State v. MuñozState v. Muñoz
{1} The central issue in this appeal is whether Defendant Daniel Muñoz, a passenger on a bus, was subjected to an unlawful search that was not performed with his valid consent. During an inspection of the cargo of the bus at a checkpoint, a trained dog alerted to a bag that was ultimately linked to Defendant. Law enforcement agents subsequently questioned Defendant, asking him to empty his pockets and remove his shoes. We affirm the district court’s findings that (1) Defendant was not in custody at the time of the agents’ questioning so as to invoke Defendant’s rights under the Fifth Amendment to the United States Constitution and (2) Defendant voluntarily responded to the agents’ requests. We further hold that Defendant did not preserve the arguments that he raises on appeal concerning alleged violations of the New Mexico Constitution. We affirm.
{2} Defendant entered a conditional plea of no contest after his trial resulted in a mistrial and the district court granted the State’s motion for reconsideration of its previous order suppressing evidence. At the trial, the State presented the testimony of Agents Douglas Kubos and Carlos Medina of the United States Border Patrol. Agent Kubos testified that he was assigned to the Highway 54 checkpoint on May 11, 2005. Defendant was a passenger on a bus operated by a commercial bus line. As part of a systematic search at the checkpoint, Agent Kubos inspected the cargo area of the bus with a dog trained to detect odors. The dog alerted to a black duffel bag marked with a tag number. Agents went through the aisle of the bus asking if the bag belonged to anyone on the bus. When no one claimed the bag, they considered it abandoned and opened it. They found fifteen “little wrapped bundles” consistent with narcotics smuggling. Field testing indicated that the bundles contained marijuana. A forensic scientist testified to confirm the content of the bundles.
{3} Agent Medina testified that the bus company maintained a list matching ticket stubs with passenger seat numbers and that Defendant was seated in seat number 33, which was the seat that matched the ticket stub for the black duffel bag. He then testified that Defendant was therefore detained for further investigation and asked to empty his pockets and take off his shoes for safety reasons. Subsequently, outside the presence of the jury, Defendant’s counsel argued to the district court that after the agents’ request, the agents seized the ticket stub corresponding to the black duffel bag that Defendant produced from his shoe, the agents arrested Defendant, and Defendant gave a statement. In response, the district court ruled that the search that led to Defendant’s production of the ticket stub was illegal and suppressed Defendant’s statement. Because there was concern that there had been testimony about Defendant’s statement, the district court also declared a mistrial.
{4} About a month later, the State filed a motion asking the district court to reconsider its suppression order. The State asserted that although Agent Medina stated that he asked Defendant to empty his pockets and remove his shoes for safety purposes, he could not remember the reason for the request and was only guessing. According to the State, the arresting agent was Hugo Gonzales, who was unavailable for trial because “he had changed jobs and moved.”
{5} The district court held a hearing on the State’s motion at which Agent Gonzales testified. He testified that Defendant was the only passenger who did not present a baggage ticket stub. When he questioned Defendant on the bus, Defendant was sweating profusely, shied away from him, and gave evasive answers. Based on the information connecting the duffel bag to Defendant’s seat and Defendant’s demeanor, Agent Gonzales asked him to step off the bus in order to be able to speak with him more privately. Once off the bus, Agent Gonzales told Defendant the facts that he had learned. He testified that Defendant “looked down” and “looked defeated” in reaction. Specifically, he stated, “[Defendant] just looked down, dropped his shoulders, his head went down to the ground.” At that point, Agent Gonzales asked Defendant, “Would you please — would you empty out your pockets for us?” Defendant complied, and Agent Gonzales then asked Defendant “if he would remove his shoes.” When he did, the ticket stub came out of one of his shoes. Agent Gonzales testified that he did not order Defendant to take any action and that Defendant’s actions were voluntary. He testified that if Defendant had refused to comply with the request, he would have sought a search warrant. After he found the ticket stub and again confronted Defendant with the facts, Defendant admitted that the drugs were his.
{6} Ultimately, the district court ruled that (1) the stop and inspection of the bus were free from impropriety, (2) the agents’ focus on Defendant was reasonable, (3) the detention was reasonable and supported by probable cause, and (4) Defendant was free to leave during the questioning. As to the search and statements, the district court found that Defendant’s actions when he emptied his pockets and removed his shoes were
LAWFULNESS OF THE SEARCH
{7} Defendant argues on appeal that the agents engaged in an unlawful search in violation of the Fourth Amendment to the United States Constitution that resulted in the agents obtaining the baggage ticket stub and ultimately Defendant’s admission of guilt. According to Defendant, the agents subjected him to an unlawful custodial interrogation because they did not advise him of his rights under Miranda v. Arizona,
Interrogation by Agents
{8} With regard to the agents’ interrogation, Defendant asserts that he was in custody from the time that Agent Gonzales approached him while he was seated on the bus, stood over him, blocked him in his seat, and confronted him with the facts as Agent Gonzales understood them. He further contends that he was in custody when the agents asked him to leave the bus for further questioning. At the very least, Defendant asserts that he was in custody when, outside the bus, Agent Gonzales “told” him to empty his pockets and take off his shoes. Because the agents did not advise Defendant of his Miranda rights until they subsequently took him “into the checkpoint,” Defendant claims that the entire encounter was tainted, requiring suppression of the baggage ticket stub and his subsequent confession.
{9} Defendant’s Fifth Amendment argument raises a mixed question of law and fact. State v. Javier M.,
{10} Under Miranda, law enforcement officers must warn a person who is subjected to a custodial interrogation of his or her right against self-incrimination protected by the Fifth Amendment and extended to the states through the Fourteenth Amendment. See Miranda,
{11} We look to the totality of the circumstances in order to ascertain whether an interrogation is objectively custodial. See State v. Lopez,
{12} We first note the two United States Supreme Court cases that involved police encounters with passengers on buses in order to point out what is not involved in this case. In Florida v. Bostick,
{13} In United States v. Drayton,
{14} The notable difference between Bostick and Drayton and this case is that in this case, the agents had reasonable suspicion that the bag that contained drugs belonged to Defendant before they questioned him in the bus. Defendant did not argue in the district court, and does not argue on appeal, that the agents’ search of his duffel bag was improper. As a result of that uncontested search, the agents discovered the bundles of marijuana and found out that Defendant’s seat number matched the ticket stub for the bag. Thus, for Fourth Amendment purposes, the agents were entitled to detain Defendant to question him as part of their investigation. See State v. Gutierrez,
{15} Nor does the testimony indicate that the agents had Defendant in custody while they were on the bus. Defendant was not isolated; instead, he was in a bus full of other passengers. Agent Gonzales asked Defendant if he could produce a baggage ticket stub, and when Defendant said that he could not, he told Defendant that the agents had information that the person sitting in seat 33 owned the bag in question. Although Agent Gonzales testified that Defendant was not “necessarily” free to leave, as we have
{16} The testimony also does not reflect a custodial setting when Agent Gonzales asked Defendant to leave the bus. Agent Gonzales testified that during his conversation with Defendant on the bus, he observed Defendant sweating profusely, shying away from him, and being evasive. He then asked Defendant to step outside the bus so that he could speak with him more freely and privately. In State v. McNeal,
{17} Outside the bus, Agent Gonzales had the right to detain Defendant to continue the investigation because he had reasonable suspicion that Defendant may have been violating a law. See Javier M.,
{18} In Javier M., our Supreme Court addressed circumstances that were similar to the ones in this case. In that case, police officers investigating a noise complaint encountered a juvenile in an apartment. Id. ¶¶2-3. Smelling alcohol on the juvenile’s breath or clothing, one of the officers asked him to step outside, where he was questioned. Id. ¶ 3,
Voluntariness of Consent to Search
{19} With regard to Defendant’s Fourth Amendment arguments, we address
{20} Our analysis of these factors indicates that there is substantial evidence to support the district court’s determination. The first factor is met by the clarity of the request and the response. Agent Gonzales expressly asked Defendant if he would empty his pockets and remove his shoes. Defendant complied with both requests, and the evidence shows that his consent was specific and unequivocal. The evidence also supports the second factor — the absence of duress or coercion. Agent Gonzales testified that he asked Defendant, “Would you please — would you empty out your pockets for us?” After Defendant complied, he asked Defendant “if he would remove his shoes.” Agent Gonzales made requests; he did not give orders or directives. As we have discussed, there was no testimony, as Defendant argues without citation to the record, that agents surrounded Defendant outside the bus. Contrary to Defendant’s argument that Defendant believed that he had no choice but to acquiesce, the evidence indicates that Defendant acted voluntarily in response to Agent Gonzales’ requests.
{21} Defendant also argues that State v. Villanueva,
{22} Although similar in its factual setting, Villanueva is different from this ease in two significant ways. First, the agents brought the defendant to the checkpoint trailer for questioning, a setting more confining than the outside of the bus. See id. at 360,
ARGUMENTS UNDER THE NEW MEXICO CONSTITUTION
{23} Defendant also argues on appeal that “[t]he practice of bus interdiction often involves situations that amount to custodial interrogation” of bus passengers that requires law enforcement officers to inform passengers “that they have a right to not cooperate” with the officers. Defendant acknowledges that the United States Supreme Court specifically rejected such an argument in Drayton,
{24} The State counters that Defendant did not argue this issue in the district court, and, by virtue of the preservation requirements of Rule 12-216(A) NMRA as interpreted
{25} Defendant does not argue that any New Mexico case law currently construes the New Mexico Constitution more broadly than the Federal Constitution with respect to Defendant’s issue. Nor does he argue that he specifically followed the dictates of Gomez before the district court. He does contend, however, that he nonetheless adequately preserved the argument that he makes on appeal. According to Defendant, his trial counsel “articulated the reasons for departing from federal precedent, but did not claim the New Mexico Constitution provides greater protection than its federal counterpart.” Thus, Defendant argues that the district court was adequately alerted to the nature of the claimed error and was therefore able to issue an intelligent ruling.
{26} At the motion hearing, Defendant’s counsel argued, ‘Tour honor, I would submit that the claim that [Defendant] was not in custody and did not have to respond to [Agent Gonzales] is based on the legal fiction as a practical matter out on the roadway, and I think [the Affsprung case] addressed it in connection with motorists.” Defendant’s counsel was referring to State v. Affsprung,
{27} Defendant has entirely failed to preserve the issue under Gomez. He did not argue to the district court that the state constitution provides greater protection than the Federal Constitution and did not state any reason why it should. See Gomez,
{28} Defendant additionally argues that because he has raised an issue of a fundamental right, this Court should not apply the preservation restrictions of Gomez and Rule 12-216(A). Rule 12-216(B)(2) allows this Court discretion to entertain unpreserved issues involving the fundamental rights of a party. We decline to exercise such discretion. Defendant had the opportunity to invoke complete scrutiny of the issue in the district court. If he had done so, the parties would have had the ability to fully develop the facts and argue the law on the issue, and the district court would have been able to make a decision with a sufficient record before it. See State v. Pacheco,
{29} As a final argument, Defendant asserts that the Gomez preservation requirement of a state constitutional claim is an unconstitutional requirement under Article II, Section 18 of the New Mexico Constitution because it deprives a criminal defendant of equal protection under the law. Defendant contends that the requirement creates a class of similarly situated defendants who are treated dissimilarly. He contends that criminal defendants are a similarly situated group whose trial counsel develop the facts necessary to allow appellate courts to rule based on either the federal or state constitution but are treated differently, as two classes, depending on whether their trial counsel conformed to the strict requirements of Gomez. However, as we recently stated in State v. Garcia,
{30} Indeed, to support his equal protection claim under both the constitutions of the United States and New Mexico, Defendant must demonstrate that the preservation requirement “draws classifications that discriminate against a group of persons to which [he] belongs.” Id. ¶ 30 (alteration in original) (internal quotation marks and citation omitted). But, as we stated in Garcia, “[t]he class of individuals to which [Rule 12-216(A)] applies includes all appellants before the appellate courts. Every litigant must properly preserve an error in the trial court to assert it on appeal. Rule 12-216(A) treats all individuals in this class alike.” Garcia,
CONCLUSION
{31} We affirm the district court’s order denying Defendant’s motion to suppress.
{32} IT IS SO ORDERED.