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                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 14:38:21 2014.03.21
Certiorari Denied, February 27, 2014, No. 34,534

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-033

Filing Date: December 19, 2013

Docket No. 31,480

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

GARY MOSELEY,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellant

Jorge A. Alvarado, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellee

                                         OPINION

WECHSLER, Judge.

{1}      The State appeals the district court’s suppression of evidence obtained as a result of
a traffic stop. Deputy Terry McCoy of the San Juan County Sheriff’s Department initiated
the stop because he observed Defendant driving at a speed of thirty-five miles per hour, and
Deputy McCoy believed the speed limit at that location was twenty-five miles per hour.


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{2}      The district court determined that the area was neither exclusively business nor
exclusively residential in character because it contained both residences and businesses and
was a mixed-use zoning district. The district court further decided that no numerical speed
limit was applicable to that mixed-use area at the time of the stop and that the only
restriction on a driver’s speed was the requirement that a driver control his or her speed “as
may be necessary[.]” See NMSA 1978, § 66-7-301(B) (2002). Applying this finding, the
district court granted Defendant’s motion to suppress because Defendant was not speeding
at the time of the stop, and the sole legal basis for the stop was therefore vitiated.

{3}     We hold that the district court’s interpretation of the applicable speeding statute is
not consistent with the intent of the Legislature and leads to an absurd or unreasonable result.
We further hold that Deputy McCoy had reasonable suspicion to stop Defendant for
speeding, despite his mistaken belief that the speed limit in the area of the stop was twenty-
five miles per hour rather than thirty miles per hour. We therefore reverse the district court’s
grant of Defendant’s motion to suppress and remand for further proceedings.

FACTUAL BACKGROUND

{4}     On March 26, 2011, Deputy McCoy was traveling southbound on Orchard Avenue
in Farmington when he observed Defendant driving northbound on the same street. Orchard
Avenue between Main Street and Apache Street, at the location where Deputy McCoy first
observed Defendant, is an area containing mainly businesses; farther north on Orchard
Avenue, the character of the area changes to become mainly residential. Because Defendant
appeared to be speeding, Deputy McCoy activated the radar unit and noted Defendant’s
speed at thirty-five miles per hour. Deputy McCoy was under the impression that the speed
limit within Farmington’s city limits, and specifically in that particular location, was twenty-
five miles per hour, and he therefore initiated the traffic stop. Deputy McCoy testified that
he witnessed no erratic or improper driving other than Defendant’s speeding. Critically, no
speed limit signs were posted in the immediate area where Defendant was stopped, although
signs declaring the speed limit to be twenty-five miles per hour were subsequently installed.

{5}     Based on the evidence collected following the stop, the State charged Defendant with
non-aggravated driving while under the influence of intoxicating liquor and/or drugs in
violation of NMSA 1978, Section 66-8-102 (2010); possession or consumption of an
alcoholic beverage in an open container in violation of NMSA 1978, Section 66-8-138
(2001); and speeding in violation of Section 66-7-301. Defendant was convicted of these
offenses in the magistrate court and appealed to the district court.

{6}     In the district court, Defendant filed a motion to suppress the evidence obtained
during the traffic stop. Both Defendant and the State filed briefs, and the district court held
a hearing on the motion at which evidence and argument were received on the following
points: (1) whether any type of speed limit sign had been posted in the area of the stop; (2)
whether the lack of such a sign precluded application of the City of Farmington’s speed limit
of twenty-five miles per hour; (3) whether the lack of such a sign also precluded application

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of the speed limit of thirty miles per hour established by state law; (4) whether the character
of the area was residential or commercial; and (5) assuming the speed limit of thirty miles
per hour applied, whether Deputy McCoy’s mistake of law meant that he did not have
reasonable suspicion to stop Defendant’s vehicle. At the hearing and in its briefs, the State
essentially conceded that the municipal speed limit was not applicable due to the lack of
posting. The State relied mainly on its argument that Deputy McCoy’s mistake did not
deprive him of reasonable suspicion for the stop because whether the speed limit was
twenty-five miles per hour or thirty miles per hour, by driving thirty-five miles per hour,
Defendant was speeding and Deputy McCoy therefore had reasonable suspicion to stop him.

{7}       The district court’s written decision found that no speed limit signs had been posted
in the area of the stop. The decision also focused on the character of the area as business or
residential and held that it is neither; instead, it is designated for mixed use under the
applicable zoning code. Finally, the decision construed the state speed limit statute, § 66-7-
301, in a unique manner. The district court noted that Section 66-7-301(A)(2) establishes
a speed limit of thirty miles per hour in a “business or residence district[.]” The district court
held that this language gives no guidance “as to an actual speed limit required on streets if
it is not in a school, business or residential area.” Building on its determination that the area
was neither business nor residential and that Section 66-7-301(A)(2) does not apply to
mixed-use districts, the district court concluded that no numerical speed limit was applicable
in the area at the time of the stop. Instead, as noted above, the requirement of Section 66-7-
301(B), that a driver control speed “as may be necessary” to avoid collisions or other
difficulties, was the sole restriction on Defendant’s speed at the time he was stopped.

LEGAL QUESTIONS RAISED

{8}    This case and the district court’s decision raise two legal questions bearing
discussion. First, did the district court correctly reject the application of Section 66-7-
301(A)(2) because the area in question was zoned for mixed use and had mixed-use
characteristics? Second, if that decision was not correct, did Deputy McCoy have reasonable
suspicion to stop Defendant even if he mistakenly believed the speed limit at the location in
question was twenty-five miles per hour rather than thirty miles per hour?

STANDARD OF REVIEW

{9}     A suppression order based upon an alleged violation of the United States or New
Mexico Constitutions entails a mixed question of fact and law. See State v. Funderburg,
2008-NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922. “We review factual determinations for
substantial evidence and legal determinations de novo.” State v. Ketelson, 2011-NMSC-023,
¶ 9, 150 N.M. 137, 257 P.3d 957. Article II, Section 10 of the New Mexico Constitution and
the Fourth Amendment to the United States Constitution control the validity of investigative
stops. See State v. Muñoz, 1998-NMCA-140, ¶ 8, 125 N.M. 765, 965 P.2d 349. Before a
police officer makes a traffic stop, he must have a reasonable suspicion of illegal activity.
See State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038 (citing Terry v.

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Ohio, 392 U.S. 1, 21-22 (1968)). “Reasonable suspicion must be based on specific
articulable facts and the rational inferences that may be drawn from those facts.” Flores,
1996-NMCA-059, ¶ 7. Reasonable suspicion in New Mexico is analyzed through the use
of an objective test. See State v. Hubble, 2009-NMSC-014, ¶ 23, 146 N.M. 70, 206 P.3d
579.

APPLICATION OF SECTION 66-7-301

{10} The question of whether Section 66-7-301(A)(2) applies to the present situation is
an issue of statutory construction that we review de novo. State v. Saiz, 2001-NMCA-035,
¶ 2, 130 N.M. 333, 24 P.3d 365. When interpreting statutory language, “our primary goal
is to give effect to the intent of the [L]egislature,” and in so doing, “we look first to the plain
language of the statute.” Id. We will give “effect to the plain meaning of the words of [a]
statute, unless this leads to an absurd or unreasonable result.” State v. Marshall, 2004-
NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.

{11} As noted above, Section 66-7-301(A)(2) imposes a specific speed limit of thirty miles
per hour on a “business or residence district[.]” The district court concluded that this limit
applies only if an area is either exclusively residential in nature or exclusively business in
nature. If an area is zoned for mixed use, as is the area in question in this case, the district
court decided Section 66-7-301(A)(2) has no application.

{12} However, nothing in Section 66-7-301 indicates that a district must be exclusively
composed of only one type of use in order to be subject to the speed limits set out in the
statute. The district court superimposed onto the statute a concept found in zoning
ordinances, that of a mixed-use district. By doing so, the district court created a third
distinct type of district not mentioned in the speeding statute, a district that is not subject to
any numerical speed limit under Section 66-7-301(A), but only to the “as may be necessary”
discretionary restriction found in Section 66-7-301(B). But there is no indication in the
statute that zoning concepts have any role to play in determining applicable speed limits.
The only reasonable construction of the statute is that the speed limit of thirty miles per hour
applies to areas containing either businesses or residences; it does not matter whether the
area contains both. There is no conceivable reason that the Legislature would impose a
thirty miles-per-hour restriction on areas that are solely residential, do the same for areas that
are solely commercial, but then remove that restriction if the area has characteristics of, or
is zoned for, both types of uses.

{13} As we pointed out above, we will construe a statute in a manner that will effectuate
the Legislature’s intent in drafting the law. Saiz, 2001-NMCA-035, ¶ 2. We do not believe
the Legislature intended to create an immense gap in the application of speed limits simply
by failing to add “or both,” or similar words, to Section 66-7-301(A)(2). In fact, creating
such a gap, as the district court’s construction of the statute would do, frustrates the obvious
legislative intent and creates an absurd or unreasonable result that we cannot perpetuate. See
Marshall, 2004-NMCA-104, ¶ 7 (stating that we will give effect to the plain meaning of the

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words of a statute unless doing so leads to an absurd or unreasonable result). Instead, we
hold that Section 66-7-301(A)(2) applies to districts that are residential in nature or zoning,
or business in nature or zoning, or have the characteristics of, and are zoned for, both types
of uses.

EXISTENCE OF REASONABLE SUSPICION

{14} Given the above holding, we proceed on the basis that the applicable speed limit at
the time of the stop was thirty miles per hour. The evidence presented at the suppression
hearing showed that Defendant’s vehicle was traveling at thirty-five miles per hour, and
there was no contrary evidence. Deputy McCoy stopped Defendant for speeding, but at the
time he mistakenly believed the speed limit was twenty-five miles per hour. We must
therefore decide the impact, if any, of that mistake on the existence of reasonable suspicion.

{15} “[C]onduct premised totally on a mistake of law cannot create the reasonable
suspicion needed to make a traffic stop; but if the facts articulated by the officer support
reasonable suspicion on another basis, the stop can be upheld.” State v. Anaya, 2008-
NMCA-020, ¶ 15, 143 N.M. 431, 176 P.3d 1163. In other words, if an officer mistakenly
believes that certain conduct violates one statute, but that conduct in fact violates a different
statute, reasonable suspicion exists to stop the suspect despite the officer’s mistake of law.
See id. ¶ 13 (holding that an incorrect understanding of the law does not render a traffic stop
invalid when the observations of an officer provide reasonable grounds to believe another
statute was being violated). Thus, “it is not fatal in terms of reasonable suspicion if an
officer makes a mistake of law when he conducts a traffic stop[,]” but the totality of the
circumstances must indicate that there were other specific and articulable facts upon which
the officer could determine there was reasonable suspicion for the stop. Hubble, 2009-
NMSC-014, ¶ 28.

{16} The Anaya and Hubble rule is clearly applicable in this case. Deputy McCoy
mistakenly believed that the speed limit was twenty-five miles per hour, when, in fact, it was
thirty miles per hour. With his radar gun, however, he measured Defendant’s speed at thirty-
five miles per hour, a speed that violated Section 66-7-301(A)(2). He thus had reasonable
suspicion to stop Defendant despite his mistake as to which of the two speed limits was
applicable in the area of the stop. See Anaya, 2008-NMCA-020, ¶ 15 (holding that when
facts articulated by an officer support reasonable suspicion that a law has been violated, a
mistake of law by the officer does not render a traffic stop invalid).

{17} We note Defendant’s reliance on the statement from Anaya quoted above, to the
effect that “conduct premised totally on a mistake of law cannot create the reasonable
suspicion needed to make a traffic stop[.]” Id. However, this reliance is unavailing because
it ignores the second part of that statement: “but if the facts articulated by the officer support
reasonable suspicion on another basis, the stop can be upheld.” Id. That is the situation in
this case; Deputy McCoy made a mistake of law, but the facts he observed supported
reasonable suspicion that Defendant was speeding in violation of Section 66-7-301(A)(2).

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CONCLUSION

{18} For the foregoing reasons, we reverse the district court’s suppression order and
remand this case to the district court for further proceedings.

{19}   IT IS SO ORDERED.


                                          ____________________________________
                                          JAMES J. WECHSLER, Judge

WE CONCUR:

________________________________
RODERICK T. KENNEDY, Chief Judge

________________________________
M. MONICA ZAMORA, Judge

Topic Index for State v. Moseley, No. 31,480

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Suppression of Evidence

CRIMINAL LAW
Driving While Intoxicated
Motor Vehicle Violations

CRIMINAL PROCEDURE
Mistake of Fact
Reasonable Suspicion

EVIDENCE
Suppression of Evidence

STATUTES
Legislative Intent
Rules of Construction

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