       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ____________

Filing Date: October 21, 2013

Docket No. 31,919

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

JOE PETERSON,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

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

for Appellant

                                         OPINION

SUTIN, Judge.

{1}     In State v. Ochoa, 2009-NMCA-002, ¶¶ 38-40, 146 N.M. 32, 206 P.3d 143, this
Court held that the New Mexico Constitution forbids the police from using an otherwise
valid traffic stop as a pretext for investigating unrelated matters for which there is no
reasonable suspicion or probable cause, unless the circumstances are such that the police
would have conducted the traffic stop regardless of the unrelated investigation. The question
before us is whether Ochoa’s pretext rule applies when, as here, the stop occurs during a

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criminal investigation involving no reasonable suspicion, but the sole reason for the stop was
an outstanding arrest warrant. We conclude that Ochoa does not apply under the
circumstances in this case.

BACKGROUND

{2}     Law enforcement officers were investigating Defendant Joe Peterson for possible
drug activity. During their investigation, they discovered that Defendant had an outstanding
misdemeanor warrant and that his driver’s license had been suspended or revoked.
Recognizing him traveling in his car, the officers stopped him in order to execute the
warrant. After arresting Defendant, the officers found heroin in his pocket and crack cocaine
in his car.

{3}     Defendant filed a motion to suppress the evidence obtained as a result of the arrest
on the ground that the officers’ decision to stop him in order to execute the arrest warrant
was an improper pretextual stop prohibited by the New Mexico Constitution and Ochoa. At
a hearing on the motion, differentiating this case from Ochoa, the district court disagreed
with Defendant’s position that the police could not arrest a person on a warrant if there was
also an ongoing investigation of some unrelated matter. After the district court denied the
motion, Defendant entered a guilty plea, reserving the right to appeal the district court’s
ruling.

DISCUSSION

{4}      Defendant contends that the district court erred in denying his motion to suppress.
“Appellate review of a motion to suppress presents a mixed question of law and fact.” State
v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. Our standard of review
requires us to look “for substantial evidence to support the [district] court’s factual finding,
with deference to the district court’s review of the testimony and other evidence
presented[.]” State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. The
district court need not make express findings of fact, State v. Gonzales, 1999-NMCA-027,
¶ 11, 126 N.M. 742, 975 P.2d 355, and when it has not done so, we view the evidence in the
light most favorable to the district court’s decision and “draw all inferences and indulge all
presumptions in favor of the district court’s ruling.” State v. Jason L., 2000-NMSC-018, ¶
11, 129 N.M. 119, 2 P.3d 856. Viewing the facts in this way, “we then review de novo the
[district] court’s application of law to the facts to determine whether the . . . seizure [was]
reasonable.” Leyva, 2011-NMSC-009, ¶ 30.

{5}     Article II, Section 10 of the New Mexico Constitution guarantees that “[t]he people
shall be secure in their persons, papers, homes[,] and effects, from unreasonable searches and
seizures[.]” Under this provision and the analogous Fourth Amendment to the United States
Constitution, the temporary detention of a person during a traffic stop constitutes a seizure
that must comport with constitutional requirements of reasonableness. See State v.
Candelaria, 2011-NMCA-001, ¶ 9, 149 N.M. 125, 245 P.3d 69. Generally, a “seizure is an

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intrusion that requires a warrant based upon a demonstration of probable cause[,]” see State
v. Patterson, 2006-NMCA-037, ¶ 14, 139 N.M. 322, 131 P.3d 1286, and “[w]arrantless
seizures are presumed to be unreasonable[,]” subject to certain exceptions. Ochoa, 2009-
NMCA-002, ¶ 20 (internal quotation marks and citation omitted). One of these exceptions
is that traffic stops will generally be found to be constitutionally reasonable if an officer has
at least a reasonable suspicion to believe that the traffic code has been violated. Id. ¶ 25.
Here, however, this exception to the warrant requirement is not at issue, since Defendant was
stopped in order to execute a warrant for his arrest that had been issued previous to the stop.
He has not argued that the warrant was invalid, and therefore, the unchallenged warrant
rendered the stop constitutionally reasonable. See State v. Hamilton, 2012-NMCA-115,
¶ 13, 290 P.3d 271 (stating that “a search pursuant to a valid search warrant establishes that
the search was constitutionally reasonable”).

{6}     Defendant argues that, in spite of the valid warrant, the stop was unconstitutional
because the execution of the warrant was a pretext for conducting the unrelated drug
investigation. In doing so, he seeks to place this case within the rule set in Ochoa that under
Article II, Section 10 of the New Mexico Constitution, even when there is a reasonable
suspicion to believe that the traffic code has been violated, a stop may nevertheless be
constitutionally unreasonable if it is conducted in order to investigate some unrelated matter.
2009-NMCA-002, ¶¶ 38-40. Ochoa’s rule forbids the use of an otherwise valid traffic stop
as a pretext for investigating unrelated conduct for which the police do not have reasonable
suspicion or probable cause to detain a suspect, unless the State can prove that the traffic
stop would have occurred regardless of the unrelated investigation. Id. ¶ 40.

{7}     We are not persuaded that Ochoa applies. Defendant was arrested pursuant to an
outstanding warrant. Ochoa’s pretext rule is an exception to the general rule that the police
may detain a person briefly based on reasonable suspicion that a traffic violation has
occurred. The reasonable suspicion rule in turn is an exception to the warrant requirement.
See id. ¶¶ 16, 25 (characterizing the ability to conduct a brief investigatory detention based
on a reasonable suspicion of criminal activity as an exception to the requirement that the
police obtain a warrant in order to seize someone). Ochoa’s exception to the reasonable
suspicion exception does not apply to the case at hand because the officers did not need
reasonable suspicion to stop Defendant when they had a valid outstanding arrest warrant.
Cf. State v. Ryon, 2005-NMSC-005, ¶ 20, 137 N.M. 174, 108 P.3d 1032 (stating that it is
inappropriate to apply an exception to the reasonable suspicion requirement under
circumstances where a police encounter is justified by a rule that does not require reasonable
suspicion that a crime has been committed).

{8}     In addition, Ochoa’s reasoning does not support its application to cases in which the
police stop a person in order to execute an arrest warrant. Ochoa defined a pretextual stop
as “a detention supportable by reasonable suspicion or probable cause to believe that a traffic
offense has occurred, but is executed as a pretense to pursue a ‘hunch,’ a different more
serious investigative agenda for which there is no reasonable suspicion or probable cause.”
2009-NMCA-002, ¶ 25 (emphasis added). The reason for Ochoa’s conclusion that traffic

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stops in particular must be examined for the real motivation of the stopping officer comes
from the special nature of the traffic code. As Ochoa recognized, the traffic code is so
extensive and detailed that “virtually the entire driving population is in violation of some
regulation as soon as they get in their cars, or shortly thereafter.” Id. ¶ 17 (internal quotation
marks and citation omitted). As a consequence, police officers must exercise their discretion
in deciding which violators will be stopped because “it would not be possible to strictly
enforce the multitude of traffic laws.” Id. ¶ 35. Because almost all drivers will violate the
traffic code at some point during even the briefest drive, Ochoa’s concern was that police
officers had essentially unfettered discretion to detain someone whom they were
investigating by simply following the person until a traffic law was violated, providing the
excuse to detain the person, at least briefly, with the hope that during that brief detention
some other evidence of wrongdoing would be found. Ochoa thus explained that “[g]iven the
pervasiveness of . . . minor traffic offenses and the ease with which law enforcement agents
may uncover them in the conduct of virtually everyone, the requirement of a traffic violation
hardly matters, for . . . there exists a power that places the liberty of every man in the hands
of every petty officer[.]” Id. ¶ 17 (alterations, internal quotation marks, and citation
omitted). Ochoa was concerned not only with the possibility that officers would use traffic
stops to detain people when an investigation had not yet provided a reasonable suspicion or
probable cause to detain them for the matters under investigation, but that such unbridled
discretion could result in stops based wholly on race or other discriminatory factors. Id.
¶¶ 16, 18-19.

{9}     Defendant contends that because New Mexico courts have expressed general
concerns about pretextual police practices in other contexts, the rationale of Ochoa should
be expanded beyond stops based upon traffic violations. But in contrast to the broad
discretion that officers have in enforcing the traffic code, when the police have a warrant for
a person’s arrest, it is because a neutral magistrate or judge has determined that there is
probable cause to believe that the particular individual named in the warrant has already
committed an offense for which he may be arrested. The warrant necessarily limits a police
officer’s discretion regarding whom to arrest. Ochoa’s reasoning and policy considerations
simply do not apply when officers execute an arrest warrant—even when they must first stop
a vehicle to do so—and there is no reason to extend Ochoa’s holding to such circumstances.

{10} Furthermore, as the district court pointed out, such a rule would inhibit the police in
the execution of valid arrest warrants if the person to be arrested also happened to be under
investigation for some other crime. The police should not be impeded in the execution of
valid arrest warrants, even if, in doing so, they may harbor some hope of discovering
evidence of additional crimes. The problem that renders some pretextual stops
unconstitutional is not that an officer might subjectively hope to find evidence of a greater
offense; the problem arises when an officer would not have been interested in pursuing the
lesser offense absent that hope. See id. ¶¶ 32, 40 (indicating that even if officers have a
subjective motivation for stopping the person unrelated to the traffic violation, the stop will
not be unconstitutional if the prosecution can demonstrate that the officers would have
stopped the person even without the unrelated motivation). An officer’s subjective hope

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alone cannot alter the necessity and propriety of executing a valid warrant.

{11} It is true that, here, in addition to the warrant, the police also had reasonable
suspicion to believe that Defendant was driving with a suspended or revoked license, which
is a violation of the traffic code. See NMSA 1978, § 66-5-39(A) (1993, amended 2013)
(making it a misdemeanor for a person to drive when he knows or should know that his
license has been suspended or revoked). This fact does not affect our analysis for two
reasons: first, the district court made an express finding that the reason for the stop was the
warrant, and Defendant has not challenged that finding on appeal; and second, even if the
officers stopped Defendant based on both the warrant and the fact that he was driving with
a suspended or revoked license, as we discussed earlier, the warrant provides a basis for the
detention that limits the officers’ discretion and therefore eliminates the concerns that Ochoa
is intended to remedy.

CONCLUSION

{12} Because a warrant existed for Defendant’s arrest, the officers’ stop of Defendant’s
vehicle was not pretextual and did not violate the New Mexico Constitution. The district
court did not err in denying Defendant’s motion to suppress. Accordingly, we affirm.

{13}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Chief Judge

____________________________________
MICHAEL E. VIGIL, Judge




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