This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 32,317 4 DOROTHY CHAVEZ, 5 Defendant-Appellee. 6

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 7 Violet Otero, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 John V. Nilan, LLC 14 John V. Nilan 15 Albuquerque, NM 16 for Appellee 172 MEMORANDUM OPINION 1 CASTILLO, Chief Judge. 2 The State appeals from an order granti ng Defendant’s motion to suppress. We 3 proposed to affirm in a notice of proposed summary disposition. The State filed a 4 memorandum in opposition, and Defendant filed a memorandum in support of our 5 proposed disposition. After reviewing th e memoranda, we remain unpersuaded by the 6 State’s arguments and thus affirm the district court’s order granting the motion to 7
suppress. 8 In our notice of proposed summary dis position, we proposed to affirm because 9 the State failed to prove exigent circumstances justifying the officers’ behavior in 10 ordering Defendant from her house at gunpoint. See State v. Nance, 11 2011-NMCA-048, ¶ 18 n.1, 149 N.M. 644, 253 P.3d 934 (recogni zing that “[a]n arrest 12 outside the home can require a warrant if the defendant’s exit was coerced”). A 13 warrantless arrest at a suspect’s home requires both probable cause and exigent 14 circumstances. See id. ¶ 12. Exigent circumstances have been defined as “an 15 emergency situation requiring swift action to prevent imminent danger to life or 16 serious damage to property, or to forestall the immi nent escape of a suspect or 17 destruction of evidence.” Id. (internal quotation mark s and citation omitted); see 18 Chavez v. Bd. of Cnty. Comm’rs , 2001-NMCA-065, ¶ 17, 130 N.M. 753, 31 P.3d 1027 193 (recognizing that law enforcement officers may not make a warrantless entry into a 1 residence unless, “exigent circumstances have been shown indicating that immediate 2 action is necessary to prevent imminent danger to life or serious damage to property, 3 to forestall the imminent escape of a su spect, or to prevent the destruction of 4 evidence” (internal quotation marks and citation omitted)). Moreover, the exigent 5 circumstances “must be supported by specifi c articulable facts” and must be known 6 to the officers prior to entry. State v. Duffy, 1998-NMSC-014, ¶ 70, 126 N.M. 132, 7 967 P.2d 807, overruled in part on other grounds by State v. Tollardo , 8 2012-NMSC-008, ¶ 37 n. 6, 275 P.3d 110. 9 In its memorandum in opposition, the St ate makes two arguments. First, it 10 claims that the officers were justified inarresting Defendant without a warrant for 11 resisting, evading, or obstructing an officer because Defendant must have been aware 12 that Officer Alderete was attempting to stop her before she turned into her driveway 13 and shut the garage door. [MIO 2-3] See NMSA 1978, § 30-22-1 (1981) (defining 14 the crime of resisting, evading or obstructing an officer); cf. State v. Gutierrez , 15 2007-NMSC-033, ¶ 36, 142 N.M. 1, 162 P.3d 156 (recognizing that a defendant 16 cannot be convicted of resisting, evading, or obstructing an officer based upon the 17 defendant’s flight unless the state proves that the defendant knew the officer was 18 trying to detain him). 194 We need not address this argument. Even if the State is correct that the officers 1 had probable cause to arrest Defendant for resisting, evading, or obstructing an 2 officer, in the absence of exigent circum stances, the officers were not justified in 3 ordering Defendant from her home at gunpoint because that crime is a misdemeanor, 4

seeSection 30-22-1, and there was no eviden ce that Defendant posed a danger to life 5 or property or a threat of escape. See State v. Gutierrez , 2008-NMCA-018, ¶ 17, 143 6 N.M. 422, 176 P.3d 1154 (recognizing that without any information that the defendant 7 posed a threat to anyone’s life or property and no indication of an emergency or 8 violence, there was no exigency to justif y the officers’ warrantless entry into the 9 defendant’s home); Chavez , 2001-NMCA-065, ¶ 17 (recognizing that a warrantless 10 entry into a residence requires a showi ng “that immediate action is necessary to 11 prevent imminent danger to life or serious damage to property, to forestall the 12 imminent escape of a suspect, or to prevent the destruction of evidence” (internal 13 quotation marks and citation omitted)). 14 At the time the officers ordered Defendant to come out of her home at gunpoint, 15 they only had evidence suggesting that Defendant had been speeding; there were no 16 facts justifying a reasonable suspicion that Defendant had committed or was 17 committing DWI or any felony. To the contrary, the officers acknowledged that 18 before they entered Defendant’s residence, there was no evidence of weapons, drugs, 195 or destructible evidence. [RP 59] In addition, the officers testified that there were no 1 sounds emanating from the residence indicati ng that anyone was in danger of violence 2 or harm. [RP 59] 3 In its memorandum in opposition, the State contends that exigent circumstances 4 were presented because the officers wereconcerned that Defendant might escape. 5 [MIO 4] We disagree. 6 As the State acknowledges in its memorandum in opposition, the outside of the 7 house was secured, and officers were stati oned in front and behind Defendant’s house 8 to prevent her escape. [MIO 4; RP 59] Given that Defendant drove into her driveway 9 and shut the garage door, and given thatthe officers had secured the outside of 10 Defendant’s home, we are not convinced that the possibility of escape presented 11 exigent circumstances justifying the officer s’ actions in orderi ng Defendant from her 12 home at gunpoint. 13 CONCLUSION 14 For the reasons set forth above as we ll as those discussed in our notice of 15 proposed summary disposition, we affirm the district court’s order granting 16 Defendant’s motion to suppress. 17 IT IS SO ORDERED. 186 __________________________________ 1 CELIA FOY CASTILLO, Chief Judge 2

WE CONCUR: 3

__________________________________ 4 CYNTHIA A. FRY, Judge 5

__________________________________ 6 RODERICK T. KENNEDY, Judge 7