State v. E Torres ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,871
5 ELIAS TORRES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
8 Stephen D. Pfeffer, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Nancy M. Hewitt, Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 CASTILLO, Judge.
18 Defendant appeals from the trial court’s amended order of drug conditional
19 discharge. [RP 169] Defendant entered a conditional plea on the charge for
1 possession of cocaine and reserved the right to appeal the trial court’s decision on his
2 pretrial suppression motion. [RP 159-60] This Court’s first notice proposed summary
3 affirmance. Defendant filed a memorandum in opposition to the proposed disposition.
4 Because we determine that there was substantial evidence to uphold the denial of
5 Defendant’s motion to suppress, we affirm. See State v. Pallor, 1996-NMCA-083, ¶
6 9, 122 N.M. 232, 923 P.2d 599.
7 Defendant first argues that the police officers required, at a minimum, a
8 showing of reasonable suspicion of criminal activity to stop him. [MIO 6]
9 Specifically, Defendant contends that the officers did not have sufficient articulable
10 facts that would lead them to believe that he was engaging in criminal activity. [MIO
11 7] Defendant argues that the trial court’s decision conflicts with State v. Jones, 114
12 N.M. 147, 151, 835 P.2d 863, 867 (Ct. App. 1992). [MIO 7] Jones held that absent
13 some indicia of criminal conduct, a stop could not be based on a generalized suspicion
14 of gang membership and the defendant’s presence in a known gang activity area. Id.
15 In the present case, however, there was evidence that at the time of the stop, the
16 officers had individualized suspicion that Defendant was engaging in drug activity.
17 The first notice described the facts relied upon, and Defendant does not dispute any
18 error in those facts. See State v. Ibarra, 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct.
19 Ohio App. 1993) (“A party opposing summary disposition is required to come forward and
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1 specifically point out errors in fact and/or law.”). To the extent that Defendant
2 opposes the legal conclusion based on those facts, we disagree that Jones is in conflict
3 with our decision.
4 Defendant also argues that while police officers had enough information to
5 justify a brief investigatory detention based on the information provided by the
6 informant, the stop went beyond an investigatory detention, and the officers conducted
7 a warrantless arrest. [MIO 9-10] “[F]or a warrantless arrest to be reasonable the
8 arresting officer must show that the officer had probable cause to believe that the
9 person arrested had committed or was about to commit a felony and some exigency
10 existed that precluded the officer from securing a warrant.” See Campos, 117 N.M.
11 at 159, 870 P.2d at 121. Our first notice proposed to hold that probable cause and
12 exigent circumstances supported the warrantless arrest. In his memorandum in
13 opposition, Defendant argues that the police officer did not have probable cause
14 because the information obtained from the informant was neither corroborated nor
15 verified. [MIO 10] We conclude that the police officer’s observations of Defendant
16 prior to the stop and the arrest sufficiently verified the informant’s information.
17 The officer heard the telephone conversation between Defendant and the
18 informant in which Defendant agreed to meet the informant at a particular location
19 and to sell the informant crack cocaine. In addition, the officer saw Defendant arrive
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1 at the designated location in the car that had been described by the informant. When
2 the Defendant arrived, he made an exchange with the informant. These observations
3 corroborated and verified the informant’s tip. See State v. Jones, 96 N.M. 14, 15, 627
4 P.2d 409, 410 (1981)(“A warrantless arrest may be based upon information from other
5 persons where the information is corroborated or verified to an extent sufficient to
6 establish the informant’s credibility.”). Based on this evidence, we hold that the
7 officer had good reason to believe that Defendant was committing a felony. See
8 Campos, 117 N.M. at 157, 870 P.2d at 119 (“‘Probable cause requires that the officer
9 believe, and have good reason to believe, that the person he arrests has committed [or
10 is committing] a felony.’” (quoting Jones, 96 N.M. at 15, 627 P.2 at 410).
11 In addition, the officer testified that when Defendant got out of the car, he
12 appeared nervous, shaky, and “real jittery” and that he thought Defendant was going
13 to run. [DS 8] These facts are sufficient to establish exigent circumstances. See
14 Gomez, 1997-NMSC-006, ¶ 39 (defining exigent circumstances as “an emergency
15 situation requiring swift action to prevent imminent danger to life or serious damage
16 to property, or to forestall the imminent escape of a suspect or destruction of
17 evidence.” (internal quotation marks and citation omitted)). Thus, the officer
18 developed probable cause and was faced with exigent circumstances—the
19 prerequisites for executing a proper warrantless arrest. See Campos, 117 N.M. at 159,
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1 870 P.2d at 121.
2 Viewing the evidence in the light most favorable to the State, we affirm the trial
3 court’s decision. See Pallor, 1996-NMCA-083, ¶ 10. For these reasons, and those
4 stated in the first notice, we affirm the order of conditional discharge.
5 IT IS SO ORDERED.
6 ________________________________
7 CELIA FOY CASTILLO, Judge
8 WE CONCUR:
9 _________________________________
10 MICHAEL D. BUSTAMANTE, Judge
11 _________________________________
12 JONATHAN B. SUTIN, Judge
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