State v. Snyder , 126 N.M. 168 ( 1998 )

OPINION

ARMIJO, Judge.

{1} Defendant appeals his conviction for possession of marijuana with intent to distribute in violation of NMSA 1978, § 30-31-22(A)(1) (1990), on the grounds that the district court erred in denying his motion to suppress evidence seized as a result of a warrantless search of his automobile by agents of the United States Border Patrol at a fixed checkpoint near Orogrande, New Mexico. Defendant asserts that the district court’s failure to exclude this evidence from his trial violated his rights under Article II, Section 10 of the New Mexico Constitution because the State failed to make a particularized showing of exigent circumstances as required under State v. Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1. Based on the independent grounds provided by our state constitution, we determine that the exclusionary rule under Article II, Section 10 applies to the use of evidence in a New Mexico state court proceeding when that evidence resulted from a search conducted by federal border-patrol agents at a checkpoint in New Mexico. However, because we determine that the state constitutional requirement of exigent circumstances for a warrant-less search of an automobile was met in this case, we affirm Defendant’s conviction.

I. BACKGROUND

{2} At approximately 7:30 p.m. on June 29, 1996, Defendant drove his pickup truck into the primary inspection area of the United States Border Patrol checkpoint on U.S. Highway 54 approximately 35 miles south of Alamogordo, New Mexico. At that time, Border Patrol Agent Joel Sims was working at the primary inspection area. While questioning Defendant about his citizenship, Agent Sims observed that Defendant’s hands and arms trembled. In response to further questioning about his itinerary, Defendant stated that he was travelling from Phoenix, Arizona, to his home in Garden City, Kansas, and that he travelled a lot because he was a federal grain inspector. When asked why he was taking such an indirect route between these two locations, Defendant replied that he was paid by the mile. Agent Sims noticed that Defendant became nervous and trembled even more.

{3} After asking for and obtaining permission to inspect Defendant’s vehicle with a border-patrol dog, Agent Sims directed Defendant to the secondary inspection area in order to allow the dog to detect any suspicious odors emanating from Defendant’s truck. Border Patrol Agent Jesus Torres, who was also stationed at the checkpoint, accompanied Defendant to the other side of the traffic lane while Agent Sims accompanied the border-patrol dog around Defendant’s truck. The dog alerted at the rear of Defendant’s truck and indicated in the direction of the spare tire mounted underneath it. In the process of removing the spare tire from beneath the truck, Agent Sims noticed that it was heavy and uninflated. He cut the tire open with a knife and found eleven bundles of marijuana inside. When the marijuana was discovered, Agent Torres took Defendant inside a trailer at the checkpoint and placed him under arrest. Agent Donald Humphrey and his partner, who worked for the Otero County Narcotics Enforcement Unit, were summoned to the checkpoint to take custody of Defendant, his truck, and the bundles of marijuana.

{4} Defendant was brought to trial in the Otero County District Court on one count of possession of marijuana with intent to distribute. When the State sought to introduce photographs of the bundles of marijuana at trial, Defendant’s trial counsel moved to suppress the photographs on the grounds that the marijuana was the fruit of an unlawful search under Gomez, 1997-NMSC-006, ¶ 39, 122 N.M. 777, 932 P.2d 1. The State asserted that Gomez did not apply, but was given the opportunity to elicit testimony from the State’s witnesses to show the presence of exigent circumstances justifying the warrant-less search.

{5} The district court ruled that it would not apply Gomez retroactively, or, in the alternative, that the testimony elicited by the State was sufficient to make a particularized showing of exigent circumstances. The photographs of the marijuana were admitted into evidence and a jury found Defendant guilty of one count of possession of marijuana with intent to distribute. This appeal followed.

II. DISCUSSION

A. Standard of Review

{6} Whether the exclusionary rule under Article II, Section 10 of the New Mexico Constitution applies to the use of evidence in a New Mexico state court proceeding when that evidence resulted from a search conducted by federal border-patrol agents is a threshold constitutional issue that is subject to de novo review. See State v. Marquart, 1997-NMCA-090, ¶7, 123 N.M. 809, 945 P.2d 1027 (citing State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994)). The district court’s determination of exigent circumstances is also subject to de novo review. See Gomez, 1997-NMSC-006, ¶ 40, 122 N.M. 777, 932 P.2d 1. However, in reviewing the district court’s denial of Defendant’s motion to suppress, we view the district court’s factual determinations in the light most favorable to the State, together with all reasonable inferences therefrom. See State v. Aragon, 1997-NMCA-087, ¶ 10, 123 N.M. 803, 945 P.2d 1021.

B. Preservation of Error

{7} The requirements for preserving a state constitutional claim for appellate review depend on current New Mexico precedent construing the particular state constitutional provision at issue. See Gomez, 1997-NMSC-006, ¶ 22, 122 N.M. 777, 932 P.2d 1. The requirement of exigent circumstances for a warrantless search of an automobile became current New Mexico precedent before Defendant’s trial on March 21, 1997. See id. ¶ 39, 122 N.M. 777, 932 P.2d 1 (decided January 7, 1997). Defendant’s trial counsel preserved this issue for appellate review by asserting the current precedent in his motion to suppress at trial and showing the factual basis needed for the trial court to rule on the issue. See id. ¶ 22, 122 N.M. 777, 932 P.2d 1.

{8} Although the district court did not consider or rule upon the threshold issue of whether the state constitution applies to the use of evidence in state court when that evidence results from a search by federal border-patrol agents, on appeal the State asserts that this threshold issue provides an alternative basis for affirming the district court’s ruling. Generally, we may affirm the district court’s ruling on grounds not relied upon below unless the appellant did not have a fair opportunity to present admissible evidence in the district court concerning the facts on which those grounds depend. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct.App.1994).

C. Application of Federal Laio

{9} Before we examine the protection afforded by our state constitution, we must determine whether the right being asserted by Defendant is protected under the federal constitution. See Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (discussing interstitial approach to state constitutional analysis). In applying federal law, we follow the precedent established by the federal courts, particularly the United States Court of Appeals for the Tenth Circuit. See State v. Fierro, 1996-NMCA-028, ¶ 10, 121 N.M. 398, 911 P.2d 1202 (Hartz, J., specially concurring). Under current federal precedents, a warrantless search of a mobile vehicle requires probable cause and nothing more. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996) (per curiam); United States v. Anderson, 114 F.3d 1059, 1065-66 (10th Cir. 1997). Further, the Tenth Circuit has consistently held that an alert by a dog that is properly trained and certified in the detection of illegal drugs is sufficient to establish probable cause for a warrantless search. See United States v. Kennedy, 131 F.3d 1371, 1376-77 (10th Cir.1997). In the present case, Defendant does not dispute the border-patrol dog’s qualifications or the fact that the dog alerted while inspecting his truck. Hence, a warrantless search was reasonable under the Fourth Amendment to the United States Constitution.

D. Application of Neiv Mexico Law

1. Scope of the Exclusionary Rule

{10} Because Defendant’s right to be free from a warrantless search of his truck in the absence of exigent circumstances is not protected by the Fourth Amendment, we next examine whether this right is protected under Article II, Section 10 of the New Mexico Constitution. See Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. In the present case, the State asserts that the New Mexico Constitution does not apply to a search by federal border-patrol agents because “no state actor is involved.” We agree that state law generally does not govern the conduct of federal agents. See U.S. Const, art. VI, cl. 2; N.M. Const, art. II, § 1; cf. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (“[J]ust as state law may not authorize federal agents to violate the Fourth Amendment, neither may state law undertake to limit the extent to which federal authority can be exercised.”) (citations omitted); State v. Mollica, 114 N.J. 329, 554 A.2d 1315, 1327 (N.J.1989) (“Stated simply, state constitutions do not control federal action.”). But cf. State v. Knight, 145 N.J. 233, 678 A.2d 642, 657 (N.J.1996) (whether state constitutional protections apply may depend on facts concerning “ ‘antecedent mutual planning, joint operations, cooperative investigations, and mutual assistance between federal and state officers’ ” (quoting Mollica, 554 A.2d at 1329)). For this reason, the fact that a provision of the New Mexico Constitution affords broader protection against unreasonable searches and seizures than its federal counterpart generally “is irrelevant where the question arises in federal court in response to a federal charge.” United States v. Rose, 806 F.2d 931, 932 (9th Cir.1986) (per curiam).

{11} In the present case, however, the question arises in a New Mexico state court in response to the State’s prosecution of Defendant for violating one of New Mexico’s criminal statutes. We determine that the State’s ability to use the evidence at issue in this case in the courts of the State of New Mexico is governed by the exclusionary rule under Article II, Section 10 of the New Mexico Constitution. See Moran v. State, 644 N.E.2d 536, 538 (Ind.1994) (applying Indiana constitution to Indiana state judge’s ruling on question of whether Indiana prosecutor should be permitted to convict upon evidence that was product of federal search warrant); Stidham v. State, 608 N.E.2d 699, 701 (Ind.1993) (applying Indiana statute to question of admissibility of statement obtained in Illinois in prosecution taking place in Indiana state court); People v. Griminger, 71 N.Y.2d 635, 529 N.Y.S.2d 55, 524 N.E.2d 409, 412 (N.Y.1988) (applying New York search and seizure law in trial for crimes defined by New York penal law); Jennifer Friesen, State Constitutional Law § 11-3(d)(3) (2d ed. 1996) (“A state judge has the power to control what evidence is admitted in his or her court.”); cf. State v. Rodriguez, 317 Or. 27, 854 P.2d 399, 404 (Or.1993) (en banc) (application of state constitutional provision in context of state criminal prosecution is not preempted by federal immigration laws).

{12} To determine whether the evidence seized by the federal border-patrol agents in this case must be excluded from Defendant’s trial in a New Mexico state court, we first identify the principles to be served by New Mexico’s exclusionary rule, and then we evaluate how these principles would be served by exclusion of this evidence. See State v. Bridges, 83 Hawai'i 187, 925 P.2d 357, 367-68 (Haw.1996). Our analysis of the purposes of the exclusionary rule under our state constitution and its federal counterpart is controlled by State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993).

{13} The Gutierrez Court noted that “[t]he federal exclusionary rule first evolved as a rule of constitutional dimension, but has been steadily reinterpreted so that today the rule stands as a deterrent safeguard of only minimal constitutional significance.” Id. at 436, 863 P.2d at 1057. Under current federal law, the scope and application of the exclusionary rule are governed by practical considerations concerning the rule’s costs and benefits. Id. at 437, 863 P.2d at 1058. In particular, the federal “exclusionary rule ‘is designed to deter police misconduct rather than to punish the errors of judges and magistrates.’ ” Id . at 438, 863 P.2d at 1059 (quoting United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The federal rule’s deterrent effect is measured by its power to “ ‘alter the behavior of individual law enforcement officers or the policies of their departments.’” Id. (quoting Leon, 468 U.S. at 918, 104 S.Ct.3405). In situations where the application of the federal exclusionary rule would not yield such a deterrent effect on law enforcement policies or behavior, federal courts have recognized an exception to the rule. See Leon, 468 U .S. at 919-21, 104 S.Ct. 3405 (recognizing “good-faith exception” to federal exclusionary rule).

{14} Some state courts have concluded that the application of state exclusionary rules will have little or no deterrent effect on the conduct of federal agents for the simple reason that state constitutions do not control the actions of other sovereigns. See People v. Fidler, 72 Ill.App.3d 924, 29 Ill.Dec. 51, 391 N.E.2d 210, 211 (Ill.App.Ct.1979); State v. Gallegos, 255 Kan. 382, 874 P.2d 647, 651 (Kan.1994); Commonwealth v. Cryer, 426 Mass. 562, 689 N.E.2d 808, 813 (Mass.1998); Mollica, 554 A.2d at 1327. But cf. People v. LaFontaine, 159 Misc.2d 751, 603 N.Y.S.2d 660, 667 (N.Y.Sup.Ct.1993) (concluding that officer of neighboring state would be deterred by application of exclusionary rule to evidence illegally acquired by him or her in forum state and sought to be introduced in forum state’s courts). This lack of any deterrent effect on agents of another sovereign provides the main reason why these state courts have declined to apply exclusionary rules under their state constitutions to evidence seized by such agents. See Fidler, 29 Ill.Dec. 51, 391 N.E.2d at 211; Gallegos, 874 P.2d at 651; Cryer, 689 N.E.2d at 813; Mollica, 554 A.2d at 1327.

{15} However, unlike the federal exclusionary rule and the laws of some other states, our approach to the exclusionary rule under the New Mexico Constitution “focuses not on deterrence or judicial integrity, nor do we propose a judicial remedy; instead, our focus is to effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.” Gutierrez, 116 N.M. at 446, 863 P.2d at 1067; see also Marquart, 1997-NMCA-090, ¶ 17, 123 N.M. 809, 945 P.2d 1027. In particular, New Mexico’s exclusionary rule is not based on the rationale that suppression of tainted evidence is warranted only if such suppression is likely to alter the behavior or policies of law enforcement officials. Rather, the exclusionary rule under the New Mexico Constitution “focuses on the constitutional rights of individuals.” Marquart, 1997-NMCA-090, ¶ 17, 123 N.M. 809, 945 P.2d 1027.

{16} The New Mexico Supreme Court has stated unequivocally that, in order to effectuate such rights under our state constitution, we must deny the State the use of evidence in a criminal proceeding in state court when that evidence results from an unreasonable search or seizure. See Gutierrez, 116 N.M. at 444-46, 863 P.2d at 1065-67; Marquart, 1997-NMCA-090, ¶ 31, 123 N.M.809, 945 P.2d 1027 (Hartz, J., specially concurring). “Denying the government the fruits of unconstitutional conduct at trial best effectuates the constitutional proscription of unreasonable searches and seizures by preserving the rights of the accused to the same extent as if the government’s officers had stayed within the law.” Gutierrez, 116 N.M. at 446, 863 P.2d at 1067.

{17} Our Supreme Court’s explanation of the purpose and significance of the exclusionary rule under the New Mexico Constitution accords with the view of the Oregon Supreme Court. See Gutierrez, 116 N.M. at 445, 863 P.2d at 1066 (quoting State v. Davis, 295 Or. 227, 666 P.2d 802, 806-07 (Or.1983) (en banc) (“Davis /”)). The exclusionary rule under the Oregon Constitution “focus[es] on protecting the individual’s rights vis-a-vis the government, not on deterring or punishing the excessive conduct of any particular governmental actor, local or otherwise.” State v. Davis, 313 Or. 246, 834 P.2d 1008, 1012 (Or.1992) (“Davis II”). “[Evidence is suppressed for violations of the Oregon Constitution ‘to preserve ... rights to the same extent as if the government’s officers had stayed within the law.’ ” Id. (quoting Davis I, 666 P.2d at 802). Based on this rationale, the Oregon Supreme Court has concluded that the requirements of the Oregon Constitution apply whenever the Oregon government seeks to rely on evidence in an Oregon criminal prosecution regardless of “where that evidence was obtained (in-state or out-of-state) or ivhat governmental entity (local, state, federal, or out-of-state) obtained it.” Davis II, 834 P.2d at 1012; see also Rodriguez, 854 P.2d at 402-03 (applying Oregon exclusionary rule to evidence seized in state by federal agents).

{18} We need not decide in this case whether the exclusionary rule under the New Mexico Constitution has the same broad application that the Oregon Supreme Court articulated in Davis II. Cf. Bridges, 925 P.2d at 369 n. 15 (declining to decide issue of exclusionary rule’s application to evidence seized in state by federal agents in case involving evidence that resulted from out-of-state search by state agents). However, in light of our Supreme Court’s explicit reference to Oregon law in Gutierrez, 116 N.M. at 445, 863 P.2d at 1066, we find the Oregon court’s reasoning persuasive with respect to the in-state search by federal border-patrol agents that is at issue in the present case. Thus, we conclude that the requirement of exigent circumstances under Article II, Section 10 of the New Mexico Constitution applies to the federal border-patrol agent’s search of Defendant’s truck at a checkpoint in New Mexico when the State seeks to introduce evidence resulting from that search in a New Mexico state court.

2. Particularized Showing of Exigent Circumstances

{19} In Gomez, 1997-NMSC-006, ¶39, 122 N.M. 777, 932 P.2d 1, the New Mexico Supreme Court determined that under Article II, Section 10 of the New Mexico Constitution, a warrantless search of an automobile requires both probable cause and a particularized showing of exigent circumstances. In general, exigent circumstances involve “ ‘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)); see also State v. Arredondo, 1997-NMCA-081, ¶ 26, 123 N.M. 628, 944 P.2d 276.

{20} The issue we review on appeal, however, is not whether Defendant was in fact preparing to escape, destroy evidence, endanger life, or damage property. See State v. Chavez, 98 N.M. 61, 63, 644 P.2d 1050, 1052 (Ct.App.1982). Rather, the question is whether, in this situation, “a prudent, cautious, and trained officer, based on facts known, could reasonably conclude swift action was necessary.” State v. Corneau, 109 N.M. 81, 89, 781 P.2d 1159, 1167 (Ct.App.1989). In reviewing this question, we consider “ ‘all the record surrounding [the] arrest[,] search and seizure.’ ” State v. Leyba, 1997-NMCA-023, ¶ 10, 123 N.M. 159, 935 P.2d 1171 (quoting State v. Martinez, 94 N.M. 436, 439, 612 P.2d 228, 231 (1980)). “If reasonable people might differ about whether exigent circumstances existed, we defer to the officer’s good judgment.” Gomez, 1997-NMSC-006, ¶ 40, 122 N.M. 777, 932 P.2d 1.

{21} The State elicited testimony that when the border-patrol agents obtained probable cause for the search, it was 7:30 p.m. and Defendant’s truck was stopped at a checkpoint that was at least 35 miles from the nearest court in which a search warrant could be obtained. Further, there were only two agents stationed at the checkpoint at the time. Although traffic was described as “kind of light,” Agent Torres testified he “went outside and continued inspecting traffic” while Agent Sims went over to Defendant’s truck. Agent Torres also was responsible for guarding Defendant while Agent Sims and his dog inspected the truck.

{22} Defendant contends that exigent circumstances were not present in this case because the border-patrol agents were in a position to lawfully secure Defendant’s vehicle and his person while they sought a search warrant. In particular, Defendant points to the fact that the agents had sidearms, handcuffs, and a facility for detaining prisoners at the station. Thus, according to Defendant, while one of the agents went to Alamogordo to obtain a search warrant, the other agent could have handcuffed Defendant or placed him in the detention facility, guarded his vehicle, and continued with his other duties. In the alternative, Defendant asserts that the border-patrol agents could have summoned additional personnel to enable them to secure the presence of Defendant and his vehicle while a warrant was obtained.

{23} The problems with Defendant’s contentions are twofold. First, we question whether handcuffing or otherwise physically restraining Defendant pending the issuance of a search warrant during the evening by a court that is 35 miles away from the checkpoint would be any less intrusive than conducting an immediate search of the spare tire beneath Defendant’s truck. A prolonged investigatory detention at a border-patrol checkpoint may constitute “a significant intrusion.” State v. Hernandez, 1997-NMCA-006, ¶ 24, 122 N.M. 809, 932 P.2d 499. Second, “ ‘[a]s soon as the investigation requires awaiting the development of circumstances off the scene, the validity of the investigatory stop becomes suspect,’ ” and the stop may ripen into a de facto arrest. Id. ¶ 25, 122 N.M. 809, 932 P.2d 499 (quoting State v. Werner, 117 N.M. 315, 319, 871 P.2d 971, 975 (1994)).

{24} Under these circumstances, the two border-patrol agents at the checkpoint had an objectively reasonable basis for believing that the only alternatives to their warrantless search of the spare tire beneath Defendant’s truck were to allow Defendant to leave the checkpoint with the evidence or to risk a more intrusive de facto arrest by prolonging Defendant’s detention at the checkpoint for the length of time it would take to secure a warrant. In this situation, it was not unreasonable for the agents to believe that exigent circumstances justified an immediate warrantless search, and we defer to their good judgment. See Gomez, 1997-NMSC-006, ¶¶ 40, 42, 122 N.M. 777, 932 P.2d 1. Hence, we affirm the district court’s ruling that the warrantless search of Defendant’s truck did not violate the requirements of Article II, Section 10 of the New Mexico Constitution.

III. CONCLUSION

{25} We affirm Defendant’s conviction for possession of marijuana with intent to distribute because it was not unreasonable for the border-patrol agents to believe that exigent circumstances justified an immediate warrantless search of his truck.

{26} IT IS SO ORDERED.

PICKARD, J., concurs. HARTZ, C.J., specially concurring.