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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. A-1-CA-35043

 5 DANAN BERNARDO GABALDON,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Walter Hart, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Chief Public Defender
15 B. Douglas Wood III, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee

18                                 MEMORANDUM OPINION

19 BOHNHOFF, Judge.
 1   {1}   At approximately 8:00 a.m. on March 3, 2015, and in response to a call to the

 2 Bernalillo County Sheriff’s Department regarding a suspicious white van that was

 3 parked in front of a house under construction in Bernalillo County’s South Valley,

 4 Sheriff’s Officer Lee Madrid attempted to question Defendant Danan Gabaldon as he

 5 was seated in the van. Instead of rolling down his window and speaking with Officer

 6 Madrid, Defendant drove off. A chase ensued and Defendant ultimately was arrested

 7 and indicted for several crimes including aggravated fleeing a law enforcement officer

 8 in violation of NMSA 1978, Section 30-22-1.1(A) (2003), and assault with intent to

 9 commit a violent felony upon a peace officer in violation of NMSA 1978, Section 30-

10 22-23 (1971). Defendant successfully moved to suppress statements and other

11 evidence obtained as a result of the episode on the grounds that the initial encounter

12 was an illegal seizure in violation of Article II, Section 10 of the New Mexico

13 Constitution. The State appeals. We reverse.

14 BACKGROUND

15   {2}   The exclusionary rule generally bars the State from using, in connection with

16 a criminal prosecution, evidence obtained as a direct result of an unlawful seizure. See,

17 e.g., State v. Portillo, 2011-NMCA-079, ¶ 25, 258 P.3d 466 (holding that “evidence

18 discovered as a result of the exploitation of an illegal seizure must be suppressed




                                               2
 1 unless it has been purged of its primary taint”). Defendant’s August 20, 2015 motion

 2 sought an order suppressing the State’s use of the following evidence:

 3         1.     Any and all controlled substances and/or drug paraphernalia
 4                seized from the person or property of Defendant on or about
 5                March 3, 2014 [sic].

 6         2.     Any and all statements made by Defendant as the result of the
 7                illegal search and seizure of his or her person on March 3, 2014
 8                [sic].

 9         3.     All other fruits of the unconstitutional and unlawful seizure or
10                search of Defendant.

11   {3}   At the September 11, 2015 hearing on the motion to suppress, the district court

12 heard testimony from four sheriff’s deputies, including Officer Madrid. On the basis

13 of that testimony, the court made the following findings of fact, which neither the

14 State nor Defendant challenge, in its September 30, 2015 order, granting the motion

15 to suppress:

16         1.     Officer Lee Madrid was dispatched to an address near Barcelona
17                SW in Albuquerque, New Mexico in reference to a “suspicious
18                vehicle.”

19         2.     Specifically, dispatch reported that the caller referenced a
20                suspicious white van parked at a vacant residence that was under
21                construction.

22         3.     According to the anonymous caller, the occupants of the van were
23                looking around the house and through the windows.

24         4.     Officers Madrid and [Haworth] arrived at the residence in their
25                police uniforms in two separate marked police vehicles.


                                              3
 1   5.    As they arrived, Officer Madrid observed a white van parked on
 2         the east side of the residence. The engine on the van was still
 3         running.

 4   6.    Officer Madrid admittedly knew nothing about the van parked
 5         near the residence. He did not know whether the van possibly
 6         belonged to a construction worker or the owner of the house.

 7   7.    Initially when Officer Madrid approached the van, there was a
 8         male and female lying in the back of the van. They appeared to be
 9         asleep. The driver and passenger seats of the van were empty.

10   8.    Officers Madrid and [Haworth] executed a perimeter check
11         around the residence; they verified no one was in or near the
12         vacant residence.

13   9.    Officer Madrid completed a perimeter check before approaching
14         the van to ensure that no one would unexpectedly approach them
15         as they were questioning the occupants of the van.

16   10.   No one was located at the house during the perimeter check.

17   11.   After completing the perimeter check, Officers Madrid and
18         [Haworth] approached the van to determine why the occupants
19         were at the house and what they were doing there.

20   12.   . . . Defendant . . . was now in the driver’s seat and the female was
21         in the passenger’s seat. This concerned Officer Madrid. This led
22         him to believe the occupants of the van were trying to flee.

23   13.   Officer Madrid ran up to . . . the Defendant’s van. He pounded on
24         the windows of the van, telling . . . Defendant, “Sheriff's
25         Department.” Officer Madrid instructed . . . Defendant to roll
26         down his window.

27   14.   Officer Madrid grabbed onto the driver’s side mirror to stabilize
28         himself as he approached . . . Defendant’s van.



                                         4
 1         15.   Officer Madrid testified that during the initial encounter
 2               with . . . Defendant, . . . Defendant was not free to leave.

 3         16.   . . . Defendant looked at Officer Madrid and smiled. . . . Defendant
 4               put the van in gear and “took off down the road.”

 5   {4}   The district court concluded that this encounter was a seizure within the

 6 meaning of Article II, Section 10 of the New Mexico Constitution, which generally

 7 prohibits law enforcement from seizing individuals without first obtaining a warrant.

 8 See State v. Garcia, 2009-NMSC-046, ¶ 37, 147 N.M. 134, 217 P.3d 1032 (holding

 9 that a person is seized if, “in view of all the circumstances surrounding the incident,

10 a reasonable person would have believed that he was not free to leave” (internal

11 quotation marks and citation omitted)); State v. Rowell, 2008-NMSC-041, ¶ 10, 144

12 N.M. 371, 188 P.3d 95 (“Any warrantless search analysis must start with the bedrock

13 principle of both federal and state constitutional jurisprudence that searches conducted

14 outside the judicial process, without prior approval by a judge or magistrate, are per

15 se unreasonable, subject only to well-delineated exceptions.” (emphasis, internal

16 quotation marks, and citation omitted)). The court rejected the State’s argument that

17 the seizure was subject to the “community caretaker” exception to the warrant

18 requirement. See State v. Ryon, 2005-NMSC-005, ¶ 24, 137 N.M. 174, 108 P.3d 1032

19 (holding that warrants, probable cause to arrest, and reasonable suspicion to conduct

20 an investigatory stop are not required when police act as community caretakers



                                              5
 1 unrelated to crime-solving). The court also rejected the State’s alternative argument

 2 that the initial encounter was subject to an exception for investigatory detentions that

 3 are supported by reasonable suspicion. See State v. Jason L., 2000-NMSC-018, ¶ 20,

 4 129 N.M. 119, 2 P.3d 856 (noting that “not all seizures are unconstitutional. We

 5 recognize an officer may detain a person in order to investigate possible criminal

 6 activity. Investigatory detention is permissible when there is a reasonable and

 7 articulable suspicion that the law is being or has been broken” (internal quotation

 8 marks and citation omitted)). Accordingly, the district court granted the motion.

 9   {5}   The State timely appealed the district court’s suppression order pursuant to

10 NMSA 1978, Section 39-3-3(B)(2) (1972), and Rule 12-201(A)(1)(a) NMRA.

11 DISCUSSION

12   {6}   On appeal, the State does not contest the district court’s determination that

13 Officer Madrid’s initial encounter with Defendant constituted a seizure. The State also

14 does not continue to argue that the seizure was permissible under the community

15 caretaker exception. However, the State maintains that Officer Madrid had reasonable

16 suspicion to conduct an investigatory detention of Defendant. Alternatively, the State

17 advances several theories in arguing that events that occurred after Defendant drove

18 off from the house under construction effectively purged any taint that resulted from

19 the illegal initial seizure, such that the exclusionary rule should not be applied to



                                              6
 1 suppress the State’s use of any of the evidence in question. Defendant urges that the

 2 State failed to raise and preserve below these alternative arguments.

 3   {7}   “The standard of review for suppression rulings is whether the law was

 4 correctly applied to the facts, viewing them in a manner most favorable to the

 5 prevailing party.” Jason L., 2000-NMSC-018, ¶ 10 (internal quotation marks and

 6 citation omitted). In doing so, the appellate court “observe[s] the distinction between

 7 factual determinations which are subject to a substantial evidence standard of review

 8 and application of law to the facts, which is subject to de novo review.” State v. Nieto,

 9 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration, internal quotation

10 marks, and citation omitted); see Garcia, 2009-NMSC-046, ¶ 9 (“Determinations of

11 reasonable suspicion are reviewed de novo.”).

12 Investigative Detention Standards

13   {8}   As stated above, “[i]nvestigatory detention is permissible when there is a

14 reasonable and articulable suspicion that the law is being or has been broken. A

15 reasonable suspicion is a particularized suspicion, based on all the circumstances that

16 a particular individual, the one detained, is breaking, or has broken, the law.” Jason

17 L., 2000-NMSC-018, ¶ 20 (internal quotation marks and citation omitted); State v.

18 Cobbs, 1985-NMCA-105, ¶ 12, 103 N.M. 623, 711 P.2d 900 (“The officer must be




                                               7
 1 able to base such reasonable suspicion upon specific articulable facts, together with

 2 rational inferences from those facts.” (internal quotation marks and citation omitted)).

 3   {9}    “Reasonable suspicion is judged by an objective standard[.]” State v.

 4 Hernandez, 1997-NMCA-006, ¶ 20, 122 N.M. 809, 932 P.2d 499. Determining

 5 whether an officer had a reasonable suspicion is assessed considering the totality of

 6 the circumstances and common-sense judgments and inferences about human

 7 behavior. See State v. Robbs, 2006-NMCA-061, ¶ 20, 139 N.M. 569, 136 P.3d 570.

 8 In assessing the totality of the circumstances, “police officers may draw on their own

 9 experience and specialized training to make inferences from and deductions about the

10 [available] information . . . that might well elude an untrained person.” State v. Neal,

11 2007-NMSC-043, ¶ 21, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and

12 citation omitted).

13   {10}   “The level of suspicion required for an investigatory stop is considerably less

14 than proof of wrongdoing by a preponderance of the evidence.” State v. Urioste, 2002-

15 NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964 (internal quotation marks and citation

16 omitted). Thus, “an officer may still form reasonable suspicion without knowing, with

17 some degree of certainty, that a crime had occurred.” Garcia, 2009-NMSC-046, ¶ 45;

18 State v. Candelaria, 2011-NMCA-001, ¶ 15, 149 N.M. 125, 245 P.3d 69 (noting that

19 “[t]he concept of reasonable suspicion has always embraced a certain degree of



                                               8
 1 uncertainty”). However, “[u]nsupported intuition and inarticulate hunches are not

 2 sufficient.” Jason L., 2000-NMSC-018, ¶ 20 (emphases added) (internal quotation

 3 marks and citation omitted); see Garcia, 2009-NMSC-046, ¶ 45 (“Mere speculation

 4 that [the defendant] may have committed an unspecified crime does not satisfy the

 5 constitutional requirement of reasonable suspicion.”).

 6   {11}   Importantly, “[a] reasonable suspicion of criminal activity can arise from

 7 wholly lawful conduct.” Urioste, 2002-NMSC-023, ¶ 10 (internal quotation marks and

 8 citation omitted). “In determining whether reasonable suspicion exists in a particular

 9 case, the relevant inquiry is not whether particular conduct is innocent or guilty, but

10 the degree of suspicion that attaches to particular types of noncriminal acts.” State v.

11 Harbison, 2007-NMSC-016, ¶ 15, 141 N.M. 392, 156 P.3d 30 (internal quotation

12 marks and citation omitted).

13 Analysis

14   {12}   In Cobbs, this Court articulated a useful framework for assessing the legality

15 of the investigatory detention:

16          [O]ur first inquiry is to determine what facts were available to [the
17          officer] and what inferences logically flowed from those facts.

18                ....

19          The next inquiry is whether [the officer]’s reasonable suspicion can
20          satisfy the objective test: Would the information relayed in the dispatch
21          combined with the officer’s observations . . . warrant a person of


                                               9
 1          reasonable caution in believing that criminal activity was possibly afoot,
 2          thus necessitating an investigatory stop?

 3 1985-NMCA-105, ¶¶ 14, 16.

 4   {13}   What facts, and inferences reasonably flowing therefrom, were available to

 5 Officer Madrid? First, reasonable suspicion may be based on an anonymous tip,

 6 provided it is “suitably corroborated or exhibits[s] sufficient indicia of reliability.”

 7 State v. Contreras, 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. “[A] tip is

 8 more reliable if it is apparent that the informant observed the details personally.” Id.

 9 ¶ 12. Officer Madrid knew that a neighbor had contacted the Bernalillo County

10 Sheriff’s Department to express concern that he or she had observed a “suspicious”

11 white van parked in front of a vacant residence that was under construction and that

12 the occupants of the van were looking around the house and through the windows. In

13 particular, the suspicion was that the vehicle “was casing the area and burglarizing the

14 area.” Officer Madrid inferred that the neighbor did not recognize the van as

15 belonging to another neighbor. He also took into account his experience that

16 construction sites are subject to frequent burglary.

17   {14}   Second, what Officer Madrid observed struck him as odd. When he arrived at

18 the location, it was approximately 8 a.m. As he approached the van, he heard the

19 engine running, yet no one was sitting in the driver’s and passenger seats. When he

20 looked in a van window, he saw a man and a woman lying down in the back of the


                                               10
 1 van, appearing to be asleep. Officer Madrid and his partner then walked around to see

 2 if anyone else was present. They found no one, which would indicate that the man and

 3 the woman lying in the van were the people observed by the neighbor a few minutes

 4 earlier looking into the house windows.

 5   {15}   Third, Officer Madrid then returned to the van for the purpose of asking

 6 Defendant and the woman why they were at the house and what they were doing. He

 7 now saw Defendant and the woman in the driver’s and passenger seats, respectively,

 8 of the van. Officer Madrid concluded they intended to drive off, so he ran up to the

 9 driver’s door, pounded on the window, and told Defendant to roll down the window.

10   {16}   In Officer Madrid’s words,

11          the van was running, so the part about that that was unusual to me was
12          the van was sitting there idling, and—which tells me somebody is awake.
13          I go and don’t see anybody in the front, so I’m like, ‘[h]um, that’s
14          interesting.’ Now I’m fully expecting to see someone in the yard or
15          around the house, what was called in, when we double check and look
16          in the back of the van when I see two people who appear to be
17          sleeping[.] I’m thinking, ‘[h]um this is interesting,’ just one odd thing
18          after another on that. So then after we check the perimeter of the house,
19          we came back to the van, obviously they were not just sleeping because
20          it took us maybe a minute or two to walk around the house for us to
21          come back to the van which, all of a sudden, they’re ready to go in the
22          front seat.

23 While the district court noted in its decision that Officer Madrid did not know whether

24 the van belonged to the owner of the home or a construction worker, he nevertheless

25 reasonably could surmise that this was not behavior one would expect from an owner


                                               11
 1 or a construction worker. Owners would not likely be walking around their house and

 2 looking in the windows, nor would they be lying down in the back of a van with the

 3 engine running and then a moment later be seen in the van’s front seats. Nor would

 4 a construction worker. At 8:00 a.m., a construction worker would be expected to, if

 5 anything, be either on the job or preparing to start the day, likely not sleeping in the

 6 back of a van whose engine is running. Further, both owners and construction workers

 7 could be expected to get out of a vehicle and approach law enforcement officers who

 8 are observed walking around their home under construction. The scene that Officer

 9 Madrid encountered is reasonably described as “unusual” and “odd” and was, in any

10 event, “a series of acts, each of them perhaps innocent in itself [that] taken together

11 warranted further investigation.” Terry v. Ohio, 392 U.S. 1, 22 (1968).

12   {17}   With the foregoing information received from the neighbor’s call and then his

13 own observations, together with reasonable inferences, Officer Madrid had more than

14 unsupported intuition or an inarticulate hunch. The facts of this case, therefore, are

15 distinguishable from those of Garcia, 2009-NMSC-046, and State v. Soto, 2008-

16 NMCA-032, 143 N.M. 631, 179 P.3d 1239. In Garcia, the officer knew only that he

17 was called to go to an address to a “possible domestic in progress” in which the caller

18 wanted a man named Joshua Garcia removed from the residence. 2009-NMSC-

19 046, ¶ 2 (internal quotation marks omitted). He saw an individual whom he did not



                                              12
 1 know at the intersection nearest the address in question and seized the individual.

 2 Id. ¶¶ 2-3. Because the officer had no information that a specific crime had been

 3 committed or that the individual he seized was the responsible party, the seizure was

 4 unlawful. Id. ¶¶ 45-46. Similarly, in Soto, police officers knew only that the defendant

 5 was riding a bicycle on a road that ran past a horse racetrack; the officers had no

 6 information that the defendant had engaged in any illegal activity. 2008-NMCA-032,

 7 ¶¶ 2-3. Here, Officer Madrid could identify Defendant as the person who had been

 8 observed by a neighbor who was walking around the home under construction,

 9 peering into the windows. He also had seen Defendant engage in behavior that, under

10 the circumstances, was questionable. Officer Madrid reasonably could form a

11 suspicion that Defendant had been attempting to burglarize the residence under

12 construction. See NMSA 1978, § 30-16-3 (1971); NMSA 1978 § 30-28-1 (1963).

13   {18}   The facts and holding of Cobbs provide guidance. There, a municipal police

14 department relayed to officers in a patrol car information received about suspicious

15 persons and a possible residential burglary in progress: two individuals, including the

16 defendant, had been observed “repeatedly approaching the rear door of a residence

17 and then returning to their vehicle [that] was parked behind the residence.” 1985-

18 NMCA-105, ¶ 4. When officers arrived at the residence, they “observed [the] car

19 parked behind the residence with its lights on and two passengers sitting in it.” Id. ¶ 5.



                                               13
 1 When the car started to leave, the officers pulled it over and, following a patdown of

 2 the defendant that revealed a firearm and drugs, arrested the defendant. Id. ¶¶ 5-10.

 3 On these facts, the officer “was amply justified in stopping the defendant.” Id. ¶ 17.

 4 The facts of this case reasonably give rise to, if anything, more suspicion of criminal

 5 activity than those present in Cobbs. Officer Madrid therefore properly could

 6 undertake an investigatory stop of Defendant in order to ask him why he had been

 7 walking around the residence and looking in the windows, and then returning to and

 8 lying in the back of the van with its engine running.

 9   {19}   We hold that the district court erred in determining that Officer Madrid did not

10 have reasonable suspicion to seize and detain Defendant, for investigatory purposes,

11 when Officer Madrid observed Defendant in the driver’s seat of the van. We decline

12 to consider, as unnecessary, the State’s remaining arguments and Defendant’s

13 contention that those arguments were not preserved.

14 CONCLUSION

15   {20}   We reverse the district court’s order granting Defendant’s motion to suppress

16 evidence and remand for further proceedings in accordance with this opinion.

17   {21}   IT IS SO ORDERED.


18
19                                           HENRY M. BOHNHOFF, Judge



                                               14
1 WE CONCUR:


2
3 LINDA M. VANZI, Chief Judge


4
5 JULIE J. VARGAS, Judge




                                15
