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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                    No. A-1-CA-35008

 5 JULIAN NAVARETTE-GOMEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G.W. Shoobridge, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

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

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRENCH, Judge.
 1   {1}   Defendant Julian Navarette-Gomez was charged with trafficking cocaine,

 2 trafficking methamphetamine, possession of drug paraphernalia, and possession of a

 3 firearm by a felon after a traffic stop initiated for speeding and failure to use a turn

 4 signal. Defendant entered a conditional no contest plea to second-degree trafficking

 5 of methamphetamine and misdemeanor possession of drug paraphernalia, reserving

 6 his right to appeal the district court’s denial of his motion to suppress. As a habitual

 7 offender, Defendant was sentenced to a prison term of seven years and two days.

 8 Defendant appeals from denial of his motion to suppress evidence based on violations

 9 of the Fourth Amendment of the United States Constitution and Article II, Section 10

10 of the New Mexico Constitution. We affirm.

11 BACKGROUND

12   {2}   Officer Gustavo Avina of the New Mexico State Police was the only witness

13 presented by the State at the hearing on the motion to suppress, and testified as

14 follows: On December 16, 2011, Officer Avina stopped Defendant on West County

15 Road, outside of Hobbs, New Mexico, for speeding and failure to use a turn signal.

16 Defendant did not produce his driver’s license and had no insurance or registration for

17 the vehicle he was driving. The license plate on the vehicle was registered to another

18 vehicle. Officer Avina issued citations to Defendant and informed him that the vehicle

19 would be towed. Officer Avina initially told Defendant to get “all the stuff” he needed



                                              3
 1 out of the vehicle, but then instructed Defendant to only take the stereo. Defendant

 2 acknowledged that Officer Avina told him only to take the stereo. Defendant then

 3 nonetheless began removing a number of other items from the vehicle and placing

 4 some in his pockets, at which point Officer Avina told Defendant “come here for a

 5 minute,” and asked him if there was anything in his pockets that “shouldn’t be there.”

 6 Defendant initially said he did not know what was in his pockets, and then voluntarily

 7 admitted that he had a pipe for smoking methamphetamine and a scale. Officer Avina

 8 told Defendant to remove the contents of his pockets, and Defendant removed a pipe,

 9 a scale, a plastic bag containing cocaine, and a smaller “black or brown” bag. Officer

10 Avina found two plastic bags containing methamphetamine in the smaller bag.

11   {3}   In his motion to suppress, Defendant argued that Officer Avina’s command that

12 he “come here” and the questions about the contents of his pockets violated his rights

13 under the Fourth Amendment of the United States Constitution and Article II, Section

14 10 of the New Mexico Constitution. Defendant argued that Officer Avina’s conduct

15 constituted a subsequent seizure after the traffic stop had concluded, one that was not

16 based on reasonable suspicion.

17   {4}   The district court denied the motion, and ruled orally that the time of the

18 detention during which Officer Avina asked about the contents of Defendant’s pockets

19 was de minimis and that the totality of the circumstances supported reasonable



                                              4
 1 suspicion, based upon the fact that Officer Avina told Defendant to only retrieve the

 2 stereo and Defendant took multiple items from the vehicle, the fact that this was a

 3 nighttime traffic stop, that Defendant was acting nervous, and that these facts further

 4 suggested concern regarding Officer Avina’s safety.

 5 DISCUSSION

 6   {5}   “A [district] court’s determination on a motion to suppress evidence involves

 7 a mixed question of law and fact[.]” State v. Bell, 2015-NMCA-028, ¶ 2, 345 P.3d

 8 342. Defendant does not dispute the facts in this case and we therefore limit our

 9 analysis to the application of the facts to the law which we review de novo. Id.; see

10 also State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (same); State

11 v. Martinez, 2018-NMSC-007, ¶ 3, 410 P.3d 186 (same).

12   {6}   Defendant argues that the removal of items from the vehicle did not give the

13 officer valid reasonable suspicion or other grounds to re-seize Defendant. Article II,

14 Section 10 of the New Mexico Constitution requires “a reasonable justification for an

15 initial stop and that all questions asked during the stop be reasonably related to the

16 reason for the stop or otherwise supported by reasonable suspicion.” Bell, 2015-

17 NMCA-028, ¶ 15 (alteration, internal quotation marks, and citation omitted). Even

18 questions that do not prolong the encounter are improper if they are not “reasonably

19 related to the reason for the stop or otherwise supported by reasonable suspicion.” Id.



                                              5
 1 ¶ 16 (alteration, internal quotation marks, and citation omitted). To expand the scope

 2 of investigation, “[a] law enforcement officer must have reasonable and articulable

 3 suspicion that other criminal activity has been or may be [occurring].” State v. Leyva,

 4 2011-NMSC-009, ¶ 59, 149 N.M. 435, 250 P.3d 861 (internal quotation marks and

 5 citation omitted). However, a de minimis extension of a stop that does not measurably

 6 extend its duration, particularly to ask questions which necessarily implicate officer

 7 safety, is not unreasonable under the Fourth Amendment. See id. ¶¶ 20-22, 32 (stating

 8 that the touchstone question under the Fourth Amendment is one of reasonableness

 9 and incorporates an officer’s diligence in asking questions unrelated to the initial

10 purpose of the stop, including safety related inquiries, that do not excessively prolong

11 the traffic stop).

12   {7}   Levya provides the analytic roadmap in this case. Although the defendant in

13 Leyva ultimately consented to the search of the vehicle and Defendant here claims that

14 he did not consent to a search of his person, the defendant’s arguments in Leyva were

15 based in part on the fact that the officer improperly asked about the contents of the

16 vehicle before the defendant consented to the search. Id. ¶¶ 2, 5. Thus, our Supreme

17 Court’s analysis of the officer’s initial questioning and the totality of the

18 circumstances are instructive. In Leyva, our Supreme Court looked at a number of

19 facts which individually might not have given rise to reasonable suspicion, but when



                                              6
 1 viewed as a whole did. Id. ¶¶ 59-60. The Court then held that prolonging a traffic stop

 2 by ten minutes to ask about whether there was anything in the vehicle the officer

 3 needed to know about before the vehicle was turned over to a third party to remove

 4 it from the scene was a de minimis extension that was not unreasonable under the

 5 circumstances because the officer would have had safety concerns and still had a

 6 “need to control the scene[.]” Id. ¶¶ 33-34 (internal quotation marks and citation

 7 omitted). Moreover, although the officer in Leyva had already issued the citations and

 8 returned the defendant’s information to him when he asked what was in the vehicle,

 9 his “need to control the scene” had not ended because the defendant was still present

10 and waiting for a ride and a third party was coming to retrieve the vehicle. Id. ¶ 34

11 (internal quotation marks and citation omitted).

12   {8}   Applying Leyva, we must resolve whether Officer Avina had reasonable

13 suspicion to expand his questions beyond those related to the purpose of the initial

14 stop. In Leyva, the defendant was stopped for speeding, and the officer observed the

15 defendant lean to the right and appear to stuff something under the passenger seat. Id.

16 ¶ 4. During the course of the stop, the officer discovered the defendant’s license was

17 suspended and informed the defendant that he could have someone retrieve the vehicle

18 within ten minutes or it would be towed and impounded. Id. The defendant arranged

19 to have someone pick up the vehicle. Id. The officer then asked the defendant if there



                                              7
 1 was anything in the vehicle that he needed to know about, and the defendant

 2 responded that there was marijuana in the vehicle and consented to a search that also

 3 revealed methamphetamine. Id. ¶ 5. The district court found that the questions related

 4 to the contents of the vehicle did not violate Article II, Section 10 of the New Mexico

 5 Constitution, and our Supreme Court affirmed, holding that it was not unreasonable

 6 for the officer to inquire about the presence of contraband in the vehicle, given that

 7 the officer saw the defendant appear to hide something under the passenger seat.

 8 Leyva, 2000-NMSC-009, ¶ 60.

 9   {9}   As did our Supreme Court in Leyva, we examine the totality of the

10 circumstances encountered by Officer Avina. Id. ¶ 59. Here, after being informed his

11 vehicle would be towed and that he should only take the stereo, Defendant instead

12 removed multiple items from the vehicle and concealed them in his pockets.

13 Defendant then acted nervous, and when asked claimed not to know that which he had

14 just placed in his pockets. When initially stopped, Defendant had no driver’s license,

15 no registration or insurance for the vehicle he was driving, and claimed he had placed

16 a different license plate on the vehicle due to an “emergency.” The time extension to

17 the stop caused by Officer Avina saying “come here” to Defendant and inquiring

18 about the contents of Defendant’s pockets was less than one minute. The total

19 encounter lasted almost forty minutes. Such was not a constitutionally unreasonable



                                              8
 1 extension of the traffic stop, particularly given that Defendant was accessing the

 2 vehicle and concealing items in his pockets that he was removing contrary to Officer

 3 Avina’s instruction that he take only the stereo, that Defendant was doing this minutes

 4 before Officer Avina’s question, that Defendant did not appear to be attempting to

 5 leave the scene, and that the tow truck driver was present, all of which indicated that

 6 Officer Avina still had a need to both control the scene and ensure his own safety or

 7 that of the tow truck driver. Based on the foregoing, the district court correctly

 8 concluded that Defendant’s emergence from the car “with multiple items . . . in the

 9 middle of the night . . . [and] putting something in [his] pockets, that there was a

10 lawful search at that point[.]” We agree that Officer Avina’s question about the

11 contents of Defendant’s pockets did not unreasonably prolong the encounter.

12 Although any one of these facts described in the paragraph above itself might not give

13 rise to reasonable suspicion, when viewed in total, we cannot say that the district court

14 lacked substantial evidence upon which to determine that Officer Avina’s conduct was

15 supported by reasonable suspicion.

16   {10}   We find unpersuasive Defendant’s argument that Bell and Leyva instruct

17 otherwise. In Bell, this Court concluded that reasonable suspicion did not exist to

18 permit questions about rocket launchers, grenades, and dead bodies in the course of

19 a DWI investigation, holding that such questions must be “analyzed to ensure they are



                                               9
 1 reasonably related to the initial justification for the stop or are supported by

 2 reasonable suspicion.” 2015-NMCA-028, ¶ 15 (internal quotation marks and citation

 3 omitted). But we have held that unlike in Bell, Officer Avina’s questions were

 4 supported by reasonable suspicion given the circumstances that arose during the

 5 traffic stop. And to reiterate, Leyva recognized that because “traffic stops are

 6 ‘especially fraught with danger to police officers[,]’ ” searches “based upon the

 7 objectively reasonable belief that the individuals stopped pose a threat to officer safety

 8 [and that are] limited to its purpose of protecting the officers, and the public, during

 9 the stop” are constitutionally proper. 2011-NMSC-009, ¶ 25 (internal quotation marks

10 and citation omitted). See id. (noting that movements by a vehicle’s occupants that are

11 consistent with hiding objects generally give rise to reasonable safety concerns).

12 Consistent with Leyva’s conclusion that the defendant’s furtive gestures, movements,

13 and the appearance of hiding something under the front seat

14 satisfied an objective concern for officer safety and a permissible de minimis

15 extension of a valid stop, the district court here correctly concluded that Officer Avina

16 acted with objectively reasonable suspicion and concern for officer and public safety

17 in the unfolding events presented to him.




                                               10
1   {11}   Because the broader protections of Article II, Section 10 of the New Mexico

2 Constitution were not violated, we do not address Defendant’s Fourth Amendment

3 arguments.



4 CONCLUSION

5   {12}   We affirm.

6   {13}   IT IS SO ORDERED.


7                                         ______________________________
8                                         STEPHEN G. FRENCH, Judge


9 WE CONCUR:


10 ___________________________________
11 LINDA M. VANZI, Chief Judge


12 ___________________________________
13 J. MILES HANISEE, Judge




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