State v. Martinez

                                                                Office of Director           New Mexico
                                                              14:43:22 2019.10.21            Compilation
                                                                           '00'06-           Commission

          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: July 25, 2019

No. A-1-CA-36069

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

LIBORIO MARTINEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeff F. McElroy, District Judge

Released for Publication October 29, 2019.

Hector H. Balderas, Attorney General
Marko D. Hananel, Assistant Attorney General
Santa Fe, NM

for Appellee

Law Offices of Adrianne R. Turner
Adrianne R. Turner
Albuquerque, NM

for Appellant

                                        OPINION

VARGAS, Judge.

{1}     Pursuant to a conditional plea agreement, Defendant Liborio Martinez appeals
the district court’s denial of his motion to suppress certain evidence discovered after he
was stopped for speeding. On appeal, Defendant argues that police engaged in an
illegal search of his vehicle when Officer Anthony Perez: (1) opened the door of
Defendant’s vehicle; and (2) broke “the plane of the car” and entered the vehicle,
transforming the traffic stop into a search that required a warrant. We conclude that,
under the circumstances of this case, the district court erred in concluding that Officer
Perez’s actions of opening Defendant’s door was not a search that required a warrant.
We therefore reverse.

BACKGROUND

{2}    Defendant’s conviction stems from a traffic stop initiated by Officer Perez. After
observing Defendant driving ten miles per hour over the speed limit, Officer Perez made
a U-turn, pulled behind Defendant’s vehicle, and activated his emergency lights.
Defendant failed to pull over for a “couple miles” over the course of approximately two
minutes, prompting Officer Perez to call for assistance. During this time, Defendant did
not noticeably increase his speed or take any action to indicate he sought to flee from
Officer Perez. Instead, Defendant appeared to maintain his speed and only increased or
decreased his speed according to the flow of traffic in front of his car.

{3}    After Defendant pulled over, Officer Perez exited his vehicle and walked toward
the rear passenger’s side of Defendant’s car. Officer Perez testified that as he
approached Defendant’s vehicle, he was unable to see whether anyone was in the back
because although it was daylight, the rear window was “dark.” Officer Perez approached
the front passenger’s side window and was able to see through that window. The
window was not rolled all the way down and he testified that he had a “narrow” point of
view. Through that window, however, he could see Defendant holding a cell phone in
one hand and trying to light a cigar or a cigarette with the other.

{4}    As he approached Defendant’s passenger’s side window, Officer Perez lowered
his head to look inside Defendant’s vehicle and initiated the following exchange:

       Perez:             How are we doing, sir?
       Defendant:         Good. You?
       Perez:             Officer Perez with State Police.
       Defendant:         Hey, how’s it going?

Approximately four seconds elapsed from the time Officer Perez lowered his head to
look inside the vehicle and the verbal exchange described above was completed. Three
seconds into the exchange, as Defendant said “Hey,” but before he asked “how’s it
going,” Officer Perez opened the front passenger’s side door of Defendant’s vehicle.
Officer Perez testified that he opened Defendant’s door so as to speak with Defendant
and prevent him from possibly fleeing. Officer Perez testified that he was unsure why
Defendant failed to stop and was initially concerned that Defendant might drive away
while Officer Perez was outside of his patrol vehicle.

{5}    After about twenty seconds of standing outside Defendant’s car with the front
passenger’s side door open, Officer Perez asked Defendant if he had been drinking.
Defendant responded that he had not, to which Officer Perez responded that he could
smell alcohol. Officer Perez testified that he first noticed an odor of alcohol after he
opened the car door. Defendant stated, “Perhaps it’s the beer in here,” to which Officer
Perez asked, “Where is it?” Officer Perez observed an unopened bottle of beer in the
back seat, instructed Defendant to exit the vehicle, initiated a DWI investigation, and
arrested him. Defendant was charged with speeding, contrary to NMSA 1978, Section
66-7-301 (2015), and aggravated driving under the influence of intoxicating liquor (DWI),
contrary to NMSA 1978, Section 66-8-102(D)(1) (2010, amended 2016).

{6}    Defendant filed a motion to suppress, which the magistrate court denied.
Defendant was found guilty of aggravated DWI and appealed to the district court.
Defendant filed a motion to suppress in the district court, arguing that Officer Perez’s
conduct in opening Defendant’s door as well as his conduct of entering the vehicle
amounted to searches, both of which required a warrant. The district court denied
Defendant’s motion. Defendant appealed to this Court pursuant to a conditional guilty
plea to the DWI charge, which reserved his right to appeal “any suppression motions[.]”

DISCUSSION

{7}    “[A]ppeals from magistrate courts are de novo.” State v. Foster, 2003-NMCA-
099, ¶ 9, 

, 

; see NMSA 1978, § 35-13-2(A) (1996) (“Appeals
from the magistrate courts shall be tried de novo in the district court.”). “In a de novo
appeal, . . . a district court conducts a new trial as if the trial in the lower court had not
occurred.” Foster, 

. When a party raises a pretrial motion in a de
novo appeal, the district court “is to make an independent determination of the merits of
the motion.” City of Farmington v. Piñon-Garcia, 

, ¶ 9, 

.

{8}     Our “review of a district court’s ruling on a motion to suppress involves a mixed
question of fact and law.” State v. Rowell, 

, 

, 

 (internal quotation marks and citation omitted). “We review the contested facts
in a manner most favorable to the prevailing party and defer to the factual findings of the
district court if substantial evidence exists to support those findings.” 

 “[W]e then
review de novo the [district] court’s application of law to the facts to determine whether
the search or seizure were reasonable.” State v. Leyva, 

, 

, 

.

{9}    The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated[.]” U.S. Const. amend. IV. Under the Fourth Amendment,
“searches and seizures must be reasonable.” State v. Bond, 

,

, 

. “Warrantless searches [and seizures] are presumed to be
unreasonable” and “[t]he [s]tate bears the burden of proving . . . reasonable[ness]. Id.
¶ 11. We note that Defendant does not challenge the legality of the traffic stop. See
Leyva, 

 (explaining that the question of whether the initial stop
was lawful is not an issue when the defendant does not contest its legality). Rather,
Defendant argues Officer Perez’s conduct in opening Defendant’s car door was a
search requiring either a warrant or justification under an exception to the warrant
requirement.
{10} The State argues that opening Defendant’s car door did not transform a lawful
detention into a search that required a warrant, relying on State v. Simpson, 2016-
NMCA-070, 

. In Simpson, an officer received a report that a male who
smelled of alcohol entered a restaurant, passed out in the restroom, left the restaurant,
got into a dark blue car, moved the car from one parking space to another, and in so
doing, almost struck several other vehicles in the parking lot. Id. ¶ 3.

{11} The officer arrived at the parking lot and approached a dark blue vehicle with
“very dark tinted windows[,]” which he confirmed was the “correct vehicle.” Id. ¶ 4
(internal quotation marks omitted). Although the dark tint prevented the officer from
seeing inside the car or determining whether it was occupied, he walked to the driver’s
side window, which was cracked a couple of inches, knocked on the car window, waited
for a response to no avail, and saw a female in the passenger seat and a man in the
back seat. Id. ¶¶ 4, 24. “There was nobody in the driver’s seat, so there was no one to
open the driver’s side window, and because of the dark tinted windows, [the officer]
could not see inside the vehicle to determine what the occupants were doing.” Id. ¶ 4.
The officer believed “the safest way to make contact with the occupants was to open the
driver’s side door.” Id.

{12} A divided panel of this Court held that the officer’s “conduct in opening the
[defendant’s car] door did not transform his lawful investigative detention into a search
that required a warrant[.]” Id. ¶ 20. Relying on State v. Lovato, 

, 

, 

, the majority concluded that “[u]nder all the circumstances
confronting [the officer], this safety precaution was reasonable and permissible under
the governing law.” Simpson, 

. Also, citing State v. Cobbs, 1985-
NMCA-105, 

, 

, the majority explained that “even when an
officer is merely investigating a traffic offense, he faces an inordinate risk when he
approaches a subject seated in an automobile[,]” and the officer may therefore “take
reasonable safety precautions while conducting investigatory detentions[.]” Simpson,

 (internal quotation marks and citation omitted).

{13} Our review of Simpson and the cases it cites reveals that the common concern
raised in each of those cases was officer safety. In Lovato, this Court concluded it was
not unreasonable for officers to open a car door after they received a report of a driveby shooting, they pulled over a car they believed to be the car described in the report,
their visibility was limited because of the late hour, they believed that either the
occupants were armed or that there was a firearm in the vehicle, three people exited the
vehicle from the front and two people exited from the back, and the officers were unsure
whether another occupant was lying on the floor of the vehicle. 

,
¶¶ 2, 33. We explained that “the officers had not yet determined that all the occupants of
the vehicle had exited the vehicle[,]” and that the officers “were still confronted with a
potential danger.” Id. ¶ 35. This Court held in Lovato that “[u]nder such circumstances,
the police were not required to forego reasonably prudent steps necessary for their own
safety[,]” and relied on Terry v. Ohio, 

 (1968) (permitting “a reasonable
search for weapons for the protection of the police officer, where he has reason to
believe that he is dealing with an armed and dangerous individual”), and Cobbs, for the
proposition that “[l]aw enforcement officers carrying out an investigatory stop are
permitted to make a limited search for weapons that might be used to harm them.”
Lovato, 

, ¶ 34.

{14} In Cobbs, this Court evaluated the constitutionality of an officer’s patdown search
of a suspect after receiving a report of “suspicious persons” and a possible residential
burglary in progress, pulling over a vehicle that left the residence involved in the
reported burglary, and ordering the suspects to exit the vehicle. 

, ¶¶ 4-
6, 18. This Court explained that the risk to an officer who approaches a subject in a
vehicle “increases immeasurably when the officer is called upon to investigate a serious
crime.” Id. ¶¶ 21-25. Thus, requiring an “officer to question the suspects before ordering
them from the car and frisking them is an untenable demand[,]” and the officer was
justified under the circumstances present in that case “in ordering the defendant out of
the car and frisking him before questioning him.” Id. ¶ 25. We further held that the right
to conduct a protective search is “automatic” when

       the suspect has been stopped upon the suspicion that he has committed,
       was committing, or was about to commit a type of crime for which the
       offender would likely be armed, whether the weapon would be used to
       actually commit the crime, to escape if the scheme went awry, or from
       protection against the victim or others involved.

Id. ¶ 34 (internal quotation marks and citation omitted). However, to conduct a
protective search upon a person suspected of a nonviolent offense, “additional
articulable facts of potential danger must be present, as well as the suspicion of criminal
activity.” Id. ¶ 35.

{15} Applying the foregoing authorities and the circumstances surrounding Officer
Perez’s conduct in opening Defendant’s car door, we are persuaded that Officer Perez’s
conduct transformed an otherwise lawful investigative detention into a search that
required a warrant. We acknowledge Officer Perez’s testimony that he was initially
concerned that Defendant might drive away, and that he was unable to see inside
Defendant’s vehicle through the rear passenger’s side window. However, we find
significant differences between the circumstances of this case and those relied upon in
Simpson. Unlike the officers in Lovato who were investigating a violent crime, Officer
Perez pulled Defendant’s vehicle over for a speeding violation. Furthermore, unlike the
officer in Simpson, who came upon an empty driver’s seat, knocked on the window with
no response, saw a male in the back seat during an investigation for a male DWI
suspect and testified that the “safest way to make contact with the occupants was to
open the driver’s side door,” Simpson, 

, Officer Perez’s
overarching concern when he opened Defendant’s door was to “get inside,” have a
conversation, and possibly take Defendant’s keys. Unlike the officer in Simpson, Officer
Perez did not have difficulty making contact with Defendant when he approached the
vehicle, yet he opened the door to Defendant’s vehicle within three seconds of his initial
contact.
{16} To the extent that the State cites Pennsylvania v. Mimms, 

(1977), for the analogous proposition that an officer may, for reasons of officer safety,
order a driver to get out of the car, we are not presented with a case wherein the officer
took action out of concern for his safety. Nor do the circumstances leading up to and
culminating in Officer Perez’s opening of Defendant’s car door support an objectively
reasonable belief that Defendant posed a threat to Officer Perez’s safety. See Leyva,

 (explaining that a protective search of a stopped vehicle for
reasons of officer safety “must be based upon the objectively reasonable belief that the
individuals stopped pose a threat to officer safety”); cf. 

 ¶ 61 n.9 (“Even if [the officer]
himself had not discredited any attempt to include [the defendant’s] delay in pulling over
after the emergency lights had been activated, we would not find this factor especially
weighty in the reasonable suspicion analysis.”). Thus, the present case is
distinguishable from Mimms, Lovato, and Simpson.

{17} Insofar as the district court based its ruling on the possibility that Defendant
would flee because he failed to stop for an extended period of time, the State has not
cited authority to support the proposition that the possibility of a motorist’s flight in his or
her vehicle during a traffic stop provides a basis to open the door to a defendant’s
vehicle without a warrant or without some other justification under an exception to the
warrant requirement. See Bond, 

 (explaining that “[t]he [s]tate
bears the burden of proving that a warrantless search or seizure is reasonable”).
Indeed, under the facts of this case, we cannot conclude that Officer Perez reasonably
believed that Defendant would flee after pulling his vehicle over. See State v. Garcia,

, 

, 

 (explaining that “[the appellate courts]
may uphold a search or seizure if the facts known to the officer, viewed objectively,
would provide valid constitutional grounds for the officer’s actions”). We acknowledge
that Defendant failed to pull over for a “couple miles” over the course of approximately
two minutes, and that Officer Perez called for assistance during that time. However,
neither Officer Perez’s testimony nor his dash-cam video indicate that Defendant
increased his speed or otherwise took evasive measures after Officer Perez activated
his emergency lights. Rather, Defendant appeared to either maintain or adjust his speed
according to the flow of traffic. Furthermore, neither Officer Perez’s testimony nor his
dash-cam video reveal any actions by Defendant after pulling his car over that would
demonstrate he might drive away. In fact, when Officer Perez approached Defendant’s
car, he found him holding his cell phone in one hand and trying to light a cigar or
cigarette with the other, and neither of those actions suggest that Defendant was
planning to drive away. Accordingly, we cannot conclude that the facts of this case give
rise to a reasonable belief that Defendant would flee after pulling over.

{18} We conclude that under the circumstances of this case the State failed to present
evidence of “additional articulable facts of potential danger . . . as well as the suspicion
of criminal activity” to support a protective search as part of Defendant’s traffic stop.
Cobbs, 

, ¶ 35. Officer Perez’s conduct in opening Defendant’s car door
amounted to a search that required a warrant. See State v. Cleave, 

,
¶ 11, 

, 

 (“A search is an intrusion on a person’s reasonable
expectation of privacy.” (internal quotation marks and citation omitted)); see also
McHam v. State, 

 (S.C. 2013), (“[We h]old the opening of the door of
an occupied vehicle is an intrusion, however slight, that generally constitutes a search
for purposes of the Fourth Amendment. In such cases, a search results based on the
fact that it enables the officer to observe portions of the interior of the vehicle that would
not otherwise be readily visible to those who are outside the vehicle.”), abrogated on
other grounds by Smalls v. State, 

, 839 n.2 (S.C. 2018). As we have
explained above, “[w]arrantless searches are presumed to be unreasonable . . . [and
t]he [s]tate bears the burden of proving . . . reasonable[ness].” Bond, 

 (citation omitted). “[T]o prove that a warrantless [search or] seizure is reasonable,
the [s]tate must prove that it fits into an exception to the warrant requirement.” 

(internal quotation marks and citation omitted).

{19} “The Fourth Amendment allows a warrantless search of an automobile and of
closed containers found within an automobile when there is probable cause to believe
that contraband is contained therein.” State v. Bomboy, 

, 

, 

; see California v. Acevedo, 

 (1991) (“The police
may search an automobile and the containers within it where they have probable cause
to believe contraband or evidence is contained.”); United States v. Ross, 

 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.”). The State has not argued, nor does our review of the evidence
demonstrate, that Officer Perez had probable cause to believe contraband or evidence
was contained in Defendant’s vehicle at the time he opened the door. Nor does the
State argue Officer Perez’s search fits into any of the other “[r]ecognized exceptions to
the warrant requirement[; i.e.,] exigent circumstances, searches incident to arrest,
inventory searches, consent, hot pursuit, open field, and plain view.” Bond, 2011-
NMCA-036, ¶ 11 (internal quotation marks and citation omitted). We therefore conclude
that Officer Perez’s warrantless search of Defendant’s vehicle was unreasonable and
impermissible under the Fourth Amendment. Accordingly, we need not proceed to
Article II, Section 10 of the New Mexico Constitution. See State v. Ketelson, 2011-
NMSC-023, ¶ 10, 

, 

 (requiring that under our interstitial
approach, “we first consider whether the right being asserted is protected under the
federal constitution. . . . If the right is protected by the federal constitution, then the state
constitutional claim is not reached.” (internal quotation marks and citation omitted)).
Furthermore, in light of our holding, we need not address whether Officer Perez, or any
portion of his body, actually entered Defendant’s vehicle.

Inevitable Discovery

{20} The State argues that even if opening Defendant’s door was an unlawful search,
the inevitable discovery doctrine permits the admission of any evidence obtained as a
result of such conduct. “The inevitable discovery doctrine is an exception to the
exclusionary rule.” State v. Romero, 

, 

, 

. “Application of this doctrine permits the admission of unlawfully seized evidence if
that evidence would have been seized independently and lawfully in due course.” 

This “doctrine applies where evidence that was obtained through unlawful police
conduct inevitably would have been otherwise discovered through a different and
independent means.” State v. Haidle, 

, 

. “For the
doctrine to apply, the alternate source of evidence must be pending, but not yet
realized.” Romero, 

. The State bears the burden “to prove by a
preponderance of the evidence that absent the illegal search, the [evidence] would have
been discovered by independent and lawful means.” 

{21} In arguing that the evidence obtained as a result of opening Defendant’s door—
namely the detection of the odor of alcohol—would have been discovered through
different and independent means, the State argues “Officer Perez would have smelled
alcohol while continuing to interact with Defendant as part of the speeding
investigation.” A brief period of time passed before Officer Perez detected the odor of
alcohol with the door open, and thus, according to the State, “it is more likely than not
that Officer Perez would have made the same observation over the minutes it would
have taken to complete the detention for speeding.” Here, the State appears to confuse
possibility with inevitability. We are not tasked with speculating as to whether Officer
Perez could have detected the odor of alcohol had he continued with his traffic
investigation, but rather whether he would have obtained such evidence through lawful
means wholly independent of his illegal actions. See Haidle, 

. We
therefore find the State’s argument unavailing.

CONCLUSION

{22} For the foregoing reasons, we reverse the district court’s denial of Defendant’s
motion to suppress, and remand to the district court to permit Defendant to withdraw his
conditional plea. See State v. Jean-Paul, 

, 

(permitting the defendant to withdraw her conditional plea after prevailing on her appeal
of the district court’s denial of her motion to suppress).

{23}   IT IS SO ORDERED.

JULIE J. VARGAS, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

CYNTHIA A. FRY, Judge Pro Tempore