February 5, 2020- State of New Mexico v. Julio Rubio, No. A-1-CA-38074

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

Filed 2/5/2020 8:19 AM
STATE OF NEW MEXICO, Al,
Plaintiff-Appellee, ~£e4
Mark Reynolds
v. No. A-1-CA-38074
JULIO RUBIO,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven James Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
VARGAS, Judge.

a} Defendant appeals from a district court on-the-record judgment affirming his

metropolitan court conviction for DWI. We issued a calendar notice proposing to

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1 affirm. Defendant has responded with a timely memorandum in opposition. We
2 affirm.
3 {2} Defendant continues to challenge the denial of his motion to suppress. A ruling
4 on “[a] motion to suppress evidence is a mixed question of law and fact.” State v.
5 Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. We review findings of fact
6 using the substantial evidence standard. Id. We review the application of law to the
7 facts de novo, viewing the facts in the light most favorable to the prevailing party. Id.
8 {3} Defendant’s specific argument has been that the stop of his vehicle was made
9 in the absence of reasonable suspicion. The pertinent facts appear to be as follows.
10 Officer Brandon Forsberg testified that he was dispatched to the Sanbar at 11:55 p.m.
11 regarding a hit and run. [RP 122] In addition to a detailed description of the vehicle,
12 the call included the driver’s location and direction of travel; the caller had also stated
13 that the driver was intoxicated and had been involved in an altercation with Sandbar
14 employees. [RP 122-23] Three minutes after the dispatch the officer located the
15 vehicle that fit the description, including the license plate. Officer Forsberg then
16 stopped the suspect vehicle, which Defendant was driving. [RP 123]
17 {4} “[B]efore a police officer makes a traffic stop, he must have a reasonable
18 suspicion of illegal activity.” State v. Dopslaf, 2015-NMCA-098, ¶ 8, 356 P.3d 559
19 (internal quotation marks and citation omitted). “A reasonable suspicion is a

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1 particularized suspicion, based on all the circumstances that a particular individual,
2 the one detained, is breaking, or has broken, the law.” Id. (internal quotation marks
3 and citation omitted). “[A]ppellate courts will find reasonable suspicion if the officer
4 is aware of specific articulable facts, together with rational inferences from those
5 facts, that, when judged objectively, would lead a reasonable person to believe
6 criminal activity occurred or was occurring.” Id. (internal quotation marks and
7 citation omitted).
8 {5} In this case the district court concluded that the metropolitan court properly
9 denied the motion to suppress. [RP 122] We agree. In State ex rel. Taxation &
10 Revenue Department Motor Vehicle Division v. Van Ruiten, a police officer received
11 a radio dispatch informing him that an unidentified person had called to report that
12 a man at a convenience store who was apparently intoxicated had driven away in a
13 vehicle that was described with particularity. 1988-NMCA-059, ¶ 2, 107 N.M. 536,
14 760 P.2d 1302. The officer found a vehicle matching the description fifteen minutes
15 later, and initiated a traffic stop and DWI investigation. Id. ¶ 3. We held that the
16 information provided by the caller supplied reasonable suspicion, such that the stop
17 was permissible. Id. ¶¶ 6-11.
18 {6} Similarly, in State v. Contreras, 2003-NMCA-129, ¶¶ 2, 21, 134 N.M. 503, 79
19 P.3d 1111, we held that an anonymous tip notifying police about a possible drunk

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1 driver supported an investigatory detention, where the information was detailed
2 enough for the deputies to find the vehicle in question and confirm the description,
3 and where the caller was an apparent eyewitness to erratic driving.
4 {7} Most recently, in State v. Lope, we reviewed relevant case law and concluded
5 that as a general rule, “investigatory stops based on anonymous tips describing
6 possible drunk driving are justified, where information provided by the tip such as a
7 description and location of the vehicle, was corroborated.” 2015-NMCA-011, ¶ 23,
8 343 P.3d 186. Accordingly, we held that an identified motorist’s tip was sufficient to
9 support a traffic stop to investigate the possibility that a specified vehicle was driven
10 by an intoxicated motorist, notwithstanding the fact that the officer observed no
11 erratic driving himself. Id. ¶¶ 2-6, 23-24.
12 {8} As the foregoing cases illustrate, citizen reports and anonymous tips
13 concerning drunk driving generally supply police with reasonable suspicion to initiate
14 traffic stops, provided that sufficiently specific vehicle descriptions are supplied, even
15 in the absence of independent observation of erratic driving by the officer.
16 Accordingly, we conclude that the report that Defendant was intoxicated [RP 122-23]
17 combined with the corroboration of the description of the vehicle, provided the
18 requisite reasonable suspicion.

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1 {9} Defendant’s docketing statement does not dispute the facts set forth in the
2 docketing statement. [MIO 1] Instead, he now argues that investigatory stops are not
3 permitted for misdemeanor offenses. [MIO 1] Defendant has not indicated that he
4 preserved this novel argument below. See Rule 12-321(A) NMRA (“To preserve an
5 issue for review, it must appear that a ruling or decision by the trial court was fairly
6 invoked.”). In addition, our Supreme Court has consistently recognized the legal
7 validity of a stop based on reasonable suspicion of a traffic code violation. See, e.g.,
8 State v. Ochoa, 2008-NMSC-023, ¶ 15, 143 N.M. 749, 182 P.3d 130. This Court does
9 not have authority to overrule this case law. See State ex rel. Martinez v. City of Las
10 Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47 (stating that the Court of
11 Appeals is bound by Supreme Court precedent).
12 {10} For the foregoing reasons, we affirm.
13 {11} IT IS SO ORDERED.
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15 JULIE J. VARGAS, Judge

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WE CONCUR:
FundaDa Sam
LINDA M. VANZI, Judge
4 5 Briana Primeira DRIANA H. ZAMORA, Judge
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