OPINION
{1} If a police officer cannot, consistent with the constitution, obtain information he wants from a citizen (such as his identification), does the New Mexico Constitution permit him to use what is otherwise a constitutionally valid traffic stop as a pretextual subterfuge to obtain that information? The New Mexico Supreme Court has directed us to answer that question for the first time in this case. State v. Ochoa,
FACTUAL BACKGROUND
{2} The material facts are not in dispute. We refer to the facts in our Supreme Court’s opinion and add detail where necessary. Agent Edmondson of the Pecos Valley Drug Task Force was surveilling a residence for drug trafficking when he saw a vehicle with which he was not familiar. See Ochoa,
{3} Officer Martinez confirmed the warrants, arrested Defendant, and placed him in the patrol car. Ochoa,
{4} Defendant moved to suppress the evidence on the grounds that the traffic stop to enforce an alleged technical violation of the traffic code was a pretext to investigate Agent Edmondson’s unsupported intuition that Defendant was involved in drug activity and that a pretextual stop violates article II, section 10 of the New Mexico Constitution. Id. If 1. The State argued that the stop was permitted by the New Mexico Constitution on grounds that it was supported by reasonable suspicion, even probable cause, to believe that Defendant violated the traffic code by not wearing his seatbelt.
{5} The district court agreed with Defendant that Agent Edmondson “had little, if any, interest in the seatbelt violation [and that he wanted] the vehicle stopped so that he could I.D. the driver and ask about activities at the residence.” The district court nevertheless agreed with the State that Officer Martinez could stop Defendant’s vehicle based on the reliable information from Agent Edmondson that Defendant was not wearing a seatbelt. The district court thus denied the motion to suppress.
DISCUSSION
{6} “The constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review.” State v. Cardenas-Alvarez,
INTERSTITIAL ANALYSIS
{7} “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.” Cardenas-Alvarez,
Federal Interpretation of the Fourth Amendment
{8} The United States Supreme Court has decided that pretextual traffic stops are not prohibited by the Fourth Amendment. See Whren v. United States,
Preservation
{9} When a party claims that the state courts have not interpreted a provision of the state constitution differently than its federal counterpart, that “party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision.” Gomez,
{10} Defendant argued to the district court that New Mexico constitutional law should protect against pretextual traffic stops because it provides a distinctive, extra layer of protection against unreasonable searches and seizures involving automobiles that is unavailable at the federal level. Furthermore, Defendant argued, New Mexico courts cannot provide this layer of protection if they are unable to meaningfully review all evidence regarding the reasonableness of an officer’s conduct. The State therefore agrees that Defendant properly preserved his state constitutional challenge to pretextual stops, that the district court was sufficiently apprised of his claims, and that the district court had an opportunity to rule on the matter.
{11} We agree with the parties, and hold that Defendant adequately preserved his state constitutional claim for our review by developing the relevant facts through the officers’ testimony and the reasons to interpret our state constitution more expansively through legal argument at the suppression hearing. Therefore, we next determine whether justification exists to diverge from federal precedent.
Diverging from Federal Precedent
{12} “We may depart from federal precedent if federal analysis is flawed or undeveloped, if structural differences exist between state and federal government, or if New Mexico has distinct state characteristics supporting such a departure.” State v. Granville,
Critique of Whren
{13} The Whren opinion, authorizing pretextual traffic stops, has suffered widespread criticism of its legal reasoning, policy choices, and consequences. See, e.g., Phyllis W. Beck & Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling and Public Policy Concerns, 72 Temp. L.Rev. 597, 597 (1999) (“Scholars, journalists, and lawyers promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed, and fundamentally unfair.”); David O. Markus, Whren v. United States: A Pretext to Subvert the Fourth Amendment, 14 Harv. BlackLetter L.J. 91, 96-109 (1998) (explaining how the Whren decision disregarded the purpose of the Fourth Amendment’s “reasonableness” requirement, inexplicably dismissed the Supreme Court’s own statements condemning police pretext, relied on unpersuasive evidentiary problems with discerning subjective intent, and disempowered the courts from ferreting out police perjury and weighing the evidence); Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment’s Outer Frontier: A Subjective Test for Pretextual Seizures, 69 Temp. L.Rev. 1007, 1025 (1996) (describing the Whren decision as “a rickety piece of judicial scholarship ... built upon unreasoned distinctions, perversions of precedent, a question-begging unarticulated and unsupported premise, bootstrapping, logical inconsistencies, and a narrow vision of the Fourth Amendment”).
{14} The Whren decision uses objectivity as the ultimate constitutional measure for reasonable traffic stops without offering an affirmative reason for this conclusion. The Whren opinion dismissed the Supreme Court’s own prior statements expressing hostility toward police pretext and declared that Supreme Court case law forecloses any inquiry into the officers’ motivations to conduct a routine traffic stop. See Whren,
{15} The United States Supreme Court distinguished those cases in which it questioned the existence of police pretext in the course of a search and seizure, on the grounds that they involved inventory and administrative searches, which do not require probable cause. See Whren,
{16} We are not persuaded that the distinction made by the United States Supreme Court is meaningful in the context of a pretextual traffic stop. In performing a pretextual traffic stop, a police officer is stopping the driver, “not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving. Therefore the reasonable articulable suspicion that a traffic infraction has occurred which justifies an exception to the warrant requirement for an ordinary traffic stop does not justify a stop for criminal investigation.” State v. Ladson,
{17} One of the main criticisms of Whren is its failure to acknowledge that because the extensive traffic code regulates all manner of driving “ ‘[wjhether it be for failing to signal while changing lanes, driving with a headlight out, or not giving ‘full time and attention’ to the operation of the vehicle, virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter.’” Ladson,
[GJiven the pervasiveness of ... minor [traffic] offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, [the requirement of a traffic violation] hardly matters, for ... there exists “a power that places the liberty of every man in the hands of every petty officer,” precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.
State v. Bolton,
{18} This concern with practically limitless discretion afforded officers enforcing traffic laws is not merely hypothetical. Given the ubiquity of driving in this country, it is ordinary traffic stops that are “among the most common . encounters regular citizens have with police.” David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L.Rev. 265, 298 (Dec. 1999). Furthermore, “the statistics show that [pretextual traffic stops] are not simply disconnected anecdotes or exaggerated versions of personal experiences, but rather established and persistent patterns of law enforcement conduct.” Id. at 299. Thus, we are not persuaded as the Whren court was, that probable cause and reasonable suspicion standards are sufficient to limit police discretion to enforcement of traffic offenses. This is because driving a vehicle is ubiquitous in American life. The extensive regulation of all manner of driving subjects virtually all drivers to the whim of officers who choose to selectively enforce the traffic code for improper purposes. We believe the United States Supreme Court has drawn a distinction without a difference. The concerns that justify testing officers’ subjective motivations in suspicionless checkpoints and inventory searches as a practical matter are at least equally applicable to “ordinary” traffic stops. See Wayne R. LaFave, The Routine Traffic Stop From Start to Finish: Too Much “Routine, ” Not Enough Fourth Amendment, 102 Mich. L.Rev. 1843, 1854 (2004) (“Indeed, it is likely true that the probable-cause requirement in the context of minor traffic offenses provides considerably less protection against arbitrariness than do the ‘standardized procedures’ and ‘reasonable legislative or administrative standards’ requirements for inventories and administrative inspections, respectively.” (internal quotation marks omitted)).
{19} In response to the arguments in Whren that the selective enforcement of traffic code is often informed by factors such as race, the United States Supreme Court agreed that selective law enforcement based on such improper considerations is wrong and, indeed, unconstitutional. See Whren,
New Mexico’s Distinctive Protection of Privacy in an Automobile
{20} New Mexico constitutional law permits us to expand the federal protections afforded New Mexico’s motorists from unreasonable searches and seizures because New Mexico courts have rejected “the notion that an individual lowers his expectation of privacy when he enters an automobile.” Cardenas-Alvarez,
Article II, section 10 of the New Mexico Constitution provides:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.
N.M. Const, art. II, § 10. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable, subject only to well-delineated exceptions.” State v. Rowell,
{21} Our courts have refused to adopt federal precedent, which permits searches and seizures conducted under an exception to the warrant requirement when the reason for the search or seizure is not justified by the reason for that exception. See, e.g., id. ¶¶ 18-21; Gomez,
{22} In Gomez, our Supreme Court examined the two principles upon which the federal automobile exception to the warrant requirement was created: “(1) the inherent mobility of automobiles creates exigent circumstances, and (2) a lesser expectation of privacy attaches to the contents of a motor vehicle because of the pervasive regulation of vehicles capable of traveling on the public highways.” Id. ¶ 34 (internal quotation marks and citations omitted). The Court rejected the federal automobile exception, holding that warrantless automobile searches cannot be automatic; they must be reasonable, based on a true exigency. See id. ¶¶ 37-44. The Court determined that where there is no reasonable basis to believe that the delay in obtaining a search warrant will jeopardize legitimate law enforcement interests, there is no justification for an exception to the warrant requirement. See id. ¶¶ 41-43.
{23} Most recently, in Rowell, our Supreme Court departed from federal precedent that an officer may search an automobile “whenever an arrestee had been stopped in a car, even if he or she no longer had any access to it at the time of the search.”
{24} New Mexico courts have frequently broadened search and seizure protections under our state constitution. See Granville,
{25} The exception to the warrant requirement at issue in the present case is an investigatory stop supported by reasonable suspicion of criminal activity or probable cause that the traffic code has been violated. The purpose of requiring objectively reasonable suspicion based on the circumstances “is to prevent and invalidate police conduct based on ‘hunches,’ which are, by definition, subjective.” Leary & Williams, supra, at 1030; see State v. Neal,
{26} We believe that our constitutional requirement that searches and seizures be reasonable based on the particular facts of each case should preclude our adoption of the mechanical federal rule that a technical violation of the traffic code automatically legitimizes a stop. Further, consistent with our previous departures from federal precedent, we do not believe that the federal bright-line rule is justified. The purpose of the reasonable suspieion/probable cause exception to the warrant requirement — to prevent officers from acting on unsupported hunches — is not furthered when our courts refuse to examine the unconstitutional hunch motivating the stop.
{27} The Supreme Court of Washington has rejected Whren on a basis consistent with this Court’s view. See Ladson,
{28} Similarly, the Superior Court of Delaware has determined that permitting police unfettered discretion to use a traffic violation to investigate an officer’s hunch about a separate offense is “the equivalent of granting the police a general warrant to search and seize virtually all travelers on the roads of this [s]tate.” Heath,
The State’s Arguments
{29} First, the State relies on several cases that have held that an officer need only reasonable suspicion that a law has been or is being violated to stop a driver. See State v. Vargas,
{30} Second, the State contends that this Court has, in fact, rejected the claim that an investigative detention should be analyzed differently under the New Mexico Constitution, relying on State v. Jimmy R.,
{31} Third, the State argues that New Mexico’s historical treatment of pretext claims does not justify our departure from Whren. The State refers us to cases in which we have rejected pretextual traffic stop claims where there was an objectively valid basis for the stop. See State v. Pallor,
{32} In Pallor, we rejected the defendant’s claim that the officers’ traffic stop was a pretext to investigate drug activity because the officers had a reasonable suspicion that the defendant was engaged in drug activity.
{33} Since Mann, this Court has been inconsistent in its approach to allegations of pretextual stops, reflective of the varying federal standards before Whren, and we have been hesitant to establish a definitive standard. See, e.g., State v. Apodaca,
sole-bad-purpose test or a primary-bad-purpose test — or even whether to adopt a subjective test at all” where a defendant challenged his stop at a state police roadblock administered by both the state police and United States Border Patrol agents, on pretext grounds, but concluding that “the district court was entitled to find, based on the evidence before it, that the purpose of the roadblock in this case was legitimate”); Benjamin C.,
{34} Although no New Mexico case until today has decided the validity of pretextual stops under our state constitution, we have admonished pretextual practices, revealing a distinct inclination to remove police pretext from the range of reasonable police conduct. See, e.g., State v. Lowe,
{35} Finally, the State argues that diverging from Whren is not needed to protect New Mexico citizens from unreasonable searches and seizures. The State argues that the police do not have unlimited discretion under Whren because they are limited by probable cause and reasonable suspicion. At the same time, the State admits that officers must decide who to stop and when because it would not be possible to strictly enforce the multitude of traffic laws. We agree. However, we limit that discretion to avoid bad faith. Police officers may enforce any and all traffic laws, so long as it is done with reasonable suspicion and in good faith for that purpose.
{36} The State argues that the existing case law in New Mexico sufficiently protects individuals from searches and seizures by strictly limiting the scope of a traffic stop to specific articulable suspicions. We agree that our case law strictly limits the scope of traffic stops, often in an effort to curb pretextual traffic stops. See Prince,
{37} The purpose of our objective reasonable suspicion/probable cause exception to the warrant requirement is to prevent officers from arbitrarily acting on whims or unsupported hunches, because that is constitutionally unreasonable. See Leary & Williams, supra, at 1029-30; Neal,
{38} We do not accept the State’s arguments that our constitution, which favors an examination into the reasonableness of officers’ actions under the circumstances of each case, should disempower and disable the courts from examining whether an officer has an unconstitutional reason for making a stop. This would be an abdication of our judicial responsibility to meaningfully review police action, ferret out police perjury, weigh the evidence, and guard our citizens’ privacy rights. We would in effect legitimize a charade, a mockery of the legal justifications we recognize for permitting the most common of police intrusions. This we will not do. We hold that pretextual traffic stops are not constitutionally reasonable in New Mexico.
Standard for Pretextual Stops
{39} To determine whether a stop is a pretextual subterfuge, courts should consider the totality of the circumstances, judge the credibility of witnesses, weigh the evidence, make a decision, and exclude the evidence if the stop was unreasonable at its inception. The totality of the circumstances includes considerations of the objective reasonableness of an officer’s actions and the subjective intent of the officer—the real reason for the stop. See id. at 843 (“When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.”). We are reminded that courts perform the task of identifying intent regularly in a variety of settings. In the context of an alleged pretext stop, the officer’s intent is determined like any other fact, based on the evidence presented and consideration of the factors we describe below.
{40} We believe that the following standard can identify an unreasonable, pretextual stop. See Heath,
{41} Facts relevant to the totality of the circumstances may include the following: whether the defendant was arrested for and charged with a crime unrelated to the stop; the officer’s compliance or non-compliance with standard police practices; whether the officer was in an unmarked car or was not in uniform; whether patrolling or enforcement of the traffic code were among the officer’s typical employment duties; whether the officer had information, which did not rise to the level of reasonable suspicion or probable cause, relating to another offense; the manner of the stop, including how long the officer trailed the defendant before performing the stop, how long after the alleged suspicion arose or violation was committed the stop was made, how many officers were present for the stop; the conduct, demeanor, and statements of the officer during the stop; the relevant characteristics of the defendant; whether the objective reason articulated for the stop was necessary for the protection of traffic safety; and the officer’s testimony as to the reason for the stop. See Heath,
{42} Where there is a factual finding of pretext, that the officer had a constitutionally invalid purpose for the stop which is not exempt from the warrant requirement, the stop violates the New Mexico Constitution, and the evidentiary fruits of the stop are inadmissible.
Application of the Pretext Standard
{43} Because sufficient facts were developed and findings were made, we apply the pretext standard here. The officers’ objective justification for the stop was a seatbelt violation. The district court ruled that Agent Edmondson’s radio call indicating that he saw Defendant was not wearing a seatbelt was reliable information upon which to conduct the stop. Undisputedly, a seat-belt violation constitutes sufficient objective justification for the stop. Defendant argued that the stop for an alleged seatbelt violation was a pretext, however, for Agent Edmondson to investigate his unsupported intuition that Defendant was involved in drug activity.
{44} The facts developed in support of Defendant’s claim of pretext were as follows. Officer Edmondson was investigating the residence for drug activity and the presence of Defendant’s vehicle at the residence. See Ochoa,
{45} The district court found that Agent Edmondson “had little, if any, interest in the seatbelt violation [and that he wanted] the vehicle stopped so that he could I.D. the driver and ask about activities at the residence.” Agent Edmondson lacked a constitutionally reasonable suspicion that Defendant was involved in drug activity to justify his motive for having Defendant stopped. See Neal,
{46} On these facts, Defendant established a rebuttable presumption that the stop was pretextual. The burden shifted to the State to establish that even without Agent Edmondson’s unrelated motive, Officer Martinez would have stopped Defendant. There is no dispute that Officer Martinez had no independent basis for pulling over Defendant, and that he would not have done so without the radio call from Agent Edmondson. With the Agent’s admission and the district court’s finding that Agent Edmondson was interested in investigating Defendant for drug activity, which lacked a constitutionally valid basis, and not the traffic violation, we hold that the stop was pretextual.
CONCLUSION
{47} Because pretextual stops are not constitutionally reasonable in New Mexico, we reverse the district court’s denial of Defendant’s motion to suppress.
{48} IT IS SO ORDERED.