IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 29,124 4 STEPHEN MCCORKLE, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Charles W. Brown, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Anne Kelly 11 Albuquerque, NM 12 for Appellant 13 Hugh W. Dangler, Chief Public Defender 14 Santa Fe, NM 15 for Appellee 16

MEMORANDUM OPINION 17 KENNEDY, Judge. 18 The State appeals the district court’s order granting Defendant’s motion to 19 suppress. [MIO 1] We proposed to affirm in a notice of proposed summary 20 disposition, and the State has filed a timely memorandum in opposition. Remaining 212 unpersuaded by the State’s memorandum, we affirm the order granting the motion to 1 suppress. 2 The district court’s ruling on Defendant’s motion to suppress presents a mixed 3 question of law and fact. State v. Urioste , 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 4 P.3d 964. On appeal, we defer to the distri ct court’s findings of fact as long as they 5 are supported by substantial evidence. See State v. Jason L. , 2000-NMSC-018, ¶ 10, 6 129 N.M. 119, 2 P.3d 856. We then review denovo the district court’s application of 7 law to those facts. State v. Affsprung , 2004-NMCA-038, ¶ 6, 135 N.M. 306, 87 P.3d 8 1088. 9 Based upon the information contained in the docketing statement and 10 memorandum in opposition, we understand that the following testimony was 11 introduced at the suppression hearing. Offi cer Rice testified that he stopped a vehicle 12 at 9:30 p.m. for operating without active headlights. [MIO 3; DS 2] He thought it 13 suspicious that the vehicle came to a stop w ithin one foot of another vehicle. [DS 2] 14 Officer Rice testified that, after stopping th e vehicle, he observed that the driver 15 was disoriented, and he susp ected her of being under the in fluence of alcohol or drugs. 16 [MIO 3; DS 2] He asked the driverand the passenger, Defendant, for their 17 identification. [MIO 3; DS 2] Hethen ran a warrants check on Defendant’s 18 information and learned that Defendant had an outstanding warrant. [MIO 3; DS 3] 193 Rice arrested Defendant and during a pat-down search pursu ant to arrest, discovered 1 alleged drug paraphernalia and controlled substances. [M IO 3; DS 3] Rice testified 2 that he requested Defendant’s identifying information to record his presence as a 3 witness to the suspected crime of driving under the influence (DWI) and to determine 4 Defendant’s driver’s license status in case th e vehicle would be released to him. [MIO 5 3; DS 3] 6 Defendant moved to suppress the evidence contending that, as a passenger in 7 a vehicle, the officer was not justified in requesting his identification because he had 8 no suspicion that Defendant was involved in criminal activity. [RP 32] The district 9 court agreed, rejected the State’s proposed fi ndings of fact and conclusions of law, and 10 granted Defendant’s motion to suppress. [RP 49-50] 11 On appeal, the State contends that the district court erred in granting 12 Defendant’s motion to suppress because: (1 ) the Fourth Amendment does not prohibit 13 an officer from asking for a passenger’s identification as long as the request does not 14 prolong the detention; (2) even if officer s are usually required to have reasonable 15 suspicion before seeking a passenger’s id entifying information, the officer was 16 justified in requesting the information in this case; and (3) the arrest warrant removed 17 the taint from any unlawful seizure. [MIO 1-2] We disagree and affirm. 18 Turning to the State’s second contention first, we noted in our notice of 194 proposed summary disposition that a traffic stop is not a consensual encounter, but a 1 seizure of the vehicle and its occupants. See State v. Rubio , 2006-NMCA-067, ¶ 11, 2 139 N.M. 612, 136 P.3d 1022. Therefore, as king for identifying information from 3 Defendant constituted a detention. [DS 3] See Affsprung , 2004-NMCA-038, ¶¶ 16-17 4 (rejecting the notion that a passenger would f eel free to leave duri ng a routine traffic 5 stop, particularly after being asked for identification). In its memorandum in 6 opposition, the State no longer disputes that the request for Defendant’s identification 7 constituted a detention. [MIO 5-6] 8 This Court has previously held that an officer cannot request identification from 9 a passenger unless the officer can point to reasonable and articulable suspicion that 10 the passenger is involved in criminal activ ity or the officer has a particularized 11 concern for officer safety. Id. ¶¶ 19-20; see Rubio , 2006-NMCA-067, ¶ 16. In Rubio , 12 this Court recognized that an officer may al so expand his investigation to include the 13 passenger if the passenger is implicated in the investigation related to the initial stop. 14 See 2006-NMCA-067, ¶ 16. 15 In Affsprung , an officer conducting a routine traffic stop asked a passenger for 16 his identifying information and used the information to run a warrant check. 2004- 17 NMCA-038, ¶ 2. Because the officer had no reasonable suspicion or particularized 18 concern about officer safety, we concluded that the officer did not have a legitimate 195 basis for requesting the pa ssenger’s identification. Id. ¶¶ 19-21. Thus, the officer’s 1 request for the passenger’s id entification and the use of that information to run a 2 warrant check in connection with the tr affic violation constituted an unlawful 3 detention. Id. 4 In contrast to our holding in Affsprung , this Court decided in Rubio that the 5 officer was justified in asking for a pa ssenger’s identification and then running a 6 computer check specifically because the request was reas onably related to the initial 7 stop. See 2006-NMCA-067, ¶¶ 18-20. In Rubio , an officer stopped a vehicle after 8 observing that the driver wa s not wearing a seatbelt. Id. ¶ 3. After the driver had a 9 difficult time producing his driver’s license, re gistration, and insurance, the driver told 10 the officer that the owner was a passenger in the vehicle. Id. ¶ 4. The officer asked 11 the passenger-owner for his identification and ran a check on him, which revealed an 12 outstanding warrant. Id. On appeal, we concluded that the officer had a legitimate 13 reason to determine whether the passenger was the registered owner and had 14 insurance. Id. ¶ 8. Because the passenger was the ow ner of the vehicle, this Court 15 held that asking for his identification and the vehicle’s registration was reasonably 16 related to the initial stop and running the wants and warrant check was a justified, de 17 minimis intrusion. Id. ¶¶ 8, 18-20. 18 In our notice of proposed summary disposition, we applied Affsprungand 196 proposed to hold that Officer Rice did not have reasonable suspicion to detain 1 Defendant merely because he was a passenger in a vehicle being detained for 2 suspicion of DWI. [DS 3] 2004-NMCA-038, ¶¶ 19-21. We proposed to affirm the 3 suppression order because there was no evidence supporting a reasonable and 4 articulable suspicion that Defendant was involved in criminal activity, no showing of 5 a particularized concern for officer safety, and no evidence indicating that Defendant 6 was implicated in the investigation related to the initial stop. 7 The State argues that Affsprung does not apply in this case because Officer Rice 8 had a sufficient, independent justificati on for requesting Defendant’s identification 9 that was “reasonably related to his inve stigation and which did not prolong the 10 seizure.” [MIO 2, 10-14] The State contends that unlike Affsprung , the officer in this 11 case requested Defendant’s identification to identify him as a potential witness to the 12 crime of DWI and to determin e if Defendant had a valid driver’s license and could 13 take custody of the vehicle if the driver was arrested. [MIO 2-3, 10, 13] It contends 14 that in this case, as in Rubio , the officer had a specific reason to request the 15 passenger’s identification. [MIO 12] We disagree. 16 As an initial matter, we note that the State submitted proposed findings of fact 17 and conclusions of law on this issue which the district court specifically rejected in its 18 order. [RP 50] “When a trial court rejects proposed findings of facts or conclusions 197 of law, we assume that said facts were not supported by sufficient evidence.” State 1 ex rel. King v. UU Bar Ranch Ltd. P’ship , 2009 -NMSC- 010, ¶ 44, ___ N.M. ___ 2 , ____ P. 3d ____. More to the point, “[f]ailure of a district court to make a finding 3 of fact is regarded as a finding against th e party seeking to establish the affirmative. 4 Landskroner v. McClure , 107 N.M. 773, 775, 765 P.2d 189, 191 (1988). We defer to 5 the district court’s findings of fact on factual matters, here indicating that the officer’s 6 testimony as to the grounds for asking for De fendant’s identification was not believed 7 by the district court, [MIO 3; RP 49] See Jason L. , 2000-NMSC-018, ¶ 10. 8 Moreover, even if the district court did find the officer’s testimony creditable 9 as to the reasons he asked Defendant for id entification, we disagree that these reasons 10 provide sufficient justification given that there was no testimony suggesting that the 11 driver asked the officer to find another driver for the vehicle, that the officer inquired 12 into whether Defendant could drive, [MIO13] or that there was any testimony or 13 evidence to suggest that Defendant owned the vehicle or might exercise any control 14 over it. It also does not appear that th ere was even any evidence regarding whether 15 the driver was actually arrested for DWI. Further, the information sought was more 16 than needed to put Defendant on a witne ss list, but just enough to run a warrants 17 check. All of these favor our view th at the district court acted properly. 18 In Rubio , the passenger was the owner of th e vehicle and therefore responsible 198 for assuring that the vehicle was properly re gistered and insured, and responsible for 1 giving permission to the driver to operate the vehicle. 2006-NMCA-067, ¶¶ 18-19. 2 The defendant’s status as owner of the vehicle led this Court to conclude that he “was 3 not a passenger who was there solely by virtue of the co incidence he was a passenger 4 in the vehicle.” Id. ¶ 18 (internal quotation marks and citation omitted). 5 After considering the holdings and analysis in Affsprung and Rubio , we 6 conclude that this case is distinguishable from Rubioand controlled byAffsprung. 7 Therefore, Officer Rice was not justif ied by an independent reason to detain 8 Defendant by asking for his identification, and the State’s attempt to justify detention 9 of Defendant based upon the investigation of the driver for DWI runs contrary to the 10 holding and analysis of Affsprung

. See 2004-NMCA-038, ¶ 20 (stating that a 11 defendant’s mere presence in the stopped vehicle, when the officer had no reasonable 12 suspicion of criminal activity or danger from weapons, does not justify a request for 13 identification and use of that information to conduct a warrant check on the 14 defendant). 15 Finally, we are not persuaded by the St ate’s reliance on our Supreme Court’s 16 opinion in State v. Duran , 2005-NMSC-034, 138 N.M. 414, 120 P.3d 836, in support 17 of its argument that the officer was justifie d in determining Defendant’s identity as “it 18 was related to his investigation of the driver.” [MIO 14] The issue facing the 199 Supreme Court in Duranwas “whether a police offi cer’s questioning of a stopped 1 motorist about her travel plans exceeded the permissible scope of a search and seizure 2 under the Fourth Amendment.” Id. ¶ 1. The Court held th at asking a driver questions 3 about travel plans was reasonably related inscope to the initial justification for the 4 traffic stop. Id. ¶ 42. 5 The State is correct that in Duran , the officer requested the driver’s license of 6 the passenger and ran a warrant check. [MIO 14] See id. ¶¶ 4, 8. However, the 7 Duran Court was not asked to consider the issue addressed in Affsprungof whether 8 a law enforcement officer’s request for a passenger’s identifying information during 9 a routine traffic stop constituted an unlaw ful detention under the Fourth Amendment. 10 See 2004-NMCA-038, ¶¶ 19-21. Therefore, it did not hold that running a warrant 11 check on a passenger’s license during a routine traffic stop was not a Fourth 12 Amendment violation and we will not consider it as support for that proposition. See 13 State v. Rodarte , 2005-NMCA-141, ¶ 18, 138 N.M. 668, 125 P.3d 647 (observing that 14 cases are not authority for propositions not considered). 15 In addition to arguing that Affsprung does not apply to the circumstances in this 16 case, the State contends in its memorandum in opposition that Affsprung has been 17 “effectively overruled” by the United States Supreme Court in Arizona v. Johnson , 18 129 S. Ct. 781 (2009). [MIO 2, 7-10] We are unpersuaded that the decision in 1910 Johnsonwarrants reversal in this case for two reasons. 1 First, the State characterizes the decision in Johnsonas standing for the 2 proposition that an officer may inquire into matters unrelated to the justification for 3 a stop as long as these inquiries do not measurably extend the duration of the stop. 4 [MIO 7] However, our review of the Johnson opinion indicates that the Court was 5 only considering whether and when an o fficer may frisk a passenger based upon safety 6 concerns, not when an officer may ask a passenger for identification or otherwise 7 question the passenger about matters unrel ated to the reason for the stop. Id. at 784. 8 In Johnson , officers were suspicious that th e defendant/passenger was involved in 9 gang activity based upon the de fendant’s clothing, the ne ighborhood, and the fact that 10 the defendant had a scanner in his pocket which was indicative of criminal activity. 11 Id. at 785. The defendant volunteered that he was from a town known to be the home 12 of a gang and volunteered that he had served time in prison for bank robbery. Id. The 13 officers asked the defendant to step out of the car for further questioning and then 14 searched him for weapons because they susp ected that the defendant might be armed. 15 Id. The defendant sought to suppress the gun as a fruit of an unlawful search, and the 16 Supreme Court affirmed the district court’s denial of the motion to suppress. Id. at 17 785-88. 18 In Johnson , the Court focused on the o fficer’s safety concerns. See id. at 788, 1911 n. 2 (noting that the Arizona Court of Appeals had assumed “without deciding that 1 [the officer] had reasonable suspicion that [the defendant] was armed and dangerous” 2 and then stating that it would not foreclose the Arizona appellate court’s 3 “consideration of that issue on remand”). Officer safety wa s not an issue in this case 4 and under Affsprung , an officer is entitled to questi on or pat-down a passenger if such 5 actions are necessary due to safety concerns. See Affsprung , 2004-NMCA-038, ¶¶ 19- 6 20 (requiring a particularized concern for offi cer safety to justify a request from the 7 passenger). This is consistent with the holding in Johnson

. 8 Furthermore, to the extent Johnson does stand for the proposition that no 9 additional justification is needed under the Fourth Amendment as long as the officer’s 10 inquiries do not prolong the stop, the State failed to preserve this argument by raising 11 it to the district court. [MIO 9; RP 42-48] See Rule 12-216 (A) NMRA (stating that, 12 in order to preserve a question for review, “it must appear that a ruling or decision by 13 the district court was fairly invoked”); State v. Varela , 1999-NMSC-045, ¶ 25, 128 14 N.M. 454, 993 P.2d 1280. In order to preserve its argument, the State must have 15 alerted the district court to the theories on which it relied in support of its argument 16 against suppression. See State v. Harrison , 2000-NMSC-022, ¶ 27, 129 N.M. 328, 7 17 P.3d 478; cf. State v. Lucero , 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986) 18 (noting that to preserve issue for appeal , defendant must make timely objection that 1912 specifically apprizes trial court of nature of error). It does not appear that the State 1 raised the contention that the officer coul d request Defendant’s identification as long 2 as it did not prolong the stop. [RP 42-48] Therefore, even if Johnsonsupports this 3 proposition, we decline to consider it due to lack of preservation. See Harrison , 2000- 4 NMSC-022, ¶ 29; cf. In re Aaron L ., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 5 431 (noting that an appellate court will only consider issues raised in the trial court 6 and issues involving matters of jurisdictional or fundamental error). 7 Finally, the State argues that “the existe nce of a valid arrestwarrant dissipated 8 any taint from the allegedly unlawful seizure of Defendant.” [MIO 2, 14-19] They 9 have not shown where this wa s raised below, [RP 42-48] and we decline to consider 10 it. See Harrison , 2000-NMSC-022, ¶ 29; cf. In re Aaron L ., 2000-NMCA-024, ¶ 10. 11 However we also note that, even if this issue had been preserved, we would 12 nonetheless affirm because in Affsprung , the defendant was also arrested pursuant to 13 an outstanding warrant, and we nonetheless he ld that her unlawful detention tainted 14 the evidence. 2004-NMCA-038, ¶¶ 3, 19-20. Therefore, we hold that the evidence 15 was correctly suppressed in this case as well. 16

CONCLUSION 17 For the foregoing reasons as well as those set forth in our notice of proposed 18disposition, we affirm the order gr anting Defendant’s motion to suppress. 1 IT IS SO ORDERED. 2

___________________________________ 3 RODERICK T. KENNEDY, Judge 4 WE CONCUR : 5

___________________________ 6 JONATHAN B. SUTIN, Judge 7

___________________________ 8 CELIA FOY CASTILLO, Judge 9