January 22, 2019- State of New Mexico v. Jennifer Simpson, No. A-1-CA-35414

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ______ _
3 Filing Date: January 22, 2019
4 	NO. A-1-CA-35414
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 JENNIFER SIMPSON,
9 	Defendant-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
11 	Karen L. Townsend, District Judge
12 Hector H. Balderas, Attorney General
13 	Marko D. Hananel, Assistant Attorney General
14 	Santa Fe, NM
15 	for Appellee
16 Bennett J. Baur , Chief Public Defender
17 	Tania Shahani, Assistant Appellate Defender
18 	Santa Fe, NM
19 	for Appellant
Court of Appeals of New Mexico
Filed 1/22/2019 9:48 AM
Mark Reynolds

1 	OPINION
2 	GALLEGOS, Judge Pro Tempore.
3 	{t} 	Defendant Jennifer Simpson appeals from the district court's denial of her
4 motion to suppress evidence that she contends was obtained as the result of an illegal
5 seizure in violation of the Fourth Amendment to the United States Constitution and
6 Article II, Section 10 of the New Mexico Constitution. Following a hearing resulting
7 in the denial of her suppression motion, Defendant entered a conditional guilty plea
8 to driving while intoxicated (DWI) and driving on a revoked license, reserving her
9 right to appeal the denial of her motion. Defendant contends that she was seized
10 	without reasonable suspicion when she stopped her moving vehicle in response to a
11 	police officer' s tap on the vehicle ' s window and that the evidence discovered as a
12 	result of her illegal detention must be suppressed. We determine that the police
13 	officer's initial contact with Defendant was consensual. Accordingly, we affirm the
14 district court' s denial of Defendant's suppression motion.
15 	BACKGROUND
16 	{2} 	On June 17, 2015, in Farmington, New Mexico, Mark Kennedy, a park ranger
17 	and animal control officer, was going about his evening duties at a city park
18 	complex. At around 11 :00 p.m., he noticed a car drive into a nearby parking lot. The
19 parking lot was park property, partially paved, and poorly lit. The driver of the car-
20 later identified as Defendant-parked and turned off her lights. Officer Kennedy

1 found this suspicious because, while not posted as such, the park's official closing
2 time was 10:00 p.m. He reported the suspicious vehicle to dispatch. Farmington
3 Police Officer Nick Adegite arrived in uniform and in a marked patrol car at
4 approximately 	11 :20 p.m. 	to 	investigate Officer Kennedy's 	suspicious vehicle
5 report. He entered the parking lot and parked near Defendant's stationary vehicle.
6 Officer Adegite at no time engaged his vehicle's emergency lights.
7 	{3} 	As Officer Adegite approached Defendant's vehicle on foot, Defendant turned
8 on her lights and started to drive away. Officer Adegite then reached out and tapped
9 on the window of Defendant's moving vehicle. Defendant stopped and rolled down
10 	her window. Officer Adegite quickly detected the strong odor of alcohol, which led
11 	to a DWI investigation and Defendant's eventual arrest. Ultimately, Defendant
12 entered a conditional guilty plea, reserving the right to appeal the district court's
13 	denial of her motion to suppress.
14 DISCUSSION
15 	{4} 	On appeal, Defendant argues that she was illegally seized when she stopped
16 	her vehicle to comply with Officer Adegite's signal to stop because the police officer
17 lacked sufficient reasonable suspicion to make an investigatory stop. For the reasons
18 	that follow, we hold that Officer Adegite's tap on Defendant's car window, without
19 more, constituted only a consensual encounter between the officer and Defendant.
2

1 Therefore, there was no seizure at the time Defendant rolled down her window and
2 Officer Adegite observed a strong odor of alcohol emanating from inside the vehicle.
3 	I. 	Standard of Review
4 	{5} 	In reviewing a district court' s ruling denying a motion to suppress, this Court
5 draws all reasonable inferences in favor of the ruling and defers to the district court's
6 findings of fact as long as they are supported by substantial evidence. State v. Jason
7 L., 2000-NMSC-018, ,, 10-11 , 129 N.M. 119, 2 P.3d 856. If the district court does
8 not state on the record a disbelief of uncontradicted testimony, we "presume the
9 court believed all uncontradicted evidence." Id. , 	11. "When a seizure occurred and
10 whether it was based on reasonable suspicion are mixed questions of fact and law
11 	because they involve the mixture of facts and evaluative judgments." State v. Eric
12 K., 	2010-NMCA-040, , 	14 , 148 N.M. 469, 237 P.3d 771. We evaluate mixed
13 	questions de novo. Id.
14 	II. 	The Initial Encounter Was Consensual and Did Not Constitute a Seizure
15 	{6} 	Investigatory detentions and arrests are considered seizures for the purposes
16 	of the Fourth Amendment' s protection against unreasonable searches and seizures.
17 Jason L. , 2000-NMSC-018, , 	14. While both the State and Defendant acknowledge
18 	that Defendant was seized by Officer Adegite at some point during the encounter,
19 they disagree as to when exactly the seizure occurred. Defendant contends that she
20 was seized when she stopped her vehicle in response to Officer Adegite' s tap on her
3

1 window. The State argues that Defendant was not seized until sometime after Officer
2 Adegite observed signs of intoxication, with all prior events being consensual in
3 nature. "The point at which the seizure occurs is pivotal because it determines the
4 point in time the police must have reasonable suspicion to conduct an investigatory
5 stop." State v. Harbison, 2007-NMSC-016, ,I 10 , 141 N.M. 392, 156 P.3d 30.
6 {7} 	Under United Stat es v. Mendenhall, 446 U.S. 544 (1980), "a person is seized
7 within 	the 	meaning 	of the 	[F]ourth 	[A]mendment when, in 	view 	of all 	the
8 circumstances surrounding the incident, a reasonable person would have believed he
9 was not free to leave." State v. Lopez, 1989-NMCA-030, ,r 4, 109 N.M. 169, 783
10 P.2d 479. Whether a defendant has been seized "is a case-by-case determination
11 	balancing the intrusion into individual privacy against the [s]tate' s interest in crime
12 prevention, looking at the totality of the circumstances." State v. 	Murry, 2014-
13 	NMCA-021 , ,I 12,318 P.3d 180.
14 	{8} 	The police do not need justification to approach a person and ask that person
15 	questions, so long as the actions of the officers do not "convey a message that
16 	compliance with their requests is required." 	Jason L., 	2000-NMSC-018, ,r 	14
17 (internal quotation marks and citation omitted). Police contact is consensual so long
18 	"as a reaso~able person would feel free to disregard the police and go about his
19 	business[] or to decline the officers' requests or otherwise terminate the encounter."
20 	State v. 	Scott, 	2006-NMCA-003 , ,I 	18, 	138 N.M. 751, 	126 P.3d 567 (internal
4

1 quotation marks and citation omitted). "However, if an officer conveys a message
2 that an individual is not free to walk away, by either physical force or a showing of
3 authority, the encounter becomes a seizure under the Fourth Amendment." State v.
4 	Gutierrez, 2008-NMCA-015, ~ 9, 143 N.M. 522, 177 P.3d 1096 (internal quotation
5 marks and citation omitted). Additionally, for purposes of the Fourth Amendment,
6 "a seizure based on a show of authority, as opposed to physical force, requires	.
7 'submission 	to the assertion of authority.'" 	Harbison, 	2007-NMSC-016, 	~ 	13
8 (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). However, in State v.
9 	Garcia, 2009-NMSC-046, ~ 35, 147 N.M. 134, 217 P.3d 1032, our Supreme Court
10 held that our State Constitution does not require submission to authority, and instead,
11 	the 	"free-to-leave" 	test 	articulated 	in 	Mendenhall 	provides 	the 	standard 	for
12 	determining whether a person is seized for purposes of Article II, Section 10 of the
13 	New Mexico Constitution. We decide this appeal on state constitutional grounds,
14 applying the Mendenhall "free-to-leave" test.
15 	{9} 	In 	determining 	whether 	a 	person 	was 	seized, 	"we 	evaluate 	( 1) 	the
16 circumstances surrounding the contact, including whether police used a show of
17 authority; and (2) whether the circumstances of the contact reached such a level of
18 	accosting and restraint that a reasonable person would have believed he or she was
19 	not free to leave." Scott, 2006-NMCA-003, ~ 17 (internal quotation marks and
20 citation omitted). The first of these determinations is a fact-based inquiry, which we
5

1 review for substantial evidence. Jason L., 2000-NMSC-O 18 , 1 19. The second is a
2 legal inquiry wherein we apply those facts to the law de novo. Id.
3 	A. 	Circumstances Surrounding the Contact
4 	{IO} 	Evaluating the circumstances surrounding the police-citizen contact in this
5 case, we initially observe that the district court did not make any factual findings,
6 save for noting that Officer Adegite did not employ lights or sirens or otherwise
7 make a show of force. A lack of factual findings "is a regular occurrence when we
8 review decisions on motions to suppress evidence in criminal cases." State v.
9 	Gonzales, 	1999-NMCA-027, 	1 	11, 	126 	N.M. 	742, 	975 	P.2d 	355. 	In 	these
10 circumstances, we presume that the 	district court believed the 	uncontradicted
11 	testimony of the two witnesses, Officer Kennedy and Officer Adegite. See Murry,
12 	20 l 4-NMCA-021 , 1 10 (" If the district court does not state on the record a disbelief
13 	of uncontradicted testimony, we presume the court believed all uncontradicted
14 evidence." (internal quotation marks and citation omitted)).
15 	{11} 	As indicated, Officer Adegite arrived after 11 :00 p.m. at a poorly lit and
16 partially paved parking lot behind a municipal public park to investigate a report of
17 a suspicious vehicle. He was in uniform and entered the parking lot in a marked
18 patrol vehicle without his emergency equipment activated. Other than Defendant' s
19 	vehicle, the parking lot was empty and there were no other vehicles or members of
20 the public in the vicinity.
6

1 {12} 	Officer Adegite parked his patrol vehicle in the parking lot. It is unclear from
2 the 	record 	how 	close 	Officer Adegite parked to 	Defendant's 	car or whether
3 Defendant saw the police vehicle as it entered the parking lot. Upon exiting his patrol
4 car, Officer Adegite approached Defendant's vehicle on foot. As he neared the
5 vehicle, Defendant began to drive away. Officer Adegite then tapped on the window
6 of Defendant's moving vehicle (how slowly the vehicle was moving is also unclear
7 from the record), without making any other statement, gesture, or signal. Defendant
8 stopped her vehicle and rolled down the window. It was at that point that Officer
9 Adegite could detect an odor of alcohol coming from inside the vehicle, ultimately
10 	leading to Defendant's arrest for DWI.
11 	B. 	A Reasonable Person Would Have Felt Free to Leave
12 	{13} 	The initial encounter between Officer Adegite and Defendant entailed little
13 	more than the officer's approach toward Defendant's vehicle and his ensuing tap on
14 the car window. The linchpin of Defendant's suppression issue is whether this
15 	conduct constituted a "show of [police] authority" at such a level of "accosting and
16 	restraint" that it would have conveyed the message to Defendant that she was not
17 	free to leave. Scott, 2006-NMCA-003, 1 17. Three factors should be considered in
18 	determining whether a reasonable person would feel free to walk, or more accurately
19 here, to drive away from an encounter with police: "(1) the conduct of the police, (2)
20 the person 	of the individual citizen, and (3) the physical surroundings 	of the
7

1 encounter." Jason L., 2000-NMSC-O 18 , , 	15 (internal quotation marks and citation
2 omitted). Examples of circumstances that might indicate a seizure would be "the
3 threatening presence of several officers, the display of a weapon by an officer, some
4 physical touching of the person of the citizen, or the use of language or tone of voice
5 indicating that compliance with the officer' s request might be compelled." Lopez,
6 	1989-NMCA-030, , 3 (quoting Mendenhall, 446 U. S. at 554).
7 	{14} 	Clearly, none of the circumstances enumerated in Lopez are present in this
8 case. That is, although Officer Adegite was in uniform and drove into the parking
9 lot in his marked patrol vehicle, there is no evidence that he displayed a weapon,
10 physically touched Defendant, or used language or tone of voice that would indicate
11 	that compliance might be compelled. Further, as the district court found, Officer
12 	Adegite did not employ lights or sirens or otherwise make a show of force. He simply
13 	tapped on Defendant' s window.
14 	{15} 	A police officer' s conduct in tapping on the window of a parked car, without
15 	more, is typically not enough to constitute a seizure. In County of Grant v. 	Vogt,
16 	2014 WI 76, ,, 4-5, 356 Wis. 2d 343, 850 N.W.2d 253 , the officer observed the
17 defendant park in a lot next to a closed park. The officer parked his squad car behind
18 	but not blocking the defendant's stationary and idling vehicle, approached the
19 vehicle on foot, and "rapped" on the window. Id.,, 6-7. Although the officer was
20 in uniform, he did not activate his vehicle' s overhead lights. Id. A majority of the
8

1 Wisconsin 	Supreme 	Court 	held 	that 	this 	was 	not 	a 	seizure, 	concluding 	that
2 "[a]lthough it may have been [the defendant's] social instinct to open his window in
3 response to [the deputy's] knock, a reasonable person in [the defendant's] situation
4 would have felt free to leave." Id. 1 53. This Court reached a similar holding in an
5 unpublished opinion. See Padilla v. Motor Vehicle Div., No. 30,646, mem. op., at *2
6 (N.M. Ct. App. Aug. 14, 2012) (non-precedential) ("[W]e conclude that no seizure
7 occurred where the officer parked his marked patrol unit fifteen feet away from [the
8 d]efendant's vehicle, approached [the d]efendant's vehicle on foot, in uniform and
9 displaying his badge, and tapped on the vehicle's window."). Likewise, courts in
10 	other jurisdictions have concluded that tapping on the window of a parked vehicle
11 	does not, in and of itself, constitute a seizure. See, e.g., Rutledge v. State, 28 N.E.3d
12 	281,289 (Ind. Ct. App. 2015) (determining that a police officer who parked near the
13 	defendant's vehicle, approached on foot, and then "tapped on the driver side window
14 	and 	attempted to 	speak with 	[the defendant 	in the parked vehicle]" 	had not
15 	effectuated a seizure because "the degree of intrusion was minor"). But see State v.
16 Patterson, 2005 ME 26, 11 15-16, 868 A.2d 188 (concluding that tapping on the
17 	window of a parked car, combined with a vocal request to open the window,
18 	constituted a seizure).
19 	{16} 	Consistent with this line of authority, Professor Lafave notes in his search
20 and seizure treatise that "if an officer merely walks up to a person standing or sitting
9

1 in a public place (or, indeed, who is seated in a vehicle located in a public place) and
2 puts a question to him, this alone does not constitute a seizure." 4 Wayne R. Lafave,
3 Search and Seizure: A Treatise on the Fourth Amendment, § 9.4(a), at 574-77 (5th
4 ed. 2012) (footnotes omitted). He explains that "[t]he result is not otherwise when
5 the officer utilizes some generally accepted means of gaining the attention of the
6 vehicle occupant or encouraging him to eliminate any barrier to conversation." Id.
7 at 594. He goes on to state that, in order to make a basic inquiry, an officer may tap
8 on the window of a car to get the person' s attention without transforming the
9 encounter into a seizure. Id. at 594-95.
10 	{17} 	The communicative effect of an officer's tap or knock on a vehicle ' s window
11 	is to gain the attention of the occupant(s) of the vehicle; it does not necessarily
12 	indicate "that compliance with the officer's request might be compelled[,]" Lopez,
13 	1989-NMCA-030, ~ 3 (internal quotation marks and citation omitted), nor does it
14 communicate that a person is otherwise not free to leave. Cf Murry, 2014-NMCA-
15 	021 , ~ 24 (holding that a reasonable innocent person receiving an order to open his
16 car door from a uniformed police officer "would perceive that he was not free to
17 	disregard the order, let alone free to leave"). Moreover, "[t]he critical factor is
18 	whether the policeman, even if making inquiries a private citizen would not, has
19 otherwise 	conducted 	himself 	in 	a 	manner 	which 	would 	be 	perceived 	as 	a
20 	nonoffensive contact if it occurred between two ordinary citizens." Garcia, 2009-
10

1 NMSC-046, ,r 38 (internal quotation marks and citation omitted). Gaining the
2 attention of a vehicle occupant by tapping on the vehicle's window would generally
3 be perceived as nonoffensive contact if it occurred between two ordinary citizens.
4 	{18} 	What makes this case different, at least in Defendant's view, is that her vehicle
5 was in motion at the time Officer Adegite tapped on the window. Defendant likens
6 this case to a traffic stop. See State v. Funderburg, 2008-NMSC-026, ,r 13, 144 N.M.
7 3 7, 183 P .3d 922 (stating that"[ w]hen an officer stops an automobile and detains the
8 occupants for an investigatory stop, the officer has effected a seizure" (internal
9 quotation marks and citation omitted)). 1 As a general rule, a traffic stop constitutes
10 a seizure. See id.; see also Delaware v. Prouse, 440 U.S. 648, 653 (1979) (holding
11 	that "stopping an automobile and detaining its occupants constitute a seizure" under
12 the Fourth Amendment, even where "the purpose of the stop is limited and the
13 	resulting detention quite brief' (internal quotation marks and citation omitted)).
14 	However, we are not persuaded that we are dealing with a traffic stop in this case.
15 	{19} 	That is to say, the circumstances of Officer Adegite's approach-on foot-
16 toward Defendant's vehicle as it was idling in the parking lot, followed by a tap on
1We note that Defendant did not make this specific "traffic stop" argument at
trial. However, Defendant did contend that the window tap caused her to stop her
vehicle, and she presented the necessary evidence to support the legal principle.
Therefore, we will consider the argument on its merits. See State v. Paananen, 20 l 5-
NMSC-031, ,r 11,357 P.3d 958 (determining that an issue was preserved where the
state sufficiently asserted the issue and adduced the evidence necessary to support
the legal principle, and where the defendant had an opportunity to respond).
11

1 the window as it started pulling away, appear to be more akin to an encounter with
2 a pedestrian or with the occupant of a parked car than to a typical traffic stop. See
3 	United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) (holding that where a
4 vehicle "had barely started [driving] in a parking lot, moved only fifteen to twenty
5 yards, and was waved to a halt by DEA agents on foot," the situation was "more
6 analogous to the cases of pedestrians and parked cars to which the Mendenhall
7 seizure test is applied[,]" and recognizing that the "normal circumstances of a
8 vehicle stop," which "generally involve abundant displays of authority, including
9 police uniforms, sirens and flashing lights, and signals to pull off the highway[,]"
10 were not present). Given the conspicuous absence of the typical displays of authority
11 	attendant to a traffic stop-sirens, flashing lights, signals to pull off the highway-
12 we decline to treat this case as one involving a typical traffic stop.
13 	{20} 	Defendant also asserts that a reasonable person would have felt compelled to
14 	stop pursuant to NMSA 1978, Section 30-22-l(C) (1981), which prohibits resisting,
15 	evading, 	or obstructing an officer. 	The plain language 	of Section 30-22-l(C)
16 prohibits "willfully refusing to bring a vehicle to a stop when given a visual or
17 	audible signal to stop, whether by hand, voice, emergency light, flashing light, siren
18 	or other signal, by a uniformed officer in an appropriately marked police vehicle[.]"
19 	(Emphasis added.) In this case, along with the lack of typical displays of authority
20 attendant to a traffic stop mentioned above, we also note that Officer Adegite was
12

1 not in his police vehicle when he approached Defendant's vehicle and tapped on the
2 window. Defendant has not provided us with any argument or authority as to how
3 	Section 30-22-l(C) applies here when Officer Adegite was not in his police vehicle.
4 	Where a party cites no authority to support an argument, we may assume no such
5 authority exists. See In re Adoption of Doe, 1984-NMSC-024, 12, 100 N.M. 764,
6 	676 P.2d 1329.
7 	{21} 	In the end, we view the fact that Defendant's vehicle was moving as but one
8 	of the myriad factors to be evaluated in our totality of the circumstances analysis.
9 See Michigan v. Chesternut, 486 U.S. 567, 572-73 (1988) (eschewing bright-line
10 tests and describing the Mendenhall free-to-leave test as "necessarily imprecise,
11 	because it is designed to assess the coercive effect of police conduct, taken as a
12 whole, rather than to focus on particular details of that conduct in isolation"). In this
13 	case, Officer Adegite, alone, in uniform, and on foot, approached a moving vehicle
14 	in a parking lot, and without displaying a weapon or making any gestures or uttering
15 	any commands for Defendant to stop, simply tapped on the vehicle's window. Had
16 this window tap occurred in a similar situation involving a parked vehicle, the
17 communicative effect would have 	been to gain the 	attention 	of the 	vehicle's
18 	occupant in order to initiate a consensual encounter and nothing more. We see no
19 meaningful distinction in the communicative effect of the window tap-and surely
13

1 not of constitutional dimension-on these facts, where the vehicle had barely begun
2 to move after idling in a parking lot.
3 	{22} 	Viewing the circumstances in their totality, and balancing the intrusion into
4 Defendant's privacy against the State's interest in crime prevention, see Jason L.,
5 2000-NMSC-018, ,I 14, we conclude that Officer Adegite's approach on foot and his
6 minimally intrusive tap on Defendant's car window did not constitute a "show of
7 authority" at such a level of "accosting and restraint" that it would have conveyed
8 the message to Defendant that she was not free to leave. Therefore, there was no
9 seizure at the point at which Defendant stopped and rolled down her window.
10 	CONCLUSION
11 	{23} 	Accordingly, we affirm.
12 	{24} 	IT IS SO ORDERED.
13 	- 	i ::>~ }Pj.~
14 	DANIEL J. GA LEGOS, Judge Pro Tempore
15 	WE CONCUR:
14