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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,533 9 LAWRENCE E. GRIGGS, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Teddy L. Hartley, District Judge 13 Gary K. King, Attorney General 14 Margaret E. McLean, Assistant Attorney General 15 Joel Jacombsen, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Nancy M. Hewitt, Assist ant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 232 CASTILLO, Judge. 1 Defendant appeals the denial of his moti on to suppress. We issued a calendar 2 notice proposing to reverse and, pursuant toan extension, the State filed a timely 3 memorandum in opposition. We remain unpersuaded by the State’s arguments and 4

reverse. 5 The district court’s ultimate ruling on Defendant’s motion to suppress involves 6 mixed questions of fact and law. See State v. Neal , 2007-NMSC-043, ¶ 15, 142 N.M. 7 176, 164 P.3d 57. On review, we determine “whether the law was correctly applied 8 to the facts, viewing them in a manner mo st favorable to the prevailing party.” State 9 v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. We defer to the 10 district court’s findings of fact to the extent that they are supported by substantial 11 evidence. Id. However, we “review the application of the law to these facts, 12 including determinations of reasonabl e suspicion, under a de novo standard of 13 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 14 When an officer stops an automobile to investigate a possible crime, we analyze 15 the reasonableness of the stop and ensuing investigatory detention in accordance with 16 the two-part test in Terry v. Ohio , 392 U.S. 1 (1968). See State v. Duran , 17 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. We ask whether the stop was 18 justified at its inception and whether the officer’s actions during the stop were 193 reasonably related to circumstan ces that justified the stop. Duran , 2005-NMSC-034, 1 ¶ 23

. Furthermore, “investigation beyond the scope of the initial traffic stop is 2 justified only if the officer can articulate sp ecific and particularized factors that give 3 rise to an objectively reasonable suspicion th at other criminal activity has been or may 4 be afoot.” State v. Prince , 2004-NMCA-127, ¶ 9, 136 N.M. 521, 101 P.3d 332. 5 At the suppression hearing, Officer Rains testified that he and Officer Wright 6 were working a narcotics patrol and saw a maroon van pull up and stop at a “known” 7 drug house. [MIO 2-3; RP 50-51, 81] The officers saw Defendant leave the van, 8 enter the house, and promptly return to th e van. [MIO 9; RP 81] The officers 9 followed the van and soon stopped it for making a turn without signaling and cutting 10 off traffic. [MIO 4; RP 81] 11 Rains asked the driver to exit the van and questioned him away from Defendant 12 about the purpose of the trip. [RP 16] The driver said he was visiting his friend, 13 Chris. [RP 16] Rains asked the driver toexplain Defendant’s actions in entering and 14 exiting the house, and the driver had no explanation. [RP 16] 15 Rains then asked Defendant to step out of the van and que stioned him as to 16 where they were coming from, and Defendant said he had been visiting the boyfriend 17 of his sister. [RP 16, 82] Having obtaine d inconsistent answers from the driver and 18 Defendant as to the purpose of the stop at the drug house, Rains then explained his 194 suspicion and asked Defendant if he had any crack cocaine on him. [RP 16, 81-82] 1 Defendant said he did not, and Rains as ked if he could search him. [RP 16] 2 Defendant said yes, and Rains discovered crack cocaine inDefendant’s pocket. [RP 3 16, 78] Rains testified that he did not know Defendant before he stopped the van, he 4 did not see Defendant commit any crimes, and he knew nothing of Defendant’s 5 criminal history. [DS 3-4] 6 In this case, the district court found— and Defendant does not dispute—that the 7 initial stop was valid “due to an observed traffic violation.” [MIO 4; RP 82] 8 However, as discussed more fully in our notice of proposed summary disposition, 9 given that the vehicle was stopped for a traffic violation and given that Defendant was 10 questioned on matters unrelated to the traffi c violation, officers were required to have 11 “reasonable suspicion, proven through specific articulable facts,” that Defendant had 12 been or was about to be engaged in criminal activity unrelated to the traffic violation. 13 State v. Affsprung , 2004-NMCA-038, ¶ 11, 135 N.M. 306, 87 P.3d 1088. 14 In our notice, we proposed to reverse the district court’s denial of the motion to 15 suppress because the officers lacked the requisite reasonable suspicion that Defendant 16 had been or was about to be engaged in criminal activity. [RP 81-82] 17 In its memorandum in opposition, the State repeats its central contention raised 18 below that observation of Defendant goi ng in and out of a known drug house is 195 enough, standing alone, to give rise to reas onable suspicion. [MIO 9-10; RP 50] We 1 are unpersuaded and again turn toour Supreme Court’s opinion in Neal . In that case, 2 officers saw a truck in front of a house thatwas being investigated for drug activity. 3 2007-NMSC-043, ¶ 4. The defendant was in the driver’s seat, and officers saw a man 4 leaning into the truck through the driver’s window. Id. The defendant drove away 5 from the house, and the officer followed. Id. ¶ 5. The officer saw that the truck had 6 a cracked windshield and stopped th e defendant on that basis. Id. Once he 7 approached the truck, the officer recogni zed the defendant as someone with “prior 8 drug-related and assault convictions.” Id. 9 After obtaining the defendant’s license, registration, and insurance, running a 10 wants and warrants check, and learning th at the defendant might be armed and 11 dangerous, the officer asked the defendant about the identity of the person who had 12 spoken with him through the window, and learned that the person identified was also 13 under investigation for drugs. Id. ¶¶ 6-7. The officer described the defendant as 14 “nervous and becoming agitated during this exchange.” Id. ¶ 7. The officer returned 15 the defendant’s documents, issued a citation for the cracked windshield, and asked the 16 defendant to consent to a search of his truck. Id. ¶¶ 7-8. When the defendant refused, 17 the officer detained the truck while aw aiting a canine for a perimeter sniff. Id. ¶ 8. 18 Our Supreme Court held th at the officers did not have reasonable suspicion to 196 search for drugs despite the evidence showi ng that the defendant: stopped in front of 1 a house being investigated for drugs, talked to a convicted felon, became nervous and 2 wanted to leave when he was stopped by the officers, and refused to consent to the 3 search of the truck. Id. ¶¶ 27-31. In this case, as in Neal , the allegedly suspicious 4 circumstances, “smack more of the type of conjecture and hunch we have rejected in 5 the past as insufficient to c onstitute reasonable suspicion.” Id. ¶ 31; see Prince , 2004- 6 NMCA-127, ¶ 19 (recognizing that “[o]fficers may not use a lawful stop to fish for 7 evidence of other crimes wh ere there is insufficient reason to detain a defendant 8 beyond the purpose of the initial detention”). 9 The State seeks to distinguish Neal because in this case, the officers knew 10 Defendant went into a drug house while in Neal drug activity was only suspected. 11 [MIO 11] We disagree. Even though De fendant went into a known drug house, this 12 does not mean that officers knew Defendant was involved in drug activity. [MIO 11] 13 See Prince , 2004-NMCA-127, ¶ 17 (stating that “[g]uilt by association and 14 generalized suspicions are insufficient grounds upon which to base an investigatory 15 detention”); cf. State v. Graves , 119 N.M. 89, 94, 888 P.2d 971, 976 (Ct. App. 1994) 16 (holding that the defendant’s presence on th e premises subject to a search warrant 17 does not justify detaining or searching the defendant). 18 In its memorandum in opposition, the State also contends that the questioning 197 of Defendant was justified because he was not detained beyond the length of time 1 necessary to issue a citation for the illegal turn. [MIO 5-7] We are unpersuaded by 2 this argument for two reasons. 3 First, we are not convinced that the State preserved this argument by alerting 4 the district court to its contention thatthe initial questioni ng of Defendant was 5 justified because it took place while officers were investigating the driver for the 6 traffic violation. SeeRule 12-216(A) NMRA (stating that, in order to preserve a 7 question for review, “it must appear that a ruling or decision by the district court was 8 fairly invoked”); State v. Janzen , 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768 9 (noting that “while the [s]tate may have a number of different theories as to why the 10 evidence should not be suppressed, in order to preserve its arguments for appeal, the 11 [s]tate must have alerted the district court” to the particular theories it was relying on 12 in support of its argument). There is nothing in the State’s response to Defendant’s 13 motion to suppress and nothing in the districtcourt’s letter decision indicating that the 14 motion to suppress was deni ed based upon a finding thatquestioning of Defendant 15 was justified because he was not detainedbeyond the time necessary to process the 16 traffic violation citation. [RP 50-53, 81-82] Therefore, we may decline to consider 17 this argument on appeal. See Janzen , 2007-NMCA-134, ¶¶ 14-18 (declining to 18 consider the [s]tate’s argument as to why a search was valid based upon theories that 198 were not provided to the district court). 1 Moreover, even if we were to consider the State’s argument, we would reject 2 it because the State has failed to convince us that an officer is justified in questioning 3 a passenger merely because the questioning takes place while the driver is being 4 investigated and the traffic violation is being processed. See Affsprung , 2004-NMCA5 038, ¶¶ 2, 19-21 (holding that officers were not justified in asking the passenger for 6 his identification and running a warrant check on the passenger even though this 7 investigation apparently occurred at the same time the driver was being investigated). 8 To hold otherwise would allow any two o fficers to question a passenger any time the 9 driver was stopped for a traffic violation with no regard for the constraints imposed 10 by the Fourth Amendment. One officer could investigate the traffic violation while 11 his partner would be free to engage in a fishing expedition involving the passenger, 12 as long as he completed his inquiry during the time it took to process the traffic 13 violation. 14 Finally, the State contends that the offi cers’ actions in requesting that Defendant 15 step out of the van did not require reas onable suspicion or “separate constitutional 16 justification.” [MIO 12] The State is correct that officers may request that a 17 passenger step out of stopped vehicle for reasons of safety. [MIO 12] See Arizona 18 v. Johnson , 129 S. Ct. 781, 786 (2009) (holding th at an officer may ask a passenger 199 to exit a vehicle based upon concerns regarding officer safety); Affsprung, 2004- 1 NMCA-038, ¶ 11 (noting that a “driver or passenger may also be detained under 2 certain circumstances out of an officer’s concern about weapons”). However, in this 3 case there is no suggestion thatthe officers had Defendant leave the van so he could 4 be independently questioned away from the driver due to reasons of officer safety. 5 See Affsrpung , 2004-NMCA-038, ¶ 20 (holding that, during a routine traffic stop in 6 which the defendant “w as present solely by virtue of the coincidence he was a 7 passenger in the vehicle” and in which there were no circumstances suggesting danger 8 due to weapons, there was nothing to “tip the balance in favor of public or officer 9 safety over individual Fourth Amendment privacy”). 10 CONCLUSION 11 In sum, we remain unconvinced that the single act of entering and exiting a 12 known drug house is enough to constitute reas onable suspicion that Defendant was 13 engaged in criminal activity. Therefore, for the foregoing reasons, as well as those set 14 forth in our notice of proposed disposition, we reverse the district court’s denial of 15 Defendant’s motion to suppress. 16 IT IS SO ORDERED. 17

___________________________________ 18 CELIA FOY CASTILLO, Judge 1910 WE CONCUR: 1

__________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

__________________________________ 4 RODERICK T. KENNEDY, Judge 5