1

Certiorari Denied, December 7, 2015, No. 35,594

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-008

Filing Date: October 13, 2015

Docket No. 33,156

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

OSCAR HERNANDEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY

Darren M. Kugler, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

M. Anne Kelly, Assistant Attorney General

Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Tania Shahani, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

SUTIN, Judge.

I. Introduction

{1} Defendant Oscar Hernandez challenges the district court’s denial of his motion to

suppress contraband seized from him and statements he made during an investigatory stop
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of an SUV in which he was a passenger. He asserts that law enforcement agents did not have

reasonable suspicion when they stopped the SUV. We hold that the stop was supported by

reasonable suspicion, and we affirm the district court.

Procedural History

{2} Following his arraignment for possession of a controlled substance, in violation of

NMSA 1978, Section 30-31-23(E) (2011), Defendant filed a motion to suppress the

controlled substances seized, as well as all statements made by him, following an August 23,

2012, stop of an SUV in which he was a passenger. The district court held an evidentiary

hearing on the motion during which the State proffered testimony from the two undercover

agents concerning events preceding the stop of the SUV.

{3} The district court denied Defendant’s motion to suppress, listing the following factors

that were considered in its totality of the circumstances analysis.

(1) the established drug house through undercover buys, (2) previous

identification of the SUV through an undercover buy at [a] separate drug

house, (3) observation of activities consistent with previous drug buys which

included the dropping off and picking up of the male passengers, and (4) the

[three to five] minute time frame that was found to be consistent with drug

trafficking.

Following the denial of Defendant’s motion to reconsider, Defendant entered a conditional

plea, reserving his right to appeal the district court’s denial of his motion to suppress.

Judgment was entered against Defendant, and Defendant filed a timely notice of appeal.

II. Background

{4} This case involved an ongoing narcotics investigation that culminated in the stop of

the SUV and the arrest of Defendant, who was a passenger in the vehicle. Following the

stop, Defendant was described by another passenger in response to an agent’s query about

the location of the narcotics. The stop was based on three previous incidents occurring in the

agents’ ongoing investigation, incidents that the State maintains supported reasonable

suspicion for the stop of the SUV. We describe those incidents.

A. July 3, 2012

{5} Undercover narcotics Agents Gabriel Arenibas and Joseph Misquez arranged an

undercover heroin buy on July 3, 2012, through a man named Kyle Mendenhall. The agents

referred to Mendenhall as a “suspect” and used him not as a confidential informant, but
1

 Our impression that Mendenhall was not a confidential informant and was unaware

of the agents’ positions with law enforcement is enhanced by the fact that no mention

appears in the record of the agents conducting controlled buys, where the informant is first

checked to see if they possess drugs prior to making the buy at the request of officers, see

State v. Lujan, 1998-NMCA-032, ¶ 2, 124 N.M. 494, 953 P.2d 29 (describing a typical

controlled buy), and the fact that his role in the investigation ended due to an unrelated

parole violation.

2

It appears from the record that the agents’ interactions with Hall and Malchete were

not controlled buys and that Hall and Malchete were also not confidential informants. This

position is based on repeated references to “undercover buys” with Hall and Malchete,

references to them as “suspects,” and the fact that Agent Arenibas remained with Agent

Misquez during the July 23 buy for “safety.”

3

rather as a source of drugs and a way to track down other heroin dealers in the area.1

 The

agents drove with Mendenhall to the Oñate Greens Trailer Park. Mendenhall directed the

agents toward a trailer in Space 104 in the trailer park. He requested that the agents drop him

off a few spaces away so that he could approach on foot, as the resident of Space 104 did not

like new people to go there. The agents parked a few spaces away from Space 104, moved

to a vantage point where they could observe Mendenhall, and saw him go into the white

trailer. Mendenhall remained in the trailer for two to five minutes, returned to the car, they

proceeded to Mendenhall’s residence to drop him off, and Mendenhall gave a packet of

heroin to the agents. Both agents testified that Mendenhall’s presence in the trailer for two

to five minutes was consistent with drug trafficking.

B. July 23, 2012

{6} Sometime after the July 3 buy, Mendenhall violated his parole, and the agents were

no longer able to make buys through him. The agents accepted an offer from Brandon Hall

and Zach Malchete, who were relatives of Mendenhall, “to hook us up meaning to sell us

heroin” and arranged to buy heroin from them instead of Mendenhall.2

 On July 23, 2012,

Hall and Malchete met with Agent Misquez, while Agent Arenibas conducted surveillance

from approximately twenty feet away. Agent Misquez gave Malchete $40 to purchase the

heroin, and Malchete left, stating that he had to go to the Oñate Greens to his “connect.”

Agent Misquez testified that Malchete, Hall, Mendenhall, and several other subjects were

part of the investigation that the agents were working, and they knew their sources to be at

two locations, one of which was Space 104 in the Oñate Greens Trailer Park. Agent Misquez

confirmed that Malchete stated that he was “going to that white trailer,” and Hall also

confirmed the same information to Agent Misquez, that it was the white trailer in Space 104

from which Mendenhall had purchased heroin on July 3. Malchete returned approximately

five to ten minutes later; upon his return, Malchete gave Agent Misquez $40 worth of heroin.

C. August 10, 2012
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{7} On August 10, 2012, the agents contacted Hall in order to purchase more heroin; Hall

did not have the amount that the agents requested, but offered to get it if they agreed to drive

him to a location where he could purchase it. The agents agreed, and Hall directed them to

2801 Merriweather Street. This buy played out under the “same circumstances” as the July

3 purchase by Mendenhall at Space 104, in that the agents parked down the street from the

house and waited while Hall went into the Merriweather home on foot; again, the reason for

this was that the individual at the Merriweather home disliked new people coming to the

house. While Hall was in the house, the agents noticed a tan or golden colored SUV parked

in the driveway of the Merriweather home and “got the plate” of that vehicle. Hall came out

of the residence three to five minutes later, got into the agents’ car, and handed Agent

Misquez a small amount of heroin. At the time, the agents did not know who resided at 2801

Merriweather. The agents later determined that a family lived at the residence and that the

SUV was registered to a person living at that address.

D. August 23, 2012

{8} The agents participated in other buys with Hall and Malchete between July 3 and

August 23, but in none of those additional buys did Hall and Malchete go to Space 104;

instead, they took the agents to different addresses to buy heroin. The agents began

conducting surveillance on Space 104 on their own. At the inception of the August 23rd

surveillance, the agents determined that they would stop any vehicle engaged in “suspicious

activity” and also had a marked police unit waiting in the area to conduct such stops. The

agents observed a gold SUV stop in the trailer park, drop off two passengers down the road

from Space 104, and proceed to pull into Space 104’s driveway. The vehicle remained there

for three to five minutes, and the two remaining individuals in the SUV “made contact with

the subject inside Space 104.” The vehicle left Space 104, picked up the two passengers

down the street, and exited the trailer park. Agent Arenibas testified that the agents noticed

that the gold SUV was the same one they had seen parked outside 2801 Merriweather during

the buy on August 10. When the SUV passed in front of the agents, they were able to see its

license plate number, thereby confirming that the SUV was the same one that they had seen

outside of 2801 Merriweather. The SUV having been parked at Space 104 for the short

length of time it was parked there, and having dropped off and picked up the passengers

down the street from Space 104, was consistent with drug trafficking that the agents had

observed during the previous undercover buys during their investigation. Based on the

circumstances of this August 23rd buy and the similarities it had with the earlier undercover

heroin purchases at Space 104 and at 2801 Merriweather, the agents believed that the

occupants of the SUV were involved in picking up or purchasing heroin.

{9} Because of these similarities, as well as the same SUV’s involvement, the agents

requested that the marked police unit stop the SUV. The stop was conducted approximately

one block away from the trailer park, minutes after the SUV pulled away from Space 104.

The agents drove to the place where the marked unit had stopped the SUV, approached the

vehicle, advised the occupants of the narcotics-related reason for the stop, and separated

them. After a female passenger described Defendant as being the person with the heroin,
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We limit our analysis to the federal constitution when the defendant does not argue

on appeal how and why the New Mexico Constitution provides greater protection. See

generally State v. Lorenzo P., 2011-NMCA-013, ¶ 9, 149 N.M. 373, 249 P.3d 85. Defendant

provides no such argument here. We therefore analyze Defendant’s case only under the

Fourth Amendment.

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Defendant was confronted by the agents, and eventually, Defendant voluntarily gave Agent

Misquez a package of heroin.

III. Discussion

Standard of Review

{10} When we review an appeal from a determination on a motion to suppress in a

criminal case, we look at the totality of circumstances. State v. Leyva, 2011-NMSC-009,

¶¶ 30, 59, 149 N.M. 435, 250 P.3d 861; State v. Vandenberg, 2003-NMSC-030, ¶ 19, 134

N.M. 566, 81 P.3d 19. We view the facts in a light most favorable to the prevailing party.

State v. Sewell, 2009-NMSC-033, ¶ 12, 146 N.M. 428, 211 P.3d 885. At the same time, if

the district court makes findings of fact, and if any finding is attacked for lack of substantial

evidence, we will review the finding under a substantial evidence standard of review. State

v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57. If the finding is supported by

substantial evidence, we will defer to the court’s finding. Id. Once the operative facts are

ascertained, we review the constitutional reasonableness of the actions of law enforcement.

Vandenberg, 2003-NMSC-030, ¶ 19; State v. Attaway, 1994-NMSC-011, ¶¶ 6-10, 117 N.M.

141, 870 P.2d 103. A constitutional reasonableness analysis engages a process of evaluating

both fact and law and is appropriately labeled a mixed question of fact and law. Attaway,

1994-NMSC-011, ¶¶ 6-7; see generally Randall H. Warner, All Mixed Up About Mixed

Questions, 7 J. App. Prac. & Process 101 (2005). Despite the fact that our review requires

determinations of what the operative facts are, because the process involves evaluative

judgments in regard to reasonableness, we review the district court’s determination de novo.

Vandenberg, 2003-NMSC-030, ¶¶ 17, 19; Attaway, 1994-NMSC-011, ¶ 10.

The Stop Was Supported by Reasonable Suspicion

{11} The Fourth Amendment to the United States Constitution “prohibits unreasonable

searches and seizures . . ., and its protections extend to brief investigatory stops of persons

or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273

(2002) (internal quotation marks and citation omitted).3

 While warrantless seizures are

presumed to be unreasonable, State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188

P.3d 95, brief investigatory stops are permissible if they are supported by reasonable

suspicion that criminal activity may be afoot. Arvizu, 534 U.S. at 273.

{12} “[T]he concept of reasonable suspicion is somewhat abstract” and has not been
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reduced to a neat set of legal rules. Arvizu, 534 U.S. at 274. In reviewing a reasonable

suspicion determination, an appellate court “must look at the totality of the circumstances”

to determine “whether the detaining officer [had] a particularized and objective basis for

suspecting legal wrongdoing.” Id. at 273 (internal quotation marks and citation omitted). The

appellate court must give due weight to the factual inferences and deductions drawn by a law

enforcement officer based upon his experience and specialized training. Id. at 273-74.

“Although an officer’s reliance on a mere hunch is insufficient to justify a stop, the

likelihood of criminal activity need not rise to the level required for probable cause, and it

falls considerably short of satisfying a preponderance of the evidence standard[.]” Id. at 274

(internal quotation marks and citation omitted). Finally, we are not to engage in a “divideand-conquer analysis[,]” looking at each act in a series of acts that, taken alone, may be

susceptible of an innocent explanation. Id. “A determination that reasonable suspicion exists

. . . need not rule out the possibility of innocent conduct.” Id. at 277.

{13} In Defendant’s view, the agents’ investigations “were fragmented and flawed,” were

based on their “hunch that [the SUV] was involved in drug-related activity[,]” and were not

adequate to support reasonable suspicion and the seizure of the SUV. Defendant relies on

Neal, 2007-NMSC-043. In Neal, a law enforcement officer effected a valid traffic stop of

the defendant and then detained the defendant for ten minutes to await a drug dog to perform

a perimeter sniff of his vehicle. Id. ¶¶ 1, 28, 31. Our Supreme Court held that the factual

bases asserted by the officer to justify the ten minute detention did not satisfy the reasonable

suspicion standard. Id. ¶ 31. The officer’s stated grounds for detaining the defendant were

that the defendant had parked in front of a house that was under surveillance in an ongoing

drug investigation, the defendant had a discussion with the resident who was a felon, the

officer’s “belief that a drug transaction had taken place[,]” the defendant’s demeanor, his

desire to leave, and the fact that the defendant had a criminal history. Id. ¶¶ 9, 28, 30. The

Court determined that the defendant’s innocent conduct, presence at a known drug house,

and prior involvement in drug-related activity were not sufficient to constitute reasonable

suspicion to detain the defendant beyond the valid traffic stop. Id. ¶¶ 9, 23, 31. The Court

reasoned that “[the d]efendant’s mere association with a convicted felon . . ., who was under

surveillance in an ongoing drug investigation, was insufficient to create reasonable

suspicion[,]” id. ¶ 30, explaining that the totality of the facts presented did not “constitute

the type of individualized, specific, articulable circumstances necessary to create reasonable

suspicion that [the d]efendant himself was involved in criminal activity[.]” Id. ¶ 31. Instead,

it characterized the circumstances as “the type of conjecture and hunch we have rejected in

the past as insufficient to constitute reasonable suspicion.” Id.

{14} Defendant’s reliance on Neal derives from his view that the SUV’s mere presence

at a house that was under investigation for suspected drug activity is inadequate to support

reasonable suspicion. See id. ¶¶ 4, 28, 30 (stating, among other things, that the defendant’s

presence at a house that was under investigation for drug activity did not give rise to

reasonable suspicion). We are not persuaded by this comparison. Here, the grounds for the

agents’ reasonable suspicion were based on far more than the SUV’s mere presence at a

suspected drug house.
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The special concurrence follows suit and goes further than Defendant by more finely

parsing the facts with innocent explanations for the circumstances observed by the agents

during their ongoing investigation. Defendant’s and the special concurrence’s approaches

fail to consider the totality of the circumstances, fail to give due deference to law

enforcement’s training and experience, and engage in an unwarranted divide-and-conquer

approach by attempting to find an innocent explanation for each piece and parcel of the

ongoing investigation.

5

 Arguably, the agents’ observations were sufficient to establish Mendenhall’s and

Hall’s reliability even under the heightened standard of probable cause applicable to a search

warrant. See, e.g., State v. Mejia, 766 P.2d 454, 457 (Wash. 1989) (en banc) (considering the

reliability of information gained from a middleman who purchased drugs for a confidential

informant and concluding that law enforcement’s observations of his travel to a suspected

drug house, then back to the confidential informant to deliver drugs demonstrated probable

cause); State v. Morehouse, 684 P.2d 1348, 1350 (Wash. Ct. App. 1984) (stating that, in

the context of a search warrant for a suspected drug house, any deficiency concerning a

middleman’s reliability was overcome by law enforcement’s “observation of two separate

[drug] transactions involving the same residence and the same pattern of activity”). 

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{15} Further, Defendant’s arguments ignore the teachings of Arvizu. See 534 U.S. 273-74.

Defendant parses the agents’ investigation and attacks the reasonableness of the underlying

inferences and conclusions as to each stage of the investigation that, combined, ultimately

led to the stop.4

{16} For example, Defendant argues that the agents “could not be certain” that the

Merriweather address or Space 104 were sources of heroin. To that end, Defendant points

to the facts that the agents did not see or hear any drug transaction at either address and did

not confirm that Mendenhall, Hall, or Malchete were honest in their representations that they

purchased heroin from either address by somehow ensuring that they did not have heroin

before they went to those addresses or somehow confirming that they did not keep the

agents’ money themselves. Defendant’s argument evokes the sense of certainty that is

required in a probable cause determination, but it misses the mark in terms of the reasonable

suspicion standard. See Alabama v. White, 496 U.S. 325, 330 (1990) (stating that because

“[r]easonable suspicion is a less demanding standard than probable cause” it “can arise from

information that is less reliable than that required to show probable cause”); United States

v. Cortez, 449 U.S. 411, 418 (1981) (stating that the process of developing reasonable

suspicion sufficient to justify a brief investigatory stop “does not deal with hard certainties,

but with probabilities” developed from “common sense conclusions about human behavior

. . . as understood by those versed in the field of law enforcement”). The agents’ training and

experience, their observations during the drug buys, and the involvements of the SUV,

objectively support the agents’ reasonable suspicion that the addresses were sources of

heroin5

 and the SUV was connected. See Arvizu, 534 U.S. at 273-74 (discussing the standard

used to determine whether law enforcement “[had] a particularized and objective basis for
8

suspecting legal wrongdoing” (internal quotation marks and citation omitted)).

{17} Defendant also attacks reasonable suspicion on the ground that neither the SUV nor

its owner was known to have been previously involved in any suspicious, drug-related

activity. Defendant states that “[t]he agents had not identified [to whom] at the Merriweather

residence the SUV belonged . . . or if that person was, in fact, involved with drug sales.” In

support of this attack, Defendant relies on State v. Graves, 1994-NMCA-151, ¶ 8, 119 N.M.

89, 888 P.2d 971, for the inapplicable proposition that, in Defendant’s words, “presence on

the premises subject to a search warrant does not justify detaining or searching the

defendant[.]” We are not made aware of any authority to support the notion that an

investigatory stop requires law enforcement officers to know of prior suspicious or criminal

activity or to know that the owner of the subject vehicle was “in fact” involved in criminal

activity. Again, reasonable suspicion “does not deal with hard certainties, but with

probabilities.” Cortez, 449 U.S. at 418. Further, focusing on what the agents did know

instead of what they did not know about the SUV, that is, its presence at the Merriweather

address during a heroin purchase, its later presence at the Oñate Greens Trailer Park, and the

fact that, while at the trailer park, it followed the particular pattern known to the agents to

be associated with heroin purchases from Space 104, objectively supported the agents’

reasonable suspicion of criminal activity. See, e.g, United States v. Askew, 403 F.3d 496, 508

(7th Cir. 2005) (confirming that the totality of the circumstances firmly established

reasonable suspicion and that, although one event could be interpreted as an innocent one,

“a pattern of behavior interpreted by the untrained observer as innocent may justify a valid

investigatory stop when viewed collectively by experienced drug enforcement agents”

(internal quotation marks and citation omitted)); United States v. Harley, 682 F.2d 398, 401

(2d Cir. 1982) (holding that reasonable suspicion supported an investigatory stop because

the characteristics of the defendant’s “brief stop” at a place that agents “were pretty well

convinced” was a place that narcotics were being sold was typical of the activities related

to narcotics sales that the law enforcement agents had previously observed); United States

v. Gomez, 633 F.2d 999, 1004-05 (2d Cir. 1980) (holding that reasonable suspicion of

criminal activity was supported by experienced police officers’ observations in an area of

high narcotics activity of a pattern of behavior that they had seen many times before,

notwithstanding that “viewed singly by an untrained eye, these events might be susceptible

of an innocent interpretation”).

{18} In Defendant’s next attack on whether the agents’ investigation supported their

reasonable suspicion, he argues that the agents “had no reason to be suspicious that illegal

activity was occurring at Space 104” on the day that the SUV was seized. We disagree. The

totality of the circumstances gave the agents sufficient objective reason to be suspicious of

illegal drug-related activity. Again, the factors included Mendenhall’s and Hall’s respective

heroin purchases from Space 104, the fact that the SUV was registered to a resident and was

in the driveway during the previous Merriweather heroin transaction on August 10, and the

occupants’ actions that were consistent with the pattern of drug-related behavior occurring

during their investigation and the previous heroin purchases from Space 104.
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{19} Finally, Defendant argues that “the agents were [not] operating under a specific,

predictive tip that criminal activity was presently afoot[] or was about to occur.”

Consideration of a specific, predictive tip that criminal activity is about to occur may be

relevant to a reasonable suspicion determination in a circumstance where a tip from an

informant contributes to reasonable suspicion. See State v. Robbs, 2006-NMCA-061, ¶ 19,

139 N.M. 569, 136 P.3d 570 (concluding that an informant’s tip was reliable and supported

by reasonable suspicion because, among other things, it predicted the defendant’s future

movement as corroborated by law enforcement). Such considerations are not relevant here

where the agents’ reasonable suspicion stemmed from their own undercover investigation

and surveillance and not from a tip from an informant.

{20} In sum, the totality of the circumstances known to the agents as a result of their

undercover activities with Mendenhall, Hall, and Malchete, their surveillance of the

Merriweather address and Space 104 during Mendenhall’s and Hall’s respective heroin

purchases, the information gathered from Malchete, the presence of the SUV at both at-issue

addresses, and the surveillance of Space 104 that ultimately led to the seizure of the SUV,

amply supported the agents’ reasonable suspicion that criminal activity was afoot when the

marked police unit stopped the SUV. Through the course of their investigation, the agents

gathered information that allowed them to observe a pattern of behavior associated with

heroin transactions at the two specific addresses that were reasonably sufficient, to link the

SUV to both addresses and, ultimately, to connect the SUV belonging to a resident of the

Merriweather address to the pattern of behavior associated with a suspected purchase of

heroin from Space 104 on August 23, 2012. The “mere hunch” label is a stretch too far here.

Viewed in total and with the required deference to the inferences and deductions drawn by

the agents based on their experience and training, these circumstances were sufficient to give

rise to more than a “mere hunch.” See Arvizu, 534 U.S. at 273-74 (recognizing that a mere

hunch will not support reasonable suspicion, but also recognizing that the appellate courts

must give due weight to the factual inferences and deductions drawn by law enforcement

based upon experience and specialized training). To the contrary, the circumstances here

provided an objective basis upon which the agents could reasonably suspect criminal activity

and conduct a lawful investigatory stop.

CONCLUSION

{21} We affirm.

{22} IT IS SO ORDERED.

____________________________________

JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
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TIMOTHY L. GARCIA, Judge

RODERICK T. KENNEDY, Judge (specially concurring).

KENNEDY, Judge, (specially concurring).

{23} It is impossible to ascertain whether, after a month and a half, the agents tired of their

investigative methods and just decided to return to an “established drug house” to arrest

someone. In my view, the facts here establish legitimate reasonable suspicion by barely a

nose. Only upon a re-reading of this Opinion did a single fact convince me to concur. Selfreference and subjective hunch-confirming seems to abound without much hard evidence.

The district court acknowledged that the agents saw no drugs at any point in their

investigations on the day of Defendant’s arrest leading up to the stop of the SUV and

acknowledged that “none of the indicators shown here, on their own, taken individually,

would provide reasonable suspicion.”

{24} Knowing the deferential standard of review, however, I must reluctantly concur. I

write to emphasize the objective standard we must apply and recall the law that “[q]uestions

of reasonable suspicion are reviewed de novo by looking at the totality of the circumstances

to determine whether the detention was justified.” Robbs, 2006-NMCA-061, ¶ 9. Hindsight,

whether investigative or judicial, creates a terrific bias for confirmation of bad evidence. The

agents seem not to have once corroborated these “suspects’ ” stories with hard evidence, yet

paint a barely sufficient picture for this appeal to sustain their actions. I question the quality

of the evidence, even while I vote to affirm its sufficiency in this case.

{25} Our courts have routinely rejected adopting rules equating innocent conduct with

reasonable suspicion, absent articulable suspicion of criminal activity. Neal, 2007-NMSC043, ¶¶ 28-29; see also Leyva, 2011-NMSC-009, ¶ 24 (“ ‘Whether you stand still or move,

drive above, below, or at the speed limit, you will be described by the police as acting

suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals

to an ineffable intuition should not be credited.’ ” (quoting United States v. Broomfield, 417

F.3d 654, 655 (7th Cir. 2005))). Law enforcement officers are permitted to “draw on their

own experience and specialized training to make inferences from and deductions about the

cumulative information available to them that might well elude an untrained person.

However, this does not mean that unsupported intuition and inarticulate hunches are

sufficient to constitute reasonable suspicion justifying a detention.” Neal, 2007-NMSC-043,

¶ 21 (alteration, omission, internal quotation marks, and citations omitted). The purpose for

this objectivity “is to prevent officers from arbitrarily acting on whims or unsupported

hunches[.]” State v. Alderete, 2011-NMCA-055, ¶ 11, 149 N.M. 799, 255 P.3d 377.

{26} There is no legal standard for where the “suspects” with whom the agents associated

during this three-buy investigation fall on the contiuum of sources of information between

anonymous tipsters, confidential informants, and identified sources. They certainly have no

obligation to be honest; they were all actively committing criminal acts with the agents
6

This would be what’s known as a “controlled buy”: “[T]he informant entered the

residence with some money and no drugs and came out of the residence a few minutes later

with drugs and no money. The informant stated that he had purchased the packet of

suspected heroin from [the d]efendant . . . . The informant then turned over the packet of

suspected heroin to the police. The informant saw or perceived the facts asserted.” Lujan,

1998-NMCA-032, ¶ 12. 

11

asking them to do so. None of them ever allowed the agents near one of the “buys,” saying

in each instance that the individuals at those locations did not like strangers. This is a great

opportunity for misdirection and the suspects’ control of the circumstances. Mendenhall was

arrested for other crimes in the course of the investigation. Hall and Malchete were also not

confidential informants, because they, too, were “suspects,” who on July 23, necessitated the

agents staying together for “safety” when Hall went to make the buy at the “white trailer.”

Neither the term “suspect,” nor the concern for officer safety bespeak any level of trust for

these collaborators.

{27} In this case there are the three relevant events preceding the August 23 stop of the

SUV: the Mendenhall buy at Space 104 on July 3, the July 23 “buy” that may or may not

have occurred where Hall said it did, and seeing the SUV on Merriweather on August 10.

In the first, Mendenhall went in, came out, and turned over drugs. Because the agents were

acting as co-criminals with Mendenhall, who was not controlled by them or working off

charges, they could not ascertain if he had drugs on his person before he went in, or still had

their money when he came out.6

 Nothing appears in the record as to who occupied the trailer

at Space 104, whether they had criminal records, or were innocent diversions for

Mendenhall. E.g., State v. Barker, 1992-NMCA-117, ¶ 2, 114 N.M. 589, 844 P.2d 839

(describing an informant’s detailed contacts within a drug house). Regarding the SUV, as

mentioned later, no facts establish its association with anyone dealing drugs at the

Merriweather address on August 10. At the Merriweather buy, the “suspect” already had

heroin with him, just “not enough” to satisfy the agents’ request—without a controlled buy,

it would be beyond the agents’ capability to demonstrate how much heroin later turned over

to the agents even came from the house. All of these buys rest only on the say-so of the

“suspects” themselves, and the tunnel vision of the agents. Our deference may be little more

than a gloss; the agents were quite unclear in their testimony about whether they recognized

the SUV before or after the August 23 stop. However, the majority is correct that minute

deconstruction is not the standard we must apply, and Defendant’s doing so is unpersuasive

in a “totality of the circmustances” deferential review.

{28} In Alderete, an established and reliable confidential informant gave well-corroborated

information constituting “specific, predictive information” that was confirmed by police

observation that drugs were being delivered to a house. A search warrant for the house had

been obtained, and the officers knew it. Alderete, 2011-NMCA-055, ¶ 18. One vehicle had

left the house; another capable of carrying such boxes as had been delivered left ten minutes

thereafter. The combination of facts and corroboration of a reliable informant’s information
12

supported reasonable suspicion to pull over the car. Id. ¶ 20. A confidential informant is

someone who is known to the police, has assisted them with investigations, and whose

information led to the seizure of controlled substances and many controlled substances

related arrests. Cf. State v. Whitley, 1999-NMCA-155, ¶ 2, 128 N.M. 403, 993 P.2d 117. In

this case, there are no reliable informants, no corroboration, and only one observed prior

contact with Space 104 that was similar to the July 3 stop the agents made.

{29} The “suspects” did not testify here in support of the State to support the conclusions

the agents made with actual facts from the buys. All the places from which the “suspects”

bought drugs did not like new people, such as the agents, showing up. This trope kept the

agents from the possibility of gathering corroborating evidence. The agents, because they

were dealing with active criminal suspects and not an informant under their control, did not

control the “buys” their compatriots made in their service that might have reduced what I

regard as the uncertainty and risk of falsehood about the information provided by an

informant. State v. Steinzig, 1999-NMCA-017, ¶¶ 23-24, 127 N.M. 752, 987 P.2d 409. I

regard the “suspects” as less reliable than anonymous tipsters, whose information we have

previously regarded as “generally less reliable than tips from known informants and can

form the basis for reasonable suspicion only if accompanied by specific indicia of reliability,

for example the correct forecast of a subject’s not easily predicted movements.” State v.

Urioste, 2002-NMSC-023, ¶ 12, 132 N.M. 592, 52 P.3d 964 (internal quotation marks and

citation omitted).

{30} The sole operative question is whether the stop of the SUV was justified at its

inception. I am troubled with the agents’ testimony that they had determined even before the

SUV showed up that they would detain anyone involved in “suspicious activity” at Space

104 and had a patrol car already waiting for that purpose.

{31} This case resembles Alderete in that the car in that case was stopped based on

reasonable suspicion from the investigation, and not a traffic stop. The SUV showed up for

a brief time, disgorged some passengers who had some contact with Space 104, returned to

the car, and left. Since it is unclear whether the SUV was recognized at the time of the stop,

the facts indicate that this stop occurred solely because of the agents’ surveillance of Space

104 and their admitted predilection to stop any car that they thought was acting suspiciously.

However, it fit the classic short-time turnaround of a typical drug transaction, and the totality

of the circumstances as found by the district court gets the deferential nod.

{32} Neal is just a whisker on the other side of the line from this case. In Neal, an officer

lacked reasonable suspicion to detain an individual in order to search for drugs where the

officer observed the defendant, who had prior drug-related convictions, stop briefly in front

of a house and speak to a known felon who resided at the house and was under investigation

for drug trafficking. 2007-NMSC-043, ¶ 28. The officer had no specific information that

criminal activity had occurred. Id. Our Supreme Court held that the defendant’s suspicious

behavior, presence at a known drug house, and prior involvement in drug-related activity

were not sufficient to constitute reasonable suspicion to detain the defendant beyond the
13

valid traffic stop. Id. ¶ 23. The Court reasoned that “[the d]efendant’s mere association with

a convicted felon . . . who was under surveillance in an ongoing drug investigation[] was

insufficient to create reasonable suspicion.” Id. ¶ 30. The Court explained that the totality

of the facts presented did not “constitute the type of individualized, specific, articulable

circumstances necessary to create reasonable suspicion that [the d]efendant . . . was involved

in criminal activity,” id. ¶ 31, and instead characterized the circumstances as “the type of

conjecture and hunch we have rejected in the past as insufficient to constitute reasonable

suspicion.” Id.

{33} In State v. Ochoa, an officer surveilling a house for drug trafficking observed an

unknown vehicle at the house, at the officer’s request, another officer stopped the vehicle

in order to identify and question the driver. 2009-NMCA-002, ¶ 2, 146 N.M. 32, 206 P.3d

143. We held that the officer, based on these facts, “lacked a constitutionally reasonable

suspicion that [the d]efendant was involved in drug activity” to justify the stop. Id. ¶ 45. We

concluded that the stop was pretextual because the officer lacked reasonable suspicion to

support the underlying basis for the stop—investigation of drug activity. Id. ¶ 46. Here, I

recall the agents’ intention to stop any suspicious vehicle that stopped at Space 104. Only

they were defining “suspicious” at that point.

{34} I regard the reasoning we used in State v. Prince, 2004-NMCA-127, 136 N.M. 521,

101 P.3d 332, worthy of repeating, as we held there that the combination of being under

investigation for drug involvement and a tip tying the defendant’s movements to drug

activity were insufficient to constitute reasonable suspicion to detain the vehicle beyond a

valid traffic stop.

Guilt by association and generalized suspicions are insufficient grounds upon

which to base an investigatory detention. In the absence of specific and

particularized incriminating information about the criminal activity that the

defendant is or is about to [be] engage[d] in, generalized suspicions and mere

corroboration of innocent activity, even if it is not readily available to the

general public, is insufficient to create reasonable suspicion for an

investigatory detention.

Id. ¶ 17 (emphasis added). However, because I believe the totality of the circumstances in

this case barely supports our conclusion, I can join the majority in applying the standard of

review in this case. I therefore concur.

____________________________________

RODERICK T. KENNEDY, Judge