Office of the Director New Mexico
10:56:00 2023.05.15 Compilation
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2023-NMCA-032
Filing Date: January 18, 2023
No. A-1-CA-38836
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MELISSA ORTEGA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
YOHALEM, Judge.
{1} Defendant Melissa Ortega entered a conditional plea of guilty to a single count of
attempted trafficking of a narcotic, contrary to NMSA 1978, Section 30-31-20(A)(3)(c)
(2006). Defendant reserved her right to appeal the denial of her motion to suppress
evidence obtained from her vehicle during the course of an investigatory stop on May
24, 2019. Defendant claims that there was no reasonable suspicion of illegal activity to
justify the stop and therefore, her right to be secure against unreasonable searches and
seizures under both the Fourth Amendment to the United State Constitution and Article
II, Section 10 of the New Mexico Constitution were violated, requiring suppression of the
evidence seized. We conclude that the police officer had reasonable suspicion that
Defendant had committed the felony offense of aggravated fleeing a police officer six
weeks earlier, on April 11, 2019, contrary to NMSA 1978, Section 30-22-1.1 (2003,
amended 2022). Because the stop was justified by the officer’s reasonable suspicion
Defendant had committed a felony offense, we affirm.
BACKGROUND
I. The April 11, 2019 Flight Incident
{2} On April 11, 2019, Officer Forsberg of the Albuquerque Police Department
attempted to stop a distinctive-looking vehicle (a silver Infiniti Sedan spray-painted with
purple accents), after running a license plate search and learning that there was an
outstanding warrant for Defendant, who was the vehicle’s registered owner. Officer
Forsberg was driving a fully marked police vehicle, and he engaged its lights and sirens
in attempting to stop Defendant’s vehicle. The driver of the vehicle fled at a high rate of
speed, running multiple red lights in moderately heavy traffic. Officer Forsberg pursued
the vehicle until it entered an industrial area, where he decided it would be unsafe to
continue his pursuit. Officer Forsberg did not see the driver of the vehicle on that April
date and therefore did not know whether Defendant was driving her car.
II. The May 24, 2019 Stop
{3} About six weeks later, on May 24, 2019, Officer Forsberg saw and recognized
Defendant’s vehicle, based on its distinctive markings, as the vehicle that had fled from
his attempted stop on April 11, 2019. Officer Forsberg signaled the vehicle to pull over,
and it came to a stop. After he stopped the vehicle, Officer Forsberg ran a license and
registration check and discovered that Defendant did not have valid registration or
insurance.
{4} Officer Forsberg then approached the vehicle to investigate the April 11, 2019
incident. After asking Defendant to exit her vehicle, Officer Forsberg asked Defendant if
she was driving her vehicle on April 11, 2019. Defendant denied that she was the driver
on that date. Officer Forsberg then asked Defendant about registration and insurance,
and she admitted the vehicle was not registered or insured. In accordance with standard
operating procedure regarding uninsured vehicles, Officer Forsberg then arranged for
the vehicle to be towed. Also in accordance with standard procedure, Officer Forsberg
initiated an inventory of the contents of a vehicle in preparation for towing. During that
inventory, Officer Forsberg found a backpack containing a substantial amount of
methamphetamine. Defendant was then arrested and charged with trafficking a
narcotic.
{5} Prior to trial, Defendant moved to suppress the evidence found in the inventory of
her vehicle. She claimed that suppression of the evidence found in the search was
required because Officer Forsberg’s stop, which led to the discovery of the evidence,
was not supported by reasonable suspicion. 1
{6} Following a hearing in which Officer Forsberg was the sole witness, the district
court denied Defendant’s motion to suppress. The district court found that the April 11,
2019, flight incident was either a completed misdemeanor (resisting, evading or
obstructing an officer) or a completed felony (aggravated fleeing an officer) and that
Officer Forsberg’s suspicion that Defendant had committed either offense provided a
reasonable basis to justify the stop “given the circumstances of the incident in April
2019.”
DISCUSSION
{7} Defendant contends on appeal that the evidence in the district court was
insufficient to support the district court’s conclusion that Officer Forsberg had
reasonable suspicion that Defendant committed felony aggravated fleeing on April 11,
2019. Defendant contends that the evidence in the record supports at most reasonable
suspicion that Defendant committed misdemeanor resisting, evading or obstructing an
officer in fleeing from Officer Forsberg’s attempted stop.
{8} Most of Defendant’s brief assumes that this Court will be persuaded that the April
11, 2019, fleeing incident amounted to nothing more than misdemeanor fleeing. Relying
on this assumption, Defendant urges this Court to adopt a categorical rule that a law
enforcement officer’s suspicion that a defendant committed a completed misdemeanor
in the past can never provide constitutionally sufficient reasonable suspicion for an
investigatory stop. Still relying on the assumption that the incident of April 11, 2019, was
a misdemeanor, Defendant asks this Court to hold, in the alternative, that an officer’s
reasonable suspicion for an investigatory stop can be based on a completed
misdemeanor only when the misdemeanor presents a clear and continuing danger to
the public.
{9} Because we conclude that Officer Forsberg had reasonable suspicion that
Defendant had committed the felony offense of aggravated fleeing a law enforcement
officer on April 11, 2019, we affirm the district court’s decision denying Defendant’s
motion to suppress on this basis. We decline Defendant’s invitation to explore the
circumstances under which a completed a misdemeanor offense can provide
reasonable suspicion for an investigatory stop because that question is not relevant to
our resolution of this appeal.
I. Standard of Review
1Defendant does not pursue on appeal her claim in district court that Officer Forsberg lacked reasonable
suspicion that Defendant was driving the car for which she was the registered owner on April 11, 2019.
Defendant apparently concedes that, absent evidence to the contrary, it is reasonable for a police officer
to believe that the owner of the car is the driver. See State v. Candelaria, 2011-NMCA-001, ¶ 15,
149
N.M. 125,
245 P.3d 69.
{10} A motion to suppress evidence presents a mixed question of law and fact. State
v. Yazzie, 2016-NMSC-026, ¶ 15,
376 P.3d 858. On review, we first determine whether
there was substantial evidence to support the factual findings of the district court,
indulging all inferences in favor of the prevailing party.
Id. We review the application of
law to the facts de novo to determine if the officer had constitutionally reasonable
suspicion to justify an investigatory stop.
Id.
II. The Applicable Principles of Law
{11} First, we address Defendant’s claim that Article II, Section 10 of the New Mexico
Constitution provides increased privacy protection for individuals in automobiles. We
reject this contention. Our case law is clear that the New Mexico Constitution affords no
greater protection against investigatory traffic stops than does the Fourth Amendment of
the United States Constitution. See Yazzie, 2016-NMSC-026, ¶ 38 (“Although we have
interpreted Article II, Section 10 to provide broader protections against unreasonable
search and seizure than the Fourth Amendment in some contexts, we have never
interpreted the New Mexico Constitution to require more than a reasonable suspicion
that the law is being or has been broken to conduct a temporary, investigatory traffic
stop.” (citation omitted)). Defendant provides no basis for us to reconsider our
construction of the New Mexico Constitution. We therefore do not address this
argument further. See State v. Guerra,
2012-NMSC-014, ¶ 21,
278 P.3d 1031 (stating
that appellate courts are under no obligation to review unclear or undeveloped
arguments).
{12} The following principles of law apply to an investigatory stop under both state and
federal law. First, an investigatory stop must be justified at its inception. See Yazzie,
2016-NMSC-026, ¶ 19 (providing that the first question involved in assessing the
reasonableness of a stop is whether the stop is justified at its inception). “[An
investigatory] traffic stop is justified at its inception if supported by reasonable suspicion
that a law has been violated,” and “[a]n officer’s reasonable suspicion must be a
particularized suspicion, based on all the circumstances, that a particular individual, the
one detained, is breaking, or has broken, the law.” Id. ¶ 20 (alteration, internal quotation
marks, and citation omitted). Our Supreme Court has explained that “[w]e will find
reasonable suspicion if the officer is aware of specific articulable facts, together with
rational inferences from those facts, that, when judged objectively, would lead a
reasonable person to believe criminal activity occurred or was occurring.” State v.
Hubble,
2009-NMSC-014, ¶ 8,
146 N.M. 70,
206 P.3d 579 (internal quotation marks and
citation omitted). We emphasize that the test for reasonable suspicion is an objective
one: “The subjective belief of the officer does not in itself affect the validity of the stop; it
is the evidence known to the officer that counts, not the officer’s view of the governing
law.”
Id. (internal quotation marks and citation omitted). “If police have a reasonable
suspicion, grounded in specific and articulable facts, that a person they encounter was
involved in or is wanted in connection with a completed felony, then a Terry stop may be
made to investigate that suspicion.” United States v. Hensley,
469 U.S. 221, 229 (1985).
III. The District Court Did Not Err in Concluding That Officer Forsberg Had
Reasonable Suspicion That Defendant Had Committed Felony Aggravated
Fleeing on April 11, 2019
{13} We turn to Defendant’s claim that the district court erred in concluding that the
events of April 11, 2019, supported a reasonable suspicion that Defendant had
committed aggravated fleeing from a law enforcement officer, contrary to Section 30-22-
1.1.
{14} Section 30-22-1.1 defines the crime of aggravated fleeing a law enforcement
officer as follows:
A. Aggravated fleeing a law enforcement officer consists of a
person willfully and carelessly driving a vehicle in a manner that
endangers the life of another person after being given a visual or audible
signal to stop, whether by hand, voice, emergency light, flashing light,
siren or other signal, by a uniformed law enforcement officer . . . in pursuit
in accordance with the provisions of the Law Enforcement Safe Pursuit
Act . . . .[2]
B. Whoever commits aggravated fleeing a law enforcement officer
that does not result in injury or great bodily hard to another person is guilty
of a fourth degree felony.
{15} Defendant does not argue that the evidence is insufficient to support either the
district court’s finding that the driver of the vehicle “willfully and carelessly [drove] a
vehicle in a manner that endanger[ed] the life of another person.” Nor does Defendant
challenge the district court’s finding that the Officer Forsberg turned on his flashing
lights and signaled the vehicle to pull over, or that the driver took off at a high rate of
speed after being given that visual and audible signal to stop. Defendant claims, without
citation to authority apart from the statute itself, that Section 30-22-1.1 “requires pursuit
and Officer Forsberg acknowledged that he did not pursue [Defendant’s] car after his
unsuccessful attempt to initiate a traffic stop.”
{16} Defendant does not cite to the record to support her statement that Officer
Forsberg acknowledged that he did not pursue Defendant’s car after he signaled the car
to stop. Our review of the transcript of the suppression hearing shows that Officer
Forsberg testified that he continued to pursue Defendant’s fleeing vehicle after signaling
the vehicle to stop until Defendant’s vehicle entered an industrial area, where the
danger of continuing a high-speed chase led him to stop his pursuit. Even assuming the
statute requires pursuit after an officer’s signal to stop, an issue which we do not
2The Law Enforcement Safe Pursuit Act (LESPA) is codified at NMSA 1978, §§ 29-20-1 to -4 (2003). The
LESPA and Section 30-22-1.1 were passed as part of the same bill by the Legislature in 2003. See 2003
N.M. Laws, ch. 260, §§ 1-6.
address, this evidence satisfies the requirement for substantial evidence of “pursuit”
after the attempted stop.
{17} To the extent Defendant is arguing that a police officer must engage in a high-speed pursuit after the attempted stop in order to satisfy the statute, we agree with the
State that a high-speed pursuit by the officer is not a required element of the offense of
aggravated fleeing. Quoting our Supreme Court’s decision in State v. Vest, 2021-
NMSC-020, ¶ 29, 488 P.3d 626, the State contends that “it is the conduct of [the
defendant in] fleeing the police by driving dangerously, itself, that violates the
aggravated fleeing statute.” We agree that aggravated fleeing does not depend on
whether the officer engages in a high-speed pursuit; it is the driver’s fleeing in a manner
that endangers the lives of others that is key.
{18} Our Supreme Court has construed our aggravated fleeing statute in Vest, see id.,
and prior to Vest, in State v. Padilla,
2008-NMSC-006,
143 N.M. 310,
176 P.3d 299.
Padilla provides that “[t]he scienter requirement for aggravated fleeing is satisfied when
the defendant flees a law enforcement officer with both: (a) the knowledge that the
individual [commanding a stop] is a law enforcement officer, as designated by his [or
her] uniform and marked vehicle, and (b) the knowledge that the law enforcement officer
has signaled him [or her] to stop, either by use of a visual or audible signal.” Id. ¶ 15. If
the driver, while fleeing the law enforcement officer, “willfully and carelessly driv[es] his
[or her] vehicle in a manner that endangers the life of another,” the crime of aggravated
fleeing is complete. Section 30-22-1.1(A).
{19} In both Padilla, 2008-NMSC-006, ¶ 14, and Vest,
2021-NMSC-020, ¶ 26, our
Supreme Court specifically addressed the difference between the misdemeanor of
resisting and evading a police officer, which Defendant claims is the only offense the
evidence shows Officer Forsberg had reasonable suspicion to believe she committed on
April 11, 2019, and the felony of aggravated fleeing. Vest held that the Legislature
“elevated the misdemeanor of resisting and evading a police officer to the felony of
aggravated fleeing if a defendant evades a police officer by driving in a dangerous
manner.”
2021-NMSC-020, ¶ 26. Padilla similarly distinguishes misdemeanor fleeing
from aggravated fleeing based on the manner in which the defendant flees the officer’s
attempted stop, holding that “the Legislature created a more severe punishment, a
felony, when a person willfully and carelessly drives his vehicle in a manner that
endangers the life of another.”
2008-NMSC-006, ¶ 14 (alteration, internal quotation
marks, and citation omitted).
{20} Because the crime of aggravated fleeing does not require that the police officer
engage in a high-speed chase of a defendant, we conclude that substantial evidence in
the record supports the district court’s conclusion that Officer Forsberg had reasonable
suspicion that Defendant was driving her vehicle on April 11, 2019, and that she had
committed the felony of aggravated fleeing a law enforcement officer on that date by
fleeing Officer Forsberg’s pursuit at a high rate of speed, running multiple red lights in
moderately heavy traffic.
{21} We note that it is not disputed in this appeal that a reasonable suspicion of the
commission of a felony is sufficient to justify an investigatory stop. Therefore, Officer
Forsberg’s investigatory stop on May 24, 2019, was justified by his reasonable
suspicion that Defendant had committed the felony of aggravated fleeing a law
enforcement officer on April 11, 2019.
CONCLUSION
{22} We affirm the district court’s entry of judgment and sentence.
{23} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
MICHAEL D. BUSTAMANTE, Judge,
retired, sitting by designation
