II Investigatory Stops

An approach by an officer in a non-coercive manner during which the person is free to leave is a consensual encounter that does not implicate the Fourth Amendment. At the other extreme is a full-scale arrest, which must be supported by probable cause. In between these two extremes are confrontations amounting to seizures that must be justified by something less than probable cause but more than intuition or an inarticulate hunch.¹⁷ This type of intermediate encounter was defined in Terry v. Ohio, 392 U.S. 1 (1968), and is referred to as an investigatory stop.¹⁸

Requirements for a valid investigatory stop.

“An investigatory stop occurs when an officer briefly detains and investigates a person based on reasonable suspicion of criminal activity.¹⁹ Reasonable suspicion of criminal activity is “[a] particularized suspicion, based on all the circumstances that a particular individual, the one detained, is breaking or has broken the law.”²⁰ Reasonable suspicion of criminal activity must exist at the inception of the stop and cannot be based on observations made during the stop.²¹ In deciding whether to make an investigatory stop, “[o]fficers are “entitled to draw upon their experience and training and make inferences and deductions about the information available to them, but reasonable suspicion cannot be based on unsupported intuition or inarticulate hunches.”²² For example, suspicion of criminal activity based merely on the defendant’s association with a suspected drug dealer is “the type of conjecture and hunch” that is “insufficient to constitute reasonable suspicion.”²³ Rather, the suspicion must be individualized and particularized, which means the officer must be able to articulate facts that would lead a reasonable person to believe that the person being stopped is engaged or has been engaged in criminal activity.²⁴

When an officer makes a lawful investigatory stop, the officer may conduct an investigation of the circumstances that caused the stop.²⁵ Such an investigation includes asking for identification, and if the stop is of a vehicle, asking to see the driver’s license, vehicle registration and proof of insurance, as well as performing a wants and warrants check.²⁶ An officer making an investigatory stop is not required to inform the suspect that he or she has the right not to answer the officer’s questions.²⁷

However, the officer’s investigation must be reasonably related to the purpose for the stop.²⁸ For example, if an officer stops a car because he could not see a license plate or temporary tag on the back of the car, he can briefly detain the driver for the purpose of verifying or quelling his suspicion that the driver was operating a motor vehicle without the proper vehicle registration. Once that determination is made, the officer has no reason for continuing the detention. Even if the officer asks the driver if he has a gun in the car and the driver responds affirmatively,²⁹ the officer still may not detain the driver or conduct a frisk for weapons, because the acknowledgment of having a gun in the car does not give rise to reasonable suspicion of unlawful possession.³⁰

Indeed, under the New Mexico Constitution,³¹ asking the question about having a gun in the car is an impermissible expansion of the stop, unless the officer has reasonable suspicion to believe the individual has engaged in criminal activity with a gun.³²

Pretextual stops are prohibited under the New Mexico Constitution.

A pretextual stop is “a detention supportable by reasonable suspicion or probable cause to believe that a traffic offense has occurred, but is executed as a pretense to pursue a ‘hunch,’ a different more serious investigative agenda for which there is no reasonable suspicion or probable cause.”³³ For example, the New Mexico Court of Appeals held that a pretextual stop occurred when an officer, who was investigating information about drug activity at a particular address, followed an individual leaving the house and made a traffic stop after observing a traffic violation.³⁴ The stop was pretextual because the officer made the stop with the intention of determining whether the individual was connected to the suspected drug activity, and only used the traffic violation as an excuse for stopping the individual in order to continue the drug investigation.³⁵

Although pretextual stops are deemed reasonable under the Fourth Amendment,³⁶ they are considered unreasonable under Article II, Section 10 of the state constitution.³⁷ When a defendant seeks to suppress evidence obtained during a traffic stop, which he or she claims was pretextual, the trial court must examine the circumstances surrounding the stop to determine whether the stop was pretextual. In so doing, the court may consider several facts that may indicate whether the officer had a motive other than the traffic violation for making the stop.³⁸ If the evidence indicates such a motive, the State may rebut the suggestion of pretext by presenting evidence that the officer would have made the traffic stop absent the motive unrelated to the traffic violation.³⁹ A pretextual stop “violates the New Mexico Constitution, and the evidentiary fruits of the stop are inadmissible.”⁴⁰

The prohibition of pretextual stops applies only to traffic stops. Thus, a vehicle stop made for the purpose of executing an arrest warrant is not subject to the rule against pretextual stops, even if the officer suspects the defendant of other criminal activity.⁴¹ Likewise, the rule against pretextual stops does not invalidate a traffic stop by an officer who has a motive for the stop unrelated to the traffic violation, if the unrelated motive is supported by reasonable suspicion or probable cause.⁴² For example, an officer involved in the execution of a search warrant on a home, who observes a vehicle driving away from the home just prior to, or during, the execution of the warrant, may follow the vehicle and stop it based on a reasonable suspicion that the driver is involved in the drug activity on which the search warrant is based.⁴³

Expanding an investigatory stop.

The scope of an investigatory stop is limited to the reason for the stop.⁴⁴ Therefore, “all questions asked during the investigation of a traffic stop [must] be reasonably related to the initial reason for the stop. Unrelated questions are permissible when supported by independent reasonable suspicion, for reasons of officer safety, or if the interaction has developed into a consensual encounter.”⁴⁵

Thus, an officer may expand his or her investigation beyond the purpose for the investigatory stop if, during the stop, the officer obtains additional information to raise a suspicion that other criminal activity is afoot.⁴⁶ For example, if an officer stops a vehicle for a traffic violation and then observes things that raise a suspicion that the driver is intoxicated, the officer may investigate that suspicion. In such a situation, the officer’s expanded investigation is limited to the expanded suspicion.⁴⁷ Each expansion of the investigation must be based on particular, articulable facts that reasonably raise a suspicion of criminal activity.

An anonymous tip alone will not provide reasonable suspicion for an investigatory stop.⁴⁸ Officers must obtain corroboration of the anonymous tip and conduct sufficient follow-up investigation to create reasonable suspicion for an investigatory stop. The additional information must be something more than just innocent information available to the general public.⁴⁹ New Mexico courts have ruled that if innocent details contained in the anonymous tip are sufficiently corroborated by subsequent investigation to establish the tip’s reliability, there may be sufficient reasonable suspicion for an investigatory stop.⁵⁰ Fox example, if the anonymous tip provides details that the person will be leaving his house at a certain time and then will be making stops at several addresses to deliver drugs, and the police corroborate that activity by watching the person’s activities, that corroboration will be a factor that supports reasonable suspicion to make an investigatory stop. The same is true for information obtained from a confidential informant; the informant must provide information not generally available to the public that can be corroborated by the officers.⁵¹ In addition, there must be information available to the officers about the informant that indicates the reliability of the informant.⁵²

An expanded investigatory stop may become a de facto arrest.⁵³ At the point the stop becomes an arrest, it must be justified by probable cause, rather than the reasonable suspicion required for the investigatory stop.⁵⁴

“There is no bright-line test for evaluating when an investigatory detention becomes invasive enough to become a de facto arrest.”⁵⁵ Instead, New Mexico courts consider several factors, including “(1) the government’s justification for the detention, (2) the character of the intrusion on the individual, (3) the diligence of the police in conducting the investigation, and (4) the length of the detention.”⁵⁶ In so doing, the courts focus on the time between the initial investigatory stop and the discovery of contraband or other evidence.⁵⁷ Cases in which an investigatory detention did not become a de facto arrest include (1) a ten-minute detention during which the defendant was questioned outside his vehicle and officers performed a search, (2) a thirty to forty-five minute detention while officers waited for a canine unit, (3) a stop in which suspects were ordered to get out of the vehicle at gunpoint and handcuffed prior to questioning, and (4) detentions in which suspects were handcuffed upon exiting their vehicles, where officers had reasonable safety concerns.⁵⁸ Courts have also found that giving the defendant Miranda warnings prior to questioning does not transform a valid investigatory stop into a de facto arrest.⁵⁹ As for the time factor, detentions lasting as long as forty minutes have been found reasonable, but detentions lasting more than an hour, during which the officers had completed their initial investigation, were found to be de facto arrests.⁶⁰

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ENDNOTES

17 State v. Cohen, 1985-NMSC-111, ¶¶ 13-20, 103 N.M. 558, 711 P.2d 3.

18 State v. Alderete, 2011-NMCA-055, ¶ 15, 149 N.M. 799, 255 P.3d 377. 

19 State v. Ochoa, 2008-NMSC-023, ¶ 14, 143 N.M. 749, 182 P.3d 130.

20 State v. Jason L., 2000-NMSC-018, ¶ 20, 129 N.M. 119, 2 P.3d 856.

21 Id.

22 Alderete, 2011-NMCA-055, ¶ 16.

23 Id.

24 Ochoa, 2008-NMSC-023, ¶ 19 (quoting State v. Vandenberg, 2003-NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19).

25  State v. Williamson, 2000-NMCA-068, ¶ 8, 129 N.M. 387, 9 P.3d 70.

26  State v. Taylor, 1999-NMCA-022, ¶ 14, 126 N.M. 569, 973 P.2d 246.

27 State v. Javier M., 2001-NMSC-030, ¶ 19, 131 N.M. 1, 33 P.3d 1. A different rule applies when the person stopped is a juvenile. In Javier M., the Court interpreted NMSA 1978, § 32A-2-14 (1993) as providing greater protection to juveniles than adults during an investigatory stop.  While full Miranda warnings are not required, an officer questioning a juvenile during an investigatory stop must advise the juvenile of his or her constitutional right to remain silent. Javier M., 2001-NMSC-030, ¶¶ 44, 47. The advice of rights is not required if (1) the juvenile volunteers a statement without being questioned, (2) the officer is asking an “administrative” question (i.e., identity, age), or (3) the officer is asking a “general on the scene question” that is not directed at any particular suspect, or is directed at a juvenile who is not suspected of engaging in criminal activity. Id. ¶

28 Williamson, 2000-NMCA-068, ¶ 8.

29 An officer may ask such a question only if it is related to the reason for the stop. Taylor, 1999-NMCA-022, ¶ 19. For example, an officer who stops a car for littering may not ask the driver if he has guns or alcohol in the car. Id.

30 City of Albuquerque v. Haywood, 1998-NMCA-029, ¶ 17, 124 N.M. 661, 954 P.2d 93, overruled in part on other grounds by State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861. 

31 New Mexico does not follow federal precedent under the Fourth Amendment on this issue. In State v. Leyva, 2011-NMSC-009, ¶ 21, 149 N.M. 435, 250 P.3d 861, our Supreme Court recognized that, under United States Supreme Court precedent interpreting the Fourth Amendment, an officer making a valid investigatory stop may ask questions unrelated to the reason for the stop as long as the questioning does not measurably extend the length of the stop. But our Court rejected that rule under Article II, Section 10 of the state constitution. Under the New Mexico Constitution, “all questions asked during the stop [must] be reasonably related to the reason for the stop or otherwise supported by reasonable suspicion.” Id. ¶ 55 (citing State v. Duran, 2005-NMSC-034, ¶ 13, 138 N.M. 414, 120 P.3d 836). Prosecutors need to be aware of the theory under which a defendant is challenging an investigatory stop. If the defendant raises only a Fourth Amendment challenge, then federal precedent applies. If the defendant raises a challenge under Article II, Section 10 of the state constitution, then Duran and Leyva apply in determining whether an officer’s questions that were unrelated to the purpose for the stop require exclusion of evidence obtained during the stop.

32 See State v. Portillo, 2011-NMCA-074, ¶ 23, 150 N.M. 187, 258 P.3d 466.

33 State v. Ochoa, 2009-NMCA-002, ¶ 25, 146 N.M. 32, 206 P.3d 143.

34 Id. ¶¶ 43-45.

35 Id. ¶ 46.

36 Whren v. United States, 517 U.S. 806, 813 (1996).

37 Ochoa, 2009-NMCA-002, ¶ 26.

38 Id. ¶ 41. Those facts include: (1) whether the officer was in an unmarked car or was not in uniform, (2) whether enforcing traffic violations is one of the officer’s typical duties, (3) whether the officer had a hunch that other criminal activity was occurring, or had occurred, (4) the manner of the stop, including how far and for how long the officer followed the vehicle before making the stop, how many officers were present for the stop, and the demeanor and statements of the officer during the stop, (5) the relevant characteristics of the defendant, and (6) whether the reason articulated for the stop is necessary for traffic safety. Id.

39  Id. ¶ 40.

40  Id. ¶ 42.

41 State v. Peterson, 2014-NMCA-008, ¶¶ 7-8, 315 P.3d 354.

42 Alderte, 2011-NMCA-055, ¶¶ 15-18.

43 Id. ¶ 20.

44 State v. Olson, 2012-NMSC-035, ¶ 13, 285 P.3d 1066.

45 Leyva, 2011-NMSC-009, ¶ 55 (citing Duran, 2005-NMSC-034, ¶ 35).

46 Williamson, 2000-NMCA-068, ¶ 8.

47 Id.

48 State v. Prince, 2004-NMCA-127, ¶¶ 12-14, 136 N.M. 521, 101 P.3d 332; Ochoa, 2008-NMSC-023, ¶ 20.

49 State v. Bedolla, 1991-NMCA-002, ¶¶ 13-15, 111 N.M. 448, 806 P.2d 588.

50 State v. Flores, 1996-NMCA-059, ¶ 8, 122 N.M. 84, 920 P.2d 1038 (citing Alabama v. White,

496 U.S. 325, 332 (1990)).

51 State v. Skippings, 2014-NMCA-117, ¶ 12, 336 P.3d 128.

52 Id. ¶ 11.

53 State v. Werner, 1994-NMSC-025, ¶ 13, 117 N.M. 315, 871 P.2d 971; State v. Wilson, 2007-NMCA-111, ¶ 18, 142 N.M. 737, 169 P.3d 1184.

54 Skippings, 2014-NMCA-117, ¶ 14.

55 Id.

56 Id. (quoting State v. Robbs, 2006-NMCA-061, ¶ 21, 139 N.M. 569, 136 P.3d 570).

57 Id. ¶ 15. 

58 Id. ¶ 19-20 (citing cases).

59 Id.

60 Id.