This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-35008 4 JULIAN NAVARETTE-GOMEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 William G.W. Shoobridge, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jane A. Bernstein, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 B. Douglas Wood III, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRENCH, Judge. 193 {1} Defendant Julian Navarette-Gomez was charged with trafficking cocaine, 1 trafficking methamphetamine, possession of drug paraphernalia, and possession of a 2 firearm by a felon after a traffic stop initiated for speeding and failure to use a turn 3 signal. Defendant entered a conditional no contest plea to second-degree trafficking 4 of methamphetamine and misdemeanor po ssession of drug paraphernalia, reserving 5 his right to appeal the district court’s denial of his motion to suppress. As a habitual 6 offender, Defendant wa s sentenced to a prison term of seven years and two days. 7 Defendant appeals from denial of his moti on to suppress evidence based on violations 8 of the Fourth Amendment of the United St ates Constitution and Article II, Section 10 9 of the New Mexico Constitution. We affirm. 10 BACKGROUND 11 {2} Officer Gustavo Avina of the New Mexi co State Police was the only witness 12 presented by the State at the hearing on the motion to suppress, and testified as 13 follows: On December 16, 2011, Officer Avina stopped Defendant on West County 14 Road, outside of Hobbs, New Mexico, for speeding and failure to use a turn signal. 15 Defendant did not produce his driver’s licenseand had no insurance or registration for 16 the vehicle he was driving. The license plate on the vehicle was registered to another 17 vehicle. Officer Avina issued citations to Defendant and informed him that the vehicle 18 would be towed. Officer Avina initially told Defendant to get “all the stuff” he needed 194 out of the vehicle, but then instructed Defendant to only take the stereo. Defendant 1 acknowledged that Officer Avina told him only to take the stereo. Defendant then 2 nonetheless began removing a number of other items from the vehicle and placing 3 some in his pockets, at which point OfficerAvina told Defendant “come here for a 4 minute,” and asked him if there was anything in his pockets that “shouldn’t be there.” 5 Defendant initially said he did not know what was in hi s pockets, and then voluntarily 6 admitted that he had a pipe for smoking methamphetamine and a scale. Officer Avina 7 told Defendant to remove the contents of his pockets, and Defe ndant removed a pipe, 8 a scale, a plastic bag containing cocaine, and a smaller “black or brown” bag. Officer 9 Avina found two plastic bags containing methamphetamine in the smaller bag. 10 {3} In his motion to suppress, Defendant argued that Officer Avina’s command that 11 he “come here” and the questions about the c ontents of his pockets violated his rights 12 under the Fourth Amendment of the United St ates Constitution and Article II, Section 13 10 of the New Mexico Constitution. Defendant argued that Officer Avina’s conduct 14 constituted a subsequent seizure after the tr affic stop had conclude d, one that was not 15 based on reasonable suspicion. 16 {4} The district court denied the motion, and ruled orally that the time of the 17 detention during which Officer Avina asked about the contents of Defendant’s pockets 18 was de minimis and that the totality of the circumstances supported reasonable 195 suspicion, based upon the fact that Officer Avina told Defendant to only retrieve the 1 stereo and Defendant took multiple items from the vehicle, the fact that this was a 2 nighttime traffic stop, that Defendant was ac ting nervous, and that these facts further 3 suggested concern regarding Officer Avina’s safety. 4 DISCUSSION 5 {5} “A [district] court’s determination on a motion to suppress evidence involves 6 a mixed question of law and fact[.]” State v. Bell , 2015-NMCA-028, ¶ 2, 345 P.3d 7 342. Defendant does not dispute the facts in this case and we therefore limit our 8 analysis to the application of the fact s to the law which we review de novo. Id .; see 9 also State v. Neal , 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57 (same); State 10 v. Martinez , 2018-NMSC-007, ¶ 3, 410 P.3d 186 (same). 11 {6} Defendant argues that the removal of ite ms from the vehicle did not give the 12 officer valid reasonable suspicion or other grounds to re-seize Defendant. Article II, 13 Section 10 of the New Mexico Constitution re quires “a reasonable justification for an 14 initial stop and that allquestions asked during the stop be reasonably related to the 15 reason for the stop or otherwise supported by reasonable suspicion.” Bell , 2015- 16 NMCA-028, ¶ 15 (alteration, internal quot ation marks, and citation omitted). Even 17 questions that do not prolong the encounter are improper if they are not “reasonably 18 related to the reason for the stop or otherwise supported by reasonable suspicion.” Id. 196 ¶ 16 (alteration, internal quot ation marks, and citation omitted). To expand the scope 1 of investigation, “[a] law enforcement officer must have reasonable and articulable 2 suspicion that other criminal activityhas been or may be [occurring].” State v. Leyva , 3 2011-NMSC-009, ¶ 59, 149 N.M. 435, 250 P. 3d 861 (internal quotation marks and 4 citation omitted). However, a de minimis ex tension of a stop that does not measurably 5 extend its duration, particularly to ask que stions which necessarily implicate officer 6 safety, is not unreasonable under the Fourth Amendment. See id. ¶¶ 20-22, 32 (stating 7 that the touchstone question under the Fourth Amendment is one of reasonableness 8 and incorporates an officer’s diligence in asking questions unrelated to the initial 9 purpose of the stop, including safety relate d inquiries, that do not excessively prolong 10 the traffic stop). 11 {7} Levya provides the analytic roadmap in this case. Although the defendant in 12 Leyva ultimately consented to the search of th e vehicle and Defendant here claims that 13 he did not consent to a search of his person, the defendant’s arguments in Leyva were 14 based in part on the fact that the officer improperly asked about the contents of the 15 vehicle before the defendantconsented to the search. Id. ¶¶ 2, 5. Thus, our Supreme 16 Court’s analysis of the officer’s initial questioning and the totality of the 17 circumstances are instructive. In Leyva , our Supreme Court looked at a number of 18 facts which individually might not have given rise to reasonable suspicion, but when 197 viewed as a whole did. Id. ¶ ¶ 59-60. The Court then held that prolonging a traffic stop 1 by ten minutes to ask about whether there was anything in the vehicle the officer 2 needed to know about before the vehicle wa s turned over to a third party to remove 3 it from the scene was a de minimis exte nsion that was not unreasonable under the 4 circumstances because the officer would have had safety concerns and still had a 5 “need to control the scene[.]” Id. ¶¶ 33-34 (internal quotation marks and citation 6 omitted). Moreover, although the officer in Leyvahad already issued the citations and 7 returned the defendant’s information to hi m when he asked what was in the vehicle, 8 his “need to control the scene” had not e nded because the defendant was still present 9 and waiting for a ride and a third party was coming to retrieve the vehicle. Id. ¶ 34 10 (internal quotation marks and citation omitted). 11 {8} Applying Leyva , we must resolve whether Officer Avina had reasonable 12 suspicion to expand his questions beyond those related to the purpose of the initial 13 stop. In Leyva , the defendant was stopped for speeding, and the officer observed the 14 defendant lean to the right and appear to stuff something under the passenger seat. Id. 15 ¶ 4. During the course of the stop, the o fficer discovered the defendant’s license was 16 suspended and informed the defendant that hecould have someone retrieve the vehicle 17 within ten minutes or it w ould be towed and impounded. Id. The defendant arranged 18 to have someone pick up the vehicle. Id. The officer then asked the defendant if there 198 was anything in the vehicle that he needed to know about, and the defendant 1 responded that there was marijuana in the vehicle and consented to a search that also 2 revealed methamphetamine. Id. ¶ 5. The district court found that the questions related 3 to the contents of the vehicle did not viol ate Article II, Section 10 of the New Mexico 4 Constitution, and our Supreme Court affi rmed, holding that it was not unreasonable 5 for the officer to inquire about the presence of contraband in the vehicle, given that 6 the officer saw the defendantappear to hide something under the passenger seat. 7 Leyva , 2000-NMSC-009, ¶ 60

. 8 {9} As did our Supreme Court in Leyva , we examine the totality of the 9 circumstances encountered by Officer Avina. Id. ¶ 59. Here, after being informed his 10 vehicle would be towed and that he shoul d only take the stereo, Defendant instead 11 removed multiple items from the vehicle and concealed them in his pockets. 12 Defendant then acted nervous, and when aske d claimed not to know that which he had 13 just placed in his pockets. When initially stopped, Defendant had no driver’s license, 14 no registration or insurance for the vehicle he was driving, and claimed he had placed 15 a different license plate on the vehicle due to an “emergency.” The time extension to 16 the stop caused by Officer Avina saying “c ome here” to Defendant and inquiring 17 about the contents of Defendant’s pocke ts was less than one minute. The total 18 encounter lasted almost forty minutes. Such was not a constitutionally unreasonable 199 extension of the traffic stop, particularly given that Defendant was accessing the 1 vehicle and concealing items in his pockets that he was removing contrary to Officer 2 Avina’s instruction that he take only the stereo, that Defendant was doing this minutes 3 before Officer Avina’s question, that Defe ndant did not appear to be attempting to 4 leave the scene, and that the tow truck driv er was present, all of which indicated that 5 Officer Avina still had a need to both contro l the scene and ensure his own safety or 6 that of the tow truck driver. Based on th e foregoing, the district court correctly 7 concluded that Defendant’s emergence from the car “with multiple items . . . in the 8 middle of the night . . . [and] putting something in [his] pockets, that there was a 9 lawful search at that point[.]” We agre e that Officer Avina’s question about the 10 contents of Defendant’s pockets di d not unreasonably prolong the encounter. 11 Although any one of these facts described inthe paragraph above itself might not give 12 rise to reasonable suspicion, wh en viewed in total, we cannot say that the district court 13 lacked substantial evidence upon which to determine that Officer Avina’s conduct was 14 supported by reasonable suspicion. 15 {10} We find unpersuasive Defendant’s argument that Bell and Leyvainstruct 16 otherwise. In Bell , this Court concluded that reasonable suspicion did not exist to 17 permit questions about rocket launchers, grenades, and dead bodies in the course of 18 a DWI investigation, holding that such questi ons must be “analyzed to ensure they are 1910 reasonably related to the initial justif ication for the stop or are supported by 1 reasonable suspicion.” 2015-NMCA-028, ¶ 15 (internal quotation marks and citation 2 omitted). But we have held that unlike in Bell , Officer Avina’s questions were 3 supported by reasonable suspicion given the circumstances that arose during the 4 traffic stop. And to reiterate, Leyvarecognized that because “traffic stops are 5 ‘especially fraught with danger to police officers[,]’ ” searches “based upon the 6 objectively reasonable belief that the individuals stopped pose a threat to officer safety 7 [and that are] limited to its purpose of protecting the officers, and the public, during 8 the stop” are constitutionally proper. 2011- NMSC-009, ¶ 25 (internal quotation marks 9 and citation omitted). See id. (noting that movements by a vehicle’s occupants that are 10 consistent with hiding objects generally gi ve rise to reasonable safety concerns). 11 Consistent with Leyva ’s conclusion that the defendant ’s furtive gestures, movements, 12 and the appearance of hiding something under the front seat 13 satisfied an objective concern for officer safety and a permissible de minimis 14 extension of a valid stop, the district court here correctly conclude d that Officer Avina 15 acted with objectively reasonable suspicion and concern for officer and public safety 16 in the unfolding events presented to him. 1711 {11} Because the broader protections of Artic le II, Section 10 of the New Mexico 1 Constitution were not violated, we do not address Defendant’s Fourth Amendment 2 arguments. 3

CONCLUSION 4 {12} We affirm. 5 {13} IT IS SO ORDERED. 6

______________________________ 7 STEPHEN G. FRENCH, Judge 8

WE CONCUR: 9

___________________________________ 10 LINDA M. VANZI, Chief Judge 11

___________________________________ 12 J. MILES HANISEE, Judge 13