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

v. NO. 29,284 4 MICHAEL SAUCEDO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Jerry H. Ritter, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Susan Roth, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 KENNEDY, Judge. 17 Defendant is appealing from a district court judgment and sentence entered after 18 Defendant pled guilty to trafficking meth amphetamine, specifically reserving [RP 76] 19 the right to challenge the denial of his motion to suppress. We issued a calendar 20 notice proposing to affirm , and Defendant has res ponded with a memorandum in 212 opposition. We affirm. 1 Defendant’s memorandum in opposition c ontinues to challenge the denial of 2 his motion to suppress and the rejection of his argument that the patdown was not 3 justified. We will not overturn the trial court's ruling on a motion to suppress if it is 4 supported by substantial evidence. See State v. Galloway , 116 N.M. 8, 9, 859 P.2d 5 476, 477 (Ct. App. 1993). In making this dete rmination, we review the facts in the 6 light most favorable to th e trial court's ruling. Id. Nevertheless, weconduct a de novo 7 review on the ultimate issue concerning the reasonableness of an alleged constitutional 8 violation. State v. Flores , 1996-NMCA-059, ¶ 6, 122 N.M. 84, 920 P.2d 1038. 9 “Police may initiate a protective patdow n search for weapons if they have 10 specific and articulable facts which they contend support their assessment of danger. 11 The search must be limited to that which is necessary for the discovery of weapons 12 which might be used to harm the officer or others nearby.” State v. Pierce , 13 2003-NMCA-117, ¶ 9, 134 N.M. 388, 77 P. 3d 292 (internal quotation marks and 14 citations omitted). The purpose of a friskis to allow an officer to conduct an 15 investigation without fear of violence. See State v. Ingram , 1998-NMCA-177, ¶ 6, 16 126 N.M. 426, 970 P.2d 1151. 17 Here, Sergeant David Hunter testified th at he made a routine traffic stop of 18 Defendant’s vehicle based on loud music. [RP 81] Sergeant Hunter made contact 193 with Defendant and explained to him the reason for the stop, at which time Defendant 1 informed him that he had a weapon, an AK- 47, in the backseat and a loaded magazine 2 in the front seat. [RP 82] Sergeant Hunterhad Defendant step out of the vehicle, but 3 testified that the door re mained open and the gun and ammunition were still within 4 Defendant’s reach, and he had Defendant move away from the vehicle and toward the 5 front of the patrol car. [RP 82-83] Sergeant Hunter testified that most people want 6 to talk about the basis for the stop, but Defendant talked about his weapon, raising 7 Hunter’s concern. [RP 82] Sergeant Hunter testified that at th at point he was very 8 concerned about Defendant’s proximity to the weapon and that he was concerned for 9 public safety. [RP 83] Sergeant Hunter te stified that Defendant was nervous, and he 10 believed that Defendant was trying to distract him, perhaps from another weapon in 11 the vehicle or on his person. [RP 83] A patdown then ensued. [RP 83] The district 12 court concluded that the patdown was reas onable based on the presence of the weapon 13 and on Defendant’s unusual behavior. [RP 89] 14 Notwithstanding Defendant’s attempt to isolate each of the factors noted by 15 Sergeant Hunter to justify the patdown, wesimply disagree with him on the issue of 16 reasonableness, particularly with resp ect to the access to the AK47; Hunter’s 17 testimony indicates that he was not just concerned with the AK47, but whether that 18 weapon and Defendant’s behavior indicated that he might have a separate weapon on 194 his person. [RP 83] Nor is this a case where the officer was relying solely on 1 nervousness. In balancing the threat pos ed to Sergeant Hunter’s safety against 2 Defendant’s right to be free from arbitrary interference, see State v. Vandenberg , 3 2003-NMSC-030, ¶ 23, 134 N.M. 566, 81 P.3d 19, we believethat Sergeant Hunter’s 4 testimony indicates that the patdown was justified in this case. 5 In Vandenberg, ¶¶ 24-25, a case setting out broad guidelines for analyzing 6 protective frisks during routine traffic st ops, the Supreme Court cited approvingly to 7 this Court’s opinion in State v. Chapman , 1999-NMCA-106, ¶¶ 13-18, 127 N.M. 721, 8 986 P.2d 1122, which upheld a protective frisk after a stop for a seat belt violation 9 because the officer "reasonably believed that [the d]efendant might be armed and 10 dangerous." Id. ¶ 18. Here, Sergeant Hunter di d not just suspect Defendant was 11 armed, but knew that he had a military assault weapon, with a loaded magazine close 12 by. Like Chapman , Sergeant Hunter proceeded in crementally before frisking 13 Defendant, and during this time observed De fendant’s nervous and unusual behavior. 14 See Vandenberg , 2003-NMSC-030, ¶¶ 26-30. Importantly, as set forth above, 15 Sergeant Hunter articulated the reasons he felt a threat to officer and public safety 16 under these circumstances. See id. , ¶ 31 (endorsing view that officer’s articulation of 17 their interpretation of a suspect’s behavior may provide justification for the patdown). 18 In summary, we defer to the district court’s determination on Sergeant Hunter’s 195 credibility and the finding that Defendant’s behavior was “unusual,” [RP 89] and we 1 believe that the patdown was reasonable under the analysis set forth in Vandenberg

. 2 For the reasons set forth above, we affirm. 3 IT IS SO ORDERED. 4

___________________________________ 5 RODERICK T. KENNEDY, Judge 6 WE CONCUR : 7

___________________________ 8 MICHAEL E. VIGIL, Judge 9

___________________________ 10 ROBERT E. ROBLES, Judge 11