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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 30,367

 5 TONY ALLEN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G.W. Shoobridge, District Judge

 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Jacqueline R. Medina, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Jacqueline L. Cooper, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 FRY, Judge.
 1        Defendant Tony Allen appeals his convictions for possession of drug

 2 paraphernalia and possession of a controlled substance. He raises four issues on

 3 appeal. He contends that the trial court erred in denying his motion to suppress

 4 evidence on the basis that the underlying traffic stop was pretextual and impermissibly

 5 expanded. Defendant further argues that his trial counsel was ineffective and that the

 6 district court erred in not dismissing the charges due to the State’s failure to timely

 7 disclose a dashcam video of the incident. Because we conclude that the stop was

 8 neither pretextual nor impermissibly expanded, that Defendant did not make a prima

 9 facie claim of ineffective assistance of counsel, and that the district court properly

10 cured the State’s failure to timely disclose the dashcam video, we affirm.

11 BACKGROUND

12 The Traffic Stop

13        On the night of August 4, 2008, while on burglary patrol, Sergeant Nathan

14 Walker of the Hobbs Police Department observed Defendant driving with a broken

15 headlight and initiated a traffic stop. Sergeant Walker approached the vehicle and

16 requested Defendant’s license and registration. Sergeant Walker then returned to his

17 vehicle and ran Defendant’s name through dispatch to check whether Defendant had

18 any outstanding warrants.




                                              2
 1        Soon after, Deputy John Martinez of the Lea County Sheriff’s Department

 2 joined Sergeant Walker at the scene after hearing Defendant’s name over the radio

 3 during the warrant check. Deputy Martinez testified that he was only a few blocks

 4 away from the stop and drove to the scene because he wanted to talk to Defendant

 5 about a separate investigation and possibly enlist Defendant as a confidential

 6 informant. Upon arriving at the scene, Deputy Martinez received Sergeant Walker’s

 7 permission to speak with Defendant. Deputy Martinez then approached Defendant’s

 8 vehicle and asked him to step out. Defendant exited the vehicle and walked with

 9 Deputy Martinez to the back of Sergeant Walker’s patrol unit to discuss the separate

10 investigation.

11        While it is unclear from the testimony at trial, at some point between Deputy

12 Martinez’s arrival on the scene and Defendant’s discussion with Deputy Martinez,

13 dispatch notified Sergeant Walker that Defendant had a “hit” for an outstanding

14 warrant. Sergeant Walker then handcuffed Defendant and told him that he was being

15 detained pending confirmation of the warrant. Deputy Martinez asked Defendant

16 whether he “had anything” on him, and Defendant responded that he had a “meth

17 pipe” in his pocket. Neither officer retrieved the pipe from Defendant’s pocket.

18 Instead, Sergeant Walker asked Officer Stanley Jordan, who had arrived on the scene

19 to assist Sergeant Walker in accordance with police department procedures regarding


                                            3
 1 nighttime traffic stops, to detain Defendant in his patrol unit until the warrant could

 2 be confirmed.

 3        According to Officer Jordan’s testimony, as he escorted Defendant to his patrol

 4 unit, Officer Jordan asked Defendant whether he had knives, guns, or “anything that

 5 would poke” the officer. Defendant told Officer Jordan that he had a glass pipe in his

 6 front pocket. Officer Jordan retrieved the pipe from Defendant’s pocket, recognized

 7 it as a pipe used to smoke methamphetamine, and placed Defendant under arrest for

 8 possession of drug paraphernalia. Officer Jordan then began searching Defendant’s

 9 other pockets and testified that as he did so, Defendant began fidgeting with his right

10 front pocket. Officer Jordan then testified that he saw Defendant drop a clear plastic

11 bag containing a “crystalline substance” on the ground as Officer Jordan was placing

12 Defendant in his patrol unit. Officer Jordan retrieved the bag and tested the crystalline

13 substance using a field test kit. The crystalline substance tested positive for the

14 presence of methamphetamine.

15        Defendant was charged with possession of a controlled substance and

16 possession of drug paraphernalia. However, Defendant was neither issued a citation

17 for the headlight violation, nor arrested in connection with the outstanding warrant

18 because it was later shown to be invalid.

19 Procedural History


                                               4
 1        Defendant’s trial was initially scheduled for April 16, 2009. On the morning

 2 of trial, Defendant moved for dismissal on the basis that the State had withheld

 3 exculpatory evidence, namely Sergeant Walker’s dashcam video of the incident.

 4 Rather than dismiss the case, the district court ordered the State to produce the video

 5 or show that no video existed and rescheduled the trial for October 19, 2009. The

 6 prosecution subsequently located and produced a copy of the video to Defendant.

 7        The trial commenced in October. Following jury selection, Defendant, for the

 8 first time, moved to suppress evidence connected with the stop, arguing that the stop

 9 was pretextual under State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143.

10 The district court expressed reservation at the untimeliness of Defendant’s motion but

11 permitted Defendant to develop facts during trial that might support a finding of a

12 pretext.

13        During the State’s case in chief, the State sought to admit both the pipe and the

14 methamphetamine recovered from Defendant. Defendant objected to the admission

15 of the pipe on the chain of custody grounds, but did not raise any objections to the

16 State’s admission of evidence on the basis of Ochoa. Following conclusion of the

17 State’s case, Defendant renewed his motion to suppress under Ochoa and further

18 argued that Deputy Martinez impermissibly expanded the scope of the initial stop by

19 asking Defendant to exit the vehicle to discuss the unrelated investigation. The


                                              5
 1 district court denied the motions both on the merits and because the motions were

 2 untimely. Defendant again renewed the motion to suppress following the conclusion

 3 of Defendant’s case, and the district court again denied the motion. Defendant was

 4 subsequently convicted on both counts and now appeals.

 5 DISCUSSION

 6        Defendant raises four arguments on appeal. He argues that the court erred in

 7 denying the motion to suppress because the stop was both pretextual under Ochoa,

 8 2009-NMCA-002, and impermissibly expanded beyond its initial scope in violation

 9 of the Fourth Amendment of the United States Constitution and the N.M. Const., art.

10 II, § 10. Defendant further argues that if we conclude that his trial counsel did not

11 preserve an argument under the New Mexico Constitution in regard to the alleged

12 expansion of the traffic stop, then we should also conclude that he received ineffective

13 assistance of counsel. Finally, Defendant argues that the court erred in not dismissing

14 the charges against Defendant, or alternatively, in admitting Sergeant Walker’s

15 dashcam video, due to the State’s failure to timely produce the video to the defense

16 under the rule announced in Brady v. Maryland, 373 U.S. 83, 87 (1963).

17 Standard of Review

18        A district court’s ruling on a motion to suppress presents a mixed question of

19 law and fact. Therefore, we apply a two-part review to a district court’s decision


                                              6
 1 regarding a motion to suppress. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176,

 2 164 P.3d 57. We review any factual questions under a deferential substantial evidence

 3 standard, and we review the application of the law to the facts de novo. Id. In so

 4 doing, “we review the facts in the light most favorable to the . . . district court’s

 5 factual findings so long as substantial evidence exists to support those findings.” Id.

 6 Preservation

 7        As an initial matter, we must first address the State’s argument that Defendant’s

 8 acquiescence to the admission of evidence in the State’s case in chief constituted a

 9 waiver of the claims he now asserts on appeal. Defendant raised his argument under

10 Ochoa for the first time following jury selection and his argument regarding the

11 expansion of the traffic stop during his renewed motion to suppress after conclusion

12 of the State’s case in chief. The district court deferred ruling on the motion to

13 suppress under Ochoa until Defendant was given an opportunity to lay a factual

14 predicate that would support a finding of pretext. The district court ultimately denied

15 the motions to suppress on both the merits and the untimeliness of the motions.

16 However, since we conclude that there was not a sufficient factual predicate

17 developed to support a finding of pretext and that the length of the traffic stop was not

18 measurably extended beyond the time needed for Sergeant Walker to confirm whether




                                               7
 1 Defendant’s warrant was valid, we assume without deciding that Defendant preserved

 2 these issues for appeal.

 3 Pretext

 4        In Ochoa, this Court held that pretextual stops are unconstitutional under

 5 Article II, Section 10 of the New Mexico Constitution and that evidence obtained

 6 from a search incident to a pretextual stop should therefore be suppressed. Ochoa,

 7 2009-NMCA-002, ¶ 42. Under the totality of the circumstances test we adopted, we

 8 explained that the district court must first determine whether there was reasonable

 9 suspicion or probable cause for the stop and then decide if the officer’s actual motive

10 for the stop was unrelated to the initial justification for the stop. Id. ¶ 40. The burden

11 of proof then shifts to the defendant to show pretext based on the totality of the

12 circumstances. Id. “If the defendant has not placed substantial facts in dispute

13 indicating pretext, then the seizure is not pretextual.” Id. Where the defendant does

14 show sufficient facts indicating an unrelated motive for the stop unsupported by

15 reasonable suspicion or probable cause, a rebuttable presumption arises that the stop

16 was pretextual. Id. The State can rebut this presumption by establishing, based on the

17 totality of the circumstances, that the officer would have stopped the defendant

18 regardless of the unrelated motive. Id. A district court’s totality of the circumstances




                                               8
 1 determination includes “considerations of the objective reasonableness of an officer’s

 2 actions and the subjective intent of the officer—the real reason for the stop.” Id. ¶ 39.

 3        In this case, Sergeant Walker’s undisputed testimony at trial was that Defendant

 4 was driving with a broken headlight on the night he was pulled over. Therefore, the

 5 State met its burden of establishing that Sergeant Walker had reasonable suspicion

 6 that Defendant was committing a traffic violation. See NMSA 1978, § 66-3-802

 7 (1978).

 8        Defendant argues, however, that Sergeant Walker’s real motivation for the stop

 9 was to allow Deputy Martinez an opportunity to question Defendant in an unrelated

10 burglary investigation. In support of this contention, Defendant points to a number

11 of facts: (1) Defendant was asked to step out of the vehicle before dispatch alerted

12 Sergeant Walker of a possible warrant, (2) Defendant was never cited for the headlight

13 violation, (3) the number of police cars that descended on an otherwise “simple traffic

14 stop,” (4) Sergeant Walker was on a special burglary patrol assignment that evening,

15 and (5) Sergeant Walker was not in his usual police issued uniform. As explained

16 below, we are unpersuaded that these facts, in light of the totality of the

17 circumstances, were sufficient to support a finding of pretext.

18        At trial, Sergeant Walker testified that the only reason he pulled Defendant over

19 was for the broken headlight.        Sergeant Walker’s dashcam video shows him


                                               9
 1 immediately initiate the traffic stop after observing Defendant drive by. Furthermore,

 2 while Sergeant Walker was on a special burglary assignment that evening and

 3 therefore not in his usual uniform, he was still patrolling in a marked police vehicle

 4 and attired in a department issued bullet-proof vest with “Hobbs Police Department”

 5 written on the front and back. Of particular importance, however, is the absence of

 6 any testimony at trial indicating that Deputy Martinez requested Sergeant Walker to

 7 initiate the traffic stop or that Sergeant Walker was even aware that Defendant was the

 8 driver of the vehicle and wanted for questioning in an unrelated investigation.

 9 Without establishing that Sergeant Walker had an unrelated motive at the time of the

10 stop, we are unable to conclude that Sergeant Walker’s stop was pretextual. Therefore,

11 viewing the facts in the light most favorable to the district court’s ruling, we conclude

12 that Defendant did not present a sufficient factual predicate entitling him to a finding

13 of pretext.

14 Expansion of the Traffic Stop

15 Defendant Failed to Preserve His Argument Under the New Mexico Constitution

16        As recently clarified in State v. Leyva, a defendant must properly preserve an

17 argument under our state constitution in order for us to consider it on appeal. 2011-

18 NMSC-009, ¶ 36, 149 N.M. 435, 250 P.3d 861. Where, as here, the defendant is

19 seeking the broader protections afforded defendants against unreasonable searches and


                                              10
 1 seizures under Article II, Section 10, we must first determine whether the defendant

 2 properly preserved this argument below. See State v. Ketelson, 2011-NMSC-023, ¶

 3 10, 150 N.M. 137, 257 P.3d 957 (stating that “as an initial matter, we must determine

 4 whether our analysis is confined to the Fourth Amendment or whether [the d]efendant

 5 properly preserved his argument under Article II, Section 10”). We conclude that

 6 Defendant did not.

 7        The first time Defendant raised his argument regarding the impermissible

 8 expansion of the traffic stop was during his renewed motion to suppress at the close

 9 of the State’s case in chief. It is undisputed that Defendant did not cite, or even

10 mention, the New Mexico Constitution in support of his motion. Rather, Defendant

11 relied on City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954

12 P.2d 93, overruled by Leyva, 2011-NMSC-009. Haywood involved a suppression

13 claim under the Fourth Amendment of the United States Constitution, not under

14 Article II, Section 10 of the New Mexico Constitution. Haywood, 1998-NMCA-029,

15 ¶¶ 2, 9. At the time of Defendant’s trial, and when Haywood was decided, New

16 Mexico courts interpreted both the federal and state constitutional provisions to

17 prohibit police officer questioning on matters not reasonably related to the

18 circumstances justifying the stop. Id. ¶ 15. However, in Levya, 2011-NMSC-009,

19 ¶ 17, our Supreme Court recognized that beginning in 2005 and reaching fruition in


                                            11
 1 2009, the United States Supreme Court adopted a bright-line approach to investigative

 2 detentions which focused on the length of detention and not on the subject of the

 3 questioning. See Ariz. v. Johnson, 555 U.S. 323, 333 (2009); Muehler v. Mena, 544

 4 U.S. 93, 100-01 (2005). Thus, while New Mexico had not explicitly recognized this

 5 change in federal law at the time of Defendant’s trial, the federal Fourth Amendment

 6 analysis had clearly departed from New Mexico precedent regarding our state

 7 constitutional analysis of investigative detentions. Therefore, since Defendant failed

 8 to “assert[] the constitutional principle that provides the protection sought under the

 9 New Mexico Constitution,” Leyva, 2011-NMSC-009, ¶ 40 (internal quotation marks

10 and citation omitted), Defendant has failed to preserve his arguments under Article II,

11 Section 10 of the New Mexico Constitution. We accordingly review his arguments

12 under the federal Fourth Amendment analysis the United States Supreme Court had

13 adopted at the time of Defendant’s trial. See Leyva, 2011-NMSC-009, ¶ 49 (“Where

14 a state constitutional provision has previously been interpreted more expansively than

15 its federal counterpart, trial counsel must develop the necessary factual base and raise

16 the applicable constitutional provision in trial court.”).

17 Fourth Amendment

18        “The Fourth Amendment guarantees the right of the people to be free from

19 unreasonable searches and seizures.” Id. ¶ 8. “It is well established that the initiation


                                              12
 1 of a traffic stop constitutes a seizure of the vehicle’s occupants.” See State v. Portillo,

 2 2011-NMCA-079, ¶ 12, 150 N.M. 187, 258 P.3d 466, cert. denied, 2011-NMCERT-

 3 006, 150 N.M. 764, 266 P.3d 633. However, “[a]n officer’s continued detention of

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

 5 unjustifiably expands the scope of the detention.” State v. Funderburg, 2008-NMSC-

 6 026, ¶ 14, 144 N.M. 37, 183 P.3d 922. In determining whether an officer has

 7 impermissibly expanded the scope of a detention under the Fourth Amendment, the

 8 proper inquiry is “whether an officer’s traffic stop questions extended the time that a

 9 driver was detained, regardless of the questions’ content” beyond the time needed to

10 investigate the circumstances that initially justifed the stop. Leyva, 2011-NMSC-009,

11 ¶¶ 17, 19 (internal quotation marks and citations omitted); see id. ¶ 15 (stating that

12 “unrelated questions are permitted so long as they do not measurably extend the length

13 of the stop” (internal quotation marks and citation omitted)). While the content of an

14 officer’s questioning is not examined under this standard, “[e]xtended detentions

15 caused by questioning unrelated to the initial purpose of the stop continue to violate

16 the Fourth Amendment.” Id. ¶ 22.

17        Following the traffic stop, Sergeant Walker obtained Defendant’s license and

18 ran a wants and warrant check as part of his investigation into the traffic violation.

19 A check for outstanding warrants is considered to be within the scope of a valid traffic


                                               13
 1 stop. See State v. Rubio, 2006-NMCA-067, ¶ 14, 139 N.M. 612, 136 P.3d 1022

 2 (“After obtaining [license, registration, and insurance] documents, the officer may

 3 lawfully run a computer check, directly or indirectly by contacting dispatch . . . . We

 4 have stated that this check may include a wants and warrants check.” (citations

 5 omitted)). Deputy Martinez then approached Defendant and asked him to exit the

 6 vehicle while Sergeant Walker was checking on Defendant’s status. Defendant

 7 argued at trial that it was an impermissible extension of the stop to ask him to exit the

 8 vehicle to discuss the unrelated investigation. However, because we do not look to

 9 the actual questions asked but whether the stop was measurably extended by the

10 unrelated questions, our focus here remains on the length of time Defendant was

11 detained in order for Sergeant Walker to confirm whether Defendant’s warrant “hit”

12 was valid. Importantly, it was as a result of this detention to confirm the warrant, not

13 Deputy Martinez’s questions, that Defendant was detained at the scene and admitted

14 to possessing the drug pipe. Thus, because Defendant would have been properly

15 detained pending the warrant confirmation, we conclude that Deputy Martinez’s

16 actions in requesting that Defendant exit the vehicle to discuss the unrelated

17 investigation did not measurably extend the length of Defendant’s detention.

18 Ineffective Assistance of Counsel




                                              14
 1        Defendant argues that his trial counsel’s failure to properly preserve

 2 Defendant’s rights under the New Mexico Constitution constitutes ineffective

 3 assistance of counsel. We review a claim for ineffective assistance of counsel de

 4 novo. State v. Boergadine, 2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d 532. In

 5 order to establish a prima facie claim for ineffective assistance of counsel, the

 6 defendant must show that (1) counsel’s performance was deficient in that it fell below

 7 an objective standard of reasonableness; and (2) he suffered prejudice in that there is

 8 a “reasonable probability that, but for counsel’s unprofessional errors, the result of the

 9 proceeding would have been different.” Patterson v. LeMaster, 2001-NMSC-013, ¶¶

10 19, 28, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citation omitted).

11        On the basis of the record before us, we are not persuaded that Defendant has

12 established a prima facie claim of ineffectiveness. A defendant must affirmatively

13 prove prejudice. State v. Quiñones, 2011-NMCA-018, ¶ 30, 149 N.M. 294, 248 P.3d

14 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. Defendant

15 supports his assertion of prejudice by merely stating that had trial counsel properly

16 cited to the New Mexico Constitution, “it is likely, based on the facts available from

17 the testimony at trial [, he] would have prevailed.” Without more, we are unable to

18 conclude that trial counsel’s actions prejudiced Defendant, especially where, at the

19 time of Defendant’s trial, our own Supreme Court had not yet formally recognized the


                                               15
 1 recent changes in federal Fourth Amendment analysis. In concluding that Defendant

 2 has not made a prima facie claim of ineffectiveness, we do not preclude Defendant

 3 from pursuing his claim through habeas corpus proceedings. See State v. Bernal,

 4 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146 P.3d 289 (rejecting the defendant’s

 5 ineffectiveness assistance of counsel claim but stating that the defendant could pursue

 6 a habeas corpus proceeding “should he be able to garner evidence to support his

 7 claims”).

 8 The State’s Failure to Disclose the Dashcam Video

 9        Pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and

10 State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant

11 argues that the district court erred in failing to dismiss the charges against him

12 following the State’s failure to timely disclose Sergeant Walker’s dashcam video. We

13 review a district court’s decision with regard to discovery for abuse of discretion.

14 State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701.

15        In determining whether late disclosure of evidence requires reversal, we

16 consider the following factors: “(1) whether the [s]tate breached some duty or

17 intentionally deprived the defendant of evidence[,] (2) whether the improperly non-

18 disclosed evidence was material[,] (3) whether non-disclosure of the evidence




                                             16
 1 prejudiced the defendant[,] and (4) whether the [district] court cured the failure to

 2 timely disclose the evidence.” Id. ¶ 8 (internal quotation marks and citation omitted).

 3        In response to Defendant’s motion to dismiss the charges, the district court

 4 vacated the original trial date of April 16, 2009, and ordered a continuance until

 5 October 19, 2009, during which time the state located and produced a copy of the

 6 video. Thus, even if the State failed to initially provide the video in a timely manner,

 7 we conclude that the district court did not abuse its discretion in granting a

 8 continuance to cure the State’s late disclosure, especially where Defendant had over

 9 five months to review the video and prepare for trial. Rule 5-505(B) NMRA (stating

10 that a continuance is among the proper means of curing a late disclosure of evidence).

11        Defendant further argues that the district court erred in admitting the dashcam

12 video at trial. Since Defendant himself moved for the video’s admission, we will not

13 consider this claim of error on appeal. See State v. Urioste, 2011-NMCA-121, ¶ 44,

14 267 P.3d 820 (stating that the “invited error provides no grounds for appeal”).

15 CONCLUSION

16        For the foregoing reasons, we affirm Defendant’s convictions.

17        IT IS SO ORDERED.




18

                                              17
1                            CYNTHIA A. FRY, Judge

2 WE CONCUR:


3
4 JAMES J. WECHSLER, Judge


5
6 TIMOTHY L. GARCIA, Judge




                              18
