State v. Cardenas-Alvarez

• Decision Date: 10 December 1999
• Docket Number: No. 19,466.,19,466.
• Citation: 2000 NMCA 9,128 N.M. 570,995 P.2d 492
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Candelario CARDENAS-ALVAREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

995 P.2d 492

128 N.M. 570

2000 NMCA 9

STATE of New Mexico, Plaintiff-Appellee, v. Candelario CARDENAS-ALVAREZ, Defendant-Appellant.

No. 19,466.

Court of Appeals of New Mexico.

December 10, 1999.

Certiorari Granted January 31, 2000.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Bruce Rogoff, Appellate Defender, Santa Fe, for Appellant.

Certiorari Granted, No. 26,138, January 31, 2000.

OPINION

APODACA, Judge.

{1} Defendant was convicted of possession with intent to distribute marijuana. He appeals from the denial of his motion to suppress evidence seized from his motor vehicle by United States Border Patrol agents. He raises four issues, arguing that: (1) although his initial detention at a checkpoint was lawful, it became an unlawful detention because the Border Patrol agents (a) exceeded the scope of permissible routine inquiries or (b) did not have reasonable suspicion to justify prolonging his detention at the checkpoint once they found out he was a lawful resident alien; (2) his consent to the search of the vehicle was tainted by the illegal detention; (3) his consent to the search was not voluntary because he was not told that he could refuse consent; and (4) the warrantless search of the vehicle was improper because the State failed to show exigent circumstances. We hold that, although Defendant's detention was initially lawful, it became an unlawful detention because the federal agents exceeded the scope of permissible inquiries and there was no reasonable suspicion to extend the detention. We also hold that, because the extended detention was unlawful, Defendant's consent was tainted. We therefore reverse the trial court's denial of Defendant's motion to suppress under the first and second issues. Because of our disposition, we need not address Defendant's remaining two issues.

I. FACTUAL BACKGROUND

{2} In the evening of the day Defendant was arrested, he was driving a Dodge pickup with Mexican license plates. He entered the primary inspection area checkpoint on Highway 185 north of Las Cruces. The Border Patrol agent manning the checkpoint, Agent Arredondo, asked for identification. In response, Defendant produced a valid resident-alien identification card. When asked whether he was traveling from Mexico or El Paso, Defendant replied his trip began in El Paso and that he was traveling to Albuquerque to pick up a broken-down automobile. The registration for the Dodge pickup was not in Defendant's name, and Defendant claimed the vehicle belonged to a friend.

{3} The agent testified at the suppression hearing that he became suspicious because of Defendant's responses to the agent's initial questions. The following formed the basis for Agent Arredondo's suspicions:

{4} Defendant was using Highway 185 to get to Albuquerque rather than driving on I-25. It was unusual for a resident alien to be driving a vehicle with Mexican plates because, if a person lived in the United States, that person would probably register the vehicle in the United States. Before working for the Border Patrol, Agent Arredondo had worked seven years buying vehicles at auction and transporting them. Based on this experience, the agent considered it suspicious that Defendant was traveling to Albuquerque in the evening and without a tow-bar. When the agent had done that kind of work, he had begun his journey in the morning so he could do the whole trip in one day and save hotel and food expenses. Finally, the agent had always taken someone with him when he traveled because it was easier to hook up a tow-bar with assistance.

{5} Based on the above, Agent Arredondo directed Defendant to the secondary inspection area. Defendant drove the short distance between the primary and secondary areas, where Agent Arredondo asked Defendant in Spanish for consent to search the pickup. Defendant consented. (There is a dispute of the parties concerning the Spanish words used by the agent to request consent. Because of our disposition, however, we need not resolve this dispute. Instead, we will assume without deciding that consent was properly obtained.)

{6} After consent was allegedly given, Agent Olivares came to assist Agent Arredondo and began examining the outside of the pickup. He noticed fresh scratch marks around the gas intake and fuel tank bolts behind the rear wheel well. These observations indicated to him that work on the gas tank had been done recently, and he informed Agent Arredondo of what he saw. Agent Arredondo requested and received consent from Defendant to a canine inspection of the pickup. Defendant also consented to the fifteen-minute delay to get the dog to the checkpoint. When the dog arrived and was directed to the pickup, it alerted the agents to the gas tank. With the aid of a flashlight, the agents looked through the filter hose and saw a second metal tank inside the gas tank. At this point, Defendant was arrested and advised of his rights. The pickup was then towed to the I-25 checkpoint a few miles away, where the gas tank was removed. Eighty-five pounds of marijuana were discovered.

II. DISCUSSION

A. Standard of Review

{7} A trial court's denial of a motion to suppress "will not be disturbed on appeal if the ruling is supported by substantial evidence." State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993). Whether the evidence is sufficient to deny a motion to suppress is a question of law and therefore is reviewed de novo. See State v. Affsprung, 115 N.M. 546, 547, 854 P.2d 873, 874 (Ct.App. 1993).

B. Permissibility of an Extended Detention

{8} The issue of Defendant's extended detention is dispositive. We recognize that the Tenth Circuit and our courts differ in the resolution of this issue and appreciate the State's concern that these differences could create confusion for federal agents when confronted with what is and what is not allowed by way of inquiries during a routine checkpoint stop. We therefore examine state and Tenth Circuit cases dealing with this issue and the standards under both by which agents may properly extend a detention in New Mexico.

1. New Mexico Cases

{9} Our Court has acknowledged that, at fixed checkpoints, Border Patrol agents may stop motor vehicles to inquire about citizenship and to visually inspect the vehicle without violating a person's constitutional rights. See Affsprung, 115 N.M. at 549, 854 P.2d at 876 (stating the constitutionally acceptable boundaries for fixed checkpoints stops). When a person is detained beyond the needed time to ask these routine questions, however, reasonable suspicion must be present. See State v. Porras-Fuerte, 119 N.M. 180, 184, 889 P.2d 215, 219 (Ct.App.1994) ("[T]he standard for detention at a border checkpoint beyond initial questioning was reasonable suspicion." (citing Affsprung, 115 N.M. at 549, 854 P.2d at 876)).

{10} Our Court has held that movement to a secondary area is considered detention beyond a reasonable inquiry. See Affsprung, 115 N.M. at 550, 854 P.2d at 877 (stating that moving the defendant to the secondary area was "an appropriate detention" because the agent had reasonable suspicion). Our courts have made it clear that an officer must have "reasonable suspicion to justify the further detention and investigation in the secondary detention area." Id. at 551, 854 P.2d at 878; see also State v. Bolton, 111 N.M. 28, 37, 801 P.2d 98, 107 (Ct.App. 1990).

{11} We have also determined what is necessary for reasonable suspicion to exist. See Galloway, 116 N.M. at 10,859 P.2d at 478 ("[R]easonable suspicion is the standard by which to judge detention at a checkpoint [that] extends beyond the time necessary for agents to satisfy themselves about the citizenship of a vehicle's occupants.. . ."). To determine if reasonable suspicion exists, we must examine the totality of the circumstances. Affsprung, 115 N.M. at 549,854 P.2d at 876. Gut instincts are never sufficient to detain a motorist beyond routine questions. Cohen, 103 N.M. at 562, 711 P.2d at 7. To detain beyond routine inquiry, an agent "must be aware of . . . specific articulable facts, together with rational inferences" to justify reasonable suspicion. Id. Slapping together factors that "do nothing more than highlight the ordinary, rather than the sinister" is insufficient. State v. Anderson, 107 N.M. 165, 169, 754 P.2d 542, 546 (Ct.App.1988). "Unsupported intuition is [also] insufficient." Cohen, 103 N.M. at 562, 711 P.2d at 7. Only when traffic is heavy may an officer move a vehicle to the secondary area without reasonable suspicion. Bolton, 111 N.M. at 38,801 P.2d at 108.

2. Tenth Circuit Cases

{12} The Tenth Circuit has allowed agents, without individualized suspicion, not only to inquire of citizenship and immigration status, but have held that the agents "may briefly question individuals `concerning such things as vehicle ownership, cargo, destination, and travel plans.'" United States v. Massie, 65 F.3d 843, 848 (10th Cir.1995) (quoting United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.1993)); see also United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993) (holding that an "inquiry into [trip] destination [is] permissible even in the absence of suspicious circumstances"). The stop, however, must be "brief and unintrusive" and any stop "beyond the scope of a routine checkpoint stop must be based upon reasonable suspicion...." Massie, 65 F.3d at 848; see also United States v. Monsisvais, 907 F.2d 987, 992 (10th Cir.1990) (stating that "not every suspicion that is `articulable' is reasonable"). The court has also allowed agents to question beyond the routine inquiry if "suspicious circumstances" exist. Chavira, 9 F.3d at 889. Federal case law has held that suspicious circumstances do not rise to the level of reasonable suspicion, and, in determining what constitutes suspicious circumstances, a court examines "the totality of the...