This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 29,327 9 LAUREN ASHLEY LUNDERVILLE, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Stephen Bridgforth, District Judge 13 Gary K. King, Attorney General 14 Farhan Khan, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Mary Barket, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 FRY, Chief Judge. 23 Defendant pleaded no contest to drivi ng under the influence of alcohol (DWI) 24 (first offense), reserving the right to appeal the district court’s denial of her motion to 252 suppress evidence. See NMSA 1978, § 66-8-102(C) (2007) (amended 2008 and 1 2010). On appeal, Defendant argues that officers were not justified in initially 2 detaining her and, in additi on, they were not justified in expanding the scope of the 3 investigation to ask her to perform field sobriety tests (FSTs). We hold that the 4 officers were justified in detaining De fendant to investigate whether she was 5 intoxicated. Furthermore, given that Offi cer Juan Gomez smelled alcohol while the 6 investigation was ongoing, he was authorizedto request that De fendant perform FSTs. 7 We therefore affirm the order denying Defe ndant’s motion to suppress and affirm her 8 conviction. 9 BACKGROUND 10 This case originally came before the district court as a bench trial, but 11 Defendant orally moved to suppress the evidence after Officer Ramon Rivera testified. 12 The parties agreed that the bench trial would be treated as a suppression hearing. 13 Officer Rivera testified as follows. He received a dispatch call that a Taco Bell 14 employee had called about a possible drunk driver seen going through the drive15 through. The employee stated that the car was driven by a female and was now 16 parked in the Taco Bell parking lot. Officer Rivera c ould not recall if the employee 17 described the vehicle. Offi cer Rivera and Sergeant Jus tin Dunivan responded to the 18 dispatch and approached the only vehicle in the parking lot, a silver Pontiac belonging 193 to Defendant. Officer Rivera explained toDefendant that he had received a call that 1 she might be intoxicated and asked her if sh e had anything to drink; she said she had 2 not. Officer Rivera testified that he did not smell alcohol or otherwise observe signs 3 of intoxication. He asked Defendant to submit to FSTs, and she consented. He also 4 asked for Defendant’s driver’s license and registration information which he took 5 back to his police vehicle. 6 Sergeant Dunivan arrived at approximately the same time as Officer Rivera and 7 within one to two minutes of the dispatch call. He testified that dispatch described the 8 vehicle as a green passenger vehicle with two female occupants. He stated that when 9 he arrived at the Taco Bell, he noticed that the only car inthe lot was a Pontiac Vibe, 10 which was gray or possibly greenish in color, depending on the lighting. Sergeant 11 Dunivan testified that he approached the passenger si de of the vehicle and did not 12 notice the smell of alcohol. 13 Officer Gomez, the DWI officer, also responded to the disp atch and arrived 14 approximately five minutes after Officer Rivera and Sergeant Dunivan while Officer 15 Rivera was in his squad car with Defendant ’s identification. Officer Rivera told 16 Officer Gomez that he could not smell al cohol, but Defendant’s vehicle was the car 17 referred to in the dispatch call. Officer Gomez testified thatas he approached 18 Defendant’s vehicle, he detected a slight odor of alcohol which was partially covered 194 by the smell of Taco Bell food. He asked De fendant if she had been drinking, and she 1 said she had not. Officer Gomez asked Defe ndant to submit to FSTs, and she agreed. 2 Defendant failed the FSTs. Sh e then submitted to a breath alcohol test that resulted 3 in readings of .12 and .13. 4 Defendant sought to suppress the evid ence, contending that Officer Rivera 5 lacked reasonable suspicion to request that she perform FSTs and to continue to detain 6 her. The district court denied the moti on to suppress because Officer Gomez detected 7 a slight odor of alcohol before making De fendant exit the vehicle to perform FSTs. 8 Defendant then entered a conditional no-contes t plea reserving her right to appeal the 9 denial of the motion to suppress. 10 STANDARD OF REVIEW 11 In reviewing the district court’s denialof a motion to suppress, we determine 12 “whether the law was correctly applied to the facts, viewing them in a manner most 13 favorable to the prevailing party.” State v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 14 119, 2 P.3d 856 (internal quotation marks and citation omitted). We defer to the 15 district court’s findings of fact to the extent that they are supported by substantial 16 evidence. Id. However, we “review the appli cation of the law to these facts, 17 including determinations of reasonable suspicion, under a de novo standard of 18 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 1956 DISCUSSION 1 When an officer stops an automobile to investigate a possible crime, we analyze 2 the reasonableness of the stop and ensuing investigatory detention in accordance with 3 the two-part test in Terry v. Ohio , 392 U.S. 1 (1968). State v. Duran , 4 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. We ask whether the stop was 5 justified at its inception and whether the officer’s actions during the stop were 6 reasonably related to circumstances that justified the stop. Id. In order for the stop 7 to be justified at its inception based upon a tip, we consider the totality of the 8 circumstances to determine wh ether the tip was sufficiently reliable to provide police 9 with reasonable suspicion that a crime was be ing or about to be committed, or whether 10 the tip was sufficient to indicate the possib ility of danger to the public thus justifying 11 an investigatory stop. State v. Contreras , 2003-NMCA-129, ¶ 7, 134 N.M. 503, 79 12 P.3d 1111. “A reasonable susp icion is a particularized suspicion, based on all the 13 circumstances that a particular individual, the one detained, is breaking, or has broken, 14 the law.” Jason L. , 2000-NMSC-018, ¶ 20. Reasonable suspicion must exist at the 15 beginning of the stop and cannot be based on facts that arise as a result of the 16

encounter. Id. 17 In determining whether the officers’ actions during the stop were reasonably 18 related to circumstances that justified the stop, the second part of the Terry test, we 197 note that “investigation beyond the scope of the initial traffic stop is justified only if 1 the officer can articulate specific and partic ularized factors that give rise to an 2 objectively reasonable suspicion that other criminal activity has been or may be 3 afoot.” State v. Prince , 2004-NMCA-127, ¶ 9, 136 N.M. 521, 101 P.3d 332. In 4 determining whether an officer had reasonabl e suspicion of other criminal activity, we 5 “must necessarily take into account the e volving circumstances with which the officer 6 [was] faced.” Duran , 2005-NMSC-034, ¶ 36 (internal quotation marks and citation 7 omitted). 8 Defendant Was Detained or “Seized” When Officer Rivera Asked for Her 9 Identification 10 Defendant devotes a significant portion of her brief in chief to her contention 11 that she was seized when o fficers approached her vehicle and began investigating her 12 for possible DWI because she was not free to leave. The State does not dispute that 13 Defendant was seized, at least at the point when Officer Rivera requested Defendant’s 14 identification. See State v. Taylor , 1999-NMCA-022, ¶ 15, 126 N.M. 569, 973 P.2d 15 246 (filed 1998) (recognizing that a driver is not free to leave while officers are in 16 possession of his driver’s license and registration materials and is seized during the 17 time in which the officer retains his license ). Therefore, we proceed to consider 18 whether the officers had reasonable suspici on to detain Defendant by asking her for 19 her registration and license and whether they had reasonable suspicion to request that 208 she perform FSTs. Cf. State v. Rubio , 2006-NMCA-067, ¶ 11, 139 N.M. 612, 136 1 P.3d 1022 (stating that traffic stops are not c onsensual encounters, but seizures of the 2 vehicle and its occupants and are therefore analyzed to determin e “whether the officer 3 made a valid investigatory stop; and . . . whether the officer’s actions during the 4 investigatory detention were reasonably related in scope to the circumstances that 5 initially justified the stop”); State v. Affsprung , 2004-NMCA-038, ¶¶ 16-19, 135 6 N.M. 306, 87 P.3d 1088 (rejecting the notion thata passenger would feel free to leave 7 during a routine traffic stop, particularlyafter being asked for identification and 8 therefore holding that the request for the pa ssenger’s identification is an investigatory 9 detention and must be supported by reas onable suspicion of criminal activity). 10 Preservation 11 Defendant contends that the officers lacked reasonable suspicion to detain her 12 or to ask her to perform FSTs. The State asserts that this issue was not preserved 13 because Defendant only argued that the stop was not supported by probable cause, not 14 that the officers lacked reasonable suspicion. It notes that probable cause is necessary 15 to justify a warrantless arrest while reasona ble suspicion justifies an investigatory 16 detention. See Jason L. , 2000-NMSC-018, ¶ 14 (“An arrest must be supported by 17 probable cause and an investigatory stop must be supported by reasonable 18 suspicion.”). 199 Our review of the transcript from th e suppression hearing makes it clear that 1 Defendant’s counsel specifically corrected her misuse of the phrase “probable cause” 2 during the hearing and substituted “reasonable suspicion.” Moreover, in claiming that 3 her continued detention after Officer Rivera failed to detect any odor of alcohol was 4 illegal, Defendant cited case law standing for the proposition that the officers needed 5 reasonable suspicion before requiring her to submit to FSTs, and the State directed its 6 arguments to refuting that contention. See generally Contreras , 2003-NMCA-129, 7 ¶¶ 8-21 (considering whether officers were justified in detaining the defendant to 8 investigate a possible DWI offense based upon an anonymous tip); State v. 9 Williamson , 2000-NMCA-068, ¶¶ 5-16, 129 N.M . 387, 9 P.3d 70 (considering 10 whether the officers had reasonable suspicion tocontinue to detainthe defendant after 11 administering an HGN test). The district court also noted that although Defendant 12 said “probable cause,” she meant “reasonabl e suspicion.” Therefore, despite the 13 erroneous use of “probable cau se,” Defendant sufficiently alerted the district court to 14 the substance of her argument that officers lacked reasonable suspicion to detain her 15 or to request that she submit to FSTs. See State v. Jernigan , 2006-NMSC-003, ¶ 10, 16 139 N.M. 1, 127 P.3d 537 (stating that the purpose of the preservation requirement is 17 “to alert the trial court to the defendant's argument”). 1810 Propriety of the Initial Detention 1 We note that Defendant’s arguments to th e district court do not clearly indicate 2 whether she is protesting the propriety of the initial detention as opposed to only 3 arguing that officers should have ceased the investigation once Officer Rivera failed 4 to detect any odor of alcohol or other indici a of intoxication. Nonetheless, we proceed 5 to analyze whether the officers were justif ied in detaining Defendant because for the 6 reasons that follow, the existence of reasonable suspicion at the initial detention 7 justified the subsequent investigation. Thus, we first consider whether Officer Rivera 8 and Sergeant Dunivan were justified in approaching Defendant’s vehicle and 9 temporarily detaining her based on the tip provided by the Taco Bell employee. 10 The employee told dispatch that he observed an impaired driver in a car 11 containing two females who were parkedand eating after going through the drive 12 through. Officers arrived only one to tw o minutes later, and Defendant’s car, 13 containing two female passengers who were eating, was the only vehicle in the lot. 14 The car described in the dispatch was green while Defendant’s car was silver, but 15 there was testimony that Defendant’s car appeared greenish, given the light in the 16 parking lot. 17 Based upon the information provided in the tip, the degree to which 18 Defendant’s car appeared to match that information, the fact that officers arrived 1911 within minutes of receiving the tip, and th e fact that Defendant’s car was the only 1 vehicle in the lot, the officers could reasonably conclude that De fendant’s vehicle was 2 the car referenced in the employee’s tip. Therefore, they had reasonable suspicion to 3 detain Defendant to investigate whether she had been drinking. See Contreras , 2003- 4 NMCA-129, ¶ 21 (holding that the testimony was sufficient to establish reasonable 5 suspicion because information was provi ded by an anonymous caller who “was a 6 reliable concerned motorist; the inform ation given was detailed enough for the 7 deputies to find the vehicle in question and confirm the description; and the caller was 8 an apparent eyewitness to the erratic driving” even though the officers had not 9 witnessed the erratic driving). 10 Defendant notes that the officers never spoke with the Taco Bell employee 11 before initiating contact with her. She claims that her vehi cle’s location in the general 12 area where suspected activity had allegedl y occurred is not sufficiently specific to 13 provide reasonable suspicion, especiallybecause a drive-through window of a fast 14 food restaurant is not a location where a vehicle is likely to remain for an extended 15 period of time. She therefore concludes that the anonymous tip provided by the Taco 16 Bell employee was not sufficiently reliable or corroborated to provide reasonable 17 suspicion. We disagree. 1812 As we previously observed, the Taco Bell employee who provided the tip 1 personally observed the impaired drivi ng. A citizen informant who personally 2 witnesses the apparent crime is consideredto be more reliabl e than other types of 3 informants and thus subject to less stri ngent verification requirements because such 4 informants have nothing to gain by providing false information. See id. ¶ 12 (noting 5 that courts have acknowledged “that a tip is more reliable if it is apparent that the 6 informant observed the details personally”); Taylor , 1999-NMCA-022, ¶ 8 (observing 7 that a tip from a “person who purports to bea witness” to a crime “may be presumed 8 reliable” (internal quotation marks and citation omitted)). Moreover, the tip 9 specifically stated that the suspected drunk driver had parked at th e Taco Bell, and the 10 officers arrived within minutes of recei ving the tip. Therefore, officers could 11 reasonably conclude that the only car in th e lot was the vehicle driven by the impaired 12 driver. Finally, given the information provided to the officers and the exigencies 13 presented by the possibility of an impaired driver on the roadway, the officers could 14 reasonably suspect that Defendant was th e impaired person who had gone through the 15 drive through and were justified in detaining her to confirm or dispel their suspicions. 16 See Contreras , 2003-NMCA-129, ¶ 21 (holding that, under the totality of 17 circumstances, the officer’s stop of the defe ndant's vehicle was reasonable in light of 18 the “exigency of the possible threat to public safety that a drunk driver poses”); State 1913 ex rel. Taxation & Revenue Dep't v. Van Ruiten , 107 N.M. 536, 538-39, 760 P.2d 1 1302, 1304-05 (Ct. App. 1988) (applying the standard used in criminal cases and 2 concluding that the officer had reasonabl e suspicion justifying the stop when the 3 dispatcher provided him with information that someone had calle d and reported seeing 4 a very intoxicated person leaving a store and describing the vehicle and the direction 5 of travel). 6 Expansion of the Initial Detention 7 Defendant contends that even if officer s were justified in initially confronting 8 her, there was no valid basis for expandi ng the scope of inquiry by asking Defendant 9 to perform the FSTs given that Officer Ri vera “confirmed” th at Defendant was not 10 the driver identified in the tip. She notes that neither Officer Rivera nor Sergeant 11 Dunivan observed any signs of intoxication, and thus had “dis pelled any reasonable 12 suspicion that she was the person complainedof [and] Officer Rivera should not have 13 asked her to submit to a FST.” We disagree. 14 It is well-established that once officer s legally stop a car, they are entitled to 15 request the driver’s license, registration, and proof of insurance as part of the 16 investigation. See State v. Reynolds , 119 N.M. 383, 388, 890 P.2d 1315, 1320 (1995) 17 (holding that after a valid investigatory stop, an officer is entitled to verify that the 18 driver is licensed and driving a car that is registered and insured); see also Taylor , 1914 1999-NMCA-022, ¶ 14 (holding that an offi cer making a valid stop is entitled to 1 verify that the driver is licensed and that the car is registered and insured). Thus, 2 Officer Rivera was entitled torequest and then verify Defendant’s identification as 3 part of his initial investigation. See id. ; Reynolds , 119 N.M. at 388, 890 P.2d at 1320. 4 While Officer Rivera was continuing his investigation by verifying Defendant’s 5 license, Officer Gomez arrived and detected the odor of alcohol. It was only at this 6 point, while Officer Rivera’s investigati on was continuing and after Officer Gomez 7 detected the odor of alcohol, that the sc ope of the detention was arguably “expanded” 8 to include the FSTs. See Williamson , 2000-NMCA-068, ¶ 9 (noting that the 9 administration of FSTs is a reasonable part of a DWI investigation and that where the 10 first officer stopped the suspect and the second officer arrived shortly after, both 11 officers could continue the investigation to dispel their suspicion that the suspect was 12 impaired). Given that Officer Gomez smelled alcohol, he was entitled to expand the 13 investigation to include administration of the FSTs. See Prince , 2004-NMCA-127, 14 ¶ 11 (recognizing that the purpose of an investigative stop can be expanded by 15 specific, articulable facts that cause an officer to reasonably suspect criminal activity). 16 Defendant cites Taylor in support of her contention that the officers were not 17 justified in requesting that she perform FSTs. We are not persuaded. In Taylor , the 18 first officer approached the defendant’s stopped car on suspicion of littering and 1915 larceny. 1999-NMCA-022, ¶ 2-3. After the defendant and his passenger denied 1 littering, the officer asked them for identif ication and returned to his squad car to 2 perform a wants and warrants check. Id. ¶ 3. While the first officer was running the 3 wants and warrants check, th e second officer approachedthe defendant and asked 4 whether he had guns, illegal drugs, or alcoholin his car, and the defendant said that 5 he did not. Id. ¶ 4. The officer then asked if hecould search the defendant’s car for 6 guns, alcohol, or illegal drugs, and the defendant agreed. Id. The search revealed 7 cocaine, which the defendant sought to suppress. Id. ¶¶ 4-6. 8 The Court first held that, based upon the informant’s tip, the officers had 9 reasonable suspicion to approach and detain the defendant to investigate possible 10 littering. Id. ¶¶ 11-12. Furthermore, once the officers stopped the defendant, they 11 were entitled to ask for the defendant’s licen se and registration and to perform a wants 12 and warrants check. Id. ¶ 14. This portion of the analysis in Taylor supports our 13 conclusion in this case that the officers had reasonable suspicion to initially detain and 14 investigate Defendant for suspected DWI and, as part of that inve stigation, to request 15 her license and identification and to return to the squad car to confirm the validity of 16 her license. See id. 17 In the second portion of Taylor , the Court held that, after investigating the 18 defendant for suspected litteri ng and larceny, the officers had no reason to investigate 1916 for drugs and alcohol. Id. ¶ 22. While suppressing the evidence of cocaine, the Court 1 also observed that “the subjects of drugs and alcohol could havecome within the 2 scope of the officers’ investigation if evidence of drugs and alcohol had become 3 apparent during their interacti ons with [the d]efendant.” Id. The alternative 4 recognized by the Taylor Court in dicta is precisely wh at happened in this case. See 5 id. Unlike in Taylor , in this case the subject of al cohol was the purpose of the initial 6 investigation, and alcohol was further implicated during the investigation when 7 Officer Gomez detected the odor of alc ohol, thereby justifying Officer Gomez’s 8 request that Defendant perform FSTs. 9 Given that the investigation was ongoing, we are not convinced that the district 10 court erred in finding reasonable suspicion based on Officer Gomez’s detection of a 11 slight odor of alcohol even though this wa s not detected until after Officer Rivera 12 initiated the detention. As previously disc ussed, the initial detention was justified by 13 the information provided in the Taco Be ll employee’s tip, and our case law does not 14 require a finding that the initial investigati on was complete or that Officer Rivera’s 15 initial suspicion of DWI was dispelled merelybecause he failed to detect an odor of 16 alcohol or other indicia of intoxication. See State v. Sewell , 2009-NMSC-033, ¶ 22, 17 146 N.M. 428, 211 P.3d 885 (citing to numerous cases standing for the proposition 18 that officers need not abruptly discontinue an investigation merely because of initial 1917 unsuccessful results), cert. denied , 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1 1055. Instead, the investigation remained ongoing as Officer Gomez approached 2 Defendant’s vehicle and detected the odor of alcohol. See Taylor , 1999-NMCA-022, 3 ¶¶ 20-21 (recognizing that an officer may “pur sue matters that arise during the course 4 of the stop which cause the officer reasonable suspicion”). 5 In closing, we recognize that an “offi cer’s investigation of any reasonable 6 suspicion must proceed diligently.” Williamson , 2000-NMCA-068, ¶ 8. Moreover, 7 “[a]n officer’s continued detention of an i ndividual, while lawful at the outset, may 8 become unlawful if the officer unjustifiabl y expands the scope of the detention.” State 9 v. Funderburg , 2008-NMSC-026, ¶ 14, 144 N.M. 37 , 183 P.3d 922. However, our 10 review of the record in this case fails to indicate that Defe ndant was delayed beyond 11 the time necessary to do a check on her li cense and registration until Officer Gomez 12 detected the odor of alcohol. At thatpoint, Officer Gomez was justified in 13 administering the FSTs. 1418 CONCLUSION 1 Based upon the foregoing, we affirm the district court’s order denying 2 Defendant’s motion to suppress and affirm Defendant’s conviction. 3 IT IS SO ORDERED. 4

5 CYNTHIA A. FRY, Chief Judge 6 WE CONCUR: 7

8 JONATHAN B. SUTIN, Judge 9

10 LINDA M. VANZI, Judge 11