October 13, 2015 – State of New Mexico v. Oscar Hernandez, No. 33,156

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: October 13, 2015
NO. 33,156
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
OSCAR HERNANDEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Darren M. Kugler, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
I. 	Introduction
{1} 	Defendant Oscar Hernandez challenges the district court’s denial of his motion
to suppress contraband seized from him and statements he made during an
investigatory stop of an SUV in which he was a passenger. He asserts that law
enforcement agents did not have reasonable suspicion when they stopped the SUV.
We hold that the stop was supported by reasonable suspicion, and we affirm the
district court.
Procedural History
{2} 	Following his arraignment for possession of a controlled substance, in violation
of NMSA 1978, Section 30-31-23(E) (2011), Defendant filed a motion to suppress the
controlled substances seized, as well as all statements made by him, following an
August 23, 2012, stop of an SUV in which he was a passenger. The district court held
an evidentiary hearing on the motion during which the State proffered testimony from
the two undercover agents concerning events preceding the stop of the SUV.
{3} 	The district court denied Defendant’s motion to suppress, listing the following
factors that were considered in its totality of the circumstances analysis.
(1) the established drug house through undercover buys, (2) previous
identification of the SUV through an undercover buy at [a] separate drug
house, (3) observation of activities consistent with previous drug buys
which included the dropping off and picking up of the male passengers,
and (4) the [three to five] minute time frame that was found to be
consistent with drug trafficking.

1 Our impression that Mendenhall was not a confidential informant and was
unaware of the agents’ positions with law enforcement is enhanced by the fact that
no mention appears in the record of the agents conducting controlled buys, where the
informant is first checked to see if they possess drugs prior to making the buy at the
request of officers, see State v. Lujan, 1998-NMCA-032, ¶ 2, 124 N.M. 494, 953 P.2d
2
Following the denial of Defendant’s motion to reconsider, Defendant entered a
conditional plea, reserving his right to appeal the district court’s denial of his motion
to suppress. Judgment was entered against Defendant, and Defendant filed a timely
notice of appeal.
II. 	Background
{4} 	This case involved an ongoing narcotics investigation that culminated in the
stop of the SUV and the arrest of Defendant, who was a passenger in the vehicle.
Following the stop, Defendant was described by another passenger in response to an
agent’s query about the location of the narcotics. The stop was based on three previous
incidents occurring in the agents’ ongoing investigation, incidents that the State
maintains supported reasonable suspicion for the stop of the SUV. We describe those
incidents.
A. 	July 3, 2012
{5} 	Undercover narcotics Agents Gabriel Arenibas and Joseph Misquez arranged
an undercover heroin buy on July 3, 2012, through a man named Kyle Mendenhall.
The agents referred to Mendenhall as a “suspect” and used him not as a confidential
informant, but rather as a source of drugs and a way to track down other heroin dealers
in the area. 1 The agents drove with Mendenhall to the Oñate Greens Trailer Park.

29 (describing a typical controlled buy), and the fact that his role in the investigation
ended due to an unrelated parole violation.
2 It appears from the record that the agents’ interactions with Hall and Malchete
were not controlled buys and that Hall and Malchete were also not confidential
informants. This position is based on repeated references to “undercover buys” with
Hall and Malchete, references to them as “suspects,” and the fact that Agent Arenibas
remained with Agent Misquez during the July 23 buy for “safety.”
3
Mendenhall directed the agents toward a trailer in Space 104 in the trailer park. He
requested that the agents drop him off a few spaces away so that he could approach
on foot, as the resident of Space 104 did not like new people to go there. The agents
parked a few spaces away from Space 104, moved to a vantage point where they could
observe Mendenhall, and saw him go into the white trailer. Mendenhall remained in
the trailer for two to five minutes, returned to the car, they proceeded to Mendenhall’s
residence to drop him off, and Mendenhall gave a packet of heroin to the agents. Both
agents testified that Mendenhall’s presence in the trailer for two to five minutes was
consistent with drug trafficking.
B. 	July 23, 2012
{6} 	Sometime after the July 3 buy, Mendenhall violated his parole, and the agents
were no longer able to make buys through him. The agents accepted an offer from
Brandon Hall and Zach Malchete, who were relatives of Mendenhall, “to hook us up
meaning to sell us heroin” and arranged to buy heroin from them instead of
Mendenhall.2 On July 23, 2012, Hall and Malchete met with Agent Misquez, while
Agent Arenibas conducted surveillance from approximately twenty feet away. Agent
Misquez gave Malchete $40 to purchase the heroin, and Malchete left, stating that he

4
had to go to the Oñate Greens to his “connect.” Agent Misquez testified that Malchete,
Hall, Mendenhall, and several other subjects were part of the investigation that the
agents were working, and they knew their sources to be at two locations, one of which
was Space 104 in the Oñate Greens Trailer Park. Agent Misquez confirmed that
Malchete stated that he was “going to that white trailer,” and Hall also confirmed the
same information to Agent Misquez, that it was the white trailer in Space 104 from
which Mendenhall had purchased heroin on July 3. Malchete returned approximately
five to ten minutes later; upon his return, Malchete gave Agent Misquez $40 worth of
heroin.
C. 	August 10, 2012
{7} 	On August 10, 2012, the agents contacted Hall in order to purchase more
heroin; Hall did not have the amount that the agents requested, but offered to get it if
they agreed to drive him to a location where he could purchase it. The agents agreed,
and Hall directed them to 2801 Merriweather Street. This buy played out under the
“same circumstances” as the July 3 purchase by Mendenhall at Space 104, in that the
agents parked down the street from the house and waited while Hall went into the
Merriweather home on foot; again, the reason for this was that the individual at the
Merriweather home disliked new people coming to the house. While Hall was in the
house, the agents noticed a tan or golden colored SUV parked in the driveway of the
Merriweather home and “got the plate” of that vehicle. Hall came out of the residence
three to five minutes later, got into the agents’ car, and handed Agent Misquez a small
amount of heroin. At the time, the agents did not know who resided at 2801

5
Merriweather. The agents later determined that a family lived at the residence and that
the SUV was registered to a person living at that address.
D. 	August 23, 2012
{8} 	The agents participated in other buys with Hall and Malchete between July 3
and August 23, but in none of those additional buys did Hall and Malchete go to
Space 104; instead, they took the agents to different addresses to buy heroin. The
agents began conducting surveillance on Space 104 on their own. At the inception of
the August 23rd surveillance, the agents determined that they would stop any vehicle
engaged in “suspicious activity” and also had a marked police unit waiting in the area
to conduct such stops. The agents observed a gold SUV stop in the trailer park, drop
off two passengers down the road from Space 104, and proceed to pull into Space
104’s driveway. The vehicle remained there for three to five minutes, and the two
remaining individuals in the SUV “made contact with the subject inside Space 104.”
The vehicle left Space 104, picked up the two passengers down the street, and exited
the trailer park. Agent Arenibas testified that the agents noticed that the gold SUV was
the same one they had seen parked outside 2801 Merriweather during the buy on
August 10. When the SUV passed in front of the agents, they were able to see its
license plate number, thereby confirming that the SUV was the same one that they had
seen outside of 2801 Merriweather. The SUV having been parked at Space 104 for the
short length of time it was parked there, and having dropped off and picked up the
passengers down the street from Space 104, was consistent with drug trafficking that
the 	agents 	had 	observed 	during 	the 	previous 	undercover 	buys 	during 	their

6
investigation. Based on the circumstances of this August 23rd buy and the similarities
it had with the earlier undercover heroin purchases at Space 104 and at 2801
Merriweather, the agents believed that the occupants of the SUV were involved in
picking up or purchasing heroin.
{9} 	Because of these similarities, as well as the same SUV’s involvement, the
agents requested that the marked police unit stop the SUV. The stop was conducted
approximately one block away from the trailer park, minutes after the SUV pulled
away from Space 104. The agents drove to the place where the marked unit had
stopped the SUV, approached the vehicle, advised the occupants of the narcotics-
related reason for the stop, and separated them. After a female passenger described
Defendant as being the person with the heroin, Defendant was confronted by the
agents, and eventually, Defendant voluntarily gave Agent Misquez a package of
heroin.
III. 	Discussion
Standard of Review
{10} 	When we review an appeal from a determination on a motion to suppress in a
criminal 	case, 	we 	look 	at 	the 	totality 	of 	circumstances. 	State 	v. 	Leyva,
2011-NMSC-009, ¶¶ 30, 59, 149 N.M. 435, 250 P.3d 861; State v. Vandenberg,
2003-NMSC-030, ¶ 19, 134 N.M. 566, 81 P.3d 19. We view the facts in a light most
favorable to the prevailing party. State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M.
428, 211 P.3d 885. At the same time, if the district court makes findings of fact, and
if any finding is attacked for lack of substantial evidence, we will review the finding

3 We limit our analysis to the federal constitution when the defendant does not
argue 	on 	appeal how and 	why the New Mexico 	Constitution 	provides 	greater
protection. See generally State v. Lorenzo P., 2011-NMCA-013, ¶ 9, 149 N.M. 373,
249 P.3d 85. Defendant provides no such argument here. We therefore analyze
7
under a substantial evidence standard of review. State v. Neal, 2007-NMSC-043, ¶ 15,
142 N.M. 176, 164 P.3d 57. If the finding is supported by substantial evidence, we
will defer to the court’s finding. Id. Once the operative facts are ascertained, we
review 	the 	constitutional 	reasonableness 	of 	the 	actions 	of 	law 	enforcement.
Vandenberg, 2003-NMSC-030, ¶ 19; State v. Attaway, 1994-NMSC-011, ¶¶ 6-10, 117
N.M. 141, 870 P.2d 103. A constitutional reasonableness analysis engages a process
of evaluating both fact and law and is appropriately labeled a mixed question of fact
and law. Attaway, 1994-NMSC-011, ¶¶ 6-7; see generally Randall H. Warner, All
Mixed Up About Mixed Questions, 7 J. App. Prac. & Process 101 (2005). Despite the
fact that our review requires determinations of what the operative facts are, because
the process involves evaluative judgments in regard to reasonableness, we review the
district court’s determination de novo. Vandenberg, 2003-NMSC-030, ¶¶ 17, 19;
Attaway, 1994-NMSC-011, ¶ 10.
The Stop Was Supported by Reasonable Suspicion
{11} 	The 	Fourth 	Amendment 	to 	the 	United 	States 	Constitution 	“prohibits
unreasonable searches and seizures . . ., and its protections extend to brief
investigatory stops of persons or vehicles that fall short of traditional arrest.” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks and citation
omitted).3 While warrantless seizures are presumed to be unreasonable, State v.

Defendant’s case only under the Fourth Amendment.
8
Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95, brief investigatory stops
are permissible if they are supported by reasonable suspicion that criminal activity
may be afoot. Arvizu, 534 U.S. at 273.
{12} 	“[T]he concept of reasonable suspicion is somewhat abstract” and has not been
reduced to a neat set of legal rules. Arvizu, 534 U.S. at 274. In reviewing a reasonable
suspicion determination, an appellate court “must look at the totality of the
circumstances” to determine “whether the detaining officer [had] a particularized and
objective basis for suspecting legal wrongdoing.” Id. at 273 (internal quotation marks
and citation omitted). The appellate court must give due weight to the factual
inferences and deductions drawn by a law enforcement officer based upon his
experience and specialized training. Id. at 273-74. “Although an officer’s reliance on
a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need
not rise to the level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard[.]” Id. at 274 (internal quotation
marks and citation omitted). Finally, we are not to engage in a “divide-and-conquer
analysis[,]” looking at each act in a series of acts that, taken alone, may be susceptible
of an innocent explanation. Id. “A determination that reasonable suspicion exists . . .
need not rule out the possibility of innocent conduct.” Id. at 277.
{13} 	In Defendant’s view, the agents’ investigations “were fragmented and flawed,”
were based on their “hunch that [the SUV] was involved in drug-related activity[,]”

9
and were not adequate to support reasonable suspicion and the seizure of the SUV.
Defendant relies on Neal, 2007-NMSC-043. In Neal, a law enforcement officer
effected a valid traffic stop of the defendant and then detained the defendant for ten
minutes to await a drug dog to perform a perimeter sniff of his vehicle. Id. ¶¶ 1, 28,
31. Our Supreme Court held that the factual bases asserted by the officer to justify the
ten minute detention did not satisfy the reasonable suspicion standard. Id. ¶ 31. The
officer’s stated grounds for detaining the defendant were that the defendant had
parked in front of a house that was under surveillance in an ongoing drug
investigation, the defendant had a discussion with the resident who was a felon, the
officer’s “belief that a drug transaction had taken place[,]” the defendant’s demeanor,
his desire to leave, and the fact that the defendant had a criminal history. Id. ¶¶ 9, 28,
30. The Court determined that the defendant’s innocent conduct, presence at a known
drug house, and prior involvement in drug-related activity were not sufficient to
constitute reasonable suspicion to detain the defendant beyond the valid traffic stop.
Id. ¶¶ 9, 23, 31. The Court reasoned that “[the d]efendant’s mere association with a
convicted felon . . ., who was under surveillance in an ongoing drug investigation, was
insufficient to create reasonable suspicion[,]” id. ¶ 30, explaining that the totality of
the facts presented did not “constitute the type of individualized, specific, articulable
circumstances necessary to create reasonable suspicion that [the d]efendant himself
was 	involved 	in 	criminal 	activity[.]” 	Id. 	¶ 	31. 	Instead, 	it 	characterized 	the
circumstances as “the type of conjecture and hunch we have rejected in the past as
insufficient to constitute reasonable suspicion.” Id.

4 The special concurrence follows suit and goes further than Defendant by more
finely parsing the facts with innocent explanations for the circumstances observed by
the 	agents 	during 	their 	ongoing 	investigation. 	Defendant’s 	and 	the 	special
concurrence’s approaches fail to consider the totality of the circumstances, fail to give
due deference to law enforcement’s training and experience, and engage in an
unwarranted 	divide-and-conquer 	approach 	by 	attempting 	to 	find 	an 	innocent
explanation for each piece and parcel of the ongoing investigation.
10
{14} 	Defendant’s reliance on Neal derives from his view that the SUV’s mere
presence at a house that was under investigation for suspected drug activity is
inadequate to support reasonable suspicion. See id. ¶¶ 4, 28, 30 (stating, among other
things, that the defendant’s presence at a house that was under investigation for drug
activity did not give rise to reasonable suspicion). We are not persuaded by this
comparison. Here, the grounds for the agents’ reasonable suspicion were based on far
more than the SUV’s mere presence at a suspected drug house.
{15} 	Further, Defendant’s arguments ignore the teachings of Arvizu. See 534 U.S.
273-74. Defendant parses the agents’ investigation and attacks the reasonableness of
the underlying inferences and conclusions as to each stage of the investigation that,
combined, ultimately led to the stop.4
{16} 	For example, Defendant argues that the agents “could not be certain” that the
Merriweather address or Space 104 were sources of heroin. To that end, Defendant
points to the facts that the agents did not see or hear any drug transaction at either
address and did not confirm that Mendenhall, Hall, or Malchete were honest in their
representations that they purchased heroin from either address by somehow ensuring
that they did not have heroin before they went to those addresses or somehow

5 Arguably, the agents’ observations were sufficient to establish Mendenhall’s
and Hall’s reliability even under the heightened standard of probable cause applicable
to a search warrant. See, e.g., State v. Mejia, 766 P.2d 454, 457 (Wash. 1989) (en
banc) (considering the reliability of information gained from a middleman who
purchased drugs for a confidential informant and concluding that law enforcement’s
observations of his travel to a suspected drug house, then back to the confidential
informant to deliver drugs demonstrated probable cause); State v. Morehouse, 684
P.2d 1348, 1350 (Wash. Ct. App. 1984) (stating that, in the context of a search
warrant for a suspected drug house, any deficiency concerning a middleman’s
reliability was overcome by law enforcement’s “observation of two separate [drug]
transactions involving the same residence and the same pattern of activity”).
11
confirming that they did not keep the agents’ money themselves. Defendant’s
argument evokes the sense of certainty that is required in a probable cause
determination, but it misses the mark in terms of the reasonable suspicion standard.
See Alabama v. White, 496 U.S. 325, 330 (1990) (stating that because “[r]easonable
suspicion is a less demanding standard than probable cause” it “can arise from
information that is less reliable than that required to show probable cause”); United
States v. Cortez, 449 U.S. 411, 418 (1981) (stating that the process of developing
reasonable suspicion sufficient to justify a brief investigatory stop “does not deal with
hard certainties, but with probabilities” developed from “common sense conclusions
about human behavior . . . as understood by those versed in the field of law
enforcement”). The agents’ training and experience, their observations during the drug
buys, and the involvements of the SUV, objectively support the agents’ reasonable
suspicion that the addresses were sources of heroin 5 and the SUV was connected. See
Arvizu, 534 U.S. at 273-74 (discussing the standard used to determine whether law

12
enforcement 	“[had] 	a 	particularized 	and 	objective 	basis 	for 	suspecting 	legal
wrongdoing” (internal quotation marks and citation omitted)).
{17} 	Defendant also attacks reasonable suspicion on the ground that neither the SUV
nor its owner was known to have been previously involved in any suspicious, drug-
related activity. Defendant states that “[t]he agents had not identified [to whom] at the
Merriweather residence the SUV belonged . . . or if that person was, in fact, involved
with drug sales.” In support of this attack, Defendant relies on State v. Graves, 1994-
NMCA-151, ¶ 8, 119 N.M. 89, 888 P.2d 971, for the inapplicable proposition that, in
Defendant’s words, “presence on the premises subject to a search warrant does not
justify detaining or searching the defendant[.]” We are not made aware of any
authority to support the notion that an investigatory stop requires law enforcement
officers to know of prior suspicious or criminal activity or to know that the owner of
the subject vehicle was “in fact” involved in criminal activity. Again, reasonable
suspicion “does not deal with hard certainties, but with probabilities.” Cortez, 449
U.S. at 418. Further, focusing on what the agents did know instead of what they did
not know about the SUV, that is, its presence at the Merriweather address during a
heroin purchase, its later presence at the Oñate Greens Trailer Park, and the fact that,
while at the trailer park, it followed the particular pattern known to the agents to be
associated with heroin purchases from Space 104, objectively supported the agents’
reasonable suspicion of criminal activity. See, e.g, United States v. Askew, 403 F.3d
496, 508 (7th Cir. 2005) (confirming that the totality of the circumstances firmly
established reasonable suspicion and that, although one event could be interpreted as

13
an innocent one, “a pattern of behavior interpreted by the untrained observer as
innocent may justify a valid investigatory stop when viewed collectively by
experienced drug enforcement agents” (internal quotation marks and citation
omitted)); United States v. Harley, 682 F.2d 398, 401 (2d Cir. 1982) (holding that
reasonable suspicion supported an investigatory stop because the characteristics of the
defendant’s “brief stop” at a place that agents “were pretty well convinced” was a
place that narcotics were being sold was typical of the activities related to narcotics
sales that the law enforcement agents had previously observed); United States v.
Gomez, 633 F.2d 999, 1004-05 (2d Cir. 1980) (holding that reasonable suspicion of
criminal activity was supported by experienced police officers’ observations in an area
of high narcotics activity of a pattern of behavior that they had seen many times
before, notwithstanding that “viewed singly by an untrained eye, these events might
be susceptible of an innocent interpretation”).
{18} 	In Defendant’s next attack on whether the agents’ investigation supported their
reasonable suspicion, he argues that the agents “had no reason to be suspicious that
illegal activity was occurring at Space 104” on the day that the SUV was seized. We
disagree. The totality of the circumstances gave the agents sufficient objective reason
to be suspicious of illegal drug-related activity. Again, the factors included
Mendenhall’s and Hall’s respective heroin purchases from Space 104, the fact that the
SUV was registered to a resident and was in the driveway during the previous
Merriweather heroin transaction on August 10, and the occupants’ actions that were

14
consistent 	with 	the 	pattern 	of 	drug-related 	behavior 	occurring 	during 	their
investigation and the previous heroin purchases from Space 104.
{19} 	Finally, Defendant argues that “the agents were [not] operating under a specific,
predictive tip that criminal activity was presently afoot[] or was about to occur.”
Consideration of a specific, predictive tip that criminal activity is about to occur may
be relevant to a reasonable suspicion determination in a circumstance where a tip from
an informant contributes to reasonable suspicion. See State v. Robbs, 2006-NMCA-
061, ¶ 19, 139 N.M. 569, 136 P.3d 570 (concluding that an informant’s tip was
reliable and supported by reasonable suspicion because, among other things, it
predicted the defendant’s future movement as corroborated by law enforcement). Such
considerations are not relevant here where the agents’ reasonable suspicion stemmed
from their own undercover investigation and surveillance and not from a tip from an
informant.
{20} 	In sum, the totality of the circumstances known to the agents as a result of their
undercover activities with Mendenhall, Hall, and Malchete, their surveillance of the
Merriweather address and Space 104 during Mendenhall’s and Hall’s respective
heroin purchases, the information gathered from Malchete, the presence of the SUV
at both at-issue addresses, and the surveillance of Space 104 that ultimately led to the
seizure of the SUV, amply supported the agents’ reasonable suspicion that criminal
activity was afoot when the marked police unit stopped the SUV. Through the course
of their investigation, the agents gathered information that allowed them to observe
a pattern of behavior associated with heroin transactions at the two specific addresses

15
that were reasonably sufficient, to link the SUV to both addresses and, ultimately, to
connect the SUV belonging to a resident of the Merriweather address to the pattern
of behavior associated with a suspected purchase of heroin from Space 104 on August
23, 2012. The “mere hunch” label is a stretch too far here. Viewed in total and with
the required deference to the inferences and deductions drawn by the agents based on
their experience and training, these circumstances were sufficient to give rise to more
than a “mere hunch.” See Arvizu, 534 U.S. at 273-74 (recognizing that a mere hunch
will not support reasonable suspicion, but also recognizing that the appellate courts
must give due weight to the factual inferences and deductions drawn by law
enforcement based upon experience and specialized training). To the contrary, the
circumstances here provided an objective basis upon which the agents could
reasonably suspect criminal activity and conduct a lawful investigatory stop.
CONCLUSION
{21} 	We affirm.
{22} 	IT IS SO ORDERED.
_______________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
TIMOTHY L. GARCIA, Judge
RODERICK T. KENNEDY, Judge (specially concurring).

16
KENNEDY, Judge, (specially concurring).
{23} 	It is impossible to ascertain whether, after a month and a half, the agents tired
of their investigative methods and just decided to return to an “established drug
house” to arrest someone. In my view, the facts here establish legitimate reasonable
suspicion by barely a nose. Only upon a re-reading of this Opinion did a single fact
convince me to concur. Self-reference and subjective hunch-confirming seems to
abound without much hard evidence. The district court acknowledged that the agents
saw no drugs at any point in their investigations on the day of Defendant’s arrest
leading up to the stop of the SUV and acknowledged that “none of the indicators
shown here, on their own, taken individually, would provide reasonable suspicion.”
{24} 	Knowing the deferential standard of review, however, I must reluctantly concur.
I write to emphasize the objective standard we must apply and recall the law that
“[q]uestions of reasonable suspicion are reviewed de novo by looking at the totality
of the circumstances to determine whether the detention was justified.” Robbs, 2006-
NMCA-061, ¶ 9. Hindsight, whether investigative or judicial, creates a terrific bias for
confirmation of bad evidence. The agents seem not to have once corroborated these
“suspects’ ” stories with hard evidence, yet paint a barely sufficient picture for this
appeal to sustain their actions. I question the quality of the evidence, even while I vote
to affirm its sufficiency in this case.

17
{25} 	Our courts have routinely rejected adopting rules equating innocent conduct
with reasonable suspicion, absent articulable suspicion of criminal activity. Neal,
2007-NMSC-043, ¶¶ 28-29; see also Leyva, 2011-NMSC-009, ¶ 24 (“ ‘Whether you
stand still or move, drive above, below, or at the speed limit, you will be described by
the police as acting suspiciously should they wish to stop or arrest you. Such
subjective, promiscuous appeals to an ineffable intuition should not be credited.’ ”
(quoting United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005))). Law
enforcement officers are permitted to “draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that might well elude an untrained person. However, this does not
mean that unsupported intuition and inarticulate hunches are sufficient to constitute
reasonable suspicion justifying a detention.” Neal, 2007-NMSC-043, ¶ 21 (alteration,
omission, internal quotation marks, and citations omitted). The purpose for this
objectivity “is to prevent officers from arbitrarily acting on whims or unsupported
hunches[.]” State v. Alderete, 2011-NMCA-055, ¶ 11, 149 N.M. 799, 255 P.3d 377.
{26} 	There is no legal standard for where the “suspects” with whom the agents
associated during this three-buy investigation fall on the contiuum of sources of
information between anonymous tipsters, confidential informants, and identified
sources. They certainly have no obligation to be honest; they were all actively
committing criminal acts with the agents asking them to do so. None of them ever

6This would be what’s known as a “controlled buy”: “[T]he informant entered
the residence with some money and no drugs and came out of the residence a few
minutes later with drugs and no money. The informant stated that he had purchased
the packet of suspected heroin from [the d]efendant . . . . The informant then turned
over the packet of suspected heroin to the police. The informant saw or perceived the
facts asserted.” Lujan, 1998-NMCA-032, ¶ 12.
18
allowed the agents near one of the “buys,” saying in each instance that the individuals
at those locations did not like strangers. This is a great opportunity for misdirection
and the suspects’ control of the circumstances. Mendenhall was arrested for other
crimes in the course of the investigation. Hall and Malchete were also not confidential
informants, because they, too, were “suspects,” who on July 23, necessitated the
agents staying together for “safety” when Hall went to make the buy at the “white
trailer.” Neither the term “suspect,” nor the concern for officer safety bespeak any
level of trust for these collaborators.
{27} 	In this case there are the three relevant events preceding the August 23 stop of
the SUV: the Mendenhall buy at Space 104 on July 3, the July 23 “buy” that may or
may not have occurred where Hall said it did, and seeing the SUV on Merriweather
on August 10. In the first, Mendenhall went in, came out, and turned over drugs.
Because the agents were acting as co-criminals with Mendenhall, who was not
controlled by them or working off charges, they could not ascertain if he had drugs
on his person before he went in, or still had their money when he came out.6 Nothing
appears in the record as to who occupied the trailer at Space 104, whether they had

19
criminal records, or were innocent diversions for Mendenhall. E.g., State v. Barker,
1992-NMCA-117, ¶ 2, 114 N.M. 589, 844 P.2d 839 (describing an informant’s
detailed contacts within a drug house). Regarding the SUV, as mentioned later, no
facts establish its association with anyone dealing drugs at the Merriweather address
on August 10. At the Merriweather buy, the “suspect” already had heroin with him,
just “not enough” to satisfy the agents’ request—without a controlled buy, it would
be beyond the agents’ capability to demonstrate how much heroin later turned over
to the agents even came from the house. All of these buys rest only on the say-so of
the “suspects” themselves, and the tunnel vision of the agents. Our deference may be
little more than a gloss; the agents were quite unclear in their testimony about whether
they recognized the SUV before or after the August 23 stop. However, the majority
is correct that minute deconstruction is not the standard we must apply, and
Defendant’s doing so is unpersuasive in a “totality of the circmustances” deferential
review.
{28} 	In Alderete, an established and reliable confidential informant gave well-
corroborated information constituting “specific, predictive information” that was
confirmed by police observation that drugs were being delivered to a house. A search
warrant for the house had been obtained, and the officers knew it. Alderete, 2011-
NMCA-055, ¶ 18. One vehicle had left the house; another capable of carrying such
boxes as had been delivered left ten minutes thereafter. The combination of facts and

20
corroboration of a reliable informant’s information supported reasonable suspicion to
pull over the car. Id. ¶ 20. A confidential informant is someone who is known to the
police, has assisted them with investigations, and whose information led to the seizure
of controlled substances and many controlled substances related arrests. Cf. State v.
Whitley, 1999-NMCA-155, ¶ 2, 128 N.M. 403, 993 P.2d 117. In this case, there are
no reliable informants, no corroboration, and only one observed prior contact with
Space 104 that was similar to the July 3 stop the agents made.
{29} 	The “suspects” did not testify here in support of the State to support the
conclusions the agents made with actual facts from the buys. All the places from
which the “suspects” bought drugs did not like new people, such as the agents,
showing up. This trope kept the agents from the possibility of gathering corroborating
evidence. The agents, because they were dealing with active criminal suspects and not
an informant under their control, did not control the “buys” their compatriots made in
their service that might have reduced what I regard as the uncertainty and risk of
falsehood about the information provided by an informant. State v. Steinzig, 1999-
NMCA-017, ¶¶ 23-24, 127 N.M. 752, 987 P.2d 409. I regard the “suspects” as less
reliable than anonymous tipsters, whose information we have previously regarded as
“generally less reliable than tips from known informants and can form the basis for
reasonable suspicion only if accompanied by specific indicia of reliability, for
example the correct forecast of a subject’s not easily predicted movements.” State v.

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Urioste, 2002-NMSC-023, ¶ 12, 132 N.M. 592, 52 P.3d 964 (internal quotation marks
and citation omitted).
{30} 	The sole operative question is whether the stop of the SUV was justified at its
inception. I am troubled with the agents’ testimony that they had determined even
before the SUV showed up that they would detain anyone involved in “suspicious
activity” at Space 104 and had a patrol car already waiting for that purpose.
{31} 	This case resembles Alderete in that the car in that case was stopped based on
reasonable suspicion from the investigation, and not a traffic stop. The SUV showed
up for a brief time, disgorged some passengers who had some contact with Space 104,
returned to the car, and left. Since it is unclear whether the SUV was recognized at the
time of the stop, the facts indicate that this stop occurred solely because of the agents’
surveillance of Space 104 and their admitted predilection to stop any car that they
thought was acting suspiciously. However, it fit the classic short-time turnaround of
a typical drug transaction, and the totality of the circumstances as found by the district
court gets the deferential nod.
{32} 	Neal is just a whisker on the other side of the line from this case. In Neal, an
officer lacked reasonable suspicion to detain an individual in order to search for drugs
where the officer observed the defendant, who had prior drug-related convictions, stop
briefly in front of a house and speak to a known felon who resided at the house and
was under investigation for drug trafficking. 2007-NMSC-043, ¶ 28. The officer had

22
no specific information that criminal activity had occurred. Id. Our Supreme Court
held that the defendant’s suspicious behavior, presence at a known drug house, and
prior involvement in drug-related activity were not sufficient to constitute reasonable
suspicion to detain the defendant beyond the valid traffic stop. Id. ¶ 23. The Court
reasoned that “[the d]efendant’s mere association with a convicted felon . . . who was
under surveillance in an ongoing drug investigation[] was insufficient to create
reasonable suspicion.” Id. ¶ 30. The Court explained that the totality of the facts
presented did not “constitute the type of individualized, specific, articulable
circumstances necessary to create reasonable suspicion that [the d]efendant . . . was
involved in criminal activity,” id. ¶ 31, and instead characterized the circumstances
as “the type of conjecture and hunch we have rejected in the past as insufficient to
constitute reasonable suspicion.” Id.
{33} 	In State v. Ochoa, an officer surveilling a house for drug trafficking observed
an unknown vehicle at the house, at the officer’s request, another officer stopped the
vehicle in order to identify and question the driver. 2009-NMCA-002, ¶ 2, 146 N.M.
32, 206 P.3d 143. We held that the officer, based on these facts, “lacked a
constitutionally reasonable suspicion that [the d]efendant was involved in drug
activity” to justify the stop. Id. ¶ 45. We concluded that the stop was pretextual
because the officer lacked reasonable suspicion to support the underlying basis for the
stop—investigation of drug activity. Id. ¶ 46. Here, I recall the agents’ intention to

23
stop any suspicious vehicle that stopped at Space 104. Only they were defining
“suspicious” at that point.
{34} 	I regard the reasoning we used in State v. Prince, 2004-NMCA-127, 136 N.M.
521, 101 P.3d 332, worthy of repeating, as we held there that the combination of being
under investigation for drug involvement and a tip tying the defendant’s movements
to drug activity were insufficient to constitute reasonable suspicion to detain the
vehicle beyond a valid traffic stop.
Guilt by association and generalized suspicions are insufficient grounds
upon which to base an investigatory detention. In the absence of specific
and particularized incriminating information about the criminal activity
that the defendant is or is about to [be] engage[d] in, generalized
suspicions and mere corroboration of innocent activity, even if it is not
readily 	available 	to 	the 	general 	public, 	is 	insufficient 	to 	create
reasonable suspicion for an investigatory detention.
Id. 	¶ 	17 	(emphasis 	added). 	However, 	because 	I 	believe 	the 	totality 	of 	the
circumstances in this case barely supports our conclusion, I can join the majority in
applying the standard of review in this case. I therefore concur.
_______________________________
RODERICK T. KENNEDY, Judge