State v. Frank ( 2010 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,610
10 CHRISTOPHER FRANK,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
1 CASTILLO, Judge.
2 Defendant is appealing from a district court judgment and sentence filed after
3 he entered a conditional guilty plea to DWI and child abuse. We issued a calendar
4 notice proposing to affirm. Defendant has filed a memorandum in opposition.
5 Finding it unpersuasive, we affirm.
6 Defendant’s conditional plea agreement [RP 64] reserved the right to raise on
7 appeal the issue of whether the district court erred in denying his motion to suppress,
8 which argued that the stop of his vehicle lacked reasonable suspicion. [RP 35] “In making
9 a determination about reasonable suspicion, a reviewing court must look at the totality of
10 the circumstances.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964.
11 “Police officers possess reasonable suspicion when they are aware of specific articulable
12 facts that, judged objectively, would lead a reasonable person to believe criminal activity
13 occurred or was occurring.” Id. (internal quotation marks and citation omitted).
14 Here, the officer received a dispatch informing him that a male individual was
15 denied alcohol sales based on intoxication and had left the gas station at mile marker
16 38 on Highway 64. [MIO 1; DS 3] The officer was given specific information with
17 respect to the description of the vehicle—that it was a grey, four-door, passenger
18 vehicle with tinted windows and a license plate with the last digit “3.” [MIO 1; DS 3]
19 The officer observed a vehicle heading east and pulling into a gas station
2
1 approximately four miles from the location of the tip. [MIO 1-2; DS 3] The vehicle
2 was a grey, four-door passenger vehicle with tinted windows and a license plate with
3 the last digit “3.” [MIO 1-2; DS 3] The officer initiated the stop at this time. [MIO
4 2; DS 3]
5 Defendant continues to argue that the officer did not have reasonable suspicion
6 because the stop was based solely on the tip from the citizen. We agree that “[a]n
7 anonymous tip . . . must be suitably corroborated or exhibit sufficient indicia of
8 reliability to provide the police reasonable suspicion to make an investigatory stop.”
9 State v. Contreras, 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. As indicated
10 above, the office did, in fact, corroborate the information provided by the caller.
11 Contreras also points out that citizen-informants are considered to be more reliable
12 than other types of informants, and thus are subject to less stringent credibility
13 verification requirements. Id. ¶ 10. Further, a drunk driver involves safety concerns
14 for the public that give rise to exigent circumstances that justify stopping such a
15 driver. Id. ¶¶ 13-15. Even without the added exigency of the drunk driver concern,
16 this Court has indicated that the type of information provided in this case, particularly
17 the predictive information, justifies a vehicle stop. See State v. Flores,
18 1996-NMCA-059, ¶¶ 7-10, 122 N.M. 84, 920 P.2d 1038 (finding reasonable suspicion
19 where tip corroborated by description of vehicles, direction of travel, and arrival at
3
1 described location).
2 In his memorandum in opposition, Defendant refers us to State v. Aguilar,
3 2007-NMCA-040, ¶ 18, 141 N.M. 364, 155 P.3d 769, where this Court concluded
4 “that the specific facts articulated by the officer were not sufficiently individualized
5 or particularized to create reasonable suspicion that [the d]efendant had committed or
6 was committing a traffic violation or other crime.” [MIO 5] However, the facts in
7 Aguilar bear no resemblance to the present case—that case involved reasonable
8 suspicion based on a vehicle traveling at 2 a.m. with a dealer’s temporary
9 demonstration tape. Id. ¶ 1. The present case involves a citizen tip and, as explained
10 above, there was sufficient corroboration of the tip to support reasonable suspicion
11 under our applicable case law.
12 For the reasons set forth above, we to affirm.
13 IT IS SO ORDERED.
14 ___________________________________
15 CELIA FOY CASTILLO, Judge
16 WE CONCUR:
17 __________________________________
18 JONATHAN B. SUTIN, Judge
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1 __________________________________
2 ROBERT E. ROBLES, Judge
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