The slip opinion is the first version of an opinion released by the Chief Clerk of the

Supreme Court. Once an opinion is selected for publication by the Court, it is

assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule

23-112 NMRA, authenticated and formally published. The slip opinion may

contain deviations from the formal authenticated opinion. 1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: __________________ 3 Filing Date: August 14, 2023 4 NO. S-1-SC-38861 5 STATE OF NEW MEXICO, 6 Plaintiff-Respondent, 7 v. 8 HUGO VASQUEZ-SALAS, 9 Defendant-Petitioner. 10 ORIGINAL PROCEEDING ON CERTIORARI 11 Fred T. Van Soelen, District Judge 12 Bennett J, Baur, Chief Public Defender 13 M.J. Edge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Petitioner 16 Hector H. Balderas, Attorney General 17 Walter M. Hart, III, Assistant Attorney General 18 Santa Fe, NM 19 for Respondent 1 OPINION 2 VARGAS, Justice. 3 {1} In this case, we address the authority of police officers under the Fourth 4 Amendment of the United States Constitution and Article II, Section 10 of the New 5 Mexico Constitution to inquire into matters unrelated to an otherwise lawful traffic 6 stop by asking for a passenger’s identifying information such as name and date of 7 birth. Because the officer’s inquiry here was permissible under both the Fourth 8 Amendment and Article II, Section 10, we affirm the district court’s denial of 9 Defendant’s motion to suppress, albeit for different reasons than those articulated by 10 the Court of Appeals. 11 I. BACKGROUND 12 {2} In the predawn hours of August 18, 2015, Officer Brice Stacy of the Clovis 13 Police Department stopped and detained the vehicle Hugo Vasquez-Salas 14 (Defendant) was riding in because it had a broken rear license-plate light, a 15 misdemeanor under the Motor Vehicle Code. See NMSA 1978, § 66-3-805(C) 16 (1978, amended 2018); NMSA 1978, § 66-8-116(A) (2014, amended 2023) (listing 17 the penalty assessment misdemeanors). As Officer Stacy approached the vehicle, he 18 saw a partially open backpack in the back seat with bolt cutters, protective 19 eyeglasses, two pairs of gloves, and a face mask later clarified at trial as a 1 “camouflage face mask that goes over the entire head, just leaving an opening for 2 the face,” sticking out of the backpack. Officer Stacy testified that he saw the tools 3 when he first approached the car because they were easy to see through the back 4 window. Although the tools alone did not initially raise his suspicion, Officer Stacy 5 testified that he became suspicious that the tools may have been burglary tools “when 6 [he] started talking to [the driver and Defendant],” because the “driver was real 7 nervous, he was showing me all kinds of signs that he was nervous, not wanting to 8 give me any kind of identifiers, [and] he seemed to be confused about his age.” 9 {3} After he determined that the driver of the vehicle was an unlicensed minor, 10 Officer Stacy asked Defendant if he had a driver’s license in an attempt to determine 11 whether Defendant could drive the vehicle. Defendant said he did not have a driver’s 12 license. Officer Stacy then asked Defendant his age, to which Defendant responded 13 that he was twenty-two. 14 {4} Turning back to the driver, Officer Stacy asked him for his first name, last 15 name, and date of birth. The driver provided Officer Stacy with an incorrect last 16 name and date of birth. It is unclear at what point Officer Stacy discovered the 17 driver’s real name. What is clear is that the driver’s stated date of birth conflicted 18 with the driver’s prior statement that he was sixteen because the driver’s stated date

2 1 of birth would have made him seventeen years old at the time of the stop. When 2 Officer Stacy returned his attention to Defendant, the following exchange took place: 3 Officer Stacy (to Defendant): What’s your first name? 4 5 Defendant: Sergio. 6 7 […] 8 9 Officer Stacy: What’s your last name? 10 11 Defendant: Vasquez. 12 13 […] 14 15 Officer Stacy: What’s your date of birth? 16 17 […] 18 19 Defendant: I’m thirty. 20 21 […] 22 23 Officer Stacy: You’re thirty? Okay. What’s your date of birth? 24 25 Defendant: ’84. 26 27 Officer Stacy: ’84? Okay. What’s your full date of birth? 28 29 Defendant: 1984. 30 31 Officer Stacy: 1984—okay, let’s start from the beginning. Give me the 32 month, the day, and then the year. What’s the month? 33 34 Defendant: October 8, 1984. 35 36 Officer Stacy: And you said you’re how old?

3 1 2 Defendant: Thirty. 3 4 Officer Stacy: And less than five minutes ago, you were twenty-two? 5 6 Defendant: Yeah, I know, I was just bullshitting you. 7 8 Officer Stacy: Okay, hang tight. 9 Defendant’s real name is Hugo Vasquez-Salas and he was twenty-eight at the time 10 of the stop. After speaking with Defendant, Officer Stacy returned to his patrol car 11 and requested backup. 12 {5} Officer Wormley, the officer who responded to Officer Stacy’s request for 13 backup, read Defendant his Miranda rights and questioned him. Defendant was 14 charged with possession of burglary tools, contrary to NMSA 1978, Section 30-16- 15 5 (1963). In the district court, Defendant asserted that Officer Stacy’s expansion of 16 the traffic stop by asking Defendant for his identifiers constituted an unlawful 17 seizure. Defendant claimed that, as a result of the unlawful seizure, he was entitled 18 to suppression of (1) “[a]ny and all evidence seized from Defendant after the 19 unlawful seizure,” (2) “[a]ny and all statements made by Defendant after the 20 unlawful seizure,” and (3) “[a]ll other fruits of the illegal questioning of Defendant.” 21 {6} Based on the evidence presented and Officer Stacy’s testimony, the district 22 court determined that Officer Stacy had “reasonable articulable suspicion to expand 23 his investigation into a burglary tools investigation” and denied the motion to

4 1 suppress. In announcing its ruling, the district court judge explained that Officer 2 Stacy’s suspicions had already been raised about the burglary tools before he asked 3 Defendant for his identifiers. The district court concluded that the totality of the 4 circumstances supported Officer Stacy’s expansion of the investigation. These 5 included the combination of the tools, the lack of evidence that the tools were used 6 as part of a job or occupation, the driver’s and Defendant’s unusual behavior, the 7 driver’s status as an unlicensed minor, and the time of day. 8 {7} At trial, the State presented witness testimony, audio and video evidence 9 including lapel video, and the items found in the backpack. Defendant was convicted 10 of possession of burglary tools. Defendant appealed to the Court of Appeals, 11 claiming, in relevant part, that the district court erred when it denied his motion to 12 suppress. Defendant relied upon State v. Affsprung, 2004-NMCA-038, ¶¶ 4, 20-21, 13 135 N.M. 306, 87 P.3d 1088, and State v. Estrada, 1991-NMCA-026, ¶¶ 10-11, 111 14 N.M. 798, 810 P.2d 817, to support his claim that the district court erred in denying 15 his motion. See State v. Vasquez-Salas, A-1-CA-37856, mem. op. ¶¶ 2, 7 (N.M. Ct. 16 App. May 17, 2021) (nonprecedential). The Court of Appeals affirmed the district 17 court, rejecting all of Defendant’s claims. Id. ¶¶ 1, 18-19. The Court of Appeals 18 reasoned that Affsprung was factually distinguishable because the officer in that case 19 had “no suspicion whatsoever of criminal activity.” Id. ¶¶ 4-5 (internal quotation

5 1 marks and citation omitted). It explained that Estrada was distinguishable because 2 the only individualized fact known to the officer in that case was a misplaced tire, 3 whereas in this case, there were many factors, including Officer Stacy’s observation 4 of multiple tools that he believed were burglary tools. Id. ¶ 7. Upon consideration of 5 Defendant’s petition, we granted certiorari. 6 II. DISCUSSION 7 {8} The question before this Court is whether Officer Stacy had reasonable 8 suspicion of criminal activity to expand the investigation beyond the initial traffic 9 stop to ask Defendant for his identifiers. 1 We first outline the appropriate standard 10 of review and proceed to examine whether Defendant’s rights were violated under 11 the Fourth Amendment of the United States Constitution or Article II, Section 10 of 12 the New Mexico Constitution. Concluding that Defendant’s rights were not violated, 13 we affirm. 14 A. Standard of Review 15 {9} Defendant claims that the district court improperly denied his motion to 16 suppress. Denial of a motion to suppress presents a “mixed question of fact and law.” 17 State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. Our review of

1

Defendant does not question, and we do not address, the validity of the initial

traffic stop or the sufficiency of the evidence to justify the stop.

6 1 the district court’s denial involves a two-step process. Id. First, we examine whether 2 substantial evidence supported the district court’s findings, “with deference to the 3 district court’s review of the testimony and other evidence presented.” Id. When the 4 district court does not issue formal findings of fact in denying a motion to suppress, 5 as in this case, we “draw from the record to derive findings based on reasonable facts 6 and inferences.” State v. Yazzie, 2019-NMSC-008, ¶ 4, 437 P.3d 182 (internal 7 quotation marks and citation omitted). “[W]e then review de novo the [district] 8 court’s application of law to the facts to determine whether the search or seizure 9 were reasonable.” Leyva, 2011-NMSC-009, ¶ 30. We have previously established 10 that when, as in this case, “there are no findings of fact and conclusions of law, an 11 appellate court will draw all inferences and indulge all presumptions in favor of the 12 district court’s ruling.” State v. Funderburg, 2008-NMSC-026, ¶ 10, 144 N.M. 37, 13 183 P.3d 922 (internal quotation marks and citation omitted). Our review is not 14 limited to the record made at the motion to suppress hearing. Instead, we “may 15 review the entire record to determine whether there was sufficient evidence to 16 support the [district] court’s denial of the motion to suppress.” State v. Johnson, 17 1996-NMCA-117, ¶ 21, 122 N.M. 713, 930 P.2d 1165; see State v. Martinez, 1980- 18 NMSC-066, ¶ 16, 94 N.M. 436, 612 P.2d 228; accord State v. Monafo, 2016- 19 NMCA-092, ¶ 10, 384 P.3d 134.

7 1 B. Reasonable Suspicion 2 {10} A traffic stop to investigate a potential violation constitutes a seizure of the 3 occupants of the vehicle under the Fourth Amendment, thereby requiring reasonable 4 suspicion. Leyva, 2011-NMSC-009, ¶ 10 (seizure); State v. Martinez, 2018-NMSC- 5 007, ¶ 10, 410 P.3d 186 (reasonable suspicion). “In analyzing whether an officer has 6 reasonable suspicion, the trial court must look at the totality of the circumstances, 7 and in doing so it may consider the officer’s experience and specialized training to 8 make inferences and deductions from the cumulative information available to the 9 officer.” Id. (internal quotation marks and citation omitted). Reasonable suspicion 10 exists when the officer becomes “aware of specific articulable facts that, judged 11 objectively, would lead a reasonable person to believe criminal activity occurred or 12 was occurring.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964 13 (internal quotation marks and citation omitted). “Suspicion of criminal activity need 14 not necessarily be of a specific crime.” Leyva, 2011-NMSC-009, ¶ 23. “Although an 15 officer’s reliance on a mere hunch is insufficient to justify a stop, the likelihood of 16 criminal activity need not rise to the level required for probable cause, and it falls 17 considerably short of satisfying a preponderance of the evidence standard.” United 18 States v. Arvizu, 534 U.S. 266, 274 (2002) (internal quotation marks and citations 19 omitted).

8 1 C. The Fourth Amendment of the United States Constitution 2 1. Defendant’s Fourth Amendment rights were not violated 3 {11} “The Fourth Amendment guarantees the right of the people to be free from 4 unreasonable searches and seizures.” Leyva, 2011-NMSC-009, ¶ 8; U.S. Const. 5 amend. IV. “Reasonableness, of course, depends on a balance between the public 6 interest and the individual’s right to personal security free from arbitrary interference 7 by law officers.” Leyva, 2011-NMSC-009, ¶ 9 (internal quotation marks and citation 8 omitted). 9 {12} The appropriate inquiry under the Fourth Amendment when the legality of the 10 initial stop is uncontested, as is the case here, is “whether an officer’s traffic stop 11 questions extended the time that a driver was detained, regardless of the questions’ 12 content.” Id. ¶¶ 17, 31 (internal quotation marks and citation omitted). Questions 13 asked by law enforcement “during a traffic stop [do not] need to be reasonably 14 related to the initial justification of the stop in order to be permissible.” Id. ¶ 18. 15 Nonetheless, the temporal limitation provided by this bright-line test requires that 16 “an investigating officer return a driver’s documents and permit the driver to depart 17 as soon as the reason for the traffic stop has been completed (unless, of course, the 18 officer has developed reasonable suspicion to conduct an investigation into other 19 criminal activity).” Id. ¶ 20. When the officer asks questions “during the time it

9 1 [takes] to reasonably complete the initial traffic investigation,” the questions are 2 constitutionally permissible. Id. ¶ 28. A de minimis detention after the completion 3 of the stop is not unreasonable and therefore does not violate the Fourth Amendment. 4 Id. ¶ 33. 5 {13} In Leyva, the officer had already completed his investigation when he asked 6 the defendant whether there were any “knives, needles, guns, or drugs” that the 7 officer needed to know about before turning the car over to a third party because the 8 defendant’s suspended license rendered him unable to drive the vehicle. Id. ¶¶ 33- 9 34 (internal quotation marks omitted). The Leyva Court held that the question was 10 permissible under the Fourth Amendment because it was a de minimis extension of 11 the stop. Id. ¶ 35. The Court reasoned that 12 [i]t would be nonsensical if we were to hold [that the officer] violated 13 [the defendant]’s Fourth Amendment rights by asking the question 14 immediately after handing him the citation, when the questions 15 undoubtedly would have been permitted if [the officer] had asked while 16 he was writing the citation or running the records check. 17 Id. ¶ 33 (second emphasis added). 18 {14} Reviewing the facts of this case under the totality of the circumstances, 19 Martinez, 2018-NMSC-007, ¶ 12, we conclude that Defendant’s rights were not 20 violated under the Fourth Amendment because Officer Stacy’s questions concerning 21 Defendant’s identifiers did not measurably extend the length of the stop. In this case,

10 1 the officer was compelled to ask Defendant additional questions to complete the stop 2 because the driver did not have a driver’s license and could not drive the car away. 3 This included questioning Defendant to determine whether he could drive the car. 4 Officer Stacy’s attempt to complete the original stop in a diligent manner made the 5 duration of the stop more reasonable. See Rodriguez v. United States, 575 U.S. 348, 6 354 (2015) (noting that, “in determining the reasonable duration of a stop, it is 7 appropriate to examine whether the police diligently pursued the investigation” (text 8 only) 2 (citing United States v. Sharpe, 470 U.S. 675, 686 (1985))). In Leyva, the 9 question was whether it was permissible for the officer to extend the stop by asking 10 questions after the initial traffic stop was complete. 2011-NMSC-009, ¶ 62. The stop 11 in this case was not an extension, but instead was part of a developing situation that 12 required Officer Stacy to determine whether Defendant was legally permitted to 13 operate the vehicle or whether the vehicle needed to be impounded. See State v. 14 Reynolds, 1995-NMSC-008, ¶ 22, 119 N.M. 383, 890 P.2d 1315 (“[T]he government 15 has a legitimate interest in making sure that all drivers are licensed.”); see also 16 Sharpe, 470 U.S. at 686 (noting that a court making a duration determination “should

2

The “text only” parenthetical used herein indicates the omission of any of the

following—internal quotation marks, ellipses, and brackets—that are present in the

text of the quoted source, leaving the quoted text itself otherwise unchanged.

11 1 take care to consider whether the police are acting in a swiftly developing situation, 2 and in such cases the court should not indulge in unrealistic second-guessing”). We 3 perceive no Fourth Amendment violation under the circumstances of this case. 4 2. Precedential value of Affsprung 5 {15} Defendant relied upon Affsprung, 2004-NMCA-038, in his motion to 6 suppress, in his briefing before the Court of Appeals, and in his briefing before this 7 Court. In Affsprung, an officer asked a passenger of a vehicle for his identifiers and 8 checked for active warrants on him while writing a traffic citation for the driver. 9 2004-NMCA-038, ¶ 2. The Affsprung Court held that the officer’s request violated 10 the Fourth Amendment because he had no suspicion of criminal activity to support 11 asking the defendant for his identifiers. Id. ¶¶ 19-21. The Court of Appeals reasoned 12 that Affsprung was factually distinguishable from the present case and did not rely 13 on it in reaching its decision. Vasquez-Salas, A-1-CA-37856, mem. op. ¶¶ 4-5. 14 {16} While properly decided under United States Supreme Court jurisprudence at 15 the time, Affsprung is in conflict with current United States Supreme Court and New 16 Mexico Supreme Court Fourth Amendment precedent. Prior New Mexico precedent 17 applying the previous Fourth Amendment analysis required that “all questions . . . 18 be reasonably related to the initial reason for the stop or supported by independent 19 and articulable reasonable suspicion.” Leyva, 2011-NMSC-009, ¶ 2. Five years after

12 1 Affsprung, the United States Supreme Court decided Arizona v. Johnson, 555 U.S. 2 323 (2009). Johnson recognized that “a passenger is seized, just as the driver is, from 3 the moment a car stopped by the police comes to a halt on the side of the road.” Id. 4 at 332 (text only) (citation omitted). That “temporary seizure of driver and 5 passengers ordinarily continues, and remains reasonable, for the duration of the 6 stop.” Id. at 333. In those instances, “[a]n officer’s inquiries into matters unrelated 7 to the justification for the traffic stop . . . do not convert the encounter into something 8 other than a lawful seizure, so long as those inquiries do not measurably extend the 9 duration of the stop.” Id. “[T]he tolerable duration of police inquiries in the traffic- 10 stop context is determined by the seizure’s mission—to address the traffic violation 11 that warranted the stop and attend to related safety concerns.” Rodriguez, 575 U.S. 12 at 354 (internal quotation marks and citations omitted). 13 {17} As relevant to Affsprung, an officer’s mission also includes the authority to 14 run background checks on passengers as an “ordinary inquir[y] incident to [the 15 traffic] stop.” Rodriguez, 575 U.S. at 355 (second alteration in original) (internal 16 quotation marks and citation omitted); see also id. at 351-52 (acknowledging a 17 police officer’s questioning and records check of a driver and passenger as part of 18 the “justification for the traffic stop”); United States v. Pack, 612 F.3d 341, 351 (5th 19 Cir. 2010) (clarifying that it is permissible for an officer to ask a passenger “to

13 1 identify himself and to run computer checks on his driver’s license and 2 background”), modified on other grounds by 622 F.3d 383 (5th Cir. 2010); United 3 States v. Rice, 483 F.3d 1079, 1084 (10th Cir. 2007) (explaining that, in addition to 4 the driver, “an officer may ask for identification from passengers and run 5 background checks on them as well”); People v. Rodriguez, 945 P.2d 1351, 1360 6 (Colo. 1997) (“During a valid traffic stop an officer may . . . run a computer check 7 for outstanding warrants so long as this procedure does not unreasonably extend the 8 duration of the temporary detention.”). The objective of these ordinary inquiries is 9 to “ensur[e] that vehicles on the road are operated safely and responsibly.” 10 Rodriguez, 575 U.S. at 355. 11 {18} Thus, as this Court explained in Leyva, in an otherwise-legal traffic stop the 12 proper inquiry under the Fourth Amendment “is whether an officer’s traffic stop 13 questions extended the time that a driver was detained, regardless of the questions’ 14 content.” 2011-NMSC-009, ¶ 17 (internal quotation marks and citation omitted). 15 When the officer asks questions “during the time it [takes] to reasonably complete 16 the initial traffic investigation,” the questions are constitutionally permissible. Id. ¶ 17 28. The Affsprung Court’s holding that the officer’s questions about a passenger’s 18 identifiers violated the Fourth Amendment because the officer had no reasonable 19 suspicion that the passenger was engaged in criminal activity or no particularized

14 1 concern about the officer’s safety, 2004-NMCA-038, ¶ 19, no longer comports with 2 our analysis in Leyva, 2011-NMSC-009, ¶ 17, or the United States Supreme Court’s 3 bright-line analysis of the Fourth Amendment in Johnson, 555 U.S. at 333, and is 4 hereby overruled. See also State v. Martinez, 2017 UT 43, ¶ 18, 424 P.3d 83 5 (explaining that Affsprung is “out of step with the interpretive [Fourth Amendment] 6 framework dictated by United States Supreme Court precedent”). Since Affsprung 7 was decided solely under the United States Constitution, we do not opine as to how 8 the facts of that case would fare under the New Mexico Constitution. 9 {19} We next consider whether Officer Stacy violated Defendant’s rights under 10 Article II, Section 10 of the New Mexico Constitution. 11 D. Article II, Section 10 of the New Mexico Constitution 12 {20} Article II, Section 10 of the New Mexico Constitution establishes that “[t]he 13 people shall be secure in their persons, papers, homes and effects, from unreasonable 14 searches and seizures . . . .” This Court has consistently recognized that “Article II, 15 Section 10 expresses the fundamental notion that every person in this state is entitled 16 to be free from unwarranted governmental intrusions, and thus identified a broader 17 protection to individual privacy under the New Mexico Constitution than under the 18 Fourth Amendment.” Leyva, 2011-NMSC-009, ¶ 53 (internal quotation marks and 19 citation omitted). Our New Mexico Constitution requires (1) “a reasonable

15 1 justification for the initial stop,” and, in contrast with the current federal bright-line 2 test under the Fourth Amendment, (2) “that all questions asked during the stop be 3 reasonably related to the reason for the stop or otherwise supported by reasonable 4 suspicion.” Id. ¶ 55 (outlining the current Article II, Section 10 test); see also id. ¶¶ 5 2-3 (recognizing the current federal bright-line test). The case-by-case approach 6 inherent under the New Mexico Constitution “comports better with the broader 7 protections provided under Article II, Section 10” and “ensures that investigating 8 officers do not engage in ‘fishing expeditions’ during traffic stops.” Id. ¶ 55. Over 9 the course of a routine traffic stop, however, reasonable suspicion may arise from 10 the “behavior of both passenger and driver.” Funderburg, 2008-NMSC-026, ¶ 18. 11 {21} Defendant in the present case does not challenge Officer Stacy’s justification 12 for the initial stop. Instead, Defendant asserts that Officer Stacy did not have 13 reasonable suspicion to expand the scope of the investigation beyond the initial 14 traffic stop to other criminal activity under Article II, Section 10. 15 {22} In support of his assertion, Defendant argues that “an innocent item in a 16 vehicle, without more, does not provide reasonable suspicion to expand the scope” 17 of the stop, citing Estrada, 1991-NMCA-026. In Estrada, “the only individualized 18 fact known by the agent that could possibly have raised his suspicions was [a] 19 misplaced spare tire.” Id. ¶ 11. Nothing “indicate[d that] the driver or his passenger

16 1 were nervous or displayed unusual behavior of any sort.” Id. The defendant and his 2 passenger provided proper residency documents, and there were “[n]o other 3 potentially suspicious factor[s] . . . mentioned in the stipulated facts.” Id. Thus, 4 “[b]ased solely on the misplacement of the spare tire, the agent directed [the] 5 defendant to the secondary area, and [the] defendant and his passenger were asked 6 to exit the vehicle while a dog sniff was performed.” Id. The Estrada Court held that, 7 although a misplaced tire may heighten an officer’s suspicion, that factor alone was 8 not so suspicious as to satisfy the reasonable suspicion standard. Id. ¶¶ 11-12. 9 {23} In contrast with the single factor in Estrada, several factors support Officer 10 Stacy’s suspicion in this case. These factors include: the time of the stop (see State 11 v. Ortiz, 2017-NMCA-006, ¶ 14, 387 P.3d 323 (concluding that an officer had 12 reasonable suspicion to conduct a brief investigatory stop premised on, in relevant 13 part, the time of day)); the backpack in the back seat containing tools, clothing, 14 protective eyeglasses, gloves, and a face mask; 3 the lack of evidence that the tools

3

Defendant, without citing the record, contends that Officer Stacy found the

face mask after the traffic stop while searching the backpack. Therefore, according

to Defendant, it is after-acquired evidence and should not be considered as a factor

in this Court’s reasonable suspicion analysis. See State v. Jason L., 2000-NMSC-

018, ¶ 20, 129 N.M. 119, 2 P.3d 856 (“The officer cannot rely on facts which arise

as a result of the encounter.”). We disagree. As an initial matter, we have previously

explained that this Court is under no duty to entertain arguments when facts are

stated without citing the record. See Santa Fe Expl. Co. v. Oil Conservation Comm’n,

1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819. Further, Defendant’s recitation

17 1 were used for a job; the driver’s and Defendant’s nervous and unusual behavior (see 2 State v. Van Dang, 2005-NMSC-033, ¶ 16, 138 N.M. 408, 120 P.3d 830 (holding 3 that the officer’s suspicion was reasonable based, in part, on the “[d]efendant’s 4 nervousness”); see also State v. Tuton, 2020-NMCA-042, ¶ 14, 472 P.3d 1214 5 (noting that demeanor is considered in weighing the totality of the circumstances)); 6 that the driver was an unlicensed minor; and that both the driver and Defendant 7 provided false identifying information. 8 {24} At the suppression hearing, Officer Stacy testified that his training and 9 experience provided a basis for his suspicion that Defendant was engaged in criminal 10 activity. Compare Van Dang, 2005-NMSC-033, ¶ 16 (discussing the importance of 11 the officer’s training and experience in forming reasonable suspicion of criminal 12 activity), with Estrada, 1991-NMCA-026, ¶ 13 (noting that the record was devoid 13 of information regarding the law enforcement agent’s experience with the alleged

of the facts is inconsistent with Officer Stacy’s testimony at the suppression hearing

that he saw the face mask through the window as he initially approached the vehicle.

The district court judge relied upon this testimony in his ruling from the bench,

explaining that “the officer stated that he had seen the backpack . . . in the back of

the seat with tools sticking out of it, including bolt cutters, gloves—two sets of

gloves—eye-protection, and a face mask of some sort.” (Emphasis added.) This

Court has previously explained that “appellate courts must afford a high degree of

deference to the district court’s factual findings” and that “[c]ontested facts are

reviewed in a manner most favorable to the prevailing party.” Yazzie, 2019-NMSC-

008, ¶¶ 13-14 (internal quotation marks and citation omitted). Therefore,

consideration of the face mask is proper.

18 1 criminal activity in that case). At trial, Officer Stacy testified that he had on-the-job 2 experience investigating fifty to one hundred burglaries, possibly more. He 3 explained that, in his experience, cutting instruments, seemingly ordinary tools, are 4 used specifically in the commission of a burglary. See Van Dang, 2005-NMSC-033, 5 ¶ 16 (quoting Brown v. Texas, 443 U.S. 47, 52 n.2 (1979) (“[A] trained, experienced 6 police officer is ‘able to perceive and articulate meaning in given conduct which 7 would be wholly innocent to the untrained observer.’”)). But Officer Stacy did not 8 rely upon his training and experience in identifying burglary tools as the sole basis 9 supporting his suspicion that Defendant was engaged in criminal activity. Instead, 10 Officer Stacy testified at the suppression hearing that he became suspicious the tools 11 may have been burglary tools only after his interactions with the driver and 12 Defendant because the “driver was real nervous, he was showing [Officer Stacy] all 13 kinds of signs that he was nervous, not wanting to give [him] any kind of identifiers, 14 [and] he seemed to be confused about his age.” Defendant also provided Officer 15 Stacy with incorrect information regarding his name, contradictory responses about 16 his age, and evasive responses as to his date of birth. In other words, Officer Stacy’s 17 training and experience allowed him to perceive and articulate meaning from the 18 combination of the tools when considered with the driver’s and Defendant’s conduct, 19 thereby raising his suspicion that Defendant was engaged in criminal activity.

19 1 {25} When making a reasonableness determination, we must “necessarily take into 2 account the evolving circumstances with which the officer was faced.” Funderburg, 3 2008-NMSC-026, ¶ 16 (text only) (quoting State v. Duran, 2005-NMSC-034, ¶ 36, 4 138 N.M. 414, 120 P.3d 836, overruled on other grounds by Leyva, 2011-NMSC- 5 009, ¶¶ 3, 17, 55 (overruling Duran on Fourth Amendment grounds while 6 “maintain[ing] the Duran standard for reviewing searches and seizures under the 7 New Mexico Constitution”)). The officer “may ask follow up questions that will 8 quickly confirm or dispel any suspicion brought on by those answers.” Duran, 2005- 9 NMSC-034, ¶ 36. “An officer’s continued detention of a suspect may be reasonable 10 if the detention represents a graduated response to the evolving circumstances of the 11 situation,” Funderburg, 2008-NMSC-026, ¶ 16, because “routine questions and 12 requests by a police officer may elicit a strange or suspicious response by a stopped 13 motorist.” Duran, 2005-NMSC-034, ¶ 36. Follow up questions “must intrude on a 14 person’s liberty as little as possible under the circumstances.” Id. “In weighing the 15 officer’s intrusion on [the d]efendant’s privacy, we should ask ourselves what other 16 actions a reasonable officer would be expected to take under similar circumstances, 17 if not those taken in this instance.” Funderburg, 2008-NMSC-026, ¶ 32. 18 {26} Here, Officer Stacy could have taken other actions to confirm or dispel his 19 suspicions, such as impounding the car because neither the driver nor Defendant was

20 1 able to legally operate it. However, as in Funderburg, none of the available options 2 “would have spared Defendant the risk of an even greater intrusion into his privacy,” 3 with the exception of Officer Stacy “simply let[ting] the car go, thereby ignoring his 4 suspicions and turning a blind eye to criminal activity.” Id. Officer Stacy asking 5 Defendant for his identifiers, the limited questioning being challenged here, was the 6 quickest and least intrusive way to confirm or dispel those suspicions. See id. ¶¶ 31- 7 32 (concluding that the officer’s actions were constitutionally reasonable when he 8 took the most simple, direct, and minimally intrusive approach by asking a brief 9 question instead of pursuing the alternative options presented). 10 {27} As in Funderburg, Officer Stacy’s actions represented a graduated response 11 to the evolving circumstances of the traffic stop. 2008-NMSC-026, ¶ 28. After it was 12 determined that the driver of the vehicle was an unlicensed minor, Officer Stacy was 13 justified in asking Defendant if he had a driver’s license in an attempt to determine 14 whether Defendant could drive the vehicle. Defendant responded that he did not 15 have a driver’s license. At this juncture, supported by his experience in investigating 16 numerous burglaries, Officer Stacy’s observations of the alleged burglary tools in 17 the back seat, the driver’s and Defendant’s nervous and unusual behavior thus far, 18 the time of day, the fact that neither the driver nor Defendant had a driver’s license, 19 and the driver’s confusion about his own age gave Officer Stacy further justification

21 1 to expand the search and satisfy his suspicion by asking Defendant’s age. 2 Defendant’s untruthful response to this question provided yet more justification for 3 Officer Stacy to ask Defendant his name and date of birth. See Leyva, 2011-NMSC- 4 009, ¶ 61 (explaining that the officer’s initial question in that case was justified and 5 that “the response to this question gave [the officer] further justification to expand 6 his search”). 7 {28} Defendant next separates the stop into discreet subparts. First, he describes 8 each tool as common, ordinary, or lawful. Defendant begins with the bolt cutters and 9 proceeds to consider the “protective goggles” and gloves, concluding that all are 10 “lawful to possess . . . absent further information about an unlawful purpose.” 11 Finally, Defendant notes that there were no reported burglaries in the area at the time 12 of the traffic stop. We have previously explained that this “‘divide-and-conquer 13 analysis’” is an improper method of evaluation for an appellate court to consider 14 when assessing whether reasonable suspicion existed. See Martinez, 2018-NMSC- 15 007, ¶ 12 (quoting Arvizu, 534 U.S. at 274). Instead, “we must review the totality of 16 the circumstances and must avoid reweighing individual factors in isolation.” Id. 17 Courts examine the totality of the circumstances because “looking at each act in a 18 series of acts . . . , taken alone, may be susceptible of an innocent explanation.” State

22 1 v. Hernandez, 2016-NMCA-008, ¶ 12, 364 P.3d 313. We therefore decline to 2 conduct a divide-and-conquer analysis. 3 {29} Defendant’s remaining arguments (1) analogizing this case to cases decided 4 under a probable cause standard, (2) relying upon cases assessing the sufficiency of 5 the evidence, and (3) contending that law enforcement would be allowed to conduct 6 fishing expeditions if “proximity to a lawful item alone” or “possession of lawful 7 items was enough to support reasonable suspicion,” are unpersuasive. We have 8 previously explained that “reasonable suspicion can arise from wholly lawful 9 conduct.” State v. Neal, 2007-NMSC-043, ¶ 28, 142 N.M. 176, 164 P.3d 57 (internal 10 quotation marks and citation omitted). Further, it is clear that, under the totality of 11 the circumstances, the facts of this case present multiple factors that supported 12 Officer Stacy’s reasonable suspicion beyond Defendant merely being in proximity 13 to, or in possession of, lawful items. Finally, for the reasons articulated in this 14 opinion, we believe our reasonable suspicion case law is sufficiently developed that 15 we need not rely upon probable cause or sufficiency of the evidence cases to answer 16 the question before us. 17 {30} Upon our review of the totality of the circumstances, we conclude that Officer 18 Stacy had reasonable suspicion of criminal activity to support the expansion of the 19 otherwise valid traffic stop under Article II, Section 10.

23 1 III. CONCLUSION 2 {31} Because Defendant’s rights were not violated under the Fourth Amendment 3 or Article II, Section 10, we affirm the district court’s denial of Defendant’s motion 4 to suppress. 5 {32} IT IS SO ORDERED. 6 7 JULIE J. VARGAS, Justice 8 WE CONCUR: 9 10 C. SHANNON BACON, Chief Justice 11 12 MICHAEL E. VIGIL, Justice 13 14 DAVID K. THOMSON, Justice

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