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Search and Seizure for Police and Prosecutors

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III. Border Stops and Other Roadblocks

 

  1. Border stops and other roadblocks.
    1. Border stops. Evidence seized during a border stop is admissible in a state court only if the stop and the seizure were valid under the New Mexico Constitution.
      1. Valid border stop at an interior fixed checkpoint.
        1. Motorists must stop at border checkpoints; reasonable suspicion and probable cause are not required.
        2. Routine questioning is allowed to inquire about citizenship and immigration status.
        3. Prolonging or expanding the stop to inquire beyond citizenship and immigration status requires reasonable suspicion of criminal activity to the same degree as an investigatory stop.
      2. Valid border stop at the international border or its equivalent.
        1. Motorists must stop; reasonable suspicion and probable cause are not required.
        2. Routine questioning is allowed and may include questions regarding:
          1. citizenship,
          2. trip origin and destination,
          3. vehicle ownership, license & registration.
        3. Referral to a secondary checkpoint is routine and does not require reasonable suspicion or probable cause.
        4. Routine searches are allowed, without reasonable suspicion or probable cause, and can include:
          1. patdowns,
          2. frisks,
          3. luggage searches, and
          4. automobile searches.
    2. Roadblocks.
      1. A roadblock is a seizure.
        1. A roadblock does not require reasonable suspicion or probable cause; a roadblock need only be reasonable.
        2. The reasonableness of a roadblock is determined by balancing the following:
          1. the gravity of the public concern served by the roadblock,
          2. the degree to which the roadblock advances the public concern,
          3. the severity of the interference with individual liberty, security and privacy resulting from the roadblock
        3. Facts evaluated in determining the reasonableness of a roadblock:
          1. role of supervisory personnel,
          2. restrictions on the discretion of field officers,
          3. safety of motorists and field officers,
          4. location of the roadblock,
          5. indicia of official nature of the roadblock,
          6. length and nature of detention, and
          7. advance publicity.
      2. Roadblocks found to be reasonable:
        1. Sobriety and DWI checkpoints, and
        2. Roadblocks conducted to detect violations of licensing, registration and insurance laws.
Border Stops

Evidence seized during a border patrol stop by a state or local police officer or a federal Border Patrol agent is admissible in a state court61 only if the stop and the seizure complied with the requirements of the New Mexico Constitution.62 The requirements for a valid border patrol stop depend on whether the stop occurs at an interior fixed checkpoint, or at the international border or its functional equivalent.63

Under both the federal and state constitutions, a vehicle may be stopped at a fixed checkpoint for the purpose of checking the citizenship status of the occupants of the vehicle.64 New Mexico requires more than the Fourth Amendment requires, however, when an officer or agent prolongs or expands a stop at an interior fixed checkpoint to inquire beyond citizenship and immigration status.65 Under the state constitution, an officer or agent who prolongs or expands the initial checkpoint stop to inquire beyond citizenship and immigration status must have individualized reasonable suspicion of criminal activity.66 In addition, the scope of the expanded stop must be limited to investigating the particular suspicion.67

On the other hand, New Mexico does not depart from federal precedent with respect to the requirements for a valid stop at the international border or its equivalent. 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.68 In so doing, the Court adopted the distinction applied by federal courts between the “border search doctrine” and the “interior fixed-checkpoint doctrine.”69 That distinction is based on the diminished expectation of privacy of persons who “present themselves at the border for entry into the United States,”70 and the government’s substantial interest in “preventing the entry of unwanted persons and effects.”71

Thus, during a stop at the international border, or its functional equivalent,72 officers and agents “‘may conduct routine searches of persons and effects crossing the border even in the absence of individualized suspicion.’”73 Referral to a secondary checkpoint is considered routine, and also does not require individualized suspicion. “Routine searches” during a stop at the international border “include ‘patdowns, frisks, luggage searches, and automobile searches.’”74

Roadblocks

Although a roadblock is a seizure, it does not require reasonable suspicion or probable cause with respect to a particular motorist; rather, a roadblock must be reasonable.75 The reasonableness of a roadblock provides a constitutionally adequate substitute for the reasonable suspicion that would otherwise be required to justify detention of vehicles and questioning of their occupants.76 The reasonableness of a roadblock is determined by a balancing test, whereby the court balances the gravity of the governmental interest or public concern served by the roadblock, the degree to which it advances these concerns and the severity of the interference with individual liberty, security, and privacy resulting from the roadblock.77

The factors for determining the reasonableness of a roadblock are: (1) the role of supervisory personnel in conducting the roadblock, (2) the restrictions imposed on the discretion of field officers conducting the roadblock, (3) the precautions taken to ensure the safety of the motorists and field officers, (4) the reasonableness of the location of the roadblock, (5) the indicia of the official nature of the roadblock, (6) the length and nature of the detention of motorists passing through the roadblock, and (7) the extent to which the roadblock was publicized in advance.78 Roadblocks conducted by police as part of sobriety checkpoints,79 and roadblocks conducted to detect violations of licensing, registration, and insurance laws have been found to be reasonable.80

ENDNOTES

61 To be admissible in a federal court, evidence seized during a border patrol stop need only comply with the Fourth Amendment, which allows expansion of such stops beyond routine questioning based on suspicious circumstances, which is a lower standard than reasonable suspicion.  See United States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976); United States v. Massie, 65 F.3d 843, 848 (10th Cir. 1995) (citing United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993)). Reasonable suspicion is not required under the Fourth Amendment until the officer or agent decides to prolong the detention beyond routine questioning. State v. Porras-Fuerte, 1994-NMCA-141, ¶ 14, 119 N.M. 180, 889 P.2d 215; accord State v. Affsprung, 1993-NMCA-056, ¶ 10, 115 N.M. 546, 854 P.2d 873 (citing Cohen, 1985-NMSC-111, ¶¶ 13-14). In addition, “routine questioning” is broader under the Fourth Amendment, which allows questions about vehicle ownership, destination, cargo and travel plans, in addition to citizenship. Martinez-Fuerte, 428 U.S. at 566-67; Massie, 65 F.3d at 848.

62 See State v. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 18, 20, 130 N.M. 386, 25 P.3d 225.

63 State v. Sanchez, 2015-NMSC-018, ¶¶ 14-19, 350 P.3d 1169.

64 See State v. Estrada, 1991-NMCA-026, ¶ 5, 111 N.M. 798, 810 P.2d 026; Cardenas-Alvarez, 2001-NMSC-017, ¶ 16 (citing Estrada as foundation for interpreting the state constitution as requiring reasonable suspicion to justify prolonging or expanding the initial checkpoint stop).

65 Cardenas-Alvarez, 2001-NMSC-017, ¶ 16; Sanchez, 2015-NMSC-018, ¶ 25.

66 Id.

67 See State v. Robbs, 2006-NMCA-061, ¶ 23, 139 N.M. 569, 136 P.3d 570 (“the scope of the search and seizure must be justified by and limited to the circumstances that created reasonable suspicion for the stop”). (See the section of this manual entitled “Stopping a Person or Vehicle.”)

68 Sanchez, 2015-NMSC-018, ¶ 9.

69 Id. ¶¶ 15-18.

70 Id. ¶ 28.

71 Id. ¶ 13 (quoting United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).

72 “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.’” Sanchez, 2015-NMSC-018, ¶ 15 (quoting United States v. Garcia, 672 F.2d 1349, 1365 (11th Cir.1982)).

73 Sanchez, 2015-NMSC-018, ¶ 14 (quoting United States v. Ezeiruaku, 936 F.2d 136, 140 (3d Cir.1991)).

74 Sanchez, 2015-NMSC-018, ¶ 14 (quoting United States v. Whitted, 541 F.3d 480, 485 (3d Cir.2008)).

75 State v. Bates, 1995-NMCA-080, ¶ 9, 120 N.M. 457, 902 P.2d 1060.

76 State v. Bolton, 1990-NMCA-107, ¶ 8, 111 N.M. 28, 801 P.2d 98.

77 State v. Madalena, 1995-NMCA-122, ¶ 12, 121 N.M. 63, 908 P.2d 756.

78 City of Las Cruces v. Betancourt, 1987-NMCA-039, ¶¶ 14-21, 105 N.M. 655, 735 P.2d 1161.

79 Bates, 1995-NMCA-080.

80 Bolton, 1990-NMCA-107.