 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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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. 29,077

10 ROBERT RUTHERFORD,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Carl J. Butkus, District Judge

14   Gary K. King, Attorney General
15   Margaret E. McLean, Assistant Attorney General
16   Joel Jacobsen, Assistant Attorney General
17   Santa Fe, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Allison H. Jaramillo, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 WECHSLER, Judge.
 1        Defendant appeals the denial of his motion to suppress. We conclude that

 2 Defendant was detained without justification, contrary to his Fourth Amendment

 3 rights. Although Defendant gave the police permission to enter his motel room, the

 4 consent flowed directly from an illegal detention. We therefore conclude that the

 5 motion to suppress was improperly denied.

 6 BACKGROUND

 7        We briefly summarize the underlying events in the light most favorable to the

 8 ruling rendered below. See State v. Flores, 2008-NMCA-074, ¶ 2, 144 N.M. 217, 185

 9 P.3d 1067 (“We summarize the evidence from the suppression hearing in the light

10 most favorable to the district court order.”).

11        On the evening of February 4, 2006, Officer Gerald Shelden of the Albuquerque

12 Police Department parked across from a motel located in a “bad area” known for

13 narcotics trafficking. Using binoculars, he saw an individual walking back and forth

14 from Room 219 to an adjoining catwalk, apparently looking for someone in the

15 parking lot below. Through the open door to the motel room, Officer Shelden could

16 see baggies arranged in rows on a table. The individual then picked something up

17 from the table, left the room, and met a parked vehicle, where a transaction took place.

18 Based on his training and experience, Officer Shelden recognized the conditions and

19 behavior to be consistent with drug trafficking.

20        Shortly after the transaction was completed, Officer Shelden saw the individual
 1 return to Room 219, then re-emerge, knock on the door to Room 203, and enter. After

 2 a very brief interlude, the individual returned to Room 219. At that point Officer

 3 Shelden called for backup assistance.

 4        Officer Herman Padilla responded to the scene and was asked to make contact

 5 with the individual in Room 203. When he knocked on the door, Defendant answered.

 6 Not knowing who else might be inside, Officer Padilla had Defendant step out of the

 7 room and proceeded with a few basic inquiries. Defendant then asked if he could

 8 return to his room. Officer Padilla denied the request, on grounds that he had more

 9 questions to ask.

10        Since he was barefoot, Defendant asked for permission to retrieve his shoes.

11 Officer Padilla denied the request. Defendant then asked Officer Padilla to retrieve

12 the shoes, and Officer Padilla agreed.

13        When Officer Padilla entered the motel room, he found the shoes where

14 Defendant had indicated that they would be, next to a night stand or a dresser. At the

15 same time, he saw two pieces of crack cocaine in plain view on top of the night stand

16 or dresser. This cocaine became the subject of Defendant’s motion to suppress.

17 SEIZURE OF DEFENDANT’S PERSON

18        First, we must determine whether Defendant was seized. “[W]hether a person

19 has been seized . . . is a mixed question of law and fact.” State v. Jason L.,


                                             3
 1 2000-NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856. Identifying the surrounding

 2 circumstances is a factual inquiry, which we review for substantial evidence. Id.

 3 Determining whether those circumstances rose to the level of a seizure is a legal

 4 inquiry, which we review de novo. Id.

 5        “Not every encounter between a law enforcement officer and a citizen triggers

 6 Fourth Amendment scrutiny.” State v. Garcia, 2008-NMCA-044, ¶ 16, 143 N.M.

 7 765, 182 P.3d 146, rev’d on other grounds, 2009-NMSC-046, ¶ 41, 147 N.M. 134,

 8 217 P.3d 1032. “[O]fficers may have consensual encounters with citizens without

 9 invoking Fourth Amendment protections.” State v. Patterson, 2006-NMCA-037,

10 ¶ 18, 139 N.M. 322, 131 P.3d 1286. However, a “seizure takes place when the officer

11 detains the individual in such a way that a reasonable person would not feel free to

12 leave, given the totality of the circumstances.” Id.

13        Turning to the circumstances presented in this case, as previously described,

14 Officer Padilla knocked on the motel room door, and when Defendant answered,

15 Officer Padilla “had him step out.” After answering inquiries about occupancy and

16 the name under which the room had been taken, Defendant asked if he could return

17 to his room. Officer Padilla denied the request on grounds that he had some more

18 questions to ask. Defendant therefore remained outside.

19        The State characterizes the foregoing as a consensual “knock and talk” type of


                                             4
 1 encounter. By contrast, Defendant contends that he was seized when Officer Padilla

 2 denied his request to terminate the interview and prohibited him from returning to his

 3 motel room.

 4        We agree that Officer Padilla could be said to have initiated contact with

 5 Defendant pursuant to a valid knock-and-talk approach. See generally Flores, 2008-

 6 NMCA-074, ¶ 9 (“[T]he ‘knock and talk’ procedure does not violate the Fourth

 7 Amendment[.]”). However, the encounter quickly evolved into an investigatory

 8 detention.

 9        “Police contact is consensual so long as a reasonable person would feel free to

10 disregard the police and go about his business, or to decline the officers’ requests or

11 otherwise terminate the encounter.” State v. Scott, 2006-NMCA-003, ¶ 18, 138 N.M.

12 751, 126 P.3d 567 (alteration, internal quotation marks, and citation omitted).

13 “However, if an officer conveys a message that an individual is not free to walk away,

14 by either physical force or a showing of authority, the encounter becomes a seizure

15 under the Fourth Amendment.” State v. Gutierrez, 2008-NMCA-015, ¶ 9, 143 N.M.

16 522, 177 P.3d 1096 (internal quotation marks and citation omitted). When Officer

17 Padilla effectively denied Defendant’s request to terminate the encounter and

18 prevented Defendant from returning to his motel room, the arguably consensual nature

19 of the encounter ceased. Insofar as Defendant was not free to leave, Defendant was


                                              5
 1 seized for Fourth Amendment purposes. See State v. Garcia, 2009-NMSC-046, ¶ 39,

 2 147 N.M. 134, 217 P.3d 1032 (“While police are free to engage people consensually

 3 to gather information, when they convey a message that compliance with their

 4 requests is required, the reasonable person would not feel free to leave and a seizure

 5 has occurred.” (alteration, internal quotation marks, and citation omitted)).

 6 VALIDITY OF THE DETENTION

 7        Having determined that Defendant was in fact seized, we must next determine

 8 whether the detention was permissible. We apply de novo review. Jason L.,

 9 2000-NMSC-018, ¶ 20.

10        Since Defendant was briefly questioned in a public area without being

11 handcuffed or otherwise subjected to severe restraint, the encounter should be

12 classified as an investigatory detention. See generally State v. Werner, 117 N.M. 315,

13 317-18, 871 P.2d 971, 973-74 (1994) (identifying factors that may be considered

14 when distinguishing between an investigatory detention and an arrest, including the

15 length of the detention, the place of the detention, and the degree to which the

16 subject’s freedom of movement was restricted).           “Investigatory detention is

17 permissible when there is a reasonable and articulable suspicion that the law is being

18 or has been broken.” Jason L., 2000-NMSC-018, ¶ 20 (internal quotation marks and

19 citation omitted). “A reasonable suspicion is a particularized suspicion, based on all


                                             6
 1 the circumstances[,] that a particular individual, the one detained, is breaking, or has

 2 broken, the law.” Id.

 3        In this case, Defendant was detained in connection with the investigation of

 4 apparent drug-dealing activity. As previously described, Officer Shelden had been

 5 observing another individual in a nearby motel room. Using binoculars and looking

 6 through the open door, he saw what appeared to be plastic baggies placed in rows on

 7 a table, and the individual in question counting cash. Officer Shelden then saw the

 8 individual engage in what appeared to be a drug transaction. Shortly thereafter, this

 9 individual knocked on the door to Defendant’s room and entered. After a very brief

10 stay in Defendant’s room, the individual exited and walked back to his own room.

11        The State contends that the foregoing facts and circumstances gave rise to

12 reasonable suspicion to believe that Defendant was involved in criminal activity, such

13 that the detention was permissible. However, Defendant was not involved in any of

14 the suspicious behavior that Officer Shelden observed. He was never present in the

15 room in which drugs were arrayed on a table and money was being counted. He did

16 not participate in the apparent drug transaction in the parking lot. Defendant merely

17 interacted briefly with the individual being watched. This evidence is insufficient to

18 establish a reasonable suspicion that Defendant was engaged in criminal activity. See,

19 e.g., State v. Neal, 2007-NMSC-043, ¶ 30, 142 N.M. 176, 164 P.3d 57 (“[The


                                              7
 1 d]efendant’s mere association with [an individual], who was under surveillance in an

 2 ongoing drug investigation, was insufficient to create reasonable suspicion of [the

 3 d]efendant[.]”); State v. Rivas, 2007-NMCA-020, ¶¶ 9-10, 15, 141 N.M. 87, 150 P.3d

 4 1037 (holding that the defendant’s association with the driver of the vehicle who was

 5 being investigated for a drug offense did not support a reasonable suspicion that the

 6 defendant was involved in any specific crime); see generally State v. Aguilar,

 7 2007-NMCA-040, ¶ 9, 141 N.M. 364, 155 P.3d 769 (“A reasonable suspicion must

 8 be a particularized suspicion, based on all the circumstances, that the specific

 9 individual detained has broken or is breaking the law.” (emphasis added)); Patterson,

10 2006-NMCA-037, ¶ 24 (“[A] finding of individualized suspicion requires the

11 articulation of the suspicion in a manner that is particularized with regard to the

12 individual who is stopped.”).      Accordingly, Defendant was detained without

13 individualized reasonable suspicion that he had committed or was about to commit a

14 crime, in violation of the Fourth Amendment.

15        We understand the State to suggest that Defendant’s detention should be

16 deemed constitutionally permissible because the detention addressed generalized

17 concerns about officer safety and preservation of evidence.          However, such

18 considerations do not obviate the need for individualized suspicion. See Rivas, 2007-

19 NMCA-020, ¶¶ 11-13 (rejecting an argument that an individual was properly detained


                                             8
 1 despite the absence of individualized reasonable suspicion based on safety concerns

 2 arising from an associate’s apparent possession of drugs); cf. State v. Ortega, 117

 3 N.M. 160, 162, 870 P.2d 122, 124 (1994) (stating that the mere potential for

 4 destruction of evidence does not give rise to an exigency).

 5 WARRANTLESS ENTRY INTO THE MOTEL ROOM

 6        Finally, we must determine whether the entry into Defendant’s motel room

 7 should be deemed permissible despite the improper investigatory detention. Generally

 8 speaking, law enforcement officers are not permitted to enter residences without a

 9 warrant. State v. Gutierrez, 2008-NMCA-018, ¶ 16, 143 N.M. 422, 176 P.3d 1154;

10 State v. Monteleone, 2005-NMCA-129, ¶ 9, 138 N.M. 544, 123 P.3d 777. The same

11 general rule applies to motel rooms. See State v. Pool, 98 N.M. 704, 706, 652 P.2d

12 254, 256 (Ct. App. 1982) (“[T]he same principles applicable to the authority of police

13 to enter a private home are applicable to entry to hotel rooms[.]”). As an exception

14 to this general rule, an officer may enter a residence or room if consent is given. See

15 Gutierrez, 2008-NMCA-018, ¶ 19.

16        As described in the preceding subsections, Officer Padilla entered Defendant’s

17 motel room only after Defendant asked him to retrieve his shoes. The State contends

18 that insofar as Defendant consented to the entry in this fashion, no Fourth Amendment

19 violation occurred. We apply de novo review. Monteleone, 2005-NMCA-129, ¶ 17.


                                              9
 1 The applicable analytical framework has been described as follows:

 2               In order for evidence obtained after an illegality, but with the
 3        voluntary consent of the defendant, to be admissible, there must be a
 4        break in the causal chain from the illegality to the search. The proper
 5        question in evaluating whether a consent was tainted by prior illegality
 6        is whether there was sufficient attenuation between the illegality and the
 7        consent to search. In deciding whether the consent is sufficiently
 8        attenuated from the Fourth Amendment violation, we consider the
 9        temporal proximity of the illegal act and the consent, the presence or
10        absence of intervening circumstances, and the purpose and flagrancy of
11        the official misconduct.

12 State v. Taylor, 1999-NMCA-022, ¶ 28, 126 N.M. 569, 973 P.2d 246 (alterations,

13 internal quotation marks, and citations omitted).

14         In this case, the transcript clearly reflects that Defendant authorized Officer

15 Padilla to enter his motel room only because Officer Padilla improperly detained

16 Defendant by refusing to allow him to terminate the encounter or to return to the room

17 himself to retrieve his shoes. Accordingly, the consent flowed directly from the illegal

18 detention. Moreover, it appears that Officer Padilla received Defendant’s consent to

19 enter the motel room almost immediately after impermissibly detaining him, and we

20 see nothing to suggest that there were any intervening circumstances. We therefore

21 conclude that Defendant’s consent was not attenuated from the illegal detention. See,

22 e.g., Rivas, 2007-NMCA-020, ¶¶ 17-18 (arriving at a similar conclusion where

23 consent followed immediately after illegal detention, and where there were no

24 intervening circumstances); Monteleone, 2005-NMCA-129, ¶¶ 18-19 (holding that

                                              10
 1 where consent was obtained almost immediately after illegal entry into a room, where

 2 there were no intervening circumstances between the officers’ illegal conduct and

 3 receipt of consent, and where the officers exploited the illegality by obtaining consent

 4 after placing the defendant in a vulnerable position, the consent was tainted); State v.

 5 Prince, 2004-NMCA-127, ¶ 21, 136 N.M. 521, 101 P.3d 332 (holding there was no

 6 break in the causal chain between an improper investigatory detention and obtained

 7 consent and, therefore, the consent was tainted). Insofar as Defendant’s consent was

 8 tainted, all evidence obtained following the entry into the motel was fruit of the

 9 poisonous tree, and should have been suppressed. See Monteleone, 2005-NMCA-129,

10 ¶¶ 16-17, 21 (discussing the fruit of the poisonous tree doctrine, and concluding that

11 where consent is not purged of the taint by a break in the causal chain, evidence

12 subsequently discovered must be suppressed).

13 CONCLUSION

14        For the foregoing reasons, we reverse and remand.

15        IT IS SO ORDERED.


16                                                 ________________________________
17                                                 JAMES J. WECHSLER, Judge




                                              11
1 WE CONCUR:



2 _________________________________
3 MICHAEL D. BUSTAMANTE, Judge



4 _________________________________
5 RODERICK T. KENNEDY, Judge




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