State v. Porras-Fuerte

• Decision Date: 28 October 1994
• Docket Number: D,PORRAS-FUERT,No. 15214,15214
• Citation: 119 N.M. 180,1994 NMCA 141,889 P.2d 215
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Santosefendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 215

889 P.2d 215

119 N.M. 180

STATE of New Mexico, Plaintiff-Appellee, v. Santos PORRAS-FUERTE, Defendant-Appellant.

No. 15214.

Court of Appeals of New Mexico.

Oct. 28, 1994.

Certiorari Granted Dec. 16, 1994.

[119 N.M. 182] Tom Udall, Atty. Gen., Shari Weinstein, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals from the denial of his motion to suppress a cellular phone that was seized from his automobile, a Trans Am, and marijuana and a cellular phone seized from his co-defendants' automobile, a Ford LTD, by U.S. Border Patrol agents. He pled no contest to conspiracy to possess marijuana with intent to distribute, reserving his right to appeal the denial of his motion to suppress. Defendant also appeals the denial of his motion to dismiss on the basis that his right to a speedy trial was violated.

Defendant raises four issues on appeal: (1) whether there was reasonable suspicion to stop the LTD; (2) whether there was reasonable suspicion to stop the Trans Am; (3) whether probable cause was required to stop the two vehicles; and (4) whether the Supreme Court's extension of the time within which to commence his trial violated Defendant's right to a speedy trial. During the calendaring process, this Court suggested that Defendant might not have standing to challenge the seizure of evidence from the LTD, and both parties briefed this issue in the appeal. We hold that standing may not be reviewed for the first time on appeal under the circumstances of this case. For the reasons discussed below, we reverse and remand on Issues 1 and 2.

FACTS

Border Patrol agents stopped a Ford LTD at the Orogrande checkpoint on Highway 54 at around 1:30 a.m. on January 13, 1992. The driver said that he and his passenger were headed to Ruidoso to ski. A ski rack with skis was on top of the car. After the car pulled away from the checkpoint, another agent, Agent Garza, observed that the skis on top of the LTD did not have bindings. The lack of bindings apparently struck the agents as odd, and they decided to call the southbound agents to have the LTD pulled over. A BOLO (be on the look-out) was issued.

Agent Garza testified that the occupants of the LTD were not dressed for skiing and had an ice chest in the back seat. He noticed the car had New Mexico plates and assumed it was coming from El Paso because it looked as if it had not been traveling long.

After the LTD left the checkpoint, Agent Sanchez stopped it pursuant to the BOLO. He questioned the occupants about citizenship and then asked for consent to search the car. As a result of the search, bundles of marijuana and a cellular phone were discovered in the car.

There had been a lot of traffic heading for the mountains on the night of the search, coming in clusters about ten to fifteen minutes apart. A black Trans Am driven by Defendant preceded the LTD through the checkpoint by about fifteen minutes. Defendant told Agent Garza he was on his way to a motel in Alamogordo to pick up a friend. Agent Garza did not notice any clothes in the car, so he asked Defendant to open the trunk because he thought there might be an alien in there. Nothing was in the trunk. A cellular phone was not found.

About the time that the Ford LTD was stopped, an agent observed the Trans Am stopped northbound on the side of the highway approximately fifteen miles north of the checkpoint. An agent testified at the hearing that he was concerned that the vehicle might be waiting to pick up aliens who had been hiding in the brush. He indicated that this was a common practice in alien smuggling. The car was then seen driving in the opposite direction and was stopped by a border patrol agent near the checkpoint after the seizure of the marijuana from the LTD. When the agent looked inside the car, he saw a cellular phone. At that point, the agents determined the two cars were together and that Defendant was operating as a "scout car" for his co-defendants.

STANDING

In our initial calendar notice, we questioned whether Defendant had standing to challenge the search of the LTD. It is undisputed by the parties that the State failed to raise this issue in the trial court. The State argues on appeal that standing is jurisdictional and therefore may be raised at any time. We do not agree.

Standing is not jurisdictional; rather, it is a substantive doctrine that identifies those who may assert rights against unlawful searches and seizures. State v. Schlosser, 774 P.2d 1132, 1138 (Utah 1989); see Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 428-29, 58 L.Ed.2d 387 (1978). Further, where, as here, the State's failure to raise the objection results in Defendant not having notice that he was required to put on proof of standing, the argument may be deemed waived. See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981). Federal courts will sometimes find a waiver when the State has not shown good reason for failing to raise the issue below. See United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir.1991), cert. denied, 502 U.S. 1118, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). If standing were jurisdictional or otherwise required to be proved by the defendant regardless of the prosecutor's inaction on the issue, cases such as Steagald and Dewitt would not exist. See also Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972) (per curiam) (defendant's failure to assert standing explained by "the related failure of the Government" to challenge his standing; case vacated and remanded for further factual determination).

In the recent case of State v. Franks, 119 N.M. 174, 889 P.2d 209 (Ct.App.1994), this Court held that "it would be unfair to an appellant to affirm on a fact-dependent ground not raised below ... because the appellant lacked an opportunity to present admissible evidence relating to the fact." 119 N.M. at 177, 889 P.2d at 212. In accordance with Franks, we hold that standing may not be raised for the first time on appeal since it is a fact-based issue. The defendant must be alerted to the issue and given the opportunity to present evidence thereon at the trial court level.

The foregoing does not, however, preclude the State from raising this issue upon remand. Because we are not deciding whether Defendant had standing, the law-of-the-case doctrine does not preclude the State from presenting the issue (for example, by a motion in limine) on remand after the judgment based on the guilty plea is set aside. If the State chooses to raise the issue of standing, Defendant may introduce evidence to prove a sufficient Fourth Amendment interest. Additionally, Defendant may ask the court to adopt the rule of "co-conspirator standing" or "automatic standing," as argued in his brief. We intimate no opinion at this time on how the trial court should rule on any of these issues.

Finally, we decline Defendant's invitation to rule that the State has waived the issue of standing by not raising it below. See Dewitt, 946 F.2d at 1499-1500. In the same procedural situation that we face in this case, Combs did not apply a waiver. Steagald involved a quite different situation. The government's waiver in Steagald was based on its express representations in the appellate courts that were inconsistent with its belated challenge to standing; the Supreme Court said only that the government lost its right to raise new factual issues in the Supreme Court itself, 451 U.S. at 209, 101 S.Ct. at 1646, and the Court pointed out that the government had not filed a cross-petition in the Supreme Court seeking remand to the district court for further proceedings, id. at 210, 101 S.Ct. at 1646. Moreover, we believe that the procedural posture in Dewitt makes the waiver applied therein not persuasive precedent for our purposes here. In Dewitt, the appellate court affirmed the defendant's conviction and upheld the trial court's ruling on the motion to suppress. Thus, the discussion of waiver was not necessary to the decision, and the appellate court had no need to consider whether the issue of standing could be raised in the district court after remand.

STANDARD FOR STOPS OF THE VEHICLES

The trial court's denial of Defendant's motion to suppress will not be overturned on appeal if the denial is supported by substantial evidence. State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993); State v. Goss, 111 N.M. 530, 534, 807 P.2d 228, 232, cert. denied, 111 N.M. 416, 806 P.2d 65 (1991). We view the evidence in the light most favorable to the trial court's ruling and determine whether the law was correctly applied to the facts, although the reasonable suspicion necessary to justify an intrusive stop is generally a question of law. Galloway, 116 N.M. at 9, 859 P.2d at 477. We review the totality of the circumstances to determine whether the searches in this case were justified. State v. Guzman, 118 N.M. 113, 115, 879 P.2d 114, 116 (Ct.App.1994) (No. 13,977); State v. Affsprung, 115 N.M. 546, 549, 854 P.2d 873, 876 (Ct.App.), cert. denied, 115 N.M. 545, 854 P.2d 872 (1993).

In order to justify detention of a vehicle for brief routine questioning at a permanent border checkpoint, agents need not have any individualized suspicion of wrongdoing. Affsprung, 115 N.M. at 549, 854 P.2d at 876. In Affsprung, this Court held that the standard for detention at a border checkpoint beyond initial questioning was reasonable suspicion. Id.

In this case, both the LTD and the Trans Am were passed through the checkpoint and stopped for a second time. It was the second stop for each of the vehicles that yielded the evidence of criminal activity Defendant sought to suppress. Defendant contends that the second stops were unlawful unless based on probable cause because they constituted arrests. H...