City of Farmington v. Russell

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
Please also note that this electronic memorandum opinion may contain computer-generated errors
or other deviations from the official paper version filed by the Court of Appeals and does not include
the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITY OF FARMINGTON,
3 Plaintiff-Appellee,
4 v. NO. 33,293
5 JENNIFER RUSSELL,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Karen L. Townsend, District Judge
9 Jason Eley
10 Farmington, NM
11 for Appellee
12 Harutiun Kassakhian
13 The Kassakhian Law Offices
14 Gallup, NM
15 L. Helen Bennett
16 L. Helen Bennett PC
17 Albuquerque, NM
18 for Appellant
19 MEMORANDUM OPINION
20 ZAMORA, Judge.
1 {1} Defendant appeals from her conviction for driving while intoxicated (DWI),
2 first offense. On appeal, Defendant challenges the district court’s denial of her motion
3 to suppress arguing that there was not reasonable suspicion to support her stop. This
4 Court issued a calendar notice proposing to reverse. The City of Farmington has filed
5 a response opposing this Court’s notice of proposed disposition. Having considered
6 the City’s response, we reverse.
7 {2} In this Court’s calendar notice, we pointed out that the City of Farmington bears
8 the burden of proving reasonable suspicion, see State v. Gonzales, 2011-NMSC-012,
9 ¶ 12, 150 N.M. 74, 257 P.3d 894, and that reasonable suspicion exists when police
10 officers “are aware of specific articulable facts that, judged objectively, would lead
11 a reasonable person to believe criminal activity occurred or was occurring.” State v.
12 Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964 (internal quotation marks
13 and citation omitted). We noted that Officer Ronk testified at the suppression hearing
14 that he did not observe any traffic violations and that the sole reason he pulled
15 Defendant over was because he had been informed of a “domestic disturbance.” [RP
16 121] We further noted that it did not appear that Officer Ronk was aware of any facts
17 to indicate that a physical altercation had occurred, and we suggested that a “domestic
18 disturbance,” alone, is not a crime, nor does it give rise to reasonable suspicion that
19 a crime has occurred. Ultimately, we proposed to conclude that, based on the facts of
2
1 this case, there did not appear to be “objectively reasonable indications of criminal
2 activity[]” that would constitute reasonable suspicion. See State v. Leyva,
3 2011-NMSC-009, ¶ 23, 149 N.M. 435, 250 P.3d 861.
4 {3} In response, the City of Farmington contends that it was “reasonable for Officer
5 Ronk to make a stop of the Defendant based on information that was articulated to be
6 of a domestic nature” and that “[t]he information Officer Ronk had[] reasonably
7 supports either the crime of assault or battery.” [MIO 1] The City of Farmington has
8 neither identified additional facts known to Officer Ronk, nor cited authority in
9 support of the proposition that a report of a “domestic disturbance,” with no additional
10 information, is sufficient to provide the specific articulable facts necessary to
11 demonstrate reasonable suspicion. See State v. Sisneros, 1982-NMSC-068, ¶ 7, 98
12 N.M. 201, 647 P.2d 403 (“The opposing party to summary disposition must come
13 forward and specifically point out errors in fact and in law.”); In re Adoption of Doe,
14 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (providing that an appellate court
15 will not consider an issue if no authority is cited in support of the issue, as absent cited
16 authority to support an argument, we assume no such authority exists).
17 {4} Consequently, for the reasons stated above and in this Court’s notice of
18 proposed disposition, we reverse.
19 {5} IT IS SO ORDERED.
3
1 ___________________________
2 M. MONICA ZAMORA, Judge
3 WE CONCUR:
4 __________________________________
5 RODERICK KENNEDY, Chief Judge
6 __________________________________
7 JAMES J. WECHSLER, Judge
4