May 30, 2019- State of New Mexico v. Shawn Ray Turquoise, No. A-1-CA-36760

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36760
5 SHAWNRAYTURQUOISE,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
8 Robert A. Aragon, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	John J. Woykovsky, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Kathl~en T. Baldridge, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 	MEMORANDUM OPINION
19 VANZI, Judge.
20 	{1} 	Defendant Shawn Ray Turquoise appeals the district court's order denying his
21 	motion to suppress evidence obtained from a traffic stop on the ground that the stop
22 was not supported by reasonable suspicion. We affirm.
Court of Appeals of New Mexico
Filed 5/30/2019 11:08 AM

· 1 BACKGROUND
2 	{2} 	At approximately 2:00 a.m., New Mexico State Police Officer Wyatt Wilson
3 was driving behind Defendant on Interstate 40. After observing Defendant drift out
4 of his lane several times, Officer Wilson stopped Defendant for failure to maintain
5 his lane, in violation of NMSA 1978, Section 66-7-317 (1978), and ultimately
6 arrested him for driving while intoxicated (DWI), in violation of NMSA 1978,
7 Section 66-8-102 (2016). Defendant moved to suppress the evidence obtained from
8 the traffic stop, arguing that the initial stop violated the Fourth Amendment of the
9 United States Constitution and Article II, Section 10 of the New Mexico Constitution
10 because it was not supported by reasonable suspicion.
11 	{3} 	After the magistrate court denied the motion, Defendant entered a conditional
12 	guilty plea to DWI, reserving the right to appeal the denial of his motion to suppress.
13 	On appeal, the district court held a suppression hearing, at which Officer Wilson
14 testified to the following. As Officer Wilson was following Defendant's vehicle on
15 	the interstate, he observed Defendant's vehicle cross the right-side fog line two times
16 and then cross the center dotted line once. He also observed Defendant weaving
17 within his lane. Officer Wilson recalled that the interstate was dry and free of
18 	obstructions except for one pothole which Defendant appeared to avoid. He also
19 testified that traffic was "light to medium," and that he did not observe any cars pass
20 Defendant.
2

1 {4} 	Officer Wilson stopped Defendant for failure to maintain his lane. See § 66-
2 7-317(A) ("Whenever any roadway has been divided into two or more clearly
3 marked lanes for traffic ... a vehicle shall be driven as nearly as practicable entirely
4 within a single lane and shall not be moved from such lane until the driver has first
5 ascertained that such movement can be made with safety[.]"). Officer Wilson did
6 not believe he had reasonable suspicion that Defendant was impaired when he pulled
7 him over because, in his experience, there were several potential reasons_ why drivers
8 drifted out of their lanes, such as tiredness and medical issues. He explained, "Just
9 because I see this type of violation doesn't mean that this person is DWI. That comes
10 	... further during the investigation, that's when I determine ... if it is a DWI or
11 	not." In addition to Officer Wilson's testimony, the district court also admitted into
12 evidence Officer Wilson's dashcam video, which corresponded to Officer Wilson's
13 	testimony that Defendant weaved within his lane and crossed the right-side fog line
14 and center line multiple times within the course of approximately two minutes.
15 	{5} 	The district court denied Defendant's motion and entered findings of fact and
16 conclusions of law. The district court found that Defendant crossed out of his lane
17 three times. However, the district court found that "[n]o other vehicle was traveling
18 either in the lane alongside ... Defendant nor in the lane used by him during the
19 time depicted in the [dashcam] video[.]" Based on the undisputed absence of other
20 traffic, the district court concluded that Defendant did not violate Section 66-7-317
3

1 because Defendant's 	failure 	to 	maintain lane 	did not create 	a 	safety hazard.
2 Nonetheless, the court concluded that Defendant's driving "can raise reasonable
3 suspicion of impairment to the slightest degree even in the absence of a safety hazard
4 	created by the movement from one lane to an adjac~nt one." As such, the district
5 court denied Defendant's motion to suppress on the basis that the stop was supported
6 by reasonable suspicion of DWI. Defendant now appeals the denial of his motion to
7 suppress.
8 DISCUSSION
9 	Standard of Review
10 	{6} 	"Because suppression of evidence is a mixed question of law and fact, we
11 	apply a two-part review to the district court's denial of the motion to suppress." State.
12 v. Scharff, 2012-NMCA-087,, 8, 284 P.3d 447. "[W]e review the facts in the light
13 	most favorable to the prevailing party, deferring to the district court's factual
14 findings so long as substantial evidence exists to support those findings." State v.
15 Neal, 2007-NMSC-043,, 15, 142 N.M. 176, 164 P.3d 57. "Our review of a district
16 court's determination of whether reasonable suspicion existed is de novo based on
17 the totality of the circums~ances." State v. Leyva, 2011-NMSC-009,, 30, 149 N.M.
18 	435, 250 P.3d 861.
4

1 Officer Wilson Had Reasonable Suspicion to St~p Defendant for DWI
2 {7} 	"A police officer can initiate an investigatory traffic stop without infringing
3 the Fourth Amendment or Article II, Section 10 if the officer has a reasonable
4 suspicion that the law is being or has been broken." 1 State v. Martinez, 2018-NMSC-
5 007, ,T 10, 410 P .3d 186 (internal quotation marks and citation omitted). "[ A ]ppellate
6 courts will ·find reasonable suspicion if the officer is aware of specific articulable
7 facts, 	together 	with 	rational 	inferences 	from 	those 	facts, 	that, 	when 	judged
8 objectively, would lead a reasonable person to believe criminal activity occurred or
I
9 was occurring." State v. Dopslaf, 2015-NMCA-098, ,T 8, 356 P.3d 559 (internal
10 quotation marks and citation omitted). "The test [for reasonable suspicion] is an
11 	objective one. The subjective belief of the officer does not in itself affect the validity
12 of the stop; it is the evidence known to the officer that counts, not the officer's view
13 	of the governing law." State v. Munoz, 1998-NMCA-140, ,T 9, 125 N.M. 765, 965
14, P .2d 349. In other words, a stop is supported by reasonable suspicion if there exist
1
Besides generally citing Article II, Section 10, Defendant fails to develop any ·
argument that our analysis on this issue should differ under our state constitution.
"Thus, we assume without· deciding that both constitutions afford equal protection
to individuals against unreasonable seizures in this context, and we analyze the
constitutionality of the seizure under one uniform standard." State v. Ochoa, 2004-
NMSC-023, ,T 6, 135 N.M. 781, 93 P.3d 1286; see State v. Yazzie, 2016-NMSC-026,
,T 38, 376 P.3d 858 ("Although we have interpreted Article II, Section 10 to provide
broader 	protections 	against 	unreasonable 	search 	and 	seizure 	than 	the 	Fourth
Amendment 	in 	some 	contexts, 	we 	have 	never 	interpreted 	the 	New 	Mexico
Constitution to require more than a reasonable suspicion that the law is being or has
been broken to conduct a temporary, investigatory traffic stop[.]" ( citation omitted)).
5

1 facts to support the inference that a law has been or is being violated, even when the
2 officer believes that the facts support reasonable suspicion of a violation of a
3 different law. See State v. Anaya, 2008-NMCA-020, 'if'if 13-15, 143 N.M. 431, 176
4 P.3d 1163 (discussing New Mexico cases holding that if facts articulated by an
5 officer support reasonable suspicion, the stop can be upheld), abrogated on other
6 grounds as recognized by Dopslaf, 2015-NMCA-098.
7 {8} 	Defendant does not dispute the district court's factual findings that he crossed
8 out of his lane three times. Rather, he contends that Officer Wilson did not have
9 reasonable suspicion to stop Defendant because, as a matter oflaw, D·efendant could
10 not violate Section 66-7-31 7 absent other traffic alongside his vehicle and because
11 	"[Defendant] was capable of handling his car with safety, as evidenced by the district
12 court's findings and conclusions." He also argues that Officer Wilson's justification
13 	for the stop (i.e., the failure· to maintain lane violation) was a pretext for a DWI
14 investigation. The State, in tum, contends that Officer Wilson had reasonable
15 	suspicion to stop Defendant for DWI based on Defendant's weaving in and out of°
16 his lane. The State alternatively contends, under the right for any reason doctrine,
17 that Officer Wilson had reasonable suspicion to stop Defendant for failure to
18 maintain lane and that the stop was not pretextual. See State v. McNeal, 2008-
19 NMCA-004, 'if 2, 143 N.M. 239, 175 P .3 d 333 (stating that we may affirm the district
20 court if it is right for any reason). We agree with the State that the district court
6

1 properly found that Officer Wilson had reasonable suspicion to stop Defendant for
2 DWI, and we affirm its denial of Defendant's motion to suppress.
3 	{9} 	We begin by noting that, contrary to Defendant's assertions, the district court
4 did not find that Defendant was driving in a safe manner but rather that Defendant's
5 weaving did not create an immediate safety hazard because there were no other
6 vehicles travelling alongside Defendant. However, as the district court correctly
7 concluded, "[Defendant's driving] can raise reasonable suspicion of impairment to
8 the slightest degree even in the absence of a safety hazard created by the movement
9 from one lane to an adjacent one." DWI does not depend on whether Defendant's
10 driving created a safety 4azard to an identifiable third party, only that Defendant was
11 	less able to the slightest degree to handle his vehicle safely due to drinking. See §
12 	66-8-102(A) ("It is unlawful for a person who is under the influence of intoxicating
13 	liq:uor to drive a vehicle within this state."); State v. Gurule, 2011-NMCA-042,, 7,
14 	149 N.M. 599, 252 P.3d 823 ("In order to convict under [Section 66-8-102](A), a
15 	court must find that the defendant was less able to the slightest degree, either
16 mentally or physically, or both, to exercise the clear judgment and steady hand
17 necessary to handle a vehicle with safety to the driver and the public as a result of
18 	drinking the liquor." (internal quotation marks and citation omitted)); see also UJI
19 	14-4501 NMRA (listing essential elements for DWI). Thus, the fact that Defendant's
7

1 weaving did not endanger any other motorists is immaterial to the question of
2 whether an officer had reasonable suspicion of DWI.
3 	{IO} 	Regardless of Officer Wilson's testimony that he pulled Defendant over for
4 violating Section 66-7-317, Defendant's unexplained weaving was sufficient to raise
5 reasonable suspicion of DWI whether or not Defendant violated Section 66-7-317.
6 See State v. Hubble, 2009-NMSC-014, ~ 28, 146 N.M. 70,206 P.3d 579 ("[l]t is not
7 fatal in terms of reasonable suspicion if an officer_ makes a mistake of law when he
8 conducts a traffic stop; courts will still look objectively to the totality of the
9 circumstances surrounding the officer's decision to conduct the traffic' stop in order
10 to determine if he or she had reasonable suspicion."). Officer Wilson observed
11 	sufficient specific, articulable facts that would lead a reasonable person to believe
12 Defendant was driving while intoxicated. He observed Defendant cross the right-
13 	side fog line twice and cross the center dotted line once. When Defendant crossed
14 the center dotted line, he traveled for several yards with both left side wheels well
15 	into the other lane. Additionally, Officer Wilson observed Defendant weaving within
16 his lane for about two minutes. Officer Wilson also testified that the highway was
17 free 	of obstructions, the 	existence 	of which 	could have 	otherwise explained
18 Defendant's 	driving 	behavior. 2 We 	have 	previously 	held 	that 	an ·officer's
2Defendant claims the first crossing was the result of Defendant's attempt to
avoid a pothole. However, the district court did not find that any of the lane crossings
were the result of avoiding potholes. Indeed, our independent review of the dashcam
8

1 observation of motorists weaving in and out of traffic lanes may justify the initiation
2 of a traffic stop to determine whether the driver is intoxicated. See, e.g., State v. Ruiz,
3 1995-NMCA-098, 1 24, 120 N.M. 534, 903 P.2d 845 (holding that an officer's
4 "observations of [the d]efendant's car weaving" supplied reasonable suspicion to
5 initiate a traffic stop and to conduct a DWI investigation), abrogated on other
6 grounds by State v. Martinez, 2007-NMSC-025, 141 N.M. 713, 160 P.3d 894. Thus,
7 the 	district 	court properly 	determined that 	Officer 	Wilson's 	observations 	of
8 Defendant's weaving in and out of his lane, coupled with the rational inferences
9 therefrom, were sufficient .to establish reasonable suspicion of DWI.
10 	{11} 	The fact that Officer Wilson did not believe he had reasonable suspicion to
11 	stop Defendant for DWI because there were other possible reasons for Defendant's
12 driving does not change our conclusion. An officer's subjective belief will not
13 	invalidate a ·stop "if the officer is aware of specific articulable facts, together with
14 rational inferences from those facts, that, when judged objectively, would lead a
15 	reasonable person to believe criminal activity occurred or was occurring." Dopslaf,
video leads us to conclude that Defendant drifted out of his lane before the pothole,
only to enter back into the lane just in time to drive directly over the pothole. See
Martinez, 2018-NMSC-007, 1 12 ("[W]here the issue to be determined rests upon
interpretation of documentary evidence, this Court is in as good a position as the trial
court to determine the facts and draw its own conclusions." ( internal quotations and
citation omitted)). Nonetheless, even if Defendant's first lane crossing was justified
by avoiding a pothole, his weaving within his lane and other two unexplained
crossings are sufficient to establish reasonable suspicion of DWI.
9

1 2015-NMCA-098, , 	8 (emphases added) (internal quotation marks and citation
2 omitted); see Munoz, 1998-NMCA-140,, 9 ("The subjective belief of the officer
3 does not in itself affect the validity of the stop[.]"). Indeed, while there may have
4 been innocent explanations for Defendant's driving, "[r]easonable suspicion need
5 not rule out the possibility of innocent conduct." Yazzie, 2016-NMSC-026, , .22
6 (omission, 	internal 	quotation marks, 	and 	citation omitted); 	see also 	State 	v.
7 Hernandez, 2016-NMCA-008,, 17, 364 P.3d 313 ("We are not made aware of any
8 authority to support the notion that an investigatory stop requires law enforcement
9 officers to know ... that the owner of the subject vehicle was 'in fact' involved in
10 criminal activity. Again, reasonable suspicion does not deal with hard certainties,
11 	but with probabilities." (internal quotation marks and citation omitted)). Therefore,
12 under 	the 	totality 	of the 	circumstances, 	Officer Wilson's 	observations 	were
13 	sufficient to justify a traffic stop to determine whether Defendant was intoxicated
14 despite his erroneous belief to the contrary.
15 	{12} 	Given our holding, we need not address whether Officer Wilson also had
16 reasonable suspicion to stop Defendant for violating Section 66- 7-31 7. Furthermore,
17 as we hold that Officer Wilson had reasonable suspicion to stop Defendant for DWI,
18 which· Defendant alleges was the real reason for the stop, Defendant's pretext
19 argument also fails. See State v. Alderete, 2011-NMCA-055,, 11, 149 N.M. 799,
20 255 P.3d 377 ("[W]hile evidence obtained from a search incident to a pretextual stop
10

L will be suppressed, suppression is only required if the unrelated motive was not
2 supported by reasonable suspicion or probable cause." ( omission, internal quotation
3 marks, and citation omitted)).
4 CONCLUSION
5 	{13} 	For the foregoing reasons, we affirm the district court's order denying
6 Defendant's motion to suppress and remand for such further proceedings as may be
7 necessary.
8 {14} 	IT IS SO ORDERED.
9
10
11 	WECONCUR:
12 	~,t-bc13 	JE~ 	i:ATTRE
11