State v. Gallegos

• Decision Date: 29 April 2003
• Docket Number: No. 22,888.,22,888.
• Citation: 133 N.M. 838,70 P.3d 1277
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Dorothy Jean GALLEGOS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

70 P.3d 1277

133 N.M. 838

STATE of New Mexico, Plaintiff-Appellee, v. Dorothy Jean GALLEGOS, Defendant-Appellant.

No. 22,888.

Court of Appeals of New Mexico.

April 29, 2003.

Certiorari Granted June 6, 2003.

Patricia A. Madrid, Attorney General, Patricia A. Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Theresa M. Duncan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 28,068, June 6, 2003.

OPINION

CASTILLO, Judge.

{1} Defendant appeals the denial of her motion to suppress evidence obtained pursuant to the warrantless search of her automobile by border patrol agents. She contends that the State failed to prove the existence of exigent circumstances that would justify a warrantless search. We agree that the State failed to prove exigent circumstances and reverse the denial of Defendant's motion to suppress.

BACKGROUND

{2} On January 16, 2001, Agent Daniel Padilla was the primary agent working at the United States Border Patrol checkpoint near Orogrande, New Mexico. This is a fixed checkpoint on Highway 54 about thirty miles south of Alamogordo, New Mexico used to stop and inspect vehicles for illegal aliens or contraband. Defendant, driving a white four-door sedan, entered the checkpoint about 8 p.m. As she entered the checkpoint, the vehicle continued to slowly roll through and did not come to a complete stop. Agent Padilla put up his hand to stop her. When asked about citizenship, Defendant responded that everyone in the vehicle was a United States citizen and began driving away. Agent Padilla testified that he stopped her again and began asking questions about her travel plans. She stated that she was headed to Liberal, Kansas. When asked about ownership of the vehicle, Defendant stated that all of her documentation had been stolen in El Paso, Texas.

{3} Agent Padilla testified that during his questioning, Defendant was acting nervous. She was unable to sit still and was unable to make eye contact with him. He testified that she was looking in all directions, and when he asked her questions, she failed to look at him when responding. He stated that Defendant's nervousness made him suspect that there was contraband in the vehicle.

{4} After asking about her registration, Agent Padilla asked if he could look in the trunk of the vehicle. Defendant agreed and got out of the vehicle to open the trunk. Agent Padilla testified that Defendant's hands were shaking so much that she had to steady her right hand with her left in order to open the trunk. When the trunk was opened, Agent Padilla observed some small grocery bags containing food and other bags containing clothing. Defendant volunteered that she had picked up her friend in El Paso and was driving her to Liberal, Kansas.

{5} At this point, Agent Padilla asked for permission to inspect the vehicle with a canine. Defendant gave permission and the vehicle was moved to the secondary area. While Agent Scroggs, who is the canine's handler, inspected the vehicle with the canine, Agent Padilla waited with the occupants of the vehicle in the secondary waiting area. Agent Scroggs informed Agent Padilla that the canine alerted to the rear bumper of the vehicle. At that point, Agent Padilla inspected the rear bumper area and noticed that there was foam insulation that was not factory installed applied to the undercarriage on the inside of the bumper area. He poked his finger in the insulation and removed a small portion of the foam. Underneath, he saw what appeared to be a bundle of marijuana.

{6} Agent Padilla then took Defendant inside the checkpoint building, arrested her, and advised her of her rights. Agent Scroggs went out and started chiseling the foam off the rear of the bumper in order to pull the bundles out. Agent Scroggs also located bundles under the rear seat and behind the rear seat backrest. In total, forty-eight bundles were found and the contents of the bundles tested positive for marijuana.

{7} Defendant was charged with possession of marijuana with intent to distribute. She moved to suppress the marijuana arguing that it was obtained pursuant to a warrantless search. The motion to suppress was denied. In denying the motion to suppress, the trial court found that Defendant's conduct gave rise to reasonable suspicion entitling Agent Padilla to make further inquiries. It further found that once Defendant was unable to produce license and registration documentation, Agent Padilla could further detain her. The trial court found that Defendant's consent to search the trunk and consent to conduct a canine sniff were freely and voluntarily given. Finally, the trial court found that the canine's alert created probable cause and that exigent circumstances existed to justify a warrantless search.

{8} After Defendant's motion to suppress was denied, she pleaded no contest to the charges, reserving the right to appeal the suppression issue. This appeal followed sentencing.

DISCUSSION

Standard of Review

{9} In reviewing a trial court's denial of a motion to suppress, this Court examines the record to determine whether the law was correctly applied to the facts as found by the trial court. State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994). "[W]e view the district court's factual determinations in the light most favorable to the State, together with all reasonable inferences therefrom." State v. Snyder, 1998-NMCA-166, ¶ 6, 126 N.M. 168, 967 P.2d 843. Whether those facts establish exigent circumstances is a question of law that this Court reviews de novo. State v. Gomez, 1997-NMSC-006, ¶ 40, 122 N.M. 777, 932 P.2d 1.

Particularized Showing of Exigent Circumstances

{10} We recognize that under federal law, border patrol agents do not need to obtain a warrant to search a lawfully stopped vehicle if there is probable cause to believe that the vehicle contained evidence of a crime. See California v. Acevedo, 500 U.S. 565, 569, 575-76, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)

. However, under the New Mexico Constitution, a warrantless search of an automobile requires both probable cause and exigent circumstances. N.M. Const. art. II, § 10; Gomez, 1997-NMSC-006, ¶ 39,

122 N.M. 777,

932 P.2d 1. Evidence obtained pursuant to a warrantless search of an automobile that does not meet the requirement of Gomez, can and will be excluded from use in state proceedings. See State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 20, 130 N.M. 386, 25 P.3d 225 (holding that "our state constitution applies to evidence seized by federal agents when the State seeks to admit that evidence in state court").

{11} An "exigent circumstance" is described as "`an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.'" Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1 (quoting State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342, 1346 (Ct.App.1986)). The exigency of circumstances depends on practical considerations. State v. Chavez, 98 N.M. 61, 63, 644 P.2d 1050, 1052 (Ct.App.1982). "There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers." Id. (internal quotation marks and citations omitted). The inquiry is an objective one into whether a reasonable, well-trained officer would have good reason to believe that swift action was necessary under the particular circumstances surrounding the search. Gomez, 1997-NMSC-006, ¶¶ 40, 42, 122 N.M. 777, 932 P.2d 1.

{12} It is the State's burden to prove the existence of circumstances justifying a warrantless search. State v. Diaz, 1996-NMCA-104, ¶ 8, 122 N.M. 384, 925 P.2d 4. Evidence was presented that the checkpoint is thirty miles south of Alamogordo, where the nearest magistrate is located. Evidence was also presented that the magistrate was available at the time of the stop and that there is a telephone at the checkpoint and a fax machine at the main border patrol office in Alamogordo. There were three border patrol agents on duty at the checkpoint at the time of the stop. There was no testimony from the border patrol agents regarding why there was an immediate need for a search without a warrant. Nor was there any testimony regarding the amount of time necessary to secure a warrant. Citing Snyder, 1998-NMCA-166,126 N.M. 168,967 P.2d 843, the State argued that the distance between the checkpoint and Alamogordo, coupled with the time of night and the fact that there were only three border patrol agents on duty at the time created exigent circumstances that justified a warrantless search of Defendant's vehicle. The trial court made no independent findings but determined that this case was nearly identical to Snyder and, thus, required the same result. We disagree.

Application of Snyder

{13} In Snyder, the defendant was stopped at the same checkpoint at about the same time. As in this case, permission was given to inspect the defendant's vehicle with the border patrol canine. The canine alerted to the rear of the defendant's truck, in the direction of the spare tire mounted underneath. The agent removed the spare tire and noticed that it was heavy and uninflated. He cut the tire with a knife and found marijuana inside. Thereafter, the defendant was arrested. There were two border patrol agents on duty at the time of the stop.

{14} This Court determined that exigent circumstances existed for a warrantless search of the vehicle. We pointed out that a prolonged detention at the checkpoint could constitute a significant intrusion and that the initial stop could ripen into a de facto arrest in the time it would take to obtain a warrant. Id. ¶ 23. The risk of a de facto arrest, in combination with the fact that there were only two border patrol agents on duty and that one would...