September 09, 2014 – State of New Mexico v. Ron Bell, No. 31,890

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: September 9, 2014
NO. 	31,890
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
RON BELL,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellant
Bregman & Loman, P.C.
Sam Bregman
Albuquerque, NM
for Appellee

OPINION
HANISEE, Judge.
{1} 	In its appellate capacity, the district court entered an opinion and order
reversing a metropolitan court conviction for speeding, failure to maintain lane, and
driving while impaired (first offense), on the basis that the metropolitan court should
have excluded prosecution evidence that was admitted at trial in violation of the New
Mexico Constitution. The State now appeals the district court order, arguing that
Defendant failed to preserve the grounds relied upon by the district court for
suppressing the evidence at issue and that the challenged evidence was properly
admitted during trial. Because we agree with the district court that the grounds it relied
upon to reverse were sufficiently preserved in the metropolitan court and constituted
reversible error, we affirm.
Standard of Review
{2} 	Because this is a criminal action “involving driving while under the influence
of intoxicating liquors or drugs[,]” the metropolitan court acted as the trial court of
record, and the district court acted in its appellate capacity when it reviewed the
conviction. NMSA 1978, § 34-8A-6(C) (1993); Rule 1-073 NMRA; see State v.
Trujillo, 1999-NMCA-003, ¶ 4, 126 N.M. 603, 973 P.2d 855 (stating that “[f]or on-
record appeals the district court acts as a typical appellate court, with the district judge

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simply reviewing the record of the metropolitan court trial for legal error”). In
subsequent appeals such as this, we apply the same standards of review employed by
the district court. See id. ¶¶ 1, 5. A trial court’s determination on a motion to suppress
evidence involves a mixed question of law and fact, as to which our review is de novo.
State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. Our scope of
review, like that of the district court, is defined by Supreme Court rules that require
that in order “[t]o preserve a question for review it must appear that a ruling or
decision by the metropolitan court was fairly invoked[.]” Rule 1-073(O); cf. Rule 12-
216(A) NMRA. The preservation rule is applied to advance its three primary
purposes:
(1) to specifically alert the [trial] court to a claim of error so that any
mistake can be corrected at that time, (2) to allow the opposing party a
fair opportunity to respond to the claim of error and to show why the
[trial] court should rule against that claim, and (3) to create a record
sufficient to allow this Court to make an informed decision regarding the
contested issue.
Gerke v. Romero, 2010-NMCA-060, ¶ 18, 148 N.M. 367, 237 P.3d 111 (internal
quotation marks and citation omitted).
Proceedings Before the Metropolitan Court
{3} 	The 	sole 	evidence 	relevant 	to 	the 	metropolitan 	court’s 	ruling 	denying
suppression was the trial testimony of Deputy Allen. The relevant portions of Deputy
Allen’s testimony described a sequence of events that began with Defendant’s car

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passing Deputy Allen, who was driving northbound on Tramway Boulevard in
Albuquerque, New Mexico. Deputy Allen then caught up with Defendant’s car and
determined, by reference to his own speedometer, that Defendant was driving at a
speed of sixty miles per hour in an area with a posted speed limit of fifty miles per
hour. At the intersection of Tramway and Spain Road, both cars stopped at a red light,
but Defendant’s car improperly stopped in the intersection crosswalk. When the light
turned green, Defendant re-accelerated to sixty miles per hour, with Deputy Allen still
following. The cars again stopped for a red light at the intersection of Tramway and
Academy Road, and Defendant again accelerated to sixty miles per hour after the stop.
Just north of Academy, Defendant crossed partially over the white line dividing the
roadway from the shoulder, so that “the middle of the vehicle was over the white
line,” and continued to drive partially on the shoulder until Deputy Allen pulled him
over just past the intersection of Tramway and San Rafael Avenue. As he pulled
Defendant over, Deputy Allen used his radio to ask dispatch whether a DWI unit was
available because “[j]ust on the observation of the driving[, Deputy Allen] wasn’t sure
if that was what [he] was looking at or not.”
{4} 	Deputy Allen approached Defendant, explained the basis for the stop, and asked
Defendant for his driver’s license, automobile registration, and proof of insurance. He
noticed that Defendant’s hands were shaky when he handed over those documents and

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that “it sounded like something wasn’t correct; something didn’t sound correct about
his voice.” Deputy Allen described Defendant as sounding as if he were speaking with
a “thick tongue.”
{5} 	Deputy Allen asked Defendant if he was “under the influence,” and Defendant
said “no.” Deputy Allen then had Defendant put both of his hands on the car window
frame and move his head closer to the car window in order to conduct a horizontal
gaze nystagmus (HGN) test. It took four attempts by Deputy Allen to conclude that
Defendant bore no sign of nystagmus, a delay Deputy Allen attributed to Defendant’s
non-compliance with instructions. Yet Deputy Allen agreed when cross-examined that
performing an HGN test while the subject is seated in his car does not comply with
standards promulgated by the National Highway Traffic Safety Administration.
{6} 	Deputy Allen next asked Defendant whether “he [had] any grenades, rocket
launchers in the vehicle” and whether “he had any dead bodies in the car.” In response
to both of those questions, Defendant said “no” while shaking his head. Deputy Allen
then asked whether Defendant “had any narcotics in the vehicle, prescription or
otherwise,” and Defendant answered “no,” but this time simultaneously nodded his
head in the affirmative. Deputy Allen then asked whether there were any prescriptions
in Defendant’s car and Defendant again said “no” while contradictorily nodding his
head affirmatively. Deputy Allen testified that he did not, in fact, believe that

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Defendant had any grenades, rocket launchers, or dead bodies in his car, but that he
asked those questions to determine “what type of response” he would get from
Defendant and to help “decide if [Defendant was] being truthful.” Afterward, evidence
was uncovered leading to Defendant’s arrest and ultimately his conviction in the
metropolitan court.
{7} 	Following Deputy Allen’s testimony, Defendant moved to suppress based upon
“lack of reasonable suspicion to even conduct a further investigation along with the
lack of reasonable suspicion based on the stop.” The metropolitan court heard
argument from both sides on those issues and ruled that the initial traffic stop was
based upon reasonable suspicion. Defendant does not challenge that ruling on appeal.
Defense counsel then asked the metropolitan court for a ruling regarding whether
there was sufficient reasonable suspicion for “it to go from a [traffic] stop to
conducting a DWI investigation.” Following further argument, the metropolitan court
denied Defendant’s motion and ruled Deputy Allen’s testimony to be admissible,
specifically noting that Defendant was speeding, failed to maintain his traffic lane, and
that Deputy Allen had to “go over [the HGN] directions on three different occasions.”
Appeal on the Record to the District Court
{8} 	Following a four-day bench trial in metropolitan court resulting in a conviction
and the entry of a sentencing order, Defendant appealed to the district court arguing,

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inter alia, that “the metropolitan court erred in ruling independent reasonable
suspicion arose outside of the scope of the initial . . . stop for traffic violations in
violation of the Fourth Amendment of the United States Constitution and [Article II,
Section 10] of the New Mexico Constitution[.]” The State’s response asserted that
Defendant relied solely upon the Fourth Amendment at trial and thus had not
preserved any claim based upon the concededly broader protections afforded by
Article II, Section 10 of the New Mexico Constitution, because that provision of the
state constitution was never expressly referenced before the metropolitan court. The
district court, sua sponte, ordered the parties to submit supplemental briefing on the
question of “whether Defendant preserved his claim, under Article II, Section 10 of
the New Mexico Constitution, as to whether or not Deputy Allen lacked reasonable
suspicion to question Defendant regarding additional criminal activity thereby
improperly expanding the scope of the traffic stop.”
{9} 	As directed, the parties submitted briefs addressing the question of whether
Defendant had asserted any protection existing under the state constitution at trial. In
doing so, Defendant maintained that, although his argument at trial made no specific
reference to any provision of the state constitution, he had argued an established
principle 	protected 	uniquely 	by 	the 	New 	Mexico 	Constitution. 	The 	State’s
disagreement notwithstanding, the district court concluded that “Defendant preserved

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these issues for review.” If Defendant was correct in his claim before the district court,
the central question raised in this appeal was preserved for review both in that court
and here.
{10} 	In then substantively analyzing Defendant’s state constitutional argument, the
district court further concluded that “Deputy Allen lacked reasonable suspicion to
expand the scope of the investigation to inquire into weapons and dead bodies” and
therefore that “Defendant’s motion to suppress should have been granted [in the
metropolitan court] as to any evidence obtained after that inquiry.” The State appeals
from the district court’s ruling, reiterating its contentions that Defendant’s state
constitutional arguments were not raised and are therefore not preserved and that
Article II, Section 10 was not violated by questions unrelated to the DWI investigation
that did not expand the investigation’s scope.
Preservation of Defendant’s Claims
{11} 	The question of whether a claim under Article II, Section 10 is preserved in this
case depends upon what grounds or principle Defendant asserted at trial for the
suppression 	of 	evidence. 	Specifically, 	we 	must 	resolve 	whether 	Defendant’s
challenges that Deputy Allen lacked reasonable suspicion “to even conduct a further
investigation” or “to go from a [traffic] stop to conducting a DWI investigation” must
be strictly understood to challenge only investigative steps undertaken with regard to

8
DWI. If so constrained, the objections would fail to assert the broader, well
established state constitutional principle that limits police inquiries of an individual
suspected of having committed a vehicle infraction to questions reasonably related to
the basis for the vehicle stop. If understood to challenge any progression of
investigation beyond that needed in relation to the traffic infractions observed by
Deputy Allen, the time-of-trial challenge by Defendant was sufficient to garner review
of the propriety of questions about grenades, rocket launchers, and dead bodies, topics
of criminality plainly afield of traffic infractions.
To this inquiry, New Mexico courts have long held that:
[t]he purpose of an objection or motion is to invoke a ruling of the court
upon a question or issue, and it is essential that the ground or grounds of
the objection or motion be made with sufficient specificity to alert the
mind of the trial court to the claimed error or errors, and that a ruling
thereon then be invoked.
State v. Lopez, 1973-NMSC-041, ¶ 23, 84 N.M. 805, 508 P.2d 1292; see City of
Portales v. Shiplett, 1960-NMSC-095, ¶ 6, 67 N.M. 308, 355 P.2d 126 (holding that
a defendant’s failure “to point out the claimed errors and to bring them to the attention
of the trial court prevent his relying on them for the first time on appeal”). But see
State v. Gomez, 1997-NMSC-006, ¶¶ 24-25, 122 N.M. 777, 932 P.2d 1 (stating that
the defendant “need not have asserted . . . that Article II, Section 10 should be
interpreted differently from the Fourth Amendment” because there is “established

1As clear as this controlling precedent now is, we question why it is any longer
necessary that the simultaneously applicable protections of the Fourth Amendment
and Article II, Section 10 must be independently preserved when challenging the
constitutional legality of a vehicle stop in New Mexico. To require dual assertions of
such persistently overlapping protections, known well to both attorneys and the judges
in whose courts these issues are most frequently raised, unnecessarily risks the waiver
of important protections to motorists’ liberty. It is, however, for our Supreme Court
to effectuate change to its own jurisprudence, and we review the district court’s ruling
under Leyva and cases preceding it.
9
New Mexico law interpreting Article II, Section 10 more expansively”).
{12} 	Most recently, our Supreme Court has clarified that the less stringent of New
Mexico jurisprudence’s preservation requirements applies in this very context due to
the “plethora of precedent already [establishing] Article II, Section 10[’s] more
expansiv[e protection than that afforded by] the Fourth Amendment.”1 State v. Leyva,
2011-NMSC-009, ¶ 50, 149 N.M. 435, 250 P.3d 861. Having reviewed the trial
proceedings and Leyva, we disagree with the State that the issue before us was
inadequately preserved for appellate review. We conclude that not only did Defendant
assert that the facts known to Deputy Allen were insufficient to justify prolonging the
traffic stop for purposes of a DWI investigation, he broadly argued that there existed
no “reasonable suspicion to even conduct a further investigation[.]” The principle
asserted by Defendant was sufficient to question the propriety of Deputy Allen’s
questions about grenades, rocket launchers, and dead bodies. See id. ¶ 42 (“[O]nly
where a state constitutional provision had never been interpreted to provide greater

2Although unnecessary to our resolution of this issue, we note that our Supreme
Court has also stated that even if the defendant “had failed to preserve the state
constitutional claim, we could nevertheless consider it because freedom from illegal
search and seizure is a fundamental right.” Gomez, 1997-NMSC-006, ¶ 31 n.4. Also
cited in the same footnote is State v. Sutton, 1991-NMCA-073, ¶ 20, 112 N.M. 449,
816 P.2d 518, which discusses search and seizure protections under the state
constitution as a matter of general public interest that exists despite the defendant’s
failure to preserve the claim for appellate review. See Gomez, 1997-NMSC-006, ¶ 31
n.4.
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protection than its federal analog are parties required to alert the trial court [to the
applicable constitutional provisions] and articulate reasons for departure.”).2 While we
recognize that Defendant emphasized what he perceived to be the unfounded
expansion of Deputy Allen’s investigation into the realm of DWI, we construe Leyva
to caution against overly technical resolutions to preservation challenges in areas of
law 	where 	heightened 	state 	constitutional 	protections 	are 	entrenched 	in 	our
jurisprudence. See id. ¶ 38 (upholding principles of preservation set forth in Gomez
and noting that since its issuance “some opinions have strayed by imposing a higher
standard”). One such well-rooted principle is the prohibition in New Mexico on police
questioning that strays from the initial justification for a vehicle stop and that is not
otherwise separately supported by reasonable suspicion. Leyva, 2011-NMSC-009, ¶
55.
{13} 	Because we conclude that Defendant’s challenge in the metropolitan court
triggered protections pursuant to Article II, Section 10 of the New Mexico

11
Constitution, and was asserted in the metropolitan court and therefore preserved, we
need not address Defendant’s remaining arguments related to this issue. We turn now
to whether questions asked by Deputy Allen during his investigation impermissibly
expanded the scope of the traffic stop contrary to the New Mexico Constitution.
Propriety of Questions Regarding Rocket Launchers and Dead Bodies
{14} 	It is well-rooted within New Mexico jurisprudence that our interstitial approach
to state constitutional analysis entails review of parallel or analogous provisions of the
United States Constitution to determine whether the federal protections are deficient
to a degree requiring supplementation to protect the rights of New Mexico citizens.
Id. ¶¶ 40-42. The rule is:
“[w]here New Mexico courts have taken a different path than federal
courts, our precedent governs regardless of whether a party cites specific
cases in support of a constitutional principle, so long as the party
asserted the principle recognized in the cases and has developed the facts
adequately to give the opposing party an opportunity to respond and to
give the court an opportunity to rule.”
Id. ¶ 41 (quoting Gomez, 1997-NMSC-006, ¶ 30). Leyva also clarified that the “less
stringent of Gomez’[s] preservation requirements[,]” namely the “asserti[on of] the
constitutional principle” and a “showing [of] the factual basis needed for the [district]
court to rule on the issue[,]” Leyva, 2011-NMSC-009, ¶¶ 40, 44, 50 (internal quotation
marks and citation omitted), applies to issues such as that raised herein because “ ‘a
plethora of precedent already interprets Article II, Section 10 more expansively than

12
the Fourth Amendment.’ ” Leyva, 2011-NMSC-009, ¶ 50 (quoting State v. Garcia,
2009-NMSC-046, ¶ 52, 147 N.M. 134, 217 P.3d 1032 (Bosson, J., specially
concurring).
{15} 	Further instructive to our analysis is Leyva’s reaffirmation of the state
constitutional principle that Defendant maintains he invoked at trial, namely that
Article II, Section 10 requires “a reasonable justification for the initial stop and that
all questions asked during the stop be reasonably related to the reason for the stop or
otherwise supported by reasonable suspicion[.]” Leyva, 2011-NMSC-009, ¶ 55
(emphasis added); see State v. Duran, 2005-NMSC-034, ¶ 35, 138 N.M. 414, 120
P.3d 836 (holding that “all questions asked by police officers during a traffic stop
must be analyzed to ensure they are reasonably related to the initial justification for
the stop or are supported by reasonable suspicion”) overruled in part and on other
grounds by Leyva, 2011-NMSC-009, ¶ 17. Leyva reminds us that Article II, Section
10 bestows upon drivers “broader protection to individual privacy under the New
Mexico Constitution than under the Fourth Amendment.” 2011-NMSC-009, ¶ 53
(internal quotation marks and citation omitted). As a result, the propriety of police
conduct during a traffic stop is measured from the perspective of the state constitution
by a standard distinct from that of the Fourth Amendment. Pursuant to modern Fourth
Amendment jurisprudence, a traffic stop will be held valid so long as the officer does

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not prolong the stop “beyond the time needed to investigate the circumstances that
caused the stop, unless he develops reasonable suspicion of additional criminal
activity in the meantime.” Id. ¶ 19 (internal quotation marks and citation omitted).
Thus, for Fourth Amendment purposes, the proper inquiry is “[w]hether an officer’s
questioning measurably extends the length of a traffic stop.” Id. ¶ 21; see Ariz. v.
Johnson, 555 U.S. 323, 333 (2009) (noting that “inquiries into matters unrelated to the
justification for the traffic stop . . . do not convert the encounter into something other
than a lawful seizure, so long as those inquiries do not measurably extend the duration
of the stop”).
{16} 	For purposes of Article II, Section 10, however, our courts continue to adhere
to the two-part test first articulated in Terry v. Ohio, that requires an officer’s action
be both “justified at its inception” and “reasonably related in scope to the
circumstances which justified the interference in the first place.” 392 U.S. 1, 19-20
(1968). Thus, under Article II, Section 10, both the duration and scope of a stop must
be reasonable under the circumstances and, unlike under the Fourth Amendment, even
questions that do not prolong the encounter are improper if they are not “reasonably
related to the reason for the stop or otherwise supported by reasonable suspicion[.]”
Leyva, 2011-NMSC-009, ¶ 55. This approach “ensures that investigating officers do
not engage in ‘fishing expeditions’ during traffic stops.” Id.

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{17} 	Regarding the specific questions at issue, we note that the State has not asserted
that the facts of the vehicle stop gave rise to any reasonable suspicion involving the
disallowed possession of certain weapons or corpses. Had such a concern been argued
by the State and determined to be valid, it would constitute a permissible expansion
of the scope of the traffic stop. Contrary to such a finding, the district court
determined that:
Deputy Allen jumped from a traffic investigation to an impairment
investigation to questions regarding weapons and dead bodies. . . . There
were 	no 	articulable 	facts 	introduced 	suggesting 	the 	Deputy 	had
reasonable suspicion to suspect Defendant was in possession of illegal
weapons or corpses.
. . . .
Such questions, which expand the scope of the investigation, are not
permitted in New Mexico, absent reasonable suspicion, irrespective of
the Deputy’s alleged intent to simply elicit truthful responses.
{18} 	On the record before it, the district court’s analysis was correct. Indeed, when
given the opportunity to explain or establish an investigative foundation for his non-
traffic-related inquiries in a manner that related to his immediate investigation, Deputy
Allen offered only two related justifications: that he needed help generally deciding
whether Defendant was “being truthful,” and in “trying to determine the truthfulness
of a response.” On appeal, the State similarly contends that “Deputy Allen did not ask
the questions about weapons and dead bodies with the intent to investigate whether

15
Defendant had such things. Rather, he asked the questions as an interview technique
designed to help him gauge the truthfulness of Defendant’s responses about DWI.”
However, nothing in the record indicates a preexisting awareness on the part of
Deputy Allen as to whether grenades, dead bodies or rocket launchers were located
within Defendant’s vehicle such to where Deputy Allen could ascertain the honesty
or dishonesty of Defendant’s responses. Furthermore, there is no basis under Leyva
for us to assume an alternatively appropriate reason existed for asking these unrelated,
and what Deputy Allen conceded to be “outrageous” questions regarding items
Defendant could not have lawfully possessed. See id. ¶ 55; see also Duran, 2005-
NMSC-034, ¶ 35 (stating that “all questions asked by police officers during a traffic
stop must be analyzed to ensure they are reasonably related to the initial justification
. . . or are supported by reasonable suspicion” that may unfold during the investigation
or traffic stop). There being no such legitimate investigative purpose asserted herein,
no basis for Deputy Allen to accurately ascertain the truthfulness of the answers given
by Defendant, and nothing in the record to otherwise place the questions in the context
of what was properly being investigated, we hold that the district court correctly
concluded that the questions were constitutionally improper under Leyva.
{19} 	When a motorist is subjected to inquiries unsupported by reasonable suspicion
during a vehicle stop, our precedent establishes that the continuing detention of that

16
person is illegal. State v. Portillo, 2011-NMCA-079, ¶ 24, 150 N.M. 187, 258 P.3d
466. It is likewise settled law that evidence “discovered as a result of the exploitation
of an illegal seizure must be suppressed unless it has been purged of its primary taint.”
Id. ¶ 25 (citing Garcia, 2009-NMSC-046, ¶¶ 14, 23, for its recitation of the “fruit of
the poisonous tree doctrine” set forth in Wong Sun v. United States, 371 U.S. 471
(1963)). See Leyva, 2011-NMSC-09, ¶ 2 (stating that when an investigative officer’s
questions are not based upon reasonable suspicion, the proper remedy is to suppress
“evidence gathered as a result of the questioning”); see also id. ¶ 10 (stating “[w]here
evidence has been obtained as a result of questions not justified under the Fourth
Amendment, suppression of that evidence is the proper remedy”). On appeal, the
State’s argument is limited to defending the propriety of the questions asked by
Deputy Allen. The State does not argue that the evidence that led to Defendant’s
conviction did not result from the exploitation of his illegal detention, or maintain
specifically that it derived from something other than the impermissible questions
themselves. Nor did it challenge the district court’s determination that Defendant’s
conviction must be reversed if the questions are determined to be constitutionally
impermissible. We do not address issues or questions unraised by litigants. See State
v. Bent, 2013-NMCA-108, ¶ 27, 328 P.3d 677 ([W]e disregard . . . issue[s] . . . not
raised on appeal.”

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{20} 	Here, the entirety of Deputy Allen’s testimony leading to Defendant’s arrest
was admitted into evidence during trial, including that regarding events that transpired
after the improper questions were asked and during the illegal detention. As Deputy
Allen’s testimony constituted the sole basis for the metropolitan court’s determination
of Defendant’s guilt, Defendant’s conviction must be reversed.
CONCLUSION
{21} 	The order of the district court is affirmed.
{22} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
I CONCUR:
MICHAEL E. VIGIL, Judge
JONATHAN B. SUTIN, Judge (specially concurring).

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SUTIN, Judge (specially concurring).
{23} 	I concur but add the following thoughts.
{24} 	The Opinion’s analysis of whether Defendant properly invoked the state
constitution indirectly permits a result without having to outright reject present
preservation jurisprudence. It is too bad that we must resort to this indirect approach
to reach a just result. I fully agree with what the Opinion states in its footnote 2. It is
time to hold that in search and seizure cases our courts will automatically examine
whether relief under Article II, Section 10 of the New Mexico Constitution should be
available whenever it appears that relief is unavailable under the Fourth Amendment.
{25} 	Insofar as the questioning about grenades, rocket launchers, and dead bodies is
concerned, no one, neither Deputy Allen or Defendant, nor the metropolitan court,
thought that the questioning was intended to relate to whether Defendant may have
had such unlawful items in his vehicle. Furthermore, the officer testified that he had
learned the questioning technique in “interviews and interrogation school” and that
he had used similar types of questions in other traffic stop DWI investigations.
Assuming, without deciding, that questioning to ascertain truthfulness in DWI
(alcohol or drugs) investigations might under some particular circumstance be a
legitimate investigatory process, the failure here was Deputy Allen’s complete failure
to lay an adequate foundation in that regard.

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{26} 	Again, assuming, without deciding whether questions related to telling the truth
in a DWI investigation might be legitimate and not constitute an unlawful expansion
of the investigation, it appears to me that an officer would have to show a court that
the questioning was grounded in a particular skill, knowledge, experience, education,
and perhaps even science, and that the questioning was likely to give an indication of
truthfulness that would assist the officer in his or her investigation.
__________________________________
JONATHAN B. SUTIN, Judge