IV. Search of a Vehicle During a Border Patrol Stop
- Search of a vehicle during a border patrol stop.
- Federal Border Patrol agents may search a vehicle based solely on probable cause; exigent circumstances are not required.
- New Mexico police conducting a border stop are subject to state law limitations on warrantless searches.
- Police may search with consent, or
- Police must have probable cause to search, plus exigent circumstances.
When federal standards apply, Border Patrol agents, engaged in policing of the national border with no state police officer involved, are permitted immediately to search once probable cause is established by dog alert or otherwise.56 Such a search is lawful under the Fourth Amendment even if New Mexico’s Constitution would have required exigent circumstances or a warrant. But the lawfulness of the seizure under federal law does not necessarily make the evidence admissible in a New Mexico court.57 “[T]he 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.”58
Thus, a New Mexico peace officer at an interior fixed border checkpoint is only authorized to conduct a search for contraband or illegal immigrants to the extent permitted for any other type of illegal conduct.59 Under Article II, Section 10 of the New Mexico Constitution, “a warrantless search of an automobile and its contents requires a particularized showing of exigent circumstances” in addition to probable cause.60 The exigent circumstances that may justify a border search are the same circumstances that may justify any other warrantless search of a vehicle: the situation must require swift action to prevent imminent danger or to forestall the imminent escape of a suspect or destruction of evidence.61 A warrantless search is valid if an objective view of the facts demonstrates that the officer’s view that exigent circumstances existed was reasonable, and “[i]f reasonable people might differ about whether exigent circumstances existed, we defer to the officer’s good judgment.”62
A different rule applies at an international border checkpoint. The New Mexico Supreme Court has declined to interpret Article II, Section 10 of the state constitution as requiring individualized suspicion of criminal activity for prolonging detentions at an international border checkpoint.63 In so doing, the Court adopted the distinction applied by federal courts between the “border search doctrine” and the “interior fixed-checkpoint doctrine.”64 That distinction is based on the diminished expectation of privacy of persons who “present themselves at the border for entry into the United States,”65 and the government’s substantial interest in “preventing the entry of unwanted persons and effects.”66 At an international border checkpoint, officers have wide latitude in conducting searches of persons and effects crossing the border, including referral to a secondary checkpoint where officers may conduct a pat down of the motorist, and search the vehicle and luggage without first developing individualized suspicion of illicit activity.67
ENDNOTES
56 California v. Acevedo, 500 U.S. 565, 571 (1991); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.1994).
57 See State v. Gallegos, 2003-NMCA-079, ¶ 21, 133 N.M. 838, 70 P.3d 1277.
58 State v. Sanchez, 2015-NMSC-018, ¶ 10, 350 P.3d 1169 (citing State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 20, 130 N.M. 386, 25 P.3d 225).
59 Id.
60 Gomez, 1997-NMSC-006, ¶ 39.
61Gomez, 1997-NMSC-006, ¶ 40. See infra at pp. 109-111.
62 Id.
63 Sanchez, 2015-NMSC-018, ¶ 9.
64 Id. ¶¶ 15-18.
65 Id. ¶ 28.
66 Id. ¶ 13 (quoting United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).
67 Sanchez, 2015-NMSC-018, ¶ 28.