This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3
v. No. 33,838 4 LEROY MILLER, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15
MEMORANDUM OPINION 162 WECHSLER, Judge. 1 {1} Defendant appeals from the denial of his motion to suppress following entry of 2 a no contest joint conditional plea and dispos ition agreement wherein he reserved the 3 right to bring this appeal. [RP 103] This Court issued a calendar notice proposing to 4 affirm the district court’s denial of De fendant’s motion to s uppress. Defendant has 5 filed a memorandum in opposition to this Court’s notice of proposed disposition, 6 which we have duly considered . Unpersuaded, we affirm. 7 {2} In this Court’s calendar notice, we notedthat “[l]aw enforcement officers must 8 give a suspect Miranda[ v. Arizona , 384 U.S. 436 (1966)] warnings when the suspect 9 is the subject of a ‘custodial interrogati on.’” [CN 3] We noted that, “[i]n order to 10 establish that an individual is in custody for Mirandapurposes, ‘the court must apply 11 an objective test to resolve the ultimate inqui ry: was there a formal arrest or restraint 12 of freedom of movement of the degree a ssociated with a formal arrest.” [CN 3 13 (quoting State v. Wilson , 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184)] We 14 proposed to conclude that the facts surrounding Defendant’s interaction with the 15 police were insufficient to rise to the le vel of a custodial interrogation. [CN 3-4] 16 {3} In response, Defendant takes issues with this Court’s notice of proposed 17 disposition on the ground that he is not ar guing that he was not properly advised of 18 his Mirandarights, but that the officers failed to get a valid waiver. [MIO 3] However, 193 we note that this distinc tion makes little difference if Mirandadoes not apply because 1 Defendant was not subject to a custodial interrogation. 2 {4} Defendant’s memorandum in opposition does not identify sufficient facts to 3 demonstrate that a custodial interrogation occurred. See, e.g. , State v. Olivas , 2011- 4 NMCA-030, ¶¶ 11–12, 149 N.M. 498, 252 P.3d 722 (concluding that the defendant 5 was subject to a custodial interrogation after being handcuffed, placed in the back of 6 a marked police car, transported to the districtattorney’s office, interrogated in a small 7 room with the door closed, where two officer s were present at all times, and one sat 8 between the defendant and the door); State v. Bravo , 2006-NMCA-019, ¶¶ 12–13, 9 139 N.M. 93, 128 P.3d 1070 (holding that a tw o-hour interrogation did not constitute 10 a custodial interrogation when the accused drove to the police station in her own 11 vehicle, was not placed in handcuffs or to ld that she was under arrest, did not inform 12 the officers that she was tired during the two-hour interrogation, and was permitted 13 to drive home after the interrogation). We th erefore conclude thatDefendant has failed 14 to point out any actual errors in fact or in law with this Court’s notice of proposed 15 disposition. See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 16 683 (“Our courts have repeatedly held th at, in summary calendar cases, the burden is 17 on the party opposing the proposed disposition to clearly point out errors in fact or 18 law.”). 194 {5} Moreover, to the extent Defendant continues to argue that the police 1 questioning him about possible criminal activitygave rise to a custodial interrogation, 2 as we pointed out in our calendar notice, this fact, without more, is insufficient to 3 constitute a custodial interrogation. Cf. State v. Sanchez , 2001-NMCA-109, ¶ 22, 131 4 N.M. 355, 36 P.3d 446 (stating that “[t]he roadside questioning of a motorist pursuant 5 to a routine traffic stop does not constitute custodial interrogation” (internal quotation 6 marks and citation omitted)); Armijo v. State ex rel. Transp. Dep’t , 1987-NMCA-052, 7 ¶ 6, 105 N.M. 771, 737 P.2d 552 (“Mirandawarnings are required after a traffic stop 8 only if defendant can ‘demonstrate that, at any time between the initial stop and the 9 arrest, he was subjected to restraints comp arable to those associated with a formal 10 arrest.’”(citation omitted)). 11 {6} For the reasons stated above and in this Court’s notice of proposed disposition, 12 we affirm Defendant’s conviction. 13 {7} IT IS SO ORDERED. 14

_________ _______________________ 15 JAMES J. WECHSLER, Judge 16
WE CONCUR: 17

________________________________ 18 RODERICK T. KENNEDY, Judge 195 ________________________________ 1 TIMOTHY L. GARCIA, Judge 2