State v. TapiaState v. Tapia
MAES, Justice.
{1} In this case we address an issue of first impression: whether evidence of nonviolent crimes committed in the presence of a police officer after an unconstitutional traffic stop must be suppressed under the Fourth Amendment of the United States Constitution (Fourth Amendment) and Article II, Section 10 of the New Mexico Constitution (Article II, Section 10). Defendant Edward Tapia, Sr. entered a conditional plea of guilty to one count of forgery, for signing his brother‘s name to a traffic citation charging failure to wear a seat belt in a motor vehicle, and reserved his right to appeal. See State v. Tapia, 2015-NMCA-055, ¶¶ 1, 5, 348 P.3d 1050. He appealed to the Court of Appeals which reversed his conviction. Id. ¶ 1. The State petitioned for a writ of certiorari, which we granted. See
I. Facts and Procedure
{2} Because Defendant entered a conditional guilty plea, there was no trial. Therefore, the facts are taken from the suppression hearing, the findings of fact and conclusions of law entered by the district court, and the plea hearing. On August 8, 2012, Defendant and his companions were traveling westbound on U.S. Highway 64 toward Farmington, in San Juan County. Defendant was a passenger in the back seat of the car. New Mexico State Police Officer Tayna Benally stopped the car because it was going forty miles per hour in a fifty-five-mile-per-hour zone and becausе she was unable to read the license plate. After contacting the driver, Benally noticed Defendant was not wearing a seat belt. When asked about this, Defendant told Benally he was wearing a lap belt. Benally asked him to lift his shirt so she could verify he was wearing a lap belt. Defendant complied and lifted his shirt, and Benally observed he was not wearing a lap belt. At this point, Benally asked Defendant for his driver‘s license. Defendant said he didn‘t have any identification. Benally then asked Defendant to write down his name, date of birth, and social security number. He wrote down “Robert Tapia DOB 03/22/1968” and said he did not know his social security number.
{3} Benally contacted San Juan County Dispatch and asked for a description of Robert Tapia. The description given was inconsistent with Benally‘s observаtions of
{4} While Benally was dealing with Defendant, another officer at the scene spoke with a second male passenger. The second passenger informed the second officer that Defendant‘s real name was Edward Tapia. The second officer had Defendant exit the car and confirm his name. Defendant said his name was Robert Tapia but then restated his birth date as March 22, 1974. The second officer informed Benally of what the second passenger had told him, and Benally then arrested Defendant for concealing identity. Later, at the jail, Defendant‘s real identity wаs confirmed as Edward Tapia. His birth date and social security number were also confirmed, and Benally discovered there was an outstanding warrant for Defendant‘s arrest for failing to appear at the San Juan Magistrate Court in Aztec, New Mexico.
{5} Defendant was charged with forgery, contrary to
{6} Defendant filed in the Eleventh Judicial District Court a motion to suppress all evidence obtained by Benally, challenging the constitutionality of the traffic stop. The district court heard the motion to suppress, held that the traffic stop was unlawful because the driver had made no moving violations and the license plate was concededly visible to the officer, and suppressed the evidence of the seat belt violation. However, the evidence of concealing identity and forgery was not suppressed. The district court found that those crimes “had not yet been committed at the time of the stop,” that “[e]vidence of those crimes did not exist at the time of the stop,” and concluded that “an unlawful stop does not justify the commission of new crimes.”
{7} Defendant entered a conditional guilty plea to the forgery charge, admitted to two prior offenses for habitual sentencing purposes, and reserved the right to appeal the suppression issue as to both forgery and concealing identity. The district court accepted the plea and sentenced Defendant to eighteen months in the Department of Corrections, with all but forty-five days of the sentence suspended in favor of unsupervised probation. Pursuant to the plea, the Defendant appealed his conviction to the Court of Appeals.
{8} The Court of Appeals reversed the ruling of the district court and held that “the commission of a non-violent, identity-related offense in response to unconstitutional police conduct does not automatically purge the taint of the unlawful police conduct under federal law.” Tapia, 2015-NMCA-055, ¶ 17. The Court of Appeals then engaged in an attenuation analysis and held that “the discovery of the evidence of concealing identity and forgery was not sufficiently removed from the taint of the illegal stop to justify admitting the evidence notwithstanding the exclusionary rule.” Id. ¶ 19. Concluding that the crimes of concealing identity and forgery should have been suppressed under the Fourth Amendment, the Court of Appeals did not reach defendant‘s state constitutional сlaim. Id. ¶ 20.
{9} The State petitioned for certiorari to review the issue of whether a new crime exception to the exclusionary rule, which this court has previously recognized for violent crimes, also applies to non-violent, identity-related crimes. See
II. Standard of Review
{10} “In reviewing a trial court‘s denial of a motion to suppress, we observe the distinction between factual determinations which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration in original) (internal quotation marks and citation omitted). The district court made findings of facts and conclusions of law. The parties do not dispute the pertinent facts,
III. Discussion
{11} The State argues that the new crime exception to the exclusionary rule does not make a categorical distinction between violent and non-violent crimes and that the potential deterrence of unlawful searches and seizure by the State is outweighed by the cost of excluding evidence of identity crimes. Defendant asks this Court to affirm the Court of Appeals ruling that the crimes of concealing identity and forgery should have been suppressed under the Fourth Amendment and asks alternatively for suppression under Article II, Section 10.
{12} Under the interstitial approach adopted in State v. Gomez, 1997-NMSC-006, ¶ 21, 122 N.M. 777, 932 P.2d 1, wе ask “first whether the right being asserted is protected under the federal constitution. If it is, then the state constitutional claim is not reached.” Id. ¶ 19. If it is not, we examine the state constitutional claim. Id. However, “we may diverge from federal precedent where the federal analysis is flawed, where there are structural differences between the state and federal governments, or because of distinctive New Mexico characteristics.” State v. Garcia, 2009-NMSC-046, ¶ 27, 147 N.M. 134, 217 P.3d 1032 (citing Gomez, 1997-NMSC-006, ¶ 19).
A. Attenuation Doctrine and the New Crime Exception
{13} The Fourth Amendment prohibits unreasonable searches and seizures by police. Herring v. United States, 555 U.S. 135, 139 (2009). “As a general rule, the federal constitution . . . requires suppression of evidence obtained in a manner that runs afoul of the Fourth Amendment.” State v. Santiago, 2010-NMSC-018, ¶ 10, 148 N.M. 144, 231 P.3d 600. The requirement that evidence obtained as a result of an unconstitutional search or seizure be suppressed is known as the “exclusionary rule.” State v. Ingram, 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151. The purpose оf the exclusionary rule under the Fourth Amendment has been articulated as the deterrence of unlawful government behavior. See Elkins v. United States, 364 U.S. 206, 217 (1960) (stating purpose of the exclusionary rule is “to deter—to compel respect for the constitutional guaranty . . . by removing the incentive to disregard it“). “[T]he exclusionary rule encompasses both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ and . . . ‘evidence later discovered and found to be derivative of an illegality,’ the so-called ‘fruit of the poisonous tree.‘” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)). The rule is not absolute, but “applicable only . . . where its deterrence benefits outweigh its substantial social costs.” Strieff, 136 S. Ct. at 2061 (omission in original) (internal quotation marks and citation omitted).
{14} The United States Supreme Court has thus recognized three еxceptions to the exclusionary rule involving the causal relationship between the unconstitutional act and the discovery of evidence.
First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third . . . is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the сonstitutional guarantee that has been violated would not be served by suppression of the evidence obtained.
Id. at 2061 (omission in original) (internal quotation marks and citations omitted).
{16} “It was [the attenuation doctrine] that spawned the new crime exception to the exclusionary rule.” Christopher J. Dunne, State v. Brocuglio: The Supreme Court of Connecticut‘s Modification of the New Crime Exception to the Exclusionary Rule, 23 QLR 853, 860 (2004). The new crime exception was first articulated by the Eleventh Circuit Court of Appeals in United States v. Bailey, 691 F.2d 1009 (11th Cir. 1983). See Dunne, supra, at 861. In Bailey, the Court of Appeals held that “notwithstanding a strong causal connection in fact between lawless police conduct and a defendant‘s response, if the defendant‘s response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime.” 691 F.2d at 1016-17.
{17} Whether the new crime exception is part of the attenuation doctrine or a separate exception to the exclusionary rule is unclear. 1 McCormick on Evidence § 180, at 972-73 (Kenneth S. Broun ed., 7th ed. 2013) (“Some courts appear to regard the doctrine as simply a specialized application of the attenuation of taint doctrine, under which intervening voluntary criminal conduct usually and perhaps inevitably attenuates the taint of illegality preceding that conduct. . . . Other courts appear to regard the doctrine as a separate exception to exclusionary requirements, based on considerations distinguishable from those supporting the attenuation of taint doctrine.” (footnotes omitted)).1
{18} The Tenth Circuit Court of Appeals adopted the new crime exception in United States v. Waupekenay, 973 F.2d 1533 (10th Cir. 1992), a case that arose out of New Mexico. In Waupekenay, the defendant pointed a rifle at tribal officers after they unlawfully entered his home. Id. at 1535. The Court concluded that despite the unlawful entry, the defendant no longer had a reasonable expectation of privacy when he assaulted the officers and that the evidence against him would not be suppressed under the Fourth Amendment. Id. at 1536-38. The opinion notes that courts have applied different rationales in similar cases but concludes “whatever rationale is used, the result is the same: Evidence of a separate, independent crime initiated against police officers in their presence after an illegal entry or arrest will not be suppressed under the Fourth Amendment.” Id. at 1538.
{19} Waupekenay involved a defendant reacting violently toward police officers, and many states, including New Mexico, have adopted the new crime exception to the exclusionary rule in such cases. Id. at 1537 (listing numerous cases); see State v. Travison B., 2006-NMCA-146, ¶ 11, 140 N.M. 783, 149 P.3d 99. In Travison B., officers improperly entered the scene of a domestic disturbance and encountered an angry child, who then battered the officers. 2006-NMCA-146 ¶ 2. The Court of Appeals essentially adopted the new crime exception without explicitly stating so when it concluded that “[a]lthough precipitated by the [unlawful] entry, [c]hild‘s actions against the officers constituted new criminal activity that is not subject to the exclusionary rule.” 2006-NMCA-146, ¶ 9.
{20} Cases where defendants committed an identity-related crime in the presence of police after an unlawful search or seizure are much less common but do exist. Two federal appellate courts have ruled that identity-related crimes committed in the presence of officers after an illegal seizure were not protected undеr the Fourth Amendment. See United States v. Pryor, 32 F.3d 1192, 1195-1196 (7th Cir. 1994) (involving a defendant‘s misrepresentation of identity to federal agents); United States v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir. 1988) (holding that a defendant‘s false statement of citizenship was a new and distinct crime committed in the border agent‘s presence and not barred by the exclusionary rule).
{21} Some state courts have also held that identity crimes committed after a Fourth Amendment violation fall under the new crime exception to the exclusionary rule. See, e.g., People v. Diamond, 353 N.Y.S.2d 688, 690-91 (1974) (impersonating a transit authority conductor was a new crime not tainted by illegal arrest); State v. Suppah, 369 P.3d 1108, 1112 (Or. 2016) (Suppah II) (concluding a defendant‘s commission of new crime of providing deputy with false name and address sufficiently attenuated taint of illegal stop); State v. Earl, 2004 UT App 163, ¶¶ 23-24, 92 P.3d. 167 (holding that a defendant giving officer a false name and birth date was an intervening act and not the product of the officer‘s illеgal entry into the home in which defendant was staying); but see State v. Brocuglio, 779 A.2d 793, 801-802 (Conn. App. Ct. 2001) (holding that a defendant‘s verbal utterances to the officers requesting that they leave his property or he would let his dog loose did not constitute a new, distinct crime).
{22} Defendant asks us to limit the application of the attenuation for new crimes to only those cases where an individual endangers the safety of police or the public. Defendant points out that in New Mexico the early cases holding new crimes that were sufficiently attenuated from the initial illegality involved assaults and threats against officers during unlawful searches and seizures. See, e.g., State v. Chamberlain, 1989-NMCA-082, 109 N.M. 173, 783 P.2d 483; State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464. Based on that history, Defendant suggests that the new crime attenuation analysis was “intended to protect police officers and the public from violent conduct.” And Defendant pоints out that the analysis has evolved into a “virtually automatic and deeply-ingrained exception to the exclusionary rule” when the case involves violence, threats, or resistance to law enforcement officers. See, e.g., United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir.1997) (holding that firing of gun at officer after initial unlawful stop triggered exception to exclusionary rule); People v. Villarreal, 604 N.E.2d 923, 928 (Ill. 1992) (declining to apply exclusionary rule to suppress evidence of aggravated battery regardless of legality of officers’ entry into home); Commonwealth v. Johnson, 245 S.W.3d 821, 824 (Ky. Ct. App. 2008) (finding illegal entry into residence by police officer did not render evidence of subsequent assault against officer inadmissible under exclusionary rule); State v. Herrera, 48 A.3d 1009, 1026 (N.J. 2012) (finding exclusionary rule does not apply to evidence of defendants’ attempt to murder state trooper, regardless of the illegality of the initial stop).
{23} The State contends the Court of Appeals applied the correct analysis to the facts but came to the wrong conclusion in reversing the district court. According to the State, the Court of Appeals erred “in weighing the potential for deterrence too greatly and discounting the societal cost of excluding evidence of identity crimes.” The State submits that under federal law there should always be a balancing of the costs and benefits of exclusion and that the Court of Appeals improperly discounted the costs of excluding evidence of non-violent, identity-related crimes. The State also suggests that non-violent crimes can be as socially harmful as violent crimes and that we should look to the penalty for an offense as it “‘reveals thе legislature‘s judgment about the offense‘s severity.‘” (quoting Lewis v. United States, 518 U.S. 322, 326 (1996) (discussing the right to jury trial)).
{24} By contrast, Defendant directs this Court to three cases from other jurisdictions that have declined to extend the new crime exception to non-violent acts by a defendant: People v. Brown, 802 N.E.2d 356 (Ill. App. Ct. 2003), State v. Badessa, 885 A.2d 430 (N.J. 2005), and State v. Suppah, 334 P.3d 463 (Or. Ct. App. 2014) (Suppah I). We find these cases distinguishable for the reasons below.
{26} A month after the traffic stop, the defendant called the police and told them he had lied about his name. Id. As a result, the state dismissed the charges against the defendant‘s friend and charged the defendant with driving while suspended and giving false information to a police officer. Id. Before trial, the defendant moved to suppress the false statements he made to police when he was stopped and the statements he made a month afterward. Id. at 1110-11. The trial court denied the motion to suppress, concluding that the defendant‘s decision to give the deputy a false name and his decision to come forward with truthful information a month later were not the product of the unlawful stop. Id. After a bench trial, the court found the defendant guilty of giving false information to a police officer but not guilty of driving while suspended. Id.
{27} On initial appeal, the Oregon Court of Appeals agreed with the defendant that the evidence should have been suppressed and reversed the trial court‘s judgment. Suppah I, 334 P.3d at 476. The Oregon Supreme Court reversed the Court of Appeals and affirmed the trial court‘s denial of the motion to suppress. Suppah II, 369 P.3d at 1117, concluding that “in giving the deputy a false name and address . . . , defendant knowingly chose to do something other than what the deputy had asked. . . . The reason for defendant‘s misrepresentation was unconnected, other than in a ‘but-for’ sense, from the unlawful stop that preceded it.” Id. at 1116. The Oregon Supreme Court held “the stop had no appreciable effect on the defendant‘s decision to give the deputy a false name and date of birth,” and it was the defendant‘s independent, unprompted decision that “attenuated the taint of the unlawful stop.” Id. at 1117.
{28} Second, Defendant relies on the holding in Badessa where the New Jersey Supreme Court found that evidence gathered by the police after an unconstitutional traffic stop should have been excluded in a prosecution for refusal to submit to a breathalyzer test. See 885 A.2d 430. In Badessa, the defendant was stopped by police after he turned onto a side street in an apparent attempt to evade a DWI checkpoint. Id. at 433. Police observed signs of intoxication coming from the defendant and had him perform field sobriety tests. Id. Aftеr completing the tests, the officer arrested the defendant for driving while under the influence. Id. Later at the police station, the defendant refused to submit to a breathalyzer test, so he was charged with DWI and refusal to submit to a breathalyzer test which is a distinct crime under New Jersey law. Id. The defendant challenged the legality of the stop. The trial court found that the officer did not have probable cause to stop the defendant for DWI but did have probable cause to request the breathalyzer test and acquitted the defendant on the DWI charge but convicted him for refusing the breathalyzer test. Id. at 433. An appellate panel concluded that although the officer lacked probable cause for the stop, there was probable cause to support the request for the breathalyzer test. Id. at 434. The panel affirmed the conviction for refusing to submit to the breathalyzer test, indicating that the refusal was sufficiently attenuated from the illegal stop to justify admission of the refusal evidence. Id.
{29} The New Jersey Supreme Court disagreed, stating:
Under the present circumstances, we cannot subscribe to the [s]tate‘s position that a breathalyzer refusal and DWI are distinct
for purposes of an exclusionary rule analysis. . . . The facts necessary to prosecute those two offenses are inextricably intertwined. After all, to secure a refusal conviction, the [s]tate must prove that the arresting officer had probable cause to believe that the person had been driving while under the influence and was placed under arrest for DWI.
Id. at 436 (internal quotation marks and citations omitted).
{30} The New Jersey refusal statute‘s dual requirements оf probable cause and an arrest for DWI were critical to the refusal analysis and thus the outcome of the case. In other words, the New Jersey statute rendered the crime of refusing a breath test “inextricably intertwined” with a DWI arrest and compelled a conclusion that refusal could not be attenuated from an initial stop for DWI. Id.; see
{31} No such specific statutory treatment applies to the crimes with which Defendant was charged in this case. In New Mexico, concealing identity and forgery may be distinct crimes from, and not conditioned upon, conduct giving rise to an initial stop. See State v. Ruffins, 1990-NMSC-035, ¶ 11, 109 N.M 668, 789 P.2d 616 (holding that forgery is completed when a defendant possessing the requisite intent: (1) falsely makes or alters a writing which purports to have legal efficacy, (2) physically delivers a forged writing, or (3) passes an interest in a forged writing);
{32} Finally, People v. Brown is no more persuasive. In People v. Brown, a police officer unlawfully detained Brown simply because he was standing in front of a closed business. 802 N.E.2d at 357-58. The officer asked Brown for identification and Brown replied he had none. Id. at 358. When the officer asked Brown for his name, address, and date of birth, Brown provided a falsе name and date of birth. Id.. The officer then radioed in this information and discovered there was a warrant for Brown‘s arrest. Id.. Brown was ultimately charged with obstructing justice, giving a false name, and falsely stating that he was not carrying identification. Id.. Brown moved to suppress his statements as they were obtained as a result of his unlawful detention. Id. at 357-58. The trial court granted the motion to suppress. Id. at 357. The state appealed, and the Appellate Court of Illinois affirmed the trial court, concluding that Brown was simply responding to the officer‘s questioning in conjunction with the illegal seizure and that “[r]efusing to provide identification does not raise the same policy concerns as assaulting a law enforcement officer.” Id. at 360.
{33} We decline to follow the reasoning in People v. Brown, 802 N.E.2d at 368. While we acknowledge that like the defendant in People v. Brown, Defendant was unlawfully seized when speaking with Benally, Defendant‘s statements to Benally
were not directly connected tо the seizure except in a “but-for” sense. Benally‘s observation that Defendant was not wearing a seat belt prompted her to ask him for identification. There is nothing that indicates Benally obtained the evidence of Defendant‘s false statements by exploiting the unlawful seizure.
{34} The parties do not dispute the district court‘s finding that Benally lacked reasonable suspicion to initiate the traffic stop. The question before this Court is: do the Brown v. Illinois factors suggest Defendant‘s conduct was sufficiently attenuated between the initial stop and Defendant‘s false identification to render the exclusionary rule inapplicable to the new evidence. This is an issue of first impression before the Court.
{35} We now apply the three general attenuation factors from Brown v. Illinois
{36} The second consideration requires that we look to any intervening circumstances that serve to attenuate the illegal detention from the discovery of the evidence. An intervening circumstance is one that breaks the relationship between the illegal conduct and the evidence obtained. Vаrious courts have concluded a defendant‘s independent criminal act may itself constitute an intervening circumstance sufficient to purge the taint of the initial illegality. United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (concluding a “shooting was an independent intervening act which purged the taint of the prior illegality“); State v. Nelson, 2015 OK CR 10, ¶¶ 23, 25, 356 P.3d 1113 (holding defendant‘s behavior in walking away from traffic stop for failing to signal left-hand turn was an intervening circumstance which purged any taint originating from the illegal stop). To hold otherwise “would allow a defendant carte blanche authority to go on whatever criminal rampage he desired and do so with virtual legal impunity as long as such actions stemmed from the chain of causation started by the police misconduct.” See State v. Miskimins, 435 N.W.2d 217, 221 (S.D.1989). And in many scenarios, courts conclude that even independent, non-violent сriminal acts following an unlawful detention may constitute intervening circumstances, reasoning that the conduct is neither natural nor predictable, and thus insufficiently connected to the initial illegality to warrant application of the exclusionary rule. See, e.g., Ellison v. State, 410 A.2d 519, 527 (Del. Super. Ct. 1979).
{37} Here, Defendant‘s misrepresentation of his identity was such an intervening circumstance. Although the interaction between the police and Defendant came about initially as a result of the unlawful seizure, the Defendant‘s response to Officer Benally was not a natural or predictable progression from the unlawful seizure but rather an unprompted act of his own free will.
{38} The third consideration requires that we assess the purpose and flagrancy of the police misconduct. Nothing in the record indicates that Benally initiated the traffic stop for the specific purpose of investigating Defendant or for some other merely pretextual reason. And nothing indicates Benally approached and addressed Defendant for arbitrary reasons or to provoke additional wrongdoing; rather, she addressed Defendant based on her observation that he was not wearing a seat belt. Benally had probable cause to believe that Defendant was violating the law; and under conditions of a lawful traffic stop, her course of conduct thereafter would not have been unlawful. This third consideration tips the balance away from suppression because nothing suggests that admission of the evidence will embolden police to engage in unconstitutional traffic stops. Benally‘s behavior cannot reasonably be viewed as flagrant misconduct of a police officer searching for evidence. Accordingly, the Fourth Amendment analysis does not require excluding evidence of concealing identity because it was free of the taint of the unlawful seizure.
B. State Constitutional Grounds
{39} Because we conclude that the Fourth Amendment does not offer Defendant protection here, we must address his challenge under
1. Preservation of State Constitutional Issue
{40} Because the Court of Appeals found the crimes of concealing identity and
{41} Defendant explicitly cited
{42} We find that despite this marginal record, the necessаry factual basis was still developed and the district court‘s ruling was fairly invoked. Therefore, Defendant‘s
2. Article II, Section 10
{43}
{44} Defendant argues that upholding the district court ruling would create a bright-line, per se standard whereby the commission of non-violent identity offenses would always be sufficient to purge the taint of an unconstitutional seizure and would thus contradict our preference to consider the facts of each case. Defendant also argues that unlike the federal exclusionary rule, which only applies “where its deterrence benefits outweigh its substantial social costs,” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998) (internal quotation marks and citation omitted), the primary focus of the state exclusionary rule is securing privacy interests, which is achieved by putting individuals in the same position as if the misconduct had not occurred, see State v. Trudelle, 2007-NMCA-066, ¶ 40, 142 N.M. 18, 162 P.3d 173 (“The purpose of the state exclusionary rule[, to ensure freedom from unreasonable search and seizure,] is accomplished by doing no more than return the parties to where they stood before the right was violated.“). Finally, Defendant argues that the three-factor federal attenuation analysis is flawed in that it fails to account for the greater protection of privacy granted under
{45} The State argues that the Court of Appeals properly applied the federal analysis but neglected to balance the costs and benefits
{46} While we have repeatedly expressed that
{47} Application of the three-part federal attenuation analysis comports with our preference to assess the reasonableness of law enforcement by considering the totality of the circumstances of each case. See State v. Leyva, 2011-NMSC-009, ¶ 55, 149 N.M. 435, 250 P.3d 861. Defendant‘s assertion that the federal attenuation analysis is flawed because it fails to account for the heightened protections of privacy under
{48} While Officer Benally‘s decision to initiate the stop was mistaken, her conduct thereafter was lawful. Officer Benally reasonably requested Defendant‘s identification after observing the seat belt violation. We therefore conclude that the benefits of deterrence in this case are not outweighed by the cost of excluding the evidence of Defendant‘s crimes. Though a passenger in an automobile has a right to be free of unreasonable seizure by the government, the passenger‘s unprovoked and willful criminal acts after an unreasonable traffic stop cannot be sanctioned. The violation of Defendant‘s Fourth Amendment or
{49} Finally, Defendant does not present any basis for us to conclude that this case involves structural differences between the federal and state governments other than the differences already articulated between the Fourth Amendment and
IV. CONCLUSION
{50} We hold that the new crime exception to the exclusionary rule may apply to both violent and non-violent crimes committed in response to unlawful police action. Defendant‘s attempts to conceal his identity after the unlawful traffic stop sufficiently purged the taint of the initial illegality so as to render the exclusionary rule inapplicable under both the Fourth Amendment and
{51} IT IS SO ORDERED.
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PETRA JIMENEZ MAES, Justice
WE CONCUR:
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JUDITH K. NAKAMURA, Chief Justice
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EDWARD L. CHÁVEZ, Justice
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CHARLES W. DANIELS, Justice
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BARBARA J. VIGIL, Justice