July 13, 2020- State of New Mexico v. Lonnie Lee Loddy, No. A-1-CA-34542

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-34542	4
LONNIE LEE LODDY,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY	7
James L. Sanchez, District Judge	8
Hector H. Balderas, Attorney General	9
Maha Khoury, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
Mary Barket, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
B. ZAMORA, Judge.	18
{1} 	Defendant Lonnie Lee Loddy was convicted of possession of a controlled	19
substance, contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2019),	20
and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-	21
25.1(A) (2001, amended 2019). Defendant argues that (1) the district court violated	22
Court of Appeals of New Mexico
Filed 7/13/2020 11:36 AM

2
his constitutional right to be present at all critical stages of his criminal proceeding	1
by reading the verdict in his absence; (2) the district court erroneously denied his	2
motion to suppress; (3) his constitutional right to effective assistance of counsel was	3
violated; and (4) the State failed to present sufficient evidence to support his	4
convictions. We affirm.	5
BACKGROUND	6
{2} 	In July 2012, the police were dispatched to Mount Laurel Street in Los Lunas	7
in reference to “a fight in progress . . . with numerous subjects fighting in the middle	8
of the street.” The dispatcher identified two vehicles involved in the fight: “a silver	9
van and a black truck with flames painted on it.” Upon arrival, Officer Michael	10
Romero and Officer Buster Whitley saw “a silver van and a black truck with flames	11
painted on the side” driving towards them, and pulled in front of the vehicles in their	12
patrol car with their lights and sirens on. Officer Romero testified that he and Officer	13
Whitley “held everybody in the vehicles at gunpoint until other officers arrived on	14
scene.” Officer Whitley observed Defendant driving the black truck. While waiting	15
for other officers to arrive, Officer Romero ordered the people inside Defendant’s	16
truck to keep their hands visible outside of the window, but Defendant “kept putting	17
his hands inside the vehicle.”	18
{3} 	The officers called for backup, and after additional officers arrived, Defendant	19
was ordered out of his vehicle so that officers could conduct a safety pat-down of	20

3
the vehicle’s occupants. Defendant did so and left the driver’s side door open. When	1
Officer Romero asked Defendant for identification, he “said it was on the passenger	2
seat of his vehicle.” While retrieving Defendant’s identification, Officer Romero	3
observed a “marijuana pipe” in the center console. Defendant admitted to Officer	4
Romero that the pipe was his. Officer Romero testified that he was informed by “a	5
deputy” that “a little plastic baggie containing a white crystal-like substance” was in	6
plain view on the floorboard of the driver’s side of the truck. Defendant was arrested	7
immediately after a “field test” confirmed the substance to be “crystal meth.”	8
{4} 	Two issues arose during the trial that are relevant on appeal. First, Defendant	9
raised a motion to suppress the evidence found by law enforcement mid-trial,	10
arguing the stop was “illegal” and everything seized “after the illegal stop would be	11
fruit of the poisonous tree,” but the district court found that the stop was “valid” and	12
denied Defendant’s motion. Second, while the jury was deliberating, Defendant left	13
the courthouse and never returned. Once the jury had reached a verdict, the district	14
court waited approximately twenty-five minutes, and eventually read the verdict	15
without Defendant present. Defendant was found guilty of possession of a controlled	16
substance and possession of drug paraphernalia. This appeal followed.	17

4
DISCUSSION	1
I. 	Absence During Reading of Verdict	2
{5} 	Defendant challenges the district court’s decision to read the verdict in his	3
absence because the “record does not substantiate that [Defendant] was voluntarily	4
absent or that he otherwise waived his presence at the rendition of the verdict of his	5
case.” The State argues that Defendant’s voluntary absence should be equated to an	6
implied waiver by Defendant. For the reasons stated below, we agree with the State.	7
{6} 	We review de novo whether Defendant’s voluntary absence during the	8
reading of the verdict was an implicit waiver of his constitutional right to be present	9
at all critical stages of his criminal proceeding. See State v. Padilla, 2002-NMSC-	10
016, ¶ 18, 132 N.M. 247, 46 P.3d 1247. Because defense counsel did not object to	11
the reading of the verdict in Defendant’s absence, we review for fundamental error.	12
See State v. Sosa, 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 348 (“Where	13
counsel fails to object, the appellate court is limited to a fundamental error review.”).	14
Fundamental error “applies only if there has been a miscarriage of justice, if the	15
question of guilt is so doubtful that it would shock the conscience to permit the	16
conviction to stand, or if substantial justice has not been done.” State v. Sutphin,	17
2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72 (internal quotation marks and	18
citation omitted). The burden is on the party “alleging fundamental error” to	19
“demonstrate the existence of circumstances that shock the conscience or implicate	20

5
a fundamental unfairness within the system that would undermine judicial integrity	1
if left unchecked.” State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998	2
P.2d 176 (internal quotation marks and citation omitted).	3
{7} 	A defendant has the constitutional right to be present at all critical stages of a	4
criminal case. State v. Astorga, 2016-NMCA-015, ¶ 19, 365 P.3d 53; see State v.	5
Clements, 1988-NMCA-094, ¶ 12, 108 N.M. 13, 765 P.2d 1195 (stating that a	6
defendant’s 	right 	to 	be 	present 	“has 	its 	genesis 	in 	the 	sixth 	amendment’s	7
confrontation clause and the fourteenth amendment’s due process clause”). Rule 5-	8
612 NMRA protects a defendant’s “constitutional right to be present . . . at all critical	9
stages of trial[.]” Padilla, 2002-NMSC-016, ¶ 11. However, this right is not absolute.	10
Rule 5-612(B), (C)(1) states that a “defendant may waive the right to be personally	11
present,” and “[t]he further progress of the trial, including the return of the verdict	12
. . . shall not be prevented . . . whenever a defendant who was initially present . . . is	13
voluntarily absent after the trial has commenced (whether or not he has been	14
informed by the court of his obligation to remain during the trial)[.]” (Emphasis	15
added.)	16
{8} 	Defendant contends that his waiver was required to be on the record. We	17
disagree. Our Supreme Court has held that a defendant’s conduct alone can	18
impliedly waive his right to be present at trial. See Padilla, 2002-NMSC-016, ¶ 8	19
(noting that departure from trial before it has concluded is considered “a knowing	20

6
and voluntary waiver of the right to be present” (internal quotation marks and	1
citation omitted)); see also id. ¶ 12 (stating that “an accused may either expressly or	2
by implication waive his right to be present by being voluntarily absent” (internal	3
quotation marks and citation omitted)); Hovey v. State, 1986-NMSC-069, ¶ 17, 104	4
N.M. 667, 726 P.2d 344 (holding that a “defendant need not be present in court in	5
order to waive his right to be present”). Therefore, an express, on-the-record waiver	6
was not required; Defendant can waive his right to be present for the reading of the	7
verdict by virtue of his voluntary absence from the courtroom.	8
{9} 	Based on our review of the record, Defendant’s absence was voluntary. The	9
district court waited an additional twenty to twenty-five minutes for Defendant after	10
the jury had reached a verdict before it proceeded. Before reading the verdict, the	11
district court pointedly asked defense counsel, “Why did you allow him to leave?”	12
Defense counsel responded, “[I]n retrospect, I should have kept him here[,]” that he	13
thought defendant was only going to the parking lot, and that he had “made sure	14
[Defendant] gave [him] a number when [Defendant] left so [defense counsel] could	15
call him.” The reading of the verdict then proceeded without objection from defense	16
counsel. After the reading of the verdict, the State clarified that Defendant “left by	17
himself” and never came back. Defendant never returned to the courtroom after the	18
verdict was read, and defense counsel did not object to the State’s recitation of what	19
had transpired. We have previously held that when a defendant leaves mid-trial and	20

7
the district court resumes trial without objection, a district court is not required to	1
“conduct an inquiry into the reason” for the defendant’s absence because “a	2
defendant shall be considered to have waived his right to be present at [the] trial if	3
he voluntarily absents himself after the trial has commenced.” State v. Burrell, 1976-	4
NMCA-025, ¶¶ 11-13, 89 N.M. 64, 547 P.2d 69. Like the defendant in Burrell,	5
Defendant left voluntarily after the trial began, and defense counsel did not object to	6
proceeding with the trial in Defendant’s absence. Defendant has not demonstrated	7
circumstances that “shock the conscience” of the Court and accordingly, there was	8
no fundamental error. See Cunningham, 2000-NMSC-009, ¶ 21.	9
II. 	Motion to Suppress	10
{10} 	Defendant argues that the traffic stop violated Defendant’s right to be free	11
from unreasonable searches and seizures, and as a result, that the district court erred	12
by admitting evidence flowing from the stop. Defendant contends that the stop was	13
neither justified at its inception, nor reasonable in its scope. 1
14
1 We note that Defendant raised his motion to suppress orally during trial,
rather than filing a motion to suppress at least sixty days prior to trial as required by
Rule 5-212(C) NMRA. See generally City of Santa Fe v. Marquez, 2012-NMSC-
031, ¶¶ 24-25, 285 P.3d 637. However, because neither party made any arguments
regarding Rule 5-212(C) either below or on appeal, we decline to address its
application and effect. See State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226,
247 P.3d 1111 (noting that “this Court has no duty to review an argument that is not
adequately developed”).

8
{11} 	The Fourth Amendment of the United States Constitution and Article II,	1
Section 10 of the New Mexico Constitution establish an individual’s right to be free	2
from “unreasonable searches and seizures.” U.S. Const. amend. IV; N.M. Const. art.	3
II, § 10. A traffic stop and the attendant detention of a vehicle’s occupants is a	4
“seizure” within the meaning of Article II Section 10 and the Fourth Amendment.	5
See State v. Duran, 2005-NMSC-034, ¶ 22, 138 N.M. 414, 120 P.3d 836, overruled	6
on other grounds by State v. Leyva, 2011-NMSC-009, ¶ 17, 149 N.M. 435, 250 P.3d	7
861.2 While law enforcement officers are generally required to articulate probable	8
cause for conducting a search or seizure, investigatory stops including traffic stops	9
are the type of brief detentions properly analyzed under the framework articulated	10
by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). See State	11
v. Leyva, 2011-NMSC-009, ¶ 10, 149 N.M. 435, 250 P.3d 861 (citing Duran, 2005-	12
NMSC-034, ¶ 23, for the proposition that New Mexico courts apply the Terry	13
analysis to traffic stops). Pursuant to Terry, “police may make an investigatory stop	14
in circumstances that do not rise to probable cause for an arrest if they have a	15
2Defendant contends the State violated both his federal and state constitutional
rights. However, Defendant fails to direct this Court to any case law that would
require a different Terry analysis under the New Mexico Constitution. See Leyva,
2011-NMSC-009, ¶ 49 (holding that if a state constitutional provision has not been
interpreted 	as 	offering 	greater 	protections 	to 	the 	defendant 	than 	its 	federal
counterpart, the defendant must develop an argument to justify the court conducting
an interstitial analysis). Accordingly, we decline to further address Defendant’s state
constitutional claim.

9
reasonable suspicion that the law has been or is being violated.” State v. Flores,	1
1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038 (citing Terry, 392 U.S. at 21-	2
22). “The two-part Terry analysis looks at [1] whether the officer’s action was	3
justified at its inception, and [2] whether it was reasonably related in scope to the	4
circumstances which justified the interference in the first place.” Leyva, 2011-	5
NMSC-009, ¶ 10 (alterations in original) (internal quotation marks and citation	6
omitted).	7
{12} 	Because an analysis of “whether police conduct was objectively reasonable	8
extends beyond fact-finding[,]” we apply a de novo standard of review with respect	9
to the reasonable suspicion inquiry, examining the totality of the circumstances.	10
State v. Alderete, 2011-NMCA-055, ¶ 14, 149 N.M. 799, 255 P.3d 377 (internal	11
quotation marks and citation omitted). “First, we look for substantial evidence to	12
support the trial court’s factual finding, with deference to the district court’s review	13
of the testimony and other evidence presented.” State v. Yazzie, 2016-NMSC-026,	14
¶ 15, 376 P.3d 858 (internal quotation marks and citation omitted). “We then review	15
the application of the law to those facts, making a de novo determination of the	16
constitutional reasonableness of the search or seizure.” Id. (internal quotation marks	17
and citation omitted).	18

10
A. 	The Stop Was Reasonable at Its Inception	1
{13} 	Defendant argues that the law enforcement officers’ stop of his vehicle	2
constituted an illegal search and seizure because it was “not supported by reasonable	3
suspicion.” Defendant notes that the sole justification for the stop was that the	4
vehicle “matched the description of a car occupied by individuals who were alleged	5
to have been involved in a fight.”	6
{14} 	In order to validly stop an automobile, law enforcement officers must possess,	7
at a minimum, reasonable suspicion that a law has been violated, based on “specific	8
articulable facts . . . that, when judged objectively, would lead a reasonable person	9
to believe criminal activity occurred or was occurring.” State v. Vandenberg, 2003-	10
NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19 (omission in original) (internal	11
quotation marks and citation omitted). Where “ambiguous circumstances could	12
reasonably 	be 	construed 	as 	involving 	lawful 	or 	unlawful 	activity[,]” 	an	13
“investigatory intrusion” is allowed in the form of a traffic stop. Yazzie, 2016-	14
NMSC-026, ¶ 22.	15
{15} 	In this case, Officers Romero and Whitley were advised by dispatch that there	16
was “fighting in the . . . street” and that the conflict involved “numerous subjects,”	17
including a shirtless individual. Acting on the information provided by dispatch,	18
Officers Romero and Whitley initiated a traffic stop of Defendant, who was found	19
shirtless and driving a vehicle that matched the specific color, paint job, and type	20

11
described by dispatch: a black truck with flames painted on it. This is the type of	1
information that we have previously held sufficient to establish probable cause to	2
initiate an investigatory stop. See State v. Tidey, 2018-NMCA-014, ¶¶ 22-23, 409	3
P.3d 1019 (concluding that there was probable cause following a report to dispatch	4
correctly identifying a vehicle’s color and location, and a potentially unlawful	5
activity: dangerous driving); State v. Contreras, 2003-NMCA-129, ¶ 5, 134 N.M.	6
503, 79 P.3d 1111 (same); Flores, 1996-NMCA-059, ¶¶ 8-9 (holding that a tip that	7
informed police of the number of vehicles, “as well as a description of the vehicles,	8
the time of departure, the direction of travel, and the destination” provided sufficient	9
justification to conduct an investigative stop).	10
{16} 	Defendant contends that the situation the officers encountered when they	11
arrived on scene presented neither danger nor evidence of a crime because the	12
“officers did not have information that the fighting was physical or that there were	13
any weapons involved” and “did not observe any fighting.” We agree that whether	14
a crime is ongoing and the level of potential danger to the public are factors to be	15
considered in assessing the reasonableness of an investigative stop. See Tidey, 2018-	16
NMCA-014, ¶ 23 (balancing the public interest against an individual’s right to be	17
free from intrusion by law enforcement). However, the fact that the officers did not	18
observe fighting and could not confirm the presence of weapons or physical violence	19
when they arrived on scene is not dispositive. See id. (holding that probable cause	20

12
existed to stop a reportedly drunk driver even though the officer did not personally	1
witness any erratic driving because “the possible danger to the public of a drunk	2
driver presents an exigent circumstance that can tip the balance in favor of a stop”).	3
In this case, officer testimony supports that the reported fight presented a danger to	4
the public justifying the stop. As Officer Romero testified, “we immediately	5
[employed] lights and sirens because life could be in danger when there’s a fight in	6
progress.” Moreover, the absence of ongoing fighting at the scene must be weighed	7
against the other facts confirmed by the officers when considering whether the	8
officers’ 	actions 	were 	justified. 	See 	Contreras, 	2003-NMCA-129, 	¶ 	5 	(“[A]	9
deficiency in one consideration can be compensated for by the strength in another	10
consideration.”). In this case, it is enough that the information provided by dispatch	11
“contained sufficient information and was sufficiently reliable to provide the	12
[officers] with reasonable suspicion that a crime was being or was about to be	13
committed” and that “the possible danger to public safety was sufficient for the	14
[officers] to conduct the . . . stop.” Id. ¶ 7. Defendant was not stopped for “vague	15
allegations of past misconduct,” as he suggests, but was instead stopped because of	16
“facts and . . . rational inferences” known to Officers Romero and Whitley that	17
criminal 	activity 	was 	possibly 	afoot. 	See 	Flores, 	1996-NMCA-059, 	¶ 	7.	18
Accordingly, we hold that the first prong of the Terry test has been met. The officers’	19
actions were justified at their inception.	20

13
B. 	The Stop Was Reasonable in Scope	1
{17} 	Turning to the second prong of the Terry test, Defendant contends that even	2
if the stop was valid, “the manner and scope of the detention here went far beyond	3
what was reasonably necessary to investigate the purported reason for the stop.”	4
Defendant argues that police were without “sufficient justification” to expand the	5
scope of the investigation because “before any inquiry into the fight was made and	6
with no evidence a fight had occurred and no aggressive conduct directed at the	7
officers, the occupants of the car were individually removed from the car, patted	8
down, cuffed, and placed in the back of police cars.”	9
{18} 	“During an investigatory stop, when an officer reasonably believes the	10
individual may be armed and dangerous, he or she may check for weapons to ensure	11
personal safety.” Flores, 1996-NMCA-059, ¶ 17. An officer’s “generalized concern”	12
when performing a traffic stop is insufficient to override “privacy considerations”	13
and perform a search for weapons. State v. Affsprung, 2004-NMCA-038, ¶ 20, 135	14
N.M. 306, 87 P.3d 1088. However, an officer’s pat-down of a defendant for weapons	15
may be justified by the “nature of the crime being investigated.” Flores, 1996-	16
NMCA-059, ¶ 17; see also Vandenberg, 2003-NMSC-030, ¶ 22 (noting that “[w]e	17
have 	previously 	made 	clear 	that 	when 	an 	officer 	is 	investigating 	inherently	18
dangerous crimes, such as burglary or robbery, or a drive-by shooting, the nature of	19
the 	crimes 	may 	be 	a 	sufficient 	predicate, 	depending 	on 	the 	totality 	of 	the	20

14
circumstances, to consider a suspect armed and dangerous subject to a protective	1
frisk for weapons” (citations omitted)); State v. Lovato, 1991-NMCA-083, ¶ 26, 112	2
N.M. 517, 817 P.2d 251 (recognizing that when police are approaching a vehicle	3
with multiple people seated within, “requiring the persons to get out of the car and	4
be subject to a protective frisk” can be a justifiable “precautionary measure[]	5
addressed to reasonable fears”).	6
{19} 	Of critical import to our analysis of the second Terry prong are the additional	7
facts leading to the removal and pat-down of the vehicle’s occupants after the initial	8
stop. Defendant’s vehicle held multiple passengers, a potentially dangerous situation	9
for the two officers. For “safety reasons just in case somebody [was] reaching for a	10
gun or something under the seats” the officers told “the subjects to keep their hands	11
where [they could] see them . . . and [Defendant] kept putting his hands inside the	12
vehicle[.]” In the circumstances of this case, Defendant’s refusal to show the officers	13
his hands justified removing the occupants from the vehicle and conducting a pat-	14
down for weapons. See State v. Talley, 2008-NMCA-148, ¶ 24, 145 N.M. 127, 194	15
P.3d 742 (holding that a defendant ignoring officer’s requests to remove his hands	16
from his pockets was a significant factor in justifying the officer’s frisk for	17
weapons); see also United States v. Johnson, 238 F. Supp. 2d 663, 667-70 (D. Del.	18
2002) (concluding that a parked-car occupant’s action of placing his hands where	19
approaching police officers could not see them in disregard of officers’ order to show	20

15
hands was grounds to conduct a weapons frisk, even in the absence of any other	1
evidence of unlawful activity). Defendant cites Affsprung, 2004-NMCA-038, ¶ 20,	2
for the proposition that a “generalized safety concern flowing from a traffic stop” is	3
“insufficient to override the Fourth Amendment.” However, the circumstances that	4
the officers encountered in this case are different than those at issue in Affsprung.	5
The defendant in Affsprung was merely a passenger in a vehicle pulled over for a	6
faulty license plate light. Id. Here, Defendant was stopped and frisked during an	7
investigation of a fight, was one of three rather than two people in a vehicle, and was	8
only pulled out of the vehicle and searched after he failed to keep his hands where	9
the officers could see them. The officers had “specific and articulable facts”	10
supporting their “assessment of danger.” State v. Sanchez, 2005-NMCA-081, ¶ 12,	11
137 N.M. 759, 114 P.3d 1075 (internal quotation marks and citation omitted). The	12
officers were not required to wait until weapons were brandished or someone was	13
injured before initiating a safety pat-down. See id. ¶ 14 (noting that “[a]n officer	14
does not need to wait until he sees the glint of steel before he can act to protect his	15
safety” (internal quotation marks and citation omitted)); accord Michigan v. Long,	16
463 U.S. 1032, 1050 (1983) (“The issue is whether a reasonably prudent man in the	17
circumstances would be warranted in the belief that his safety or that of others was	18
in danger.” (alteration, internal quotation marks, and citation omitted)). Under a	19
totality of the circumstances approach, we hold that the officers’ safety concerns	20

16
were objectively reasonable, and thus the protective pat-down of the vehicle’s	1
occupants and their detention for that purpose was justified.	2
{20} 	Defendant correctly notes that under the second Terry prong, an investigatory	3
“detention must . . . be reasonably related to the circumstances that initially justified	4
the stop, and the scope of the investigation may expand only when the officer has	5
reasonable and articulable suspicion of other criminal activity.” State v. Patterson,	6
2006-NMCA-037, ¶ 16, 139 N.M. 322, 131 P.3d 1286 (internal quotation marks and	7
citation omitted). Pursuant to this case law, Defendant contends that the officers did	8
not need to delay their investigation into the fight—the alleged reason for the stop—	9
until after all of the individuals in the car had been investigated for weapons and	10
were individually secured in police cars. Defendant argues that under the Fourth	11
Amendment, an “ ‘officer’s subsequent actions are not reasonably related in scope	12
to the circumstances that caused him to stop the vehicle if he detains its occupants	13
beyond the time needed to investigate the circumstances that caused the stop’ . . .	14
Thus, ‘[w]hether an officer’s questioning measurably extends the length of the traffic	15
stop remains the proper analysis.’ ” State v. Portillo, 2011-NMCA-079, ¶ 19, 150	16
N.M. 187, 258 P.3d 466 (quoting Leyva, 2011-NMSC-009, ¶ 21).	17
{21} 	While Defendant cites to correct law, Defendant’s application of that law to	18
the facts is misguided. It is important to clarify that the evidence which Defendant	19
seeks to suppress was found in plain sight during the removal and pat-down of the	20

17
vehicle’s occupants, and not during the subsequent inventory investigation of the	1
vehicle. See Long, 463 U.S. at 1050 (holding that if the officer “discover[s]	2
contraband other than weapons [during a legal Terry search,] he clearly cannot be	3
required to ignore the contraband, and the Fourth Amendment does not require its	4
suppression 	in 	such 	circumstances”). 	In 	examining 	whether 	the 	search 	that	5
uncovered the contraband was reasonable, the focus of the inquiry in this case is not	6
whether a search of Defendant’s vehicle at the inception of the stop was legally	7
permissible. No such search occurred until after the contraband had already been	8
found. The question is whether evidence the officers happened to see, i.e., in plain	9
view, while removing the occupants from the vehicle should be excluded. Case law	10
is clear on this point: “an officer may not exceed the scope of a protective	11
pat[-]down, and seize items not reasonably considered potential weapons. However,	12
an officer may seize incriminating evidence observed in plain view during the course	13
of a protective pat[-]down.” State v. Ochoa, 2004-NMSC-023, ¶ 8, 135 N.M. 781,	14
93 P.3d 1286 (emphasis added); see id. ¶ 9 (stating that “items may be seized without	15
a warrant if the police officer was lawfully positioned when the evidence was	16
observed, and the incriminating nature of the evidence was immediately apparent,	17
such that the officer had probable cause to believe that the article seized was	18
evidence of a crime”). Because the officers were justified in conducting a weapons	19
search prior to engaging in further investigation or questioning, we hold that the	20

18
plain-view evidence that was incidentally uncovered during this valid search need	1
not be excluded.	2
{22} 	For the reasons set forth above, we conclude that both Terry prongs are	3
satisfied, the officers’ actions were justified, substantial evidence supports the	4
district court’s findings that the search was constitutionally reasonable, and that the	5
evidence uncovered by the search is admissible. See State v. Cardenas-Alvarez,	6
2001-NMSC-017, ¶ 21, 130 N.M. 386, 25 P.3d 225; Alderete, 2011-NMCA-055,	7
¶ 14. Accordingly, we affirm the district court ruling denying Defendant’s motion to	8
suppress.	9
C. 	Defendant’s De Facto Arrest Argument	10
{23} 	Finally, Defendant argues that the aggressive manner of the stop amounted to	11
a “de facto arrest unsupported by probable cause.” The State contends defense	12
counsel’s oral motion to suppress did not fairly invoke a ruling with respect to the	13
de facto arrest issue. In contrast, Defendant argues that defense counsel’s oral motion	14
invoked a ruling from the district court that properly preserved the de facto arrest	15
issue because it challenged both the initial stop as well as its expansion. “In order to	16
preserve an issue for appeal, [the d]efendant must make a timely objection that	17
apprises the district court specifically of the nature of the claimed error and invokes	18
an intelligent ruling thereon.” State v. Garcia, 2013-NMCA-064, ¶ 37, 302 P.3d 111;	19
see also State v. Bregar, 2017-NMCA-028, ¶ 29, 390 P.3d 212 (holding that “to	20

19
preserve an issue for appeal, it must appear that the appellant fairly invoked a ruling	1
of the district court on the same grounds argued in the appellate court” (alterations,	2
internal quotation marks, and citation omitted)). In the record before us, we are	3
unable to locate any argument made by Defendant below that mentions de facto	4
arrest. Defendant only argued that the stop was “an illegal stop,” that the police	5
search expanded beyond the allegations regarding fighting, and that evidence that	6
was seized afterwards was “fruit of the poisonous tree.” While these general	7
statements preserve Defendants’ arguments with respect to the Terry prongs, we	8
disagree with Defendant’s argument that this preservation extends to the much more	9
specific claim that a de facto arrest occurred. However, in order to properly analyze	10
Defendant’s argument that he was deprived of effective assistance of counsel, we	11
address the merits of Defendant’s de facto arrest claim and proceed accordingly. As	12
we explain below, even if Defendant had properly raised his de facto arrest claim,	13
based on the record before us, Defendant would not have prevailed.	14
{24} 	“When an officer with reasonable suspicion but without probable cause	15
detains an individual in an unreasonable manner, the detention may amount to a de	16
facto arrest, rather than an investigatory detention.” State v. Skippings, 2014-	17
NMCA-117, ¶ 14, 338 P.3d 128 (internal quotation marks and citation omitted). We	18
consider the following factors in determining whether there was a de facto arrest:	19
“(1) the government’s justification for the detention, (2) the character of the intrusion	20

20
on the individual, (3) the diligence of the police in conducting the investigation, and	1
(4) the length of the detention.” Id. (internal quotation marks and citation omitted).	2
As we explained above, the officers were justified in detaining Defendant and there	3
was nothing extraordinarily intrusive about the pat-down search of Defendant. Thus,	4
we focus our attention on the last two factors.	5
{25} 	“Diligence in the investigation is key, and the expansion of the investigation	6
to look, search, or fish elsewhere is not contemplated for investigatory stops.” State	7
v. Werner, 1994-NMSC-025, ¶ 20, 117 N.M. 315, 871 P.2d 971; see id. (stating that	8
“[t]he concept of diligence has an aspect of speed or haste”). As we discussed above,	9
the pat-down of Defendant was justified for officer safety and was not unreasonably	10
expanded to investigate other crimes. And, while Defendant argues that the safety	11
pat-down and removal of the occupants from the vehicle caused undue delay and	12
prolonged detention, Defendant did not point to any evidence suggesting that the	13
removal and pat-down of the vehicle’s occupants took more time than necessary. As	14
Defendant admits “it is unclear exactly how long the seizure took.” The last two	15
factors also do not support Defendant’s contention that this was a de facto arrest.	16
III. 	Ineffective Assistance of Counsel	17
{26} 	Having ruled against Defendant with respect to his appeal of the district	18
court’s suppression ruling, we now address Defendant’s alternative argument: that	19
Defendants trial counsel was ineffective in “failing to raise [a motion to suppress]	20

21
prior to trial and failing to clearly articulate his challenge to the invalidity of the stop,	1
its expansion, or the invasive manner of it.”	2
{27} 	A defendant’s right to effective assistance of counsel is rooted in the Sixth	3
Amendment to the United States Constitution. State v. Cordova, 2014-NMCA-081,	4
¶ 6, 331 P.3d 980. To prevail on appeal, a defendant must establish that the “record	5
. . . supports a prima facie case of ineffective assistance of counsel.” Id. ¶ 7. A prima	6
facie case of ineffective assistance of counsel requires a defendant to show: “(1)	7
counsel’s performance fell below that of a reasonably competent attorney; (2) no	8
plausible, rational strategy or tactic explains counsel’s conduct; and (3) counsel’s	9
apparent failings were prejudicial to the defense.” Id. ¶ 9. “In order to satisfy the	10
reasonableness prong of the ineffective assistance of counsel test in this context, [the	11
defendant] must establish that the facts support the motion to suppress and that a	12
reasonably competent attorney could not have decided that such a motion was	13
unwarranted.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 19, 130 N.M. 179, 21	14
P.3d 1032. “We review claims of ineffective assistance of counsel de novo.”	15
Cordova, 2014-NMCA-081, ¶ 6.	16
{28} 	Defendant has not established a prima facie case of ineffective assistance of	17
counsel. As we discussed in detail above, our review of the facts in this case	18
persuades us that the filing of a written motion would not have altered the district	19
court’s ultimate ruling with respect to the suppression issue or Defendant’s related	20

22
de facto arrest claim. Consequently, Defendant has failed to show how he was	1
prejudiced by trial counsel’s failure to file a written motion to suppress. We need not	2
address the issue of a potential deficiency on defense counsel’s part, because even if	3
defense counsel’s performance was deficient, Defendant’s ineffective assistance of	4
counsel claim nonetheless fails because Defendant cannot show that he was	5
prejudiced. See Lukens v. Franco, 2019-NMSC-002, ¶ 19, 433 P.3d 288 (“There is	6
no reason for a court deciding an ineffective assistance claim to address both the	7
deficiency and prejudice components of the inquiry if the defendant makes an	8
insufficient showing on one.” (omission, alteration, internal quotation marks, and	9
citation omitted)).	10
{29} 	We note that our decision with respect to Defendant’s ineffective assistance	11
of counsel claim is necessarily based upon the record before this Court. See State v.	12
Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107 163 P.3d 494 (noting that “the record	13
before the trial court may not adequately document the sort of evidence essential to	14
a determination of trial counsel’s effectiveness” (internal quotation marks and	15
citation omitted)). Defendant may file a post-conviction petition below to present	16
this claim should he so choose. See Cordova, 2014-NMCA-081, ¶ 7 (stating that	17
“[o]ur Supreme Court has expressed a preference that ineffective assistance of	18
counsel claims be adjudicated in habeas corpus proceedings, rather than on direct	19
appeal”).	20

23
IV. 	Sufficient Evidence Supports Defendant’s Convictions	1
{30} 	Defendant argues that the State failed to present sufficient evidence to support	2
his 	convictions 	for 	possession 	of 	a 	controlled 	substance 	and 	possession 	of	3
paraphernalia. For the reasons explained below, we disagree.	4
{31} 	“When reviewing a verdict for sufficiency of the evidence, our role is to	5
determine whether a rational fact-finder could determine beyond a reasonable doubt	6
the essential facts necessary to convict the accused.” State v. Garcia, 2005-NMSC-	7
017, ¶ 12, 138 N.M. 1, 116 P.3d 72. We view “the evidence in a light most favorable	8
to the verdict, considering that the [s]tate has the burden of proof beyond a	9
reasonable doubt.” Id. “The court should not re-weigh the evidence to determine if	10
there was another hypothesis that would support innocence or replace the fact-	11
finder’s view of the evidence with the appellate court’s own view of the evidence.”	12
Id. To determine if there was sufficient evidence to support the conviction, “we	13
resolve all disputed facts in favor of the State, indulge all reasonable inferences in	14
support of the verdict, and disregard all evidence and inferences to the contrary.”	15
State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and	16
citation omitted).	17
A. 	Possession of Methamphetamine	18
{32} 	Defendant argues that the State failed to prove that Defendant was in	19
possession of methamphetamine because other passengers were in the vehicle. To	20

24
find Defendant guilty of possession of a controlled substance, the State had to prove	1
the element of possession, which Defendant asserts is unsupported by sufficient	2
evidence. See § 30-31-23(A) (“It is unlawful for a person intentionally to possess a	3
controlled substance.”); see also § 30-31-25.1(A) (“It is unlawful for a person to use	4
or possess with intent to use drug paraphernalia.”). The State was required to show	5
that Defendant knew what the controlled substance was, where it was located, and	6
that he exercised control over it. See UJI 14-3130 NMRA. However, a “person’s	7
presence in the vicinity of the drugs or his knowledge of the existence or location of	8
the drugs is not, by itself, possession.” Id. Because Defendant did not have actual	9
possession of the drugs on his person, the State had to prove that Defendant had	10
constructive possession. The State must prove constructive possession by a “rational	11
connection between the location of the drugs and [the] defendant’s probable	12
knowledge and control of them.” State v. Brietag, 1989-NMCA-019, ¶ 14, 108 N.M.	13
368, 772 P.2d 898; see also State v. Chandler, 1995-NMCA-033, ¶ 10, 119 N.M.	14
727, 895 P.2d 249 (stating that “[c]onstructive possession exists when a defendant	15
has knowledge of and control over the drugs”). However, “[w]hen exclusive control	16
is at issue, additional circumstances, including the conduct of the accused, are	17
required.” State v. Howl, 2016-NMCA-084, ¶ 31, 381 P.3d 684.	18
{33} 	The location of the methamphetamine in the vehicle along with Defendant’s	19
ownership of the vehicle and behavior during the stop, demonstrate Defendant’s	20

25
probable knowledge and control of the methamphetamine. The truck containing the	1
bag of methamphetamine was registered to Defendant, and Defendant admitted the	2
truck was his. Defendant was also driving the vehicle when it was stopped by police,	3
and the bag of methamphetamine was located near where Defendant was seated: the	4
floorboard of the driver’s side of the vehicle. Before Defendant was removed from	5
the vehicle, he “kept putting his hands inside the vehicle,” directly over the area	6
where the methamphetamine was found. After Defendant had been pulled out of the	7
vehicle, he asked one of the other passengers to “close [his] door,” on the same side	8
of the vehicle where the methamphetamine was found. These actions, taken together,	9
imply that the Defendant was attempting to hide the methamphetamine from the	10
officer. See Brietag, 1989-NMCA-019, ¶ 12 (noting that “in order to sustain [the]	11
defendant’s convictions, we must determine whether there were incriminating	12
statements or circumstances tending to support an inference that he constructively	13
possessed the drugs”). Despite the presence of other passengers in the vehicle, the	14
evidence indicates that Defendant was exercising control over the area where the	15
methamphetamine was found. See Garcia, 2005-NMSC-017, ¶ 22 (holding that	16
where an ammunition clip was found on the defendant’s seat, sufficient evidence	17
existed that defendant possessed the firearm for the ammunition clip); see also State	18
v. Lopez, 2009-NMCA-044, ¶ 27, 146 N.M. 98, 206 P.3d 1003 (holding that	19
ownership of a vehicle can provide a link between the owner and the contraband	20

26
discovered 	within). 	We 	hold 	that 	the 	State 	presented 	sufficient 	evidence 	to	1
demonstrate that the methamphetamine belonged to Defendant.	2
B. 	Evidence That the Marijuana Pipe Was Paraphernalia	3
{34} 	Defendant argues that the State failed to prove that the pipe found by Officer	4
Romero was used to ingest marijuana. To convict Defendant of possession of drug	5
paraphernalia, the State was required to prove that Defendant had possession of the	6
paraphernalia and intended to “ingest” or “inhale” a controlled substance with the	7
paraphernalia. See UJI 14-3107 NMRA. Defendant argues there was insufficient	8
evidence that the pipe was used for marijuana because the pipe “was never tested”	9
and there was no “discussion of Officer Romero’s familiarity with the smell of	10
marijuana.” However, “[l]ay opinion concerning the identification of marijuana is	11
admissible, and the qualifications of the witness go to weight and not admissibility.”	12
State v. Rubio, 1990-NMCA-090, ¶ 5, 110 N.M. 605, 798 P.2d 206. Officer Romero	13
discovered the marijuana pipe in the center console of Defendant’s vehicle, “less	14
than a hand’s reach away” from Defendant’s driver’s license. When Officer Romero	15
located the pipe, he noticed that an odor of marijuana was emanating from the pipe.	16
Both officers testified that Defendant admitted to ownership of the marijuana pipe.	17
Specifically, when Officer Romero asked Defendant, “Whose marijuana pipe is that	18
in the middle console?” Defendant replied that “it was his[.]” Therefore, we	19

27
conclude that sufficient evidence supported Defendant’s conviction for possession	1
of drug paraphernalia.	2
CONCLUSION	3
{35} 	For the foregoing reasons, we affirm.	4
{36} 	IT IS SO ORDERED.	5
_________________________________	6
BRIANA H. ZAMORA, Judge	7
WE CONCUR:	8
_________________________________	9
J. MILES HANISEE, Chief Judge	10
_________________________________	11
JACQUELINE R. MEDINA, Judge	12