STATE of New Mexico, Plaintiff-Petitioner, v. Candelario CARDENAS-ALVAREZ, Defendant-Respondent.
No. 26,130.
Supreme Court of New Mexico.
April 30, 2001.
2001-NMSC-017 | 25 P.3d 225
386
Phyllis H. Subin, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Respondent.
Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Scott M. Davidson, Albuquerque, NM, Jones, Snead, Wertheim, Wentworth & Jaramillo, P.A., Jerry Todd Wertheim, Santa Fe, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.
OPINION
FRANCHINI, Justice.
{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 from 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, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994); State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932 P.2d 499. Defendant claims that the search and seizure conducted by Agent Arredondo violated his rights under both federal and state constitutions. For reasons set forth below, we reject Defendant‘s claim that the search and seizure violated his rights under the federal Constitution. In addressing his state constitutional claim, we employ the interstitial analysis adopted in State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. Pursuant to Gomez, we ask: (1) whether the right being asserted is protected under the federal Constitution; (2) whether the state constitutional claim has been preserved; and (3) whether there exists one of three reasons for diverging from federal precedent. Id.
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, 1997-NMSC-006, ¶ 19. Here, Defendant seeks protection from the extension of his detention at a border checkpoint stop when the officer conducting the detention allegedly lacked reasonable suspicion of criminal activity. In Cardenas-Alvarez, the two-judge majority recognized that unlike New Mexico courts, which demand “reasonable suspicion” to extend a detention beyond routine questions, the Tenth Circuit requires mere “suspicious circumstances.” 2000-NMCA-009, ¶ 14 (comparing State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993) with United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993)). The Court of Appeals held Defendant‘s extended detention unconstitutional because “the facts known to the Border Patrol agents [do not meet] what we have assumed to be the lower Tenth Circuit standard of suspicious circumstances.” Cardenas-Alvarez, 2000-NMCA-009, ¶ 18. The State argues that this holding “rests on a misunderstanding of federal border search law.” We agree. Under federal law, Defendant‘s detention constituted a routine border checkpoint stop and therefore need not have been supported by suspicious circumstances.
{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, 992 F.2d 260, 263-64 (10th Cir.1993) (holding that “Border Patrol agents have virtually unlimited discretion to selectively refer cars to the secondary inspection area. Thus a routine checkpoint inquiry may properly take place at a primary inspection area, a secondary inspection area, or both as long as the scope of the inquiry is appropriate.“); United States v. Sanders, 937 F.2d 1495, 1499-1500 (10th Cir.1991) (holding that suspicious circumstances are not required to justify the referral of an individual to a secondary inspection station); see also United States v. Pinedo-Montoya, 966 F.2d 591, 593-94 (10th Cir.1992) (holding that reasonable suspicion is required to detain a motorist and to conduct more than a routine stop, but referral of the accused to secondary detention was routine and constitutionally insignificant).
{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, 994 F.2d 749, 752 (10th Cir.1993); see also United States v. Massie, 65 F.3d 843, 848 (10th Cir.1995) (same); United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993) (same).1 As demonstrated above, such a routine stop may be conducted at primary or secondary inspection areas without suspicious circumstances. Here, because Agent Arredondo‘s questions concerned Defendant‘s travel plans and were reasonably related to his duty to prevent the smuggling of contraband (in this case narcotics) they fell within the routine scope of inquiry allowed under the federal Constitution.
{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, 920 F.2d 1509, 1514-15 (10th Cir.1990) (holding that a search that included removing a panel from the car door was within the scope of the defendant‘s consent to “look” in his car). The agents in the present case did not dismantle the vehicle until after they substantiated the presence of narcotics within the body of the vehicle by carrying out a canine search to which Defendant had also consented. See United States v. Santurio, 29 F.3d 550, 553 (10th Cir.1994) (holding that the removal of screws that fastened a strip of carpet covering a metal compartment containing cocaine did not exceed the scope of the defendant‘s consent to search, especially since the officer did not “enter the compartment until the drug detection dog alerted to the presence of narcotics.“). Under federal law, the dismantling of Defendant‘s vehicle in order to access the inner compartment of the gas tank did not exceed the scope of Defendant‘s consent. Because the protections sought by Defendant are not cognizable un-
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. 1997-NMSC-006, ¶¶ 22-23. If there is no precedent construing the state constitutional provision more broadly than its federal analog the defendant must assert at trial that the state constitution should be interpreted more broadly and provide reasons for the requested departure. Id. ¶ 23. If, on the other hand, there exists “established precedent” demonstrating that our interpretation of the New Mexico Constitution departs from federal constitutional law, we require less of the defendant to preserve his claim. See id. ¶ 22. If such state precedent exists, the defendant preserves his claim by: “(1) asserting the constitutional principle that provides the protection sought under the New Mexico Constitution, and (2) showing the factual basis needed for the trial court to rule on the issue.” Id.
{12} Defendant alleges that his detention was impermissibly extended without reasonable suspicion of criminal activity. This claim is governed by
{13} Counsel for Defendant remarked in his closing statement at the suppression hearing that “[p]articularly 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, or distinctive state characteristics.” Gomez, 1997-NMSC-006, ¶ 19 (internal citations omitted). We do not find flaw in the federal analysis, nor do we detect structural differences between state and federal gov-
{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, 1997-NMSC-006, ¶ 37. In rejecting the federal automobile exception to the warrant requirement, this Court dismissed the notion that an individual lowers his expectation of privacy when he enters an automobile, and elected instead to provide motorists with a “layer of protection” from unreasonable searches and seizures that is unavailable at the federal level. Id. ¶ 38. Gomez confirms that New Mexico courts interpret
{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. 116 N.M. at 9, 859 P.2d at 477. Unlike the Tenth Circuit, which considers questions regarding travel plans and the referral of a defendant from primary to secondary part of a routine border checkpoint stop that requires no suspicion of criminal activity, the Galloway Court sought to determine whether the agent “had reasonable suspicion to prolong the detention at the primary area to ask about the nature of the trip and to refer the vehicle to the secondary area based on the answers he received.” Id. See also Affsprung, 115 N.M. at 548-49, 854 P.2d at 875-76 (requiring reasonable suspicion to justify a Border Patrol agent‘s inquiry into the ownership of the defendant‘s vehicle and his travel plans); Estrada, 111 N.M. at 799, 810 P.2d at 818 (“[I]f the issues of residence or citizenship are resolved at the primary area of the checkpoint, referral of a vehicle to the secondary area must be based on at least reasonable suspicion of wrongdoing.“); cf. State v. Guzman, 118 N.M. 113, 114-15, 879 P.2d 114, 115-16 (Ct.App.1994) (determining whether or not a Border Patrol agent‘s questions regarding the defendant‘s travel plans and vehicle ownership were supported by reasonable suspicion); State v. Porras-Fuerte, 119 N.M. 180, 184, 889 P.2d 215, 219 (Ct.App.1994) (treating the second detention of a vehicle that had already left a border checkpoint as a secondary stop, and holding that “reasonable suspicion remains the standard by which we judge these second stops.“). Although Galloway, Affsprung, and Estrada conflict with the lesser degree of privacy that federal courts afford motorists and the prevailing Tenth Circuit approach to border checkpoints, these cases are consistent with the extra layer of protection that New Mexico offers its motorists. Therefore, in New Mexico, we continue to proscribe the prolongation of a border checkpoint stop once questions regarding citizenship and immigration status have been answered, unless the officer conducting the stop reasonably suspects the defendant of criminal activity. Traffic congestion may require the referral of a motorist from primary to secondary without offending this rule, see Estrada, 111 N.M. at 800, 810 P.2d at 819, however, no such congestion was present in this case. We now consider whether our state search and seizure jurisprudence applies to the case at bar.
III.
{17} The State argues that New Mexico‘s requirement that reasonable suspi-
{18}
{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, 16 F.3d 1429, 1434 (6th Cir.1994) (“[T]he state may exclude evidence in trials
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, 116 N.M. at 9, 859 P.2d at 477; Affsprung, 115 N.M. at 548-49, 854 P.2d at 875-76; Estrada, 111 N.M. at 799, 810 P.2d at 818. Agent Arredondo prolonged Defendant‘s detention by asking him additional questions and referring him to secondary. We now question whether Agent Arredondo possessed the requisite reasonable suspicion.
{21} In determining whether reasonable suspicion exists, we examine the totality of the circumstances. See Affsprung, 115 N.M. at 549, 854 P.2d at 876. “Reasonable suspicion must be based on specific articulable facts and the rational inferences that may be drawn from those facts.” State v. Flores, 1996-NMCA-059, ¶ 7, 122 N.M. 84, 920 P.2d 1038. Agent Arredondo offered no justification for his decision to ask Defendant additional questions after the issue of immigration had been resolved. The only reasons he offered for his decision to refer Defendant to secondary were that “all the facts he was telling me [were suspicious]” and that Defendant‘s account of what he was doing “was not very reasonable.” This testimony does not amount to specific facts from which an inference of criminal activity could possibly be drawn. Moreover, after reviewing the record in its entirety, we agree with the Court
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, 116 N.M. at 444-47, 863 P.2d at 1065-68. A defendant‘s consent to a search following an unconstitutional search and seizure may sanitize the evidence and exempt it from the exclusionary rule if there exists a sufficient causal break between the illegal conduct and the consent. See State v. Bedolla, 111 N.M. 448, 455-56, 806 P.2d 588, 593-94 (Ct.App.1991). Here, Defendant‘s consent was tainted by the unlawfully prolonged detention that immediately preceded it. That taint was never purged by a causal, or even temporal, break in the chain of events that led from the unconstitutional seizure to the consent to search. All evidence thereby seized is therefore inadmissible in New Mexico state courts.
VI.
{23} Defendant‘s conviction is reversed.
{24} IT IS SO ORDERED.
WE CONCUR: PAMELA B. MINZNER, Justice, PETRA JIMENEZ MAES, Justice.
PATRICIO M. SERNA, Chief Justice (specially concurring).
JOSEPH F. BACA, Justice (specially concurring).
BACA, Justice (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
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, 1998-NMCA-166, ¶ 28, 126 N.M. 168, 967 P.2d 843 (Hartz, C.J., specially concurring); see also Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (“The Constitution created a Federal Government of limited powers.“); Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858, 863 (1992) (“A state constitution is the supreme written will of the people of a state regarding the framework for their government and is subject only to the limitations found in the federal Constitution.“). The provisions of a constitution, therefore, relate only to the sovereign government that is the subject of that constitution, and a Bill of Rights provision contained within a state constitution serves to “protect against abuse of power by that sovereign.” Snyder, 1998-NMCA-166, ¶ 28, (Hartz, C.J., specially concurring); see also Barron v. Mayor of Baltimore, 32 U.S.(7 Pet.) 243, 247, 8 L.Ed. 672 (1833)1 (“[T]he limitations on power, if expressed in general terms, are naturally . . . applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.“). For example, the provisions of the Fourth Amendment to the United States Constitution, which applies only to the federal government, ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The federal prohibition against unlawful searches and seizures is enforceable against the states only through the Due Process Clause of the Fourteenth Amendment which provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”1
{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.
834 P.2d at 1012-13 (third emphasis added). The holding of Davis is distorted by omitting that the Oregon Supreme Court‘s decision was based on “the constitutionally significant fact . . . that the Oregon government seeks to use the evidence in an Oregon criminal prosecution.” Id. (emphasis added); see Majority Opinion, ¶ 18. Contrary to the majority‘s characterization of Snyder and Davis, the courts in both cases do not impose the mandates of their state constitution on federal or foreign agents; instead, they focus on the state actors that are seeking to introduce the evidence seized and the forum where the evidence is sought to be used. Therefore, these cases provide no authority for the majority‘s holding.
{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, 403 U.S. 388, 395, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court stated that “just as state law may not authorize federal agents to violate the Fourth Amendment [citations omitted], neither may state law undertake to limit the extent to which federal authority can be exercised.” Id. “In its sphere of activity the federal law is sovereign, and insofar as it establishes minimum standards it is paramount.” Barry Latzer, The New Judicial Federalism and Criminal Justice: Two Problems and a Response, 22 Rutgers L.J. 863, 884 (1991). As stated by the majority, the federal agents in this case acted in conformity with the federal Constitution and therefore did not violate federal law. See Majority Opinion, ¶¶ 5, 9. By mandating that the federal agents also conform to Article II, Section 10 of the New Mexico Constitution, however, the majority is making illegal what federal law makes legal for federal agents. Such a result may violate the Supremacy Clauses of both the United States and New Mexico Constitutions.2 See
{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 their 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, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (holding that an individual may bring a private cause of action under the Fourth Amendment, even in the absence of statutory authority, and is entitled to recover money damages for any injuries he has suffered as a result of a federal agent‘s violation of the Fourth Amendment). Therefore, I believe that the majority‘s application of Article II, Section 10, to the actions of federal agents at federal border patrol checkpoints, implicates serious issues of supremacy and federalism. For these reasons, I respectfully disagree with the majority‘s conclusion that federal agents are subject to the New Mexico Constitution.
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, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1. Gomez provided the analytical framework for a New Mexico court‘s departure from federal jurisprudence based on independent state constitutional interpretation, or “New Federalism.” “New Federalism” is “the expression of state courts’ increasing tendency to interpret their constitutions to provide individuals with greater rights than those guaranteed by the United States Constitution.” James W. Diehm, New Federalism and Constitutional Criminal Procedure: Are We Repeating the Mistakes of the Past?, 55 Md. L.Rev. 223, 224 (1996). “New Federalism” was articulated by former Justice Brennan who urged states to depend on their own state constitutional guarantees rather than to rely automatically on the United States Supreme Court to interpret the scope of liberties that should be afforded to individuals within their state. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 491 (1977). The former Justice emphasized:
State constitutions, too, are a font of individual liberties, their 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, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (concluding that each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution“). For several years prior to and after Justice Brennan‘s call to action, “the New Mexico Constitution was interpreted in ‘lock-step’ with federal precedent interpreting the United States Constitution when parallel provisions were involved.” Gomez, 1997-NMSC-006, ¶ 16. Essentially, the New Mexico Constitution was not independently interpreted and our constitutional jurisprudence mirrored that of the federal constitution.3
{33} Then, in 1989, this Court in State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989), departed from federal constitutional precedent by retaining the “veracity” and “basis of knowledge” tests articulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to govern the determination of probable cause for the issuance of a search warrant, instead of the later “totality of the circumstances” test adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Even after Cordova, however, New Mexico courts lacked a consistent analytical framework to assist in determining when and how state courts should analyze issues under the federal Constitution and when such issues should be analyzed pursuant to the New Mexico Constitution.4 Accordingly, the pur-
{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. 1997-NMSC-006, ¶ 46. Under the federal automobile exception, a warrantless search of an automobile only required probable cause with no showing of exigent circumstances. See United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The defendant sought greater protection under Article II, Section 10 of the New Mexico Constitution, arguing that the warrantless search of his vehicle was invalid because there were no exigent circumstances to justify the police officer‘s failure to obtain a warrant. See Gomez, 1997-NMSC-006, ¶ 2. To resolve the issue, this Court evaluated the primacy and interstitial approach to independent constitutional interpretation. See id. ¶¶ 18-20. Under the primacy approach, “[i]f a defendant‘s rights are protected under state law, the court need not examine the federal question. If a defendant‘s rights are not protected under state law, the court must review the matter in light of the federal constitution.” Id. ¶ 18 (quoting Shirley S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L.Rev. 1141, 1170 (1985)). “Courts using this approach do not consider federal law and analysis presumptively valid, viewing them instead as no more persuasive than decisions of sister state supreme courts.” Robert F. Utter & Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind. L.Rev. 635, 647 (1987). This Court rejected the primacy approach because it did not adequately “‘preserve national uniformity in development and application of fundamental rights guaranteed by our state and federal constitutions.‘” Gomez, 1997-NMSC-006, ¶ 21 (quoting State v. Gutierrez, 116 N.M. 431, 436, 863 P.2d 1052, 1057 (1993)). The interstitial approach, on the other hand, effectively advances this goal and, therefore, this Court adopted that approach. See id.
{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 Cutcliffe 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, 1997-NMSC-006, ¶ 19. Therefore, under the interstitial approach, the court first determines “whether the right being asserted is protected under the federal constitution.” Id. If the federal Constitution protects the right being asserted, then the state constitutional claim is not reached. See id. The state constitution is examined only if the federal Constitution does not provide protection. See id. A state court “may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.”5 Id. In adopting this approach, this Court recognized that, “[A] considerable measure of cooperation must exist in a truly effective federalist system.” Id. ¶ 21 (quoting State v. Hunt, 91 N.J. 338, 450 A.2d 952, 964 (1982) (Handler, J., concurring)). Accordingly, “‘state courts should be sensitive to developments in federal law.‘” Id.
The interstitial approach, therefore, main-
{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 case 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 case 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. 1997-NMSC-006, ¶¶ 22-23. In such cases, the party must assert in the trial court that the state constitutional right should be interpreted more expansively than the federal counterpart and preserve the issue for appellate review. See id. ¶ 23. Here, I agree with the majority that the Defendant adequately raised and preserved for review the federal and state constitutional issues, thereby triggering a Gomez analysis. See Majority Opinion, ¶¶ 11-13.
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. 1997-NMSC-006, ¶ 33. Here, the Defendant argues that his Fourth Amendment right to be free from unlawful search and seizure was violated because: (1) the border patrol agent referred him to secondary inspection without adequate justification, thereby unlawfully prolonging his detention; (2) his consent to search his vehicle was not voluntary since it was a product of an unlawful detention; and (3) even assuming that his consent was voluntary, the dismantling of his vehicle exceeded the scope of his consent. This case turns on the Defendant‘s first argument-the referral to secondary inspection. In analyzing whether the Defendant is protected under the federal Constitution, the Court should follow precedent established by the federal courts. See Snyder, 1998-NMCA-166, ¶ 9.
{39} The critical federal case with respect to permanent border patrol checkpoints is United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In Martinez-Fuerte, motorists were slowed and visually screened as they passed through a permanent border checkpoint located within California‘s borders. See id. at 546, 96 S.Ct. 3074. In a small number of cases, the border patrol agent conducting the visual inspection would refer some cars to a secondary inspection area where their occupants would be asked about their citizenship and immigration status. See id. The Court recognized that “checkpoint stops are ‘seizures’ within the meaning of the Fourth Amendment.” Id. at 556. Generally, a warrantless
{40} The Court in Martinez-Fuerte did not define the outer most limits of the permissible scope of an agent‘s initial routine6 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, 9 F.3d 888, 889 (10th Cir.1993) (quoting United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.1993)) (emphasis omitted). Additionally, “[t]he Fourth Amendment does not require police officers to close their eyes to suspicious circumstances.” United States v. Johnson, 895 F.2d 693, 696 (10th Cir.1990) (citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). Therefore, suspicious circumstances may also justify a brief detention for further questioning. See Chavira, 9 F.3d at 889. “[I]f questioning reasonably related to immigration and customs matters and the agent‘s observations indicates suspicious circumstances, further questioning as part of the routine permanent checkpoint inquiry is permissible as long as the duration of the detention remains brief.” United States v. Ludlow, 992 F.2d 260, 264 (10th Cir.1993) (emphasis added). Moreover, when the federal agent is in the process of performing a routine inquiry, a referral to secondary inspection is legally immaterial. See id. at 263-64; see also Martinez-Fuerte, 428 U.S. at 562-63, 96 S.Ct. 3074. “[A] routine checkpoint inquiry may properly take place at a primary inspection area, a secondary inspection area, or both as long as the scope of the inquiry is appropri-
ate.” Ludlow, 992 F.2d at 263-64 (emphasis added) (footnote omitted). Accordingly, no individualized suspicion is necessary to refer a motorist to a secondary inspection area if the agent remains within the permissible scope of the routine inquiry. See id. at 263; United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir.1991).
{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, 9 F.3d at 889 (concluding that the agent‘s suspicions were reasonably aroused when the defendant stated that he was en route to Oklahoma to buy cars but was driving alone and did not appear to be carrying a tow bar). Accordingly, pursuant to the Fourth Amendment, the border patrol agent in this case acted lawfully in expanding the scope of the initial routine inquiry. It was of no significance that the agent chose to complete the inquiry at a secondary inspection area.7
B.
{42} Despite this federal precedent, the Court of Appeals purportedly resolved this case pursuant to the Fourth Amendment
alone, not reaching the state constitution. The court 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, 2000-NMCA-009, ¶ 21, 128 N.M. 570, 995 P.2d 492. The court‘s decision was apparently “not premised on the application of a stricter standard under our own state constitutional provisions” but instead was based on their “application of both federal and [New Mexico] case law under the Fourth Amendment of the United States.” Id. ¶ 24. I disagree with this analysis. Although the Court of Appeals purported to interpret the Fourth Amendment, they did so by departing from United States Supreme Court precedent, as well as Tenth Circuit case law. See id. ¶ 32 (Sutin, J., dissenting). New Mexico courts do not have the authority to depart from United States Supreme Court precedent by providing greater protection under the Fourth Amendment. See Arizona v. Evans, 514 U.S. 1, 9, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (recognizing that the United States Supreme Court is the final arbiter of the federal Constitution). By pronouncing a rule that provides greater protection to individuals than the Fourth Amendment mandates, New Mexico courts are providing a different state standard. Such a state standard could only be affirmed pursuant to the authority given to New Mexico courts by the New Mexico Constitution. Therefore, the Court of Appeals applied a different state standard without performing a complete interstitial analysis under Gomez.8 Having
concluded that the federal Constitution does not provide the Defendant with protection and that the Court of Appeals impermissibly expanded the protections afforded to the Defendant under the Fourth Amendment, in the following section I will analyze this case under Article II, Section 10 of the New Mexico Constitution and highlight the fine distinction between federal and state case law.
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 case 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 case under Article II, Section 10 of the New Mexico Constitution, there must be a threshold de-
termination 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, 108 N.M. 778, 780, 779 P.2d 556, 558 (Ct.App.1989) (holding that like the provisions of the Fourth Amendment, Article II, Section 10 does not apply to private persons). “State action . . . refers to exertions of state power in all forms.” Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). For instance, state action “includes action of state courts and state judicial officials.” Id. at 18, 68 S.Ct. 836. In the present case, the state prosecutor used the evidence obtained by the federal border patrol agents to get a conviction in a New Mexico district court for a violation of a New Mexico law,
{45} State constitutional principles do not apply, however, when the State seeks to use evidence obtained by private citizens. A federal border patrol agent, who exercises jurisdiction over the citizens of New Mexico, is fundamentally unlike a private actor because they act under a “cloak of authority.” Unlike private actors, federal agents have the authority to implement permanent border patrol checkpoints and order individuals to stop, answer questions, and produce documentation. See generally Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116. Federal agents also have the power to arrest. When individuals are forced to stop and be questioned by governmental authority, the invasion to their right to privacy and freedom of movement is compromised, regardless of which governmental entity is actually exerting its power-state or federal. Therefore, there is a fundamental difference between federal border patrol agents and private persons. As such, evidence obtained from government agents should be treated differently than evidence obtained from private actors. Because the evidence in this case was obtained by federal agents, the New Mexico Constitution determines the admissibility of the evidence in state court.
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, 1997-NMSC-006, ¶ 19. If the Court determines that the state constitution should provide greater protection to the Defendant, the Court must justify such a departure from federal constitutional precedent. See id.
was obtained by federal officers in conformity with federal law. See, e.g., State v. Mollica, 114 N.J. 329, 554 A.2d 1315, 1330 (1989) (“[New Jersey‘s] state constitutional protections against unreasonable searches and seizures do not govern the legality of the actions of federal officers with respect to their search and seizure of evidence, provided that their conduct is pursuant to federal authority and consistent with applicable federal law[.]“). Unlike New Mexico‘s exclusionary rule which focuses on the constitutional right
{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 case 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 “[f]urther 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, 65 F.3d 843, 848 (10th Cir.1995) (emphasis added); see also State v. Estrada, 111 N.M. 798, 799, 810 P.2d 817, 818 (Ct.App.1991) (“At motor vehicle checkpoints, travelers are constitutionally subject only to brief questioning and limited visual inspection of their vehicles. More extensive detention must be based on some degree of individualized, suspicion or consent.“). Additionally, New Mexico cases have agreed that the permissible scope of an initial routine inquiry includes “questions regarding citizenship of the vehicle‘s occupants or a suspicion of criminal activity.” Estrada, 111 N.M. at 799, 810 P.2d at 818 (emphasis added). New Mexico cases even purport to distinguish between diversion to secondary for the purpose of completing the routine inquiry and diversion to secondary after the routine questioning and investigation has been completed. See id. (distinguishing federal cases that required less than reasonable suspicion because “[r]eferral to a secondary area [in those cases occurred] only after suspicions were raised by circumstances revealed during the initial questioning“).
{48} Despite the fact that New Mexico cases appear to agree with federal cases,
of the accused to be free from unreasonable searches and seizures, see Gutierrez, 116 N.M. at 446, 863 P.2d at 1067, the essential objective of the exclusionary rule in these jurisdictions is to deter unlawful police conduct. See Mollica, 554 A.2d at 1328 (“[W]e recognize that an essential objective of our constitutional protection against unreasonable search and seizure and the remedial exclusionary rule is to deter unlawful police conduct.“). As such, I find the cases in these jurisdictions unpersuasive.
New Mexico courts place legal significance on an agent‘s referral of a motorist to secondary inspection.10 For example, in Estrada, the defendant and his passenger were stopped at the primary area of a fixed border checkpoint and questioned about their citizenship. Id. at 798, 810 P.2d at 817. They both produced immigration documents. See id. Although they did not display any unusual behavior, the border patrol agent noticed that the spare tire in the rear of the station wagon was out of place and, based on this, referred the defendant to a secondary area. See id. The court found that the diversion to secondary was not proper stating, “Although the agent‘s observation regarding the spare tire could justify further questioning, it could not justify the additional detention here.” Id. at 802, 810 P.2d at 821; see also State v. Guzman, 118 N.M. 113, 117, 879 P.2d 114, 118 (Ct.App.1994). Under Estrada, therefore, had the officers merely questioned the defendant about the spare tire at primary inspection, the detention would be constitutional. However, upon referral to secondary the routine inquiry was complete and further detention required reasonable suspicion. See Estrada, 111 N.M. at 800-01, 810 P.2d at 819-20 (“Once the routine questioning and inspection were completed, further detention had to be based on at least reasonable suspicion of criminal activity.“). By presumptively terminating the initial inquiry, New Mexico courts consider the mere referral to secondary as legally significant. See, e.g., Cardenas-Alvarez, 2000-NMCA-009, ¶ 10, 128 N.M. 570, 995 P.2d 492 (citing State v. Affsprung, 115 N.M. 546, 550, 854 P.2d 873, 877 (Ct.App.1993)) (“[M]ovement to a secondary area is considered detention beyond a reasonable inquiry.“).11
{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, 111 N.M. at 802, 810 P.2d at 821; Guzman, 118 N.M. at 117, 879 P.2d at 118. I agree that in the present case, the facts identified by the agent to be “suspicious” did not rise to the level of reasonable suspicion under
{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, 519 U.S. 33, 34, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). The United States Supreme Court has realized the importance of recognizing the “endless variations in the facts and circumstances implicating the Fourth Amendment.” Id. (quoting Robinette, 519 U.S. at 39) (internal quotation marks omitted). Contrary to this recognition, the Supreme Court adopted the automobile exception, a bright-line rule which does not allow consideration of such factual variations. See id. As such, this Court in Gomez found that the analysis underlying the federal automobile exception was flawed and chose to depart from such precedent.
{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, 1997-NMSC-061, ¶ 25, 124 N.M. 388, 951 P.2d 605. In Woodruff, this Court held that
{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.13 The last criteria identified in Gomez, however, does justify departure from federal precedent in this context. The existence of “distinctive state characteristics,” justify a departure where a certain constitutional right has a “unique importance in our state.” Woodruff, 1997-NMSC-061, ¶ 25, 124 N.M. 388, 951 P.2d 605. New Mexico is one of a few states that are close to or border on an external border of the United States. The federal government, pursuant to statutory authorizations, has the power to implement permanent border patrol checkpoints so that they may interrogate those believed to be aliens as to their right to be in the United States. See
{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, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“[T]hose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search. . . .“); United States v. Jackson, 825 F.2d 853, 858 (5th Cir.1987) (“It is the single fact that the individual or item has entered this nation from outside that justifies the [border] search.“) (emphasis in original). Since not all individuals that are required to stop at a permanent checkpoint have been outside the United States but are New Mexico motorists lawfully traveling on New Mexico‘s highways, New Mexico has an interest in providing some protection to individuals who are compelled to pass through a checkpoint. Under federal law, a border patrol officer has wide discretion in continuing to detain an individual at a checkpoint. See Ludlow, 992 F.2d at 263-64 (quoting United States v. Pinedo-Montoya, 966 F.2d 591, 593 (10th Cir.1992) (“Border patrol agents have virtually unlimited discretion to refer cars to the secondary inspection area.“) (internal quota
{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, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (“[T]he Fourth Amendment‘s balance of reasonableness is qualitatively different at the international border than in the interior.“). Recognizing a distinction between the international border and permanent border patrol checkpoints does not weaken the importance of allowing federal agents to stop drivers at a permanent checkpoint without articulable suspicion or probable cause. “[M]aintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border.” Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. 3074. Under New Mexico case law, individuals can be stopped at a border patrol checkpoint without justification. See Estrada, 111 N.M. at 799, 810 P.2d at 818. New Mexico‘s unique interest which justifies departure from federal precedent is confined only to prolonged detentions once an individual is stopped at an interior permanent border patrol checkpoint.
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
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.
SERNA, Chief Justice (concurring in result).
{57} I concur in the result. However, I would affirm the Court of Appeals on the basis of the
{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
{59} The starting point in the analysis under the
{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, 96 S.Ct. 3074. However, the design of the checkpoint in Martinez-Fuerte differed from the checkpoint in the present case. In Martinez-Fuerte, all vehicles passed through a primary area only for general visual inspection in
{61} The Court of Appeals first meaningfully examined Martinez-Fuerte in State v. Estrada, 111 N.M. 798, 810 P.2d 817 (Ct.App.1991). In that case, the Court of Appeals explained that “[a]t motor vehicle checkpoints, travelers are constitutionally subject only to brief questioning and limited visual inspection of their vehicles. More extensive detention must be based on some degree of individualized suspicion or consent.” Id. at 799, 810 P.2d at 818 (citation omitted). In response to an argument by the State that Martinez-Fuerte allows referral to secondary areas without reasonable suspicion, the Court of Appeals pointed out that 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 case 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, 810 P.2d at 819 (citation omitted). The Court of Appeals noted that some federal courts had interpreted Martinez-Fuerte in accordance with the State‘s position, but the Court rejected this position as being inconsistent with the Supreme Court‘s analysis in Martinez-Fuerte. Id. (“We should distinguish between diversion to secondary for [the purpose of initial brief questioning and inspection] and diversion to secondary after the routine questioning and investigation has been completed.“). The Court of Appeals reiterated this standard in Affsprung: “We have previously indicated that, in order to justify detention of a vehicle, beyond routine questioning, law enforcement agents need only have a reasonable suspicion of criminal activity.” 115 N.M. at 549, 854 P.2d at 876 (emphasis added).
{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; 1 it is the length of detention and the scope of the inquiry. “[I]f the issues of residence or citizenship are resolved at the primary area of the checkpoint, referral of a vehicle to the secondary area must be based on at least reasonable suspicion of wrongdoing.” Estrada, 111 N.M. at 799, 810 P.2d at 818. In this case, Agent Arredondo resolved the issues of residence and citizenship at the primary area, and at the time of the referral to secondary, he lacked reasonable suspicion of criminal activity. Therefore, under Estrada, the seizure in this case violated the
{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, 966 F.2d 596, 598 (10th Cir.1992). “When an officer seeks to expand the investigation of a motorist beyond the reasons stated for the checkpoint, he or she must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir.1998) (quotation marks and quoted authority omitted). 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 cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)) (alteration in original). Thus, what is clear under Tenth Circuit precedent is that federal border agents must have reasonable suspicion in order to justify extending a detention at a fixed checkpoint once the purposes of the checkpoint have been satisfied. What is not clear under Tenth Circuit case law is whether the detection of narcotics is one of the purposes of a fixed border checkpoint located a reasonable distance inside the border.
{64} In Sanders, 937 F.2d at 1499-1501, the Tenth Circuit held that border patrol officers may ask questions about “suspicious circumstances,” including circumstances related to narcotics trafficking, as part of the routine questioning under Martinez-Fuerte. The Tenth Circuit permitted border patrol agents to direct an individual to a secondary area after the individual responded to questions about citizenship and his destination because the individual was evasive in responding to a question about the contents of containers in his vehicle. Id. at 1499. The Tenth Circuit explained that “routine questions” at a border checkpoint can include asking about the ownership of the vehicle, asking to see the vehicle registration, and asking about the ownership and contents of cargo or containers, as well as follow-up questions if the initial inquiry produces suspicious circumstances. Id. at 1500-01. In Chavira, 9 F.3d at 889, the Tenth Circuit reaffirmed its position that, even in the absence of reasonable suspicion, border patrol agents may ask a few brief questions about such matters as an individual‘s destination and travel plans if the questions are reasonably related to illegal immigration and the smuggling of contraband. Further questioning and a brief detention is permitted if suspicious circumstances relating to immigration or contraband smuggling, falling short of reasonable suspicion, arise during the course of the routine questioning. Id. Based on these cases, it appears that the Tenth Circuit views an interior border patrol checkpoint as having the dual purpose of detecting illegal immigration and the smuggling of contraband. See United States v. Ludlow, 992 F.2d 260, 264 (10th Cir.1993).
{65} New Mexico cases thus differ from the Tenth Circuit in the interpretation of Martinez-Fuerte with respect to the permissible purposes for a fixed border checkpoint located inside the United States. I believe that New Mexico cases reflect a construction of the
{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, 935 F.2d 178, 181 (9th Cir.1991) (”Martinez-Fuerte says nothing about the legality of searching for drugs at permanent immigration checkpoints.“), I believe that the language used in both Martinez-Fuerte and Edmond supports the Court of Appeals’ interpretation of the
{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. 428 U.S. at 552, 556-57, 96 S.Ct. 3074. Unlike illegal immigration, however, it would be practically futile to detect whether narcotics possessed by an individual at an interior checkpoint had been transported across the border. Indeed, the illegal act sought to be uncovered by the border patrol at an interior checkpoint is not
{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
{69} Once this highly abbreviated questioning has been completed, however, I believe the detention rises to the level of requiring reasonable suspicion under the
{70} Also, the more questions an agent is permitted to ask, the greater the potential for abusive “discretionary enforcement activity.” Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074; accord Galindo-Gonzales, 142 F.3d at 1221. If an agent is permitted to extend a detention due solely to suspicious circumstances relating to narcotics, there would be no check on the agent‘s ability to extend the detention indefinitely based only on the “generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” Edmond, 121 S.Ct. at 455. Suspicious circumstances would lead to questions beyond a routine inquiry, the answers to which could raise entirely new suspicious circumstances, thereby justifying even further detention. This form of prolonged questioning can only be described as an extended detention, and it would take place without the need for any reasonable suspicion of criminal activity. Finally, to expand routine questioning to include inquiry into any potential suspicious circumstances beyond the brief initial questions would make the “potential interference with legitimate traffic” more than just the minimal interference contemplated by the Court in Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074.
{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, 992 F.2d at 264 n. 3, but I believe that the heightened detention necessary to inquire into “suspicious circumstances” relating to narcotics, as with any detention related to a general interest in crime control, is subject to the
{72} I would emphasize that this is not a subjective inquiry. See Barnett, 935 F.2d at 181 (stating that the limitation of Martinez-Fuerte to immigration-related stops “does not mandate an inquiry into the subjective purpose of the agent making referrals to secondary inspection, unless there is some objective evidence supporting the charge of pretext“). It does not matter for purposes of the
{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, 428 U.S. at 567, 96 S.Ct. 3074 (“[O]ur holding today is limited to the type of stops described in this opinion.“). Therefore, consistent with our Court of Appeals’ analysis in Estrada, I would interpret the
{74} In this case, Agent Arredondo completed his initial brief questioning and visual
{75} Although I believe this case is resolved under the
{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
{77} If the majority‘s analysis is inconsistent with the
{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. 116 N.M. at 445-447, 863 P.2d at 1066-68. The focus of the exclusionary rule “is to effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.” Id. at 446, 863 P.2d at 1067. We effectuate the constitutional right by “deny[ing] the government the use of evidence obtained pursuant to an unlawful search.” Id. at 445, 863 P.2d at 1066 (emphasis added). Thus, the need to apply the exclusionary rule, the constitutional trigger, is an unlawful search in violation of the accused‘s rights.
{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, 208 F. 186 (D.Kan.1913). Gutierrez, 116 N.M. at 444, 863 P.2d at 1065. “[S]hall this court wink at the unlawful manner in which the government secured the proofs now desired to be used, and condone the wrong done defendants by the ruthless invasion of their constitutional rights, and become a party to the wrongful act by permitting the use of the fruits of such act?” Gutierrez, 116 N.M. at 445, 863 P.2d at 1066 (quoting Mounday, 208 F. at 189). We determined in Gutierrez that the reasoning of Mounday “suggest[ed] the essential core of our interpretation of Article II, Section 10.” Gutierrez, 116 N.M. at 445, 863 P.2d at 1066. As the quotation from Mounday indicates, and as explicitly stated in Gutierrez, the core concern of the exclusionary rule, beyond deterrence and judicial integrity, is the illegal intrusion on the defendant‘s rights. We explained in Gutierrez that “[d]enying the government the fruits of unconstitutional conduct at trial best effectuates the constitutional proscription of unreasonable searches and seizures by preserving the rights of the accused to the same extent as if the government‘s officers had stayed within the law.” Gutierrez, 116 N.M. at 446, 863 P.2d at 1067 (emphasis added).
{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
2001-NMCA-011
25 P.3d 257
STATE of New Mexico, Plaintiff-Appellee,
v.
Gordon HOUSE, Defendant-Appellant.
No. 20,438.
Court of Appeals of New Mexico.
Jan. 4, 2001.
Certiorari Denied, No. 26,771, March 8, 2001.