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


 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                      NO. 28,933

 5 JORGE RAMIREZ-MURILLO,

 6         Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Kenneth H. Martinez, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Hugh W. Dangler, Chief Public Defender
13   Santa Fe, NM
14   Josephine H. Ford, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant



17                               MEMORANDUM OPINION

18 CASTILLO, Judge.

19         Defendant appeals from the district court’s memorandum opinion affirming his

20 conviction for DWI in violation of NMSA 1978, Section 66-8-102(A) (2005), and
 1 NMSA 1978, Section 66-8-102(C)(1) (2005), in an on-the-record appeal following his

 2 bench trial in metropolitan court. This Court issued a calendar notice proposing to

 3 affirm.   Defendant filed a memorandum in opposition, which we have duly

 4 considered. Because we are unpersuaded by Defendant’s arguments, we affirm.

 5        On appeal, Defendant contends that his encounter with the police constituted

 6 a seizure that was not supported by reasonable suspicion or the community caretaking

 7 doctrine and that all evidence obtained following police contact with Defendant

 8 should have been suppressed. Our calendar notice proposed to affirm Defendant’s

 9 conviction on the ground that the encounter between Defendant and the police was

10 consensual. [CN 3-5] In his memorandum in opposition, Defendant argues that: (1)

11 it was not a consensual encounter, [MIO 7-13] (2) it is unfair to affirm on consensual

12 encounter grounds where “the trial court did not consider whether the encounter was

13 consensual under New Mexico law and [the] defense was not given the opportunity

14 to argue this issue at trial,” [MIO 13] and (3) Defendant’s encounter with police was

15 an investigative detention that was unsupported by reasonable suspicion [MIO 14-19].

16        “On appellate review of the metro court’s denial of a motion to suppress, we

17 must determine whether the law was correctly applied to the facts.” State v. Aguilar,

18 2007-NMCA-040, ¶ 6, 141 N.M. 364, 155 P.3d 769.

19               In determining whether an encounter between a citizen and police
20        is consensual or constitutes a seizure, we consider “whether, under the

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 1        totality of the circumstances surrounding the encounter, the police
 2        conduct would have communicated to a reasonable person that the
 3        person was not free to decline the officer[’s] requests or otherwise
 4        terminate the encounter.”

 5 State v. Soto, 2008-NMCA-032, ¶ 6, 143 N.M. 631, 179 P.3d 1239 (quoting State v.

 6 Williams, 2006-NMCA-062, ¶ 10, 139 N.M. 578, 136 P.3d 579). On appeal, we

 7 review “[t]he circumstances surrounding the encounter, including the question of

 8 whether the officer[] used a show of authority, . . . for substantial evidence.” Id. “The

 9 question of whether the circumstances would have caused a reasonable person to

10 believe he or she was not free to decline the officers’ requests is a legal inquiry, which

11 we review de novo.” Id.

12        The facts of this case are set out in greater detail in our calendar notice. [CN

13 2-3] In short, officers had been dispatched to an apartment complex to investigate a

14 report of “shots fired”; one of the officers saw Defendant park his vehicle in the

15 parking lot perpendicular to and taking up three spaces; and the officer approached

16 Defendant to ask why he had parked in that manner. [DS 2; RP 90] The officer

17 testified that the manner in which Defendant parked had caught his attention, but that

18 he had also approached the vehicle out of concern for Defendant’s safety and to find

19 out whether Defendant knew anything about shots being fired in that area. [DS 2-3;

20 RP 90-91] As noted in our proposed disposition, upon approaching the vehicle, the

21 officer immediately detected a strong odor of alcohol. [DS 2] Defendant argues that

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 1 the metropolitan court’s ruling on Defendant’s suppression motion, motion for

 2 directed verdict, as well as the metropolitan court’s determination of Defendant’s

 3 guilt, were all error because reasonable suspicion did not exist. [MIO 1-7]

 4        In our calendar notice we noted that “a police officer does ‘not need any

 5 justification to approach a person and ask that individual questions[,]’ provided the

 6 officer does not convey a message that compliance with his or her request is required.”

 7 [CN 4 (quoting State v. Jason L., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856)]

 8 Furthermore, we noted that there did not appear to be any evidence establishing that

 9 the officer had “made any showing of authority that would have caused Defendant to

10 feel as though he could not leave,” and thus, “we propose[d] to conclude that no

11 seizure occurred.” [CN 5] Given the information provided in Defendant’s docketing

12 statement, we proposed to hold that the officer engaged in a consensual encounter

13 with Defendant based on a right for any reason analysis. [CN 5]

14        In response, Defendant contends that it is unfair for this Court to affirm the

15 metropolitan court’s decision on the ground that the encounter was consensual

16 because that issue was not argued below. We disagree. “[D]efendants have the

17 burden to raise an issue as to their illegal search and seizure claims.” State v.

18 Baldonado, 115 N.M. 106, 110, 847 P.2d 751, 755 (Ct. App. 1992). In this case,

19 Defendant raised the issue of illegality by challenging whether the officer had


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 1 reasonable suspicion to approach the vehicle and ask questions. Although Defendant

 2 did not specifically argue that the encounter was not consensual, that argument was

 3 implicit in Defendant’s challenges. The metropolitan court rejected Defendant’s

 4 position that the officer needed reasonable suspicion because the court determined that

 5 the officer was reasonable to approach Defendant to warn him about the reported

 6 gunshots and inquire about Defendant’s well being, based on the way that Defendant

 7 was parked. We have reached a similar conclusion on that basis. Although the

 8 metropolitan court did not use the term “consensual encounter,” the legal effect of its

 9 decision is that it was a consensual encounter and therefore the acts of the officer were

10 legal. It is not unfair to affirm the metropolitan court on that basis because even

11 though the terms used were different, the substance of the argument is the same.

12        To the extent that Defendant contends that reasonable suspicion was required

13 and was lacking, we disagree. At trial, Defendant elicited no testimony that more than

14 one officer approached the vehicle, that the officer used aggressive language or an

15 aggressive tone of voice, or other evidence that would indicate, under our case law,

16 that the officer made a showing of authority that would have caused an innocent

17 reasonable person in Defendant’s position to feel as though he could not leave. See

18 Soto, 2008-NMCA-032, ¶ 6 (observing that, “[i]in determining whether an encounter

19 between a citizen and police is consensual or constitutes a seizure, . . . [w]e presume


                                               5
 1 the citizen to be an innocent reasonable person and we consider the sequence of the

 2 officer’s actions and how a reasonable person would perceive those actions” (internal

 3 quotation marks and citation omitted)); Jason L., 2000-NMSC-018, ¶ 7 (considering

 4 aggressive language or tone of voice, the number of officers present, and whether the

 5 officers were armed in determining whether a reasonable person would feel free to

 6 leave). On appeal, Defendant relies on Baldonado, 115 N.M. at 110, 847 P.2d at 755,

 7 and Soto, 2008-NMCA-032, to argue that the officer’s show of authority created a

 8 situation where a reasonable person in Defendant’s position would not have felt free

 9 to leave. In Baldonado, the police officer pulled up behind a stopped vehicle and

10 engaged his emergency lights. Soto involved two officers in a vehicle pulling up next

11 to a person on a bicycle, asking the person questions, and demanding the person’s

12 driver’s license. Here, drawing all reasonable inferences in favor of the metropolitan

13 court’s determination, it appears that the officer approached Defendant’s truck, alone

14 and on foot, to ask Defendant why he had parked in such a manner and to possibly see

15 if he knew anything about the report of shots being fired. To the extent that

16 Defendant contends the metropolitan court made no finding that only a single officer

17 approached the vehicle, this is a reasonable inference the metropolitan court could

18 have made from the testimony presented in support of its determination. See Soto,

19 2008-NMCA-032, ¶ 6 (stating that the “circumstances surrounding the encounter,


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 1 including the question of whether the officers used a show of authority, constitute a

 2 factual inquiry reviewed for substantial evidence”). Given these facts, we conclude

 3 that both Baldonado and Soto demonstrate a show of authority that is not present in

 4 this case and that, here, a reasonable person in Defendant’s circumstances would have

 5 felt free to leave. Thus, given the facts of this case and Defendant’s failure to meet

 6 his burden of demonstrating that the encounter was not consensual and was, in fact,

 7 a seizure, we cannot conclude that the metropolitan court’s determination that

 8 reasonable suspicion was not required was error.

 9 CONCLUSION

10        For the reasons stated above and in our notice of proposed disposition, we

11 affirm.

12        IT IS SO ORDERED.



13                                               ________________________________
14                                               CELIA FOY CASTILLO, Judge




                                             7
1 WE CONCUR:



2 ________________________________
3 JONATHAN B. SUTIN, Chief Judge



4 ________________________________
5 RODERICK T. KENNEDY, Judge




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