April 12, 2022- State of New Mexico v. Davis Hebenstreit, No. A-1-CA-38654

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: ________________	2
Filing Date: April 12, 2022	3
No. A-1-CA-38654	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
DAVIS HEBENSTREIT a/k/a	8
DAVIS TODD HEBENSTREIT,	9
Defendant-Appellee.	10
APPEAL 	FROM 	THE 	METROPOLITAN 	COURT 	OF 	BERNALILLO	11
COUNTY	12
Courtney B. Weaks, Metropolitan Judge	13
Hector H. Balderas, Attorney General	14
Santa Fe, NM	15
Meryl Francolini, Assistant Attorney General	16
Albuquerque, NM	17
for Appellant	18
Joseph Sullivan	19
Albuquerque, NM	20
for Appellee	21
Court of Appeals of New Mexico
Filed 4/12/2022 11:23 AM

OPINION	1
BOGARDUS, Judge.	2
{1} 	The March 24, 2022, memorandum opinion is withdrawn, and this formal	3
opinion replaces it based on the April 8, 2022, order granting the State’s motion to	4
publish. The State appeals the metropolitan court’s order dismissing without	5
prejudice the State’s criminal complaint against Defendant Davis Hebenstreit. The	6
metropolitan court dismissed the complaint based on the unavailability of a State	7
witness at trial. The State argues the metropolitan court erred in dismissing the	8
complaint because the witness was not necessary to the prosecution of the case. We	9
reverse and remand.	10
BACKGROUND	11
{2} 	This case arises from a stop at a sobriety checkpoint. Defendant was stopped	12
at the checkpoint and later charged with aggravated DWI based on refusal to submit	13
to chemical testing, pursuant to NMSA 1978, Section 66-8-102(D)(3) (2016).	14
{3} 	Defendant filed a motion to suppress based upon lack of reasonable suspicion	15
to detain Defendant. The motion included the statement, “[D]efendant was detained	16
by law enforcement[] unlawfully” and argued that Deputy Gallegos—the officer	17
who made contact with Defendant at the checkpoint—“did not have reasonable	18
suspicion to detain [D]efendant initially [or] . . . beyond the scope of the initial traffic	19
stop.”	20

2
{4} 	On October 30, 2019, the parties convened for a bench trial. The State	1
indicated it was ready to proceed to trial and that Deputy Gallegos and Sergeant	2
LeCompte—the sobriety checkpoint’s supervising officer—would be available to	3
testify. Defendant, however, stated he was not ready to proceed because, while he	4
had interviewed Deputy Gallegos, he had not yet had the opportunity to interview	5
Sergeant LeCompte. The State responded that Defendant’s motion to suppress did	6
not challenge the constitutionality of the sobriety checkpoint itself, and therefore	7
Sergeant LeCompte’s testimony was “technically not relevant” because it was	8
Deputy Gallegos who made contact with Defendant at the sobriety checkpoint and	9
conducted the field sobriety test. Defendant answered that his motion was a “place	10
marker” until he could interview Sergeant LeCompte. Defendant also argued that,	11
since a sobriety checkpoint is an exception to the Fourth Amendment of the United	12
States Constitution and Article II, Section 10 of the New Mexico Constitution, the	13
State had the burden of showing that the checkpoint was constitutional, and Sergeant	14
LeCompte was therefore a necessary witness. In response, the metropolitan court	15
issued a subpoena for a pretrial statement from Sergeant LeCompte and reset the	16
trial for a later date. Defendant interviewed Sergeant LeCompte on November 21,	17
2019.	18
{5} 	At the rescheduled bench trial on December 3, 2019, Deputy Gallegos was	19
present but Sergeant LeCompte was unavailable to testify. After considering the	20

3
requirements governing motions under Rule 7-304 NMRA, the metropolitan court	1
concluded that Defendant’s motion “was made as a place marker with enough	2
specificity to trigger . . . the [necessity]” of Sergeant LeCompte’s testimony at trial.	3
The court therefore dismissed the case without prejudice. The State appeals.	4
DISCUSSION	5
I. 	The Metropolitan Court Erred in Dismissing the Complaint Based on	6
Rule 7-304	7
{6} 	The State argues the metropolitan court erred in concluding that Defendant’s	8
motion to suppress attacked the constitutionality of the sobriety checkpoint with	9
adequate particularity as required by Rule 7-304. Because Defendant’s motion did	10
not challenge the checkpoint’s constitutionality with sufficient particularity, the	11
State contends Defendant waived this issue for purposes of trial. And because	12
Defendant had waived any challenge to the checkpoint’s constitutionality, the State	13
argues, Sergeant 	LeCompte’s 	testimony—which 	would 	have 	been 	limited 	to	14
addressing the checkpoint’s constitutionality—was unnecessary and irrelevant to the	15
prosecution of the case. As a result, the State argues the metropolitan court erred in	16
dismissing the complaint due to Sergeant LeCompte’s unavailability at trial.	17
{7} 	Defendant argues that his motion to suppress, which challenged his detention	18
and invoked the Fourth Amendment and Article II, Section 10, sufficiently raised	19
the constitutionality of the checkpoint to shift the burden to the State to prove	20
Defendant’s detention was lawful. Likewise, Defendant contends that his oral	21

4
arguments before the metropolitan court sufficiently raised the constitutionality of	1
the checkpoint by arguing that a sobriety checkpoint is an exception to the Fourth	2
Amendment and Article II, Section 10, and therefore the State had the burden to	3
show the checkpoint was constitutional. Defendant urges us to review the dismissal	4
of the complaint under an abuse of discretion standard.	5
{8} 	“This case requires us to interpret and apply the New Mexico Rules of	6
Criminal Procedure . . . . The proper interpretation of our Rules of Criminal	7
Procedure is a question of law that we review de novo.” Allen v. LeMaster, 2012-	8
NMSC-001, ¶ 11, 267 P.3d 806. Rule 7-304(B) provides in relevant part that motions	9
to the metropolitan court “shall state with particularity the grounds therefor.” Accord	10
State v. Goss, 1991-NMCA-003, ¶ 13, 111 N.M. 530, 807 P.2d 228 (”Generally,	11
motions to suppress must set out with particularity the grounds relied on for the relief	12
sought.”). “[The d]efendants have the burden to raise an issue as to their illegal	13
search and seizure claims. Once they have done so, the burden shifts to the [s]tate to	14
justify the warrantless search or seizure.” State v. Ponce, 2004-NMCA-137, ¶ 7, 136	15
N.M. 614, 103 P.3d 54 (alterations, internal quotation marks, and citation omitted).	16
Because this case turns on whether Defendant sufficiently raised an issue as to the	17
illegality 	of 	the 	sobriety 	checkpoint, 	we 	consider 	the 	metropolitan 	court’s	18
application of Rule 7-304 in light of our law governing the legality of these	19
checkpoints. “Although there is no question that a [sobriety checkpoint] is a seizure,	20

5
a [checkpoint] does not require reasonable suspicion or probable cause with respect	1
to a particular motorist.” State v. Bates, 1995-NMCA-080, ¶ 9, 120 N.M. 457, 902	2
P.2d 1060. “[T]he constitutionality of the [checkpoint] depends on whether it is	3
reasonable.” Id. ¶ 6; see also State v. Bolton, 1990-NMCA-107, ¶ 8, 111 N.M. 28,	4
801 P.2d 98 (“The reasonableness of a [checkpoint] provides a constitutionally	5
adequate substitute for the reasonable suspicion that would otherwise be required to	6
justify the detention of vehicles and the questioning of their occupants.”). A sobriety	7
checkpoint “is constitutionally permissible so long as it is reasonable within the	8
meaning of the [F]ourth [A]mendment as measured by its substantial compliance	9
with [eight factors].” City of Las Cruces v. Betancourt, 1987-NMCA-039, ¶ 24, 105	10
N.M. 655, 735 P.2d 1161. “[A] sobriety checkpoint conducted in substantial	11
compliance with the eight Betancourt factors is [also] constitutional under the New	12
Mexico Constitution.” State v. Madalena, 1995-NMCA-122, ¶ 26, 121 N.M. 63, 908	13
P.2d 756.	14
{9} 	We conclude Defendant’s motion was insufficiently particular to alert the	15
metropolitan court or State that the grounds for suppressing evidence related to the	16
checkpoint’s illegality. See Goss, 1991-NMCA-003, ¶ 13 (stating that “[g]enerally,	17
motions to suppress must set out with particularity the grounds relied on for the relief	18
sought”); see also City of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 27, 285 P.3d	19
637 (“A motion to suppress presupposes that the evidence was illegally obtained.”	20

6
(alteration, internal quotations, and citation omitted)). The record reflects that	1
Defendant’s motion did not specifically challenge the legality of the checkpoint or	2
argue the State failed to comply with any of the 	Betancourt 	guidelines for	3
determining whether a checkpoint is reasonable. 	Cf. Goss, 1991-NMCA-003,	4
¶¶ 10, 14 (concluding that the defendants failed to preserve their challenge to the	5
checkpoint’s legality based in part on the defendants’ failure to make a specific	6
challenge concerning the constitutionality of the sobriety checkpoint itself or argue	7
the checkpoint’s noncompliance with Betancourt).1 Defendant’s motion does not	8
cite Betancourt, mention any of Betancourt’s guidelines or facts implicating these	9
guidelines, or use the term checkpoint or roadblock.	10
{10} 	Defendant’s motion, rather, was based upon the State lacking reasonable	11
suspicion to detain Defendant. The reasonable suspicion required for a continued	12
investigatory detention related to a sobriety checkpoint, however, is not required to	13
stop a particular motorist at the checkpoint initially; the legality of a checkpoint stop	14
1 Defendant points out that no evidentiary hearing occurred in this case, unlike
in Goss, 1991-NMCA-003, and asserts that no evidentiary hearing occurred because
Sergeant LeCompte failed to appear. Defendant, however, does not develop these
arguments to explain why a lack of evidentiary hearing mattered under the
circumstances. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228
P.3d 1181 (noting that we will “not review unclear or undeveloped arguments [that]
require us to guess at what parties’ arguments might be”). We note, as well, that
defense counsel interviewed Sergeant LeCompte but failed to make any argument
to the metropolitan court that Sergeant LeCompte’s interview provided defense
counsel with information germane to the illegality of the checkpoint.

7
and the legality of an investigative detention arising from that stop are distinct issues	1
such that raising one does not necessarily implicate the other. Compare Bates, 1995-	2
NMCA-080, ¶ 9 (stating that “a [sobriety checkpoint] does not require reasonable	3
suspicion or probable cause with respect to a particular motorist”), with State v. Hall,	4
2016-NMCA-080, ¶ 17, 380 P.3d 884 (noting that a driver stopped at a sobriety	5
checkpoint 	could 	be 	detained 	for 	additional 	investigation 	if 	the 	officer 	has	6
reasonable and articulable suspicion of criminal activity based on the officer’s	7
observations or the driver’s answers to the officer’s initial inquiry (emphasis	8
added)), and State v. Anaya, 2009-NMSC-043, ¶ 15, 147 N.M. 100, 217 P.3d 586	9
(“Evading a marked [sobriety] checkpoint is a specific and articulable fact that is	10
sufficient to predicate reasonable suspicion for an investigatory stop.”).2
11
{11} 	Although Defendant’s motion does state, “[D]efendant was detained by law	12
enforcement[] unlawfully,” and “Deputy Gallegos did not have reasonable suspicion	13
to detain [D]efendant initially,” we cannot say these statements “set out with	14
particularity 	the 	grounds 	relied 	on” 	for 	suppressing 	evidence 	based 	on 	the	15
checkpoint’s 	illegality. 	Goss, 	1991-NMCA-003, ¶ 13; 	accord 	Rule 	7-304(B).	16
2 Defendant argues that his motion was sufficiently particular because evading
sobriety checkpoints may also implicate a reasonable suspicion analysis and that,
under New Mexico law, Defendant “could not avoid a detention as a result of the
checkpoint.” In support of these propositions Defendant cites various cases in which
a driver sought to avoid a sobriety checkpoint. These cases are inapposite. Defendant
does not dispute he was stopped at a sobriety checkpoint, and his motion raised no
facts indicating he sought to avoid the checkpoint.

8
Defendant’s references to the Fourth Amendment and Article II, Section 10 in his	1
motion and to the metropolitan court do not alter our conclusion.	2
{12} 	Defendant effectively acknowledged to the metropolitan court that his motion	3
had yet to articulate upon which grounds, if any, he believed the sobriety checkpoint	4
to be illegal. Defense counsel stated his motion was “a place marker” until he could	5
interview Sergeant LeCompte, but that he would file an amended motion after	6
conducting the interview. Defendant did interview Sergeant LeCompte but failed to	7
file an amended motion.	8
{13} 	To the extent Defendant contends his motion was sufficiently particular when	9
viewed together with his arguments to the metropolitan court discussing sobriety	10
checkpoints generally, we disagree. Defendant argued to the metropolitan court that,	11
since a sobriety checkpoint is an exception to the Fourth Amendment and Article II,	12
Section 10, the burden was on the State to show the checkpoint’s constitutionality,	13
and therefore Sergeant LeCompte was required to testify.	14
{14} 	Defendant, however, had the burden to raise an issue as to the illegality of the	15
checkpoint, which would have then shifted the burden to the State to justify the	16
checkpoint stop. See Ponce, 2004-NMCA-137, ¶ 7 (“[The d]efendants have the	17
burden to raise an issue as to their illegal search and seizure claims. Once they have	18
done so, the burden shifts to the [s]tate to justify the warrantless search or seizure.”	19
(alterations, 	internal 	quotation 	marks, 	and 	citation 	omitted)). We 	cannot 	say	20

9
Defendant raised an issue as to the checkpoint’s illegality sufficient to shift this	1
burden to the State by merely stating that a checkpoint is an exception to the Fourth	2
Amendment and Article II, Section 10. Accordingly, we conclude Defendant’s	3
motion was insufficiently particular to alert the district court or State to the grounds	4
for suppressing evidence related to the checkpoint’s illegality, and thus the burden	5
to justify the checkpoint’s legality did not shift to the State.	6
{15} 	Because we conclude Defendant’s motion was insufficiently particular to shift	7
this burden to the State, the legality of the checkpoint would not have been an issue	8
at trial. See Marquez, 2012-NMSC-031, ¶ 25 (“[O]ur rules require suppression	9
motions to be filed prior to trial, absent good cause.”); State v. Candelaria, 2019-	10
NMCA-032, ¶ 27, 446 P.3d 1205 (“[M]otions asserting the denial of constitutional	11
rights are indeed subject to pretrial motion deadlines.”). It follows that because the	12
legality of the checkpoint was not at issue, Sergeant LeCompte’s testimony—which	13
would have been limited to questions concerning the checkpoint’s legality—would	14
not have been necessary. See Rule 11-401 NMRA (“Evidence is relevant if . . . it has	15
any tendency to make a fact more or less probable than it would be without the	16
evidence, and . . . the fact is of consequence in determining the action.”); see also	17
Rule 11-602 NMRA (noting that personal knowledge of a matter is required for a	18
witness to testify regarding the matter). Present at trial was Deputy Gallegos, who	19
made contact with Defendant at the checkpoint and thus had personal knowledge of	20

10
the DWI investigation.3 See Rule 11-602 (requiring a witness to have personal	1
knowledge of a matter to testify). Accordingly, the metropolitan court erred in	2
dismissing the case based on Sergeant LeCompte’s unavailability to testify at trial.	3
CONCLUSION	4
{16} 	For the foregoing reasons, we reverse and remand to the metropolitan court	5
for reentry of the charges against Defendant.	6
{17} 	IT IS SO ORDERED.	7
____________________________	8
KRISTINA BOGARDUS, Judge	9
WE CONCUR:	10
___________________________________	11
SHAMMARA H. HENDERSON, Judge	12
___________________________________	13
KATHERINE A. WRAY, Judge	14
3 Defendant was charged with aggravated DWI for refusing to submit to
chemical testing, contrary to Section 66-8-102(D)(3). Pursuant to this charge, the
State would have had to prove that Defendant operated a motor vehicle while under
the influence of intoxicating liquor and that he refused to submit to chemical testing.
See UJI 14-4508 NMRA. That the State apparently expected Sergeant LeCompte to
be present at trial does not change our conclusion that his testimony would not have
been necessary in light of Defendant’s failure to adequately raise an issue as to the
checkpoint’s illegality.