 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                    NO. 30,623

10 SHONLEE CHAVEZ
11 aka SHONLEE LEWIS,

12          Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 Reed S. Sheppard, District Judge

15 Gary K. King, Attorney General
16 Andrea Sassa, Assistant Attorney General
17 Santa Fe, NM

18 for Appellee

19 D. Eric Hannum
20 Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 KENNEDY, Judge.

24          Defendant appeals from a conditional discharge order, entered pursuant to a
 1 conditional guilty plea reserving the right to appeal the denial of Defendant’s motion

 2 to suppress. In this Court’s notice of proposed summary disposition, we proposed to

 3 reverse. The State has responded with a memorandum in opposition, which we have

 4 duly considered, and has failed to persuade us. We reverse.

 5        Defendant moved to suppress evidence based on his assertion that the police did

 6 not have a reasonable suspicion to stop the vehicle in which he was a passenger. [RP

 7 63-65, 76-77] We reverse based on this Court’s decision in State v. Eric K.,

 8 2010-NMCA-040, ¶¶ 23-24, 148 N.M. 469, 237 P.3d 771. In that case, we held that

 9 a person’s proximity to a reported crime, combined with the fact that the person and

10 his companion were the only people walking in the area and the fact that the person

11 attempted to avoid the police when he saw them, was insufficient to establish

12 reasonable suspicion when the person was not in the immediate vicinity of the crime,

13 but was instead two blocks away. Id.

14        In the State’s memorandum in opposition, it argues that Eric K. is

15 distinguishable, such that this Court should affirm. The State first refers to the fact

16 that in Eric K., an anonymous 911 caller reported that a female held a gun to him and

17 took his money during a drug transaction that occurred near a middle school. [MIO

18 5] However, this Court did not rely on the information provided to the dispatcher, but

19 only to what the officer knew when he detained the suspect. Information such as the


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 1 gender of the suspect, was not provided by the dispatcher to the officer on the street,

 2 who was merely informed that there was an armed suspect near the school who had

 3 pulled a gun on someone during an attempt to purchase drugs. Id. ¶¶ 3, 16.

 4        The State also asserts that in Eric K., the police only suspected that a crime had

 5 taken place based on the allegations in an anonymous call, whereas here, the police

 6 had confirmed that a middle school had been robbed and therefore knew that a second

 7 robbery was occurring when an alarm went off at a nearby elementary school. [MIO

 8 7] The State contends that because it was clear that the perpetrators were on a crime

 9 spree, “time was of the essence.” [MIO 7] We remain unpersuaded. Although we

10 agree that the police may have had good reason to suspect that the alarm at the

11 elementary school could be related to the confirmed robbery at the middle school, this

12 was no certainty. Furthermore, we believe that the police’s concern in Eric K., about

13 an armed suspect in the area of a middle school, was a significant concern—no less

14 so because it had not yet been confirmed by locating the suspect. We do not believe

15 that locating the perpetrators of a possible robbery of an elementary school is

16 somehow more critical than locating a person who is claimed to have threatened

17 someone with a gun in the area of a middle school.

18        The State points out that in Eric K., the investigatory detention occurred during

19 the day, whereas here, it occurred close to midnight, and that the four occupants of the


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 1 car appeared to be in their teens, such that it was late for them to be out. The fact that

 2 it was late such that there was very little traffic in the area does not meaningfully

 3 distinguish this case from Eric K. since, in Eric K. it was a day off from school so that

 4 there would have been less than the usual traffic in the area and the officer in that case

 5 testified that he saw no one else on the street. See id. ¶ 23. Furthermore, the fact that

 6 there were four males in a vehicle who looked to be high school age does not make

 7 the occupants more suspicious than the two school-aged pedestrians stopped walking

 8 from the direction of a middle school on a day when school was not in session.

 9 Accordingly, we conclude that in viewing the totality of the circumstances as a whole,

10 this case is controlled by our decision in Eric K.

11        Therefore, for the reasons stated in this opinion and in our notice of proposed

12 summary disposition, we reverse.

13        IT IS SO ORDERED.



14                                          ___________________________________
15                                          RODERICK T. KENNEDY, Judge

16 WE CONCUR:



17 ___________________________
18 JAMES J. WECHSLER, Judge


                                               4
1 ___________________________
2 CYNTHIA A. FRY, Judge




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