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

v. No. 29,174 4 MELISSA BENAVIDEZ, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Robert M. Schwartz, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Max Shepherd, Assistant Attorney General 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 suppressing evidence pursuant to 19 NMSA 1978, Section 39-3-3(B)(2) (1972). This Court issued a calendar notice 20 proposing to affirm and the State res ponded with a memorandum in opposition which 21 we have duly considered. For the reasons discussed below, we affirm. 222 BACKGROUND 1 Officer Ficke was dispatchedto a motel to investigate a report of a suspicious 2 person. [DS 2] On arrivi ng at the motel, the officer noticed three young girls playing 3 in the parking lot next to a vehicle. [Id.] The officer asked an unidentified man 4 whether he knew the children, and the man indicated that the ch ildren’s mother was 5 in Room 110. [Id.] The officer located Defendant outside of Room 110, asked her for 6 her name and asked her where her children were. [DS 2-3] Defendant initially asked 7 the officer “why,” but when asked again id entified herself as Melissa Benavidez and 8 stated that she believed her children wereoutside. [DS 3] The officer asked 9 Defendant for identification, which Defendant indicated wa s in her purse inside her 10 motel room. [Id.] The offi cer accompanied Defendant to get a key from the desk and 11 went to her motel room to check her identification. [Id.] 12 Upon arriving at the room, Defendant i mmediately retrieved her identification 13 from her purse and presented it to the officer ; however, the officer testified that the 14 manner in which Defendant re trieved her identification caught his attention, because 15 she did so in a manner that prohibited the officer from seeing inside her purse. [Id.] 16 The officer testified that he demanded to look in the purse and Defendant refused. 17 [Id.] The officer further testified that De fendant appeared nervous and was clutching 18 her purse tightly. [Id.] The officer re quested that Defendant accompany him outside 19 and had Defendant walk in front of him out of concern for his safety, because he 20 feared she might have a weapon in her purse. [Id.] 21 The officer testified he noticed Defe ndant was hugging her purse tightly, was 223 concerned for his safety, and ordered Defendant to give him the purse so he could 1 check for weapons. [DS 4] Defendant again refused. [Id.] When the officer tried to 2 take the purse from Defendant, she turn ed away. [Id.] The officer grabbed 3 Defendant’s arm, applying pressure to her elbow and wrist, and took the purse from 4 Defendant. [Id.] The offi cer searched the purse and found a digital scale and two 5 small baggies with white residue. [Id.] Th e district court issued an order suppressing 6 this evidence on the grounds th at the facts articulated by the officer — Defendant’s 7 nervousness, clutching of her purse, and refu sal to consent to the search of her purse 8 — were insufficient to permit the officer to search Defendant’s purse out of concern 9 for his safety. [RP 54] The State appeals. 10 DISCUSSION 11 This Court issued a calendar notice in which we proposed to affirm the district 12 court’s order suppressing evidence obtained from a search of Defendant’s purse. In 13 response, the State relied on State v. Chapman , 1999-NMCA-106, 127 N.M. 721, 986 14 P.2d 1122, to argue that the officer iden tified specific behaviors and changes in 15 Defendant’s demeanor and attitude to explain why he be lieved that Defendant might 16 be armed and dangerous. [MIO 6] The State argued that, as in Chapman , Defendant’s 17 uncooperative behavior escalated during the encounter. Specifically, the State argued 18 that Defendant was uncooperative at th e beginning of the encounter, responding 19 “why?” when the officer aske d her name, and clutching her purse to her chest to 20 prevent the officer from seeing in side. [MIO 7] The State also relied on the fact that, 21 after the officer had demanded to inspect Defendant’s purse for the second time and 224 attempted to take Defendant’s purse from her, Defendant tu rned away, as if to run 1 from the officer. [MIO 7] 2 We find the State’s reliance on Chapmanunpersuasive. In Chapman , this Court 3 held that the defendant’s failure to make eye contact, unusual level of nervousness, 4 high-pitched tone of voice, anxious and aggressive res ponse to the deputy questioning 5 him about weapons, and uncontrollable shaki ng provided justification for the deputy’s 6 pat down of the defendant. 1999-NMCA- 106, ¶¶ 17-18. Here, Defendant did not 7 display the type or level of nervousness present in Chapman . To the contrary, in this 8 case, the State has not indicated any nervousness by Defendant other than her 9 clutching her purse to her chest and turni ng away from the officerwhen he attempted 10 to forcibly take the purse from her. We conclude thatDefendant clutching her purse 11 to her chest, without a furtive movement or something more, was insufficient to cause 12 the officer to reasonably believe thatDefendant was armed and dangerous. 13 To the extent the State relies on Defendant asking the officer why he wanted her 14 name to argue that Defendant’s uncooperativeness caused the officer to reasonably 15 believe Defendant was arme d and dangerous, we find this argument unpersuasive 16 where, after asking the officer “why,” Defe ndant cooperated with the officer by going 17 to get her room key, taking the officer to her room to retrieve her identification, 18 showing the officer her identification, and accompanying the officer outside and 19 walking in front of the officer at the offi cer’s request. We therefore conclude that 20 Defendant’s asking the officer why he wanted her name, holding her purse to her 21 chest, and refusing to grant the officer her consent to search her purse was insufficient 225 to constitute a reasonable and articulable suspicion that Defendant was armed and 1 dangerous. 2 The State relies on State v. Amaya , 89 P.3d 1163 (Or. 2004), but our review of 3 the facts in that case lead us to concludethat the State’s reliance is misplaced. In 4 Amaya , the defendant informed the officer th at there was a gun in her purse, a critical 5 fact that is not present in the case before us. Id. at 1165. 6 Turning to the reasons articulated by th e officer in this case in support of the 7 search, we note that Defendant’s refusal to consent to a search of her purse may not 8 be considered in determining whether th e officer had reasonable and articulable 9 suspicion that Defendant was armed and dangerous. See State v. Vandenberg , 2003- 10 NMSC-030, ¶ 46, 134 N.M. 566, 81 P.3d 19 (“[W]e think it self-evident that 11 [d]efendants’ refusal is not a probative fact of guilt, suspicion, or dangerousness.”). 12 In Vandenberg , the Court drew no distinction betw een a refusal of a search and a 13 refusal of a canine sniff. Id. To search in the present case, the officer was required 14 to show a reasonable and articulable su spicion that Defendant was armed and 15 dangerous. In Vandenberg , the Court determined that the defendant’s refusal to 16 consent to a canine sniff could not be cons idered in determining whether the officer 17 had reasonable and articulab le suspicion that the de fendants were armed and 18 dangerous. Id. The Court also stated, “[W]hen [d ]efendants refused the canine sniff, 19 their conduct was a neutral act which neither incriminated nor exculpated them. 20 Therefore, in determining whether [the officer] had reasonable suspicion to believe 21 that [d]efendants were dangerous, we do not consider [d]efe ndants’ refusal to consent 226 as a relevant fact.” Id. ¶ 47. 1 Further, to the degree the State relie d on Defendant clutching her purse and 2 turning away from the officer after the o fficer ordered Defendant to allow him to 3 search her purse and attempted to take Defendant’s pursefrom her, [RP 52] 4 Defendant’s acts were consistent with her a ssertion of her right to refuse to consent 5 to the search of her belongings and would not have caused a reas onable officer to feel 6 threatened. Finally, Defendant’s nervousne ss, alone, was not “sufficient to justify . 7 . . a protective frisk for safety reasons.” State v. Pablo R. , 2006-NMCA-072, ¶ 15, 8 139 N.M. 744, 137 P.3d 1198. Also, the officerfailed to articulate specific reasons 9 why Defendant’s nervousness caused him to believe his safety was compromised or 10 describe any type of “erratic, hostile, aggressive, unc ooperative, or unpredictable 11 behavior” that would cause the officer to feel threatened. State v. Gutierrez , 2008- 12 NMCA-015, ¶ 18, 143 N.M. 522, 177 P.3d 1096 (citation omitted). An observation 13 that Defendant is simply nervous “is entitle d to little weight in determining whether 14 officers had reasonable suspicion to search a defendant for weapons.” Id. Thus, we 15 give it little weight here. Therefore, we conclude th at Defendant’s nervousness, 16 clutching of her purse, and refusal to c onsent to the search of her purse, did not 17 constitute a sufficient degree of articulablesuspicion for the officer to reasonably 18 conclude that Defendant was armed and dangerous. 19 CONCLUSION 20 Accordingly, for the reasons stated above, we affirm. 21 IT IS SO ORDERED. 227 ____________________________________ 1 RODERICK T. KENNEDY, Judge 2 WE CONCUR: 3

________________________________ 4 JONATHAN B. SUTIN, Judge 5

________________________________ 6 CELIA FOY CASTILLO, Judge 7