Lead Opinion
OPINION
{1} Alamogordo Department of Public Safety Officer Neil LaSalle stopped David Neal (“Defendant”) for a cracked windshield. Officer LaSalle asked for Defendant’s consent to search the truck for drugs and weapons, but Defendant refused consent. Believing he had reasonable suspicion, Officer LaSalle detained Defendant’s truck for approximately ten minutes to await a drug dog to perform a perimeter sniff of the truck, while allowing Defendant to leave the scene. Defendant called his father, James Neal (“Neal”), the owner of the truck, who arrived at the scene and subsequently gave written consent to search the truck. The search revealed a handgun and methamphetamine.
{2} Defendant moved to suppress the evidence as the fruit of an illegal search and seizure, claiming protection under both the Fourth Amendment to the United States Constitution and article II, section 10 of the New Mexico Constitution. The district court granted Defendant’s motion, finding that reasonable suspicion supported the expansion of the traffic stop, but that the ten-minute detention of the truck was too long and required probable cause, which the court found lacking. The Court of Appeals reversed in a split memorandum opinion, concluding that Officer LaSalle had reasonable suspicion to expand the traffic stop to investigate drug activity, and that this reasonable suspicion supported the ten-minute detention of the truck to await the drug dog, based on the recent Court of Appeals ease of State v. Robbs,
{3} We conclude that the Court of Appeals erred in holding that Officer LaSalle had reasonable suspicion to detain Defendant’s truck beyond that necessary to issue a citation for the cracked windshield and that Neal’s subsequent consent to search the truck was tainted by the original police illegality. Accordingly, we reverse the Court of Appeals and hold that the evidence should have been suppressed.
I. FACTS
{4} At approximately 10:00 a.m. on July 31, 2004, Officer LaSalle, in uniform and driving a marked patrol ear, observed a truck in front of a house that was under investigation for drug activity. Defendant was in the driver’s seat, and a man was leaning into the truck through the driver’s side window. Although Officer LaSalle did not recognize either person when he first observed them, he was aware that the house was the subject of an ongoing drug investigation. Several individuals with criminal backgrounds, including Jeff Horton (“Horton”), were known to live at and frequent the house. Defendant, however, was not among the persons associated with the house.
{5} Based on the interaction at the truck, Officer LaSalle believed that he had observed a drug transaction, although he could not see the two individuals’ hands, nor could he hear what they were saying. He, therefore, intended to approach the truck to talk to the two men, but before he could, the man leaning into the truck walked back into the house, and Defendant drove away. Officer LaSalle thus decided to follow the truck in his patrol car and observed that it had a cracked windshield. He then initiated a traffic stop for obstruction of driver’s view/vehiele in unsafe condition. Upon approaching the truck, Officer LaSalle recognized Defendant, whom he knew had prior drug-related and assault convictions.
{6} Officer LaSalle obtained Defendant’s driver’s license, registration, and insurance. He ran a wants and warrants check and was advised to proceed with caution in dealing with Defendant because Defendant might be armed and dangerous. In addition, Officer LaSalle was informed that a back-up officer was on the way because of Defendant’s prior criminal record.
{7} Officer LaSalle asked Defendant about the identity of the man with whom he was talking when parked in front of the house under investigation and learned that it was Horton. Horton was under investigation for drugs, and Officer LaSalle knew that Horton had been involved in other criminal activity. Officer LaSalle described Defendant as nervous and becoming agitated during this exchange. He said Defendant’s hands were very fidgety, Defendant avoided eye contact and his questions, and Defendant appeared as though he wanted to leave. Officer LaSalle returned Defendant’s documents and issued a citation for the cracked windshield.
{8} Officer LaSalle realized from examining the truck’s registration that it belonged to James Neal, Defendant’s father, and he did not know at that time whether Defendant had permission to drive the vehicle. Nevertheless, Officer LaSalle asked for Defendant’s consent to search the truck for drugs and weapons, but Defendant denied consent. Officer LaSalle told Defendant that he was free to stay or leave, but that the truck would be held until a drug dog arrived to perform a perimeter sniff of it. Defendant left to find a pay phone.
{9} Officer LaSalle believed that he had reasonable suspicion to detain the truck to conduct the canine sniff based upon his observations of Defendant prior to and during the stop, including his observations of the two men at the truck; his belief that a drug transaction had taken place; Defendant’s nervous, fidgety, and agitated demeanor; Defendant’s desire to leave; and Officer LaSalle’s prior personal knowledge of Defendant’s and Horton’s criminal history.
{10} Within approximately ten minutes, Border Patrol Officer Jimmy Ross arrived with his drug dog. The dog alerted to the presence of drugs without entering the vehicle but then jumped into the open window of the truck, without prompting, apparently due to the strong odor of drugs. Thereupon, Officer LaSalle left the truck under the observation of another officer and went to obtain a search warrant for the truck.
{11} Shortly after Officer LaSalle left the scene, Defendant’s father, James Neal, the owner of the truck, arrived at the scene in response to a phone call from Defendant. According to Defendant’s suppression motion and Officer Ross’s and Neal’s testimony at the suppression hearing, Neal consented to the search after having observed the drug-sniffing dog jump in and out of the truck, and after having been told that a search warrant was in progress. The State characterized the events differently, i.e., that before Officer LaSalle could obtain the warrant, the officers still at the scene called and told him that he should return because Neal had given verbal consent to search the truck. The district court found that while Officer LaSalle was on his way to obtain the warrant, Neal arrived at the scene, gave his verbal consent to search the truck, and subsequently signed a written consent form. The subsequent search of the truck revealed a loaded firearm and a substance that tested as methamphetamine.
{12} The district court found that the truck had been illegally detained and thus granted Defendant’s motion to suppress the evidence collected during the search. In explaining its decision, the court noted that it was “hesitant to put too much weight on the reputation/history of the people/residence involved in this case, although he knows they are important factors for the officer on the beat and probably properly so,” and that “[i]t is not illegal to lean in a vehicle!,] and there may be innocent reasons for doing so.” The court found that Officer LaSalle had reasonable suspicion to expand the scope of the traffic stop, request consent to search the vehicle, and investigate further. However, the court found that the ten-minute detention of the truck, while waiting for the drug dog to arrive, was too long and required probable cause. Therefore, the detention of the truck was illegal, and the court suppressed the evidence.
{13} In a split memorandum opinion, the Court of Appeals reversed the district court’s grant of the motion to suppress and remanded the case. Neal, No. 25,864, memorandum op. at 1, 8. First, the Court of Appeals held that Defendant failed to preserve his argument under the New Mexico Constitution and thus only considered his rights under the Fourth Amendment to the federal Constitution. Id. at 3. The Court of Appeals then concluded that Officer LaSalle had reasonable suspicion to expand the duration of the traffic stop to investigate drug activity, and that this reasonable suspicion supported the ten-minute detention of the truck to await the drug dog, based on the recent Court of Appeals case, State v. Robbs,
{14} The State urges us to affirm the Court of Appeals, contending that Officer LaSalle had reasonable suspicion to detain the truck, based on his observations of Defendant, which was sufficient to justify the detention. In addition, the State argues that Neal’s subsequent consent justified the search of the truck and was purged of any taint. Defendant asks us to reverse the Court of Appeals, contending that Officer LaSalle lacked both probable cause and reasonable suspicion to expand the scope of the valid traffic stop into a drug investigation and to detain the truck and that Neal’s subsequent consent was tainted by the illegal detention of the truck. We reverse the Court of Appeals for the reasons that follow.
II. STANDARD OF REVIEW
{15} We engage in a two-part review of a district court’s decision regarding a motion to suppress: “The legality of a search questioned in a suppression hearing is generally tested as a mixed question of law and fact wherein we review any factual questions under a substantial evidence standard and we review the application of law to the facts de novo.” State v. Baca,
III. THE FOURTH AMENDMENT PROTECTS DEFENDANT, AND THUS WE DECLINE TO ADDRESS HIS CLAIM UNDER ARTICLE II, SECTION 10 OF THE NEW MEXICO CONSTITUTION
{16} The Fourth Amendment to the United States Constitution and article II, section 10 of the New Mexico Constitution make analogous provision for the protection of the people against unreasonable searches and seizures. For the past fifteen years, article II, section 10 has been construed to provide broader protections than the Fourth Amendment. State v. Granville,
{17} The first issue Defendant raises is whether his claim under article II, section 10 of the New Mexico Constitution was properly preserved. The Court of Appeals held that Defendant failed to preserve it because he “d[id] not make any argument, other than in arguing that he preserved the issue, supporting his position that the New Mexico Constitution affords him greater protection than the Federal Constitution.” Neal, No. 25,864, memorandum op. at 3. Inasmuch as we hold Officer LaSalle lacked reasonable suspicion to detain the truck following the valid traffic stop, we resolve this case based solely on the Fourth Amendment to the federal Constitution. See Cardenas-Alvarez,
IV. OFFICER LASALLE LACKED REASONABLE SUSPICION TO DETAIN THE TRUCK FOLLOWING THE VALID TRAFFIC STOP
{18} The Fourth Amendment to the United States Constitution “prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu,
{19} With respect to determinations of reasonable suspicion, we engage in a de novo review, as the decision of whether police conduct was objectively reasonable “extends beyond fact-finding.” Vandenberg,
the duty of appellate courts to shape the parameters of police conduct by placing the constitutional requirement of reasonableness in factual context. We conduct this review de novo along with our review of any inferences the district court may have drawn from its factual findings. In performing this de novo review, we look at the totality of the circumstances.
Id. (internal quotation marks and citations omitted).
{20} Under Fourth Amendment standards, a police officer making a lawful stop “may conduct an investigation reasonably related to the circumstances that gave rise to the officer’s reasons for the stop.” State v. Williamson,
The officer may expand this investigation if the officer has reasonable and articulable suspicion that other criminal activity has been or may be afoot.... The officer’s investigation, of course, is limited to a reasonable inquiry that is designed to satisfy the officer’s reasonable suspicions. Moreover, the officer’s investigation of any reasonable suspicion must proceed diligently.
Id. (internal quotation marks and citations omitted). Following a valid stop and reasonably related investigation, further detention requires reasonable suspicion of criminal activity. Cardenas-Alvarez,
{21} It is well-established that “[r]easonable suspicion is measured by an objective standard, in which the court examines the totality of the surrounding circumstances, to determine whether the officer acted reasonably in expanding the scope of inquiry.” State v. Romero,
{22} It is undisputed that Officer LaSalle’s traffic stop of Defendant for a cracked windshield was valid. Thus, Officer LaSalle had the authority to investigate the cracked windshield and seek identification, registration, and insurance from Defendant, which he did. The core issue with which we are then confronted is whether Officer LaSalle had individual, particularized reasonable suspicion with respect to Defendant to detain the vehicle further to await a drug dog sniff. That is, did Officer LaSalle have reasonable suspicion that drugs would be found in the truck? The Court of Appeals found Robbs,
{23} However, as Judge Kennedy ably pointed out in his dissent, Robbs is readily distinguishable from the instant case. Neal, No. 25,864, memorandum op. at 9 (Kennedy, J., dissenting). Robbs involved a very specific tip to police about a drug transaction that would be taking place.
{24} In State v. Prince, police had been investigating the defendant for possible drug involvement for several months, and, on the night he was stopped, police had received information from a drug task force agent that the defendant might be traveling into New Mexico from Texas and might be in possession of a controlled substance.
{25} Even though the defendant was personally under investigation for drugs and despite the specific tip with respect to him and his movements, the Court of Appeals held reasonable suspicion was lacking to detain the vehicle beyond the valid traffic stop, stating:
Guilt by association and generalized suspicions are insufficient grounds upon which to base an investigatory detention. In the absence of specific and particularized incriminating information about the criminal activity that defendant is or is about to engage in, generalized suspicions and mere corroboration of innocent activity, even if it is not readily available to the general public, is insufficient to create reasonable suspicion for an investigatory detention.
Id. ¶ 17; see also State v. Eli L.,
{26} State v. Graves provides further guidance.
{27} The Court concluded that no circumstances existed to give rise to reasonable suspicion to believe the defendant was involved in criminal activity and no articulable reason to detain him. Id. at 94,
{28} As the Court of Appeals stated in Prince, “Officers may not use a lawful stop to fish for evidence of other crimes where there is insufficient reason to detain a defendant, beyond the purpose of the initial detention.”
{29} We have never adopted “ ‘a rule equating simple nervousness with reasonable suspicion.’ ” Vandenberg,
{30} Likewise, Defendant’s mere association with a convicted felon like Horton, who was under surveillance in an ongoing drug investigation, was insufficient to create reasonable suspicion of Defendant, especially where as here, Officer LaSalle did not even know the identities of the two men when he observed them. See State v. Harbison,
{31} Officer LaSalle was indeed “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.” See Arvizu,
{32} Based on the foregoing, we hold that Officer LaSalle lacked the requisite reasonable suspicion to detain Defendant’s truck to await a canine sniff.
V. NEAL’S SUBSEQUENT WRITTEN CONSENT TO SEARCH THE TRUCK WAS TAINTED BY THE PRIOR ILLEGAL DETENTION OF THE TRUCK
{33} Having concluded that the expansion of the traffic stop into a drug investigation and the subsequent ten-minute detention of the truck violated Defendant’s rights under the Fourth Amendment, we now consider whether, under the exclusionary rule, we must suppress the evidence obtained as a result of the consensual search of the truck. See Prince,
{34} For evidence obtained following police illegality, but with voluntary consent, to be admissible:
there must be a break in the causal chain from the [illegality] to the search. [T]he proper question in evaluating whether a consent was tainted by prior illegality is whether there was [sufficient] attenuation between the [illegality] and the consent to search. In deciding whether the consent is sufficiently attenuated from the Fourth Amendment violation, we consider the temporal proximity of the illegal act and the consent, the presence or absence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
Taylor,
{35} In the instant case, a direct causal relationship exists between the illegal expansion of the traffic stop and the subsequent detention of the truck and Neal’s consent to search. See Prince,
VI. CONCLUSION
{36} We hold, under the Fourth Amendment to the United States Constitution, that Officer LaSalle lacked reasonable suspicion to detain the truck beyond the time necessary to issue a citation for the cracked windshield. In addition, Neal’s subsequent consent to search the truck was tainted by the original police illegality and was, therefore, insufficient to validate the search. The evidence obtained as a result was the fruit of an illegal search and seizure and, therefore, should have been suppressed. Accordingly, we reverse the Court of Appeals.
{37} IT IS SO ORDERED.
Notes
. While the voluntariness of Neal’s consent is not at issue, we, like Judge Kennedy, are troubled by the “legal issues apart from matters within the purview of the case before us” that were created by the fact that "[t]he truck was seized and the dog entered the truck before consent to search was given” and before "[t]he truck's owner ... arrived and gave his consent.” Neal, No. 25, 864, memorandum op. at 9 (Kennedy, J., dissenting).
Dissenting Opinion
(dissenting).
{38} I respectfully dissent. The majority opinion concedes that the original traffic stop was legitimate. Supra, ¶22. The majority does not dispute that Officer LaSalle could ask Defendant questions once having made a lawful stop. See id. ¶¶28, 30. What the majority opinion does not abide is any further detention of the vehicle to await the drug dog. Id. ¶ 22 (“The core issue with which we are then confronted is whether Officer LaSalle had individual, particularized reasonable suspicion with respect to Defendant to detain the vehicle further to await a drug dog sniff.”).
{39} Significantly, the majority does not appear to attack the specific length of the detention. Supra, ¶32. Without ever balancing “the government’s justification for the detention, the character of the intrusion on the individual, the diligence of the police in conducting the investigation, and the length of the detention,” State v. Robbs,
{40} I begin by examining the facts which do not appear to be in dispute. Officer LaSalle saw Defendant parked outside a house under investigation for drug activity. Defendant was talking with a man who came from that same house, and the two were participating in what looked like, in the officer’s experience, a drug deal. His suspicion aroused, the officer wanted to talk to them both, but Defendant drove away. Officer LaSalle then followed Defendant’s car and conducted his traffic stop, which all agree was legitimate. At that time he specifically recognized Defendant as a person with a criminal record, including drug transactions. In undertaking his customary wants and warrants computer check, the officer learned that Defendant may well be dangerous, dangerous enough that another officer was sent over to assist. Then, in the course of further questioning, the officer learned that the man seen talking to Defendant at the suspected drug house, Horton, with whom Defendant may have had a drug transaction, was, to no surprise, one of the very men specifically under investigation for drug activity. Mr. Horton also had a criminal history related to drugs. Parenthetically, Defendant was also acting nervous and agitated throughout the stop.
{41} Based on all these facts and observations, the officer was in fact suspicious of Defendant, that his car contained drugs. He believed that a drug dog, conducting a sniff of the car’s exterior, would confirm his suspicions and give him the probable cause he needed for a search warrant. Accordingly, he released Defendant, kept the car, waited ten minutes for the drug dog to arrive, and, upon the drug dog alerting, obtained the consent of the owner to conduct an interior search which produced contraband.
{42} In my mind, I cannot think that any reasonably well-trained police officer would not be suspicious under the totality of these circumstances. Remember that we are not being asked to approve a full-fledged search, or any further detention of Defendant who was free to go and did leave the scene. This makes a difference. As our Court of Appeals noted in Robbs,
{43} Based, in part, on this careful balance, we repeatedly tell the police to investigate first before jumping to a search and an arrest, to proceed incrementally with caution so as to confirm or deny suspicions before proceeding to the next step. It seems to me that is exactly what Officer LaSalle did under these circumstances. We have encouraged the use of drug dogs because they do not intrude into the privacy of the interior; they detect the air outside in the public domain, just not detectable to humans. Drug dogs employed in the manner of this case are a cautious, incremental step in terms of their impact upon the Fourth Amendment. They require only a small amount of time, and if they fail to alert, the vehicle is free to go. See Robbs,
{44} The Court of Appeals majority found this short detention amply supported by reasonable suspicion, citing Robbs. It is difficult to say what the district court thought, since the judge incorrectly applied a standard of probable cause instead of reasonable suspicion. Perhaps we, as an appellate court, should remand to that judge to determine, in the first instance, whether Officer LaSalle had reasonable suspicion, as opposed to probable cause, for that ten-minute detention. If all we do here is insert our view of the evidence for that of the Court of Appeals, then I doubt we have advanced the law on such an important subject as the Fourth Amendment.
{45} My disagreement with the majority, however, is not just over our collective view of the evidence. I am concerned that we are not following the law of the Fourth Amendment, as articulated by the United States Supreme Court over the past several years and then more recently by federal courts, particularly the Tenth Circuit. Here, we are not articulating the meaning of our New Mexico Constitution where we are free to diverge. This is the same Fourth Amendment for us all. I fear we risk being criticized for inserting our own view of what we think Fourth Amendment ease law ought to be, when our role is to follow and apply what the Supreme Court and others have already said about the Fourth Amendment under similar circumstances, and indeed what the Supreme Court would very likely say in this very instance.
{46} The majority opinion makes reference to United States v. Arvizu,
{47} Rather than undertaking this form of analysis, the majority addresses each factor individually, noting how each one can be seen as lawful conduct. Supra, ¶¶ 29-32. It is fine to view each factor individually to determine the weight to be given to each factor. However, in the end, the question is not whether the defendant was engaging in lawful conduct, but rather whether under the totality of the circumstances the “detaining officer has a ‘particularized’ and objective basis for suspecting legal wrongdoing.” United States v. Santos,
{48} Aside from its passing reference to Arvizu, the majority opinion does not discuss recent opinions from our own Tenth Circuit which factually are more on point with our own case and which uphold a drug dog detention similar to what occurred in this case. In employing Fourth Amendment analysis, the Tenth Circuit gives much greater weight than the majority opinion to officer observation. See, e.g., United States v. Bradford,
{49} Just as in Santos, the reasonable suspicion in this case arose from officer observation and a past criminal history. Officer LaSalle was not observing any two people talking on a street; he was observing two men, later determined to have drug-related criminal records, conversing outside a suspected drug house and engaging in what he thought was a drug deal. See Santos,
{50} Instead of discussing federal precedent on this topic, the majority relies primarily on our own New Mexico case law interpreting the same Fourth Amendment. But I do not think it does so correctly.
{51} Robbs, of course, is closely on point as the Court of Appeals majority determined in this very case, reasoning that if a thirty-five minute detention of the vehicle while awaiting the drug dog was reasonable, so too would be a ten-minute detention for the same purpose. Robbs was preceded by a specific tip that the driver would be carrying drugs, a point which is absent from our case. But to be reliable, tips must carry such detailed corroborating evidence. See Robbs,
{52} The Robbs analysis is helpful because of the federal analysis it engages in as discussed above. Supra, ¶42. However, instead of applying a similar analysis the majority draws an analogy to State v. Prince,
{53} I also do not find much help in Prince,
{54} These New Mexico cases are not as helpful as the majority opinion finds them to be. More importantly, the majority fails to undertake the proper federal analysis necessary when we are to determine whether the Fourth Amendment’s protections were violated.
{55} For these reasons I respectfully dissent.