City of Farmington v. Scott

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

2 CITY OF FARMINGTON,

3 Plaintiff-Appellee,

4 v. NO. 35,431

5 BILL SCOTT,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Daylene A. Marsh, Judge

9 Office of the City Attorney 10 Russel A. Frost 11 Farmington, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender 14 Tania Shahani, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge.  1 {1} Defendant challenges the denial of a motion to suppress. We previously issued

2 a notice, proposing to uphold the district court’s determination. Defendant has filed

3 a memorandum in opposition. After due consideration, we affirm.

4 {2} The relevant background information was previously set forth at length, and we

5 will avoid undue reiteration here. To briefly summarize, police officers initiated a

6 traffic stop and detained Defendant based upon an eyewitness report that the

7 perpetrators of an armed robbery had just left the scene in a vehicle of matching

8 description. Defendant does not challenge the validity of the stop. [MIO 13-14]

9 However, he contends that the initial investigatory detention evolved into an

10 impermissible de facto arrest. [MIO 12-15] He further argues that the officers lacked

11 any valid basis for expanding the scope of the inquiry, from the robbery into the

12 ensuing DWI investigation which led to his arrest and conviction. [MIO 7-12] We

13 remain unpersuaded.

14 {3} As described in the notice of proposed summary disposition, [CN 2-5] the

15 initial 45-minute detention, during which time the officers brought the eyewitness to

16 the scene to facilitate a viewing for purposes of identification, [MIO 12-13] was

17 permissible. Given the government’s strong interest in combating violent crime, and

18 given that the officers conducted the investigation with due diligence, that portion of

19 the encounter cannot be characterized as an impermissible de facto arrest. See State

2  1 v. Werner, 1994-NMSC-025, 14, 17, 20, 117 N.M. 315, 871 P.2d 971 (observing

2 that detention in a patrol car does not constitute an arrest per se that diligence is key,

3 and holding that a 45-minute period of detention during which police brought a

4 witness for purposes of identification was not unreasonable); see generally State v.

5 Skippings, 2014-NMCA-117, 14, 338 P.3d 128 (setting forth relevant factors in this

6 context).

7 {4} We understand Defendant to contend that the detention should be said to have

8 evolved into a de facto arrest as a consequence of the officers’ failure to release him

9 the moment the eyewitness failed to identify him as one of the perpetrators of the

10 armed robbery. [MIO 14] We disagree. After the portion of the investigation

11 associated with the eyewitness concluded, the officers took statements from Defendant

12 and his passenger. [MIO 13] That process appears to have taken roughly ten minutes.

13 [MIO 13] In light of the fact that Defendant’s vehicle had been placed at the scene at

14 the time of the robbery, the officers’ decision to take his statement and the statement

15 of his passenger was not unreasonable. And although the officers briefly discussed the

16 course of the investigation amongst themselves and ultimately decided that Defendant

17 should be released, those few minutes spent in discussion cannot be regarded as

18 unreasonable or impermissible. See State v. Leyva, 2011-NMSC-009, 20, 149 N.M.

3  1 435, 250 P.3d 861 (“[A] de minimis detention caused by questioning after the

2 completion of the traffic stop is not unreasonable[.]”).

3 {5} Once the officers concluded that there was no basis for further inquiry relative

4 to the armed robbery, they spent a minute or two discussing whether to conduct a

5 DWI investigation, and ultimately electing to proceed. [MIO 13] Defendant

6 characterizes this as a “fishing expedition” and as such, he argues that the ensuing

7 detention should be regarded as an unreasonable de facto arrest, [MIO 14-15] as well

8 as an impermissible expansion of the scope of the investigation. [MIO 7-12] Once

9 again, we disagree.

10 {6} “An officer may expand the scope of a traffic stop beyond the initial reason for

11 the stop and prolong the detention if the driver’s responses and the circumstances give

12 rise to a reasonable suspicion that criminal activity unrelated to the stop is afoot.” Id.

13 23 (internal quotation marks and citation omitted). When the presence of alcohol or

14 its effects becomes apparent, giving rise to a reasonable suspicion of alcohol related

15 criminal activity, the officer may expand the scope of the investigation accordingly.

16 See State v. Taylor, 1999-NMCA-022, 22, 126 N.M. 569, 973 P.2d 246 (observing

17 that the subjects of drugs and alcohol could come within the scope of an investigation

18 if evidence of drugs and alcohol becomes apparent to the investigating officer),

19 overruled on other grounds by State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250

4  1 P.3d 861 ; and see generally State v. Williamson, 2000-NMCA-068, 8, 129 N.M.

2 387, 9 P.3d 70 (“[W]hen an officer investigating a traffic violation has a reasonable

3 and articulable suspicion that the driver is impaired, the officer may detain the driver

4 to investigate the officer’s suspicions.”).

5 {7} In this case, the officers developed reasonable suspicion of DWI after

6 observing Defendant in the course of the preceding investigation into the armed

7 robbery. One of the officers testified that he smelled the odor of alcohol about

8 Defendant, and that Defendant’s eyes gave the appearance of intoxication. [MIO 9]

9 Another officer later observed that Defendant’s eyes were bloodshot and watery when

10 he removed Defendant’s handcuffs. [MIO 10] Although Defendant takes issue with

11 the first officer’s lack of specificity relative to the look of Defendant’s eyes, [MIO 9]

12 it is doubtful that further specificity should be required. See generally Leyva, 2011-

13 NMSC-009, 23 (“Courts defer to the training and experience of the officer when

14 determining whether particularized and objective indicia of criminal activity existed.”

15 (internal quotation marks omitted)). In any event, that officer unequivocally testified

16 that he detected the odor of alcohol about Defendant. [MIO 123] And although

17 Defendant contends that the other officer’s observation should be disregarded because

18 the decision had already been made to conduct the DWI investigation, [MIO 10]

19 Defendant’s handcuffs would have been removed regardless and accordingly, the

5  1 observation made with regard to Defendant’s bloodshot and watery eyes, was made

2 prior to the initiation of the DWI investigation, contributing to reasonable suspicion.

3 See generally State v. Muñoz, 1998-NMCA-140, 9, 125 N.M. 765, 965 P.2d 349

4 (“The test [of reasonable suspicion] is an objective one. The subjective belief of the

5 officer does not in itself affect the validity of the stop; it is the evidence

6 known to the officer that counts[.]”).

7 {8} We understand Defendant to challenge the sufficiency of the officers’

8 observations to support a reasonable suspicion of DWI. [MIO 8-12] However, we

9 have previously held that officers may expand unrelated traffic stops into DWI

10 investigations when presented with similar indicia of intoxication. See, e.g.,

11 Williamson, 2000-NMCA-068, 2, 9 (holding that a traffic stop was validly

12 expanded to incorporate a DWI investigation where the officer detected an odor of

13 alcohol and noticed that the driver had bloodshot, watery eyes); State v. Walters,

14 1997-NMCA-013, 26, 123 N.M. 88, 934 P.2d 282 (holding that an officer developed

15 reasonable suspicion to pursue a DWI investigation after he detected the odor of

16 alcohol on the driver’s breath). We therefore conclude that the officers had a

17 sufficient basis to embark upon the DWI investigation.

18 {9} Accordingly, for the reasons stated in the notice of proposed summary

19 disposition and above, we affirm.

6 1 {10} IT IS SO ORDERED.

2 __________________________________ 3 MICHAEL E. VIGIL, Judge

4 WE CONCUR:

5 __________________________ 6 JAMES J. WECHSLER, Judge

7 __________________________ 8 M. MONICA ZAMORA, Judge

7