April 01, 2010 – State of New Mexico v. Eric K., No. 28,583

CORRECTION PAGE: Insert “Carlos Ruiz de la Torre, Assistant Appellate Defender” before “Santa Fe, NM”. Filed 4/1/10, S-Bu-Fy.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: April 1, 2010
NO. 28,583
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ERIC K.,
Child-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Sandra A. Price, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Navin H. Jayaram, Assistant Appellate Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	This is another Fourth Amendment seizure case that arrives at our doorstep for
development of the law of reasonable suspicion involving an extended detention of
a person on foot who happens to be in the area of possible criminal activity reported
in an anonymous 911 call. 	Upon being dispatched to an area of reported criminal
activity, a police officer attempted an encounter with Eric K. (Child) and a companion
as they were about to enter a Laundromat located in the vicinity of a reported crime.
Child first ignored the officer’s summon and entered the Laundromat but then
complied upon the officer’s second summon, after which the officer on more than one
occasion told Child to remove his hands from the pockets of his jacket. After Child’s
hands were out of his jacket pockets, the officer noticed something about the pockets
that indicated to the officer that Child may have a weapon. The officer conducted a
patdown and discovered drug paraphernalia, drugs, and a weapon. 	After he was
arrested and charged, Child sought suppression of the evidence on the ground he was
seized without the requisite reasonable suspicion. The district court denied Child’s
motion to suppress as to the weapon and the drug paraphernalia. We reverse.

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BACKGROUND
{2} 	A 911 caller who identified himself as Johnny Smith reported that someone,
referred to in the conversation with dispatch as “she,” pulled a gun and took his
money apparently during a drug transaction in the vicinity of Tibbetts Middle School
in Farmington, New Mexico. 	When the 911 call was suddenly dropped, dispatch
called the reporting party back asking for Johnny Smith, and a female named “Keisha
Red” answered, indicated that she was talking on a cell phone, and stated that “There’s
no Johnny here” and that “[h]e left walking down the street.”
{3} 	The dispatcher relayed information to Officer Mark Gaines. The information
relayed was that there was an “armed subject” in the area of the school and named
“Johnny Smith” as the party who reported to dispatch that someone just pulled a gun
on him when “buying Code 12.” The dispatcher did not mention that the reporting
party indicated that the assailant was female. The officer testified that he had no other
description of the 911 caller, had no description of the person with the gun, and did
not have a specific location where the reported incident occurred when he proceeded
to the area. It was mid-afternoon on a day when the school was closed for Christmas
break.
{4} 	Approximately two blocks from the school, Officer Gaines observed two males

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walking toward the back door of a Laundromat. There were a few other people in the
Laundromat parking lot but “nobody walking.” The officer was looking for people
on foot “that could be a danger.” The officer was concerned about community safety
given the report that someone had pulled a gun on someone, and the officer intended
to ask the two males if they knew anything about what had happened, to see if they
had heard or seen anything, and to ascertain if they might be a suspect. 	The two
looked “a little bit nervous” to the officer, and he decided to contact them without
really knowing “where it was gonna go at that point.”
{5} 	When they saw the officer, the two persons moved quickly to the Laundromat,
whereupon the officer hollered for them to talk to him. One of the two persons, Child,
darted quickly into the Laundromat; his companion, whom Child testified was his
cousin, approached the officer. The officer “yelled-hollered-asked” Child to come out
and to come over to talk to the officer, and Child came out of the Laundromat. The
officer saw nothing incriminating in the conduct of the two at this point.
{6} 	In answer to the State’s question whether he saw anything in Child’s behavior
that he thought was suspicious, the officer testified that “it was a little strange that as
. . . they were on the south side of the Laundromat approaching the Laundromat from
the east, . . . as I pulled up . . . coming from the west toward[] the east, they saw me

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[and] they began immediately walking to the back of the Laundromat. . . . Nothing
real suspicious at that time but it is one of those things that makes you say well maybe
I should talk to these people. . . . Nothing incriminating, but possibly suspicious.”
The officer nevertheless thought Child “appeared to be acting nervous initially just by
running” into the Laundromat and that Child appeared “a little more nervous” as the
officer began talking to him, which added to the officer’s suspicions. Because Child
and his companion had their hands in the pockets of their jackets, for safety the officer
asked them both to show their hands. The companion complied, but Child did not,
and the officer started to wonder why Child was not pulling his hands out of his
pockets. Officer Gaines again asked Child to pull his hands out but Child pulled out
only his left hand, which seemed strange to the officer. The officer took a step closer
to Child, and Child immediately took his right hand out. The officer noticed that the
right side of Child’s jacket was hanging lower than the other side, indicating
something heavy in the front jacket pocket.
{7} 	For his safety, the officer approached Child and patted the pocket for a weapon
and he immediately recognized what he knew was a revolver in the jacket pocket. He
asked Child what was in the pocket; Child began stuttering and could not answer. The
officer pulled out the revolver and continued a patdown for any additional weapons.

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During the continued patdown, a large glass pipe which the officer recognized as a
marijuana pipe fell out of Child’s pocket. The officer asked Child where the drugs
were, and Child said they were in his front pants pocket. The officer asked if he could
retrieve them and he pulled marijuana from Child’s pants pocket.
{8} 	The State filed a petition alleging that Child was a delinquent child and
charging Child with unlawful possession of a handgun by a person less than nineteen
years, possession of marijuana one ounce or less, and use or possession of drug
paraphernalia. Child moved to suppress the evidence obtained from the search. Child
asserted that the officer had no legal basis on which to stop him and that the patdown
search was a direct result of an illegal seizure.
{9} 	In its response, the State argued that the officer did not need reasonable
suspicion to stop Child and to frisk him. The State also argued that the officer had
reasonable and individualized suspicion based on the facts that “[t]he juveniles were
in the area where a crime had been reported and they ran from Officer Gaines when
Officer Gaines tried to approach them.” Somewhat differently, in the hearing on the
motion to suppress, the State argued that the officer had reasonable suspicion to stop
Child based on the information the officer had been given by dispatch, and he had
reasonable suspicion to conduct a patdown for weapons based on Child’s nervous,

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evasive, and suspicious behavior.
{10} 	Child testified at the suppression hearing. He stated that he was playing X-Box
at his brother-in-law’s house. 	He was waiting for his mother to pick him up. 	His
mother did not arrive, and Child and his cousin walked to the Laundromat to call
Child’s mother from a pay phone to come pick him up. The phone was in the back of
the Laundromat, and Child typically entered the Laundromat at that location. He did
not see the police until he walked out of the Laundromat. Upon exiting the building,
Child saw three police cars in front of the building. Child said he was not asked any
investigative questions before Officer Gaines patted him down and discovered the
revolver, marijuana, and marijuana pipe. 	In rebuttal testimony, Officer Gaines
testified that he was the only officer at the Laundromat until after he retrieved the gun
from Child’s pocket.
{11} 	Following the testimony and counsel’s argument at the hearing on Child’s
motion to suppress, the court indicated that the officer’s initial contact with Child was
appropriate and justified based first on the report of a gun in the area and based also
on having observed Child and the other person as the only people walking in the area
followed by Child’s evasive behavior upon seeing the officer. The court stated that
the patdown was reasonable considering Child’s continued evasive behavior in

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refusing to show his hands combined with the officer’s observation of Child’s jacket
hanging low after Child did finally remove both hands.
{12} 	Following the hearing, Child agreed to admit to the charge of use or possession
of drug paraphernalia, reserving his right to appeal the court’s decision on his motion
to suppress. Not long afterward, Child filed a motion to reconsider. In his motion,
Child discussed circumstances relating to the 911 call, particularly stressing the fact
that the call was from an anonymous caller who identified a female as the person who
pulled the gun on him and arguing that the information in the call was insufficient for
the police to suspect Child was involved in the incident. 	Child also argued that
“Officer Gaines’ investigatory seizure of the Child, after merely observing . . . Child
quickly enter the rear entrance of the Laundromat was not enough to establish
reasonable suspicion that . . . Child was or had been engaging in any criminal
activity.”
{13} 	The court did not enter written findings of fact or a written order denying
Child’s motion to suppress or motion for reconsideration. Within several days, the
court entered a judgment and disposition in which the court stated that Child had been
adjudicated on the day of the suppression hearing of use or possession of drug
paraphernalia. The court placed Child on probation for an indeterminate period of

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time not to exceed two years. Child’s specific assertion of error on appeal is that the
officer did not have reasonable, articulable suspicion of criminal activity to justify his
seizure, and therefore, the evidence ultimately obtained pursuant to the unlawful
seizure had to be suppressed.
STANDARD OF REVIEW
{14} 	When we review a court’s denial of a motion to suppress, “[w]e view the facts
in the manner most favorable to the prevailing party and defer to the district court’s
findings of fact if substantial evidence exists to support those findings.” 	State v.
Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. 	“All reasonable
inferences in support of the district court’s decision will be indulged in, and all
inferences or evidence to the contrary will be disregarded.” State v. Jason L., 2000-
NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (alterations omitted) (internal quotation
marks and citation omitted). When a seizure occurred and whether it was based on
reasonable suspicion are mixed questions of fact and law because they involve the
mixture of facts and evaluative judgments. See State v. Attaway, 117 N.M. 141, 145-
46, 870 P.2d 103, 107-08 (1994) (concluding that the mixed question of exigent
circumstances should be subject to de novo review as a question of law). We review
those questions de novo. Id.; Urioste, 2002-NMSC-023, ¶ 6 (indicating that search

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and seizure issues and determinations of reasonable suspicion are mixed questions of
fact and law that should be reviewed de novo).
DISCUSSION
{15} 	There is no issue in this case regarding whether Child was seized under the
Fourth Amendment to the United States Constitution or under article II, section 10 of
the New Mexico Constitution. The first task at hand is to attempt to determine at what
point Child was seized and then to attempt to determine whether the seizure was
supported by reasonable suspicion and was lawful. “Reasonable suspicion must exist
at the inception of the seizure.” 	State v. Garcia, 2009-NMSC-046, ¶ 43, 147 N.M.
134, 217 P.3d 1032 (internal quotation marks and citation omitted).
{16} 	In his briefs, Child attempts to transfer or expand the reasonable-suspicion
requirement from the individual officer to “the police” and to the dispatcher in arguing
that “[t]he police would only possess the reasonable suspicion to investigate one
female, not two males,” emphasizing that the dispatch operator did not tell the officer
that a female had pulled a gun, and that “the focus should be on whether the dispatch
operator had reasonable suspicion to tell the officers that ‘someone’ had pulled . . . a
gun on Johnny Smith.” 	We reject Child’s argument that the dispatcher or that the
police, generally based on what the dispatcher was told, had to have articulable,

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reasonable suspicion to sustain Officer Gaines’ seizure of Child. Child provides no
authority for such an argument, we will not attempt to research the point for Child,
and we will not consider it. 	In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
1329, 1330 (1984) (stating that an appellate court will not consider an issue if no
authority is cited in support of that issue). Furthermore, at oral argument in this case,
defense counsel, who replaced counsel who wrote Defendant’s appellate briefs,
abandoned the foregoing expansive view of the reasonable-suspicion requirement.
{17} 	Child appears to assert that Officer Gaines had a too-limited amount of
information from dispatch to approach Child just based on Child’s proximity to the
school. Child points out that the officer was told only that “someone” had pulled a
gun on the caller in the area of the school while the caller was trying to buy drugs.
Thus, Child appears to argue that the 911 call was somehow legally insufficient to
permit the officer to initiate contact with Child to ask questions.
{18} 	We reject this argument as well. Under the circumstances, we see no basis on
which to hold that Officer Gaines had no lawful basis on which to even initiate a
generalized investigation of the reported criminal activity by attempting to talk to
Child. A more accurate or detailed statement from the dispatch operator regarding the
gender of the person with the gun might have caused Officer Gaines to ignore Child

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and his companion. Notwithstanding this poor communication, however, based on the
information he received from dispatch, Officer Gaines lawfully could approach
individuals walking in the Tibbetts school area, including Child and his companion,
to ascertain if they would answer questions in regard to the reported criminal activity
without first having articulable, reasonable suspicion that the individuals had been
engaged in the reported criminal activity. See Jason L., 2000-NMSC-018, ¶ 14 (“The
police do not need any justification to approach a person and ask that individual
questions; however, the officer may not convey a message that compliance with their
requests is required.” (internal quotation marks and citation omitted)); see also State
v. Gutierrez, 2007-NMSC-033, ¶ 32, 142 N.M. 1, 162 P.3d 156 (“Courts have
consistently recognized that law enforcement officers do not violate the Fourth
Amendment by merely approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions, by putting questions
to him if the person is willing to listen.” (internal quotation marks and citation
omitted)). An investigatory stop and seizure does not occur from such an approach
as long as (1) the officer does not convey a message that compliance with his request
is required, or (2) the circumstances do not cause a reasonable individual to believe
that he was not free to refuse compliance and to disengage or leave. Jason L., 2000-

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NMSC-018, ¶¶ 14-15.
{19} 	We turn to the question of when Child was seized. 	In oral argument, Child
argued that he was seized when the officer called for him to come out of the
Laundromat, but if not at that point, then when the officer asked or told Defendant to
take his hands out of his pockets. The district court appears to have determined that
Child was seized when the officer asked Child to show his hands, and to have
reasoned and concluded that, on balance, based on what the officer was told by
dispatch, what he saw, and the expressed concern for his own and community safety,
the officer lawfully required the show of hands. The court felt the officer’s actions
were appropriate and justified because a weapon was allegedly involved in the
reported criminal activity occurring only minutes before the officer encountered Child
in the same general area as the location of the reported activity, because Child and his
companion were the only people the officer saw walking in the area, and because
Child evasively moved toward the Laundromat when he saw the police.
{20} 	In deciding this question, we see no need to decide whether a seizure occurred
at the point the officer asked or told Child to come out of the Laundromat. 	We
determine, under the facts and arguments presented in this appeal and based on how
we read our case law, that the officer’s request or command that Child take his hands

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out of his pockets constituted a seizure. At that point and by that request, the officer
made a show of authority such that any reasonable person in Child’s circumstance
would not have felt free to refuse compliance and to leave. See Garcia, 2009-NMSC-
046, ¶¶ 35-37 (maintaining “Mendenhall’s free-to-leave test as the proper measure of
a seizure under [a]rticle II, [s]ection 10 [of the New Mexico Constitution]”); Jason L.,
2000-NMSC-018, ¶¶ 16-17 (reciting one factor for determining freedom to leave to
be the conduct of the officer including use of language or tone of voice indicating that
compliance with the officer’s request might be compelled, concluding that a seizure
occurred and a person in the defendant’s position would not feel free to leave when
the officer twice asked the defendant if he had any knives or guns, and relying in part
on a federal case holding that a police officer’s show of authority, announcing he was
a police officer, and ordering the defendant to stop was an investigative seizure); State
v. Talley, 2008-NMCA-148, ¶ 14, 145 N.M. 127, 194 P.3d 742 (stating that the
officer’s ordering the defendant to remove his hand from his pocket constituted a
show of authority and that a show of authority is a restraint when the subject submits
to that authority).
{21} 	This show-of-hands point required articulable, reasonable suspicion that Child
had engaged in criminal activity in order for the officer to initiate, as he did, an

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investigatory detention of Child. 	See State v. Funderburg, 2008-NMSC-026, ¶ 15,
144 N.M. 37, 183 P.3d 922 (stating that reasonable suspicion is a “commonsense,
nontechnical conception[], which requires that officers articulate a reason, beyond a
mere hunch, for their belief that an individual has committed a criminal act”
(alteration in original) (internal quotation marks and citation omitted)); Gutierrez,
2007-NMSC-033, ¶ 29 (“The Fourth Amendment . . . requires that an officer have
reasonable, articulable suspicion of criminal activity to justify a temporary seizure for
the purpose of questioning[.]”); Urioste, 2002-NMSC-023, ¶ 10 (“A police officer
cannot forcibly stop an individual for purposes of investigation merely on the basis
of an inchoate and unparticularized suspicion or hunch that criminal activity may be
afoot.” (internal quotation marks and citation omitted)); Jason L., 2000-NMSC-018,
¶ 20 (stating that “[a] reasonable suspicion is a particularized suspicion . . . that a
particular individual, the one detained, is breaking, or has broken, the law” and that
“[r]easonable suspicion must exist at the inception of the seizure”).
{22} 	We specifically limit our holding as to seizure to the facts and to the arguments
in this case. Child at no time argued in the district court or in this Court the question
whether under these or analogous circumstances, including when an encounter has not
yet turned into a seizure or investigative detention, an officer should be permitted, for

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safety reasons, without having individualized and articulable, reasonable suspicion of
criminal activity, to merely ask a person to take his hands out of his pockets before
continuing with an intended voluntary or consensual encounter. See State v. Nettles,
855 P.2d 699, 702 (Wash. Ct. App. 1993) (stating that in furtherance of the
community-caretaker function “it is not unreasonable to permit a police officer in the
course of an otherwise permissive encounter to ask an individual to make his hands
visible”); see also People v. Hardrick, 60 P.3d 264, 269 (Colo. 2002) (holding that in
a circumstance in which a third party inserts himself into a situation where an officer
is engaged in a valid search or arrest the officer “may ask the interloper to show his
hands” in order to ensure officer safety); State v. Jennings, 99 P.3d 1145, 1149-50
(Kan. Ct. App. 2004) (indicating that the officer’s statement to subjects to remove
their hands from their pockets during a voluntary encounter “was simply made for
officer safety reasons and would not communicate to a reasonable person that he or
she was not free to leave” and therefore did not turn the voluntary encounter into a
seizure). We intimate no view one way or another on this question, leaving it perhaps
for another day.
{23} 	The difficult and close question for us to answer is whether the circumstances
leading up to the request for a show of hands gave rise to articulable, reasonable

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suspicion that Child was involved in criminal activity. The State contends that the
following circumstances are sufficient to create articulable, reasonable suspicion.
Officer Gaines was investigating the use of a gun in a drug transaction in a particular
area. This criminal activity was within two blocks of the Laundromat. The officer
saw Child and his companion walking from the direction of the school. The two were
the only people the officer saw walking in the Laundromat area. The officer saw that
they had their hands in their pockets. When he hollered, the officer saw that Child
saw him, and he saw Child immediately dart into the Laundromat. At the same time,
Child’s companion complied with the officer’s request to talk to them. The State’s
underlying thrust is that of proximity of the encounter with Child to the area of the
reported activity. See State v. Cobbs, 103 N.M. 623, 625-27, 711 P.2d 900, 902-04
(Ct. App. 1985) (determining that officers dispatched to investigate suspicious persons
in the area of a suspected residential burglary in progress, where two men were
reportedly repeatedly approaching the residence and returning to a vehicle parked
behind the residence, had reasonable suspicion to stop a vehicle as it was leaving and
to proceed to conduct a patdown of the two occupants); see also State v. Jimmy R.,
1997-NMCA-107, ¶¶ 2-3, 124 N.M. 45, 946 P.2d 648 (determining that the officer
had reasonable suspicion to seize subjects who were in the vicinity of reported

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criminal activity when the officer observed no other persons in the area and the
subjects began to walk away when the officer drove up); State v. Watley, 109 N.M.
619, 624, 788 P.2d 375, 380 (Ct. App. 1989) (upholding an investigative stop and
detention of a supsect where, under the totality of the circumstances, including the fact
that the subject was in the immediate area of the recently reported criminal activity,
the officer “could reasonably have concluded that [the] defendant may have been
involved in the commission of the reported offense”).
{24} 	We must disagree. 	The proximity basis on which the State relies is not
sufficient in this case to support the necessary individualized articulable, reasonable
suspicion at the point the officer told Child to take his hands out of his pockets
following which Child complied to the extent of first taking one hand out, and later
taking both hands out. 	The evidence produced from the ensuing patdown was
therefore unlawfully obtained and should have been suppressed.
CONCLUSION
{25} 	We reverse the district court’s denial of Child’s motion to suppress. 	The
motion should have been granted and the evidence in question should have been
suppressed. We remand for further proceedings in accordance with this opinion.

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{26} 	IT IS SO ORDERED.
_______________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
CYNTHIA A. FRY, Chief Judge
_________________________________
MICHAEL D. BUSTAMANTE, Judge