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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellant,

 4 v.                                                                   NO. 29,124

 5 STEPHEN MCCORKLE,

 6        Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Charles W. Brown, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly
12   Albuquerque, NM

13 for Appellant

14 Hugh W. Dangler, Chief Public Defender
15 Santa Fe, NM

16 for Appellee


17                               MEMORANDUM OPINION

18 KENNEDY, Judge.

19        The State appeals the district court’s order granting Defendant’s motion to

20 suppress. [MIO 1] We proposed to affirm in a notice of proposed summary

21 disposition, and the State has filed a timely memorandum in opposition. Remaining
 1 unpersuaded by the State’s memorandum, we affirm the order granting the motion to

 2 suppress.

 3         The district court’s ruling on Defendant’s motion to suppress presents a mixed

 4 question of law and fact. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52

 5 P.3d 964. On appeal, we defer to the district court’s findings of fact as long as they

 6 are supported by substantial evidence. See State v. Jason L., 2000-NMSC-018, ¶ 10,

 7 129 N.M. 119, 2 P.3d 856. We then review de novo the district court’s application of

 8 law to those facts. State v. Affsprung, 2004-NMCA-038, ¶ 6, 135 N.M. 306, 87 P.3d

 9 1088.

10         Based upon the information contained in the docketing statement and

11 memorandum in opposition, we understand that the following testimony was

12 introduced at the suppression hearing. Officer Rice testified that he stopped a vehicle

13 at 9:30 p.m. for operating without active headlights. [MIO 3; DS 2] He thought it

14 suspicious that the vehicle came to a stop within one foot of another vehicle. [DS 2]

15         Officer Rice testified that, after stopping the vehicle, he observed that the driver

16 was disoriented, and he suspected her of being under the influence of alcohol or drugs.

17 [MIO 3; DS 2] He asked the driver and the passenger, Defendant, for their

18 identification. [MIO 3; DS 2] He then ran a warrants check on Defendant’s

19 information and learned that Defendant had an outstanding warrant. [MIO 3; DS 3]


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 1 Rice arrested Defendant and during a pat-down search pursuant to arrest, discovered

 2 alleged drug paraphernalia and controlled substances. [MIO 3; DS 3] Rice testified

 3 that he requested Defendant’s identifying information to record his presence as a

 4 witness to the suspected crime of driving under the influence (DWI) and to determine

 5 Defendant’s driver’s license status in case the vehicle would be released to him. [MIO

 6 3; DS 3]

 7        Defendant moved to suppress the evidence contending that, as a passenger in

 8 a vehicle, the officer was not justified in requesting his identification because he had

 9 no suspicion that Defendant was involved in criminal activity. [RP 32] The district

10 court agreed, rejected the State’s proposed findings of fact and conclusions of law, and

11 granted Defendant’s motion to suppress. [RP 49-50]

12        On appeal, the State contends that the district court erred in granting

13 Defendant’s motion to suppress because: (1) the Fourth Amendment does not prohibit

14 an officer from asking for a passenger’s identification as long as the request does not

15 prolong the detention; (2) even if officers are usually required to have reasonable

16 suspicion before seeking a passenger’s identifying information, the officer was

17 justified in requesting the information in this case; and (3) the arrest warrant removed

18 the taint from any unlawful seizure. [MIO 1-2] We disagree and affirm.

19        Turning to the State’s second contention first, we noted in our notice of


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 1 proposed summary disposition that a traffic stop is not a consensual encounter, but a

 2 seizure of the vehicle and its occupants. See State v. Rubio, 2006-NMCA-067, ¶ 11,

 3 139 N.M. 612, 136 P.3d 1022. Therefore, asking for identifying information from

 4 Defendant constituted a detention. [DS 3] See Affsprung, 2004-NMCA-038, ¶¶ 16-17

 5 (rejecting the notion that a passenger would feel free to leave during a routine traffic

 6 stop, particularly after being asked for identification). In its memorandum in

 7 opposition, the State no longer disputes that the request for Defendant’s identification

 8 constituted a detention. [MIO 5-6]

 9        This Court has previously held that an officer cannot request identification from

10 a passenger unless the officer can point to reasonable and articulable suspicion that

11 the passenger is involved in criminal activity or the officer has a particularized

12 concern for officer safety. Id. ¶¶ 19-20; see Rubio, 2006-NMCA-067, ¶ 16. In Rubio,

13 this Court recognized that an officer may also expand his investigation to include the

14 passenger if the passenger is implicated in the investigation related to the initial stop.

15 See 2006-NMCA-067, ¶ 16.

16        In Affsprung, an officer conducting a routine traffic stop asked a passenger for

17 his identifying information and used the information to run a warrant check. 2004-

18 NMCA-038, ¶ 2. Because the officer had no reasonable suspicion or particularized

19 concern about officer safety, we concluded that the officer did not have a legitimate


                                               4
 1 basis for requesting the passenger’s identification. Id. ¶¶ 19-21. Thus, the officer’s

 2 request for the passenger’s identification and the use of that information to run a

 3 warrant check in connection with the traffic violation constituted an unlawful

 4 detention. Id.

 5        In contrast to our holding in Affsprung, this Court decided in Rubio that the

 6 officer was justified in asking for a passenger’s identification and then running a

 7 computer check specifically because the request was reasonably related to the initial

 8 stop. See 2006-NMCA-067, ¶¶ 18-20. In Rubio, an officer stopped a vehicle after

 9 observing that the driver was not wearing a seatbelt. Id. ¶ 3. After the driver had a

10 difficult time producing his driver’s license, registration, and insurance, the driver told

11 the officer that the owner was a passenger in the vehicle. Id. ¶ 4. The officer asked

12 the passenger-owner for his identification and ran a check on him, which revealed an

13 outstanding warrant. Id. On appeal, we concluded that the officer had a legitimate

14 reason to determine whether the passenger was the registered owner and had

15 insurance. Id. ¶ 8. Because the passenger was the owner of the vehicle, this Court

16 held that asking for his identification and the vehicle’s registration was reasonably

17 related to the initial stop and running the wants and warrant check was a justified, de

18 minimis intrusion. Id. ¶¶ 8, 18-20.

19        In our notice of proposed summary disposition, we applied Affsprung and


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 1 proposed to hold that Officer Rice did not have reasonable suspicion to detain

 2 Defendant merely because he was a passenger in a vehicle being detained for

 3 suspicion of DWI. [DS 3] 2004-NMCA-038, ¶¶ 19-21. We proposed to affirm the

 4 suppression order because there was no evidence supporting a reasonable and

 5 articulable suspicion that Defendant was involved in criminal activity, no showing of

 6 a particularized concern for officer safety, and no evidence indicating that Defendant

 7 was implicated in the investigation related to the initial stop.

 8        The State argues that Affsprung does not apply in this case because Officer Rice

 9 had a sufficient, independent justification for requesting Defendant’s identification

10 that was “reasonably related to his investigation and which did not prolong the

11 seizure.” [MIO 2, 10-14] The State contends that unlike Affsprung, the officer in this

12 case requested Defendant’s identification to identify him as a potential witness to the

13 crime of DWI and to determine if Defendant had a valid driver’s license and could

14 take custody of the vehicle if the driver was arrested. [MIO 2-3, 10, 13] It contends

15 that in this case, as in Rubio, the officer had a specific reason to request the

16 passenger’s identification. [MIO 12] We disagree.

17        As an initial matter, we note that the State submitted proposed findings of fact

18 and conclusions of law on this issue which the district court specifically rejected in its

19 order. [RP 50] “When a trial court rejects proposed findings of facts or conclusions


                                               6
 1 of law, we assume that said facts were not supported by sufficient evidence.” State

 2 ex rel. King v. UU Bar Ranch Ltd. P’ship, 2009 -NMSC- 010, ¶ 44, ___ N.M. ___

 3 , ____ P. 3d ____. More to the point, “[f]ailure of a district court to make a finding

 4 of fact is regarded as a finding against the party seeking to establish the affirmative.

 5 Landskroner v. McClure, 107 N.M. 773, 775, 765 P.2d 189, 191 (1988). We defer to

 6 the district court’s findings of fact on factual matters, here indicating that the officer’s

 7 testimony as to the grounds for asking for Defendant’s identification was not believed

 8 by the district court, [MIO 3; RP 49] See Jason L., 2000-NMSC-018, ¶ 10.

 9        Moreover, even if the district court did find the officer’s testimony creditable

10 as to the reasons he asked Defendant for identification, we disagree that these reasons

11 provide sufficient justification given that there was no testimony suggesting that the

12 driver asked the officer to find another driver for the vehicle, that the officer inquired

13 into whether Defendant could drive, [MIO 13] or that there was any testimony or

14 evidence to suggest that Defendant owned the vehicle or might exercise any control

15 over it. It also does not appear that there was even any evidence regarding whether

16 the driver was actually arrested for DWI. Further, the information sought was more

17 than needed to put Defendant on a witness list, but just enough to run a warrants

18 check. All of these favor our view that the district court acted properly.

19        In Rubio, the passenger was the owner of the vehicle and therefore responsible


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 1 for assuring that the vehicle was properly registered and insured, and responsible for

 2 giving permission to the driver to operate the vehicle. 2006-NMCA-067, ¶¶ 18-19.

 3 The defendant’s status as owner of the vehicle led this Court to conclude that he “was

 4 not a passenger who was there solely by virtue of the coincidence he was a passenger

 5 in the vehicle.” Id. ¶ 18 (internal quotation marks and citation omitted).

 6        After considering the holdings and analysis in Affsprung and Rubio, we

 7 conclude that this case is distinguishable from Rubio and controlled by Affsprung.

 8 Therefore, Officer Rice was not justified by an independent reason to detain

 9 Defendant by asking for his identification, and the State’s attempt to justify detention

10 of Defendant based upon the investigation of the driver for DWI runs contrary to the

11 holding and analysis of Affsprung. See 2004-NMCA-038, ¶ 20 (stating that a

12 defendant’s mere presence in the stopped vehicle, when the officer had no reasonable

13 suspicion of criminal activity or danger from weapons, does not justify a request for

14 identification and use of that information to conduct a warrant check on the

15 defendant).

16        Finally, we are not persuaded by the State’s reliance on our Supreme Court’s

17 opinion in State v. Duran, 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836, in support

18 of its argument that the officer was justified in determining Defendant’s identity as “it

19 was related to his investigation of the driver.” [MIO 14] The issue facing the


                                               8
 1 Supreme Court in Duran was “whether a police officer’s questioning of a stopped

 2 motorist about her travel plans exceeded the permissible scope of a search and seizure

 3 under the Fourth Amendment.” Id. ¶ 1. The Court held that asking a driver questions

 4 about travel plans was reasonably related in scope to the initial justification for the

 5 traffic stop. Id. ¶ 42.

 6        The State is correct that in Duran, the officer requested the driver’s license of

 7 the passenger and ran a warrant check. [MIO 14] See id. ¶¶ 4, 8. However, the

 8 Duran Court was not asked to consider the issue addressed in Affsprung of whether

 9 a law enforcement officer’s request for a passenger’s identifying information during

10 a routine traffic stop constituted an unlawful detention under the Fourth Amendment.

11 See 2004-NMCA-038, ¶¶ 19-21. Therefore, it did not hold that running a warrant

12 check on a passenger’s license during a routine traffic stop was not a Fourth

13 Amendment violation and we will not consider it as support for that proposition. See

14 State v. Rodarte, 2005-NMCA-141, ¶ 18, 138 N.M. 668, 125 P.3d 647 (observing that

15 cases are not authority for propositions not considered).

16        In addition to arguing that Affsprung does not apply to the circumstances in this

17 case, the State contends in its memorandum in opposition that Affsprung has been

18 “effectively overruled” by the United States Supreme Court in Arizona v. Johnson,

19 129 S. Ct. 781 (2009). [MIO 2, 7-10] We are unpersuaded that the decision in


                                              9
 1 Johnson warrants reversal in this case for two reasons.

 2        First, the State characterizes the decision in Johnson as standing for the

 3 proposition that an officer may inquire into matters unrelated to the justification for

 4 a stop as long as these inquiries do not measurably extend the duration of the stop.

 5 [MIO 7] However, our review of the Johnson opinion indicates that the Court was

 6 only considering whether and when an officer may frisk a passenger based upon safety

 7 concerns, not when an officer may ask a passenger for identification or otherwise

 8 question the passenger about matters unrelated to the reason for the stop. Id. at 784.

 9 In Johnson, officers were suspicious that the defendant/passenger was involved in

10 gang activity based upon the defendant’s clothing, the neighborhood, and the fact that

11 the defendant had a scanner in his pocket which was indicative of criminal activity.

12 Id. at 785. The defendant volunteered that he was from a town known to be the home

13 of a gang and volunteered that he had served time in prison for bank robbery. Id. The

14 officers asked the defendant to step out of the car for further questioning and then

15 searched him for weapons because they suspected that the defendant might be armed.

16 Id. The defendant sought to suppress the gun as a fruit of an unlawful search, and the

17 Supreme Court affirmed the district court’s denial of the motion to suppress. Id. at

18 785-88.

19        In Johnson, the Court focused on the officer’s safety concerns. See id. at 788,


                                             10
 1 n. 2 (noting that the Arizona Court of Appeals had assumed “without deciding that

 2 [the officer] had reasonable suspicion that [the defendant] was armed and dangerous”

 3 and then stating that it would not foreclose the Arizona appellate court’s

 4 “consideration of that issue on remand”). Officer safety was not an issue in this case

 5 and under Affsprung, an officer is entitled to question or pat-down a passenger if such

 6 actions are necessary due to safety concerns. See Affsprung, 2004-NMCA-038, ¶¶ 19-

 7 20 (requiring a particularized concern for officer safety to justify a request from the

 8 passenger). This is consistent with the holding in Johnson.

 9        Furthermore, to the extent Johnson does stand for the proposition that no

10 additional justification is needed under the Fourth Amendment as long as the officer’s

11 inquiries do not prolong the stop, the State failed to preserve this argument by raising

12 it to the district court. [MIO 9; RP 42-48] See Rule 12-216 (A) NMRA (stating that,

13 in order to preserve a question for review, “it must appear that a ruling or decision by

14 the district court was fairly invoked”); State v. Varela, 1999-NMSC-045, ¶ 25, 128

15 N.M. 454, 993 P.2d 1280. In order to preserve its argument, the State must have

16 alerted the district court to the theories on which it relied in support of its argument

17 against suppression. See State v. Harrison, 2000-NMSC-022, ¶ 27, 129 N.M. 328, 7

18 P.3d 478; cf. State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986)

19 (noting that to preserve issue for appeal, defendant must make timely objection that


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 1 specifically apprizes trial court of nature of error). It does not appear that the State

 2 raised the contention that the officer could request Defendant’s identification as long

 3 as it did not prolong the stop. [RP 42-48] Therefore, even if Johnson supports this

 4 proposition, we decline to consider it due to lack of preservation. See Harrison, 2000-

 5 NMSC-022, ¶ 29; cf. In re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d

 6 431 (noting that an appellate court will only consider issues raised in the trial court

 7 and issues involving matters of jurisdictional or fundamental error).

 8        Finally, the State argues that “the existence of a valid arrest warrant dissipated

 9 any taint from the allegedly unlawful seizure of Defendant.” [MIO 2, 14-19] They

10 have not shown where this was raised below, [RP 42-48] and we decline to consider

11 it. See Harrison, 2000-NMSC-022, ¶ 29; cf. In re Aaron L., 2000-NMCA-024, ¶ 10.

12 However we also note that, even if this issue had been preserved, we would

13 nonetheless affirm because in Affsprung, the defendant was also arrested pursuant to

14 an outstanding warrant, and we nonetheless held that her unlawful detention tainted

15 the evidence. 2004-NMCA-038, ¶¶ 3, 19-20. Therefore, we hold that the evidence

16 was correctly suppressed in this case as well.



17 CONCLUSION

18        For the foregoing reasons as well as those set forth in our notice of proposed


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1 disposition, we affirm the order granting Defendant’s motion to suppress.

2       IT IS SO ORDERED.

3                                       ___________________________________
4                                       RODERICK T. KENNEDY, Judge

5 WE CONCUR:



6 ___________________________
7 JONATHAN B. SUTIN, Judge



8 ___________________________
9 CELIA FOY CASTILLO, Judge
