May 19, 2016 – State of New Mexico v. Tommy Simpson, No. 34,488

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 19, 2016

NO. 34,488

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

TOMMY SIMPSON,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
William C. Birdsall, District Judge

Hector H. Balderas, Attomey General

Laura E. Horton, Assistant Attomey General
Santa Fe, NM

for Appellee

Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	In this driving while intoxicated (DWI) case, Defendant Tommy Simpson
appeals from the denial of his motion to suppress. We understand Defendant’s
argument to be that the district court erred in denying his motion to suppress because
the arresting officer violated his constitutional rights by detaining and seizing him
without reasonable suspicion and by opening the door to the car he occupied without
first obtaining a warrant. We affirm.
BACKGROUND
{2} 	Defendant was charged with a single felony count of aggravated DWI (0.16 or
above). NMSA 1978, § 66-8-102(D)(1) (2010). He subsequently filed a motion to
suppress, claiming that evidence was obtained in violation of the Fourth Amendment
to the United States Constitution and Article II, Section 10 of the New Mexico
Constitution. The district court denied the motion after a hearing, and Defendant
entered a conditional plea of guilty to felony DWI, reserving the right to appeal the
denial of his motion. Farmington Police Department Officer Jonathan Jensen, who
arrested Defendant, was the sole witness at the hearing. The following facts derive
from his testimony.
{3} 	Officer Jensen was on duty during the late afternoon of March 1, 2014, when
he was dispatched to a Church’s Chicken restaurant on Main Street in Farmington,

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New Mexico. Dispatch told Officer Jensen that a caller had reported a “parked DWI
in the parking lot” and described the subject vehicle as a “dark blue Plymouth” with
a partial New Mexico license plate of “Y820.” Dispatch also told Officer Jensen that
the caller reported the following: a male subject had entered the restaurant, he was
passed out in the bathroom, and he smelled of an alcoholic beverage. The male got up,
left the restaurant, got into the dark blue Plymouth, and moved the car from one
parking space to another a few spots away, almost striking several other vehicles in
the parking lot.
{4} 	Officer Jensen arrived at Church’s Chicken within minutes of receiving the
dispatch call and saw a dark blue vehicle with “very dark tinted windows” backed into
a parking spot. He walked around the car and confirmed that the partial license plate
number given to him by dispatch matched the vehicle’s license plate—“LKY 820.”
Because of the dark tinted windows, Officer Jensen was initially unable to see inside
the car and whether it was occupied. After verifying that this was the correct vehicle,
he walked around to the driver’s side door, where the window was cracked “a couple
of inches,” and saw a female in the passenger seat and a man later identified as
Defendant in the back seat. There was nobody in the driver’s seat, so there was no one
to open the driver’s side window, and because of the dark tinted windows, Officer
Jensen could not see inside the vehicle to determine what the occupants were doing.
Under the circumstances, Officer Jensen felt that the safest way to make contact with

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the occupants was to open the driver’s side door. That way, he could remain outside
of the vehicle but able to see both occupants while he was conducting his
investigation.
{5} 	After he opened the door, Officer Jensen noted a strong odor of alcohol coming
from the car. He observed that the man in the back seat did not appear to be
comfortable and that the driver’s seat was “pretty far back,” suggesting that he had
moved the front seat deliberately in order to slide into the back of the car.
{6} 	After counsel completed direct and cross examination, the district court
reviewed with Officer Jensen the information Jensen had received from dispatch. In
addition, a video of the encounter was admitted into evidence without objection.
Although stating “this seems righteous to me,” the judge said he would look at the
video before issuing a ruling. The district court rejected Defendant’s argument that he
had been subjected to a warrantless search or seizure that was presumed to be
unreasonable and denied Defendant’s motion to suppress the evidence obtained after
Officer Jensen “opened the vehicle door and seized” him. In a letter decision
explaining its order, the court reasoned:
This is not a stop case. The officer approached a stopped vehicle
containing [D]efendant. The vehicle was not blocked. The police unit did
not have siren or lights engaged. The officer knocked on the car window,
waited for a response (to no avail) and peered through the slightly
opened window before opening the door. At the time the officer opened
the door, he had reasonable suspicion to pursue the investigation. Due to
the dark tint on the car windows, it was appropriate for him to open the

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door. At the time he asked [D]efendant to exit the vehicle, he had
probable cause to arrest based on the earlier dispatch, what he observed,
and statements made by [D]efendant.
{7} 	Defendant subsequently entered a conditional plea of guilty to a DWI 5th
offense, a fourth degree felony, Section 66-8-102(D)(1), (H), reserving the right to
appeal the suppression issue and to withdraw his guilty plea, if successful.
STANDARD OF REVIEW
{8} 	On appeal from the denial of a motion to suppress, we determine under de novo
review whether the district court correctly applied the law to the facts, State v. Garcia,
2009-NMSC-046, ¶ 9, 147 N.M. 134, 217 P.3d 1032, viewing the facts “in a manner
most favorable to the prevailing party” and deferring to the district court’s “findings
of historical fact so long as they are supported by substantial evidence.” State v. Jason
L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and
citation omitted). Where there are no findings of fact, we “indulge in all reasonable
presumptions in support of the district court’s ruling.” Id. ¶ 11 (internal quotation
marks and citation omitted). Absent a contrary indication in the record, “we presume
the court believed all uncontradicted evidence.” Id.
{9} 	Although Defendant mentions Article II, Section 10 of the New Mexico
Constitution, he does not explain how that provision affords more protection than the
Fourth Amendment to the United States Constitution in the context of this appeal. We
therefore assume without deciding that both constitutions afford equal protection in

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this context and analyze the constitutionality of the challenged conduct under one
uniform standard. State v. Gomez, 1997-NMSC-006, ¶ 22, 122 N.M. 777, 932 P.2d 1.
DISCUSSION
{10} 	Defendant states the question presented as “whether opening the car door was
a detention of the occupants and/or a search of the vehicle and, if so[,] whether the
officer required a warrant to do either.” He contends that Officer’s Jensen’s conduct
in opening the door “was both a seizure of the occupants and a search of the vehicle”
requiring a warrant or at least “reasonable suspicion to believe that a crime had been
committed.” The State does not disagree that there was an investigatory detention and
seizure but argues that the challenged conduct was supported by a reasonable
suspicion that, minutes before Officer Jensen arrived, Defendant had driven the car
while intoxicated and that no warrant was required “[b]ecause of the exigent
circumstances inherent to the crime of DWI, including both preservation of evidence
and public safety[.]” As in all cases in the search and seizure context, the ultimate
question is whether Officer Jensen’s conduct was objectively reasonable under the
totality of the circumstances confronting him. See State v. Funderberg, 2008-NMSC-
026, ¶ 10, 144 N.M. 37, 183 P.3d 922. Applying the governing standards to the record
before us, viewed in the light most favorable to the State as the prevailing party, we
hold that it was.

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{11} 	A police officer may approach and detain a person to investigate possible
criminal behavior, even if there is no probable cause to make an arrest, “if the officer
is aware of specific articulable facts, together with rational inferences from those facts,
that, when judged objectively, would lead a reasonable person to believe criminal
activity occurred or was occurring.” State v. Lope, 2015-NMCA-011, ¶ 18, 343 P.3d
186 (internal quotation marks and citation omitted), cert. denied, 2014-NMCERT-010,
339 P.3d 425; see Funderberg, 2008-NMSC-026, ¶ 14 (“Reasonable suspicion
develops when the officer becomes aware of specific articulable facts that, judged
objectively, would lead a reasonable person to believe criminal activity occurred or
was occurring.” (internal quotation marks and citation omitted)). Whether an
investigatory detention is justified by reasonable suspicion depends on the totality of
the circumstances, Jason L., 2000-NMSC-018, ¶ 20, including “the content of
information possessed by the police and its degree of reliability.” State v. Contreras,
2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111; see Lope, 2015-NMCA-011, ¶ 18
(stating this standard). “Determinations of reasonable suspicion are reviewed de
novo.” Garcia, 2009-NMSC-046, ¶ 9; see Funderberg, 2008-NMSC-026, ¶ 10 (“To
determine whether the detention was justified, we review the totality of the
circumstances as a matter of law.” (internal quotation marks and citation omitted)).
{12} 	An investigatory detention is a seizure subject to the Fourth Amendment’s
reasonableness requirement. Contreras, 2003-NMCA-129, ¶ 5; see U.S. Const. amend

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IV (stating the right to be secure “against unreasonable searches and seizures”). “
‘Reasonableness . . . depends on a balance between the public interest and the
individual’s right to personal security free from arbitrary interference by law officers.’
” State v. Leyva, 2011-NMSC-009, ¶ 9, 149 N.M. 435, 250 P.3d 861 (quoting
Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam)); see State v.
Paananen, 2015-NMSC-031, ¶ 13, 357 P.3d 958 (“To determine the constitutionality
of a seizure we must balance the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion.” (internal quotation marks and citation omitted)). The
reasonableness of an investigatory detention is determined under an objective
standard: “Would the facts available to the officer warrant the officer, as a person of
reasonable caution, to believe the action taken was appropriate[?]” State v. Cobbs,
1985-NMCA-105, ¶ 13, 103 N.M. 623, 711 P.2d 900 (internal quotation marks and
citation omitted). In determining reasonableness, we “avoid bright-line, per se rules”
and “consider the facts of each case.” State v. Granville, 2006-NMCA-098, ¶ 18, 140
N.M. 345, 142 P.3d 933; see State v. Ochoa, 2009-NMCA-002, ¶ 24, 146 N.M. 32,
206 P.3d 143 (“The myriad rules, exceptions, and exceptions to exceptions that
flourish in the jurisprudence of search and seizure are often no more than factual
manifestations of the constitutional requirement that searches and seizures be
reasonable.” (internal quotation marks and citation omitted)).

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{13} 	Defendant contends that the “report of a ‘parked DWI in the parking lot’ ”
provided “no articulable facts to support a reasonable suspicion that Defendant had
driven or was planning to drive while intoxicated.” The State counters that the
information provided by the caller, which Officer Jensen was sent to investigate, was
not limited to a “parked DWI” but included facts that not only identified the subject
parked car but also indicated that a man who had been found passed out in the
Church’s Chicken bathroom and who smelled of alcohol had driven that car after
getting up and leaving the restaurant, almost hitting several other vehicles in the
process, and that the man was still in the car. We agree with the State that the
information upon which Officer Jensen relied was sufficient to support a reasonable
suspicion of a possible DWI involving the parked car and its occupants, and therefore
the investigatory detention (seizure) of Defendant.
{14} 	When Officer Jensen arrived in the Church’s Chicken parking lot minutes after
receiving the dispatch call, he found a vehicle matching the caller’s description.
Officer Jensen reasonably could infer that the car was the subject of the dispatch, and
reasonably could suspect that the man described by the caller might be in the car and
that he might have engaged in the criminal activity of driving while intoxicated
minutes before. See Cobbs, 1985-NMCA-105, ¶ 15. An investigatory detention and
seizure of the car and its occupants was justified because the information provided by
dispatch and Officer Jensen’s own corroborating observation identifying the subject

9
car would lead a person of reasonable caution to suspect criminal activity involving
the car and its occupants. See id. ¶¶ 16-17; see also Contreras, 2003-NMCA-129, ¶¶
2, 9 (holding that information provided by anonymous “concerned motorist” and
passed on to deputies that identified vehicle involved in possible DWI was sufficient
to justify investigatory stop).
{15} 	Defendant’s argument that the requisite reasonable suspicion was lacking
erroneously assumes, contrary to the record evidence just discussed, that the only fact
available to Officer Jensen was the “report of a ‘parked DWI in the parking lot.’ ”
Defendant also errs in relying on State v. Murry, 2014-NMCA-021, 318 P.3d 180,
which held that evidence found after police officers approached a parked car and
instructed the driver to open the door must be suppressed because the encounter was
not consensual but a seizure, id. ¶¶ 11, 28, and the seizure was not supported by
reasonable suspicion. Id. ¶ 32. In Murry, there had been no reports or dispatches
concerning criminal activity, and the officers observed only that the car was parked
and occupied and two of the occupants had made abrupt movements, and the officers
approached the car and instructed the driver to open the door. Id. ¶¶ 28, 30-31. In
contrast, Officer Jensen acted upon information that (among other things) indicated
that a man who had been passed out in a restaurant bathroom and who smelled of
alcohol had, after getting up and leaving the restaurant, driven a car identified by
make, color, and partial license plate, almost hitting several other vehicles in the

10
process, and that the car was parked in the restaurant parking lot with the man still
inside.
{16} 	Although the totality of the circumstances considered in evaluating the
reasonableness of an investigatory detention includes the reliability of the information
available to the officer as well as its content, Contreras, 2003-NMCA-129, ¶ 5,
Defendant’s brief in chief makes no reliability challenge. And while his reply brief
asserts a hearsay-based reliability argument, it concedes that hearsay is admissible in
suppression hearings. The argument comes too late. See Rule 12-213(C) NMRA;
Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65
(stating that appellate courts ordinarily do not consider arguments made for the first
time in a reply brief). In any event, the argument is not well taken on the facts of this
case. Although the caller was anonymous, New Mexico law regards citizen informants
as “more reliable than a police informant or a crime-stoppers informant[,]” and there
was no reason for Officer Jensen to “presume that the informant was not reliable or
that the description given was not credible.” See Contreras, 2003-NMCA-129, ¶¶ 10,
12. Moreover, it appears that the caller was an eyewitness to the events described to
dispatch, a factor that courts treat as indicative of reliability. See id.
{17} 	Defendant appears to read Contreras to hold that an investigative detention
based on an anonymous tip is justified only if there is an imminent threat of danger
to the public and that an investigatory detention of a possible DWI is unreasonable

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unless the suspect is still driving. This reading is incorrect. As an initial matter, it
contravenes the well-settled principle that, in determining reasonableness, we “avoid
bright-line, per se rules” and “consider the facts of each case.” Granville, 2006-
NMCA-098, ¶ 18. It also is not supported by the principles set forth in Contreras,
2003-NMCA-129, ¶¶ 13-21.
{18} 	In Contreras we “balance[d] the possible threat of drunk driving to the safety
of the public with [the d]efendant’s right to be free from unreasonable seizure[,]”
2003-NMCA-129, ¶ 13, consistent with the law stating that, in determining the
constitutionality of a seizure, we “balance the nature and quality of the intrusion on
the 	individual’s 	Fourth 	Amendment 	interests 	against 	the 	importance 	of 	the
governmental interests alleged to justify the intrusion.” Paananen, 2015-NMSC-031,
¶ 13 (internal quotation marks and citation omitted). In so doing, we stated that, “[i]n
New Mexico, the elimination of [DWI] and its related offenses is a matter of grave
concern to society in general, and to our courts and Legislature in particular[,]” and
that “a moving car on a public roadway presents an exigent circumstance that a
possessory crime does not.” Contreras, 2003-NMCA-129, ¶¶ 14, 15 (internal
quotation marks and citation omitted). But we did so in the context of explaining that
the minimal intrusion posed by an investigatory detention was justified by the need
to protect the public from the threat posed by possible drunk driving and that an
officer should not have to “expose the suspect and the public to the danger of a drunk

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driver[,]” as would result from a requirement that the officer first observe the drunk
driving before initiating a detention to investigate a possible DWI. Id. ¶¶ 15-21; cf.
State v. Sims, 2010-NMSC-027, ¶ 3, 148 N.M. 330, 236 P.3d 642 (“Had the police
officer or other witnesses observed [the d]efendant behind the steering wheel of a
moving vehicle at or near the time of his apprehension, the [s]tate would not have to
rely on ‘actual physical control’ to prove that [the d]efendant was DWI. It is only
when there are no witnesses to the vehicle’s motion that actual physical control is
essential to prove DWI at the time an accused is apprehended.”). As our Supreme
Court stated in City of Santa Fe v. Martinez, 2010-NMSC-033, ¶ 15, 148 N.M. 708,
242 P.3d 275,
If an officer was prohibited from making a warrantless arrest of a
suspected drunk driver based on the fact that the officer did not actually
observe 	the 	incident, 	the 	officer 	would 	be 	posed 	with 	two
options—releasing the suspected drunk driver or obtaining a warrant. If
the officer chose to pursue the investigation and obtain a warrant, the
evidence needed for the subsequent prosecution could be diluted or lost
entirely. In addition to the effect on the evidence, there is also a risk that
during the time period in which the officer is obtaining a warrant, a
suspect may get into his or her car and drive away, endangering both
himself or herself and the public at large. Such a risk is untenable given
the strong public interest in deterring the crime of DWI.
{19} 	The investigatory detention in Contreras was reasonable under the totality of
the circumstances because, in addition to the content and reliability of the facts
provided by the anonymous concerned motorist, “the exigency of the possible threat
to public safety that a drunk driver poses, New Mexico’s grave concern about the

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dangers of drunk drivers, and the minimal intrusion of a brief investigatory stop tip
the balance in favor of the stop.” 2003-NMCA-129, ¶ 21. In this case, the balance of
private and public interests tips in favor of the reasonableness of Officer Jensen’s
investigatory detention, just as it did in Contreras. The record contains evidence that
a man later identified as Defendant had been passed out in the Church’s Chicken
bathroom and smelled of alcohol; that he had gotten up, left the restaurant, and driven
the car identified by the caller (and confirmed by Officer Jensen) just minutes before
Officer Jensen arrived; and that the man was still in the car, as Officer Jensen also
subsequently confirmed. No evidence in the record supports Defendant’s assertion
that the keys were neither in the ignition, nor in sight, and that Defendant was lying
down. A person of reasonable caution could reasonably suspect from the information
available to Officer Jensen that a man in the parked car had driven the car while
intoxicated and might do so again.
{20} 	In our view, Officer Jensen’s conduct in opening the door did not transform his
lawful investigative detention into a search that required a warrant, as Defendant
appears to contend. Our decision in State v. Lovato, 1991-NMCA-083, 112 N.M. 517,
817 P.2d 251, is instructive on the point. In Lovato, this Court concluded that police
officers were justified in making an investigatory stop of a car to determine whether
it was involved in a drive-by shooting reported minutes earlier. Id. ¶ 14. We rejected
the defendants’ alternative argument that the investigatory stop was so intrusive as to

14
constitute an arrest and that the police lacked probable cause to support the arrest,
holding that “the intrusive nature of the encounter did not, as a matter of law, turn the
investigative stop . . . into an arrest[,]” id. ¶ 23, and that the officers’ actions in calling
for assistance and taking precautionary measures to determine whether the car’s
occupants were armed were “not inappropriate in view of the level of danger the
officers reasonably could assume to exist.” Id. ¶ 27. “[T]he court’s true concern in any
Fourth Amendment case [is] whether the police conduct, in light of all the
circumstances, was reasonable.” Id. ¶ 31 (quoting United States v. Merritt, 695 F.2d
1263, 1274 (10th Cir. 1982)). And “[e]ven in routine traffic stops, police may adopt
precautionary measures addressed to reasonable fears.” Id. ¶ 26.
{21} 	We also rejected the Lovato defendants’ argument that “the officers exceeded
the proper bounds of investigation by opening the car door and that this action
effectively amounted to a search of the car.” Id. ¶ 33. One of the officers testified that,
after the five occupants were out of the car, he and another officer approached with
guns drawn because they were not sure if another occupant might be on the floor of
the car. Id. The officers’ concerns were not unreasonable, we concluded, given
testimony that three people were in the car’s front seat and five people got out of the
car, and the facts that it was late at night and the officers’ visibility was limited. We
further determined that the officers had a reasonable basis to believe a firearm had
been discharged earlier and that either the car’s occupants were armed or weapons

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were in the car. Id. The defendants also argued that the officers should not have
opened the car door because the windows were not tinted and the police could have
looked in a window to determine whether someone might still be in the car. Id. ¶ 34.
This argument, we explained, “overlooks the expressed concern of the officers that an
armed person might have been hiding in the vehicle.” Id. We held that police in such
circumstances “were not required to forego reasonably prudent steps necessary for
their own safety” and that “[u]nder the facts . . . the officers were entitled to take
reasonable precautions to insure their safety, including the opening of the car door[.]”
Id.
{22} 	Similar reasoning applies here, notwithstanding that this case involves a
detention to investigate a suspected DWI and not a drive-by shooting. Officer Jensen
testified that the car had “very dark tinted windows” and that, as a result, he could not
see inside to determine what the occupants were doing. He believed that the safest
way to make contact with the car’s occupants was to open the door, enabling him to
see both occupants and remain outside while conducting his investigation. Under all
the circumstances confronting Officer Jensen, this safety precaution was reasonable
and permissible under the governing law. See id. ¶¶ 26-34. In sum, under Lovato,
Officer Jensen’s conduct in opening the door did not transform a lawful investigatory
detention into a search requiring a warrant. The record contains no other evidence of
a more intrusive search that might require a warrant.

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{23} 	Defendant also appears to suggest that Officer Jensen was required to talk to
Defendant through the window that was open “a couple of inches.” But officers may
take reasonable safety precautions while conducting investigatory detentions, as
discussed above. Id. ¶ 34. And the law does not require that an officer ask questions
before doing so in all circumstances. Cobbs, 1985-NMCA-105, ¶¶ 21-25. As we said
in Cobbs, even “when an officer is merely investigating a traffic offense, he faces an
inordinate risk when he approaches a subject seated in an automobile.” Id. ¶ 25. We
agree with the district court that, at the time he opened the door, Officer Jensen had
reasonable suspicion to pursue the investigation and that “[d]ue to the dark tint on the
car windows, it was appropriate for him to open the door.”
{24} 	Although our application of the governing law to the record before us leads us
to conclude that Officer Jensen’s conduct in opening the door required no more
justification than the reasonable suspicion we have held was established by the facts
available to him, we note the following additional points. First, although exigent
circumstances are not required to establish reasonable suspicion for an investigatory
detention, New Mexico courts have recognized the evanescent nature of alcohol and
the need to preserve evidence as exigent circumstances justifying warrantless searches
and seizures in the DWI context, see Martinez, 2010-NMSC-033, ¶ 15, and that where
“sufficient exigent circumstances make it not reasonably practicable to get a warrant,
one is not required.” Paananen, 2015-NMSC-031, ¶ 27. Second, Defendant’s

17
assertion that Officer Jensen did not knock before opening the door is contradicted by
the district court’s statement, presumably gleaned from his review of the video entered
into evidence without objection (but not designated as part of the record on appeal)
that “[t]he officer knocked on the car window, waited for a response (to no avail) and
peered through the slightly opened window before opening the door.” Cf. State v.
Nance, 2011-NMCA-048, ¶ 26, 149 N.M. 644, 253 P.3d 934 (concluding that
intrusion was de minimis and well-tailored to the exigency that evidence material to
the 	DWI 	case 	police 	were 	investigating 	was 	dissipating 	after 	balancing 	the
“compelling public interest in eradicating DWI occurrences and their potentially
deadly consequences” against the defendant’s interest, where police did not enter the
defendant’s house, did not draw weapons, and did not search the premises incident to
the arrest but merely waited outside for fifteen minutes (alteration, internal quotation
marks, and citation omitted)). Finally, none of the cases cited by Defendant support
his position. For example, in Mundy v. Commonwealth of Kentucky, 342 S.W.3d 878,
885-86 (Ky. Ct. App. 2011), unlike this case, the Kentucky court of appeals concluded
that the officer’s opening of the car door was unreasonable because the car was legally
parked on the side of the road and there was no reasonable belief that the driver
needed assistance.
CONCLUSION

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{25} 	The district court’s decision denying Defendant’s motion to suppress and the
judgment of conviction are affirmed.
{26} 	IT IS SO ORDERED.
__________________________________
LINDA M. VANZI, Judge
I CONCUR:
_________________________________
MICHAEL E. VIGIL, Chief Judge
TIMOTHY L. GARCIA, Judge (specially concurring)

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GARCIA, Judge (specially concurring).
{27} 	I write to specially concur with the result reached by the majority but disagree
with the determination that a constitutionally protected search was not initiated by
Officer Jensen when he opened the driver’s side door to further his DWI investigation.
See Majority Opinion ¶¶ 4, 10, 20-24. Because a search was initiated when Officer
Jensen opened the driver’s side door of the vehicle to further his DWI investigation,
this Court cannot rely solely upon the reasonable suspicion that justified Officer
Jensen’s initial investigation and seizure of the vehicle. We must also address the
search that occurred when the driver’s side door was opened by Officer Jensen. In
doing so, the facts must also support a determination that probable cause existed for
Officer Jensen to continue his search for the male driver of the vehicle that was
reported to be very intoxicated and driving erratically in the restaurant parking lot
minutes before he arrived. Exigent circumstances must also have existed to open the
driver’s side door and determine whether the only male occupant, located in the back
seat, was in fact the suspected DWI driver that had been reported to Officer Jensen by
dispatch.
{28} 	At the suppression hearing, Officer Jensen did not describe any aggressive
actions by the occupants of the parked vehicle that might trigger serious officer safety
concerns as he approached it and noticed the dark tinted windows, lack of an occupant
in the driver’s seat, one male and one female occupant located elsewhere inside the

20
vehicle, and the driver’s side window cracked open “a couple of inches.” Majority
Opinion ¶ 4; See State v. Ketelson, 2011-NMSC-023, ¶¶ 20-27, 150 N.M. 137, 257
P.3d 957 (analyzing Article II, Section 10 and addressing the officer safety concerns
involved in the temporary removal of a visible gun from a vehicle during a routine
traffic stop and the reasonableness of such an action when the occupants are not
otherwise acting aggressively to establish the type of officer safety concerns that
create exigent circumstances to conduct an immediate search or seizure). Because
there was nobody in the driver’s seat to open the window any further, Officer Jensen
simply decided to open the driver’s side door to continue his investigation and search
for the driver. Majority Opinion ¶ 4. No evidence was presented to establish that the
two occupants were unable to open the driver’s side window further or, alternatively,
open any of the other windows or doors in the vehicle to talk to Officer Jensen if he
had instructed them to do so. We recognize that the owner of a vehicle has a
reasonable expectation of privacy to challenge whether a reasonable search or seizure
of the vehicle has occurred. See Gomez, 1997-NMSC-006, ¶¶ 36-40 (requiring the
state to establish both probable cause and exigent circumstances to initiate the search
of a vehicle that has been seized by law enforcement). We must now address
Defendant’s constitutional challenge that was raised because Officer Jensen did
initiate a warrantless search within the suspect vehicle when he affirmatively acted to
open the driver’s side door to continue his DWI investigation. See State v. Leticia T.,

21
2014-NMSC-020, ¶ 12, 329 P.3d 636 (“A warrantless entry into a vehicle under the
exigent 	circumstances 	exception 	requires 	probable 	cause 	plus 	exigent
circumstances.”); State v. Rowell, 2008-NMSC-041, ¶¶ 26, 31, 144 N.M. 371, 188
P.3d 95 (recognizing that warrants are favored and a warrant is required to enter the
vehicle unless a recognized exception to the warrant requirement can be proven); State
v. Garcia, 2005-NMSC-017, ¶ 29, 138 N.M. 1, 116 P.3d 72 (“However, even with an
object in plain view, an officer may not enter the car and seize the object, without
either consent, a warrant, or exigent circumstances.”).
{29} 	Before initiating a search inside Defendant’s vehicle, probable cause must be
established 	and 	a 	search 	warrant 	must 	be 	issued, 	unless 	sufficient 	exigent
circumstances also exist to justify an immediate search without a warrant. See
Martinez, 	2010-NMSC-033, 	¶ 	14 	(clarifying 	that 	“law 	enforcement 	officers
conducting DWI investigations . . . [would] be subjected to the constitutional probable
cause inquiry of felony warrantless arrests”); Rowell, 2008-NMSC-041, ¶¶ 26, 31;
Gomez, 1997-NMSC-006, ¶¶ 36-40. Ultimately, the legality of a search turns on the
question of reasonableness and we review this determination de novo. State v. Ryon,
2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032. Here, the facts known to
Officer Jensen were sufficiently reasonable to provide him with probable cause to
continue his search. See State v. Snedeker, 1982-NMSC-085, ¶ 21, 99 N.M. 286, 657
P.2d 613 (“Probable cause . . . exists where the facts and circumstances within the

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knowledge of the officers, based on reasonably trustworthy information, is sufficient
to warrant a man of reasonable caution to believe that an offense has been or is being
committed.” (internal quotation marks and citation omitted)). The investigation
centered around a male drunk driver who had been reported to be erratically driving
this particular vehicle in the restaurant parking lot only minutes before the officer
arrived, and only one male was located as an occupant inside the vehicle when he
looked through the opening in the driver side window. Majority Opinion ¶¶ 3-4. After
confirming that only one male occupant was located inside the vehicle and seeing that
nobody was seated in the driver’s seat to open the door or respond to questioning, I
agree with the majority that it was objectively reasonable for Officer Jensen to
continue his search for the male driver by opening the driver’s side door to speak with
the occupants. See Leticia T., 2014-NMSC-020, ¶¶ 13, 15-19 (recognizing that
probable cause was established by the facts known to the officers and their reasonable
belief “that someone in the vehicle was armed and had just assaulted individuals with
a rifle”); see also Snedeker, 1982-NMSC-085, ¶ 22 (recognizing that when the court
is determining whether probable cause exists, “(1) only a probability of criminal
conduct need be shown; (2) there need be less vigorous proof than the rules of
evidence require to determine guilt of an offense; (3) common sense should control;
[and] (4) great deference should be shown by [the] courts[.]” (internal quotation marks
and citations omitted)). Under this standard of reasonableness and common sense,

23
Officer Jensen had probable cause to open the driver’s side door and investigate
whether the one male occupant seated in the back seat was in fact the person who was
reported driving this particular vehicle under the influence of alcohol minutes before
he arrived.
{30} 	Here, exigent circumstances also existed to justify a continuation of the search
for the driver among the occupants inside without first obtaining a search warrant. See
Leticia T., 2014-NMSC-020, ¶ 22 (cautioning lower courts in a warrantless vehicle
search case to address the range of constitutional choices that an on-scene officer must
make and be mindful that, “[f]irst, if reasonable people might differ about whether
exigent circumstances existed, we defer to the officer’s good judgment . . . [and
s]econd, we should not let our preference for warrants result in overriding an officer’s
on-the-scene decision to act immediately where immediate action is one of the lawful
options” (alteration, internal quotation marks, and citation omitted)); see also
Martinez, 2010-NMSC-033, ¶ 15 (recognizing that an officer is not “prohibited from
making a warrantless arrest of a suspected drunk driver based on the fact that the
officer did not actually observe the incident [because i]f the officer chose to pursue
the investigation and obtain a warrant, the evidence needed for the subsequent
prosecution could be diluted or lost entirely . . . [and] there is also a risk that during
the time period in which the officer is obtaining a warrant, a suspect may get into his
or her car and drive away, endangering both himself or herself and the public at

24
large”); Ryon, 2005-NMSC-005, ¶ 26 (recognizing that “[s]ince there is a lesser
privacy expectation in a vehicle[,] . . . an involuntary search or seizure there is judged
by a lower standard of reasonableness”). When analyzing the facts to determine
whether exigent circumstances exist, “[t]he inquiry is an objective test, not a
subjective one, into whether a reasonable, well-trained officer would have made the
judgment this officer made.” Gomez, 1997-NMSC-006, ¶ 40.
{31} 	Again, after confirming that only one male occupant was located inside the
vehicle and seeing that nobody was seated in the driver’s seat to open the door or
respond to questioning, an objectively reasonable exigency existed in this DWI
investigation to justify Officer Jensen’s continuation of his search for the intoxicated
male driver by opening the driver’s side door to speak with the male occupant in the
back seat. Because Officer Jensen had sufficient facts to provide probable cause to
continue his search for the driver of the suspect vehicle and exigent circumstances also
existed to open the driver’s side door and contact the only male occupant that was
seated in the back seat, his search was in compliance with both the Fourth Amendment
of the United States Constitution and Article II, Section 10 of the New Mexico
Constitution.
{32} 	For the reasons stated herein, I specially concur with the majority’s decision to
deny Defendant’s motion to suppress and affirm his DWI conviction.

TIMOTHY L. GARCIA, Judge
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