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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 from 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. 34,519 4 STEVEN TRUJEQUE, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Stan Whitaker, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Santa Fe, NM 13 Josephine H. Ford, Assist ant Appellate Defender 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 GARCIA, Judge. 18 {1} Defendant Steven Trujeque filed a doc keting statement, appealing from the 192 district court’s affirmance of his convi ction by conditional pl ea for driving while 1 under the influence of intoxicating liquor (first offense). [DS 1, 9] In this Court’s 2 notice of proposed disposition, we proposed to adopt the district court’s memorandum 3 opinion affirming the conviction. [CN 2–3] Defendant timely filed a memorandum in 4 opposition (MIO). We have given due consideration to the memorandum in 5 opposition, and, remaining unpersuaded, we affirm Defendant’s conviction. 6 {2} In his memorandum in opposition, De fendant continues to argue that 7 Defendant’s detention in handcuffs in th e back of the police car was unreasonable 8 because the State did not show that it was necessary for officer safety. [MIO 1] 9 However, as the district court explai ned in its memorandum opinion, which we 10 proposed to adopt in our notice of proposeddisposition [CN 2–3], the officer detained 11 Defendant because Defendant indicated that he was going to be argumentative; 12 because Defendant’s demeanor was aggressive; and because the officer needed to 13 communicate with the individual who had called 911, check on her, find out what was 14 happening, and investigate the potential criminal trespass or harassment. [RP 114–15, 15 117–18] 16 {3} It is well settled that “an officer may detain a person in order to investigate 17 possible criminal activity.” State v. Jason L. , 2000-NMSC-018, ¶ 20, 129 N.M. 119, 18 2 P.3d 856 (internal quotation marks and c itation omitted). “Investigatory detention 193 is permissible when there is a reasonable and articulable suspic ion that the law is 1 being or has been broken. A reasonable suspic ion is a particularized suspicion, based 2 on all the circumstances that a particular individual, the one detained, is breaking, or 3 has broken, the law.” Id. (internal quotation marks and citation omitted). [ SeeRP 117] 4 In the present case, the officer was dispatched based on a Priority1, 911 call. [RP 114] 5 The information the officer received fro m the call was that an individual was 6 repeatedly knocking on the front and back door s of his ex-girlfriend’s home; the caller 7 was afraid and did not know where the i ndividual was; the individual was a male, 8 white adult, approximately 5'7" with a thin build, brown hair, brown eyes, and a 9 moustache and beard; the individual’s ve hicle was a black, two-door Toyota Celica 10 coupe; and that an earlier call had been made by the alleged vi ctim’s parent. [RP 11 113–15, 117] When the officer arrived on the scene, he observed a black car matching 12 dispatch’s description backing out of a drivew ay near or at the address in the dispatch. 13 [RP 114] 14 {4} The officer made contact with Defendant based on the matching descriptions 15 from dispatch; upon contact from the officer , Defendant exhibited an argumentative 16 and aggressive demeanor; and the officer—the sole officer on the scene—decided to 17 secure Defendant in light of Defendant’s demeanor while the officer contacted the 18 caller and proceeded with his investigati on based on the 911 call to determine whether 194 criminal trespass or harassment had occurred. [ SeeRP 114–15, 117; see also MIO 2 1 (referencing Defendant’s argumentative tone , confrontational manner, and aggressive 2 demeanor)] We hold that, based on these facts, the trial court did not err in concluding 3 that the detention was reasonable [RP 116]—i n other words, that the officer had a 4 reasonable, particularized suspicion that Defendant had been committing or was going 5 to be committing criminal activity and that the officer’s investigatory detention of 6 Defendant was permissible. See id. [ See also RP 117–18] 7 {5} Whether some of Defendant’s questions in response to the officer’s 8 investigation were non-argumentative or wh ether such questions, on their own, were 9 sufficient to rise to the level of reasonable suspicion [ see MIO 2–3] is not relevant 10 because other factors existed in this case. Likewise, whether the officer specifically 11 found a threat to his safety [MIO 3] is not relevant—the question is whether there was 12 reasonable suspicion sufficient for an i nvestigatory detenti on and, as we have 13 explained above, there was. Although the questi on of officer safety is relevant to some 14 inquiries, it is not in the present case. See id. (describing when it is permissible for an 15 officer to subject an individual to an investigatory detention). 16 {6} Moreover, as indicated by the district court in its memorandum opinion, what 17 happened after Defendant was detained for investigatory purposes is not relevant 18 because “the trial court and [Defendant]agreed that the question before the court was 195 whether [the officer] had probable causeto place [Defendant] in handcuffs and not 1 about any events after that point” [RP 115–16 (emphases added) ], and Defendant has 2 provided no facts in his memorandum inopposition to refute this finding. [ SeeMIO 3 1–3] Nonetheless, Defe ndant argues that, despite the fact that the de facto arrest 4 argument was not preserved [ see MIO 1], this Court should reverse anyway because 5 the trial court committed fundamental error in failing to find that the delay—the time 6 between when Defendant was handcuffed and placed in the police car and when 7 Defendant was transported—constituted a defacto arrest [MIO 4–5]. Assuming that 8 the doctrine of fundamental error applies in this circumstance, Defendant has not 9 demonstrated that any error was fundamental in this case. 10 {7} There are two strands of analysis under the fundamental error doctrine. State 11 v. Barber , 2004-NMSC-019, ¶¶ 14–18, 135 N.M. 621, 92 P.3d 633. One strand 12 focuses on circumstances of obvious or indisputable innocence while the second 13 strand focuses more on proce ss and the underlying integrity of our judicial system. 14 State v. Duran , 2006-NMSC-035, ¶ 23, 140 N.M. 94, 140 P.3d 515. “Parties alleging 15 fundamental error [under the second strand] must demonstrate the existence of 16 circumstances that [either] shock the c onscience[,] or implicate a fundamental 17 unfairness within the system that would undermine judicial integrity if left 18 unchecked.” State v. Cunningham , 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 196 176 (internal quotation marks and citation omitted). “Absent error that goes to the 1 foundation of the case or takes from the defe ndant a right which was essential to his 2 defense and which no c ourt could or ought to permit him to waive, we will not reverse 3 the district court.” State v. Dietrich , 2009-NMCA-031, ¶ 30, 145 N.M. 733, 204 P.3d 4 748 (alterations, internal quotation marks, and citation omitted). Defendant contends 5 that the officer was not diligent enough in his investigation because he could have 6 called a DWI officer to investigate Defe ndant separately from the officer’s own 7 domestic violence investigation, and he further argues that the time frame during 8 which Defendant was in the police car was simply too long. [MIO 4–5] Defendant has 9 not described a circumstance that shocks the conscience, implicates a fundamental 10 unfairness within the system that would undermine judicial integrity if left unchecked, 11 or goes to the foundation of the case. See Cunningham , 2000-NMSC-009, ¶ 21; 12 Dietrich , 2009-NMCA-031, ¶ 30; see also Dietrich , 2009-NMCA-031, ¶ 47 (“In a 13 fundamental error analysis, where the de fendant has waived all error by failing to 14 object, the Court’s goal is to search for injustice.” (internal quotation marks and 15 citation omitted)). Accordingly, we dec line to conclude th at Defendant has 16 demonstrated fundamental error in this case. 17 {8} For the reasons set forth in our notice of proposed disposition and herein, and 18 for the reasons articulated in the memorandum opinion of the district court, we affirm 197 Defendant’s conviction. 1

{9} IT IS SO ORDERED. 2

_______________ _________________ 3 TIMOTHY L. GARCIA, Judge 4

WE CONCUR: 5

_______________________________ 6 MICHAEL D. BUSTAMANTE, Judge 7

_______________________________ 8 RODERICK T. KENNEDY, Judge 9