State v. Sewell ( 2009 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 26,742
10 KAMIL SEWELL,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Richard Knowles, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 Joel Jacobsen, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 McGarry Law Office
20 Kathleen McGarry
21 Glorieta, NM
22 for Appellant
23 MEMORANDUM
24 KENNEDY, Judge.
1 After the district court denied his motion to suppress, Defendant Kamil Sewell
2 pleaded no contest to repeat offender trafficking in cocaine and child abuse,
3 preserving his right to appeal. Without reaching the merits of whether the initial
4 police stop was reasonable, this Court reversed the district court’s order. State v.
5 Sewell, 2008-NMCA-027, ¶ 1, 143 N.M. 485, 177 P.3d 536, rev’d 2009-NMSC-033,
6 ¶¶ 14, 26, 146 N.M. 428, 211 P.3d 885. On remand, we now consider the facts
7 surrounding that initial stop and hold that it was based on reasonable suspicion of
8 criminal activity. We hold that investigatory stops of vehicles are governed by the
9 same reasonable suspicion standard as stops of persons. We affirm.
10 BACKGROUND
11 We recount only those facts necessary to analyze the issue before us. A more
12 detailed recitation of the facts and procedural history of this case may be found in
13 Sewell, 2009-NMSC-033, ¶¶ 2-11.
14 On April 9, 2004, an undercover Albuquerque police officer identified a woman
15 he knew to be a prostitute standing near a street corner along Central Avenue. Id. ¶
16 3. The officer had been patrolling in that area for more than four years, was familiar
17 with drug trafficking and prostitution investigations, and had participated in more than
18 one hundred criminal cases at the time. Id. As he continued to observe, the prostitute
19 attempted to catch the attention of passing vehicles until a Chevrolet truck stopped
20 nearby. She then engaged in a conversation with the driver of the truck and entered
1 on the truck’s passenger side. Id. As the truck drove away with the prostitute inside,
2 the officer noted that it made several suspicious maneuvers into and out of a
3 residential neighborhood. He testified that this behavior is fairly typical of persons
4 attempting to evade law enforcement in drive-up prostitution cases. Id.5 The truck soon stopped by a pay phone, where the prostitute got out and made
6 a short call. When the call was finished, she immediately got back in, and the truck
7 drove away. Id. ¶ 4. The officer testified that in his experience with other drug and
8 prostitution cases, such a call was likely a signal intended to set up a narcotics
9 transaction. Id. The truck soon stopped again, this time at a nearby shopping plaza,
10 where it was met by a Cadillac driven by Defendant. Id. ¶ 5. The prostitute exited the
11 truck, got into Defendant’s Cadillac, and in less than one minute, came back to the
12 truck. Id. Both vehicles then drove away. The officer did not see what took place
13 inside the Cadillac, but based on his experience, he concluded he had just witnessed
14 a drug transaction. Id. In order to keep from compromising his undercover status, the
15 officer notified a uniformed police unit of what he had just seen. Id. ¶ 6. Within two
16 to three minutes, police stopped Defendant’s Cadillac, questioned Defendant and his
17 passenger, and conducted a search that revealed narcotics and eventually led to this
18 appeal. Id. ¶¶ 6, 7-9.
19 STANDARD OF REVIEW
2
1 Suppression orders present mixed questions of law and fact. State v. Rowell,
2 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95. Factual questions are reviewed
3 for substantial evidence, and the district court’s application of law to those facts is
4 reviewed de novo. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57.
5 We first view the facts in the light most favorable to the prevailing party, deferring to
6 the district court’s factual findings so long as substantial evidence exists to support
7 them. Id. Next, we analyze how the court applied the law to those facts and make a
8 de novo conclusion as to whether the stop was constitutional. State v. Hand,
9 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165.
10 ANALYSIS
11 Without probable cause for an arrest, a police officer may conduct an
12 investigatory detention upon a citizen when the officer possesses reasonable and
13 articulable suspicion to believe “that criminal activity may be afoot.” Terry v. Ohio,
14 392 U.S. 1, 30 (1968). In determining whether an officer had such reasonable
15 suspicion, “the relevant inquiry is not whether particular conduct is innocent or guilty,
16 but the degree of suspicion that attaches to particular types of noncriminal acts.” State
17 v. Watley, 109 N.M. 619, 624, 788 P.2d 375, 380 (Ct. App. 1989) (internal quotation
18 marks and citation omitted). In order to justify such a stop, the State must be able to
19 point to “specific and articulable facts,” and rational inferences from those facts,
3
1 which would give a reasonable person cause to be suspicious of criminal activity. Id.;
2 see State v. Pallor, 1996-NMCA-083, ¶ 12, 122 N.M. 232, 923 P.2d 559. In such an
3 inquiry, we make no distinction between stops conducted on vehicles and those
4 conducted of persons on foot. Both require reasonable suspicion. Compare Watley,
5 109 N.M. at 624, 788 P.2d at 380 (discussing reasonable suspicion of a vehicle), with
6 State v. Cobbs, 103 N.M. 623, 626, 711 P.2d 900, 903 (Ct. App. 1985) (discussing
7 reasonable suspicion of persons on foot who entered a vehicle and drove away).
8 “Unsupported intuition and inarticulate hunches are” insufficient. Cobbs, 103 N.M.
9 at 626-27, 711 P.2d at 903-04.
10 In this case, substantial evidence supports the district court’s finding that police
11 had reasonable suspicion to stop Defendant. As we stated above, the undercover
12 officer observed a woman he knew to be a prostitute attempting to catch the attention
13 of passing vehicles. When she finally succeeded in attracting the driver of a Chevy
14 truck, she got in and rode away. The truck then executed several maneuvers that were
15 consistent with measures used by criminals to avoid detection. Moments later, the
16 truck pulled up to a pay phone, on which the prostitute made a quick call. The truck
17 drove away again, and when it finally stopped, it was met by Defendant’s Cadillac.
18 The prostitute exited the truck and entered Defendant’s Cadillac. She sat in the
19 Cadillac less than one minute, got out, reentered the truck, and rode away again. The
4
1 officer who witnessed these events testified they were consistent, in his experience,
2 with a narcotics transaction involving two vehicles in which a prostitute is commonly
3 used as a go-between. In this case, those two vehicles were the truck and the Cadillac,
4 and this fact, when considered alongside the other circumstances known to the officer,
5 created reasonable suspicion to stop either vehicle. We affirm.
6 CONCLUSION
7 For the reasons set forth herein, we hold that substantial evidence supports the
8 district court’s determination that the stop of Defendant’s Cadillac was lawful.
9 IT IS SO ORDERED.
10
11 RODERICK T. KENNEDY, Judge
12 WE CONCUR:
13
14 JAMES J. WECHSLER, Judge
15
16 MICHAEL D. BUSTAMANTE, Judge
5