April 25, 2017- State of New Mexico v. Karen Siqueiros-Valenzuela, No. 35,194

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 25, 2017
NO. 35,194
STATE OF NEW MEXICO,
Plaintiff-A ppellant,
V.
KAREN SIQUEIROS-VALENZUELA,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
Pedro G. Rael, District Judge

Hector H. Balderas, Attomey General
Santa Fe, NM
Steven H. Johnston, Assistant Attomey General

Albuquerque, NM
for Appellant

Ruiz De La Torre Law Firm
Carlos Ruiz dela Torre

Albuquerque, NM

for Appellee

OPINION
GARCIA, Judge.
{1} 	The State of New Mexico appeals from an order of the district court
suppressing evidence discovered following a traffic stop based on a violation of
NMSA 1978, Section 66-7-317(A) (1978) (failure to maintain a lane). We conclude
that the district court was correct in its determination. The traffic stop was not
supported by reasonable suspicion, and the officer who subsequently discovered the
evidence of criminal activity did so only after he stopped Defendant in violation of the
Fourth Amendment to the United States Constitution. Accordingly, we affirm.
BACKGROUND
{2} 	On March 20, 2013, at approximately 7:00 p.m., Officer Joseph Garcia of the
New Mexico State Police was driving eastbound on Interstate 40 near Grants, New
Mexico when he observed the car driven by Defendant make a legal lane change from
the right lane into the left lane of this multi-lane interstate highway. As Defendant
attempted to pass two semi-trucks that were in the right lane, her vehicle’s left tires
touched the yellow shoulder line of the left passing lane. This incident was recorded
on the dash cam video of Officer Garcia’s police vehicle. Once Defendant passed the
semi-trucks, she then made a legal lane change back into the right lane. Other than
Officer Garcia’s observation of Defendant’s movement in relation to the shoulder line,
he “did not observe any other driving violations, erratic driving, or weaving of the
vehicle within its own lane[.]” However, based on his perception that Defendant

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violated Section 66-7-317(A), Officer Garcia pulled Defendant over. Officer Garcia
testified at the suppression hearing that “he regularly pulls over drivers for . . . a single
touching [or crossing] of a lane line.”
{3} 	Although not of particular relevance to the issue on appeal, given the district
court’s suppression solely on the basis of the traffic stop, we provide the following
facts for background. Upon making the traffic stop, Officer Garcia made contact with
Defendant and her passenger, ran a warrant check on both, and spoke with Defendant
for approximately twenty minutes before writing her two citations, one for failure to
maintain a lane and one for driving without a driver’s license. Once the citations were
written and issued, Officer Garcia then asked Defendant if he could ask her a couple
more questions. The renewed questioning went on for an additional fifteen minutes
and included the questioning of the passenger. Sometime during the additional
questioning—approximately twenty-seven minutes after the initial stop—Officer
Garcia noted that Defendant and the passenger gave inconsistent answers to his
questions. Officer Garcia then obtained consent from Defendant and the passenger to
search the vehicle. Ultimately, the search of the vehicle resulted in the discovery of
four bundles of methamphetamine, leading to felony charges against Defendant for
trafficking of controlled substances (methamphetamine) (possession with intent to
distribute) and conspiracy to commit trafficking of methamphetamine.
{4} 	Defendant moved to suppress the evidence, arguing that (1) the initial stop
violated the Fourth Amendment and Article II, Section 10 of the New Mexico
Constitution, and (2) Officer Garcia impermissibly expanded the scope of the traffic

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stop. The district court held a hearing on Defendant’s motion. The only issue
addressed by the district court was whether Officer Garcia had reasonable suspicion
that Defendant violated Section 66-7-317(A). In pertinent part, Section 66-7-317(A)
provides:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic the following rules in addition to all others
consistent herewith shall apply:
A. 	a vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the
driver has first ascertained that such movement can be made with
safety[.]
{5} 	Officer Garcia testified at the hearing that he saw the tires on Defendant’s
vehicle touch the yellow line of the shoulder. However, according to the district court,
Officer Garcia’s dash cam video—admitted into evidence at the hearing without
objection—showed that the tires on Defendant’s vehicle touched, but did not cross,
the yellow line, and only did so once. The district court, based upon its own
observation of the incident via the dash cam video, specifically found that the only
potential violation of Section 66-7-317(A) was the single touching of the shoulder
line. Additionally, although Officer Garcia testified that Defendant’s action “could
have” constituted “some type” of safety risk to herself and her passenger, the district
court found the evidence of a safety concern to be insufficient, especially where the
video evidence showed nothing on the left-hand side of the vehicle, and the vehicle
only touched the shoulder line momentarily.

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{6} 	At the conclusion of the suppression hearing, the district court decided that the
one, brief touching of the left yellow shoulder line, where Defendant was in the
process of passing two semi-trucks on the interstate, did not provide Officer Garcia
with justification to conduct a traffic stop. Specifically, the district court indicated that
Section 66-7-317(A)’s requirement that a driver maintain a single lane “as nearly as
practicable” appears “to allow some slack” and that it is reasonable—and safe—for
a driver to move as far to the left as possible when passing a semi-truck at seventy-
five miles per hour. Consequently, the district court suppressed the evidence
discovered as a result of the stop. This appeal by the State followed.
DISCUSSION
{7} 	On appeal, the State contends that “[t]he district court erred as a matter of law
in determining that the statute governing driving on roadways laned for traffic[,
Section 66-7-317,] permits drivers to cross or touch the lane line once without
violating the statute.” The State also argues that there was reasonable suspicion to
believe that Defendant was driving while impaired.
{8} 	Initially, we are not persuaded by the State’s alternative argument based on
impairment. We note the issue of Defendant’s impairment was not argued by the State
below, either in its response to Defendant’s motion to dismiss or during the
suppression hearing. Officer Garcia specifically testified that he stopped Defendant
based solely on the violation of Section 66-7-317(A), and the district court made a
point of emphasizing that its ruling was based entirely on its determination that under
the factual circumstances presented, there was no a violation of Section 66-7-317(A).

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As a result, we are not convinced that this issue was ever presented to the district court
for a ruling or preserved for appeal. See State v. Varela, 1999-NMSC-045, ¶ 25, 128
N.M. 454, 993 P.2d 1280 (“In order to preserve an error for appeal, 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.” (internal quotation marks and citation omitted)); State v.
Lucero, 1999-NMCA-102, ¶ 45, 127 N.M. 672, 986 P.2d 468 (refusing to address
arguments that were not made in the district court and no assertion of fundamental
error is made on appeal). Therefore, we will only address the question of whether the
district court’s determination that Officer Garcia did not have reasonable suspicion to
stop Defendant for a violation of Section 66-7-317(A) was error.
I. 	Standard of Review
{9} 	In reviewing a district court’s suppression ruling, this Court draws all
reasonable inferences in favor of the ruling and defers to the district court’s findings
of fact as long as they are supported by substantial evidence. See State v. Jason L.,
2000-NMSC-018, ¶¶ 10-11, 129 N.M. 119, 2 P.3d 856. We “review de novo the
district court’s application of the law to those facts.” State v. King, 2013-NMSC-014,
¶ 4, 300 P.3d 732.
{10} 	Statutory construction is a matter of law that is also reviewed de novo. See State
v. Rivera, 2004-NMSC-001, ¶ 9, 134 N.M. 768, 82 P.3d 939. When we construe a
statute, our “guiding principle is that we should determine and effectuate the
Legislature’s intent when it enacted the statute.” State ex rel. Brandenburg v. Sanchez,

6
2014-NMSC-022, ¶ 4, 329 P.3d 654. “In discerning the Legislature’s intent, [the
appellate courts] are aided by classic canons of statutory construction[] and . . . look
first to the plain language of the statute, giving the words their ordinary meaning,
unless the Legislature indicates a different one was intended.” Delfino v. Griffo, 2011-
NMSC-015, ¶ 12, 150 N.M. 97, 257 P.3d 917 ( internal quotation marks and citation
omitted).
II. 	Analysis
{11} 	The stop of a vehicle for the purpose of investigating a traffic violation is an
investigative seizure under the Fourth Amendment and must be justified at its
inception. See State v. Leyva, 2011-NMSC-009, ¶ 10, 149 N.M. 435, 250 P.3d 861.
Justification consists of an officer having reasonable, articulable suspicion that a
particular individual is breaking or has broken the law. See Jason L., 2000-NMSC-
018, ¶ 20 (setting forth the standard for reasonable suspicion); see also State v. Duran,
2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (stating that New Mexico courts
apply a reasonable suspicion analysis for investigatory traffic stops), overruled on
other grounds by Leyva, 2011-NMSC-009. This includes reasonable suspicion that a
traffic law has been violated. State v. Prince, 2004-NMCA-127, ¶ 9, 136 N.M. 521,
101 P.3d 332.
{12} 	To reiterate, Section 66-7-317(A), in relevant part, requires that whenever any
roadway has been divided into two or more clearly marked lanes for traffic, “a vehicle
shall be driven as nearly as practicable entirely within a single lane and shall not be

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moved from such lane until the driver has first ascertained that such movement can
be made with safety[.]”
{13} 	The substance of the State’s argument on appeal is based on the proper
construction of the portion of Section 66-7-317(A) requiring a driver—before moving
from a single lane—to “ascertain[] that such movement can be made with safety.” In
making its argument, the State focuses on two opinions, Archibeque v. Homrich,
1975-NMSC-066, 88 N.M. 527, 543 P.2d 820, and Aragon v. Speelman, 1971-
NMCA-161, 83 N.M. 285, 491 P.2d 173, each interpreting the previous version of
Section 66-7-317, albeit in the context of civil litigation. The State also spends a
portion of its brief in chief analyzing our unpublished opinion, City of Farmington v.
Fordyce, No. 30,638, mem. op. (N.M. Ct. App. Nov. 21, 2011) (non-precedential). At
its heart, the State’s argument is essentially that our appellate courts have improperly
required that a driver create a threat to safety before finding a violation of Section 66-
7-317(A). The State asserts that the appropriate analysis should focus on whether the
driver in fact “ascertained” that his or her movement from the lane can be made with
safety. However, given the evidence, the argument at the suppression hearing, and the
district court’s ultimate decision, any additional ruling based upon what a driver
“ascertained” appears to be a question for another day.
{14} 	Specifically, our review of the suppression hearing reveals that the safety aspect
of this particular case played only an inferential part in the district court’s overall
decision. Instead, it is clear that the dispute in the district court regarding the
constitutionality of the traffic stop addressed the proper construction of the portion of

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the statute requiring that a vehicle be driven “as nearly as practicable . . . within a
single lane.” Section 66-7-317(A).
A. 	“As Nearly as Practicable”
{15} 	Arguing against suppression, the State asserted that this case is a “carbon copy”
of United States v. Bassols, 775 F. Supp. 2d 1293 (D. N.M. 2011), a federal district
court case interpreting Section 66-7-317(A), and urged the district court to find that
the touching of the shoulder line by Defendant justified the traffic stop. In Bassols,
however, the federal district court recognized that “[b]ecause no published New
Mexico court opinion has addressed whether a driver violates Section 66-7-317 by
making contact with the lane boundary line, [it] must make an Erie-guess as to how
the New Mexico [appellate courts] would rule.” 775 F. Supp. 2d at 1300. In the
present case, the district court disagreed with the State’s characterization of the
holding in Bassols—establishing a strict per se violation of the statute whenever a
driver drives on, or touches, a lane line—and concluded that the statute’s “as nearly
as 	practicable” 	language 	“allow[s] 	some 	slack” 	depending 	on 	the 	factual
circumstances. Consequently, after taking into account the factual circumstances of
this case, the district court found that Defendant’s single, momentary touching of the
shoulder line did not constitute a violation of Section 66-7-317(A).
{16} 	The question of what it means to drive a vehicle “as nearly as practicable”
within a single lane is an issue that has not been authoritatively defined by New
Mexico appellate courts. In order to determine the meaning of the phrase, it is
necessary for this Court to engage in a statutory construction analysis of Section 66-7-

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317(A). In doing so, we look first to the plain language used by the Legislature. See
State v. Young, 2004-NMSC-015, ¶ 5, 135 N.M. 458, 90 P.3d 477 (stating that we first
look to the statute’s plain language, which is “the primary indicator of legislative
intent” (internal quotation marks and citation omitted)). “When a term is not defined
in a statute, we must construe it, giving those words their ordinary meaning absent
clear and express legislative intention to the contrary.” State v. Tsosie, 2011-NMCA-
115, ¶ 19, 150 N.M. 754, 266 P.3d 34 (internal quotation marks and citation omitted).
Our courts often use dictionary definitions to ascertain the ordinary meaning of words
that form the basis of statutory interpretation inquiries. See State v. Boyse, 2013-
NMSC-024, ¶ 9, 303 P.3d 830.
{17} 	In determining the ordinary meaning of the phrase “as nearly as practicable,”
we observe that “nearly” is defined as “[a]lmost but not quite[; i]n a close manner.”
The American Heritage Dictionary of the English Language 1177 (5th ed. 2011).
“Practicable” means “[c]apable of being effected, done, or put into practice; feasible.”
Id. at 1383. Thus, expressing the phrase in its ordinary terms, the statute requires a
driver to maintain his or her vehicle in a single lane—as closely as feasible—by
utilizing good judgment and taking into account the safety considerations of a
particular situation.
{18} 	The very nature of this feasibility and safety qualification appears to indicate
a “legislative intent to avoid penalizing brief, momentary, and minor deviations
outside the marked lines.” State v. Livingston, 75 P.3d 1103, 1106 (Ariz. Ct. App.
2003); see id. (interpreting the “ ‘as nearly as practicable’ ” language in Arizona’s

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similar version of Section 66-7-317(A)). To construe the statute otherwise, in the strict
“bright line” manner the State argued to the district court—that a driver always
violates the statute when, absent a legal lane change, he or she fails to maintain the
vehicle inside the single lane lines on a multi-lane road—would render the “as nearly
as practicable” language mere surplusage, which we are generally unwilling to do. See
Rivera, 2004-NMSC-001, ¶ 18 (“We are generally unwilling to construe one provision
of a statute in a manner that would make other provisions null or superfluous.”). We
hold, therefore, that the plain language of Section 66-7-317(A)—including the “as
nearly as practicable” qualification—recognizes and contemplates circumstances
under which a driver may momentarily leave his or her lane of travel without violating
the statute.
{19} 	With this qualification in mind, the question remains how we are to determine
whether a driver has indeed driven as nearly as practicable within a single lane. The
Tenth Circuit, interpreting Utah’s version of Section 66-7-317(A), rejected the
argument that a “single instance of crossing over the fog line can never violate the
statute.” United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2013). Instead, the
Tenth Circuit reiterated its holding in United States v. Gregory, 79 F.3d 973, 1978
(10th Cir. 1996), that the statute’s “ ‘as nearly as practicable’ ” qualification
“require[s] a fact-specific inquiry into the particular circumstances present during the
incident in question to determine whether the driver could reasonably be expected to
maintain a straight course at that time in that vehicle on that roadway.” Alvarado, 430
F.3d at 1309; see United States v. Cline, 349 F.3d 1276, 1287 (10th Cir. 2003) (stating

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that “the particular facts and circumstances of each case determine the result”); United
States v. Ozbirn, 189 F.3d 1194, 1198 (10th Cir. 1999) (construing the Kansas version
of Section 66-7-317(A), and concluding that the “use of the phrase ‘as nearly as
practicable’ in the statute precludes . . . absolute standards, and requires a fact-specific
inquiry”). This totality of the circumstances analysis takes into account whether there
were any weather conditions, road features, or other circumstances that could have
affected or interfered with a driver’s ability to keep his or her vehicle in a single lane.
See Alvarado, 430 F.3d at 1309.
{20} 	Of particular note is the fact that the court in Bassols—after rejecting the
defendant’s argument that touching the lane line, as opposed to crossing the lane line,
cannot ever constitute a violation of Section 66-7-317(A)—went on to apply the
Alvarado totality of the circumstances analysis and concluded that “[i]n the complete
absence of adverse driving conditions, there was not a single objective factor that
might have made it impracticable for [the defendant] to stay entirely within a single
lane.” Bassols, 775 F. Supp. 2d at 1303. Thus, although the defendant’s single
departure from his lane in Bassols was not a per se violation of Section 66-7-317(A),
the federal district court decided that the single touching of the lane line, under the
circumstances presented in that case, was sufficient to give the officer reasonable
suspicion to make the traffic stop. Bassols, 775 F. Supp. 2d at 1303.
{21} 	Here, the State devotes only a handful of sentences in its brief in chief to the “as
nearly as practicable” language. Notably, the State appears to have abandoned its
reliance on Bassols, apparently in recognition that the case does not support the

1We recognize that the specific question raised in Bassols—whether a vehicle
must actually cross the lane line, as opposed to simply touching the lane line, in order
for a driver to be in violation of Section 66-7-317(A)—has not yet been answered by
our appellate courts. However, neither party in the present case squarely raised this
issue below, and all participants, including the district court, appear to have assumed
that touching the lane line is sufficient to support a potential violation of the statute.
We proceed with that assumption in mind, without deciding the issue at this time.
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argument made by the State in the district court that touching the lane line is a strict
per se violation of the statute. 1 However, instead of directly challenging the district
court’s interpretation of Section 66-7-317(A)—which bears a striking resemblance to
the Alvarado totality of the circumstances analysis—or its application to the facts of
this case, the State simply refers to the lack of any “obstruction” that would have
made it impracticable for Defendant to stay in her lane. We do not adopt such a
limited view of the qualification language, and we conclude that a totality of the
circumstances analysis, as utilized by the district court, is the appropriate means to
gauge whether a driver has maintained his or her lane “as nearly as practicable.”
{22} 	Critically, the State does not address whether the totality of the circumstances
of this case, as found and relied upon by the district court—Defendant was traveling
on the interstate at seventy to seventy-five miles per hour, she was passing two semi-
trucks in the left-hand passing lane, common driving experience advises leaving as
much room as possible for safety when passing a semi-truck, and the entirety of the
incident consisted of the vehicle’s single, brief touching of the left-hand yellow
shoulder line while passing the second semi-truck—are sufficient for the fact-finder
to determine that Defendant safely maintained her lane of travel as nearly as

13
practicable. Effectively, the district court determined that Defendant’s slight touching
of the lane line was feasibly and safely executed under the totality of the
circumstances. This factual determination by the district court is also supported by the
statutory directive that a vehicle overtaking another vehicle proceeding in the same
direction shall pass on the left “at a safe distance[.]” NMSA 1978, § 66-7-310(A)
(1978). In the absence of a persuasive argument to the contrary, we agree with the
district court that, under the circumstances, the evidence supports its ruling that
Defendant safely maintained her lane as nearly as practicable.
B. 	Safety Concerns
{23} 	The district court also found that there was insufficient evidence to support a
safety concern on the part of Officer Garcia. As indicated earlier in this opinion, while
this finding generated no argument at the suppression hearing, the State seizes upon
the issue in its brief in chief. One portion of the statute requires that a driver
“ascertain[]” whether movement from a single lane can be done “with safety[.]”
Section 66-7-317(A). The State argues on appeal that Defendant here did not in fact
ascertain whether her single, momentary touching of the shoulder line was indeed
safe. The State claims that the facts also support its argument that Defendant “absently
drifted” onto the shoulder line. According to the State, the failure on Defendant’s part
to ascertain the safety of her movement constituted a violation of the statute,
regardless of the fact that no actual safety issue occurred.
{24} 	We first note that this distinction, between a driver’s “ascertaining” whether a
movement was safe and the factual establishment of a safety concern, was not raised

2Having decided that the traffic stop was invalid under the Fourth Amendment,
we need not address Defendant’s argument under Article II, Section 10 of the New
Mexico Constitution. See State v. Rowell, 2008-NMSC-041, ¶ 12, 144 N.M. 371, 188
P.3d 95 (recognizing that “[b]ecause both the United States and the New Mexico
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or argued by the State below. As a result, it was not specifically addressed by the
district court outside its ruling that the evidence of a safety concern was insufficient.
Additionally, the district court could reasonably infer that Defendant did in fact
ascertain the safety of her movement by driving to the far left side of her lane while
passing the semi-trucks—it provided a safer distance than driving in the middle of her
lane during this passing maneuver. See § 66-7-310(A).
{25} 	Given our determination that sufficient evidence was presented to support the
district court’s determination that Defendant safely maintained her lane as nearly as
practicable, we need not further consider the State’s alternative theories regarding
obstructions or the practicability of passing maneuvers. To do so in the context of this
case would be to speculate and render an advisory opinion. See State v. Ordunez,
2012-NMSC-024, ¶ 22, 283 P.3d 282 (“It is not within the province of an appellate
court to decide abstract, hypothetical or moot questions in cases wherein no actual
relief can be afforded.” (alteration, internal quotation marks, and citation omitted)).
{26} 	In summary, we conclude that under the totality of the circumstances found to
exist by the district court, Defendant’s isolated, momentary touching the left shoulder
line did not give rise to a reasonable suspicion of a violation of Section 66-7-317(A).
Consequently, because the stop here was not predicated on reasonable suspicion, the
traffic stop was invalid.2

Constitutions provide overlapping protections against unreasonable searches and
seizures, we apply our interstitial approach” (citing State v. Gomez, 1997-NMSC-006,
¶¶ 19-23, 122 N.M. 777, 932 P.2d 1)); see also Gomez, 1997-NMSC-006, ¶ 19
(stating that the interstitial approach requires that we consider first “whether the right
being asserted is protected under the federal constitution[,]” and if it is protected,
“then the state constitutional claim is not reached”).
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III. 	Suppression
{27} 	“It is established 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.”
State v. Portillo, 2011-NMCA-079, ¶ 25, 150 N.M. 187, 258 P.3d 466. The State did
not argue in the district court, nor does it argue on appeal, that the evidence was
somehow purged of the taint from the illegal traffic stop. Thus, we cannot say that the
district court erred in suppressing the evidence discovered in Defendant’s vehicle.
CONCLUSION
{28} 	For the foregoing reasons, we conclude that substantial evidence was presented
to support the district court’s determination that the traffic stop of Defendant’s
vehicle, for a violation of Section 66-7-317(A), was invalid. We further conclude that
the evidence discovered as a result of the traffic stop was the fruit of the illegal stop,
and therefore suppression was proper. Accordingly, we affirm the district court.
{29} 	IT IS SO ORDERED.
___________________________
TIMOTHY L. GARCIA, Judge

WE CONCUR:

MICHAEL E. VIGIL, Judge

JULIE J. VARGAS, Judge

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