FROM THE DISTRICT COURT OF TAOS COUNTY JEFF F. MCELROY,
H. Balderas, Attorney General Marko D. Hananel, Assistant
Attorney General Santa Fe, NM for Appellee
Offices of Adrianne R. Turner Adrianne R. Turner Albuquerque,
NM for Appellant
J. VARGAS, JUDGE.
Pursuant to a conditional plea agreement, Defendant Liborio
Martinez appeals the district court's denial of his
motion to suppress certain evidence discovered after he was
stopped for speeding. On appeal, Defendant argues that police
engaged in an illegal search of his vehicle when Officer
Anthony Perez: (1) opened the door of Defendant's
vehicle; and (2) broke "the plane of the car" and
entered the vehicle, transforming the traffic stop into a
search that required a warrant. We conclude that, under the
circumstances of this case, the district court erred in
concluding that Officer Perez's actions of opening
Defendant's door was not a search that required a
warrant. We therefore reverse.
Defendant's conviction stems from a traffic stop
initiated by Officer Perez. After observing Defendant driving
ten miles per hour over the speed limit, Officer Perez made a
U-turn, pulled behind Defendant's vehicle, and activated
his emergency lights. Defendant failed to pull over for a
"couple miles" over the course of approximately two
minutes, prompting Officer Perez to call for assistance.
During this time, Defendant did not noticeably increase his
speed or take any action to indicate he sought to flee from
Officer Perez. Instead, Defendant appeared to maintain his
speed and only increased or decreased his speed according to
the flow of traffic in front of his car.
After Defendant pulled over, Officer Perez exited his vehicle
and walked toward the rear passenger's side of
Defendant's car. Officer Perez testified that as he
approached Defendant's vehicle, he was unable to see
whether anyone was in the back because although it was
daylight, the rear window was "dark." Officer Perez
approached the front passenger's side window and was able
to see through that window. The window was not rolled all the
way down and he testified that he had a "narrow"
point of view. Through that window, however, he could see
Defendant holding a cell phone in one hand and trying to
light a cigar or a cigarette with the other.
As he approached Defendant's passenger's side window,
Officer Perez lowered his head to look inside Defendant's
vehicle and initiated the following exchange:
Perez: How are we doing, sir?
Defendant: Good. You?
Perez: Officer Perez with State Police.
Defendant: Hey, how's it going?
four seconds elapsed from the time Officer Perez lowered his
head to look inside the vehicle and the verbal exchange
described above was completed. Three seconds into the
exchange, as Defendant said "Hey," but before he
asked "how's it going," Officer Perez opened
the front passenger's side door of Defendant's
vehicle. Officer Perez testified that he opened
Defendant's door so as to speak with Defendant and
prevent him from possibly fleeing. Officer Perez testified
that he was unsure why Defendant ...