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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellant, 3

v. NO. 31,932 4 FERNANDO LUCERO, 5 Defendant-Appellee. 6
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Douglas R. Driggers, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Bennett J. Baur, Acting Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellee 17 MEMORANDUM OPINION 18 GARCIA, Judge. 192 The State appeals the district court’s order granting Defendant Fernando 1 Lucero’s motion to suppress. Based on the facts and arguments presented to the 2 district court, we find no error. Accordingly, we affirm. 3 In the district court, Defendant move d to suppress the evidence obtained during 4 a traffic stop based on his assertion that the officer did not have an objectively 5 reasonable suspicion that he had violated NMSA 1978, Section 66-7-317(A) (1978), 6 when the officer pulled him over. Section 66-7-317(A) provides that when a road has 7 two or more marked lanes for traffic, “a vehi cle shall be driven as nearly as practicable 8 entirely within a single lane and shall not bemoved from such lane until the driver has 9 first ascertained that such movement can be made with safety[.]” At the hearing 10 on the motion, the State presented eviden ce that the officer observed Defendant’s 11 vehicle’s tires cross over the outer lane lin e that separates the lane from the shoulder 12 of the road three separate times. Afte r each time, Defendant’s vehicle would move 13 back into the lane. The offi cer also observed Defendant move to the edge of his lane 14 so that his vehicle’s tires touched the lane line twice. These observations occurred 15 over a span of two-and-a-half miles. Th e officer testified that he pulled Defendant 16 over because if a driver crosses the outsidelane line once, it might just be due to 17 momentary inattention, but once a driver has crossed the outside lane line two or three 18 times in a short period of time, then there is a reason to be concerned about 193 impairment. 1 Defendant argued that the evidence did not support a reasonable suspicion that 2 he had violated Section 66-7-317(A), whilethe State argued that it did support a 3 violation of the statute. The State’s ar gument focused on the language of Section 66- 4 7-317(A), quoting it twice. Although the officertestified that hehad based his stop 5 on his suspicion that Defendant might be im paired, the State did not address or argue 6 the possibility of impairment or any other statutory basis for the stop. The district 7 court granted Defendant’s mo tion, concluding that the facts observed by the officer 8 did not provide a reasonable suspicion that he had violated Section 66-7-317(A). 9 We review the district court’s ruling de novo. See State v. Funderburg , 2008- 10 NMSC-026, ¶ 10, 144 N.M. 37, 183 P.3d 922 (stating that a ruling on a motion to 11 suppress is reviewed de novo). Such a ru ling involves a mixed question of fact and 12 law, and where, as here, the district court did not set out its findings of fact and 13 conclusions of law, we will draw all reasonable inferences from the facts in favor of 14 the district court’s ruling. Id. Because neither party addressed the constitutionality 15 of the stop under the New Mexico Constitution nor argues that our reasonable 16 suspicion standard differs from the standard applied under the Fourth Amendment to 17 the United States Constitution, we analyze the constitutionality of the stop under the 18 Fourth Amendment. See State v. Ketelson, 2011-NMSC-023, ¶ 10, 150 N.M. 137, 257 194 P.3d 957 (explaining that under New Mexico ’s interstitial approach to state 1 constitutional interpretation, a court will consider whether the right asserted is 2 protected under the federal constitution be fore examining the state constitution); State 3 v. Hubble , 2009-NMSC-014, ¶ 6, 146 N.M. 70, 206 P.3d 579 (stating that the New 4 Mexico Supreme Court would address the question of reasonable suspicion only under 5 the Fourth Amendment when the defendant did not argue that the state constitution 6 afforded him greater protection). 7 “A reasonable suspicion is a particul arized suspicion, based on all the 8 circumstances that a particular individual, the one detained, is breaking, or has broken, 9 the law.” Hubble , 2009-NMSC-014, ¶ 8 (internal quotation marks and citation 10 omitted). “The test is an objective one.” Id. (internal quotation marks and citation 11 omitted). “The subjective belief of the offi cer does not in itself affect the validity of 12 the stop; it is the evidence known to the offi cer that counts, not the officer’s view of 13 the governing law.” Id . (internal quotation marks and citation omitted). “[C]onduct 14 premised totally on a mistake of law cannotcreate the reasonable suspicion needed to 15 make a traffic stop; but if the facts articulated by the officer support reasonable 16 suspicion on another basis, the stop can be upheld.” Id. ¶ 23 (internal quotation marks 17 and citation omitted). 18 Section 66-7-317(A) provides that 195 [w]henever any roadway has been divided into two or more clearly 1 marked lanes for traffic . . . a vehi cle shall be driven as nearly as 2 practicable entirely within a single lane and shall not be moved from 3 such lane until the driver has first ascertained that such movement can 4 be made with safety[.] 5 This statute is not unique to New Mexico, and the parties have cited cases from other 6 jurisdictions interpreting the language of iden tical or substantially similar statutes in 7 ways that support their respec tive positions. However, in Archibeque v. Homrich , 88 8 N.M. 527, 543 P.2d 820 (1975), our Supreme Court construed NMSA 1953, Section 9 64-18-16(a) (1953) (current version at S ection 66-7-317), a statute requiring a person 10 to drive a vehicle “as nearly as practicab le entirely within a single lane” and to not 11 move the vehicle from its lane “until the driver has first ascertained that such 12 movement can be made with safety [.]” Although Section 64-18-16(a) was 13 renumbered in 1978, its language remained the same. The current embodiment of 14 Section 64-18-16(a) is Section 66-7-317(A). Accordingly, Archibeque controls our 15 interpretation of the meani ng of Section 66-7-317(A), and we will not consider the 16 out-of-jurisdiction authorities cited by the parties. 17 In Archibeque , the owner of a vehicle and hi s passenger, a hitchhiker, were 18 killed in a one-vehicle accident. 88 N.M. at 528, 543 P.2d at 821. The hitchhiker had 19 been driving the vehicle at the time of th e accident, and the owner’s estate filed a 20 wrongful death suit against the hitchhiker’s estate. Id. At trial, there was evidence 216 presented that the vehicle veered to its left prior to the accident, crossing the left lane 1 designated for oncoming traffic, and then traveled along the left shoulder for a 2 distance of 274 feet before crossing back over the left lane, then crossing the right 3 lane, and finally driving onto the right shoulder before leaving the road altogether and 4 plunging into an arroyo. Id. An expert testified that it appeared that the hitchhiker 5 had likely fallen asleep. Id. at 529, 543 P.2d at 822. The owner’s estate requested a 6 jury instruction on negligence per se, which would have instructedthe jury that the 7 hitchhiker’s violation of Section 64-18-16( a) constituted negligence as a matter of 8 law. Archibeque, 88 N.M. at 532, 543 P.2d at 825. Ou r Supreme Court held that the 9 district court properly refused to give the instruction. Id. Although our Supreme 10 Court recognized that the purpose of the st atute was to protect the motoring public in 11 general—including those inside the vehicle thatfails to maintain its lane—it held that 12 the harm sought to be prevented by the statute is “head-on collisions or sideswiping 13 the opposite moving traffic.” Id. Since there was no evid ence that there was any 14 oncoming traffic that was threatened or harmed, our Supreme Court determined the 15 statute was inapplicable. See id. 16 In this case, the officer specifically te stified that there were no other vehicles 17 around when Defendant’s vehicle’s tires were observed crossing and touching the 18 outside lane line. Although the officer mi ght have had a reasonable suspicion that 197 Defendant was not checking in order to ascertain whether it was safe to drift onto the 1 shoulder three times, Archibeque indicates that Section 66-7-317(A) is not intended 2 to cover situations where the person drivi ng a vehicle unintentionally lets the vehicle 3 stray from its lane when there is no other traffic that it might either sideswipe or 4 collide with. Accordingly, where the offi cer saw no other traffic near Defendant’s 5 vehicle, he did not have anobjectively reasonable basis to suspect that Defendant had 6 violated Section 66-7-317(A) by his manner of driving. 7 In this case, however, the officer testified that he pulled Defendant over due to 8 concerns about possible impairment, not justa suspicion that Defendant had violated 9 Section 66-7-317(A). As a result, the State argues that this Court should reverse the 10 district court because the officer had a reasonable suspicion that Defendant was 11 violating the statutes that prohibit carel ess driving and drivi ng while impaired by 12 alcohol or drugs. The officer’s testimony could support the reasonableness of the stop 13 and the detention might be proper if the facts known to the officer provided an 14 objectively reasonable suspicion that Defendant was violating some other statute. See 15 State v. Anaya , 2008-NMCA-020, ¶ 15, 143 N.M. 431, 176 P.3d 1163 (“[C]onduct 16 premised totally on a mistake of law cannotcreate the reasonable suspicion needed to 17 make a traffic stop; but if the facts articulated by the officer support reasonable 18 suspicion on another basis, the stop can beupheld.”). But the State was required to 198 actually present and preserve this argument inthe district court in order to have it 1 reviewed by this Court on appeal. See Rule 12-216(A) NMRA (“To preserve a 2 question for review it must appear that a ruling or decision by the district court was 3 fairly invoked[.]”); State v. Lucero , 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 4 1986) (declining to review an argument by th e appellant when the district court “had 5 no opportunity to consider the merits of, or to rule intelligently on” that argument). 6 In this case, the State failed to makethis argument to the district court. 7 The closest the State came to arguing thatthere was some other legal basis for 8 the stop was when it stated that the violati on of the law was crossi ng the lane line, and 9 that when it happened three times, it is pr oper for an officer to pull the person over 10 because the person might be “chatting on the phone.” Th is argument by the State, 11 focused on the language and im port of Section 66-7-317(A), expressly stated that the 12 statutory violation at issue was cr ossing the lane line arising from a 13 distraction—talking on the phone. As such, th e State failed to alert the district court 14 to any argument that the officer had an independent statutory basis for the stop, 15 distinct from any mistaken belief that De fendant had violated Section 66-7-317(A). 16 To the degree that the State suggests that the officer’s testimony might be sufficient 17 to preserve the State’s legal argument, the State cites no authority to support its claim 18 that witness testimony alone can raise or preserve a legal argument for the 199 prosecution, and we therefore assumethat no such authority exists. See In re 1 Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). 2 The State also argues that even if Defendant’s driving did not actually violate 3 Section 66-7-317(A), such an error neednot vitiate an objectively reasonable 4 suspicion that the single lane statute was violated. However, it does not explain how 5 the facts were sufficient to support an obj ectively reasonable suspicion of such a 6 violation under Hubble, Anaya , and Archibeque . The State relies on an unpublished 7 memorandum opinion, State v. Jamon , No. 31,578, slip op. at 5-6 (N.M. Ct. App. June 8 5, 2012), for its argument th at a mistaken belief regarding whether a driver has 9 violated Section 66-7-317 would neverthe less provide a reasonable suspicion to 10 support the stop. This argument is not well taken. 11 Unpublished decisions are not meant to be used as precedent. Rule 12-405(A) 12 NMRA; see Anaya , 2008-NMCA-020, ¶ 18. In addition, the facts in Jamon are 13 inapplicable to the case at bar. In that case, the fact s known to the officer supported 14 an independent reasonable suspicion that th e defendant was driving while intoxicated, 15 and the district court recognized this alternative basis for reasonable suspicion at trial. 16 Therefore, that case simply involved an app lication of the principle that even if one 17 reason for the stop is based on a mistake of law, the stop may still be justified before 18 the district court if facts articulated by the officer provide reasonable suspicion that 1910 the defendant was breaking some other law. See Hubble , 2009-NMSC-014, ¶¶ 28-29. 1 It does not authorize an officer to mistakenly stop a driver ba sed solely upon conduct 2 that does not violate the only statutory o ffense relied upon by the state in the district 3 court proceedings. 4 For these foregoing reasons, we affirm the order of the district court. 5 IT IS SO ORDERED. 6

_______________________________ 7 TIMOTHY L. GARCIA, Judge 8

WE CONCUR: 9

___________________________________ 10 RODERICK T. KENNEDY, Chief Judge 11

___________________________________ 12 MICHAEL E. VIGIL, Judge 13