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State v. Affsprung4/26/1993
Opinion
Defendant appeals the trial court's order denying his motion to suppress. Following the denial of his motion to suppress, Defendant filed an application for interlocutory appeal. The issue on appeal is whether, following a brief visual inspection of a vehicle and limited questioning regarding the occupant's residency and citizenship at a fixed immigration patrol checkpoint near the border, further detention may properly be based on reasonable suspicion of criminal activity. We hold reasonable suspicion is the proper standard, and affirm.
STANDARD OF REVIEW
We view the evidence elicited in the light most favorable to sustain the trial court's finding that the seizure was lawful. ), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990); State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983). Furthermore, as the reviewing Court, we must indulge all inferences in support of the ruling and disregard evidence to the contrary. To the extent the witnesses' testimony differs as to the facts, as it does in this case, it is the trial court's prerogative to determine the credibility of the evidence. See ), cert. denied, 454 U.S. 832, 102 S. Ct. 130, 70 L. Ed. 2d 110 (1981). However, whether the facts are sufficient to satisfy the appropriate standard is a legal question.
), cert. denied, 114 N.M. 62, 834 P.2d 939 (1992).
We disagree with Defendant's contention that any facts elicited at the preliminary hearing cannot be considered by this Court as the record developed in this case. At the hearing on the motion to suppress, defense counsel played substantial portions of the tape from the preliminary hearing to refresh border patrol agent David Garza's recollection. Defense counsel also cross-examined Agent Garza at length regarding his previous testimony at the preliminary hearing. To the extent that defense counsel played the preliminary hearing tape, and that Agent Garza was cross-examined regarding his prior testimony, such questioning and references to the prior preliminary hearing testimony are a part of the testimony in this case. Cf. Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954) (recognizing the distinction between admitting the transcript of previous testimony and incorporating questioning using prior transcribed testimony to impeach). We therefore may consider any preliminary hearing testimony insofar as it was brought to the attention of the district court at the hearing on the motion to suppress and incorporated in this record.
FACTS
Defendant was stopped at a fixed immigration patrol checkpoint outside Alamogordo, at approximately 9:00 p.m. Although his testimony varied somewhat, Agent Garza testified he smelled alcohol very early in his encounter with Defendant. It was not apparent to the immigration agent whether the odor came from Defendant's person or from the vehicle. Agent Garza proceeded to question Defendant regarding his citizenship and residency status and was satisfied Defendant was a U.S. citizen. Although Defendant seemed "pretty relaxed" and "kicked back," Garza observed that Defendant was avoiding eye contact. It did not, however, appear to Agent Garza that Defendant was intoxicated or impaired. Agent Garza then asked Defendant where he was coming from, where he was going, and to whom the vehicle, a 1983 Cadillac, belonged. Agent Garza thought that Defendant looked too young to be driving that type of vehicle and was concerned that it might have been stolen. Agent Garza indicated that he made the inquiries beyond Defendant's citizenship and re
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