This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,340 9 DOUGLAS RAINY OAKES, JR., 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 John A. Dean, Jr., District Judge 13 Gary K. King, Attorney General 14 Andrew S. Montgomery, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Adrianne R. Turner, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 GARCIA, Judge. 23 Defendant appeals from the district c ourt’s judgment and sentence convicting 242 him for distribution of a controlled substance, pursuant to a conditional guilty plea. 1 In the plea agreement, the parties agreed that Defendant could reserve the right to 2 appeal the district court’s denial of hi s motion to suppress. On appeal, Defendant 3 argues that the district court erred by denying his motion to suppress on the grounds 4 that the officer lacked reasonable suspicion to stop him and that the pouch, its 5 contents, and any statements he made were obtained as a result of an illegal search and 6 seizure. We hold that Defendant abandoned the contraband and affirm the denial of 7 suppression. 8 DISCUSSION 9 When we review suppression rulings, we determine “‘wh ether the law was 10 correctly applied to the facts, viewing them in a manner most favorable to the 11 prevailing party.’” State v. Harbison , 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d 12 30 (citation omitted). “In conducting our revi ew, ‘we observe the distinction between 13 factual determinations which are subject toa substantial evidence standard of review 14 and application of law to the facts[,] which is subject to de novo review.’” Id. 15 (alteration in original) (citation omitted). 16 Although material facts were unclear at the calendaring stage of these 17 proceedings, those material facts, presente d by way of Officer Rock’s testimony at the 183 suppression hearing, are now clear and undis puted. The facts are as follows. Officers 1 Briseno and Rock were in a patrol car on duty in Farmington at 11:00 p.m. in a dark, 2 high-crime area known for methamphetamine trafficking when Officer Briseno 3 observed Defendant crossing a street. Officer Briseno made a U-turn in the patrol car, 4 which was when Officer Rock first saw Defendant. The officers watched as 5 Defendant cross the street to the sidewalk , toss an object against a chain-link fence, 6 and continue walking. Officer Briseno initially believed the discarded object was a 7 firearm, and Officer Rock saw what he believed was a square pouch. After Defendant 8 tossed the object by the fence and continued walking, the officers pulled their patrol 9 car over to the curb, engaged the emergency equipment, exited the car, and called 10 Defendant over to the vehicle. 11 Officer Rock observed a pocketknife s ticking out of Defendant’s pants pocket, 12 removed it, and patted down Defendant. The officers read Defendant his Miranda 13 rights and questioned him about the object th ey saw him discard. Defendant denied 14 that he threw an object. Officer Rock th en retrieved the object, which he identified 15 as a black pouch, found where he saw Defendant toss it against the chain-link fence. 16 When the officers showed Defendant the retrieved pouch, he again stated that it was 17 not his and that he had never possessed it. Thereafter, the officers opened the pouch 184 and found methamphetamine and drug paraphernalia. The officers then proceeded to 1 arrest Defendant. 2 The Defendant’s brief in chief acknowle dges that the testimony of Officer Rock 3 established that the officers engaged their emergency lights after Defendant tossed the 4 pouch at the fence; however, Defendant continues to maintain without record support 5 that he was seized before he allegedly dropped the pouch. This argument is being 6 pursued under the demands of State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 7 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). 8 The moment at which Defendant was sei zed is the pivotal determination to be 9 made in this case, because “if Defendant wa s not seized at the time he discarded the 10 contraband, then the evidence would be considered abandoned and Fourth 11 Amendment protections would not apply.” Harbison , 2007-NMSC-016, ¶ 10. 12 Similarly, if the officers seized Defendant before he discarde d the contraband, then 13 we would need to determine whether th e abandonment of property was the result of 14 an illegal seizure. See State v. Ingram , 1998-NMCA-177, ¶¶ 10-12, 126 N.M. 426, 15 970 P.2d 1151. “The distincti on between coerced discard [of evidence] as a result of 16 an illegal search or seizure and abandonment [of evidence] prior to an illegal police 17 search or seizure is one of voluntariness.” Id. ¶ 15. 185 “[A] seizure occurs whenever a police offi cer accosts an individual and restrains 1 his freedom to walk away.” Harbison , 2007-NMSC-016, ¶ 11 (internal quotation 2 marks and citation omitted). “Our courts have held that a restraint on a person’s 3 freedom . . . can result either from the app lication of physical force or by a showing 4 of authority.” Id. “When determining whether a pers on is seized we consider ‘all of 5 the circumstances surrounding the incident’ in order to determine whether ‘a 6 reasonable person would have believed that he [or she] was not free to leave.’” State 7 v. Jason L. , 2000-NMSC-018, ¶ 15, 129 N.M. 119, 2 P.3d 856 (alteration in original) 8 (citation omitted). Factors relevant to whether “a reasonable person would feel free 9 to leave . . . [include the following]: (1 ) the conduct of the police, (2) the person of 10 the individual citizen, and (3) the physi cal surroundings of the encounter.” Id. 11 (internal quotation marks and citation omitted). 12 In the current case, the police patrol car made a U-turn at about thirty feet away 13 from Defendant at the time Defendant crossed the street and discarded the pouch. The 14 emergency lights on the patrol car were not engaged and the officers did not contact 15 Defendant in any way at the moment Defendant threw away the pouch. There is no 16 evidence of physical force, restraint, a show of authority or any other basis to indicate 17 that Defendant was seized at the time he discarded the pouch. See Jason L. , 2000- 186 NMSC-018, ¶ 15. Defendant wa s free to leave and, indeed, continued to walk in the 1 opposite direction of the patrol car when he tossed the pouch. For these reasons, we 2 conclude that Defendant voluntarily abandoned the pouch before any seizure or search 3 took place. As a consequence, Defendant ’s Fourth Amendment protections are not 4 applicable to the abandoned pouch and its c ontents, and the district court properly 5 found no reasonable basis to suppress the evidence. See Harbison , 2007-NMSC-016, 6 ¶ 10. 7 CONCLUSION 8 For the reasons stated in this opinion, we affirm the district court’s denial of 9 Defendant’s motion to suppress the ab andoned pouch containing methamphetamine 10 and drug paraphernalia. 11 IT IS SO ORDERED. 12

______________________________ 13 TIMOTHY L. GARCIA, Judge 14 WE CONCUR: 15

________________________________ 16 JONATHAN B. SUTIN, Judge 17

________________________________ 187 RODERICK T. KENNEDY, Judge 1