 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                                    NO. 29,876

10 GREGORY KETELSON,

11          Defendant-Appellee.


12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 William G. Shoobridge, District Judge


14 Gary K. King, Attorney General
15 James W. Grayson, Assistant Attorney General
16 Santa Fe, NM

17 for Appellant

18 Hugh W. Dangler, Chief Public Defender
19 Nancy M. Hewitt, Appellate Defender
20 Santa Fe, NM

21 for Appellee

22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.
 1        The State appeals from the district court’s suppression ruling. The notice

 2 proposed to affirm and the State filed a timely memorandum in opposition. We

 3 remain unpersuaded by the State’s arguments and therefore affirm.

 4        The State continues to argue that the district court erred in granting Defendant’s

 5 motion to suppress. [DS 5-6; RP 83] “In reviewing a trial court’s denial of a motion

 6 to suppress, we observe the distinction between factual determinations which are

 7 subject to a substantial evidence standard of review and application of law to the

 8 facts[,] which is subject to de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19,

 9 129 N.M. 688, 12 P.3d 442 (internal quotation marks and citation omitted). “We view

10 the facts in the manner most favorable to the prevailing party and defer to the district

11 court’s findings of fact if substantial evidence exists to support those findings.” State

12 v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.

13        We begin with a recitation of the relevant facts as determined by the judge.

14 [RP 81] See id. (recognizing that, in reviewing a motion to suppress, we defer to the

15 district court's factual findings so long as substantial evidence exists to support those

16 findings). Defendant was a front-seat passenger in a vehicle that was stopped for a

17 routine traffic violation. [RP 81; MIO 2] During the stop, an officer observed in

18 plain view a firearm laying partly under the back-seat passenger seat. [RP 81; MIO

19 2] Defendant was asked to step out of the vehicle, and an officer seized the firearm.

                                               2
 1 [RP 81; MIO 2] At the time the firearm was seized, both Defendant and driver had

 2 exited the vehicle. [RP 81; MIO 2] After the firearm was seized, Defendant signed

 3 a consent form for the search of the vehicle, wherein he admitted that the firearm

 4 belonged to him. [RP 81; MIO 2] At the time officers seized the firearm, they did

 5 not yet know that Defendant was a convicted felon. [RP 81] The district court

 6 additionally determined that Defendant and driver were at all times cooperative and

 7 created no apparent threat or imminent danger to life or serious damage to property

 8 [RP 82], and that there was no threat that evidence would be tampered with or

 9 destroyed. [RP 82]

10        Case law provides that, even when an object is in plain view, officers may not

11 enter a vehicle and seize the object without a warrant, absent exigent circumstances

12 or some other exception to the warrant requirement. See State v. Bomboy, 2008-

13 NMSC-029, ¶ 17, 144 N.M. 151, 184 P.3d 1045. In the present case, as discussed

14 below, there was no proper basis upon which to justify the warrantless seizure of the

15 firearm.

16        Relevant to the inquiry of whether exigent circumstances existed, the district

17 court determined that driver and Defendant were cooperative and created no apparent

18 threat or imminent danger. [RP 82] Cf. State v. Garcia, 2005-NMSC-017, ¶¶ 31-32,

19 138 N.M. 1, 116 P.3d 72 (holding that exigent circumstances justified warrantless


                                             3
 1 seizure of the gun in plain view in the vehicle because the defendant acted

 2 aggressively toward the officer and refused to return to the vehicle upon the officer’s

 3 request); Bomboy, 2008-NMSC-029, ¶ 16 (recognizing that the Garcia seizure of the

 4 firearm was justified because there was a particularized showing of exigent

 5 circumstances). To the extent the State suggests that the driver’s nervousness created

 6 exigent circumstances [DS 2; MIO 10; RP 9], we hold that it was the judge’s

 7 prerogative, as fact-finder, to both disagree with any assertion of nervousness, as well

 8 as to conclude that no exigencies were present. See generally State v. Adame, 2006-

 9 NMCA-100, ¶ 13, 140 N.M. 258, 142 P.3d 26 (recognizing that in ruling upon a

10 motion to suppress, the trial court resolves conflicts in the evidence, chooses which

11 inferences to draw, and weighs the evidence).

12        We reject the State’s position that safety purposes justified the warrantless

13 seizure of the firearm. [DS 4] In this respect, the State asserts that had Defendant and

14 driver not been removed from the vehicle and the firearm secured, both would have

15 had ready access to the gun. [DS 4] Until the officers could determine that the

16 occupants of the vehicle could legally possess the firearm [DS 5], the State maintains

17 that the officers’ minimal intrusion was justified by the need for officer safety [DS 4;

18 MIO 4-5], as well as to the safety to any others in the vicinity of the weapon. [DS 5]

19 In essence, to ensure officer safety, the State advocates for a presumption of exigent


                                              4
 1 circumstances to justify any plain view seizure of a firearm in a lawfully stopped

 2 vehicle. To this end, the State advocates that a weapon in plain view during a traffic

 3 stop creates a reasonable suspicion that the vehicle’s occupants are armed and

 4 dangerous, and thus is subject to seizure to ensure officer safety. [MIO 7] In support

 5 of its position, the State refers to federal authority for the proposition that officers who

 6 observe a firearm in plain view during an investigatory detention may disarm the

 7 suspect for the duration of the stop. [MIO 14]

 8        As acknowledged by the State, however, New Mexico has rejected such an

 9 approach. See generally State v. Weidner, 2007-NMCA-063, 141 N.M. 582, 158 P.3d

10 1025 (recognizing that New Mexico has rejected the federal automobile exception

11 which allows a warrantless seizure of an object in a vehicle without having to make

12 a particularized showing of exigent circumstances). Instead, our Supreme Court case

13 law dictates that even when a firearm is in plain view, officers may not enter a vehicle

14 and seize the firearm without a warrant, absent exigent circumstances or some other

15 exception to the warrant requirement. See Garcia, 2005-NMSC-017, ¶ 31 (stating that

16 “[a]n individual in a car with a weapon, by itself, does not create exigent

17 circumstances.”). As further acknowledged by the State [MIO 11], Garcia is binding

18 precedent. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973)

19 (holding that the Court of Appeals is bound by Supreme Court precedent). While the


                                                5
 1 State requests this Court “to certify the matter to the Supreme Court to reassess the

 2 operative language in Garcia,” we decline to dispense with the normal appellate

 3 process. Cf. State v. Trevino, 113 N.M. 804, 806, 833 P.2d 1170, 1172 (Ct. App.

 4 1991) (certifying a matter to the Supreme Court because of concern that Alexander v.

 5 Delgado compels a decision by this Court with which the Supreme Court ultimately

 6 might not agree and because resolution of a part of the issue may involve a choice

 7 between what appears to be conflicting decisions by the Supreme Court).

 8        Lastly, although Defendant was a felon and therefore prohibited from

 9 possessing a firearm [DS 5], see NMSA 1978, § 30-7-16(A) (2001), officers did not

10 know of Defendant’s felon status until after the seizure. [RP 81] In such instance,

11 Defendant’s felon status can not be used to justify the seizure of the firearm. Cf.

12 Bomboy, 2008-NMSC-029, ¶ 17 (recognizing that “if following a lawful stop on a

13 roadway, an item in an automobile is in plain view and the officer has probable cause

14 to believe the item is evidence of a crime, the officer may seize the item,” as such

15 action is consistent with the exigent circumstances exception to the warrant

16 requirement) (emphasis added); State v. Rowell, 2008-NMSC-041, ¶¶ 33-34, 144

17 N.M. 371, 188 P.3d 95 (holding that the exigencies of the circumstances justified the

18 warrantless weapons search of the defendant’s vehicle when the handcuffed and

19 arrested defendant told the officer that there was a shotgun in the vehicle on school


                                             6
1 grounds, a felony offense, and “the deadly contents of [the] [d]efendant’s car remained

2 accessible to students and others until the officer took prompt steps to secure the

3 weapons”).

4 Conclusion

5        Based on the foregoing discussion, we affirm.

6        IT IS SO ORDERED.

7
8                                         MICHAEL D. BUSTAMANTE, Judge

9 WE CONCUR:


10
11 LINDA M. VANZI, Judge


12
13 TIMOTHY L. GARCIA, Judge




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