State v. Seda

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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. 33,018
5 GUADALUPE SEDA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana Zamora, District Judge
9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assitant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Law Office of the Public Defender
14 Jorge A. Alvarado, Chief Public Defender
15 Steven J. Forsberg, Assistant Appellate Defender
16 Albuquerque, NM
17 for Appellant
1 MEMORANDUM OPINION
2 KENNEDY, Chief Judge.
3 {1} Guadalupe Seda (Defendant) appeals from the district court’s judgment in an
4 on-record appeal from metropolitan court. Defendant was convicted for first-offense
5 DWI in metropolitan court, pursuant to a conditional guilty plea. Not persuaded by
6 Defendant’s docketing statement that the metropolitan court erred, we issued a notice
7 of proposed summary disposition, proposing to affirm. Defendant has responded to
8 our notice with a memorandum in opposition. We have considered Defendant’s
9 response and remain unpersuaded by her arguments. We affirm.
10 {2} On appeal, Defendant has argued that (1) the officer lacked reasonable
11 suspicion to stop her; (2) her right to confrontation was violated when the
12 metropolitan court permitted the officer to testify to the out-of-court statements of
13 eyewitnesses who were not present at trial to testify; (3) the district court erred by
14 refusing to review Defendant’s confrontation claim; and (4) Defendant was denied the
15 effective assistance of counsel. [DS 9] In response to our notice, Defendant pursues
16 only her argument that the officer lacked reasonable suspicion to support the traffic
17 stop and has abandoned the remaining three. See State v. Johnson, 1988-NMCA-029,
18 ¶ 8, 107 N.M. 356, 758 P.2d 306 (holding that when a case is decided on the summary
19 calendar, an issue is deemed abandoned where a party fails to respond to the proposed
20 disposition of the issue).
2
1 {3} Our notice proposed to agree with the lower courts and treat the information
2 given to the officer by the females in the vehicle as the functional equivalent of an
3 anonymous tip given by a concerned motorist. We further proposed to agree with the
4 district court that the appropriate law to which we should apply the facts is provided
5 in State v. Contreras, 2003-NMCA-129, 134 N.M. 503, 79 P.3d 1111. Applying the
6 facts of the current case to the standard in Contreras, we proposed to hold that the
7 motorists’ personal and contemporaneous observation of Defendant’s driving and
8 their description and specific identification of the vehicle to the officer meets the
9 reliability and credibility standards that Contreras holds satisfies the Fourth
10 Amendment. See id. ¶¶ 9-12. In addition, we proposed to hold that the danger to the
11 public that Defendant’s driving appeared to have posed tips the balance in favor of
12 executing the minimal intrusion of a brief investigatory stop. See id. ¶ 21.
13 {4} In response to our notice, Defendant contends that the facts of Contreras are
14 distinguishable from the current case and that Contreras was wrongfully decided
15 based on contrary out-of-state case law. [MIO 2-5] Defendant argues that the
16 Contreras decision relied almost entirely on the theory that a DWI investigation
17 warrants diminished Fourth Amendment rights and, in Defendant’s case, the
18 anonymous tip did not warn the police officer of possible drunk driving. [MIO 2]
19 Defendant argues that the tip warned the officer of what he construed as a possible
20 road rage situation. [Id.] Defendant contends our notice would extend stopping
3
1 authority to anonymous tips about any alleged traffic violation that might be construed
2 as evidence of DWI. [Id.]
3 {5} We are not persuaded that the facts of this case warrant such an alarmist view
4 of our application of Contreras. The officer here was told by the anonymous
5 motorists in a frantic and adamant manner that the vehicle directly behind him was
6 being driven erratically and nearly struck their vehicle several times on I-40 in
7 Albuquerque. [RP 92-93] We remain persuaded that these facts give rise to a
8 reasonable suspicion of DWI under Contreras and pose the same safety concern and
9 danger to the public as the alleged “erratic driving” in Contreras that was reported
10 specifically as possible drunk driving. See id. ¶¶ 12, 14-15 (internal quotation marks
11 and citation omitted); see also State v. Hubble, 2009-NMSC-014, ¶¶ 27-29, 146 N.M.
12 70, 206 P.3d 579 (emphasizing that an officer’s reason for a traffic stop is not always
13 determinitive of reasonable suspicion; under our objective test, courts examine the
14 totality of the circumstances surrounding the stop to determine whether they gave rise
15 to a reasonable suspicion of criminal activity).
16 {6} Because we also remain persuaded that the anonymous tip from the concerned
17 motorists met the reliability and credibility standards of Contreras, 2003-NMCA-129,
18 ¶¶ 9-12, we see no error in the metropolitan court’s conclusion that the officer had
19 reasonable suspicion for the stop.
4
1 {7} Lastly, we note our appreciation for defense counsel’s compliance with our
2 rules by providing this Court with recent, pertinent federal authority that supports our
3 proposed analysis. We decline Defendant’s invitation to reconsider Contreras.
4 {8} For the reasons stated in this Opinion and in our notice, we affirm Defendant’s
5 conviction.
6 {9} IT IS SO ORDERED.
7 ____________________________________
8 RODERICK T. KENNEDY, Chief Judge
9 WE CONCUR:
10 ___________________________
11 JONATHAN B. SUTIN, Judge
12 ___________________________
13 M. MONICA ZAMORA, Judge
5