This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om 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. 30,367 4 TONY ALLEN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 7 William G.W. Shoobridge, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jacqueline L. Cooper, Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Judge. 192 Defendant Tony Allen appeals his convictions for possession of drug 1 paraphernalia and possession of a controlled substance. He raises four issues on 2 appeal. He contends that the trial c ourt erred in denying his motion to suppress 3 evidence on the basis that the underlying traffic stop was pretextual and impermissibly 4 expanded. Defendant further argues that his trial counselwas ineffective and that the 5 district court erred in not dismissing the ch arges due to the State’s failure to timely 6 disclose a dashcam video of the incident . Because we conclude that the stop was 7 neither pretextual nor impermissibly expande d, that Defendant did not make a prima 8 facie claim of ineff ective assistance of counsel, and that the district court properly 9 cured the State’s failure to timely disc lose the dashcam video, we affirm. 10 BACKGROUND 11 The Traffic Stop 12 On the night of August 4, 2008, wh ile on burglary patrol, Sergeant Nathan 13 Walker of the Hobbs Police Department observed Defendant driving with a broken 14 headlight and initiated a traffic stop. Sergeant Walker approached the vehicle and 15 requested Defendant’s license and registration. Sergeant Walker then returned to his 16 vehicle and ran Defendant’s name through dispatch to check whether Defendant had 17 any outstanding warrants. 183 Soon after, Deputy John Martinez of the Lea County Sheriff’s Department 1 joined Sergeant Walker at the scene after hearing Defendant’s name over the radio 2 during the warrant check. Deputy Martinez testified that he was only a few blocks 3 away from the stop and drove to the scene because he wanted to talk to Defendant 4 about a separate investigation and possi bly enlist Defendant as a confidential 5 informant. Upon arriving at the scene, Deputy Martinez received Sergeant Walker’s 6 permission to speak with Defendant. Deputy Martinez then approached Defendant’s 7 vehicle and asked him to step out. Defe ndant exited the vehicle and walked with 8 Deputy Martinez to the back of Sergeant Walker’s patrol unit to discuss the separate 9 investigation. 10 While it is unclear from the testimony at trial, at some point between Deputy 11 Martinez’s arrival on the scene and Defe ndant’s discussion with Deputy Martinez, 12 dispatch notified Sergeant Walker that Defendant had a “hit” for an outstanding 13 warrant. Sergeant Walker thenhandcuffed Defendant and to ld him that he was being 14 detained pending confirmation of the warrant. Deputy Martinez asked Defendant 15 whether he “had anything” on him, and Defendant responded th at he had a “meth 16 pipe” in his pocket. Neither officer re trieved the pipe from Defendant’s pocket. 17 Instead, Sergeant Walker asked Officer Stan ley Jordan, who had arrived on the scene 18 to assist Sergeant Walker in accordance withpolice department procedures regarding 194 nighttime traffic stops, to detain Defendant in his patrol unit until the warrant could 1 be confirmed. 2 According to Officer Jordan’s testimony, as he escorted Defendant to his patrol 3 unit, Officer Jordan asked Defendant whether he had knives, guns, or “anything that 4 would poke” the officer. Defendant told OfficerJordan that he had a glass pipe in his 5 front pocket. Officer Jord an retrieved the pipe from Defendant’s pocket, recognized 6 it as a pipe used to smoke methamphetami ne, and placed Defendant under arrest for 7 possession of drug paraphernalia. Officer Jordan then began searching Defendant’s 8 other pockets and testified that as he di d so, Defendant began fidgeting with his right 9 front pocket. Officer Jordan then testifie d that he saw Defendant drop a clear plastic 10 bag containing a “crystalline substance” on the ground as Officer Jordan was placing 11 Defendant in his patrol unit. Officer Jordan retrieved the bag and tested the crystalline 12 substance using a field test kit. The crystalline substance tested positive for the 13 presence of methamphetamine. 14 Defendant was charged with possessi on of a controlled substance and 15 possession of drug paraphernalia . However, Defendant was neither issued a citation 16 for the headlight violation, nor arrested in connection with the outstanding warrant 17 because it was later shown to be invalid. 18 Procedural History 195 Defendant’s trial was initially scheduled for April 16, 2009. On the morning 1 of trial, Defendant moved for dismissal on the basis that the State had withheld 2 exculpatory evidence, namely Sergeant Walker’s dashcam video of the incident. 3 Rather than dismiss the case, the district court ordered the State to produce the video 4 or show that no video existed and reschedul ed the trial for October 19, 2009. The 5 prosecution subsequently located and produced a copy of the video to Defendant. 6 The trial commenced in October. Follo wing jury selection, Defendant, for the 7 first time, moved to suppress evidence conn ected with the stop, arguing that the stop 8 was pretextual under State v. Ochoa, 2009-NMCA-002, 146 N.M. 32, 206 P.3d 143. 9 The district court expressed reservation atthe untimeliness of Defendant’s motion but 10 permitted Defendant to devel op facts during trial that might support a finding of a 11 pretext. 12 During the State’s case in chief, the Stat e sought to admit both the pipe and the 13 methamphetamine recovered from Defendant. Defendant objected to the admission 14 of the pipe on the chain of custody grounds, but did not raise any objections to the 15 State’s admission of evidence on the basis of Ochoa . Following conclusion of the 16 State’s case, Defendant renewe d his motion to suppress under Ochoa and further 17 argued that Deputy Martinez impermissibly expanded the scope of the initial stop by 18 asking Defendant to exit the vehicle to di scuss the unrelated investigation. The 196 district court denied the motions both on the merits and because the motions were 1 untimely. Defendant again renewed the motion to suppress following the conclusion 2 of Defendant’s case, and the district court again denied the motion. Defendant was 3 subsequently convicted on both counts and now appeals. 4 DISCUSSION 5 Defendant raises four arguments on app eal. He argues that the court erred in 6 denying the motion to suppress because the stop was both pretextual underOchoa, 7 2009-NMCA-002, and impermi ssibly expanded beyond its in itial scope in violation 8 of the Fourth Amendment of the United St ates Constitution and the N.M. Const., art. 9 II, § 10. Defendant further argues that if we conclude that his trial counsel did not 10 preserve an argument under the New Mexico Constitution in regard to the alleged 11 expansion of the traffic stop, then we should also conclude that he received ineffective 12 assistance of counsel. Finally, Defendant ar gues that the court erred in not dismissing 13 the charges against Defendant, or altern atively, in admitting Sergeant Walker’s 14 dashcam video, due to the St ate’s failure to timely produce the video to the defense 15 under the rule announced in Brady v. Maryland , 373 U.S. 83, 87 (1963). 16 Standard of Review 17 A district court’s ruling on a motion to suppress presents a mixed question of 18 law and fact. Therefore, we apply a two-part review to a district court’s decision 197 regarding a motion to suppress. State v. Neal , 2007-NMSC-043, ¶ 15, 142 N.M. 176, 1 164 P.3d 57. We review any factual questi ons under a deferential substantial evidence 2 standard, and we review the applicati on of the law to the facts de novo. Id. In so 3 doing, “we review the facts in the light mostfavorable to the . . . district court’s 4 factual findings so long as substantial evidence exists to support those findings.” Id. 5 Preservation 6 As an initial matter, we must first address the State’s argument that Defendant’s 7 acquiescence to the admission of evidence inthe State’s case in chief constituted a 8 waiver of the claims he now asserts on appeal. Defendant raised his argument under 9 Ochoafor the first time following jury selection and his argument regarding the 10 expansion of the traffic stop during his re newed motion to suppress after conclusion 11 of the State’s case in chief. The district court deferred ruling on the motion to 12 suppress under Ochoa until Defendant was given an opportunity to lay a factual 13 predicate that would support a finding of pretext. The district court ultimately denied 14 the motions to suppress on both the merits and the untimeliness of the motions. 15 However, since we conclude that there was not a sufficient factual predicate 16 developed to support a finding of pretext and that the length of the traffic stop was not 17 measurably extended beyond the time needed for Sergeant Walker to confirm whether 188 Defendant’s warrant was valid , we assume without deciding that Defendant preserved 1 these issues for appeal. 2 Pretext 3 In Ochoa , this Court held th at pretextual stops are unconstitutional under 4 Article II, Section 10 of the New Mexico Constitution and that evidence obtained 5 from a search incident to a pretextual stop should therefore be suppressed. Ochoa , 6 2009-NMCA-002, ¶ 42. Under the totality of the circumstances test we adopted, we 7 explained that the district court must fi rst determine whether there was reasonable 8 suspicion or probable cause for the stop and then decide if the officer’s actual motive 9 for the stop was unrelated to the initial justification for the stop. Id. ¶ 40. The burden 10 of proof then shifts to the defendant to show pretext based on the totality of the 11 circumstances. Id. “If the defendant has not place d substantial facts in dispute 12 indicating pretext, then the se izure is not pretextual.” Id. Where the defendant does 13 show sufficient facts indicating an unrelated motive for the stop unsupported by 14 reasonable suspicion or probable cause, a rebuttable presumption arises that the stop 15 was pretextual. Id. The State can rebut this presumption by establishing, based on the 16 totality of the circumstances, that the officer would have stopped the defendant 17 regardless of the unrelated motive. Id. A district court’s to tality of the circumstances 189 determination includes “considerations of the objective reasonableness of an officer’s 1 actions and the subjective intent of the officer—the real reason for the stop.” Id. ¶ 39. 2 In this case, Sergeant Walker’s undisputed testimony at trial was that Defendant 3 was driving with a broken headlight on the ni ght he was pulled over. Therefore, the 4 State met its burden of establishing that Sergeant Walker had reasonable suspicion 5 that Defendant was committing a traffic violation. See NMSA 1978, § 66-3-802 6 (1978). 7 Defendant argues, however, that Sergeant Walker’s real motivation for the stop 8 was to allow Deputy Martinez an opportunityto question Defendant in an unrelated 9 burglary investigation. In support of this contention, Defendant points to a number 10 of facts: (1) Defendant was asked to step out of the vehicle before dispatch alerted 11 Sergeant Walker of a possible warrant, (2) Defendant was never c ited for the headlight 12 violation, (3) the number of police cars thatdescended on an otherwise “simple traffic 13 stop,” (4) Sergeant Walker was on a special burglary patrol assignment that evening, 14 and (5) Sergeant Walker was not in his us ual police issued unifo rm. As explained 15 below, we are unpersuaded that these fact s, in light of the totality of the 16 circumstances, were sufficient to support a finding of pretext. 17 At trial, Sergeant Walker testified that the only reason he pulled Defendant over 18 was for the broken headlight. Sergean t Walker’s dashcam video shows him 1910 immediately initiate the traffic stop after observing Defendant drive by. Furthermore, 1 while Sergeant Walker was on a special burglary assignment that evening and 2 therefore not in his usual uniform, he was still patrolling in a marked police vehicle 3 and attired in a department issued bullet- proof vest with “Hobbs Police Department” 4 written on the front and back. Of particul ar importance, however, is the absence of 5 any testimony at trial indicating that Deputy Martinez requested Sergeant Walker to 6 initiate the traffic stop or that Sergeant Walker was even aware that Defendant was the 7 driver of the vehicle and wanted for questioning in an unrelated investigation. 8 Without establishing that Sergeant Walker had an unrelated motive at the time of the 9 stop, we are unable to concl ude that Sergeant Walker’s stop was pretextual. Therefore, 10 viewing the facts in the light most favorable to the district court’s ruling, we conclude 11 that Defendant did not present a sufficien t factual predicate entitling him to a finding 12 of pretext. 13 Expansion of the Traffic Stop 14 Defendant Failed to Preserve His Argume nt Under the New Mexico Constitution 15 As recently clarified in State v. Leyva , a defendant must properly preserve an 16 argument under our state constitution in order for us to consider it on appeal. 2011- 17 NMSC-009, ¶ 36, 149 N.M. 435, 250 P.3d 861. Where, as here, the defendant is 18 seeking the broader protections afforded defendants against unreasonable searches and 1911 seizures under Article II, S ection 10, we must first de termine whether the defendant 1 properly preserved this argument below. See State v. Ketelson , 2011-NMSC-023, ¶ 2 10, 150 N.M. 137, 257 P.3d 957 (stating that “as an initial matter, we must determine 3 whether our analysis is confined to the F ourth Amendment or whether [the d]efendant 4 properly preserved his argument under ArticleII, Section 10”). We conclude that 5 Defendant did not. 6 The first time Defendant raised his argument regarding the impermissible 7 expansion of the traffic stop was during hi s renewed motion to suppress at the close 8 of the State’s case in chief. It is undisputed that Defendant did not cite, or even 9 mention, the New Mexico Constitution in support of his motion. Rather, Defendant 10 relied on City of Albuquerque v. Haywood , 1998-NMCA-029, 124 N.M. 661, 954 11 P.2d 93, overruled by Leyva , 2011-NMSC-009. Haywood involved a suppression 12 claim under the Fourth Amendment of th e United States Constitution, not under 13 Article II, Section 10 of th e New Mexico Constitution. Haywood , 1998-NMCA-029, 14 ¶¶ 2, 9. At the time of Defendant’s trial, and when Haywood was decided, New 15 Mexico courts interpreted both the federal and state constitutional provisions to 16 prohibit police officer questioning on matters not reasonably related to the 17 circumstances justifying the stop. Id. ¶ 15. However, in Levya , 2011-NMSC-009, 18 ¶ 17, our Supreme Court recognized thatbeginning in 2005 and reaching fruition in 1912 2009, the United States Supreme Court adopted a bright-line approach to investigative 1 detentions which focused on the length of detention and not on the subject of the 2 questioning. See Ariz. v. Johnson , 555 U.S. 323, 333 (2009); Muehler v. Mena , 544 3 U.S. 93, 100-01 (2005). Thus, while New Me xico had not explicitly recognized this 4 change in federal law at th e time of Defendant’s trial, the federal Fourth Amendment 5 analysis had clearly departed from Ne w Mexico precedent regarding our state 6 constitutional analysis of investigative dete ntions. Therefore, since Defendant failed 7 to “assert[] the constitutional principle th at provides the protection sought under the 8 New Mexico Constitution,” Leyva , 2011-NMSC-009, ¶ 40 (internal quotation marks 9 and citation omitted), Defendant has failed to preserve hi s arguments under Article II, 10 Section 10 of the New Mexico Constitution. We accordingly review his arguments 11 under the federal Fourth Amendment analys is the United States Supreme Court had 12 adopted at the time of Defendant’s trial. See Leyva , 2011-NMSC-009, ¶ 49 (“Where 13 a state constitutional provisionhas previously been interp reted more expansively than 14 its federal counterpart, trial counsel must develop the nece ssary factual base and raise 15 the applicable constitutional provisionin trial court.”). 16 Fourth Amendment 17 “The Fourth Amendment guarantees the right of the people to be free from 18 unreasonable searches and seizures.” Id. ¶ 8. “It is well established that the initiation 1913 of a traffic stop constitutes a seizure of the vehicle’s occupants.” See State v. Portillo , 1 2011-NMCA-079, ¶ 12, 150 N.M. 187, 258 P.3d 466, cert. denied , 2011-NMCERT2 006, 150 N.M. 764, 266 P.3d 633. However, “[ a]n officer’s continued detention of 3 an individual, while lawful at the out set, may become unlawful if the officer 4 unjustifiably expands the sc ope of the detention.” State v. Funderburg , 2008-NMSC5 026, ¶ 14, 144 N.M. 37, 183 P.3d 922. In determining whether an officer has 6 impermissibly expanded the scope of a de tention under the Fourth Amendment, the 7 proper inquiry is “whether an officer’s tr affic stop questions extended the time that a 8 driver was detained, regardless of the que stions’ content” beyond the time needed to 9 investigate the circumstances thatinitially justifed the stop. Leyva , 2011-NMSC-009, 10 ¶¶ 17, 19 (internal quotation marks and citations omitted); see id. ¶ 15 (stating that 11 “unrelated questions are permitted so long as they do not measurably extend the length 12 of the stop” (internal quotation marks and c itation omitted)). While the content of an 13 officer’s questioning is not examined under this standard, “[e]xtended detentions 14 caused by questioning unrelated to the initial purpose of the stop continue to violate 15 the Fourth Amendment.” Id. ¶ 22. 16 Following the traffic stop, Sergeant Walker obtained Defendant’s license and 17 ran a wants and warrant check as part of his investigation into the traffic violation. 18 A check for outstanding warrants is considered to be within the scope of a valid traffic 1914 stop. See State v. Rubio , 2006-NMCA-067, ¶ 14, 139 N.M. 612, 136 P.3d 1022 1 (“After obtaining [license, registration, and insurance] documents, the officer may 2 lawfully run a computer check, directly or indirectly by contacting dispatch . . . . We 3 have stated that this check may incl ude a wants and warrants check.” (citations 4 omitted)). Deputy Martinez then approach ed Defendant and asked him to exit the 5 vehicle while Sergeant Walker was checking on Defendant’s status. Defendant 6 argued at trial that it was an impermissible extension of the stop to ask him to exit the 7 vehicle to discuss the unrelated investigation. However, because we do not look to 8 the actual questions asked but whether the stop was measurably extended by the 9 unrelated questions, our focus here remains on the length of time Defendant was 10 detained in order for Sergeant Walker toconfirm whether Defendant’s warrant “hit” 11 was valid. Importantly, it was as a result of this detention to confirm the warrant, not 12 Deputy Martinez’s questions, that Defendant was detained at the scene and admitted 13 to possessing the drug pipe. Thus, becauseDefendant would have been properly 14 detained pending the warrant confirmation, we conclude that Deputy Martinez’s 15 actions in requesting that Defendant ex it the vehicle to discuss the unrelated 16 investigation did not measurably exte nd the length of Defendant’s detention. 17 Ineffective Assistance of Counsel 1815 Defendant argues that his trial couns el’s failure to properly preserve 1 Defendant’s rights under the New Mexico Constitution constitutes ineffective 2 assistance of counsel. We review a clai m for ineffective assistance of counsel de 3

novo. State v. Boergadine , 2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d 532. In 4 order to establish a prima facie claim fo r ineffective assistance of counsel, the 5 defendant must show that (1) counsel’s performance was deficient in that it fell below 6 an objective standard of reasonableness; and (2) he suffered prejudice in that there is 7 a “reasonable probability that, but for counsel ’s unprofessional errors, the result of the 8 proceeding would have been different.” Patterson v. LeMaster , 2001-NMSC-013, ¶¶ 9 19, 28, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citation omitted). 10 On the basis of the record before us, we are not persuaded that Defendant has 11 established a prima facie claim of ineffec tiveness. A defendant must affirmatively 12 prove prejudice. State v. Quiñones , 2011-NMCA-018, ¶ 30, 149 N.M. 294, 248 P.3d 13 336, cert. denied , 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901. Defendant 14 supports his assertion of prejudice by merelystating that had trial counsel properly 15 cited to the New Mexico Cons titution, “it is likely, base d on the facts available from 16 the testimony at trial [, he] would have prevailed.” Without more, we are unable to 17 conclude that trial counsel’s actions prej udiced Defendant, especially where, at the 18 time of Defendant’s trial, our own Supreme Court had not yet formally recognized the 1916 recent changes in federal F ourth Amendment analysis. In concluding that Defendant 1 has not made a prima facie claim of inef fectiveness, we do not preclude Defendant 2 from pursuing his claim through habeas corpus proceedings. See State v. Bernal , 3 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146 P.3d 289 (rej ecting the defendant’s 4 ineffectiveness assistance of counsel claim but stating that the defendant could pursue 5 a habeas corpus proceeding “should he be able to garner evidence to support his 6 claims”). 7 The State’s Failure to Disclose the Dashcam Video 8 Pursuant to State v. Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and 9 State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), Defendant 10 argues that the district court erred in failing to dismiss the charges against him 11 following the State’s failure to timely disclo se Sergeant Walker’s dashcam video. We 12 review a district court’s decision with re gard to discovery for abuse of discretion. 13 State v. McDaniel , 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701. 14 In determining whether late disclosure of evidence requires reversal, we 15 consider the following factors: “(1) whether the [s]tate breached some duty or 16 intentionally deprived the defendant of evidence[,] (2) whether the improperly non17 disclosed evidence was material[,] (3) whether non-disclosure of the evidence 1817 prejudiced the defendant[,] and (4) whether the [district] court cured the failure to 1 timely disclose the evidence.” Id. ¶ 8 (internal quotation marks and citation omitted). 2 In response to Defendant’s motion to di smiss the charges, the district court 3 vacated the original trial date of April 16, 2009, and ordered a continuance until 4 October 19, 2009, during which time the state located and produced a copy of the 5 video. Thus, even if the State failed to initially provide the video in a timely manner, 6 we conclude that the district court di d not abuse its discretion in granting a 7 continuance to cure the State’s late disc losure, especially where Defendant had over 8 five months to review the video and prepare for trial. Rule 5-505(B) NMRA (stating 9 that a continuance is among the proper means of curing a late disclosure of evidence). 10 Defendant further argues that the distri ct court erred in admitting the dashcam 11 video at trial. Since Defendant himself moved for the video’s admission, we will not 12 consider this claim of error on appeal. See State v. Urioste , 2011-NMCA-121, ¶ 44, 13 267 P.3d 820 (stating that the “invited error provides no grounds for appeal”). 14 CONCLUSION 15 For the foregoing reasons, we affirm Defendant’s convictions. 16 IT IS SO ORDERED. 17

1818 CYNTHIA A. FRY, Judge 1 WE CONCUR: 2

3 JAMES J. WECHSLER, Judge 4

5 TIMOTHY L. GARCIA, Judge 6