IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 27,920 4 CALVIN BENIOH, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, District Judge 8 Gary K. King, Attorney General 9 Francine A. Chavez, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jennifer R. Albright 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 FRY, Chief Judge. 17 Defendant pleaded guilty to one count of attempting to give or sell alcoholic 18 beverages to a minor and one count of possession of marijuana, reserving the right to 19 appeal the district court’s denial of his motion to suppress evidence. We affirm. 202 BACKGROUND 1 The material facts are not in dispute. Officer Glenn Slaughter, an agent with 2 the New Mexico Department of Public Safety, Special Investigations Division, was 3 the sole witness at the hearing on Defendant ’s motion to suppress. He testified that 4 on the date in question he was on duty investigating possible violations of the Liquor 5 Control Act, NMSA 1978, §§ 60-7B-1 to -13 (1981, as amended through 2004); 6 specifically, he was looking for adults attempting to buy alcohol for minors or for 7 minors in possession of alcohol. See§ 60-7B-1(A), (C). 8 At approximately 11:00 p.m., Slaughterwas watching a Mustang gas station 9 and convenience store from his position parked in a grocery store parking lot on the 10 other side of a four-lane highway. Wh ile watching through binoculars, he saw a 11 pickup truck drive up and park by the side of the convenience store outside the view 12 of the store clerk. Defendant exited from the passenger side of the truck and entered 13 the store. 14 Slaughter testified that he saw De fendant through the binoculars and thought 15 he looked to be of “questionable age”; he appeared to be close to the age of twenty16 one “plus or minus five years either direction.” When questioned on cross17 examination as to the clues he had th at Defendant might be under twenty-one, 183 Slaughter testified that Defendant did not havefacial hair but stated that he could not 1 specifically identify any other “youthful char acteristics.” He further testified that he 2 was not certain about the driver’s appearan ce due to the lighting and the way the truck 3 was parked. 4 Slaughter testified that hesaw Defendant go to the cooler section of the store, 5 then to the counter, and then exit with tw o semi-transparent bags that appeared to 6 contain forty-ounce bottles of alcohol. Hetestified that hethought Defendant bought 7 alcohol based on his knowledge, training, and experience as to the type of liquid 8 contained in forty-ounce bottle s and the fact that Defendant had gone to the area of 9 the store where Slaughter knew alcohol was kept. 10 Slaughter followed the truck as it left the parking lot. He testified that persons 11 committing Liquor Control Act violations ofte n go to a different location to exchange 12 the alcoholic beverages. Sl aughter had a license check run on the vehicle and learned 13 that it was registered to someone who was born in 1964. 14 Slaughter followed the truck to a s econd convenience store where it again 15 parked out of view of the store clerk, and Defendant got out . Slaughter parked 16 approximately 50 to 70 feet away and watche d with binoculars. This time, Slaughter 17 could see the driver, who also appeared young; Slaughter testified that the driver was 184 much too young to be the owner of th e vehicle who was reportedly born in 1964. 1 Slaughter could not see where Defendant went in the store, and he could not see what 2 he purchased at the counter. However, heagain saw Defendant leave the store with 3 what appeared to be bags of forty-ounce bo ttles of liquor. Slaughter testified that he 4 had an unobstructed view of what Defendant was carrying from the second store and 5 the bags definitely contained forty-ounce bottles. He testified that the amount of 6 alcohol appeared excessive for one individual. 7 After the truck left the second convenien ce store, Slaughter followed it for some 8 time before pulling it over base d on his suspicions that either Defendant was under 9 twenty-one and had used false identificati on to purchase the alcohol, or Defendant had 10 purchased alcohol on behalf of minors. Sl aughter approached the truck and asked the 11 driver and Defendant for their identification. After thoroughly examining Defendant’s 12 identification using his training, knowledge and expertise, Slaughter determined that 13 Defendant had a true and genui ne New Mexico driver’s license indicating that he was 14 twenty-one years old. The driver was eighteen. Slaughter determined that there was 15 alcohol in the bags Defendant took from th e convenience stores, but the bags were on 16 the floor of the passenger side between De fendant’s feet so Defendant had physical 17 control over the alcohol. 185 Slaughter “lectured” Defendant and the driver about the laws on transferring 1 alcohol to minors and minors in possession of alcohol and then let them go. He 2 testified that he was still not comfortable sohe continued to follow the truck as it went 3 to a Sonic drive-in where De fendant had said he worked. 4 Slaughter saw Defendant get out of the truck and go into the employee entrance 5 of the Sonic. Later, a second person, Johns on, approached the driver’s window of the 6 truck. After speaking with the driver, Johnson entered the Sonic and walked out of 7 the employee door. He walked to the pa ssenger side of the truck carrying a blue 8 backpack which initially appeared empty. He opened the passenger side door, 9 appeared to take something off of the floor, and then went into the Sonic through the 10 employee’s entrance while carrying the bluebackpack that appeared to contain 11 something of weight. He emerged with whatappeared to be an empty backpack and 12 then repeated the process—taking somethi ng off of the floor on the passenger side of 13 the vehicle and carrying the weighted b ackpack back into the Sonic through the 14 employee’s entrance. Johnson came out of the Sonic empty-handed, got into the 15 truck, and the driver and Johnson left the parking lot. 16 Slaughter followed the truck and stopped it. The record shows that through 17 subsequent investigation, Slaughter learned that the alcohol that Defendant had 186 purchased at the two convenience stores was transferred to minors. Defendant was 1 charged with three counts of selling or gi ving alcoholic beverages to a minor. A 2 search incident to Defendant’s arrest on these charges revealed that Defendant had 3 less than one ounce of marijuana, and Defe ndant was also charged with one count of 4 possession of one ounce or less of marijuana. 5 Defendant moved to suppress the information obtained when Slaughter stopped 6 the truck while Defendant wa s a passenger and moved to ex clude the evidence of the 7 alcohol and marijuana as fruit of the poisonous tree. The district court denied the 8 motion, and Defendant entere d a conditional plea to one count of attempting to sell 9 or give alcohol to minors and one count of possession of marijuana, one ounce or less, 10 reserving his right to challenge the denial of the motion to suppress. 11 STANDARD OF REVIEW 12 The district court’s ultimate ruling on Defendant’s motion to suppress involves 13 mixed questions of fact and law. State v. Neal , 2007-NMSC-043, ¶ 15, 142 N.M. 176, 14 164 P.3d 57. In reviewing the district c ourt’s denial of a motion to suppress, we 15 determine “whether the law wa s correctly applied to the facts, viewing them in a 16 manner most favorable to the prevailing party.” State v. Jason L. , 2000-NMSC-018, 17 ¶ 10, 129 N.M. 119, 2 P.3d 856 (internal quot ation marks and citation omitted). We 187 defer to the district court’s findings of fact to the extent that they are supported by 1 substantial evidence. Id. However, we “review the application of the law to these 2 facts, including determinations of reasona ble suspicion, under a de novo standard of 3 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 4 In this case, the district court did not enter any factual findings or conclusions of law. 5 Therefore, we will employ all reasonable presumptions in support of the district 6 court's ruling. See Jason L. , 2000-NMSC-018, ¶ 11. 7 DISCUSSION 8 When an officer stops an automobile to investigate a possible crime, we analyze 9 the reasonableness of the stop and ensuing investigatory detention in accordance with 10 the two-part test in Terry v. Ohio , 392 U.S. 1 (1968). State v. Duran , 11 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. We ask whether the stop was 12 justified at its inception and whether the officer’s actions during the stop were 13 reasonably related to the circumst ances that justified the stop. Id. In order for the stop 14 to be justified at its inception, “[t]heofficer, looking at the totality of the 15 circumstances, must be able to form a reasonable suspicion that the individual in 16 question is engaged in or is about to be engaged in criminal activity.” State v. 17 Contreras , 2003-NMCA-129, ¶ 5, 134 N.M. 503, 79 P.3d 1111. “A reasonable 188 suspicion is a particularized suspicion, ba sed on all the circumstan ces that a particular 1 individual, the one detained, is breaking, or has broken, the law.” Jason L. , 2000- 2 NMSC-018, ¶ 20 3 Defendant claims that Slaughter was not authorized to stop the truck and 4 question him as a passenger because he did not have reasonable suspicion that 5 Defendant had committed or was about to commit the crimes of minor in possession 6 of alcohol or the giving or selling of alcoholic beverages to minors. See State v. 7 Rubio , 2006-NMCA-067, ¶ 16, 139 N.M. 612, 136 P.3d 1022 (holding that an 8 officer’s request for identification from a passenger is lawful if the passenger is 9 “implicated in the investigation related to the initial stop”). In justifying the stop, 10 Slaughter testified that his suspicion wa s based on the following factors: (1) the 11 youthful appearance of Defendant and the driv er, (2) the fact thatthe driver remained 12 in the truck while the purchases were made , (3) the purchase of what appeared to be 13 alcohol at two different convenience stores, (4) the driver’s decision to park outside 14 the view of the convenience st ore clerks, and (5) the purchase of an amount of alcohol 15 that appeared to be excessive for one person. In light of these factors, the State argued 16 that Slaughter was justified in stopping and briefly detaining De fendant based on his 17 reasonable suspicion that Defendant was committing the crimes of being a minor in 189 possession of alcohol or giving or selling alcohol to minors. See Contreras , 2003- 1 NMCA-129, ¶ 5. 2 Defendant contends that Slaughter lacked a reasonable indi vidualized suspicion 3 that Defendant was a minor based on Defendant’s youthful appearance. See Jason L. , 4 2000-NMSC-018, ¶ 20 (holding th at in order to justify the seizure, the officer’s 5 suspicions must rest on specific, articulab le facts, which are particular to the 6 individual who is detained). Defendant notes that Slaughter could not describe or 7 explain what is meant by “youthful,” and clai ms that his lack of facial hair is not 8 evidence of being under age twenty -one. While lack of facialhair alone is insufficient 9 to support a reasonable suspicion that a person is under age twenty-one, we are not 10 persuaded that “youthful appearance” is a meaningless term merely because Slaughter 11 was unable to describe it with specificity. Furthermore, we believethe district court 12 could make a determination whether Slaughter’s suspicions as to Defendant’s age 13 were justified, given that Defendant was in the courtroom . At the hearing, Slaughter 14 testified that Defendant “looks very youthfulin age, as you can see even here today. 15 . . . He does not appear to be [twenty-one], he definitely meets the criteria of five or 16 six years plus, either way.” The district court was able to personally observe 17 Defendant’s appearance and is in a better position than this Court to judge the 1810 accuracy of Slaughter’s assessment that Defendant appeared to be younger than 1 twenty-one. See Neal , 2007-NMSC-043, ¶ 15 (recognizing that the appellate court 2 does “not sit as trier of fact [because] th e district court has the best vantage from 3 which to resolve questions of fact and to evaluate witness credibility”). We will defer 4 to the district court on such a factual issue. Id. 5 Defendant also contends that Slaughter’s admission that clerks in the 6 convenience stores had a high compliance rate for checking identifications before 7 selling alcohol defeats a finding that Slaughter suspected Defendant might be a minor. 8 We disagree in light of Slaughter’s testimony, taken as a whole. See Duran , 2005- 9 NMSC-034, ¶ 23 (recognizing that a reviewi ng court looks at the totality of the 10 circumstances in determining reasonable suspicion which is a “fact-specific inquiry 11 that does not lend itself to bright-line rules”). 12 Slaughter testified that based on his training and experience, store clerks are 13 often unable to discern the validity of an id entification or driver’s license because it 14 is easy to manufacture a false State of New Mexico driver’s license, and he testified 15 as to methods used to manufacture fake licenses. This testimony rebuts Defendant’s 16 claim that Slaughter could not have reas onably suspected that Defendant was a minor 17 in possession of alcohol because he knew the convenience store clerks would have 1811 checked Defendant’s identification before selling alcohol. See Neal , 2007-NMSC1 043, ¶ 21 (recognizing “that officers may draw on their own experience and 2 specialized training to make inferences from and deductions about the cumulative 3 information available to them that might well elude an untrained person” (internal 4 quotation marks and citation omitted)); see also State v. Harbison , 2006-NMCA-016, 5 ¶ 27, 139 N.M. 59, 128 P.3d 487 (filed 2005) (rec ognizing that analysis of the totality 6 of the circumstances does not require the law enforcement officer have scientific 7 certainty but instead, an offi cer can base a determinati on of reasonable suspicion by 8 making commonsense inferences and judgments about human behavior), aff’d , 9 2007-NMSC-016, 141 N.M. 392, 156 P.3d 30. 10 Defendant also makes various contentions regarding the reliability of 11 Slaughter’s observations. For example, he appears to argue that Slaughter’s view was 12 insufficient given that he was initially parked across a four-lane highway at 11:00 p.m. 13 He further challenges Slaughter’s belief th at Defendant had purchased alcohol because 14 Slaughter relied on the shape of the items in the bags and the factthat Defendant went 15 to the cooler where alcoho lic beverages are kept. Weare unpersuaded that these 16 uncertainties render Slaughter’s obs ervations insufficiently reliable. 1712 As to Slaughter’s ability to view Defendant, we defer to the district court on 1 such matters because it was entitled to believeSlaughter’s testimony that he could see 2 Defendant clearly through the binoculars. See Neal , 2007-NMSC-043, ¶ 15 3 (recognizing that the district court is in th e best position to “resolve questions of fact 4 and to evaluate witness credibility”). When assessing the reasonableness of 5 Slaughter’s belief that Defendant purchased alcohol, the district court could consider 6 the totality of the circumstances, which in cludes Slaughter’s additional testimony that 7 due to his personal knowledge, training, and experience, heknew the location in the 8 store where alcoholic bevera ges were kept, and he kne w that alcohol is often 9 contained in forty-ounce bottles of a color similar to the bottles carried by Defendant. 10 Based upon all of the testimony, the districtcourt could conclude that the evidence 11 was sufficient for Slaughter to form a reasonable suspicion that Defendant was 12 purchasing alcohol. Id. ¶ 21 (recognizing that officers draw on their personal 13 experience and training in maki ng inferences and deductions). 14 Defendant also stresses that, similar to the youthful offender in Jason L. , 15 Defendant and the driver in this case had done nothing illegal. We agree that 16 Slaughter did not observe any objectively illegal activity. However, in Jason L. , the 17 district court granted the defendant’s moti on to suppress; consequently, on appeal the 1813 evidence was viewed in the light most favorable to the defendant, and all 1 presumptions were made in favor of the district court’s ruling granting the motion to 2 suppress. 2000-NMSC-018, ¶¶ 10- 12, 23. Viewed in that light, the only suspicious 3 conduct that was attributable to the defendant was the “wearing [of] a coat of 4 unknown weight on a summer evening and [the] walking slowly in the company of 5 someone who was fussing with his waistband and looking back at police officers.” 6 Id. ¶ 22. Viewing that evid ence in the light most favorable to the defendant, our 7 Supreme Court held that “the district court correctly concluded that the officers lacked 8 reasonable suspicion to detain [thed]efendant for investigation.” Id. 9 In this case, the district court denied the motion to suppress, and we therefore 10 view the evidence in the light most favorableto the State as the prevailing party. See 11 id. ¶¶ 10-11. Slaughter testified to a number of legal activities that when coupled with 12 the youthful appearance of Defendant and the driver, are sufficient to support the 13 district court’s finding that Slaughter had reasonable suspicion to detain Defendant. 14 These activities include the driver’s failure to leave the truck, which was parked out 15 of sight of the store clerks, and Defendant ’s purchase of what appeared to be an 16 excessive amount of alcohol for one pers on at two different convenience stores. See 17 Harbison , 2007-NMSC-016, ¶ 15 (recognizing that“[a] reasonable suspicion of 1814 criminal activity can arise from wholly lawf ul conduct . . . [and] the relevant inquiry 1 is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion 2 that attaches to particular types of nonc riminal acts” (internal quotation marks and 3 citation omitted)). 4 Defendant also argues that Slaughter exceeded the bounds of a proper 5 investigatory stop by continuing to investigate even after verifying that Defendant was 6 twenty-one and was in control of the alcohol. See State v. Robbs , 2006-NMCA-061, 7 ¶¶ 23-24, 139 N.M. 569, 136 P.3d 570 (recognizing that “the scope of the search and 8 seizure must be justified by and limited to the circumstan ces that created reasonable 9 suspicion for the stop” and “the investigatory stop must come to an end when the 10 initial suspicion of illegal conduct is dispelle d”). We disagree. After stopping the car, 11 Slaughter examined the driver’s license and Defendant’s identification and determined 12 that Defendant was twenty-one and in physi cal control of the alcohol. These actions 13 were justified by the purpose of the stop, to ascertain whether a minor was in 14 possession of alcohol. Id. ¶ 23. 15 After learning that Defendant was twenty -one and in physical control of the 16 alcohol, Slaughter’s investigation stopped; he lectured the driv er and Defendant on 17 the law, but he did not search the vehicle orits occupants and did not further question 1815 Defendant or the driver. Therefore, th e scope of Slaughter’s investigation was 1 reasonable in light of the circumstances surrounding the stop. Id. ¶ 19. 2 Furthermore, we are not pers uaded by Defendant ’s citation to State v. Flores , 3 1996-NMCA-059, ¶ 15, 122 N.M. 84, 920 P.2d 1038, to support his contention that 4 Slaughter’s behavior in continuing to follow and “surveilling” Defendant was an 5 impermissible extension of the investigation requiring continued reasonable suspicion. 6 In Flores , police officers stopped the defendant’s truck and then kept the defendant 7 in custody for several hours. Id. ¶¶ 4, 12. In this case, Slaughter merely continued to 8 follow the truck without questioning or detaining Defendant; the seizure and 9 investigation of Defendant di d not continue merely becau se the officer continued to 10 follow the truck in which De fendant was a passenger. See State v. Walters , 1997- 11 NMCA-013, ¶ 16, 123 N.M. 88, 934 P.2d 282 (f iled 1996) (holding that the defendant 12 was not “seized” as a consequence of being followed by an officer); see also State v. 13 Calvillo , 110 N.M. 114, 117, 792 P.2d 1157, 1160 (Ct. App. 1990) (holding that there 14 is no search “in the constitutional sense” if an officer merely “employs his natural 15 senses from a place where he has a right to be” because there is “an implied 16 permission to the public to enter which nece ssarily negates any reasonable expectation 17 of privacy concerning observations made there”). 1816 Finally, we disagree that the stop was pretextual because Slaughter’s “real” 1 belief was that Defendant wa s going to sell alcohol to minors, not that Defendant 2 might be a minor in possession. See State v. Ochoa , 2009-NMCA-002, ¶¶ 16, 19, 146 3 N.M. 32, 206 P.3d 143 (filed 2008) (recognizing that, in a pretexual stop, the stop is 4 “permitted by the traffic code, but initi ated for an unconstitutional reason”), cert. 5 granted , 2008-NMCERT-012, 145 N.M. 572, 203 P.3d 103. Slaughter never claimed 6 that he stopped the truck due to a traffic code violation or any other reason unrelated 7 to a violation of the Liquor Control Act. Id. ¶ 40 (stating that, to establish a 8 presumption of pretext, the defendant must show that “the officer had an unrelated 9 motive that was not supported by reasonable suspicion”). 10 Moreover, the facts do not support a finding that Slaughter’s concern that 11 Defendant might be a minor was only a pretext for stopping the vehicle. Slaughter 12 testified that it was easy to obtain an apparently valid false identification that would 13 mislead someone such as a store clerk. Once Slaughter stopp ed the vehicle and 14 examined Defendant’s identification, his suspicion that Defendant might be a minor 15 was alleviated, and at that point, he may have continued to follow the truck because 16 he continued to suspect that Defendant mi ght be transferring the alcohol to minors. 17 However, this does not negate Slaughter’s testimony that he initially stopped the 1817 vehicle because he suspected the crimes of either minor in possession or transfer of 1 alcohol to a minor. Because Slaughter was justified in stopping the vehicle and 2 investigating based on his reasonable suspic ion that Defendant might have been a 3 minor in possession of alcohol, we need not consider whether the same facts are also 4 sufficient to establish a reasonable suspic ion that Defendant was committing or had 5 committed the crime of transferring alcohol to minors. 6 New Mexico Constitution 7 Defendant contends that hi s rights guaranteed under Artic le II, Section 10 of the 8 New Mexico Constitution were also viol ated. He argues that the heightened 9 protections under the New Mexico Constitution are applicable to the facts of his case. 10 We disagree. 11 We agree with Defendant that Artic le II, Section 10 of the New Mexico 12 Constitution has been interpreted more broadly than its federal counterpart. See State 13 v. Paul T. , 1999-NMSC-037, ¶ 13, 128 N.M. 360, 993 P.2d 74 (recognizing that 14 “there is established precedent interpreti ng Article II, Section 10 more broadly than 15 its federal counterpart”). Ho wever, Defendant has failed to develop this argument by 16 articulating any rationale for interpreting the phrase “reasonable suspicion” more 17 stringently under the New Mexico Constitu tion than under the fe deral constitution or 1818 by explaining how our analysis should di ffer under the state constitution so as to 1 afford him heightened protection. See State v. Garcia , 2002-NMCA-050, ¶ 9, 132 2 N.M. 180, 45 P.3d 900 (recognizing that ev en though the defendant argued that the 3 search was unconstitutional under the New Mexi co Constitution, he failed to explain 4 how the Court’s analysis should differ under the state constitution and therefore, for 5 purposes of the opinion, the Court would “assume, without deciding, that the analysis 6 is the same under both [the st ate and federal] constitutions”) . Therefore, we decline 7 to broaden our analysis to consider whether the definition of reasonable suspicion 8 might be more stringent under Article II, Section 10 of the New Mexico Constitution. 9 See Walters , 1997-NMCA-013, ¶ 9 (refusing to consid er the defendant’s assertion that 10 “he was subjected to an unreasonable se izure under both the state and federal 11 constitutions, [because] he advance[d] no separate analysis under the New Mexico 12 Constitution, nor d[id] he argue that th e state constitution afford[ed] any greater 13 protection in this respect than the United States Constitution”). 14 CONCLUSION 15 As the stop and investigation of Defe ndant was justified, Defendant was not 16 entitled to a suppression of the evidence obtai ned as a result of th e stop. We affirm 17 the denial of Defendant’s motion to suppress and affirm his convictions. 1819 IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Chief Judge 3 WE CONCUR: 4

5 JAMES J. WECHSLER, Judge 6

7 LINDA M. VANZI, Judge 8