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

 2 Opinion Number: ________________

 3 Filing Date: January 22, 2019

 4 NO. A-1-CA-35414

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellee,

 7 v.

 8 JENNIFER SIMPSON,

 9       Defendant-Appellant.

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

12 Hector H. Balderas, Attorney General
13 Marko D. Hananel, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 Tania Shahani, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1                                      OPINION

 2 GALLEGOS, Judge Pro Tempore.

 3   {1}   Defendant Jennifer Simpson appeals from the district court’s denial of her

 4 motion to suppress evidence that she contends was obtained as the result of an

 5 illegal seizure in violation of the Fourth Amendment to the United States

 6 Constitution and Article II, Section 10 of the New Mexico Constitution. Following

 7 a hearing resulting in the denial of her suppression motion, Defendant entered a

 8 conditional guilty plea to driving while intoxicated (DWI) and driving on a

 9 revoked license, reserving her right to appeal the denial of her motion. Defendant

10 contends that she was seized without reasonable suspicion when she stopped her

11 moving vehicle in response to a police officer’s tap on the vehicle’s window and

12 that the evidence discovered as a result of her illegal detention must be suppressed.

13 We determine that the police officer’s initial contact with Defendant was

14 consensual. Accordingly, we affirm the district court’s denial of Defendant’s

15 suppression motion.

16 BACKGROUND

17   {2}   On June 17, 2015, in Farmington, New Mexico, Mark Kennedy, a park

18 ranger and animal control officer, was going about his evening duties at a city park

19 complex. At around 11:00 p.m., he noticed a car drive into a nearby parking lot.

20 The parking lot was park property, partially paved, and poorly lit. The driver of the
 1 car—later identified as Defendant—parked and turned off her lights. Officer

 2 Kennedy found this suspicious because, while not posted as such, the park’s

 3 official closing time was 10:00 p.m. He reported the suspicious vehicle to dispatch.

 4 Farmington Police Officer Nick Adegite arrived in uniform and in a marked patrol

 5 car at approximately 11:20 p.m. to investigate Officer Kennedy’s suspicious

 6 vehicle report. He entered the parking lot and parked near Defendant’s stationary

 7 vehicle. Officer Adegite at no time engaged his vehicle’s emergency lights.

 8   {3}   As Officer Adegite approached Defendant’s vehicle on foot, Defendant

 9 turned on her lights and started to drive away. Officer Adegite then reached out

10 and tapped on the window of Defendant’s moving vehicle. Defendant stopped and

11 rolled down her window. Officer Adegite quickly detected the strong odor of

12 alcohol, which led to a DWI investigation and Defendant’s eventual arrest.

13 Ultimately, Defendant entered a conditional guilty plea, reserving the right to

14 appeal the district court’s denial of her motion to suppress.

15 DISCUSSION

16   {4}   On appeal, Defendant argues that she was illegally seized when she stopped

17 her vehicle to comply with Officer Adegite’s signal to stop because the police

18 officer lacked sufficient reasonable suspicion to make an investigatory stop. For

19 the reasons that follow, we hold that Officer Adegite’s tap on Defendant’s car

20 window, without more, constituted only a consensual encounter between the


                                              2
 1 officer and Defendant. Therefore, there was no seizure at the time Defendant rolled

 2 down her window and Officer Adegite observed a strong odor of alcohol

 3 emanating from inside the vehicle.

 4 I.      Standard of Review

 5   {5}   In reviewing a district court’s ruling denying a motion to suppress, this

 6 Court draws all reasonable inferences in favor of the ruling and defers to the

 7 district court’s findings of fact as long as they are supported by substantial

 8 evidence. State v. Jason L., 2000-NMSC-018, ¶¶ 10-11, 129 N.M. 119, 2 P.3d 856.

 9 If the district court does not state on the record a disbelief of uncontradicted

10 testimony, we “presume the court believed all uncontradicted evidence.” Id. ¶ 11.

11 “When a seizure occurred and whether it was based on reasonable suspicion are

12 mixed questions of fact and law because they involve the mixture of facts and

13 evaluative judgments.” State v. Eric K., 2010-NMCA-040, ¶ 14, 148 N.M. 469,

14 237 P.3d 771. We evaluate mixed questions de novo. Id.

15 II.     The Initial Encounter Was Consensual and Did Not Constitute a

16 Seizure

17   {6}   Investigatory detentions and arrests are considered seizures for the purposes

18 of the Fourth Amendment’s protection against unreasonable searches and seizures.

19 Jason L., 2000-NMSC-018, ¶ 14. While both the State and Defendant acknowledge

20 that Defendant was seized by Officer Adegite at some point during the encounter,


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 1 they disagree as to when exactly the seizure occurred. Defendant contends that she

 2 was seized when she stopped her vehicle in response to Officer Adegite’s tap on

 3 her window. The State argues that Defendant was not seized until sometime after

 4 Officer Adegite observed signs of intoxication, with all prior events being

 5 consensual in nature. “The point at which the seizure occurs is pivotal because it

 6 determines the point in time the police must have reasonable suspicion to conduct

 7 an investigatory stop.” State v. Harbison, 2007-NMSC-016, ¶ 10, 141 N.M. 392,

 8 156 P.3d 30.

 9   {7}   Under United States v. Mendenhall, 446 U.S. 544 (1980), “a person is seized

10 within the meaning of the [F]ourth [A]mendment when, in view of all the

11 circumstances surrounding the incident, a reasonable person would have believed

12 he was not free to leave.” State v. Lopez, 1989-NMCA-030, ¶ 4, 109 N.M. 169,

13 783 P.2d 479. Whether a defendant has been seized “is a case-by-case

14 determination balancing the intrusion into individual privacy against the [s]tate’s

15 interest in crime prevention, looking at the totality of the circumstances.” State v.

16 Murry, 2014-NMCA-021, ¶ 12, 318 P.3d 180.

17   {8}   The police do not need justification to approach a person and ask that person

18 questions, so long as the actions of the officers do not “convey a message that

19 compliance with their requests is required.” Jason L., 2000-NMSC-018, ¶ 14

20 (internal quotation marks and citation omitted). Police contact is consensual so


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 1 long “as a reasonable person would feel free to disregard the police and go about

 2 his business[] or to decline the officers’ requests or otherwise terminate the

 3 encounter.” State v. Scott, 2006-NMCA-003, ¶ 18, 138 N.M. 751, 126 P.3d 567

 4 (internal quotation marks and citation omitted). “However, if an officer conveys a

 5 message that an individual is not free to walk away, by either physical force or a

 6 showing of authority, the encounter becomes a seizure under the Fourth

 7 Amendment.” State v. Gutierrez, 2008-NMCA-015, ¶ 9, 143 N.M. 522, 177 P.3d

 8 1096 (internal quotation marks and citation omitted). Additionally, for purposes of

 9 the Fourth Amendment, “a seizure based on a show of authority, as opposed to

10 physical force, requires ‘submission to the assertion of authority.’ ” Harbison,

11 2007-NMSC-016, ¶ 13 (quoting California v. Hodari D., 499 U.S. 621, 626

12 (1991)). However, in State v. Garcia, 2009-NMSC-046, ¶ 35, 147 N.M. 134, 217

13 P.3d 1032, our Supreme Court held that our State Constitution does not require

14 submission to authority, and instead, the “free-to-leave” test articulated in

15 Mendenhall provides the standard for determining whether a person is seized for

16 purposes of Article II, Section 10 of the New Mexico Constitution. We decide this

17 appeal on state constitutional grounds, applying the Mendenhall “free-to-leave”

18 test.

19   {9}   In determining whether a person was seized, “we evaluate (1) the

20 circumstances surrounding the contact, including whether police used a show of


                                            5
 1 authority; and (2) whether the circumstances of the contact reached such a level of

 2 accosting and restraint that a reasonable person would have believed he or she was

 3 not free to leave.” Scott, 2006-NMCA-003, ¶ 17 (internal quotation marks and

 4 citation omitted). The first of these determinations is a fact-based inquiry, which

 5 we review for substantial evidence. Jason L., 2000-NMSC-018, ¶ 19. The second

 6 is a legal inquiry wherein we apply those facts to the law de novo. Id.

 7 A.       Circumstances Surrounding the Contact

 8   {10}   Evaluating the circumstances surrounding the police-citizen contact in this

 9 case, we initially observe that the district court did not make any factual findings,

10 save for noting that Officer Adegite did not employ lights or sirens or otherwise

11 make a show of force. A lack of factual findings “is a regular occurrence when we

12 review decisions on motions to suppress evidence in criminal cases.” State v.

13 Gonzales, 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355. In these

14 circumstances, we presume that the district court believed the uncontradicted

15 testimony of the two witnesses, Officer Kennedy and Officer Adegite. See Murry,

16 2014-NMCA-021, ¶ 10 (“If the district court does not state on the record a

17 disbelief of uncontradicted testimony, we presume the court believed all

18 uncontradicted evidence.” (internal quotation marks and citation omitted)).

19   {11}   As indicated, Officer Adegite arrived after 11:00 p.m. at a poorly lit and

20 partially paved parking lot behind a municipal public park to investigate a report of


                                             6
 1 a suspicious vehicle. He was in uniform and entered the parking lot in a marked

 2 patrol vehicle without his emergency equipment activated. Other than Defendant’s

 3 vehicle, the parking lot was empty and there were no other vehicles or members of

 4 the public in the vicinity.

 5   {12}   Officer Adegite parked his patrol vehicle in the parking lot. It is unclear

 6 from the record how close Officer Adegite parked to Defendant’s car or whether

 7 Defendant saw the police vehicle as it entered the parking lot. Upon exiting his

 8 patrol car, Officer Adegite approached Defendant’s vehicle on foot. As he neared

 9 the vehicle, Defendant began to drive away. Officer Adegite then tapped on the

10 window of Defendant’s moving vehicle (how slowly the vehicle was moving is

11 also unclear from the record), without making any other statement, gesture, or

12 signal. Defendant stopped her vehicle and rolled down the window. It was at that

13 point that Officer Adegite could detect an odor of alcohol coming from inside the

14 vehicle, ultimately leading to Defendant’s arrest for DWI.

15 B.       A Reasonable Person Would Have Felt Free to Leave

16   {13}   The initial encounter between Officer Adegite and Defendant entailed little

17 more than the officer’s approach toward Defendant’s vehicle and his ensuing tap

18 on the car window. The linchpin of Defendant’s suppression issue is whether this

19 conduct constituted a “show of [police] authority” at such a level of “accosting and

20 restraint” that it would have conveyed the message to Defendant that she was not


                                             7
 1 free to leave. Scott, 2006-NMCA-003, ¶ 17. Three factors should be considered in

 2 determining whether a reasonable person would feel free to walk, or more

 3 accurately here, to drive away from an encounter with police: “(1) the conduct of

 4 the police, (2) the person of the individual citizen, and (3) the physical

 5 surroundings of the encounter.” Jason L., 2000-NMSC-018, ¶ 15 (internal

 6 quotation marks and citation omitted). Examples of circumstances that might

 7 indicate a seizure would be “the threatening presence of several officers, the

 8 display of a weapon by an officer, some physical touching of the person of the

 9 citizen, or the use of language or tone of voice indicating that compliance with the

10 officer’s request might be compelled.” Lopez, 1989-NMCA-030, ¶ 3 (quoting

11 Mendenhall, 446 U.S. at 554).

12   {14}   Clearly, none of the circumstances enumerated in Lopez are present in this

13 case. That is, although Officer Adegite was in uniform and drove into the parking

14 lot in his marked patrol vehicle, there is no evidence that he displayed a weapon,

15 physically touched Defendant, or used language or tone of voice that would

16 indicate that compliance might be compelled. Further, as the district court found,

17 Officer Adegite did not employ lights or sirens or otherwise make a show of force.

18 He simply tapped on Defendant’s window.

19   {15}   A police officer’s conduct in tapping on the window of a parked car, without

20 more, is typically not enough to constitute a seizure. In County of Grant v. Vogt,


                                              8
 1 2014 WI 76, ¶¶ 4-5, 356 Wis. 2d 343, 850 N.W.2d 253, the officer observed the

 2 defendant park in a lot next to a closed park. The officer parked his squad car

 3 behind but not blocking the defendant’s stationary and idling vehicle, approached

 4 the vehicle on foot, and “rapped” on the window. Id. ¶¶ 6-7. Although the officer

 5 was in uniform, he did not activate his vehicle’s overhead lights. Id. A majority of

 6 the Wisconsin Supreme Court held that this was not a seizure, concluding that

 7 “[a]lthough it may have been [the defendant’s] social instinct to open his window

 8 in response to [the deputy’s] knock, a reasonable person in [the defendant’s]

 9 situation would have felt free to leave.” Id. ¶ 53. This Court reached a similar

10 holding in an unpublished opinion. See Padilla v. Motor Vehicle Div., No. 30,646,

11 mem. op., at *2 (N.M. Ct. App. Aug. 14, 2012) (non-precedential) (“[W]e

12 conclude that no seizure occurred where the officer parked his marked patrol unit

13 fifteen feet away from [the d]efendant’s vehicle, approached [the d]efendant’s

14 vehicle on foot, in uniform and displaying his badge, and tapped on the vehicle’s

15 window.”). Likewise, courts in other jurisdictions have concluded that tapping on

16 the window of a parked vehicle does not, in and of itself, constitute a seizure. See,

17 e.g., Rutledge v. State, 28 N.E.3d 281, 289 (Ind. Ct. App. 2015) (determining that a

18 police officer who parked near the defendant’s vehicle, approached on foot, and

19 then “tapped on the driver side window and attempted to speak with [the defendant

20 in the parked vehicle]” had not effectuated a seizure because “the degree of


                                             9
 1 intrusion was minor”). But see State v. Patterson, 2005 ME 26, ¶¶ 15-16, 868 A.2d

 2 188 (concluding that tapping on the window of a parked car, combined with a

 3 vocal request to open the window, constituted a seizure).

 4   {16}   Consistent with this line of authority, Professor LaFave notes in his search

 5 and seizure treatise that “if an officer merely walks up to a person standing or

 6 sitting in a public place (or, indeed, who is seated in a vehicle located in a public

 7 place) and puts a question to him, this alone does not constitute a seizure.” 4

 8 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, §

 9 9.4(a), at 574-77 (5th ed. 2012) (footnotes omitted). He explains that “[t]he result

10 is not otherwise when the officer utilizes some generally accepted means of

11 gaining the attention of the vehicle occupant or encouraging him to eliminate any

12 barrier to conversation.” Id. at 594. He goes on to state that, in order to make a

13 basic inquiry, an officer may tap on the window of a car to get the person’s

14 attention without transforming the encounter into a seizure. Id. at 594-95.

15   {17}   The communicative effect of an officer’s tap or knock on a vehicle’s

16 window is to gain the attention of the occupant(s) of the vehicle; it does not

17 necessarily indicate “that compliance with the officer’s request might be

18 compelled[,]” Lopez, 1989-NMCA-030, ¶ 3 (internal quotation marks and citation

19 omitted), nor does it communicate that a person is otherwise not free to leave. Cf.

20 Murry, 2014-NMCA-021, ¶ 24 (holding that a reasonable innocent person


                                             10
 1 receiving an order to open his car door from a uniformed police officer “would

 2 perceive that he was not free to disregard the order, let alone free to leave”).

 3 Moreover, “[t]he critical factor is whether the policeman, even if making inquiries

 4 a private citizen would not, has otherwise conducted himself in a manner which

 5 would be perceived as a nonoffensive contact if it occurred between two ordinary

 6 citizens.” Garcia, 2009-NMSC-046, ¶ 38 (internal quotation marks and citation

 7 omitted). Gaining the attention of a vehicle occupant by tapping on the vehicle’s

 8 window would generally be perceived as nonoffensive contact if it occurred

 9 between two ordinary citizens.

10   {18}   What makes this case different, at least in Defendant’s view, is that her

11 vehicle was in motion at the time Officer Adegite tapped on the window.

12 Defendant likens this case to a traffic stop. See State v. Funderburg, 2008-NMSC-

13 026, ¶ 13, 144 N.M. 37, 183 P.3d 922 (stating that “[w]hen an officer stops an

14 automobile and detains the occupants for an investigatory stop, the officer has

15 effected a seizure” (internal quotation marks and citation omitted)).1 As a general

16 rule, a traffic stop constitutes a seizure. See id.; see also Delaware v. Prouse, 440

            1
              We note that Defendant did not make this specific “traffic stop” argument
     at trial. However, Defendant did contend that the window tap caused her to stop
     her vehicle, and she presented the necessary evidence to support the legal
     principle. Therefore, we will consider the argument on its merits. See State v.
     Paananen, 2015-NMSC-031, ¶ 11, 357 P.3d 958 (determining that an issue was
     preserved where the state sufficiently asserted the issue and adduced the evidence
     necessary to support the legal principle, and where the defendant had an
     opportunity to respond).

                                            11
 1 U.S. 648, 653 (1979) (holding that “stopping an automobile and detaining its

 2 occupants constitute a seizure” under the Fourth Amendment, even where “the

 3 purpose of the stop is limited and the resulting detention quite brief” (internal

 4 quotation marks and citation omitted)). However, we are not persuaded that we are

 5 dealing with a traffic stop in this case.

 6   {19}   That is to say, the circumstances of Officer Adegite’s approach—on foot—

 7 toward Defendant’s vehicle as it was idling in the parking lot, followed by a tap on

 8 the window as it started pulling away, appear to be more akin to an encounter with

 9 a pedestrian or with the occupant of a parked car than to a typical traffic stop. See

10 United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) (holding that where a

11 vehicle “had barely started [driving] in a parking lot, moved only fifteen to twenty

12 yards, and was waved to a halt by DEA agents on foot,” the situation was “more

13 analogous to the cases of pedestrians and parked cars to which the Mendenhall

14 seizure test is applied[,]” and recognizing that the “normal circumstances of a

15 vehicle stop,” which “generally involve abundant displays of authority, including

16 police uniforms, sirens and flashing lights, and signals to pull off the highway[,]”

17 were not present). Given the conspicuous absence of the typical displays of

18 authority attendant to a traffic stop—sirens, flashing lights, signals to pull off the

19 highway—we decline to treat this case as one involving a typical traffic stop.




                                               12
 1   {20}   Defendant also asserts that a reasonable person would have felt compelled to

 2 stop pursuant to NMSA 1978, Section 30-22-1(C) (1981), which prohibits

 3 resisting, evading, or obstructing an officer. The plain language of Section 30-22-

 4 1(C) prohibits “willfully refusing to bring a vehicle to a stop when given a visual

 5 or audible signal to stop, whether by hand, voice, emergency light, flashing light,

 6 siren or other signal, by a uniformed officer in an appropriately marked police

 7 vehicle[.]” (Emphasis added.) In this case, along with the lack of typical displays

 8 of authority attendant to a traffic stop mentioned above, we also note that Officer

 9 Adegite was not in his police vehicle when he approached Defendant’s vehicle and

10 tapped on the window. Defendant has not provided us with any argument or

11 authority as to how Section 30-22-1(C) applies here when Officer Adegite was not

12 in his police vehicle. Where a party cites no authority to support an argument, we

13 may assume no such authority exists. See In re Adoption of Doe, 1984-NMSC-024,

14 ¶ 2, 100 N.M. 764, 676 P.2d 1329.

15   {21}   In the end, we view the fact that Defendant’s vehicle was moving as but one

16 of the myriad factors to be evaluated in our totality of the circumstances analysis.

17 See Michigan v. Chesternut, 486 U.S. 567, 572-73 (1988) (eschewing bright-line

18 tests and describing the Mendenhall free-to-leave test as “necessarily imprecise,

19 because it is designed to assess the coercive effect of police conduct, taken as a

20 whole, rather than to focus on particular details of that conduct in isolation”). In


                                             13
 1 this case, Officer Adegite, alone, in uniform, and on foot, approached a moving

 2 vehicle in a parking lot, and without displaying a weapon or making any gestures

 3 or uttering any commands for Defendant to stop, simply tapped on the vehicle’s

 4 window. Had this window tap occurred in a similar situation involving a parked

 5 vehicle, the communicative effect would have been to gain the attention of the

 6 vehicle’s occupant in order to initiate a consensual encounter and nothing more.

 7 We see no meaningful distinction in the communicative effect of the window tap—

 8 and surely not of constitutional dimension—on these facts, where the vehicle had

 9 barely begun to move after idling in a parking lot.

10   {22}   Viewing the circumstances in their totality, and balancing the intrusion into

11 Defendant’s privacy against the State’s interest in crime prevention, see Jason L.,

12 2000-NMSC-018, ¶ 14, we conclude that Officer Adegite’s approach on foot and

13 his minimally intrusive tap on Defendant’s car window did not constitute a “show

14 of authority” at such a level of “accosting and restraint” that it would have

15 conveyed the message to Defendant that she was not free to leave. Therefore, there

16 was no seizure at the point at which Defendant stopped and rolled down her

17 window.

18 CONCLUSION

19   {23}   Accordingly, we affirm.

20   {24}   IT IS SO ORDERED.


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1                          _______________________________________
2                          DANIEL J. GALLEGOS, Judge Pro Tempore

3 WE CONCUR:



4 _________________________________
5 LINDA M. VANZI, Chief Judge



6 _________________________________
7 JULIE J. VARGAS, Judge




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