February 18, 2013 – State v. Hicks, No. 30,370

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	February 18, 2013
NO. 30,370
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
BRIAN HICKS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellant
Bennett J. Baur, Acting Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellee

OPINION
WECHSLER, Judge.
{1} 	This case presents the question of whether an officer’s knowledge that the
registered owner of a vehicle has a revoked license provides reasonable suspicion to
stop the vehicle when the officer makes no effort to determine, prior to the stop,
whether the driver of the vehicle is the registered owner. The State appeals from the
district court’s grant of Defendant Brian Hicks’s motion to suppress. 	See NMSA
1978, § 39-3-3(B)(2) (1972) (permitting the state to take an interlocutory appeal from
an order granting a defendant’s motion to suppress). 	The State contends that the
district court erred in concluding that the stop of Defendant’s vehicle was not
supported by reasonable suspicion and thus violated the New Mexico Constitution.
In State v. Candelaria, which was decided after the district court’s decision in this
case, we held that a stop effected on the basis of similar information did not violate
the United States Constitution because it was supported by reasonable suspicion.
2011-NMCA-001, ¶ 15, 149 N.M. 125, 245 P.3d 69. 	We now hold that the same
result is warranted under the New Mexico Constitution. Accordingly, we reverse.
BACKGROUND
{2} 	Defendant was charged by criminal information with driving while under the
influence of intoxicating liquor (DWI), a fourth or subsequent offense, and driving

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with a suspended or revoked license. Defendant filed a motion to suppress, arguing
inter alia that the stop of his vehicle was not supported by reasonable suspicion
because the arresting officer did not confirm, prior to the stop, that Defendant was the
registered owner of the vehicle. The parties stipulated to the following facts at the
suppression hearing:
1. 	. . . Defendant’s motor vehicle was being driven in San Juan
County, New Mexico.
2. 	Officer [Matt] Costen observed the motor vehicle and “ran” the
license plate of the vehicle through the New Mexico Motor
Vehicle Department (“MVD”).
3. 	The information from the MVD came back with the fact that the
driving privileges of the registered owner of the motor vehicle had
been revoked.
4. 	Officer Costen made no effort to visually observe the driver prior
to the stop.
5. 	Based on the revocation information from the MVD, Officer
Costen stopped the motor vehicle.
6. 	Upon contacting the driver, Officer Costen discovered that . . .
Defendant was driving the vehicle, that . . . Defendant was the
owner of the vehicle who had a revoked license[,] and that . . .
Defendant appeared intoxicated.
{3} 	The district court orally granted Defendant’s motion to suppress. 	The State
filed a motion to reconsider. The State noted that there did not appear to be any New
Mexico case law on point, but cited numerous cases from other jurisdictions

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supporting its position that the stop of Defendant’s vehicle was supported by
reasonable suspicion and thus did not violate the United States or New Mexico
Constitutions. 	In response, Defendant argued the stop violated the New Mexico
Constitution because New Mexico affords greater protection than the United States
Constitution against unreasonable searches and seizures involving automobiles.
{4} 	The district court denied the State’s motion. In a written order, dated March 25,
2010, the district court acknowledged that “[c]ase law from other [s]tates could be
construed to mean that Officer Costen had . . . reasonable suspicion to stop
Defendant’s vehicle.” However, the district court held that the stop violated the New
Mexico Constitution. 	The district court quoted State v. Cardenas-Alvarez, 2001-
NMSC-017, ¶ 15, 130 N.M. 386, 25 P.3d 225, for the proposition that the New
Mexico Constitution affords an “extra layer of protection from unreasonable searches
and seizures involving automobiles.” The district court noted it might have upheld the
stop if the officer had observed the driver before stopping the vehicle to determine
whether he matched the basic description of the registered owner.
MOTION TO SUPPRESS
{5} 	In reviewing a motion to suppress, “[w]e review factual determinations by the
[district] court under a substantial evidence standard and legal questions de novo.”
State v. Brusuelas, 2009-NMCA-111, ¶ 5, 147 N.M. 233, 219 P.3d 1 (internal

4
quotation marks and citation omitted). The question on appeal is whether the officer
had reasonable suspicion to stop Defendant’s vehicle solely on the basis of
information that the registered owner of the vehicle had a revoked license. Because
this is a legal question, our review is de novo. See id.
{6} 	The State contends that 	Candelaria 	is controlling. 	In 	Candelaria, we
considered whether a traffic stop violated the Fourth Amendment of the United States
Constitution when, at the time they effected the stop, the police officers “knew only
that the [vehicle] was registered to [a person], whose license had been suspended.”
2011-NMCA-001, ¶¶ 9, 11. We recognized this question as one of first impression
in New Mexico and elected to follow “an overwhelming majority of jurisdictions” in
holding the stop was supported by reasonable suspicion and thus did not violate the
Fourth Amendment. 	Id. ¶¶ 11, 13. 	Defendant contends that Candelaria is not
controlling because, in addition to knowing that the registered owner’s license had
been suspended, the police officers in Candelaria observed the vehicle under
suspicious circumstances prior to the stop.
{7} 	It is true that, in Candelaria, the police officers observed the vehicle in which
the defendant was driving “under suspicious circumstances.” Id. ¶ 1. Specifically, the
police observed that, after they pulled into a parking lot, the vehicle “sped away.” Id.
¶ 2. 	A careful reading of Candelaria reveals this distinction is one without a

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difference, however, as we did not consider the “suspicious circumstances” in
concluding the officers had reasonable suspicion to effect the stop. We explained:
When police observe a vehicle registered to an owner whose license has
been suspended, it is reasonable to conclude that the driver is the
registrant—that is, until officers become aware of facts to contradict their
assumption. The concept of reasonable suspicion has always embraced
a certain degree of uncertainty. 	In the case before us, because [the
officers] were aware of no facts to contradict their inference that [the
person] was driving the car for which he was the registered owner, we
follow the approach of the majority of jurisdictions and hold that police
possessed reasonable suspicion to [e]ffect a traffic stop.
Id. ¶ 15. We noted that “[o]ur holding should come as no surprise” because “New
Mexico’s civil law has long recognized a presumption that, in the absence of evidence
to the contrary, the registered owner of a vehicle is that vehicle’s driver.” Id.
{8} 	In deciding Defendant’s motion to suppress, the district court did not have the
benefit of our decision in Candelaria. Without any clear authority from either this
Court or our Supreme Court, the district court declined to follow the out-of-state cases
cited by the State and held that suppression was warranted under the New Mexico
Constitution. On appeal, Defendant focuses entirely on distinguishing Candelaria,
which is premised on a federal constitutional analysis. Defendant does not argue the
district court’s decision should be upheld under the New Mexico Constitution. We
nonetheless consider the issue because it was the express basis for the district court’s
ruling. We do not normally consider arguments that are not developed on appeal. See

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State v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (explaining
that this Court does not review unclear or undeveloped arguments); see, e.g., State v.
Dickert, 2012-NMCA-004, ¶ 46, 268 P.3d 515 (declining to address argument
inadequately developed by the defendant), cert. denied, 2011-NMCERT-012, 291
P.3d 158. 	However, because the order being appealed from is based on a state
constitutional analysis, we will review the issue under the New Mexico Constitution.
{9} 	The United States and New Mexico Constitutions “provide overlapping
protections against unreasonable searches and seizures[.]” 	State v. Rowell, 2008-
NMSC-041, ¶ 12, 144 N.M. 371, 188 P.3d 95; 	see 	U.S. Const. amend. IV
(guaranteeing “[t]he right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures”); N.M. Const. art. II, § 10
(“The people shall be secure . . . from unreasonable searches and seizures[.]”). Our
Supreme Court has adopted an interstitial approach for reviewing constitutional
questions under federal and state law. 	See State v. Gomez, 1997-NMSC-006, ¶ 21,
122 N.M. 777, 932 P.2d 1. Under this approach, we first ask “whether the right being
asserted is protected under the federal constitution. If it is, then the state constitutional
claim is not reached. If it is not, then the state constitution is examined.” Id. ¶ 19.
{10} 	We have already determined that, under Candelaria, Defendant’s rights are not
protected under the United States Constitution. We now examine Defendant’s rights

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under the New Mexico Constitution. 	Gomez instructs that we may “diverge from
federal precedent for three reasons: a flawed federal analysis, structural differences
between state and federal government, or distinctive state characteristics.” 	1997-
NMSC-006, ¶ 19. We find no flaws in the federal analysis undertaken in Candelaria;
nor do we perceive any structural differences between state and federal government
relevant to the question presented. If we were to reach a different result, it would be
because of distinctive state characteristics.
{11} 	“It is well-established that Article II, Section 10 provides more protection
against unreasonable searches and seizures than the Fourth Amendment.” 	State v.
Leyva, 2011-NMSC-009, ¶ 51, 149 N.M. 435, 250 P.3d 861. Our Supreme Court has
specifically recognized that “[t]he extra layer of protection from unreasonable
searches and seizures involving automobiles is a distinct characteristic of New Mexico
constitutional law.” Cardenas-Alvarez, 2001-NMSC-017, ¶ 15.
{12} 	In Cardenas-Alvarez, the case relied upon by the district court in the present
case, our Supreme Court held that a federal agent violated the New Mexico
Constitution by referring the defendant to a secondary inspection area after a traffic
stop at a permanent border checkpoint in the absence of reasonable suspicion. 	Id.
¶¶ 3, 21. Our Supreme Court held that the agent’s actions did not violate the United
States 	Constitution 	because 	“[u]nder 	federal 	law, 	[the 	d]efendant’s 	detention

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constituted a routine border checkpoint stop and therefore need not have been
supported by suspicious circumstances.” Id. ¶ 7. Importantly, our Supreme Court did
not hold that reasonable suspicion was present under federal law and lacking under
state law; instead, it held that reasonable suspicion was required under state law and
not required under federal law. See id. ¶ 49 (Baca, J., concurring in the result).
{13} 	In State v. Ochoa, we refused to follow the lead of the United States Supreme
Court in upholding pretextual traffic stops. 2009-NMCA-002, ¶ 1, 146 N.M. 32, 206
P.3d 143. We “depart[ed] from federal constitutional law . . . because we [found] the
federal 	analysis 	unpersuasive 	and 	incompatible 	with 	our 	state’s 	distinctively
protective standards for searches and seizures of automobiles.” 	Id. ¶ 12. We were
especially concerned about the mechanical nature of the federal rule because our
Constitution requires “that searches and seizures be reasonable based on the particular
facts of each case.” Id. ¶ 26. We noted that at least two other states, Washington and
Delaware, had interpreted their state constitutions to provide greater protection than
the federal constitution in the context of pretextual traffic stops. See id. ¶¶ 27-28.
{14} 	“The fact that we have departed from the analysis used to determine whether
a violation of the Fourth Amendment occurred in certain contexts, however, does not
require us to do so in all contexts.” Leyva, 2011-NMSC-009, ¶ 51. We must conduct
a “de novo review of the law[.]” Id. In the context of a non-pretextual traffic stop,

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we require that, to satisfy Article II, Section 10, a police officer must have “reasonable
suspicion of criminal activity or probable cause that the traffic code has been
violated.” 	Ochoa, 2009-NMCA-002, ¶ 25. 	Driving with a revoked license is a
criminal offense. See NMSA 1978, § 66-5-39(A) (1993) (“Any person who drives a
motor vehicle on any public highway of this state at a time when his privilege to do
so is suspended or revoked and who knows or should have known that his license was
suspended or revoked is guilty of a misdemeanor [.]”). Thus, the standard in this case
is reasonable suspicion.
{15} 	“In determining whether reasonable suspicion exists, we examine the totality
of the circumstances.” 	Cardenas-Alvarez, 2001-NMSC-017, ¶ 21. 	“Reasonable
suspicion must be based on specific articulable facts and the rational inferences that
may be drawn from those facts.” Id. (internal quotation marks and citation omitted).
“Unsupported intuition and inarticulate hunches are not sufficient.” State v. Garcia,
2009-NMSC-046, ¶ 43, 147 N.M. 134, 217 P.3d 1032 (internal quotation marks and
citation omitted). “The purpose of requiring objectively reasonable suspicion based
on the circumstances is to prevent and invalidate police conduct based on hunches,
which are, by definition, subjective.” 	Ochoa, 2009-NMCA-002, ¶ 25 (internal
quotation marks and citation omitted).
{16} 	In this case, the officer stopped Defendant’s vehicle after learning that the

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license of the registered owner of the vehicle had been revoked. The officer did not
have a subjective hunch that Defendant was breaking the law; rather, he had a
particularized suspicion that Defendant was breaking the law by driving with a
revoked license. The officer could have been incorrect; he could have discovered that
Defendant was not the registered owner and was not otherwise breaking the law. But,
as we noted in 	Candelaria, and we believe equally applicable under a state
constitutional analysis, “[t]he concept of reasonable suspicion has always embraced
a certain degree of uncertainty.” 2011-NMCA-001, ¶ 15.
{17} 	In Gomez, our Supreme Court determined that the New Mexico Constitution
provides broader protection for warrantless searches of automobiles, holding that they
required a showing of exigent circumstances. 1997-NMSC-006, ¶¶ 39-40. In Ochoa,
we said that the Gomez Court “determined that where there is no reasonable basis to
believe that the delay in obtaining a search warrant will jeopardize legitimate law
enforcement interests, there is no justification for an exception to the warrant
requirement.” 	Ochoa, 2009-NMCA-002, ¶ 22 (citing Gomez, 1997-NMSC-006,
¶¶ 41-43). In this case, we believe that it would potentially jeopardize legitimate law
enforcement interests to require police officers to determine, prior to effecting a traffic
stop, whether the driver of a vehicle matches the basic description of the registered
owner. 	In upholding a stop similar to the stop at issue here, the Indiana Supreme

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Court explained:
We agree with the [s]tate that requiring the officer to verify the driver of
the vehicle strikes against basic principles of safety because it puts the
onus on the officer to maneuver himself into a position to clearly observe
the driver in the midst of traffic. 	In addition, we acknowledge the
difficulty that the driver verification requirement would impose on
officers during late night hours and in situations where car windows are
darkly tinted[.]
Armfield v. State, 918 N.E.2d 316, 322 (Ind. 2009) (alteration, internal quotation
marks, and citation omitted); see also State v. Vance, 790 N.W.2d 775, 782 (Iowa
2010) (“[T]o forbid the police from relying on such an inference [that the driver of a
vehicle is the registered owner] would seriously limit an officer’s ability to investigate
suspension violations because there are few, if any, additional steps the officer can
utilize to establish the driver of a vehicle is its registered owner.”). 	Armfield and
Vance were based on the United States Constitution, but we believe the policy
considerations underlying these decisions are relevant to this case. Requiring police
officers to do more than what the officer did here could potentially jeopardize the
legitimate law enforcement interest of removing drivers with revoked or suspended
licenses from our roadways.
{18} 	We agree with the State that the best and least intrusive way for the officer to
confirm or dispel his suspicion that the driver of the vehicle he observed had a
revoked license was through an investigatory traffic stop. See State v. Affsprung, 115

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N.M. 546, 550, 854 P.2d 873, 877 (Ct. App. 1993) (“While it is true that reasonable
suspicion does not provide carte blanche, it does allow detention sufficient to verify
or dispel the circumstances giving rise to the suspicion.”). In holding that the officer
had reasonable suspicion to stop Defendant’s vehicle, we are not adopting a bright-
line rule of the type we criticized in Ochoa. 	2009-NMCA-002, ¶ 26. 	Instead,
consistent with our precedent, we base our conclusion on the totality of the
circumstances presented in this case. 	Notably, and unlike in Ochoa, we have not
located any case in which a state court has concluded that, under its constitution, an
officer lacks reasonable suspicion to stop a vehicle on the basis of the same limited
information the officer here possessed. In Candelaria, we explained that we found
only one case “that still bears the force of law” supporting the argument that
reasonable suspicion is lacking on these facts. 2011-NMCA-001, ¶ 12. That case,
State v. Cerino, 117 P.3d 876, 878 (Idaho Ct. App. 2005), was premised on a federal
constitutional analysis.
{19} 	We conclude that, in this circumstance, the result under the New Mexico
Constitution is the same as under the United States Constitution. Like the officers in
Candelaria, 	the 	officer 	here 	“possessed 	reasonable 	suspicion 	to 	believe 	that
[Defendant’s] vehicle, as well as its occupant . . . were subject to seizure.” 	2011-
NMCA-001, ¶ 16. Accordingly, the stop of Defendant’s vehicle did not violate the

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New Mexico Constitution.
CONCLUSION
{20} 	We reverse the district court’s grant of Defendant’s motion to suppress and
remand for further proceedings consistent with this opinion.
{21} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
______________________________
JONATHAN B. SUTIN, Judge
______________________________
MICHAEL E. VIGIL, Judge