October 21, 2013 – State v. Joe Peterson, No. 31,919

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ____________
Filing Date: October 21, 2013
NO. 31,919
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOE PETERSON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Thomas J. Hynes, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	In State v. Ochoa, 2009-NMCA-002, ¶¶ 38-40, 146 N.M. 32, 206 P.3d 143, this
Court held that the New Mexico Constitution forbids the police from using an
otherwise valid traffic stop as a pretext for investigating unrelated matters for which
there is no reasonable suspicion or probable cause, unless the circumstances are such
that the police would have conducted the traffic stop regardless of the unrelated
investigation. The question before us is whether Ochoa’s pretext rule applies when,
as here, the stop occurs during a criminal investigation involving no reasonable
suspicion, but the sole reason for the stop was an outstanding arrest warrant. 	We
conclude that Ochoa does not apply under the circumstances in this case.
BACKGROUND
{2} 	Law enforcement officers were investigating Defendant Joe Peterson for
possible drug activity. During their investigation, they discovered that Defendant had
an outstanding misdemeanor warrant and that his driver’s license had been suspended
or revoked. Recognizing him traveling in his car, the officers stopped him in order
to execute the warrant. 	After arresting Defendant, the officers found heroin in his
pocket and crack cocaine in his car.
{3} 	Defendant filed a motion to suppress the evidence obtained as a result of the
arrest on the ground that the officers’ decision to stop him in order to execute the

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arrest warrant was an improper pretextual stop prohibited by the New Mexico
Constitution and Ochoa. At a hearing on the motion, differentiating this case from
Ochoa, the district court disagreed with Defendant’s position that the police could not
arrest a person on a warrant if there was also an ongoing investigation of some
unrelated matter. 	After the district court denied the motion, Defendant entered a
guilty plea, reserving the right to appeal the district court’s ruling.
DISCUSSION
{4} 	Defendant contends that the district court erred in denying his motion to
suppress. “Appellate review of a motion to suppress presents a mixed question of law
and fact.” State v. Ketelson, 2011-NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. Our
standard of review requires us to look “for substantial evidence to support the
[district] court’s factual finding, with deference to the district court’s review of the
testimony and other evidence presented[.]” 	State v. Leyva, 2011-NMSC-009, ¶ 30,
149 N.M. 435, 250 P.3d 861. The district court need not make express findings of
fact, 	State v. Gonzales, 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355, and
when it has not done so, we view the evidence in the light most favorable to the
district court’s decision and “draw all inferences and indulge all presumptions in favor
of the district court’s ruling.” 	State v. Jason L., 2000-NMSC-018, ¶ 11, 129 N.M.
119, 2 P.3d 856. Viewing the facts in this way, “we then review de novo the [district]

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court’s application of law to the facts to determine whether the . . . seizure [was]
reasonable.” Leyva, 2011-NMSC-009, ¶ 30.
{5} 	Article II, Section 10 of the New Mexico Constitution guarantees that “[t]he
people 	shall 	be 	secure 	in 	their 	persons, 	papers, 	homes[,] 	and 	effects, 	from
unreasonable searches and seizures[.]” Under this provision and the analogous Fourth
Amendment to the United States Constitution, the temporary detention of a person
during a traffic stop constitutes a seizure that must comport with constitutional
requirements of reasonableness. See State v. Candelaria, 2011-NMCA-001, ¶ 9, 149
N.M. 125, 245 P.3d 69. Generally, a “seizure is an intrusion that requires a warrant
based upon a demonstration of probable cause[,]” see State v. Patterson, 2006-
NMCA-037, ¶ 14, 139 N.M. 322, 131 P.3d 1286, and “[w]arrantless seizures are
presumed to be unreasonable[,]” subject to certain exceptions. Ochoa, 2009-NMCA-
002, ¶ 20 (internal quotation marks and citation omitted). One of these exceptions is
that traffic stops will generally be found to be constitutionally reasonable if an officer
has at least a reasonable suspicion to believe that the traffic code has been violated.
Id. ¶ 25. 	Here, however, this exception to the warrant requirement is not at issue,
since Defendant was stopped in order to execute a warrant for his arrest that had been
issued previous to the stop. 	He has not argued that the warrant was invalid, and
therefore, the unchallenged warrant rendered the stop constitutionally reasonable. See

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State v. Hamilton, 2012-NMCA-115, ¶ 13, 290 P.3d 271 (stating that “a search
pursuant to a valid search warrant establishes that the search was constitutionally
reasonable”).
{6} 	Defendant 	argues 	that, 	in 	spite 	of 	the 	valid 	warrant, 	the 	stop 	was
unconstitutional because the execution of the warrant was a pretext for conducting the
unrelated drug investigation. In doing so, he seeks to place this case within the rule
set in Ochoa that under Article II, Section 10 of the New Mexico Constitution, even
when there is a reasonable suspicion to believe that the traffic code has been violated,
a stop may nevertheless be constitutionally unreasonable if it is conducted in order to
investigate some unrelated matter. 2009-NMCA-002, ¶¶ 38-40. Ochoa’s rule forbids
the use of an otherwise valid traffic stop as a pretext for investigating unrelated
conduct for which the police do not have reasonable suspicion or probable cause to
detain a suspect, unless the State can prove that the traffic stop would have occurred
regardless of the unrelated investigation. Id. ¶ 40.
{7} 	We are not persuaded that Ochoa applies. Defendant was arrested pursuant to
an outstanding warrant. Ochoa’s pretext rule is an exception to the general rule that
the police may detain a person briefly based on reasonable suspicion that a traffic
violation has occurred. The reasonable suspicion rule in turn is an exception to the
warrant requirement. See id. ¶¶ 16, 25 (characterizing the ability to conduct a brief

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investigatory detention based on a reasonable suspicion of criminal activity as an
exception to the requirement that the police obtain a warrant in order to seize
someone). Ochoa’s exception to the reasonable suspicion exception does not apply
to the case at hand because the officers did not need reasonable suspicion to stop
Defendant when they had a valid outstanding arrest warrant. 	Cf. State v. Ryon,
2005-NMSC-005, ¶ 20, 137 N.M. 174, 108 P.3d 1032 (stating that it is inappropriate
to apply an exception to the reasonable suspicion requirement under circumstances
where a police encounter is justified by a rule that does not require reasonable
suspicion that a crime has been committed).
{8} 	In addition, Ochoa’s reasoning does not support its application to cases in
which the police stop a person in order to execute an arrest warrant. Ochoa defined
a pretextual stop as “a detention supportable by reasonable suspicion or probable
cause to believe that a traffic offense has occurred, but is executed as a pretense to
pursue a ‘hunch,’ a different more serious investigative agenda for which there is no
reasonable suspicion or probable cause.” 2009-NMCA-002, ¶ 25 (emphasis added).
The reason for Ochoa’s conclusion that traffic stops in particular must be examined
for the real motivation of the stopping officer comes from the special nature of the
traffic code. As Ochoa recognized, the traffic code is so extensive and detailed that
“virtually the entire driving population is in violation of some regulation as soon as

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they get in their cars, or shortly thereafter.” 	Id. ¶ 17 (internal quotation marks and
citation omitted). As a consequence, police officers must exercise their discretion in
deciding which violators will be stopped because “it would not be possible to strictly
enforce the multitude of traffic laws.” Id. ¶ 35. Because almost all drivers will violate
the traffic code at some point during even the briefest drive, Ochoa’s concern was that
police officers had essentially unfettered discretion to detain someone whom they
were investigating by simply following the person until a traffic law was violated,
providing the excuse to detain the person, at least briefly, with the hope that during
that brief detention some other evidence of wrongdoing would be found. Ochoa thus
explained that “[g]iven the pervasiveness of . . . minor traffic offenses and the ease
with which law enforcement agents may uncover them in the conduct of virtually
everyone, the requirement of a traffic violation hardly matters, for . . . there exists a
power that places the liberty of every man in the hands of every petty officer[.]” Id.
¶ 17 (alterations, internal quotation marks, and citation omitted). 	Ochoa was
concerned not only with the possibility that officers would use traffic stops to detain
people when an investigation had not yet provided a reasonable suspicion or probable
cause to detain them for the matters under investigation, but that such unbridled
discretion could result in stops based wholly on race or other discriminatory factors.
Id. ¶¶ 16, 18-19.

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{9} 	Defendant contends that because New Mexico courts have expressed general
concerns about pretextual police practices in other contexts, the rationale of Ochoa
should be expanded beyond stops based upon traffic violations. But in contrast to the
broad discretion that officers have in enforcing the traffic code, when the police have
a warrant for a person’s arrest, it is because a neutral magistrate or judge has
determined that there is probable cause to believe that the particular individual named
in the warrant has already committed an offense for which he may be arrested. The
warrant necessarily limits a police officer’s discretion regarding whom to arrest.
Ochoa’s reasoning and policy considerations simply do not apply when officers
execute an arrest warrant—even when they must first stop a vehicle to do so—and
there is no reason to extend Ochoa’s holding to such circumstances.
{10} 	Furthermore, as the district court pointed out, such a rule would inhibit the
police in the execution of valid arrest warrants if the person to be arrested also
happened to be under investigation for some other crime. The police should not be
impeded in the execution of valid arrest warrants, even if, in doing so, they may
harbor some hope of discovering evidence of additional crimes. The problem that
renders some pretextual stops unconstitutional is not that an officer might subjectively
hope to find evidence of a greater offense; the problem arises when an officer would
not have been interested in pursuing the lesser offense absent that hope. See id. ¶¶ 32,

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40 (indicating that even if officers have a subjective motivation for stopping the
person unrelated to the traffic violation, the stop will not be unconstitutional if the
prosecution can demonstrate that the officers would have stopped the person even
without the unrelated motivation). An officer’s subjective hope alone cannot alter the
necessity and propriety of executing a valid warrant.
{11} 	It is true that, here, in addition to the warrant, the police also had reasonable
suspicion to believe that Defendant was driving with a suspended or revoked license,
which is a violation of the traffic code. 	See NMSA 1978, § 66-5-39(A) (1993,
amended 2013) (making it a misdemeanor for a person to drive when he knows or
should know that his license has been suspended or revoked). 	This fact does not
affect our analysis for two reasons: first, the district court made an express finding
that the reason for the stop was the warrant, and Defendant has not challenged that
finding on appeal; and second, even if the officers stopped Defendant based on both
the warrant and the fact that he was driving with a suspended or revoked license, as
we discussed earlier, the warrant provides a basis for the detention that limits the
officers’ discretion and therefore eliminates the concerns that Ochoa is intended to
remedy.

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CONCLUSION
{12} 	Because a warrant existed for Defendant’s arrest, the officers’ stop of
Defendant’s vehicle was not pretextual and did not violate the New Mexico
Constitution. The district court did not err in denying Defendant’s motion to suppress.
Accordingly, we affirm.
{13} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
RODERICK T. KENNEDY, Chief Judge
_________________________________
MICHAEL E. VIGIL, Judge