State of N.M. v. RIVERA

• Decision Date: 19 October 2010
• Docket Number: No. 31,656.,31
• Citation: 148 N.M. 659,241 P.3d 1099,2010 NMSC 046
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Erica RIVERA, Defendant-Petitioner.
• Court: New Mexico Supreme Court

148 N.M. 659

241 P.3d 1099

2010 NMSC 046

STATE of New Mexico, Plaintiff-Respondent,

v.Erica RIVERA, Defendant-Petitioner.

No. 31,656.

Supreme Court of New Mexico.

Oct. 19, 2010.

COPYRIGHT MATERIAL OMITTED.

Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles. The private citizen did not open any of the opaque bundles. When a law enforcement officer who was made aware of the private search obtained possession of the resealed container, he accompanied a second private citizen who re-opened the sealed container. The officer then cut open an opaque bundle to confirm his suspicion that it contained marijuana. The question is whether the officer violated either the Fourth Amendment of the United States Constitution or Article II, Section 10 of the New Mexico Constitution when he cut open the opaque bundles without a search warrant.

{2} Under the Fourth Amendment of the United States Constitution, a law enforcement officer may repeat a private search and may exceed the scope of the private search, so long as (1) the expansion was only de minimus, and (2) obtaining a warrant would only minimally advance Fourth Amendment interests. We have consistently interpreted the search and seizure provision of the New Mexico Constitution, however, as imposing a greater requirement for a warrant than its federal counterpart. Accordingly, under the New Mexico Constitution an officer must obtain a valid warrant from a neutral and detached judge to expand the private search absent an exception to the warrant requirement. N.M. Const. art. II, § 10. Our approach encourages private citizens to assist police officers in the investigation of crimes, while faithfully safeguarding existing privacy interests as required by our constitution.

{3} Because the officer in this case opened opaque bundles without a valid search warrant or an exception to the warrant requirement, the district court correctly suppressed the evidence. Accordingly, we reverse the Court of Appeals and affirm the district court.

I. BACKGROUND

{4} Defendant Erica Rivera was charged with possession of a controlled substance with intent to distribute contrary to NMSA 1978, Section 30-31-22(A)(1) (1990) (amended 2005), or in the alternative, possession of marijuana contrary to NMSA 1978, Section 30-31-23 (1990) (amended 2005). Defendant sought to have the package containing marijuana and her statements suppressed as fruits of an illegal search and seizure. She argued that the search violated the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution because the “[i]nitial seizure, as well as the subsequent search, of the package at the Bus Station was without probable cause to believe it contained contraband; [i]t was without a warrant and without consent, and therefore unlawful.”

{5} At the hearing on the motion to suppress, the events leading up to the search and Defendant's subsequent arrest were described by Agent Perry of the Drug Enforcement Administration (DEA). Unless otherwise noted, the following testimony by Agent Perry was based on information he was given by an anonymous caller who reported what he had heard from someone else about the package.

{6} A sealed package addressed to Defendant was shipped from Texas on a bus operated by the El Paso-Los Angeles Limousine Express. The package was addressed to Albuquerque, New Mexico, but it was misdirected to Denver, Colorado. Agent Perry received a call from an individual who identified himself as an employee of the bus company in California, who wished to remain anonymous. Agent Perry did not know from where the anonymous caller placed the call, nor did he testify (1) that he knew the caller, (2) why he thought the caller was credible, or (3) why he believed the information was reliable.

{7} The anonymous caller told Agent Perry that bus company employees in Denver became suspicious about the contents of the package after receiving more than a dozen calls from a woman who identified herself as Defendant, demanding to know where her package was and claiming that it contained jerky. Suspecting that the package contained something more nefarious than beef jerky, one or more bus company employees in Denver opened the package and found a tool box that held bundles wrapped in brown plastic. The anonymous caller stated that although he was not present when the package was opened, and although he had not seen the package, from what he had been told, he believed the brown bundles contained marijuana. The basis for the anonymous caller's suspicions was not articulated for the court. Agent Perry likewise testified that based on the description he was given and his training and experience, he believed the bundles contained marijuana.

{8} The anonymous caller asked Agent Perry what the bus company should do with the package. Agent Perry instructed the caller to have the package resealed and shipped to Albuquerque, New Mexico. When the package arrived in Albuquerque several hours later, Agent Perry and another agent met with the bus station manager, who re-opened the package in their presence, either at the direction of Agent Perry or because the manager intended to do so anyway. After the package was opened, Agent Perry saw the opaque bundles. Agent Perry concluded, based on his training and experience, that he had probable cause to believe that the bundles contained marijuana. He knew that one or more of the bundles had been cut into, but he did not remember if he personally cut into them that night. Agent Perry believed that he did not need a warrant to open the opaque bundles because (1) the package already had been opened in Denver by “an administrative employee,” and (2) his training and experience gave him probable cause to believe the packages contained marijuana. Defendant was later arrested when she came to retrieve the package.

{9} The only other witness who testified at the suppression hearing was a criminal investigator for the State of New Mexico. She testified that she spoke with a manager of the bus company who told her that it was against company policy for an employee to open a package within the company's control.

{10} The district court granted Defendant's motion to suppress, finding that

there was State interaction in the handling of this package, from Denver to Albuquerque.... [T]hat upon its delivery to Albuquerque, that there was State interaction in the control and opening of the package here in Albuquerque.... [T]hat there was no evidence to support that the package was not properly labeled and sealed. Further, with regard to sufficient probable cause, the Court finds that the State has failed to produce evidence that there was information given to the DEA agent that was reliable.

The district court also held that if,

in fact, the opening of the package was constitutional; it was performed by administrative function of the bus employee, given the prior knowledge and direction of this package by the DEA agent, the Court finds that the DEA agent had sufficient time to obtain a search warrant, prior to taking-or touching or taking possession or continued possession of the package. The State has failed to establish or provide any evidence that there were exigent circumstances that would warrant the failure to obtain such a warrant.

The court noted that there were “numerous confrontational issues in this matter.” The State appealed and we previously addressed the question under the Confrontation Clause in State v. Rivera, 2008-NMSC-056, ¶ 23, 144 N.M. 836, 192 P.3d 1213 ( Rivera II ). We remanded the case to the Court of Appeals to “decide the remaining issues presented to that Court but left undetermined in its opinion, including if deemed appropriate the possibility of a remand to the district court.” Id.

{11} On remand the Court of Appeals addressed “whether the State's warrantless search and seizure was reasonable.” State v. Rivera, 2009-NMCA-049, ¶ 1, 146 N.M. 194, 207 P.3d 1171 ( Rivera III ). The Court of Appeals remanded the case to the district court to determine “whether there was state involvement in the original opening of the package in Denver.” Id. ¶ 6. The Court held that the invasion of privacy in Denver did not implicate Defendant's privacy rights if there was no state involvement, and that the investigation in Albuquerque was valid because it did not unreasonably exceed the scope of the original opening in Denver. Id. ¶ 2. In so doing, the Court adopted the “private search doctrine” that applies to “searches conducted by private parties ... which are then repeated by government agents.” Id. ¶ 12 (alteration in original) (internal quotation marks and citation omitted). The Court of Appeals held that “Defendant's privacy interest in the contents of the package had been largely compromised.” Id. ¶ 14 (internal quotation marks and citation omitted). Although the Court found that there was state action when Agent Perry oversaw the Albuquerque manager open the package, id. ¶ 12, it reversed the district court's holding that the search and seizure was unreasonable when Agent Perry directed that the package be sent to Albuquerque. Id. ¶ 15. On the issue of opening the opaque bundle, the Court of Appeals held that “[e]ven if Agent Perry cut open one of the bundles in Albuquerque, as Defendant alleges, he did not unreasonably expand upon the original breach of Defendant's expectation of privacy.” Id. ¶ 14 (emphasis added).

{12} We granted Defendant's petition for writ of certiorari on the issue of whether the Court of Appeals erred in holding that Agent Perry did not...