 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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. 28,911

10 RICKY ESPARZA,

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   Santa Fe, NM
16   James W. Grayson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender
20 Eleanor Brogan, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant

23                                 MEMORANDUM OPINION

24 FRY, Judge.

25          Defendant appeals from the district court’s judgment and sentence convicting

26 him of possession of methamphetamine with the intent to distribute and challenges the
 1 district court’s denial of his motion to suppress. We must determine whether the

 2 district court erred by ruling that the officer’s issuance of a traffic citation converted

 3 the traffic stop into a consensual encounter, which permitted the officer to inquire

 4 about drugs and weapons, matters unrelated to the traffic violation. During the

 5 appellate briefing process, this Court published an opinion addressing a nearly

 6 identical issue in State v. Figueroa, 2010-NMCA-048, 148 N.M. 811, 242 P.3d 378,

 7 cert. granted, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182. Applying Figueroa,

 8 we reverse the district court’s order denying suppression.

 9 BACKGROUND

10        While on routine campus patrol for UNM at around midnight, Officer Trujillo

11 observed a vehicle being driven without its headlights on. The officer made a U-turn

12 to follow the vehicle and engaged the emergency equipment on his marked police car

13 to initiate a traffic stop. The driver of the vehicle, Defendant, pulled over and lowered

14 his driver’s side window upon the officer’s approach. In the vehicle with Defendant

15 were a female and a child. Officer Trujillo asked for Defendant’s driver’s license,

16 registration, and proof of insurance. Officer Trujillo testified that in the middle of the

17 traffic stop, Defendant began to appear nervous and popped his head out of the

18 driver’s side window several times to look behind the officer.




                                               2
 1        While the officer was checking Defendant’s documentation in his patrol car, he

 2 observed Defendant’s continued nervous behavior, popping his head out of the

 3 window as though he was looking behind the patrol car. Concerned for his safety in

 4 the event that someone might be approaching to assault the officer or run him down,

 5 Officer Trujillo called an additional unit for assistance before he issued Defendant the

 6 citation. The officer did not discover any warrants on Defendant or anything improper

 7 about his documentation. After Officer Trujillo completed the traffic citation, an

 8 additional officer arrived, Officer Miller. Officer Trujillo spoke with Officer Miller

 9 and had him stationed behind Trujillo’s patrol car as backup. The officers approached

10 Defendant’s vehicle, Officer Trujillo on the driver’s side and Officer Miller on the

11 passenger’s side.

12        Officer Trujillo handed Defendant the traffic citation through the open window.

13 Officer Trujillo advised Defendant that he “was done and . . . asked him if he had

14 anything else in the vehicle that [he] should be aware of; anything involving weapons,

15 alcohol, [or] narcotics.” Defendant responded in the negative, and Officer Trujillo

16 asked Defendant for consent to search the vehicle. Officer Trujillo had Defendant exit

17 the vehicle and walk to the patrol car, where Defendant read and signed the consent

18 form. Defendant was then handcuffed and placed in the backseat. The passengers




                                              3
 1 were under surveillance by Officer Miller during this time and removed from the

 2 vehicle for the search.

 3        During the search, the officers found a substance in a lockbox in the trunk and

 4 a bag tucked in between the front seats, which tested positive for methamphetamine,

 5 glass pipes, and a scale. Defendant was charged with possession of methamphetamine

 6 with the intent to distribute, conspiracy to commit possession of a controlled

 7 substance with the intent to distribute, and possession of drug paraphernalia.

 8 Defendant moved to suppress the evidence on the grounds that the officer’s inquiry

 9 into the presence of weapons and drugs was unrelated to the purpose of the stop, not

10 supported by reasonable suspicion, and therefore expanded the scope of the

11 investigation and detention without a legal basis. Defendant argued that because there

12 was insufficient attenuation between the illegal expansion of the stop and his consent

13 to search, the consent was invalid and the evidence must be suppressed.

14        At the suppression hearing, the State asserted the following two alternative

15 arguments: either (1) the officer had sufficient reasonable suspicion to ask about

16 drugs and weapons or (2) once the officer issued the citation to Defendant, the traffic

17 stop was completed and the encounter became consensual. The State argued that, in

18 the latter event, the officer could inquire about anything. In response, Defendant

19 argued there was no reasonable suspicion to support the additional questioning and


                                              4
 1 the stop did not quickly de-escalate into a consensual encounter because no reasonable

 2 person would have felt free to leave in this situation. The district court and the parties

 3 discussed the inconsistency with which Fourth Amendment jurisprudence addresses

 4 an officer’s questioning a defendant about matters unrelated to the stop after it has

 5 ended, recognizing that the issue had not been addressed in New Mexico. Defendant

 6 argued that, in a broader view of the issue, the New Mexico Constitution should afford

 7 more protection for this warrantless search.

 8        In the district court’s order denying the motion to suppress, it characterized the

 9 case law applicable to this type of police encounter as a “balkanization” of the Fourth

10 Amendment and chose to apply a line of cases that it believed supported the State’s

11 position that once the traffic citation was issued, the stop ended and the encounter

12 became consensual. It ruled that Defendant was free to leave, but instead of leaving,

13 he gave valid consent for the search. Defendant entered a conditional plea of guilty,

14 reserving the right to appeal from the district court’s denial of his motion to suppress.

15 DISCUSSION

16 Standard of Review

17        “The standard of review for a suppression ruling is whether the trial court

18 correctly applied the law to the facts when the facts are viewed in the light most

19 favorable to the prevailing party. Under this standard, the trial court’s factual


                                               5
 1 determinations are subject to a substantial evidence standard of review, and its

 2 application of the law to the facts is subject to de novo review.” State v. Snell, 2007-

 3 NMCA-113, ¶ 7, 142 N.M. 452, 166 P.3d 1106 (citation omitted). Particularly in

 4 search and seizure cases, the inquiry whether the search or seizure was reasonable is

 5 a mixed question of fact and law as to which legal conclusions based on evaluative

 6 judgments predominate and we therefore turn to de novo review. State v. Flores,

 7 1996-NMCA-059 ¶ 6, 122 N.M. 84, 920 P.2d 1038; State v. Attaway, 117 N.M. 141,

 8 145-46, 870 P.2d 103, 107-08 (1994).

 9 The Parties’ Arguments

10        Defendant’s brief in chief argues in the alternative under the Federal and New

11 Mexico Constitutions. He asserts that the officer’s separate line of questioning into

12 drugs and weapons expanded the scope of the traffic stop without justification and,

13 therefore, was not lawful under the Fourth Amendment or, alternatively, the New

14 Mexico Constitution provides greater protection and required the officer to have a

15 specific, articulable suspicion that Defendant possessed drugs and weapons in order

16 to inquire about them, regardless of whether the questioning extended the traffic stop.

17 On the day Defendant filed his brief in chief, this Court issued an opinion in Figueroa,

18 which addressed a similar issue, and decided that the police encounter did not become




                                              6
 1 consensual after the officer returned the defendant’s identification and told him he was

 2 free to leave. See Figueroa, 2010-NMCA-048, ¶¶ 19, 26-30.

 3        The State’s answer brief attempts to distinguish Figueroa and argues that

 4 United States Supreme Court case law has rejected Defendant’s arguments under the

 5 Fourth Amendment, which is the framework under which we should view Figueroa.

 6 The State also argues that Defendant did not sufficiently develop and preserve his

 7 argument for a broader state constitutional protection, as was found by the district

 8 court, which focused its ruling on the Fourth Amendment. Defendant’s reply brief

 9 argues that although the opinion in Figueroa is highly fact-dependent and contains

10 factual differences, there is no genuine distinction between the cases and the result

11 should be the same. We agree with Defendant.

12        While other state and federal jurisdictions may employ different approaches to

13 this issue, all purportedly under the Fourth Amendment, this Court has directly

14 addressed this issue under the Federal Constitution and has done so in a manner we

15 believe is consistent with our state’s Fourth Amendment case law. See Figueroa,

16 2010-NMCA-048, ¶¶ 19, 26-30.                See generally State v. Funderburg,

17 2008-NMSC-026, ¶ 14, 144 N.M. 37, 183 P.3d 922 (“An officer’s continued detention

18 of an individual, while lawful at the outset, may become unlawful if the officer

19 unjustifiably expands the scope of the detention or, without a valid factual basis,


                                              7
 1 makes inquiries about other criminal activity unrelated to the traffic violation.”). We

 2 are not persuaded that the out-of-state cases the State relies upon are sufficiently

 3 similar in their facts or issues to control the outcome of this case or to require that we

 4 revisit the analysis in Figueroa. As a result, we apply our Fourth Amendment case

 5 law as it currently exists.

 6 Analysis

 7        In Figueroa, officers were present at a residence to investigate a reported

 8 domestic problem. 2010-NMCA-048, ¶¶ 2-3. The defendant was a passenger in a

 9 truck that pulled up to the residence. See id. ¶ 3. The driver remained in the truck, left

10 the engine running, and the defendant went inside the house. See id. The officer

11 testified that this behavior was consistent with a drug transaction. See id. When the

12 defendant exited the home, an officer approached him, asked why he was at the home,

13 and requested the defendant’s and the driver’s identification. See id. ¶ 4. The

14 officer’s warrant check revealed nothing, so the officer returned their information and

15 advised them that they could leave. See id. Then the officer asked the defendant if

16 he was in possession of anything illegal and asked if he could pat him down. See

17 id. ¶ 5. The officer testified that the defendant was free to leave at that time, but that

18 the officer wanted to check him for weapons. See id. The officer placed the defendant

19 in a secure position, patted him down, and asked the defendant if he could remove


                                               8
 1 what he felt in the defendant’s pocket. See id. The defendant consented, and the

 2 officer removed cigarettes, change, and a bindle of drugs. See id.

 3         In Figueroa, the State asserted the same argument it raises in the current

 4 case—that the stop became a consensual encounter when the officer returned the

 5 defendant’s identification and ceased the initial investigation because the defendant

 6 was free to leave at that time, but he voluntarily consented to a search. See id. ¶¶ 19,

 7 28. We held that the distinct line of questioning outside of the domestic matter was

 8 an expansion of the stop and required a separate showing of reasonable suspicion of

 9 other criminal activity. See id. ¶¶ 22-27. We rejected the State’s argument that the

10 encounter became consensual when the officer told the defendant he was free to leave

11 and then immediately continued to question him. See id. ¶ 31 (characterizing the

12 consensual nature of the continued interaction as “a fiction” and describing “the

13 reality . . . that even if a person is told he or she is free to leave, most people will not

14 feel free to walk away when continued police questioning seamlessly follows”). We

15 determined that there was not sufficient attenuation between the illegal questioning

16 and the defendant’s consent and reversed the district court’s denial of suppression.

17 See id. ¶¶ 35-36.

18         Similarly, in the present case, the officer’s inquiry into Defendant’s possession

19 of drugs and weapons was not reasonably related to the circumstances that justified


                                                9
 1 the stop, and it was not otherwise supported by reasonable suspicion that developed

 2 during the course of the stop. See State v. Duran, 2005-NMSC-034, ¶¶ 23, 35-36, 138

 3 N.M. 414, 120 P.3d 836 (holding that a stop may be reasonable where it is justified

 4 at its inception and where the officer’s inquiries are reasonably related to the

 5 circumstances which justified the stop or where the officer develops a reasonable

 6 suspicion to justify an expanded investigation).        Officer Trujillo testified that

 7 Defendant had all the proper information, no outstanding warrants, and was never

 8 hostile or aggressive during the stop. An inquiry into Defendant’s possession of drugs

 9 and weapons during a traffic stop constitutes a continuing detention, which must be

10 supported by reasonable suspicion. See id. ¶ 41 (“Questions about drugs or weapons

11 refer to a criminal act beyond what the officer stopped the car for in the first place.

12 Thus, they constitute a separate and distinct line of questioning apart from and outside

13 the scope of the initial justification for the stop that require a showing of reasonable

14 suspicion of other criminal activity.”); State v. Lowe, 2004-NMCA-054, ¶ 12, 135

15 N.M. 520, 90 P.3d 539 (holding that an officer can only inquire about drugs and

16 alcohol if he has reasonable suspicion that the motorist is under the influence or in

17 possession of same); State v. Taylor, 1999-NMCA-022, ¶¶ 20-25, 126 N.M. 569, 973

18 P.2d 246 (holding that questioning about the presence of drugs, alcohol, and weapons

19 in the course of a routine traffic stop represents an expansion beyond the generally


                                              10
 1 permissible range of inquiry, which must be supported by reasonable suspicion); In

 2 re Forfeiture of ($28,000.00), 1998-NMCA-029, ¶¶ 5, 14, 124 N.M. 661, 954 P.2d 93

 3 (holding that inquiry about the presence of weapons in a vehicle immediately

 4 following the officer obtaining the requested documents from the defendant).

 5        In the present case, the officer had only a generalized suspicion based solely on

 6 Defendant’s nervous behavior, looking behind the officer, to justify his continued

 7 investigation beyond the initial traffic stop. This falls short of the reasonable

 8 suspicion required for a continued investigative detention. See State v. Neal,

 9 2007-NMSC-043, ¶¶ 28-29, 142 N.M. 176, 164 P.3d 57 (holding that although

10 reasonable suspicion may arise from lawful conduct, “[w]e have never adopted a rule

11 equating simple nervousness with reasonable suspicion” (internal quotation marks and

12 citation omitted)). In the absence of some other justification for the inquiry, the

13 officer’s inquiry was tantamount to an impermissible fishing expedition. In fact, the

14 State does not argue on appeal that the further inquiry into drugs and weapons was

15 justified by reasonable suspicion.

16        Instead, as we have stated, the State’s brief argues that this secondary inquiry

17 was consensual in nature and therefore outside of the Fourth Amendment. In

18 Figueroa, we emphasized that the transformation of a seizure to a consensual

19 encounter is a highly fact-specific issue, which requires a consideration of the totality


                                              11
 1 of the circumstances and turns on whether a reasonable person would have believed

 2 he or she was free to leave. 2010-NMCA-048, ¶¶ 29, 33. Where the alleged

 3 “transition between detention and a consensual exchange [is] so seamless that the

 4 untrained eye may not notice that it has occurred,” the officer’s actions may not

 5 transform a seizure into a consensual encounter. Id. ¶ 30 (internal quotation marks

 6 and citation omitted). We stated that a Fourth Amendment encounter may be

 7 converted to a consensual one where the officer is careful to clearly establish a true

 8 transformation. See id. ¶¶ 32-33. In Figueroa, it was important to this Court that

 9 during the encounter “there was no break in time or location, no request for

10 permission to continue with questioning, and nothing indicating that the seizure had

11 changed to anything remotely consensual.” Id. ¶ 32.

12        The current case had a similarly seamless transition from a traffic stop for a

13 headlight violation to an investigation into drugs and weapons. In fact, unlike the

14 officer in Figueroa, who told the defendant he was free to leave, the officer in this

15 case simply stated he was “done” and immediately asked Defendant if there were

16 drugs or weapons in the vehicle. See id. ¶ 30 (“While an officer’s statement that a

17 suspect is free to go is a relevant consideration, it does not automatically make the

18 encounter consensual thereafter.”). There was no time lapse between the traffic stop

19 and the further investigation, no request for permission for the continued questioning,


                                             12
 1 and nothing more to indicate that the encounter became consensual. See id. ¶ 32.

 2 Further, another officer arrived at the scene, also with his emergency lights engaged,

 3 and the officers stood on either side of the vehicle as Officer Trujillo returned

 4 Defendant’s information and began questioning into the presence of drugs and

 5 weapons. Indeed, the officers increased the show of police authority for Officer

 6 Trujillo to issue the citation and continue his questioning, at the time when the State

 7 argues that the encounter became consensual. With these facts, we fail to see how the

 8 officer’s vague statement that he was “done” could transform this seizure into a truly

 9 consensual encounter. See id. ¶ 32. To hold otherwise, it appears that we would break

10 from the fact-dependent Fourth Amendment inquiry into reasonableness and

11 voluntariness and adopt a nearly bright-line rule that the return of a defendant’s

12 information and issuance of a citation automatically ends a seizure and begins a

13 consensual encounter. See, e.g., Funderburg, 2008-NMSC-026, ¶¶ 11-16; State v.

14 Paul T., 1999-NMSC-037, ¶ 28, 128 N.M. 360, 993 P.2d 74.

15        Lastly, we hold that Defendant’s consent did not supply a valid basis for the

16 search and seizure of contraband from the vehicle in light of the officer’s illegal

17 inquiry. For evidence to be admitted upon consent to a search following unlawful

18 police conduct, that consent must be sufficiently attenuated to purge the taint of the

19 prior illegality. See Neal, 2007-NMSC-043, ¶ 33. “The burden is . . . on the


                                             13
 1 prosecution to prove that there are intervening factors which prove that the consent

 2 was sufficiently attenuated from the illegal stop.” Figueroa, 2010-NMCA-048, ¶ 34

 3 (internal quotation marks and citation omitted). In determining the sufficiency of any

 4 attenuation, we consider the temporal proximity of the illegal act and the consent, the

 5 presence or absence of intervening circumstances, and the purpose and flagrancy of

 6 the official misconduct. See id. ¶ 34.

 7         As we explained, Officer Trujillo requested permission to search the vehicle

 8 immediately after asking about the presence of drugs and weapons.                     As a

 9 consequence, the illegal expansion of the stop was in very close temporal proximity

10 to the consent, without any intervening circumstances. Further, the purpose of the

11 officer’s request for permission to search was to verify Defendant’s answers to the

12 improper preceding inquiry. Under the circumstances, Defendant’s consent was not

13 sufficiently attenuated to purge the taint of the officer’s prior illegality. See, e.g., id.

14 ¶ 35 (holding that consent was tainted where no attenuation, temporal or otherwise,

15 existed between the illegality and the consent); State v. Prince, 2004-NMCA-127,

16 ¶ 21, 136 N.M. 521, 101 P.3d 332 (holding there was no attenuation where the officer

17 conducted an improper investigatory detention immediately before seeking consent

18 to search); Taylor, 1999-NMCA-022, ¶ 29 (holding that there was no attenuation, and

19 hence consent was tainted, where the officer asked improper questions immediately


                                                14
 1 before asking for consent to search, no other events occurred to separate the consent

 2 and the questions, and the purpose of requesting consent to search was to verify

 3 answers to the improper questions). Because Defendant’s consent was tainted and

 4 invalid to support the officers’ search of his vehicle, all evidence discovered as a result

 5 should have been suppressed.

 6 CONCLUSION

 7        For these reasons, we reverse the district court’s denial of Defendant’s motion

 8 to suppress the evidence.

 9        IT IS SO ORDERED.



10
11                                           CYNTHIA A. FRY, Judge

12 WE CONCUR:



13
14 JAMES J. WECHSLER, Judge



15
16 JONATHAN B. SUTIN, Judge




                                               15
