State v. Ochoa

• Decision Date: 03 November 2008
• Docket Number: No. 24,720.,24,720.
• Citation: 206 P.3d 143,2009 NMCA 002
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Julian OCHOA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

206 P.3d 143

2009 NMCA 002

STATE of New Mexico, Plaintiff-Appellee, v. Julian OCHOA, Defendant-Appellant.

No. 24,720.

Court of Appeals of New Mexico.

November 3, 2008.

Certiorari Granted, No. 31,430, December 30, 2008.

Gary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

VIGIL, Judge.

{1} If a police officer cannot, consistent with the constitution, obtain information he wants from a citizen (such as his identification), does the New Mexico Constitution permit him to use what is otherwise a constitutionally valid traffic stop as a pretextual subterfuge to obtain that information? The New Mexico Supreme Court has directed us to answer that question for the first time in this case. State v. Ochoa, 2008-NMSC-023, ¶ 22, 143 N.M. 749, 182 P.3d 130 ("[W]e . . . remand to the Court of Appeals to determine whether the stop was pretextual and, if so, whether article II, section 10 [of the New Mexico Constitution] prohibits pretextual stops."), rev'g on other grounds, State v. Ochoa, 2006-NMCA-131, 140 N.M. 573, 144 P.3d 132. We conclude that the traffic stop of Defendant was pretextual and, departing from federal precedent, hold that pretext stops violate the New Mexico Constitution.

FACTUAL BACKGROUND

{2} The material facts are not in dispute. We refer to the facts in our Supreme Court's opinion and add detail where necessary. Agent Edmondson of the Pecos Valley Drug Task Force was surveilling a residence for drug trafficking when he saw a vehicle with which he was not familiar. See Ochoa, 2008-NMSC-023, ¶ 2, 143 N.M. 749, 182 P.3d 130. He wanted to investigate it, so he returned to the residence several times to check on it. Id. On one of his checks, Agent Edmondson testified that while he watched the vehicle drive away from the house, he saw that the driver (Defendant) was not wearing a seatbelt. Id. Agent Edmondson testified that he wanted to identify and question the driver so he radioed Officer Martinez, a uniformed patrol officer, to see if he could stop the vehicle. Id. ¶ 3. Officer Martinez testified that Agent Edmondson told him "there was a black utility vehicle heading north on 7th and the driver wasn't wearing a seatbelt." Id. (internal quotation marks omitted). On the basis of the radio call, Officer Martinez located and followed the vehicle for approximately thirteen blocks, and stopped it. Officer Martinez testified that while trailing Defendant, he could not see whether he was wearing a seatbelt because the windows on the vehicle were tinted. Id. When Defendant stopped and rolled down the driver-side window, Officer Martinez immediately recognized him as a someone with outstanding warrants for his arrest. Id. Officer Martinez could not recall whether or not Defendant was wearing his seatbelt when he was stopped. See id.; Ochoa, 2006-NMCA-131, ¶ 2, 140 N.M. 573, 144 P.3d 132.

{3} Officer Martinez confirmed the warrants, arrested Defendant, and placed him in the patrol car. Ochoa, 2008-NMSC-023, ¶ 5, 143 N.M. 749, 182 P.3d 130. Agent Edmondson and two other officers arrived. Id. Agent Edmondson read Defendant his rights, and questioned him about drug trafficking at the residence the agent was investigating. Id. Defendant gave Agent Edmondson consent to search the vehicle and told him there was a pipe and methamphetamine in the vehicle. Id. With Defendant's assistance and through the vehicle inventory search, the officers found methamphetamine, a pipe, and a handgun. Id. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia. Id.

{4} Defendant moved to suppress the evidence on the grounds that the traffic stop to enforce an alleged technical violation of the traffic code was a pretext to investigate Agent Edmondson's unsupported intuition that Defendant was involved in drug activity and that a pretextual stop violates article II, section 10 of the New Mexico Constitution. Id. ¶ 1. The State argued that the stop was permitted by the New Mexico Constitution on grounds that it was supported by reasonable suspicion, even probable cause, to believe that Defendant violated the traffic code by not wearing his seatbelt.

{5} The district court agreed with Defendant that Agent Edmondson "had little, if any, interest in the seatbelt violation [and that he wanted] the vehicle stopped so that he could I.D. the driver and ask about activities at the residence." The district court nevertheless agreed with the State that Officer Martinez could stop Defendant's vehicle based on the reliable information from Agent Edmondson that Defendant was not wearing a seatbelt. The district court thus denied the motion to suppress.

DISCUSSION

{6} "The constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review." State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225. When a defendant invokes our inherent power as a separate sovereign in our federalist system of government to provide more liberty under the New Mexico Constitution than is mandated by the United States Constitution, we utilize the interstitial approach to interpret the New Mexico Constitution. State v. Gomez, 1997-NMSC-006, ¶¶ 17, 19-22, 122 N.M. 777, 932 P.2d 1.

INTERSTITIAL ANALYSIS

{7} "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." Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225.

Federal Interpretation of the Fourth Amendment

{8} The United States Supreme Court has decided that pretextual traffic stops are not prohibited by the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). In Whren, the Supreme Court held that for an ordinary traffic stop to be constitutionally valid, all that is needed is probable cause that the driver violated the traffic code. 517 U.S. at 810, 813-14, 819, 116 S.Ct. 1769. The Court stated that "[s]ubjective intentions [whatever they may be] play no role in ordinary, probable-cause Fourth Amendment analysis." Id. at 813, 116 S.Ct. 1769. Thus, because the Fourth Amendment of the United States Constitution does not protect citizens against pretextual stops, we examine whether Defendant preserved his challenge under the New Mexico Constitution.

Preservation

{9} When a party claims that the state courts have not interpreted a provision of the state constitution differently than its federal counterpart, that "party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision." Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1 (emphasis omitted) (footnote omitted). In the present case, both parties acknowledged to the district court that the validity of pretextual stops under the New Mexico Constitution has not been squarely addressed by New Mexico appellate courts.

{10} Defendant argued to the district court that New Mexico constitutional law should protect against pretextual traffic stops because it provides a distinctive, extra layer of protection against unreasonable searches and seizures involving automobiles that is unavailable at the federal level. Furthermore, Defendant argued, New Mexico courts cannot provide this layer of protection if they are unable to meaningfully review all evidence regarding the reasonableness of an officer's conduct. The State therefore agrees that Defendant properly preserved his state constitutional challenge to pretextual stops, that the district court was sufficiently apprised of his claims, and that the district court had an opportunity to rule on the matter.

{11} We agree with the parties, and hold that Defendant adequately preserved his state constitutional claim for our review by developing the relevant facts through the officers' testimony and the reasons to interpret our state constitution more expansively through legal argument at the suppression hearing. Therefore, we next determine whether justification exists to diverge from federal precedent.

Diverging from Federal Precedent

{12} "We may depart from federal precedent if federal analysis is flawed or undeveloped, if structural differences exist between state and federal government, or if New Mexico has distinct state characteristics supporting such a departure." State v. Granville, 2006-NMCA-098, ¶ 17, 140 N.M. 345, 142 P.3d 933. We depart from federal constitutional law in this case because we find the federal analysis unpersuasive and incompatible with our state's distinctively protective standards for searches and seizures of automobiles.

Critique of Whren

{13} The Whren opinion, authorizing pretextual traffic stops, has suffered widespread criticism of its legal reasoning, policy choices, and consequences. See, e.g., Phyllis W. Beck & Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling and Public Policy Concerns, 72 Temp. L.Rev. 597, 597 (1999) ("Scholars, journalists, and lawyers promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed, and fundamentally unfair."); David O. Markus, Whren v. United States: A Pretext to Subvert the Fourth Amendment, 14 Harv. BlackLetter L.J. 91, 96-109 (1998) (explaining how the Whren decision disregarded the purpose of the Fourth Amendment's "reasonableness" requirement, inexplicably dismissed the Supreme Court's own statements condemning police pretext, relied on unpersuasive evidentiary problems with discerning subjective intent, and disempowered the courts from ferreting out...