April 9, 2020- State of New Mexico v. Robert B. Baca, No. A-1-CA-37957

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
STATE OF NEW MEXICO, Fe SIE
Plaintiff-Appellee, Ad. ~£e4
Mark Reynolds
V. NO. A-1-CA-37957
ROBERT B. BACA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

John A. Dean, Jr., District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
a; Defendant has appealed from a conviction for possession of a controlled
substance. We previously issued a notice of proposed summary disposition in which

we proposed to affirm. Defendant has filed a memorandum in opposition. After due

consideration, we remain unpersuaded.

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{2} 	Defendant has raised one issue, challenging the denial of his motion to	1
suppress. [DS 9; MIO 1] In this context, we review the district court’s factual	2
determinations for substantial evidence, and review the legal conclusions de novo.	3
State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250 P.3d 861.	4
{3} 	As previously described at greater length, the search in question occurred in	5
connection with an attempt by federal and state law enforcement agents to apprehend	6
a homicide suspect. [DS 3; RP 95] Defendant was observed standing beside the	7
suspect’s vehicle at a gas station. [MIO 2] As the federal marshals approached, shots	8
were fired. [DS 3-4; RP 95-96] Defendant dropped to the ground, and the suspect fled	9
in the vehicle. [DS 4; RP 96] Not knowing who had fired the shots, or who was being	10
shot at, [RP 96] Agent McCarty immediately searched Defendant for injuries, and then	11
for weapons. [DS 4; RP 96] In the course of the pat-down he found syringes	12
containing heroin. [DS 5; MIO 3] Defendant’s convictions are premised upon his	13
possession of those items. [DS 5; MIO 3]	14
{4} 	Defendant argues that the pat-down was unlawful. [MIO 1, 4-9] However, as	15
we previously observed in the notice of proposed summary disposition, [CN 3-5] the	16
situation presented in this case, entailing an attempt to apprehend a homicide suspect	17
and shots fired, supported a reasonable belief that Defendant might be armed and	18
dangerous, such that the protective frisk was justified. See, e.g., State v. Johnson,	19
2010-NMCA-045, ¶ 13, 148 N.M. 237, 233 P.3d 371 (holding that a patdown was	20

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permissible where police were investigating a report of shots fired and the defendant,	1
who was in the passenger seat of one of the described vehicles, was making furtive	2
movements); see also State v. Gutierrez, 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94	3
P.3d 18 (observing, in the context of a challenge to a search and seizure incident to	4
arrest, that “[i]n weighing the safety concern of law enforcement officers, we [have]	5
acknowledged the risks of danger to an arresting officer in these unpredictable and	6
highly charged situations,” in light of which “the presence at the scene of persons	7
other than the arrestee may justify searching for weapons in their immediate vicinity”	8
(internal quotation marks and citations omitted)). See generally State v. Talley, 2008-	9
NMCA-148, ¶ 19, 145 N.M. 127, 194 P.3d 742 (describing the relevant legal	10
principles); State v. Lovato, 1991-NMCA-083, ¶¶ 26-27, 112 N.M. 517, 817 P.2d 251	11
(explaining that officers may adopt precautionary measures based on reasonable fears,	12
and holding that officers investigating a drive-by shooting were justified in conducting	13
a protective frisk “in view of the level of danger the officers reasonably could assume	14
to exist,” given the nature of the crime being investigated).	15
{5} 	In his memorandum in opposition Defendant argues that the federal marshals	16
who accompanied Agent McCarty impermissibly “created the exigency” by firing the	17
shots, [MIO 1] such that the ensuing search should be deemed unlawful. [MIO 5-6]	18
However, as Defendant tacitly acknowledges, [MIO 5] the record is not clear on this	19
point. In any event, when assessing the reasonableness of an officer’s concern, we	20

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must consider the information that was known by the officer at the time. See State v.	1
Vargas, 2008-NMSC-019, ¶ 12, 143 N.M. 692, 181 P.3d 684 (stating that the	2
reasonableness inquiry looks at the information known to officers at the time). Agent	3
McCarty testified that at the time, he did not know where the shots had originated or	4
whether Defendant had fired. [RP 71-72] In light of this testimony, as well as the	5
deferential standard of review, we reject Defendant’s argument. See generally State	6
v. Hubble, 2009-NMSC-014, ¶ 8, 146 N.M. 70, 206 P.3d 579 (“We objectively	7
examine whether the facts available to the officer warrant the officer, as a person of	8
reasonable caution, to believe the action taken was appropriate.”); State v. Hamilton,	9
2012-NMCA-115, ¶ 12, 290 P.3d 271 (explaining that in this context,“all facts are	10
viewed in a light most favorable to the prevailing party” and “all reasonable inferences	11
in support of the court’s decision will be indulged in, and all inferences or evidence	12
to the contrary will be disregarded”).	13
{6} 	Defendant also asserts that Agent McCarty lacked individualized, articulable	14
suspicion that Defendant was armed and dangerous, [MIO 6-7] contending that the	15
State failed to establish “any connection” between Defendant and the homicide	16
suspect, and that Defendant exhibited no behavior which might give rise to safety	17
concerns. [MIO 7-8] Once again, this argument is premised on a view of the evidence	18
which is singularly favorable to Defendant, and inconsistent with our standard of	19
review. As previously stated, viewing the evidence and drawing all inferences in the	20

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light most favorable to the State, Defendant was observed standing at a gas pump	1
beside the passenger side of the homicide suspect’s vehicle, such that Defendant	2
appeared to be traveling with the suspect. [RP 70, 95] Shots were fired almost	3
immediately, and at that point in time, Agent McCarty did not know whether	4
Defendant had fired the shots. [RP 70-72, 96] As previously stated, an officer may	5
reasonably develop justifiable safety concerns, even if the officer is uncertain about	6
the precise nature or source of the danger presented. See Talley, 2008-NMCA-148, ¶	7
19 (“The officer need not be absolutely certain that the individual is armed; the issue	8
is whether a reasonably prudent officer in the circumstances would be warranted in	9
the belief that his safety or that of others was in danger.” (alterations, internal	10
quotation marks, and citation omitted)). “If it could be found that reasonable people	11
might differ, the courts have deferred in favor of the officer’s good judgment.” Id.	12
(internal quotation marks and citation omitted). Under the circumstances, we conclude	13
that Agent McCarty’s safety concerns were reasonable, such that the patdown was	14
permissible. We therefore reject the assertion of error.	15
{7} 	Accordingly, for the reasons stated in our notice of proposed summary	16
disposition and above, we affirm.	17
{8} 	IT IS SO ORDERED.	18
__________________________________	19
LINDA M. VANZI, Judge	20

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WE CONCUR:
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JENNIFER L. ATTREP, Judge
Kristina Bogardus
KRISTINA BOGARDUS, Judge
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