NM: Officer’s inferences for RS don’t require certainty

Reasonable suspicion was found here on the totality from experience, logical inferences, and the high-crime nature of the area where it was going on. “[W]hile it was possible Martinez’s conduct was innocuous, Officer Garrison was not required to wait until he was certain Martinez’s conduct was criminal before investigating. Officer Garrison was permitted to investigate to resolve whether in fact Martinez’s conduct was innocent or criminal.” State v. Martinez, 2020 N.M. LEXIS 1 (Jan. 2, 2020):

2. Permissible inferences versus hunches

It cannot be, as a simple matter of logic, that an officer may stop and briefly investigate the possibility of criminal conduct only if the officer is certain of the existence of criminal conduct. If certainty of wrongdoing were the standard, there would never be reason for investigation.

If officers need not be certain that observed conduct is criminal in order to stop a person and investigate, then what amount of suspicion must an officer possess to execute a valid Terry stop? Our case law makes clear that “[u]nsupported intuition and inarticulate hunches are not sufficient.” Jason L., 2000-NMSC-018, ¶ 20 (internal quotation marks and citation omitted). But where does the impermissible “hunch” end and the informed and permissible inference begin? We must attempt some answer to this question.

“The level of suspicion required for an investigatory stop is considerably less than proof of wrongdoing by a preponderance of the evidence.” State v. Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964 (internal quotation marks and citation omitted). Officers are “not required to rule out all possibility of innocent behavior before initiating a brief stop and request for identification. The test is founded suspicion, not probable cause.” United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975); accord Yazzie, 2016-NMSC-026, ¶ 18. “[P]olice officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent.” Holland, 510 F.2d at 455.

“The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” In re Tony C., 21 Cal. 3d 888, 148 Cal. Rptr. 366, 582 P.2d 957, 960 (Cal. 1978); accord Yazzie, 2016-NMSC-026, ¶ 22. This is because the principal function of an investigation is to resolve whether certain activity is in fact legal or illegal. In re Tony C., 582 P.2d at 960; accord United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007). “[I]t will suffice that there exists at the time of the stop a substantial possibility … that criminal conduct has occurred, is occurring, or is about to occur.” LaFave, supra, § 9.5(b) at 658-59 (footnotes and internal quotation marks omitted).

The argument that the conduct under scrutiny is equally consistent with innocence—an argument Martinez makes here in support of the Court of Appeals’ resolution of this case—can prevail only where there are no facts that would “make the conduct observed … anything but innocuous.” United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir. 1975). In other words, where there is not even “a significant possibility … that the person observed is engaged in criminal conduct.” LaFave, supra, § 9.5(b) at 663.

Officer Garrison most certainly could infer that there was a substantial possibility Martinez was engaged in drug sales. Officer Garrison observed two instances of conduct consistent with drug transactions. The Court of Appeals’ conclusion that Officer Garrison’s deductions and inferences amounted to nothing more than an “unparticularized hunch” of wrongdoing overstates what is necessary for an officer to form particularized suspicion. Martinez, No. 35,402, mem. op. ¶ 15, 2017 N.M. App. Unpub. LEXIS 187. Similarly, the Court’s conclusions are predicated on a view of the evidence not consistent with the district court’s findings.

In sum, while it was possible Martinez’s conduct was innocuous, Officer Garrison was not required to wait until he was certain Martinez’s conduct was criminal before investigating. Officer Garrison was permitted to investigate to resolve whether in fact Martinez’s conduct was innocent or criminal.