This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,322 9 EARL LAMPLEY, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 12 David P. Reeb, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Kennedy & Han, P.C. 19 Paul J. Kennedy 20 Albuquerque, NM 21 for Appellant 22 MEMORANDUM OPINION 23 KENNEDY, Judge. 242 Defendant appeals his convictions for Driving While Intoxicated (DWI) and 1 unlawful possession of a switchblade. SeeNMSA 1978, §§ 66-8-102 (2008), 30-7-8 2 (1963). Defendant was tried by jury in the magistrate court and appealed his 3 convictions to the district court. During the bench trial before the district court, 4 Defendant made an oral motion to suppress the evidence of the DWI investigation and 5 the seized switchblade knife, arguing thatthere was a violation of his Fourth 6 Amendment and state constitutional rights. The motion was denied. On appeal, 7 Defendant argues that it was error for th e district court to deny his suppression 8 motion. We affirm. 9 FACTUAL BACKGROUND 10 During the evening of June 27, 2006, Defendant’s wifecalled a neighbor 11 (Garret) and asked for help. While on the telephone , Garret could hear screaming, 12 things breaking, and Defendant cussing. Garret called police. Approximately ten 13 minutes later, Defendant’s wi fe arrived at Garret’s door. After she arrived, Defendant 14 called Garret’s house at least three times and was cussing l oudly and sounded drunk. 15 Garret went outside to wait for police and noticed that an officer was headed toward 16 his home and Defendant was driving toward his home from another direction. 17 Defendant drove by but Officer Borjas stopped at Garret’s house. Garret told the 18 officer that Defendant was in the truck, that Defendant’s wifewas inside his home, 193 that Defendant had called and made threat s, that Defendant was irate, and that 1 Defendant had been known to carry a gun. 2 Officer Borjas observed Defendant’s truck driving away. Following his 3 conversation with Garret, Offi cer Borjas pursued Defendant. He testified that he was 4 investigating a domestic disturbance and that he pursued Defendant in order to 5 continue his investigation by speaking withDefendant. When the officer caught up 6 to Defendant’s truck, he engaged his emergency lights, but Defendant did not stop. 7 The officer believed that Defendant’s failureto stop “was indicative that he had done 8 something wrong [and] was trying to get aw ay . . . from the law.” Officer Borjas 9 followed Defendant to his home. Defendant stopped his truck, ran into his home, and 10 then stood looking out of the storm door. 11 Based on the videotape of the encounter , the officer exited his car and was 12 walking toward the front door when Defendant opened the storm door and held it 13 open. Officer Borjas said, “Hello sir, can I talk to you for a minute?” Defendant 14 agreed. When he encountered Defendant, O fficer Borjas noticed that Defendant had 15 bloodshot, watery eyes and sme lled of alcohol. The officerasked his name and asked 16 if Defendant had identification. Defendant was on the telephone and told the officer 17 that he was calling his lawyer because heknew “what is going on.” Defendant was 18 still standing inside his doorway at the time. 194 Officer Borjas informed the dispatcher that he was w ith the other party of the 1 “domestic” and it looked “like the guy’s been drinking.” Defendant stepped out of his 2 house and onto the porch and later went to his truck to retrieve his identification. On 3 his way to his truck and while he was looking for his identification, Defendant 4 repeatedly asked the officer , “we are all good, right?” Wh en Defendant began to walk 5 back to his house, he asked Officer Borjas if he wanted to come in and have some tea. 6 In response, Officer Borjas asked him to “come over here,” but Defendant did not 7 comply with the officer’s request and instead returned to the porch. 8 Once they were back on th e porch, Officer Borjas continued his investigation 9 into the domestic dispute and asked Defe ndant, “how much have you drank (sic) 10 tonight, sir?” Defendant responded, “I don’t know four or five beers.” Later, the 11 officer asked Defendant, “what time did you drink the beers?” Defendant’s response 12 was, “oh, probably started after supper.” 13 While Officer Borjas relayed information to the police dispatcher, Defendant 14 continued to talk about “disgruntled employees,” his wife’s medication and 15 inexperience with drinking hard liquor, and her pain from oral surgery. Defendant 16 told the officer that an injury on his thumb was the result of punching a door. 17 Defendant also informed Officer Borjas th at he had knives in his pocket and removed 18 them for the officer. Defendant was asked toperform field sobriety tests. After the 195 tests were completed, Officer Borjas to ld Defendant he was under arrest for DWI. 1 Defendant responded, “I don’t think so,” and ran away. 26 DISCUSSION 1 On appeal from a trial court’s ruling on a motion to suppress, findings of fact 2 are reviewed to determine if they are supported by substantial evidence and legal 3 conclusions are reviewed de novo. State v. Leyba , 1997-NMCA-023, ¶ 8, 123 N.M. 4 159, 935 P.2d 1171. “We review the district court’s ruling on a motion to suppress 5 to determine whether the law was correctly applied to the facts, viewing the facts in 6 the light most favorable to the prevailing party.” State v. Cline , 1998-NMCA-154, ¶ 7 6, 126 N.M. 77, 966 P.2d 785. 8 Seizure 9 During the proceedings in the district c ourt, Defendant asked that all evidence 10 of the DWI investigation and the switchblade be suppressed due to the violation of his 11 Fourth Amendment rights and his state c onstitutional rights. At trial, Defendant 12 claimed that, at the point that he was ordered out of his house and as soon as he 13 crossed the threshold, his rights were viol ated. According to Defendant, he did not 14 leave his house “on his own volition,” and the officer’s actions constituted an 15 unlawful seizure. Defendant’s arguments below and on appeal are that the 16 suppression motion should have been grante d because he was subjected to unlawful 17 seizure when Officer Borjas (1) ordered him to exit his house even though he did not 18 possess a warrant, or (2) “coerced” him into exiting his house through a “show of 197 authority.” 1 The videotape of the incident does not support Defendant’s claims. Instead, 2 the videotape shows that, when Officer Borjas approached Defendant’s door, 3 Defendant voluntarily opened the door as th e officer approached , the officer calmly 4 asked if he could speak with Defendant, and Defendant agreed. Defendant stepped 5 out onto the porch while talking with the o fficer and eventually left the porch to go 6 to his truck for his identification. The vi deotape shows that the officer was polite and 7 not demanding in any way during his encounter with Defendant. There is nothing to 8 suggest that Officer Borjas ordered Defendant to open his door or ordered him to exit 9 his house. The videotape establishes thatDefendant opened hi s door and spoke with 10 the officer voluntarily. The argument made to the district court in support of his 11 suppression motion, that he was ordered out of his house by Officer Borjas, was not 12 supported by the evidence. 13 On appeal, Defendant raises a new ba sis in support of his suppression motion. 14 Defendant argues that he wa s not given a choice, but wa s “compelled” to exit the 15 house based on a “show of authority” as ev idenced by the officer’s “mien, tone of 16 voice, . . . visible sidearm,” and the time of night and remoteness of the location. This 17 particular argument was not made so as to fairly invoke a ruling from the district 18

court. See State v. Varela , 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 198 (explaining the requirements of issue preservation). 1 Moreover, there is nothing depicted in the videotaped encounter that would 2 support Defendant’s claim that he was “c ompelled” to exit his house by the officer’s 3 “show of authority.” In deciding whether an officer displayed a “show of authority” 4 sufficient to constitute a seizure, we look at whether the officer’s words or actions 5 would have caused a reasonable person to believe that he was being ordered to submit 6 to the officer’s directions. See State v. Gutierrez , 2007-NMSC-033, ¶ 34, 142 N.M. 7 1, 162 P.3d 156 (referring to California v. Hodari D. , 499 U.S. 621, 628 (1991)). A 8 seizure based on a claim of “show of authority” requires that th e defendant submitted 9 to the “show of authority.” State v. Harbison , 2007-NMSC-016, ¶ 12, 141 N.M. 392, 10 156 P.3d 30. First, we point out that Defendant was never asked or ordered to exit his 11 home and when he did step onto the porch, hemade a choice to do so. As the officer 12 approached Defendant, Defendant voluntarilyopened his door. The officer requested 13 permission to talk to Defendant using a cal m and respectful tone. His demeanor and 14 actions as he was approaching Defendant and asking to speak with him cannot be 15 characterized as directives or commands . There is nothing to support Defendant’s 16 claim that he was “coerced” by the officer’s behavior intoexiting his home. In fact, 17 before the officer observed signs that De fendant was intoxicated, there is nothing to 18 suggest that Defendant was even asked to exit his home. We therefore reject 199 Defendant’s argument. 1 CONCLUSION 2 Based on our review of the record and th e district court’s decision, we hold that 3 the district court correctly denied Defendant’s suppression motion. Since Defendant 4 was neither ordered by the officer, nor comp elled to leave his hous e, evidence of the 5 DWI investigation and the seized switchbl ade knife are admissible. Based on our 6 discussion, we affirm Defendant’s convictions. 7 IT IS SO ORDERED. 8

___________________________________ 9 RODERICK T. KENNEDY, Judge 10 WE CONCUR : 11

___________________________ 12 CYNTHIA A. FRY, Chief Judge 13

___________________________ 14 JAMES J. WECHSLER, Judge 15