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

 2 Opinion Number: ___________

 3 Filing Date: October 13, 2015

 4 NO. 33,156

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 OSCAR HERNANDEZ,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
11 Darren M. Kugler, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   M. Anne Kelly, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Jorge A. Alvarado, Chief Public Defender
18 Tania Shahani, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant
 1                                       OPINION

 2 SUTIN, Judge.

 3 I.      Introduction

 4   {1}   Defendant Oscar Hernandez challenges the district court’s denial of his motion

 5 to suppress contraband seized from him and statements he made during an

 6 investigatory stop of an SUV in which he was a passenger. He asserts that law

 7 enforcement agents did not have reasonable suspicion when they stopped the SUV.

 8 We hold that the stop was supported by reasonable suspicion, and we affirm the

 9 district court.

10 Procedural History

11   {2}   Following his arraignment for possession of a controlled substance, in violation

12 of NMSA 1978, Section 30-31-23(E) (2011), Defendant filed a motion to suppress

13 the controlled substances seized, as well as all statements made by him, following an

14 August 23, 2012, stop of an SUV in which he was a passenger. The district court held

15 an evidentiary hearing on the motion during which the State proffered testimony from

16 the two undercover agents concerning events preceding the stop of the SUV.

17   {3}   The district court denied Defendant’s motion to suppress, listing the following

18 factors that were considered in its totality of the circumstances analysis.

19         (1) the established drug house through undercover buys, (2) previous
20         identification of the SUV through an undercover buy at [a] separate drug
21         house, (3) observation of activities consistent with previous drug buys
22         which included the dropping off and picking up of the male passengers,
23         and (4) the [three to five] minute time frame that was found to be
24         consistent with drug trafficking.
 1 Following the denial of Defendant’s motion to reconsider, Defendant entered a

 2 conditional plea, reserving his right to appeal the district court’s denial of his motion

 3 to suppress. Judgment was entered against Defendant, and Defendant filed a timely

 4 notice of appeal.

 5 II.     Background

 6   {4}   This case involved an ongoing narcotics investigation that culminated in the

 7 stop of the SUV and the arrest of Defendant, who was a passenger in the vehicle.

 8 Following the stop, Defendant was described by another passenger in response to an

 9 agent’s query about the location of the narcotics. The stop was based on three

10 previous incidents occurring in the agents’ ongoing investigation, incidents that the

11 State maintains supported reasonable suspicion for the stop of the SUV. We describe

12 those incidents.

13 A.      July 3, 2012

14   {5}    Undercover narcotics Agents Gabriel Arenibas and Joseph Misquez arranged

15 an undercover heroin buy on July 3, 2012, through a man named Kyle Mendenhall.

16 The agents referred to Mendenhall as a “suspect” and used him not as a confidential

17 informant, but rather as a source of drugs and a way to track down other heroin

18 dealers in the area.1 The agents drove with Mendenhall to the Oñate Greens Trailer


           1
19           Our impression that Mendenhall was not a confidential informant and was
20   unaware of the agents’ positions with law enforcement is enhanced by the fact that
21   no mention appears in the record of the agents conducting controlled buys, where the
22   informant is first checked to see if they possess drugs prior to making the buy at the
23   request of officers, see State v. Lujan, 1998-NMCA-032, ¶ 2, 124 N.M. 494, 953 P.2d

                                               2
 1 Park. Mendenhall directed the agents toward a trailer in Space 104 in the trailer park.

 2 He requested that the agents drop him off a few spaces away so that he could

 3 approach on foot, as the resident of Space 104 did not like new people to go there.

 4 The agents parked a few spaces away from Space 104, moved to a vantage point

 5 where they could observe Mendenhall, and saw him go into the white trailer.

 6 Mendenhall remained in the trailer for two to five minutes, returned to the car, they

 7 proceeded to Mendenhall’s residence to drop him off, and Mendenhall gave a packet

 8 of heroin to the agents. Both agents testified that Mendenhall’s presence in the trailer

 9 for two to five minutes was consistent with drug trafficking.

10 B.      July 23, 2012

11   {6}   Sometime after the July 3 buy, Mendenhall violated his parole, and the agents

12 were no longer able to make buys through him. The agents accepted an offer from

13 Brandon Hall and Zach Malchete, who were relatives of Mendenhall, “to hook us up

14 meaning to sell us heroin” and arranged to buy heroin from them instead of

15 Mendenhall.2 On July 23, 2012, Hall and Malchete met with Agent Misquez, while

16 Agent Arenibas conducted surveillance from approximately twenty feet away. Agent



17 29 (describing a typical controlled buy), and the fact that his role in the investigation
18 ended due to an unrelated parole violation.
           2
19          It appears from the record that the agents’ interactions with Hall and Malchete
20   were not controlled buys and that Hall and Malchete were also not confidential
21   informants. This position is based on repeated references to “undercover buys” with
22   Hall and Malchete, references to them as “suspects,” and the fact that Agent Arenibas
23   remained with Agent Misquez during the July 23 buy for “safety.”

                                               3
 1 Misquez gave Malchete $40 to purchase the heroin, and Malchete left, stating that he

 2 had to go to the Oñate Greens to his “connect.” Agent Misquez testified that

 3 Malchete, Hall, Mendenhall, and several other subjects were part of the investigation

 4 that the agents were working, and they knew their sources to be at two locations, one

 5 of which was Space 104 in the Oñate Greens Trailer Park. Agent Misquez confirmed

 6 that Malchete stated that he was “going to that white trailer,” and Hall also confirmed

 7 the same information to Agent Misquez, that it was the white trailer in Space 104

 8 from which Mendenhall had purchased heroin on July 3. Malchete returned

 9 approximately five to ten minutes later; upon his return, Malchete gave Agent

10 Misquez $40 worth of heroin.

11 C.      August 10, 2012

12   {7}   On August 10, 2012, the agents contacted Hall in order to purchase more

13 heroin; Hall did not have the amount that the agents requested, but offered to get it

14 if they agreed to drive him to a location where he could purchase it. The agents

15 agreed, and Hall directed them to 2801 Merriweather Street. This buy played out

16 under the “same circumstances” as the July 3 purchase by Mendenhall at Space 104,

17 in that the agents parked down the street from the house and waited while Hall went

18 into the Merriweather home on foot; again, the reason for this was that the individual

19 at the Merriweather home disliked new people coming to the house. While Hall was

20 in the house, the agents noticed a tan or golden colored SUV parked in the driveway

21 of the Merriweather home and “got the plate” of that vehicle. Hall came out of the

22 residence three to five minutes later, got into the agents’ car, and handed Agent

                                              4
 1 Misquez a small amount of heroin. At the time, the agents did not know who resided

 2 at 2801 Merriweather. The agents later determined that a family lived at the residence

 3 and that the SUV was registered to a person living at that address.

 4 D.      August 23, 2012

 5   {8}   The agents participated in other buys with Hall and Malchete between July 3

 6 and August 23, but in none of those additional buys did Hall and Malchete go to

 7 Space 104; instead, they took the agents to different addresses to buy heroin. The

 8 agents began conducting surveillance on Space 104 on their own. At the inception of

 9 the August 23rd surveillance, the agents determined that they would stop any vehicle

10 engaged in “suspicious activity” and also had a marked police unit waiting in the area

11 to conduct such stops. The agents observed a gold SUV stop in the trailer park, drop

12 off two passengers down the road from Space 104, and proceed to pull into Space

13 104’s driveway. The vehicle remained there for three to five minutes, and the two

14 remaining individuals in the SUV “made contact with the subject inside Space 104.”

15 The vehicle left Space 104, picked up the two passengers down the street, and exited

16 the trailer park. Agent Arenibas testified that the agents noticed that the gold SUV

17 was the same one they had seen parked outside 2801 Merriweather during the buy on

18 August 10. When the SUV passed in front of the agents, they were able to see its

19 license plate number, thereby confirming that the SUV was the same one that they

20 had seen outside of 2801 Merriweather. The SUV having been parked at Space 104

21 for the short length of time it was parked there, and having dropped off and picked

22 up the passengers down the street from Space 104, was consistent with drug

                                             5
 1 trafficking that the agents had observed during the previous undercover buys during

 2 their investigation. Based on the circumstances of this August 23rd buy and the

 3 similarities it had with the earlier undercover heroin purchases at Space 104 and at

 4 2801 Merriweather, the agents believed that the occupants of the SUV were involved

 5 in picking up or purchasing heroin.

 6   {9}    Because of these similarities, as well as the same SUV’s involvement, the

 7 agents requested that the marked police unit stop the SUV. The stop was conducted

 8 approximately one block away from the trailer park, minutes after the SUV pulled

 9 away from Space 104. The agents drove to the place where the marked unit had

10 stopped the SUV, approached the vehicle, advised the occupants of the narcotics-

11 related reason for the stop, and separated them. After a female passenger described

12 Defendant as being the person with the heroin, Defendant was confronted by the

13 agents, and eventually, Defendant voluntarily gave Agent Misquez a package of

14 heroin.

15 III.     Discussion

16 Standard of Review

17   {10}   When we review an appeal from a determination on a motion to suppress in a

18 criminal case, we look at the totality of circumstances. State v. Leyva,

19 2011-NMSC-009, ¶¶ 30, 59, 149 N.M. 435, 250 P.3d 861; State v. Vandenberg,

20 2003-NMSC-030, ¶ 19, 134 N.M. 566, 81 P.3d 19. We view the facts in a light most

21 favorable to the prevailing party. State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M.

22 428, 211 P.3d 885. At the same time, if the district court makes findings of fact, and

                                             6
 1 if any finding is attacked for lack of substantial evidence, we will review the finding

 2 under a substantial evidence standard of review. State v. Neal, 2007-NMSC-043,

 3 ¶ 15, 142 N.M. 176, 164 P.3d 57. If the finding is supported by substantial evidence,

 4 we will defer to the court’s finding. Id. Once the operative facts are ascertained, we

 5 review the constitutional reasonableness of the actions of law enforcement.

 6 Vandenberg, 2003-NMSC-030, ¶ 19; State v. Attaway, 1994-NMSC-011, ¶¶ 6-10,

 7 117 N.M. 141, 870 P.2d 103. A constitutional reasonableness analysis engages a

 8 process of evaluating both fact and law and is appropriately labeled a mixed question

 9 of fact and law. Attaway, 1994-NMSC-011, ¶¶ 6-7; see generally Randall H. Warner,

10 All Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101 (2005). Despite

11 the fact that our review requires determinations of what the operative facts are,

12 because the process involves evaluative judgments in regard to reasonableness, we

13 review the district court’s determination de novo. Vandenberg, 2003-NMSC-030,

14 ¶¶ 17, 19; Attaway, 1994-NMSC-011, ¶ 10.

15 The Stop Was Supported by Reasonable Suspicion

16   {11}   The Fourth Amendment to the United States Constitution “prohibits

17 unreasonable searches and seizures . . ., and its protections extend to brief

18 investigatory stops of persons or vehicles that fall short of traditional arrest.” United

19 States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks and citation

20 omitted).3 While warrantless seizures are presumed to be unreasonable, State v.

         3
21         We limit our analysis to the federal constitution when the defendant does not
22 argue on appeal how and why the New Mexico Constitution provides greater

                                               7
 1 Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95, brief investigatory stops

 2 are permissible if they are supported by reasonable suspicion that criminal activity

 3 may be afoot. Arvizu, 534 U.S. at 273.

 4   {12}   “[T]he concept of reasonable suspicion is somewhat abstract” and has not been

 5 reduced to a neat set of legal rules. Arvizu, 534 U.S. at 274. In reviewing a reasonable

 6 suspicion determination, an appellate court “must look at the totality of the

 7 circumstances” to determine “whether the detaining officer [had] a particularized and

 8 objective basis for suspecting legal wrongdoing.” Id. at 273 (internal quotation marks

 9 and citation omitted). The appellate court must give due weight to the factual

10 inferences and deductions drawn by a law enforcement officer based upon his

11 experience and specialized training. Id. at 273-74. “Although an officer’s reliance on

12 a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need

13 not rise to the level required for probable cause, and it falls considerably short of

14 satisfying a preponderance of the evidence standard[.]” Id. at 274 (internal quotation

15 marks and citation omitted). Finally, we are not to engage in a “divide-and-conquer

16 analysis[,]” looking at each act in a series of acts that, taken alone, may be susceptible

17 of an innocent explanation. Id. “A determination that reasonable suspicion exists . . .

18 need not rule out the possibility of innocent conduct.” Id. at 277.




19 protection. See generally State v. Lorenzo P., 2011-NMCA-013, ¶ 9, 149 N.M. 373,
20 249 P.3d 85. Defendant provides no such argument here. We therefore analyze
21 Defendant’s case only under the Fourth Amendment.

                                               8
 1   {13}   In Defendant’s view, the agents’ investigations “were fragmented and flawed,”

 2 were based on their “hunch that [the SUV] was involved in drug-related activity[,]”

 3 and were not adequate to support reasonable suspicion and the seizure of the SUV.

 4 Defendant relies on Neal, 2007-NMSC-043. In Neal, a law enforcement officer

 5 effected a valid traffic stop of the defendant and then detained the defendant for ten

 6 minutes to await a drug dog to perform a perimeter sniff of his vehicle. Id. ¶¶ 1, 28,

 7 31. Our Supreme Court held that the factual bases asserted by the officer to justify the

 8 ten minute detention did not satisfy the reasonable suspicion standard. Id. ¶ 31. The

 9 officer’s stated grounds for detaining the defendant were that the defendant had

10 parked in front of a house that was under surveillance in an ongoing drug

11 investigation, the defendant had a discussion with the resident who was a felon, the

12 officer’s “belief that a drug transaction had taken place[,]” the defendant’s demeanor,

13 his desire to leave, and the fact that the defendant had a criminal history. Id. ¶¶ 9, 28,

14 30. The Court determined that the defendant’s innocent conduct, presence at a known

15 drug house, and prior involvement in drug-related activity were not sufficient to

16 constitute reasonable suspicion to detain the defendant beyond the valid traffic stop.

17 Id. ¶¶ 9, 23, 31. The Court reasoned that “[the d]efendant’s mere association with a

18 convicted felon . . ., who was under surveillance in an ongoing drug investigation,

19 was insufficient to create reasonable suspicion[,]” id. ¶ 30, explaining that the totality

20 of the facts presented did not “constitute the type of individualized, specific,

21 articulable circumstances necessary to create reasonable suspicion that [the

22 d]efendant himself was involved in criminal activity[.]” Id. ¶ 31. Instead, it

                                               9
 1 characterized the circumstances as “the type of conjecture and hunch we have rejected

 2 in the past as insufficient to constitute reasonable suspicion.” Id.

 3   {14}   Defendant’s reliance on Neal derives from his view that the SUV’s mere

 4 presence at a house that was under investigation for suspected drug activity is

 5 inadequate to support reasonable suspicion. See id. ¶¶ 4, 28, 30 (stating, among other

 6 things, that the defendant’s presence at a house that was under investigation for drug

 7 activity did not give rise to reasonable suspicion). We are not persuaded by this

 8 comparison. Here, the grounds for the agents’ reasonable suspicion were based on far

 9 more than the SUV’s mere presence at a suspected drug house.

10   {15}   Further, Defendant’s arguments ignore the teachings of Arvizu. See 534 U.S.

11 273-74. Defendant parses the agents’ investigation and attacks the reasonableness of

12 the underlying inferences and conclusions as to each stage of the investigation that,

13 combined, ultimately led to the stop.4

14   {16}   For example, Defendant argues that the agents “could not be certain” that the

15 Merriweather address or Space 104 were sources of heroin. To that end, Defendant

16 points to the facts that the agents did not see or hear any drug transaction at either

17 address and did not confirm that Mendenhall, Hall, or Malchete were honest in their


            4
18           The special concurrence follows suit and goes further than Defendant by more
19   finely parsing the facts with innocent explanations for the circumstances observed by
20   the agents during their ongoing investigation. Defendant’s and the special
21   concurrence’s approaches fail to consider the totality of the circumstances, fail to give
22   due deference to law enforcement’s training and experience, and engage in an
23   unwarranted divide-and-conquer approach by attempting to find an innocent
24   explanation for each piece and parcel of the ongoing investigation.

                                                10
 1 representations that they purchased heroin from either address by somehow ensuring

 2 that they did not have heroin before they went to those addresses or somehow

 3 confirming that they did not keep the agents’ money themselves. Defendant’s

 4 argument evokes the sense of certainty that is required in a probable cause

 5 determination, but it misses the mark in terms of the reasonable suspicion standard.

 6 See Alabama v. White, 496 U.S. 325, 330 (1990) (stating that because “[r]easonable

 7 suspicion is a less demanding standard than probable cause” it “can arise from

 8 information that is less reliable than that required to show probable cause”); United

 9 States v. Cortez, 449 U.S. 411, 418 (1981) (stating that the process of developing

10 reasonable suspicion sufficient to justify a brief investigatory stop “does not deal with

11 hard certainties, but with probabilities” developed from “common sense conclusions

12 about human behavior . . . as understood by those versed in the field of law

13 enforcement”). The agents’ training and experience, their observations during the

14 drug buys, and the involvements of the SUV, objectively support the agents’

15 reasonable suspicion that the addresses were sources of heroin5 and the SUV was

           5
16            Arguably, the agents’ observations were sufficient to establish Mendenhall’s
17   and Hall’s reliability even under the heightened standard of probable cause applicable
18   to a search warrant. See, e.g., State v. Mejia, 766 P.2d 454, 457 (Wash. 1989) (en
19   banc) (considering the reliability of information gained from a middleman who
20   purchased drugs for a confidential informant and concluding that law enforcement’s
21   observations of his travel to a suspected drug house, then back to the confidential
22   informant to deliver drugs demonstrated probable cause); State v. Morehouse, 684
23   P.2d 1348, 1350 (Wash. Ct. App. 1984) (stating that, in the context of a search
24   warrant for a suspected drug house, any deficiency concerning a middleman’s
25   reliability was overcome by law enforcement’s “observation of two separate [drug]
26   transactions involving the same residence and the same pattern of activity”).

                                              11
 1 connected. See Arvizu, 534 U.S. at 273-74 (discussing the standard used to determine

 2 whether law enforcement “[had] a particularized and objective basis for suspecting

 3 legal wrongdoing” (internal quotation marks and citation omitted)).

 4   {17}   Defendant also attacks reasonable suspicion on the ground that neither the SUV

 5 nor its owner was known to have been previously involved in any suspicious, drug-

 6 related activity. Defendant states that “[t]he agents had not identified [to whom] at the

 7 Merriweather residence the SUV belonged . . . or if that person was, in fact, involved

 8 with drug sales.” In support of this attack, Defendant relies on State v. Graves, 1994-

 9 NMCA-151, ¶ 8, 119 N.M. 89, 888 P.2d 971, for the inapplicable proposition that,

10 in Defendant’s words, “presence on the premises subject to a search warrant does not

11 justify detaining or searching the defendant[.]” We are not made aware of any

12 authority to support the notion that an investigatory stop requires law enforcement

13 officers to know of prior suspicious or criminal activity or to know that the owner of

14 the subject vehicle was “in fact” involved in criminal activity. Again, reasonable

15 suspicion “does not deal with hard certainties, but with probabilities.” Cortez, 449

16 U.S. at 418. Further, focusing on what the agents did know instead of what they did

17 not know about the SUV, that is, its presence at the Merriweather address during a

18 heroin purchase, its later presence at the Oñate Greens Trailer Park, and the fact that,

19 while at the trailer park, it followed the particular pattern known to the agents to be

20 associated with heroin purchases from Space 104, objectively supported the agents’

21 reasonable suspicion of criminal activity. See, e.g, United States v. Askew, 403 F.3d

22 496, 508 (7th Cir. 2005) (confirming that the totality of the circumstances firmly

                                              12
 1 established reasonable suspicion and that, although one event could be interpreted as

 2 an innocent one, “a pattern of behavior interpreted by the untrained observer as

 3 innocent may justify a valid investigatory stop when viewed collectively by

 4 experienced drug enforcement agents” (internal quotation marks and citation

 5 omitted)); United States v. Harley, 682 F.2d 398, 401 (2d Cir. 1982) (holding that

 6 reasonable suspicion supported an investigatory stop because the characteristics of

 7 the defendant’s “brief stop” at a place that agents “were pretty well convinced” was

 8 a place that narcotics were being sold was typical of the activities related to narcotics

 9 sales that the law enforcement agents had previously observed); United States v.

10 Gomez, 633 F.2d 999, 1004-05 (2d Cir. 1980) (holding that reasonable suspicion of

11 criminal activity was supported by experienced police officers’ observations in an

12 area of high narcotics activity of a pattern of behavior that they had seen many times

13 before, notwithstanding that “viewed singly by an untrained eye, these events might

14 be susceptible of an innocent interpretation”).

15   {18}   In Defendant’s next attack on whether the agents’ investigation supported their

16 reasonable suspicion, he argues that the agents “had no reason to be suspicious that

17 illegal activity was occurring at Space 104” on the day that the SUV was seized. We

18 disagree. The totality of the circumstances gave the agents sufficient objective reason

19 to be suspicious of illegal drug-related activity. Again, the factors included

20 Mendenhall’s and Hall’s respective heroin purchases from Space 104, the fact that

21 the SUV was registered to a resident and was in the driveway during the previous

22 Merriweather heroin transaction on August 10, and the occupants’ actions that were

                                              13
 1 consistent with the pattern of drug-related behavior occurring during their

 2 investigation and the previous heroin purchases from Space 104.

 3   {19}   Finally, Defendant argues that “the agents were [not] operating under a

 4 specific, predictive tip that criminal activity was presently afoot[] or was about to

 5 occur.” Consideration of a specific, predictive tip that criminal activity is about to

 6 occur may be relevant to a reasonable suspicion determination in a circumstance

 7 where a tip from an informant contributes to reasonable suspicion. See State v. Robbs,

 8 2006-NMCA-061, ¶ 19, 139 N.M. 569, 136 P.3d 570 (concluding that an informant’s

 9 tip was reliable and supported by reasonable suspicion because, among other things,

10 it predicted the defendant’s future movement as corroborated by law enforcement).

11 Such considerations are not relevant here where the agents’ reasonable suspicion

12 stemmed from their own undercover investigation and surveillance and not from a tip

13 from an informant.

14   {20}   In sum, the totality of the circumstances known to the agents as a result of their

15 undercover activities with Mendenhall, Hall, and Malchete, their surveillance of the

16 Merriweather address and Space 104 during Mendenhall’s and Hall’s respective

17 heroin purchases, the information gathered from Malchete, the presence of the SUV

18 at both at-issue addresses, and the surveillance of Space 104 that ultimately led to the

19 seizure of the SUV, amply supported the agents’ reasonable suspicion that criminal

20 activity was afoot when the marked police unit stopped the SUV. Through the course

21 of their investigation, the agents gathered information that allowed them to observe

22 a pattern of behavior associated with heroin transactions at the two specific addresses

                                                14
 1 that were reasonably sufficient, to link the SUV to both addresses and, ultimately, to

 2 connect the SUV belonging to a resident of the Merriweather address to the pattern

 3 of behavior associated with a suspected purchase of heroin from Space 104 on August

 4 23, 2012. The “mere hunch” label is a stretch too far here. Viewed in total and with

 5 the required deference to the inferences and deductions drawn by the agents based on

 6 their experience and training, these circumstances were sufficient to give rise to more

 7 than a “mere hunch.” See Arvizu, 534 U.S. at 273-74 (recognizing that a mere hunch

 8 will not support reasonable suspicion, but also recognizing that the appellate courts

 9 must give due weight to the factual inferences and deductions drawn by law

10 enforcement based upon experience and specialized training). To the contrary, the

11 circumstances here provided an objective basis upon which the agents could

12 reasonably suspect criminal activity and conduct a lawful investigatory stop.

13 CONCLUSION

14   {21}   We affirm.

15   {22}   IT IS SO ORDERED.


16                                                _______________________________
17                                                JONATHAN B. SUTIN, Judge




                                             15
1 WE CONCUR:



2 _______________________________
3 TIMOTHY L. GARCIA, Judge

4 RODERICK T. KENNEDY, Judge (specially concurring).




                                    16
 1 KENNEDY, Judge, (specially concurring).

 2   {23}   It is impossible to ascertain whether, after a month and a half, the agents tired

 3 of their investigative methods and just decided to return to an “established drug

 4 house” to arrest someone. In my view, the facts here establish legitimate reasonable

 5 suspicion by barely a nose. Only upon a re-reading of this Opinion did a single fact

 6 convince me to concur. Self-reference and subjective hunch-confirming seems to

 7 abound without much hard evidence. The district court acknowledged that the agents

 8 saw no drugs at any point in their investigations on the day of Defendant’s arrest

 9 leading up to the stop of the SUV and acknowledged that “none of the indicators

10 shown here, on their own, taken individually, would provide reasonable suspicion.”

11   {24}   Knowing the deferential standard of review, however, I must reluctantly

12 concur. I write to emphasize the objective standard we must apply and recall the law

13 that “[q]uestions of reasonable suspicion are reviewed de novo by looking at the

14 totality of the circumstances to determine whether the detention was justified.” Robbs,

15 2006-NMCA-061, ¶ 9. Hindsight, whether investigative or judicial, creates a terrific

16 bias for confirmation of bad evidence. The agents seem not to have once corroborated

17 these “suspects’ ” stories with hard evidence, yet paint a barely sufficient picture for

18 this appeal to sustain their actions. I question the quality of the evidence, even while

19 I vote to affirm its sufficiency in this case.



                                               17
 1   {25}   Our courts have routinely rejected adopting rules equating innocent conduct

 2 with reasonable suspicion, absent articulable suspicion of criminal activity. Neal,

 3 2007-NMSC-043, ¶¶ 28-29; see also Leyva, 2011-NMSC-009, ¶ 24 (“ ‘Whether you

 4 stand still or move, drive above, below, or at the speed limit, you will be described

 5 by the police as acting suspiciously should they wish to stop or arrest you. Such

 6 subjective, promiscuous appeals to an ineffable intuition should not be credited.’ ”

 7 (quoting United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005))). Law

 8 enforcement officers are permitted to “draw on their own experience and specialized

 9 training to make inferences from and deductions about the cumulative information

10 available to them that might well elude an untrained person. However, this does not

11 mean that unsupported intuition and inarticulate hunches are sufficient to constitute

12 reasonable suspicion justifying a detention.” Neal, 2007-NMSC-043, ¶ 21 (alteration,

13 omission, internal quotation marks, and citations omitted). The purpose for this

14 objectivity “is to prevent officers from arbitrarily acting on whims or unsupported

15 hunches[.]” State v. Alderete, 2011-NMCA-055, ¶ 11, 149 N.M. 799, 255 P.3d 377.

16   {26}   There is no legal standard for where the “suspects” with whom the agents

17 associated during this three-buy investigation fall on the contiuum of sources of

18 information between anonymous tipsters, confidential informants, and identified

19 sources. They certainly have no obligation to be honest; they were all actively



                                             18
 1 committing criminal acts with the agents asking them to do so. None of them ever

 2 allowed the agents near one of the “buys,” saying in each instance that the individuals

 3 at those locations did not like strangers. This is a great opportunity for misdirection

 4 and the suspects’ control of the circumstances. Mendenhall was arrested for other

 5 crimes in the course of the investigation. Hall and Malchete were also not confidential

 6 informants, because they, too, were “suspects,” who on July 23, necessitated the

 7 agents staying together for “safety” when Hall went to make the buy at the “white

 8 trailer.” Neither the term “suspect,” nor the concern for officer safety bespeak any

 9 level of trust for these collaborators.

10   {27}   In this case there are the three relevant events preceding the August 23 stop of

11 the SUV: the Mendenhall buy at Space 104 on July 3, the July 23 “buy” that may or

12 may not have occurred where Hall said it did, and seeing the SUV on Merriweather

13 on August 10. In the first, Mendenhall went in, came out, and turned over drugs.

14 Because the agents were acting as co-criminals with Mendenhall, who was not

15 controlled by them or working off charges, they could not ascertain if he had drugs

16 on his person before he went in, or still had their money when he came out.6 Nothing


            6
17           This would be what’s known as a “controlled buy”: “[T]he informant entered
18   the residence with some money and no drugs and came out of the residence a few
19   minutes later with drugs and no money. The informant stated that he had purchased
20   the packet of suspected heroin from [the d]efendant . . . . The informant then turned
21   over the packet of suspected heroin to the police. The informant saw or perceived the
22   facts asserted.” Lujan, 1998-NMCA-032, ¶ 12.
                                               19
 1 appears in the record as to who occupied the trailer at Space 104, whether they had

 2 criminal records, or were innocent diversions for Mendenhall. E.g., State v. Barker,

 3 1992-NMCA-117, ¶ 2, 114 N.M. 589, 844 P.2d 839 (describing an informant’s

 4 detailed contacts within a drug house). Regarding the SUV, as mentioned later, no

 5 facts establish its association with anyone dealing drugs at the Merriweather address

 6 on August 10. At the Merriweather buy, the “suspect” already had heroin with him,

 7 just “not enough” to satisfy the agents’ request—without a controlled buy, it would

 8 be beyond the agents’ capability to demonstrate how much heroin later turned over

 9 to the agents even came from the house. All of these buys rest only on the say-so of

10 the “suspects” themselves, and the tunnel vision of the agents. Our deference may be

11 little more than a gloss; the agents were quite unclear in their testimony about

12 whether they recognized the SUV before or after the August 23 stop. However, the

13 majority is correct that minute deconstruction is not the standard we must apply, and

14 Defendant’s doing so is unpersuasive in a “totality of the circmustances” deferential

15 review.

16   {28}   In Alderete, an established and reliable confidential informant gave well-

17 corroborated information constituting “specific, predictive information” that was

18 confirmed by police observation that drugs were being delivered to a house. A search

19 warrant for the house had been obtained, and the officers knew it. Alderete, 2011-

20 NMCA-055, ¶ 18. One vehicle had left the house; another capable of carrying such
                                            20
 1 boxes as had been delivered left ten minutes thereafter. The combination of facts and

 2 corroboration of a reliable informant’s information supported reasonable suspicion

 3 to pull over the car. Id. ¶ 20. A confidential informant is someone who is known to

 4 the police, has assisted them with investigations, and whose information led to the

 5 seizure of controlled substances and many controlled substances related arrests. Cf.

 6 State v. Whitley, 1999-NMCA-155, ¶ 2, 128 N.M. 403, 993 P.2d 117. In this case,

 7 there are no reliable informants, no corroboration, and only one observed prior

 8 contact with Space 104 that was similar to the July 3 stop the agents made.

 9   {29}   The “suspects” did not testify here in support of the State to support the

10 conclusions the agents made with actual facts from the buys. All the places from

11 which the “suspects” bought drugs did not like new people, such as the agents,

12 showing up. This trope kept the agents from the possibility of gathering corroborating

13 evidence. The agents, because they were dealing with active criminal suspects and not

14 an informant under their control, did not control the “buys” their compatriots made

15 in their service that might have reduced what I regard as the uncertainty and risk of

16 falsehood about the information provided by an informant. State v. Steinzig, 1999-

17 NMCA-017, ¶¶ 23-24, 127 N.M. 752, 987 P.2d 409. I regard the “suspects” as less

18 reliable than anonymous tipsters, whose information we have previously regarded as

19 “generally less reliable than tips from known informants and can form the basis for

20 reasonable suspicion only if accompanied by specific indicia of reliability, for
                                             21
 1 example the correct forecast of a subject’s not easily predicted movements.” State v.

 2 Urioste, 2002-NMSC-023, ¶ 12, 132 N.M. 592, 52 P.3d 964 (internal quotation marks

 3 and citation omitted).

 4   {30}   The sole operative question is whether the stop of the SUV was justified at its

 5 inception. I am troubled with the agents’ testimony that they had determined even

 6 before the SUV showed up that they would detain anyone involved in “suspicious

 7 activity” at Space 104 and had a patrol car already waiting for that purpose.

 8   {31}   This case resembles Alderete in that the car in that case was stopped based on

 9 reasonable suspicion from the investigation, and not a traffic stop. The SUV showed

10 up for a brief time, disgorged some passengers who had some contact with Space 104,

11 returned to the car, and left. Since it is unclear whether the SUV was recognized at

12 the time of the stop, the facts indicate that this stop occurred solely because of the

13 agents’ surveillance of Space 104 and their admitted predilection to stop any car that

14 they thought was acting suspiciously. However, it fit the classic short-time turnaround

15 of a typical drug transaction, and the totality of the circumstances as found by the

16 district court gets the deferential nod.

17   {32}   Neal is just a whisker on the other side of the line from this case. In Neal, an

18 officer lacked reasonable suspicion to detain an individual in order to search for drugs

19 where the officer observed the defendant, who had prior drug-related convictions,

20 stop briefly in front of a house and speak to a known felon who resided at the house
                                               22
 1 and was under investigation for drug trafficking. 2007-NMSC-043, ¶ 28. The officer

 2 had no specific information that criminal activity had occurred. Id. Our Supreme

 3 Court held that the defendant’s suspicious behavior, presence at a known drug house,

 4 and prior involvement in drug-related activity were not sufficient to constitute

 5 reasonable suspicion to detain the defendant beyond the valid traffic stop. Id. ¶ 23.

 6 The Court reasoned that “[the d]efendant’s mere association with a convicted felon

 7 . . . who was under surveillance in an ongoing drug investigation[] was insufficient

 8 to create reasonable suspicion.” Id. ¶ 30. The Court explained that the totality of the

 9 facts presented did not “constitute the type of individualized, specific, articulable

10 circumstances necessary to create reasonable suspicion that [the d]efendant . . . was

11 involved in criminal activity,” id. ¶ 31, and instead characterized the circumstances

12 as “the type of conjecture and hunch we have rejected in the past as insufficient to

13 constitute reasonable suspicion.” Id.

14   {33}   In State v. Ochoa, an officer surveilling a house for drug trafficking observed

15 an unknown vehicle at the house, at the officer’s request, another officer stopped the

16 vehicle in order to identify and question the driver. 2009-NMCA-002, ¶ 2, 146 N.M.

17 32, 206 P.3d 143. We held that the officer, based on these facts, “lacked a

18 constitutionally reasonable suspicion that [the d]efendant was involved in drug

19 activity” to justify the stop. Id. ¶ 45. We concluded that the stop was pretextual

20 because the officer lacked reasonable suspicion to support the underlying basis for
                                               23
 1 the stop—investigation of drug activity. Id. ¶ 46. Here, I recall the agents’ intention

 2 to stop any suspicious vehicle that stopped at Space 104. Only they were defining

 3 “suspicious” at that point.

 4   {34}   I regard the reasoning we used in State v. Prince, 2004-NMCA-127, 136 N.M.

 5 521, 101 P.3d 332, worthy of repeating, as we held there that the combination of

 6 being under investigation for drug involvement and a tip tying the defendant’s

 7 movements to drug activity were insufficient to constitute reasonable suspicion to

 8 detain the vehicle beyond a valid traffic stop.

 9          Guilt by association and generalized suspicions are insufficient grounds
10          upon which to base an investigatory detention. In the absence of specific
11          and particularized incriminating information about the criminal activity
12          that the defendant is or is about to [be] engage[d] in, generalized
13          suspicions and mere corroboration of innocent activity, even if it is not
14          readily available to the general public, is insufficient to create
15          reasonable suspicion for an investigatory detention.

16 Id. ¶ 17 (emphasis added). However, because I believe the totality of the

17 circumstances in this case barely supports our conclusion, I can join the majority in

18 applying the standard of review in this case. I therefore concur.


19                                           _______________________________
20                                           RODERICK T. KENNEDY, Judge




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