State v. Sanchez

                                                     I attest to the accuracy and
                                                      integrity of this document
                                                        New Mexico Compilation
                                                      Commission, Santa Fe, NM
                                                     '00'04- 11:37:10 2015.06.30

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: May 28, 2015

Docket No. 34,516

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

AIDE ZAMORA SANCHEZ,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General
James W. Grayson, Assistant Attorney General
Corinna Laszlo-Henry, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jorge A. Alvarado, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Respondent

Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Albuquerque, NM

Barbara E. Bergman
Albuquerque, NM

Theresa M. Duncan
Albuquerque, NM


                                           1
for Amicus Curiae New Mexico Criminal Defense Lawyers Association

                                        OPINION

CHÁVEZ, Justice.

{1}     Defendant-Respondent Aide Sanchez (Sanchez) was at the Santa Teresa, New
Mexico port of entry, an international border crossing, attempting to enter the United States
from Mexico, when Border Patrol agents seized marijuana from her van. In State v.
Cardenas-Alvarez, 

, 

, 

, we held that “the
New Mexico Constitution and laws apply to evidence seized by federal agents at a border
patrol checkpoint [located] sixty miles within the State of New Mexico [(an interior fixed
checkpoint)] when that evidence is proffered in state court.” We also held that Article II,
Section 10 of the New Mexico Constitution “demands that after a Border Patrol agent has
asked about a motorist’s citizenship and immigration status, and has reviewed the motorist’s
documents, any further detention requires reasonable suspicion of criminal activity.”
Cardenas-Alvarez, 

.

{2}     Sanchez successfully moved to suppress the evidence seized from her van, arguing
that (1) Cardenas-Alvarez applies at the international border, and (2) seizure of the
marijuana violated the New Mexico Constitution because the Border Patrol agents did not
have a reasonable suspicion of criminal activity to continue to detain her once they had
established her citizenship and immigration status. We hold that Article II, Section 10 does
not afford greater protections at an international border checkpoint because unlike motorists
who are stopped at interior border checkpoints, all motorists stopped at international fixed
checkpoints are known to be international travelers who are not entitled to the heightened
privacy expectations enjoyed by domestic travelers. We therefore reverse the district court’s
order suppressing the evidence in this case.

BACKGROUND

{3}     On January 2, 2012, United States Customs and Border Protection Officer Erica
Pedroza (Pedroza) was working as the primary officer at the Santa Teresa Port of Entry, an
international border checkpoint. Primary officers are the first customs agents to speak with
a motorist seeking to cross an international border. They check motorists’ citizenship
documentation and inspect their vehicles for contraband. Primary officers usually have, at
most, 30 seconds to decide between releasing a motorist or referring the motorist to a
secondary area for further inspection of the vehicle. Further inspections arise for various
reasons, including documentation deficiencies such as the lack of a passport, the presence
of agricultural products, and evidence that vehicles have been tampered with.

{4}   Pedroza testified that while she was working, she encountered Sanchez driving a van.
According to Pedroza, Sanchez claimed that she had spent the weekend in Ciudad Juárez,
Mexico and was driving back to Denver, Colorado. Pedroza also stated that Sanchez

                                             2
produced valid documentation of her legal status as a permanent resident. However, Pedroza
was unable to inspect the van to her satisfaction because of the presence of a large dog
within the van. Consequently, Pedroza referred Sanchez to a secondary area to have the
vehicle inspected, even though Pedroza did not suspect any criminal activity.

{5}    Customs and Border Protection Officer Monica Pantoja (Pantoja) testified that she
performed a seven-point inspection of Sanchez’s van, which is an inspection of the whole
vehicle. As part of this inspection, a drug-sniffing canine located marijuana within
Sanchez’s van.

{6}     Sanchez was indicted for distribution of marijuana in violation of NMSA 1978,
Section 30-31-22(A)(1)(a) (2011) and conspiracy to commit distribution of marijuana in
violation of NMSA 1978, Section 30-28-2 (1979). Sanchez filed a motion to suppress the
evidence, arguing that under Cardenas-Alvarez, Pedroza lacked the reasonable suspicion of
criminal activity required by the New Mexico Constitution to prolong her detention. In
Cardenas-Alvarez we held that Article II, Section 10 applies to evidence seized at an interior
fixed checkpoint “sixty miles within the State of New Mexico when that evidence is
proffered in state court.” 

. Under Cardenas-Alvarez, in the context
of an interior fixed checkpoint, Article II, Section 10 “demands that after a Border Patrol
agent has asked about a motorist’s citizenship and immigration status, and has reviewed the
motorist’s documents, any further detention requires reasonable suspicion of criminal
activity.” 

. The district court granted Sanchez’s motion to suppress,
finding that Pedroza’s referral of Sanchez for a secondary inspection of the van was not
supported by reasonable suspicion of criminal activity. The district court excluded “all
evidence obtained and seized from [Sanchez] and her vehicle, following the referral of
[Sanchez] for a secondary inspection.”

{7}      The Court of Appeals affirmed the district court, holding that Cardenas-Alvarez
applies, irrespective of the location of the checkpoint. State v. Sanchez, No. 32,994, mem.
op. ¶¶ 1-3, 8 (N.M. Ct. App. Nov. 6, 2013) (non-precedential). The Court of Appeals then
concluded that “the facts relied upon by the State neither establish that issues of residence
or citizenship were unresolved when [Sanchez] was sent to the secondary inspection area nor
that there was any basis for a reasonable suspicion of wrongdoing at that time.” Id. ¶ 6.

{8} We granted the State’s petition for writ of certiorari, State v. Sanchez, 2014-
NMCERT-002, to address two issues:

               1) Whether the protections of Article II, Section 10 of the New
       Mexico Constitution extend to the international border, and, if so, whether
       referral of [Sanchez] to a secondary area for continuation of routine
       questioning requires individualized suspicion[, and]

             2) Whether the application of the interstitial approach in
       Cardenas-Alvarez should be revisited.

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We decline to interpret Article II, Section 10 as requiring individualized reasonable
suspicion of criminal activity for prolonging detentions at an international border checkpoint.
We also decline to revisit the approach taken in Cardenas-Alvarez, because Cardenas-Alvarez is not implicated in this case.

DISCUSSION

{9}     All of the issues presented in this case are reviewed de novo. “Whether 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 is a threshold constitutional issue that is subject to de novo
review.” State v. Snyder, 

, 

, 

. If a
constitutional provision applies, claims arising under it are also reviewed de novo. State v.
Brown, 

, 

, 

; see also Cardenas-Alvarez,

 (“The constitutionality of a search or seizure is a mixed question of
law and fact and demands de novo review.”).

{10} In Cardenas-Alvarez, we held that the New Mexico Constitution applies to evidence
seized by federal agents at an interior fixed checkpoint when the State seeks to introduce the
evidence in state court criminal proceedings. 

. The question remains
whether the greater protections that exist at an interior fixed checkpoint also exist at the
international border checkpoint. To answer this question, we apply the interstitial approach
announced in State v. Gomez, 

, 

, 

.

{11}   Under the interstitial approach,

       the court asks first whether the right being asserted is protected under the
       federal constitution. If it is, then the state constitutional claim is not reached.
       If it is not, then the state constitution is examined. A state court adopting this
       approach may diverge from federal precedent for three reasons: a flawed
       federal analysis, structural differences between state and federal government,
       or distinctive state characteristics.

Id. ¶ 19 (citations omitted).

{12} The Fourth Amendment of the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause . . . .” (Emphasis added.) Article II, Section 10 of the New Mexico Constitution
provides that “[t]he people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures . . . .” Article II, Section 10 parallels the federal Fourth
Amendment and embodies “the fundamental notion that every person in this state is entitled
to be free from unwarranted governmental intrusions.” State v. Gutierrez, 

,
¶ 46, 

, 

 (emphasis added).

                                               4
I.      The United States Constitution was not violated

{13} The events in this case occurred at an international border checkpoint, not at an
interior fixed checkpoint. “This is an important distinction as a citizen’s Fourth Amendment
rights at a checkpoint located on the border . . . are significantly less than inside the border.”
United States v. Rascon-Ortiz, 

, 752 n.4 (10th Cir. 1993). The federal
government’s “interest in preventing the entry of unwanted persons and effects is at its
zenith at the international border.” United States v. Flores-Montano, 

(2004). Therefore, “the Fourth Amendment’s balance of reasonableness is qualitatively
different at the international border than in the interior.” United States v. Montoya de
Hernandez, 

 (1985) (emphasis added).

{14} Customs officers are afforded “great latitude in conducting a search at an
international border crossing,” Klein v. United States, 

 (9th Cir. 1973), and
“may conduct routine searches of persons and effects crossing the border even in the absence
of individualized suspicion.” United States v. Ezeiruaku, 

 (3d Cir. 1991);
see also Montoya de Hernandez, 

 (“Routine searches of the persons and
effects of entrants are not subject to any requirement of reasonable suspicion, probable
cause, or warrant . . . .”). During these routine searches, “[t]he primary inspector’s job is to
make a preliminary determination [of] whether an entrant . . . should be allowed beyond the
customs line.” United States v. Salas-Camacho, 

 (9th Cir. 1988). “The
secondary inspector is called upon to act when a vehicle is referred for additional inspection”
and is responsible for “conduct[ing] a more searching examination.” 

 “Referral to a
secondary checkpoint . . . is considered to be routine border inspection procedure.” United
States v. Ledezma-Hernandez, 

 (5th Cir. 1984). Thus, suspicion of illicit
activities is not required to refer a motorist from a primary to a secondary area. See 

Routine searches include “patdowns, frisks, luggage searches, and automobile searches.”
United States v. Whitted, 

 (3d Cir. 2008). These types of searches
conducted at an international border checkpoint “have been considered to be ‘reasonable’
by the single fact that the person or item in question had entered into our country from
outside.” United States v. Ramsey, 

 (1977).

{15} “The border search doctrine is also applicable to stops and searches conducted at the
‘functional equivalent’ of the border, i.e., the first point at which an entrant may practically
be detained.” United States v. Cardenas, 

 (5th Cir. 1993); see also
Almeida-Sanchez v. United States, 

 (1973). Searches at the functional
equivalents of borders are “those searches that, although not conducted at the actual physical
border, take place after a border crossing at the first practicable detention point.” United
States v. Garcia, 

 (11th Cir. 1982). “Such searches are truly border
searches because their sole justification is the fact that the border has been crossed.” 

 For
example, “a search of the passengers and cargo of an airplane arriving at a St. Louis airport
after a nonstop flight from Mexico City would clearly be the functional equivalent of a
border search.” Almeida-Sanchez, 

.


                                                5
{16} However, there is another federal doctrine concerning “the constitutionality of
vehicle stops conducted within U.S. borders.” Garcia, 

 (emphasis added);
see United States v. Martinez-Fuerte, 

 (1976). These cases “did not apply the
functional-equivalent theory,” Garcia, 

, because “the distance of the Border
Patrol checkpoints from the Mexican border . . . dissuaded the [United States Supreme]
Court from applying the border-search rationale.” 

 at 1360 n.14. This doctrine permits
“brief warrantless stops of vehicles at permanent checkpoints absent any suspicion” of illicit
activity. 

. We will refer to the line of cases supporting stops within the United
States border as the federal “interior fixed-checkpoint doctrine.”

{17} The interior fixed-checkpoint doctrine considers “the formidable law enforcement
problems of the Border Patrol in attempting to control the flow of illegal aliens into this
country, and balance[s] this governmental interest against the degree of interference with
individuals’ fourth amendment rights caused by the stop or search procedure at issue in each
case.” Garcia, 

 (internal quotation marks and citation omitted).

{18}   Under the interior fixed-checkpoint doctrine,

       [a] detention at a border checkpoint is a seizure under the Fourth
       Amendment. However, because the public has a substantial interest in
       protecting the integrity of our national borders, and the intrusion upon one’s
       right to privacy and personal security by a routine border inspection is
       minimal, a border patrol agent may briefly detain and question an individual
       without any individualized suspicion . . . . The Fourth Amendment protects
       an individual’s liberty at a border checkpoint by limiting the scope of the
       detention.

Rascon-Ortiz, 

 (footnote and citations omitted). As part of a routine interior
fixed-checkpoint stop, “border patrol agents may direct motorists from the primary
inspection area to secondary without individualized suspicion and have wide discretion in
selecting the motorists to be diverted.” 

 (internal quotation marks and citation omitted).
“Any further detention must be based on consent or probable cause.” Martinez-Fuerte, 

 (alterations and internal quotation marks omitted) (quoting United States v.
Brignoni-Ponce, 

 (1975)).

{19} Routine interior fixed-checkpoint stops generally involve “questions concerning the
motorist’s citizenship or immigration status, and a request for documentation.”
Rascon-Ortiz, 

. “A cursory visual inspection of the vehicle is also routine,
and a few brief questions concerning such things as vehicle ownership, cargo, destination,
and travel plans may be appropriate if reasonably related to the agent’s duty to prevent”
illegal immigration and the smuggling of contraband. 

 (citation omitted). However,
“neither the vehicle nor its occupants” can be searched as part of a “routine inquiry,” and the
“visual inspection of the vehicle is limited to what can be seen without a search.” United
States v. Ludlow, 

 (10th Cir. 1993). Thus, the routine stops permitted

                                              6
under the interior fixed-checkpoint doctrine are less intrusive upon travelers’ privacy than
the routine searches permitted at an international border checkpoint under the border search
doctrine. Compare Whitted, 

 (discussing the scope of routine searches
allowed under the border search doctrine), with Ludlow, 

 (discussing the
scope of routine inquiries allowed under the interior fixed-checkpoint doctrine); see also
Rascon-Ortiz, 

 n.4 (“[A] citizen’s Fourth Amendment rights at a checkpoint
located on the border, or its functional equivalent, are significantly less than inside the
border.”).

{20} Because the search in this case occurred at an international border checkpoint, we
analyze the constitutionality of the search under the border search doctrine and conclude that
Sanchez’s referral to a secondary area was a permissible part of a routine border search. See
Klein, 

. Because the canine drug-sniff was performed during the course of
this routine search, the drug-sniff was also permissible under federal law. See United States
v. Kelly, 

 (5th Cir. 2002) (holding that the use of a trained canine to
sniff a pedestrian entering the United States is a permissible part of a routine border search,
even without a showing of individualized suspicion of illicit activity).

{21} The parties agree that the federal constitution does not confer upon Sanchez the right
to be free of prolonged detention, even if the detaining officer lacked reasonable suspicion
of illicit activities. Because there was no federal constitutional violation, we proceed to the
state constitutional claim. See Gomez, 

.

II.    There are no reasons to diverge from the federal border search doctrine

{22} Under New Mexico law, we “may diverge from federal precedent for three reasons:
a flawed federal analysis, structural differences between state and federal government, or
distinctive state characteristics”; this is also known as the interstitial approach. See 

 We
do not detect a flaw in the federal analysis concerning the border search doctrine. A rule that
more robustly curbs the ability of law enforcement to conduct border searches “would
frustrate the customary examinations conducted by customs officials as normal incidents of
the meeting of their responsibilities.” Blefare v. United States, 

 (9th Cir.
1966). The border search doctrine thus acknowledges the “exigencies present and the vital
national interest demanding the regulation of who and what traverse our borders.” Blefare,

.

{23} As in Cardenas-Alvarez, we also conclude that there are no structural differences
between state and federal governments so as to require a departure from federal precedent.

. Moreover, Sanchez does not argue that structural differences should
warrant a departure. She contends instead that “New Mexico law provides several
distinctive characteristics that require departure.”

{24} Sanchez contends that New Mexico has distinctively provided heightened protections
from searches and seizures “in both the automobile context and in the border context.” She

                                              7
urges us to extend Cardenas-Alvarez to hold that Pedroza violated Article II, Section 10
when she referred Sanchez to a secondary area of an international border checkpoint to
complete the inspection of Sanchez’s van. Cardenas-Alvarez relied upon “the extra layer
of protection that New Mexico offers its motorists” to justify heightened search and seizure
protections at interior fixed checkpoints. Id. ¶¶ 1, 16. Thus, Sanchez would have us hold
that the scope of travelers’ rights at international border checkpoints are identical to the
scope of rights at interior fixed checkpoints.

{25} Cardenas-Alvarez concerned stops at interior fixed checkpoints, and it accordingly
analyzed the facts of the case under the interior fixed-checkpoint doctrine. Id. ¶¶ 1-2, 16.
New Mexico has rejected the “notion that an individual lowers his [or her] expectation of
privacy when he [or she] enters an automobile, and elected instead to provide motorists with
a ‘layer of protection’ from unreasonable searches and seizures that is unavailable at the
federal level.” Id. ¶ 15 (citation omitted). “Therefore, in New Mexico, we . . . proscribe the
prolongation of [an interior fixed-]checkpoint stop once questions regarding citizenship and
immigration status have been answered, unless the officer conducting the stop reasonably
suspects the defendant of criminal activity.” Id. ¶ 16. In contrast, under the federal interior
fixed-checkpoint doctrine, “questions regarding travel plans and the referral of a defendant
from primary to secondary part of a routine border checkpoint stop . . . require[] no suspicion
of criminal activity . . . .” Id.

{26} While Cardenas-Alvarez departed from the federal interior fixed-checkpoint doctrine,
it did not analyze the federal border search doctrine. See generally id. “The general rule is
that cases are not authority for propositions not considered.” Fernandez v. Farmers Ins. Co.
of Arizona, 

, ¶ 15, 

, 

 (internal quotation marks and
citations omitted). Consequently, Cardenas-Alvarez cannot be read as modifying the federal
border search doctrine, which is implicated by the facts of this case. We therefore determine
whether the extra layer of protection afforded to New Mexico motorists mandates departure
from the federal border search doctrine.

{27} Determining the permissibility of a search or seizure involves balancing
governmental interests with the individual’s right to privacy. See Montoya de Hernandez,

. When individuals engage in certain courses of action, their privacy
interests may be diminished within the context of a permissible search or seizure. See
Almeida-Sanchez, 

. For example, when a gun dealer “chooses to engage in
[a] pervasively regulated business and to accept a federal license, he [or she] does so with
the knowledge that his [or her] business records, firearms and ammunition will be subject
to effective inspection.” 

 Likewise, an individual who presents himself or herself at an
international border checkpoint for admission to the United States has a lesser expectation
of privacy than he or she would have at an interior fixed checkpoint. See Montoya de
Hernandez, 

.

{28} We conclude that the extra layer of protection for motorists that New Mexico law
provides is not a distinctive state characteristic that increases the individual’s expectation

                                              8
of privacy at an international border checkpoint. Cardenas-Alvarez was premised on the fact
that motorists in New Mexico have a greater expectation of privacy than that which is
protected by federal law at interior fixed checkpoints. 

. “Since
not all individuals that are required to stop at a permanent checkpoint have been outside the
United States but are New Mexico motorists lawfully traveling on New Mexico’s highways,
New Mexico has an interest in providing some protection to individuals who are compelled
to pass through a checkpoint.” Id. ¶ 53 (Baca, J., concurring in the result); see also Carroll
v. United States, 

 (1925) (“[T]hose lawfully within the country, entitled
to use the public highways, have a right to free passage without interruption or search unless
there is known to a competent official, authorized to search, probable cause for believing that
their vehicles are carrying contraband or illegal merchandise.”). However, traffic passing
through an international border checkpoint is international in nature, not domestic. See
United States v. Jackson, 

 (5th Cir. 1986) (Reavley, J., specially
concurring) (“[S]earches conducted at locations functionally equivalent to a border interdict
the same kind of traffic stopped at our nation’s borders: international traffic.”), aff’d on
reh’g, 

 (5th Cir. 1987). Thus, traffic passing through international border
checkpoints do not contain domestic travelers who have heightened expectations of privacy
that are idiosyncratic to the state in which they are traveling; all international travelers have
a lessened expectation of privacy because they present themselves at the border for entry into
the United States. See Montoya de Hernandez, 

 (“[N]ot only is the
expectation of privacy less at the border than in the interior, the Fourth Amendment balance
between the interests of the Government and the privacy right of the individual is also struck
much more favorably to the Government at the border.” (citations omitted)). Thus, the extra
layer of protection that vindicates the privacy interests of domestic travelers is not implicated
at international border checkpoints. We therefore decline to depart from the federal border
search doctrine.

{29} We also note that fighting illegal immigration and smuggling present significant
problems for federal law enforcement. See, e.g., Montoya de Hernandez, 

(“These cases reflect longstanding concern for the protection of the integrity of the border.
This concern is, if anything, heightened by the veritable national crisis in law enforcement
caused by smuggling . . . illegal narcotics . . . .”); Martinez-Fuerte, 

(“Interdicting the flow of illegal entrants . . . poses formidable law enforcement problems.”).
Differences between state and federal search and seizure rules create “very serious and, in
some cases, seemingly insoluble problems for law enforcement officials.” James W. Diehm,
New Federalism and Constitutional Criminal Procedure: Are We Repeating the Mistakes
of the Past?, 

, 263 (1996). Such problems include the generation of
choice of law issues and the prospect of increasing litigation. See id. at 250-55. Therefore,
we conclude that departing from the federal border search doctrine would exacerbate law
enforcement issues at the international border.

{30} The United States Supreme Court has stated that “[t]here is no war between the
[United States] Constitution and common sense.” Mapp v. Ohio, 

 (1961),
limited on other grounds by United States v. Leon, 

, 906, 928 (1984). Likewise,

                                               9
there is no need for the New Mexico Constitution to conflict with common sense.
“Federal-state cooperation in the solution of crime under constitutional standards will be
promoted, if only by recognition of their . . . mutual obligation to respect the same
fundamental criteria in their approaches.” Id. at 658. Our refusal to depart from the federal
border search doctrine acknowledges the significant law enforcement problems at an
international border checkpoint where it is known that a motorist is entering from outside
the country, thereby vindicating common sense and furthering federal-state cooperation.

CONCLUSION

{31} We reverse the decision of the Court of Appeals in Sanchez, Ct. App. No. 32,994,
and also reverse the district court’s suppression of the evidence.

{32}   IT IS SO ORDERED.

                                              ____________________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

___________________________________
BARBARA J. VIGIL, Chief Justice

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
RICHARD C. BOSSON, Justice

___________________________________
CHARLES W. DANIELS, Justice




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