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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official pa per 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. 30,339 9 DOUGLAS G. VEENSTRA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 12 George P. Eichwald, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Raul A. Lopez 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 SUTIN, Judge. 232 Defendant contends the district court improperly denied his motion to suppress. 1 We issued a calendar notice proposing to reverse, and the State filed a timely 2 memorandum in opposition, pursuant to an ex tension. We rema in unpersuaded by the 3 State’s arguments and reverse. 4 Officer Fairhurst stopped a vehicle in which Defendant wa s a passenger after 5 receiving a dispatch to an audible alarm. [DS 2; MIO 1-2] The officer did not 6 investigate the address of the alarm prio r to stopping the vehicle; he encountered 7 Defendant’s vehicle approximately a mile aw ay from the residence as he approached. 8 [MIO 2] The officer’s testimony indicates, at the time of the stop, the officer did not 9 observe the vehicle breaking any traffic laws , but rather the officer stopped the vehicle 10 because it was 3:09 a.m., and it was the onl y vehicle on the roadway in the general 11 area of the alarm. [DS 2; MIO 2] The officer had not received any information 12 specifically linking the vehicle to the alarm. [DS 4] In fact, the officer had not 13 received any information from any source regarding suspicious vehicles or suspicious 14 individuals in the area. [Id.] The alarm was later determined to be a false alarm. [DS 15 3] 16 After stopping the vehicle and approachi ng, the officer observed a yellow crow 17 bar next to Defendant . [DS 2] He also testifie d Defendant was nervous and was 18 “moving around” in the vehicle. [Id.] When the officer inquired where Defendant 193 and the driver had come from and where they were going, their responses did not 1 make sense to the officer because the road on which they were traveling was not a 2 thoroughfare to either of the locations they described. [DS 2-3] 3 The officer asked Defendant to step out of the car. [DS 3] During a patdown 4 for weapons, the officer noticed what a ppeared to be a check book in Defendant’s 5 breast pocket and asked Defendant to remove it and show it to him. [Id.] When the 6 officer opened the check book, he observed it did not belong to Defendant. [Id.] He 7 also found a license that did not belong to Defendant. [Id.] De fendant was arrested 8 and charged with four felony counts of identity theft. [Id.] 9 Defendant brought a motion to suppre ss, arguing both the seizure and the 10 subsequent search were unconstitutional. [RP 36] The district court denied the 11 motion to suppress [RP 46], a nd Defendant entered into a conditional plea agreement. 12 [RP 51] 13 The district court’s ultimate ruling on Defendant’s motion to suppress involves 14 mixed questions of fact and law. See State v. Neal , 2007-NMSC-043, ¶ 15, 142 N.M. 15 176, 164 P.3d 57. In reviewing the district court’s decision on a motion to suppress, 16 we determine “whether the law was correctly applied to the facts, viewing them in a 17 manner most favorable to the prevailing party.” State v. Jason L. , 2000-NMSC-018, 18 ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quot ation marks and citation omitted). We 194 defer to the district court’s findings of fact to the extent they are supported by 1 substantial evidence. Id. However, we “review the app lication of the law to these 2 facts, including determinations of reasona ble suspicion, under a de novo standard of 3 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 4 We will employ all reasonable presumptions in support of the district court’s ruling. 5
See Jason L. , 2000-NMSC-018, ¶ 11. We will also presume the court believed all 6 uncontradicted evidence. Id. 7 When an officer stops an automobile to investigate a possible crime, we analyze 8 the reasonableness of the stop and ensuing investigatory detention in accordance with 9 the two-part test in Terry v. Ohio

. See State v. Duran , 2005-NMSC-034, ¶ 23, 138 10 N.M. 414, 120 P.3d 836. We as k whether the stop was justified at its inception and 11 whether the officer’s actions during the st op were reasonably related to circumstances 12 that justified the stop. Id. In order for the stop to be ju stified at its inception, “[t]he 13 officer, looking at the totality of the circumst ances, must be able to form a reasonable 14 suspicion that the individual in question is engaged in or is a bout to be engaged in 15 criminal activity.” State v. Contreras , 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 16
1111. “ A reasona b le suspicion is a particularized suspicion, based on all the 17 circumstances that a particular individual, the one detained, is breaking, or has broken, 18 the law.” J ason L. , 2000-NMSC-018, ¶ 20. “[U]nsupported intuition or an 195 inarticulable hunch does not provide the basis for a reasonable suspicion.” State v. 1 Galvan , 90 N.M. 129, 132, 560 P.2d 550, 553 (Ct. App. 1977). 2 Here, we hold that the officer lacked su fficient reasonable suspicion to justify 3 the stop. While we agree with the State that we “l ook at the totality of the 4 circumstances” when evaluating whether r easonable suspicion existed at the time of 5 the stop [MIO 4], we disagree with the State that such an analysis supports the stop 6 in this case. This particular stop was not supported by a tip from a source regarding 7 a make or model of a vehicle leaving the location of the audible alarm, which might 8 have matched the vehicle in wh ich Defendant was traveling. See, e.g. , State v. 9
Urioste , 2002-NMSC-023, ¶ 17, 132 N.M. 592, 52 P.3d 964 (upholding a stop based 10 on corroborated details). [MIO 11] The officer did not have any details as to a 11 specific route that might have been taken by a suspect. See State v. Watley , 109 N.M. 12 619, 623, 788 P.2d 375, 379 (Ct. App. 1989) (upholding the stop of a defendant 13 where the defendant was the lone traveler in the immediate vicinity of the area of the 14 reported crime and the defendant was tr aveling on the road upon which a witness 15 claimed to have seen a man fleeing in a sk i mask). The officer did not observe the 16 vehicle in close proximity to the location of the alarm, but rather the vehicle was 17 observed approximately a mile away from the scene. See State v. Erik K. , 2010- 18 NMCA-040, ¶¶ 3, 11, 24, N.M. , P.3d (holding there was insufficient 196 evidence of reasonable susp icion where the defendant was found walking two blocks 1 from the report of criminal activity and the defendant and his frie nd were the only two 2 individuals in the area). Further, the o fficer did not observe Defendant exhibit any 3 suspicious behavior prior to the stop. See State v. Lackey , 2005-NMCA-038, ¶¶ 9, 14, 4 137 N.M. 296, 110 P.3d 512 (holding there was insufficient evidence of reasonable 5 suspicion where officers merely observed th e defendant twice circling the scene of an 6 accident). The only reason the officer stoppe d the vehicle in which Defendant was a 7 passenger was its relative proximity to the alarm and the time of night. This is 8 insufficient under the facts of this case. 9 We also note that we agree with th e State that reasonable suspicion may 10 sometimes be based on what later turns out to be innocent conduct [see MIO 7], 11 because reasonable suspicion is based on th e facts known to the officer at the time of 12 the stop. However, we disagree with the State that the facts in this case, taken 13 together, constitute reasonable suspicion that Defendant was engaged in criminal 14 activity at the time of the stop. [M IO 8] Reasonable suspicion requires a 15 particularized suspicion that a defenda nt was breaking or had broken the law. State 16
v. Garcia , 2009-NMSC-046, ¶¶ 44-46, 147 N.M. 134, 217 P.3d 1032 (noting that 17 merely observing a defendant walking in the vicinity of a possible crime was not 18 necessarily sufficient to su pport a reasonable suspicion that the defendant was the 197 responsible party where the officer did not have a description or prior contact to 1 independently establish the de fendant’s identity as the possible perpetrator). Here, 2 Defendant was a passenger in a car trave ling on a public roadway approximately one 3 mile from the scene of a possible crime. 4 We hold the simple act of traveling in a vehicle in the middle of the night in the 5 general area of a possible crime is not e nough to constitute reasonable suspicion that 6 the passenger was engaged in criminal activity. State v. Williams , 2006-NMCA-062, 7 ¶ 23, 139 N.M. 578, 136 P.3d 579 (“In examini ng the reasonableness of an officer’s 8 suspicion, we objectively consider the tota lity of the circumstances, including all the 9 information the officer possesse d at the time.”). We also decline the State’s apparent 10 invitation to examine authority outside of New Mexico law. [ See, e.g. , MIO 5, 7-8, 11 10] We see no reason to depart from our already developed case law in this area. 12 We therefore reverse the district cour t’s order denying the motion to suppress. 13 IT IS SO ORDERED. 14

__________________________________ 15 JONATHAN B. SUTIN, Judge 168 WE CONCUR: 1

________________________________ 2 LINDA M. VANZI, Judge 3

________________________________ 4 TIMOTHY L. GARCIA, Judge 5