State v. Morgan

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. A-1-CA-37356
5 DINO MORGAN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Santa Fe, NM
14 Josephine H. Ford, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge.
1 {1} Defendant Dino Morgan appealed following his conviction for DWI. We
2 previously issued a notice of proposed summary disposition in which we proposed to
3 uphold the conviction. Defendant has filed a combined memorandum in opposition
4 and motion to amend the docketing statement. After due consideration, we remain
5 unpersuaded by Defendant’s assertions of error. We therefore deny the motion to
6 amend, and affirm.
7 {2} We will begin with the issues originally raised in the docketing statement, by
8 which Defendant contended that the officer who initiated the traffic stop lacked
9 reasonable suspicion, and asserted that his ensuing arrest was unsupported by probable
10 cause. [DS 18] We previously described the pertinent evidence and set forth our
11 analysis at length in the calendar notice, explaining that both the stop and the arrest
12 were amply supported. [CN 2-7] In the memorandum in opposition Defendant simply
13 renews his prior arguments, without further elaboration. [MIO 11] We therefore
14 adhere to our initial assessment.
15 {3} We turn next to the motion to amend, by which Defendant seeks to challenge
16 the propriety of the officer’s inquiry into his route, on the theory that this exceeded
17 the permissible scope of the DWI investigation. [MIO 3-11] For the reasons described
18 at greater length below, we conclude that the record before us reflects that the
19 argument is not viable. We therefore reject Defendant’s assertion that reassignment
2
1 to the general calendar is warranted, [MIO 9-10] and deny the motion to amend. See
2 generally State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 10073 (indicating that a motion to amend the docketing statement will be denied if the issue
4 sought to be presented is not viable).
5 {4} To very briefly summarize the relevant facts, the traffic stop which led to
6 Defendant’s arrest and conviction was precipitated by a citizen report of drunk
7 driving. [MIO 4] After locating the specified vehicle, the officer observed indicia of
8 impaired driving. [MIO 4] As previously stated, this supplied reasonable suspicion to
9 initiate the traffic stop and the ensuing DWI investigation. [CN 3-5] After initiating
10 the stop, but prior to administering the field sobriety tests, the officer asked Defendant
11 about the route he was taking. [MIO 4] Defendant contends that this was improper,
12 to the extent that it was unrelated to the basis for the stop. [MIO 4-11]
13 {5} Article II, Section 10 of the New Mexico Constitution entails a two-part
14 analysis: first, it requires a reasonable justification for the initial stop; second, it
15 requires that all questions asked during the stop be reasonably related to the reason for
16 the stop, or otherwise supported by reasonable suspicion. State v. Leyva,
17 2011-NMSC-009, ¶ 55, 149 N.M. 435, 250 P.3d 861. In this case, the first part of the
18 analysis is clear. As previously described, the initial stop was supported by reasonable
19 suspicion. Defendant’s putative issue concerns the second portion of the analysis. He
3
1 argues that the officer’s questions about his route of travel represented an expansion
2 which required independent reasonable suspicion. We disagree. The New Mexico
3 Supreme Court has previously held, “[q]uestions about travel plans generally do not
4 ask for information about an additional crime beyond that which justified the initial
5 stop.” State v. Duran, 2005-NMSC-034, ¶ 41, 138 N.M. 414, 120 P.3d 836, overruled
6 in part and on other grounds by Leyva, 2011-NMSC-009, ¶ 17.
7 {6} Contrary to Defendant’s suggestion, [MIO 7-11] this portion of the Duran
8 analysis remains unmodified. Moreover, we are unaware of any principled basis for
9 excepting DWI investigations from this general rule. See generally State v. Ibarra,
10 1993-NMCA-040, ¶ 13, 116 N.M. 486, 864 P.2d 302 (“We are entitled to assume,
11 when arguments are unsupported by cited authority, that supporting authorities do not
12 exist.”). And finally, we note that even if Defendant’s initial responses led to follow-
13 up questions about the Defendant’s circuitous route, [MIO 4] Duran illustrates that
14 such questioning was permissible. See Duran, 2005-NMSC-034, ¶ 37 (holding that
15 an officer was permitted to ask more detailed questions about travel plans after the
16 defendant described a strange and circuitous route).
17 {7} In any event, even if we were to assume that the investigating officer’s inquiry
18 about Defendant’s route was improper, we find no indication that any evidence was
19 gained by it. As previously described, the traffic stop and ensuing DWI investigation
4
1 were previously and independently supported by reasonable suspicion. That DWI
2 investigation led to Defendant’s arrest and conviction. Under the circumstances, the
3 fruitless inquiry about travel plans supplies no basis for suppression of evidence. See,
4 e.g., State v. Hall, 2016-NMCA-080, ¶¶ 16-19, 380 P.3d 884 (holding that an
5 unscripted conversation at a DWI checkpoint gave rise to no constitutional issue,
6 where the officer had reasonable suspicion to pursue the DWI investigation before the
7 conversation occurred); and see generally State v. Tapia, 2018-NMSC-017, ¶ 13, 414
8 P.3d 332 (indicating that the exclusionary rule encompasses only evidence obtained
9 as a result of an illegality, i.e., fruit of the poisonous tree).
10 {8} In closing, we observe that the authority upon which Defendant relies, State v.
11 Bell, 2015-NMCA-028, 345 P.3d 342, does not support a different result. This case
12 involves nothing akin to the “outrageous,” “non-traffic-related inquiries” about
13 “grenades, dead bodies [and] rocket launchers,” which patently expanded the scope
14 of the investigation, and which yielded incriminating evidence that was subject to
15 suppression. Id. ¶¶ 6, 18-19.
16 {9} Accordingly, for the reasons stated in our notice of proposed summary
17 disposition and above, we deny the motion to amend, and affirm.
18 {10} IT IS SO ORDERED.
19 ______________________________
5
1 MICHAEL E. VIGIL, Judge
2 WE CONCUR:
3 ____________________________
4 M. MONICA ZAMORA, Judge
5 ____________________________
6 DANIEL J. GALLEGOS, Judge
6