July 01, 2009 – State of New Mexico v. Paul Maez, No. 27,528

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: July 1, 2009
NO. 27,528
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PAUL MAEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
James Blackmer, District Judge
Gary K. King, Attorney General
Katherine Zinn, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Vicki W. Zelle, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
KENNEDY, Judge.
{1} 	Defendant Paul Maez appeals the district court’s denial of his motion to
suppress evidence. He contends that the arresting officer illegally seized him without
reasonable suspicion or probable cause and asserts that Article II, Section 10 of the
New Mexico State Constitution supports his claim. 	We disagree and affirm the
district court’s denial of Defendant’s motion to suppress, holding that the arresting
officer legally asserted his authority to effectuate an investigatory detention.
BACKGROUND
{2} 	Officer Ray Soto was off-duty, driving home during rush hour, and sitting in
standstill traffic near the intersection of a major arterial, Paseo del Norte and
Jefferson, when he witnessed a minivan straddling the lane-divider line in westbound
traffic. The minivan was “splitting” traffic and hitting vehicles out of its way. Officer
Soto testified that the minivan hit somewhere between three and five vehicles and then
came to a complete stop. He indicated that the vehicles were “lurching sideways” as
the minivan “split traffic.” 	In response to these events, Officer Soto testified he
maneuvered his vehicle to the right, engaged his emergency lights, and “started to get
on the radio” to notify other units that there had been an accident and that additional
police were needed. He then exited his vehicle.

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{3} 	Officer Soto was dressed in civilian attire and driving an unmarked police car
equipped with a siren and lights. As he exited his cruiser, he could see that the right
front tire of the minivan “was completely torn away from the vehicle and was almost
detached from the vehicle.” 	At about the same time, the van’s driver exited the
minivan and ran south across the far left lane of westbound traffic, jumped a concrete
barrier, and negotiated his way through three lanes of eastbound traffic that were
moving at “different intervals at higher speeds.” 	The driver then jumped another
concrete barrier and continued across a large field. 	Within a few seconds of the
driver’s flight, Defendant, who was a passenger in the minivan, also jumped out, but
he ran in the opposite direction from the driver, towards the shoulder on the north side
of the street, and over a concrete barrier.
{4} 	Officer Soto decided to chase Defendant instead of the driver because the traffic
situation posed fewer obstacles in the direction Defendant fled. Officer Soto testified
that Defendant’s flight, occurring almost simultaneously with the stalling of the
minivan and through traffic at great risk to Defendant, gave him reasonable suspicion
to conduct an investigation. He testified that, based on ten years of experience as a
police officer, the occupants of vehicles involved in traffic accidents normally only
run when “they are DWI’ing, they have a warrant, . . . [or] to hide crimes [that] have
been committed.” When Officer Soto witnessed the minivan splitting traffic, striking

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other cars, and causing other vehicles to lurch sideways, he did not know if anyone
had been injured. He likewise did not know if the minivan had been stolen or if the
occupants were “trying to run from something, [or] get away for some reason.”
{5} 	Officer Soto also testified that once he began to catch up with Defendant, he
loudly yelled, “Police, stop.” He yelled, “Police, stop” more than once, but Defendant
refused to obey the commands. 	Officer Soto stated that he was never farther than
forty-five or fifty feet from Defendant during the pursuit. 	After running about fifty
yards with Officer Soto pursuing him and yelling for him to stop, Defendant stopped.
Defendant was approximately thirty feet from Officer Soto at that point. Officer Soto
then ordered, “Police. 	Get on the ground.” 	Defendant turned around, and Officer
Soto told him to “Get on the ground. Get on the ground.” Because he was brandishing
his gun and badge, yelling “Police,” Officer Soto testified that he believed it was
evident to Defendant that he was a police officer. 	Defendant then started to walk
towards Officer Soto, and Officer Soto said, “Don’t do it. 	Get on the ground.”
Nevertheless, Defendant continued to approach, keeping his hands where Officer Soto
could see them, saying nothing. Officer Soto testified that he did not see a weapon
“protruding” from Defendant but that Defendant was wearing “baggy clothing” and
it was unclear whether Defendant had weapons on him. When Defendant was within
two or three feet, Officer Soto kicked him in the mid-section, and Defendant “went

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down.” Officer Soto then pushed Defendant the rest of the way down and handcuffed
him.
{6} 	Defendant was placed under arrest for failing to obey a police officer and
leaving the scene of an accident. He was then searched for weapons and escorted back
to Officer Soto’s police cruiser. As he escorted Defendant, Officer Soto did not ask
any questions, but he testified that he was certain Defendant was read his Miranda
rights. On the way, the pair reached a concrete barrier, and because Defendant was
handcuffed, Officer Soto helped him cross over and then crossed over himself. As
Officer Soto was climbing over the barrier, he saw Defendant reach into his right front
pocket, take out a piece of cardboard, and toss it to the ground. 	The piece of
cardboard was a lottery scratch-off containing a white substance which later tested
positive for methamphetamine. Defendant was ultimately charged with possession of
methamphetamine, tampering with evidence, and resisting or evading an officer
{7} 	Defendant filed a motion to suppress evidence obtained as a result of an
unlawful search and seizure. At the hearing on the motion, Officer Soto was the only
witness who testified. 	Following the hearing, the suppression motion was denied.
Defendant entered a plea of guilty to the possession charge, but reserved his right to
appeal “the issue of suppression of evidence pursuant to illegal arrest [and] search.”
Judgment was entered, and Defendant now appeals his conviction.

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DISCUSSION
{8} 	“This Court will not consider and counsel should not refer to matters not of
record in their briefs.” In re Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996
P.2d 431. 	Defendant did not testify at the proceedings below. 	Statements in
Defendant’s brief regarding his emotional and mental state, the precarious condition
of the minivan after it came to a stop, his reasons for immediately leaving the area, the
possibility that he ran only to report the accident, and the noise level from traffic as
he ran do not reference the record. 	Since this Court finds nothing in the record to
support these assertions, we do not consider them.
{9} 	On appeal of a suppression ruling, we view the facts in the light most favorable
to the decision below and determine whether the law was correctly applied to the
facts. 	State v. Harbison, 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d 30. 	We
review factual determinations for substantial evidence, and we review the application
of law to the facts de novo. Id. We conduct a de novo review of decisions regarding
reasonable suspicion. Id.
{10} 	Defendant raises two main issues: 	First, whether under the New Mexico
Constitution, he was illegally seized when Officer Soto “asserted his authority to
effectuate an investigative detention” without reasonable suspicion; and second,
whether he was illegally subjected to a warrantless seizure not supported by

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reasonable suspicion or probable cause, in violation of the Fourth Amendment, when
he was riding as a passenger in a minivan and left the area after the minivan was
involved in a crash. Defendant divides his first issue into four sub-issues; (1) whether
his flight, which was not an “unprovoked flight upon noticing police,” could be used
to support a finding of reasonable suspicion; (2) whether his flight from the scene
could be included in the totality of the circumstances to give rise to reasonable
suspicion or probable cause; (3) whether his flight following a “hair-raising” ride
could be used to infer “consciousness of guilt,” transforming the officer’s “hunch”
into reasonable suspicion; and (4) whether his flight of only 150 feet from the scene
and 	his 	subsequent 	non-threatening 	approach 	toward 	the 	officer 	created 	an
independent basis for reasonable suspicion or probable cause. In its answer brief, the
State claims that Defendant failed to properly preserve his state constitutional
argument for purposes of appeal. We address the parties’ arguments below.
Preservation of State Constitutional Claim
{11} 	In his motion to suppress, Defendant argued that New Mexico courts have
interpreted the state constitution to provide broader protections than the United States
Constitution, asserting that Officer Soto’s conduct in this case was illegal under both.
Defendant interprets State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1 to
stand for the proposition that a defendant may preserve his claim under our state

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constitution by first citing a case addressing unconstitutional searches and then by
presenting supporting facts. Id. ¶¶ 2, 24-25. According to Defendant, based on the
long history under our state constitution of protecting the liberty interests and privacy
rights of citizens, his “mere departure” from a wrecked vehicle abandoned by the
driver does not provide reasonable suspicion to justify “a brief investigative
detention” and that his warrantless seizure was illegal under the New Mexico
Constitution because it was not based on reasonable suspicion or probable cause. Our
Supreme Court decided Harbison based on the United States Constitution, stating that
because the issue was not raised on appeal, it would not address whether Article II,
Section 10, of our state constitution would require a different result. Harbison, 2007-
NMSC-016, ¶ 16 n.3. The State points out that Defendant cites no cases argued under
our state constitution in which appellate courts have decided the extent to which flight
from the scene of a crime may be considered for purposes of reasonable suspicion.
{12} 	We recently held that when a state constitutional claim is asserted and there are
no New Mexico cases on point to support a departure from federal authority,
preservation of the claim requires a party to “cite the relevant constitutional principle
and assert in the district court that the state constitutional provision at issue should be
interpreted more expansively than the federal counterpart and provide reasons for
interpreting the state provision differently from the federal provision.” 	State v.

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Garcia, 2008-NMCA-044, ¶ 10, 143 N.M. 765, 182 P.3d 146, cert. granted,
2008-NMCERT-003, 143 N.M. 682, 180 P.3d 1181; see Gomez, 1997-NMSC-006,
¶¶ 22-23.
{13} 	In his suppression motion, Defendant made only a broad statement about our
state constitution providing greater protection than the United States Constitution. He
did not refer to any particular constitutional provision or principle, and he did not
provide reasons for interpreting any provision of our constitution differently from its
federal counterpart. 	His reference to Gomez, without more, is insufficient. 	The
remainder of his motion cited cases and facts supporting the allegation that he was
seized without reasonable suspicion or probable cause when Officer Soto kicked him
in the stomach and “forced” him to the ground. 	Such argument does not meet the
requirements of either Garcia or Gomez.
{14} 	Both the State’s response below and the district court’s order show that neither
was alerted to the argument that, under our state constitution, Defendant’s flight could
not be used to support reasonable suspicion. Preservation of an argument for purposes
of appeal requires that Defendant specifically apprise the district court of the claimed
error 	and 	invoke 	an 	intelligent 	ruling 	thereon. 	See, 	e.g., 	State 	v. 	Varela,
1999-NMSC-045, ¶¶ 25-26, 128 N.M. 454, 993 P.2d 1280. Both the district court and
the State must be alerted to the specific claim of error in order to allow the State a fair

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opportunity to respond, to show the district court why it should not rule in
Defendant’s favor, and to allow the district court the opportunity to correct any
mistake. 	See Gomez, 1997-NMSC-006, ¶ 29. 	This also ensures that the appellate
court is provided with an adequate record for review. See State v. Lucero, 116 N.M.
450, 453, 863 P.2d 1071, 1074 (1993).
{15} 	Defendant did not comply with the requirements established in Garcia and
Gomez for preserving his claim under the state constitution. He alerted neither the
district court nor the State to his argument that the New Mexico State Constitution
provides more protection than the United States Constitution to the passenger of a
vehicle who decides to run away after the vehicle is involved in a crash. 	Because
Defendant did not adequately preserve this argument for appeal, we will not address
it.
Reasonable Suspicion for Stop and Detention Under Fourth Amendment
{16} 	Defendant argues that Officer Soto did not have reasonable suspicion to stop
or detain him. 	Reasonable suspicion is “‘a particularized and objective basis’ for
suspecting the person stopped of criminal activity.” 	State v. Funderburg, 2008-
NMSC-026, ¶ 15, 144 N.M. 37, 183 P.3d 922 (citation omitted). 	Reasonable
suspicion is analyzed at the point when an actual seizure occurs. See Harbison, 2007-
NMSC-016, ¶ 10; see also Garcia, 2008-NMCA-044, ¶ 16 (distinguishing between

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seizure by physical force and seizure by show of authority: (1) seizure by show of
authority requires both that a reasonable person would believe he was not free to leave
and actually submitted to the show of authority; and (2) seizure by physical force
occurs where there is “grasping or application of physical force with lawful
authority”) (internal quotation marks and citation omitted).
{17} 	It is difficult to know what Defendant perceived or believed because we have
only Officer Soto’s testimony as our guide. 	Defendant advances inconsistent
arguments as to when he was arrested or submitted to Officer Soto’s show of
authority. He claims that when he stopped, turned around, and became aware that
Officer Soto “had a gun trained on him,” he was under arrest; but he also claims that
Officer Soto’s show of authority was “invalid” because it was made in the absence of
reasonable suspicion. Later in his brief, Defendant suggests that when he turned to
face Officer Soto, he saw “a guy in jeans and shirt” who was “saying something,” and
that it was “unclear whether [Defendant] saw that the man was holding a gun.” The
facts indicate that Defendant ran some distance while Officer Soto chased him
shouting “Police, stop” before stopping and turning around. It is at this moment that
Defendant submitted to Officer Soto’s authority. Therefore, we determine whether
reasonable suspicion existed at that point.
{18} 	Although reasonable suspicion cannot be based merely on an officer’s intuition

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or hunches, it “can arise from wholly lawful conduct.” Harbison, 2007-NMSC-016,
¶ 15 (internal quotation marks and citation omitted). 	When reviewing a claim
regarding reasonable suspicion, we “must necessarily take into account the evolving
circumstances” facing the officer. 	Funderburg, 2008-NMSC-026, ¶ 16 (internal
quotation marks and citation omitted). 	Furthermore, “[a]n officer’s continued
detention of a suspect may be reasonable if the detention represents a graduated
response to the evolving circumstances of the situation.” Id.
{19} 	Without factual support, Defendant claims that when he exited and ran from the
minivan, he was not running from police. 	He asserts that he was “trapped” in the
minivan during a “demolition derby” experience, was shocked and frightened, and
was running “to a less precarious location” to get out of danger. But this claim lacks
support from the evidence. 	See In re Estate of Keeney, 121 N.M. 58, 60, 908 P.2d
751, 753 (Ct. App. 1995) (indicating that this Court will consider only matters that
were considered by the district court at the time it made its decision). 	Therefore,
because Defendant argues that he did not engage in the type of “unprovoked flight
upon noticing police” discussed in Harbison, 2007-NMSC-016, ¶ 19, we look to the
facts in the record—that Officer Soto had turned on his lights and siren prior to the
driver and Defendant exiting the van and that Officer Soto was himself already outside
his own vehicle.

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{20} 	Defendant claims his flight did not create the same quantum of reasonable
suspicion present in Harbison. Harbison held that an officer cannot intentionally or
unlawfully frighten or provoke a person into fleeing and then use that flight to justify
a stop of the person. Id. ¶ 19. In circumstances where the police action itself was not
intended to incite flight—and officers were on the scene attempting to deal with a
situation involving probable cause to believe illegality was afoot—flight can be a
circumstance that is properly evaluated to establish reasonable suspicion. 	Id. ¶ 20.
As we stated above, after seeing the minivan driven recklessly and hitting cars, Officer
Soto moved his vehicle, engaged his lights, and radioed for more units to come to the
scene of the accident. Officer Soto was just beginning to get out of his car when the
minivan’s driver jumped out and ran over a concrete barrier and across three lanes of
moving traffic. He was followed almost immediately by Defendant, who fled in the
opposite direction through standstill traffic. We hold that under the circumstances of
this case, evidence of Defendant’s flight was properly included in the district court’s
determination of reasonable suspicion. There is nothing to suggest that Officer Soto
unlawfully provoked Defendant into fleeing. 	He was simply sitting in rush-hour
traffic when the van attracted his attention. 	As discussed in Harbison, the lack of
provocation is critical to whether evidence of flight can be used to support reasonable
suspicion. Id. ¶ 19. Here, because Defendant’s flight was unprovoked and occurred

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after Officer Soto made his presence known by activating his lights, the district court
properly factored Defendant’s flight into its reasonable-suspicion analysis. Id. ¶ 20.
{21} 	Defendant appears to claim that his flight from the scene cannot be considered
under a reasonable suspicion analysis because he was only a passenger and not the
person guilty of reckless driving. Relying on State v. Affsprung, 2004-NMCA-038,
135 N.M. 306, 87 P.3d 1088, Defendant argues that it was only an “unfortunate
coincidence” that he was a passenger in the vehicle and that this fact alone cannot
create a reasonable suspicion. In Affsprung, the officer obtained identification from
the defendant—a passenger in the stopped vehicle—even though the officer had only
a generalized concern but had no suspicion that the defendant was involved in
criminal activity and no particularized concern about his safety. Id. ¶ 19.
{22} 	In this case, on the other hand, Officer Soto had more than just a general
concern. 	Officer Soto testified that based on his ten years of experience, when a
minivan comes through traffic, wrecking several vehicles in the process, and both
occupants immediately exit and run away, there is reason to believe that the occupants
committed or are committing a crime or are subject to pending warrants. Officer Soto
also testified that he believed Defendant was committing a crime by leaving the scene
of an accident. See State v. Anaya, 2008-NMCA-020, ¶¶ 13-14, 143 N.M. 431, 176

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P.3d 1163 (holding that police must develop reasonable suspicion based on “objective
facts” available to the officer that would cause a reasonable person to believe that the
subject of the officer’s focus is, or will be, engaged in criminal activity). Based on his
experience, Officer Soto reasonably believed the minivan might have been stolen or
that the occupants were “trying to run from something, get away for some reason.”
As described in Illnois v. Wardlow,
Headlong flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such. In reviewing the propriety of an officer's conduct,
courts do not have available empirical studies dealing with inferences
drawn from suspicious behavior, and we cannot reasonably demand
scientific certainty from judges or law enforcement officers where none
exists. Thus, the determination of reasonable suspicion must be based
on commonsense judgments and inferences about human behavior.
528 U.S. 119, 124-25 (2000) (citation omitted). 	It is clear from Officer Soto’s
testimony that he had more than the “general concern” discussed in Affsprung.
{23} 	Officer Soto was a witness to the events at the scene when the minivan plowed
through several cars and came to a stop, was attempting to investigate what had just
occurred, and was acting in his capacity as a police officer to “maintain the status
quo” pending an investigation. Harbison, 2007-NMSC-016, ¶ 20. In State v. Duran,
2005-NMSC-034, ¶ 40, 138 N.M. 414, 120 P.3d 836, our Supreme Court determined
that, based on the totality of the circumstances and the officer’s observations, there
was support for the officer’s conclusion that it was likely that criminal activity was

15
afoot, particularly where that conclusion was based on more than “innocuous
circumstances or facts that would seem innocent to a layperson.” Similarly, under the
totality of the circumstances and Officer Soto’s observations in this case, his
conclusion that Defendant was or had been engaged in criminal activity was not based
on “innocuous circumstances.” 	Id. 	Evidence of Defendant’s flight, the evolving
circumstances witnessed by Officer Soto, the officer’s beliefs based on ten years of
experience, and the fact that Defendant’s behavior would not be considered by a
reasonable layperson to be merely innocuous or innocent provided the requisite
reasonable suspicion to stop and detain Defendant for purposes of investigating the
incident. See, e.g., id.
Probable Cause for Arrest
{24} 	Defendant claims that Officer Soto lacked probable cause to arrest him. 	In
determining whether an officer had probable cause for an arrest, we look at the facts
and circumstances within the officer’s knowledge and determine whether they would
cause a reasonable, cautious officer to believe that a criminal offense was being
committed. State v. Hawkins, 1999-NMCA-126, ¶ 17, 128 N.M. 245, 991 P.2d 989.
“Probable cause does not require that an officer’s belief be correct or more likely true
than false.” 	State v. Williams, 117 N.M. 551, 557, 874 P.2d 12, 18 (1994). In this
case, Officer Soto testified that he was running after Defendant while loudly yelling,

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“Police, stop,” approximately ten times over the course of the chase. He was never
more than forty-five or fifty feet from Defendant during this time. It was a “nice day”
and “still very bright” outside. Officer Soto displayed his badge around his neck and
held his gun in his hand. When Defendant continued to run despite Officer Soto’s
orders to stop, Officer Soto concluded that Defendant was committing the crime of
failing to obey or comply with the orders of a police officer. See NMSA 1978, § 30-
22-1(B) (1981) (defining resisting or evading an officer as “intentionally fleeing,
attempting to evade or evading an officer of this state when the person committing the
act of fleeing, attempting to evade or evasion has knowledge that the officer is
attempting to apprehend or arrest him”). 	At that point, Defendant refused to obey
Officer Soto’s commands. See, e.g., Harbison, 2007-NMSC-016, ¶ 10. Officer Soto
had the authority to apprehend Defendant, but Defendant attempted to evade
apprehension, which satisfies the first portion of Section 30-22-1(B). Again, to the
extent Defendant has a contrary, subjective interpretation of the facts, such an
interpretation is unsupported by the record.
{25} 	The second portion of the statute—whether Defendant had knowledge that
Officer Soto was attempting to apprehend him—was also met in this case. Despite the
fact that Defendant claims there was no evidence to support a finding that he knew the
officer was attempting to apprehend him, the district court could have inferred that

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Defendant was aware of Officer Soto’s intentions based on: 	(1) evidence of
Defendant’s immediate flight from the scene of an accident involving several vehicles
after Officer Soto activated his lights; (2) Officer Soto’s testimony that he was yelling
loudly and identifying himself; (3) the fact that Officer Soto was never farther than
forty-five or fifty feet from Defendant; and (4) that these events occurred on a clear,
bright day and that there was therefore no reason Defendant would have been unable
to see the officer behind him. 	See, e.g., State v. Gutierrez, 2007-NMSC-033, ¶ 36,
142 N.M. 1, 162 P.3d 156. Viewing the facts in the light most favorable to the district
court’s decision, we agree with the district court that Defendant knew Officer Soto
was attempting to apprehend him but refused to obey Officer Soto’s commands to
stop. 	We hold that Officer Soto had both reasonable suspicion to attempt to
apprehend Defendant and probable cause to arrest him for evading and resisting arrest.
{26} 	Defendant seems to claim that because Officer Soto did not question him as he
escorted him back to the patrol car, the detention was illegal. But Defendant cites no
authority in support of his contention. An appellate court will not consider an issue
if no authority is cited in support of the issue. In re Adoption of Doe, 100 N.M. 764,
765, 676 P.2d 1329, 1330 (1984).
CONCLUSION
{27} 	We hold that Officer Soto had reasonable suspicion to stop and detain

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Defendant. We further hold that once Defendant ignored Officer Soto’s commands
to stop and continued to flee, Officer Soto had probable cause to arrest him for
evading or resisting. We do not address issues that were not properly preserved, and
we do not consider claims not made to the district court. We affirm the district court’s
denial of Defendant’s motion to suppress evidence in this case.
{28} 	IT IS SO ORDERED.
___________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_____________________________
CELIA FOY CASTILLO, Judge
_____________________________
MICHAEL E. VIGIL, Judge