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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. 32,505

 5 ALBERTO ARANZOLA,

 6          Defendant-Appellant.

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

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Sri Mullis, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Jorge A. Alvarado, Chief Public Defender
15 Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 KENNEDY, Judge.

20 I.       INTRODUCTION
 1   {1}   Alberto Aranzola (Defendant) appeals the district court’s denial of his motion

 2 to suppress and challenges the sufficiency of evidence supporting his convictions. We

 3 conclude that the police in this case had reasonable suspicion to initiate contact based

 4 on having seen Defendant engage in two quick hand-to-hand transactions with two

 5 different people. Having seen Defendant attempt to swallow a small plastic bag

 6 containing an unknown substance upon recognizing approaching individuals to be

 7 police officers, the arresting officer acquired sufficient reason to seize Defendant in

 8 a more restrictive way. Therefore, Defendant’s motion to suppress was properly

 9 denied. We also conclude that the State presented sufficient evidence to support

10 Defendant’s convictions.

11 II.     BACKGROUND

12   {2}   A grand jury indicted Defendant on one count of drug trafficking with intent

13 to distribute (in violation of NMSA 1978, Section 30-31-20(A)(3) (2006)), one count

14 of tampering with evidence (in violation of NMSA 1978, Section 30-22-5 (2003)), and

15 one count of possession of drug paraphernalia (in violation of NMSA 1978, Section

16 30-31-25.1(A) (2001)). Before trial, Defendant filed a motion to suppress, and the

17 district court held a hearing on the motion. During that hearing, the arresting officer,

18 Detective Linson, set forth the circumstances leading up to Defendant’s arrest.

19 Because the parties are familiar with the facts and this is a memorandum opinion, we

20 do not recite those facts here but include some in our analysis below.

                                              2
 1 III.    DISCUSSION

 2 A.      Defendant Preserved His Claims Under the New Mexico Constitution

 3   {3}   The State asserts that Defendant failed to preserve his New Mexico

 4 constitutional claims under State v. Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M.

 5 777, 932 P.2d 1. However, we conclude that Defendant’s assertions and factual basis

 6 presented below were adequate to preserve his claims. In Gomez, our Supreme Court

 7 set forth the interstitial approach to preservation under two circumstances: cases where

 8 established precedent “construes the provision to provide more protection than its

 9 federal counterpart,” and where a state constitutional right “has not been interpreted

10 differently than its federal analog[.]” Id. (emphasis omitted). Where the state

11 constitution affords more protection than the federal constitution, “the claim may be

12 preserved by (1) asserting the constitutional principle that provides the protection

13 sought under the New Mexico Constitution, and (2) showing the factual basis needed

14 for the trial court to rule on the issue.” Id. ¶ 22.

15   {4}   The Supreme Court reiterated and clarified this rule in State v. Leyva, 2011-

16 NMSC-009, ¶¶ 40, 49, 149 N.M. 435, 250 P.3d 861, by articulating that “the proper

17 inquiry under Gomez is whether the provision of the state constitution has previously

18 been construed to provide broader protection than its federal counterpart[.]” Id. ¶ 48.

19 “It is well-established that Article II, Section 10 provides more protection against

20 unreasonable searches and seizures than the Fourth Amendment.” Leyva, 2011-

                                                3
 1 NMSC-009, ¶ 51. Thus, “trial counsel must develop the necessary factual base and

 2 raise the applicable constitutional provision in [the district] court.” Id. ¶ 49. It is often

 3 adequate to preserve an Article II, Section 10 claim through an assertion of greater

 4 protection and a development of necessary facts. Leyva, 2011-NMSC-009, ¶¶ 44-45

 5 (citing Montoya v. Ulibarri, 2007-NMSC-035, ¶ 18, 142 N.M. 89, 163 P.3d 476);

 6 State v. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 1, 13, 130 N.M. 386, 25 P.3d 225

 7 (recognizing that an Article II, Section 10 claim was preserved where the defendant

 8 made argument that the state constitution provided protection sought and set forth a

 9 factual basis upon which the trial court could rule); State v. Paul T., 1999-NMSC-037,

10 ¶¶ 13, 26, 128 N.M. 360, 993 P.2d 74 (same); State v. Granville, 2006-NMCA-098,

11 ¶ 14, 140 N.M. 345, 142 P.3d 933 (noting that the defendant need only have alerted

12 the trial court to the legal issue and develop the facts necessary to ruling to preserve

13 Article II, Section 10 argument).

14   {5}   Defendant satisfied both preservation requirements articulated by Leyva and

15 Gomez. His motion to suppress clearly articulated Article II, Section 10 as grounds for

16 his argument that the search and seizure of his person was unreasonable and violated

17 both the federal and state constitutions. In addition, Detective Linson testified to the

18 facts necessary to make a ruling, and the district court reached its decision after

19 consideration of those facts and arguments from both counsel. This was sufficient to

20 alert the district court of Defendant’s claim. See State v. Nichols, 2006-NMCA-017,

                                                 4
 1 ¶ 27, 139 N.M. 72, 128 P.3d 500 (“The primary purposes of the preservation

 2 requirement are (1) to alert the trial court to a claim of error so that it has an

 3 opportunity to correct any mistake, and (2) to give the opposing party a fair

 4 opportunity to respond and show why the court should rule against the objector.”

 5 (internal quotation marks and citation omitted)). As such, Defendant “fairly invoked”

 6 the district court’s ruling on his claim under Article II, Section 10. Rule 12-216(A)

 7 NMRA.

 8 B.      Detective Linson Had Reasonable Suspicion to Stop Defendant

 9 1.      Standard of Review

10   {6}   The district court’s denial of Defendant’s motion to suppress presents a mixed

11 question of law and fact. State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183. We

12 first look for “substantial evidence to support the [district] court’s factual finding, with

13 deference to the district court’s review of the testimony and other evidence presented.”

14 State v. Olson, 2012-NMSC-035, ¶ 9, 285 P.3d 1066 (internal quotation marks and

15 citation omitted). “We then review the application of the law to those facts, making

16 a de novo determination of the constitutional reasonableness of a search or seizure.”

17 Id. (internal quotation marks and citation omitted).

18 2.      Seizure Under Article II, Section 10 of the New Mexico Constitution

19   {7}   Article II, Section 10 of the New Mexico Constitution provides: “The people

20 shall be secure in their persons, papers, homes and effects, from unreasonable searches

                                                5
 1 and seizures[.]” New Mexico courts adhere to a broader interpretation of these

 2 protections than the Fourth Amendment provides. See Leyva, 2011-NMSC-009, ¶ 3

 3 (“Because Article II, Section 10 provides greater protections against unreasonable

 4 searches and seizures than does the Fourth Amendment, we maintain the Duran

 5 standard for reviewing searches and seizures under the New Mexico Constitution.”).

 6 Although Defendant preserved his claims under both the state and federal

 7 constitutions, we need only address the broader protections afforded under Article II,

 8 Section 10 of the New Mexico Constitution. Olson, 2012-NMSC-035, ¶ 10.

 9   {8}   A seizure occurs under Article II, Section 10 “ ‘only if, in view of all of the

10 circumstances surrounding the incident, a reasonable person would have believed that

11 he was not free to leave.’ ” State v. Garcia, 2009-NMSC-046, ¶¶ 36-37, 147 N.M.

12 134, 217 P.3d 1032 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

13 Possible indicators of a seizure include “the threatening presence of several officers,

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

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

16 officer’s request might be compelled.” Garcia, 2009-NMSC-046, ¶ 39 (internal

17 quotation marks and citation omitted). That said, “otherwise inoffensive contact

18 between a member of the public and the police cannot, as a matter of law, amount to

19 a seizure of that person.” State v. Affsprung, 2004-NMCA-038, ¶ 12, 135 N.M. 306,

20 87 P.3d 1088 (internal quotation marks and citation omitted). Police are free to engage

                                              6
 1 people in consensual encounters; when compliance with a police officer’s request is

 2 required, however, “[a] reasonable person would not feel free to leave and a seizure

 3 has occurred.” Garcia, 2009-NMSC-046, ¶ 39; cf. State v. Jason L., 2000-NMSC-018,

 4 ¶ 34, 129 N.M. 119, 2 P.3d 856 (Baca, J., dissenting) (“An officer is free to approach

 5 people and ask questions without violating the Fourth Amendment rights of the

 6 individual questioned.”).

 7   {9}    In order to determine whether a reasonable person would feel free to leave, our

 8 courts examine “(1) the conduct of the police, (2) the person of the individual citizen,

 9 and (3) the physical surroundings of the encounter.” Jason L., 2000-NMSC-018, ¶ 15

10 (internal quotation marks and citation omitted). In Jason L., the Supreme Court

11 addressed how these considerations fit into our standard of review. Id. ¶ 19. The

12 determination of what exactly were “the circumstances surrounding the stop, including

13 whether the officers used a show of authority[,]” is a factual inquiry that we review

14 for substantial evidence. Id. The determination of whether the circumstances amount

15 to “a level of accosting and restraint that a reasonable person would have believed he

16 or she was not free to leave” is a legal inquiry that we review de novo. Id.

17   {10}   Following two apparent hand-to-hand transactions with two different people,

18 each of short duration, Defendant was sitting in the driver’s seat of a truck, which was

19 parked at the curb of a street. An unmarked police car pulled in roughly 200 feet

20 behind him. Another car, which was unmarked but identifiable as a police car, pulled

                                               7
 1 in front of Defendant’s parked car.1 Two detectives alighted from the car in front of

 2 Defendant and began to walk toward Defendant; although not in uniform, they were

 3 wearing their badges on chains around their necks. Detective Linson exited his car and

 4 approached the driver’s side of the truck. Defendant, apparently unaware of Detective

 5 Linson’s presence, began shoving a plastic bag containing an unknown substance

 6 down his throat while still looking at the officers in front of him. Upon seeing

 7 Defendant attempt to swallow the bag, Detective Linson identified himself as a police

 8 officer and ordered Defendant to stop what he was doing.

 9   {11}   Although the officers parked in front of and behind Defendant’s truck prior to

10 this seizure, there was ample room for Defendant to leave. At the point when

11 Detective Linson identified himself as an officer and gave Defendant a command, a

12 reasonable person would not have felt free to terminate the encounter and walk away.

13 See State v. Lopez, 1989-NMCA-030, ¶ 13, 109 N.M. 169, 783 P.2d 479 (stating that,

14 generally, blocking a vehicle’s progress is a form of physical restraint), modified on

15 other grounds by Jason L., 2000-NMSC-018. Similarly, there was more than one

16 officer approaching Defendant. Their approach, however, was non-threatening; they

17 were walking, not running or jogging, and they were not brandishing their badges or

18 weapons during their approach. Until Detective Linson yelled to Defendant to cease


        1
19        It is unclear from the record exactly how far away the car was from
20 Defendant’s vehicle.

                                               8
 1 swallowing the baggie, the encounter was consistent with a consensual encounter.

 2 Garcia, 2009-NMSC-046, ¶ 38 (stating that a consensual encounter occurs when an

 3 officer acts “in a manner which would be perceived as a non[-]offensive contact if it

 4 occurred between two ordinary citizens.” (internal quotation marks and citation

 5 omitted). Thus, Defendant was not seized under Article II, Section 10 until Detective

 6 Linson identified himself as a police officer and demanded that Defendant stop.

 7 3.       Reasonable Suspicion to Seize Defendant

 8   {12}   Having held that Defendant was seized under Article II, Section 10, we must

 9 next consider whether Detective Linson had reasonable suspicion to seize Defendant

10 at that time. Reasonable suspicion is a particularized suspicion, based on all the

11 circumstances, that a particular individual—the one detained—is breaking, or has

12 broken the law. Garcia, 2009-NMSC-046, ¶ 43. In assessing the totality of the

13 circumstances, “officers may draw on their own experience and specialized training

14 to make inferences from and deductions about the cumulative information available

15 to them that might well elude an untrained person.” State v. Neal, 2007-NMSC-043,

16 ¶ 21, 142 N.M. 176, 164 P.3d 57 (internal quotation marks and citations omitted).

17   {13}   We are concerned not with a single fact standing alone, but rather with all the

18 circumstances known to Detective Linson when he seized Defendant. When the

19 seizure occurred, Detective Linson had seen an unidentified man borrow a cell phone,

20 make a short call, and set off down the street carrying some quantity of cash in his

                                               9
 1 hand. Detective Linson relocated in order to observe that individual further, and in

 2 doing so observed Defendant participate in two hand-to-hand transactions. In the first,

 3 an unidentified woman got into Defendant’s truck, conducted the transaction, and left;

 4 the encounter lasted less than a minute. In the second, the unidentified man who had

 5 made the phone call flagged down Defendant from the side of the street. Defendant

 6 stopped and made another short hand-to-hand transaction with him. Detective Linson

 7 and the other officer then attempted to initiate a consensual encounter with Defendant.

 8 Upon approaching Defendant’s vehicle, Detective Linson saw Defendant “shove” a

 9 plastic bag in his mouth and attempt to swallow it.

10   {14}   After seeing Defendant attempt to swallow a plastic bag full of an unknown

11 substance with officers walking toward him, Detective Linson had reasonable

12 suspicion to stop Defendant from doing so. Detective Linson was entitled to conclude,

13 based on his training and experience, that two hand-to-hand transactions in less than

14 ten minutes were consistent with drug trafficking. Detective Linson also could have

15 regarded Defendant’s attempt to swallow a plastic bag upon seeing two approaching

16 police officers as sufficiently suspicious to justify a seizure.

17 C.       Detective Linson Had Probable Cause to Arrest Defendant

18   {15}   Defendant also asserts that Detective Linson did not have probable cause to

19 arrest him. After Detective Linson seized Defendant, as described above, he grabbed

20 Defendant’s jaw in an attempt to prevent him from swallowing the plastic bag.

                                              10
 1 Detective Linson was unsuccessful, however, and Defendant ultimately succeeded in

 2 swallowing the bag. Detective Linson then removed Defendant from the truck and

 3 placed him in custody. After Defendant was in custody, Detective Linson removed a

 4 white substance from around Defendant’s mouth, which field tests confirmed was

 5 cocaine. During a subsequent inventory search of Defendant’s vehicle, a small digital

 6 scale was found on the driver’s seat of the truck.

 7   {16}   When reviewing warrantless arrests, we look to “whether it was reasonable for

 8 the officer not to procure an arrest warrant.” Campos v. State, 1994-NMSC-012, ¶ 15,

 9 117 N.M. 155, 870 P.2d 117. In order for a warrantless public arrest to be reasonable

10 under Article II, Section 10, there must be both probable cause and exigent

11 circumstances. Id. ¶ 14. Exigent circumstances are those “requiring swift action to

12 prevent imminent danger to life or serious damage to property, or to forestall the

13 imminent escape of a suspect or destruction of evidence.” Id. ¶ 11 (internal quotation

14 marks and citation omitted). The test for exigent circumstances is objective; a

15 warrantless arrest can be valid if “an objectively reasonable, well-trained officer could

16 have determined that swift action was called for to prevent destruction of evidence[.]”

17 State v. Rowell, 2008-NMSC-041, ¶ 30, 144 N.M. 371, 188 P.3d 95. “An officer has

18 probable cause to arrest when the facts and circumstances within the officer’s

19 knowledge are sufficient to warrant the officer to believe that an offense has been or



                                              11
 1 is being committed.” State v. Granillo-Macias, 2008-NMCA-021, ¶ 9, 143 N.M. 455,

 2 176 P.3d 1187.

 3   {17}   Detective Linson’s warrantless arrest of Defendant was reasonable because he

 4 had probable cause and exigent circumstances existed based on Defendant’s

 5 swallowing the bag as the other officers approached. Based on Detective Linson’s

 6 observations, it was objectively reasonable for him to believe an offense had occurred

 7 and was occurring. It was also objectively reasonable to believe that the plastic bag

 8 that Defendant was swallowing contained evidence of that offense because Defendant

 9 did not start shoving the bag into his mouth until it was apparent that he saw the police

10 officers approaching him. Additionally, exigent circumstances existed because the

11 destruction of evidence appeared imminent; Defendant had already swallowed the

12 bag. Thus, Linson had probable cause to arrest Defendant. See id.

13   {18}   We conclude that Detective Linson’s seizure of Defendant was properly based

14 on reasonable suspicion and that his arrest of Defendant was based on probable cause

15 and exigent circumstances. Accordingly, we affirm the district court’s denial of

16 Defendant’s motion to suppress.

17 D.       Sufficiency of Evidence at Trial

18   {19}   Defendant asserts that there was insufficient evidence to support convictions

19 for each of the three counts brought against him.

20 1.       Standard of Review

                                               12
 1   {20}   Appellate courts reviewing a case for sufficiency of evidence must view the

 2 evidence “in the light most favorable to the state, resolving all conflicts therein and

 3 indulging all permissible inferences therefrom in favor of the verdict.” State v.

 4 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. We look at “whether

 5 substantial evidence of either a direct or circumstantial nature exists to support a

 6 verdict of guilt beyond a reasonable doubt with respect to every element essential to

 7 a conviction.” Id. We will not disturb a verdict that is supported by substantial

 8 evidence. Id.

 9 2.       Evidence was Sufficient to Support a Conviction for Drug Trafficking

10   {21}   A jury convicted Defendant of one count of drug trafficking with intent to

11 distribute in violation of Section 30-31-20(A)(3). In order to obtain a conviction under

12 this statute, the State had to prove four elementsunder the jury instruction given: (1)

13 that defendant had cocaine in his possession; (2) that defendant knew it was or

14 believed it to be cocaine; (3) that defendant intended to transfer it to another; and (4)

15 that this happened in New Mexico. See UJI 14-3110 NMRA. Elements one, two, and

16 four are not in dispute. Defendant asserts, however, that the State failed to present any

17 evidence that Defendant intended to transfer cocaine to another person.

18   {22}   The State may prove intent using inferences drawn from the surrounding facts

19 and circumstances. State v. Muniz, 1990-NMCA-105, ¶ 3, 110 N.M. 799, 800 P.2d

20 734. Detective Linson testified that he believed he had seen Defendant engage in two

                                              13
 1 “hand-to-hand exchange[s]. He testified that Defendant had swallowed a plastic bag

 2 in his presence and that it was common for suspects to swallow narcotics when

 3 confronted by police. Detective Linson also testified that Defendant had a small digital

 4 scale sitting next to him in the truck that he was driving and that type of scale was

 5 commonly used in the distribution of narcotics.

 6   {23}   From these facts, the jury could have made the inference that Defendant’s

 7 actions evidenced an intent to transfer cocaine to others. The combination of that

 8 inference, the hand-to-hand transactions, and the presence of the scale was sufficient

 9 to prove the intent element of Section 30-31-20(A)(3). We therefore affirm

10 Defendant’s conviction for drug trafficking. See Muniz, 1990-NMCA-105, ¶ 3.

11 3.       Evidence Was Sufficient to Support Conviction for Tampering With
12          Evidence

13   {24}   A jury convicted Defendant of one count of tampering with evidence in

14 violation of Section 30-22-5. In order to obtain a conviction for tampering with

15 evidence, the State must prove that Defendant hid cocaine with the intent to prevent

16 the apprehension, prosecution, or conviction of himself. UJI 14-2241 NMRA. “When

17 there is no other evidence of the specific intent . . . to disrupt the police investigation,

18 intent is often inferred from an overt act of the defendant.” State v. Duran, 2006-

19 NMSC-035, ¶ 14, 140 N.M. 94, 140 P.3d 515. “Statements by defendants and




                                                14
 1 witnesses regarding the disposition of evidence may allow a jury to reasonably infer

 2 an overt act and intent[.]” Id. ¶ 16.

 3   {25}   Defendant argues that the proper conviction under the facts of this case would

 4 be attempted tampering with evidence because Detective Linson ultimately recovered

 5 cocaine from Defendant’s person, despite Defendant’s act of swallowing the bag.

 6 Defendant’s argument is misdirected; a tampering conviction is not predicated on the

 7 actual recovery of the evidence in question. See State v. Garcia, 2011-NMSC-003, ¶

 8 13, 149 N.M. 185, 246 P.3d 1057. Defendant also claims that there was no evidence

 9 identifying the substance in the bag that Defendant swallowed, and thus, the State

10 failed to prove that it was cocaine. Detective Linson provided testimony that

11 Defendant swallowed the plastic bag containing an unidentified substance as soon as

12 he saw police officers approaching him. Detective Linson revealed that it is common

13 for suspects to swallow narcotics when they encounter police officers. Finally, he

14 testified that he recovered small pieces of cocaine from around Defendant’s mouth

15 immediately after Defendant swallowed the bag. It is reasonable, from these facts, for

16 the jury to infer that the substance in the bag was cocaine. State v. Brown, 1984-

17 NMSC-014, ¶ 12, 100 N.M. 726, 676 P.2d 253 (“A material fact may be proven by

18 inference.”). We therefore conclude that there was sufficient evidence to support

19 Defendant’s conviction for tampering with evidence.



                                              15
 1 4.       Evidence Was Sufficient to Support Conviction for Possession of
 2          Drug Paraphernalia

 3   {26}   The jury convicted Defendant of one count of possession of drug paraphernalia

 4 in violation of Section 30-31-25.1(A). In order to obtain a valid conviction for this

 5 offense, the State had to prove that Defendant had a scale in his possession and that

 6 he intended to use the scale to “prepare, test, analyze . . . or otherwise introduce into

 7 the human body a controlled substance.” Section 30-31-25.1(A). The State

 8 undisputedly proved that Defendant had a small digital scale in his possession. It also

 9 presented evidence that scales of that size and type are frequently used in distributing

10 narcotics. That evidence, along with the State’s evidence that Defendant had cocaine

11 in his possession and engaged in more than one hand-to-hand transaction, was

12 sufficient for the jury to infer that Defendant intended to use the scale to weigh

13 cocaine. We therefore conclude that the State proffered sufficient evidence to prove

14 possession of drug paraphernalia beyond a reasonable doubt.

15 IV.      CONCLUSION

16   {27}   We affirm the district court’s denial of Defendant’s motion to suppress because

17 Detective Linson had reasonable suspicion to stop Defendant, probable cause to arrest

18 him. We affirm Defendant’s convictions because the evidence presented at trial was

19 sufficient to prove each element of each crime beyond a reasonable doubt.

20   {28}   IT IS SO ORDERED.


                                              16
1                                       _______________________________
2                                       RODERICK T. KENNEDY, Judge

3 WE CONCUR:



4 ___________________________________
5 JONATHAN B. SUTIN, Judge



6 ___________________________________
7 CYNTHIA A. FRY, Judge




                                  17
