     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 33,685

 5 MICHAEL LUCERO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Briana H. Zamora, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   M. Anne Kelley, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Will O’Connell, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VIGIL, Chief Judge.
 1   {1}   The United States Constitution permits a Terry frisk or pat down for weapons

 2 where a police officer has an objective reason to believe that he is dealing with an

 3 armed and dangerous individual. Terry v. Ohio, 392 U.S. 1, 27 (1968). The primary

 4 issue in this case is whether the Terry frisk of Defendant was permissible under the

 5 circumstances. We conclude it was and affirm the district court order denying

 6 Defendant’s motion to suppress. We also reject Defendant’s remaining arguments.

 7 BACKGROUND

 8   {2}   Defendant was indicted on one count of trafficking methamphetamine (by

 9 possession with intent to distribute), one count of conspiracy to do so, and one count

10 of possession of drug paraphernalia. NMSA 1978, §§ 30-31-20(A)(3) (2006); 30-28-2

11 (1979); 30-31-25.1(A) (2001). Defendant filed a motion to suppress, arguing that the

12 pat down of his body which resulted in the discovery of methamphetamine and a glass

13 pipe used to smoke methamphetamine was unconstitutional. The State responded, and

14 the district court held an evidentiary hearing on the motion where the following facts

15 were established.

16   {3}   Just before 3:30 a.m., on December 8, 2010, Deputy Hessinger of the Bernalillo

17 County Sheriff’s Department conducted a traffic stop of Defendant because the

18 registration of his Ford Ranger pickup was expired. The pickup was occupied by two

19 persons, and while making contact with Defendant, Deputy Hessinger looked inside



                                              2
 1 and saw some small empty plastic baggies, about one inch by one inch, between

 2 Defendant and the passenger on the floorboard. Deputy Hessinger obtained

 3 identification from Defendant and the passenger, whom he subsequently learned was

 4 Defendant’s adult son. He returned to his police vehicle, where he ran a check and

 5 learned that the passenger had an outstanding warrant for his arrest. Another Deputy

 6 arrived and Deputy Hessinger asked him to provide backup. Deputy Hessinger then

 7 went to the passenger side of the pickup and asked the passenger to step out. The

 8 passenger complied and after frisking him for weapons, Deputy Hessinger handcuffed

 9 him and placed him into custody on the warrant.

10   {4}   As the passenger was getting out of the truck, Deputy Hessinger saw a larger

11 plastic baggie in the passenger door pouch. Based on his training, Deputy Hessinger

12 believed this larger bag contained methamphetamine in an amount that was more than

13 for personal use, and that the smaller baggies on the floorboard were for distributing

14 methamphetamine. Deputy Hessinger therefore asked Defendant to get out of the

15 pickup and placed him in “investigative detention” to complete his investigation.

16 Defendant complied, and for his safety Deputy Hessinger frisked Defendant to

17 determine if he had any weapons for his safety.

18   {5}   Deputy Hessinger testified that he suspected drug trafficking was involved, and

19 that in his experience, individuals involved in drug trafficking often carry guns. In this



                                               3
 1 case, the fact that he suspected the presence of methamphetamine did not

 2 “necessarily” make him want to do a frisk. “Even if there weren’t narcotics and I was

 3 taking them out of [the] vehicle to speak with me, I would have conducted a Terry pat

 4 down.” Deputy Hessinger explained that on a traffic stop, if he asks a person to exit

 5 the vehicle, he always frisks the person for his safety.

 6   {6}   As he began frisking Defendant, Deputy Hessinger asked Defendant if he had

 7 anything on him, and Defendant said he had a small baggy of “meth” in his pocket.

 8 Upon frisking Defendant, Deputy Hessinger felt the baggie and a pipe in Defendant’s

 9 shirt pocket, which he removed. Seeing that the baggie contained a substance he

10 believed to be methamphetamine, and that the pipe was a clear glass pipe used for

11 smoking methamphetamine, Deputy Hessinger arrested Defendant.

12   {7}   Deputy Hessinger testified that Defendant and the passenger were cooperative,

13 compliant, there was nothing unusual or suspicious about their behavior, and that they

14 were not threatening in any way during the entire encounter. In fact, Deputy Hessinger

15 identified nothing specific or particular to Defendant that caused Deputy Hessinger

16 to pat down Defendant. The basis for the pat down was his practice of patting down

17 anyone he asks to exit a vehicle.

18   {8}   The district court denied Defendant’s motion to suppress, concluding that the

19 pat down was proper based on the facts and circumstances that: it was three o’clock



                                              4
 1 in the morning; it was dark; Defendant’s son was a passenger and he had a warrant

 2 that he was being arrested on; there were drugs on the passenger side of the pickup

 3 truck; Deputy Hessinger had no idea who the drugs belonged to; Defendant had

 4 custody and control of the pickup truck he was driving; and Deputy Hessinger was at

 5 risk after he ordered Defendant out of the pickup truck.

 6   {9}    The jury found Defendant guilty of simple possession of methamphetamine and

 7 possession of drug paraphernalia, and acquitted Defendant of drug trafficking and

 8 conspiracy. Defendant appeals.

 9 DISCUSSION

10 A.       The Terry Pat Down Search

11   {10}   Warrantless searches are presumed to be unconstitutional under the Fourth

12 Amendment of the United States Constitution and Article II, Section 10 of the New

13 Mexico Constitution. See State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188

14 P.3d 95 (“Any warrantless search analysis must start with the bedrock principle of

15 both federal and state constitutional jurisprudence that searches conducted outside the

16 judicial process, without prior approval by judge or magistrate, are per se

17 unreasonable, subject only to well-delineated exceptions.” (emphasis, internal




                                              5
 1 quotation marks, and citation omitted). The State has the burden to prove facts that

 2 justify a warrantless search. State v. Paul T., 1999-NMSC-037, ¶ 10, 128 N.M. 360,

 3 993 P.2d 74.

 4   {11}   One well-known exception to the warrant requirement is a Terry protective frisk

 5 for weapons “to ensure that the individual is not armed.” State v. Ingram, 1998-

 6 NMCA-177, ¶ 6, 126 N.M. 426, 970 P.2d 1151. The purpose of this search is to

 7 “allow the officer to conduct an investigation without fear of violence.” Id. The search

 8 is limited to patting the outer clothes of the suspect to find concealed objects that

 9 could be used as weapons. Paul T., 1999-NMSC-037, ¶ 17. To justify a Terry frisk for

10 weapons, “an officer must have a sufficient degree of articulable suspicion that the

11 person being frisked is both armed and presently dangerous.” Vandenberg, 2003-

12 NMSC-030, ¶ 22 (emphasis omitted). See Terry, 392 U.S. 1 at 10. In evaluating

13 whether a frisk is valid, we “balance the threat posed to officer safety under the

14 circumstances, against the individual’s right to personal security free from arbitrary

15 inference by law officers.” Vandenberg, 2003-NMSC-030, ¶ 23 (internal quotation

16 marks and citation omitted).

17 Standard of Review

18   {12}   Our review of a district court ruling on a motion to suppress involves a mixed

19 question of fact and law. State v. Vandenberg, 2003-NMSC-030, ¶ 17, 134 N.M. 566,



                                               6
 1 81 P.3d 19. “[W]e review [factual questions] for substantial evidence; [and legal

 2 questions] de novo. Id. As to the facts, we view them “in a light most favorable to the

 3 prevailing party, as long as the facts are supported by substantial evidence. Id. ¶ 18.

 4 However, in determining whether those facts establish the police officer’s conduct

 5 was reasonable, and therefore constitutional, we are deciding a legal question, and our

 6 review is de novo. Id. ¶ 19.

 7 Analysis

 8   {13}   Defendant’s argument focuses on the fact that Deputy Hessinger never

 9 expressed a subjective fear that Defendant was armed and dangerous, or that he feared

10 for his safety as justification for the frisk. Defendant argues that Deputy Hessinger’s

11 testimony establishes that the only reason for Defendant’s pat down is his testimony

12 that he frisks anyone he orders out of their vehicle, and this alone is not sufficient

13 justification for a frisk. Defendant’s argument would have us overlook all the

14 remaining facts and context in which the pat down took place. In contrast, the State

15 argues that the test to determine whether a frisk is valid is an objective test, and that

16 Deputy Hessinger’s “subjective intention” for conducting the frisk is irrelevant.

17 Focusing on what it contends are the “objective facts” the State contends that

18 independent of Deputy Hessinger’s subjective state of mind, the frisk was proper. We

19 find this argument to be consistent with our precedent and more persuasive.



                                               7
 1   {14}   We have previously said that “the officers’ subjective belief is not the test” for

 2 determining whether a protective frisk is permissible because “[i]f the test were

 3 subjective, any officer could avoid the constitutional requirement of reasonableness

 4 and have unfettered leeway to perform a [protective frisk], simply by testifying that

 5 he feared for his safety.” State v. Pierce, 2003-NMCA-117, ¶ 15, 134 N.M. 388, 77

 6 P.3d 292. An objective test, rather than a police officer’s subjective belief, determines

 7 whether a protective frisk is reasonable, and therefore, permissible. Vandenberg,

 8 2003-NMSC-030, ¶ 23. “The objective standard applied is whether a reasonable, well-

 9 trained officer would fear for his or her safety based on the belief that the suspect may

10 be armed and dangerous.” Talley, 2008-NMCA-148, ¶ 19.

11   {15}   We now turn to whether the objective standard for a protective frisk was

12 satisfied under the facts of this case. As required under our standard of review, we

13 view the facts and inferences from the facts in the light most favorable to the district

14 court order denying Defendant’s motion to suppress. The time of the stop in the early

15 morning hour, just before 3:30 a.m., is one factor to be added to the inherent danger

16 which accompanies all traffic stops. The adult passenger was then determined to be

17 Defendant’s son, and he had an outstanding warrant for his arrest. In the course of

18 arresting Defendant’s son, Deputy Hessinger saw a plastic bag which he believed

19 contained methamphetamine in a quantity consistent with drug trafficking. This bag,



                                                8
 1 coupled with this observation of small plastic baggies on the floorboard led Deputy

 2 Hessinger to believe that trafficking of methamphetamine was in progress. These

 3 facts, along with his training that drug traffickers often carry guns, justified Deputy

 4 Hessinger’s conclusion, as a reasonably well-trained officer, that a pat down of

 5 Defendant was necessary to insure his personal safety when he asked Defendant to

 6 exit the pickup. See Vandenberg, 2003-NMSC-030, ¶ 22 (stating that we must

 7 determine whether “a reasonable, well-trained officer” would have made the same

 8 decision, and that if reasonable minds differ on this issue, we defer to the officer’s

 9 good judgment).

10   {16}   In arriving at the foregoing conclusion, we disagree with the State that State v.

11 Eskridge, 1997-NMCA-106, 124 N.M. 227, 947 P.2d 502 is dispositive. In Eskridge,

12 we determined that the facts supported a reasonable conclusion by the officers that a

13 “possible large drug transaction” was involved. 2003-NMCA- 106, ¶ 26. As such, the

14 crime was an inherently dangerous type of crime which allows for a frisk. Id. This is

15 consistent with State v. Cobbs, 1985-NMCA-105, ¶ 34, 103 N.M. 623, 711 P.2d 900

16 in which we recognized that a Terry frisk for weapons is permitted when the officer

17 has a reasonable suspicion that an individual has committed, was committing, or was

18 about to commit a crime for which he would likely be armed. We said such inherently

19 dangerous crimes include “robbery, rape, assault with weapons, and dealing in large



                                                9
 1 narcotics transactions.” Id. ¶ 35. Here, the facts support an inference that Defendant

 2 was involved in trafficking, but there is no evidence that a “large” drug transaction

 3 was involved. There is, however, evidence of drug trafficking in methamphetamine,

 4 which experience informs possibly, involving guns, and which, combined with the

 5 other facts we have already described, gave rise to a reasonable belief on Deputy

 6 Hessinger’s part that a pat down for possible weapons was appropriate.

 7   {17}   For the foregoing reasons, we affirm the order of the district court denying

 8 Defendant’s motion to suppress.

 9 B.       Remaining Issues

10   {18}   Defendant also argues that the charges should have been dismissed because

11 Deputy Hessinger combined the contents of the 2 baggies into one, and that it was

12 error to give an instruction on simple possession as a lesser included offense.

13   {19}   At the suppression hearing, Deputy Hessinger testified the baggie in

14 Defendant’s shirt weighed 1.1 grams, and that the baggie in the door weighed 5.8

15 grams. He said he weighed each baggie, then combined their contents into a single

16 baggie. There is no allegation that Deputy Hessinger acted with bad faith in

17 combining the two baggies. However, Defendant contends that the baggy seized from

18 his shirt pocket was “lost”, and that the district court erred in admitting evidence of

19 this alleged methamphetamine into evidence. A district court’s ruling on remedies



                                             10
 1 sought for the loss or destruction of evidence is reviewed for an abuse of discretion.

 2 State v. Pacheco, 2008-NMCA-131, ¶ 27, 145 N.M. 40, 193 P.3d 587.

 3   {20}   Defendant was convicted of possession of methamphetamine. When Deputy

 4 Hessinger started frisking Defendant and asked Defendant if he had anything on him,

 5 Defendant responded that he had a small baggy of “meth” in his pocket. Defendant’s

 6 admission alone is sufficient to prove he knowingly had methamphetamine in his

 7 possession. See State v. Phillips, 2000-NMCA-028, ¶ 12, 128 N.M. 777, 999 P.2d 421

 8 (noting that the defendant admitted knowing of the drug paraphernalia discovered in

 9 a dresser drawer and conceding to using drugs in the past). Moreover, Defendant does

10 not contest that the larger bag had methamphetamine. Thus, Defendant has failed to

11 establish prejudice or materiality owing to the “loss” of the contents of the small

12 baggie in his shirt pocket. See State v. Chouinard, 1981-NMSC-096, ¶ 16, 96 N.M.

13 658, 634 N.M. 680 (setting forth a three-part test for imposing sanctions when

14 evidence is lost, destroyed, or not preserved which includes materiality of the

15 evidence and prejudice to the defendant); State v. Ferro, 1988-NMSC-053, ¶ 10, 107

16 N.M. 369, 758 P.2d 783 (stating that evidence is material if there is a reasonable

17 probability that the result of the trial would have been different if it had been

18 disclosed). We conclude the district court did not abuse its discretion, and that there

19 was no error in not striking the evidence from the jury’s consideration.



                                             11
 1   {21}   Defendant also contends, pursuant to State v. Franklin, 1967-NMSC-151, 78

 2 N.M. 127, 428 P.2d 982 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712

 3 P.2d 1, that the district court erred in instructing the jury on simple possession of

 4 methamphetamine as a lesser-included offense to the charge of trafficking

 5 methamphetamine (by possession with intent to distribute). We agree with the State

 6 that the instruction was appropriate under State v. Meadors, 1995-NMSC-073, ¶ 12,

 7 121 N.M. 38, 908 P.2d 731 (setting forth test on whether an instruction on a lesser

 8 included instruction is appropriate).

 9 CONCLUSION

10   {22}   The judgment and sentence of the district court is affirmed.

11   {23}   IT IS SO ORDERED.


12                                          __________________________________
13                                          MICHAEL E. VIGIL, Chief Judge


14 WE CONCUR:


15 _________________________________
16 MICHAEL D. BUSTAMANTE, Judge


17 _________________________________
18 J. MILES HANISEE, Judge




                                              12
