This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 30,580 4 EDDIE MARTINEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Thomas A. Rutledge, 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 Jacqueline L. Cooper, Chief Public Defender 14 Kathleen T. Baldridge, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge. 192 Defendant, Eddie Martinez, was convict ed pursuant to a conditional plea for 1 possession of controlled substances, posse ssion of drug paraphern alia, and possession 2 of less than one ounce of marijuan a. He reserved his right to appeal the district court’s 3 denial of his motion to suppress (1) physicalevidence obtained in violation of his right 4 to be free from unreasonable s earches and seizures, and (2 ) incriminating statements 5 he made to law enforcemen t officers while he and the vehicle in which he was a 6 passenger were detained at th e secondary area of a sobriety checkpoint. On appeal, 7 Defendant contends that th e evidence against him was illegally obtained because law 8 enforcement officers impermissibly exte nded his detention without reasonable 9 suspicion and questioned him without advising him of his right against self10 incrimination. We conclude that during the course of a valid traffic stop of the vehicle 11 in which Defendant was a pa ssenger, law enforcement o fficers developed reasonable 12 suspicion to lawfully extend the detention of Defendant for investigative purposes and 13 that Defendant was not in cu stody when he made statements to the law enforcement 14 officers. We affirm. 15 BACKGROUND 16 For the background of this case, we rely on the factual findings of the district 17 court and supplement those findings with undisputed evidence fro m the record. That 18 evidence includes the testimony of the fourlaw enforcement officers who were the 193 only witnesses to testify at the evidentiaryhearing on Defendant’s motion to suppress 1 and who participated in the deten tion that Defendant now challenges. 2 At about 10:40 p.m. on May 5, 2009, a truck driven by Maxy Allen approached 3 a sobriety checkpoint between Artesia and Carlsbad. Allen had two male passengers 4 in the truck, her husband or significant other, Paul Tidwell, and Defendant. At the 5 checkpoint, Deputy Ron LeBoeuf made contact with Allen and requested her license, 6 proof of insurance, and registration. A llen provided her driver’s license, and Deputy 7 LeBoeuf testified that at that time, he noticed a New Mexico temporary registration 8 sticker in the window behind the driver that appeared to have been altered. 9 Based upon what appeared to be an altered sticker, Deputy LeBoeuf had Allen 10 pull the vehicle into the paved secondary area of the checkpoint on the side of the 11 highway where he again made contact withAllen. Deputy L eBoeuf asked Allen to 12 step out of the vehicle and observed that she was fidgety and s eemed very nervous. 13 Her hands were shaking, and she was talking fast. Deputy LeBoeuf testified that 14 because of Allen’s actions and the altere d temporary sticker, he thought the truck 15 might have been stolen. Deputy LeBoeuf asked Allen who owned the vehicle, and 16 Allen said it belonge d to her brother-in-law. Alle n had no explanation about the 17 altered temporary sticker and told Deputy LeBoeuf she did not know it had been 18 altered. 194 Deputy LeBoeuf asked Allen to stay at th e back of the truck and then went to 1 the cab to talk with Tidwell. Tidwell was seated in the center front seat, and 2 Defendant was seated to his right agains t the passenger door. Deputy LeBoeuf asked 3 Tidwell who owned the truck, and Tidw ell responded that his brother owned it. 4 Deputy LeBoeuf observed that Tidwell had droopy eyes, seemed to be sleepy, and 5 seemed to be under the influence of a depr essant such as heroin. Deputy LeBoeuf 6 asked Tidwell, “When was the last time you used [drugs]?” Tidwell responded that 7 he had used drugs a week and a half ago. The district court found Tidwell’s statement 8 was inconsistent with what Deputy LeBo euf testified he had been observing. 9 Deputy LeBoeuf also asked Tidwell wh ere they were coming from and what 10 they were doing, and Tidwell responded that they had gone to Artesia to pick up 11 Defendant. Deputy LeBoeuf then returned to speak to Allen and asked her where they 12 were coming from and what they had been doing. She said they had taken Defendant 13 to Roswell to meet with his girlfriend. 14 The district court found that at that poi nt Deputy LeBoeuf’s initial investigation 15 into the altered vehicle registration changed and that, as a result, Deputy LeBoeuf 16 asked Tidwell and Defendant to exit the truck to investigate further. Specifically, the 17 district court found that Deputy LeBoeuf had information to suspect drug use and that 185 his observations and contradictory statements from Allen and Tidwell led to that 1 reasonable conclusion. 2 Deputy LeBoeuf asked Tidwell to step to the front of the truck to talk to him 3 more and requested that Deputy Jones re move Defendant from the truck. Deputy 4 Jones testified that once Defe ndant got out of the truck, Defendant kept putting his 5 hands in and out of his poc kets and was acting very “s kittish.” Deputy Jones asked 6 Defendant to keep his hands out of his pockets because it created an officer safety 7 issue. The district court agreed and found that Defendant’s behavior created an officer 8 safety issue. In respons e to Defendant’s actions, Deputy Jones placed Defendant in 9 handcuffs and began to pat him down to determine if hehad weapons. Deputy Wall 10 came over, completed the pat down, and locatedwhat appeared to be a knife in the 11 pocket of Defendant’s shorts . Deputy Wall asked Defendant if it was a knife, and 12 Defendant said that it was. Deputy Wall re moved the knife and stuck to it was a bag 13 containing a green leafy substance that De puty Wall believed to be marijuana. He 14 then continued the pat down and located what he believed to be two marijuana joints 15 in Defendant’s socks. Deputy Wall informed Defendant that he was going to issue 16 him a citation for possession of a small am ount of marijuana, wrote the citation, 17 unhandcuffed Defendant, and told him to go over and stand to th e side while other 18 officers continued to investigate. 196 Deputy LeBoeuf testified that, at this point—based on his observation that 1 Tidwell appeared to be under the influen ce, the information that Defendant had 2 marijuana in his possession, the contradict ory statements, and the presence of two 3 backpacks on the floor of the truck—he decided to call for the canine unit from 4 Carlsbad. Deputy LeBoeuf testified that he believed the backpacks, which he 5 described as the kind that kids normally bring to school or you would bring on a day 6 trip, looked full and were inconsistent with the travel plans reported by Allen and 7 Tidwell. According to Deputy LeBoeuf, at the time he decided to call for the canine 8 unit, the truck and its occupants had been stopped for approximately five minutes. He 9 testified that the canine unit arrived about fifteen to twenty minutes later. 10 When Corporal David Whitzel and his can ine partner arrived, Corporal Whitzel 11 provided Deputy LeBoeuf with a consen t to search form. Deputy LeBoeuf 12 approached Allen with the form, and she gaveconsent to search th e vehicle. Corporal 13 Whitzel and his canine then searched the vehicle. In the course of the search, the dog 14 aggressively alerted by sc ratching and biting at a re d backpack. Deputy Jones 15 removed the backpack and took it to the tailg ate of the pick-up truck. One of the 16 officers asked whose backpack it was, and Defendant said it was his and that it 17 contained dirty needles. 187 Defendant was not in handc uffs at the time his bac kpack was searched, and he 1 made no efforts to leave. The officer s searched the backpack and found what 2 appeared to be illegal drugs and paraphernalia. Defendant identified the items. 3 Defendant did not challenge th e actual search of the bag. The district court found that 4 during the course of the search, Defendantwas not in custody b ecause Defendant was 5 no longer in handcuffs, and he had already been issued a non-traffic citation. 6 Defendant was arrested and ultimately charged with possession of controlled 7 substances, possession of drug paraphernalia, and possession of less than one ounce 8 of marijuana. 9 After the search of Defendant’s bac kpack was complete, Deputy LeBoeuf took 10 the registration sticker out, examined it, ran the vehicle identification number, and 11 learned the vehicle was not listed as stolen. Allen and Tidwell werereleased with the 12 vehicle. Deputy LeBoeuf testified that the entire stop took approximately forty-five 13 minutes. 14 Defendant moved to suppress on two grounds: (1) that his detention and 15 questioning by law enforcement officers exceeded the permi ssible scope of the inquiry 16 into the initial stop under both federal and state law; and, (2) that his statements to the 17 officers were obtained in violation of his right against self-incrimination. After an 18 evidentiary hearing, the district court deni ed the motion and concluded that the initial 198 stop was valid and that in the course of the stop, the officer observed and received 1 information that led to pursuing other matters such as drug possession. Defendant was 2 subsequently convicted pursuant to a cond itional guilty plea and reserved his right to 3 appeal the denial of his motion to suppress. He was sentenced and incarcerated. The 4 district court entered a judgment and order and set bond pending appeal. This appeal 5 timely followed. 6 DISCUSSION 7 Defendant Was Not Illegally Detained 8 Defendant first argues that his prolonged detention at the secondary area of the 9 sobriety checkpoint exceeded the permissi ble scope of inquiry for an altered 10 temporary registration sticker and that, th erefore, the fruits of the detention and 11 subsequent search of him and the backpackmust be suppressed. Defendant does not 12 challenge the validity of the checkpoint, th e legality of the initial stop, or Deputy 13 LeBoeuf’s direction of the truck into the secondary area. Accordingly, we understand 14 Defendant’s argument to be that the dete ntion was impermissibly expanded at the 15 secondary area of the checkpoint when Ti dwell was questioned about drug use and 16 then both Tidwell and Defendant were ordered out of the truck for further questioning. 17 Defendant contends that Deputy LeBoeuf s hould have continued to pursue the steps 18 necessary to investigate the altered temporary sticker and to gather the necessary 199 information to confirm or dispel his suspicion that the truck may have been stolen. 1 Defendant asserts that by que stioning Allen and Tidwell about their travel plans and 2 asking Tidwell about his drug use, Deputy LeBoeuf abandoned his investigation into 3 the altered temporary sticker and imme diately “launch[ed] a drug trafficking 4 investigation.” Defendant contends that these interactions impermissibly expanded 5 the lawful detention of the vehicle and its passengers, leading to his removal from the 6 truck and the subsequent pat down and search of his backpack. As a preliminary 7 matter, we note that contrary to the St ate’s assertions, even though Defendant was 8 only a passenger in the truck, he may properly contest the lawfulness of his detention 9 and seek to suppress evidence found as a result of that detention. See State v. Portillo , 10 2011-NMCA-079, ¶ 11, 150 N.M. 187, 258 P.3d 466 (observing that a defendant who 11 was a passenger in a vehicl e stopped by law enforcement had standing to challenge 12 his detention, and to the extent that th e defendant was illegally detained, he had 13 standing to seek the suppression of any evidence obtained as a result of that 14 detention), cert. denied , 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633. With this 15 framework in mind, we review the districtcourt’s denial of Defendant’s motion to 16 suppress. We begin with the appropriate standard of review. 17 Appellate review of a moti on to suppress presents a mixed question of fact and 18 law. State v. Leyva , 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861. We review 1910 the district court’s factual determinati ons under the substantial evidence standard, 1 viewing the facts in a light favor able to the prevailing party. State v. Ketelson , 2011- 2 NMSC-023, ¶ 9, 150 N.M. 137, 257 P.3d 957. We review th e application of the law 3 to the facts de novo. Id. 4 “It is well established that the initiation of a traffic stop constitutes a seizure of 5 the vehicle’s occupants.” Portillo , 2011-NMCA-079, ¶ 12. However, “[a]n officer’s 6 continued detention of an individual, while lawful at the outset, may become unlawful 7 if the officer unjustifiably expands the scope of the detention.” State v. Funderburg , 8 2008-NMSC-026, ¶ 14, 144 N.M. 37, 183 P.3d 922. “Continued detention of a driver, 9 or detention of passengers, for other investigative purposes, including investigatory 10 questioning, requires reasonable suspicion, proven through specific articulable facts, 11 that the driver or passenger has been or is engaged in a criminal activity other than the 12 initial traffic violation.” State v. Affsprung , 2004-NMCA-038, ¶ 11, 135 N.M. 306, 13 87 P.3d 1088; see Leyva , 2011-NMSC-009, ¶ 10 (“The scopeof the investigation may 14 be expanded where the officer has reasonabl e and articulable suspicion that other 15 criminal activity has been or may be af oot.” (internal quotation marks and citation 16 omitted)). Accordingly, in this case, wemust determine whether Deputy LeBoeuf had 17 reasonable suspicion to detain Allen, Tidw ell, and Defendant to investigate anything 18 more than the altered temporary registration sticker. 1911 At the outset, we note that Defendant moved to suppress the fruits of the 1 searches of himself and his backpack under both the Fourth Amendment of the 2 Federal Constitution and Article II, Sec tion 10 of the New Mexico Constitution. 3 Thus, we apply our interstitial approach, fi rst analyzing whether Defendant’s rights 4 were protected under the Fourth Amendment and, if not, then determining whether 5 Article II, Section 10 provides greater protections against unreasonable searches and 6 seizures in this case. Ketelson , 2011-NMSC-023, ¶ 10; see Leyva , 2011-NMSC-009, 7 ¶ 55 (noting that an officer’s actions in the course of a valid traffic stop will be 8 scrutinized differently under the Federal and New Mexico Constitutions, and 9 explaining our analysis under Article II, Section 10, which provides greater 10 protections than the Fourth Amendment). 11 1. No Fourth Amendment Violation 12 “The Fourth Amendment guarantees the right of the people to be free from 13 unreasonable searches and seizures.” Leyva , 2011-NMSC-009, ¶ 8. The focus of our 14 inquiry under the Fourth Amendment in th is case is whether, after making a valid 15 stop, the officer’s subsequent actions measurably extended the detention beyond the 16 time needed to investigate the circumstan ces that initially justified the stop. Id. ¶¶ 19, 17 21. “Whether a detention becomes unreasonably prolonged depends on whether the 18 police diligently pursued a means of investig ation that was likely to confirm or dispel 1912 their suspicions quickly, during which time it was necessary to detain the defendant.” 1 Id. ¶ 19 (internal quotation marks and citation omitted). An officer’s actions 2 subsequent to a valid stop are not reasonably related in scope to the circumstances that 3 caused the initial stop if he or she detains the occupant s of a vehicle beyond the time 4 needed to investigate the reason for the st op, unless he or she developed reasonable 5 suspicion of other criminal activity. Id. 6 In our Fourth Amendment analysis , we do not examine the content of 7 questioning by law enforcement. Id. ¶ 17. However, we will find a violation of the 8 Fourth Amendment when a detention is extended beyond the time reasonably needed 9 to complete the underlying justification of the stop due to questioning that is unrelated 10 to the initial stop and unsupporte d by reasonable suspicion. Id. ¶¶ 22-23. With these 11 principles in mind, when determining whether an officer’s conduc t was diligent in the 12 context of the Fourth Amendment, we asse ss whether the totality of the circumstances 13 of the entire detention indicate that the dur ation of the detention was reasonable. Id. 14 ¶ 22. 15 Defendant appears to make four arguments in support of his assertion that the 16 length of his detention—approximately five minutes—was unreasonable under the 17 Fourth Amendment. First, he contends that Deputy LeBoeuf’s initial questioning of 18 Allen and Tidwell impermissibl y extended his detention. Second, he argues that his 1913 detention was impermissibly extende d because Deputy LeBoeuf should have 1 immediately determined whether or not the truck was stolen rath er than inquire about 2 Allen and Tidwell’s travel pl ans. Third, he argues that Deputy LeBoeuf violated his 3 Fourth Amendment rights by conducting a pretextual drug investigation instead of 4 investigating the altered temporary sticker. Finally, Defe ndant appears to assert that 5 Deputy LeBoeuf’s investigation into whether a drug crime was being committed and 6 ordering Defendant out of the vehicle w ith Tidwell, resulting in an unlawful 7 expansion of the original stop. We take each of these arguments in turn. 8 To the extent Defendant argues that Deputy LeBoeuf’s questioning of Allen and 9 Tidwell impermissibly extended his detention and expanded the scope of the stop 10 because Deputy LeBoeuf lacked reasonable suspicion to investigate anything other 11 than whether the temporary sticker was altered, we disagree. Deputy LeBoeuf 12 testified that at the time he made contactwith Allen at the secondary area of the 13 checkpoint and requested she exit the vehicle to speak with him, he suspected that the 14 truck might have been stolen. Deputy LeBoeu f testified that he based this suspicion 15 on the altered temporary sticker, Allen’s fidgety and verynervous behavior, and the 16 lack of proof of ownership of the vehicle. Under the circumstances of this case, we 17 conclude that at the point Deputy LeBoeuf made contact with Alle n, he had reasonable 18 suspicion to investigate whether the truc k in which Defendant was a passenger may 1914 have been stolen. See Leyva , 2011-NMSC-009, ¶ 23 (“Reasonable suspicion must 1 consist of more than an officer’s hunch that something is amiss; it requires objectively 2 reasonable indications of criminal activity.”); see, e.g. , State v. Van Dang , 2005- 3 NMSC-033, ¶ 15, 138 N.M. 408, 120 P.3d 830 (concluding thatit was reasonable for 4 an officer to investigate whether a rental car, which he initially stopped for speeding, 5 was stolen when the driver’s name did not appear on the rental contract). Because 6 Deputy LeBoeuf had developed reasonable su spicion to believe the truck may have 7 been stolen, we measure the reasonableness of the length of the detention, not by the 8 time needed to determine whether the temporary sticker had been altered, but by the 9 time required to diligently investigate wh ether the truck was actually stolen. See 10 Leyva , 2011-NMSC-009, ¶¶ 18-19 (explaining that the length of a stop is limited by 11 the time required to investigate the initial justification of the stop unless the officer 12 develops reasonable suspicion of additional criminal activity). Defendant does not 13 argue that the actual length of time at this initial stage of the investigation was 14 unreasonable, and we conclude that it was not. 15 To the extent Defendant contends th at his detention was impermissibly 16 extended when LeBoeuf questi oned Allen and Tidw ell about their travel plans instead 17 of immediately determining whether or not the truck was stolen, we also disagree. 18 Our review of the record and the findings by the district court establish that Deputy 1915 LeBoeuf’s questions to Allen and Tidwell a bout their travel plans were made within 1 the first several minutes of the stop in the secondary area and were part of his 2 investigation into whether the truck was stolen. See Van Dang , 2005-NMSC-033, ¶ 3 15 (stating that where an officer had reasona ble suspicion to believe a vehicle may be 4 stolen, the officer’s questioning of the driverand the passenger about their travel plans 5 was a reasonable step in that investigation) . We conclude that these questions were 6 part of Deputy LeBoeuf’s diligent investigation into whether the truck was stolen and 7 were aimed to quickly confirm or dispel his suspicion; accordingly, his questioning 8 did not measurably extend Defendant’s de tention at the secondary area of the 9 checkpoint. See id. ¶ 5 (holding that the twenty-five minute detention of a vehicle and 10 its occupants was reasonable under the circumstances where the officer was 11 investigating what appeared to be the driv er’s unauthorized use of a rental vehicle). 12 To the extent Defendant asserts thatDeputy LeBoeuf prolonged his detention 13 and thereby violated his Fourth Amendmen t rights by “launch[ing] a drug trafficking 14 investigation” instead of investigating the altered temporary sticker, we conclude this 15 assertion is not supported by the record. It appears that Defendant bases this 16 contention on the one question LeBoeuf aske d Tidwell regarding when he last used 17 drugs. We do not scrutinize the subject matter of an officer’s questioning in our 18 Fourth Amendment analysis. Leyva , 2011-NMSC-009, ¶ 18. Th erefore, we must only 1916 determine whether this one question meas urably extended the duration of the stop. 1 See id . ¶¶ 21, 55; Portillo , 2011-NMCA-079, ¶¶ 19, 21. We conclude that Deputy 2 LeBoeuf’s one question to Tidwell about whether he was under the influence of 3 narcotics—asked in th e course of the investigation into whether the vehicle was 4 stolen—did not appreciably extend the length of the stop as a whole. See Portillo , 5 2011-NMCA-079, ¶¶ 5, 21 (holding that an o fficer’s questioning about narcotics and 6 weapons did not appreciably extend a valid traffic stop when the officer did not have 7 reasonable suspicion regarding contraband and asked the questions after issuing a 8 citation). 9 Defendant also appears to argue that if Deputy LeBoeuf’s investigation into 10 whether truck was stolen was valid, it nevertheless ripened into an unlawful detention 11 when Deputy LeBoeuf continued to detain th e driver and her passengers to investigate 12 whether a drug crime was being committed and when he ordered Defendant out of the 13 vehicle. Under the facts presented, wedisagree. During Deputy LeBoeuf’s brief 14 contact with Tidwell, he observed that Ti dwell appeared to be under the influence of 15 a depressant such as heroin. Deputy L eBoeuf testified that he had training and 16 experience in identifying people under the influence of heroin. Although Tidwell 17 denied being under the influence at that time, he admitted to having used a week and 18 a half earlier. Deputy LeBoeuf testified that this statemen t was inconsistent with his 1917 observations, and the district court agreed . We also conclude that based on his 1 observations, knowledge, and training, De puty LeBoeuf had developed reasonable 2 suspicion to believe a drug crime may have been occurring and to extend the detention 3 to investigate. See Leyva , 2011-NMSC-009, ¶ 23 (“Courts defer to the training and 4 experience of the officer when determin ing whether particularized and objective 5 indicia of criminal activity existed.” (i nternal quotation marks and citation omitted)). 6 Under the totality of the circumstances th at became known to Deputy LeBoeuf at the 7 secondary area of the checkpoint, we conc lude that he diligently conducted his 8 investigation into whether the truck was stolen , and in the course of that investigation, 9 developed reasonable suspicion to investigate whether a drug crime was occurring. 10 The short period of five or so minutes from the time the vehicle was ordered to the 11 secondary area until the time Defendant ex ited the vehicle was reasonable under the 12 Fourth Amendment. See id. ¶ 22 (“To determine whether questioning creates an 13 unreasonable detention, the pertinent inqui ry is whether the officer conducted the 14 investigation diligently .”). We determine that Defe ndant was not detained for a 15 prolonged length of time in violation of Fourth Amendment rights and now turn to 16 whether he is afforded any additional protection under the New Mexico Constitution. 17 2. No Article II, Section 10 Violation 1818 The key inquiry under both the Fourth Amendment and Article II, Section 10 1 is whether the government’s intrusion upon an individual’s liberty was reasonable. 2 Leyva , 2011-NMSC-009, ¶ 22; Ketelson , 2011-NMSC-023, ¶ 20. The overall 3 reasonableness of a search or seizure “depends on the balance between the public 4 interest and the individual’s interest infreedom from police intrusion upon personal 5 liberty.” Ketelson , 2011-NMSC-023, ¶ 20. In Leyva , our Supreme Court articulated 6 the standard to determine whether a deten tion by law enforcement during a traffic stop 7 was constitutionally reasonable: 8 Article II, Section 10 requires that all questions asked during the 9 investigation of a traffic stop be reasonably related to the initial reason 10 for the stop. Unrelated questions are permissible when supported by 11 independent reasonable suspicion, for reasons of officer safety, or if the 12 interaction has developed into a consensual encounter. 13 Leyva , 2011-NMSC-009, ¶ 55. We recognize that“an officer does not have to ignore 14 new information that becomes known to him after the initial stop[,]” and we consider 15 “the circumstances originally warranting the stop, informed by what occurred, and 16 what the officer learned, as the stop progressed.” State v. Sewell , 2009-NMSC-033, 17 ¶ 19, 146 N.M. 428, 211 P.3d 885 (internal quotation marks and citation omitted). 18 When determining whether an officer had reasonable suspicion to expand the scope 19 of a stop, we “must necessarily take in to account the evolving circumstances with 20 which the officer was faced” and find the detention reasonable if it “represents a 2119 graduated response to the evolving circumstances of the situation.” Funderburg , 1 2008-NMSC-026, ¶ 16 (alteration, internal quot ation marks, and c itation omitted). In 2 this context, Article II, Section 10’s requirement that an officer’s questions must be 3 reasonably related to the initial stop, or based on reasonabl e suspicion, “ensures that 4 investigating officers do not engage in ‘fishing expeditions’ during traffic stops.” 5 Leyva , 2011-NMSC-009, ¶ 55. 6 Defendant concedes that there was reas onable justification for Deputy LeBoeuf 7 to refer Allen to the secondary checkpoint to investigate whether the temporary 8 registration sticker wa s altered. However, Defendant contends that Deputy LeBoeuf 9 had no independent reasonable suspicion th at a drug crime was being committed and, 10 as a result, the expansion of the detention to question him about drugs was unlawful 11 under Article II, Section 10. See Funderburg , 2008-NMSC-026, ¶ 24 (stating that 12 “questions about drugs . . . are a separate and distinct line of questioning apart from 13 and outside the scope of the initial justifi cation for the stop, and must be supported by 14 a showing of reasonable suspicion” (int ernal quotation marks and citation omitted)); 15 see also Portillo , 2011-NMCA-079, ¶¶ 23-24 (holding that a defendant-passenger was 16 subjected to illegal detention where an o fficer’s conduct impermissibly expanded the 17 scope of the detention when, after st opping a vehicle for speeding, the officer 18 questioned the driver and pa ssenger about weapons and narcotics without reasonable 1920 suspicion). For the reasons that follow, we conclude that Deputy LeBoeuf had such 1 independent reasonable suspicion. 2 Our analysis of whether reasonable suspicion existed for an officer to expand 3 the scope of a detention to include questions about drugs is informed by whether a 4 particular officer’s training and experi ence “enhanced his ability to derive and 5 articulate particularized and objec tive indicia of criminal activity.” Van Dang , 2005- 6 NMSC-033, ¶ 16; see Leyva , 2011-NMSC-009, ¶ 60 (noting that the district court 7 appropriately gave weight to officer training and experien ce in its determination that 8 the officer had reasonable suspicion to ask about weapons). Here, as we noted above, 9 Deputy LeBoeuf testified that he had tr aining and experience in recognizing the 10 effects of illegal depressants, including heroin. Based on Deputy LeBoeuf’s training 11 and experience and his specific observations that Tidwell appeared to be under the 12 influence of a depressant such as heroin, wecannot say that the district court erred in 13 finding that Deputy LeBoeuf had reasonable suspicion to ask Tidwell about his drug 14

use. See State v. Candelaria , 2011-NMCA-001, ¶ 21, 149 N.M. 125, 245 P.3d 69 15 (holding that an officer was justified inasking a defendant whether he had been 16 smoking when the officer smelle d marijuana in the vehicle), cert. denied , 2010- 17 NMCERT-011, 150 N.M. 490, 262 P.3d 1143. Additionally, we conclude this one 18 question, which expanded the stop, but di d not in itself appreciably extend the 1921 detention, was a minimal intrusion when balanced against the public’s interest in 1 preventing drug use. See Funderburg , 2008-NMSC-026, ¶ 27 (stating that an officer 2 may “ask minimally intrusive questions to confirm or dispel” reasonable suspicion 3 “arising from the traffic stop, as long as the questions are reasonable and intrude on 4 a person’s liberty as little as possible unde r the circumstances” (internal quotation 5 marks and citation omitted)). To the exte nt Deputy LeBoeuf’s question to Tidwell 6 about his drug use expanded and extended the duration and scope of the detention as 7 to Defendant, we conclude the detention was reasonable under the circumstances and 8 represented a graduated response to the evolving situation. See State v. Duran , 2005- 9 NMSC-034, ¶¶ 38, 42, 138 N.M. 414, 120 P.3d 836 (concluding that an officer 10 permissibly expanded the sc ope of the stop after developing reasonable suspicion 11 based on the officer’s observations during the stop as well as the driver’s responses 12 to the officer’s questions), overruled on other grounds by Leyva , 2011-NMSC-009. 13 Defendant asserts that hi s removal from the truck vi olated his constitutional 14 rights either because Deputy LeBoeuf lacked reasonable suspicion that Defendant 15 himself was involved in criminal activity or because his removal impermissibly 16 extended his detention. Defendant does not develop this argument or provide 17 supporting authority; accordingly, we do not consider the issue here. See In re 18 Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (holding that an 1922 appellate court will not consider an issue if no authority is cited in support of the 1 issue). Nevertheless, havi ng held that Deputy LeBoeuf had reasonable suspicion to 2 investigate whether the truck was stolen and to suspect that Tidwell was under the 3 influence of heroin, Deputy LeBoeuf was s till conducting his investigation at the time 4 he asked Defendant to exit the vehicle. Whether Defendant was in the cab of the truck 5 or outside did not unduly extend or e xpand the length of the detention. 6 Defendant relies on State v. Ochoa , 2009-NMCA-002, 146 N.M. 32, 206 P.3d 7 143, to argue that Deputy LeBoeuf’s extended detention of Defendant was 8 impermissible because the basis for the detention was a “pretextual drug 9 investigation.” Defe ndant contends that Ochoa ’s reasoning should apply here, 10 asserting that Deputy LeBoeuf exceeded hi s authority by detaining Defendant on an 11 unsupported hunch of drug trafficking. In Ochoa , we held that a traffic stop is 12 pretextual, and thus violates Article II, Section 10, if the real purpose of the stop is 13 unsupported by reasonable suspicion or probable cause, or if the officer would not 14 otherwise have stopped the vehicle. Ochoa , 2009-NMCA-002, ¶ 40; see also State 15 v. Gonzales , 2011-NMSC-012, ¶ 3, 150 N.M. 74, 257 P.3d 894 (interpreting Ochoa 16 “to require a determination whether the real reason for the stop is supported by 17 objective evidence of reasonable suspicion”). Here, however, the parties agree that 1823 the initial stop and the initial detention at the secondary area of the checkpoint were 1 justified. Ochoaand Gonzales are therefore not applicable in this context. 2 The district court found that at the time Deputy LeBoeuf had Tidwell and 3 Defendant exit the truck, the officer’s observations and the information he had 4 received from the occupants of the truck le d him to reasonably expand his inquiry to 5 investigate his suspicion regarding drug us e. In light of the totality of the 6 circumstances known at the time Defendant got out of the truck, we affirm the district 7 court and conclude that the officer’s suspicions about wh ether the vehicle was stolen 8 and whether a drug crime was occurring werebased on specific articulable facts that 9 Deputy LeBoeuf learned over the course of the five minute stop. Defendant’s 10 detention at the point he exited the ve hicle was constitutionally sound under Article 11 II, Section 10. 12 After Defendant exited the vehicle, he was subjected to a pat down for officer 13 safety. In the course of the pat down, Deputy Wall discovered what, in his training 14 and experience, he believed to be mariju ana. Defendant doe s not challenge the 15 legality of the pat down but argues that the district court should have suppressed the 16 evidence of marijuana because it was the fru it of what at that time was an illegal 17 detention. Having held the detention of Defendant was not unduly prolonged and was 18 reasonable, we conclude that the distri ct court did not err in denying Defendant’s 1924 motion to suppress the fruits of the detenti on and subsequent search of Defendant and 1 his backpack. 2 It is uncontested that at the point Deputy LeBoeuf learned Defendant had 3 marijuana on his person, he developed additional reasonabl e suspicion to expand the 4 scope of the stop to investigate whether th e vehicle contained evidence of illegal drug 5 activity. See Funderburg , 2008-NMSC-026, ¶ 28 (concluding that the officer had 6 reasonable suspicion that evidence of a drug crime might be found in the vehicle when 7 the officer had actual knowledgeof drug activity by another occupant of the vehicle). 8 Defendant asserts that after the handcuffs were removed and hewas cited for the 9 marijuana, he was told to stand at the s cene and, therefore, was in custody during the 10 pendency of the drug investigation. Wenow examine whether Defendant was in 11 custody and whether he should have been given Mirandawarnings. 12 Defendant Was Not In Custody 13 Defendant argues that the district c ourt erred when it found Defendant was not 14 in custody at the time the canine unit s earched the car and law enforcement 15 subsequently questioned Defe ndant. Defendant contends that he was in custody for 16 the purposes of Mirandaand that law enforcement should have advised him of his 17 rights against self-incrimination before que stioning him about the red backpack and 18 its contents. Again, we begin with the standard of review. 1925 Mirandawarnings are required to protect a suspect’s Fifth Amendment rights 1 against self-incrimination when an individual is “subjected to the inherently 2 compelling pressures of cust odial police interrogations.” State v. Olivas , 2011- 3 NMCA-030, ¶ 10, 149 N.M. 498, 252 P.3d 722, cert. denied , 2011-NMCERT-003, 4 150 N.M. 619, 264 P.3d 520. “An officer’s obligation to administer Miranda 5 warnings arises only when a person is (1) interrogated while (2) in custody.” State v. 6 Wilson , 2011-NMSC-001, ¶ 48, 149 N.M. 273, 248 P.3d 315 (alteration, internal 7 quotation marks, and citation omitted). “Whether a defendant was subject to a 8 custodial interrogation . . . [is a] legal determination[] that we review de novo.” 9 Olivas , 2011-NMCA-030, ¶ 8. In reviewing th e district court’s ruling on Defendant’s 10 motion to suppress, we apply the substantial evidence standard to the factual findings 11 and view the facts in the light most favorable to the prevailing party. Id. “[W]e 12 indulge in all reasonable inferences in support of the district court’s ruling and 13 disregard all evidence and inferences to the contrary.” Id. (internal quotation marks 14 and citation omitted). Here, it is uncontested that the officers asked Defendant 15 questions that they knew were likely to e licit incriminating responses regarding drug 16 use and possession; therefore, the sole issu e we consider is wh ether Defendant was in 17 custody when questioned. 1826 “Custody is defined as either (1) formalarrest, or (2) a restraint on freedom of 1 movement of the degree associat ed with a formal arrest.” State v. McNeal , 2008- 2 NMCA-004, ¶ 10, 143 N.M. 239, 175 P.3d 333 (i nternal quotation marks and citation 3 omitted); Olivas , 2011-NMCA-030, ¶ 10. The test to determine whether an individual 4 was in custody is an objective one, and the only relevant inquiry is how a reasonable 5 person in the individual’s position would have understood his or her situation. Olivas , 6 2011-NMCA-030, ¶ 14. Not all detentions by law enforcement officers rise to the 7 level of custody, and the questioning of an individual during an investigatory 8 detention that is supported by an officer’s reasonable suspicion is generally not 9 considered a custodial interrogation subject to Miranda

. State v. Smile , 2009-NMCA10 064, ¶ 26, 146 N.M. 525, 212 P.3d 413, cert. quashed , 2010-NMCERT-006, 148 N.M. 11 584, 241 P.3d 182; see Armijo v. State ex rel. Transp. Dep’t , 105 N.M. 771, 773-74, 12 737 P.2d 552, 554-55 (Ct. App. 1987) (“The roadside questioning of a motorist 13 pursuant to a routine traffic stop does notconstitute custodial interrogation.”), but see 14 Olivas , 2011-NMCA-030, ¶¶ 12, 14-15 (holdi ng that the defendant was in Miranda 15 custody when he was handcuffe d and transported to the district attorney’s office, 16 interrogated, never told he was not under arrest or free to terminate the interview, and 17 his movements were restricted by officers because he was not allowed to leave the 18 interrogation room without police escort); State v. Wilson , 2007-NMCA-111, ¶ 19, 1927 142 N.M. 737, 169 P.3d 1184 (noting that, in somesituations, such as when an officer 1 uses handcuffs, puts the suspect in a police ve hicle, or uses force, an investigatory 2 detention can become the equivalent of custody such that the Mirandawarnings are 3 required). Unlike custodial interrogations, “i nvestigatory detentions, such as traffic 4 stops, do not implicate the Fi fth Amendment . . . since investigatory detentions are 5 generally public, temporary, and substantially less coercive than custodial 6 interrogations[.]” State v. Snell , 2007-NMCA-113, ¶ 12, 142 N.M. 452, 166 P.3d 7 1106 (internal quotation marks and citation omitted). Moreover, the fact that an 8 officer has focused his investigation on a particular suspect at the time of questioning 9 does not necessitate Mirandawarnings. State v. Swise , 100 N.M. 256, 258, 669 P.2d 10 732, 734 (1983). 11 In a case such as this, wh ere no formal arrest occurred prior to questioning by 12 law enforcement, we “engage in a fact-s pecific analysis of the totality of the 13 circumstances under which the questioning t ook place in order to decide whether the 14 custody requirement is met.” Olivas , 2011-NMCA-030, ¶ 10. Our Supreme Court has 15 identified factors to guide our inquiry, including “the purpose, place, and length of 16 interrogation, the extent to which the de fendant [was] confronted with evidence of 17 guilt, the physical surroundings of the interrogation, the duration of the detention, and 1828 the degree of pressure app lied to the defendant.” Id. (alteration, internal quotation 1 marks, and citation omitted); Wilson , 2011-NMSC-001, ¶ 48. 2 Defendant asserts that he was in custody at the time he was asked who the red 3 backpack belonged to and during the subse quent search of the backpack. Defendant 4 argues that he was in custody based on the fo llowing facts: he was detained at the 5 secondary checkpoint, late at night, after having been handcuffed, cited for possession 6 of marijuana, released from handcuffs, and told to stand to the side while the 7 investigation into the vehicle continued, and he was never told he was free to leave. 8 Defendant contends that this was the sort of “coercive atmos phere against which 9 Miranda was developed to protect.” Swise , 100 N.M. at 258, 669 P.2d at 734. The 10 State responds that Defendant was not in cu stody and that after he was released from 11 the handcuffs, he was just standing around watching the events unfold until the canine 12 unit arrived, and the dog alerted to the re d backpack. The St ate also argues that 13 Defendant was not in custody after the dog alerted to the red backpack because the 14 officers did not take any action with re gard to Defendant that would make a 15 reasonable person believehe was under arrest. 16 Defendant directs us to State v. Munoz , 1998-NMSC-048, 126 N.M. 535, 972 17 P.2d 847, State v. Nieto , 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442, and Olivas , 18 2011-NMCA-030, as determinative of whether he was in custody. In each of these 1929 cases, the defendants challenged a ruling that they were not in custody for Miranda 1 purposes at the time they made incriminati ng statements to the police. However, in 2 each case, the defendants cam e into contact with the po lice after law enforcement 3 sought them out for questioning, and the lo wer courts’ determination of whether the 4 defendants were subject to custodial in terrogation took into consideration the 5 defendants’ willingness to leave their homes and meet with law enforcement either in 6 a police vehicle or office. See Nieto , 2000-NMSC-031, ¶ 21 (holding that the 7 defendant was not in custody when the defe ndant was asked and agreed to accompany 8 officers to the station for questioning and was free to leave or terminate the interview); 9 Munoz , 1998

- NMSC-048, ¶¶ 3, 5, 44 (holding thatthe defendant was not in custody 10 when FBI agents went to the defendant’s home to speakwith him and before the 11 defendant got into the agents’ car, they expl ained he did not have to go with them and 12 that he was not under arrest and he was not restrained), but see Olivas , 2011-NMCA13 030, ¶¶ 11, 16 (holding that the defendant was in custody when he agreed to go to the 14 district attorney’s office for questioning but was handcuffed and transported in a 15 police vehicle and escorted by officers at all times). 16 Here, in contrast, Defendant’s contact with law enforcemen t arose from a valid 17 traffic stop at the sobriety checkpoint that evolved into a lawful detention to 18 investigate Deputy LeBoeuf’s reasonable susp icion that the truck was stolen and that 1930 the truck may contain evidence of illegal drugs. Because Defendant’s presence at the 1 secondary area was not voluntary, the appli cability of the cases cited by Defendant is 2 limited here. We consider a Mirandacase arising out of roadside investigatory 3 detention to assist us in determining whether the initial investigatory detention to 4 which Defendant was subject ripene d into a custodial interrogation. 5 In Snell , this Court explained the difference between a traffic stop and a 6 custodial interrogation. 2007-NMCA-113, ¶ 13. In that case, we said that “if a 7 motorist who has been detained pursuant to a traffic stop thereafter is subjected to 8 treatment that renders him in custody for pr actical purposes, he will be entitled to the 9 full panoply of protections prescribed by Miranda .” Snell , 2007-NMCA-113, ¶ 14 10 (internal quotation marks and citation omitted) . We reasoned that the conduct of the 11 police exerted the sort of coer cive pressure that sufficiently impaired the driver’s free 12 exercise of his privilege against self-inc rimination where the police threatened him 13 with arrest, physically escorted him to the police car, placed hi m in the back seat 14 where they left him until they returned to question him, and then questioned him while 15 he was locked in the back of the car orotherwise blocked from exiting the vehicle. 16 Id. Additionally, we noted that unlike Munoz , where the police questioning took place 17 in a vehicle in a public parking lot during the day, in Snell the questioning took place 18 after dark in a snowstorm that would haveimpaired visibility and prevented people 1931 driving by from seeing what was taking place in the police car. Snell , 2007-NMCA1 113, ¶ 21. 2 Defendant’s case is distinguishable from Snell . In Snell , the traffic stop rose to 3 the level of custodial interrogation becausethe defendant was confined in the back 4 seat of a locked police car on a night with poor visibility. Here, the detention took 5 place at a secondary area of a sobriety checkpoint, Defendant was never confined, and 6 Allen and Tidwell were both present when the canine searched the vehicle and the 7 officer asked who the bag belonged to. See State v. Javier M. , 2001-NMSC-030, ¶ 23, 8 131 N.M. 1, 33 P.3d 1 (reasoning that the defe ndant was not in custody because police 9 questioning took place in front of ten to fi fteen other suspects, so it was sufficiently 10 public). Additionally, here the secondary area of the checkpoint on the side of the 11 highway was well lit, and unlike the dark snowy night in Snell , police actions were 12 more likely to be visible to passing motorists. 13 Defendant contends that the citation for marijuana possession is a factor to 14 consider here. However, th e issuance of a citation does notelevate the investigatory 15 detention to custodial interrogation. See Javier M. , 2001-NMSC-030, ¶ 21. 16 Defendant points to the fact that he had beenhandcuffed, but he also concedes that at 17 the time of the search of the vehicle and subsequent questi oning, he was not in 18 handcuffs nor was he restrained by the offi cers in anyway. After the canine alerted 1932 to his backpack, we recognize that Defendant may have believe d that he could be 1 arrested. However, we have previously held that a defendant’s subjective belief as to 2 whether he would be arrested does not affect our conclusion as to whether the 3 defendant was in custody at th e time he made incriminating statements to the police. 4 Smile , 2009-NMCA-064, ¶ 31. 5 While we agree with De fendant that, under the circumstances, a reasonable 6 person in his position might not have felt free to leave the s econdary area of the 7 checkpoint, we are not persuaded that his free dom was restrained so as to rise to the 8 level of formal arrest. See Armijo , 105 N.M. at 773, 737 P.2d at 554 (“The fact that 9 the motorist may temporarily feel that he is not free to leave does not render him ‘in 10 custody’ for purposes of Miranda .”). Instead, at the time of the canine search and 11 thereafter, Defendant was not in custody but rather was subject to an investigatory 12 detention. See Wilson , 2007-NMCA-111, ¶ 18 (“An investigatory detention occurs 13 when an officer briefly detains and i nvestigates a person based on reasonable 14 suspicion of criminal activity.”). Af ter Deputy LeBoeuf developed reasonable 15 suspicion that evidence of criminal activitycould be found in th e truck, he summoned 16 the canine unit. We have previously held that the use of a drug dog to conduct a 17 narcotics investigation is a minimal intrusi on, particularly when balanced against the 18 government’s significant interest in prev enting the use and distribution of illegal 1933 substances. See State v. Robbs , 2006-NMCA-061, ¶ 22, 139 N.M. 569, 136 P.3d 570. 1 At the point the canine unit arrived, the truc k and its occupants had been detained for 2 about twenty-five minutes, a reasonable length of time under the circumstances. See 3 Robbs , 2006-NMCA-061, ¶¶ 23, 25 (holding th at a forty-minute detention while 4 waiting for a canine unit was permissible where the officers had reasonable suspicion). 5 We conclude that the seizure in this case di d not rise to the leve l of custody to trigger 6 Fifth Amendment protections. See McNeal , 2008-NMCA-004, ¶¶ 7, 10 (holding that 7 the defendant was seized, but not in custody, after being told to step off the bus on 8 which he was a passenger as part of a narcotics investigation and questioned about the 9 contents of his luggage). “The privilege against self-i ncrimination is not necessarily 10 implicated whenever a person is compelled in some way to cooperate in developing 11 evidence which may be used against him.” Armijo , 105 N.M. at 773, 737 P.2d at 554. 12 Accordingly, although Defendant was detained, he was not obligated to respond to the 13 officer’s questioning and, thus, there is no Fifth Amendment violation. See Javier M. , 14 2001-NMSC-030, ¶ 19 (“During such investig atory detentions, the detainee is not 15 obliged to respond and, therefore, there is no violation of the privilege against self16 incrimination.”). Unless a defendant is in custody, “[o]n the scene questioning does 17 not require advisement of Mirandarights.” Armijo , 105 N.M. at 774, 737 P.2d at 555; 18 see Javier M. , 2001-NMSC-030, ¶ 19 (“Police officers are not constitutionally 1934 mandated to forewarn citizens subject to inve stigatory detentions that they have the 1 right not to answer the officer’s questions.”). We hold the district court did not err in 2 denying Defendant’s motion to suppress the in criminating statements he made to the 3 police while subject to an investigative detention. 4 CONCLUSION 5 We conclude the district court’s denialof Defendant’s motion to suppress was 6 proper, and we affirm. 7 IT IS SO ORDERED. 8

__________________________________ 9 LINDA M. VANZI, Judge 10 I CONCUR: 11

_________________________________ 12 JAMES J. WECHSLER, Judge 13

TIMOTHY L. GARCIA, Judge (dissenting) 1435 GARCIA, Judge (dissenting). 1 I respectfully dissent in this case. Even viewing the facts in the light most 2 favorable to the State, reasonable suspicions did not exist for Deputy LeBoeuf to 3 expand the traffic stop that was originallybased upon an altered registration sticker 4 into an investigation for illegal drugs. Because the subsequent questioning, search, 5 and seizure of Defendant occurred after the illegal expansion of this traffic stop, 6 Article II, Section 10 of the New Mexico Constitution requires the suppression of the 7 narcotics seized from Defendant. 8 The majority correctly recognizes that during a routine traffic stop, reasonable 9 suspicion of other criminal activity may arise based upon the “evolving circumstances 10 facing an officer.” Sewell , 2009-NMSC-033, ¶ 22 (internal quotation marks and 11 citation omitted). In addition, the length of this particular detention was not 12 unreasonable, including the additional time De puty LeBoeuf used to expand his initial 13 inquiry into questions about drug use. See Van Dang , 2005-NMSC-033, ¶ 15. The 14 questioning about drugs occurred during the time frame that Deputy LeBoeuf was also 15 legitimately investigating the issue of the altered registration stic ker on the truck. It 16 is the scope of the detention that is atissue, and whether Deputy LeBoeuf had the 17 requisite reasonable suspicion to lawfully expand the scope of the investigation into 18 an inquiry about illegal drugs. 1936 Without reasonable suspicion, an expansion of a routine traffic stop into an 1 inquiry about drugs is a violation of De fendant’s rights under Article II, Section 10. 2 See Leyva , 2011-NMSC-009, ¶¶ 53-55. “[R]easonable suspicion . . . requires that 3 officers articulate a reason, beyond a mere hunch, for their belief that an individual 4 has committed a criminal act.” Funderburg , 2008-NMSC-026, ¶ 15 (internal 5 quotation marks and citation omitted). This requirement extends to “all questions 6 asked during the stop . . . [and] ensures that investigating officers do not engage in 7 ‘fishing expeditions’ during traffic stops.” Leyva , 2011-NMSC-009, ¶ 55 (citation 8 omitted). We use a “fact-based, case-by-cas e approach to determine what questions 9 are reasonably related to the initial justification for the stop and whether an officer had 10 reasonable suspicion to expand the scope of his or her search or seizure during an 11 investigatory stop.” Id. ¶ 54 (internal quotation marks and citation omitted). 12 It is not disputed that Deputy LeBoeu f had reasonable suspicion to investigate 13 the issues involving the altered registrati on sticker and the ownership of the truck. 14 The issue is whether the ab rupt expansion into questi ons about illegal drugs was 15 simply a “hunch” and a “fishing expediti on,” or whether Deputy LeBoeuf’s question 16 to Tidwell was grounded in a particularizedand objective basis for suspecting him of 17 criminal activity. See Funderburg , 2008-NMSC-026, ¶ 15. I cannot conclude that the 18 factual circumstances in this case estab lish a reasonable basis for Deputy LeBoeuf to 1937 shift the initial investigation and suddenly ask passenger Tidwell, “When was the last 1 time you used [drugs]?” 2 The majority relies upon the totality of the evolving circumstances known to 3 Deputy LeBoeuf as the basis to estab lish reasonable suspicion for the sudden 4 expansion of the investigation into questi ons about illegal drugs. Majority Opinion, 5 pp. 18-24. Deputy LeBoeuf testified that he had training and e xperience to recognize 6 certain characteristics of a person that mi ght be under the influence of depressants. 7 “Not specifically heroin, but we do get trai ning on stimulants or like depressants and 8 their effects and their characteristics as it would be on a person.” Based upon this 9 generalized training about “characteristic s” of a person on depressants, Deputy 10 LeBoeuf identified the totality of the circ umstances that established his objectively 11 reasonable basis to suddenly ask Tidwell about illegal drug use as follows: “Because 12 of his eyelids, because of his known history to local law enforcement as having used 13 or being in the drug business . . . [b]ased on previous knowledge of his actions, of his 14 history, plus his physical demeanor, his dr oopy eyes, his sleepy look, [s]o I asked him 15 that question.” 16 I disagree with the majority’s determination that reasonable suspicion of illegal 17 drug activity is established when an offi cer encounters a person with a known drug 18 use history, in the passenger seat of a truck near 11:00 p.m. at night, with droopy eyes 1938 and a sleepy look. I consider this inquiry a classic example of a fishing expedition 1 based upon Deputy LeBoeuf’s personal specu lation, guess, conjecture, and hunch. 2 First, it is a matter of common knowledgethat depressants are available in 3 numerous products sold over the counter and by prescription. Ev en if Tidwell was 4 taking a depressant, it would be speculati on to immediately assume, without asking, 5 that this characteristic reas onably translates into heroin use or any other illegal drug 6 activity. Second, it is also common knowledge that people are often sleepy around 7 11:00 p.m. To assume that Tidwell’s signs of droopy eyes or his sleepy look at that 8 hour of the night reasonably translates into illegal drug activity is also nothing more 9 than a hunch. Detective LeBoeuf’s hunch, whether correct or not, had nothing to do 10 with an altered registration s ticker or the desire to identif y the owner of the truck. If 11 this factual situation qualifies as reasonabl e suspicion that criminal drug activity is 12 afoot, then any passenger with a drug history can be questioned at a traffic stop about 13 illegal drugs when they look sleepy or drowsy late in the night. I cannot hold that 14 these circumstances establish an objectivel y reasonable basis to expand a traffic stop 15 into a inquiry about illegal drugs. 16 In conclusion, I do not concur with th e result reached by the majority in this 17 case. As a result, Defendant’s motion to s uppress the drugs seized at the traffic stop 1839 in this case should have been granted by the district court. 1

__________________________________ 2 TIMOTHY L. GARCIA, Judge 3