Lead Opinion
{1} On September 6,1997, a federal agent at a permanent border patrol checkpoint more than sixty miles north of the Mexican border seized eighty-five pounds of marijuana from Defendant. At trial in state court, Defendant moved to suppress the evidence based on the federal agent’s alleged violation of the United States and New Mexico Constitutions. The trial court denied the motion. A two-judge majority of the Court of Appeals reversed the trial court, holding that the federal agent unlawfully extended Defendant’s detention. We granted certiorari to review that holding. We hold: (1) the federal agent did not violate the federal Constitution; (2) the New Mexico Constitution and laws apply to evidence seized by federal agents at a border patrol checkpoint sixty miles within the State of New Mexico when that evidence is proffered in state court; (3) the federal agent violated the New Mexico Constitution; and (4) the evidence thereby seized must be excluded in state court. We reverse Defendant’s conviction.
I.
{2} On the date in question, federal agent Hector Arredondo had been employed as a border patrol agent on the U.S.-Mexico border for approximately two-and-one-half months. At about 7:45 p.m., Candelario Cardenas-Alvarez, driving a pick-up with Mexican plates, reached Agent Arredondo’s primary station at a permanent checkpoint more than sixty miles north of the border. When asked for identification, Defendant produced a resident alien identification card. After inspecting Defendant’s documents, Agent Arredondo began to ask Defendant about the origin, destination and purpose of his trip. Defendant stated that he was on his way from El Paso to Albuquerque to pick up a vehicle that he had already purchased. He said that he borrowed the vehicle he was driving if om a friend.
{3} Agent Arredondo considered it suspicious that Defendant was driving at this time, since the late hour would cause Defendant to incur additional expenses for food and lodging. After having towed vehicles for a living for seven years prior to becoming a federal agent, Agent Arredondo thought it was strange that Defendant had not brought a second person to help tow the vehicle. Nor did Defendant appear to have a tow bar or tools other than those that might have fit in the small tool box that Agent Arredondo observed in the cab. Agent Arredondo also had suspicions concerning Defendant’s decision to follow a longer, less popular highway, rather than taking Interstate 25 to Albuquerque. Finally, Agent Arredondo thought it suspicious that Defendant was driving a vehicle with Mexican plates even though he was a resident alien. Agent Arredondo ordered Defendant to a secondary inspection area.
{4} At the secondary inspection area, Agent Arredondo asked for and obtained Defendant’s consent to search the vehicle. That search revealed fresh scratch marks on the bolts attached to the gas tank. Agent Arredondo then asked for and obtained Defendant’s consent to conduct a canine inspection of the truck. The dog alerted to the gas tank, and a visual inspection revealed that it contained an internal tank. The agent arrested Defendant and advised him of his rights. Federal agents later dismantled the vehicle and discovered some eighty-five pounds of marijuana within the internal tank.
{5} At trial in state court, Defendant moved to suppress the evidence on the
II.
{6} The constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review. See State v. Attaway,
A. WHETHER THE RIGHT IS PROTECTED BY THE FEDERAL CONSTITUTION
{7} If the federal Constitution affords Defendant the protection he seeks, we will not examine his state constitutional claim. See Gomez,
{8} Federal courts have rendered the referral of a motorist from primary to secondary legally immaterial; a Border Patrol agent need not observe suspicious circumstances to make such a referral so long as the detention is permissible in scope and duration. See United States v. Ludlow,
{9} Under federal law, Defendant’s detention was not excessive in scope or duration. Defendant does not allege, nor does the record suggest, that he was detained for an impermissibly long period of time. With regard to the scope of the detention, federal courts have held that a routine stop may include more than questions regarding citizenship and immigration. “[A] few brief questions concerning such things as vehicle ownership, cargo, destination and travel plans may be appropriate [at a routine checkpoint stop] if reasonably related to the agent’s duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband.” U.S. v. Rascon-Ortiz,
{10} Because federal law does not protect the right asserted by Defendant, Defendant’s consent to submit to a search of his vehicle was not tainted, under federal law, by any unlawful police conduct. Nor do we find merit in Defendant’s suggestion that his consent was involuntary under federal law, or that the dismantling of the vehicle exceeded the scope of his consent. Under federal law the dismantling of a vehicle is generally found to be reasonable and within the parameters of a general consent. See United States v. Pena,
B. PRESERVATION
{11} We begin our examination of Defendant’s state constitutional claim by determining whether Defendant properly preserved it. Under Gomez, our analysis of whether a state constitutional claim has been preserved depends on how our precedent treats the constitutional provision in question.
{12} Defendant alleges that his detention was impermissibly extended without reasonable suspicion of criminal activity. This claim is governed by Article II, Section 10 of the New Mexico Constitution. As recognized in Gomez, although the language of this section closely resembles its federal analog, “[t]here is established New Mexico law interpreting Article II, Section 10 more expansively than the Fourth Amendment.” Id. ¶ 24 (citing Campos v. State,
{13} Counsel for Defendant remarked in his closing statement at the suppression hearing that “[particularly in search and seizure law within New Mexico ... the appellate courts are saying that our constitution gives greater rights than the federal constitution does.” While Defendant failed to specify the article and section number of the relevant constitutional provision, he clearly alerted the court to the constitutional principle (the prohibition against unreasonable searches and seizures) under which he sought protection. The trial court was also provided with the factual basis necessary to rule on the issue. The State asked Agent Arredondo about the questions he asked Defendant and the facts that allegedly aroused his suspicion. Defendant’s cross-examination of Agent Arredondo and closing statement directly addressed the reasonableness of that suspicion. The trial court then ruled on the issue. We hold that Defendant’s state constitutional claim was preserved.
C. REASONS FOR DEPARTING FROM FEDERAL PRECEDENT
{14} Under Gomez, a state court may diverge from federal precedent for one of the following three reasons: “a flawed federal analysis, structural differences between state and federal government
{15} In Gomez, we expanded the protection afforded New Mexico’s motorists from unreasonable searches and seizures. See id. ¶ ¶ 36-44. The Gomez Court questioned whether we should adopt the federal automobile exception to the warrant requirement. See id. The Court recognized that this exception, which would allow law enforcement officials to search vehicles without warrants so long as they have probable cause, was based, in part, on the notion that a motorist has a lesser expectation of privacy in an automobile. See Gomez,
{16} In a series of pre-Gomez cases interpreting the Fourth Amendment, our Court of Appeals defined a “routine” border checkpoint in a way that permits less of an intrusion than we believe federal law allows. In Galloway, for example, we examined a border checkpoint stop at which the Border Patrol agent, after inquiring about the defendants’ citizenship, proceeded to ask additional questions regarding their travel plans, and referred them to secondary.
III.
{17} The State argues that New Mexico’s requirement that reasonable suspicion
{18} Article II, Section 10. of the New Mexico Constitution provides, “The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.... ” In Gutierrez, we stated that this clause is an expression of “the fundamental notion that every person in this state is entitled to be free from unwarranted governmental intrusion.”
{19} Justice Baca suggests that by applying state law to the evidence seized by Agent Arredondo, we risk “making illegal what federal law makes legal for federal agents.” J. Baca’s Special Concurrence, ¶ 30. We do not pretend to possess such authority. Our application of state constitutional standards to determine the admissibility in state court of evidence seized by federal agents will not affect any prosecution that might be brought against Defendant in federal court, or otherwise circumscribe federal activities within our borders. See, e.g., United States v. Wright,
IV.
{20} The above analysis establishes that our state constitution applies to evidence seized by federal agents when the State seeks to admit that evidence in state court. Our interpretation of the New Mexico Constitution demands that after a Border Patrol agent has asked about a motorist’s citizenship and immigration status, and has reviewed the motorist’s documents, any further detention requires reasonable suspicion of criminal activity. See Galloway,
{21} In determining whether reasonable suspicion exists, we examine the totality of the circumstances. See Affsprung,
V.
{22} Having determined- that the New Mexico Constitution applies to' the evidence seized by Agent Arredondo, and that the prolonged detention violated the New Mexico Constitution, we must now determine whether the evidence must be suppressed. As discussed above, the exclusionary rule requires the suppression of the fruits of an unconstitutional search and seizure. See Gutierrez,
VI.
{23} Defendant’s conviction is reversed.
{24} IT IS SO ORDERED.
Notes
. We recognize that, notwithstanding these cases, our Court of Appeals has held that federal law restricts a "routine” border checkpoint to questions regarding citizenship. See Galloway,
. We believe that our decision to apply New Mexico’s exclusionary rule to evidence seized by federal agents in violation of the New Mexico Constitution and proffered in state court will have precisely the same limited impact on the federal government as would Justice Baca’s contention that "because the evidence in this case was obtained by federal agents, the New Mexico Constitution determines the admissibility of the evidence in state court." J. Baca’s Special Concurrence, V 46. While we find state action in the federal agent's prolonged detention of Defendant, however, Justice Baca instead argues that "state action occurred when the State filed charges against the Defendant and sought to use and did, in fact, use the evidence in a New Mexico prosecution." J. Baca’s Special Concurrence, ¶ 45. We have encountered no legal authority for this version of state action. Normally, in order to find state action in the prosecutor’s use of evidence, there must be a showing of agency between the party who obtained the evidence and the party using it. See, e.g., Skinner v. Ry. Labor Executives’ Ass'n,
Concurrence Opinion
(concurring in the result).
{25} I agree with the majority’s conclusion that the evidence obtained as a result of the continued seizure of the Defendant at the border patrol checkpoint and subsequent search of his automobile is inadmissible in state court. Although I concur in the result, I do not concur in the majority’s reasoning. Primarily, I respectfully disagree that federal agents are subject to the provisions of the New Mexico Constitution. See Majority Opinion, ¶¶ 1, 5, 18, 21. By premising its analysis on the conclusion that the federal agent violated Article II, Section 10 of the New Mexico Constitution, I fear that the majority leads this Court into dangerous territory by interrupting the delicate balance between federal and state power. Consequently, I am concerned that such broad reasoning will undermine this Court’s decision in State v. Gomez,
I.
{26} The majority holds that the evidence in this case is inadmissible in state court pursuant to the New Mexico Constitution.
{27} The New Mexico Constitution does not apply to federal agents and, as such, the federal agent in this case could not have violated Article II, Section 10 of the New Mexico Constitution. “Constitutions provide the framework to ‘constitute’ a government.” State v. Snyder,
{28} Additionally, the authority cited by the majority does not support the proposition that federal agents are subject to the mandates of state constitutions. As support for
[T]he question arises in a New Mexico state court in response to the State’s prosecution of Defendant for violating one of New Mexico’s criminal statutes. We determine that the State’s ability to use the evidence at issue in this case in the courts of the State of New Mexico is governed by the exclusionary rule under Article II, Section 10 of the New Mexico Constitution.
Id. ¶ 11 (emphasis added). Similarly, in Davis the Oregon Supreme Court held:
If the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9, of the Oregon Constitution. It does not matter where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution. Where that is true, the Oregon constitutional protections apply.
{29} Moreover, I have found no federal precedent that allows the provisions of a state constitution to apply to federal action and, in fact, such a holding violates principles of federalism and federal supremacy. The United States Supreme Court, for example, has expressed a limitation on state power in controlling federal action in the context of a civil action. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
{30} The majority simply disregards any potential supremacy or federalism issues raised by the extension of the New Mexico Constitution to federal action by asserting that applying state constitutional standards to federal action, “will not affect any prosecution that might be brought against Defendant in federal court, or otherwise circumscribe federal activities within our borders.” Majority Opinion, ¶ 19. However, despite the majority’s contentions that them holding will only affect the exclusion of evidence seized by federal agents in New Mexico courts, the majority is not merely promulgating a rule of evidence, but creating a state constitutional right. Simply because the majority cannot articulate a cognizable consequence of applying the state constitution to federal action, does not excuse the fact that the majority is infringing upon federal sovereignty. Individuals now have a fundamental right under Article II, Section 10, to be free from unreasonable search and seizure by state, as well as, federal officials. Federal agents who do not abide by the mandates of Article II, Section 10, violate the fundamental substantive rights of the individual who passes through the border patrol checkpoint. Therefore, although the majority claims that it does not “pretend to possess [the] authority” to make illegal what federal law makes legal, they are, in fact, doing just that. Majority Opinion, ¶ 19.
{31} Additionally, the majority assumes that there will be no other consequences for a violation of these fundamental rights other than suppression of the evidence in state court. Under this analysis, the majority dismisses the possibility of a civil remedy that may be available to individuals, especially those not engaged in criminal activity, whose state constitutional rights are violated by federal agents. Individuals whose state constitutional rights have been violated by federal agents could invoke the judicial process, claiming entitlement under Article II, Section 10, and seek compensation for injuries resulting from lawless federal behavior. See, e.g., Bivens,
II.
{32} In addition to questioning the majority’s authority to hold that federal agents are subject to the provisions of our state constitution, this broad holding also undermines this Court’s decision in Gomez,
State constitutions, too, are a font of: individual liberties, them protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.
Id.; see also PruneYard Shopping Ctr. v. Robins,
{33} Then, in 1989, this Court in State v. Cordova,
{34} Gomez provided a methodological approach to the resolution of parallel federal and state constitutional claims. In Gomez, this Court addressed whether a warrantless search of an automobile and closed containers found within was lawful absent exigent circumstances.
{35} The interstitial approach “reflects the modern role of the U.S. Constitution as the basic protector of fundamental liberties, while allowing states the opportunity to supplement the minimum protections afforded by the U.S. Constitution.” Jennifer Cuteliffe Juste, Constitutional Law — The Effect of State Constitutional Interpretation on New Mexico’s Civil and Criminal Procedure— State v. Gomez, 28 N.M. L.Rev. 355, 359 (1998) (internal quotation marks and footnote omitted). Unlike the primacy approach, the interstitial approach considers federal precedent “highly persuasive and presumptively correct.” Id. This presumption, however, is not irrefutable. New Mexico can depart from federal constitutional principles when required by compelling reasons. See Gomez,
{36} The majority’s holding in this case that the New Mexico Constitution applies to actions of federal agents conflicts with the underlying constitutional policy of New Mexico pronounced in Gomez. By concluding that the New Mexico Constitution directly governs federal action, the majority does not advance national uniformity and respect for federal constitutional precedent. Instead, New Mexico constitutional law becomes the primary source of individual rights. Federal power is summarily dismissed, making the New Mexico Constitution supreme with little consideration of federal authority. Gomez was meant to provide some consistency to independent state constitutional interpretation while advancing the orderly development of state constitutional law. These goals, however, were meant to be achieved with some deference to federal law, not with contempt for federal constitutional concerns. The majority’s Gomez analysis is perfunctory since it does not follow the spirit of cooperation upon which Gomez was decided. Moreover, the underlying policies and “New Federalism” issues triggered in Gomez are complex and have energized great discussion. Unfortunately, the majority’s failure to address the Court of Appeals’ misapplication of the interstitial approach in resolving this ease provides little guidance to our lower courts and thereby contributes to Gomez ’s misuse and misunderstanding. In the following section, I will analyze the instant ease under Gomez and indicate where I disagree with the majority’s reasoning and where I believe the Court of Appeals’ erred in its analysis.
III.
{37} To resolve this issue, the Court must preliminarily determine whether a Gomez analysis is appropriate in this case. A Gomez analysis is appropriate in a criminal case when a defendant contends that his or her rights were violated in contravention of the federal Constitution and the state constitution.
A.
{38} After determining that Gomez is applicable, the Court must then address whether the right being asserted by the Defendant is protected under the federal Constitution.
{39} The critical federal case with respect to permanent border patrol checkpoints is United States v. Martinez-Fuerte,
{40} The Court in Martinez-Fuerte did not define the outer most limits of the permissible scope of an agent’s initial routine inquiry. In keeping with the spirit of Martinez-Fuerte, however, the Tenth Circuit has held that a permissible routine inquiry includes questions “ ‘concerning such things as vehicle ownership, cargo, destination, and travel plans ... if reasonably related to the agent’s duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband.’ ” United States v. Chavira,
{41} Under federal law, therefore, the analysis does not focus on the referral to secondary inspection, but on the scope of the agent’s inquiry. Here, the agent testified that he grew suspicious of the Defendant because, although the Defendant was a legal resident and purportedly coming from El Paso, he was driving a truck with Mexican license plates. Also, the Defendant was driving on an indirect route to Albuquerque to pick up an inoperable car by himself, at night, without a tow bar. These facts reasonably aroused the agent’s suspicions which allowed him to broaden the scope of his initial inquiry under federal law. See Chavira,
B.
{42} Despite this federal precedent, the Court of Appeals purportedly resolved this ease pursuant to the Fourth Amendment alone, not reaching the state constitution. The comb held that the “Defendant’s removal from the primary area to the secondary area was an unlawful extension of his detention because the federal agent met neither Tenth Circuit nor New Mexico case law requirements of suspicious circumstances or reasonable suspicion respectively.” Cardenas-Alvarez,
IV.
{43} First, for the Defendant to benefit from the protections of our constitution, there must be sufficient state action to trigger the New Mexico Constitution. This is the most problematic aspect of this ease since the search and seizure challenged by the Defendant was performed by federal and not state agents. I do not agree with the majority that our state constitution is implicated only if it controls the actions of federal agents. I believe, as more fully detailed below, that the constitutionally significant fact is that the state prosecutor is attempting to use the evidence seized against the defendant in the prosecution for a violation of a state statute in a state court. The issue in this case is not whether the New Mexico Constitution applies to federal agents, but whether New Mexico’s constitutional standards govern the admissibility of evidence resulting from a search by federal agents in New Mexico and turned over to state authorities for use in a criminal proceeding under New Mexico law in a New Mexico court. I believe that our state constitution governs the admissibility of such evidence in our state courts.
A.
{44} Before analyzing the instant ease under Article II, Section 10 of the New Mexico Constitution, there must be a threshold determination as to whether the protections of the New Mexico Constitution are implicated. In order to invoke the protections of our state constitution, there must be some “state action.” See State v. Johnston,
B.
{46} Having established that the New Mexico Constitution is triggered in this case because the State seeks to use evidence obtained by federal agents, the Court must next determine whether the state constitution provides protection to the Defendant. See Gomez,
{47} It is evident from cases pertaining to the issue of border patrol checkpoints, in both New Mexico and federal courts, that the present case is not easily resolved. It is difficult to determine what, if any, distinction there is between New Mexico and federal ease law. New Mexico and federal cases are quite similar in resolving the extent of a permissible detention at a fixed border checkpoint within our state’s boundaries. For instance, like New Mexico, federal law requires that “[further detention of an individual beyond the scope of a routine checkpoint stop must be based upon reasonable suspicion, consent, or probable cause.” United States v. Massie,
{48} Despite the fact that New Mexico eases appear to agree with federal eases,
{49} Therefore, in the context of a border patrol checkpoint seizure, unlike federal law, New Mexico law considers a referral to secondary as presumptively terminating the initial routine inquiry, thereby requiring that an officer have reasonable suspicion before ordering an individual from primary to secondary inspection. See Estrada,
{50} Due to the complexity of Gomez, it is helpful to first illustrate situations which justify departure under these criteria. The first criteria justifying departure from federal precedent is illustrated in Gomez. Gomez provides an example for departing from federal precedent due to a flawed federal analysis. Id. ¶44. In Gomez, this Court concluded that the reasoning underlying the automobile exception, which only requires probable cause to search a vehicle, is impractical because if “there is no reasonable basis for believing an automobile will be moved or its search will otherwise be compromised by delay,” then there is no reason for not obtaining a warrant. Id. (emphasis in original.). The New Mexico Constitution, therefore, justifiably provides greater protection to individuals in their vehicles by mandating that an officer obtain a warrant to search an automobile unless there are probable cause and exigent circumstances to justify the warrantless search. See id. ¶ 46. Moreover, as a second justification for departure, we recognized that the United States Supreme Court’s blanket adoption of a bright-line rule, such as the automobile exception, caused tension in the Supreme Court’s pronouncements which disavowed bright-line rules in favor of “ ‘emphasizing the fact-specific nature of the reasonableness inquiry.’” Id. ¶45 (quoting Ohio v. Robinette,
{51} The second criterion, “structural differences between the state and federal government,” justifies a departure from federal precedent when there are specific textual differences between the state constitution and the federal Constitution. See State v. Woodruff,
{52} In the instant case, there is no flaw in the federal analysis, nor are there structural differences that warrant departure from federal precedent in the context of permanent border patrol checkpoint seizures.
{53} In the present case, the permanent border patrol checkpoint was sixty miles within the interior of New Mexico. Accordingly, it is quite possible that a significant percentage of domestic traffic continuously passes through the checkpoint everyday. The presence of domestic traffic through a border patrol checkpoint is a significant factor to consider when analyzing the limits of border patrol search and seizure law. See, e.g., Carroll v. United States,
{54} This departure from federal precedent is limited to the context of prolonged seizures at permanent border patrol checkpoints within the interior of New Mexico. Permanent border patrol checkpoints are different from the international border where all individuals passing through have been out of the United States. See, e.g., United States v. Montoya de Hernandez,
V.
{55} Since the evidence obtained as a result of the prolonged seizure of the Defendant and subsequent search of his vehicle would be unlawful under Article II, Section 10 of the New Mexico Constitution had state officials conducted the search, our exclusionary rule prohibits the use of such evidence in a New Mexico state court. See Snyder,
VI.
{56} In summary, although I concur in the result reached by the majority, I do not believe the majority fully analyzed all of the issues raised by this case. For this reason, I felt compelled to write separately to explain my concerns.
. Federal constitutional jurisprudence as it applies to state action underwent a long and arduous development. The United States Supreme Court struggled for nearly fifty years attempting to define and justify the scope of the Fourth Amendment and the exclusionary rule as it applied to the states through the Fourteenth Amendment. See Mapp v. Ohio,
. I agree with the Defendant that the Supremacy Clause does not prohibit state law from providing greater protection for individual rights than does federal law. See generally Gomez,
. See, e.g., State v. Deltenre,
. See, e.g., State v. Gutierrez,
. In State v. Hunt, the New Jersey Supreme Court suggested additional reasons to justify the divergence from federal constitutional interpretation: (1) differences in textual language; (2) legislative history; (3) preexisting state law; (4) structural differences between state and federal constitutions; (5) matters of particular state interest or local concern; (6) state traditions; and (7) public attitudes.
. I respectfully disagree with Chief Justice Serna’s analysis of United States Supreme Court precedent that, in his view, limits an agent's routine inquiry to those suspicious circumstances directly related to immigration. See Special Concurrence, Serna, C.J., II 70 (quoting City of Indianapolis v. Edmond,
. The Defendant next argues that the consent to search his vehicle, which was obtained from him by border patrol agents after he was referred to secondary, was invalid because the dismantling of his vehicle exceeded the scope of his consent. I concur in the majority's analysis of the consent issue under the Fourth Amendment. I would only emphasize that Gomez requires courts to completely analyze all issues under the federal Constitution before commencing a state constitutional analysis. For instance, had the agents in this case exceeded the scope of the Defendant’s consent, the federal Constitution would have provided the Defendant with protection and-the state constitutional issues would not need to have been addressed. Since the agents' dismantling of the vehicle in this case was reasonably within the scope of the Defendant's consent, however, their actions were lawful under the federal Constitution. Therefore, finding that the federal Constitution does not provide the Defendant with protection, the state constitutional issue should be addressed.
. By independently analyzing the state and federal standards, the Court of Appeals engaged in an analytical process more akin to a dual sovereignty approach to independent state constitutional interpretation, rather than an interstitial approach. Under the dual sovereignty approach, “both the state and the federal constitutions provide independent and equivalent sources of individual rights.” Juste, supra, at 360. This approach mandates an examination of both sources in every case and allows the states to begin their analysis with either source. See id. As a result, state constitutional law is always examined. This method is distinct from tire interstitial method of Gomez, since the state constitutional issue is not examined if the right being asserted is protected under the federal constitution.
. This rule does not affect the validity of the search with respect to the federal Constitution authorizing the search. To the contrary, this conclusion only confirms that state law determines the admissibility of evidence in state court. See State v. Rodriguez,
. I do not agree with the majority that "the New Mexico Constitution demands that after a Border Patrol agent has asked about a motorist’s citizenship and immigration status, and has reviewed the motorist’s documents, any further detention requires reasonable suspicion of criminal activity.” Majority Opinion, ¶ 20. First, this interpretation of the New Mexico Constitution is unsupported by New Mexico case law. See State v. Affsprung,
. The Court of Appeals failed to recognize the significance of this distinction between New Mexico and federal case law.
. I emphasize that cases decided after Gomez that involve instances where it has been resolved that the state constitution provides greater protection, need not again undergo a full Gomez. analysis. For instance, in State v. Warsaw,
. It is important to emphasize that when determining whether there exists a distinctive characteristic to justify departure, the analysis must continue to focus on the specific constitutional principle-permanent border patrol checkpoint seizures-which was analyzed under federal law, rather than New Mexico constitutional law as a whole. Departure is not warranted simply because New Mexico's exclusionary rule is based on a rationale distinct from the federal exclusionary rule. See Snyder,
Concurrence Opinion
(concurring in result).
{57} I concur in the result. However, I would affirm the Court of Appeals on the basis of the Fourth Amendment to the United States Constitution, and I respectfully believe it is unnecessary to reach the state constitutional question in this appeal. Under the interstitial approach outlined in Gomez,
{58} The majority relies upon Tenth Circuit case law to conclude that the seizure in this case did not violate federal law. I do not disagree with the majority’s interpretation of existing Tenth Circuit precedent. Instead, I disagree with the Tenth Circuit’s construction of the opinions of the United States Supreme Court, and I also believe that a recent United States Supreme Court opinion raises some doubts about the Tenth Circuit’s position on this issue. To begin with, the courts of New Mexico are bound by the United States Supreme Court’s interpretation of the federal Constitution, but where the issue has not been explicitly resolved by the Supreme Court, we are not bound in our search for the meaning of the Fourth Amendment by the Tenth Circuit’s interpretation of Supreme Court precedent. See ASARCO, Inc. v. Radish,
{59} The starting point in the analysis under the Fourth Amendment is the United States Supreme Court’s opinion in MartinezFuerte, in which the Court addressed the constitutionality of fixed checkpoints located a reasonable distance from the border at which individuals were stopped without particularized suspicion for the purpose of detecting illegal aliens. The Court determined that a stop at a border checkpoint constitutes a seizure within the meaning of the Fourth Amendment. Martinez-Fuerte,
{60} Of particular relevance to the present case, the Court further determined that “it is constitutional to refer motorists selectively to the secondary inspection area ... on the basis of criteria that would not sustain a roving-patrol stop.” Id. at 563,
{61} The Court of Appeals first meaningfully examined Martinez-Fuerte in State v. Estrada,
the questioning at the secondary area in [.Martinez-Fuerte] was equivalent to the brief questioning performed at the primary area in this case. The issue in this ease and in [Martinez-Fuerte], therefore, is not simply whether a secondary or primary area was the location of the questioning. The issue is the extent of detention allowed to accomplish the purposes of the checkpoint.
Id. at 800,
{62} Under New Mexico precedent interpreting the federal Constitution, then, it is not the referral to a secondary area in and of itself that triggers the need for reasonable suspicion;
{63} Additionally, I do not believe that the interpretation of Martinez-Fuerte by the Court of Appeals in Estrada is necessarily inconsistent with Tenth Circuit case law. Like Estrada, the Tenth Circuit does not focus on the location of the questioning, whether it takes place at a primary or secondary area; the focus is on the length of detention and the scope of inquiry. Perhaps unlike Estrada, the Tenth Circuit permits a limited inquiry into suspicious circumstances beyond questions concerning immigration during the initial brief investigation authorized by Martinez-Fuerte. However, the Tenth Circuit has also held that “when the questions asked at the primary inspection area satisfy all concerns about a person’s citizenship and immigration status,” an agent must have reasonable suspicion that a crime has been committed in order to direct a vehicle to a secondary area for further questioning. United States v. Preciado,
Requiring an individualized, reasonable suspicion as a prerequisite to expanding the scope of detentions at fixed checkpoints protects motorists and passengers from random stops involving the “kind of standardless and unconstrained discretion [that] is the evil the Court has discerned when in previous eases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”
Id. (quoting Delaware v. Prouse,
{64} In Sanders,
{66} Although the Supreme Court stopped short of addressing whether a fixed border checkpoint established to detect illegal immigration may be enlarged to detect the possession of narcotics without individualized suspicion, see id. at 457 n. 2 (expressing “no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car”); see also United States v. Barnett,
{67} In Martinez-Fuerte, the Court explained that fixed checkpoints located away from the border at a reasonable distance inside the United States are necessary for the detection of illegal immigration because adequate detection at the border is a virtual law enforcement impossibility.
{68} Of course, the conclusion that there is a lesser governmental interest at stake in this case, the general interest in crime control, does not necessarily mean that the Fourth Amendment requires reasonable suspicion. “In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual.” Martinez-Fuerte,
{69} Once this highly abbreviated questioning has been completed, however, I believe the detention rises to the level of requiring reasonable suspicion under the Fourth Amendment. If an officer persists in asking questions beyond those specifically listed above or to follow up on questions already asked, the length of the detention would necessarily increase. In addition, the subjective intrusion that the Supreme Court described in Martinez-Fuerte as minimal at fixed checkpoints would undoubtedly be heightened by the implicit message sent to the individual that the agent distrusts or is suspicious of the answers given to the routine questions. This is especially true of a referral to a secondary area as in this case because, unlike Martinez-Fuerte, the referral to secondary is not a routine matter. For the individual, a referral to a secondary area after initial questioning, as opposed to the referral for the purpose of routine questioning in Martinez-Fuerte, would undoubtedly cause a heightened level of “concern or even fright on the part of lawful travelers” that was not considered by the Court in Martinez-Fuerte.
{71} Thus, prolonged questioning most certainly goes beyond “the type of stops described in” Martinez-Fuerte. Just as the Supreme Court determined that it was necessary to draw a line in Edmond “to prevent such intrusions from becoming a routine part of American life,” I believe that the line requiring reasonable suspicion must be drawn at border checkpoints once the initial routine inquiry has been completed and the purpose of detecting illegal immigration has been satisfied. I agree with the Tenth Circuit that border patrol agents are not required to ignore evidence of criminal activity, see Ludlow,
{72} I would emphasize that this is not a subjective inquiry. See Barnett,
{73} In light of the Supreme Court’s cautionary language in Edmond that fixed checkpoints are an extremely limited exception to the rule of particularized suspicion, I am unwilling to take the step that the Circuit Courts of Appeals have taken, and that the majority takes in this case, to expand Martinez-Fuerte beyond its explicit language to include an extended detention for the purpose of detecting illegal narcotics possession. See Martinez-Fuerte,
{74} In this case, Agent Arredondo completed his initial brief questioning and visual
{75} Although I believe this case is resolved under the Fourth Amendment, I believe a few remarks about the state constitutional analysis in the majority opinion are in order. I feel obligated to first say that I have no doubt that Article II, Section 10 of the New Mexico Constitution prevents government agents at a fixed checkpoint from arbitrarily extending a seizure by referring an individual to a secondary area without individualized suspicion after having completed routine questioning at a primary area. However, because this case involves a federal border checkpoint, I believe that it raises highly complex questions of federalism, questions that have caused me a great deal of ambivalence. The area of border patrol searches, even when conducted some distance inside the State of New Mexico, seems to implicate the uniquely federal concern of illegal immigration. See United States v. Martinez-Fuerte,
{76} The majority holds that a federal border patrol agent who conducts an unreasonable search and seizure sixty miles within the state of New Mexico violates Article II, Section 10 of the New Mexico Constitution. See Majority Opinion ¶¶ 1, 18, 21 (“We therefore hold that Agent Arredondo violated the New Mexico Constitution when he prolonged Defendant’s detention without reasonable suspicion.”). Respectfully, I have some doubt as to whether New Mexico has the authority to deem a search conducted by federal agents at a federal checkpoint for federal purposes pursuant to and in compliance with federal law to be illegal under the New Mexico Constitution. As expressed by Justice Baca, I believe that the majority’s analysis implicates the Supremacy Clause of the United States Constitution. Because the federal officers in this case were acting pursuant to federal law, I am concerned that the holding by the majority might conflict with the pronouncement in the United States Constitution that the laws of the United States are supreme and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI. This Court is obligated to defer to the duly enacted, valid laws of Congress as implemented by the executive branch of the federal government as long as that implementation complies with the provisions of the United States Constitution. By concluding that the federal agents acted “unreasonably,”
{77} If the majority’s analysis is inconsistent with the Supremacy Clause, then the question arises whether the evidence should still be suppressed under the exclusionary rale inherent in Article II, Section 10 of the New Mexico Constitution. The Court of Appeals has held that the exclusionary rule applies to evidence sought to be admitted in state court that was obtained by federal border agents even though the Court did not hold, as the majority holds in this case, that state constitutional protections apply to the actions of federal agents. Snyder,
{78} In Gutierrez, this Court explained that the exclusionary rule advances the principles of judicial integrity and deterrence, but those principles do not constitute the core purpose of the rule.
{79} In formulating this interpretation of the exclusionary rule in Gutierrez, we found “most persuasive” the reasoning of the court in United States v. Mounday,
{80} Assuming the New Mexico Constitution’s protection against unreasonable
{81} Nevertheless, as I have indicated, I believe it is unnecessary to resolve these difficult questions involving the New Mexico Constitution due to our interstitial approach to state constitutional law. I conclude that the extended detention in this case violated the Fourth Amendment. I therefore concur in the result of affirming the Court of Appeals.
. The Court of Appeals concluded that "movement to a secondary area is considered detention beyond a reasonable inquiry.” Cardenas-Alvarez,