DISCUSSION {14} This case involves the proper scope of a roadside search under State v. Taylor, 1999-NMCA-022, 126 N.M. 569, 973 P.2d 246, State v. Jutte, 1998-NMCA-150, 126 N.M. 244, 968 P.2d 334, and other similar cases, most recently State v. Duran, 2003-NMCA-112, 134 N.M. 367, 76 P.3d 1124, cert. granted, 134 N.M. 320, 76 P.3d 638 (Sept. 3, 2003).
{18} The Court of Appeals reversed the trial court, holding that Officer Johnston impermissibly expanded the scope of the search by asking Defendant questions about her travel plans. State v. Duran, 2003-NMCA-112, ¶ 21, 134 N.M. 367, 76 P.3d 1124. The court held that asking about travel plans was not reasonably related to the circumstances that initially justified the stop, i.e. the misplaced or concealed temporary tag.
Under New Mexico law when a warrantless arrest is challenged, the Government must prove that the arrest meets constitutional muster. State of New Mexico v. Ponce, 103 P.3d 54 (N.M.App. 2004) cert. granted 103 P.3d 1098, 2004-NMCERT-12 (N.M. Dec 06, 2004) (No. 28,917); State of New Mexico v. Duran, 76 P.3d 1124 (N.M.App. 2003) cert. granted 76 P.3d 638 (N.M. Sep 03, 2003) (No. 28,241). In Ponce, the defendant was on ISP supervision based on prior convictions for aggravated assault and battery.
In each case, the Court of Appeals reversed the district court, concluding that the officer impermissibly expanded the scope of the stop because the officer did not articulate a reasonable suspicion of criminal activity to justify continued detention. Van Dang, 2004-NMCA-067, 135 N.M. 719, 93 P.3d 1; State v. Duran, 2003-NMCA-112, 134 N.M. 367, 76 P.3d 1124. {23} In each case, we reversed the Court of Appeals and upheld the decision of the district court to deny the motion to suppress.
I think the Court of Appeals in this case did that. To rely on Chapman to reverse the Court of Appeals in this case seems to me not only wrong, see e.g. State v. Pierce, 77 P.3d 292, 296, ¶ 12 (2003) (holding that even extremely nervous and fidgety behavior without more does not justify a Terry patdown); State v. Duran, 76 P.3d 1124, 1129, ¶ 19 (2003) (confirming that an officer's training and experience must actually result in articulable observations justifying an additional investigation), but unnecessary, although limiting Chapman is, as we all agree, difficult. To rely on it to reverse in this case, however, seems to me to limit Defendants' federal constitutional right to be free from an unreasonable search and seizure as well as create a new exception from the general requirement that a search requires a warrant.
In the face of a defendant's challenge to the constitutionality of a warrantless arrest or search, the State is required to present testimony or other evidence showing that the arrest or search met constitutional muster. See State v. Duran, 2003-NMCA-112, ¶ 15, 134 N.M. 367, 76 P.3d 1124 ("[D]efendants have the burden to raise an issue as to their illegal search and seizure claims. Once they have done so, the burden shifts to the [S]tate to justify the warrantless search [or seizure].
Lowe, 2004-NMCA-054, ¶ 12, 135 N.M. 520, 90 P.3d 539; State v. Taylor, 1999-NMCA-022, ¶ 14, 126 N.M. 569, 973 P.2d 246. Contemporaneous or continued investigation beyond the scope of the initial traffic stop is justified only if the officer can articulate specific and particularized factors that give rise to an objectively reasonable suspicion that other criminal activity has been or may be afoot. Lowe, 2004-NMCA-054, ¶ 12, 135 N.M. 520, 90 P.3d 539; State v. Duran, 2003-NMCA-112, ¶ 19, 134 N.M. 367, 76 P.3d 1124, cert. granted, Sup.Ct. No. 28,241, 134 N.M. 320, 76 P.3d 638; Romero, 2002-NMCA-064, ¶ 10, 132 N.M. 364, 48 P.3d 102. Generalized suspicions or unparticularized hunches that a person has been or is engaged in criminal activity do not suffice to justify a detention.
We have previously recognized that the State bears the burden of demonstrating the relevance of an officer's training and experience to search and seizure issues. State v. Duran, 2003-NMCA-112, ¶ 19, 134 N.M. 367, 76 P.3d 1124. Here, Defendant did not object to the officer's testimony on the ground that the State had not laid an adequate foundation for the admission of testimony linking the officer's training and experience to his awareness of officer safety concerns.