IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 29,330 4 PAUL MYERS, 5 Defendant-Appellee. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Denise Barela Shepherd, District Judge 8
Gary K. King, Attorney General 9 Santa Fe, NM 10 James W. Grayson, Assistant Attorney General 11 Albuquerque, NM 12 for Appellant 13 Hugh W. Dangler, Chief Public Defender 14 Nancy M. Hewitt, Appellate Defender 15 Santa Fe, NM 16 for Appellee 17

MEMORANDUM OPINION 182 KENNEDY, Judge. 1 The State appeals the suppression of evid ence obtained as the result of a traffic 2 stop. We proposed to affirm the suppression of the evidence. The State has timely 3 responded. We have considered its ar guments and finding them unpersuasive, we 4 affirm. 5 In our notice, we set out the standard for reviewing the grant of denial of a 6 motion to suppress. State v. Lowe , 2004-NMCA-005, ¶ 8, 135 N.M. 520, 90 P.3d 539. 7 We also pointed out that a stop must besupported by reasonable suspicion and that 8 “[r]easonable suspicion must be based on objective facts that indicate an individual 9 is, or will be in the immediate futu re, engaged in criminal activity.” State v. Williams , 10 2006-NMCA-062, ¶ 23, 136 N.M. 578, 136 P.3d 579. The State argues that 11 reasonable suspicion need not rise to the level required for probable cause. [MIO 4-5] 12 We agree. However, our case law is clear that there must be individualized suspicion 13 that the person detained was committing or had committed a crime. City of Roswell 14 v. Hudson , 2007-NMCA-034, ¶¶ 18-19, 141 N.M. 261, 154 P.3d 76. 15 We pointed out in our notice that th e facts here did not establish that 16 particularized suspicion that Defendant was committing or had committed a crime. 17 The State argues that the 9 11 caller provided reasonable suspicion. We disagree. 18 Instead, we have a call from a neighbor indicating that a white Acura is parked on the 193 street with someone sitting in it. Appare ntly, this has happened on numerous other 1 occasions. There is nothing else in the call to indicate that there is criminal activity 2 going on. When the officer responded to the suspicious vehicle call, he saw the white 3 car parked, saw that the engine was runni ng, and then watched as the vehicle drove 4 away. There was nothing in this activity th at was criminal. The officer did not see 5 any violations of the traffic code when the vehicle pulled away. 6 The State argues that the 911 call provided reliable information. Again, we do 7 not disagree, but fail to see how that assist s the State. The information was reliable 8 about a white vehicle being parked in frontof the caller’s home. However, there is 9 nothing else about the call to provide reasonable suspicion that Defendant was 10 engaged in illegal activity. 11 The State argues that the time of day, 1:00 a.m., provides reasonable suspicion 12 to stop the vehicle and investigate. We be lieve that the cases cited by the State are 13 distinguishable as they refer to police obs erving vehicles late at night driving near 14 closed businesses. [MIO 7-8] We see nothing particularly suspicious about a car 15 parked in a residential neighborhood, without other indications that such activity is 16 suspicious. There are any number of innocen t explanations for parking in a particular 17 place late at night. The State has not articulated what other suspicious activity 18 indicated that Defendant was committing a crime or about to do so. 194 We note that we recently held no reasonable suspicion to detain a vehicle that 1 was parked for more than thirty minutes in a residential neighborhood late at night, 2 where the vehicle did not belong to anyone in the neighborhood. Hudson , 2007- 3 NMCA–034, ¶ 17. Likewise, in State v. Soto , 2008-NMCA-032, ¶ 20, 143 N.M. 631, 4 179 P.3d 1239, we held the poli ce had no reasonable suspicion to detain the defendant 5 who was riding his bicycle late at night in an area near the race tr ack in Ruidoso. We 6 conclude, under the same analysis, that there was no reasonable suspicion here to stop 7 Defendant as he drove away after being parked in a residential area. 8 The State argues that the f act that Defendant drove away when police arrived 9 can add to the circumstances to create reas onable suspicion. We would agree if the 10 other circumstances were suspicious. Ho wever, we do not belie ve that what was 11 presented here represents suspicious circ umstances. The State asserts that it is not 12 suggesting that the facts presented conclusive ly show that the occupant of the vehicle, 13 Defendant, was committing or about to commit a crime. Rather, it argues that the 14 particular noncriminal acts here were su spicious enough that a reasonable officer 15 would want to investigate. We recognize the State’s interest in not only detecting 16 crimes and apprehending offenders, but in preventing crimes. Howe ver, that interest 17 must be weighed against the intrusion into a person’s privacy. That is the reason for 18 requiring reasonable suspicion. See State v. Jason L. , 2000-NMSC-018,¶ 14, 129 195 N.M. 119, 2 P.3d 856. 1 For the reasons stated herein and in our notice of proposed disposition, we 2 affirm the order suppressing the evidence in this case. 3 IT IS SO ORDERED

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5 RODERICK T. KENNEDY, Judge 6 WE CONCUR: 7

8 JAMES J. WECHSLER, Judge 9

10 MICHAEL D. BUSTAMANTE, Judge 11