NMCA: Officer’s tap on car window was not a seizure

Jennifer Simpson parked her car in a lot at a city park at 11:00 p.m. and turned off the car’s lights. A police officer saw this and believed her actions were suspicious because the park had closed an hour earlier (though the closing time was not posted). As the officer walked towards the car, Ms. Simpson turned on the car’s lights and began to drive away. The officer then reached out and tapped on the car window. Ms. Simpson stopped and rolled down her window. The officer smelled a strong odor of alcohol coming from the car, which ultimately led to a guilty plea to DWI (while reserving the right to appeal).

On appeal, Ms. Simpson argued that the officer seized her by tapping on her car window, that he lacked reasonable suspicion, and that the evidence that the officer gathered should therefore be suppressed.

In State v. Simpson, an opinion written by Judge Pro Tempore Daniel Gallegos (who is now a district judge on the Second Judicial District Court), rejected this claim, concluding that the initial encounter between Ms. Simpson and the officer was not a seizure, but was consensual.

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