State v. Vasquez

HARTZ, Judge,

(dissenting).

I respectfully dissent. In my view, when Agent Johnston saw the “diaper” bag wedged under the vehicle, he had probable cause to seize and search it.

The border patrol checkpoint involved in this case is a permanent checkpoint. Reference to it has appeared in reported decisions for almost two decades. E.g., United States v. Anderson, 468 F.2d 1280 (10th Cir.1972). Persons who are transporting contraband or undocumented aliens are likely to be aware of its location. Given the presence of the town of Truth or Consequences approximately three miles south of the checkpoint, it is reasonable for border patrol agents to suspect that when a vehicle “stops short” south of the checkpoint, the occupants are preparing for the checkpoint inspection, rather than taking care of personal needs or vehicle problems. Testimony at the suppression hearing confirmed that the experience of border patrol agents warrants suspicion concerning vehicles that stop short. Thus, when an agent on patrol noted defendant’s pickup parked approximately one-and-a-half to two miles south of the checkpoint, he radioed that information to the checkpoint.

The suspiciousness of the stop short was enhanced by the manner in which the vehicle approached the checkpoint. The pickup approached the checkpoint slower than the normal flow of traffic and slowed down dramatically two or three hundred yards from the checkpoint. When Agent Johnston engaged the occupants in routine questioning concerning their citizenship and documentation, defendant and his passenger appeared nervous. Both fumbled in obtaining their identification. Because of the heavy traffic at the time, Agent Johnston directed the vehicle to move out of the line of traffic to the secondary area. This was not only lawful, but appropriate. Reasonable suspicion is not required to engage in routine questioning, and nothing in the United States Constitution requires that such questioning, no matter how much it is prolonged by the inability of the occupants of the vehicle to produce proper identification, must be conducted in the normal line of traffic, thereby delaying other motorists.

At the secondary area Agent Johnston noted that a blanket covered the space behind the front seat of the pickup. Because undocumented aliens could have been concealed there, he was justified in extending the detention to make an inquiry. When he asked defendant what was behind the seat, defendant said “blankets,” jumped out of the cab, and began pulling the blankets out and tossing them into the bed of the pickup. Although there were no persons or obvious contraband under the blanket, defendant’s peculiar behavior (including the stop short) justified further detention to examine the exterior of the vehicle. This examination could properly include looking under the vehicle, which does not constitute a search. See United States v. Price, 869 F.2d 801 (5th Cir.1989); United States v. Garcia, 616 F.2d 210, 212 (5th Cir.1980); cf. State v. Bolton, 111 N.M. 28, 801 P.2d 98 (Ct.App.1990) (underside of truck was visible from vantage point down the hill). In short, Agent Johnston’s actions were lawful up to the time that he observed the bag stuck in the truck’s undercarriage.

His conduct thereafter raises interesting questions in the law of search and seizure. Did he need probable cause or reasonable suspicion to touch the outer portion of the bag to try to determine the nature of its contents? Did he need probable cause or reasonable suspicion to remove the bag from its storage place in order to smell its contents? These questions need not be answered. Once Agent Johnston observed the bag, he had probable cause to seize and search it. Although one can conceive of legitimate purposes in stashing items other than contraband in a bag at that location, common sense — which is the touchstone of probable cause, see State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974) — tells us that there was a strong probability that the contents of the bag were contraband.

Several reported decisions have held that the nature of a hiding place in itself can provide probable cause. In United States v. Price the court ruled that once border patrol agents discovered a secret compartment under a vehicle, they had probable cause to search it. See United States v. Garcia (probable cause for border patrol agents to search concealed compartment under bed of pickup). In Bolton we held that border patrol agents had probable cause to search a phony gas tank on a vehicle. United States v. Elsoffer, 671 F.2d 1294 (11th Cir.1982), upheld the seizure and search of a package that a deplaning passenger at an airport was carrying in the front of his trousers from his waistline to the crotch. The court wrote, “[T]he unusual size and shape of the bulge and, given its unusual size and shape, its abnormal position on Elsoffer’s person alone provided not only reasonable suspicion but also probable cause for Elsoffer’s arrest.” Id. at 1299; see United States v. Palen, 793 F.2d 853, 858 (7th Cir.1986); United States v. Ilazi, 730 F.2d 1120, 1127 (8th Cir.1984) (defendant refused to explain bulge on inside of his boot).

The manner in which the bag was concealed, together with the stop short of the pickup and the agitated behavior of defendant at the checkpoint, established probable cause to seize and search the bag for contraband. The subjective state of mind of Agent Johnston is irrelevant. See State v. Apodaca, 112 N.M. 302, 814 P.2d 1030 (Ct.App.1991). No warrant was necessary. See id.

Of course, once Agent Johnston smelled marijuana from the bag, he could lawfully detain the vehicle for the thirty-five or so minutes necessary to bring back to the checkpoint a specially trained dog, which resulted in the discovery of additional marijuana. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (luggage can be detained on reasonable suspicion). (I need not discuss whether the inevitable-discovery rule would require upholding the second search even if the seizure and search of the “diaper” bag was unlawful.)