State v. Tapia ( 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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,573
10 ANGELO TAPIA,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
13 John W. Pope, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 Jacqueline R. Medina, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Darrell M. Allen
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
1 WECHSLER, Judge.
2 Defendant appeals pursuant to a conditional plea reserving his right to appeal
3 the denial of his motion to suppress. We proposed to reverse the denial in a calendar
4 notice, and the State responded with a memorandum in opposition. We have
5 considered the State’s arguments, but we are not persuaded that our proposed
6 disposition is incorrect. We therefore reverse.
7 In our calendar notice, we discussed the pat-down search of Defendant. The
8 officer’s protective search for weapons was supported by the officer’s observations.
9 However, we proposed to hold that the officer could not remove the soft baggies from
10 Defendant’s pockets during the protective search for weapons. In response, the State
11 argues that the officer first felt a hard object in Defendant’s pocket, asked Defendant
12 what the object was, and Defendant identified the object. The State does not explain
13 what the hard object was and does not suggest that the officer was concerned that the
14 object might be a weapon. As discussed in our calendar notice, our cases require that
15 a protective search be limited to what is necessary to discover weapons that may be
16 used to harm the officer or others nearby, and an officer may “remove a hard object
17 if by touch the officer remains uncertain as to whether the object might be a weapon.”
18 See State v. Barragan, 2001-NMCA-086, ¶ 14, 131 N.M. 281, 34 P.2d 1157.
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1 Otherwise, the officer may not seize items that would not reasonably be considered
2 weapons or potential weapons. State v. Ochoa, 2004-NMSC-023, ¶ 8, 135 N.M. 781,
3 93 P.3d 1286.
4 In this case, although the officer felt a hard object, there is nothing to show that
5 he was concerned that the object was a weapon. The officer then felt a “soft bulge”
6 and asked Defendant about the item. This was beyond the scope of a protective search
7 where the purpose of a protective pat-down search is to look for weapons or items that
8 could reasonably be considered weapons or potential weapons. The officer was not
9 permitted to search for or retrieve items that would not reasonably be considered
10 weapons. The evidence seized by the officer should have been suppressed. We note
11 that the State cites to a Florida case in support of reversal. However, the case referred
12 to by the State did not involve a protective search or the more restrictive standard
13 applied to protective searches.
14 For the reasons discussed above and in our second calendar notice, we reverse
15 the denial of Defendant’s motion to suppress.
16 IT IS SO ORDERED.
17
18 _______________________________
19 JAMES J. WECHSLER, Judge
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1 WE CONCUR:
2 ______________________________
3 MICHAEL E. VIGIL, Judge
4 ______________________________
5 LINDA M. VANZI, Judge
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