April 27, 2017- State of New Mexico v. Johnny Ortiz, No. 34,783

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 27, 2017

NO. 34,783

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

JOHNNY ORTIZ,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores, District Judge

Hector H. Balderas, Attomey General

Santa Fe, NM

Charles J. Gutierrez, Assistant Attomey General
Albuquerque, NM

for Appellant

Law Offices of Jennifer J. Wemersbach, P.C.
Jennifer J. Wemersbach, P.C.
Albuquerque, NM

for Appellee

OPINION
HANISEE, Judge.
{1} 	The State appeals the district court’s order suppressing evidence seized from
Defendant Johnny Ortiz’s vehicle. The district court suppressed the evidence because
it concluded that what began as an investigatory detention of Defendant impermissibly
ripened into a de facto arrest in violation of the Fourth Amendment right to be free
from unreasonable seizure. We agree with the district court and affirm.
BACKGROUND
{2} 	On the morning of June 1, 2012, Sandia Resort & Casino (the casino) security
personnel came into possession of a found wallet. Upon searching its contents for
identifying information, a security dispatcher found Defendant’s name and an
unidentified female’s name whose contact information was in the wallet. The
dispatcher contacted the female, who reported that her wallet had been stolen at the
casino. Shortly thereafter, Defendant inquired with security about the wallet, at which
point the dispatcher searched the casino’s private security database to see if Defendant
had any prior infractions at the casino. The dispatcher discovered a person with
Defendant’s name who had been banned from the casino in 2007.
{3} 	The dispatcher then contacted the Pueblo of Sandia Police Department (PSPD)
to report a possible criminal trespass in progress. PSPD Detective James Chavez and

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Officer Stephen Garcia responded to the dispatch. Detective Chavez arrived at the
casino first and proceeded to the security office, planning to confirm Defendant’s ban
with security personnel. Before he could do so, however, security informed him that
surveillance video showed Defendant walking out the main doors of the casino.
{4} 	Detective Chavez, electing to attempt to intercept Defendant before Defendant
could leave the premises, left the security office before he was able to confirm
Defendant’s ban. As Detective Chavez ran through the casino, security personnel
relayed information about Defendant’s location to him over the phone. Detective
Chavez, in turn, communicated that information to Officer Garcia via radio so that
Officer Garcia could pursue Defendant in his patrol car. Security personnel observed
Defendant walk toward the parking lot, enter a white vehicle, and proceed eastbound
through the parking lot. Officer Garcia located the vehicle, initiated his emergency
equipment, and effectuated a stop in the casino parking lot.
{5} 	Detective Chavez, who witnessed the stop, arrived on foot and made contact
with Defendant. Detective Chavez patted down Defendant, handcuffed him, and
placed him in the back of Officer Garcia’s car in what Detective Chavez described as
“just detention, investigative detention” so that he could confirm Defendant’s ban with
security personnel in order to determine if there was probable cause to arrest
Defendant for criminal trespass. It took approximately ten minutes for Detective

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Chavez to receive confirmation of Defendant’s ban. Detective Chavez testified that
after the ban was confirmed, he placed Defendant under arrest, called for a tow truck,
and commenced an inventory search of Defendant’s vehicle. The search produced,
among other things, syringes, a scale, and a bank bag containing baggies of a crystal-
like substance, later confirmed to be methamphetamine.
{6} 	Defendant was indicted on one count of trafficking by possession with intent
to distribute methamphetamine, contrary to NMSA 1978, Section 30-31-20 (2006),
one count of criminal trespass, contrary to NMSA 1978, Section 30-14-1 (1995), and
one count of possession of drug paraphernalia, contrary to NMSA 1978, Section 30-
31-25.1(A) (2001). Defendant moved to suppress the evidence seized from his car,
arguing that it was “obtained pursuant to an illegal arrest and subsequent inventory
search . . . in violation of the Fourth and Fourteenth Amendments of the United States
Constitution[.]”
{7} 	At the conclusion of the hearing on Defendant’s motion to suppress, the district
court granted the motion, finding that PSPD’s investigatory detention of Defendant
had ripened into a de facto arrest lacking probable cause, violating Defendant’s right
to be free from unreasonable seizure. This appeal resulted. See NMSA 1978, § 39-3-
3(B)(2) (1972) (providing that the State may immediately appeal an order suppressing
evidence if the district attorney certifies to the district court that “the appeal is not

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taken for the purpose of delay and that the evidence is a substantial proof of a fact
material in the proceeding”).
DISCUSSION
{8} 	Defendant concedes—and we agree—that PSPD had reasonable suspicion to
stop Defendant and place him in an investigatory detention. The only issue before us,
then, is whether the character of PSPD’s investigatory detention ripened into a de
facto arrest, which, absent probable cause, constituted a violation of Defendant’s
Fourth Amendment rights.
I. 	Standard of Review
{9} 	“Appellate review of a motion to suppress presents a mixed question of law and
fact.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation
marks and citation omitted). “We review the trial court’s ruling on [a d]efendant’s
motion to suppress to determine whether the law was correctly applied to the facts,
viewing them in the manner most favorable to the prevailing party.” State v. Leyba,
1997-NMCA-023, ¶ 8, 123 N.M. 159, 935 P.2d 1171 (internal quotation marks and
citation omitted). “While we afford de novo review of the trial court’s legal
conclusions, we will not disturb the trial court’s factual findings if they are supported
by substantial evidence.” Id.

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II. 	The 	Test 	for 	Determining 	the 	Reasonableness 	of 	an 	Investigatory
Detention
{10} 	“It is well established that stopping an automobile and detaining its occupants
constitute a seizure under the Fourth and Fourteenth Amendments.” State v. Skippings,
2014-NMCA-117, ¶ 9, 338 P.3d 128 (internal quotation marks and citation omitted).
The Fourth Amendment to the United States Constitution prohibits only seizures that
are unreasonable. See U.S. Const. amend. IV. “Consistent with the reasonableness
requirement of the Fourth Amendment, police officers may stop a person for
investigative purposes where, considering the totality of the circumstances, the
officers have a reasonable and objective basis for suspecting that particular person is
engaged in criminal activity.” State v. Sewell, 2009-NMSC-033, ¶ 13, 146 N.M. 428,
211 P.3d 885 (internal quotation marks and citation omitted). The reasonableness of
an officer’s actions during an investigatory detention “is determined by objectively
evaluating the particular facts of the stop within the context of all the attendant
circumstances.” Id. ¶ 16.
{11} 	“There is no bright-line test for evaluating when an investigatory detention
becomes invasive enough to become a de facto arrest.” Skippings, 2014-NMCA-117,
¶ 14. The reasonableness of a detention “rests on the balancing of competing interests:
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.”

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State v. Cohen, 1985-NMSC-111, ¶ 19, 103 N.M. 558, 711 P.2d 3 (alteration, internal
quotation marks, and citation omitted). Where the government’s justification for the
intrusion outweighs the nature and quality of the intrusion upon a defendant’s right
to privacy, the detention is more likely to be considered reasonable. See State v.
Robbs, 2006-NMCA-061, ¶ 20, 139 N.M. 569, 136 P.3d 570 (“If the nature and extent
of the detention minimally intrude on an individual’s Fourth Amendment interests,
opposing law enforcement interests can support a seizure based on less than probable
cause.” (internal quotation marks and citation omitted)). Conversely, where the
intrusion is significant and the government’s justification is not, the detention is
considered a de facto arrest and, thus, an unreasonable seizure. See State v. Werner,
1994-NMSC-025, ¶¶ 16-21, 117 N.M. 315, 871 P.2d 971 (describing the character of
the defendant’s detention as “a significant intrusion” and holding that the detention
was a de facto arrest because the government’s purported justification for restricting
the defendant to the degree it did failed to outweigh the intrusion).
{12} 	Regarding characterization of the government’s interest—i.e., the government’s
justification for the intrusion—courts typically focus on one or both of two
considerations: (1) the nature of the criminal activity suspected or afoot, see, e.g.,
Skippings, 2014-NMCA-117, ¶ 17 (explaining that “[t]he government has a significant
interest in preventing the use and distribution of drugs like cocaine”); see also State

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v. Lovato, 1991-NMCA-083, ¶¶ 23-27, 112 N.M. 517, 817 P.2d 251 (holding, as a
matter of law, that the intrusiveness of a stop by officers investigating a drive-by
shooting was reasonable “in view of the level of danger the officers reasonably could
assume to exist” given the nature of the crime being investigated); cf. State v.
Contreras, 2003-NMCA-129, ¶ 14, 134 N.M. 503, 79 P.3d 1111 (holding that “the
gravity of the public concern and the public interest served by the seizure” of a
suspected drunk driver “weigh heavily in the [reasonableness] balancing test”); and/or
(2) the specific reasons supporting particular intrusive actions taken by an officer
during a detention. See, e.g., Werner, 1994-NMSC-025, ¶ 17 (rejecting the claimed
reasonableness of placing a suspect in a police vehicle—purportedly to prevent the
suspect’s flight and minimize risk of harm to the officer—when the officer knew
where the suspect lived and there was no indication the officer, who had already
removed a knife from the suspect, feared for his safety); Skippings, 2014-NMCA-117,
¶ 20 (concluding that officers did not act unreasonably by patting down and
handcuffing the suspect, who had a history of violence, out of concern for officer
safety); State v. Flores, 1996-NMCA-059, ¶ 17, 122 N.M. 84, 920 P.2d 1038
(explaining that “[t]he nature of the crime being investigated may also justify a
patdown search”).

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{13} 	In analyzing the defendant’s privacy interest—specifically, the nature and
quality of the intrusion thereon—courts consider and weigh numerous factors,
including but not limited to: (1) the extent to which the suspect’s freedom of
movement is restricted, such as placement in the back of a police vehicle, see Werner,
1994-NMSC-025, ¶ 15, or being detained at gunpoint or through the use of handcuffs,
see Lovato, 1991-NMCA-083, ¶¶ 4, 27-32; (2) the overall length of the detention and,
relatedly, the officer’s diligence in investigating in order to be able to confirm or
dispel his suspicion, see Werner, 1994-NMSC-025, ¶¶ 13, 16; and (3) other fact-
dependent factors, such as giving a defendant his Miranda rights, see Skippings, 2014-
NMCA-117, ¶ 23, using a drug-sniffing dog, see Robbs, 2006-NMCA-061, ¶ 29, or
relocating the defendant during the course of an investigation, see Flores, 1996-
NMCA-059, ¶ 15 (holding that moving a suspect from the location of the initial traffic
stop to a police warehouse in order to continue the investigation constituted a de facto
arrest). No single factor is dispositive. See Sewell, 2009-NMSC-033, ¶ 18 (explaining
that “[t]emporal duration is neither the controlling nor the only factor to be considered
in assessing the reasonableness of the extent of an investigatory detention”); Werner,
1994-NMSC-025, ¶ 14 (explaining that “[a]lthough the back of a patrol car is not an
ideal location for the purposes of an investigatory detention, detention in a patrol car
does not constitute an arrest per se” (internal quotation marks and citations omitted));

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Skippings, 2014-NMCA-117, ¶¶ 20, 22-23 (explaining that “while we consider the
fact that [the d]efendant was handcuffed, it is not determinative” and collecting cases
supporting the proposition as well as explaining that giving a defendant Miranda
rights does not automatically convert an investigatory detention into an arrest). We
emphasize that the above-listed factors should be understood as illustrative, not an
exhaustive list of possible considerations. See Skippings, 2014-NMCA-117, ¶ 14
(explaining that courts “are also guided by the circumstances in other cases in which
investigative detentions have been held to be de facto arrests or impermissibly
invasive”).
{14} 	On a defendant’s motion to suppress evidence obtained without a warrant, the
State bears the burden of establishing the reasonableness of the officer’s conduct. See
State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95 (“Warrantless
seizures are presumed to be unreasonable and the [s]tate bears the burden of proving
reasonableness.” (internal quotation marks and citation omitted)). If the State fails to
“present testimony or other evidence showing that the arrest or search met
constitutional muster[,]” the defendant’s motion should be granted. State v. Ponce,
2004-NMCA-137, ¶ 7, 136 N.M. 614, 103 P.3d 54.

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III. 	Whether PSPD’s Investigatory Detention of Defendant Ripened Into a De
Facto Arrest
{15} 	We turn, now, to an application of this balancing test to the facts of this case.
We first consider and characterize the government’s interest because doing so
sharpens the lens through which we analyze the reasonableness of the officers’
particular actions and the overall nature and quality of the detention. Once we
determine the weight of the government’s interest, we determine whether the
intrusiveness of PSPD’s actions was justified by or outweighed the government’s
interest. See Skippings, 2014-NMCA-117, ¶¶ 17-18.
A. 	The Government’s Justification for the Intrusion
{16} 	PSPD’s only basis for stopping and detaining Defendant was the yet-to-be-
confirmed report from casino dispatch that Defendant was banned and therefore
suspected of committing a criminal trespass, a misdemeanor offense. See § 30-14-1(E)
(“Whoever commits criminal trespass is guilty of a misdemeanor.”). Tellingly, the
State argues that PSPD has “a significant interest in preventing criminal trespass on
property under [its] jurisdiction” and that such interest “is even stronger under the
circumstances of this case [based on the officers’] reasonable suspicion that Defendant
was permanently banned from [the c]asino specifically for narcotics.” Yet the State
ignores the uncontradicted evidence that at the time Defendant was detained, neither
Detective Chavez nor Officer Garcia acted upon knowledge that Defendant’s original

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ban was “for narcotics.” While the State relies on the district court’s finding that
Detective Chavez “had received information through the dispatcher that [the c]asino
Security had observed a male subject on casino property who they believe to have
previously been banned from casino property for narcotics[,]” the evidence in the
record, in fact, does not support this finding. When asked if he “remember[ed] exactly
what dispatch said when they asked you to come to Sandia” and, specifically, if he
remembered “that dispatch told you to come up for a banned subject who’s banned for
narcotics[,]” Detective Chavez responded, “I don’t remember the ban for narcotics.”
The State’s reliance on Defendant’s assertion in his motion to suppress that “Sandia
police officers were dispatched with the knowledge that . . . Defendant had possibly
been previously banned from the casino for narcotic use or possession” is equally
unavailing. See Chan v. Montoya, 2011-NMCA-072, ¶ 9, 150 N.M. 44, 256 P.3d 987
(“The mere assertions and arguments of counsel are not evidence.” (internal quotation
marks and citation omitted)). And the State failed to present any testimony or
evidence establishing that even if the officers knew that Defendant’s ban was related
to narcotics, they had reasonable suspicion that Defendant was engaged in drug-
related criminal activity on June 1, 2012, which may have heightened PSPD’s
justification for intruding on Defendant’s privacy interest. See Pacheco, 2008-NMCA-
131, ¶ 20, 145 N.M. 40, 193 P.3d 587 (“Insofar as [the officer] had a reasonable,

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articulable suspicion that drug-related criminality was afoot, the justification for the
intrusion was substantial.”).
{17} 	It is true that our cases have consistently characterized the government’s
interest in “preventing the use and distribution of drugs” as “significant,” thereby
presumptively justifying a higher level of intrusion during an investigatory detention.
Skippings, 2014-NMCA-117, ¶ 17. See State v. Pacheco, 2008-NMCA-131, ¶ 20;
Robbs, 2006-NMCA-061, ¶ 22. However, the fact that the case ended as a narcotics
investigation does not mean it began as one. More importantly, the record does not
support an inference that Detective Chavez was concerned about narcotics when he
detained Defendant. And the State has not pointed to any authority suggesting that the
government has a similar interest in the prevention of misdemeanor criminal trespass
alone. As such, we assume no such authority exists. See In re Adoption of Doe, 1984-
NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329. Consequently, we are left only with
the State’s lesser, but certainly not non-existent, interest in enforcing misdemeanor
trespass violations.
{18} 	Additionally, the State failed to present any evidence that the circumstances
evolved over the course of PSPD’s response in a way that would have justified a
graduated response based on a more substantial government interest. Cf. State v.
Funderburg, 2008-NMSC-026, ¶ 16, 144 N.M. 37, 183 P.3d 922 (“An officer’s

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continued detention of a suspect may be reasonable if the detention represents a
graduated response to the evolving circumstances of the situation.”). While the State
attempted to portray Defendant as fleeing at the time he was stopped, the district court
expressly found that “[t]he State did not present any evidence that Defendant was
fleeing from apprehension, disruptive or not obeying commands by casino security
or [PSPD].” This finding is substantially supported by Detective Chavez’s testimony
that (1) casino security reported seeing Defendant walking, not running, out of the
casino, (2) Defendant appeared to simply be “proceeding along through the parking
lot” just prior to being stopped by Officer Garcia, (3) Defendant’s tires were not
squealing while he was driving through the parking lot, and (4) Defendant stopped
once Officer Garcia activated his emergency equipment and while still in the casino
parking lot. Further, the State failed to call any witness to testify as to what Defendant
had been told by casino security prior to PSPD’s arrival—i.e., whether he was
informed that security suspected him of committing criminal trespass and was told not
to leave the premises. There is no evidence that Defendant was even aware that he was
being investigated for—or that PSPD had been called regarding—a possible criminal
trespass. All that Detective Chavez could establish was that Defendant had been in
contact with casino security regarding the found wallet.

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{19} 	We are unpersuaded by the State’s argument that the facts developed before the
district court support a conclusion that the government’s interest at the time it detained
Defendant was “significant” and that the “law enforcement justification in this case
was substantial.” While we hold, here, that the government’s interest in stopping a
possible criminal trespass was less than “significant,” our decision should not be read
as establishing a categorical rule. Because the test of reasonableness is one based on
the totality of the circumstances, see Werner, 1994-NMSC-025, ¶ 16, we leave open
the possibility that under a different set of facts, the government’s interest in
preventing criminal trespass may be deemed “significant,” thereby potentially
justifying a more intrusive detention. Cf. State v. McCormack, 1984-NMCA-042,
¶¶ 16-20, 27, 101 N.M. 349, 682 P.2d 742 (affirming a journalist’s conviction for
criminal trespass of the Waste Isolation Pilot Plant and rejecting a First Amendment
challenge to government-imposed access restrictions, which were based on the need
to protect the property and people working thereon). As the next part of our discussion
elucidates, 	we 	need 	not 	assign 	a 	specific 	descriptor—such 	as 	“minimal” 	or
“important”—to the nature of the government’s interest here.
B. 	The Nature and Quality of the Intrusion
{20} 	The State argues that “the intrusion on Defendant’s liberty during the
investigatory detention was slight or minimal” and reasons that “[a]lthough the

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detention occurred in a police vehicle and included handcuffing Defendant, these
intrusions are ameliorated by the brevity of the detention[.]” Based on our case law,
we disagree.
{21} 	The focus of our inquiry, here, is whether the particular activities—i.e.,
intrusions—during the investigatory detention were “reasonably related to the
circumstances that initially justified the stop” and whether there was “some reasonable
justification” to support the intrusions. Werner, 1994-NMSC-025, ¶¶ 13, 15 (internal
quotation marks and citation omitted). We also consider the length of Defendant’s
detention and the officers’ diligence in confirming or dispelling their suspicion, which
factors inform—but do not control—our characterization of the nature and quality of
the detention and, ultimately, our determination of whether it was reasonable.
1. 	Restraint on Defendant’s Freedom of Movement
{22} 	Detective Chavez testified that Defendant was patted down, handcuffed, and put
in the back of Officer Garcia’s patrol car immediately upon exiting his vehicle. But
there is no evidence that the officers knew that Defendant had a history of violence
or feared for their safety, see Skippings, 2014-NMCA-117, ¶ 20; that Defendant
attempted to leave the scene upon exiting his car, see State v. Wilson, 2007-NMCA-
111, ¶¶ 3, 19, 142 N.M. 737, 169 P.3d 1184; or that Defendant was unstable, swaying
back and forth, or unable to safely stand on his own, see id. ¶ 3—all of which may be

1The State effectively concedes this point, acknowledging that “the testimony
may have been thin regarding the specific reasons that the officers placed Defendant
in the back of a patrol car, patted Defendant down, and handcuffed Defendant,” but
attempts to justify this by pointing out that the district court granted Defendant’s
motion to suppress on a legal principle (de facto arrest) other than the one initially
argued by Defendant (lack of exigent circumstances). [RB 13 n.7] We observe,
however, that the State made no attempt to reopen testimony, continue the hearing,
move the district court to reconsider its order, or take any other steps prior to
appealing the suppression order to remedy the claimed “unfairness” the State says
resulted. Additionally, the State has neither raised this as an issue on appeal—other
than in a footnote in its reply brief—nor cited any authority suggesting that the district
court acted improperly or that our review of the suppression order is somehow
affected by this unusual circumstance. We therefore address this matter no further.
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reasonable justifications for the officers’ actions. We do not mean to suggest that these
are the only reasons that could have justified the actions taken in this case. Rather,
these examples provide guidance regarding what may establish the reasonableness of
such intrusions. The key in this case is the complete absence of any evidence
whatsoever suggesting there were mitigating circumstances that may have justified
PSPD’s intrusive actions upon Defendant. 1 And absent a reasonable justification for
restricting a person’s freedom of movement—particularly in as highly restrictive a
way as occurred in this case—such intrusion is considered “significant.” See Werner,
1994-NMSC-025, ¶ 16.

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2. 	Duration and Diligence
{23} 	In an attempt to “ameliorate” these intrusions on Defendant’s liberty in order
to allow the balance to tip back in favor of the government’s interest, the State relies
on the brevity of the investigatory detention and Detective Chavez’s diligence in
confirming Defendant’s ban from the casino. As to brevity, the State contends that
“our Supreme Court has strongly suggested that a ten-minute detention will not rise
to an arrest under any set of facts.” To support this position, the State cites our
Supreme Court’s observation in Sewell that it had “found no reported case in which
a New Mexico court has ever held that a ten[-]minute detention was impermissibly
long in any set of circumstances where there was reasonable suspicion to make a
roadside drug stop.” 2009-NMSC-033, ¶ 17. The State also relies on this Court’s
recent observation in Skippings that all New Mexico cases that have held that a de
facto arrest occurred involve “circumstances in which the defendant was detained for
at least an hour.” 2014-NMCA-117, ¶ 18. The State places heavy emphasis on the
brevity of Defendant’s detention and asks us to “give great weight” to this factor as
well. We decline to do so because while the length of a detention is generally an
important factor in determining whether it is reasonable, it is but one of a myriad
factors that is neither controlling nor dispositive on the ultimate question of
reasonableness. See Sewell, 2009-NMSC-033, ¶ 18; Skippings, 2014-NMCA-117,

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¶¶ 18, 24. We also observe that Sewell and Skippings are factually distinguishable
from the instant case in two key respects. First, neither involved the defendant being
patted down, handcuffed, and placed in the back of a patrol car while handcuffed for
any amount of time—i.e., the nature and quality of the intrusions in those cases were
palpably less significant. See Sewell, 2009-NMSC-033, ¶¶ 6-7; Skippings, 2014-
NMCA-117, ¶ 18. Second, both involved drug-related offenses, which, as we have
already discussed, elevated the government’s interest to “significant,” thereby
justifying a higher level of intrusiveness and making the detentions reasonable. See
Sewell, 2009-NMSC-033, ¶ 20; Skippings, 2014-NMCA-117, ¶ 17.
{24} 	As to diligence, the State relies on Werner’s pronouncement that “[d]iligence
in the investigation is key[.]” 1994-NMSC-025, ¶ 20. While we agree that the
evidence indicates that Detective Chavez acted diligently to confirm Defendant’s ban
with casino security and that there is no evidence suggesting that Detective Chavez
intentionally delayed confirmation in order to fish for evidence of other crimes, that
alone is not enough to offset the significant intrusions upon Defendant’s liberty or
establish the reasonableness of the detention. See id. (explaining that “[i]f authorities,
acting without probable cause, can seize a person, hold him in a locked police car . . .,
and keep him available for arrest in case probable cause is later developed, the
requirement for probable cause for arrest has been turned upside down”). And while

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we observe that all of our prior cases holding that there was no de facto arrest also
found that the officer had acted diligently, none of those cases involved the unique
facts and circumstances present in this case. See Skippings, 2014-NMCA-117, ¶ 24;
Pacheco, 2008-NMCA-131, ¶¶ 23-25; Robbs, 2006-NMCA-061, ¶ 29. As this case
proves, an officer’s diligence and ability to confirm or dispel his suspicions in a short
amount of time may be insufficient to overcome the intrusions upon a defendant’s
privacy interest where such intrusions result in a highly-restrictive detention and are
not supported by reasonable justification.
CONCLUSION
{25} 	Viewing 	the 	evidence 	in 	the 	light 	most 	favorable 	to 	Defendant, 	the
government’s interest in investigating and stopping criminal trespass was far
outweighed by the significant intrusion on Defendant’s Fourth Amendment interests.
We 	hold 	that 	PSPD’s 	investigatory 	detention 	of 	Defendant 	ripened 	into 	an
unconstitutional de facto arrest. The district court’s order of suppression is affirmed.
{26} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

JULIE J. VARGAS, Judge

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