State v. Keding ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 vs. No. 31,842
5 LARRY JEROMY KEDING,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Fernando Macias, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellant
12 Jacqueline L. Cooper, Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellee
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 The State appeals an order granting in part Keding’s motion to suppress
2 evidence obtained while he was questioned by a police officer on the side of the road.
3 In this Court’s first and second notices of proposed summary disposition, we proposed
4 to reverse. Keding has filed two memoranda in opposition, which we have duly
5 considered. As we are not persuaded by Keding’s arguments, we reverse.
6 In this Court’s first and second notices, we proposed to conclude that the
7 district court erred in suppressing the evidence based on a claimed Miranda violation.
8 We stated that although Keding was detained for Fourth Amendment purposes, he was
9 not in custody for purposes of Miranda and the Fifth Amendment. See Armijo v. State
10 Transp. Dep’t, 105 N.M. 771, 773, 737 P.2d 552, 554 (Ct. App. 1987) (holding that
11 a traffic stop during which the defendant was questioned and asked to take, and then
12 repeat, field sobriety tests did not rise to the level of custody for purposes of Miranda
13 even thought the defendant was not free to leave); see also State v. Wilson, 2007-
14 NMCA-111, ¶¶ 20-35, 142 N.M. 737, 169 P.3d 1184 (stating that roadside
15 questioning during an ordinary traffic stop does not constitute custody, but that the
16 defendant was in custody for Miranda purposes once he was handcuffed and placed
17 in the back seat of a police car). In Keding’s second memorandum in opposition, he
18 relies on the same facts and authorities presented in his first memorandum in
19 opposition. [2nd MIO 2-3] For the reasons we have discussed in our first and second
2
1 notices, we are not persuaded that Keding was in custody for purposes of Miranda.
2 Accordingly, suppression was not warranted on this basis. In Keding’s first
3 memorandum in opposition, he argued that this Court could affirm the district court’s
4 suppression order on the basis that the officer lacked reasonable suspicion to detain
5 him. We agreed that if this argument had merit, it would be a proper basis for
6 affirmance. See State v. McNeal, 2008-NMCA-004, ¶¶ 12-13, 143 N.M. 239, 175
7 P.3d 233 (stating that although a defendant has no right to appeal an interlocutory
8 ruling suppressing evidence, if the [s]tate brings such an appeal, a defendant may
9 make a right-for-any reason argument in support of the district court’s decision).
10 However, we proposed to hold that the facts of this case provided the officer with a
11 reasonable suspicion sufficient to support a brief detention in order to investigate the
12 hand-to-hand cash transaction that he had just observed. Keding’s second
13 memorandum in opposition provides no new facts or authorities that would persuade
14 this Court that its proposed resolution of this issue is erroneous. Accordingly, we hold
15 that the officer had reasonable suspicion to detain Keding.
16 Therefore, for the reasons stated here and in our first and second notices, we
17 reverse.
18 IT IS SO ORDERED.
3
1
2 TIMOTHY L. GARCIA, Judge
3 WE CONCUR:
4
5 CELIA FOY CASTILLO, Chief Judge
6
7 JONATHAN B. SUTIN, Judge
4