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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. 34,778

 5 JOSE L. MENDEZ,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando R. Macias, District Judge

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

13 for Appellant

14 Bennett J. Baur, Chief Public Defender
15 Becca Salwin, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee

18                                  MEMORANDUM OPINION

19 GARCIA, Judge.
 1   {1}   This appeal is before us on the district court’s order granting Defendant Jose

 2 Mendez’s motion to suppress evidence. Defendant was charged with possession of a

 3 controlled substance and possession of drug paraphernalia following a traffic stop on

 4 his bicycle where Defendant failed to stop at a stop sign. The officer conducting the

 5 traffic stop patted down Defendant for weapons and found the drugs and paraphernalia

 6 at issue. The district court granted Defendant’s motion to suppress the evidence,

 7 finding that it was the fruit of an illegal search and seizure. We conclude that the

 8 district court properly applied the law and there was substantial evidence to support

 9 the district court’s ruling. Furthermore, the district court did not err in rejecting the

10 State’s argument that the inevitable discovery doctrine should apply. We, therefore,

11 affirm the district court’s ruling.

12 BACKGROUND

13   {2}   On the night of June 20, 2014, City of Las Cruces Police Department Patrol

14 Sergeant Bobby Jaramillo was on patrol in an area where several businesses had “been

15 burglarized in the past.” He saw Defendant, whom he described as “a Hispanic male

16 . . . wearing a striped shirt . . . and backpack” traveling on a black bicycle. He

17 observed Defendant fail to stop at a stop sign. Sergeant Jaramillo engaged his

18 emergency lights and conducted a traffic stop.




                                               2
 1   {3}   Sergeant Jaramillo advised Defendant that he had “blown past” the stop sign.

 2 Sergeant Jaramillo requested Defendant’s permission to conduct a search for weapons,

 3 and Defendant consented to a pat-down search. Sergeant Jaramillo felt a bulge in

 4 Defendant’s pocket, that Sergeant Jaramillo believed to be a pipe used to smoke

 5 illegal narcotics. He asked Defendant if he could search his pocket, and Defendant

 6 consented. Sergeant Jaramillo pulled out a glass pipe from Defendant’s front pocket,

 7 and a small plastic container of what Defendant admitted to be methamphetamine

 8 from a second pocket. Sergeant Jaramillo called for assistance from a Metro Narcotics

 9 Agent and ran a check for warrants, learning that Defendant had two outstanding

10 warrants. Defendant was arrested and charged with possession of a controlled

11 substance, methamphetamine, pursuant to NMSA 1978, Section 30-31-23 (2011), and

12 possession of drug paraphernalia, pursuant to NMSA 1978, Section 30-31-25.1(A)

13 (2001).

14   {4}   Defendant filed a motion to suppress the evidence obtained on the basis that the

15 search violated Article II, Section 10 of the New Mexico Constitution and the Fourth

16 Amendment of the United States Constitution, including “[a]ny and all controlled

17 substances and/or drug paraphernalia seized from the person or property of

18 Defendant” and “[a]ll other fruits of the illegal seizure or search.” During the hearing

19 on the motion, Sergeant Jaramillo, the sole witness for the State, testified that he


                                               3
 1 always runs a check for warrants upon effectuating a traffic stop. Regarding the traffic

 2 stop of Defendant, Sergeant Jaramillo testified that he stopped Defendant because he

 3 ran a stop sign. When Sergeant Jaramillo turned on his emergency lights, Defendant

 4 stopped and got off his bicycle. Sergeant Jaramillo also testified that Defendant then

 5 started moving toward Sergeant Jaramillo. Sergeant Jaramillo identified himself and

 6 told Defendant the reason for the stop. Because it was dark, Defendant was wearing

 7 baggy clothes, and Sergeant Jaramillo could not see what was in Defendant’s waist

 8 band, Sergeant Jaramillo asked Defendant if he would turn around so he could

 9 conduct a pat-down search. Defendant complied with Sergeant Jaramillo’s verbal

10 directions and was cooperative. Defendant never made any threatening gestures.

11 Sergeant Jaramillo admitted that he intended to give Defendant a verbal warning for

12 running the stop sign but never did give such a warning. Instead, Sergeant Jaramillo

13 considered that the verbal warning was implied because Defendant was already

14 arrested on outstanding warrants, and Sergeant Jaramillo did not write him a citation

15 for failing to stop at the stop sign. The district court granted Defendant’s motion to

16 suppress the evidence seized as a result of the pat-down search by Sergeant Jaramillo.

17 The State timely appealed the suppression ruling to this Court.

18 DISCUSSION




                                              4
 1   {5}   The State makes two arguments on appeal. First, the State argues that the

 2 district court erred in granting Defendant’s motion to suppress based upon whether

 3 the pat-down of Defendant was unlawful because (1) Sergeant Jaramillo had

 4 reasonable suspicion to conduct the pat-down search, and (2) Defendant gave his

 5 consent to be searched. Alternatively, the State argues that even if the pat-down search

 6 was unconstitutional, suppression of the evidence was not justified because it was still

 7 admissible under the inevitable discovery doctrine.

 8 Standard of Review

 9   {6}   A motion to suppress concerns mixed questions of fact and law. State v.

10 Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review the district

11 court’s ruling on a motion to suppress to determine “whether the law was correctly

12 applied to the facts, viewing them in a manner most favorable to the prevailing

13 party[.]” State v. Boeglin, 1983-NMCA-075, ¶ 22, 100 N.M. 127, 666 P.2d 1274. In

14 this case, the district court entered only very limited factual findings and conclusions

15 of law. “In circumstances such as this, [the] practice has been to employ presumptions

16 and as a general rule, [the appellate courts] will indulge in all reasonable presumptions

17 in support of the district court’s ruling.” State v. Jason L., 2000-NMSC-018, ¶ 11, 129

18 N.M. 119, 2 P.3d 856 ( alteration, omission, internal quotation marks, and citation

19 omitted). We also recognize that the district court is “the sole judge of the credibility


                                               5
 1 of the witnesses and the weight to be given [to] the evidence[.]” State v. Notah-

 2 Hunter, 2005-NMCA-074, ¶ 7, 137 N.M. 597, 113 P.3d 867. When evidence

 3 conflicts, we “will draw all inferences and indulge all presumptions in favor of the

 4 district court’s ruling.” Jason L., 2000-NMSC-018, ¶ 11. “[T]he question is not

 5 whether substantial evidence would have supported [the] opposite result[,] but

 6 whether such evidence supports the result reached.” State v. Maxwell, 2016-NMCA-

 7 082, ¶ 57, 384 P.3d 116 (internal quotation marks and citation omitted).

 8 I.      Pat-Down of Defendant Was Unreasonable and Unlawful

 9   {7}   The right of people to be free from unreasonable searches and seizure is

10 protected by both the Fourth Amendment of the United States Constitution and Article

11 II, Section 10 of the New Mexico Constitution. Under our interstitial approach, we

12 first consider “whether the right being asserted is protected under the [F]ederal

13 [C]onstitution.” State v. Ketelson, 2011-NMSC-023, ¶ 10, 150 N.M. 137, 257 P.3d

14 957 (internal quotation marks and citation omitted). If such protection exists under the

15 Federal Constitution, we need not reach the New Mexico Constitution claim. Id. If

16 not, we then “consider whether the New Mexico Constitution provides broader

17 protection[.]” Id. The district court’s order granting the motion to suppress does not

18 clearly state whether it relied upon the Federal Constitution or the New Mexico




                                              6
 1 Constitution. We will assume that the district court addressed the constitutional issues

 2 appropriately because both arguments were presented by Defendant.

 3   {8}   “An automobile stop and the attendant detention of its occupants is a seizure.”

 4 State v. Duran, 2005-NMSC-034, ¶ 22, 138 N.M. 414, 120 P.3d 836 (internal

 5 quotation marks omitted), overruled on other grounds by State v. Leyva,

 6 2011-NMSC-009, ¶ 17, 149 N.M. 435, 250 P.3d 861. Under NMSA 1978, Section

 7 66-3-702 (1978), “[e]very person riding a bicycle upon a roadway . . . [is] subject to

 8 all of the duties applicable to the driver of a vehicle[.]” Therefore, a person riding a

 9 bicycle and subject to a traffic stop is afforded the same protections from unreasonable

10 search and seizure as those afforded to a person in an automobile subject to a traffic

11 stop.

12   {9}   When an officer conducts a traffic stop to investigate a possible crime, we

13 analyze the reasonableness of the stop and ensuing investigatory detention in

14 accordance with the two-part test in Terry v. Ohio, 392 U.S. 1, 20 (1968). See Duran,

15 2005-NMSC-034, ¶ 23. We ask first whether the stop was justified at its inception and

16 second, whether the officer’s actions during the stop were reasonably related to

17 circumstances that justified the stop. Id. Although the State argues in its brief in chief

18 that the traffic stop of Defendant was justified at its inception, this point was never

19 contested by Defendant and required no ruling by the district court. Instead, the


                                               7
 1 question before us is the second inquiry—whether Sergeant Jaramillo’s pat-down of

 2 Defendant was reasonably related to the circumstances that justified the stop or was

 3 instead an unreasonable expansion of the scope of the initial traffic investigation.

 4   {10}   After an officer has made a traffic stop based on a reasonable suspicion of

 5 criminal activity, “[t]he scope of the investigation may [only] be expanded where the

 6 officer has reasonable and articulable suspicion that other criminal activity . . . [is]

 7 afoot.” Leyva, 2011-NMSC-009, ¶ 10 (internal quotation marks and citation omitted).

 8 If the circumstances warrant it, “an officer may conduct a limited search for weapons

 9 upon a reasonable suspicion that the suspect might be armed and presently

10 dangerous[.]” Ketelson, 2011-NMSC-023, ¶ 15 (alteration, internal quotation marks,

11 and citation omitted); see State v. Garcia, 2004-NMCA-066, ¶¶ 28-30, 135 N.M. 595,

12 92 P.3d 41 (recognizing that whether a person is “dangerous” is a distinct requirement

13 that must be satisfied in order to justify a frisk for weapons and requires evidence that

14 the suspect poses a danger to law enforcement), rev’d in part on other grounds, 2005-

15 NMSC-017, ¶ 35, 138 N.M. 1, 116 P.3d 72.

16   {11}   The State argues that the district court erred in granting Defendant’s motion

17 because Sergeant Jaramillo had reasonable suspicion of illegal activity to conduct a

18 pat-down of Defendant. As support for its argument, the State points to several cases

19 in which our New Mexico appellate courts upheld the district court’s denial of


                                               8
 1 motions to suppress on both Federal and New Mexico constitutional grounds.

 2 However, because our appellate courts viewed the evidence in those cases in the light

 3 most favorable to the district court’s denial of the motion to suppress, these cases are

 4 not necessarily helpful or instructive. See Dethlefsen v. Weddle, 2012-NMCA-077, ¶

 5 30, 284 P.3d 452 (“The question is not whether substantial evidence would have [also]

 6 supported an opposite result; it is whether such evidence supports the result reached.”

 7 (internal quotation marks and citation omitted)). Our standard of review requires that,

 8 if the district court has properly applied the law, we will only review to determine

 9 whether there was substantial evidence in support of the district court’s ruling and not

10 to reweigh the evidence. See State v. Jimenez, 2004-NMSC-012, ¶ 14, 135 N.M. 442,

11 90 P.3d 461 (“In determining whether there was substantial evidence, [the appellate

12 courts] must resolve all disputed facts in favor of the [district] court’s decision,

13 indulge all reasonable inferences in support of that decision, and disregard all

14 inferences to the contrary.”(internal quotation marks and citation omitted)); State v.

15 Ramirez, 1976-NMCA-101, ¶ 22, 89 N.M. 635, 556 P.2d 43 (recognizing that the

16 district court weighs any evidentiary conflicts, and, where we cannot find error as a

17 matter of law, we must affirm when there is substantial evidence to support the district

18 court’s ruling), overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 9-

19 10, 98 N.M. 786, 653 P.2d 162.


                                              9
 1   {12}   The following facts support the district court’s ruling: (1) Defendant was

 2 stopped for running a stop sign on his bicycle; (2) Defendant got off his bicycle and

 3 although Sergeant Jaramillo testified that Defendant began moving toward him, his

 4 police report only stated that Defendant “got off the bike, and turned around”; (3)

 5 Sergeant Jaramillo testified that he never asked Defendant to stay with the bicycle;

 6 and (4) Defendant was fully cooperative and never made any threatening gestures

 7 such as reaching into his pocket.

 8   {13}   The role of the district court was to weigh the evidence and to determine the

 9 credibility of Sergeant Jaramillo’s testimony. See State v. Smith, 2001-NMSC-004, ¶

10 16, 130 N.M. 117, 19 P.3d 254 (“[I]n New Mexico, it is the fact[-]finder that

11 determines credibility.”). Although the State presented evidence that the pat-down of

12 Defendant was lawful, for example that Defendant was “wearing baggy clothing” and

13 was “a little nervous,” we presume from its ruling that the district court rejected any

14 conflicting evidence presented by Sergeant Jaramillo as either not credible or

15 unpersuasive. See Ketelson, 2011-NMSC-023, ¶ 9 (stating that the district court “is

16 in a better position to judge the credibility of witnesses and resolve questions of fact”

17 (internal quotation marks and citation omitted)); Crownover v. Nat’l Farmers Union

18 Prop. & Cas. Co., 1983-NMSC-099, ¶ 7, 100 N.M. 568, 673 P.2d 1301 (“The

19 [district] court properly exercised its duty to weigh conflicting evidence and to reject


                                              10
 1 that which it found unpersuasive.”). Although this Court recognizes the inherent risks

 2 that officers face in effectuating traffic stops, we cannot usurp the district court’s role

 3 to address the inconsistencies presented by Sergeant Jaramillo’s testimony in order to

 4 determine his credibility and the weight to be given to his testimony.

 5   {14}   In reviewing the facts in the light most favorable to the district court’s ruling,

 6 we hold that there was substantial evidence to support the district court’s ruling. The

 7 district court did not err in its application of the facts to the law in finding that

 8 Sergeant Jaramillo “did not have reasonable suspicion . . . to justify expanding the

 9 scope of the detention” and conducted an intrusive pat-down of Defendant. Based

10 upon a deferential review of the facts, there was an absence of a “particularized and

11 objective basis” for Sergeant Jaramillo’s suspicion that Defendant was “armed and

12 dangerous.” As a result, the pat-down violated Defendant’s Fourth Amendment right

13 against unreasonable search and seizure, and the district court did not err in granting

14 Defendant’s motion to suppress. Substantial evidence existed to support the district

15 court’s ruling under the Fourth Amendment, therefore, we need not engage in a

16 separate analysis of whether Sergeant Jaramillo also violated Defendant’s rights under

17 Article II, Section 10 of the New Mexico Constitution.

18   {15}   In the alternative, the State argued that Defendant lawfully consented to the

19 pat-down search so that any illegality tainting Sergeant Jaramillo’s search was


                                               11
 1 removed by Defendant’s consent. However, this argument was not made to the district

 2 court and therefore was not preserved. See Rule 12-321(A) NMRA (“To preserve an

 3 issue for review, it must appear that a ruling or decision by the [district] court was

 4 fairly invoked.”); State v. Mosley, 2014-NMCA-094, ¶¶ 12-13, 335 P.3d 244

 5 (recognizing that, for purposes of preservation, this Court will not reverse a district

 6 court’s ruling regarding the consent to search an apartment because the district court

 7 was neither asked to consider nor had the opportunity to review the argument below).

 8 As a result, we affirm the district court’s granting of Defendant’s motion to suppress.

 9 II.      The District Court Did Not Err in Rejecting the Inevitable Discovery
10          Doctrine

11   {16}   The inevitable discovery doctrine acts as an exception to the exclusionary rule

12 and permits the admittance of evidence that inevitably would have been discovered

13 through a different and independent lawful means even if obtained through unlawful

14 police conduct. See State v. Haidle, 2012-NMSC-033, ¶ 39, 285 P.3d 668. “For the

15 doctrine to apply, the alternate source of evidence must be pending, but not yet

16 realized.” State v. Romero, 2001-NMCA-046, ¶ 10, 130 N.M. 579, 28 P.3d 1120.

17   {17}   The State argued to the district court that the inevitable discovery doctrine

18 should have been applied in this case. It was the State’s burden to convince the district

19 court that Sergeant Jaramillo would have inevitably run Defendant through a check

20 for outstanding warrants, independent of the illegal pat-down, and ultimately would

                                              12
 1 have arrested him. See State v. Corneau, 1989-NMCA-040, ¶ 37, 109 N.M. 81, 781

 2 P.2d 1159 (“If the government can prove that the evidence would have been obtained

 3 inevitably and, therefore, would have been admitted regardless of any overreaching

 4 by the police, there is no rational basis to keep that evidence from the jury in order to

 5 ensure the fairness of the trial proceedings.” (alteration, internal quotation marks, and

 6 citation omitted)); see also State v. Barragan, 2001-NMCA-086, ¶ 18, 131 N.M. 281,

 7 34 P.3d 1157 (declining to address the inevitable discovery rule in part because the

 8 district court did not make the necessary factual findings to support the state’s

 9 argument that the evidence would have inevitably been seized), overruled on other

10 grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

11   {18}   The State argues that the evidence would have been inevitably discovered

12 because Sergeant Jaramillo testified that he “always” runs a person for warrants when

13 he effectuates a traffic stop, and when a person is placed under arrest, a search

14 incident to arrest occurs, including a search of the person’s pockets. Once again, the

15 State is attempting to reverse our standard of review. See State v. Hubble,

16 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 (“We view the facts in the manner

17 most favorable to the prevailing party and defer to the district court’s findings of fact

18 if substantial evidence exists to support those findings.” (internal quotation marks and

19 citation omitted)). Sergeant Jaramillo testified that the purpose of effectuating a traffic


                                               13
 1 stop was because Defendant ran a stop sign. He also testified that he intended to give

 2 Defendant a verbal warning—a procedure that would not have required any formality,

 3 written citation, or a search for outstanding warrants. Furthermore, the State failed to

 4 present evidence that it was Sergeant Jaramillo’s practice to check for outstanding

 5 warrants when effectuating a traffic stop of a bicyclist or in situations when only a

 6 verbal warning was to be issued.

 7   {19}   The district court concluded that Sergeant Jaramillo “did not have reasonable

 8 suspicion that other criminal activity was afoot to justify expanding the scope of the

 9 detention beyond the (uncited) traffic violation.” The district court did not make an

10 express factual finding or conclusion of law regarding inevitable discovery of

11 Defendant’s outstanding warrant status. However, based upon the standard of review

12 and its inferences favoring the district court’s ruling, the district court was entitled to

13 reject any inference that Sergeant Jaramillo runs a warrant check on traffic stops

14 involving a bicyclist or where he only intends to issue a verbal warning. As a result,

15 under the factual circumstances presented in this case, the State failed to meet its

16 burden to establish that Sergeant Jaramillo would have inevitably run a warrant check

17 on Defendant. Finding substantial evidence to support the district court’s factual and

18 legal conclusions, we reject the State’s argument that the inevitable discovery doctrine

19 would apply in this case. See Jason L., 2000-NMSC-018, ¶ 11 (stating that “we will


                                               14
 1 draw all inferences and indulge all presumptions in favor of the district court’s

 2 ruling”); see also Haidle, 2012-NMSC-033, ¶ 41 (“Where the state has transgressed

 3 the constitutional rights of a person accused of a crime, we will not sanction that

 4 conduct by turning the other cheek.” (internal quotation marks and citation omitted)).

 5 CONCLUSION

 6   {20}   For the foregoing reasons, we uphold the district court’s ruling to grant

 7 Defendant’s motion to suppress.

 8   {21}   IT IS SO ORDERED.

 9                                         __________________________________
10                                         TIMOTHY L. GARCIA, Judge

11 WE CONCUR:


12 _______________________________
13 JAMES J. WECHSLER, Judge


14 _______________________________
15 JONATHAN B. SUTIN, Judge




                                             15
