State v. Bolton, 11194

Docket NºNo. 11194
Citation801 P.2d 98, 1990 NMCA 107, 111 N.M. 28
Case DateSeptember 20, 1990
CourtCourt of Appeals of New Mexico

Page 98

801 P.2d 98
111 N.M. 28
STATE of New Mexico, Plaintiff-Appellee,
Michael A. BOLTON and Norman E. Gill, Defendants-Appellants.
No. 11194.
Court of Appeals of New Mexico.
Sept. 20, 1990.
Certiorari Denied Nov. 14, 1990.

Page 101

[111 N.M. 31] Nancy Hollander, John W. Boyd, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant Michael A. Bolton.

Michael V. Davis, Franchini, Wagner, Oliver, Franchini & Curtis, Albuquerque, for defendant-appellant Norman E. Gill.

Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.


HARTZ, Judge.

On defendants' motion for rehearing, we deny the motion but withdraw our opinion filed on May 17, 1990, and substitute the following.

Each defendant appeals his conviction of trafficking a controlled substance. The sole issue on appeal is the legality of the search that uncovered cocaine in a false gas tank on their truck. We affirm.

To put defendants' contentions in context, we first outline the circumstances of the search, although we will need to develop the facts further in the discussion of the specific contentions. The evidence concerning the search was elicited at a pretrial hearing on defendants' motion to suppress. We view that evidence in the light most favorable to sustain the district court's finding that the search was lawful. See State v. Bloom, 90 N.M. 192, 194, 561 P.2d 465, 467 (1977); State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983).

Defendants were traveling east on Interstate 40 in a 1986 heavy-duty Chevrolet pickup truck when they were stopped at a state police roadblock near Santa Rosa. At the roadblock state police officers subjected virtually all noncommercial vehicles to a "primary" inspection for valid driver's licenses, vehicle registrations, and proofs of insurance. United States Border Patrol Agents observed, and sometimes participated in, the operations at the roadblock. Defendant Gill, the driver, produced a valid driver's license and vehicle registration. He stated that the vehicle belonged to Deborah Degree; but the name on the registration was "Kimberly Degree." State Police Officer Newman directed Gill to pull to the side of the road for a more thorough "secondary" inspection.

The secondary inspection, which included a computer check to confirm registration and to determine if there were any "wants

Page 102

[111 N.M. 32] or warrants" on the truck or its occupants, revealed no problems. After learning this, Newman, as apparently was his custom with respect to all vehicles subjected to a secondary inspection, requested permission to search the vehicle. Meanwhile, Border Patrol Agent Burton had independently made observations of the truck, which aroused his suspicions concerning the gas tank on the back of the vehicle. While Newman was talking with defendants, Burton kneeled down to check the truck's undercarriage and saw no fuel lines running to the rear gas tank. After Newman obtained defendants' ostensible consent for a search, Burton briefly questioned defendants about the rear gas tank. Neither defendant knew how to fill it. Burton later crawled under the truck to confirm his prior observations that no fuel lines were connected to the gas tank and also rapped on the exterior of the tank to determine if its contents were liquid or solid. Based on the observations of Burton, the officers searched the contents of the gas tank and found cocaine.

Defendants challenge the validity of (1) the roadblock, (2) their detention after completion of the computer check, (3) their consent, (4) the examination of the underside of the truck, and (5) the search of the rear gas tank. We hold that the roadblock, the detention after the computer check, and the inspection of the underside of the truck were lawful. We also hold that the officers had probable cause to search the interior of the gas tank. We briefly address the consent, although we find it unnecessary to determine whether it encompassed the search of the gas tank.


Police detention of a motor vehicle traveling on the highway constitutes a seizure, subject to the restrictions of the fourth amendment to the Constitution, applicable to the states through the fourteenth amendment. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Ordinarily such a detention is forbidden unless the officers detaining the vehicle have probable cause, or at least reasonable suspicion, to believe that the vehicle or its occupants are subject to seizure under applicable criminal laws. See id. Nevertheless, roadblocks operated for certain purposes pass constitutional muster if they are conducted in a constitutionally reasonable manner. See City of Las Cruces v. Betancourt, 105 N.M. 655, 735 P.2d 1161 (Ct.App.1987) (sobriety roadblock).

The reasonableness of a roadblock provides a constitutionally adequate substitute for the reasonable suspicion that would otherwise be required to justify the detention of vehicles and the questioning of their occupants. See id. In Betancourt we presented eight guidelines to be considered in determining the reasonableness of a roadblock: (1) supervisory personnel should select the site and establish procedures for conducting the roadblock; (2) the discretion of field officers should be restricted so that motorists are treated as uniformly as possible; (3) the roadblock should be conducted safely; (4) the location should be reasonable; (5) the time of day and duration of the roadblock should be reasonable; (6) the official nature of the roadblock should be immediately apparent; (7) the length and nature of the detention caused by the roadblock should be minimized; and (8) the roadblock should receive advance publicity. Id. at 658-59, 735 P.2d at 1164-65. The guidelines were not intended to be exclusive; other factors could be considered where appropriate. Id. at 658, 735 P.2d at 1164.

Defendants do not challenge the legitimacy of roadblocks to check driver's licenses, vehicle registrations, and liability insurance. Their objections concern the specifics of this roadblock. They complain that (1) the ostensible purpose of the roadblock was a pretext, the actual purposes being to conduct an unlawful Border Patrol checkpoint for aliens and to search for drugs; and (2) the roadblock did not comply with Betancourt in that (a) the detention was not minimized, because Officer Newman sought consent to search every vehicle subjected to secondary inspection, and (b) the roadblock was used to stop a particular group--suspected aliens.

Page 103

[111 N.M. 33] A. Pretext

Defendants' first attack on the roadblock raises an issue not specifically addressed in Betancourt. They complain that the ostensible purpose of the roadblock--checking license, title, and insurance documents--was not its actual purpose. They contend that the actual purpose was the improper purpose of enforcing laws governing aliens and narcotics.

We have previously held that to overcome a claim that a search or seizure was pretextual, the state need prove only a valid legal basis for the intrusion. State v. Mann, 103 N.M. 660, 712 P.2d 6 (Ct.App.1985); see United States v. Trigg, 878 F.2d 1037 (7th Cir.1989); State v. Valdez Olaiz, 100 Or.App. 380, 786 P.2d 734 (1990). By that standard the roadblock passes muster, because we have upheld a roadblock to check license, title, and insurance documents. See State v. Valencia Olaya, 105 N.M. 690, 736 P.2d 495 (Ct.App.1987).

Defendants, however, ask us to adopt the pretext doctrine expressed in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988) and similar federal decisions, which imposes a stricter standard. In Guzman, a New Mexico State Police Officer stopped the defendant's car, ostensibly because the defendant was not wearing a seat belt. Evidence acquired during the stop led to the defendant's arrest for possession of cocaine. The trial judge suppressed the evidence, finding that the officer's actual purpose in stopping the defendant was to investigate criminal drug activity, despite lacking reasonable suspicion of such misconduct. The Tenth Circuit rejected the lower court's subjective test for determining whether the stop was unlawful, and remanded for application of an objective test: " 'whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.' " Id. at 1515 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (emphasis in original)).

Guzman explained the test as the consequence of two concerns. On the one hand, it viewed inquiry into the subjective intent of a law enforcement officer as an unwise and unproductive means of determining whether a person's fourth amendment rights have been violated. On the other hand, fourth amendment interests are threatened when law enforcement officers have, in practice, unbridled discretion to detain persons for reasons which, standing alone, could not justify the detention.

[G]iven 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.

1 W. LaFave, Search and Seizure, Sec. 1.4(e), at 95 (2d ed. 1987) (quoting 2 L. Wroth & H. Zobel, Legal Papers of John Adams 141-42 (1965)).

Guzman's concern with the unbridled discretion of the officer in the field has been shared by the United States Supreme Court. This concern has been at the heart of Supreme Court rulings affirming sobriety and immigration checkpoints while prohibiting roving patrols for the same purpose. Compare Michigan Dep't of State Police v. Sitz, --- U.S. ----, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (sobriety...

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