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State v. Walters12/30/1996
as in Reynolds. He points out that Officer Devine followed Defendant's car for two miles without observing any problem with Defendant's driving or with his car. Defendant argues that once he realized that the driver who had been following him was a police officer, he felt that he had been "targeted" by the officer from the beginning of the encounter and did not feel free to go. Defendant stated that he did not believe that the officer had stopped to assist him.
{23} The difficulty with this argument is that it is premised on Defendant's view of the facts that the officer engaged in an aggressive and intimidating pursuit which practically forced Defendant to the side of the road. At the suppression hearing, Defendant and Officer Devine did not agree on the manner in which Defendant was followed, and the trial court did not find the officer's conduct to be as Defendant characterized it. The trial court heard both accounts and accepted the version offered by the officer. See (fact finder may reject defendant's version of events). When the testimony of the witnesses differs as to the facts, it is for the trial court to evaluate the credibility of the evidence and resolve the conflicts. ), cert. denied, 115 N.M. 545, 854 P.2d 872 (1993).
{24} The trial court observed that if Officer Devine's attention had not been initially directed toward Defendant while the officer was acting in an investigatory capacity, this case would clearly fall within the community caretaker function of the officer. The court concluded that although the officer was acting in a dual capacity, first as a criminal investigator and then as a public caretaker, the initial contact between Officer Devine and Defendant was in the caretaker capacity. We agree with that Conclusion.
{25} Under the record before us, the trial court could reasonably have found that the officer's act of stopping and turning on his emergency lights after Defendant had pulled off the road did not convert the situation into a seizure. A caretaking encounter, however, does not prevent an officer from making observations that lead to reasonable suspicion. See State v. Langseth, 492 N.W.2d 298, 300 (N.D. 1992). After Officer Devine spoke to Defendant and detected the odor of alcohol, he had reasonable suspicion to investigate further. We conclude that no seizure occurred before the officer spoke to Defendant.
{26} Viewing the totality of the circumstances surrounding the entire encounter between the officer and Defendant, from the time Officer Devine began to follow Defendant's car until he began talking with him, we are persuaded that Defendant was not subjected to a Fourth Amendment seizure. Applying a de novo review to the trial court's application of law to the facts, the individual components of the encounter do not rise to the level of a seizure; nor, when assessed collectively, do they combine to constitute a seizure.
Conclusion
{27} Accordingly, we affirm the judgment and sentence entered below.
{28} IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR:
THOMAS A. DONNELLY, Judge
MICHAEL D. BUSTAMANTE, Judge
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