1998 -NMCA- 166, State v. Snyder

Page 843

967 P.2d 843

126 N.M. 168, 1998 -NMCA- 166

STATE of New Mexico, Plaintiff-Appellee, v. Larry SNYDER, Defendant-Appellant.

No. 18,661.

Court of Appeals of New Mexico.

Sept. 16, 1998.

Certiorari Denied, No. 25, 407,

Nov. 4, 1998.

Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, for Appellant.

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, p 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 warrantless 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, p 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 warrantless 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, p 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, p 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, p 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, p 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. p 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. p 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 Law

¶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, p 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, p 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 New 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, p 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'...