March 23, 2010 – State of New Mexico v. Jose Manuel Martinez, No. 28,538

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: March 23, 2010

NO. 28,538

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

JOSE MANUEL MARTINEZ,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Stephen Bridgforth, District Judge

Gary K. King, Attomey General

Farhan Khan, Assistant Attomey General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	After the denial of his suppression motion, Defendant Jose Manuel (Melo)
Martinez entered a conditional guilty plea to charges of trafficking a controlled
substance 	(by 	possession 	with 	intent 	to 	distribute) 	and 	possession 	of 	drug
paraphernalia. This case requires us to determine the reasonableness of expanding
Defendant’s detention initiated by an investigation into an aggravated battery,
followed by the smell of burnt marijuana in a residence that Defendant was visiting,
and ending in a search of Defendant’s vehicle for narcotics. We affirm.
BACKGROUND
{2} 	On November 16, 2006, Officers Baker and Lujan of the Las Cruces Police
Department began investigating an aggravated battery that occurred several days
earlier. The victim of that aggravated battery suffered extensive injuries to the back
of his head and face and was in a coma when transported to the hospital. The victim
informed the officers that the perpetrators were Defendant and Arredondo, that the
incident occurred at 600 South San Pedro, and that Defendant drove a red Isuzu.
Officer Baker remembered seeing a red Isuzu parked at that address as the officers
were going to talk to the victim.
{3} 	The officers interviewed the neighbors at 325 San Pedro who informed them

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that Arredondo had gone by their residence with a hand gun a few days earlier. The
officers went to 600 South San Pedro to continue the investigation, and the red Isuzu
was still parked outside. When the officers arrived there at around 1:22 p.m., a man
with the word “Melo” tattooed on his neck answered the door, and Officer Baker
noticed the odor of burnt marijuana emanating from the residence. The strong odor
of marijuana alerted the officers to the presence of narcotics. The officers asked the
occupants of the residence to step outside.
{4} 	Because of what the neighbors had said about Arredondo carrying a handgun
and to ensure their own safety, the officers asked the occupants if they had any
weapons and patted them down. The officers then asked the occupants to sit down on
a sidewalk in front of the residence and, with the consent of a person who lived at the
residence, the officers conducted a protective sweep to check for anyone hiding inside.
The officers did not see any drugs in plain view while inside.
{5} 	During the suppression hearing, Officer Baker explained that the officers
collected everyone’s information to run wants and warrants checks to find out who
lived at that residence. Defendant told the officers that he did not live there. Officer
Baker also testified that she was trying to identify Defendant and find out if he drove
the red Isuzu to “put the pieces together of the information [she] received.” 	She
inquired as to which of the vehicles parked outside belonged to whom and Defendant

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indicated that he owned the red Isuzu.
{6} 	The officer asked Defendant if there were any drugs or weapons in the vehicle
and he indicated that there was a pry bar in his vehicle. The officers did not know if
“that was possibly the weapon that was used to hit [the] victim” of the aggravated
battery that they were investigating, so they asked Defendant if they could retrieve the
pry bar from his vehicle. Defendant declined but offered to retrieve the pry bar for the
officers himself. For safety reasons, the officers did not let Defendant retrieve the pry
bar.
{7} 	Officer Baker testified on direct examination that before going to 600 San
Pedro, she had “received some information that [Defendant] was dealing narcotics in
the neighborhood.” Part of Officer Baker’s testimony in the audiotape recording of
the suppression hearing is dubbed over with an unrelated proceeding. It is not clear
whether Officer Baker identified with more specificity the source of the information
related to Defendant’s alleged drug dealings. 	The recording of Officer Baker’s
testimony resumes during her cross-examination where she testified that the
information they received about Arredondo carrying a handgun a few days before
their investigation was from the neighbors at 325 San Pedro who they had spoken to
earlier. The testimony was as follows:
Q 	And that information – so you received information from someone
else?

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A 	Right. We had received information that day from the neighbors
at 325 San Pedro about Mr. Arredondo.
Q	Q 	That was just about Mr. Arredondo and [Defendant’s] past
activities; is that right?
A 	No, the information that we had received that day about Mr.
Arredondo was that he had gone . . . by the victim’s residence and by the
residence down the street at 325 San Pedro with a hand gun, but they
didn’t want to press charges.
Q 	It was several days previous, right?
A 	Yes.
Q 	Okay. And this information about [Defendant] or whoever dealing
drugs, that wasn’t about anything that was happening at that time, right?
A 	At the time [inaudible] --
Q 	At the time you investigated this at 600 San Pedro?
A 	It was just that he dealt drugs in general. That was the information
we received.
{8} 	At approximately 2:05 p.m., Officer Baker called a canine unit to come to the
location because she “had received information that [Defendant] was dealing
narcotics; but the main reason was for the weapon that was possibly in the vehicle.”
Before the canine unit arrived, Officer Baker walked around Defendant’s car and
noted the dark tint on the car’s windows.
{9} 	At approximately 2:20 p.m., Narcotics Officer Paul Brock arrived with the dog
in response to Officer Baker’s request for a narcotics canine inspection of the vehicle.

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Officer Brock learned from Defendant that the car belonged to Defendant, but was
registered in Defendant’s mother’s name, and that there might be some loose
marijuana on the floor board area of the vehicle. 	Upon approaching Defendant’s
vehicle, Officer Brock noticed the odor of marijuana emanating from inside.
{10} 	The canine sniff took place at approximately 2:24 p.m. 	Because the canine
alerted, indicating that the car contained narcotics, Officer Brock obtained a search
warrant for Defendant’s car and from a search based on the warrant, found two bags
containing cocaine, a digital scale, and rolling papers.
{11} 	A grand jury indicted Defendant on one count of trafficking a controlled
substance (by possession with intent to distribute) contrary to NMSA 1978, Section
30-31-20(A)(3) (2006), and one count of possession of drug paraphernalia contrary
to NMSA 1978, Section 30-31-25.1(A) (2001). 	Defendant was not charged with
aggravated battery. Although there is no copy of the motion in the record, Defendant
filed a motion to suppress the evidence obtained from the vehicle search arguing that
the seizure was illegal. Following a suppression hearing on June 21, 2007, the district
court issued a letter ruling denying Defendant’s motion to suppress. The letter stated
in relevant part:
This is a unique case with two different types of information
leading up to the detention of Defendant for a sniffer dog and a search
warrant. First, is the suspicion of criminal activity of Defendant being
involved in the aggravated battery. . . . Second, is the suspicion of

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criminal activity of Defendant selling/possessing drugs in that a witness
told the [o]fficer that [Defendant] sold drugs routinely, that upon
approaching 	the 	house 	the 	officer(s) 	smelled 	burnt 	[m]arijuana
emanating from within, that [Defendant] upon exiting declined to let the
officer(s) enter his car for the sole purpose of retrieving a pry[]bar in it.
Considering both lines of information, the [c]ourt feels there was
enough constituting suspicion of criminal activity to send for the dog and
to apply for the search warrant.
The court thereafter entered an order attaching the court’s letter as an exhibit and
denied Defendant’s motion to suppress. Defendant entered a guilty plea to the charges
reserving the right to appeal the denial of his motion to suppress. 	This appeal
followed.
Standard of Review
{12} 	“The standard of review for suppression rulings is whether the law was
correctly applied to the facts, viewing them in a manner most favorable to the
prevailing party.” 	State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d
856 	(internal 	quotation 	marks 	and 	citation 	omitted). 	“We 	review 	factual
determinations by the trial 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 quotation marks and citation omitted). This Court must defer to the
district court with respect to findings of historical fact as long as they are supported
by substantial evidence. Jason L., 2000-NMSC-018, ¶ 10.

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DISCUSSION
Preliminary Observation on Incomplete Record
{13} 	We note that the audiotape recording of the suppression hearing is missing what
would appear to be a critical portion of Officer Baker’s testimony, which raises
concerns about effective review in this case. This is a problem in criminal cases that
occurs from time to time because of deficient recording of proceedings either from
faulty equipment or faulty use of the equipment. 	It behooves the parties and the
district court to assure that the equipment is functioning and used properly. Further,
on appeal, the parties should attempt to agree on the content of any portion of the
proceedings that ends up being inaudible. Under the circumstances here, we indulge
in every presumption in favor of the correctness of the district court’s decision. See
State ex rel. Alfred v. Anderson, 87 N.M. 106, 107, 529 P.2d 1227, 1228 (1974)
(“Upon a doubtful or deficient record[,] we indulge every presumption in support of
the correctness and regularity of the decision of the trial court.”). 	Nevertheless,
because the State has not attempted to resurrect the inaudible testimony in question,
we will assume that Officer Baker did not testify more specifically regarding the
reliability of the informant’s information.
The Parties’ Positions
{14} 	Defendant 	contends 	that 	his 	detention 	awaiting 	a 	canine 	was 	without

1 	Defendant does not develop any argument pursuant to State v. Gomez,
1997-NMSC-006, ¶¶ 22, 33-40, 122 N.M. 777, 932 P.2d 1, showing that the New
Mexico 	Constitution 	affords 	him 	greater 	protection 	than 	the 	United 	States
Constitution. We therefore limit our analysis to the United States Constitution.
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individualized, articulable, reasonable suspicion that he was engaged in criminal
activity relating to drugs in the vehicle, resulting in an illegal seizure and search in
violation of the Forth Amendment of the United States Constitution and article II,
section 10 of the New Mexico Constitution.1 Defendant argues that because Officer
Baker failed to provide any evidence of the reliability of the informant, which
amounted to an anonymous tip, his detention to await the canine unit was illegal
because the officers did not have reasonable suspicion that he had drugs in the vehicle.
Defendant also argues that because the officers lacked any information as to whether
a pry bar was used in the battery, the officers could not detain him on that ground.
Finally, Defendant argues that the district court improperly relied on his denial of
consent to search his vehicle in its reasonable suspicion analysis.
{15} 	The State responds that Defendant’s first argument, that the officer acted on
unreliable information obtained from an anonymous source, was not preserved. The
State further argues that even if this argument was preserved, when focusing on the
totality of circumstances, the officer formed an individualized, reasonable suspicion
because the evolving circumstances allowed her to form reasonable suspicion to
believe that drugs were in Defendant’s car.

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Issue of Preservation
{16} 	In order to preserve an issue for appeal, a party must make a timely objection
that specifically apprises the district court of the nature of the claimed error and
invokes an intelligent ruling thereon. 	State v. Varela, 1999-NMSC-045, ¶ 25, 128
N.M. 454, 993 P.2d 1280. On appeal, the reviewing court will not consider issues not
raised in the lower court unless the issues involve matters of jurisdictional or
fundamental error. See Rule 12-216(B) NMRA; In re Aaron L., 2000-NMCA-024,
¶ 10, 128 N.M. 641, 996 P.2d 431.
{17} 	At the suppression hearing, defense counsel argued that Defendant was seized
when he was asked to sit outside the apartment and that the officers lacked reasonable
suspicion to detain Defendant because, under Terry v. Ohio, 392 U.S. 1, 30 (1968),
the officers needed to base their actions on a reasonable belief that criminal activity
was afoot. 	Defense counsel never challenged the reliability of the source of the
information upon which the officers acted. Defendant’s attorney even acknowledged
that this information had been made available to the officers when he stated without
objection that “the information the officers had received was that [Defendant] might
have been connected to some sort of violence or something that occurred several days
before, and additionally there was some information he might be a drug dealer.”
Rather than attacking the reliability of the information the officers received, defense

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counsel challenged the expansion of Defendant’s investigatory detention from the
investigation of aggravated battery into a narcotics search of the red Isuzu, arguing
that the general reputation as a drug dealer does not suffice for a finding of reasonable
suspicion and that the odor of marijuana in the house did not attach to Defendant’s
vehicle. Accordingly, we hold that Defendant failed to preserve his argument relating
to the reliability of the informant’s information.
Reasonableness of the Officer’s Suspicion
{18} 	Police officers may stop a person for investigative purposes if, considering the
totality of the circumstances, the officers have a reasonable and objective basis for
suspecting that the person is engaged in criminal activity. State v. Werner, 117 N.M.
315, 317, 871 P.2d 971, 973 (1994); see State v. Vandenberg, 2003-NMSC-030, ¶ 21,
134 N.M. 566, 81 P.3d 19 (noting that reasonable suspicion “arises if the officer can
point to specific articulable facts . . . that, when judged objectively, would lead a
reasonable person to believe criminal activity occurred or was occurring” and that
“[u]nsupported intuition and inarticulate hunches are not sufficient” (omission in
original) 	(internal 	quotation 	marks 	and 	citations 	omitted)); 	State 	v. 	Robbs,
2006-NMCA-061, ¶ 12, 139 N.M. 569, 136 P.3d 570 (noting that “[t]he officer’s
suspicion must rest on specific, articulable facts, which, taken together with rational
inferences from those facts, reasonably warrant [the] intrusion” (internal quotation

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marks and citation omitted)). While lawful at the beginning, an officer’s continued
detention of an individual can turn into an unlawful one if the officer unjustifiably
expands the scope of the detention. See State v. Duran, 2005-NMSC-034, ¶ 35, 138
N.M. 414, 120 P.3d 836 (“The length of the detention should be reasonably limited
to the time it takes to complete the underlying justification for the stop.”). “Continued
or contemporaneous detention for purposes related to other unlawful activity requires
reasonable suspicion, proven through specific articulable facts, that the motorist has
been or is engaged in criminal activity.” State v. Lowe, 2004-NMCA-054, ¶ 12, 135
N.M. 520, 90 P.3d 539.
{19} 	This case presents us with the question whether a lawful detention of Defendant
in relation to an investigation of an aggravated battery could lawfully be expanded to
await a canine investigation of Defendant’s car for narcotics. The expanded detention
was based on information received by the officers that indicated only generally that
Defendant was dealing drugs in the neighborhood, on the marijuana smell emanating
from the residence Defendant was visiting, and because Defendant did not consent to
the officers’ retrieval of a pry bar from his vehicle, although he offered to retrieve it
for the officers. To have had reasonable suspicion to support the expanded detention,
the officers had to articulate specific and particularized facts that led them to
reasonably believe that Defendant had drugs in the vehicle. 	See Vandenberg,

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2003-NMSC-030, ¶ 21 (noting that “[u]nsupported intuition and inarticulate hunches
are not sufficient” (internal quotation marks and citation omitted)).
{20} 	In considering the totality of the circumstances giving rise to reasonable
suspicion, we examine the evolving circumstances facing an officer and consider
whether the officer’s subsequent actions “were fairly responsive to the emerging
tableau—the circumstances originally warranting the stop, informed by what occurred,
and what the officer learned, as the stop progressed.” 	State v. Funderburg, 2008-
NMSC-026, ¶¶ 16, 27, 144 N.M. 37, 183 P.3d 922 (internal quotation marks and
citation omitted). 	An officer may expand the scope of an investigatory stop if the
officer has reasonable suspicion that other criminal activity is taking or has taken
place. See State v. Romero, 2002-NMCA-064, ¶ 10, 132 N.M. 364, 48 P.3d 102 (“If
evidence of another crime surfaces during a routine investigatory stop, the officer may
proceed in a reasonable manner to investigate.”); State v. Williamson, 2000-NMCA-
068, ¶ 8, 129 N.M. 387, 9 P.3d 70 (noting that an officer may expand the investigation
beyond the initial circumstances if the officer has reasonable and articulable suspicion
that other criminal activity has been or may be afoot).
{21} 	Here the information from the victim regarding Defendant as perpetrator of the
aggravated battery, together with Defendant’s name, the specific location of the
battery, and the description of Defendant’s vehicle justified the officers’ inquiry as to

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whether the red Isuzu belonged to Defendant to confirm Defendant’s identity.
Furthermore, the information the officers received about Arredondo as one of the
perpetrators, the report to the officers that Arredondo had been seen with a handgun,
along with the nature of the battery, and Arredondo’s presence in the residence
justified also asking Defendant if he had any weapons on him and the protective
patdown of Defendant. The officers asked Defendant if he had any weapons or drugs
in his vehicle. Defendant does not argue that any of the questioning was improper or
unjustified.
{22} 	Defendant does argue, however, that his denial of consent for the officers to
retrieve the pry bar amounted to a denial of permission to search his vehicle and that
the district court improperly relied on this denial of consent to search the vehicle in
its reasonable suspicion analysis. 	See Vandenberg, 2003-NMSC-030, ¶ 46 (stating
that denial of consent to search a vehicle “is not a probative fact of guilt, suspicion,
or dangerousness”). However, the district court found that Defendant “declined to let
the officer(s) enter his car for the sole purpose of retrieving a pry[]bar,” not that
Defendant denied a request for a general exploratory search of his vehicle. Denying
consent to search a vehicle in general is different than denying the officers permission
to retrieve an object of interest in a police investigation of which Defendant admitted
possession. The officers’ request, if it was for a search at all, was of a very limited

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scope and would not have given the officers carte blanche to go through Defendant’s
entire vehicle. 	See State v. Flores, 1996-NMCA-059, ¶¶ 22-23, 122 N.M. 84, 920
P.2d 1038 (“When the police have stated that a search is for a particular purpose, they
may not expand that search to a general exploratory search.” (internal quotation marks
and citation omitted)); see also State v. Celusniak, 2004-NMCA-070, ¶¶ 3, 24, 135
N.M. 728, 93 P.3d 10 (concluding that a police officer’s search of a passenger’s purse
found “crammed” under the driver’s seat exceeded the scope of the driver’s consent
to search). “The scope of a search is limited by the actual consent given.” 	State v.
Gallegos, 2003-NMCA-079, ¶ 22, 133 N.M. 838, 70 P.3d 1277. Had Defendant given
his consent for the retrieval of the pry bar, the officers would have been bound to the
scope of the request.
{23} 	Although each circumstance encountered by the officers in this case might not
have been sufficient to give rise to reasonable suspicion if considered independently,
viewing 	them 	as 	a 	whole 	yields 	a 	different 	result. 	See 	State 	v. 	Sewell,
2009-NMSC-033, ¶ 13, 146 N.M. 428, 211 P.3d 885 (stating that “police officers may
stop a person for investigative purposes where, considering the totality of the
circumstances, the officers have a reasonable and objective basis for suspecting that
particular person is engaged in criminal activity” and that the officers may stop the
suspect “briefly to verify or quell that suspicion” (internal quotation marks and

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citation omitted)). Here, the officers’ reasonable suspicion that Defendant was hiding
drugs in his vehicle arose because he was known to distribute drugs, when he was
contacted Defendant was in a residence where the officers smelled the odor of burnt
marijuana, and although he was willing to retrieve the pry bar for the officers,
Defendant would not allow the officers to enter his vehicle for the sole purpose of
retrieving it.
{24} 	Key to the district court’s ultimate conclusion was Defendant’s attitude
regarding the retrieval of the pry bar from his vehicle. Defendant denied possession
of drugs but admitted having a pry bar in his vehicle. When Defendant would not
allow an officer to retrieve the pry bar from his vehicle but indicated that he would
retrieve it for them, the officers could reasonably have concluded that Defendant did
not have a concern about turning the pry bar over to the officers. It would not have
been unreasonable for the officers to then suspect that Defendant’s issue was not that
of turning the pry bar over but instead Defendant was concerned that the officers
would discover drugs in Defendant’s vehicle while retrieving the pry bar. Defendant
subsequently admitted to the canine unit officer that “there might be a small amount
of loose marijuana on the floor board area” and, although no marijuana was ultimately
found in the vehicle, Officer Brock testified that the car smelled like marijuana.
Offering to retrieve the pry bar for the officers instead of allowing an officer to enter

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the vehicle to retrieve it, under the circumstances known to the officers, would be an
indication that Defendant was possibly hiding drugs in his vehicle, since he was
known to deal drugs and was in the presence of marijuana when the officers made
initial contact with him.
{25} 	We conclude that a fifteen- to twenty-minute detention awaiting a canine sniff
of the vehicle under these circumstances was not unreasonable. 	See Robbs, 2006-
NMCA-061, ¶¶ 25, 29 (concluding that a thirty-five to forty-minute detention to await
a canine for sniff was permissible when the officers’ suspicions, originating from a tip
accurately predicting movement of the defendant, were not dispelled after initial
questioning of the defendant).
CONCLUSION
{26} 	We affirm the district court’s denial of Defendant’s suppression motion.
{27} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

CELIA FOY CASTILLO, Judge

LINDA M. VANZI, Judge

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