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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,034 4 JAMES COBARRUBIO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Donna J. Mowrer, District Judge 8 Gary K. King, Attorney General 9 Margaret E. McLean, Assistant Attorney General 10 Joel Jacobsen, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Assist ant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VIGIL, Judge. 192 {1} Defendant appeals his convictions on the ba sis that the district court erred in 1 denying his motion to suppress because the officer lacked justification to request 2 Defendant’s identifying information. This Court issued a calendar notice proposing 3 to reverse the district court’s denial of Defendant’s motion to suppress. The State has 4 filed a memorandum in opposition to this Court’s notice of proposed disposition, 5 which we have duly considered. Because weconclude that the State has failed to 6 point out any error in fact or in law with this Court’s notice of proposed disposition, 7 and has otherwise failed to articulate a basis to support affirmance, we reverse. 8
{2} In this Court’s calendar notice, we noted that “a traffic stop is not a consensual 9 encounter, but is instead a seizure of th e vehicle and its occupants.” [CN 5 (citing 10 State v. Portillo , 2011-NMCA-079, ¶ 12, 150 N.M. 187, 258 P.3d 466)] We noted that 11 in order to expand the interaction from the driver to the passenger, an officer must 12 have “ reasonable suspicion that the passe nger is involved in criminal activity,” “a 13 particularized concern for officer safety,” or the passenger is “implicated in the 14 investigation related to the initial stop.” [CN 5-6 (citing State v. Affsprung , 2004- 15 NMCA-038, ¶¶ 16-19, 135 N.M . 306, 87 P.3d 1088, and State v. Rubio , 2006-NMCA16 067, ¶ 16, 139 N.M. 612, 136 P. 3d 1022)] We suggested that, under the facts of this 17 case, the driver’s lack of a driver’s licen se did not justify the officer’s request for 183 Defendant’s identification, and proposed to reverse. [CN 7] The State has raised 1 multiple arguments in response to our proposed disposition. 2
{3} First, the State contends that Defendant conceded that the officer could ask for 3 his identification, based on the Defendant arguing that the State could not release the 4 vehicle to him if he did nothave his license on his person. [MIO 6-9 (“It should be 5 noted that, if this reconstruction of the attorney’s argument is correct, defense counsel 6 effectively conceded that it was proper for the officer to ask for Defendant’s 7 license.”)] We disagree that, by arguing that the officer could not release the vehicle 8 to him, Defendant conceded that the officerwas permitted to ask for his identification, 9 as Defendant could have madethis argument in addition—or in the alternative to—his 10 argument that the officer was not permitted to ask him for identification in the first 11 instance. Moreover, given that the record reflects that Defendant intended to challenge 12 the officer’s initial request for his identification [RP 93], we conclude that the State’s 13 speculative and strained reading of the hearing log is insufficient to create a factual 14 issue sufficient to require this Court to abandon its proposed disposition or to assign 15 this matter to the general calendar. See State v. Sisneros , 1982-NMSC-068, ¶ 7, 98 16 N.M. 201, 647 P.2d 403 (providing that the opposing party to summary disposition 17 must come forward and specifically point out errors in fact and in law); Taylor v. Van 18 Winkle’s IGA Farmer’s Market , 1996-NMCA-111, ¶ 1, 122 N.M. 486, 927 P.2d 41 194 (providing that when the facts are not dis puted, a case may appropriately be decided 1 on the summary calendar). 2
{4} Second, the State argues that the officer’s request for Defendant’s identification 3 was constitutionally permissible, if done fo r the purpose of avoiding having to tow 4 and impound the vehicle. Assuming thatthe officer requesting Defendant’s 5 identification for this purpose would be c onstitutional, the State has not directed this 6 Court to any evidence or facts demonstrati ng that this was the basis for the officer’s 7 inquiry. Rather, the State contends that “it can reasonably be inferred” that the purpose 8 of the officer asking Defendant for his li cense “was to learn whether [Defendant] 9 could lawfully drive the vehicle, given th at Ms. Garza could not[,]” based merely on 10 the fact that the driver di d not have a license. [MIO 12] The State presented no officer 11 testimony in this regard at the hearing on Defendant’s motion to suppress, since the 12 parties stipulated to the facts. [RP 119; DS 2 (stating that “[t]he parties agreed no live 13 testimony would be taken and in lieu of testimony the Court would receive the police 14 reports as a factual basis of the events th at transpired”).] While we note the police 15 report is not contained in the record proper, we also note that the statement of 16 probable cause [RP 30-31], the docketing statement, and the memorandum in 17 opposition do not demonstrate that this was the officer’s motivation in requesting 18 Defendant’s identification. Significantly, to the extent the State’s memorandum in 195 opposition contains assertions that this wa s the basis for the officer asking Defendant 1 for his identification, we note that such assertions were the argument of counsel at the 2 hearing on the motion to suppress. [MIO 12-16; RP 119-20] “This Court has 3 previously held that once a defendant has es tablished that the state stopped his vehicle 4 and conducted a warrantless search and seizure, the state has the burden of coming 5 forward with evidence to show that there was a valid basis for the stop and that the 6 search and seizure came within the amb it of a recognized ex ception to the search 7 warrant requirements imposed by the Fourth Amendment.” State v. Porras-Fuerte , 8 1994-NMCA-114, ¶ 36, 119 N.M. 180, 889 P. 2d 215. Arguments of counsel are 9 insufficient to satisfy the State’s burden. State v. Wacey C ., 2004-NMCA-029, ¶ 13, 10 135 N.M. 186, 86 P.3d 611 (“Arguments of counsel are not evidence and cannot be 11 used to prove a fact.”). We therefore conclude that the State failed to meet its burden 12 and that the district court erred in denyi ng Defendant’s motion to suppress as a result. 13
{5} The State also argues that Defendant’s identity should be allowed in under the 14 doctrine of inevitable discovery. The in evitable discovery doctrine applies where 15 evidence that was obtained through unlaw ful police conduct inevitably would have 16 been otherwise discovered through a differe nt and independent lawful means. See 17 State v. Saiz , 2008-NMSC-048, ¶ 20, 144 N.M. 663, 191 P.3d 521, abrogated on other 18 grounds by State v. Belanger , 2009-NMSC-025, ¶ 36 & n. 1, 146 N.M. 357, 210 P.3d 196 783. We point out that this was not the basis for the district court’s ruling. Rather, the 1 district court determined that it was withinthe officer’s discretion to release the car 2 to Defendant and to ask for Defendant’s identification on that basis. [RP 120] Thus, 3 the State’s inevitable discovery argument is a request that this Court affirm the district 4 court as right for any reason. 5
{6} “Although we may affirm a trial court’s ruling on a ground not relied upon by 6 the court or argued by the parties, we w ill not do so if reliance on the new ground 7 would be unfair to the appellant[.]” State v. Barragan , 2001-NMCA-086, ¶ 17, 131 8 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo , 2012- 9 NMSC-008, 275 P.3d 110. “In particular, it would be unfair to an appellant to affirm 10 on a fact-dependent ground not raised below.” Id. (internal quotation marks and 11 citation omitted). In Barragan , we refused to uphold the trial court’s ruling on the 12 basis of inevitable discovery, “[b]ecauseapplication of the inevitable discovery 13 doctrine requires a trial court to make factual determinations[.]” Id. There, we noted 14 that in order for a trial court to make a ru ling in favor of the State, “the court would 15 be required to make at least three factual findings: (1) whether, without the illegally 16 seized evidence, the officers had probable causeto arrest [the d]efendant; (2) whether 17 the officers would in fact have made th e arrest under such circumstances; and (3) 18 whether an inventory that would have rev ealed the items was standard procedure.” Id. 197 ¶ 18. Here, the district court made no su ch findings. Rather, while the parties 1 stipulated to certain facts, according to the hearing log, the district court stated the 2 facts known to it as follows: 3 [D]efendant was seized as a passenger in the vehicle . . . and [S]tate has 4 conceded he was seized[;] based upon facts stipulated by parties will find 5 that officer asked driver for her licen se she sai[]d she had no license then 6 asked [D]efendant for his license[; ] [D]efendant identified himself as 7 [M]arcus [J]oiner [p]ursuant to s tipulation of parties[;] officer then 8 proceeded[;] other facts are not know[n] to court at this time [.] 9 [RP 120 (emphasis added)] Thus , based on the information considered by the district 10 court, “[e]ven if we were able to determine whether the officers in this case had 11 probable cause to arrest Defendant without consideration of the illegally seized 12 evidence, there is no eviden ce that the officers would have arrested Defendant under 13 these circumstances and no evidence regarding a standard inventory procedure.” Id. 14 ¶ 18. Accordingly, we decline, as this Court did in Barragan , to “consider the 15 inevitable discovery doctrine as an alternative ground for upholding the trial court’s 16 decision.” Id. 17
{7} Likewise, just as we refrain from appl ying a right for any reason analysis to 18 affirm based on inevitable discovery, wedo not address the State’s arguments 19 regarding standing and whether suppression of the paraphernalia and 20 methamphetamine follow from the Stat e’s improper request from Defendant’s 21 identification, as these arguments were not made below and the district court did not 228 consider the facts regarding the events following Defendant’s self-identification. 1 Consequently, for the reasons stated aboveand in this Court’s notice of proposed 2 disposition, we reverse and remand to th e district court for further proceedings 3 consistent with this Opinion. 4
{8} IT IS SO ORDERED. 5

__________________________________ 6 MICHAEL E. VIGIL, Judge 7 WE CONCUR: 8

___________________________________ 9 JONATHAN B. SUTIN, J\udge 10

___________________________________ 11 M. MONICA ZAMORA, Judge 12