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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellant, 3

v. No. 33,590 4 MICHAEL MORA, 5 Defendant-Appellee. 6

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 7 Matthew J. Sandoval, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Bennett J. Bauer, Acting Chief Public Defender 14 Tania Shahani, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellee 17

MEMORANDUM OPINION 181 “Drunk Busters” is a statewide programin New Mexico administered by the 16 New Mexico Department of Public Safety. Itpresents itself as “a system which allows 17 good drivers to quickly and effectively report suspected DWI drivers through the use 18 of a toll-free number and cell phone conveni ence key[,]” and “a line for suspected 19 drunk drivers and is not intended for reporting common traffic violations[.]” 20 http://www.dps.state.nm.us/index.php/dwi-prevention/drunk-busters/. 21 2 KENNEDY, Judge. 1 {1} Defendant was parked in a restaurant parking lot during routine business hours 2 when Officer Whitfield, pursuing an anonymous “Drunk Busters” 1 phone tip, parked 3 behind him and activated the emergency li ghts on his patrol car. Officer Whitfield 4 approached Defendant, and Defendant ro lled down his truck window. The district 5 court suppressed all evidence gathered after Defendant rolled down his window at the 6 officer’s approach, holding that the State’ s argument that Defendant had been seized 7 pursuant to the “community caretaking” exception to the Fourth Amendment was 8 unsupported by the evidence. The State appealed. Finding no error, we affirm the 9 district court. 10 I. BACKGROUND 11 A. Standard of Review 12 {2} Whether a motion to suppress was properl y granted is a mixed question of law 13 and fact. State v. Bolin , 2010-NMCA-066, ¶ 12, 148 N.M .489, 238 P.3d 363.We view 14 the facts of the case in the light most favorable to the prevailing party where those 153 facts are supported by substantial evidence. State v. Ryon , 2005-NMSC-005, ¶ 11, 137 1 N.M. 174, 108 P.3d 1032 (acknowledging that the district court’s findings of 2 historical facts and witness credibility are entitled to deference). Given the limited 3 written findings entered in its order of suppression, we consider the district court’s 4 verbal comments in granting it to the extent such comments might clarify its written 5 ruling. State v. Harris , 2013-NMCA-031, ¶ 8, 297 P.3d 374. 6 {3} “The question for the revi ewing court is whether the trial court’s result is 7 supported by substantial evidence, not whether the trial court could have reached a 8 different conclusion.” State v. Walters , 1997-NMCA-013, ¶ 8, 123 N.M. 88, 934 P.2d 9 282 (citing State v. Lopez , 1989-NMCA-030, ¶¶ 4-5, 109 N.M. 169, 783 P.2d 479 10 (pointing out that whether a person is se ized is a legal question, and whether a 11 reasonable person would believe he was not free to leave is a factual question), 12 modified on other grounds by State v. Jason L. , 2000-NMSC-018, ¶ 19, 129 N.M. 119, 13 2 P.3d 856). We defer to the district court with respect to factual findings and indulge 14 all reasonable inferences th at support the court’s decision; we also review the 15 constitutional question of the reas onableness of a seizure de novo. State v. Light , 16 2013-NMCA-075, ¶ 19, 306 P.3d 534. 17 B. The State Did Not Raise Reasonable Sus picion for an Investigatory Seizure 18 {4} Before trial, Defendant filed a motion to suppress the evidence obtained as a 194 result of Officer Whitfield’s stop of De fendant, alleging that Officer Whitfield’s 1 actions were unlawful, being neither the re sult of reasonable suspicion nor in pursuit 2 of community caretaker responsibilities. Defendant’s motion to suppress was made 3 under Article II, Section 10 of the New Mexico Constitution that protects against 4 unreasonable searches and seizures. See State v. Leyva , 2011-NMSC-009, ¶¶ 49, 51, 5 149 N.M. 435, 250 P.3d 861 (holding that where a defendant raised the protection of 6 the New Mexico Constitution and a factual ba sis exists, the broader protection of the 7 state constitution is adequately raised). 8 {5} The State’s response to Defendant’s moti on to suppress asserted only that there 9 was “no traffic stop,” because Officer Whitfield was “operating under the ‘community 10 caretaker’ function of law enforcement[,]” under which an officer can “stop a vehicle 11 for a specific, articulable safety concern.” The State cited Walters in this regard. 12 1997-NMCA-013, ¶ 10 (noting that a commun ity caretaking encounter is a voluntary 13 encounter, involving no coercion or detenti on; because such encounters occur without 14 reasonable suspicion of criminal activity and are intended to further public safety, they 15 fall outside the Fourth Amendment). According to the State, for purposes of public 16 safety checks, this approach to Defendant leading to his rolling down his window was 17 not a seizure, and Officer Whitfield required no reasonable suspicion to approach 18 Defendant, whose “vehicle was parked where the Drunk Buster call said it would be.” 195 However, the State argued that Officer Whitf ield acquired reasonable suspicion at the 1 point “when officers smelled the odor of alcohol emanating from [D]efendant.” That 2 occurred only after Defendant had rolled down his window at the officers’ approach 3 and engaged their questions. The State’s soleargument to the district court was that 4 Defendant’s seizure was jus tified by the “community caretaker” exception to the 5 warrant requirement. On appeal, the State argues that it preserved the argument that 6 “the encounter was not initially a seizure and that any seizure was lawfully based on 7 reasonable suspicion.” We disagree; the Stat e did not argue below that the seizure was 8 supported by reasonable suspicion, but rather that suspicion was acquired well into the 9 encounter with Defendant, after he had submitted to Officer Whitfield’s authority. 10 {6} The State’s appellate stance emphasizing reasonable suspicion for a traffic stop 11 was not argued below. To preserve an issue for appeal, even the State must make a 12 timely objection that specifically apprises the di strict court of the nature of the claimed 13 error and invokes an inte lligent ruling thereon. See State v. Varela , 1999-NMSC-045, 14 ¶ 25, 128 N.M. 454, 993 P.2d 1280. To the exte nt the State now attempts to raise 15 reasonable suspicion as grounds for a valid warrantless seizure, they may not. “A 16 litigant may not stand on one ground of objec tion in the [district] court and urge 17 another here.” Scofield v. J. W. Jones Constr. Co. , 1958-NMSC-091, ¶ 21, 64 N.M. 18 319, 328 P.2d 389. We decline the State’s invitation to address the matter further. 196 Accordingly, we proceed to analyze only the State’s justification for the stop under 1 the community caretaking exception. 2 II. DISCUSSION 3 A. Standard for Community Caretaking 4 {7} Community caretaking encounters can be consensual or non-consensual. See 5 Ryon , 2005-NMSC-005, ¶ 1 (noting that the in trusion of a caretaking encounter can 6 occur without a warrant or consent). Howe ver, if Defendant was detained by Officer 7 Whitfield’s pursuit of community caretaki ng, the detention must be based on an 8 articulated, reasonable concern for public safety. Id. ¶ 30; State v. Sheehan , 2015- 9 NMCA-021, ¶ 13, 344 P.3d 1064, cert. denied , 2015-NMCERT-002, 346 P.3d 370. 10 This equates to having “reasonable grounds tobelieve that there is an emergency at 11 hand and an immediate need for [police] assistance for the protection of life or 12 property.” Ryon , 2005-NMSC-005, ¶ 29 (internal quotation marks and citation 13 omitted). The primary objective of the contactmust be public safety and not criminal 14 investigation. The stopping of a vehicle fo r a safety concern requires an objective 15 assessment of whether the officer had a reasonable concern for public safety. Sheehan , 16 2015-NMCA-021, ¶ 12. The subjective motivation of the officer is a factor to be 17 considered in this regard, Ryon , 2005-NMSC-005, ¶ 37, to distinguish the use of 18 public safety “as a subterfugeor pretext when the real purpose of the search is to 197 arrest a suspect or gather ev idence without probable cause.” Id. ¶ 34. Thus, detaining 1 Defendant for the primary purpose of inve stigating possible criminal behavior is 2 beyond the scope of safety concerns, and appropriate only in circumstances where 3 there is a reasonable suspicion thatthe law is or has been broken. Sheehan , 2015- 4 NMCA-021, ¶ 12. However, if Defendant wa s initially validly detained because of a 5 community caretaking encounter, that enc ounter could be validly expanded at the 6 point Officer Whitfield acquired sufficient reasonable suspicion to pursue the DWI 7 investigation. State v. Randy J. , 2011-NMCA-105, ¶ 34, 150 N.M. 683, 265 P.3d 734. 8 This is the crux of the State’s argument as it was presented below. We regard the 9 argument as unavailing for reasons that follow. 10 B. Past Erratic Driving Does Not Sufficiently Justify a Caretaking Seizure 11 {8} At the hearing on Defendant’s motion, O fficer Whitfield was the sole witness 12 providing evidence. He was dispatched at approximately 7:30 p.m. to the parking lot 13 serving a local grocery store and a Lotaburger in response to an anonymous “Drunk 14 Buster” tip reporting a vehicle driving erratically that had parked there. Officer 15 Whitfield testified that after his receipt of the dispatch, he pro ceeded not in pursuit of 16 a DWI investigation, but out of concern thatthe driver of the vehicle in question was 17 experiencing a medical emergency. Accordi ng to Officer Whitfield, it is his custom 18 to handle all “Drunk Buster calls” as an emergency based upon a be lief that the person 198 might be having a heart attack or emergenc y health concern. He testified that he 1 definitely was not proceeding as if he wa s investigating a DWI. By the same token, 2 Officer Whitfield testified that he coul d not articulate what the emergency was to 3 which he was responding, saying that “dispatch came out that it was erratic driving.” 4 Officer Whitfield’s police report did not mention any suspicion of a health problem 5 to be investigated, erratic driving, or any driving at all. 6 {9} Upon reaching the parking lot, Officer Whitfield saw a truck conforming to the 7 dispatch. It was occupied by Defendant. O fficer Whitfield parked behind Defendant’s 8 car and activated his emergency lights; Offi cer Whitfield stated that he turns on the 9 lights at “every emergency wego to.” Defendant was sitting in the driver’s seat with 10 the keys in the ignition; the vehicle wa s parked and turned off. The windows to 11 Defendant’s car were rolled up prior to O fficer Whitfield’s approach. Nothing about 12 the Defendant nor his truck prior to De fendant’s rolling down his window at Officer 13 Whitfield’s approach indicated to the officer that Defendantwas in need of assistance, 14 such as a flat tire or opened hood, nor wa s there any appearance of medical distress. 15 Defendant could not have reversed to leave the parking space, but could have driven 16 forward. Officer Whitfield testified thathad Defendant attemp ted to leave before 17 conveying that he was okay, the officer w ould have tried to stop him from doing so. 18 {10} When Officer Whitfield approached Defendant, Defendant rolled down his 199 window to speak with Officer Whitfield. As Defendant spoke, his speech was slurred 1 and Officer Whitfield smelled alcohol on his breath. Officer Whitfield repeatedly 2 testified that he did not suspect Defendant of having broken the law until after 3 Defendant rolled down his window. After noticing the odor and slurred speech, 4 Defendant was arrested and charged with driving under the influence, contrary to 5 NMSA 1978, Section 66-8-102(C)(1) (2010). Offi cer Whitfield failed to relate erratic 6 driving to his supposed legitimate concern Defendant’s health. This was not a 7 caretaking encounter. 8 C. Defendant Was Seized When He Submitted to Police Authority 9 {11} Defendant did not in itiate the encounter. Officer Whitfield not only activated 10 his emergency lights, but also parked ina way that limited Defendant’s movement 11 prior to initiating contact. See Lopez , 1989-NMCA-030, ¶ 13 (“Ordinarily, a driver 12 and passenger in a car w hose progress is blocked by police would not believe 13 themselves free to leave[.]”). Since ac tivation of emergency lights can certainly 14 constitute a show of authority that can lead to a seizure when a person submits to that 15 authority we see no reason not to accept th e district court’s view of the facts. 16 Defendant argued that he was seized by the actions of Officer Whitfield in parking 17 behind him with his emergency equipment engaged and initiati ng contact through an 18 exercise of his police authority. In Walters , we distinguished caretaking encounters 1910 as voluntary, involving no coercion or detention—thus removing them from Fourth 1 Amendment seizure scrutiny, although under some circumstances, police intrusion 2 into an individual’s privacy may be warranted owing to the public safety concern 3 involved. 1997-NMCA-013, ¶ 10. 4 {12} A person is seized under Article II, S ection 10 of the New Mexico Constitution 5 “if, in view of all of the circumstances surrounding the incident, a reasonable person 6 would have believed that hewas not free to leave.” State v. Garcia , 2009-NMSC-046, 7 ¶ 37, 147 N.M. 134, 217 P.3d 1032 (internal quotation marks and citation omitted). 8 “While police are free to engage people consen sually to gather information, when they 9 ‘convey a message that compliance with their request is required,’ the reasonable 10 person would not feel free to leave and a seizure has occurred.” Id. ¶ 39 (alteration 11 omitted) (quotingJason L. , 2000-NMSC-018, ¶ 14). This te st is an objective one, in 12 which Officer Whitfield’s motivati on is only marginally important. See State v. 13 Baldonado , 1992-NMCA-140, ¶ 17, 115 N.M. 106, 847 P.2d 751 (stating that an 14 officer’s subjective intent is relevant onl y to the extent that it would bear on the 15 beliefs of a reasonable person in the defendant’s shoes); see also Jason L. , 2000- 16 NMSC-018, ¶ 26 (Serna, J., specially concurri ng) (noting that subjective intent of an 17 officer is relevant to the extent it has b een conveyed to person seized). A seizure can 18 be effected either through physical force or a show of authority. See, e.g. , State v. 1911 Talley , 2008-NMCA-148, ¶ 14, 145 N.M. 127, 194 P.3d 742. A show of authority 1 results in a seizure only where the suspect s ubmits to the show of authority; where the 2 suspect has not submitted, he has not been seized. Id. 3 {13} Whether a show of authority was empl oyed is fact-based, and as such, we 4 review it for substantial evidence. Jason L. , 2000-NMSC-018, ¶ 19. We then look to 5 whether the circumstances reached such a level of accosting and restraint that a 6 reasonable person would have belie ved he was not free to leave. Id. This consideration 7 requires a de novo application of those facts to the law. State v. Murry , 2014-NMCA8 021, ¶ 14, 318 P.3d 180. “Three factors should be considered in order to determine 9 whether a reasonable person would feel free to walk away from an encounter with the 10 police: (1) the conduct of the police, (2) th e person of the individual citizen, and (3) 11 the physical surroundings of the encounter.” Id. ¶ 20 (internal quotation marks and 12 citation omitted). Moreover, this coerced detention, in order to be “reasonable,” must 13 be based on specific articulable facts, together with rational inferences from those 14 facts, that a particular person, the one actually detained, is breaki ng, or has broken, the 15 law. State v. Watley , 1989-NMCA-112, ¶ 17, 109 N.M. 619, 788 P.2d 375. As 16 mentioned above, seizure through a show of authority occurs when a suspect submits 17 to the show of authority. See Talley , 2008-NMCA-148, ¶ 14. 18 {14} There is no dispute between the parties that Officer Whitfield detained 1912 Defendant, just when. Defendant maintains that he was seized by Officer Whitfield’s 1 parking behind him and engaging his emerge ncy lights without a reasonable basis for 2 the detention. Officer Whitfield’s approaching him to ask questions in a way that 3 conveyed to him that he wa s not free to leave resulted in an unconstitutional seizure. 4 {15} The State urged that only the facts support a view that the officer only 5 approached Defendant pursuant to the “c ommunity caretaking” exception, which is 6 contact with Defendant existi ng outside of constitutional c onsiderations regarding the 7 seizure of persons, and allows for warrantle ss temporary seizures of persons in the 8 interest of promoting public safety. See Ryon , 2005-NMSC-005, ¶ 25; Sheehan , 2015- 9 NMCA-021, ¶ 10. “[W]arrant s, probable cause, and reasonable suspicion are not 10 required when police are engaged in activitie s that are unrelated to crime-solving.” 11 Ryon , 2005-NMSC-005, ¶ 24. 12 {16} This view is unsupported by the record below. The State never argued to the 13 district court that reasonable suspicion ex isted prior to the moment Defendant was 14 seized, and the district court never ruled on the question. The State’s response argued 15 only that “[r]easonable suspicion did arise when the officers smelled the odor of 16 alcohol emanating from [D]efendant.” Prior tothat time, the State maintained, there 17 was no seizure to implicate Article II, S ection 10 of the New Mexico Constitution. 18 {17} The district court rejected Officer Whitfie ld’s view of the facts, and the State’s 1913 argument, stating that it had a “difficult time with that description of every DWI 1 buster call refers to a medical emergency. ” The district court’s finding that Officer 2 Whitfield was “responding to a [D]runk [B]usters call” was significant. It specifically 3 voiced skepticism of Officer Whitfield’s credibility that he regarded every “Drunk 4 Buster” dispatch as a medical emergency, stating: “I’m not saying that you’re not 5 telling the truth, but . . . if you get a DWI buster call, that’s a red flag that you’re 6 looking for somebody that’s drunk, and it goes—leads more into the area of an 7 investigatory stop.” Of course, it is up to th e trier of fact to assess the credibility of 8 witnesses. See State v. Armijo , 2005-NMCA-010, ¶ 4, 136 N.M. 723, 104 P.3d 1114 9 (“[I]t is for the fact-finder to evaluate the weight of the evidence, to assess the 10 credibility of the various witnesses, and to resolve any conflicts in the evidence; we 11 will not substitute our judgment as to such matters.”). The district court concluded that 12 the call was “an investigatory call that started off as a DWI,” although the officer 13 “might have a secondary thought about it being medical, or you might think of them 14 both.” See Schuster v. N.M. Dep’t of Taxation & Revenue , 2012-NMSC-025, ¶ 27, 283 15 P.3d 288 (stating that “a conti nued investigation by an officer in his or her role as a 16 community caretaker is reasonable as long as the officer is motivated by a desire to 17 offer assistance and not investigate”). The district court’s conclusion, that the State’s 18 object in detaining Defendant was investigative in nature and not, as the State’s sole 1914 argument averred, a “community caretaki ng” encounter, was s upported by substantial 1 evidence. Defendant’s rolling down hi s window was a submission to Officer 2 Whitfield’s show of authority , and Defendant was seized at that time. By the State’s 3 calculus, it was because of that moment that any facts suggesting criminal 4 involvement came into play. Officer Whitfield’s testimony was insufficient to 5 establish the caretaking exception. Whether or not there was reasonable suspicion to 6 detain Defendant, the argument stands forfeit for lack of preservation in the district 7 court. The seizure of Defendant was constitutionally unreasonable. 8 III. CONCLUSION 9 {18} We agree with the district court that there were no facts supporting a legitimate 10 public safety concern that were not rooted in Officer Whitfield’s pursuit of a criminal 11 investigation. The district court properly suppressed all evidence obtained as a result 12 of that stop. We affirm the district c ourt, and remand this case for any further 13 proceedings necessary to resolve this case. 14 {19} IT IS SO ORDERED. 15

______________________________ 16 RODERICK T. KENNEDY, Judge 17 WE CONCUR: 18

_________________________________ 19 MICHAEL E. VIGIL, Chief Judge 2015 _________________________________ 1 J. MILES HANISEE, Judge 2