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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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-Appellee, 3

v. No. 34,626 4 DAVID GONZALES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Brett R. Loveless, District Judge 8 Hector H. Balderas, Attorney General 9 Maris Veidemanis, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 L. Helen Bennett, P.C. 13 L. Helen Bennett 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 182 {1} Defendant David Gonzales appeals from hi s jury convictions for trafficking by 1 possession with intent to distribute methamphetamine and possession of drug 2 paraphernalia. He raises three issues on appeal, asserting that the district court erred 3 in: (1) denying his motion to suppress eviden ce that he claims was obtained during an 4 illegal search and seizure of his vehicle, (2) denying his motion to suppress statements 5 he made to the arresting officer without Mirandawarnings, and (3) denying his 6 motion for a mistrial based on improper statements made by the prosecutor during 7 closing arguments. We affirm. 8 I. BACKGROUND 9 {2} On May 10, 2013, at approximately 3: 30 a.m., Deputy Jeff Bartram of the 10 Bernalillo County Sheriff’s Office was on patrol and stopped Defendant for speeding. 11 During the traffic stop, Deputy Bartram approached the passenger side of Defendant’s 12 vehicle, spoke to Defendant, w ho was the driver of the vehi cle, and detected the smell 13 of alcohol emanating from inside the vehicle. As Michelle Martinez, the only 14 passenger in the vehicle, s poke to the deputy, the deputy noticed that the smell of 15 alcohol was coming from her. The deputy also observed that Ms. Martinez had 16 bloodshot, watery eyes, and she was holding a glass containing brown liquid and ice 17 cubes on her lap. Although Deputy Bartram di d not determine the contents of the 18 glass, he testified that it sme lled like an alcoholic beverage. 193 {3} After receiving identification from Defendant and Ms. Martinez, Deputy 1 Bartram returned to his vehicle to run a warrant check of the two individuals. He 2 determined that there were no warrants fo r Defendant; however, there was at least one 3 arrest warrant for Ms. Martinez. 4 {4} Deputy Bartram returned to Defendant’s vehicle, asked Ms. Martinez to get out, 5 and as she did so, she placed the glass with brown liquid and ice cubes on the 6 floorboard in front of her seat. The officer arrested Ms. Martinez, escorted her to his 7 patrol car, and issued her an open contai ner citation. Deputy Bartram then ordered 8 Defendant to get out of the vehicle, patted him down for w eapons and contraband, 9 took him to the front of the deputy’s patrol car and instructed him to stand there, and 10 then issued him a citation for speeding. Defendant had no weapons or contraband on 11 his person. At that time, Defendant was not handcuffed. 12 {5} Previously, Ms. Martinez had asked the deputy to get her wallet from 13 Defendant’s vehicle. While Defendant was standing near the deputy’s patrol car, the 14 deputy returned to Defendant ’s vehicle to retrieve Ms. Martinez’s wallet from the 15 dashboard and to remove Ms. Martinez’s gla ss, containing her drink, from the vehicle. 16 As he bent down to pick up the glass from the floorboard, Deputy Bartram observed 17 a small square baggie that had a “crystal- like substance inside of it” in a storage 18 compartment under the radio. He seized the baggie, which he believed contained 194 methamphetamine, returned to his patrol car where Defendant was still standing, and 1 asked Defendant about the baggi e. Defendant informed the officer that “it’s possible 2 it could be mine.” At the e nd of their conversation, whic h lasted one to two minutes, 3 the deputy placed Defendant under arrest. De fendant’s vehicle was towed, and during 4 an inventory search of his vehicle, law enforcement officers found 32.172 grams of 5 methamphetamine, two pipes, and a black digital scale. 6 {6} Defendant was charged withtrafficking by possession with intent to distribute 7 methamphetamine, possession of drug paraphernalia, and speeding. Prior to trial, 8 Defendant filed motions to suppress the evidence and his statements to Deputy 9 Bartram under the Federal and State Constituti ons. In response, the State claimed that 10 Deputy Bartram was justified in seizing what appeared to be an alcoholic beverage 11 from Defendant’s vehicle, which he observed in plain view, and while removing the 12 glass containing this beverage, the deputy saw the methamphetamine in plain view. 13 Additionally, the State asserted that the statements should not be suppressed because 14 Defendant was not in custody when he made the statements. 15 {7} After a hearing, the district court denied the motions to suppress, the case 16 proceeded to a jury trial, and Defendant was found guilty of trafficking by possession 17 with intent to distribute methamphetamineand possession of drug paraphernalia. It is 185 from these convictions that he now app eals. Additional facts will be provided as 1 necessary in our discussion of the issues. 2

II. DISCUSSION 3 A. Defendant’s Motion to Suppress Evid ence Obtained From His Vehicle 4 {8} Defendant argues that the district court erred in denying his motion to suppress 5 evidence, including any controlled substan ces and drug paraphern alia obtained from 6 his vehicle, because he claims that Deputy Bartram’s search of his vehicle and seizure 7 of alleged contraband was in violation of the FourthAmendment to the United States 8 Constitution and Article II, Section 10 of the New Mexico Constitution. 9 {9} We review the denial of a motion to s uppress as a mixed question of fact and 10 law. State v. Williams , 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. “We 11 determine whether the law was correctly applie d to the facts, viewing the facts in the 12 light most favorable to the prevailing party.” State v. Bravo , 2006-NMCA-019, ¶ 5, 13 139 N.M. 93, 128 P.3d 1070 (alteration, internal quotation marks, and citation 14 omitted); see also State v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 15 (stating that “[t]he appellatecourt must defer to the di strict court with respect to 16 findings of historical fact so long as they are supported by substantial evidence”). 176 {10} In this case, the district court included findings of fact in its order denying 1 Defendant’s motions to suppress. These fi ndings are not challenged on appeal. Thus, 2 we accept the district court’s factual findi ngs and address de novo whether the search 3 and seizure of evidence were legal in this case. See Davis v. Devon Energy Corp. , 4 2009-NMSC-048, ¶ 13, 147 N.M . 157, 218 P.3d 75 (“When there are no challenges 5 to the district court’s factual findings, [the appellate courts] accept those findings as 6 conclusive.”); see also Rule 12-318(A)(4) NMRA (stating that an appellant’s brief in 7 chief “shall set forth a specific attack on any finding, or the finding shall be deemed 8 conclusive” and that a contention that a finding is not supported by substantial 9 evidence shall be deemed waived “unless the argument identifies with particularity 10 the fact or facts that are not supported by substantial evidence”). 11 {11} “Article II, Section 10 of the New Mexi co Constitution gives broader protection 12 to individuals in the area of automobilesearches than is provided by the Fourth 13 Amendment of the United States Constitution.” State v. Bomboy , 2008-NMSC-029, 14 ¶ 5, 144 N.M. 151, 184 P.3d 1045. “The Fourth Amendment allows a warrantless 15 search of an automobile and of closed containers found within an automobile when 16 there is probable cause to believe th at contraband is contained therein.” Id. However, 17 “New Mexico has rejected this bright lin e exception to the warrant requirement and 18 requires ‘a particularized showing of ex igent circumstances’ in order to conduct a 197 warrantless search of an auto mobile and its contents.” Id. (quotingState v. Gomez , 1 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1). 2 {12} “Absent exigent circumstances or some other exception to the warrant 3 requirement, an officer may not searchan automobile without a warrant.” Id. ¶ 17; see 4 also State v. Duffy , 1998-NMSC-014, ¶ 61, 126 N.M. 132, 967 P.2d 807 (stating that 5 “[a]mong the recognized exceptions to the warrant requirement are exigent 6 circumstances, consent, searches incident to arrest, plain view, inventory searches, 7 open field, and hot pursuit”), overruled on other grounds by State v. Tollardo , 8 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. “How ever, if following a lawful stop on a 9 roadway, an item in an auto mobile is in plain view and the officer has probable cause 10 to believe the item is evidence of a crime, the officer may seize the item.” Bomboy , 11 2008-NMSC-029, ¶ 17; see also State v. Ochoa , 2004-NMSC-023, ¶ 9, 135 N.M. 781, 12 93 P.3d 1286 (“Under the plain view exception to the warrant requirement, items may 13 be seized without a warrant if the poli ce officer was lawfullypositioned when the 14 evidence was observed, and the incriminati ng nature of the evid ence was immediately 15 apparent, such that the officerhad probable cause to believe that the article seized was 16 evidence of a crime.”). 17 {13} In this case, Deputy Bartram stopped Defendant for driving fifty-three miles per 18 hour in a forty-five mile-per-hour speed zone. The deputy approached the passenger 191 We note that this statute was last ame nded, effective June 14, 2013, which was 18 after the arrest in this case. However, the amendment does not change our analysis. 19 8 side of the vehicle and observed that Defendant was the driver and there was a female 1 passenger in the front seat. From that vantage point, the deputy observed that the 2 passenger had bloodshot, watery eyes; she had an odor of alcohol; and she was 3 holding a glass with ice and a brown liquid, in plain view, that looked like and smelled 4 like an alcoholic beverage. In New Mexico, it is illegal to consume or possess an 5 alcoholic beverage in a motor vehicle. NMSA 1978, § 66-8-138 (2013). 1 Therefore, 6 we conclude that the deputy had probablecause to believe that the glass and its 7 contents were evidence of a crime, and th e deputy was justified in seizing the glass 8 from Defendant’s vehicle. See Bomboy , 2008-NMSC-029, ¶ 17; see also Ochoa , 9 2004-NMSC-023, ¶ 9 (“Probable cause exis ts when the facts and circumstances 10 warrant a belief that the accused had co mmitted an offense, or is committing an 11 offense.”). 12 {14} When Deputy Bartram bent down to retrieve the glass from the floorboard, 13 which is where the passenger had placed th e glass before she was arrested for an 14 outstanding warrant, he saw a baggie “with a crystalline substance that was located 15 in an open air bin on the console between th e driver and passenger seat near the gear 16 shift.” The deputy believed the baggie cont ained methamphetamine and seized it. We 179 conclude that Deputy Bartram was lawfu lly positioned when he observed the baggie, 1 the incriminating nature of the baggie “with a crystallin e substance” was immediately 2 apparent, and the deputy had probable cause to seize the baggie. See Bomboy , 3 2008-NMSC-029, ¶ 17; Ochoa , 2004-NMSC-023, ¶ 9. 4 {15} Based on the facts in this case, we conc lude that seizure of both the glass and 5 the baggie were justified by the plain viewexception to the warrant requirement. We 6 note that, based on Defendant’s claim that the seizure of the glass and baggie were 7 illegal, he argues that all evidence collected thereafter was the fruit of an unlawful 8 search or seizure and should have been suppressed. See State v. Ingram , 9 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151 (“Evidence which is obtained 10 as a result of an unconstitutional search or seizure may be suppressed under the 11 exclusionary rule.” (internal quotation marks and citation omitted)). This argument 12 lacks merit for two reasons. First, as discu ssed above, the seizure of the glass and the 13 baggie were lawful. Second, after Defendant wa s arrested, additional evidence was 14 obtained through an inventory search, whic h is a recognized exception to the warrant 15 requirement, and Defendant is not challenging the inventory search on appeal. See 16 Duffy , 1998-NMSC-014, ¶ 61 (recognizing inventory searches as an exception to the 17 warrant requirement). We c onclude that the district court did not err in denying 18 Defendant’s motion to suppress the evidence obtained from his vehicle. 1910 B. Defendant’s Motion to Suppress His Statements to Deputy Bartram 1 {16} Defendant also moved to suppress his st atement to Deputy Bartram that it was 2 possible that the small square baggie coul d be his, which he claims was evidence 3 obtained in violation of Miranda v. Arizona , 384 U.S. 436 (1966). See State v. King , 4 2013-NMSC-014, ¶ 3, 300 P.3d 732 (“InMiranda , the United States Supreme Court 5 articulated a warning that law enforcement must give to a suspect before the suspect 6 can be subjected to a custodial interrogation without compromising the suspect’s 7 privilege against sel f-incrimination.” (citing Miranda , 384 U.S. at 478-79)). The 8 district court denied the motion, finding that Defendant was not in custody when he 9 made this statement. 10 {17} On appeal, Defendant argues that he wa s subject to a custodial interrogation, 11 and Deputy Bartram should haveadvised him of his rights against self-incrimination 12 before questioning him. He asserts that the deputy removed him from his vehicle, 13 patted him down for weapons or contraband, ordered him tostand near the deputy’s 14 patrol car, and subjected him to ques tioning designed to elicit incriminating 15 information. Defendant proceeds to argue that he did not feelfree to get back into his 16 vehicle and leave. The State argues that Defendant was not in custody when he told 17 Deputy Bartram that the baggie of suspected methamphetamine could be his. 1811 {18} “In reviewing a district court’s ruling on a motion to suppress, we observe the 1 distinction between factual determinations [,] which are subject to a substantial 2 evidence standard of review[,] and applicati on of law to the facts, which is subject to 3 de novo review.” Bravo , 2006-NMCA-019, ¶ 5 (alteration, internal quotation marks, 4 and citation omitted). “Determining whether or not a police interview constitutes a 5 custodial interrogation requires the application of law to the facts.” State v. Nieto , 6 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P. 3d 442. Because the facts are not in 7 dispute, we review de novo whether Defendant was subject to a custodial 8 interrogation. See id. 9 {19} Generally, “[t]he roadside questioning of a motorist pursuant to a routine traffic 10 stop does not constitute custodial interrogation.” Armijo v. State ex rel. Transp. Dep’t , 11 1987-NMCA-052, ¶ 6, 105 N.M. 771, 737 P.2d 552. However, “Mirandawarnings 12 are required after a traffic stop . . . if [the ] defendant can demonstrate that, at any time 13 between the initial stop and the arrest, he wa s subjected to restraints comparable to 14 those associated with a formal arrest.” Id. (internal quotati on marks and citation 15 omitted). 16 {20} To determine whether an i ndividual is in custody for Mirandapurposes, “the 17 court must apply an objective test to reso lve the ultimate inquiry: was there a formal 18 arrest or restraint of freedom of movement of the degree associated with a formal 1912 arrest.” State v. Wilson , 2007-NMCA-111, ¶ 23, 142 N.M. 737, 169 P.3d 1184 1 (internal quotation marks and citation omitted). In the pres ent case, Defendant was not 2 formally arrested when he told Deputy Bartram that the small square baggie could be 3 his. Thus, we must “engagein a fact-specific analys is of the totality of the 4 circumstances under which the questioning took place in order to decide whether the 5 custody requirement is met.” State v. Olivas , 2011-NMCA-030, ¶ 10, 149 N.M. 498, 6 252 P.3d 722. 7 {21} Following the suppression hearing, the district court found that, after retrieving 8 the small square baggie of suspected me thamphetamine from Defendant’s vehicle, 9 Deputy Bartram spoke with Defendant for oneto two minutes; their conversation was 10 non-confrontational; Deputy Bartram was se veral feet away from Defendant during 11 the encounter with the corner of the car between them; and the conversation occurred 12 on a street with traffic. These findings are not challenged on appeal; therefore, we 13 accept them as conclusive. See Davis , 2009-NMSC-048, ¶ 13; see also Rule 14 12-318(A)(4) (establishing that uncontested fi ndings are conclusive). Based on the 15 facts in this case, we are not persuaded that Defendant was subjected to a custodial 16 interrogation when Deputy Bartram asked him if the baggie belonged to him. See 17 State v. Javier M. , 2001-NMSC-030, ¶ 15, 131 N.M . 1, 33 P.3d 1 (“Custodial 18 interrogation occurs when an individual is swept from familiar surroundings into 1913 police custody, surrounded by antagonistic forces, and subjected to the techniques of 1 persuasion so that the individual feels under compulsion to speak.” (omission, 2 alterations, internal quotation marks, and citation omitted)). 3 {22} Although Defendant does not dispute the factual details determined by the 4 district court, he contends th at he did not feel free to re turn to his vehicle and leave, 5 and at the time that Deputy Bartram asked him about the baggie, the deputy knew that 6 he was going to arrest Defendant. We do not consider these subjective factors. See 7 Nieto , 2000-NMSC-031, ¶ 20 (“Custody is determined objectively, not from the 8 subjective perception of any of th e members to the interview.”); State v. Munoz , 9 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972 P.2d 847 (“The test is objective: the actual 10 subjective beliefs of the defendant and the interviewing officer on whether the 11 defendant was free to leave are irrelevant.” (internal quotation marks and citation 12 omitted)). In Armijo , this Court held that a driver was not in custody during a traffic 13 stop, even though a police officer testified th at, in his view, the driver was not free to 14 leave, because “the police officer’s subj ective state of mind is not the appropriate 15 standard for determining whether an indivi dual has been deprived of his freedom of 16 movement in any significant way.” 1987-NMCA-052, ¶¶ 1, 4, 7, 10-12. 17 {23} We conclude that Defendant was not s ubject to a restraint on his freedom of 18 movement of a degree associated with a fo rmal arrest. Therefore, Defendant was not 1914 entitled to Mirandawarnings, and the district court did not err in denying his motion 1 to suppress his statements. 2 C. Motion for a Mistrial 3 {24} Defendant argues that the district court abused its discretion in denying his 4 motion for a mistrial after the State improperly vouched for its case in its closing 5 argument. During the State’s rebuttal argument, the prosecu tor referred to Instruction 6 No. 2 and emphasized to the jury: “You are th e sole judges of the facts in this case.” 7 [1-13-15 Tr. 124:7-9; RP 81] The prosecutor proceeded to say: “A lot of times the 8 defense counsel wanted to talk about tow inventories or Mirandaor something to that 9 nature. That’s already been decided on. If there was a bad search, if there was an 10 involuntary confession, the judge wouldn’t let it be here today.” Defense counsel 11 objected, and during a bench conference, argued that the State was improperly 12 bolstering and moved for a mistrial with a finding of prosecutorial misconduct. The 13 district court sustained the objection, deniedthe request for a mistrial, and instructed 14 the jury to disregard the State’s last senten ce. The State continued to make its rebuttal 15 argument and stated: 16 As I was saying, again, the instruction is clear. You are the sole 17 judges of the facts in this case. Th at means you should not be discussing 18 whether a search warrant wasn’t supposed to happen, whether Miranda 19 warnings were supposed to be read. You are merely here to look at the 20 testimony, again, and the evidence. Search warrants and Mirandaare 21 irrelevant in this case. You are the sole judges of the facts alone. 2215 Defense counsel did not object to these latter statements. On appeal, Defendant argues 1 that both sets of statements—the statements before the bench conference and the 2 statements after the bench conference—were improper vouch ing “and led to an 3 improper and unfair verdict.” 4 {25} “Where error is preserved at trial, an appellate court will review under an abuse 5 of discretion standard.” State v. Sosa , 2009-NMSC-056, ¶ 26, 147 N.M. 351, 223 P.3d 6 348. “Where counsel fails to object, the appellate court is limited to a fundamental 7 error review.” Id. ; see also Rule 12-321(B)(2)(c) NMRA (providing that if a question 8 for review is not preserved, an appellatecourt may, “in its discretion” address 9 questions involving “fundamental error”). De fendant preserved his claim of improper 10 vouching as to the statements before th e bench conference; however, he did not 11 preserve his claim of improper vouching as to the statements after the bench 12 conference. See State v. Salazar , 2006-NMCA-066, ¶ 20, 139 N.M. 603, 136 P.3d 13 1013 (“We have often stated that a prompt objection and ruling by the trial court goes 14 a long way to curing pros ecutorial vouching.”); State v. Pennington , 15 1993-NMCA-037, ¶ 32, 115 N.M . 372, 851 P.2d 494 (“A timely objection allows the 16 trial court to assess the prejudicial nature of the statements and take curative steps, 17 such as admonishing the prosecutor.”). Because Defendant did not argue that the 18 statements made after the bench conference were fundamental error, we will not 1916 consider these statements. See Salazar , 2006-NMCA-066, ¶ 20 (declining to address 1 the merits of the defendant’s claim of improper vouching after noting that the claim 2 had not been preserved and that the defendant did not argue that it was fundamental 3 error). 4 {26} The New Mexico Supreme Court has articul ated three factors to consider when 5 reviewing questionable statements made during closing arguments for error: “(1) 6 whether the statement invade[d] some dis tinct constitutional protection; (2) whether 7 the statement [was] isolated and brief, or repeated and pervasive; and (3) whether the 8 statement [was] invited by the defense.” Sosa , 2009-NMSC-056, ¶ 26. After 9 discussing these three factors, our Supreme Court stated that while the factors are 10 “useful guides, . . . c ontext is paramount.” Id. ¶ 34. “Where evidence of guilt is 11 overwhelming, or an improper statement is corrected by counsel or the court, 12 reversible error is less likely.” Id. If, however, the prosecutor’s “comments materially 13 altered the trial or likely confused the jury by distorting the evidence,” the state has 14 deprived the defendant of a fair trial, and reversal is warranted. Id. “Only in the most 15 exceptional circumstances should [the appellate courts], with the limited perspective 16 of a written record, determine th at all the safeguards at the trial level have failed. Only 17 in such circumstances should [the appellate courts] reverse the verdict of a jury and 18 the judgment of a trial court.” Id. ¶ 25. 1917 {27} In the present case, Defendant did not address the three factors on appeal. 1 Instead, Defendant’s central contention is that the improper statements “led to an 2 improper and unfair verdict.” We are not persuaded by this argument, particularly 3 given the fact that the improper statement was corrected by the district court. See id. 4 (stating that “a trial court can correct any impropriety by striking statements and 5 offering curative instructions”). We note th at, “[b]ecause trial judges are in the best 6 position to assess the impact of any ques tionable comment, [the appellate courts] 7 afford them broad discretion in managing closing argument.” Id. ; see also State v. 8 Chamberlain , 1991-NMSC-094, ¶ 26, 112 N.M. 723, 819 P.2d 673 (explaining that 9 district courts are given wide discretion in controlling closing statements, and a 10 reviewing court will not conclude there is reversible error absent an abuse of 11 discretion). Here, Defendant has not demonstr ated that the district court abused its 12 discretion in denying his motion for a mi strial based on the brief and isolated 13 statements by the prosecutor. See State v. Aragon , 1999-NMCA-060, ¶ 10, 127 N.M. 14 393, 981 P.2d 1211 (stating that we presume co rrectness in the district court’s rulings 15 and the burden is on the appellant to de monstrate the district court’s error); see also 16 State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (“An abuse of 17 discretion occurs when the ruling is clearly ag ainst the logic and eff ect of the facts and 18 circumstances of the case. We cannot say the trial court abused its discretion by its 1918 ruling unless we can characterize it as clearly untenable or not justified by reason.” 1 (internal quotation marks and citation omitted)); Sosa , 2009-NMSC-056, ¶ 31 (“[O]ur 2 appellate courts have consistently upheld convictions where a prosecutor’s 3 impermissible comments are brief or isolated.”). 4 {28} Accordingly, we conclude that the district court did not abuse its discretion in 5 denying Defendant’s motion for a mistrial. 6 III. CONCLUSION 7 {29} For the foregoing reasons, we affirm. 8 {30} IT IS SO ORDERED. 9

__________________________________ 10 TIMOTHY L. GARCIA, Judge 11

WE CONCUR: 12

_______________________________ 13 LINDA M. VANZI, Chief Judge 14

_______________________________ 15 JONATHAN B. SUTIN, Judge 16