January 18, 2023- State of New Mexico v. Melissa Ortega, No. A-1-CA-38836

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ________________
Filing Date: January 18, 2023
No. A-1-CA-38836
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
MELISSA ORTEGA,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	10
Cindy Leos, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
John Kloss, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Bennett J. Baur, Chief Public Defender	17
Kathleen T. Baldridge, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20
Court of Appeals of New Mexico
Filed 1/18/2023 10:48 AM

OPINION	1
YOHALEM, Judge.	2
{1} 	Defendant Melissa Ortega entered a conditional plea of guilty to a single count	3
of attempted trafficking of a narcotic, contrary to NMSA 1978, Section 30-31-	4
20(A)(3)(c) (2006). Defendant reserved her right to appeal the denial of her motion	5
to suppress evidence obtained from her vehicle during the course of an investigatory	6
stop on May 24, 2019. Defendant claims that there was no reasonable suspicion of	7
illegal activity to justify the stop and therefore, her right to be secure against	8
unreasonable searches and seizures under both the Fourth Amendment to the United	9
State Constitution and Article II, Section 10 of the New Mexico Constitution were	10
violated, requiring suppression of the evidence seized. We conclude that the police	11
officer had reasonable suspicion that Defendant had committed the felony offense	12
of aggravated fleeing a police officer six weeks earlier, on April 11, 2019, contrary	13
to NMSA 1978, Section 30-22-1.1 (2003, amended 2022). Because the stop was	14
justified by the officer’s reasonable suspicion Defendant had committed a felony	15
offense, we affirm.	16
BACKGROUND	17
I. 	The April 11, 2019 Flight Incident	18
{2} 	On April 11, 2019, Officer Forsberg of the Albuquerque Police Department	19
attempted to stop a distinctive-looking vehicle (a silver Infiniti Sedan spray-painted	20

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with purple accents), after running a license plate search and learning that there was	1
an outstanding warrant for Defendant, who was the vehicle’s registered owner.	2
Officer Forsberg was driving a fully marked police vehicle, and he engaged its lights	3
and sirens in attempting to stop Defendant’s vehicle. The driver of the vehicle fled	4
at a high rate of speed, running multiple red lights in moderately heavy traffic.	5
Officer Forsberg pursued the vehicle until it entered an industrial area, where he	6
decided it would be unsafe to continue his pursuit. Officer Forsberg did not see the	7
driver of the vehicle on that April date and therefore did not know whether	8
Defendant was driving her car.	9
II. 	The May 24, 2019 Stop	10
{3} 	About six weeks later, on May 24, 2019, Officer Forsberg saw and recognized	11
Defendant’s vehicle, based on its distinctive markings, as the vehicle that had fled	12
from his attempted stop on April 11, 2019. Officer Forsberg signaled the vehicle to	13
pull over, and it came to a stop. After he stopped the vehicle, Officer Forsberg ran a	14
license and registration check and discovered that Defendant did not have valid	15
registration or insurance.	16
{4} 	Officer Forsberg then approached the vehicle to investigate the April 11, 2019	17
incident. After asking Defendant to exit her vehicle, Officer Forsberg asked	18
Defendant if she was driving her vehicle on April 11, 2019. Defendant denied that	19
she was the driver on that date. Officer Forsberg then asked Defendant about	20

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registration and insurance, and she admitted the vehicle was not registered or	1
insured. In accordance with standard operating procedure regarding uninsured	2
vehicles, Officer Forsberg then arranged for the vehicle to be towed. Also in	3
accordance with standard procedure, Officer Forsberg initiated an inventory of the	4
contents of a vehicle in preparation for towing. During that inventory, Officer	5
Forsberg found a backpack containing a substantial amount of methamphetamine.	6
Defendant was then arrested and charged with trafficking a narcotic.	7
{5} 	Prior to trial, Defendant moved to suppress the evidence found in the	8
inventory of her vehicle. She claimed that suppression of the evidence found in the	9
search was required because Officer Forsberg’s stop, which led to the discovery of	10
the evidence, was not supported by reasonable suspicion.1
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{6} 	Following a hearing in which Officer Forsberg was the sole witness, the	12
district court denied Defendant’s motion to suppress. The district court found that	13
the April 11, 2019, flight incident was either a completed misdemeanor (resisting,	14
evading or obstructing an officer) or a completed felony (aggravated fleeing an	15
officer) and that Officer Forsberg’s suspicion that Defendant had committed either	16
1Defendant does not pursue on appeal her claim in district court that Officer
Forsberg lacked reasonable suspicion that Defendant was driving the car for which
she was the registered owner on April 11, 2019. Defendant apparently concedes that,
absent evidence to the contrary, it is reasonable for a police officer to believe that
the owner of the car is the driver. See State v. Candelaria, 2011-NMCA-001, ¶ 15,
149 N.M. 125, 245 P.3d 69.

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offense provided a reasonable basis to justify the stop “given the circumstances of	1
the incident in April 2019.”	2
DISCUSSION	3
{7} 	Defendant contends on appeal that the evidence in the district court was	4
insufficient to support the district court’s conclusion that Officer Forsberg had	5
reasonable suspicion that Defendant committed felony aggravated fleeing on April	6
11, 2019. Defendant contends that the evidence in the record supports at most	7
reasonable suspicion that Defendant committed misdemeanor resisting, evading or	8
obstructing an officer in fleeing from Officer Forsberg’s attempted stop.	9
{8} 	Most of Defendant’s brief assumes that this Court will be persuaded that the	10
April 11, 2019, fleeing incident amounted to nothing more than misdemeanor	11
fleeing. Relying on this assumption, Defendant urges this Court to adopt a	12
categorical 	rule 	that 	a 	law 	enforcement 	officer’s 	suspicion 	that 	a 	defendant	13
committed a completed misdemeanor in the past can never provide constitutionally	14
sufficient reasonable suspicion for an investigatory stop. Still relying on the	15
assumption that the incident of April 11, 2019, was a misdemeanor, Defendant asks	16
this Court to hold, in the alternative, that an officer’s reasonable suspicion for an	17
investigatory stop can be based on a completed misdemeanor only when the	18
misdemeanor presents a clear and continuing danger to the public.	19

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{9} 	Because we conclude that Officer Forsberg had reasonable suspicion that	1
Defendant 	had 	committed 	the 	felony 	offense 	of 	aggravated 	fleeing 	a 	law	2
enforcement officer on April 11, 2019, we affirm the district court’s decision	3
denying Defendant’s motion to suppress on this basis. We decline Defendant’s	4
invitation to explore the circumstances under which a completed a misdemeanor	5
offense can provide reasonable suspicion for an investigatory stop because that	6
question is not relevant to our resolution of this appeal.	7
I. 	Standard of Review	8
{10} 	A motion to suppress evidence presents a mixed question of law and fact.	9
State v. Yazzie, 2016-NMSC-026, ¶ 15, 376 P.3d 858. On review, we first determine	10
whether there was substantial evidence to support the factual findings of the district	11
court, indulging all inferences in favor of the prevailing party. Id. We review the	12
application of law to the facts de novo to determine if the officer had constitutionally	13
reasonable suspicion to justify an investigatory stop. Id.	14
II. 	The Applicable Principles of Law	15
{11} 	First, we address Defendant’s claim that Article II, Section 10 of the New	16
Mexico Constitution provides increased 	privacy protection for individuals in	17
automobiles. We reject this contention. Our case law is clear that the New Mexico	18
Constitution affords no greater protection against investigatory traffic stops than	19
does the Fourth Amendment of the United States Constitution. See Yazzie, 2016-	20

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NMSC-026, ¶ 38 (“Although we have interpreted Article II, Section 10 to provide	1
broader protections against 	unreasonable search and seizure than 	the Fourth	2
Amendment 	in 	some 	contexts, 	we 	have 	never 	interpreted 	the 	New 	Mexico	3
Constitution to require more than a reasonable suspicion that the law is being or has	4
been broken to conduct a temporary, investigatory traffic stop.” (citation omitted)).	5
Defendant provides no basis for us to reconsider our construction of the New Mexico	6
Constitution. We therefore do not address this argument further. See State v. Guerra,	7
2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that appellate courts are under no	8
obligation to review unclear or undeveloped arguments).	9
{12} 	The following principles of law apply to an investigatory stop under both state	10
and federal law. First, an investigatory stop must be justified at its inception. See	11
Yazzie, 2016-NMSC-026, ¶ 19 (providing that the first question involved in	12
assessing the reasonableness of a stop is whether the stop is justified at its inception).	13
“[An investigatory] traffic stop is justified at its inception if supported by reasonable	14
suspicion that a law has been violated,” and “[a]n officer’s reasonable suspicion	15
must be a particularized suspicion, based on all the circumstances, that a particular	16
individual, the one detained, is breaking, or has broken, the law.” Id. ¶ 20 (alteration,	17
internal quotation marks, and citation omitted). Our Supreme Court has explained	18
that “[w]e will find reasonable suspicion if the officer is aware of specific articulable	19
facts, 	together 	with 	rational 	inferences 	from 	those 	facts, 	that, 	when 	judged	20

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objectively, would lead a reasonable person to believe criminal activity occurred or	1
was occurring.” State v. Hubble, 2009-NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579	2
(internal quotation marks and citation omitted). We emphasize that the test for	3
reasonable suspicion is an objective one: “The subjective belief of the officer does	4
not in itself affect the validity of the stop; it is the evidence known to the officer that	5
counts, not the officer’s view of the governing law.” Id. (internal quotation marks	6
and citation omitted). “If police have a reasonable suspicion, grounded in specific	7
and articulable facts, that a person they encounter was involved in or is wanted in	8
connection with a completed felony, then a Terry stop may be made to investigate	9
that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985).	10
III. 	The District Court Did Not Err in Concluding That Officer Forsberg Had	11
Reasonable 	Suspicion 	That 	Defendant 	Had 	Committed 	Felony	12
Aggravated Fleeing on April 11, 2019	13
{13} 	We turn to Defendant’s claim that the district court erred in concluding that	14
the events of April 11, 2019, supported a reasonable suspicion that Defendant had	15
committed aggravated fleeing from a law enforcement officer, contrary to Section	16
30-22-1.1.	17
{14} 	Section 30-22-1.1 defines the crime of aggravated fleeing a law enforcement	18
officer as follows:	19
A. Aggravated fleeing a law enforcement officer consists of a	20
person willfully and carelessly driving a vehicle in a manner that	21
endangers the life of another person after being given a visual or audible	22
signal to stop, whether by hand, voice, emergency light, flashing light,	23

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siren or other signal, by a uniformed law enforcement officer . . . in	1
pursuit in accordance with the provisions of the Law Enforcement Safe	2
Pursuit Act . . . . [2]
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B. Whoever commits aggravated fleeing a law enforcement	4
officer that does not result in injury or great bodily hard to another	5
person is guilty of a fourth degree felony.	6
{15} 	Defendant does not argue that the evidence is insufficient to support either the	7
district court’s finding that the driver of the vehicle “willfully and carelessly [drove]	8
a vehicle in a manner that endanger[ed] the life of another person.” Nor does	9
Defendant challenge the district court’s finding that the Officer Forsberg turned on	10
his flashing lights and signaled the vehicle to pull over, or that the driver took off at	11
a high rate of speed after being given that visual and audible signal to stop.	12
Defendant claims, without citation to authority apart from the statute itself, that	13
Section 30-22-1.1 “requires pursuit and Officer Forsberg acknowledged that he did	14
not pursue [Defendant’s] car after his unsuccessful attempt to initiate a traffic stop.”	15
{16} 	Defendant does not cite to the record to support her statement that Officer	16
Forsberg acknowledged that he did not pursue Defendant’s car after he signaled the	17
car to stop. Our review of the transcript of the suppression hearing shows that Officer	18
Forsberg testified that he continued to pursue Defendant’s fleeing vehicle after	19
signaling the vehicle to stop until Defendant’s vehicle entered an industrial area,	20
2The Law Enforcement Safe Pursuit Act (LESPA) is codified at NMSA 1978,
§§ 29-20-1 to -4 (2003). The LESPA and Section 30-22-1.1 were passed as part of
the same bill by the Legislature in 2003. See 2003 N.M. Laws, ch. 260, §§ 1-6.

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where the danger of continuing a high-speed chase led him to stop his pursuit. Even	1
assuming the statute requires pursuit after an officer’s signal to stop, an issue which	2
we do not address, this evidence satisfies the requirement for substantial evidence of	3
“pursuit” after the attempted stop.	4
{17} 	To the extent Defendant is arguing that a police officer must engage in a high-	5
speed pursuit after the attempted stop in order to satisfy the statute, we agree with	6
the State that a high-speed pursuit by the officer is not a required element of the	7
offense of aggravated fleeing. Quoting our Supreme Court’s decision in State v. Vest,	8
2021-NMSC-020, ¶ 29, 488 P.3d 626, the State contends that “it is the conduct of	9
[the defendant in] fleeing the police by driving dangerously, itself, that violates the	10
aggravated fleeing statute.” We agree that aggravated fleeing does not depend on	11
whether the officer engages in a high-speed pursuit; it is the driver’s fleeing in a	12
manner that endangers the lives of others that is key.	13
{18} 	Our Supreme Court has construed our aggravated fleeing statute in Vest, see	14
id., and prior to Vest, in State v. Padilla, 2008-NMSC-006, 143 N.M. 310, 176 P.3d	15
299. Padilla provides that “[t]he scienter requirement for aggravated fleeing is	16
satisfied when the defendant flees a law enforcement officer with both: (a) the	17
knowledge that the individual [commanding a stop] is a law enforcement officer, as	18
designated by his [or her] uniform and marked vehicle, and (b) the knowledge that	19
the law enforcement officer has signaled him [or her] to stop, either by use of a visual	20

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or audible signal.” Id. ¶ 15. If the driver, while fleeing the law enforcement officer,	1
“willfully and carelessly driv[es] his [or her] vehicle in a manner that endangers the	2
life of another,” the crime of aggravated fleeing is complete. Section 30-22-1.1(A).	3
{19} 	In both Padilla, 2008-NMSC-006, ¶ 14, and Vest, 2021-NMSC-020, ¶ 26, our	4
Supreme Court specifically addressed the difference between the misdemeanor of	5
resisting and evading a police officer, which Defendant claims is the only offense	6
the evidence shows Officer Forsberg had reasonable suspicion to believe she	7
committed on April 11, 2019, and the felony of aggravated fleeing. Vest held that	8
the Legislature “elevated the misdemeanor of resisting and evading a police officer	9
to the felony of aggravated fleeing if a defendant evades a police officer by driving	10
in a dangerous manner.” 2021-NMSC-020, ¶ 26. Padilla similarly distinguishes	11
misdemeanor fleeing from aggravated fleeing based on the manner in which the	12
defendant flees the officer’s attempted stop, holding that “the Legislature created a	13
more severe punishment, a felony, when a person willfully and carelessly drives his	14
vehicle in a manner that endangers the life of another.” 2008-NMSC-006, ¶ 14	15
(alteration, internal quotation marks, and citation omitted).	16
{20} 	Because the crime of aggravated fleeing does not require that the police officer	17
engage in a high-speed chase of a defendant, we conclude that substantial evidence	18
in the record supports the district court’s conclusion that Officer Forsberg had	19
reasonable suspicion that Defendant was driving her vehicle on April 11, 2019, and	20

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that she had committed the felony of aggravated fleeing a law enforcement officer	1
on that date by fleeing Officer Forsberg’s pursuit at a high rate of speed, running	2
multiple red lights in moderately heavy traffic.	3
{21} 	We note that it is not disputed in this appeal that a reasonable suspicion of the	4
commission of a felony is sufficient to justify an investigatory stop. Therefore,	5
Officer Forsberg’s investigatory stop on May 24, 2019, was justified by his	6
reasonable suspicion that Defendant had committed the felony of aggravated fleeing	7
a law enforcement officer on April 11, 2019.	8
CONCLUSION	9
{22} 	We affirm the district court’s entry of judgment and sentence.	10
{23} 	IT IS SO ORDERED.	11
_________________________________	12
JANE B. YOHALEM, Judge	13
WE CONCUR:	14
_________________________________	15
ZACHARY A. IVES, Judge	16
_________________________________	17
MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation	18