State v. Cardenas-Alvarez

• Decision Date: 30 April 2001
• Docket Number: No. 26,130.,26,130.
• Citation: 25 P.3d 225,2001 NMSC 17,130 N.M. 386
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Candelario CARDENAS-ALVAREZ, Defendant-Respondent.
• Court: New Mexico Supreme Court

25 P.3d 225

130 N.M. 386

2001 NMSC 17

STATE of New Mexico, Plaintiff-Petitioner, v. Candelario CARDENAS-ALVAREZ, Defendant-Respondent.

No. 26,130.

Supreme Court of New Mexico.

April 30, 2001.

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

Phyllis H. Subin, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Scott M. Davidson, Albuquerque, NM, Jones, Snead, Wertheim, Wentworth & Jaramillo, P.A., Jerry Todd Wertheim, Santa Fe, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.

OPINION

FRANCHINI, Justice.

{1} On September 6, 1997, a federal agent at a permanent border patrol checkpoint more than sixty miles north of the Mexican border seized eighty-five pounds of marijuana from Defendant. At trial in state court, Defendant moved to suppress the evidence based on the federal agent's alleged violation of the United States and New Mexico Constitutions. The trial court denied the motion. A two-judge majority of the Court of Appeals reversed the trial court, holding that the federal agent unlawfully extended Defendant's detention. We granted certiorari to review that holding. We hold: (1) the federal agent did not violate the federal Constitution; (2) the New Mexico Constitution and laws apply to evidence seized by federal agents at a border patrol checkpoint sixty miles within the State of New Mexico when that evidence is proffered in state court; (3) the federal agent violated the New Mexico Constitution; and (4) the evidence thereby seized must be excluded in state court. We reverse Defendant's conviction.

I.

{2} On the date in question, federal agent Hector Arredondo had been employed as a border patrol agent on the U.S.-Mexico border for approximately two-and-one-half months. At about 7:45 p.m., Candelario Cardenas-Alvarez, driving a pick-up with Mexican plates, reached Agent Arredondo's primary station at a permanent checkpoint more than sixty miles north of the border. When asked for identification, Defendant produced a resident alien identification card. After inspecting Defendant's documents, Agent Arredondo began to ask Defendant about the origin, destination and purpose of his trip. Defendant stated that he was on his way from El Paso to Albuquerque to pick up a vehicle that he had already purchased. He said that he borrowed the vehicle he was driving from a friend.

{3} Agent Arredondo considered it suspicious that Defendant was driving at this time, since the late hour would cause Defendant to incur additional expenses for food and lodging. After having towed vehicles for a living for seven years prior to becoming a federal agent, Agent Arredondo thought it was strange that Defendant had not brought a second person to help tow the vehicle. Nor did Defendant appear to have a tow bar or tools other than those that might have fit in the small tool box that Agent Arredondo observed in the cab. Agent Arredondo also had suspicions concerning Defendant's decision to follow a longer, less popular highway, rather than taking Interstate 25 to Albuquerque. Finally, Agent Arredondo thought it suspicious that Defendant was driving a vehicle with Mexican plates even though he was a resident alien. Agent Arredondo ordered Defendant to a secondary inspection area.

{4} At the secondary inspection area, Agent Arredondo asked for and obtained Defendant's consent to search the vehicle. That search revealed fresh scratch marks on the bolts attached to the gas tank. Agent Arredondo then asked for and obtained Defendant's consent to conduct a canine inspection of the truck. The dog alerted to the gas tank, and a visual inspection revealed that it contained an internal tank. The agent arrested Defendant and advised him of his rights. Federal agents later dismantled the vehicle and discovered some eighty-five pounds of marijuana within the internal tank.

{5} At trial in state court, Defendant moved to suppress the evidence on the ground that Agent Arredondo lacked the reasonable suspicion of criminal activity required to detain Defendant beyond the initial questioning. The trial judge denied the motion to suppress based on her conclusion that Defendant's responses to Agent Arredondo's questions raised reasonable suspicion. After a jury trial, Defendant was found guilty of possession of marijuana with intent to distribute. The Court of Appeals reversed the conviction, holding that the extended detention of Defendant was unlawful. See State v. Cardenas-Alvarez, 2000-NMCA-009, 128 N.M. 570, 995 P.2d 492

. We granted certiorari, and now affirm the Court of Appeals. We hold that although Agent Arredondo did not violate the United States Constitution, he did violate Article II, Section 10 of the New Mexico Constitution. The evidence obtained by Agent Arredondo must therefore be suppressed in state court.

II.

{6} The constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994)

; State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932 P.2d 499. Defendant claims that the search and seizure conducted by Agent Arredondo violated his rights under both federal and state constitutions. For reasons set forth below, we reject Defendant's claim that the search and seizure violated his rights under the federal Constitution. In addressing his state constitutional claim, we employ the interstitial analysis adopted in State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. Pursuant to Gomez, we ask: (1) whether the right being asserted is protected under the federal Constitution; (2) whether the state constitutional claim has been preserved; and (3) whether there exists one of three reasons for diverging from federal precedent. Id.

A. WHETHER THE RIGHT IS PROTECTED BY THE FEDERAL CONSTITUTION

{7} If the federal Constitution affords Defendant the protection he seeks, we will not examine his state constitutional claim. See Gomez, 1997-NMSC-006, ¶ 19,

122 N.M. 777,

932 P.2d 1. Here, Defendant seeks protection from the extension of his detention at a border checkpoint stop when the officer conducting the detention allegedly lacked reasonable suspicion of criminal activity. In Cardenas-Alvarez, the two-judge majority recognized that unlike New Mexico courts, which demand "reasonable suspicion" to extend a detention beyond routine questions, the Tenth Circuit requires mere "suspicious circumstances." 2000-NMCA-009, ¶ 14, 128 N.M. 570,

995 P.2d 492 (comparing State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993) with United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993)). The Court of Appeals held Defendant's extended detention unconstitutional because "the facts known to the Border Patrol agents [do not meet] what we have assumed to be the lower Tenth Circuit standard of suspicious circumstances." Cardenas-Alvarez, 2000-NMCA-009, ¶ 18,

128 N.M. 570,

995 P.2d 492. The State argues that this holding "rests on a misunderstanding of federal border search law." We agree. Under federal law, Defendant's detention constituted a routine border checkpoint stop and therefore need not have been supported by suspicious circumstances.

{8} Federal courts have rendered the referral of a motorist from primary to secondary legally immaterial; a Border Patrol agent need not observe suspicious circumstances to make such a referral so long as the detention is permissible in scope and duration. See United States v. Ludlow, 992 F.2d 260, 263-64 (10th Cir.1993)

(holding that "Border Patrol agents have virtually unlimited discretion to selectively refer cars to the secondary inspection area. Thus a routine checkpoint inquiry may properly take place at a primary inspection area, a secondary inspection area, or both as long as the scope of the inquiry is appropriate."); United States v. Sanders, 937 F.2d 1495, 1499-1500 (10th Cir.1991) (holding that suspicious circumstances are not required to justify the referral of an individual to a secondary inspection station); see also United States v. Pinedo-Montoya, 966 F.2d 591, 593-94 (10th Cir.1992) (holding that reasonable suspicion is required to detain a motorist and to conduct more than a routine stop, but referral of the accused to secondary detention was routine and constitutionally insignificant).

{9} Under federal law, Defendant's detention was not excessive in scope or duration. Defendant does not allege, nor does the record suggest, that he was detained for an impermissibly long period of time. With regard to the scope of the detention, federal courts have held that a routine stop may include more than questions regarding citizenship and immigration. "[A] few brief questions concerning such things as vehicle ownership, cargo, destination and travel plans may be appropriate [at a routine checkpoint stop] if reasonably related to the agent's duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband." U.S. v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.1993); see also United States v. Massie, 65 F.3d 843, 848 (10th Cir.1995)

(same); United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993) (same).¹ As demonstrated above, such a routine stop may be conducted at primary or secondary inspection areas without suspicious circumstances. Here, because Agent Arredondo's questions concerned Defendant's travel plans and were reasonably related to his duty to prevent the smuggling of contraband (in this case narcotics) they fell within the routine scope of inquiry allowed under the federal Constitution.

{10} Because federal law does not protect the right asserted by Defendant, Defendant's consent to submit to a search of his vehicle was not tainted, under federal law, by any unlawful police conduct. Nor do we find merit in Defendant's...