IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number :

__________________ 2

Filing Date: August 14, 2023 3

NO. S-1- SC

- 38861 4

STATE OF NEW MEXICO, 5

Plaintiff

- Respondent
, 6

v. 7

HUGO VASQUEZ

- SALAS, 8

Defendant

- Petitioner. 9

ORIGINAL PROCEEDING ON CERTIORARI 10 Fred T. Van Soelen, District Judge 11

Bennett J, Baur, Chief Public Defender 12 M.J. Edge, Assistant Appellate Defender 13 Santa Fe, N M 14

for Petitioner 15

Hector H. Balderas, Attorney General 16 Walter M. Hart, III, Assistant Attorney General 17 Santa Fe, NM 18

for Respondent 19 The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.OPINION 1

VARGAS , Justice. 2

{1} In t his case , we address the authority of police officers under the Fourth 3

Amendment of the United States Constitution and Article I I, Section 10 of the New 4

Mexico Constitution to inquire into matters unrelated to an otherwise lawful traffic 5
stop by asking for a passenger ’s identifying information such as name a nd date of 6

birth . Because the officer’s inquiry here was permissible under both the Fourth 7

Amendment and Article II, Section 10, we affirm the district court’s denial of 8
Defendant’s motion to suppress, albeit for different reasons than thos e articulated by 9
the Court of Appeals. 10

I. BACKGROUND 11

{2} In the predawn hours of August 18, 2015 , Officer Brice Stacy of the Clovis 12
Police Department stopped and detained the vehicle Hugo Vasquez

- Salas 13
(Defendant) was riding in because it had a broken rear license

- plate light, a 14

misdemeanor under the Motor Vehicle Code. See NMSA 1978, § 66

- 3

- 805(C) 15
(1978 , amended 2018 ) ; NMSA 1978, § 66

- 8

- 116(A) ( 201 4, amended 2023 ) (listing 16
the penalty assessment misdemeanors )

. As O fficer Stacy appro ached the vehicle, he 17
saw a partially open backpack in the back seat with bolt cutters, protective 18
eyeglasses, two pairs of gloves, and a face mask later clarified at tri al as a 192 “camouflage face mask that goes over the entire head, just l eaving an opening for 1

the face,” sticking out of the backpack

. Officer Stacy testified that he saw the tools 2
when he first approached the car because they were easy to see through the back 3
window. Although the tools alone did not initially raise his suspic ion, Officer Stacy 4
testified that he became suspicious that the tools may have been burglary tools “when 5
[he] started talking to [ the driver and Defendant],” because the “ driver was real 6

nervous, he was showing me all kinds of signs that he was nervous, no t wanting to 7
give me any kind of identifiers, [and] he seemed to be confused about his age.” 8

{3} After he determined that the driver of the vehicle was an unlicensed minor, 9
Officer Stacy asked Defendant if he had a driver’s license in an attempt to determine 10

whether Defendant could drive the vehicle. Defendant said he did not have a driver’s 11
license. Officer Stacy then asked Defendant his age, to which Defendant responded 12
that he was twenty

- two. 13

{4} Turning back to the driver, Officer Stacy asked him for his first name, last 14
name, and date of birth. The driver provided Officer Stacy with an incorrect last 15

name and date of birth

. I t is unclear at what point Officer Stacy d iscovered the 16

driver ’s real name

. What is clear is that the driver’s stated date of birth conflicted 17

with the driver’s prior statement that he was sixteen because the driver’s stated date 183 of birth would have made him seventeen years old at the time of the stop. When 1
Officer Stacy re turned his attention to Defendant
, the following exchange took place : 2

Officer Stacy (to Defendant) : What’s your first name? 3 4 Defendant : Sergio. 5 6 [...] 7 8 Officer Stacy : What’s your last name? 9 10 Defendant : Vasquez. 11 12 [... ] 13 14 Officer Stacy : What’s your date of birth? 15 16 [...] 17 18 Defendant : I’m thirty. 19 20 [...] 21 22 Officer Stacy : You’re thirty? Okay. W hat’s your date of birth? 23 24 Defendant : ’84

. 25 26 Officer Stacy : ’84? O kay. W hat’s your full date of birth? 27 28 Defendant : 1984. 29 30 Officer Stacy : 1984

— okay, let’s start from the beginning. Give me the 31 month, the day, and t hen the year. What’s the month? 32 33 Defendant : October 8, 1984. 34 35 Officer Stacy : And you said you’re how old? 364 1 Defendant : Thirty

. 2 3 Officer Stacy : And less than five minutes ago, you were twenty

- two ? 4 5 Defendant : Yeah, I kn ow, I was just bullshitting y ou. 6 7 Officer Stacy : Okay, hang tight. 8
Defendant’s real name is Hugo Vasquez

- Salas and he was twenty

- eight at the time 9
of the stop. After speaking with Defendant, Officer Stacy returned to his patrol car 10
and requested backup. 11

{5} O fficer Wormley , the officer who responded to Officer Stacy’s request for 12
backup, read Defendant his Miranda r ights and questioned him. Defendant was 13
charged with possession of burglary tools, contrary to NMSA 1978, Section 30

- 16

- 14
5 (1963). In the district court, Defendant asse rted that Officer Stacy’s expansion of 15
the traffic stop by asking Defendant for his identifiers constituted an unlawful 16

seizure

. Defendant claimed that, as a result of the unlawful seizure, he was entitled 17
to suppression of (1) “ [a] ny and all evidence seiz ed from Defendant after the 18
unlawful seizure,” (2) “ [a] ny and all statements made by Defendant after the 19
unlawful seizure,” and (3) “ [a] ll other fruits of the illegal questioning of Defendant.” 20

{6} Based on the evidence presented and Officer Stacy’s testimony, the district 21
court determined that Officer Stacy had “reasonable articulable suspicion to expand 22
his investigation into a burglary tools investigation” and denied the motion to 235 suppress. In announcing its ruling, the district court judge explained that Of ficer 1
Stacy’s suspicions had already been raised about the burglary tools before he asked 2
Defendant for his identifiers. The district court concluded that the totality of the 3

circumstances supported Officer Stacy’s expansion of the investigation. These 4

inc luded the combination of the tools, the lack of evidence that the tools were used 5
as part of a job or occupation, the driver ’s and Defendant’s unusual behavior, the 6

driver’s status as an un licensed minor, and the time of day

. 7

{7} At trial, the State presented witness testimony , audio and video evidence 8
including lapel video, and the items found in the backpack. Defendant was convicted 9
of possession of burglary tools. Defendant appealed to the Court of Appeals, 10
claiming, in relevant part, that the district court erred when it denied his motion to 11
suppress. Defendant relied upon State v. Affsprung
, 2004

- NMCA

- 038, ¶¶ 4, 20

- 21, 12

135 N.M. 306, 87 P.3d 1088, and State v. Estrada
, 1991

- NMCA

- 026, ¶¶ 10

- 11, 111 13

N.M. 798, 810 P.2d 817, to support his claim that the district court erred in denying 14

his motion. See State v. Vasquez

- Salas , A

- 1

- CA

- 37856, mem. op. ¶¶ 2, 7 (N.M. Ct. 15
App. May 17, 2021) (nonprecedential). The Court of Appeals affirmed the district 16

cour t , rejecting all of Defendant’s claims

. Id. ¶¶ 1, 18

- 19. The Court of Appeals 17

reasoned that Affsprung was factually distinguishable because the officer in that case 18
had “no suspicion whatsoever of criminal activity.” Id. ¶¶ 4

- 5 ( internal quotation 196 marks an d citation omitted) . It explained that Estrada was distin guishable because 1
the only individualized fact known to the officer in that case was a misplaced tire, 2
whereas in this case, there were many factors, including Officer Stacy’s observation 3
of multiple tools that he believed were burglary tools. Id. ¶ 7. Upon consideration of 4
Defendant’s petition, we granted certiorari. 5

II. DISCUSSION 6

{8} The question before this Court is whether Officer Stacy had reasonable 7
suspicion of criminal activity to expand the investig ation beyond the initial traffic 8
stop to ask Defendant for his identifiers. 1 We first outline the appropriate standard 9
of review and proceed to examine whether Defendant’s rights were violated under 10

the Fourth Amendment of the United States Constitution or Article II, Section 10 of 11
the New Mexico Constitution. Concluding that Defe ndant’s right s were not violated, 12

we affirm. 13

A. Standard of R eview 14

{9} Defendant claims that the district court improperly denied his motion to 15
suppress. Denial of a motion to suppress presents a “mixed question of fact and law.” 16

State v. Leyva , 2011

- NMSC

- 009, ¶ 30, 149 N.M. 435, 250 P.3d 861. Our review of 17

1 Defendant does not question, and we do not address, the validity of the initial traffic stop or the sufficiency of the evidence to justify the stop

.7 the district court’s denial involves a two

- step process. Id. First, we examine whether 1
substantial evidence supported the district court’s findings, “ with deference to the 2

district court ’ s review of the testimo ny and other evidence presented.” Id. When the 3
district court does not issue formal findings of fact in denying a motion to suppress, 4

as in this case, we “draw from the record to derive findings based on reasonable facts 5

and inferences.” State v. Yazzie , 2 019

- NMSC

- 008, ¶ 4, 437 P.3d 182 (internal 6
quotation marks and citation omitted). “[W]e then review de novo the [district] 7

court ’ s application of law to the facts to determine whether the search or seizure 8

were reasonable. ” Leyva , 2011

- NMSC

- 009, ¶ 30. We have previously established 9

that when, as in this case, “there are no findings of fact and conclusions of law, an 10
appellate court will draw all inferences and indulge all presumptions in favor of the 11
district court’s ruling.” State v. Funderburg , 2008

- NMSC

- 026, ¶ 10, 144 N.M. 37, 12
183 P.3d 922 (internal quotation marks and citation omitted). Our review is not 13
limited to the record made at the motion to suppress hearing . Instead, we “ may 14

review the entire record to determine whether there was sufficient e vidence to 15
support the [district] court ’ s denial of the motion to suppress.” State v. Johnson
, 16

1996

- NMCA

- 117, ¶ 21, 122 N.M. 713, 930 P.2d 1165 ; see State v. Martinez
, 1980

- 17

NMSC

- 066, ¶ 16, 94 N.M. 436, 612 P.2d 228; accord State v. Monafo , 2016

- 18

NMCA

- 092, ¶ 10, 384 P.3d 134. 198 B. Reasonable Suspicion 1

{10} A traffic stop to investigate a potential violation constitutes a seizure of the 2
occupants of the vehicle under the Fourth Amendment, thereby requiring reasonable 3
suspicion. Leyva , 2011

- NMSC

- 009, ¶ 10 (seizure); State v. Martinez , 2018

- NMSC

4
007, ¶ 10, 410 P.3d 186 (reasonable suspicion). “In analyzing whether an officer has 5
reasonable suspicion, the trial court must look at the totality of the circumstances, 6
and in doing so it may consider the officer ’ s experience and specialized training to 7

make inferences and deductions from the cumulative information available to the 8

officer.” Id

. (internal quotation marks and citation omitted). Reasonable suspicion 9
exists when the officer becomes “aware of specific articulable facts that, judged 10
objectively, would lead a reasonable person to believe criminal activity occurred or 11
was occurring.” State v. Urioste , 2002

- NMSC

- 023, ¶ 6, 132 N.M. 592, 52 P.3d 964 12
(internal quotation marks and citation omitted). “Suspicion of criminal activity need 13
not necessarily be of a specific crime.” Leyva , 2011

- NMSC

- 009, ¶ 23. “ Although an 14

officer ’ s reliance on a mere hunch is insufficient to justify a stop, the likelihood of 15

criminal activity need not rise to the level required for probable cause, and it falls 16
considerably short of satisfying a preponderance of the evidence standard.” United 17

States v. Arvizu , 534 U.S. 266, 274 (2002) (internal quotation marks and citation s 18
omitted). 199 C. The Fourth Amendment of the United States Constitution 1

1. Defendant’s F ourth A mendment rights were not violated 2

{11} “The Fourth Amendment guarantees the right of the people to be free from 3

unreasonable searches and seizures.” Leyva , 2011

- NMSC

- 009, ¶ 8; U.S. Const. 4

amend. IV. “ Reasonableness, of course, depends on a balance between the public 5

interest and the individual ’ s right to personal security free from arbitrary interfer ence 6
by law officers.” Leyva , 2011

- NMSC

- 009, ¶ 9 (internal quotation marks and citation 7
omitted). 8

{12} The appropriate inquiry under the Fourth Amendment when the legality of the 9
initial stop is uncontested, as is the case here, is “ whether an officer ’ s traffic stop 10
questions extended the time that a driver was detained, regardless of the questions’ 11

content.” Id. ¶ ¶ 17
, 31 (internal quotation marks and citation omitted)

. Questions 12

asked by law enforcement “ during a traffic stop [do not] need to be reaso nably 13
related to the initial justification of the stop in order to be permissible.” Id . ¶ 18. 14

Nonetheless, the temporal limitation provided by this bright

- line test requires that 15

“ an investigating officer return a driver ’ s documents and permit the driver t o depart 16
as soon as the reason for the traffic stop has been completed ( unless, of course, the 17

officer has developed reasonable suspicion to conduct an investigation into other 18

criminal activity ).” Id. ¶ 20. When the officer asks questions “during the time it 1910 [takes] to reasonably complete the initial traffic investigation,” the questions are 1
constitutionally permissible. Id. ¶ 28. A de minimis detention after the completion 2
of the stop is not unreasonable and therefore does not violate the Fourth Amendment. 3

Id. ¶ 33. 4

{13} In Leyva , the officer had already completed his investigation when he asked 5

the defendant whether there were any “knives, needles, guns, or drugs” that the 6

officer needed to know about before turn ing the car over to a third party because the 7

defendant’s suspended license rendered him unable to drive the vehicle. Id. ¶ ¶ 33

- 8

34 (internal quotation marks omitted)

. The Leyva Court held that the question was 9
permissible under the Fourth Amendment because it was a de minimis extension of 10

the stop. Id. ¶ 35. The Court reasoned that 11

[i]t would be nonsensical if we were to hold [that the officer] violated 12 [the defendant] ’ s Fourth A mendment rights by asking the question 13 immediately after handing him the citation, when the questions 14 undoubtedly would have been permitted if [the officer] had asked while 15 he was writing the citation or running the records check

. 16

Id. ¶ 33 ( second emphasis added). 17

{14} Reviewing the facts of this case under the totality of the circumstances
, 18

Martinez , 2018

- NMSC

- 007, ¶ 12, we conclude that Defendant’s rights were not 19
violated under the Fourth Amendment because Officer Stacy’s questions concerning 20

Defendan t’s identifiers did not measurably extend the length of the stop. In this case, 2111 the officer was compelled to ask Defendant additional questions to complete the stop 1
because the driver did not have a driver’s license and could not drive the car away. 2

This i ncluded questioning Defendant to determine whether he could drive the car. 3
Officer Stacy’s attempt to complete the original stop in a diligent manner made the 4
duration of the stop more reasonable. See Rodriguez v. United States , 575 U.S. 348, 5
354 (2015) (n oting that
, “ in determining the reasonable duration of a stop, it is 6
appropriate to examine whether the police diligently pursued the investigation” (text 7
only) 2 (citing United States v. Sharpe , 470 U.S. 675, 686 (1985) ))

. In Leyva , the 8
question was wheth er it was permissible for the officer to extend the stop by asking 9
questions after the ini tial traffic stop was complete. 2011

- NMSC

- 009, ¶ 62. The stop 10

in this case was not an extension, but instead was part of a developing situation that 11
required Officer Stacy to determine whether Defendant was legally permitted to 12
operate the vehicle or whether the vehicle needed to be impounded

. See State v. 13
Reynolds , 1995

- NMSC

- 00 8, ¶ 22, 119 N.M. 383, 890 P.2d 1315 (“[T]he government 14
has a legitimate interest in making sure that all drivers are licensed.”); see also 15
Sharpe , 470 U.S. at 686 (noting that a court making a duration determination “ should 16

2 The “text only” parenthetical used herein indicates the omission of any of the following

— internal quotation marks, ellipses, and brackets

— that are present in the text of the quoted source, leaving the quoted text itself otherwise unchanged.12 take care to consider whether t he police are acting in a swiftly developing situation, 1
and in such cases the court should not indulge in unrealistic second

- guessing”). We 2
perceive no Fourth Amendment violation under the circumstances of this case. 3

2. Precedential value of Affsprung 4

{15} Defe ndant relied upon Affsprung
, 2004

- NMCA

- 038, in his motion to 5

suppress, in his briefing before the Court of Appeals, and in his briefing before this 6

Court. In Affsprung
, an officer asked a passenger of a vehicle for his identifiers and 7

checked for active warrants on him while writing a traffic citation for the driver. 8

2004

- NMCA

- 038, ¶ 2. The Affsprung Court held that the officer’s request violated 9
the Fourth Amendment because he had no suspicion of criminal activi ty to support 10
asking the defendant for his identifiers. Id. ¶¶ 19

- 21. The Court of Appeals reasoned 11

that Affsprung was factually distinguishable from the present case and did not rely 12
on it in reaching its decision. Vasquez

- Salas , A

- 1

- CA

- 37856, mem. op. ¶¶ 4

- 5. 13

{16} While properly decided under United States Supreme Court jurisprudence at 14

the time, Affsprung is in conflict with current United States Supreme Court and New 15
Mexico Supreme Court Fourth Amendment precedent. Prior New Mexico precedent 16
applying the previous Fourth Amendment analysis required that “all questions .

. . 17
be reasonably related to the ini tial reason for the stop or supported by independent 18

and articulable reasonable suspicion.” Leyva , 2011

- NMSC

- 009, ¶ 2. Five years after 1913 Affsprun g , the United States Supreme Court decided Arizona v. Johnson , 555 U.S. 1
323 (2009). Johnson recognized that “a p assenger is seized, just as the driver is, from 2
the moment a car stopped by the police comes to a halt on the side of the road.” Id. 3
at 332 (text only) (citation omitted) . That “temporary seizure of driver and 4
passengers ordinarily continues, and remains r easonable, for the duration of the 5

stop.” Id. at 333. In those instances, “ [a] n officer ’ s inquiries into matters unrelated 6
to the justification for the traffic stop

. . . do not convert the encounter into something 7
other than a lawful seizure, so long as t h os e inquiries do not measurably extend the 8

duration of the stop .” Id. “ [T]he tolerable duration of police inquiries in the traffic

9
stop context is determined by the seizure’s mission

— to address the traffic violation 10
that warranted the stop and attend to r elated safety concerns.” Rodriguez
, 575 U.S. 11

at 35 4 ( internal quotation marks and citation s omitted)

. 12

{17} As relevant to Affsprung
, an officer’s mission also includes the authority to 13
run background checks on passengers as an “ ordinary inquir[y] incident to [the 14
traffic] stop.” Rodriguez
, 575 U.S. at 35 5 (second alteration in original) (internal 15
quotation marks and citation omitted) ; see also id. at 351

- 52 ( acknowledging a 16
police officer’s questioning and records check of a driver and passenger as part of 17

the “justification for the traffic stop” ); United States v. Pack , 612 F.3d 341, 351 (5th 18
Cir. 2010) (clarifying that it is permissible for an officer to ask a passenger “to 1914 identify himself and to run computer checks on his driver ’ s license and 1
background”)
, modified on other grounds by 622 F.3d 383 (5th Cir. 2010) ; Un ited 2

States v. Rice , 483 F.3d 1079, 1084 (10th Cir. 2007) (explaining that, in addition to 3
the driver, “an officer may ask for identification from passengers and run 4
background checks on them as well”); People v. Rodriguez , 945 P.2d 1351, 1360 5
(Colo. 1997) (“During a valid traffic stop an officer may .

. . run a computer check 6
for outstanding warrants so long as this procedure does not unreasonably extend the 7
duration of the temporary detention.”). The objective of these ordinary inquiries is 8

to “ensur[e] t hat vehicles on the road are operated safely and responsibly.” 9
Rodriguez , 575 U.S. at 355

. 10

{18} Thus, as this Court explained in Leyva , in an otherwise

- legal traffic stop the 11
proper inquiry under the Fourth Amendment “is whether an officer ’ s traffic stop 12
questi ons extended the time that a driver was detained, regardless of the questions’ 13

content.” 2011

- NMSC

- 009, ¶ 17 (internal quotation marks and citation omitted). 14
When the officer asks questions “during the time it [takes] to reasonably complete 15

the initial tra ffic investigation,” the questions are constitutionally permissible. Id. ¶ 16

28. The Affsprung Court’s holding that the officer’s questions about a passenger’s 17

identifiers violated the Fourth Amendment because the officer had no reasonable 18
suspicion that the passenger was engaged in criminal activity or no particularized 1915 concern about the officer’s safety, 2004

- NMCA

- 038 , ¶ 19
, no longer comports with 1
our analysis in Leyva , 2011

- NMSC

- 009, ¶ 17, or the United States Supreme Court’s 2
bright

- line analysis of the Fourth Amendment in Johnson , 555 U.S. at 333, and is 3
hereby overruled. See also State v. Martinez , 2017 UT 43, ¶ 18, 424 P.3d 83 4
(explaining that Affsprung is “ out of ste p with the interpretive [Fourth Amendment] 5
framework dictated by United States Supreme Court precedent”). Since Affsprung 6

was decided solely under the United States Constitution , we do not opine as to how 7

the facts of that case would fare und er the New Mex ico Constitution. 8

{19} We next consider whether Officer Stacy violated Defendant’s rights under 9

Article II, Section 10 of the New Mexico Constitution. 10

D. Article II, Section 10 of the New Mexico Constitution 11

{20} Article II, Section 10 of the New Mexico Constitution es tablishes that “[t]he 12
people shall be secure in their persons, papers, homes and effects, from unreasonable 13

searches and seizures

. . . . ” This Court has consistently recognized that “ Article II, 14
Section 10 expresses the fundamental notion that every person in this state is entitled 15
to be free from unwarranted governmental intrusions
, and thus identified a broader 16
protection to individual privacy under the New Mexico Constitution than under the 17

Fourth Amendment.” Leyva , 2011

- NMSC

- 009, ¶ 53 (internal qu otation marks and 18
citation omitted). Our New Mexico Constitution requires (1) “ a reasonable 1916 justification for the initial stop
, ” and, i n contrast with the current federal bright

- line 1

test under the Fourth Amendment, (2) “that all questions asked during the stop be 2
reasonably related to the reason for the stop or otherwise supported by reasonable 3
suspicion.” Id . ¶ 55 (outlining the current Article II, Section 10 test) ; see also id. ¶¶ 4

2

- 3 (recognizing the current federal bright

- line test) . Th e case

- by

- case a pproach 5

inherent under the New Mexico Constitution “ comports better with the broader 6
protections provided under Article II, Section 10” and “ ensures that investigating 7
officers do not engage in ‘fishing expeditions’ during traffic stops.” Id. ¶ 55

. Over 8
the course of a routine traffic stop, however, reasonable suspicion may arise from 9

the “behavior of both passenger and driver

. ” Funderburg , 2008

- NMSC

- 026, ¶ 18. 10

{21} Defendant in the present case does not challenge Officer Stacy’s justification 11

for the ini tial stop. Instead, Defendant asserts that Officer Stacy did not have 12
reasonable suspicion to expand the scope of the investigation beyond the initial 13
traffic stop to other criminal activity under Article II, Section 10. 14

{22} In support of his assertion, Defend ant argues that “an innocent item in a 15
vehicle, without more, does not provide reasonable suspicion t o expand the scope” 16
of the stop , citing Estrada
, 1991

- NMCA

- 026

. In Estrada , “the only individualized 17
fact known by the agent that could possibly have raise d his suspicions was [a] 18
misplaced spare tire.” Id. ¶ 11. Nothing “indicate[d that] the driver or his passenger 1917 were nervous or displayed unusual behavior of any sort.” Id. The defendant and his 1

passenger provided proper residency documents, and there were “ [n]o other 2
potentially suspicious factor[s]

. . . mentioned in the stipulated facts.” Id. Thus, 3
“[b]ased solely on the misplacement of the spare tire, the agent directed [the] 4
defendant to the secondary area, and [the] defendant and his passenger were asked 5
to exit the vehicle while a dog sniff was performed.” Id. The Estrada Court held that, 6
although a misplaced tire may heighten an officer’s suspicion, that factor alone was 7
not so suspicious as to satisfy the reasonable suspicion standard. Id. ¶¶ 11

- 12. 8

{23} In contrast with the single factor in Estrada
, several factors support Officer 9

Stacy’s suspicion in this case. These factors include: the time of the stop ( s ee State 10

v. Ortiz , 2017

- NMCA

- 006, ¶ 14, 387 P.3d 323 (concluding that an officer had 11
reasonable suspicion to conduct a brief investigatory stop premised on, in relevant 12
part, the time of day )); the backpack in the back seat containing tools
, clothing
, 13

prot ective eyeglasses, gloves, and a face mask ; 3 the lack of evidence that the tools 14

3 Defendant, without citing the record, contends that Officer Stacy foun d the face mask after the traffic stop while searching the backpack. Therefore, according to Defendant, it is after

- acquired evidence and should not be considered as a factor in this Court’s reasonable suspicion analysis. See State v. Jason L. , 2000

- NMSC

0 18, ¶ 20, 129 N.M. 119, 2 P.3d 856 (“ The officer cannot rely on facts which arise as a result of the encounter

. ”). We disagree. As an initial matter, we have previously explained that this Court is under no duty to entertain arguments when facts are stated without cit ing the record. See Santa Fe Expl

. Co. v. Oil Conservation Comm ’ n , 1992

- NMSC

- 04 4, ¶ 11, 114 N.M. 103, 835 P.2d 819. Further, Defendant’s recitation18 were use d for a job; the driver ’s and Defendant ’s nervous and unusual behavior ( s ee 1

State v. Van Dang , 2005

- NMSC

- 033, ¶ 16, 138 N.M. 408, 120 P.3d 830 (holding 2

that the offic er’s suspicion was reasonable based, in part, on the “[d]efendant’s 3
nervousness”); s ee also State v. Tuton , 2020

- NMCA

- 042, ¶ 14, 472 P.3d 1214 4
(noting that demeanor is considered in weighing the totality of the circumstances)); 5

that t he d river was an unlic ensed minor ; and that both the driver and Defendant 6
provided false identifying information

. 7

{24} At the suppression hearing, Officer Stacy testified that his training and 8
experience provided a basis for his suspicion that Defendant was engaged in criminal 9
activity. Compare Van Dang , 2005

- NMSC

- 033, ¶ 16 (discussing the importance of 10
the officer’s training and experience in forming reasonable suspicion o f criminal 11
activity)
, with Estrada
, 1991

- NMCA

- 026, ¶ 13 (noting that the record was devoid 12
of information regarding the law enforcement agent’s experience with the alleged 13

of the facts is inconsistent with Officer Stacy’s testimony at the suppression hearing that he saw the face mask through the window as he initially approached the vehicle. The district court judge relied upon this testimony in his ruling from the bench, explaining that “the officer stated that he had seen the backpack

. . . in the back of the seat with tools sticking out of it, including bolt cutters, gloves

— two sets of gloves

— eye

- protection
, and a face mask of some sort.” ( E mphasis added

. ) This Court has previously explained that “a ppellate courts must afford a high degree of deference to the district court ’ s factual findings” and that “ [c]ontested facts are reviewed in a manner most favorable to the prevailing party.” Yazzie , 2019

- NMSC

008, ¶¶ 13

- 14 (internal quotation marks and citation omitted). Therefore, consideration of the face mask is proper.19 criminal activity in that case). At trial, Officer Stacy testified that he had on

- th e

- job 1
experience investigating fifty to one hundred burglaries, possibly more. He 2
explained that, in his experience, cutting instruments, seemingly ordinary tools, are 3
used specifically in the commission of a burglary. See Van Dang , 2005

- NMSC

- 033, 4
¶ 16 ( qu oting Brown v. Texas , 443 U.S. 47, 52 n.2 (1979) (“ [A] trained, experienced 5
police officer is ‘ able to perceive and articulate meaning in given conduct which 6
would be wholly innocent to the untrained observer .’ ”) ) . But Officer Stacy did not 7
rely upon his training and experience in identifying burglary tools as the sole basis 8
supporting his suspicion that Defendant was engaged in criminal activity. Instead, 9
Officer Stacy testified at the suppression hearing that he became suspicious the tools 10
may have been burglary tools only after his interactions with the driver and 11

Defendant because the “ driver was real nervous, he was showing [Officer Stacy] all 12
kinds of signs that he was nervous, not wanting to give [him] any ki nd of identifiers, 13
[and] he seemed to be confused about his age.” Defendant also provided Officer 14
Stacy with incorrect information regarding his name, contradictory responses about 15
his age, and evasive responses as to his date of birth. In other words, Off icer Stacy’s 16
training and experience allowed him to perceive and articulate meaning from the 17

combination of the tools when considered with the driver ’s and Defendant’s conduct, 18
thereby raising his suspicion that Defendant was engaged in criminal activity. 1920 {25} When making a reasonableness determination, we must “ necessarily take into 1

account the evolving circumstances with which the officer was faced

. ” Funderburg
, 2

2008

- NMSC

- 026, ¶ 16 ( text only) ( quoting State v. Duran , 2005

- NMSC

- 034, ¶ 36, 3

138 N.M. 414, 120 P.3d 836, overruled on other grounds by Leyva , 2011

- NMSC

4
009, ¶¶ 3, 17, 55 (overruling Duran on Fourth Amendment grounds while 5
“maintain[ing] the Duran standard for reviewing searches and seizures under the 6

New Mexi co Constitution”)). T he officer “may ask follow up questions that will 7
quickly confirm or dispel any suspicion brought on by those answers.” Duran , 2005

- 8

NMSC

- 034, ¶ 36. “ A n officer ’ s continued detention of a suspect may be reasonable 9

if the detention represents a graduated response to the evolving circumstances of the 10

situation,” Funderburg , 2008

- NMSC

- 026, ¶ 16
, because “ routine questions and 11

requests by a police officer may elicit a strange or suspicious response by a stopped 12

motorist.” Dura n , 2005

- NMSC

- 034, ¶ 36. Follow up questions “ must intrude on a 13

person ’ s liberty as little as possible under the circumstances.” Id. “In weighing the 14

officer ’ s intrusion on [the d]efendant ’ s privacy, we should ask ourselves what other 15

actions a reasonable o fficer would be expected to take under similar circumstances, 16

if not those taken in this instance.” Funderburg , 2008

- NMSC

- 026, ¶ 32. 17

{26} Here, Officer Stacy could have taken other actions to confirm or dispel his 18
suspicions, such as impounding the car because neither the driver nor Defendant was 1921 able to legally operate it. However, as in Funderburg
, none of the available options 1

“ would have spared Defendant the risk of an even greater intrusion into his privacy,” 2
with the exception of Officer Stacy “simply let [ ting] the car go, thereby ignoring his 3
suspicions and turning a blind eye to criminal activity.” Id. Officer Stacy asking 4

Defendant for his identifiers, the limited questioning being challenged here, was the 5
quickest and least in trusive way to confirm or dispel those suspicions. See id. ¶¶ 31

- 6
32 (concluding that the officer’s actions were constitutionally reasonable when he 7
took the most simple, direct
, and minimally intrusive approach by asking a brief 8
question instead of pursuin g the alternative options presented). 9

{27} As in Funderburg , Officer Stacy’s actions represented a graduated response 10
to the evolving circumstances of the traffic stop. 2008

- NMSC

- 026, ¶ 28. After it was 11
determined that the driver of the vehicle was an unlicensed minor, Officer Stacy was 12
justified in asking Defenda nt if he had a driver’s license in an attempt to determine 13

whether Defendant could drive the vehicle. Defendant responded that he did not 14
have a driver’s license. At this juncture, s upported by his experience in investigating 15
numerous burglaries , Officer S tacy’s observations of the alleged burglary tools in 16

the back seat, the driver ’s and Defendant’s nervous and unusual behavior thus far, 17
the time of day, the fact that neither the driver nor Defendant had a driver’s license, 18

and the driver’s confusion about his own age gave Officer Stacy further justification 1922 to expand the search and satisfy his suspicion by asking Defendant’s age. 1
Defendant’s untruthful response to this question provided yet more justification for 2
Officer Stacy to ask Defendant his name and date of birth. See Leyva , 2011

- NMSC

3
009, ¶ 61 (explaining that the officer’s initial question in that case was justified and 4

that “ the response to this question gave [the officer] further justification to expand 5
his search”). 6

{28} Defendant next separates the stop into discreet subparts . First, he describes 7

each tool as common, ordinary, or lawful. Defendant begins with the bolt cutters and 8
proceeds to consider the “protective goggles” and gloves, concluding that all are 9
“lawful to possess .

. . absent further information about an unlawful purpose

. ” 10

F inally , Defendant not es that there were no reported burglaries in the area at the time 11
of the traffic stop. We have previously explained that this “ ‘ divide

- and

- conquer 12
analysis ’ ” is an improper method of evaluation for an appellate court to consider 13
when assessing whether reasonable suspicion existed. See Martinez , 2018

- NMSC

14
007, ¶ 12 ( quoting Arvizu , 534 U.S. at 274). Instead, “we must review the totality of 15
the circumstances and must avoid reweighing individual fa ctors in isolation.” Id. 16
Courts examine the totality of the circumstances because “looking at each act in a 17

series of acts

. . . , taken alone, may be susceptible of an innocent explanation.” State 1823 v. Hernandez , 2016

- NMCA

- 008, ¶ 12, 364 P.3d 3 13. We theref ore decline to 1

conduct a divide

- and

- conquer analysis. 2

{29} Defendant’s remaining arguments (1) analogizing this case to cases decided 3
under a probable cause standard
, (2) relying upon cases assessing the sufficiency of 4

the evidence
, and (3) contending that law enforcement would be allowed to conduct 5
fishing expeditions if “proximity to a lawful item alone” or “ possession of lawful 6

items w as enough to support reasonable suspicion,” are unpersuasive. We have 7
previously explained that “ reasonable suspicion can arise from wholly lawful 8

conduct.” State v. Neal , 2007

- NMSC

- 043, ¶ 28, 142 N.M. 176, 164 P.3d 57 (internal 9
quotation marks and citation omitted). Further, i t is clear that, under the totality of 10
the circumstances, the facts of this case present multiple factors that supported 11
Officer Stacy’s reasonable suspicion beyond Defendant merely being in proximity 12
to, or in possession of, lawful items. Finally, for the reasons articulated in th is 13

o pinion
, we believe our reasonable suspicion case law is sufficiently developed that 14
we need not rely upon probable cause or sufficiency of the evidence cases to answer 15
the question before us. 16

{30} Upon our review of the totality of the circumstances, we con clude that Officer 17
Stacy had reasonable suspicion of criminal activity to support the expansion of the 18
otherwise valid traffic stop under Article II, Section 10. 1924 III. CONCLUSION 1

{31} Because Defendant’s rights were not violated under the Fourth Amendment 2

or Article II, Section 10, we affirm the district court’s denial of Defendant’s motion 3

to suppress. 4

{32} IT IS SO ORDERED. 5

6 JULIE J. VARGAS , Justice 7

WE CONCUR: 8

9 C. SHANNON BACON , Chief Justice 10

11 MICHAEL E. VIGIL , Justice 12

13 DAVID K. THOMSON , Justice 14