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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-35432 4 MANUEL VILLARREAL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 Kea W. Riggs, District Judge 8 Hector H. Balderas, Attorney General 9 Maha Khoury, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Robert E. Tangora, L.L.C. 13 Robert E. Tangora 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 182 {1} Defendant Manuel Villarreal was convicted of possession of methamphetamine, 1 possession of a firearm by a felon, and c oncealing identity, pursuant to a conditional 2 plea. See NMSA 1978, § 30-31-23(A) (2011); NMSA 1978, § 30-7-16(A) (2001); 3 NMSA 1978, § 30-22-3 (1963). De fendant reserved the right to appeal the district 4 court’s denial of his motion to suppress evidence. On appeal, Defendant argues that 5 he was subjected to a pretextual stop in violation of the New Mexico Constitution. We 6 hold that the stop of Defendant was not pretex tual, and we therefore affirm the district 7 court’s denial of the motion to suppress. 8 BACKGROUND 9
{2} At the suppression hearing, Agent J ohn Clay of the Chaves County Metro 10 Narcotics Task Force Unit testified that he and two other officers were traveling 11 northbound in an unmarked police car on a reside ntial street in Roswell, New Mexico. 12 Agent Clay saw Defendant walking northbound with two other men, Matthew 13 Sifuentes and Herman Najar. Defendant and Sifuentes werewalking in the street in 14 violation of NMSA 1978, Section 66-7- 339(A) (1978), which provides, “Where 15 sidewalks are provided it shall be unlawful for any pedestrian to walk along and upon 16 an adjacent roadway.” Agent Clay engaged his emergency lights and approached the 17 men along with the other officers. As th ey approached, Agent Clay saw Defendant 18 turn away as if to make the right side of his body less visible. Defendant also had his 19 right hand in his jacket pocket. 203 {3} Agent Clay recognized Sifuentes based on several previous contacts as someone 1 who routinely possessed a handgun. He asked Sifuentes if he was armed, and 2 Sifuentes said no. He then asked Defendant and Najar if they were armed, and they 3 also responded no. Agent Clay then approached Defendant who sat down on the curb 4 without being asked to do so. Agent Cl ay observed that Defendant was acting 5 extremely nervous. Agent Clay asked Defendant his name and date of birth, and 6 Defendant falsely said his name was “Matthew Villareal.” Defendant then stuttered 7 while giving his birth date and also gave two different birth years. 8
{4} Agent Clay had dispatch run the name and birth date Defe ndant provided, but 9 did not conduct a pat-down. However, he as ked Defendant to re move his right hand 10 from his jacket pocket, and Agent Clay saw that it was covered with a blue latex 11 glove, although Defendant’s left hand did not have a glove. Agent Clay also observed 12 that Defendant’s jacket pocket continued tosag as if it contained something heavy 13 even after Defendant removed his hand. Ag ent Clay walked onto the sidewalk behind 14 Defendant and could see the handle of a gun in Defendant’s pocket in plain view. 15 Agent Clay then told Defendant to put his hands on his headand handcuffed him. 16 Agent Clay retrieved the gun and also found methamphetamine inside Defendant’s 17 pocket. 18
{5} Defendant filed a motion to suppress, arguing in part that he was subjected to 19 a pretextual stop in violation of Article II, Section 10 of the New Mexico Constitution. 204 The district court denied the motion, ruli ng that there was no basis to conclude that 1 Agent Clay had an ulterior motive whenhe stopped Defendant and the others. 2 Defendant then entered into a conditional plea, reserving th e right to appeal the denial 3 of the motion to suppress. 4 STANDARD OF REVIEW 5
{6} “The review of a denial of a motion to suppress presents a mixed question of 6 fact and law.” State v. Williams , 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. 7 “[T]he appellate court reviews the facts for substantial evidence, deferring to the lower 8 court’s findings regarding the evidence presented.” State v. Goodman , 2017-NMCA9 010, ¶ 5, 389 P.3d 311. “Theapplication of law to fact is a legal determination, which 10 we review de novo.” State v. Garnenez , 2015-NMCA-022, ¶ 13, 344 P.3d 1054. 11 DISCUSSION 12
{7} Defendant contends that his stop wa s illegal because it was pretextual. 13 Defendant relies exclusively on State v. Ochoa , 2009-NMCA-002, 146 N.M. 32, 206 14 P.3d 143, for this argument. Ochoainvolved a traffic stop and specifically discussed 15 pretextual stops in that context. See id. ¶¶ 4, 40 (holding that a pretextual traffic stop 16 violates Article II, Section 10 of the New Mexico Constitution if the real purpose for 17 the stop is not supported by reasonable susp icion or probable cause, and the officer 18 would otherwise not have stopped the vehicl e). No New Mexico case has decided that 19 Ochoaapplies to a pedestrian stop, as occu rred in this case, and Defendant does not 205 make that argument on appeal. Convers ely, the State does not argue that Ochoais 1 inapplicable to pedestrian stops. For purpos es of this appeal, however, we will assume 2 without deciding that Ochoaapplies to the circumstances of this case. For the 3 following reasons, we conclude that Defendant has not met his burden to show that 4 the stop was pretextual. 5
{8} “[A] pretextual stop [is] a detention supportable by reasonable suspicion or 6 probable cause to believe that a traffic o ffense has occurred, but is executed as a 7 pretense to pursue a ‘hunch,’ a different[, ] more serious investigative agenda for 8 which there is no reasonable suspicion or probable cause.” State v. Gonzales , 2011- 9 NMSC-012, ¶ 12, 150 N.M. 74, 257 P.3d 894 (internal quotation marks and citation 10 omitted). We follow a three-step approach to determine whether a pretextual stop has 11 occurred. We first determine whether th ere was reasonable suspicion or probable 12 cause for the stop and then decide if th e officer’s actual motive for the stop was 13 unrelated to the justification for the stop. Ochoa , 2009-NMCA-002, ¶ 40. “The 14 defendant has the burden of proof to s how pretext based on the totality of the 15 circumstances [and, i]f the defendant has not placed substantial facts in dispute 16 indicating pretext, then the seizure is not pretextual.” Id. However, “[i]f the defendant 17 shows sufficient facts indicating the officerhad an unrelated motive that was not 18 supported by reasonable suspicion or probable cause, then there is a rebuttable 19 presumption that the stop was pretextual[,]” at which point the burden shifts to the 206 state to prove that the officer would have stopped the defendant even without the 1 alternate motive. Id. 2
{9} The parties do not dispute that, when the officers encountered him, Defendant 3 was walking in the street next to a side walk. Agent Clay testified that he saw 4 Defendant and Sifuentes walking in the roadand that he would have had to pull into 5 the oncoming traffic lane to avoid them. These facts are sufficient to establish a 6 reasonable suspicion to stop De fendant for violating the law. See generallyNMSA 7 1978, § 66-7-339(A) (1978) (“Where sidewalk s are provided it shall be unlawful for 8 any pedestrian to walk along and upon an adjacent roadway.”). 9
{10} The burden then shifts to Defendant to show that the police had an unrelated 10 motive for stopping him that was not supported by reasonable suspicion. See Ochoa , 11 2009-NMCA-002, ¶ 40 (stating that if reasona ble suspicion exists to support a stop, 12 to establish that the stop was pretextual the defendant has the burden to show that, 13 under the totality of the circumstances, there was an unrelated motive for the stop that 14 was not supported by reasonable suspicion). “The totality of the circumstances 15 includes considerations of the objective reas onableness of an officer’s actions and the 16 subjective intent of the officer—the real reason for the stop.” Id. ¶ 39. 17
{11} Defendant asserts that the officers’ real motive in stopping him and his 18 companions was to investigate Sifuentes as a suspect in a homicid e and to search them 19 for weapons. Defendant argues that the inve stigation that occurred after the stop bore 207 no relation to the municipal code violation for walking in the roadway, and that on 1 stopping them, Agent Clay immediately questioned Sifuentes about weapons. 2 Defendant also points out that Agent Claynever informed the men that they were 3 being stopped for walking in the street, and Defendant was never given a citation for 4 violating the ordinance. Defendant also argues that there was no evidence that 5 Defendant’s walking in the street presented a danger to anyone. 6
{12} We first disagree that there was nothing to show that Defendant’s walking in 7 the street created a danger because Agent Clay testified that it would have been 8 necessary to pull into the oncoming traffic lane to avoid the men. See id. ¶ 41 9 (considering whether the articulated reason for the stop was necessary for the 10 protection of traffic safety when determining whether a stop is pretextual). With 11 respect to the questions to the group about weapons, the district court determined that 12 they were reasonable under the circumstances and did not establish a pretextual stop. 13 The district court consider ed that Agent Clay was aw are from prior encounters that 14 Sifuentes was often armed. Additionally, when Agent Clay approached the group, 15 Defendant tried to hide the right side of his body from the officers’ view and was 16 acting extremely nervous. Under these circumst ances, we agree with the district court 17 that the brief questioning regarding weapons was reasonable and insufficient to show 18 a pretextual motive for the stop. See State v. Chapman , 1999-NMCA-106, ¶ 17, 127 19 N.M. 721, 986 P.2d 1122 (holding that it was lawful for the officer to ask questions 208 about weapons where the officer described nervousness as well as specific behaviors 1 that explained why he was concerned that the defendant was dangerous); State v. 2 Flores , 1996-NMCA-059, ¶ 11, 122 N.M. 84, 920 P.2d 1038 (stating that when 3 making an investigatory stop, when an o fficer reasonably believes the individual may 4 be armed and dangerous, he or she may check for weapons to ensure personal safety). 5
{13} The district court also considered th at Agent Clay accepte d the men’s denials 6 that they were armed, and he did not ask further questions or conduct a pat-down 7 search for weapons. Although Agent Clay ultimately recovered a weapon from 8 Defendant, that occurred only after Agent Cl ay saw the handle of a gun in plain view 9 sticking out of his pocket. Information that Defendant was in possession of a gun 10 developed in the course of the encounter , however, and Defendant has not shown that 11 it was the true motive for the stop. 12
{14} Nor do we see anything in the record to support Defendant’s claim that the real 13 motive for the stop was to investigate Sifuen tes as a suspect in a homicide. As the 14 district court found, the officers did not as k any questions of th e group relating to any 15 separate investigation. A dditionally, the district court found other factors weighing 16 against pretext such as the non-confrontational manner of the officers during the stop, 17 Agent Clay’s testimony that the only reason for the stop was the municipal code 18 violation, and the s hort period of time. See Ochoa , 2009-NMCA-002, ¶ 41 19 (considering factors such as the conduct, demeanor, and statements of the officer 209 during the stop and the officer’s testimony as to the reason for the stop in determining 1 whether a stop was pretextual). For these reas ons, we agree with the district court that, 2 under the totality of the circumstances, Defendant failed to show that Agent Clay had 3 a motive in stopping him other than for the municipal ordinance violation. See id. ¶ 4 40 (“If the defendant has not placed substantial facts in dispute indicating pretext, then 5 the seizure is not pretextual.”). 6
{15} As a final matter, we note that defense counsel argues in his brief in chief that 7 “Agent Clay[] candidly testified his stop wa s to investigate the possession of firearms, 8 for which there was no sufficient legal basis. ” Counsel also states that “Agent Clay 9 relied upon [Defendant’s] nervousness to jus tify detaining him.” Counsel has not cited 10 to the record for these assertions, and our review of the suppression hearing reveals 11 no such testimony. 12

CONCLUSION 13
{16} For these reasons, we affirm the district court’s denial of the motion to 14 suppress. 15
{17} IT IS SO ORDERED. 16

__________________________________ 17 LINDA M. VANZI, Chief Judge 1810 WE CONCUR: 1

_________________________________ 2 M. MONICA ZAMORA, Judge 3

_________________________________ 4 JENNIFER L. ATTREP, Judge 5