STATE оf New Mexico, Plaintiff-Appellee, v. Larry SNYDER, Defendant-Appellant.
No. 18,661.
Court of Appeals of New Mexico.
Sept. 16, 1998.
1998-NMCA-166; 967 P.2d 843; Certiorari Denied, No. 25,407, Nov. 4, 1998.
CONCLUSION
{33} For the foregoing reasons we affirm Defendant‘s convictions.
{34} IT IS SO ORDERED.
DONNELLY and APODACA, JJ., concur.
Phyllis Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, for Appellant.
OPINION
ARMIJO, Judge.
{1} Defendant appeals his conviction for possession of marijuana with intent to distribute in violation of
I. BACKGROUND
{2} At approximately 7:30 p.m. on June 29, 1996, Defendant drove his pickup truck into the primary inspection area of the United States Border Patrol checkpoint on U.S. Highway 54 approximately 35 miles south of Alamogordo, New Mexico. At that time, Border Patrol Agent Joel Sims was working at the primary inspection area. While questioning Defendant about his citizenship, Agent Sims observed that Defendant‘s hands and arms trembled. In response to further questioning about his itinerary, Defendant stated that he was travelling from Phoenix, Arizona, to his home in Garden City, Kansas, and that he travelled a lot because he was a federal grain inspector. When asked why he was taking such an indirect route between these two locations, Defendant replied that he was paid by the mile. Agent Sims noticed that Defendant became nervous and trembled even more.
{3} After asking for and obtaining permission to inspect Defendаnt‘s vehicle with a border-patrol dog, Agent Sims directed Defendant to the secondary inspection area in order to allow the dog to detect any suspicious odors emanating from Defendant‘s truck. Border Patrol Agent Jesus Torres, who was also stationed at the checkpoint,
{4} Defendant was brought to trial in the Otero County District Court on one count of possessiоn of marijuana with intent to distribute. When the State sought to introduce photographs of the bundles of marijuana at trial, Defendant‘s trial counsel moved to suppress the photographs on the grounds that the marijuana was the fruit of an unlawful search under Gomez, 1997-NMSC-006, ¶ 39. The State asserted that Gomez did not apply, but was given the opportunity to elicit testimony from the State‘s witnesses to show the presence of exigent circumstances justifying the warrantless search.
{5} The district court ruled that it would not apply Gomez retroactively, or, in the alternative, that the testimony elicited by the State was sufficient to make a particularized showing of exigent circumstances. The photogrаphs of the marijuana were admitted into evidence and a jury found Defendant guilty of one count of possession of marijuana with intent to distribute. This appeal followed.
II. DISCUSSION
A. Standard of Review
{6} Whether the exclusionary rule under
B. Preservation of Error
{7} The requirements for preserving a state constitutional claim for appellate review depend on current New Mexico precedent construing the particular state constitutional provision at issue. See Gomez, 1997-NMSC-006, ¶ 22. The requirement of exigent circumstances for a warrantless search of an automobile became current New Mexico precedent before Defendаnt‘s trial on March 21, 1997. See id. ¶ 39 (decided January 7, 1997). Defendant‘s trial counsel preserved this issue for appellate review by asserting the current precedent in his motion to suppress at trial and showing the factual basis needed for the trial court to rule on the issue. See id. ¶ 22.
{8} Although the district court did not consider or rule upon the threshold issue of whether the state constitution applies to the use of evidence in state court when that evidence results from a search by federal border-patrol agents, on appeal the State asserts that this threshold issue provides an alternаtive basis for affirming the district court‘s ruling. Generally, we may affirm the district court‘s ruling on grounds not relied upon below unless the appellant did not have a fair opportunity to present admissible evidence in the district court concerning the facts on which those grounds depend. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994).
{9} Before we examine the protection afforded by our state constitution, we must determine whether the right being asserted by Defendant is protected under the federal constitution. See Gomez, 1997-NMSC-006, ¶ 19 (discussing interstitial approach to state constitutional analysis). In applying federal law, we follow the precedent established by the federal courts, particularly the United States Court of Appeals for the Tenth Circuit. See State v. Fierro, 1996-NMCA-028, ¶ 10, 121 N.M. 398, 911 P.2d 1202 (Hartz, J., specially concurring). Under current federal precedents, a warrantless search of a mobile vehicle requires probable cause and nothing more. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam); United States v. Anderson, 114 F.3d 1059, 1065-66 (10th Cir. 1997). Further, the Tenth Circuit has consistently held that an alert by a dog that is properly trained and certified in the detection of illegal drugs is sufficient to establish probable cause for a warrantless search. See United States v. Kennedy, 131 F.3d 1371, 1376-77 (10th Cir.1997). In the present case, Defendant does not dispute the border-patrol dog‘s qualifications or the fact that the dog alerted while inspecting his truck. Hence, a warrantless search was reasonable under the
D. Application of New Mexico Law
1. Scope of the Exclusionary Rule
{10} Because Defendant‘s right to be free from a warrantless search of his truck in the absence of exigent circumstances is not protected by the
{11} In the present case, however, the 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 аt issue in this case in the courts of the State of New Mexico is governed by the exclusionary rule under
{12} To determine whether the evidence seized by the federal border-patrol agents in this case must be excluded from Defendant‘s trial in a New Mexico state court, we first identify the principles to be served by New Mexico‘s exclusionary rule, and then we evaluate how these principles would be served by exclusion of this evidence. See State v. Bridges, 83 Hawai‘i 187, 925 P.2d 357, 367-68 (Haw.1996). Our analysis of the purposes of the exclusionary rule undеr our state constitution and its federal counterpart is controlled by State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993).
{13} The Gutierrez Court noted that [t]he federal exclusionary rule first evolved as a rule of constitutional dimension, but has been steadily reinterpreted so that today the rule stands as a deterrent safeguard of only minimal constitutional significance. Id. at 436, 863 P.2d at 1057. Under current federal law, the scope and application of the exclusionary rule are governed by practical considerations concerning the rule‘s costs and benefits. Id. at 437, 863 P.2d at 1058. In particular, the federal exclusionary rule ‘is designed to deter poliсe misconduct rather than to punish the errors of judges and magistrates.’ Id. at 438, 863 P.2d at 1059 (quoting United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The federal rule‘s deterrent effect is measured by its power to alter the behavior of individual law enforcement officers or the policies of their departments. Id. (quoting Leon, 468 U.S. at 918). In situations where the application of the federal exclusionary rule would not yield such a deterrent effect on law enforcement policies or behavior, federal courts have recognized an exception to the rule. See Leon, 468 U.S. at 919-21 (recognizing good-faith exception to federal exclusionary rule).
{14} Some statе courts have concluded that the application of state exclusionary rules will have little or no deterrent effect on the conduct of federal agents for the simple reason that state constitutions do not control the actions of other sovereigns. See People v. Fidler, 72 Ill.App.3d 924, 29 Ill.Dec. 51, 391 N.E.2d 210, 211 (Ill.App.Ct.1979); State v. Gallegos, 255 Kan. 382, 874 P.2d 647, 651 (Kan.1994); Commonwealth v. Cryer, 426 Mass. 562, 689 N.E.2d 808, 813 (Mass.1998); Mollica, 554 A.2d at 1327. But cf. People v. LaFontaine, 159 Misc.2d 751, 603 N.Y.S.2d 660, 667 (N.Y.Sup.Ct.1993) (concluding that officer of neighboring state would be deterred by application of exclusionary rule to evidence illegally acquired by him or her in forum state and sought to be introduced in forum state‘s courts). This lack of any deterrent effect on agents of another soverеign provides the main reason why these state courts have declined to apply exclusionary rules under their state constitutions to evidence seized by such agents. See Fidler, 391 N.E.2d at 211; Gallegos, 874 P.2d at 651; Cryer, 689 N.E.2d at 813; Mollica, 554 A.2d at 1327.
{15} However, unlike the federal exclusionary rule and the laws of some other states, our approach to the exclusionary rule under the
{16} The New Mexico Supreme Court has stated unequivocally that, in order to effectuate such rights under our state constitution, we must deny the State the use of evidence in a criminal proceeding in state
{17} Our Supreme Court‘s explanation of the purpose and significance of the exclusionary rule under the
{18} We need not decide in this case whether the exclusionary rule under the
2. Particularized Showing of Exigent Circumstances
{19} In Gomez, 1997-NMSC-006, ¶ 39, the New Mexico Supreme Court determined that under
{20} The issue we review on appeal, however, is not whether Defendant was in fact preparing to escape, destroy evidence, endanger life, or damage property. See State v. Chavez, 98 N.M. 61, 63, 644 P.2d 1050, 1052 (Ct.App.1982). Rather, the question is whether, in this situation, a prudent, cautious, and trained officer, based on facts known, could reasonably conclude swift action wаs necessary. State v. Corneau, 109 N.M. 81, 89, 781 P.2d 1159, 1167 (Ct.App.1989). In reviewing this question, we consider all the record surrounding [the] arrest[,] search and seizure. State v. Leyba, 1997-NMCA-023, ¶ 10, 123 N.M. 159, 935 P.2d 1171 (quoting State v. Martinez, 94 N.M. 436, 439, 612 P.2d 228, 231 (1980)). If reasonable people might differ about whether exigent circumstances existed, we defer to the officer‘s good judgment. Gomez, 1997-NMSC-006, ¶ 40.
{21} The State elicited testimony that when the border-patrol agents obtained probable cause for the search, it was 7:30 p.m. and Defendant‘s truck was stopped at a checkpoint that was at least 35 miles from the nearest court in which a search warrant could be obtained. Further, there were only two agents stationed at the checkpoint at the time. Although traffic was described as kind of light, Agent Torres testified he went outside and continued inspecting traffic while Agent Sims went over to Defendant‘s truck. Agent Torres also was responsible for guarding Defendant while Agent Sims and his dog inspected the truck.
{22} Defendant contends that exigent circumstances were not present in this case because the border-patrol agents were in a position to lawfully secure Defendant‘s vehicle and his person while they sought a search warrant. In particular, Defendant points to the fact that the agents had sidearms, handcuffs, and a facility for detaining prisoners at the station. Thus, according to Defendant, while one of the agents went to Alamogordo to obtain a search warrant, the other agent could have handcuffed Defendant or placed him in the detention facility, guarded his vehicle, and continued with his other duties. In the alternative, Defendant asserts that the border-patrol agents could have summoned additional personnel to enable them to secure the presence of Defendant and his vehicle while a warrant was obtained.
{23} The problems with Defendant‘s contentions are twofold. First, we questiоn whether handcuffing or otherwise physically restraining Defendant pending the issuance of a search warrant during the evening by a court that is 35 miles away from the checkpoint would be any less intrusive than conducting an immediate search of the spare tire beneath Defendant‘s truck. A prolonged investigatory detention at a border-patrol checkpoint may constitute a significant intrusion. State v. Hernandez, 1997-NMCA-006, ¶ 24, 122 N.M. 809, 932 P.2d 499. Second, [a]s soon as the investigation requires awaiting the development of circumstances off the scene, the validity of the investigatory stop becomes suspect, and the stop may ripen into a de facto arrest. Id. ¶ 25 (quoting State v. Werner, 117 N.M. 315, 319, 871 P.2d 971, 975 (1994)).
{24} Under these circumstances, the two border-patrol agents at the checkpoint had an objectively reasonable basis for believing that the only alternatives to their warrantless search of the spare tire beneath Defendant‘s truck were to allow Defendant to leave the checkpoint with the evidence or to risk a more intrusive de facto arrest by prolonging Defendant‘s detention at the checkpoint for the length of time it would take to secure a warrant. In this situation, it was not unreasonable for the agents to bеlieve that exigent circumstances justified an immediate warrantless search, and we defer to their good judgment. See Gomez, 1997-NMSC-006, ¶¶ 40, 42. Hence, we affirm the district court‘s ruling that the warrantless search of Defendant‘s truck did not violate the requirements of
III. CONCLUSION
{25} We affirm Defendant‘s conviction for possession of marijuana with intent to distribute because it was not unreasonable for the border-patrol agents to believe that exigent circumstances justified an immediate warrantless search of his truck.
{26} IT IS SO ORDERED.
PICKARD, J., concurs.
HARTZ, C.J., specially concurring.
HARTZ, Chief Judge, specially concurring.
{27} I concur in the result but not the reasoning of the majority opinion.
{28} Constitutions provide the framework to constitute a government. In this nation‘s experience, when a constitution has been formulated to establish a sovereign government, it has been standard practice to include a bill of rights, the purpose of which is to protect against abuse of power by that sovereign. Even though the provisions of such a bill of rights typically include no reference to the sovereign, it is understood that the provisions relate only to the sovereign that is the subject of the constitution. For example, in our federal Constitution the
The right of the people to be secure in their persons, houses, papers, and effects, against unreаsonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Read in isolation, the language could apply to searches and seizures by anyone. But read in context, it undoubtedly restricts only the federal government. As Chief Justice Marshall wrote in ruling that the Bill of Rights binds only the federal government: [T]he limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicаble 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. Barron v. Mayor of Baltimore, 32 U.S. 243, 247, 7 Pet. 243, 8 L.Ed. 672 (1833) (Just Compensation Clause of Fifth Amendment does not apply to states); see Talton v. Mayes, 163 U.S. 376, 382, 16 S.Ct. 986, 41 L.Ed. 196 (1896) (Bill of Rights does not bind tribal government). Professor Neuman states that rights within a constitution usually run against the government structured by that constitution. Gerald L. Neuman, Conflict of Constitutions? No Thanks: A Response to Professors Brilmayer and Kreimer, 91 Mich. L.Rev. 939, 947 (1993) (hereinafter Neuman).
{29}
The people shall be secure in their persons, papers, homes and effects, from unreasonable seаrches and seizures, and no warrant to search any place, or seize any person or thing, shall 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.
Like the
{30} In particular, when federal officers are not acting as instruments or agents of the state,
{31} Despite the above, perhaps a state court would still be tempted to find that evidence is tainted—and therefore should be suppressed—when seized by a federal officer acting in сompliance with federal law yet contrary to the rules that govern state officers. Such a decision would be misguided.
{32} First, the decision would not protect anyone‘s privacy interests because it is highly unlikely that federal officers would change their conduct to comply with state laws. The Border Patrol checkpoint in this case will surely be operated the same way regardless of whether we apply New Mexico standards to their searches in judging the admissibility of evidence. Also, I am not aware of any basis on which a court could grant an injunction to require federal offiсers to comply with the New Mexico Constitution.
{33} Second, the remedial scheme created by the decision would be bizarre. If federal officers comply with federal search-and-seizure law, neither they nor the United States could be sued for damages for violating New Mexico standards. After all, as explained above,
{34} Third, and most important, exclusion of evidence seized in such circumstances would not vindicate any rights of the person subjected tо the search and seizure. The search and seizure was perfectly lawful if it complied with federal law. To be sure, in Gutierrez our Supreme Court said that suppression of evidence is necessary to effectuate the rights guaranteed by
{35} I think that the New Jersey Supreme Court got it right in Mollica. It wrote:
We endorse the principle that federal officers acting lawfully and in conformity to federal authority are unconstrained by the State Constitution, and may turn over to state law enforcement officers incriminating evidence, the seizure of which would have violated state constitutional standards.
Id. at 1328. In reaching that result, the court explained:
[T]he application of the state constitution to the officers of another jurisdiction would disserve the principles of federalism and comity, without properly advancing legitimate state interests.... [I]t does not offend the constitutional principles of a forum jurisdiction to allow the transfer of criminal evidence from the officers of another jurisdiction to those of the forum when the evidence has been obtained lawfully by the former without any assistance by the latter.
In determining the validity of a search and seizure cоnducted by officers of anoth
... [N]o purpose of deterrence relating to the conduct of state officials is frustrated, because it is only the conduct of another jurisdiction‘s officials that is involved. Judicial integrity is not imperiled because there has been no misuse or perversion of judicial process. Further, no citizen‘s individual constitutional rights fail of vindication because no state official or рerson acting under color of state law has violated the State Constitution.
Id. at 1327-28 (citations omitted).
{36} The majority opinion cites a few opinions to support applying the search-and-seizure law of the forum state to officers of other jurisdictions. I do not find them persuasive. Stidham v. State, 608 N.E.2d 699 (Ind.1993), applied a state statute requiring exclusion of a juvenile‘s confession. People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409, 412 (N.Y.1988), is devoid of analysis to support its conclusion, and Moran v. State, 644 N.E.2d 536, 538 (Ind. 1994), does little better. State v. Rodriguez, 317 Or. 27, 854 P.2d 399, 403 (Or.1993) (en banc), just follows State v. Davis, 313 Or. 246, 834 P.2d 1008, 1011-13 (Or.1992), which asserts its conclusion without addressing the considerations I find compelling. Moreover, in Moran, Rodriguez, and Davis, the discussion was dictum because the evidence was not suppressed; and in each case the search and seizure involved officers of the forum state, so that applying forum law may well have been appropriate.
{37} The better-reasoned opinions and commentary support the admission of evidence obtained by officers of another jurisdiction, particularly federal officers, who act in conformity with the laws of their own jurisdiction. See, e.g., Mollica; Cryer; LaFave, supra, at § 1.5(c); Latzer, supra; John Bernard Corr, Criminal Procedure and the Conflict of Laws, 73 Geo.L.J. 1217, 1233-34 (1985); cf. State v. Bridges, 83 Hawai‘i 187, 925 P.2d 357, 364-72 (Haw.1996) (court will not suppress evidence obtained by Hawaii officers in California in compliance with California law, even if search would have been unlawful in Hawaii). We would be wise to follow that approach.
STATE of New Mexico, Plaintiff-Appellee, v. Eugene FOSTER, Jr., Defendant-Appellant.
No. 18,450.
Court of Appeals of New Mexico.
Sept. 22, 1998.
1998-NMCA-163; 967 P.2d 852; Certiorari Denied, No. 25,415, Nov. 6, 1998.