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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,318 4 TIMOTHY YOUNG, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 William C. Birdsall, District Judge 8
Gary K. King, Attorney General 9 M. Victoria Wilson, Assistant Attorney General 10 Albuquerque, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 KENNEDY, Chief Judge. 172 {1} Timothy Young (Defendant) appeals his conviction for driving while 1 intoxicated and his conditional discharge of the offense of attempt to commit child 2 abuse, both of which were entered pursuant to a conditi onal plea agreement. [DS 3] 3 In our notice of proposed summary disposition, we proposed to reverse. The State has 4 filed a memorandum in oppositi on, which we have duly considered. As we do not 5 find the State’s arguments to be persuasive, we reverse. 6
{2} In this Court’s notice of proposed su mmary disposition, we proposed to hold 7 that the district court erred in denying Defe ndant’s motion to suppress. We stated that 8 it did not appear that the seizure of Defendant was supported by a reasonable 9 suspicion of illegal activity and that the officer’s stated rationale of officer safety 10 appears to have been unsupported by any evidence that Defendant actually posed a 11 danger to anyone. See State v. Murry , ____-NMCA-___, ¶¶ 4, 32, ___ P.3d ___ (No. 12 31,253, Nov. 6, 2013) (holding that the se izure imposed by requiring a person to open 13 his car door was not justified by an officer’s concern for officer safety when the 14 officer saw the person make an abrupt movement of dropping his shoulder downwards 15 as the officer approached the vehicle); State v. Gutierrez , 2008-NMCA-015, ¶ 23, 143 16 N.M. 522, 177 P.3d 1096 (holding that an o fficer cannot seize a person based on a 17 concern for officer safety in the abse nce of evidence that the person poses a 18 “verifiable threat” to the officer’s safety). 193 {3} In the State’s memorandum in opposition, it does not contend that the officer’s 1 actions were justified by a reasonable su spicion that Defendant was committing a 2 crime. It argues only that the officer’s conduct of opening Defe ndant’s car door was 3 justified by the officer’s concern for his safety. [MIO 4-7] In support of this 4 argument, the State relies on State v. Williams , 2011-NMSC-026, ¶¶ 3-4, 16, 149 5 N.M. 729, 255 P.3d 307, in which our Supreme Court held that the fact that a 6 defendant was fumbling around with something after his vehicle was stopped, 7 combined with the fact that when he got out of his vehicle, and his pants were 8 unzipped and in disarray, provided a reasonable susp icion that the defendant was 9 either armed or hiding contraband. This provided a justification for a post-arrest 10 underclothing search of the defendant’s underwear. Id. ¶ 16. We are not persuaded 11 that Williamsis of any aid to the State in this case. Here, the State has not argued that 12 there was reasonable suspicion of any crimin al activity, and the onl y evidence that the 13 State presented to establish a concern fo r officer safety was that Defendant was 14 reaching for something in the console. As we explained in our notice of proposed 15 summary disposition, Murryand Gutierrezcompel a conclusion th at this evidence was 16 insufficient to establish that such a concern was reasonable. 17
{4} The State attempts to distinguish Murryon the ground that, in Murry , the 18 officers approached the defendant’s vehicle from behind on their bicycles without 19 having been specifically called out to the scene for any reason, left their bicycles 204 behind the car, observed the driver abruptly drop his shoulder down, and then 1 immediately ordered the driver to open the door. [MIO 6] In contrast, in this case, 2 the police were called out to the scene b ecause an employee of the gas station had 3 observed Defendant’s car parked in the lot for between forty-five minutes and an hour. 4 The officers approached the vehicle, saw children in the back seat and the driver 5 fumbling in the console, and then opened th e driver’s door. [DS 2; RP 72] We are 6 not persuaded that these distinctions makea difference. As this Court held in Murry , 7 the mere act of moving around in a vehicl e when an officer cannot see a person’s 8 hands clearly, in the absence of any other evidence of a threat, does not provide 9 reasonable grounds for an officer to open th e person’s car door based on a concern for 10 officer safety. 11
{5} Therefore, for the reasons stated hereand in our notice of proposed summary 12 disposition, we reverse and remand to permit Defendant to withdraw his plea. See 13 State v. Hodge , 1994-NMSC-087, ¶ 20, 118 N.M. 410, 882 P.2d 1 (stating that where 14 a defendant enters a conditional guilty plea, the defendant is permitted to withdraw the 15 plea after prevailing on appeal). 16
{6} IT IS SO ORDERED. 17

____________ ________________________ 18 RODERICK T. KENNEDY, Chief Judge 195 WE CONCUR: 1

___________________________ 2 JAMES J. WECHSLER, Judge 3

___________________________ 4 JONATHAN B. SUTIN, Judge 5