 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. 29,606

10 ANTHONY LIELLO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   M. Victoria Wilson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Kathleen T. Baldridge, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 KENNEDY, Judge.

25          Defendant appeals from his convictions for driving under the influence of
 1 drugs, possession of marijuana, and possession of drug paraphernalia, which were

 2 entered pursuant to his conditional guilty plea. In the plea agreement, Defendant

 3 reserved the right to appeal the denial of his motion to suppress. On appeal,

 4 Defendant argues that his high degree of nervousness at a DWI checkpoint did not

 5 provide the officer with reasonable suspicion of criminal activity to justify sending

 6 him to the secondary inspection area. We agree with Defendant and reverse.

 7 DISCUSSION

 8        Suppression rulings involve mixed questions of fact and law. See State v.

 9 Vandenberg, 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19. Factual questions

10 we review for substantial evidence and then view the facts in the light most favorable

11 to the prevailing party. See id. ¶ 18. Legal questions we review de novo, including

12 the constitutional reasonableness of the officers’ actions. See id. ¶ 19.

13        A pivotal legal question in this case is whether the law requires an officer to

14 articulate reasonable suspicion of criminal activity to justify sending a motorist to a

15 secondary inspection area at a DWI checkpoint or whether a lesser suspicion is

16 permitted. Defendant argues that his prolonged detention at the sobriety checkpoint

17 violated both his federal and state constitutional rights. The parties do not dispute on

18 appeal that the officer must have constitutionally reasonable suspicion. In State v.

19 Cardenas-Alvarez, the New Mexico Supreme Court observed that under federal law


                                              2
 1 checkpoint stops “may be conducted at primary or secondary inspection areas without

 2 suspicious circumstances.” 2001-NMSC-017, ¶ 9, 130 N.M. 386, 25 P.3d 225. The

 3 New Mexico Supreme Court held that the New Mexico Constitution, however,

 4 provides greater protection for secondary detentions at routine checkpoint stops,

 5 requiring reasonable suspicion of criminal activity. See id. ¶ 16. Because Defendant

 6 asserted this greater protection in district court, we apply the state constitutional

 7 standard to the decision to send Defendant to the secondary inspection area. See State

 8 v. Neal, 2007-NMSC-043, ¶ 20, 142 N.M. 176, 164 P.3d 57 (“Following a valid stop

 9 and reasonably related investigation, further detention requires reasonable suspicion

10 of criminal activity.” (citation omitted)).

11        “[R]easonable suspicion is measured by an objective standard, in which the

12 court examines the totality of the surrounding circumstances, to determine whether the

13 officer acted reasonably in expanding the scope of inquiry.” Id. ¶ 21 (internal

14 quotation marks and citation omitted). “A reasonable suspicion is a particularized

15 suspicion, based on all the circumstances that a particular individual, the one detained,

16 is breaking, or has broken, the law.” Id. (internal quotation marks and citation

17 omitted). “In the absence of specific and particularized incriminating information

18 about the criminal activity that defendant is or is about to engage in, generalized

19 suspicions . . . [are] insufficient to create reasonable suspicion for an investigatory


                                                 3
 1 detention.” Id. ¶ 25 (internal quotation marks and citation omitted).

 2        At the suppression hearing, Captain Richard Williams testified about the

 3 encounter he had with Defendant while on duty at a DWI checkpoint. Captain

 4 Williams remembered when Defendant pulled up to the checkpoint, his attention was

 5 immediately caught by Defendant’s extreme nervousness and shaky hands. The

 6 captain testified that Defendant’s nervousness was extreme and the captain was

 7 concerned about Defendant’s ability to drive while shaking that much. Captain

 8 Williams observed two unopened cans of beer next to the driver’s seat and asked

 9 Defendant if he had consumed any alcohol that day. Defendant responded, “not yet.”

10 The captain testified that he did not know why Defendant was so nervous and that he

11 did not suspect drinking; he was “just concerned” based on the brief moment he had

12 to evaluate Defendant. Captain Williams emphasized that he would not be able to

13 make a determination based on a minute-long conversation. He further testified that

14 most officers would have completed the investigation at the primary inspection area,

15 but that as the captain, he asked one of his officers to take over and conduct his own

16 investigation at the secondary inspection area. The captain stated that his uncertainty

17 about the reason for Defendant’s nervousness was why he had someone else conduct

18 the investigation and why he directed Defendant to the secondary inspection area.

19        Captain Williams stated his understanding that in order to send motorists for a


                                              4
 1 secondary inspection, he was looking for impairment. When asked how nervousness

 2 indicates impairment, the captain stated that in his experience with methamphetamine

 3 users, they become highly nervous, agitated, and paranoid. When asked what other

 4 facts the officer could point to, he responded that he used his experience to arrive at

 5 a reasonable suspicion that Defendant was “tweaking.”

 6        In its order denying Defendant’s motion to suppress, the district court expressly

 7 refused to consider any testimony the captain gave regarding his suspicions that

 8 Defendant was “tweaking” from methamphetamine use. Because we do not consider

 9 evidence for the first time on appeal and do not make implicit or explicit credibility

10 determinations, we too refuse to consider this testimony as part of the totality of the

11 circumstances that could lead to reasonable suspicion of criminal activity. See State

12 v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that we

13 defer to the district court as fact finder to resolve any conflict in the testimony of the

14 witnesses and to determine where weight and credibility lay). The district court

15 concluded that Captain Williams had reasonable suspicion of impairment to direct

16 Defendant to the secondary inspection, based on his experience of seventeen years and

17 Defendant’s extreme nervousness and shaky hands. The district court explicitly

18 rejected the evidence linking impairment to anything other than Defendant’s

19 nervousness and shaky hands. Therefore, despite the State’s reliance on the fact in


                                               5
 1 their brief, we consider only whether the captain’s testimony established reasonable

 2 suspicion of impairment based on Defendant’s nervousness and shaky hands.

 3        Our case law dealing with a defendant’s nervousness and physical signs of

 4 nervousness acknowledges that, combined with other suspicious circumstances, an

 5 officer may develop a reasonable suspicion of criminal activity, or, with sufficiently

 6 specific testimony, an officer could develop a reasonable suspicion that the defendant

 7 is armed and dangerous. State v. Chapman, 1999-NMCA-106, ¶¶ 2, 16-18, 127 N.M.

 8 721, 986 P.2d 1122; see, e.g., State v. Guzman, 118 N.M. 113, 116, 879 P.2d 114, 115

 9 (Ct. App. 1994); Vandenberg, 2003-NMSC-030, ¶¶ 4-6, 8-10, 28-33. These and other

10 cases have firmly established that a generalized report of nervousness, alone, is not

11 enough for an officer to develop a reasonable suspicion of criminal activity or to

12 justify a protective frisk. See State v. Gutierrez, 2008-NMCA-015, ¶ 18, 143 N.M.

13 522, 177 P.3d 1096; Neal, 2007-NMSC-043, ¶ 29; Vandenberg, 2003-NMSC-030, ¶

14 31.

15        We see material distinctions between the case law involving nervousness that

16 led to reasonable suspicion and the case at hand. In Guzman, a border checkpoint

17 case, the officer smelled an overwhelming odor of air freshener from five or six feet

18 away from the defendant’s vehicle, which indicated to the experienced officer that the

19 defendant was attempting to mask the odor of unlawful drugs. See Guzman, 118 N.M.


                                             6
 1 at 115-16, 879 P.2d at 114-15. Further, the officer observed that the defendant was

 2 nervous, his hands were shaking, and his eyes were darting around to avoid eye

 3 contact with the officer. See id. at 115, 879 P.2d at 114. Traffic at the checkpoint was

 4 backing up and he referred the defendant to the secondary inspection area. See id.

 5 This Court noted that “[n]ervousness during a routine checkpoint stop is more

 6 significant than nervousness when one’s vehicle is singled out from traffic for a police

 7 stop.” Id. at 116, 879 P.2d at 115. This Court held that the unusually strong odor of

 8 air freshener was a reliable factor in establishing reasonable suspicion, which

 9 combined with the defendant’s unusual nervousness, justified the officer’s decision

10 to send the defendant to the secondary inspection area. See id.

11        In contrast, in the current case, the captain reported only that Defendant was

12 extremely nervous and that his hands were shaking at the checkpoint stop combined

13 with no other observations of suspicious conduct. Also, unlike the officer’s testimony

14 in Guzman, the captain in the current case did not express any concerns about the

15 traffic backing up as a result of the length of his investigation at the primary

16 checkpoint. In fact, the captain testified that traffic was not backed up and that he did

17 not make any effort to maintain a flow of traffic through the roadblock because of

18 safety concerns. Rather, he testified that he exercised his discretion as the captain to

19 have another officer take over the investigation, and emphasized he had only a brief


                                               7
 1 moment to evaluate Defendant without offering any reason for this degree of brevity.

 2 The captain further stated that during the moment he interacted with Defendant, he did

 3 not “know what the issue was,” and sent Defendant to another officer for a secondary

 4 inspection. The captain’s testimony does not establish nervousness plus the other

 5 relevant factors of the type considered sufficient for a secondary investigation in

 6 Guzman.

 7         Where an officer develops concerns that stem from a person’s nervousness,

 8 New Mexico cases will not rely solely upon this information to expand the stop

 9 without further specifically articulated concerns of escalating circumstances that occur

10 during the intial investigation stage of such stop. See Vandenberg, 2003-NMSC-030,

11 ¶¶ 25-31; Chapman, 1999-NMCA-106, ¶¶ 2, 16-18; cf. State v. Patterson,

12 2006-NMCA-037, ¶ 29, 139 N.M. 322, 131 P.3d 1286 (“An officer’s statement

13 concerning a person’s nervousness without an articulation of specific reasons of

14 concern is insufficient to support a finding of individualized suspicion.”). Our Courts

15 have little regard for nervousness alone. In Chapman, we emphasized that “[i]nstead

16 of just describing [the d]efendant as nervous, the deputy identified specific behaviors

17 and changes in [the d]efendant’s demeanor and attitude that explain why he believed

18 that [the d]efendant might be armed and dangerous.” Chapman, 1999-NMCA-106,

19 ¶ 16.


                                              8
 1        In Vandenberg, the New Mexico Supreme Court reaffirmed our analysis in

 2 Chapman, and emphasized the need for officers to provide “other specific

 3 observations that made them anxious for their personal safety . . . [i]n addition to

 4 extreme nervousness.” See Vandenberg, 2003-NMSC-030, ¶ 28. Like the officer in

 5 Chapman, the officer in Vandenberg testified about the unusual degree of the

 6 defendants’ nervousness, and specifically described his feeling that the driver “was

 7 trying to expel nervous energy through his movement, stretching, drumming his

 8 fingers on the roof of the car.” Id. ¶ 29. During the traffic stop, the driver and

 9 passenger were often speaking to each other; the passenger was fidgeting and looking

10 around and in the glove compartment; and the driver was looking over his shoulder

11 and in the rearview mirror, always making himself aware of the location of the officer.

12 See id. ¶¶ 9, 29. The officer testified that based on his training and experience, people

13 who are nervous to that degree “are often a threat to officer safety because they are

14 unpredictable; [and their] nervousness indicated that [the defendants] may have been

15 in ‘fight or flight’ mode, a concept he learned at the law enforcement academy.” Id.

16 ¶ 29. Based on the defendants’ nervous and excessive movements, together with the

17 information about their nervous and suspicious behavior that the officer received in

18 a BOLO, and the officer’s interpretation of their behavior, the officer was concerned

19 for his safety and asked if they had any weapons and then required a protective frisk


                                               9
 1 for weapons. See id. ¶ 29. The officer went on to describe how each request he made

 2 “was met with increasing nervousness and symptoms of potentially unpredictable

 3 behavior, and sometimes with evasive or hostile behavior.” Id. ¶ 30.

 4        The Court held that the officer could have reasonably considered the defendants

 5 to be armed and dangerous to justify a protective frisk for weapons. See id. The

 6 Court cautioned that nervousness is but a mere factor in the calculus and that it is not

 7 the degree of nervousness that permits the intrusion, but the officer’s articulation of

 8 specific reasons why the nervousness caused the officer to reasonably fear for his or

 9 her safety. See id. ¶ 31. The Court’s majority opinion described Vandenberg as a

10 “very close case,” id. ¶ 33, and focused on the importance of officer safety, see id. ¶¶

11 34-36, emphasizing that “[m]ore was at stake here than mere evidence.” Id. ¶ 33.

12        The differences between the captain’s testimony in the current case and the

13 officers’ testimony in Chapman and Vandenberg are substantial. The captain’s

14 testimony in this case does not reveal that he proceeded incrementally or engaged in

15 much investigation into Defendant’s nervousness at all. Instead, the captain indicated

16 that he sent Defendant to the secondary inspection area so that another officer could

17 investigate Defendant’s nervousness. The captain’s testimony that linked any degree

18 of specificity regarding Defendant’s nervousness to his suspicion of impairment was

19 rejected by the district court. Therefore, we are left with the captain’s generalized


                                              10
 1 concern about Defendant’s nervousness and shaky hands and a bald legal conclusion

 2 that this conduct can be equated with reasonable suspicion of impairment. See

 3 Vandenberg, 2003-NMSC-030, ¶ 31 (warning that our case law has “not adopt[ed] a

 4 rule equating simple nervousness with reasonable suspicion”). Our Courts have not

 5 supported an inarticulate link between nervousness and impairment.

 6        If the Supreme Court considered Vandenberg to be a very close case even with

 7 the officer’s safety at issue, the BOLO information, the officer’s detailed observations

 8 about the defendants’ escalating conduct, and his testimony specifically identifying

 9 why their conduct reasonably caused him to believe the defendants were armed and

10 dangerous, then the captain’s generalized concern in the current case about

11 Defendant’s extreme nervousness falls well short of establishing reasonable suspicion

12 of driving while impaired, and no such link or assumption was ever articulated in this

13 case. Finding that the officer did not have a reasonable suspicion of criminal activity,

14 Defendant’s prolonged detention at the DWI checkpoint was without a lawful basis.

15 CONCLUSION

16        For the reasons set forth above, we reverse the district court’s denial of

17 Defendant’s motion to suppress.




                                              11
1      IT IS SO ORDERED.



2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge

4 WE CONCUR:



5 _________________________________
6 MICHAEL D. BUSTAMANTE, Judge



7 _________________________________
8 TIMOTHY L. GARCIA, Judge




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