State v. Charley

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 35,669 5 ROBERT CHARLEY, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean Jr., District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Nina Lalevic, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 1 {1} Pursuant to a conditional plea agreement, Defendant appeals from his 2 convictions of possession of dangerous drugs (Promethazine), a fourth degree felony, 3 and possession of a controlled substance (Tramadol), a misdemeanor. We previously 4 issued a notice of proposed summary disposition in which we proposed to affirm. 5 Defendant has filed a memorandum in opposition. After due consideration, we remain 6 unpersuaded. 7 {2} In his memorandum in opposition, Defendant appears to argue that the 8 investigating officer lacked reasonable suspicion to detain Defendant because he was 9 investigating an anonymous tip without sufficient corroboration. [MIO 7] Our review 10 of the record proper reveals that this issue was not preserved below. [RP 54-55, 71-73] 11 As such, we will not address it for the first time on appeal. See State v. Martinez, [12] 2010-NMCA-051, ¶ 17 , 148 N.M. 262 , 233 P.3d 791 (refusing to address for the first 13 time on appeal “the reliability of [an] informant’s information”). 14 {3} Defendant further argues that any reasonable suspicion that may have initially 15 justified the investigatory detention had dissipated by the time the officer asked 16 Defendant to step out of the vehicle because the officer did not observe any 17 incriminating behavior or open containers upon approaching the vehicle. [MIO 7-9] 18 “An officer who makes a valid investigatory stop may briefly detain those he suspects 19 of criminal activity to verify or quell that suspicion. The scope of activities during an [2] 1 investigatory detention must be reasonably related to the circumstances that initially 2 justified the stop.” State v. Werner, 1994-NMSC-025 , ¶ 13, 117 N.M. 315 , 871 P.2d 3 971 (citation omitted). Here, the officer was investigating a potential violation of 4 Section 5-1-5 of the Farmington Municipal Code, which prohibits the consumption 5 of alcohol “upon any parking lot . . . which is privately owned and used by the 6 public.” Specifically, the officer was dispatched to investigate a report that a male 7 individual was consuming alcohol in a vehicle upon a Wal-Mart parking lot. [MIO 1; 8 DS 2] In the docketing statement, Defendant acknowledged that he was detained while 9 the officer searched the vehicle for open alcohol containers pursuant to the driver’s 10 consent. [DS 2-3] Defendant did not claim, and does not claim in the memorandum 11 in opposition, that his detention extended beyond the time it took the officer to 12 complete this search. We hold that the search of the vehicle was “reasonably related 13 to the circumstances that initially justified the stop” and that Defendant’s detention 14 was no longer than necessary for the officer “to verify or quell” his valid suspicion. 15 Werner, 1994-NMSC-025 , ¶ 13. Therefore, we affirm. 16 {4} With regard to Defendant’s second challenge on appeal—that the district court 17 erred in holding that the pat-down search of his person was justified—in the 18 memorandum in opposition, Defendant reiterates his position that the officer lacked 19 reasonable suspicion that Defendant was armed and presently dangerous. [MIO 9-13] [3] 1 Under the applicable standard of review, we must view “the facts in the light most 2 favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6 , 126 N.M. 77 , [3] 966 P.2d 785 . Therefore, we decline Defendant’s numerous invitations to view the 4 facts in a light favorable to him. [MIO 11-12] For the reasons stated in our calendar 5 notice, we affirm. 6 {5} With regard to Defendant’s last challenge on appeal—that the district court 7 erred in holding that the searching officer was justified in taking the glass pipe out of 8 his pocket—in the memorandum in opposition, Defendant concedes that he did not 9 expressly preserve this issue for appellate review. [MIO 13] See State v. Janzen, 2007- 10 NMCA-134, ¶ 11, 142 N.M. 638 , 168 P.3d 768 (requiring preservation of different 11 theories relevant to the suppression of evidence). In any event, we remain 12 unpersuaded on the merits. Once again, Defendant invites us to view the facts in a 13 light that favors reversal, which is something we cannot do. [MIO 14] Cline, 1998- 14 NMCA-154, ¶ 6. Therefore, and for the reasons stated in our calendar notice, we 15 affirm. 16 {6} IT IS SO ORDERED. 17 ________________________________ 18 JAMES J. WECHSLER, Judge [4] 1 WE CONCUR: 2 ________________________________ 3 MICHAEL E. VIGIL, Judge 4 ________________________________ 5 STEPHEN G. FRENCH, Judge