State v. Jason L.

{1} Defendant Jason L., a minor, appeals from a decision of the New Mexico Court of Appeals reversing a district court’s order suppressing a concealed weapon. See In re Jason L., 1999-NMCA-095, 127 N.M. 642, 985 P.2d 1222. We granted Defendant’s petition for certiorari because his appeal raised two important issues: (1) when was he seized for purposes of his constitutional protections, see U.S. Const, amend. IV; N.M. Const, art. II, § 10, and (2) was his seizure justified? The Court of Appeals apparently assumed that Defendant’s Fourth Amendment rights were not implicated until he was searched and that reasonable suspicion supported that search. See Jason L., 1999-NMCA-095, ¶ 18, 127 N.M. 642, 985 P.2d 1222. On this record, however, we believe the district court found Defendant had been detained prior to the search and concluded that he was detained without justification, contrary to his Fourth Amendment rights. We hold that the Court of Appeals erred in overturning the district court’s determinations. We therefore reverse the Court of Appeals and affirm the district court’s order.

I.

{2} Defendant was arrested and charged with unlawful possession of a handgun contrary to NMSA 1978, § 30-7-2.2 (1994). At the suppression hearing, the State presented the testimony of the two arresting officers, Officer McDaniel and Officer Jordan. McDaniel testified first and as follows.

{3} At approximately 10:00 p.m. on Thursday, July 17, 1997, the officers were returning from an unrelated call when they noticed two boys walking eastbound on 13th Street toward Washington in Roswell. No relevant activity had been reported in the area that evening. The officers proceeded past Defendant and his companion, Filemon M., and observed them. McDaniel believed their actions were suspicious. He stated that “they kept looking back over their shoulders to see where I was at or if I was gonna’ turn.” “Both boys looked at [us] ... [however] the one who kept looking at [me] was [Filemon M.].” McDaniel admitted that his police report only noted that Filemon M. was looking back at him. The boys never stopped walking; instead they continued forward, looking back over their shoulders. McDaniel noticed Filemon M. “messing with the left side of his waistband [as] if he was adjusting something or messing with something underneath his big, heavy coat.” Next, McDaniel turned off his headlights, parked behind a wall, and positioned himself behind a fence where he was not visible. McDaniel was suspicious because the boys had not traveled as far as he expected they would have had they continued walking at their previous speed.

{4} Based on these observations, McDaniel decided to approach the two boys. He returned to his vehicle and stopped them on the street without engaging emergency equipment. After approaching the boys, McDaniel believed they continued to act suspiciously. He based this belief on the fact that Filemon M. continued to fuss with his waistband and appeared to be trying to keep himself separated from the officers by positioning Defendant between them. McDaniel testified that he did not observe any criminal activity. Upon contact, McDaniel asked the boys what they were doing. The boys responded they were “just walking,” and McDaniel thought this was a good answer. Filemon M. continued to fuss with the left side of his waistband, which led McDaniel to ask an additional question. He asked the boys whether they had any knives or weapons on them. At first the boys did not respond; after McDaniel repeated the question, the boys eventually answered, “No.”

{5} McDaniel then asked Filemon M. to open his jacket. At this point, McDaniel described Filemon M.’s jacket as a big, baggy coat. McDaniel did not tell Filemon M. that he did not have to unzip his jacket. Nothing was visible when Filemon M. unzipped his jacket. McDaniel proceeded to pat down Filemon M. and felt a firearm in his waistband. The firearm was identified as a .22 caliber pistol. After McDaniel secured the weapon, Filemon M. stated he had another weapon. McDaniel searched Filemon M. and found another gun located on the right side of his belt. The officers then searched Defendant and found a .22 caliber firearm located in the front waistband of his pants under his coat.

{6} Jordan testified as follows. Filemon M. kept looking back at the police officers. He wore a “big, white jacket.” Jordan thought it was peculiar that Filemon M. was wearing a jacket in the middle of July and reaching for his side as he walked but commented, however, that maybe it was cold or “it could have been cooler than I thought it was.” He also noted that the boys were walking very slowly.

{7} The two officers pulled up behind the boys and McDaniel either said, “Can we talk to you for a minute?” or, “Come here.” Filemon M. was acting very nervous. He kept trying to move behind Defendant, who appeared to be more willing to talk with the officers. Jordan did not remember McDaniel asking the boys if they had weapons or guns. When asked if the conversation occurred, Jordan answered that it might have occurred after McDaniel asked Filemon M. to open his jacket. McDaniel asked Filemon M. to open his jacket and Filemon M. reacted by reaching for his waistband. At that point, McDaniel grabbed Filemon M.’s hand and again asked him to open his jacket. Both officers saw the weapon in plain view in Filemon M.’s waistband and both yelled, “Gun!” pursuant to their framing. After the officers saw the gun, they handcuffed Filemon M. and secured the weapon. Jordan searched Filemon M. to see if he was carrying any other weapons. During the search of Filemon M., Defendant was standing in front of the patrol car “like Officer McDaniel asked him to do.” After two guns were found on Filemon M., McDaniel searched Defendant. At no point did Jordan observe any suspicious conduct by Defendant.

{8} The State charged Defendant and Filemon M. with unlawful possession of a handgun. At the conclusion of the hearing, the district court granted Defendant’s motion to suppress stating:

[T]he most recent case dealing with this, [State v. Eli L., 1997-NMCA-109, 124 N.M. 205, 947 P.2d 162],... [held] that we will not dispense with the requirement of individualized particularized suspicion. In this particular case, both the officers testified that ... there was no criminal activity that was taking place. They were still within the permissible curfew time. In light of what our appellate courts have held, that there must be individualized, particularized suspicion, I can’t find, based on the testimony, that there was any reasonable suspicion relating to [Defendant].

The Court of Appeals held that once the search of Filemon M. revealed he was carrying two guns, reasonable suspicion existed to search Defendant. See Jason L., 1999-NMCA-095, ¶ 18, 127 N.M. 642, 985 P.2d 1222.

{9} Defendant has not argued on appeal that the New Mexico Constitution affords him greater protection than that afforded under the United States Constitution. Cf. State v. Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1 (discussing requirements for preserving state constitutional claims for appellate review). We therefore review his claim, as did the Court of Appeals, only under the Fourth Amendment.

II.

{10} The standard of review for suppression rulings is “whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party.” State v. Werner, 117 N.M. 315, 317, 871 P.2d 971, 973 (1994) (quoting State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983)). The appellate court must defer to the district court with respect to findings of historical fact so long as they are supported by substantial evidence. See State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994). “Factfinding frequently involves selecting which inferences to draw.” State v. Lopez, 109 N.M. 169, 171, 783 P.2d 479, 481 (Ct.App.1989). “[A]ll 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.” Werner, 117 N.M. at 317, 871 P.2d at 973 (quoting Boeglin, 100 N.M. at 132, 666 P.2d at 1279). The fact that another district court could have drawn different inferences on the same facts does not mean this district court’s findings were not supported by substantial evidence. See Lopez, 109 N.M. at 171, 783 P.2d at 481. Conflicts in the evidence, even within the testimony of a witness, are to be resolved by the fact finder at trial. See State v. Bloom, 90 N.M. 192, 194, 561 P.2d 465, 467 (1977).

{11} In this case, we have no findings of fact from the district court. “This is a regular occurrence when we review decisions on motions to suppress evidence in criminal cases.” State v. Gonzales, 1999-NMCA-027, ¶ 11, 126 N.M. 742, 975 P.2d 355, cert. denied, 126 N.M. 533, 972 P.2d 352 (1999). In circumstances such as this, “our practice has been to ... employ presumptions [and as] a general rule, we will indulge in all reasonable presumptions in support of the district court’s ruling.” Id. ¶ 15. One constraint upon that practice is that without an indication on the record that the district court rejected the uncontradicted evidence, we presume the court believed all uncontradieted evidence. See id. ¶ 16. When the evidence conflicts, we consider the evidence that supports the district court’s ruling; and we will draw all inferences and indulge all presumptions in favor of the district court’s ruling.

{12} In this case there is conflicting evidence. For example, McDaniel testified that both boys kept looking back at the officers. Jordan indicated that Filemon M. kept looking back at the officers. McDaniel testified he asked the boys if they had any weapons; Jordan did not remember this exchange. McDaniel testified he could not see a weapon after Filemon M. unzipped his jacket so McDaniel conducted a pat-down. Jordan testified that Filemon M. reached for his waistband when asked to open his jacket. McDaniel grabbed his hand and again asked that Filemon M. open his jacket. At that point, the gun was visible. On some facts, the officers agreed. Sometimes one officer testified to something the other did not mention. We presume the district court believed the facts on which the officers agreed as well as the facts to which only one officer testified. We consider all that evidence; where the evidence conflicted, we consider only the evidence supporting the court’s ruling. The relevant facts then are as follows.

{13} Defendant and Filemon M. were walking down the street together and Filemon M. was looking back at the police officers. Filemon M. was wearing a big, baggy coat and Defendant was wearing a coat on an evening that may have been cool. Filemon M. was fussing with his waistband. Neither boy seemed to cover as much ground as the officers had expected. Based on these observations, the police officers decided to approach the two boys. The two officers pulled their vehicle up to the boys and Officer McDaniel said, “Come here.” Filemon M. appeared to be very nervous and was trying to position Defendant between the police officers and himself. McDaniel asked the boys what they were doing and the boys answered that they were “just walking.” McDaniel then asked the boys if they were armed. The boys failed to respond immediately; McDaniel repeated the question. Eventually, the boys responded, “No.” McDaniel then searched Filemon M. and found the first gun.

{14} Our task is to determine at what point during the encounter Defendant’s right to be free from unreasonable search and seizure was implicated. “[A] seizure subject to Fourth Amendment scrutiny” does not occur every time a police officer approaches a citizen. State v. Walters, 1997-NMCA-013, ¶ 10, 123 N.M. 88, 934 P.2d 282. “Whether or not a search and seizure, including a stop and frisk of an individual by law enforcement officers, violates the Fourth Amendment is judged under the facts of each case by balancing the degree of intrusion into an individual’s privacy against the interest of the government in promoting crime prevention and detection.” State v. Jones, 114 N.M. 147, 150, 835 P.2d 863, 866 (Ct.App.1992). In developing that balance, courts have distinguished various types of encounters between police officers and the public on the basis of the degree of intrusion and required an appropriate level of suspicion to justify the particular intrusion. See Lopez, 109 N.M. at 171, 783 P.2d at 481. Arrests and investigatory stops are seizures invoking Fourth Amendment protections; community care-taking encounters are consensual, beyond the scope of the Fourth Amendment. See Walters, 1997-NMCA-013, ¶ 10, 123 N.M. 88, 934 P.2d 282. An arrest must be supported by probable cause and an investigatory stop must be supported by reasonable suspicion. See id. 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.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

{15} In Terry v. Ohio, the United States Supreme Court held that a seizure occurs “whenever a police officer accosts an individual and restrains his freedom to walk away.” 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Lopez, the New Mexico Court of Appeals stated that restraint on a person’s freedom, within the meaning of Terry, can be the result of either physical force or a showing of authority. See Lopez, 109 N.M. at 170, 783 P.2d at 480. When determining whether a person is seized we consider “all of the circumstances surrounding the incident” in order to determine whether “a reasonable person would have believed that he [or she] was not free to leave.” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Under Lopez, when determining whether a reasonable person would feel free to leave, courts should look at all of the factual circumstances, considering the following three factors: “(1) the conduct of the police, (2) the person of the individual citizen, and (3) the physical surroundings of the encounter.” 109 N.M. at 171, 783 P.2d at 481.

{16} The State argues that Defendant was not seized until the officers initiated physical contact; or in other words, prior to the pat-down search the encounter was consensual. The district court’s oral ruling, however, suggests the court believed Defendant had been seized earlier. The court’s remarks refer only to the time of night and the absence of any reports of criminal activity; there is no mention of facts that became apparent during the encounter. Physical contact is not essential to a seizure. In Lopez, the Court of Appeals identified other circumstances in which a reasonable person might believe he or she could not end an encounter with the police.

Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

109 N.M. at 170, 783 P.2d at 480 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). Giving proper deference to the district court, we conclude there was substantial evidence to support a finding that the officers made a show of authority and that a person in Defendant’s position would not have felt free to leave after McDaniel twice asked the boys if they had any knives or weapons.

{17} The boys were approached at night on an empty street by two armed police officers whom they knew had been observing them prior to the encounter. See United States v. Sanchez, 89 F.3d 715, 718 (10th Cir.1996) (stating that the “threatening presence of several officers” and the “absence of other members of the public” are factors that could indicate that a reasonable person would not feel free to ignore an encounter with the police). The police officers did not ask to speak to the boys, but rather demanded that they approach. See Smith v. United States, 558 A.2d 312, 314 (D.C.Cir.1989) (en banc) (holding police officer’s show of authority, by announcing he was a police officer and ordering defendant to stop, was an investigative seizure implicating Fourth Amendment protections), overruled in part on other grounds by Green v. United States, 662 A.2d 1388, 1390 (D.C.Cir.1995). The ten- or of the encounter changed when McDaniel asked Defendant if he was in possession of weapons. “Generally, courts throughout the country have ruled that a field inquiry becomes a Terry stop upon unsupported outright accusations of criminal activity.” In re J.G., 320 N.J.Super. 21, 726 A.2d 948, 953 (App.Div.1999) (internal quotation marks omitted). We believe the “use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory” is one factor that could lead a reasonable person to believe he or she is not free to terminate an encounter with the police. Sanchez, 89 F.3d at 718. Further, we also believe that questions asked in an “[a]ceusatory, persistent, and intrusive” manner can make “an otherwise voluntary encounter ... coercive.” United States v. Little, 60 F.3d 708, 712 (10th Cir.1995) [hereinafter Little II].

{18} At no point did the officers tell either boy they were free to leave or that they were not required to answer their questions. While case law has not required such advice, its absence is a relevant factor. See Little II, 60 F.3d at 713. It is also relevant that Defendant was fifteen years old at the time of the encounter. See generally Lopez, 109 N.M. at 171, 783 P.2d at 481. “Characteristics such as whether the person being questioned is a child or an adult ... are objective and relevant” to the question of whether a reasonable person would feel free to leave. United States v. Little, 18 F.3d 1499, 1505, n. 6 (10th Cir.1994) (en bane) [hereinafter Little I ].

{19} In Lopez the Court of Appeals determined that whether a person has been seized in violation of the Fourth Amendment is a mixed question of law and fact. 109 N.M. at 170, 783 P.2d at 480. The Court stated that “as a matter of law, a person is seized when the facts show accosting and restraint such that a reasonable person would believe he [or she] is not free to leave. However, we believe the question of whether the facts show such accosting and restraint is factual in nature.” Id. We now conclude that because a seizure occurs “whenever a police officer accosts an individual and restrains his freedom to walk away,” Terry, 392 U.S. at 16, 88 S.Ct. 1868, Lopez essentially transformed the legal determination of a seizure into a factual finding. We take this opportunity to modify Lopez so that an appellate court can engage in a “meaningful review of [a] lower courtfs] determinations.” State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994). The determination of a seizure has two discrete parts: (1) what were the circumstances surrounding the stop, including whether the officers used a show of authority; and (2) did the circumstances reach such a level of accosting and restraint that a reasonable person would have believed he or she was not free to leave? The first part is a factual inquiry, which we review for substantial evidence. The second part is a legal inquiry, which we review de novo. We hold that on the evidence presented at the hearing, viewed in the light most favorable to the district court ruling, there was substantial evidence supporting a determination that the officers detained Defendant with a show of authority. We further conclude, as a matter of law, the show of authority in this case was such an accosting and restraint that a reasonable person would have believed he or she was not free to leave after McDaniel asked about weapons a second time.

{20} Having determined there was substantial evidence supporting the ruling that a seizure occurred prior to that search, we note that not all seizures are unconstitutional. We recognize an “officer may detain a person in order to investigate possible criminal activity.” State v. Cobbs, 103 N.M. 623, 626, 711 P.2d 900, 903 (Ct.App.1985). Investigatory detention is permissible when there is a reasonable and articulable suspicion “that the law is being or has been broken.” Id. A reasonable suspicion is a particularized suspicion, based on all the circumstances that a particular individual, the one detained, is breaking, or has broken, the law. See State v. Watley, 109 N.M. 619, 624, 788 P.2d 375, 380 (Ct.App.1989). “Unsupported intuition and inarticulate hunches are not sufficient.” Cobbs, 103 N.M. at 626, 711 P.2d at 903. Reasonable suspicion must exist at the inception of the seizure. See Eli L., 1997-NMCA-109, ¶ 11, 124 N.M. 205, 947 P.2d 162. The officer cannot rely on facts which arise as a result of the encounter. See United States v. Bloom, 975 F.2d 1447, 1456 (10th Cir.1992) overruled in part on other grounds by Little I, 18 F.3d at 1504. Since Defendant was seized prior to the search of Filemon M., the fruits of that search are not relevant to the determination of whether there was reasonable and articulable suspicion to support the seizure of Defendant. In this case, the district court determined no reasonable suspicion existed to support a seizure of Defendant. We review this legal determination de novo. See Eli L., 1997-NMCA-109, ¶ 6, 124 N.M. 205, 947 P.2d 162.

{21} Eli L. is dispositive. In Eli L. the Court of Appeals held that officers must possess “at the time the Child was stopped ... reasonable individualized suspicion that the Child had committed or was about to commit a crime.” 1997-NMCA-109, ¶ 11, 124 N.M. 205, 947 P.2d 162. In closing argument, the district court specifically asked the State what facts supported a finding that reasonable suspicion existed to stop Defendant, assuming that a reasonable and articulable suspicion existed for the stop of his companion. In response, the State relied on Filemon M.’s conduct. As stated in Eli L., New Mexico has “not dispense[d] with the requirement of individualized, particularized suspicion.” Id. ¶ 12 (quoting Jones, 114 N.M. at 150, 835 P.2d at 866). Therefore, the district court was correct in refusing to rely on Filemon M.’s conduct to justify Defendant’s detention.

{22} We also believe the district court correctly characterized Defendant’s detention as a stop and appropriately required a showing of reasonable suspicion. Under the appropriate standard of review, the only suspicious conduct attributable to Defendant in the record was that he was wearing a coat of unknown weight on a summer evening and walking slowly in the company of someone who was fussing with his waistband and looking back at police officers. Individualized, particularized suspicion is a prerequisite to a finding of reasonable suspicion, and the district court did not err in concluding that the State had not established individualized, particularized suspicion that Defendant had committed or was about to commit a crime. On this record, the district court correctly concluded that the officers lacked reasonable suspicion to detain Defendant for investigation.

III.

{23} On the evidence presented at the suppression hearing, viewed in the light most favorable to Defendant, the district court could find that the police officers detained Defendant with a show of authority and that a reasonable person in Defendant’s position would not have felt free to leave. The court also did not err in concluding that the officers made an investigatory stop, which required reasonable suspicion, and that they had not proved their suspicion of Defendant was reasonable. Therefore, we conclude that the district court was correct in ruling that Defendant was seized by the officers within the meaning of the Fourth Amendment and in violation of his rights under that amendment. Accordingly, we reverse the Court of Appeals and we affirm the order of the district court suppressing the evidence in this case.

{24} IT IS SO ORDERED.

FRANCHINI, J., concurs.

SERNA, J., specially concurring.

BACA, J., and MAES, J., dissenting.