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

v. NO. 29,297 4 VICTOR GONZALES, 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 James W. Grayson, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Robert W. Gorence 14 Albuquerque, NM 15 for Appellee 16

MEMORANDUM OPINION 17 KENNEDY, Judge. 18 The State of New Mexico appeals from the district court’s order granting 19 Defendant’s motion to suppress on the basis th at the traffic stop wa s pretextual to a 20 drug investigation. [RP 109] Defendant raises the following issues on appeal: (1) 212 whether the trial court erred in finding that a traffic stop supported by reasonable 1 suspicion, e.g., a confirmed window tint viol ation, but conducted inpart to further a 2 narcotics investigation, is afforded greater protection under the New Mexico State 3 Constitution than the United States Constitution; (2) whether the trial court erred in 4 suppressing the 445.1 grams of methamphe tamine found in Defendant’s vehicle 5 pursuant to a valid search warrant due to an illegal seizure based upon a pretextual 6 stop; and (3) whether the detectives had reasonable suspicion to effect a lawful 7 investigatory detention based upon the in formation obtained by the confidential 8 informant combined with their subsequent investigation. [DS 7] 9 The calendar notice proposed su mmary affirmance, following State v. Ochoa , 10 2009-NMCA-002, 146 N.M. 032, 206 P.3d 143 (filed 2008), cert. granted , 2008- 11 NMCERT-012, 145 N.M.272, 203 P.3d 103 (N o. 31,340, December 30, 2008). [Ct. 12 App. File, CN1] The State has filed a memorandum in opposition. [Ct. App. File, 13 MIO] Unpersuaded, we affirm. 14 DISCUSSION 15 Whether a search and seizure was cons titutional is a mixed question of law and 16 fact. State v. Duran , 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836 (citing 17 State v. Vandenberg , 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19). We review 18 factual determinations by the trial court under a substantial evidence standard. Id. We 193 review the lower court’s determination of legal questions de novo. Id. 1 In this case, the parties agree thatthe officers were on surveillance of 2 Defendant’s residence, watching the house to confirm a confidential informant’s 3 (CI’s) drug trafficking information. [RP 41-42, 89-90] The information was that an 4 individual with Defendant’s name w ould be transporting a large amount of 5 methamphetamine south out of Albuquerque in the afternoon or evening of July 20, 6 2006. [Id.] While the officers observed the residence that day, Defendant drove a 7 Chevy Tahoe to a car wash and back to th e house, and he drove a white Ford Mustang 8 to another residence, picked up two passengers, and drove backto the residence. [RP 9 90] In the evening, the Tahoe again le ft the residence driving south on Coors Blvd. 10 [Id.] Officer Gallegos submitted a request for a marked unit to stop the Tahoe for a 11 window tint violation. [Id.] Officer Griego received the order to stop the Tahoe and 12 testified at the hearing that he intended to stop the vehicle “one way or another.” [Id.] 13 Officer Gallegos also testified that it wa s decided that the authorities would “conduct 14 a pretextual stop with a traffic violation and then as a pretextual stop occurred, to 15 begin a narcotics investigation at that point.” [Id.] 16 When the vehicle was stopped, Defendant was driving the Tahoe and there were 17 two other passengers in the car . [RP 91] Defendant was not told the reason for the 18 stop. [Id.] Defendant provided the officerwith a valid license, registration, and 194 insurance for the vehicle. [I d.] Officer Griego asked all of the persons in the vehicle 1 to exit. [Id.] The officer ran a warrants check on all of them. [Id.] The check 2 initially came up with a person who, upon the officer’s investigation, was confirmed 3 not to be Defendant. [Id.] At that point , Officer Griego had dispelled suspicion that 4 Defendant had a warrant for his arrest. [Id. ] Three other officers arrived at the scene 5 about this time. [Id.] Officer Griego thenchecked the tint level of the windows of the 6 Tahoe and found it to be abovethe legal limit. [Id.] Meanwhile, one of the new 7 officers on the scene asked Officer Griego if he could perform a canine “interdiction,” 8 and the officer consented. [RP 91-2] A canine interdiction was conducted on the 9 exterior of the vehicle with the doors open. [Id.] The officers then asked Defendant’s 10 consent to the canine interdiction, and Defe ndant denied consent. [Id.] Defendant 11 was told he was free to leave. [Id.] As Defendant appro ached the vehicle to close the 12 doors, however, he was told to stay away fro m it. [Id.] One of the detectives then 13 performed another canine interdiction on the interior door panels, and the dog alerted. 14 [Id.] Based on the canine alert, Officer Gallegos comple ted an affidavit for a search 15 warrant. [Id.] Officer Galle gos further testified that th e affidavit contained incorrect 16 information stating that the officers st opped Defendant while on “random patrol” 17 rather than while on surveillance. [Id.] O fficer Gallegos also testified that it was his 18 “intent from the beginning [the investigation] was a narcotics inve stigation.” [RP 93] 195 After the search warrant was obtained, ba sed on the affidavit containing the incorrect 1 information, the methamphetamine was found; Defendant and the two passengers 2 were arrested and taken to the st ation for questioning. [Id.] 3 The district court granted Defendant’s motion to suppress. [RP 109] The 4 district court reasoned that Officer Gallegos was part of a surveillance team 5 conducting an investigation that had targeted Defendant for trafficking 6 methamphetamine. [Id.] The district c ourt concluded that there were sufficient 7 articulable facts to justify a finding of reasonable suspicion thata traffic citation 8 should be issued for a window tint violation. [RP 110] The district court concluded, 9 however, that “[t]he investigating police officer’s testimony was candid and credible” 10 that “the traffic stop that wa s conducted on Defendant ’s vehicle was pretextual.” [Id.] 11 Relying on this Court’s opinion in Ochoa , 2009-NMCA-002, the district court granted 12 Defendant’s motion to suppress. [Id.] We agree. 13 In Ochoa , this Court specifically held that the federal analysis regarding 14 pretextual stops is “unpersuasive and inco mpatible with our state’s distinctively 15 protective standards for searches and seizures.” Id. ¶ 12. To the extent the State 16 requests this Court to revisit this de termination in Issu e 1 and to overrule Ochoa [MIO 17 9-12], we decline to do so. 18 With regard to Issues 2 and 3, we stated inOchoa , 196 [i]n performing a pretextual traffic stop, a police officer is stopping the 1 driver, not to enforce the traffi c code, but to conduct a criminal 2 investigation unrelated to the driving. Therefore the reasonable 3 articulable suspicion that a traffic infraction has occurred which justifies 4 an exception to the warrant requirement for an ordinary traffic stop does 5 not justify a stop for criminal investigation. 6 Id. ¶ 16 (internal quotation marks and citation omitted). As such, as the district court 7 determined in this case, even if the offi cer had reasonable articulable suspicion that 8 the Chevy Tahoe had excessive window tint, the officer’s “candid” and “credible” 9 testimony was that the traffic stop was conducted in order for the officers to 10 investigate Defendant for narcotics trafficking. See id. ¶ 39 (directing the district 11 courts that “[t]o determine whether a stop is a pretextual subterfuge, courts should 12 consider the totality of the circumstances, j udge the credibility of witnesses, weigh the 13 evidence, make a decision, and exclude the evidence if the stop was unreasonable at 14 its inception”). “The totality of the circumstances includes considerations of the 15 objective reasonableness of an officer’s ac tions and the subjective intent of the 16 officer—the real reason for the stop.” Id. (citation omitted). 17 In the memorandum, the State continues to argue that the traffic stop was 18 reasonable based on Officer Griego’s decisi on to stop the vehicle for excessive tint. 19 [MIO 2, 9] The State now focuses, however, on arguing that “[i]rrespective of the 20 window tint violation,” [MIO 9] the offi cers legally stopped Defendant’s vehicle 21 based on reasonable suspicion that illegal drug trafficking activity was taking place. 227 [MIO 9, 2-3, 5-9] The State argues th at the following “facts” support the officers’ 1 reasonable suspicion: information of a reliable CI that an individual with Defendant’s 2 name would be transporting a large amount of methamphetamine south out of 3 Albuquerque in the afternoon or evening of July 20, 2006, and Defendant’s alleged 4 “counter-surveillance” activities observed by officers that day, including driving 5 around a neighborhood at random in the Tahoe, driving a different vehicle to another 6 residence to pick up two persons whiletwo other people looked up and down the 7 street, and returning to Defendant’s reside nce before leaving ag ain in the Tahoe and 8 driving south. [MIO 2] 9 The State then adds the excessive wi ndow tint to the CI’s information and 10 Defendant’s alleged “heat run” narcotics activities to argue that the officers had 11 reasonable suspicion to stop Defendant’s vehicl e. [Id.] The State contends, therefore, 12 that this case is controlled by State v. Pallor , 1996-NMCA-083, 122 N.M. 232, 923 13 P.2d 599, a case distinguished in Ochoa , 2009-NMCA-002, ¶ 32. [MIO 8] InPallor , 14 this Court affirmed the district court’ s decision to deny the defendant’s motion to 15 suppress, holding that the officers had reas onable suspicion of a drug crime and this 16 reasonable suspicion together with the offi cers’ undisputed testimony that he knew the 17 defendant was driving on a revoked license justified stopping the defendant’s vehicle. 18 Pallor , 1996-NMCA–083, ¶¶ 12-13. In Pallor , the State was the prevailing party in 198 the district court, and we considered that “any inference that can be drawn from the 1 facts that the revoked license played any part in the reasoning to stop [the d]efendant 2 will be viewed in the manner most favorableto the prevailing party and all reasonable 3 inferences in support thereof will beindulged by the reviewing court.” Id. ¶ 15 4 (citation omitted). In Pallor , we concluded that, “[h]av ing determined that the 5 standard of reasonable suspicion had been met, the claim of a pretextual stop cannot 6 be substantiated.” Id. ¶ 12. 7 In this case, however, Defendant is th e prevailing party, and therefore, we 8 review the facts in the manner most favorab le to Defendant. Inthis case, moreover, 9 Defendant’s claim of a pretextual stop was substantiated by what the district court 10 found to be the officer’s “candid” and “cre dible” testimony. [RP 110] As stated above, 11 the testimony at the suppression hearing wa s that Officer Gallegos submitted a request 12 for a marked unit to stop the Chevy Tahoe for a window tint violation. [Id.] Officer 13 Griego received the order to stop the Tahoeand testified at the hearing that he 14 intended to stop the vehicle “one way or another.” [Id.] Officer Gallegos also 15 testified that it was decided that the au thorities would “conduct a pretextual stop with 16 a traffic violation and then as a pretex tual stop occurred, to begin a narcotics 17 investigation at that point.” [Id.] 18 In Ochoa , based on the officer’s testimony as to the real reason for the stop, the 199 district court determined that the officer’s “motive for the stop was unrelated to the 1 objective existence of reasonable suspici on or probable cause.” 2009-NMCA-002, ¶ 2 40. Similarly, in this case, the officer te stified that the real reason for the stop was 3 pretextual. Moreover, we note that during surveillance the officers observed the 4 alleged excessive window tint on the Tahoe earlier in the day, when the vehicle left 5 the residence and drove to a car wash. Th e officers did not stop the vehicle for the 6 window tint violation at that time, how ever, making the stop unnecessary for the 7 protection of traffic safety. See id. (discussing the facts relevant to the totality of the 8 circumstances when considering whether a traffic stop is pretextual). Further, as in 9 Ochoa , after the stop was made in this case, the numerous officers at the scene had 10 little interest in investigating the window tint violation. Despite the fact that 11 Defendant provided the officer with valid license, registration and insurance, 12 Defendant and the passengers we re immediately ordered out of the vehicle, a warrants 13 check was made, and a canine interdiction accomplished with the assistance of three 14 officers, while one officer also incide ntally checked the window tint level. 15 CONCLUSION 16 We affirm the district court’s order granting Defendant’s motion to suppress. 1710 IT IS SO ORDERED. 1

___________________________________ 2 RODERICK T. KENNEDY, Judge 3 WE CONCUR : 4

___________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

___________________________ 7 ROBERT E. ROBLES, Judge 8