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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,594 4 DAVID DOUGLAS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Elizabeth Ashton, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge. 192 {1} Defendant David Douglas conditionally pled to trafficking methamphetamine 1 by possession with intent to distribute, contrary to NMSA 1978, Section 30-31-20 2 (2006). By the conditional plea, Defendant reserved his right to appeal from the denial 3 of his motion to suppress. On appeal, Defendant argues that the district court erred in 4 denying his motion to suppress because: (1) the officer’s pat-down search of 5 Defendant was without reasonable suspic ion that he was armed and presently 6 dangerous, and (2) the officer lacked probabl e cause to arrest Defendant for resisting 7 arrest. We conclude that there is substan tial evidence to support the district court’s 8 conclusions that the officer had reasonabl e suspicion that Defendant was armed and 9 presently dangerous when he conducted th e pat-down search of Defendant. We also 10 conclude there was probable cause to support the officer’s arrest of Defendant for 11 resisting arrest. We therefore affirm the di strict court’s denial of Defendant’s motion 12 to suppress and affirm Defendant’s conviction. 13 BACKGROUND 14
{2} Although Defendant is not contesting th e initial stop or Officer Brian Kent 15 Johnston’s authority to investigate and citeDefendant for drivi ng a motorcycle with 16 a suspended license and without proper registration, this portion of the interaction is 17 nevertheless pertinent to show the progre ssion of events leading up to the pat-down 18 search and arrest. However, Defendant doe s contend that the findings of fact and 193 conclusions of law entered by the districtcourt “confuse the chronology of events as 1 testified to at the suppression hearing and confirmed by the dash-cam video.” Based 2 on our review of the testimony from the s uppression hearing and the audio and video 3 recordings presented at the hearing, we determine the evidence of the case to be as 4 follows. 5
{3} Officer Johnston testified that on the date in question, he was working patrol 6 and traveling west when he saw a motorcyclist, later iden tified as Defendant, traveling 7 east on the same road. It appeared as if Defendant was not wearing any eye protection, 8 so Officer Johnston made a u-turn, caught up to Defendant, tried unsuccessfully to 9 verify whether Defendant wa s wearing eye protection, and simultaneously looked at 10 the registration on the motorcycle, which was not fully visible. Because it is a 11 violation to operate a mo torcycle without eye protection or without visible 12 registration, Officer Johnston initiated a traffic stop. He exited his patrol vehicle and 13 while walking toward Defendant, Officer J ohnston verified that the registration was 14 expired, another traffic offe nse. He approached Defendant and began to explain that 15 he stopped Defendant because he could not ascertain whether Defendant was wearing 16 eye protection. Defendant suddenly told th e officer that he should not be driving 17 because he did not have a license. The da sh-cam video from the interaction, played 18 at the suppression hearing, made clear thatOfficer Johnston told Defendant he was 194 pulling him over because of the eye-protecti on issue, that he asked for license and 1 registration even though Defendant was wearing eye protecti on at that point, and that 2 Defendant stated that he al ways had his glasses on and th at his license was suspended. 3
{4} Defendant also explained that someone else owned the motorcycle and that he 4 did not have the registration because it was a temporary “thing.” Officer Johnston 5 asked Defendant what was in a bag that was attached to the handlebars and whether 6 the registration might be in the bag, expl aining that he was trying to save Defendant 7 from getting a ticket. Defendant began to open the bag and Officer Johnston verified 8 that the bag belonged to Defendant, also aski ng Defendant at this point if he was okay. 9 Defendant said he was fine, but explained that he was nervous because every time he 10 has been pulled over he has goneto jail due to his suspended license. Officer Johnston 11 then told Defendant to dismount the motorc ycle because he could not let him leave on 12 the motorcycle without a license. 13
{5} Officer Johnston further testified that, once he asked Defendant to get off the 14 vehicle, he saw a knife cli pped on his pocket, and he directed him to put his hands on 15 his head so he could remove the kni fe and conduct a pat-down search. Officer 16 Johnston explained that when he sees a kni fe on someone there is a significant officer 17 safety risk because the weapon could be used against him. Additionally, he noted that 18 Defendant was abnormally nervous and that the situation was starting to escalate, and 195 Officer Johnston tried to calm Defendant down. As a result, Officer Johnston was 1 concerned for his safety. Officer Johnston al so testified that, based on his training and 2 experience, where there is one weapon, there is another. Consequently, he proceeds 3 with a thorough pat-down search anytime there is a possibility of a weapon, or of an 4 individual hurting him with a weapon. He also stated that he does not stop the search 5 as soon as he finds one weapon. When asked if there was anything else suspicious, 6 Officer Johnston responded that when De fendant had opened the blue bag on the 7 handlebars, based on his training and experi ence, he observed a corner piece of what 8 appeared to be a digital scale. 9
{6} Officer Johnston testified that once heasked Defendant to place his hands on 10 his head, Defendant became “extremely nervous,” forcing Officer Johnston to warn 11 Defendant against touching the knife. OfficerJohnston removed the knife himself, and 12 then he attempted to conduc t the pat-down search, during which time Defendant did 13 not follow instructions, repeatedly removed his hands from the top of his head, tried 14 to face Officer Johnston on several occasions , and asked questions about why he was 15 being detained rather than allowing the s earch to proceed. Officer Johnston further 16 testified that the pat-down search was initially conducted using th e palm of his hands 17 and that, as he began the s earch, Defendant’s legs started shaking, which indicated 18 extreme nervous behavior for just a pat sear ch. Officer Johnston also testified that he 196 attempted to calm Defendant by asking hi m what was in his right back pocket 1 (Defendant’s wallet), which he thought De fendant could easily identify and which 2 would have allowed Officer Johnston to determine thatDefendant was consciously 3 thinking. Although Officer Johnston did not remember the exact size of the knife, he 4 testified that it was a little larger than a normal pocket knife, but it had a clip on it, 5 indicating that it must have been a pocket knife of some kind. 6
{7} As part of the pat-down search, Officer Johnston felt a bulgethat he believed 7 may be drugs in Defendant’s pants pocket. Officer Johnston testified that he was not 8 able to fully complete the officer safetypat-down search because it became clear to 9 him that Defendant was not going to cooperate, at which time he and another officer, 10 who was also at the scene, assisted Defendant to the ground and placed him under 11 arrest for resisting, evading, or obstructing. Officer Johnst on also testified that prior 12 to the arrest, Defendant had not attempted to flee or threaten Officer Johnston, but that 13 the resisting was comprised of Defendant’s repeated removal of his hands from his 14 head and repeated turning toward Offi cer Johnston during the attempted pat-down 15 search, despite his repeated instructions and shouting for Defendant to comply and to 16 keep his hands on his head. 177 DISCUSSION 1 The Officer’s Pat-Down Search of Defendant Was Supported by Reasonable 2 Suspicion 3
{8} Defendant first argues that the pat-down search was not supported by 4 reasonable suspicion that he was armed and presently dangerous, thereby requiring a 5 suppression of the evidence. “A motion to suppress evidence involves a mixed 6 question of fact and law.” State v. Vandenberg , 2003-NMSC-030, ¶ 17, 134 N.M. 566, 7 81 P.3d 19. We review the facts for substantial evidence in the light most favorable 8 to the prevailing party. See id. ¶¶ 17-18. We review the law de novo. Id. ¶ 17. Where 9 there may be a discrepancy in facts, wedo not reweigh the facts or determine 10 credibility, and it is for the district court to determine questions of good faith belief. 11 Id. ¶ 18. Nonetheless, determining whether the officer’s actions were objectively 12 reasonable extends beyond fact-finding and is decided based on a reasonableness 13 standard. See id. ¶ 19. 14
{9} Our Supreme Court extensively discu ssed the law regarding legal pat-down 15 searches, pursuant to officer safety in Vandenberg . In Vandenberg , the Court stated 16 that, “[t]o justify a frisk for weapons, anofficer must have a sufficient degree of 17 articulable suspicion that the person being frisked is both armed and presently 18 dangerous.” Id. ¶ 22. “To determine the reasonableness of a protective frisk for 19 weapons, we must balance the threat posed to officer safety under the circumstances, 208 against the individual’s right to personal security free from arbitrary interference by 1 law officers.” Id. ¶ 23 (internal quotation marks and citation omitted). The Court 2 expanded: 3 Although a weapons frisk must be strictly circumscribed by the 4 exigencies that justify it, the officerneed not be absolutely certain that 5 the individual is armed; the issue is whether a reasonably prudent officer 6 in the circumstances would be warranted in the belief that his safety or 7 that of others was in danger. The purpose of a frisk for weapons is to 8 allow an officer to conduct an inves tigation without fear of violence. In 9 evaluating the reasonableness of anofficer’s conduct when confronted 10 with exigent circumstances, the inquiryis an objective one into whether 11 a reasonable, well-trained officer would have made the judgment this 12 officer made. If reasonable people mightdiffer, we defer to the officer’s 13 good judgment. 14 Id. (omissions, alterations, internal quotation marks, and citations omitted). An officer 15 may reasonably believe that a defendant might be armed and dangerous during a 16 routine traffic stop. See id. ¶¶ 15, 24. In order to justify a pat-down search, the officer 17 must identify “specific behaviors and ch anges in the defendant’s demeanor and 18 attitude that explained why [the officer] be lieve[s] that the defendant might be armed 19 and dangerous.” Id. ¶ 25 (alterations, internal quotation marks, and citation omitted). 20 Erratic behavior exhibited by the defendant may include “a failure to make eye 21 contact, shaking hands, and unus ual level of nervousness,” as well as an elevation in 22 such nervousness, uncontrollable shaking, and a change in tone of voice, after being 23 asked about weapons. Id. (alteration, internal quotati on marks, and citation omitted). 249 Indeed, even if the initial stop is for a mere traffic violation, “during an investigatory 1 stop, when an officer reasonably believes the individual may be armed and dangerous, 2 he or she may check for weapons to ensure personal safety.” Id. ¶ 36 (emphasis, 3 alteration, internal quotati on marks, and citation omitted). With this in mind, we 4 proceed to consider th e evidence in this case. 5
{10} As previously noted, Officer Johnston te stified that he had Defendant dismount 6 the motorcycle because he had no license; saw a knife clipped to Defendant’s pocket; 7 directed Defendant to put his hands on his head so he could remove the knife and 8 conduct a pat-down search; had concerns ba sed on the presence of the knife, including 9 officer safety risk and the likelihood, base d on his training and e xperience, of other 10 weapons being present on Defendant’s person; had concerns about Defendant’s 11 abnormally nervous behaviors from the initial stop; and was further concerned when 12 Defendant became extremely nervous causing the officer to warn Defendant not to 13 touch the knife, and when his legs starte d shaking upon being asked to place his hands 14 on his head. 15
{11} Based on this evidence, viewed in the li ght most favorable to the State as the 16 prevailing party, we concludethat there is substantial evidence to support the district 17 court’s conclusion that “Officer Johnston had articulable safety concerns to justify a 18 . . . pat[-]down search of Defendant ba sed on Defendant[’s po ssession of] a knife on 1910 his person and his overall demeanor.” Indeed, there is su fficient evidence to support 1 the conclusion that Officer Johnston reas onably believed that Defendant might be 2 armed and presently dangerous based on the presence of the knife and his observations 3 regarding specific behaviors—abnormal nervousness—and Defe ndant’s changes in 4 demeanor and attitude upon be ing asked to submit to a pat-down search—becoming 5 even more nervous, in part indicated by th e shaking of his legs and possibly reaching 6 for the knife by not keeping his hands on his head. See id. ¶¶ 17-18, 23, 25; see also 7 id. ¶ 29 (discussing the officer’s testimony that “very nervous people are often a threat 8 to officer’s safety because they are unpred ictable”). Accordingly, we hold that the 9 district court did not err in concluding that reasonable suspic ion supported Officer 10 Johnston’s pat-down search of Defendant. 11 Probable Cause Existed to Arrest De fendant for Resisting, Evading, or 12 Obstructing an Officer 13
{12} Defendant next argues that Officer J ohnston lacked probable cause to arrest 14 Defendant for resisting arrest, thereby mandating suppression of all evidence resulting 15 from the unlawful arrest. “Probable cause exists when the facts and circumstances 16 warrant a belief that the accused had co mmitted an offense, or is committing an 17 offense.” State v. Ochoa , 2004-NMSC-023, ¶ 9, 135 N.M. 781, 93 P.3d 1286. 18 “[P]robable cause must be evaluated in re lation to the circumstances as they would 19 have appeared to a prudent, cautious and trained police officer.” Id. (internal quotation 2011 marks and citation omitted). “Whether proba ble cause exists is a mixed question of 1 law and fact.” Benavidez v. Shutiva , 2015-NMCA-065, ¶ 12, 350 P.3d 1234 (internal 2 quotation marks and citation omitted). 3
{13} Resisting, evading, or obstructing an officer consists of, in pertinent part, 4 “resisting or abusing any judge, magistrate or peace officer in the lawful discharge of 5 [their] duties.” NMSA 1978, § 30-22-1(D) (1981); State v. Cotton , 2011-NMCA-096, 6 ¶¶ 23-24, 150 N.M. 583, 263 P.3d 925 (indicating that resisting an officer requires 7 findings, supported by sufficient evidence, thatthe officer was a peace officer in the 8 lawful discharge of his duties and that the de fendant resisted the officer in such lawful 9 discharge of his duties). Our Supreme Court has held that a defendant is not entitled 10 to physically resist a peace offi cer in the lawful discharge of his duties, so long as the 11 officer is acting within the scope of what he is employed to do. See State v. Doe , 12 1978-NMSC-072, ¶¶ 11, 14, 92 N.M. 100, 583 P.2d 464. Even if an arrest is 13 subsequently found to be unlawful “[p]olice officers must be free to carry out their 14 duties without being subjected to interference and physical harm.” Id. ¶ 14. 15
{14} “[T]he statutory requirement that the vi ctim have been a peace officer in the 16 lawful discharge of his duties has two components: (1) whether the officer is 17 discharging his duties, and (2 ) whether the officer’s discharge of his duties is lawful.” 18 State v. Phillips , 2009-NMCA-021, ¶ 16, 145 N.M. 615, 203 P.3d 146 (internal 1912 quotation marks omitted). In the present case, Officer Johnston was clearly on duty 1 and acting in the discharge of his duties, and no argument has been made that he was 2 acting akin to a “personal frolic of his own.” Id. ¶ 20 (stating that “[w]here an officer 3 is on duty, the officer’s conduc t must be so unrelated to the performance of his duties 4 as to amount to a personal frolic of his own before it will be considered outside the 5 discharge of the officer’s duties” (int ernal quotation marks and citation omitted)). 6
{15} Turning to the second component, whether Officer Johnston’s discharge of his 7 duties was lawful—i.e., whether his actions were lawful while he was conducting the 8 pat-down search that led to Defendant’s arrest—we have already held that Officer 9 Johnston had reasonable suspicion to c onduct the pat-down search of Defendant. 10 Thus, the search itself was lawful. We therefore considerwhether there was probable 11 cause that Defendant was committing a crime, thereby justifying the arrest. See 12 Ochoa , 2004-NMSC-023, ¶ 9. As set forth indetail above, the evidence shows that 13 as Officer Johnston was c onducting the pat-down search based on the presence of a 14 weapon on Defendant’s body and his extreme nervousness, De fendant failed to follow 15 Officer Johnston’s instructions by repeatedly removing his hands from the top of his 16 head, trying to face Officer Johnston on se veral occasions, and asking questions about 17 why he was being detained rather than following the officer’s repeated instructions 18 and shouts to Defendant to co mply and allowing the searchto proceed. Such evidence 1913 constitutes probable cause that Defendant wa s resisting Officer Johnston in the lawful 1 discharge of his duties. See id. ¶ 9 (“Probable cause exists when the facts and 2 circumstances warrant a belief that the accused had committed an offense, or is 3 committing an offense.”); Cotton , 2011-NMCA-096, ¶¶ 23-24 (indicating that 4 resisting an officer is comprised of a defe ndant resisting a peace officer in the lawful 5 discharge of his duties). Accordingly, we hold that the district court did not err in 6 concluding that Defendant be gan to resist law enforcement while Officer Johnston 7 was in the lawful discharge of his dutie s and that Defendant was placed under lawful 8
arrest. 9 CONCLUSION 10
{16} For the foregoing reasons, we affirm the district court’s denial of Defendant’s 11 motion to suppress and Defendant’s conviction. 12
{17} IT IS SO ORDERED. 13

14 M. MONICA ZAMORA, Judge 15 WE CONCUR: 16 17 JONATHAN B. SUTIN, Judge 18 19 HENRY M. BOHNHOFF, Judge 20