State v. Affsprung

• Decision Date: 26 April 1993
• Docket Number: No. 14027,14027
• Citation: 1993 NMCA 56,854 P.2d 873,115 N.M. 546
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Andrew AFFSPRUNG, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 873

854 P.2d 873

115 N.M. 546

STATE of New Mexico, Plaintiff-Appellee, v. Andrew AFFSPRUNG, Defendant-Appellant.

No. 14027.

Court of Appeals of New Mexico.

April 26, 1993.

Certiorari Denied June 14, 1993.

[115 N.M. 547] Tom Udall, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BLACK, Judge.

Defendant appeals the trial court's order denying his motion to suppress. Following the denial of his motion to suppress, Defendant filed an application for interlocutory appeal. The issue on appeal is whether, following a brief visual inspection of a vehicle and limited questioning regarding the occupant's residency and citizenship at a fixed immigration patrol checkpoint near the border, further detention may properly be based on reasonable suspicion of criminal activity. We hold reasonable suspicion is the proper standard, and affirm.

STANDARD OF REVIEW

We view the evidence elicited in the light most favorable to sustain the trial court's finding that the seizure was lawful. State v. Bolton, 111 N.M. 28, 801 P.2d 98 (Ct.App.), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990); State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983). Furthermore, as the reviewing Court, we must indulge all inferences in support of the ruling and disregard evidence to the contrary. To the extent the witnesses' testimony differs as to the facts, as it does in this case, it is the trial court's prerogative to determine the credibility of the evidence. See United States v. Prichard, 645 F.2d 854 (10th Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981). However, whether the facts are sufficient to satisfy the appropriate standard is a legal question. State v. Jones, 114 N.M. 147 835 P.2d 863 (Ct.App.),cert. denied, 114 N.M. 62, 834 P.2d 939 (1992).

We disagree with Defendant's contention that any facts elicited at the preliminary hearing cannot be considered by this Court as the record developed in this case. At the hearing on the motion to suppress, defense counsel played substantial portions of the tape from the preliminary hearing to refresh border patrol agent David Garza's recollection. Defense counsel also cross-examined Agent Garza at length regarding his previous testimony at the preliminary hearing. To the extent that defense counsel played the preliminary hearing tape, and that Agent Garza was cross-examined regarding his prior testimony, such questioning and references to the prior preliminary hearing testimony are a part of the testimony in this case. Cf. Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954) (recognizing the distinction between admitting the transcript of previous testimony and incorporating questioning using prior transcribed testimony to impeach). We therefore may consider any preliminary hearing testimony insofar as it was brought to the attention of the district court at the hearing on the motion to suppress and incorporated in this record.

FACTS

Defendant was stopped at a fixed immigration patrol checkpoint outside Alamogordo, at approximately 9:00 p.m. Although his testimony varied somewhat, Agent Garza testified he smelled alcohol very early in his encounter with Defendant. It was not apparent to the immigration agent whether the odor came from Defendant's person or from the vehicle. Agent Garza proceeded to question Defendant regarding his citizenship and residency status and was satisfied Defendant was a U.S. citizen. Although Defendant seemed "pretty relaxed" and "kicked back," Garza observed that Defendant was avoiding eye contact. It did not, however, appear to Agent Garza that Defendant was intoxicated or impaired. Agent Garza then asked Defendant where he was coming from, where he was going, and to whom the vehicle, a 1983 Cadillac, belonged. Agent Garza thought that Defendant looked too young to be driving that type of vehicle and was concerned that it might have been stolen. Agent Garza indicated that he made the inquiries beyond Defendant's citizenship and residency because of the time of night, the lack of visible luggage, and the odor of alcohol. According to Agent Garza, it was standard policy to ask origin, destination, and ownership questions when a driver is suspected of some type of criminal activity. Agent Garza was generally satisfied with Defendant's responses, but did not believe that the vehicle belonged to Defendant's grandmother.

Agent Garza then asked Defendant if he could look in the back seat of the vehicle. (Agent Garza later testified that he thought he might find empty beer cans under the car seats, resulting in an open-container violation.) Defendant consented and unlocked the car door with the electronic door-opener. Agent Garza then opened the back car door, leaned into the back seat area, and immediately smelled what he perceived to be burnt marijuana. Garza asked Defendant if he had been drinking. Defendant admitted having consumed two beers. Although Garza believed the odor to be stronger than that produced by two beers, no beer cans were found in the back seat. All of the foregoing took place at the primary inspection area within approximately three minutes.

Based on what he perceived to be the smell of burnt marijuana, Agent Garza referred Defendant to the secondary inspection area. Defendant, the vehicle, and the vehicle's trunk were searched. Agents found a cellophane package of raw marijuana under the front seat of the vehicle. In Defendant's pocket, agents found a rolled, but unlit, marijuana cigarette, and rolling papers in a cigarette box. Defendant was then arrested.

THE STANDARD FOR ROUTINE BORDER AREA QUESTIONING

Brief stops for routine questioning conducted at permanent checkpoints need not be authorized by a search warrant. United States v. Martinez-Fuerte 428 U.S. 543, 566, 96 S.Ct. 3074, 3086-87, 49 L.Ed.2d 1116 (1976). Indeed, brief stops at fixed immigration checkpoints for limited inquiry into citizenship and visual inspection of vehicles are constitutionally acceptable even without any individualized suspicion of wrongdoing. United States v. Sanders, 937 F.2d 1495 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); State v. Estrada, 111 N.M. 798, 810 P.2d 817 (Ct.App.1991). These more lenient standards also apply to permanent checkpoints staffed by Immigration and Naturalization Service personnel, such as that involved in the present case, which are close to, but not directly on, the national border. United States v. Martinez-Fuerte; see also United States v. Benitez, 899 F.2d 995 (10th Cir.1990); Leonard B. Mandell & L. Anita Richardson, Lengthy Detentions and Invasive Searches at the Border: In Search of the Magistrate, 28 Ariz.L.Rev. 331, 345 (1986).

Defendant acknowledges his initial detention at the primary checkpoint was legal. He makes two basic arguments: (1) extended detention must be justified by probable cause, rather than merely reasonable suspicion, and (2) even if this Court adopts a reasonable suspicion standard, Agent Garza lacked sufficient basis to form a reasonable suspicion that a crime had been committed in this case.

ONLY REASONABLE SUSPICION, NOT PROBABLE CAUSE, WAS REQUIRED

"Probable cause" exists when facts and circumstances within the officer's knowledge or on which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has been, or is being, committed. State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342, 1346 (Ct.App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). "Reasonable suspicion" requires only articulable facts, focusing on a particular person, place, or thing as judged by a reasonable, experienced law enforcement agent. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); State v. Lyon, 103 N.M. 305, 307-08, 706 P.2d 516, 518-19 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985). Probable cause is obviously a higher standard than reasonable suspicion. See Copeland, 105 N.M. at 31, 727 P.2d at 1346.

The reasonable suspicion standard "effects a needed balance between private and public interests when law enforcement officials must make a limited intrusion on less than probable cause." U.S. v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 3310, 87 L.Ed.2d 381. It is thus well suited for the type of limited intrusions expected at border patrol stations. Id. We have previously indicated that, in order to justify detention of a vehicle, beyond routine questioning, law enforcement agents need only have a reasonable suspicion of criminal activity. See State v. Cohen, 103 N.M. 558, 711 P.2d 3 (1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986) (detention of the defendants' vehicle after the officer received negative information as to whether the defendants were wanted or whether defendants were driving a stolen car was proper when based on reasonable suspicion); City of Las Cruces v. Betancourt, 105 N.M. 655, 735 P.2d 1161 (Ct.App.) (in roadblock stop, motorists should be detained only long enough to be informed of the purpose of the stop and to look into the vehicle for signs of intoxication; further detention at a secondary area is appropriate if facts within officer's observation warrant it), cert. denied, 105 N.M. 618, 735 P.2d 535 (1987); cf. State v. Vasquez, 112 N.M. 363, 365, 815 P.2d 659, 661 (Ct.App.) ("probable cause or other basis" needed for border patrol agent to seize bag from undercarriage of truck), cert. denied, 112 N.M. 388, 815 P.2d 1178 (1991). The district court correctly adopted reasonable suspicion as the proper legal standard.

AGENT GARZA HAD REASONABLE SUSPICION

Reasonable suspicion must be judged by the totality of the circumstances. Estrada, 111 N.M. at 801, 810 P.2d at 820. In this case, Agent Garza made...