A Las Cruces police officer arrested Manuel Romero for obstructing an officer in violation of New Mexico Statute 30-22-1(D) because he failed to immediately comply with the officer’s request that he submit to a pat-down search. During the search incident to arrest, the officer discovered a stolen firearm in Romero’s backpack.  Romero was charged with one count of being a felon in possession of a firearm, and one count of knowingly possessing a stolen firearm. Romero moved to suppress the firearm that.    Romero argued in his motion that the firearm should have been suppressed because the officer had neither: (1) reasonable suspicion to conduct the pat-down search; nor (2) probable cause to arrest Romero for obstruction. The district court denied Romero’s motion. The Tenth Circuit reversed, agreeing with Romero’s latter argument that there was insufficient probable cause to support an arrest under section 30-22-1(D). The court concluded that Romero did not refuse to obey Officer Dollar’s commands in any way that could constitute unlawful “resistance” under section 30-22-1(D). Thus, the search of the backpack could not be supported as a search incident to arrest. The matter was remanded for further proceedings.

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