park did not provide reasonable suspicion

10 for Defendant’s subsequent seizure in the Walgreens parking lot. The core issue

11 confronted by our Supreme Court in Neal was whether the officer had “individual,

12 particularized reasonable suspicion with respect to [the d]efendant” that “drugs would

13 be found in the [defendant’s] truck” to justify detention of the vehicle to conduct a

14 canine sniff. 2007-NMSC-043, ¶ 22. The facts of Neal are instructive. Prior to the

15 stop, the officer observed a truck parked outside a house under surveillance for drug

16 activity. Id. ¶ 4. The defendant was in the driver’s seat and another man was leaning

17 into the truck through the driver’s side window. Id. The officer could not see the two

18 individuals’ hands or hear what they were saying, but believed that he had observed


                                              7
 1 a drug transaction. Id. ¶ 5. The officer decided to approach the vehicle to talk with

 2 the two individuals, but before he could, the truck drove away and the man returned

 3 to the house. Id. The officer followed the truck in his patrol car and subsequently

 4 pulled the defendant over for a cracked windshield. Id. During the stop, he

 5 recognized the defendant as an individual with prior drug and assault convictions, and

 6 he also learned that the man he saw leaning into the defendant’s vehicle was an

 7 individual the officer knew had been involved in other criminal activity and who was

 8 currently under investigation for drugs. Id. ¶¶ 5, 7. The defendant became nervous

 9 during the stop, avoided eye contact with the officer, appeared as though he wished

10 to leave, and did not give the officer his consent to search the vehicle. Id. ¶¶ 7-8.

11   {11}   Our Supreme Court held that the totality of the foregoing circumstances did not

12 constitute “the type of individualized, specific, articulable circumstances necessary

13 to create reasonable suspicion that [the d]efendant himself was involved in criminal

14 activity.” Id. ¶ 31. Reasonable suspicion was found lacking despite the defendant’s

15 stop in front of a house under surveillance for drug activity, his conversation with a

16 convicted felon under investigation for drug activity, his behavior during the traffic

17 stop, and his refusal to allow the officer to search his car. Id. ¶¶ 28-31. Even

18 considering the officer’s specialized training, our Supreme Court concluded that it was


                                               8
 1 not reasonable for the officer to infer that the defendant had been involved in a drug

 2 transaction and that the officer, therefore, had reasonable suspicion to detain the

 3 vehicle. Id. ¶ 31. Instead, our Supreme Court agreed that “these circumstances smack

 4 more of the type of conjecture and hunch we have rejected in the past as insufficient

 5 to constitute reasonable suspicion” and thus the officer “lacked the requisite

 6 reasonable suspicion to detain [the d]efendant’s truck to await a canine sniff.” Id. ¶¶

 7 31-32.

 8   {12}   As in Neal, the core issue before us in this case is whether the detectives had

 9 specific and articulable facts to support a reasonable suspicion that Defendant was

10 selling drugs at the park. Prior to his seizure, Detective Linson was observing another

11 man in a parked truck at a public park when Defendant pulled up in his vehicle.

12 Although the police had received complaints from residents about possible narcotics

13 activity in the area, the district court found that the park “is not the most notorious

14 park for drug deals” in Albuquerque and that Detective Linson had acknowledged that

15 “there is a possibility of drug activity in any public place.” Additionally, Detective

16 Linson testified on cross-examination that he did not know what the relationship

17 between these two individuals was, and he had no prior knowledge of Defendant, the

18 driver, or their vehicles. There was no evidence that Defendant, the driver, or the park


                                               9
 1 itself were the subjects of a specific police operation to investigate drug crimes like

 2 the residence and the defendant’s associate in Neal.

 3   {13}   After Defendant parked his vehicle behind the truck, Detective Linson watched

 4 the driver approach Defendant’s vehicle to make what appeared to be a three- to

 5 four-second, hand-to-hand transaction in which an unknown item was exchanged.

 6 The detective was unable to identify what was exchanged between the two men; only

 7 that “some type of item [was] exchanged between the two,” and he gave no further

 8 explanation of what he believed the item to be or which individual was the recipient

 9 of the item. Based on these limited facts, the detectives believed Defendant was

10 selling drugs.

11   {14}   The State challenges the district court’s reliance on Neal in granting

12 Defendant’s motion to suppress, contending that the district court “erroneously

13 determined that Neal controls the outcome in this case.” Defendant responds that “the

14 facts of [Defendant’s] case clearly mirror the Supreme Court’s determination in Neal

15 and require suppression of the evidence.” We agree with Defendant. The facts in

16 Neal more strongly suggested reasonable suspicion for the seizure than the facts

17 before us in this case, and in Neal, our Supreme Court held that reasonable suspicion

18 was lacking.


                                              10
1   {15}   In light of the totality of these circumstances and our Supreme Court’s

2 conclusion in Neal, we affirm the order of the district court holding that the detectives

3 did not have reasonable suspicion to seize Defendant in the Walgreens parking lot.

4 CONCLUSION

5   {16}   The district court order granting Defendant’s motion to suppress is affirmed.

6   {17}   IT IS SO ORDERED.

7                                                 ______________________________
8                                                 MICHAEL E. VIGIL, Judge
9 WE CONCUR:


10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge


12 _________________________________
13 JONATHAN B. SUTIN, Judge




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