Opinion
No. 35,865
05-16-2017
STATE OF NEW MEXICO, Plaintiff-Appellee, v. KENNETH SCHELLER, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
Albuquerque, NM for Appellee Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
HANISEE Judge. {1} Defendant appeals from his convictions for trafficking a controlled substance in violation of NMSA 1978, Section 30-31-20 (2006); possession of a controlled substance in violation of NMSA 1978, Section 30-31-23(A) (2011); and use or possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1(A) (2001), following a conditional plea. This Court issued a calendar notice proposing to conclude that the district court erred in denying Defendant's motion to suppress. Specifically, we proposed to hold that, because Officer Berdoza appeared to have relied solely on Defendant's nervousness to justify his expansion of the scope of the stop, that the expansion was constitutionally impermissible. The State has filed a response concurring with this Court's proposed summary reversal and informing this Court that it will not be filing a memorandum in opposition. Accordingly, for the reasons stated in this Court's notice of proposed disposition, we reverse Defendant's convictions.
{2} IT IS SO ORDERED.
/s/ _________
J. MILES HANISEE, Judge
WE CONCUR:
/s/ _________
LINDA M. VANZI, Chief Judge /s/ _________
MICHAEL E. VIGIL, Judge