The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

F iling Date: February 6, 2023 2

STATE OF NEW MEXICO , 3

Plaintiff

- Respondent, 4

v. NO. S

- 1

- SC

- 39004 5

FRANCISCO JAVIER GRANADOS , 6

Defendant

- Petitioner. 7

ORIGINAL PROCEEDING ON CERTIORARI 8 Steven Blankinship, District Judge 9

Bennet t J. Bauer, Chief Public Defender 10 Kimberly M. Chavez Cook, Assistant Appellate Defender 11 Santa Fe, NM 12

for Petitioner 13
Hector H. Balderas, Attorney General 14 Charles J. Gutierrez, Assistant Attorney General 15 Santa Fe, NM 16

for Respondent 17

DECISION 18

VARGAS , Justice. 19

{1} Four narcotics agents working with the Otero County Narcotics Enforcement 20
Unit (NEU) attempted to stop Defendant Francisco Javier Granados based on a 212 confidential informant tip and the agents ’ brief surveillance of Defendant interacting 1
with a woman at an Alamogordo gas station. When confronted by the agents, 2
Defendant fled. During the ensuing vehicle pursuit, one of the agents saw Defendant 3
toss an object out of his left front window. Shortly after, Defendant stopped and 4
spoke with the agents. Another agent backtracked and recovered the object 5
Defendant had discarded. That object turned out to be a plastic bag containing 6
approximately fifty grams of cocaine. 7

{2} Defendant made two motions to suppre ss, arguing that the NEU agents did 8
not have a legitimate basis on which to stop him. The district court denied the 9

motions because it concluded that Defendant was not seized and that the agents 10
possessed a reasonable suspicion that Defendant was engaging or about to engage in 11
illegal conduct. Defendant was convicted of trafficking a controlled substance 12
(possession with intent to distribute), contrary to NMSA 1978, Section 30

- 31

- 13

20 (A) (3) (2006) and tampering with evidence , contrary to NMSA 1978 Section 30

- 14

22

- 5 (2003). T he Court of Appeals affirmed the district court’s order denying 15
suppression in a split opinion, concluding only that the agents possessed reasonable 16
suspicion to stop Defendant when they first confronted him. State v. Granados , A

17

1

- CA

- 37417, mem. op. ¶¶ 6

- 14 (N.M. Ct. App. Ju ly 26, 2021) (nonprecedential). 183 {3} We granted Defendant’s petition for writ of certiorari and reverse the Court 1
of Appeals. We hold that Defendant’s seizure was unreasonable under Article II, 2

Section 10 of the New Mexico Cons titution. Because the issues have been previously 3
decided and we reverse based on the absence of substantial evidence, we dispose of 4
this case by nonprecedential memorandum opinion. Rule 12

- 405(B)(1), (2) NMRA. 5

I. BACKGROUND 6

{4} The relevant facts are largely und isputed. On April 29, 2013, NEU Agent 7
Rodney Scharmack received a phone call from a confidential informant. This 8
informant was a “documented reliable informant,” meaning that the informant was 9
known to the NEU and had previously assisted in narcotics inves tigations. The 10
informant said that Defendant was in possession of and distributing a large amount 11
of cocaine. The informant was not able to provide a physical address for Defendant, 12
but described two of Defendant’s vehicles: a black pickup truck and a blac k Chrysler 13

300 sedan. 14

{5} Agent Scharmack was already familiar with Defendant from past narcotics 15
investigations. NEU agents had also received incriminating information about 16
Defendant “here and there” in the weeks prior to this particular informant tip, and 17

D efendant was currently “on [NEU’s] radar” for narcotics trafficking offenses. 184 {6} On May 2, 2013, Agent Scharmack, NEU Commander Neil LaSalle, Border 1
Patrol Agent Timothy Huffman, and NEU Agent Obed Marte were patrolling 2
Alamogordo in an unmarked surveillance vehicle. The four agents spotted 3
Defendant sitting alone in his black pickup truck in the parking lot of a local grocery 4
store. The agents decided to follow Defendant and trailed him to a Giant gas station 5
on the outskirts of Alamogordo. 6

{7} As the agents drov e by the gas station, they observed Defendant reversing his 7
truck into a parking spot in an open gravel lot next to the convenience store. The 8
agents then saw a smaller white pickup pull up near Defendant’s truck. The agents 9
recognized the white pickup and believed that it belonged to a previous target of 10
their narcotics trafficking investigations, Anthony Montoya. 11

{8} The agents saw a woman exit the white pickup and approach Defendant’s 12
open left front window. Although the agents described the interaction betw een the 13
woman and Defendant as “almost like an exchange,” the agents did not actually see 14
Defendant and the woman exchange anything. Nevertheless, each of the agents 15
asserted that, in light of their “training and experience,” they believed that Defendant 16

w as then engaging or about to engage in a narcotics transaction with the woman. 17
However, the agents did not identify which facts about this interaction led them to 18
suspect that the two individuals were exchanging narcotics, or explain how their 195 training and experience infused special meaning into the interaction that they 1
observed. For example, Agent Huffman testified that his suspicions were aroused 2

because of the tip and his knowledge of Defendant and Anthony Montoya through 3
past investigations

. 4

{9} The agents decided to “make contact” with Defendant at that point. Having 5
already driven about half a block away, the agents made a U

- turn and proceeded 6
back to the gas station. The agents planned to stop their surveillance vehicle in front 7
of Defendant’s truck, but their vehicle overshot its intended destination and skidded 8
to a stop just past the truck. The agents exited their vehicle, approached Defendant’s 9
open window, shouted “Sherrif f

’s Office” or “Otero County , ” and ordered 10

Defendant to exit his vehicle. The a gents were dressed in civilian clothes but were 11
displaying official badges in either their hands or hanging from lanyard s around their 12
necks. At least one of the agents had his hand on his holstered weapon. 13

{10} Defendant pointed his finger at the agents with a surprised look on his face. 14
He then grabbed his steering wheel and sped out of the lot. Agent Scharmack, 15
Commander LaSalle, and Agent Huffman returned to their vehicle and followed 16
Defendant. Agent Marte stayed behind and briefly spoke with the woman from the 17
white pickup. The woman was Defendant’s mother, but the agents only later learned 18

of he r identity and relationship to Defendant. 196 {11} The agents followed Defendant through a nearby residential area. At one point 1
during the pursuit, Agent Huffman saw Defend ant toss a white, softball

- sized object 2
out of his front window. After taking a few more turns, Defendant stopped his truck 3
in the middle of the road. The agents pulled up directly behind Defendant’s truck. 4
Defendant exited his vehicle and began asking the agents questions. During this 5
conversation, Defendant specifically addressed Commander LaSalle as “Neil,” 6
using the Commander’s given name. 7

{12} While the other agents spoke with Defendant, Commander LaSalle 8
backtracked into the nearby residential area and rec overed the object that Defendant 9
had discarded. That object was a plastic bag containing 49.97 grams (1.76 ounces) 10

of cocaine. 11

{13} In response to the State’s charges, Defendant made motions to suppress both 12
prior to and at trial, arguing that the narcotics evi dence was obtained in violation of 13
his rights under the Fourth Amendment to the United States Constitution and Article 14
II, Section 10 of the New Mexico Constitution. The State argued that the motion s 15

should be denied because Defendant was not seized at the gas station . Alternatively, 16
the State argued that the agents had reasonable suspicion to stop Defendant when 17
they first approached him at the gas station. The distr ict court denied suppression , 18
agreeing with the State that Defendant was not seized at the gas station

. 197 {14} On direct appeal from his convictions for trafficking and tampering with 1

evidence , a majority of the Court of Appeals affirmed the district court

. Granados , 2

A

- 1

- CA

- 37417, mem. op. ¶¶ 6

- 14. Unlike the district court, however, the Court of 3
Appea ls did not consider when Defendant was effectively seized. Id. ¶ 7 n.2. The 4

Court of Appeals instead explained that the totality of the circumstances supported 5
a reasonable suspicion to stop Defendant at the time the agents decided to confront 6

Defendant at the gas station

. Id. ¶ 7. According to the majority, those circumstances 7
included: “(1) the agents’ knowledge that Defendant was a known drug trafficker; 8
(2) a tip from a reliable [confidential informant]; (3) the agents’ verification of 9
specific aspects of the tip’s information; and (4) the agents’ belief, based on 10
substantial training and expe rience, that Defendant was engaged in criminal 11
activity.” Id. ¶ 7. Judge Attrep filed a dissenting opinion, arguing that Defendant’s 12
seizure was not shown to be objectively reasonable for reasons that we find 13
persuasive here. Id. ¶¶ 30

- 39 (Attrep, J., diss enting). 14

{15} We granted Defendant’s petition for writ of certiorari and have jurisdiction. 15

Rule 12

- 502 NMRA. In addition to challenging the decision on his motion to 16
suppress, Defendant raises three other issues for our review. As we hold that 17

Defendant’s seiz ure was unreasonable under Article II, Section 10, we discuss only 18
the suppression issue and do not reach the merits of Defendant’s remaining 198 challenges. We also do not address Defendant’s arguments regarding the asserted 1

staleness of the confidential info rmant tip because we conclude that the tip was not 2

shown to be reliable. 3

II. STANDARD OF REVIEW 4

{16} Our review of a motion to suppress evidence presents mixed questions of law 5

and fact. State v. Neal , 2007

- NMSC

- 043, ¶ 15, 142 N.M. 176, 164 P.3d 57. With 6
respect to questions of fact, we defer to the findings of the district court if supported 7
by substanti al evidence. State v. Urioste , 2002

- NMSC

- 023, ¶ 6, 132 N.M. 592, 52 8
P.3d 964. Further, “[a]n appellate court must indulge in all reasonable inferences in 9
support of the district court’s decision and disregard all inferences or evidence to the 10
contrary.” St ate v. Martinez , 2018

- NMSC

- 007, ¶ 15, 410 P.3d 186 (text only) 1 11
( citation omitted). 12

{17} We review questions of law de novo. Urioste , 2002

- NMSC

- 023, ¶ 6. “This 13
Court sits as final arbiter of what the law is and how it applies to any given set of 14

facts.” State v. Martinez, 2020

- NMSC

- 005, ¶ 16, 457 P.3d 254. As relevant to the 15
current appeal, these questions of law include whether, in light of the facts presented, 16

1 The “text only” parenthetical as used in this decision indicates the omission

— for enhanced readability

— of all of the following nontextual marks that may be present in the source text: brackets, ellipses, and internal quotation marks.9 a defendant was subjected to “such a level of accosting and restraint” so as to be 1
seized, State v. Jason L. , 2000

- NMSC

- 018, ¶ 19, 129 N.M. 119, 2 P.3d 856, or 2
whether a seizure was objectively reasonable. State v. Rowell , 2008

- NMSC

- 041, ¶ 3
8, 144 N.M. 371, 188 P.3d 95. “Warrantless seizures are presumed to be 4

unreasonable and the State bears the burden o f proving reasonableness.” Id . ¶ 10 5
( internal quotation marks and citation omitted). 6

III. DISCUSSION 7

A. Reasonable Suspicion 8

{18} The Fourth Amendment to the United States Constitution and Article II, 9
Section 10 of the New Mexico Constitution “provide overlapping prote ctions against 10
unreasonable searches and seizures, including safeguards for brief investigatory 11
stops of persons or vehicles that fall short of traditional arrest.” Martinez , 2018

- 12

NMSC

- 007, ¶ 10 (text only) (citations omitted). Although Defendant previousl y 13
asserted that his seizure violated both the federal and state constitutions, in his 14
briefing to this Court, Defendant argues only that his seizure violated Article II, 15
Section 10. We therefore consider the issues presented only under state 16

constitutional law. 17

{19} Like the federal constitution, the New Mexico constitution permits a law 18
enforcement officer with “a reasonable suspicion that the law is being or has been 1910 broken to conduct a temporary, investigatory .

. . stop.” State v. Yazzie , 2016

- NMSC

1
026, ¶ 38 , 376 P.3d 858. “Police officers possess reasonable suspicion when they are 2
aware of specific articulable facts that, judged objectively, would lead a reasonable 3
person to believe criminal activity occurred or was occurring.” Urioste , 2002

- 4

NMSC

- 023, ¶ 6 (i nternal quotation marks and citation omitted)

. In evaluating 5
whether an officer possessed a reasonable suspicion of illegal conduct, “the totality 6

of the circumstances

— the whole picture

— must be taken into account.” Martinez , 7

2020

- NMSC

- 005, ¶ 19 (quoting Un ited State s v. Cortez , 449 U.S. 411 (1981)). A n 8
officer’s “[u]nsupported intuition and inarticulate hunches are not sufficient.” State 9

v. Cobbs , 1985

- NMCA

- 105, ¶ 1 2, 103 N.M. 623, 711 P.2d 900. 10

{20} In the present appeal, the parties dispute whether the NEU agents had 11
reasonable suspicion to stop Defendant at the gas station. The parties specifically 12
debate whether the confidential informant’s tip and the agent’s surveillance provided 13
sufficient groun ds for the stop. As the parties center their debate on these two facts, 14
we specifically discuss the standards relevant to each; but in keeping with the totality 15
of the circumstances approach to reasonable suspicion analysis, see Martinez , 2020

- 16

NMSC

- 005, ¶ 19 (requiring court to consider the totality of the circumstances when 17
evaluating reasonable suspicion), we consider all facts and reasonable inferences 18
available to the agents at the time they confronted Defendant. See Yazzie , 2016

- 1911 NMSC

- 026, ¶ 19 (explai ning that courts must consider whether the officer’s action 1
was justified at its inception). 2

1. The confidential informant’s tip 3

{21} Defendant argues that the confidential informant’s tip was unreliable. In State 4

v. Cordova , 1989

- NMSC

- 083, 10 9 N.M. 211, 784 P.2d 30, this Court adopted the 5

two

- pronged test of Aguilar v. Texas , 378 U.S. 108 (1964) and Spinelli v. United 6

States , 393 U.S. 410 (1969) (“ Aguilar

- Spinelli test”) , to evaluate whether an officer 7
could reasonably rely on information obtained from an unnamed informant under 8
Article II, Section 10. Cordova , 1989

- NMSC

- 083, ¶ 17. In adopting the A guilar

9
Spinelli test, w e declined to follow the totality of the circumstances approach 10
adopted by the United States Supreme Court in Illinois v. Gates , 462 U.S. 213, 23 8

- 11
39 (1983) , to evaluate tips from confidential informants under the Fourth 12

Amendment. Cordova, 1989

- NMSC

- 083, ¶ 17. 13

{22} Cordova and Aguilar

- Spinelli require officers who rely “wholly or in part on 14
hearsay provided by an unnamed informant” in justifying a seiz ure to identify ( 1 ) 15

“ some of the underlying circumstances from which the informant concluded that the 16
facts were as he claimed they were, ” and ( 2 ) “ some of the underlying circumstances 17

from which the officer concluded that the informant was credible or his information 18

reliable.” Cordova , 1989

- NMSC

- 083, ¶ 6 (text only) (quoting Aguilar , 378 U.S. at 1912 114); see also Rule 5

- 208(C) NMRA (“The showing of pro bable cause shall be 1
based upon substantial evidence, which may be hearsay in whole or in part, provided 2
there is a substantial basis for believing the source of the hearsay to be credible and 3
for believing that there is a factual basis for the information furnished

. ”). “[T]he two 4
prongs of Aguilar

- Spinelli and of [Rule 5

- 208(C)] have been characterized as 5
independent and analytically severable requirements.” Cordova , 1989

- NMSC

- 083, 6
¶ 12 (internal quotation marks and citation omitted)

. 7

{23} The first prong of Ag uilar

- Spinelli is referred to as the reliability or basis of 8
knowledge prong. See State v. Eskridge , 1997

- NMCA

- 106, ¶ 19, 124 N.M. 227, 947 9
P.2d 502 (“Our Supreme Court in Cordova held that the allegations of an informant 10
alone cannot provide probable caus e to issue a search warrant unless officers can 11
show both (1) the reliability of the information and (2) credibility of the informant.”); 12

see also State v. Gonzales , 1999

- NMCA

- 027, ¶ 23, 126 N.M. 742, 975 P.2d 355 13
(“ [A] more precise name for the reliabilit y prong is the basis

- of

- knowledge prong.”). 14
The basis of knowledge prong requires that the officer provide “the factual basis for 15
any conclusions drawn by the informant to enable the court to perform an 16
independent analysis of the facts and conclusions.” S tate v. Barker , 1992

- NMCA

17
117, ¶ 4, 114 N.M. 589, 844 P.2d 839. “Under the basis of knowledge prong of the 18
test, we ask whether the affidavit provides a substantial basis for concluding the 1913 informants gathered the information of illegal activity in a relia ble fashion.” State v. 1

Haidle , 2012

- NMSC

- 033, ¶ 23, 285 P.3d 668 ( text only) ( citation omitted) . “First

2
hand observations by the informant serve to meet the ‘basis of knowledge’ prong of 3

the Cordova test.” Barker , 1992

- NMCA

- 117, ¶ 5; see also State v. Luja n , 1998

- 4

NMCA

- 032, ¶ 9, 124 N.M. 494, 953 P.2d 29 (explaining that an informant’s 5
participation in a controlled buy was sufficient to establish a relia ble factual basis 6
for the tip). 7

{24} The second prong of Aguilar

- Spinelli , known as the credibility or veracity 8
prong, requires that “facts be presented to the court to show either that the informant 9
is inherently credible or that the information from the informant is reliable on this 10
particular occasion.” Barker , 1992

- NMCA

- 117, ¶ 4. Defendant does not challenge 11

th e informant’s veracity, but argues only that the informant’s tip lacked a reliable 12
basis of knowledge. We therefore limit our analysis to the first prong of Cordova 13

and Aguilar

- Spinelli

. 14

{25} We agree with Defendant that the confidential informant tip was not s hown to 15
have a reliable factual basis. Agent Scharmack explained that he received 16
information from a credible informant that Defendant was trafficking a large amount 17
of cocaine. However, Agent Scharmack did not explain how this informant became 18

aware of th e information. It is unknown whether the informant, for example, 1914 participated in a controlled buy, otherwise personally observed Defendant’s illicit 1
conduct, or simply conveyed rumors or suppositions based on Defendant’s 2
reputation as a dru g dealer. Given this, no evidence was presented upon which the 3
district court could evaluate whether Agent Scharmack’s reliance on the hears ay 4

information was reasonable. 5

{26} In this regard, the present appeal is analogous to Cordova , 1989

- NMSC

- 083, 6

as the aff idavit at issue in that case asserted that the defendant was distributing 7
heroin, but was utterly “ devoid of any indication of how the informant gathered this 8

information.” Id. ¶ 21. The Cordova Court concluded that the tip was thus entitled 9

to “little or no weight in determining” whether a search was warranted. Id. ¶ 22. 10
Similarly, the tip received by Agent Scharmack is devoid of any supporting detail 11
regarding the source of the informant’s knowledge. The tip thus lacks a reliable 12

factual basis and is enti tled to little or no weight in our reasonable suspicion analysis. 13

{27} Also , like the tip in Cordova , the tip at issue here was not sufficiently detailed 14
so that we may assume that the informant had a reliable factual basis for the 15
information provided. See id. ¶ 25 (concluding that the police officer’s corroboration 16
of “only the informant’s description of the house and car” was not sufficient to 17
establish that the informant had a reliable factual basis to support the allegations of 18
criminal conduct). When an in formant ’s tip fails to specify the basis of the 1915 informant’s knowledge, a court may nevertheless assume that the informant has a 1

reliable factual basis for that information “if the informant describes the criminal 2
activity in such detail that a judge will k now the informant relies on more than a 3
casual rumor or reputation of the defendant.” State v. Baca , 1982

- NMSC

- 016, ¶ 18, 4
97 N.M. 379, 640 P.2d 485. Such a detailed tip is said to be self

- verifying

. See 5

Cordova , 1989

- NMSC

- 083, ¶ 9 (“ [W] hen an affidavit doe s not affirmatively state 6
an informant’s basis of knowledge, it may be inferred that an informant who 7

otherwise is known to be credible obtained the information set forth in the affidavit 8

in a reliable fashion if the tip contains enough detail to be self

- v erifying .” ( second 9
emphasis added ))

. 10

{28} In assessing whether a tip is self

- verifying, our courts frequently have made 11
“a distinction between a tip predicting a subject’s movements on the one hand, and 12
on the other, a tip which merely describes a status quo, o r the state of things at a 13
given time, of which the subject is a part.” Urioste , 2002

- NMSC

- 023, ¶¶ 11

- 13. 14
Thus, “where an informant’s details were limited and provided only innocent facts 15
unrelated to the alleged illegal activity, we found there was insuff icient 16
corroboration to rely on the hearsay.” Haidle , 2012

- NMSC

- 033, ¶ 26. In contrast, 17
courts may infer that an informant possesses a reliable basis of knowledge when the 18
corroborated portions of the tip conveyed specific, predictive information about the 1916 defendant’s movements demonstrating a familiarity with the defendant’s criminal 1

conduct. See, e.g. , State v. Robbs , 2006

- NMCA

- 061, ¶¶ 2, 19, 139 N.M. 569, 136 2
P.3d 570 (concluding that hearsay information that a vehicle with a personalized 3
license plate w ould be delivering narcotics to a specific street address was reliable 4
“because significant aspects of the tip, including [the d]efendant’s future movement, 5
were corroborated by the officers prior to the stop”); State v. Alderete , 2011

- NMCA

6
055, ¶ 18, 149 N.M. 799, 255 P.3d 377 (explaining that reasonable suspicion arose 7
from “a tip from a reliable, confidential informant, which included specific, 8
predictive information that a large amount of marijuana was going to be delivered 9

to the house under surveillan ce”). 10

{29} The informant’s tip here did not predict Defendant’s future movements, but 11
only conveyed an allegation of trafficking and a generic description of Defendant’s 12
two vehicles. The agents partially corroborated th is detail, as they confirmed that 13

Defenda nt drove at least one of the vehicles. However, standing alone, the type of 14
vehicle driven by an individual is an innocuous, status quo detail that is readily 15
observable by the public. See State v. Bedolla , 1991

- NMCA

- 002, ¶ 15, 111 N.M. 16
448, 806 P.2d 588 ( concluding that a search was unreasonable when the corroborated 17
portions of an informant’s tip, including a description of the defendant’s vehicle, 18
were all “readily available to any member of the public”). This detail does not reveal 1917 that the informant ha d any special familiarity with Defendant s uch that we can infer 1

that there was a reliable factual basis for the informant’s allegations. 2

{30} We thus conclude that the informant’s tip fails the first prong of Aguilar

3
Spinelli and Cordova . The district court had insufficient evidence on which to 4
conclude that the basis of the informant’s knowledge was reliable, and thus the tip 5
does not support a reasonable suspicion of criminal conduct. 6

2. The agent s ’ surveillance 7

{31} We next consider whether the NEU agents’ surveillance of Defendant 8
supported a reasonable suspicion of illegal conduct. Defendant argues that the agents 9
did not have reasonable suspicion b ecause they only saw innocent activity and did 10
not adequately explain why their training and experience suggested that he was 11
engaging or about to engage in a narcotics exchange. The State responds that the 12
agents described their qualifications as narcotic s agents and sufficiently recounted 13
the facts leading them to reasonably suspect Defendant of illegal conduct. Both 14
parties also compare the facts of the current appeal to Martinez , 2020

- NMSC

- 005 , 15

and Neal , 2007

- NMSC

- 043. 16

{32} In Neal , a police officer observed a defendant briefly interact with a suspected 17
narcotics dealer in front of a house that was under investigation for drug trafficking. 18

2007

- NMSC

- 043, ¶¶ 4

- 5. The officer saw the two individuals meet at the window 1918 of the defendant’s vehicle, but “could not see what, if anything, they were doing, 1
aside from talking, and could not hear what they were saying.” Id. ¶ 27. In 2
concluding that the officer did not have reasonable suspicion to expand a subsequent 3
traffic stop, the Neal Court explained that the defenda nt’s “mere association with a 4

convicted felon .

. . who was under surveillance in an ongoing drug investigation, 5
was insufficient to create reasonable suspicion.” Id. ¶ 30. The “[d]efendant’s 6
innocent conduct and the surrounding circumstances, viewed toget her and indulging 7
the factual inferences drawn by [the officer] , do not constitute the type of 8
individualized, specific, articulable circumstances necessary to create reasonable 9
suspicion that [the d]efendant himself was involved in criminal activity.” Id

. ¶ 31. 10

{33} In Martinez , an officer was surveilling a gas station in a high drug crime area 11
when he saw the defendant and his accomplice briefly interact with an individual in 12
the parking lot of a gas station and in the rear seat of the defendant’s vehicle. 13

Mar tinez , 2020

- NMSC

- 005, ¶ 4. Shortly after, the officer saw the defendant and his 14
accomplice briefly meet with another, unrelated individual in the rear seat of the 15

defendant’s vehicle. Id. ¶ 5. The officer testified that, based on his training and 16
experienc e, the circumstances of the two meetings suggested the defendant might 17
have been trafficking narcotics. Id. ¶ 6. Importantly, “[w]hen asked why he 18
suspected” trafficking, the officer explained that he had participated in back

- seat 1919 drug exchanges while work ing undercover at that gas station, and that the two 1
interactions he observed were “consistent with what [he had] done and seen.” Id. ¶¶ 2

3, 6. The Martinez Court concluded that the potentially innocent facts observed by 3
the officer supported a reasonable s uspicion to stop. Id. ¶ 25. Because the officer 4
observed the defendant “partake in two instances of exactly the kind of drug activity 5
[the officer] had previously observed at the [gas station],” the Court explained that 6
the officer’s “suspicion was grounde d upon specific facts and rational inferences 7

from those facts.” Id. 8

{34} We agree with Defendant that this appeal is analogous to Neal and 9
distinguishable from Martinez , in that the agents did not articulate specific facts 10
supporting a reasonable suspicion of illegal conduct. Like the Neal Court, we cannot 11
reasonably infer criminal activity based on the fact that Defendant met with a woman 12
who was driving a vehicle similar to Anthony Montoya’s white pickup. Although 13
the NEU agents described this meeting between Defendant and the then

- unidentified 14
woman as “almost like an exchange,” they did not see Defendant and the woman 15
actually exchange anything. Nor could the agents hear an ything the two individuals 16
were saying, as the agents were still driving when they decided to “make contact” 17
with Defendant. All the agents saw was Defendant meeting with someone potentially 18

associated with a suspected narcotics dealer. 1920 {35} Similar to Neal , De fendant’s “mere association” with an individual driving a 1
suspicious vehicle did not provide sufficient grounds for an investigatory stop. Neal , 2

2007

- NMSC

- 043, ¶ 30. Our courts have repeatedly emphasized , “[g]uilt by 3
association and generalized suspicions are insufficient grounds upon which to base 4
an investigatory detention.” State v. Prince , 2004

- NMCA

- 127, ¶ 17, 136 N.M. 521, 5
101 P.3d 332; see also State v. Jones , 1992

- NMCA

- 064, ¶ 15, 114 N.M. 147, 835 6
P.2d 863 (refusing to infer that “gang membership and presence in a gang activity 7

area [were] sufficient alone to support reasonable suspicion”); In re Eli L. , 1997

- 8

NMCA

- 109, ¶ 13, 124 N.M. 205, 947 P.2d 162 (concluding that an officer’s 9
knowledge that juvenile was a gang member and “may have been warning ot her 10
gang members that officers were present” was insufficient to give rise to a reasonable 11
suspicion of criminal activity); State v. Graves , 1994

- NMCA

- 151, ¶ 17, 119 N.M. 12
89, 888 P.2d 971 (holding that a defendant’s “mere presence” at a location subject 13

to a search warrant was insufficient to “justify the arrest or detention of a person, 14
other than the resident, at a residence lawfully being searched”). In the absence of 15
any additional facts suggestive of trafficking, it was not reasonable for the agents to 16
believe that Defendant was engaging or about to engage in a nar cotics exchange with 17

the woman. 1821 {36} We also do not see the agents’ unadorned invocation of their “training and 1
experience” as sufficient to establish reasonable suspicion. Each of the NEU agents 2

r ecounted their qualifications as narcotics agents, testified to their observations, and 3
opined that Defendant was trafficking . However, the agents did not explain how their 4
expertise informed their understanding of the apparently innocent facts they 5

observ ed. In the absence of this explanation, we cannot conclude that these facts 6
were objectively suggestive of illegal conduct. 7

{37} We acknowledge that “[a] reasonable suspicion of criminal activity can arise 8
from wholly lawful conduct.” Urioste, 2002

- NMSC

- 023, ¶ 10 (internal quotation 9
marks and citation omitted) . An officer is not required to rule out innocent 10
explanations for suspicious activity before performing an investigatory stop, 11
“because the principal function of an investigation is to resolve whether certain 12
activity is in fact legal or illegal.” Martinez , 2020

- NMSC

- 005, ¶ 31. We also 13

“ recognize that officers may draw on their own experience and specialized training 14

to make inferences from and deductions about the cumulative information available 15
to them that might well elude an untrained person.” Neal , 2007

- NMSC

- 043, ¶ 21 16
(internal quotation marks and citation omitted) . A reviewing court conside rs an 17
officer’s training and experience when the officer’s expertise “enhanced [the 18
officer’s] ability to derive and articulate particularized and objective indicia of 1922 criminal activity” from otherwise innocent

- seeming facts. State v. Van Dang , 2005

- 1

NMSC

- 0 33, ¶ 16, 138 N.M. 408, 120 P.3d 830. 2

{38} However, if a n officer intends to rely on the officer’s training and experience 3
to derive meaning from circumstances that would seem innocent to a lay observer, 4
then “it is incumbent upon the arresting or searching of ficer to explain the nature of 5
[the officer’s] expertise or experience and how it bears upon the facts which 6
prompted the officer to arrest or search.” 2 Wayne R. LaFave, Search & Seizure: A 7

Treatise on the Fourth Amendment § 3.2(c) (6 th ed. 2021). Accordingly, in Martinez 8
we reiterated, “[w]hen an officer relies upon training and experience to effectuate a 9
stop, it is necessary that the officer explain why [the officer’s] knowledge of 10
particular criminal practices gives special signific ance to the apparently innocent 11

facts observed.” 2020

- NMSC

- 005, ¶ 22 (internal quotation marks and citation 12
omitted). “Or, as was said in Terry v. Ohio , [392 U.S. 1, 21 (1968),] ‘the police 13
officer must be able to point to specific and articulable facts wh ich, taken together 14
with rational inferences from those facts, reasonably warrant the intrusion.’” 15

Martinez , 2020

- NMSC

- 005, ¶ 22 (brackets omitted). 16

{39} This requirement that officers provide specific, articulable facts is central to 17

our search and seizure jur isprudence and is in keeping with the judiciary’s role as 18
the ultimate arbiter of a seizure’s reasonableness. We employ an objective standard 1923 for assessing whether an officer’s suspicion was reasonable in light of all the 1
circumstances, and “the subjective belief of the officer does not in itself affect the 2
validity of the stop.” Yazzie , 2016

- NMSC

- 026, ¶ 20 (text only) (citation omitted)

. 3
“The purpose of requiring objectively reasonable suspicion based on the 4
circumstances is to prevent and invalidate polic e conduct based on hunches, which 5
are, by definition, subjective.” State v. Ochoa , 2009

- NMCA

- 002, ¶ 25 , 146 N.M. 32, 6

206 P.3d 143 (internal quotation marks and citation omitted) ; see also Alderete , 7

2011

- NMCA

- 055, ¶ 11 (noting that the purpose of an objecti ve standard “is to 8
prevent officers from arbitrarily acting on whims or unsupported hunches” (internal 9
quotation marks and citation omitted) ). 10

{40} For example, the Martinez Court concluded that the officer’s subjective 11
suspicions were reasonable because the of ficer explained why, in light of his training 12
and experience, the two interactions he observed in the back seat of the defendant’s 13

vehicle suggested the defendant may have been trafficking. Martinez , 2020

- NMSC

14
005, ¶¶ 3

- 6. Similarly, in State v. Hernandez , 201 6

- NMCA

- 008, ¶¶ 14

- 16, 3 6 4 P.3d 15
313, the Court of Appeals distinguished Neal and held that officers there had 16
reasonable suspicion to stop a vehicle because the officers linked the vehicle to a 17

pat tern of narcotics transactions. 1824 {41} In the current appeal, w e are missing that vital logical connection between the 1
agents’ expertise and the facts presented. Without this connection, this Court cannot 2
assess the objective reasonableness of the agent’s subjective suspicions. For 3
example, in its briefing on appeal, the State argues that the agents could have inferred 4
illegal activity from Defendant’s parking position, as the agents recounted that 5
Defendant reversed his vehicle into a parking spot. But the agents did not make this 6

inference or otherwise explain why De fendant’s parking position was suggestive of 7
illegal conduct. On the record presented, we cannot reasonably infer that reversing 8
into a parking space at a gas station objectively suggests that an individual is going 9
to exchange narcotics with another indiv idual

. We therefore conclude that the 10
agents’ surveillance did not establish reasonable suspicion that Defendant was about 11
to engage or was engaging in a narcotics exchange at the gas station. 12

3. Totality of the circumstances 13

{42} Although we have identified defic iencies in the two circumstances discussed 14
above, a “ reasonable suspicion determination requires us to assess the totality of the 15
circumstances,” and we must not engage in “a divide

- and

- conquer analysis in which 16

we view each individual factor or circumstance in a vacuum.” Neal  ̧ 2007

- NMSC

17
043, ¶ 28 (text only ) (citation omitted) . However, we conclude that the facts, viewed 18
objectively and as a whole, did not support a reasonable suspicion to stop. 1925 {43} Aside from the unreliable informant tip and the agents ’ subjective belief that 1
Defendant was engaging in a narcoti cs exchange, all the agents knew at the time 2
they confronted Defendant was that Defendant had a history and reputation as a drug 3
dealer and that they had received information from various other informants that 4
Defendant was currently selling drugs. However , it is unclear what role Defendant’s 5
history and reputation played in the district court’s findings, and on the record 6
presented, we see this factor as giving rise to no more than a generalized suspicion 7
of wrongdoing. The prior information received by th e NEU agents, which placed 8
Defendant “on [their] radar,” also amounts to little more than rumor. The agents did 9
not explore whether these prior informants had reliable bases of knowledge, and 10
nothing was said about these informants’ veracity. Cordova, 1989

- NMSC

- 083, ¶ ¶ 11

6, 17. 12

{44} We therefore hold that, in the totality of the circumstances, the agents did not 13
have a reasonable suspicion of criminal activity when they confronted Defendant

. 14

B. Point of Seizure 15

{45} In light of our holding, we are called to address a ques tion ruled on by the 16
district court but not reached by the Court of Appeals: specifically, whether 17
Defendant was seized when agents first confronted him at the gas station or at some 18
other point during the encounter. The district court concluded that Defen dant was 1926 not seized, and thus suppression was not warranted, because Defendant fled from 1
the agents. The Court of Appeals assumed that Defendant was seized, but declined 2
to expressly rule on the moment of seizure or resolve the parties’ debate about 3

preser vation of Defendant’s arguments under Article II, Section 10 regarding the 4
point of seizure. Granados , A

- 1

- CA

- 37417, mem. op. ¶¶ 7 n.2, 30 n.4. The State 5
asks this Court to make a similar assumption and suggests that, if we reverse the 6

lower courts’ reason able suspicion analysis, then we should remand to the Court of 7
Appeals to determine when Defendant was seized and whether he preserved his state 8

constitutional claims. 9

{46} This Court will address the issue, rather than remand for further appellate 10

consideratio n, as we reverse the lower courts’ reasonable suspicion analysis and 11
wish to provide clarity to the district court on remand. Cf. State v. Ellenberger , 1981

- 12

NMSC

- 056, ¶ 12, 96 N.M. 287, 629 P.2d 1216 (reaching an issue left unaddressed 13
by the Court of Appe als due to this Court’s alternate disposition of the case); Ferrell 14

v. Allstate Ins. Co. , 2008

- NMSC

- 042, ¶ 58, 144 N.M. 405, 188 P.3d 1156 (same). 15
Determining the moment of seizure is “pivotal” to resolution of Defendant’s direct 16
appeal, because “[t]he poi nt at which the seizure occurs .

. . determines the point in 17
time the police must have reasonable suspicion to conduct an investigatory stop.” 18

State v. Harbison , 2007

- NM SC

- 016, ¶ 10, 141 N.M. 392, 156 P.3d 30. “Reasonable 1927 suspicion must exist at the incept ion of the seizure. The officer cannot rely on facts 1

which arise as a result of the encounter.” Jason L. , 2000

- NMSC

- 018, ¶ 20 (citation 2
omitted). The parties had fair opportunity to brief the merits of this issue in filings 3

before this Court and the Court of Appeals. We therefore decide the moment of 4
Defendant’s seizure to promote judicial efficiency and meaningful appellate review. 5

1. Preservation of the seizure issue 6

{47} The State questions whether Defendant adequately preserved his arguments 7

about seizure under the state constitution. During the evidentiary hearing on 8
Defendant’s motion to suppress, the State cited State v. Maez , 2009

- NMCA

- 108, 9
147 N.M. 91, 217 P.3d 104, to argue that Defendant was not effectively seized 10
because he fled from the agents. Maez was a decision made under Fourth 11
Amendment jurisprudence, and did not discuss the standards relevant to 12
determination of a seizure under Article II, Section 10. 2009

- NMCA

- 108, ¶ 15. 13
Defense counsel did not cite any contradictory authority on this point or oth erwise 14
inform the district court of the divergence in state constitutional precedent. The 15
district court ultimately agreed with the State’s analysis. Now on appeal, the State 16
asserts that Defendant did not preserve his state constitutional arguments. 17

{48} The S tate seeks to impose too high a burden for preservation of this issue, as 18
our established precedent has long construed Article II, Section 10 as providing 1928 greater protections than its federal counterpart. See, e.g. , State v. Garcia, 2009

- 1

NMSC

- 046, ¶ 31, 14 7 N.M. 134 , 217 P.3d 1032 (“Article II, Section 10 is calibrated 2
slightly differently than the Fourth Amendment. It is a foundation of both personal 3
privacy and the integrity of the criminal justice system, as well as the ultimate 4
regulator of police condu ct

. ”). In State v. Gomez, 1997

- NMSC

- 006, ¶ 22, 122 N.M. 5
777, 932 P.2d 1, we explained that 6
[i]f established precedent construes [a] provision [of the New Mexico 7 Constitution] to provide more protection than its federal counterpart, 8 the claim may be preserv ed by (1) asserting the constitutional principle 9 that provides the protection sought under the New Mexico Constitution, 10 and (2) showing the factual basis needed for the trial court to rule on 11 the issue. 12
Where, as here, we have interpreted the relevant prov ision of our state constitution 13
as providing greater protections, a party may preserve its state constitutional claim 14
“in the same manner as any other argument.” State v. Leyva , 2011

- NMSC

- 009, ¶ 42, 15
149 N.M. 435, 250 P.3d 861. “[O]nly where a state constit utional provision had 16
never been interpreted to provide greater protection than its federal analog are parties 17
required to alert the trial court and articulate reasons for departure.” Id

. 18

{49} Defendant argued in his motion to suppress that his rights had been violated 19
under Article II, Section 10. He also developed the necessary factual record in an 20
evidentiary hearing and at trial. Cf. State v. Martinez , 1980

- NMSC

- 066, ¶ 16, 94 21

N.M. 436, 612 P .2d 228 (concluding that an appellate court may examine the whole 2229 record to ascertain the reasonableness of a search and seizure); accord State v. 1
Monafo , 2016

- NMCA

- 092, ¶ 10, 384 P.3d 134 (“Rather than being limited to the 2
record made on a motion to suppr ess, appellate courts may review the entire record 3
to determine whether there was sufficient evidence to support the trial court’s denial 4
of the motion to suppress

. ” (internal quotation marks and citation omitted) ). Defense 5
counsel was not required to info rm the district court of the divergent treatment of the 6
issue for preservation purposes. “ Gomez held that, although the defendant did not 7
cite cases interpreting Article II, Section 10 more expansively, this did not operate 8
to prejudice the State in any wa y because the district court is charged with knowing 9
and correctly applying established New Mexico precedent interpreting the state 10

constitution.” Leyva , 2011

- NMSC

- 009, ¶ 41 (internal quotation marks and citation 11
omitted) . Defendant preserved his state con stitutional claims for our review. Rule 12

12

- 321 NMRA. 13

2. Defendant was seized at the gas station 14

{50} In Jason L. , 2000

- NMSC

- 008, ¶ 19, we held that “ [t] he determination of a 15
seizure has two discrete parts .” First “what were the circumstances surrounding the 16

stop, including whether the officers used a show of authority [ ? ] ” Id. Second, “did 17
the circumstances reach such a level of accosting and restraint that a reasonable 18
person would have believed he or she was not free to leave?” Id. The first part of 1930 this inquiry p resents a question of fact that we review for substantial evidence; the 1
second part presents a question of law that we review de novo. Id. Although the 2
district court ruled that Defendant was not seized, it made no explicit findings as to 3
whether the agent s made a show of authority when they approached Defendant at 4
the gas station. The absence of explicit findings is a “regular occurrence when we 5
review decisions on motions to suppress,” and in these circumstances, “our practice 6
has been to employ presumpti ons and as a general rule we will indulge in all 7
reasonable presumptions in support of the district court’s ruling.” Id. ¶ 11 (text only) 8
( citation omitted). 9

{51} However, we are not “bound by a trial court’s ruling when predicated upon a 10

mistake of law.” State v. Werner , 1994

- NMSC

- 025, ¶ 10, 117 N.M. 315, 871 P.2d 11
971 ( internal quotation marks and citation omitted). The district court in the 12
proceedings below was mistaken as to the appropriate standard applied to 13

determination of a seizure under the New Mexico Constitution, as the court applied 14

the federal constitutional standard. In California v. Hodari D. , 499 U.S. 621, 627

- 28 15
(1991), the United States Supreme Court held that a defendant is not seized within 16
the meaning of the Fourth Amendment when the defenda nt does not yield to an 17
officer’s show of authority seeking to effectuate a stop. Thus, as correctly ruled on 18
by the district court, Defendant was not seized for Fourth Amendment purposes 1931 because he did not submit to the agents before abandoning the cocain e. “If [the 1
d] efendant was not seized at the time [the defendant] discarded the contraband, then 2
the evidence would be considered abandoned and Fourth Amendment protections 3
would not apply.” Harbison , 2007

- NMSC

- 016, ¶ 10. 4

{52} However, this Court has explained that “ Hodari D. does not comport with the 5
distinctive New Mexico protection against unreasonable searches and seizures” 6
under Article II, Section 10. Garcia , 2009

- NMSC

- 046, ¶ 27. New Mexico courts 7
follow the standard set by United States v. Mendenhall , 44 6 U.S. 544 (1980), and its 8
progeny in evaluating claims of illegal seizure under our state constitution. Under 9

Mendenhall , “a person has been ‘seized’ .

. . only if, in view of all of the 10
circumstances surrounding the incident, a reasonable person would hav e believed 11

that he [or she] was not free to leave.” Id. at 554. A “reasonable person would not 12
feel free to leave when his or her freedom of movement is restrained, or when the 13
facts show accosting and restraint.” Garcia , 2009

- NMSC

- 046, ¶ 37 (citation s 14

omi tted). The district court did not consider whether the agents made a show of 15
authority as relevant to our analysis under state constitutional law. 16

{53} In analyzing whether a reasonable person would feel free to leave, we examine 17
the “(1) the conduct of the po lice, (2) the person of the individual citizen, and (3) the 18
physical surroundings of the encounter.” Jason L. , 2000

- NMSC

- 018, ¶ 15 (internal 1932 quotation marks and citation omitted) . An officer may “approach an individual, ask 1
questions, and request identific ation without the encounter becoming a seizure.” 2

State v. Walters , 1997

- NMCA

- 013, ¶ 18, 123 N.M. 88, 934 P.2d 282. “Only when 3
the officer, by means of physical force or show of authority, has in some way 4
restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. 5
¶ 12 (quoting Terry , 392 U.S. at 19 n.16). Factors indicating a seizure include “the 6
threatening presence of several officers, the display of a weapon by an officer, some 7
physical touching of the person of the citizen, o r the use of language or tone of voice 8
indicating that compliance with the officer’s request might be compelled.” State v. 9
Lopez , 1989

- NMCA

- 030, ¶ 3, 109 N.M. 169, 783 P.2d 479 ( quoting Mendenhall , 10

446 U.S. at 554 ), modified on other grounds by Jason L. , 2 000

- NMSC

- 018, ¶ 19. 11

{54} The record shows that the agents attempted to prevent Defendant from leaving 12
the gas station parking lot by pulling in front of his vehicle, but failed to do so 13
because their vehicle skidded past Defendant’s truck. After coming to a sto p, the 14
four agents exited their vehicle, displayed their official badges, invoked their 15
authority as law enforcement officers by shouting into Defendant’s open left front 16
window, and ordered Defendant to exit his vehicle. At least one of the agents had 17

his hand on his holstered weapon. 1833 {55} On the facts presented, the language and conduct displayed by the agents in 1
this case “would have communicated to a reasonable person that the person was not 2
free to decline the officers’ requests or otherwise terminate the e ncounter.” Walters , 3

1997

- NMCA

- 013, ¶ 12 ( quoting Florida v. Bostick , 501 U.S. 429, 439 (1991)). 4
Although the agents were not successful in their plan to block Defendant’s vehicle, 5
they approached Defendant in an accusatory and accosting manner and a reason able 6
person in Defendant’s position would not have felt free to leave. See, e.g. , Lopez , 7

1989

- NMCA

- 030, ¶ 12 (finding that a defendant was seized when “[t]he police 8

officers used their vehicle to block [the] defendant’s vehicle, there were four police 9

offi cers approaching the pickup truck, and the officers were invoking their authority 10
as police officers by displaying badges”); State v. Boblick , 2004

- NMCA

- 078, ¶ 10, 11

135 N.M. 754 , 93 P.3d 775 (“ [W] e doubt that a reasonable person would feel free to 12

leave aft er officers knocked on [the person’s] car window, asked [the person] to exit 13
the vehicle, and questioned [the person] about weapons

. ”). The agents displayed a 14
show of authority such that Defendant was seized at the gas station under Article II, 15

Section 10 of the New Mexico Constitution. Defendant’s refusal to submit to that 16
show of authority does not alter this conclusion. Garcia , 2009

- NMSC

- 046, ¶ ¶ 37 , 17

41

. 1834 {56} As we have explained that the agents did not have a reasonable suspicion that 1

Defendant was engaged or about to be engaged in an illegal narcotics exchange when 2
they confronted Defendant, we hold the agents did not have a legitimate basis for 3
the stop and Defendant’s seizure violated Article II, Section 10. 4

IV. CONCLUSION 5

{57} Defendant was unreasonably s eized under Article II, Section 10 of the New 6

Mexico Constitution. The district court erred when it denied Defendant’s motion to 7
suppress. The district court’s order denying suppression and the Court of Appeals’ 8
majority opinion affirming that order are re versed. We remand this matter to the 9
district court with instructions to grant the motion to suppress and for further 10
proceedings consistent with this opinion. 11

{58} IT IS SO ORDERED. 1235 1 JULIE J . VARGAS , Justice 2

WE CONCUR: 3

4 C. SHANNON BACON , Chief Justice 5

6 MICH AEL E. VIGIL , Justice 7

8 DAVID K. THOMSON , Justice 9