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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,142 4 TASHA BROWN, 5 Defendant-Appellant, 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Brett Loveless, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Sri Mullis, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Sergio J. Viscoli, Assi stant Appellate Defender 16 Albuquerque, NM 17 for Appellant 18 MEMORANDUM OPINION 19 FRY, Judge. 202 {1} Following entry of a conditional guilty plea of DWI, Defendant appeals the 1 denial of her motion to suppress eviden ce obtained as a result of a traffic stop 2 purportedly based on her failure to signal a lane change. For the reasons that follow, 3

we reverse. 4 BACKGROUND 5 {2} Defendant was charged with DWI (first offense), failure to produce a driver’s 6 license, and a turn signal violation pursuant to NMSA 1978, § 66-7-325 (1978). 7 When the metropolitan court denied De fendant’s motion to suppress evidence 8 obtained during what Defendant maintained was an illegal stop, Defendant entered a 9 conditional guilty plea to the charge of DWI and appealed to the district court. The 10 district court affirmed the ruling of the metropolitan court, and this appeal followed. 11 We include additional background facts in our analysis. 12 DISCUSSION 13 {3} Defendant argues that Officer Justin Hunt did not have reasonable suspicion to 14 initiate a traffic stop of Defendant’s vehicl e. Review of an order granting or denying 15 a suppression motion is a mixed question of law and fact. State v. Anaya , 2008- 16 NMCA-020, ¶ 5, 143 N.M. 431, 176 P.3d 1163. We view the facts “in the light most 17 favorable to the prevailing party and defer to the [trial] court’s findings of fact if those 183 findings are supported by substantial evidence.” Id. We review de novo the 1 application of the law to the facts. Id. 2 {4} In order to initiate a traffic stop, a poli ce officer must have reasonable suspicion 3 of illegal activity. Id. ¶ 6. “Reasonable suspici on must be based on specific 4 articulable facts and the rational inferences that may be drawn from those facts.” Id. 5 (internal quotation marks and citation omitted). 6 {5} At the suppression hearing, Officer Hunt testified that on August 22, 2009, at 7 about 2:34 a.m., he was traveling westbound in the center lane on Montgomery just 8 east of Carlisle in Albuquerque. Defendant ’s vehicle was ahead of him by three to 9 four car lengths, also in the center lane . Officer Hunt saw Defendant’s vehicle 10 abruptly move from the center lane to the le ft lane, but he saw nothing in the roadway 11 that would have caused the movement. Because Defendant never made a turn signal, 12 Officer Hunt initiated a traffic stop and c ited Defendant for an unsafe lane change. 13 At the time of the lane change, there were no cars directly in front of or behind 14 Defendant’s vehicle. 15 {6} The applicable statute provides: 16 A. No person shall . . . move rightor left upon a roadway unless and 17 until such movement can be made with reasonable safety. No person 18 shall so turn any vehicle without gi ving an appropriatesignal in the 19 manner hereinafter provided in the event any other traffic may be 20 affected by such movement

. 214 Section 66-7-325(A) (emphasis added). Our Supreme Court interpreted the same 1 statute and explained that it has two elements “that must be satisfied in order for its 2 mandate to be triggered: (1) there must be other ‘traffic’ (2) that ‘may be affected’ by 3 the motorist’s turn.” State v. Hubble , 2009-NMSC-014, ¶ 11, 146 N.M. 70, 206 P.3d 4 579. 5 {7} Defendant argues that the State did not meet its burden to establish that Officer 6 Hunt had available to him specific, artic ulable facts warranting a reasonable person 7 to believe that Defendant was breaking or had broken the law codified in Section 66- 8 7-325. She maintains that Officer Hunt ne ver testified that there was traffic on the 9 roadway at the relevant time that may have been affectedby her failure to signal the 10 lane change and, consequently, Officer Hunt did not articulate a basis for reasonable 11 suspicion. 12 {8} In light of our case law interpreting th e applicable statute, we agree with 13 Defendant. This Court first addre ssed the lane change statute in Anaya , where the 14 officer conceded that he understood Secti on 66-7-325(A) to require the use of a turn 15 signal under all circumstances stated in the statute. Anaya , 2008-NMCA-020, ¶ 3. 16 After citing the defendant for failing to signal a right turn at a green light, the officer 17 “learned that the failure to signal is not a per se infraction and is not a violation, unless 18 that failure could have affected traffic.” Id. Significantly, “[t]he officer did not testify 195 that he, in his patrol car, was affected by the right turn.” Id. Because the officer 1 believed that failure to signal was a per se violation, he initiated the traffic stop on the 2 basis of a mistake of law. Id. ¶ 17. If he had articulated facts supporting reasonable 3 suspicion on another basis, the stop could have been upheld. Id. ¶ 15. But because 4 the officer testified that there were no other vehicles in the area atthe time of the stop 5 and because he failed to testif y that he had been affectedby the defendant’s failure to 6 signal, there were no facts supporting violation of the applicable statute. Id. ¶ 19. 7 {9} The present case is similar to Anaya . Officer Hunt testified that there were no 8 vehicles directly in front of or behind Defe ndant’s vehicle, and he did not testify that 9 there was traffic that may have been affected by Defendant’s failure to signal. 10 Therefore, under Anaya , Officer Hunt did not articulate facts supporting reasonable 11 suspicion to stop Defendant’s car. 12 {10} The State argues that our S upreme Court’s decision in Hubblesupports the view 13 that the stop was supported by reasonable suspicion. In Hubble , the Court affirmed 14 the denial of the defendant’s motion to suppress, which was based on a traffic stop 15 prompted by the alleged violation of the same statute at issue in the present case. 16 2009-NMSC-014, ¶¶ 1-2. However, unlike the circumstances in Anayaand in the 17 present case, the officer in Hubbleapparently testified that“he, while driving his 18 vehicle on the highway, was ‘traffic,’ and th at he ‘may [have b een] affected’ by [the 196 d]efendant’s turn.” Id. ¶ 32. “[I]t is the evidence know n to the officer that counts” in 1 determining whether reasonable suspicion exists. Id. ¶ 8 (internal quotation marks and 2 citation omitted). The absence of testimony regarding traffic that may have been 3 affected by Defendant’s failure to signal eliminates the basi s for the traffic stop in this 4

case. 5 {11} The State argues that we must defer to the metropolitan court’s finding that 6 Officer Hunt was “other traffic” that may have been affected, but we are not 7 persuaded. The metropolitan court never made such a finding and, indeed, the court 8 stated that “the higher courts of this st ate held that a turn signal violation can be 9 upheld even if nobody else was affected by the signal.” The court therefore 10 misapprehended the applicable law. Furthermore, even if the metropolitan court’s oral 11 comments at the suppression hearing could somehow be construed as a finding that 12 Officer Hunt was traffic that may have b een affected, there wa s no evidence in the 13 record to this effect. 14 {12} The State maintains that the metropolitan court could infer that Officer Hunt 15 was other traffic that may have been affected. While reasonable inferences can 16 provide support for a traffic stop, see State v. Flores , 1996-NMCA-059, ¶ 7, 122 N.M. 17 84, 920 P.2d 1038 (explaining that “[r]easonabl e suspicion must be based on specific 18 articulable facts and the rational inferen ces that may be drawn from those facts”), 197 those inferences must be based on facts available to the officer. See Hubble , 2009- 1 NMSC-014, ¶ 8 (stating that courts “objec tively examine whether the facts available 2 to the officer warrant the officer, as a person of reasonable caution, to believe the 3 action taken was appropriate”). If the officer does not testify to the existence of facts 4 supporting the foundational elements of a lane change violati on under Section 66-7- 5 325(A)—i.e., the existence of traffic that may be affected by the lack of a turn 6 signal—then there are no facts from whic h reasonable inferences may be drawn. 7 Here, Officer Hunt testified that there wereno other vehicles besi des his patrol car in 8 the area near Defendant’s car and that his car was three to four car lengths behind 9 Defendant’s. And he never testified that Defendant’s failure to signal may have 10 affected him. As a result, there was no basis on which to conclude that Defendant was 11 breaking or had broken the law. 12 CONCLUSION 13 {13} For the foregoing reasons, we reverse the denial of Defendant’s motion to 14 suppress and remand to the metropolitan court for proceedings consistent with this 15 Opinion. 16 {14} IT IS SO ORDERED. 17

18 CYNTHIA A. FRY, Judge 198 WE CONCUR: 1

2 RODERICK T. KENNEDY, Chief Judge 3

4 M. MONICA ZAMORA, Judge 5