State v. Leyva

Decision Date17 February 2011
Docket NumberNo. 32,067.,32,067.
Citation250 P.3d 861,2011 -NMSC- 009,149 N.M. 435
PartiesSTATE of New Mexico, Plaintiff–Appellee,v.Raul LEYVA, Defendant–Appellant.
CourtNew Mexico Supreme Court


Hugh W. Dangler, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant.Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.


{1} The right of the people to be free from unreasonable searches and seizures is protected by both the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution. While the protections of the Fourth Amendment have been incorporated against the states, under New Mexico's interstitial approach to state constitutional interpretation, the rights provided under the two constitutions are not necessarily coextensive. In order to receive greater protections that may be conferred by the state constitution, however, a criminal defendant must properly preserve his or her state constitutional argument.

{2} Defendant Raul Leyva asserts that his rights under both the United States and New Mexico Constitutions were violated when he was stopped for a traffic law infraction and the questions of the investigating officer were not justified by the initial reason for the stop, and that the district court erred in denying his motion to suppress evidence gathered as a result of the questioning. In State v. Duran, we employed a two-part test under the Fourth Amendment for questioning during traffic stops, using the analysis set forth in Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring all questions to be reasonably related to the initial reason for the stop or supported by independent and articulable reasonable suspicion. 2005–NMSC–034, ¶¶ 23, 35, 138 N.M. 414, 120 P.3d 836. This rule is in conflict, however, with three more recent cases from the United States Supreme Court, Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), and Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), which together created a temporal bright-line rule under the Fourth Amendment for questioning during traffic stops.

{3} We accepted this case on certification from the Court of Appeals to address the continued vitality of the rule we set forth in Duran and exercise jurisdiction under NMSA 1978, Section 34–5–14(C)(1) (1972). We hold that, in light of recent United States Supreme Court Fourth Amendment cases, Duran's Fourth Amendment analysis is no longer valid. Analyzing the seizure under the Fourth Amendment, we conclude that Leyva's rights under the Fourth Amendment were not violated. We then review our preservation requirements for rights asserted under the New Mexico Constitution, and find that Leyva preserved his argument under Article II, Section 10. Because Article II, Section 10 provides greater protections against unreasonable searches and seizures than does the Fourth Amendment, we maintain the Duran standard for reviewing searches and seizures under the New Mexico Constitution. After considering Leyva's rights under Article II, Section 10, we affirm the Third Judicial District Court's denial of Leyva's motion to suppress.


{4} On January 21, 2007, Officer Jeremy Hash of the Mesilla Marshals Department clocked Leyva traveling at a speed in excess of the posted speed limit. Officer Hash activated his emergency lights and Leyva stopped a short way down the road, a distance Officer Hash described as normal due to the road's narrow width at the point where he initiated the stop. Before Leyva stopped, Officer Hash observed Leyva remove one hand from the steering wheel and lean to the right for about ten seconds, with the appearance of “stuffing something under the [passenger] seat,” an action the officer found consistent with concealing a weapon or contraband and raising safety concerns. Officer Hash asked for and received Leyva's license, which was reported to be suspended. Following department policy, Officer Hash informed Leyva he could telephone someone to retrieve the car within ten minutes or the car would be impounded. Leyva arranged for someone to pick up the car. Officer Hash did not observe any suspicious activity during the stop, other than Leyva's movement before he pulled over.

{5} Officer Hash completed his traffic investigation and issued three citations within approximately ten minutes after the stop was initiated. He then asked Leyva, “Before I turn this vehicle over to anyone else is there anything in it that I need to know about? ... [Are there] any knives, needles, guns, or drugs[?] Leyva responded that there was marijuana in the car, and, when asked, consented to a search of the car. Beginning by searching in the area where he had observed Leyva's movement prior to stopping, Officer Hash discovered a tin containing what he suspected to be marijuana underneath the passenger seat; Leyva confirmed that it was marijuana. Continuing to search the passenger compartment of the car, Officer Hash found what he suspected to be, and what later tested positive as, methamphetamine. Leyva was arrested and transported to the police station. He was charged with possession of marijuana, methamphetamine, and drug paraphernalia.

{6} Leyva filed a motion to suppress the evidence discovered as a result of Officer Hash's questioning after the traffic citations had been issued. Leyva argued that the initial stop had been completed when Officer Hash initiated further questioning without justification, constituting an unreasonable seizure under the Fourth Amendment and Article II, Section 10. At the hearing on the motion to suppress, Officer Hash was the only witness. In addition to testifying to the facts set forth above, he testified that in his experience of eight years as an officer, individuals who appeared to be hiding something when a stop was initiated often were discovered to be in possession of contraband. The district court denied the motion to suppress, making the following findings:

1. Deputy Officer Hash was reasonable in his belief that he observed the Defendant hiding something under the front passenger seat after the deputy activated his emergency equipment.

2. This action by the Defendant provided sufficient reasonable suspicion of hiding contraband to warrant Deputy Officer Hash to ask if there was anything in the car that he should know about such as contraband.

3. Deputy Officer Hash only inquired about possible contraband after he had completed the citations and returned all of the Defendant's documents.

4. The Defendant was not under arrest, and was not going to be arrested, so Miranda does not apply.

5. The Defendant voluntarily told the Deputy that he had marijuana in his vehicle and allowed the Deputy to search the vehicle.

6. There was no coercion in the form of the Deputy's question or his conduct.

Leyva subsequently pled guilty to possession of a controlled substance, drug paraphernalia, and marijuana, conditioned upon the right to appeal the denial of his motion to suppress. He appealed to the Court of Appeals, and we accepted certification from that Court.

II. ANALYSISA. The Fourth Amendment

{7} “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const. amend. IV.

1. The effect of recent United States Supreme Court opinions on our Fourth Amendment analysis developed in Duran.

{8} The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In this section we review our most recent pronouncement on the limitations of police questioning during a traffic stop, subsequent cases from the United States Supreme Court, and the effect of those cases on the Fourth Amendment analysis to be employed by the courts of New Mexico.

{9} The Fourth Amendment, incorporated against state actors via the Fourteenth Amendment, see Wolf v. Colorado, 338 U.S. 25, 28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 653, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), requires that all searches and seizures be reasonable in their execution, see Terry, 392 U.S. at 9, 88 S.Ct. 1868. The test for whether a search or seizure was reasonable is objective. See Whren v. United States, 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “Reasonableness, of course, depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) (internal quotation marks omitted).

{10} A law enforcement officer who stops a vehicle to investigate a traffic violation seizes the occupants. See State v. Funderburg, 2008–NMSC–026, ¶ 13, 144 N.M. 37, 183 P.3d 922. Although traffic stops often are made when the officer has probable cause to believe that a law has been violated, see United States v. Shabazz, 993 F.2d 431, 434–35 (5th Cir.1993), courts generally analyze traffic stops under Terry, because they “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry, Johnson, 555 U.S. at ––––, 129 S.Ct. at 786 (quoting Berkemer v. McCarty, 468 U.S. 420, 439 n. 29, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)); see also Duran, 2005–NMSC–034, ¶ 23, 138 N.M. 414, 120 P.3d 836 (stating that New Mexico courts apply the Terry analysis to traffic stops). The two-part Terry analysis looks at [1] whether the officer's action was justified at its inception, and [2] whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’...

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