{ "id": 12166972, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. TOMMY SIMPSON, Defendant-Appellant", "name_abbreviation": "State v. Simpson", "decision_date": "2016-05-19", "docket_number": "No. S-1-SC-35940; Docket No. 34,488", "first_page": "314", "last_page": "325", "citations": [ { "type": "official", "cite": "2016-NMCA-070" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "342 S.W.3d 878", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 7320046 ], "year": 2011, "pin_cites": [ { "page": "885-86" } ], "opinion_index": 0, "case_paths": [ "/sw3d/342/0878-01" ] }, { "cite": "2011-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4248957 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0644-01" ] }, { "cite": "695 F.2d 1263", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1492043 ], "year": 1982, "pin_cites": [ { "page": "1274" } ], "opinion_index": 0, "case_paths": [ "/f2d/695/1263-01" ] }, { "cite": "112 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720242 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/112/0517-01" ] }, { "cite": "1991-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "opinion_index": 0 }, { "cite": "2010-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248043 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0708-01" ] }, { "cite": "2010-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4247077 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 3" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0330-01" ] }, { "cite": "1999-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257748 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0282-01" ] }, { "cite": "318 P.3d 180", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-021", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4078371 ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0433-01" ] }, { "cite": "2009-NMCA-002", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243835 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0032-01" ] }, { "cite": "2006-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671457 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0345-01" ] }, { "cite": "103 N.M. 623", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711271 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0623-01" ] }, { "cite": "1985-NMCA-105", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 15" }, { "page": "\u00b6\u00b6 21-25" } ], "opinion_index": 0 }, { "cite": "357 P.3d 958", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4362278 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm-app/8/0707-01" ] }, { "cite": "434 U.S. 106", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180104 ], "year": 1977, "pin_cites": [ { "page": "109", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/434/0106-01" ] }, { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "2003-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77134 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 5" }, { "page": "\u00b6\u00b6 2, 9" }, { "page": "\u00b6\u00b6 10, 12" }, { "page": "\u00b6\u00b6 13-21" }, { "page": "\u00b6 13" }, { "page": "\u00b6\u00b6 14, 15" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0503-01" ] }, { "cite": "339 P.3d 425", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCERT-010", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "343 P.3d 186", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-011", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241639 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0239-01" ] }, { "cite": "2008-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4003223 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 14" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0037-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "2000-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217162 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0119-01" ] }, { "cite": "2009-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245815 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0134-01" ] }, { "cite": "99 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584622 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/99/0286-01" ] }, { "cite": "1982-NMSC-085", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6 22" } ], "opinion_index": 1 }, { "cite": "2005-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929147 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 26" } ], "opinion_index": 1, "case_paths": [ "/nm/137/0174-01" ] }, { "cite": "2005-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2549417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 1, "case_paths": [ "/nm/138/0001-01" ] }, { "cite": "2008-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002999 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 26, 31" }, { "page": "\u00b6\u00b6 26, 31" } ], "opinion_index": 1, "case_paths": [ "/nm/144/0371-01" ] }, { "cite": "329 P.3d 636", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2014-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4240654 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6\u00b6 13, 15-19" }, { "page": "\u00b6 22" } ], "opinion_index": 1, "case_paths": [ "/nm-app/6/0283-01" ] }, { "cite": "2011-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250695 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 20-27" } ], "opinion_index": 1, "case_paths": [ "/nm/150/0137-01" ] }, { "cite": "2010-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4248043 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 15" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0708-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 36-40" }, { "page": "\u00b6\u00b6 36-40" }, { "page": "\u00b6 40" } ], "opinion_index": 1, "case_paths": [ "/nm/122/0777-01" ] } ], "analysis": { "cardinality": 1273, "char_count": 37569, "ocr_confidence": 0.78, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2468118797659632 }, "sha256": "1cb3ccf1b1e65e8d9006caa99c37cf757b14ed3fd0028ce74ba95bfe93e4b160", "simhash": "1:baaf3786e64205fe", "word_count": 6048 }, "last_updated": "2023-07-14T21:58:07.326433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "William C. Birdsall, District Judge", "LINDA M. VANZI, Judge", "MICHAEL E. VIGIL, Chief Judge", "TIMOTHY L. GARCIA, Judge (specially concurring)" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. TOMMY SIMPSON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVANZI, Judge.\n{1} In this driving while intoxicated (DWI) case, Defendant Tommy Simpson appeals from the denial of his motion to suppress. We understand Defendant\u2019s argument to be that the district court erred in denying his motion to suppress because the arresting officer violated his constitutional rights by detaining and seizing him without reasonable suspicion and by opening the door to the car he occupied without first obtaining a warrant. We affirm.\nBACKGROUND\n{2} Defendant was charged with a single felony count of aggravated DWI (0.16 or above). NMSA 1978, \u00a7 66-8-102(D)(l) (2010). He subsequently filed a motion to suppress, claiming that evidence was obtained in violation of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. The district court denied the motion after a hearing, and Defendant entered a conditional plea of guilty to felony DWI, reserving the right to appeal the denial of his motion. Farmington Police Department Officer Jonathan Jensen, who arrested Defendant, was the sole witness at the hearing. The following facts derive from his testimony.\n{3} Officer Jensen was on duty during the late afternoon of March 1, 2014, when he was dispatched to a Church\u2019s Chicken restaurant on Main Street in Farmington, New Mexico. Dispatch told Officer Jensen that a caller had reported a \u201cparked DWI in the parking lot\u201d and described the subject vehicle as a \u201cdark blue Plymouth\u201d with a partial New Mexico license plate of \u201cY820.\u201d Dispatch also told Officer Jensen that the caller reported the following: a male subject had entered the restaurant, he was passed out in the bathroom, and he smelled of an alcoholic beverage. The male got up, left the restaurant, got into the dark blue Plymouth, and moved the car from one parking space to another a few spots away, almost striking several other vehicles in the parking lot.\n{4} Officer Jensen arrived at Church\u2019s Chicken within minutes of receiving the dispatch call and saw a dark blue vehicle with \u201cvery dark tinted windows\u201d backed into a parking spot. He walked around the car and confirmed that the partial license plate number given to him by dispatch matched the vehicle\u2019s license plate \u2014 \u201cLKY 820.\u201d Because of the dark tinted windows, Officer Jensen was initially unable to see inside the car and whether it was occupied. After verifying that this was the correct vehicle, he walked around to the driver\u2019s side door, where the window was cracked \u201ca couple of inches,\u201d and saw a female in the passenger seat and a man later identified as Defendant in the back seat. There was nobody in the driver\u2019s seat, so there was no one to open the driver\u2019s side window, and because of the dark tinted windows, Officer Jensen could not see inside the vehicle to determine what the occupants were doing. Under the circumstances, Officer Jensen felt that the safest way to make contact with the occupants was to open the driver\u2019s side door. That way, he could remain outside of the vehicle but able to see both occupants while he was conducting his investigation.\n{5} After he opened the door, Officer Jensen noted a strong odor of alcohol coming from the car. He observed that the man in the back seat did not appear to be comfortable and that the driver\u2019s seat was \u201cpretty far back,\u201d suggesting that he had moved the front seat deliberately in order to slide into the back of the car.\n{6} After counsel completed direct and cross examination, the district court reviewed with Officer Jensen the information Jensen had received from dispatch. In addition, a video of the encounter was admitted into evidence without objection. Although stating \u201cthis seems righteous to me,\u201d the judge said he would look at the video before issuing a ruling. The district court rejected Defendant\u2019s argument that he had been subjected to a warrantless search or seizure that was presumed to be unreasonable and denied Defendant\u2019s motion to suppress the evidence obtained after Officer Jensen \u201copened the vehicle door and seized\u201d him. In a letter decision explaining its order, the court reasoned:\nThis is not a stop case. The officer approached a stopped vehicle containing [Djefendant. The vehicle was not blocked. The police unit did not have siren or lights engaged. The officer knocked on the car window, waited for a response (to no avail) and peered through the slightly opened window before opening the door. At the time the officer opened the door, he had reasonable suspicion to pursue the investigation. Due to the dark tint on the car windows, it was appropriate for him to open the door. At the time he asked [Djefendantto exit the vehicle, he had probable cause to arrest based on the earlier dispatch, what he observed, and statements made by [Djefendant.\n{7} Defendant subsequently entered a conditional plea of guilty to a DWI 5th offense, a fourth degree felony, Section 66-8-102(D)(1), (H), reserving the right to appeal the suppression issue and to withdraw his guilty plea, if successful.\nSTANDARD OF REVIEW\n{8} On appeal from the denial of a motion to suppress, we determine under de novo review whether the district court correctly applied the law to the facts, State v. Garcia, 2009-NMSC-046, \u00b6 9, 147 N.M. 134, 217 P.3d 1032, viewing the facts \u201cin a manner most favorable to the prevailing party\u201d and deferring to the district court\u2019s \u201cfindings of historical fact so long as they are supported by substantial evidence.\u201d State v. Jason L., 2000-NMSC-018, \u00b6 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). Where there are no findings of fact, we \u201cindulge in all reasonable presumptions in support of the district court\u2019s ruling.\u201d Id. \u00b6 11 (internal quotation marks and citation omitted). Absent a contrary indication in the record, \u201cwe presume the court believed all uncontradicted evidence.\u201d Id.\n{9} Although Defendant mentions Article II, Section 10 of the New Mexico Constitution, he does not explain how that provision affords more protection than the Fourth Amendment to the United States Constitution in the context of this appeal. We therefore assume without deciding that both constitutions afford equal protection in this context and analyze the constitutionality of the challenged conduct under one uniform standard. State v. Gomez, 1997-NMSC-006, \u00b6 22, 122 N.M. 777, 932 P.2d 1.\nDISCUSSION\n{10} Defendant states the question presented as \u201cwhether opening the car door was a detention of the occupants and/or a search of the vehicle and, if so[,j whether the officer required a warrant to do either.\u201d He contends that Officer\u2019s Jensen\u2019s conduct in opening the door \u201cwas both a seizure of the occupants and a search of the vehicle\u201d requiring a warrant or at least \u201creasonable suspicion to believe that a crime had been committed.\u201d The State does not disagree that there was an investigatory detention and seizure but argues that the challenged conduct was supported by a reasonable suspicion that, minutes before Officer Jensen arrived, Defendant had driven the car while intoxicated and that no warrant was required \u201c[b]ecause of the exigent circumstances inherent to the crime of DWI, including both preservation of evidence and public safetyf.]\u201d As in all cases in the search and seizure context, the ultimate question is whether Officer Jensen\u2019s conduct was objectively reasonable under the totality of the circumstances confronting him. See State v. Funderberg, 2008-NMSC-026, \u00b6 10, 144 N.M. 37, 183 P.3d 922. Applying the governing standards to the record before us, viewed in the light most favorable to the State as the prevailing party, we hold that it was.\n{11} A police officer may approach and detain a person to investigate possible criminal behavior, even if there is no probable cause to make an arrest, \u201cif 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.\u201d State v. Lope, 2015-NMCA-011, \u00b6 18, 343 P.3d 186 (internal quotation marks and citation omitted), cert. denied, 2014-NMCERT-010, 339 P.3d 425; see Funderberg, 2008-NMSC-026, \u00b6 14 (\u201cReasonable suspicion develops when the officer becomes aware of specific articulable facts that, judged objectively, would lead a reasonable person to believe criminal activity occurred or was occurring.\u201d (internal quotation marks and citation omitted)). Whether an investigatory detention is justified by reasonable suspicion depends on the totality of the circumstances, Jason L., 2000-NMSC-018, \u00b6 20, including \u201cthe content of information possessed by the police and its degree of reliability.\u201d State v. Contreras, 2003-NMCA-129, \u00b6 5, 134 N.M. 503, 79 P.3d 1111; see Lope, 2015-NMCA-011, \u00b6 18 (stating this standard). \u201cDeterminations of reasonable suspicion are reviewed de novo.\u201d Garcia, 2009-NMSC-046, \u00b6 9; see Funderberg, 2008-NMSC-026, \u00b6 10 (\u201cTo determine whether the detention was justified, we review the totality of the circumstances as a matter of law.\u201d (internal quotation marks and citation omitted)).\n{12} An investigatory detention is a seizure subject to the Fourth Amendment\u2019s reasonableness requirement. Contreras, 2003-NMCA-129, \u00b6 5; see U.S. Const, amend IV (stating the right to be secure \u201cagainst unreasonable searches and seizures\u201d). \u201c \u2018Reasonableness . . . depends on a balance between the public interest and the individual\u2019s right to personal security free from arbitrary interference by law officers.\u2019 \u201d State v. Leyva, 2011-NMSC-009, \u00b6 9, 149 N.M. 435, 250 P.3d 861 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam)); see State v. Paananen, 2015-NMSC-031, \u00b6 13, 357 P.3d 958 (\u201cTo determine the constitutionality of a seizure we must balance the nature and quality of the intrusion on the individual\u2019s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.\u201d (internal quotation marks and citation omitted)). The reasonableness of an investigatory detention is determined under an objective standard: \u201cWould the facts available to the officer warrant the officer, as a person of reasonable caution, to believe the action taken was appropriately?]\u201d State v. Cobbs, 1985-NMCA-105, \u00b6 13, 103 N.M. 623, 711 P.2d 900 (internal quotation marks and citation omitted). In determining reasonableness, we \u201cavoid bright-line, per se rules\u201d and \u201cconsider the facts of each case.\u201d State v. Granville, 2006-NMCA-098, \u00b6 18, 140 N.M. 345, 142 P.3d 933; see State v. Ochoa, 2009-NMCA-002, \u00b6 24, 146 N.M. 32, 206 P.3d 143 (\u201cThe myriad rules, exceptions, and exceptions to exceptions that flourish in the jurisprudence of search and seizure are often no more than factual manifestations of the constitutional requirement that searches and seizures be reasonable.\u201d (internal quotation marks and citation omitted)).\n{13} Defendant contends that the \u201creport of a \u2018parked DWI in the parking lot\u2019 \u201d provided \u201cno articulable facts to support a reasonable suspicion that Defendant had driven or was planning to drive while intoxicated.\u201d The State counters that the information provided by the caller, which Officer Jensen was sent to investigate, was not limited to a \u201cparked DWI\u201d but included facts that not only identified the subject parked car but also indicated that a man who had been found passed out in the Church\u2019s Chicken bathroom and who smelled of alcohol had driven that car after getting up and leaving the restaurant, almost hitting several other vehicles in the process, and that the man was still in the car. We agree with the State that the information upon which Officer Jensen relied was sufficient to support a reasonable suspicion of a possible DWI involving the parked car and its occupants, and therefore the investigatory detention (seizure) of Defendant.\n{14} When Officer Jensen arrived in the Church\u2019s Chicken parking lot minutes after receiving the dispatch call, he found a vehicle matching the caller\u2019s description. Officer Jensen reasonably could infer that the car was the subject of the dispatch, and reasonably could suspect that the man described by the caller might be in the car and that he might have engaged in the criminal activity of driving while intoxicated minutes before. See Cobbs, 1985-NMCA-105, \u00b6 15. An investigatory detention and seizure of the car and its occupants was justified because the information provided by dispatch and Officer Jensen\u2019s own corroborating observation identifying the subject car would lead a person of reasonable caution to suspect criminal activity involving the car and its occupants. See id. \u00b6\u00b6 16-17; see also Contreras, 2003-NMCA-129, \u00b6\u00b6 2, 9 (holding that information provided by anonymous \u201cconcerned motorist\u201d and passed on to deputies that identified vehicle involved in possible DWI was sufficient to justify investigatory stop).\n{15} Defendant\u2019s argument that the requisite reasonable suspicion was lacking erroneously assumes, contrary to the record evidence just discussed, that the only fact available to Officer Jensen was the \u201creport of a \u2018parked DWI in the parking lot.\u2019 \u201d Defendant also errs in relying on State v. Murry, 2014-NMCA-021, 318 P.3d 180, which held that evidence found after police officers approached a parked car and instructed the driver to open the door must be suppressed because the encounter was not consensual but a seizure, id. \u00b6\u00b6 11,28, and the seizure was not supported by reasonable suspicion. Id. \u00b6 32. In Murry, there had been no reports or dispatches concerning criminal activity, and the officers observed only that the car was parked and occupied and two of the occupants had made abrupt movements, and the officers approached the car and instructed the driver to open the door. Id. \u00b6\u00b6 28, 30-31. In contrast, Officer Jensen acted upon information that (among other things) indicated that a man who had been passed out in a restaurant bathroom and who smelled of alcohol had, after getting up and leaving the restaurant, driven a car identified by make, color, and partial license plate, almost hitting several other vehicles in the process, and that the car was parked in the restaurant parking lot with the man still inside.\n{16} Although the totality of the circumstances considered in evaluating the reasonableness of an investigatory detention includes the reliability of the information available to the officer as well as its content, Contreras, 2003-NMCA-l 29, \u00b6 5, Defendant\u2019s brief in chief makes no reliability challenge. And while his reply brief asserts a hearsay-based reliability argument, it concedes that hearsay is admissible in suppression hearings. The argument comes too late. See Rule 12-213(C) NMRA; Mitchell-Carr v. McLendon, 1999-NMSC-025, \u00b6 29, 127 N.M. 282, 980 P.2d 65 (stating that appellate courts ordinarily do not consider arguments made for the first time in a reply brief). In any event, the argument is not well taken on the facts of this case. Although the caller was anonymous, New Mexico law regards citizen informants as \u201cmore reliable than a police informant or a crime-stoppers informant},]\u201d and there was no reason for Officer Jensen to \u201cpresume that the informant was not reliable or that the description given was not credible.\u201d See Contreras, 2003-NMCA-129, \u00b6\u00b6 10, 12. Moreover, it appears that the caller was an eyewitness to the events described to dispatch, a factor that courts treat as indicative of reliability. See id.\n{17} Defendant appears to read Contreras to hold that an investigative detention based on an anonymous tip is justified only if there is an imminent threat of danger to the public and that an investigatory detention of a possible DWI is unreasonable unless the suspect is still driving. This reading is incorrect. As an initial matter, it contravenes the well-settled principle that, in determining reasonableness, we \u201cavoid bright-line, per se rules\u201d and \u201cconsider the facts of each case.\u201d Granville, 2006-NMCA-098, \u00b6 18. It also is not supported by the principles set forth in Contreras, 2003-NMCA-129, \u00b6\u00b6 13-21.\n{18} In Contreras we \u201cbalance[d] the possible threat of drunk driving to the safety of the public with [the defendant's right to be free from unreasonable seizure[,]\u201d 2003-NMCA-129, \u00b6 13, consistent with the law stating that, in determining the constitutionality of a seizure, we \u201cbalance the nature and quality of the intrusion on the individual\u2019s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.\u201d Paananen, 2015-NMSC-031, \u00b6 13 (internal quotation marks and citation omitted). In so doing, we stated that, \u201c[i]n New Mexico, the elimination of [DWI] and its related offenses is a matter of grave concern to society in general, and to our courts and Legislature in particular[,j\u201d and that \u201ca moving car on a public roadway presents an exigent circumstance that a possessory crime does not.\u201d Contreras, 2003-NMCA-129, \u00b6\u00b6 14, 15 (internal quotation marks and citation omitted). But we did so in the context of explaining that the minimal intrusion posed by an investigatory detention was justified by the need to protect the public from the threat posed by possible drunk driving and that an officer should not have to \u201cexpose the suspect and the public to the danger of a drunk driver[,]\u201d as would result from a requirement that the officer first observe the drunk driving before initiating a detention to investigate a possible DWI. Id. \u00b6\u00b6 15-21; cf. State v. Sims, 2010-NMSC-027, \u00b6 3, 148 N.M. 330, 236 P.3d 642 (\u201cHad the police officer or other witnesses observed [the djefendant behind the steering wheel of a moving vehicle at or near the time of his apprehension, the [s]tate would not have to rely on \u2018actual physical control\u2019 to prove that [the djefendant was DWI. It is only when there are no witnesses to the vehicle\u2019s motion that actual physical control is essential to prove DWI at the time an accused is apprehended.\u201d). As our Supreme Court stated in City of Santa Fe v. Martinez, 2010-NMSC-033, \u00b6 15, 148 N.M. 708, 242 P.3d 275,\nIf an officer was prohibited from making a warrantless arrest of a suspected drunk driver based on the fact that the officer did not actually observe the incident, the officer would be posed with two options \u2014 releasing the suspected drunk driver or obtaining a warrant. If the officer chose to pursue the investigation and obtain a warrant, the evidence needed for the subsequent prosecution could be diluted or lost entirely. In addition to the effect on the evidence, there is also a risk that during the time period in which the officer is obtaining a warrant, a suspect may get into his or her car and drive away, endangering both himself or herself and the public at large. Such a risk is untenable given the strong public interest in deterring the crime of DWI.\n{19} The investigatory detention in Contreras was reasonable under the totality of the circumstances because, in addition to the content and reliability of the facts provided by the anonymous concerned motorist, \u201cthe exigency of the possible threat to public safety that a drunk driver poses, New Mexico\u2019s grave concern about the dangers of drunk drivers, and the minimal intrusion of a brief investigatory stop tip the balance in favor of the stop.\u201d 2003-NMCA-129, \u00b6 21. In this case, the balance of private and public interests tips in favor of the reasonableness of Officer Jensen\u2019s investigatory detention, just as it did in Contreras. The record contains evidence that a man later identified as Defendant had been passed out in the Church\u2019s Chicken bathroom and smelled of alcohol; that he had gotten up, left the restaurant, and driven the car identified by the caller (and confirmed by Officer Jensen) just minutes before Officer Jensen arrived; and that the man was still in the car, as Officer Jensen also subsequently confirmed. No evidence in the record supports Defendant\u2019s assertion that the keys were neither in the ignition, nor in sight, and that Defendant was lying down. A person of reasonable caution could reasonably suspect from the information available to Officer Jensen that a man in the parked car had driven the car while intoxicated and might do so again.\n{20} In our view, Officer Jensen\u2019s conduct in opening the door did not transform his lawful investigative detention into a search that required a warrant, as Defendant appears to contend. Our decision in State v. Lovato, 1991-NMCA-083, 112 N.M. 517, 817 P.2d 251, is instructive on the point. In Lovato, this Court concluded that police officers were justified in making an investigatory stop of a car to determine whether it was involved in a drive-by shooting reported minutes earlier. Id. \u00b6 14. We rejected the defendants\u2019 alternative argument that the investigatory stop was so intrusive as to constitute an arrest and that the police lacked probable cause to support the arrest, holding that \u201cthe intrusive nature of the encounter did not, as a matter of law, turn the investigative stop . . . into an arrest},]\u201d id. \u00b6 23, and that the officers\u2019 actions in calling for assistance and taking precautionary measures to determine whether the car\u2019s occupants were armed were \u201cnot inappropriate in view of the level of danger the officers reasonably could assume to exist.\u201d Id. \u00b6 27. \u201c[T]he court\u2019s true concern in any Fourth Amendment case [is] whether the police conduct, in light of all the circumstances, was reasonable.\u201d Id. \u00b6 31 (quoting United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir. 1982)). And \u201c[e]ven in routine traffic stops, police may adopt precautionary measures addressed to reasonable fears.\u201d Id. \u00b6 26.\n{21} We also rejected the Lovato defendants\u2019 argument that \u201cthe officers exceeded the proper bounds of investigation by opening the car door and that this action effectively amounted to a search of the car.\u201d Id. \u00b633. One of the officers testified that, after the five occupants were out of the car, he and another officer approached with guns drawn because they were not sure if another occupant might be on the floor of the car. Id. The officers\u2019 concerns were not unreasonable, we concluded, given testimony that three people were in the car\u2019s front seat and five people got out of the car, and the facts that it was late at night and the officers\u2019 visibility was limited. We further determined that the officers had a reasonable basis to believe a firearm had been discharged earlier and that either the car\u2019s occupants were armed or weapons were in the car. Id. The defendants also argued that the officers should not have opened the car door because the windows were not tinted and the police could have looked in a window to determine whether someone might still be in the car. Id. \u00b6 34. This argument, we explained, \u201coverlooks the expressed concern of the officers that an armed person might have been hiding in the vehicle.\u201d Id. We held that police in such circumstances \u201cwere not required to forego reasonably prudent steps necessary for their own safety\u201d and that \u201c[u]nder the facts . .. the officers were entitled to take reasonable precautions to insure their safety, including the opening of the car door[.]\u201d Id.\n{22} Similar reasoning applies here, notwithstanding that this case involves a detention to investigate a suspected DWI and not a drive-by shooting. Officer Jensen testified that the car had \u201cvery dark tinted windows\u201d and that, as a result, he could not see inside to determine what the occupants were doing. He believed that the safest way to make contact with the car\u2019s occupants was to open the door, enabling him to see both occupants and remain outside while conducting his investigation. Under all the circumstances confronting Officer Jensen, this safety precaution was reasonable and permissible under the governing law. See id. \u00b6\u00b6 26-34. In sum, under Lovato, Officer Jensen\u2019s conduct in opening the door did not transform a lawful investigatory detention into a search requiring a warrant. The record contains no other evidence of a more intrusive search that might require a warrant.\n{23} Defendant also appears to suggest that Officer Jensen was required to talk to Defendant through the window that was open \u201ca couple of inches.\u201d But officers may take reasonable safety precautions while conducting investigatory detentions, as discussed above. Id. \u00b6 34. And the law does not require that an officer ask questions before doing so in all circumstances. Cobbs, 1985-NMCA-105, \u00b6\u00b6 21-25. As we said in Cobbs, even \u201cwhen an officer is merely investigating a traffic offense, he faces an inordinate risk when he approaches a subject seated in an automobile.\u201d Id. \u00b6 25. We agree with the district court that, at the time he opened the door, Officer Jensen had reasonable suspicion to pursue the investigation and that \u201c[d]ue to the dark tint on the car windows, it was appropriate for him to open the door.\u201d\n{24} Although our application of the governing law to the record before us leads us to conclude that Officer Jensen\u2019s conduct in opening the door required no more justification than the reasonable suspicion we have held was established by the facts available to him, we note the following additional points. First, although exigent circumstances are not required to establish reasonable suspicion for an investigatory detention, New Mexico courts have recognized the evanescent nature of alcohol and the need to preserve evidence as exigent circumstances justifying warrantless searches and seizures in the DWI context, see Martinez, 2010-NMSC-033, \u00b6 15, and that where \u201csufficient exigent circumstances make it not reasonably practicable to get a warrant, one is not required.\u201d Paananen, 2015-NMSC-031, \u00b6 27. Second, Defendant\u2019s assertion that Officer Jensen did not knock before opening the door is contradicted by the district court\u2019s statement, presumably gleaned from his review of the video entered into evidence without objection (but not designated as part of the record on appeal) that \u201c[t]he officer knocked on the car window, waited for a response (to no avail) and peered through the slightly opened window before opening the door.\u201d Cf. State v. Nance, 2011-NMCA-048, \u00b6 26, 149 N.M. 644, 253 P.3d 934 (concluding that intrusion was de minimis and well-tailored to the exigency that evidence material to the DWI case police were investigating was dissipating after balancing the \u201ccompelling public interest in eradicating DWI occurrences and their potentially deadly consequences\u201d against the defendant\u2019s interest, where police did not enter the defendant\u2019s house, did not draw weapons, and did not search the premises incident to the arrest but merely waited outside for fifteen minutes (alteration, internal quotation marks, and citation omitted)). Finally, none of the cases cited by Defendant support his position. For example, in Mundy v. Commonwealth of Kentucky, 342 S.W.3d 878, 885-86 (Ky. Ct. App. 2011), unlike this case, the Kentucky court of appeals concluded that the officer\u2019s opening of the car door was unreasonable because the car was legally parked on the side of the road and there was no reasonable belief that the driver needed assistance.\nCONCLUSION\n{25} The district court\u2019s decision denying Defendant\u2019s motion to suppress and the judgment of conviction are affirmed.\n{26} IT IS SO ORDERED.\nLINDA M. VANZI, Judge\nI CONCUR:\nMICHAEL E. VIGIL, Chief Judge\nTIMOTHY L. GARCIA, Judge (specially concurring)", "type": "majority", "author": "VANZI, Judge." }, { "text": "GARCIA, Judge\n(specially concurring).\n{27} I write to specially concur with the result reached by the majority but disagree with the determination that a constitutionally protected search was not initiated by Officer Jensen when he opened the driver\u2019s side door to further his DWI investigation. See Majority Opinion \u00b6\u00b6 4,10,20-24. Because a search was initiated when Officer Jensen opened the driver\u2019s side door of the vehicle to further his DWI investigation, this Court cannot rely solely upon the reasonable suspicion that justified Officer Jensen\u2019s initial investigation and seizure of the vehicle. We must also address the search that occurred when the driver\u2019s side door was opened by Officer Jensen. In doing so, the facts must also support a determination that probable cause existed for Officer Jensen to continue his search for the male driver of the vehicle that was reported to be very intoxicated and driving erratically in the restaurant parking lot minutes before he arrived. Exigent circumstances must also have existed to open the driver\u2019s side door and determine whether the only male occupant, located in the back seat, was in fact the suspected DWI driver that had been reported to Officer Jensen by dispatch.\n{28} At the suppression hearing, Officer Jensen did not describe any aggressive actions by the occupants of the parked vehicle that might trigger serious officer safety concerns as he approached it and noticed the dark tinted windows, lack of an occupant in the driver\u2019s seat, one male and one female occupant located elsewhere inside the vehicle, and the driver\u2019s side window cracked open \u201ca couple of inches.\u201d Majority Opinion \u00b6 4; See State v. Ketelson, 2011-NMSC-023, \u00b6\u00b6 20-27, 150 N.M. 137, 257 P.3d 957 (analyzing Article II, Section 10 and addressing the officer safety concerns involved in the temporary removal of a visible gun from a vehicle during a routine traffic stop and the reasonableness of such an action when the occupants are not otherwise acting aggressively to establish the type of officer safety concerns that create exigent circumstances to conduc\u00edan immediate search or seizure). Because there was nobody in the driver\u2019s seat to open the window any further, Officer Jensen simply decided to open the driver\u2019s side door to continue his investigation and search for the driver. Majority Opinion \u00b6 4. No evidence was presented to establish that the two occupants were unable to open the driver\u2019s side window further or, alternatively, open any of the other windows or doors in the vehicle to talk to Officer Jensen if he had instructed them to do so. We recognize that the owner of a vehicle has a reasonable expectation of privacy to challenge whether a reasonable search or seizure of the vehicle has occurred. See Gomez, 1997-NMSC-006, \u00b6\u00b6 36-40 (requiring the state to establish both probable cause and exigent circumstances to initiate the search of a vehicle that has been seized by law enforcement). We must now address Defendant\u2019s constitutional challenge that was raised because Officer Jensen did initiate a warrantless search within the suspect vehicle when he affirmatively acted to open the driver\u2019s side door to continue his DWI investigation. See State v. Leticia T., 2014-NMSC-020, \u00b6 12, 329 P.3d 636 (\u201cA warrantless entry into a vehicle under the exigent circumstances exception requires probable cause plus exigent circumstances.\u201d); State v. Rowell, 2008-NMSC-041, \u00b6\u00b6 26, 31, 144 N.M. 371, 188 P.3d 95 (recognizing that warrants are favored and a warrant is required to enter the vehicle unless a recognized exception to the warrant requirement can be proven); State v. Garcia, 2005-NMSC-017, \u00b6 29, 138 N.M. 1, 116 P.3d 72 (\u201cHowever, even with an object in plain view, an officer may not enter the car and seize the object, without either consent, a warrant, or exigent circumstances.\u201d).\n{29} Before initiating a search inside Defendant\u2019s vehicle, probable cause must be established and a search warrant must be issued, unless sufficient exigent circumstances also exist to justify an immediate search without a warrant. See Martinez, 2010-NMSC-033, \u00b6 14 (clarifying that \u201claw enforcement officers conducting DWI investigations . . . [would] be subjected to the constitutional probable cause inquiry of felony warrantless arrests\u201d); Rowell, 2008-NMSC-041, \u00b6\u00b6 26, 31; Gomez, 1997-NMSC-006, \u00b6\u00b6 36-40. Ultimately, the legality of a search turns on the question of reasonableness and we review this determination de novo. State v. Ryon, 2005-NMSC-005, \u00b6 11, 137 N.M. 174, 108 P.3d 1032. Here, the facts known to Officer Jensen were sufficiently reasonable to provide him with probable cause to continue his search. See State v. Snedeker, 1982-NMSC-085, \u00b6 21, 99 N.M. 286, 657 P.2d 613 (\u201cProbable cause . . . exists where the facts and circumstances within the knowledge of the officers, based on reasonably trustworthy information, is sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed.\u201d (internal quotation marks and citation omitted)). The investigation centered around a male drunk driver who had been reported to be erratically driving this particular vehicle in the restaurant parking lot only minutes before the officer arrived, and only one male was located as an occupant inside the vehicle when he looked through the opening in the driver side window. Majority Opinion \u00b6\u00b6 3-4. After confirming that only one male occupant was located inside the vehicle and seeing that nobody was seated in the driver\u2019s seat to open the door or respond to questioning, I agree with the majority that it was objectively reasonable for Officer Jensen to continue his search for the male driver by opening the driver\u2019s side door to speak with the occupants. See Leticia T., 2014-NMSC-020, \u00b6\u00b6 13, 15-19 (recognizing that probable cause was established by the facts known to the officers and their reasonable belief \u201cthat someone in the vehicle was armed and had just assaulted individuals with a rifle\u201d); see also Snedeker, 1982-NMSC-085, \u00b6 22 (recognizing that when the court is determining whether probable cause exists, \u201c(1) only a probability of criminal conduct need be shown; (2) there need be less vigorous proof than the rules of evidence require to determine guilt of an offense; (3) common sense should control; [and] (4) great deference should be shown by [the] courts[.]\u201d (internal quotation marks and citations omitted)). Under this standard of reasonableness and common sense, Officer Jensen had probable cause to open the driver\u2019s side door and investigate whether the one male occupant seated in the back seat was in fact the person who was reported driving this particular vehicle under the influence of alcohol minutes before he arrived.\n{30} Here, exigent circumstances also existed to justify a continuation of the search for the driver among the occupants inside without first obtaining a search warrant. See Leticia T., 2014-NMSC-020, \u00b6 22 (cautioning lower courts in a warrantless vehicle search case to address the range of constitutional choices that an on-scene officer must make and be mindful that, \u201c[fjirst, if reasonable people might differ about whether exigent circumstances existed, we defer to the officer\u2019s good judgment . . . [and sjecond, we should not let our preference for warrants result in overriding an officer\u2019s on-the-scene decision to act immediately where immediate action is one of the lawful options\u201d (alteration, internal quotation marks, and citation omitted)); see also Martinez, 2010-NMSC-033, \u00b6 15 (recognizing that an officer is not \u201cprohibited from making a warrantless arrest of a suspected drunk driver based on the fact that the officer did not actually observe the incident [because i]f the officer chose to pursue the investigation and obtain a warrant, the evidence needed for the subsequent prosecution could be diluted or lost entirely . . . [and] there is also a risk that during the time period in which the officer is obtaining a warrant, a suspect may get into his or her car and drive away, endangering both himself or herself and the public at large\u201d); Ryon, 2005-NMSC-005, \u00b6 26 (recognizing that \u201c[s]ince there is a lesser privacy expectation in a vehicle[,] . . . an involuntary search or seizure there is judged by a lower standard of reasonableness\u201d). When analyzing the facts to determine whether exigent circumstances exist, \u201c[t]he inquiry is an objective test, not a subjective one, into whether a reasonable, well-trained officer would have made the judgment this officer made.\u201d Gomez, 1997-NMSC-006, \u00b6 40.\n{31} Again, after confirming that only one male occupant was located inside the vehicle and seeing that nobody was seated in the driver\u2019s seat to open the door or respond to questioning, an objectively reasonable exigency existed in this DWI investigation to justify Officer Jensen\u2019s continuation of his search for the intoxicated male driver by opening the driver\u2019s side door to speak with the male occupant in the back seat. Because Officer Jensen had sufficient facts to provide probable cause to continue his search for the driver of the suspect vehicle and exigent circumstances also existed to open the driver\u2019s side door and contact the only male occupant that was seated in the back seat, his search was in compliance with both the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution.\n{32} For the reasons stated herein, I specially concur with the majority\u2019s decision to deny Defendant\u2019s motion to suppress and affirm his DWI conviction.\nTIMOTHY L. GARCIA, Judge", "type": "concurrence", "author": "GARCIA, Judge" } ], "attorneys": [ "Hector H. Balderas, Attorney General Laura E. Horton, Assistant Attorney General Santa Fe, NM for Appellee", "Law Offices of Nancy L. Simmons, P.C. Nancy L. Simmons Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Denied, August 8, 2016,\nNo. S-1-SC-35940\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-070\nFiling Date: May 19, 2016\nDocket No. 34,488\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. TOMMY SIMPSON, Defendant-Appellant.\nWilliam C. Birdsall, District Judge\nHector H. Balderas, Attorney General Laura E. Horton, Assistant Attorney General Santa Fe, NM for Appellee\nLaw Offices of Nancy L. Simmons, P.C. Nancy L. Simmons Albuquerque, NM for Appellant" }, "file_name": "0314-01", "first_page_order": 330, "last_page_order": 341 }