State v. Isaiah H.

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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. 35,271
5 ISAIAH H.,
6 Child-Appellant.
7
8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
9 Marci E. Beyer, District Judge
10 Hector H. Balderas, Attorney General
11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender
14 Tania Shahani, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 BUSTAMANTE, Judge.
1 {1} Child appeals from the children’s court’s consent decree, entered following his
2 conditional plea of no contest to two counts of burglary of a vehicle; one count of
3 resisting, evading, or obstructing an officer; and one count of unlawful carrying of a
4 deadly weapon. [CN 1-2] Child’s plea was conditioned upon his right to appeal the
5 children’s court’s denial of his motion to suppress evidence and statements allegedly
6 gathered in violation of his rights under the Fourth Amendment to the United States
7 Constitution and Article II, Section 10 of the New Mexico Constitution. [CN 2] This
8 Court issued a calendar notice proposing summary affirmance. Child filed a
9 memorandum in opposition to this Court’s notice of proposed disposition, which we
10 have duly considered. Unpersuaded, we affirm.
11 {2} Child raised five issues in his docketing statement. In our calendar notice, we
12 suggested that the first four issues appeared to have all been directed at the same
13 general contention: that the officer did not have—at the time Child was seized—a
14 reasonable suspicion that Child was breaking, or had broken, the law. [CN 3] See State
15 v. Garcia, 2009-NMSC-046, ¶ 43, 147 N.M. 134, 217 P.3d 1032 (stating that “[a]
16 reasonable suspicion is a particularized suspicion, based on all the circumstances, that
17 a particular individual, the one detained, is breaking, or has broken, the law”
18 (alteration, internal quotation marks, and citation omitted)). In his memorandum in
19 opposition, Child agrees that his docketing statement “raise[d] this singular question
2
1 by asserting multiple variations of it” [MIO 3, FN 3], and clarifies that the “sole
2 question on appeal is whether [Officer] Dollar had sufficient reasonable suspicion to
3 effectuate the seizure” [MIO 3].
4 {3} We note that Child appeared to argue in his docketing statement that the phrase
5 “reasonable suspicion” should be interpreted more stringently under the New Mexico
6 Constitution than under the federal constitution. [CN 7] In response to our observation
7 in our calendar notice that Child failed to develop this argument by articulating any
8 rationale for doing so, or by explaining how an analysis should differ under the state
9 constitution as to afford him heightened protection [CN 7], see State v. Garcia, 2002-
10 NMCA-050, ¶ 9, 132 N.M. 180, 45 P.3d 900, Child has chosen not to pursue this
11 contention [See MIO 3]. Accordingly, this issue is deemed abandoned. See State v.
12 Johnson, 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (stating that when a case
13 is decided on the summary calendar, an issue is deemed abandoned where a party fails
14 to respond to the proposed disposition of the issue). Likewise, as to Child’s fifth
15 issue—whether there was probable cause to support Child’s arrest—we indicated in
16 our calendar notice that we were not convinced that this issue was adequately
17 preserved in the children’s court or reserved for appeal. [CN 8-9] In his memorandum
18 in opposition, Child has explicitly chosen not to make any argument on this point.
3
1 [See MIO 3, FN 3] Thus, this issue is deemed abandoned as well. Garcia, 2002-
2 NMCA-050, ¶ 9.
3 {4} We focus our attention, then, on Child’s one contention on appeal; that is,
4 whether Child’s seizure was supported by reasonable suspicion. [MIO 3] “Questions
5 of reasonable suspicion are reviewed de novo by looking at the totality of the
6 circumstances to determine whether the detention was justified.” State v. Hubble,
7 2009-NMSC-014, ¶ 5, 146 N.M. 70, 206 P.3d 579 (internal quotation marks and
8 citation omitted). “[A]n officer may stop and detain a citizen if the officer has a
9 reasonable and articulable suspicion that the person stopped is or has been involved
10 in criminal activity.” State v. Watley, 1989-NMCA-112, ¶ 17, 109 N.M. 619, 788 P.2d
11 375.
12 {5} As we outlined in our calendar notice, Officer Dollar of the Las Cruces Police
13 Department testified at the suppression hearing that he was patrolling in the area of
14 Young Park and the Woodcrest Apartments at 2:00 a.m. due to an increased number
15 of criminal incidents—prowlers, suspicious activity, car alarms, and
16 burglaries—taking place there in the recent past. [CN 2] Officer Dollar testified that
17 he observed Child running from the apartments toward the park, wearing a backpack
18 and holding something in his hand. [CN 2] Child, upon seeing Officer Dollar, slowed
19 down, then increased his speed, changed directions, and ran directly toward a
4
1 dumpster. [CN 2] Child threw the item he was carrying into the dumpster and then hid
2 behind the dumpster. [CN 2] When Officer Dollar approached, the Child ran away.
3 [CN 3]
4 {6} Our Supreme Court has held that unprovoked flight, when combined with
5 presence in a high-crime area, provides the individualized reasonable suspicion to
6 justify an investigatory stop under the Fourth Amendment. See State v. Harbison,
7 2007-NMSC-016, ¶¶ 15-24, 141 N.M. 392, 156 P.3d 30 (discussing the analysis set
8 forth in Illinois v. Wardlow, 528 U.S. 119 (2000)). We suggested in our calendar
9 notice that based upon the totality of the circumstances in this case, including but not
10 limited to Child’s unprovoked flight, we were not convinced that the children’s court
11 erred in finding that Officer Dollar had a reasonable suspicion that Child was
12 involved, or had been involved, in criminal activity. [CN 5-6]
13 {7} In his memorandum in opposition, Child raises two broad challenges to our
14 proposed conclusion. First, Child argues that there was no unprovoked flight in this
15 case. [MIO 5, 7] Second, Child contends that at the time Officer Dollar decided to
16 seize him, he did not have a reasonable suspicion to do so. [MIO 5] We address each
17 challenge in turn.
18 {8} Relying on the dissent in Wardlow, Child asserts that Officer Dollar’s testimony
19 regarding unprovoked flight on the part of Child was insufficient to give rise to
5
1 reasonable suspicion. [MIO 6-7] Specifically, Child asserts that: he was already
2 running when Officer Dollar first saw him; there was no testimony that Officer Dollar
3 was wearing a police uniform or driving a marked police unit; wearing a backpack is
4 not a suspicious activity; and presence in a high-crime area alone is not sufficient to
5 provide reasonable suspicion. [MIO 5, 7] We note, however, that the testimony
6 established that at two o’clock in the morning, Child was seen running, wearing a
7 backpack and carrying something in his hands, from the parking lot of an apartment
8 complex where there had been an increasing number of criminal incidents. In fact,
9 Officer Dollar was patrolling that particular area because of the increase in criminal
10 activity. When Child saw Officer Dollar—whether he recognized him as a police
11 officer or not—he slowed down, changed directions, and sped up again; he threw the
12 item he was holding into a dumpster; and then he hid behind the dumpster. It was in
13 this context that Officer Dollar decided to investigate Child. As Officer Dollar
14 approached the dumpster to do so, Child ran away. At that point, Officer Dollar
15 identified himself as a police officer and yelled-out multiple commands for Child to
16 stop. Consequently, even if we were to discount Child’s unprovoked flight given the
17 lack of testimony about whether Officer Dollar was clearly identifiable as a police
18 officer, and the fact that Child was already running when initially observed by Officer
6
1 Dollar, we conclude that the totality of the circumstances in this case still supports a
2 finding of reasonable suspicion.
3 {9} In our calendar notice, we proposed to agree with Child that he was seized, for
4 purposes of Article II, Section 10, at the point when Officer Dollar identified himself
5 as a police officer and commanded Child to stop running. See State v. Jason L., 2000-
6 NMSC-018, ¶ 19, 129 N.M. 119, 2 P.3d 856 (stating that we look at whether a show
7 of authority was employed such that a reasonable person would have believed he was
8 not free to leave). [CN 4-5] “The point at which the seizure occurs is pivotal because
9 it determines the point in time the police must have reasonable suspicion to conduct
10 an investigatory stop.” Harbison, 2007-NMSC-016, ¶ 10. Although Child argued
11 below and in his docketing statement that he was seized at the point when Officer
12 Dollar commanded him to stop running, he argues in his memorandum in opposition
13 that “suppression was appropriate because [Officer] Dollar admitted that he was
14 planning to conduct an investigatory detention” even prior to Child’s “flight” from the
15 dumpster, and that Officer Dollar did not have reasonable suspicion at the time he
16 intended to seize Child. [MIO 5] To the extent that Child is contending that reasonable
17 suspicion must exist at the time an officer decides to investigate, as opposed to the
18 point in time when the person is actually seized, we are not persuaded. See Jason L.,
19 2000-NMSC-018, ¶ 20 (“Reasonable suspicion must exist at the inception of the
7
1 seizure.”); see also State v. Baldonado, 1992-NMCA-140, ¶ 17, 115 N.M. 106, 847
2 P.2d 751 (stating that an officer’s subjective intent is relevant only to the extent that
3 it would bear on the beliefs of a reasonable person in the defendant’s shoes). Here,
4 Child does not argue that Officer Dollar’s subjective intent in any way caused him to
5 believe that he was not free to leave prior to Officer Dollar’s verbal command to stop
6 running.
7 {10} Therefore, we conclude that Officer Dollar had a reasonable suspicion, based
8 on the totality of the circumstances, that Child was, or had been, involved in criminal
9 activity at the point when he identified himself as a police officer and commanded
10 Child to stop running.
11 {11} Accordingly, for the reasons stated above, as well as those provided in our
12 notice of proposed disposition, we affirm.
13 {12} IT IS SO ORDERED.
14 _______________________________________
15 MICHAEL D. BUSTAMANTE, Judge
16 WE CONCUR:
17
18 JAMES J. WECHSLER, Judge
8
1
2 JONATHAN B. SUTIN, Judge
9