{ "id": 2545456, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Clarence HARBISON, Defendant-Appellee", "name_abbreviation": "State v. Harbison", "decision_date": "2005-11-28", "docket_number": "No. 24,940", "first_page": "59", "last_page": "67", "citations": [ { "type": "official", "cite": "139 N.M. 59" }, { "type": "parallel", "cite": "128 P.3d 487" }, { "type": "parallel", "cite": "2006-NMCA-016" } ], "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": "90 P.3d 1041", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2004, "opinion_index": 0 }, { "cite": "2004 UT App 73", "category": "reporters:neutral", "reporter": "UT App", "case_ids": [ 9276305 ], "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 3, 20" } ], "opinion_index": 0, "case_paths": [ "/p3d/88/0368-01" ] }, { "cite": "31 Kan.App.2d 149", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 1363867 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "115-17" }, { "page": "116-17", "parenthetical": "stating that a part of the totality of the circumstances analysis involves allowing \"officers to draw on then-own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person\"" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/31/0149-01" ] }, { "cite": "97 P.3d 338", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 9194400 ], "pin_cites": [ { "page": "342-43" } ], "opinion_index": 0, "case_paths": [ "/p3d/97/0338-01" ] }, { "cite": "412 F.3d 1179", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8972347 ], "weight": 2, "pin_cites": [ { "page": "1184, 1192" }, { "page": "1193", "parenthetical": "stating that when viewed in the totality of the circumstances, facts giving rise to a concern for officer safety may justify a brief protective search of a defendant's home" } ], "opinion_index": 0, "case_paths": [ "/f3d/412/1179-01" ] }, { "cite": "528 U.S. 119", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476180 ], "weight": 32, "year": 2000, "pin_cites": [ { "page": "121" }, { "page": "121-22" }, { "page": "122" }, { "page": "124-25" }, { "page": "124" }, { "page": "124-25" }, { "page": "125" }, { "page": "125-26" }, { "page": "123" }, { "page": "125" }, { "page": "121" }, { "page": "125-26" } ], "opinion_index": 0, "case_paths": [ "/us/528/0119-01" ] }, { "cite": "276 Kan. 11", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 12163355 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/kan/276/0011-01" ] }, { "cite": "1997-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18620 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 8" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0205-01" ] }, { "cite": "2003-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77174 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 52" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0566-01" ] }, { "cite": "106 S.W.3d 338", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9112680 ], "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0, "case_paths": [ "/sw3d/106/0338-01" ] }, { "cite": "985 F.2d 151", "category": "reporters:federal", "reporter": "F.2d", "weight": 11, "pin_cites": [ { "page": "153" }, { "page": "155" } ], "opinion_index": 0 }, { "cite": "981 F.2d 536", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3811168, 1874935 ], "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/299/0047-01", "/f2d/981/0536-01" ] }, { "cite": "499 U.S. 621", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11320254 ], "weight": 17, "year": 1991, "pin_cites": [ { "page": "622-23" }, { "page": "623" }, { "page": "625-26" }, { "page": "626" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/us/499/0621-01" ] }, { "cite": "2005-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929147 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0174-01" ] }, { "cite": "2002-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260742 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0592-01" ] }, { "cite": "1997-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142210 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0088-01" ] }, { "cite": "2005-NMCA-014", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224596 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6 3" }, { "page": "\u00b6 6" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0788-01" ] }, { "cite": "2000-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217162 ], "weight": 18, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 17" }, { "page": "\u00b6 10" }, { "page": "\u00b620" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0119-01" ] }, { "cite": "2003-NMCA-071", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15705 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0741-01" ] } ], "analysis": { "cardinality": 1133, "char_count": 29149, "ocr_confidence": 0.674, "pagerank": { "raw": 5.2051355678608616e-08, "percentile": 0.3259877313310544 }, "sha256": "7ab83a8bb9b3818f85a5208d4001ee977a709373ae082939d67527e65cb8452e", "simhash": "1:aca6f8292d2287e3", "word_count": 4678 }, "last_updated": "2023-07-14T19:33:27.919749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FRY and ROBINSON, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Clarence HARBISON, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, J.\n{1} The State of New Mexico appeals the district court\u2019s grant of Defendant\u2019s motion to suppress evidence. The State argues that the district court erred in granting the motion with regard to a rock of crack cocaine Defendant allegedly threw underneath a car before being handcuffed because Defendant was not seized by the arresting officer until he was placed in handcuffs and therefore Defendant abandoned the crack cocaine. The State also argues that Defendant\u2019s seizure was supported by reasonable suspicion. Because we believe, based on the totality of the circumstances, that the arresting officer had reasonable suspicion to briefly detain Defendant, we reverse the district court\u2019s grant of Defendant\u2019s motion to suppress evidence.\nFACTUAL AND PROCEDURAL HISTORY\n{2} On June 13, 2003, Albuquerque Police Department detectives from the Northeast Impact Team organized and executed an undercover \u201cbuy-bust\u201d operation in northeast Albuquerque. The detectives chose the neighborhood in question because they had received \u201creports of the prevalence of drugs and drug dealing in the area.\u201d Six of the detectives involved in the operation, who were part of the \u201carrest team,\u201d were dressed in jeans, shirts, and black \u201ctuck\u201d vests that said \u201cAlbuquerque Police\u201d with a badge on the front and the word \u201cPolice\u201d on the back. The remaining team member, Detective J.R. Potter, who was undercover, wore plain clothes without any insignia identifying him as a detective. All of the detectives were driving unmarked police vehicles.\n{3} The \u201cbuy-bust\u201d operation consisted of Detective Potter posing as a drug purchaser by driving through the neighborhood and nodding at individuals on the corner. \u201c[I]f he got a nod back, ... he would turn around\u201d and attempt to buy drugs from the individual. At approximately 9:22 p.m., Detective Ray Soto, one of the \u201carrest team\u201d members, observed Detective Potter interacting with an individual. After pulling his vehicle away from the individual, Detective Potter, using his radio, informed Detective Soto and the rest of his team members that he had just made a cocaine \u201cbuy\u201d from that individual. Detective Potter described the suspect as a \u201cblack male[,] gray sweatshirt, black pants.\u201d He also informed the detectives that the suspect\u2019s sweatshirt was emblazoned with the phrase: \u201cReal Men Don\u2019t Need Directions\u201d and gave a height estimate of the suspect. The suspect was later identified as Lawrence Clark.\n{4} Within thirty seconds of Detective Potter\u2019s cocaine purchase, the remaining members of the \u201carrest team\u201d arrived and observed a group of \u201ceight to ten subjects\u201d near a building approximately fifty feet away from where the buy had occurred. In addition to this group standing outside, there was a female sitting inside a Bronco SUV and three males inside another car, all within the immediate vicinity in question. As the detectives approached the group of people who were standing by the building, Detective Soto testified that he could see a subject fitting the suspect\u2019s description among the group.\n{5} Defendant, who was in the group, was not standing immediately next to Clark. They were described as being \u201cat ten and two [o\u2019clock] in relation to each other around the circle.\u201d The officers did not observe any interaction between Defendant and Clark. As the detectives got out of their vehicles, the group began to scatter. Detective Soto had his gun drawn. Clark attempted to run and was captured and placed under arrest.\n{6} Defendant also departed from the group, in the opposite direction from Clark, in what Detective Soto described as a \u201cslow run.\u201d Detective Soto pursued Defendant, with his gun drawn, shouting \u201cPolice; don\u2019t move. Please don\u2019t move.\u201d After Detective Soto told Defendant to get on the ground, Defendant stopped running and \u201cwent to his knees\u201d in front of a car and \u201cthrew something under the car.\u201d Detective Soto placed Defendant in handcuffs and looked under the car to see what Defendant had thrown. He found a broken glass crack pipe, a lighter, and a small piece of what was later identified as crack cocaine. Detective Soto testified that as he turned around to face Defendant, he noticed that Defendant, while handcuffed, \u201chad his finger on his coin pocket\u201d and was trying to remove something. Detective Soto then reached into Defendant\u2019s pocket and retrieved a second rock of crack cocaine. Defendant was formally arrested and charged with possession of crack cocaine and drug paraphernalia.\n{7} Defendant filed a motion to suppress evidence, arguing that Detective Soto lacked reasonable suspicion when he pursued and seized Defendant. After hearing argument, the district court granted Defendant\u2019s motion and entered the order from which the State now appeals.\nSTANDARD OF REVIEW\n{8} The applicable standard of review of a ruling on a motion to suppress is \u201cwhether the law was correctly applied to the facts, viewing the facts in the light most favorable to the prevailing party.\u201d State v. Joe, 2003-NMCA-071, \u00b6 6, 133 N.M. 741, 69 P.3d 251. We \u201cmust defer to the district court with respect to findings 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. We will indulge in all reasonable inferences in support of the district court\u2019s ruling and disregard all evidence and inferences to the contrary. Id. The issues of whether Defendant was seized and whether Defendant abandoned evidence prior to being seized by police detectives are legal issues that we review de novo. See State v. Rector, 2005-NMCA-014, \u00b6 4, 136 N.M. 788, 105 P.3d 341 (reviewing de novo the issue of whether the defendant abandoned contraband prior to being seized by police officers); State v. Walters, 1997-NMCA-013, \u00b6 8, 123 N.M. 88, 934 P.2d 282 (\u201cSeizure under the Constitution is a question of law, but it is a question of fact whether a person was accosted and restrained in such a manner that a reasonable person in the same circumstances would believe he was not free to leave.\u201d). We review determinations of reasonable suspicion and probable cause de novo. State v. Urioste, 2002-NMSC-023, \u00b6 6, 132 N.M. 592, 52 P.3d 964.\nABANDONMENT ARGUMENTS\n{9} The State appears to argue that the initial encounter between Detective Soto and Defendant was consensual and therefore Defendant abandoned the evidence he allegedly threw under the car. As a result, the State\u2019s position appears to be that no seizure took place until Defendant was handcuffed. We do not agree. Our case law recognizes three types of encounters between police officers and citizens in the context of crime investigation. They are \u201cconsensual encounters, investigatory detentions, and arrests.\u201d State v. Ryon, 2005-NMSC-005, \u00b6 20, 137 N.M. 174, 108 P.3d 1032. \u201cConsent is an exception to the Fourth Amendment probable cause and reasonable suspicion requirements that police often rely on to investigate suspected criminal activity.\u201d Id. To determine whether a police-citizen encounter is consensual, we consider \u201cthe totality of the circumstances surrounding the encounter [to ascertain whether] the police conduct would have communicated to a reasonable person that the person was not free to decline the officers\u2019 requests or otherwise terminate the encounter.\u201d Walters, 1997-NMCA-013, \u00b6 12, 123 N.M. 88, 934 P.2d 282 (internal quotation marks and citation omitted).\n{10} In this case, the record indicates that Detective Soto had his weapon drawn and pursued Defendant while commanding him to stop and get down on the ground. A reasonable person would not have felt free to leave in that situation. See Jason L., 2000-NMSC-018, \u00b6 17, 129 N.M. 119, 2 P.3d 856 (stating that the \u201cuse of aggressive language or tone of voice indicating that compliance with an officer\u2019s request is compulsory\u201d by armed police officers, in addition to threatening presence of several officers, could be considered as factors in determining that a reasonable person would not feel free to leave) (internal quotation marks and citations omitted). The initial contact between Officer Soto and Defendant cannot be characterized as a consensual encounter.\n{11} The State also argues that Defendant abandoned the drug paraphernalia and a crack rock because he fled from Detective Soto and therefore he was not seized until Detective Soto placed him in handcuffs. The crux of the State\u2019s argument is that California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), and Rector stand for the proposition that once a person flees from an officer, the person is not seized for Fourth Amendment purposes until the person is physically apprehended. However, our reading of Hodari D. and Rector does not lead us to the State\u2019s conclusion that Defendant was not seized until Detective Soto placed him in handcuffs.\n{12} The defendant in Hodari D. was standing on a street curb, in a high crime area, when he saw an unmarked police cruiser approaching. Hodari D., 499 U.S. at 622-23, 111 S.Ct. 1547. The defendant apparently \u201cpanicked\u201d at the sight of the police cruiser and fled. Id. at 623, 111 S.Ct. 1547. One of the officers in the cruiser chased the defendant, and as he ran, noticed that the defendant discarded what was later determined to be a rock of crack cocaine. Id. The California Court of Appeal held that the defendant was seized when he saw the officer chasing him and that the seizure was unreasonable under the Fourth Amendment. Id. The issue in Hodari D. was whether a person who flees in the face of a \u201cshow of authority\u201d by police has been seized or arrested for Fourth Amendment purposes. Id. at 625-26, 111 S.Ct. 1547. The United States Supreme Court held that a person is not seized for Fourth Amendment purposes when the person does not yield to a show of authority by police. Id. at 626, 111 S.Ct. 1547. As a result, the defendant in Hodari D. was not seized until he was tackled by the police officer who was chasing him. Id. at 629, 111 S.Ct. 1547. Therefore, the rock cocaine that the defendant had discarded while being chased was deemed to have been abandoned even though the officer coneededly did not have reasonable suspicion to pursue him. Id. at 624 n. 1, 629, 111 S.Ct. 1547.\n{13} This Court dealt with a similar issue in Rector, in which the defendant also discarded a rock of crack cocaine while being chased by police officers. Rector, 2005-NMCA-014, \u00b6 3, 136 N.M. 788, 105 P.3d 341. The defendant also argued that the evidence should have been suppressed by the district court because the police officers lacked reasonable suspicion for an investigatory stop and because the officer\u2019s discovery of the cocaine was the result of an illegal seizure. Id. \u00b6 1. Relying on Hodari D., this Court stated that \u201ca seizure requires either physical force ... or, where that is absent, submission to the assertion of authority.\u201d Rector, 2005-NMCA-014, \u00b6 6, 136 N.M. 788, 105 P.3d 341 (internal quotation marks and citation omitted). Therefore, we affirmed the district court\u2019s denial of the defendant\u2019s motion to suppress, stating that the defendant \u201cneither submitted to the officers\u2019 show of authority nor was he physically restrained until he was grabbed and handcuffed by\u201d the arresting officer. Id. \u00b6 8.\n{14} This case is not like Hodari D. and Rector. Defendant initially fled from Detective Soto at a \u201cslow run\u201d for less than one minute. As previously indicated, Detective Soto was pursuing Defendant with his gun drawn. In response to Detective Soto\u2019s command, Defendant stopped running and dropped to his knees. There is no question that Detective Soto was expressing a show of authority when he was chasing Defendant, while wearing his police vest, with his gun drawn, and commanding him \u201c[p]lease don\u2019t move\u201d and to get on the ground. See United States v. Wood, 981 F.2d 536, 539 (D.C.Cir.1992) (stating that when presented with a question of whether a defendant was seized before being physically apprehended \u201cwe must determine (1) whether [the police officer] used a \u2018show of authority to seize the appellant and (2) whether the appellant submitted to the assertion of authority\u201d). It would appear from the record that Defendant was indeed obeying Detective Soto\u2019s command when he stopped running and began to kneel, and, at that time, he \u201csubmitted to the officers\u2019 show of authority\u201d sufficiently to trigger a seizure for Fourth Amendment purposes despite not yet having been physically apprehended. See Rector, 2005-NMCA-014, \u00b6 8, 136 N.M. 788, 105 P.3d 341.\n{15} As we previously stated, we must defer to the district court\u2019s findings of historical fact. Jason L., 2000-NMSC-018, \u00b6 10, 129 N.M. 119, 2 P.3d 856. The district court found that \u201cas [Defendant] went to his knees, he threw something under the car.\u201d Officer Soto testified that he did not know Defendant threw something until he heard \u201cglass on the ground\u201d after Defendant\u2019s knees hit the ground. Therefore, our deferential standard of review allows for the inference that Defendant knelt first and then discarded the contraband. See id. Because Defendant submitted to Detective Soto\u2019s authority when he stopped running and began to kneel, Defendant did not abandon the cocaine evidence prior to being seized as did the defendants in Hodari D. and Rector.\n{16} This case is also not like United States v. Lender, 985 F.2d 151 (4th Cir.1993), upon which the State relies in making the argument that Defendant\u2019s conduct in stopping and kneeling was not a submission to Detective Soto\u2019s authority, but was instead, a \u201cmomentary halt.\u201d In Lender, two police officers patrolling an area known for high drug activity observed the defendant, who was in a group of four to five men, engaging in what appeared to be a drug transaction. Id. at 153. As the officers approached the group, it began to disperse. Id. When one of the officers asked the defendant to stop, he refused, instead telling one of the officers, \u201cYou don\u2019t want me; you don\u2019t want me.\u201d Id. As the defendant continued to walk away, \u201cboth officers observed him bring his hands to the front of his waist as though reaching for or fumbling with something in that area.\u201d Id. One of the officers again asked the defendant to stop, and as the defendant appeared to comply, \u201ca loaded semi-automatic pistol fell from his waist to the ground.\u201d Id. Both the defendant and one of the officers simultaneously reached for the weapon. Id. The other officer immediately subdued the defendant, who was then arrested for carrying a concealed weapon. Id.\n{17} In affirming the trial court\u2019s denial of the defendant\u2019s motion to suppress, the Fourth Circuit Court of Appeals stated that the defendant\u2019s \u201cmomentary halt on the sidewalk with his back to the officers\u201d did not constitute \u201ca yielding to their authority\u201d for purposes of determining when he was seized. Id. at 155. Rather, the Court stated that the defendant\u2019s statements and fumbling prior to stopping, in addition to his conduct in immediately reaching for the pistol when it fell, were not consistent with conduct indicating he was yielding to the officers\u2019 authority. Id. The Court stated that the defendant\u2019s conduct was more \u201cconsistent with preparation to whirl and shoot the officers.\u201d Id.\n{18} The record indicates that Defendant in this case did not exhibit conduct even remotely similar to that of the defendant in Lender. Defendant, in dropping to his knees, did nothing to indicate he was going to continue fleeing, much less attack Detective Soto. Instead, even though Defendant may have been attempting to deceive Detective Soto by discarding contraband, he was still seized because he complied with Detective Soto\u2019s command to cease running and get down on the ground. See In re A.T.H., 106 S.W.3d 338, 348-49 (Tex.Ct.App.2003) (holding that a juvenile was seized for Fourth Amendment purposes when he obeyed a police officer\u2019s order to place his hands above his head, even though he attempted to hide contraband, because the defendant \u201cattempted to conceal a baggie while still complying with [the officer\u2019s] request\u201d).\nREASONABLE SUSPICION\n{19} Our determination that Defendant did not abandon the evidence he discarded does not end our inquiry. The State argues that the district court erred in granting Defendant\u2019s motion to suppress because Detective Soto\u2019s encounter with Defendant was supported by reasonable suspicion. As an initial point, Defendant argues that the State has waived this issue by conceding the point in its proposed findings of fact and conclusions of law, proposing a conclusion of law stating, \u201cThe police officers did not have reasonable suspicion to stop or detain the defendant.\u201d The State argues both that the concession was a typographical error and that the issue was preserved because the prosecutor and Defendant argued the issue below and because the district court ruled on the issue. We agree with Defendant that the State\u2019s proposed findings purport to concede the issue. However, the issue of reasonable suspicion was litigated at length at the motion to suppress hearing, and our review of the transcript and the record indicate that the district court made a ruling on the issue. Therefore, despite the State\u2019s curiously drafted findings and conclusions, we believe the issue was preserved for review. See State v. Vandenberg, 2003-NMSC-030, \u00b6 52, 134 N.M. 566, 81 P.3d 19 (\u201cTo preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.\u201d) (internal quotation marks and citation omitted).\n{20} We therefore address the issue of whether Detective Soto had reasonable suspicion to pursue and detain Defendant. In \u201cappropriate circumstances, a police officer may detain a person in order to investigate possible criminal activity, even if there is no probable cause to make an arrest.\u201d State v. Eli L., 1997-NMCA-109, \u00b6 8, 124 N.M. 205, 947 P.2d 162 (internal quotation marks and citation omitted). Such \u201ccircumstances must arise from the [police] officer\u2019s reasonable suspicion that the law is being or has been broken.\u201d Id. (internal quotation marks and citation omitted). \u201cA reasonable suspicion is a particularized suspicion, based on all the circumstances that a particular individual, the one detained, is breaking, or has broken, the law.\u201d Jason L., 2000-NMSC-018, \u00b620, 129 N.M. 119, 2 P.3d 856. The officer may not rely upon \u201c[unsupported intuition and inarticulate hunches.\u201d Id. (internal quotation marks and citation omitted).\n{21} The State argues that Detective Soto developed reasonable suspicion to detain Defendant because (1) Detective Soto testified that he was familiar with multiple-person drug sales, (2) Defendant was standing in a group of eight to ten individuals near where one of those individuals had recently sold crack cocaine to an undercover detective, (3) Defendant initially fled from Detective Soto, and (4) Clark fled in the opposite direction of Defendant. We agree with Defendant that \u201cNew Mexico has not dispense[d] with the requirement of individualized, particularized suspicion.\u201d Jason L., 2000-NMSC-018, \u00b6 21, 129 N.M. 119, 2 P.3d 856 (alteration in original) (internal quotation marks and citation omitted). In addition, \u201c[a] person\u2019s mere propinquity to others independently suspected of criminal activity does not, without more, authorize a [seizure of the person] unless the officer has reasonable suspicion [of criminal activity] directed specifically at that person.\u201d State v. Morris, 276 Kan. 11, 72 P.3d 570, 580 (2003). However, in this case, Detective Soto had individualized conduct on the part of Defendant to factor into his reasonable suspicion determination based on Defendant\u2019s flight.\n{22} The consideration of a defendant\u2019s flight from police officers as a factor in determining reasonable suspicion is an issue of first impression in New Mexico. The United States Supreme Court dealt with a similar issue in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), in a manner which we find instructive.\n{23} In Wardlow, two police officers were driving through an area known for heavy narcotics trafficking when they noticed the defendant. Id. at 121, 120 S.Ct. 673. The officers were traveling as part of a four-car caravan because they anticipated finding a crowd \u201cin the area, including lookouts and [narcotics] customers.\u201d Id. The officers noticed the defendant standing next to a building and holding an opaque bag. Id. at 121-22, 120 S.Ct. 673. The defendant looked in the officer\u2019s direction and fled. Id. at 122, 120 S.Ct. 673. The officers followed the defendant in their vehicle and observed him as he \u201cran through the gangway and an alley,\u201d and eventually caught up to and detained the defendant. Id One of the officers \u201cimmediately conducted a protective patdown search for weapons because in his experience it was common for there to be weapons in the near vicinity of narcotics transactions.\u201d Id. The search yielded the discovery of a loaded .38-caliber pistol, which led to the defendant\u2019s arrest and subsequent conviction for unlawful use of a weapon by a felon. Id.\n{24} The United States Supreme Court held that the officers had reasonable suspicion to briefly detain the defendant. Id. at 124-25, 120 S.Ct. 673. It reasoned that \u201cit was not merely [the defendant\u2019s] presence in an area of heavy narcotics trafficking that aroused the officers\u2019 suspicion, but his unprovoked flight upon noticing the police.\u201d Id. at 124, 120 S.Ct. 673. It further stated that:\nHeadlong flight \u2014 wherever it occurs \u2014 is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer\u2019s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.\nId. at 124-25, 120 S.Ct. 673. The Court also instructed that an individual has the right, when approached by a police officer who does not have reasonable suspicion, \u201cto ignore the police [officer] and go about his business.\u201d Id. at 125, 120 S.Ct. 673. However, it stated that flight is not akin to a mere refusal to cooperate. Id. Instead, it stated that flight, at the very least, creates an ambiguity regarding the lawfulness of the individual\u2019s conduct and that officers, when confronted with such flight, are allowed to briefly stop the individual and resolve the ambiguity. Id. at 125-26, 120 S.Ct. 673. Moreover, the Court stated that reasonable suspicion \u201crequires a showing considerably less than preponderance of the evidence.\u201d Id. at 123, 120 S.Ct. 673.\n{25} Other federal and state jurisdictions have held that a defendant\u2019s flight need not necessarily be \u201cheadlong\u201d as articulated in Wardloiv, in order to be a factor in determining the presence of reasonable suspicion under the totality of circumstances. See, e.g., United States v. Hank, 412 F.3d 1179, 1184, 1192 (10th Cir.2005) (relying on Wardlow in stating that police officers\u2019 observation of an unidentified individual entering the defendant\u2019s house, coupled with the defendant\u2019s attempt to retreat into his house and immediately \u201cclose the door\u201d after responding to the officers\u2019 knock were factors in providing reasonable suspicion and justification for the officers\u2019 protective sweep of the defendant\u2019s home without a warrant); People v. Rushdoony, 97 P.3d 338, 342-43 (Colo.Ct.App.2004) (relying on Wardlow in interpreting the defendant\u2019s behavior as flight when the defendant \u201cimmediately\u201d backed away from a dumpster in which he was digging and moved toward his car when he was approached by police, and determining that the defendant\u2019s flight, coupled with the fact that there had been recent burglaries in the area and the lateness of the hour, justified a brief investigatory stop by police); State v. Griffin, 31 Kan.App.2d 149, 61 P.3d 112, 115-17 (2003) (relying on Wardlow in stating that the defendant\u2019s attempt to drive away from approaching police officers, late at night, in an area where one officer had observed unrelated drug transactions, and where known convicted drug offenders resided, was sufficient under the totality of circumstances to give rise to reasonable suspicion justifying a brief detention of the defendant); State v. Cushing, 2004 UT App 73, \u00b6\u00b6 3, 20, 88 P.3d 368 (relying on Wardlow in stating that the defendant\u2019s flight from a police officer, which began as \u201calmost [jogging]\u201d from a vehicle stop of an apparently intoxicated driver when he was the passenger, in a high crime area, justified pursuit and a brief investigatory detention of the defendant) (alteration in original), cert. granted, 90 P.3d 1041 (Utah 2004).\n{26} In this case, the district court stated that Detective Soto and the APD Impact Team were conducting their \u201cbuy-bust\u201d operation in an area known for \u201cthe prevalence of drugs and drug dealing.\u201d More significantly, Detective Soto approached a group of eight to ten people knowing that one of them had just committed a crime by selling drugs to an undercover police officer approximately one minute earlier. Defendant fled from Detective Soto in a \u201cslow run\u201d and initially disregarded Detective Soto\u2019s commands to stop running. Detective Soto articulated that he was familiar with multiple-person drug transactions and that he suspected Defendant of being a part of one, along with Clark and the other individuals in the immediate vicinity of Clark. He stated that he was familiar with situations where drug dealers were not working alone, but rather employed other individuals to \u201chold [drugs] for them\u201d or act as lookouts. See Griffin, 61 P.3d at 116-17 (stating that a part of the totality of the circumstances analysis involves allowing \u201cofficers to draw on then-own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person\u201d) (internal quotation marks and citation omitted). Detective Soto also stated that he pursued Defendant because he and his fellow officers were outnumbered, and he was concerned that Defendant might pose a threat to the safety of the officers if allowed to leave the officers\u2019 line of sight.\n{27} As stated in Wardlow, our totality of the circumstances analysis must not be guided by a requirement of \u201cscientific certainty from ... law enforcement officers where none exists.\u201d Wardlow, 528 U.S. at 125, 120 S.Ct. 673. Instead, we are to base our reasonable suspicion determination on \u201ccommonsense judgments and inferences about human behavior.\u201d Id. Indeed, the circumstances in this case indicate a stronger inference of Defendant\u2019s involvement in criminal activity than Wardlow because, in this case, known criminal activity had just taken place. In Wardlow, although the area was known for heavy drug trafficking, the officers had not just observed the commission of a crime. See id. at 121,120 S.Ct. 673. It does not matter that Detective Soto did not actually see Defendant commit a crime or that the individual who actually sold narcotics to Detective Potter, Clark, was easily identifiable. The totality of the circumstances, indicating the existence of criminal activity and Defendant\u2019s flight from the group at the location of the criminal activity, gave rise to the reasonable inference that Defendant was also engaged in the criminal activity. Detective Soto was justified in pursuing Defendant and briefly detaining him for his own safety and to resolve the ambiguity created by Defendant\u2019s flight and subsequent refusal to heed directions. See id. at 125-26, 120 S.Ct. 673 (stating that flight, although by itself not necessarily indicative of wrongdoing may, when viewed in totality of the circumstances, give rise to reasonable suspicion allowing the officer to briefly detain the fleeing individual in order to \u201cresolve the ambiguity\u201d); Hauk, 412 F.3d at 1193 (stating that when viewed in the totality of the circumstances, facts giving rise to a concern for officer safety may justify a brief protective search of a defendant\u2019s home).\nCONCLUSION\n{28} When viewed under the totality of the circumstances, Detective Soto had reasonable suspicion to pursue and briefly detain Defendant based on Defendant\u2019s flight in conjunction with the known criminal activity that had just taken place at the location. Therefore, we reverse the district court\u2019s order granting Defendant\u2019s motion to suppress evidence.\n{29} IT IS SO ORDERED.\nFRY and ROBINSON, JJ., concur.", "type": "majority", "author": "WECHSLER, J." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, Santa Fe, M. Anne Kelly, Assistant Attorney General, Albuquerque, for Appellant.", "John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, for Appellee." ], "corrections": "", "head_matter": "2006-NMCA-016\n128 P.3d 487\nSTATE of New Mexico, Plaintiff-Appellant, v. Clarence HARBISON, Defendant-Appellee.\nNo. 24,940.\nCourt of Appeals of New Mexico.\nNov. 28, 2005.\nCertiorari Granted, No. 29,597, Feb. 2, 2006.\nPatricia A. Madrid, Attorney General, Santa Fe, M. Anne Kelly, Assistant Attorney General, Albuquerque, for Appellant.\nJohn Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, for Appellee." }, "file_name": "0059-01", "first_page_order": 91, "last_page_order": 99 }