State v. Buecker

                                                                      Office of the
                                                                                            New Mexico
                                                                          Director          Compilation
                                                                                            Commission
                                                                       2023.12.22
                                                                  '00'07- 14:13:20
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 18, 2023

No. A-1-CA-39288

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

KOREY BUECKER a/k/a KOREY
WILSON BUECKER,

      Defendant-Appellant.

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

Raúl Torrez, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

ATTREP, Chief Judge.

{1}    Following a conditional plea, Defendant Korey Buecker appeals the district
court’s denial of his motion to suppress. Defendant argues the district court erred by
denying his suppression motion on two grounds. First, Defendant contends he was
subjected to a de facto arrest without probable cause. Specifically, Defendant
challenges his lengthy detention in a patrol car with handcuffs while a limited number of
law enforcement officers conducted a nighttime investigation of gunshots fired and a
roving domestic violence incident. Considering the totality of the circumstances—
including that probable cause for Defendant’s arrest arose within ten minutes of the
challenged detention—we conclude the intrusion upon Defendant’s Fourth Amendment
right to privacy was outweighed by the government’s substantial justification for the
intrusion. We accordingly affirm the district court’s determinations that Defendant’s
detention was reasonable and he was not subjected to an unlawful de facto arrest.
Second, Defendant contends the waiver of his rights pursuant to Miranda v. Arizona,

 (1966), and his confession were not voluntary. Because Defendant has
not advanced a developed or well-supported argument why the district erred, and we
are otherwise satisfied that Defendant’s waiver and confession were voluntary, we
affirm the district court on this basis as well.

BACKGROUND

{2}     The following background is derived from the facts as found by the district court
after the suppression hearing, which Defendant does not challenge, as well as officer
testimony at the suppression hearing and various lapel camera footage received by the
district court. See Rule 12-318(A)(4) NMRA (providing that the brief in chief “shall set
forth a specific attack on any finding, or the finding shall be deemed conclusive”); State
v. Lopez, 

, 

, 

 (providing that in the
absence of findings from the district court, “we must draw from the record to derive
findings based on reasonable facts and inferences and determine whether those facts
and inferences support the conclusion reached by the court” (internal quotation marks
and citation omitted)).

{3}     Officers Jorge Soriano and Crystal Marin of the Hobbs Police Department
responded to a nighttime report of a “roving domestic” involving a woman yelling out of
a truck pulling a box trailer in the 1300 block of East Llano Drive in Hobbs, New Mexico.
Upon arriving, the officers did not find a woman or a truck. Shortly thereafter, the
officers responded to another call—this time reporting gunshots in the 1300 block of
East Green Acres Drive, only a couple of streets away. Driving down East Green Acres
Drive, the officers saw an unoccupied truck with a box trailer parked in the road in front
of a house but still running. The officers then saw Defendant emerge from the side yard
of the house. Upon being approached and told that he was going to be patted down,
Defendant stated that he had two knives on his person. The officers recovered the two
knives, but no firearm.

{4}     After being told that the officers were investigating a report of shots fired,
Defendant said that he too had heard the shots. Defendant then gave confusing and
contradictory answers to the officers’ questions about the truck. Defendant told the
officers that the truck belonged to his father, but denied driving the truck. Defendant
claimed his father had been driving the truck, but when asked where his father was,
Defendant responded that he should be at home in another part of the city. Defendant
then claimed not to know who had been driving the truck or how it had gotten to the
house on East Green Acres Drive. Officer Marin explained that the situation was “very
concerning” given the report of a possible domestic involving Defendant’s father’s truck
followed shortly thereafter by a report of gunshots in the area.
{5}    Meanwhile, other officers had arrived and begun investigating, searching in the
dark with flashlights, apparently for shell casings, gunshot victims, and/or witnesses.
One officer spoke with a neighbor who stated he heard gunshots and then saw a
woman run into the house on East Green Acres Drive and a man run to the side of the
house. Around this time, a shell casing was found in the yard of the house on East
Green Acres Drive, where officers had located Defendant. The district court found,
“Following [the] spent casing being discovered, Officer Soriano made the decision that
due to the nature of the separate calls about a roving domestic and shots fired,
Defendant would be handcuffed in the back of his patrol car for the pendency of the
investigation.” Officer Soriano explained to Defendant that he needed to help out with
the investigation in order to expedite it.

{6}     After detaining Defendant in the backseat of his patrol car, Officer Soriano called
in the license plate of the truck to dispatch and joined in the search. A little over eight
minutes later, Officer Soriano spoke on the telephone with the registered owner of the
truck, Defendant’s father, who informed Officer Soriano that his truck was missing, that
his son did not have permission to be driving it, that there were two firearms in the truck,
and that he wanted to report the truck as stolen and to press charges. By this point,
Defendant had been handcuffed and in the backseat of Officer Soriano’s patrol car for
just over ten minutes.

{7}    Approximately forty-five minutes after Defendant was handcuffed and placed in
the patrol car, Detective Ahmaad White began speaking with Defendant. Following an
advisement of rights under Miranda, Defendant confessed to taking his father’s truck
without permission and discharging his father’s 9 mm handgun, which was missing from
the truck. After explaining to Defendant’s parents, who were on scene by this time, that
Defendant faced charges for unlawful taking of a motor vehicle, negligent discharge of a
firearm, and possession of a firearm by a felon, Detective White formally arrested
Defendant—approximately one hour after Defendant was handcuffed and placed in the
patrol car.

{8}    In the instant case, Defendant was charged with possession of a firearm by a
felon (NMSA 1978, § 30-7-16(A)(1) (2019, amended 2022)) and negligent use of a
firearm (NMSA 1978, § 30-7-4(A)(1) (1993)). Defendant moved to suppress his
confession on the grounds that, inter alia, he was subjected to a de facto arrest not
supported by probable cause when he was handcuffed and placed in the back of the
patrol car for nearly an hour, and his Miranda waiver and confession were involuntary.
Following the district court’s denial of his motion and subsequent motion to reconsider,
Defendant conditionally pled guilty to both crimes, reserving his right to appeal.

DISCUSSION

{9}     A district court’s ruling on a motion to suppress evidence presents a mixed
question of fact and law. State v. Skippings, 

, 

. “We
view the facts in the light most favorable to the [s]tate as the prevailing party, indulging
all reasonable inferences in support of the district court’s ruling and disregarding all
evidence and inferences to the contrary.” State v. Pacheco, 

, 

, 

. We review de novo the district court’s application of the law to
the facts. Skippings, 

. We additionally bear in mind that “it is the
appellant’s burden to demonstrate, by providing well-supported and clear arguments
that the district court has erred.” State v. Johnson, ___-NMCA-___, ¶ 38, ___ P.3d ___
(A-1-CA-39367, June 30, 2023) (alteration, internal quotation marks, and citation
omitted)); see also State v. Aragon, 

, 

, 

 (explaining that “it is [the d]efendant’s burden on appeal to demonstrate any
claimed error below” given the presumption of correctness we accord the district court’s
rulings).

I.      De Facto Arrest

{10} Defendant does not contest that reasonable suspicion supported his detention,
but argues that handcuffing and placing him in the back of a patrol car for nearly an
hour transformed his lawful detention into a de facto arrest not supported by probable
cause. The Fourth Amendment to the United States Constitution provides protection
against unreasonable searches and seizures. 1 See State v. Martinez, 

, 

. A warrantless seizure is presumptively unreasonable, State v.
Williams, 

, 

, 

, but a law enforcement
officer may temporarily detain an individual for investigatory purposes, absent probable
cause, if they have “reasonable and articulable suspicion that the law is being or has
been broken.” State v. Jason L., 

, ¶ 20, 

, 

(internal quotation marks and citation omitted). “When a detention exceeds the
boundaries of a permissible investigatory stop, it becomes a de facto arrest requiring
probable cause.” State v. Flores, 

, ¶ 15, 

, 

.
As this Court previously has explained, “There is no bright-line test for evaluating when
an investigatory detention becomes invasive enough to become a de facto arrest.”
Skippings, 

. Our overarching inquiry—the reasonableness of the
detention—requires us to weigh, on the one hand, the government’s justification for the
intrusion against, on the other hand, the nature and quality of the intrusion on the
individual’s Fourth Amendment interests. See State v. Ortiz, 

, 

. “Where the government’s justification for the intrusion outweighs the nature
and quality of the intrusion upon a defendant’s right to privacy, the detention is more
likely to be considered reasonable.” 

 “Conversely, where the intrusion is significant
and the government’s justification is not, the detention is considered a[n unlawful] de
facto arrest and, thus, an unreasonable seizure.” 

 We examine the State’s justification
for the intrusion and then turn to the nature and quality of the intrusion on Defendant’s
Fourth Amendment interests.

A.      Justification for the Detention


1Although Defendant briefly mentions Article II, Section 10 of the New Mexico Constitution in his brief in
chief, he does not argue that it should be construed any differently than the Fourth Amendment. We
therefore limit our analysis to the Fourth Amendment. Cf. State v. Randy J., 

, 

, 

 (declining to decide an undeveloped state constitutional argument).
{11} In examining the justification for the detention, we “typically focus on one or both
of two considerations: (1) the nature of the criminal activity suspected or afoot, . . .
and/or (2) the specific reasons supporting particular intrusive actions taken by an officer
during a detention.” Id. ¶ 12 (citations omitted). Focusing solely on the nature of the
criminal activity, Defendant contends the State’s justification for detaining him was
exceedingly minimal because, according to him, “At most, both calls involved completed
petty misdemeanors.” We cannot agree with Defendant’s assessment of the nature of
the criminal activity suspected or the seriousness of the situation confronting the
officers. Prior to Defendant’s challenged detention, Officers responded to gunshots fired
in a residential neighborhood at night; nearby, the vehicle reportedly involved in a
potential domestic violence incident was found abandoned, still running in the street.
The officer’s investigation thus involved potentially violent felony offenses—e.g.,
shooting at or from a motor vehicle, shooting at a dwelling house, or aggravated assault
with a deadly weapon—with the possibility of victims. Moreover, by the time of
Defendant’s challenged detention, Defendant, the only suspect to the crimes being
investigated, had given nonsensical and evasive answers to the officers’ questions; a
spent casing had been found in the yard of the house where Defendant was located;
and a neighbor had confirmed the presence of a man running to the side of that house
at the time gunshots were fired. See Ortiz, 

 (providing that
evolving circumstances during the course of an investigation may justify “a graduated
response based on a more substantial government interest”). In light of all of this, we
conclude that the government’s justification for the detention was substantial. See State
v. Lovato, 

, ¶ 27, 

, 

 (holding, as a matter of
law, that the intrusiveness of a stop was reasonable “in view of the level of danger the
officers reasonably could assume to exist” given the nature of the crime (a drive-by
shooting) being investigated); cf. Skippings, 

 (holding that drugrelated criminal activity provided a “substantial” governmental justification for the
intrusion).

B.     Nature and Quality of the Intrusion

{12} In analyzing the nature and quality of the intrusion on the individual’s Fourth
Amendment interests, courts consider and weigh various factors, including the
character or level of the intrusion on the individual, as well as the length of the detention
and, relatedly, the diligence of the police in conducting their investigation. See Ortiz,

; Skippings, 

.

{13} We first consider the level of the intrusion. Here, it was undoubtedly high
because Defendant was placed in handcuffs and put in the back of a patrol car.
Nevertheless, “[a]lthough the back of a patrol car is not an ideal location for the
purposes of an investigatory detention, detention in a patrol car does not constitute an
arrest per se.” State v. Werner, 

, ¶ 14, 

, 

(internal quotation marks and citation omitted). Similarly, the fact that Defendant was
handcuffed is not determinative and does not automatically transform his detention into
a de facto arrest. See Skippings, 

. As discussed, officers were
faced with a dangerous and potentially volatile situation involving a roving domestic
violence incident and the discharge of a firearm at night in a residential neighborhood.
Because Defendant was the only suspect but no firearm was found on his person,
officers logically could have concluded that Defendant might access a firearm if not
secured. Given this danger, and the apparent need for Officers Marin and Soriano to
join in the investigation and search for potential gunshot victims and witnesses, 2 we
cannot say that the level of detention was unreasonable. Compare Lovato, 1991-
NMCA-083, ¶ 27 (concluding that, where “the officers had just received a report of a
drive-by shooting and that minutes later they encountered and stopped a vehicle
believed by them to be the one described in the broadcast,” “the level of intrusion under
these circumstances was not inappropriate in view of the level of danger the officers
reasonably could assume to exist”), with Ortiz, 

 (concluding that
the defendant’s detention in a patrol car while handcuffed was unreasonable, in part
because there was “no evidence that the officers knew that [the d]efendant had a
history of violence or feared for their safety”).

{14} We next consider the length of the detention and the diligence of the
investigation. See Pacheco, 

 (addressing these factors together
because “both rest on the same underlying premise, an impermissibly protracted
detention”); Skippings, 

 (addressing both factors together). As for
the length of delay, both parties agree that the relevant period of detention began when
Defendant was handcuffed and placed in the back of the patrol car, but they diverge on
how long that period lasted. The State contends it lasted approximately forty-five
minutes—until Defendant made his confession to Detective White—while Defendant
contends it lasted nearly an hour—until his formal arrest by Detective White. We do not
agree with either party. Cf. State v. Nash, 

, 

, 

 (providing that “[d]espite the failure of both parties to cite the correct law, we
apply the controlling cases as the issues are properly before this Court”). As this Court
observed in Skippings, what matters is the amount of time until probable cause for
arrest has arisen. 3 See 

 (focusing on period of time until probable
cause arose even though formal arrest occurred later); see also id. ¶ 14 (“When an
officer with reasonable suspicion but without probable cause detains an individual in an
unreasonable manner, the detention may amount to a[n unlawful] de facto arrest, rather
than an investigatory detention.” (emphasis added) (internal quotation marks and
citation omitted)).



2Officer Soriano testified at the suppression hearing that five officers—the number on the scene—were
the minimum number of officers needed to search the area for gunshot victims and other evidence, but
that ten would be more ideal. The district court found, and Defendant has not challenged, that there were
“limited officers” available to conduct the investigation and search for victims and witnesses.
3Defendant acknowledges this principle in his brief in chief by repeatedly citing the notion that a de facto
arrest must be supported by probable cause. See, e.g., State v. Hernandez, 

, 

, 

 (“When a detention becomes a de facto arrest, a showing of probable cause is
required to support it.”); State v. Flores, 

, ¶ 15, 

, 

 (“When a
detention exceeds the boundaries of a permissible investigatory stop, it becomes a de facto arrest
requiring probable cause.”); see also, e.g., United States v. Baron, 

 (9th Cir. 1988)
(providing that a de facto arrest supported by probable cause is lawful); United States v. Hernandez, 

 (5th Cir. 1987) (same).
{15} The district court did not make any explicit determinations about the duration of
Defendant’s detention or when probable cause arose. Viewing the facts in the light most
favorable to the district court’s ruling, the amount of time Defendant spent handcuffed
and in the back of the patrol car before probable cause arose was approximately ten
minutes. See id. ¶ 15 (viewing the evidence in the light most favorable to the prevailing
party in determining when probable cause arose and the relevant period of detention);
cf. Lopez, 

 (providing that, in the absence of findings from the
district court, “we must draw from the record to derive findings based on reasonable
facts and inferences” (internal quotation marks and citation omitted)). By that point,
Defendant’s father had told Officer Soriano that his truck (as well as two firearms) were
missing, Defendant did not have permission to take his truck, and he wanted to press
charges. Upon learning this information, Officer Soriano had probable cause to arrest
Defendant for at least one felony offense. See State v. Duffy, 

,

, 

 (“Probable cause exists when the facts and circumstances
within the officers’ knowledge, and of which they had reasonably trustworthy
information, are sufficient to warrant a man of reasonable caution to believe that an
offense has been, or is being, committed.” (internal quotation marks and citation
omitted)), overruled on other grounds by State v. Tollardo, 

, ¶ 37 n.6,

; see also, e.g., NMSA 1978, § 30-16D-1(A) (2009) (providing that
unlawful taking of a motor vehicle, which is committed when a defendant takes a motor
vehicle without the owner’s consent, is at least a fourth degree felony).

{16} As for the diligence of the investigation, Defendant offers little in the way of
argument, maintaining again that the investigation, at most, involved “possibly one or
two misdemeanor offenses that were no longer occurring,” and broadly asserting that
“[t]he facts of this case do not bespeak a narrow and diligent investigation.” But, as
discussed, Defendant’s characterization of the incident belies the seriousness of the
situation confronting the officers. And Defendant’s assertion that the investigation was
not narrow or diligent is made without further explanation. Such an argument is
inadequate to warrant our review. See State v. Fuentes, 

, 

, 

 (noting that we will “not review unclear or undeveloped
arguments [that] require us to guess at what a part[y’s] arguments might be”).
Nevertheless, based on an independent review of the record, we are satisfied that the
officers did not delay their investigation or that they were otherwise unreasonable in
conducting it. See Skippings, 

 (providing that “[t]he length of the
detention (ten minutes) was reasonably limited to the time required to perform all of the[
investigative] activities” and “[t]here is nothing to indicate that the agents delayed the
investigation or were otherwise unreasonable in conducting the investigation”).

C.     Totality of the Circumstances

{17} Although the intrusion upon Defendant’s privacy rights was considerable, we
cannot say that it outweighed the government’s substantial justification for the intrusion,
considering the offenses being investigated and the potential danger faced by officers.
See Ortiz, 

 (providing that a “significant” government interest
“presumptively justif[ies] a higher level of intrusion during an investigatory detention”);
cf. State v. Contreras, 

, 

, 

 (holding that
“the gravity of the public concern and the public interest served by the seizure” of a
suspected drunk driver “weigh heavily in the [reasonableness] balancing test”). All in all,
under the particular factual circumstances of this case and in light of the argument
presented by Defendant on appeal, we affirm the district court’s determinations that
Defendant’s detention was reasonable and he was not subjected to an unlawful de facto
arrest. See Ortiz, 

 (providing that “the test of reasonableness is
one based on the totality of the circumstances”); see also Johnson, ___-NMCA-___, ¶
38 (placing the burden on the appellant to demonstrate error); Aragon, 1999-NMCA-
060, ¶ 10 (same).

II.    Voluntariness of Miranda Waiver and Confession

{18} Defendant next argues that the district court erred by denying his motion to
suppress his statements, arguing that his Miranda waiver and confession were
involuntary. Regardless of whether voluntariness is examined within the context of the
Fifth Amendment, for Miranda waivers, or within the context of the due process clause
of the Fourteenth Amendment, for confessions, “the benchmark is the absence of
governmental coercion or police overreaching.” State v. Fekete, 

, ¶ 48,

, 

 (internal quotation marks and citation omitted); see also id.
¶¶ 33, 50 (equating the inquiry of whether there was governmental coercion or police
overreaching under the Fifth Amendment and the due process clause, notwithstanding
the fact that “[a] claim that the police coerced a statement requires a different analysis
than a claim that an accused voluntarily waived [their] Fifth Amendment protections
under Miranda”).

{19} Defendant fails to persuade us the district court erred in concluding that his
Miranda waiver or confession were the product of governmental coercion or police
overreaching. His argument in this regard is undeveloped and lacking citation to any
persuasive authority. Defendant merely sets out the general test for determining
whether a waiver or statement is “voluntary.” Then, after listing tactics used by officers
that Defendant characterizes as “coercive,” he baldly asserts, without further analysis,
that such tactics “overbor[e his] will and rendered any subsequent statement
involuntary.” Defendant offers no elicitation of how the particular tactics used in this
case amounted to official coercion. See State v. Ortiz, 

, 

, 

 (refusing to address undeveloped, conclusory arguments, reasoning
that “[a] party cannot throw out legal theories without connecting them to any elements
and any factual support for the elements” (internal quotation marks and citation
omitted)). And as the State correctly points out in its answer brief, Defendant does “not
cite a single case holding that statements even remotely similar to those made by [the
officers] constitute coercion.” See State v. Vigil-Giron, 

, 

 (providing that an appellate court “will not consider an issue if no authority is cited
in support of the issue and that, given no cited authority, we assume no such authority
exists”). Again, such an argument is inadequate to warrant our review. See Fuentes,

; State v. Stevenson, 

, 

 (“We
will not address an undeveloped argument or perform [a d]efendant’s research for
him.”). Nevertheless, based on an independent review of the record and relevant case
law, we are satisfied that Defendant’s Miranda waiver and confession were not the
product of governmental coercion or police overreaching. See, e.g., State v. Barrera,

, 

, 

 (concluding the defendant’s
Miranda waiver and confession were voluntary where law enforcement did not make
threats or promises of leniency or use physical force, notwithstanding that the defendant
was questioned in close and restrictive quarters by two officers). We therefore reject
Defendant’s contention that the district court erred in concluding his waiver and
confession were voluntary.

CONCLUSION

{20} For the foregoing reasons, we affirm the district court’s denial of Defendant’s
motion to suppress.

{21}   IT IS SO ORDERED.

JENNIFER L. ATTREP, Chief Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

ZACHARY A. IVES, Judge