This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,606 9 ANTHONY LIELLO, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Lisa C. Schultz, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 M. Victoria Wilson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 KENNEDY, Judge. 24 Defendant appeals from his convictions for driving under the influence of 252 drugs, possession of marijuana, and posse ssion of drug paraphernalia, which were 1 entered pursuant to his conditional guilty plea. In the plea agreement, Defendant 2 reserved the right to appeal the denial of his motion to suppress. On appeal, 3 Defendant argues that his high degree of nervousness at a DWI checkpoint did not 4 provide the officer with reasonable suspici on of criminal activity to justify sending 5 him to the secondary inspection area. We agree with Defendant and reverse. 6 DISCUSSION 7 Suppression rulings involve mixed questions of fact and law. See State v. 8 Vandenberg , 2003-NMSC-030, ¶ 17, 134 N.M. 566, 81 P.3d 19. Factual questions 9 we review for substantial evidence and then view the facts in the light most favorable 10 to the prevailing party. See id. ¶ 18. Legal questions wereview de novo, including 11 the constitutional reasonableness of the officers’ actions. See id. ¶ 19. 12 A pivotal legal question in this case is whether the law requires an officer to 13 articulate reasonable suspicion of criminal activity to justify sending a motorist to a 14 secondary inspection area at a DWI checkpoint or whether a lesser suspicion is 15 permitted. Defendant argues that his prol onged detention at the sobriety checkpoint 16 violated both his federal and state constituti onal rights. The parties do not dispute on 17 appeal that the officer must have c onstitutionally reasonable suspicion. In State v. 18 Cardenas-Alvarez , the New Mexico Supreme Court observed that under federal law 193 checkpoint stops “may be conducted at primary or secondary inspection areas without 1 suspicious circumstances.” 2001-NMSC- 017, ¶ 9, 130 N.M. 386, 25 P.3d 225. The 2 New Mexico Supreme Court held that the New Mexico Constitution, however, 3 provides greater protection for secondary detentions at routine checkpoint stops, 4 requiring reasonable suspicion of criminal activity. See id. ¶ 16. Because Defendant 5 asserted this greater protection in distri ct court, we apply the state constitutional 6 standard to the decision to send Defendant to the secondary inspection area. See State 7 v. Neal , 2007-NMSC-043, ¶ 20, 142 N.M. 176, 164 P.3d 57 (“Following a valid stop 8 and reasonably related inves tigation, further detention requires reasonable suspicion 9 of criminal activity.” (citation omitted)). 10 “[R]easonable suspicion is measured by an objective standard, in which the 11 court examines the totality of the surroundingcircumstances, to determine whether the 12 officer acted reasonably in expanding the scope of inquiry.” Id. ¶ 21 (internal 13 quotation marks and citation omitted). “A reasonable suspicion is a particularized 14 suspicion, based on all the circumstances that a particular individual, the one detained, 15 is breaking, or has broken, the law.” Id. (internal quotation marks and citation 16 omitted). “In the absence of specific and particularized incriminating information 17 about the criminal activity that defendant is or is about to engage in, generalized 18 suspicions . . . [are] insufficient to create reasonable suspicion for an investigatory 194 detention.” Id. ¶ 25 (internal quotation marks and citation omitted). 1 At the suppression hearing, Captain Richard Williams testified about the 2 encounter he had with Defendant whileon duty at a DWI checkpoint. Captain 3 Williams remembered when Defendant pulle d up to the checkpoint, his attention was 4 immediately caught by Defendant’s extreme nervousness and shaky hands. The 5 captain testified that Defendant’s nerv ousness was extreme and the captain was 6 concerned about Defendant’s ability to drive while sh aking that much. Captain 7 Williams observed two unopened cans of beer next to the driver’s seat and asked 8 Defendant if he had consumedany alcohol that day. De fendant responded, “not yet.” 9 The captain testified that he did not know why Defendant was so nervous and that he 10 did not suspect drinking; he was “just con cerned” based on the brief moment he had 11 to evaluate Defendant. Captain Williams emphasized that he would not be able to 12 make a determination based on a minute-long conversation. He further testified that 13 most officers would have completed the i nvestigation at the primary inspection area, 14 but that as the captain, he asked one of his officers to take over and conduct his own 15 investigation at the secondary inspection area. The captain statedthat his uncertainty 16 about the reason for Defendant’s nervousne ss was why he had so meone else conduct 17 the investigation and why he directed De fendant to the secondary inspection area. 18 Captain Williams stated his understanding that in order to send motorists for a 195 secondary inspection, he wa s looking for impairment. When asked how nervousness 1 indicates impairment, the captain stated that in his e xperience with methamphetamine 2 users, they become highly nervous, agitated, and paranoid. When asked what other 3 facts the officer could point to, he responded that he used his experience to arrive at 4 a reasonable suspicion that Defendant was “tweaking.” 5 In its order denying Defendant’s motion to suppress, the district court expressly 6 refused to consider any testimony the captain gave regarding his suspicions that 7 Defendant was “tweaking” from methamphetamine use. Because we do not consider 8 evidence for the first time on appeal and do not make implicit or explicit credibility 9 determinations, we too refuse to consider th is testimony as part of the totality of the 10 circumstances that could lead to reas onable suspicion of criminal activity. See State 11 v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that we 12 defer to the district court as fact finder toresolve any conflict in the testimony of the 13 witnesses and to determine where weight and credibility lay). The district court 14 concluded that Captain Williams had reasona ble suspicion of impairment to direct 15 Defendant to the secondary inspection, base d on his experience of seventeen years and 16 Defendant’s extreme nervousness and shaky hands. The district court explicitly 17 rejected the evidence linking impairmentto anything other than Defendant’s 18 nervousness and shaky hands. Therefore, de spite the State’s reliance on the fact in 196 their brief, we consider only whether th e captain’s testimony established reasonable 1 suspicion of impairment based on De fendant’s nervousne ss and shaky hands. 2 Our case law dealing with a defendant ’s nervousness and physical signs of 3 nervousness acknowledges that, combined w ith other suspicious circumstances, an 4 officer may develop a reasonable suspicion of criminal activity, or, with sufficiently 5 specific testimony, an officer could devel op a reasonable suspicion that the defendant 6 is armed and dangerous. State v. Chapman , 1999-NMCA-106, ¶¶ 2, 16-18, 127 N.M. 7 721, 986 P.2d 1122; see, e.g. , State v. Guzman , 118 N.M. 113, 116, 879 P.2d 114, 115 8 (Ct. App. 1994); Vandenberg , 2003-NMSC-030, ¶¶ 4-6, 8-10, 28-33. These and other 9 cases have firmly established that a generalized report of nervousness, alone, is not 10 enough for an officer to develop a reasonable suspicion of criminal activity or to 11 justify a protective frisk. See State v. Gutierrez , 2008-NMCA-015, ¶ 18, 143 N.M. 12 522, 177 P.3d 1096; Neal , 2007-NMSC-043, ¶ 29; Vandenberg , 2003-NMSC-030, ¶ 13 31. 14 We see material distinctions betweenthe case law involving nervousness that 15 led to reasonable suspicion and the case at hand. In Guzman , a border checkpoint 16 case, the officer smelled an overwhelming odor of air freshener from five or six feet 17 away from the defendant’s vehi cle, which indicated to the experienced officer that the 18 defendant was attempting to mask the odor of unlawful drugs. See Guzman , 118 N.M. 197 at 115-16, 879 P.2d at 114-15. Further, the officer observed that the defendant was 1 nervous, his hands were shaking, and hi s eyes were darting around to avoid eye 2 contact with the officer. See id. at 115, 879 P.2d at 114. Traffic at the checkpoint was 3 backing up and he referred the defendant to the secondary inspection area. See id. 4 This Court noted that “[n]ervousness during a routine checkpoint stop is more 5 significant than nervousness when one’s vehicl e is singled out from traffic for a police 6 stop.” Id. at 116, 879 P.2d at 115. This Court held that the unusually strong odor of 7 air freshener was a reliable factor in establishing reasonable suspicion, which 8 combined with the defendant’s unusual nervousness, justified the officer’s decision 9 to send the defendant to the secondary inspection area. See id. 10 In contrast, in the current case, the captain reported only that Defendant was 11 extremely nervous and that his hands were shaking at the checkpoint stop combined 12 with no other observations of suspicious c onduct. Also, unlike the officer’s testimony 13 in Guzman , the captain in the current case did not express any concerns about the 14 traffic backing up as a result of the length of his investigation at the primary 15 checkpoint. In fact, the captaintestified that traffic was not backed up and that he did 16 not make any effort to maintain a flow of traffic through the roadblock because of 17 safety concerns. Rather, he testified that he exercised hi s discretion as the captain to 18 have another officer take over the investig ation, and emphasized he had only a brief 198 moment to evaluate Defendant without offering any reason for this degree of brevity. 1 The captain further stated that during the moment he inter acted with Defendant, he did 2 not “know what the issue was,” and sent De fendant to another o fficer for a secondary 3 inspection. The captain’s testimony does not establish nervousness plus the other 4 relevant factors of the type considered sufficient for a secondary investigation in 5 Guzman

. 6 Where an officer develops concerns that stem from a person’s nervousness, 7 New Mexico cases will not rely solely upon this information to expand the stop 8 without further specifically articulated concerns of escalating circumstances that occur 9 during the intial investigation stage of such stop. See Vandenberg , 2003-NMSC-030, 10 ¶¶ 25-31; Chapman , 1999-NMCA-106, ¶¶ 2, 16-18; cf. State v. Patterson , 11 2006-NMCA-037, ¶ 29, 139 N.M. 322, 131 P.3d 1286 (“An officer’s statement 12 concerning a person’s nervousness without an articulation of specific reasons of 13 concern is insufficient to support a finding of individualized suspicion.”). Our Courts 14 have little regard for nervousness alone. In Chapman , we emphasized that “[i]nstead 15 of just describing [the d]efendant as nervous, the deputy identified specific behaviors 16 and changes in [the d]efendant’s demeanor and attitude that explain why he believed 17 that [the d]efendant might be armed and dangerous.” Chapman , 1999-NMCA-106, 18 ¶ 16. 199 In Vandenberg , the New Mexico Supreme Court reaffirmed our analysis in 1 Chapman , and emphasized the need for offi cers to provide “other specific 2 observations that made them anxious for th eir personal safety . . . [i]n addition to 3 extreme nervousness.” See Vandenberg , 2003-NMSC-030, ¶ 28. Like the officer in 4 Chapman , the officer in Vandenbergtestified about the unusual degree of the 5 defendants’ nervousness, and specifically described his feeling that the driver “was 6 trying to expel nervous energy through hi s movement, stretc hing, drumming his 7 fingers on the roof of the car.” Id. ¶ 29. During the traffic stop, the driver and 8 passenger were often speaki ng to each other; the passe nger was fidgeting and looking 9 around and in the glove compartment; and the driver was looking over his shoulder 10 and in the rearview mirror, always making hi mself aware of the location of the officer. 11 See id. ¶¶ 9, 29. The officer testified that based on his training and experience, people 12 who are nervous to that degree “are often a threat to officer safety because they are 13 unpredictable; [and their] nervousness indicated that [the defendants] may have been 14 in ‘fight or flight’ mode, a concept he learned at the law en forcement academy.” Id. 15 ¶ 29. Based on the defendants’ nervous and excessive movements, together with the 16 information about their nervous and suspici ous behavior that the officer received in 17 a BOLO, and the officer’s interpretation of their behavior, the officer was concerned 18 for his safety and asked if they had any weapons and then required a protective frisk 1910 for weapons. See id. ¶ 29. The officer went on to describe how each request he made 1 “was met with increasing nervousness and symptoms of potentially unpredictable 2 behavior, and sometimes with evasive or hostile behavior.” Id. ¶ 30. 3 The Court held that the officer could have reasonably considered the defendants 4 to be armed and dangerous to justify a protective frisk for weapons. See id. The 5 Court cautioned that nervousness is but a mere factor in the calculus and that it is not 6 the degree of nervousness that permits the in trusion, but the officer’s articulation of 7 specific reasons why the nervousness caused th e officer to reasonably fear for his or 8 her safety. See id. ¶ 31. The Court’s majority opinion described Vandenbergas a 9 “very close case,” id. ¶ 33, and focused on the importance of officer safety, see id. ¶¶ 10 34-36, emphasizing that “[m]ore was at stake here than mere evidence.” Id. ¶ 33. 11 The differences between the captain’s testimony in the current case and the 12 officers’ testimony in Chapman and Vandenbergare substantial. The captain’s 13 testimony in this case does not reveal that he proceeded incrementally or engaged in 14 much investigation into Defendant’s nervous ness at all. Instead , the captain indicated 15 that he sent Defendant to the secondary in spection area so that another officer could 16 investigate Defendant’s nervousness. The captain’s testimony that linked any degree 17 of specificity regarding Defendant’s nervousness to his su spicion of impairment was 18 rejected by the district court. Therefore, we are left with the captain’s generalized 1911 concern about Defendant’s nervousness and shaky hands and a bald legal conclusion 1 that this conduct can be equated with reasonable suspicion of impairment. See 2 Vandenberg , 2003-NMSC-030, ¶ 31 (warning that our case law has “not adopt[ed] a 3 rule equating simple nervous ness with reasonable suspici on”). Our Courts have not 4 supported an inarticulate link betw een nervousness and impairment. 5 If the Supreme Court considered Vandenbergto be a very close case even with 6 the officer’s safety at issue, the BOLO in formation, the officer’s detailed observations 7 about the defendants’ escalating conduct, and his testimony specifically identifying 8 why their conduct reasonably caused him to believe the defendant s were armed and 9 dangerous, then the captain’s generali zed concern in the current case about 10 Defendant’s extreme nervousness falls well s hort of establishing reasonable suspicion 11 of driving while impaired, and no such link or assumption was ever articulated in this 12 case. Finding that the officer did not have a reasonable suspicion of criminal activity, 13 Defendant’s prolonged detention at the DWI checkpoint was without a lawful basis. 14 CONCLUSION 15 For the reasons set forth above, we re verse the district court’s denial of 16 Defendant’s motion to suppress. 1712 IT IS SO ORDERED. 1

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

_________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

_________________________________ 7 TIMOTHY L. GARCIA, Judge 8