State v. Leyva

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 12:51:57 2011.04.27
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-009

Filing Date: February 17, 2011

Docket No. 32,067

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RAUL LEYVA,

Defendant-Appellant.

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
Stephen Bridgforth, District Judge

Hugh W. Dangler, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Gary K. King, Attorney General
Anita Carlson, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

SERNA, Justice.

{1} The right of the people to be free from unreasonable searches and seizures is
protected by both the Fourth Amendment of the United States Constitution and Article II,
Section 10 of the New Mexico Constitution. While the protections of the Fourth
Amendment have been incorporated against the states, under New Mexico’s interstitial
approach to state constitutional interpretation, the rights provided under the two constitutions
are not necessarily coextensive. In order to receive greater protections that may be conferred
by the state constitution, however, a criminal defendant must properly preserve his or her

1
state constitutional argument.

{2} Defendant Raul Leyva asserts that his rights under both the United States and New
Mexico Constitutions were violated when he was stopped for a traffic law infraction and the
questions of the investigating officer were not justified by the initial reason for the stop, and
that the district court erred in denying his motion to suppress evidence gathered as a result
of the questioning. In State v. Duran, we employed a two-part test under the Fourth
Amendment for questioning during traffic stops, using the analysis set forth in Terry v. Ohio,
392 U.S. 1, 19-20 (1968), requiring all questions to be reasonably related to the initial reason
for the stop or supported by independent and articulable reasonable suspicion. 2005-NMSC-
034, ¶¶ 23, 35, 138 N.M. 414, 120 P.3d 836. This rule is in conflict, however, with three
more recent cases from the United States Supreme Court, Illinois v. Caballes, 543 U.S. 405
(2005), Muehler v. Mena, 544 U.S. 93 (2005), and Arizona v. Johnson, ___ U.S. ___, 129
S.Ct. 781 (2009), which together created a temporal bright-line rule under the Fourth
Amendment for questioning during traffic stops.

{3} We accepted this case on certification from the Court of Appeals to address the
continued vitality of the rule we set forth in Duran and exercise jurisdiction under NMSA
1978, Section 34-5-14(C)(1) (1972). We hold that, in light of recent United States Supreme
Court Fourth Amendment cases, Duran’s Fourth Amendment analysis is no longer valid.
Analyzing the seizure under the Fourth Amendment, we conclude that Leyva’s rights under
the Fourth Amendment were not violated. We then review our preservation requirements
for rights asserted under the New Mexico Constitution, and find that Leyva preserved his
argument under Article II, Section 10. Because Article II, Section 10 provides greater
protections against unreasonable searches and seizures than does the Fourth Amendment,
we maintain the Duran standard for reviewing searches and seizures under the New Mexico
Constitution. After considering Leyva’s rights under Article II, Section 10, we affirm the
Third Judicial District Court’s denial of Leyva’s motion to suppress.

I. BACKGROUND

{4} On January 21, 2007, Officer Jeremy Hash of the Mesilla Marshals Department
clocked Leyva traveling at a speed in excess of the posted speed limit. Officer Hash
activated his emergency lights and Leyva stopped a short way down the road, a distance
Officer Hash described as normal due to the road’s narrow width at the point where he
initiated the stop. Before Leyva stopped, Officer Hash observed Leyva remove one hand
from the steering wheel and lean to the right for about ten seconds, with the appearance of
“stuffing something under the [passenger] seat,” an action the officer found consistent with
concealing a weapon or contraband and raising safety concerns. Officer Hash asked for and
received Leyva’s license, which was reported to be suspended. Following department
policy, Officer Hash informed Leyva he could telephone someone to retrieve the car within
ten minutes or the car would be impounded. Leyva arranged for someone to pick up the car.
Officer Hash did not observe any suspicious activity during the stop, other than Leyva’s
movement before he pulled over.

2
{5} Officer Hash completed his traffic investigation and issued three citations within
approximately ten minutes after the stop was initiated. He then asked Leyva, “Before I turn
this vehicle over to anyone else is there anything in it that I need to know about? . . . [Are
there] any knives, needles, guns, or drugs[?]” Leyva responded that there was marijuana in
the car, and, when asked, consented to a search of the car. Beginning by searching in the
area where he had observed Leyva’s movement prior to stopping, Officer Hash discovered
a tin containing what he suspected to be marijuana underneath the passenger seat; Leyva
confirmed that it was marijuana. Continuing to search the passenger compartment of the car,
Officer Hash found what he suspected to be, and what later tested positive as,
methamphetamine. Leyva was arrested and transported to the police station. He was
charged with possession of marijuana, methamphetamine, and drug paraphernalia.

{6} Leyva filed a motion to suppress the evidence discovered as a result of Officer
Hash’s questioning after the traffic citations had been issued. Leyva argued that the initial
stop had been completed when Officer Hash initiated further questioning without
justification, constituting an unreasonable seizure under the Fourth Amendment and Article
II, Section 10. At the hearing on the motion to suppress, Officer Hash was the only witness.
In addition to testifying to the facts set forth above, he testified that in his experience of eight
years as an officer, individuals who appeared to be hiding something when a stop was
initiated often were discovered to be in possession of contraband. The district court denied
the motion to suppress, making the following findings:

1. Deputy Officer Hash was reasonable in his belief that he observed the
Defendant hiding something under the front passenger seat after the
deputy activated his emergency equipment.
2. This action by the Defendant provided sufficient reasonable suspicion
of hiding contraband to warrant Deputy Officer Hash to ask if there
was anything in the car that he should know about such as
contraband.
3. Deputy Officer Hash only inquired about possible contraband after
he had completed the citations and returned all of the Defendant’s
documents.
4. The Defendant was not under arrest, and was not going to be arrested,
so Miranda does not apply.
5. The Defendant voluntarily told the Deputy that he had marijuana in
his vehicle and allowed the Deputy to search the vehicle.
6. There was no coercion in the form of the Deputy’s question or his
conduct.

Leyva subsequently pled guilty to possession of a controlled substance, drug paraphernalia,
and marijuana, conditioned upon the right to appeal the denial of his motion to suppress. He
appealed to the Court of Appeals, and we accepted certification from that Court.

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II. ANALYSIS

A. The Fourth Amendment

{7} “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend.
IV.

1. The effect of recent United States Supreme Court opinions on our Fourth
Amendment analysis developed in Duran.

{8} The Fourth Amendment guarantees the right of the people to be free from
unreasonable searches and seizures. See United States v. Sharpe, 470 U.S. 675, 682 (1985).
In this section we review our most recent pronouncement on the limitations of police
questioning during a traffic stop, subsequent cases from the United States Supreme Court,
and the effect of those cases on the Fourth Amendment analysis to be employed by the courts
of New Mexico.

{9} The Fourth Amendment, incorporated against state actors via the Fourteenth
Amendment, see Wolf v. Colorado, 338 U.S. 25, 28 (1949), overruled on other grounds by
Mapp v. Ohio, 367 U.S. 643, 653 (1961), requires that all searches and seizures be
reasonable in their execution, see Terry, 392 U.S. at 9. The test for whether a search or
seizure was reasonable is objective. See Whren v. United States, 517 U.S. 806, 814 (1996).
“Reasonableness, of course, depends on a balance between the public interest and the
individual's right to personal security free from arbitrary interference by law officers.”
Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam) (internal quotation marks
omitted).

{10} A law enforcement officer who stops a vehicle to investigate a traffic violation seizes
the occupants. See State v. Funderburg, 2008-NMSC-026, ¶ 13, 144 N.M. 37, 183 P.3d 922.
Although traffic stops often are made when the officer has probable cause to believe that a
law has been violated, see United States v. Shabazz, 993 F.2d 431, 434-35 (5th Cir. 1993),
courts generally analyze traffic stops under Terry, because they “resemble, in duration and
atmosphere, the kind of brief detention authorized in Terry,” Johnson, ___ U.S. at ___, 129
S.Ct. at 786 (quoting Berkemer v. McCarty, 468 U.S. 420, 439 n.29 (1984)); see also Duran,
2005-NMSC-034, ¶ 23 (stating that New Mexico courts apply the Terry analysis to traffic
stops). The two-part Terry analysis looks at “‘[1] whether the officer’s action was justified
at its inception, and [2] whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.’” Duran, 2005-NMSC-034, ¶ 23 (quoting
Terry, 392 U.S. at 20). The scope of the investigation may be expanded “‘where the officer
has reasonable and articulable suspicion that other criminal activity has been or may be
afoot.’” Id. (quoting State v. Taylor, 1999-NMCA-022, ¶ 20, 126 N.M. 569, 973 P.2d 246).
Unrelated questions may also be posed where the stop has ended and a consensual encounter
has developed. See, e.g., United States v. Chavira, 467 F.3d 1286, 1290-91 (10th Cir. 2006)

4
(stating that a traffic stop may become a consensual encounter after the officer has returned
the driver’s documents and the driver reasonably understands that the stop is over). Where
evidence has been obtained as a result of questions not justified under the Fourth
Amendment, suppression of that evidence is the proper remedy. See State v. Rivera,
2010-NMSC-046, ¶ 28, 148 N.M. 659, 241 P.3d 1099.

a. State v. Duran

{11} In Duran, we applied the Terry analysis to determine when questions posed about
travel plans during traffic stops are reasonable under the Fourth Amendment. The defendant
was stopped for failure to display a license plate. 2005-NMSC-034, ¶ 3. During the stop,
the police officer questioned the defendant and her passenger about their travel plans and
made observations leading him to believe drugs were concealed in the car. Id. ¶¶ 4-14.
After completing the traffic citations, the officer continued to question the defendant and
requested consent to search her vehicle, which was granted. Id. ¶¶ 14-16. Marijuana was
discovered in the gas tank, and the defendant was arrested. Id. ¶ 16.

{12} Employing the two-part Terry analysis, we framed the question on appeal in Duran
as whether “a police officer impermissibly expands the scope of the search or seizure beyond
the justification for the initial stop by inquiring into a motorist’s travel plans or whether such
questions are reasonably related to the initial justification for a traffic stop.” Id. ¶ 26.
Reviewing cases from the federal courts of appeal, we noted a split of authority in the
reasoning but a “definite consensus that inquiries into a motorist’s travel plans are
permissible . . . .” Id. The Eighth, Ninth, and Tenth Circuits conducted a case-by-case
analysis, concluding that questions about travel plans generally were permissible because
they are “usually related to the purpose of the stop and further valid governmental law
enforcement interests” and because “the intrusion to the public is normally minimal.” Id.
¶¶ 28-29. In contrast, the Fifth and Seventh Circuits applied a bright-line test, under which,
“if the questions asked do not lengthen the stop, the questions are valid.” Id. ¶ 31.

{13} We adopted the former analysis, relying specifically on United States v. Holt, 264
F.3d 1215 (10th Cir. 2001), and United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001),
because “[o]ur case law has consistently disfavored a bight-line test in analyzing Fourth
Amendment questions.” Duran, 2005-NMSC-034, ¶ 34. We rejected the latter approach
“because it ignores the scope requirement of the second[] prong of the Terry test, which our
case law has consistently recognized as appropriate to analyze traffic stops.” Id. ¶ 33.
Duran articulated the Fourth Amendment analysis to be applied in our courts:

[A]ll questions asked by police officers during a traffic stop must be analyzed
to ensure they are reasonably related to the initial justification for the stop or
are supported by reasonable suspicion. . . . [T]his determination must also
include an examination of both the length of the detention and the manner in
which it is carried out. The length of the detention should be reasonably
limited to the time it takes to complete the underlying justification for the

5
 stop. Further, the scope of the questioning should be limited, as well.

Id. ¶ 35 (internal quotation marks and citation omitted).

{14} Although Duran concluded that the Fourth Amendment contained a subject-matter
scope limitation, that analysis was not determinative to the Court’s holding. Duran
determined that the questions asked of the defendant and her passenger while the officer was
completing the tasks necessary to issue the citations “resulted in no additional delay.” Id.
¶ 37. The responses to the officer’s questions, as well as the officer’s observations during
the stop, then gave the officer “reasonable suspicion that criminal activity may have been
afoot. Thus, [the officer] permissibly expanded the scope of the stop by asking about drugs
or large amounts of currency, and then requesting consent to search the vehicle.” Id. ¶ 38.
Duran concluded that the district court did not err by denying the suppression motion. Id.
¶ 42.

b. Caballes, Muehler, and Johnson overrule Duran’s subject-matter limitation on
questions during traffic stops.

{15} Subsequent to Duran, the United States Supreme Court issued three opinions that
together adopted the approach to questioning during traffic stops that Duran rejected. In
2005, Caballes held that a dog sniff, conducted during the time necessary to complete an
otherwise lawful stop, revealing no information other than the presence of contraband, did
not violate the defendant’s Fourth Amendment rights. 543 U.S. at 409. The same term, the
Court held in Muehler that Fourth Amendment rights are not violated by investigative
questioning unrelated to the reason for the initial seizure so long as the questioning does not
prolong the length of the detention, as “mere police questioning does not constitute a
seizure.” 544 U.S. at 100-01 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)).
Neither case cited to Terry. More recently, in Johnson the Court applied Terry and Muehler
to a traffic stop, during which a passenger was frisked, and held that when the initial stop is
lawful and the passenger is not free to leave during the duration of the stop, unrelated
questions are permitted so long as they “do not measurably extend” the length of the stop.
Johnson, ___ U.S. at ___, 129 S.Ct. at 788 (citing Muehler, 544 U.S. at 100-01).

{16} The cases Duran relied upon in rejecting a bright-line approach to police questioning
are no longer valid in light of Caballes, Muehler, and Johnson. The Ninth and Tenth
Circuits have concluded that Murillo and Holt, respectively, were overruled by the United
States Supreme Court’s explicit adoption in Muehler of a bright-line analysis in determining
limits on the scope of police questioning during a lawful stop. In United States v. Mendez,
the Ninth Circuit held that the defendant’s Fourth Amendment rights were not violated by
police questioning that, though unrelated to the initial justification of the stop, did not
unnecessarily prolong the length of the stop. 476 F.3d 1077, 1080-81 (9th Cir. 2007).
Likewise, in United States v. Stewart, the Tenth Circuit concluded that, after Muehler, “[t]he
correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an
officer’s traffic stop questions extended the time that a driver was detained, regardless of the

6
questions’ content.” 473 F.3d 1265, 1269 (10th Cir. 2007) (internal quotation marks and
citations omitted). In Stewart, the Tenth Circuit held that a question about weapons in the
car was permissible because the question “did not extend the length of the detention.” Id.

{17} The creation by the United States Supreme Court of a bright-line rule for permissible
questioning during traffic stops under the Fourth Amendment is incompatible with the
approach we adopted in Duran. To the extent that Duran rejected the bright-line approach
and adopted a case-by-case approach to determine whether police questioning during an
otherwise legal traffic stop violates the Fourth Amendment, it is overruled.1 The proper
Fourth Amendment inquiry, as stated by the Tenth Circuit, “‘is whether an officer’s traffic
stop questions extended the time that a driver was detained, regardless of the questions’
content.’” Stewart, 473 F.3d at 1269 (quoting Muehler, 544 U.S. at 101).

c. The Terry scope analysis considers the reasonableness of the length of the
detention during a traffic stop.

{18} The Terry analysis remains applicable to traffic stops. While even members of the
United States Supreme Court initially viewed the bright-line rule as effectively discarding
the scope requirement of a Terry stop, see Caballes, 543 U.S. at 421 (Ginsburg, J.,
dissenting) (“In my view, the Court diminishes the Fourth Amendment’s force by
abandoning the second Terry inquiry (was the police action reasonably related in scope to
the circumstances justifying the initial interference).” (internal quotation marks, citation, and
brackets omitted)), application of Caballes, Muehler, and Johnson by lower courts
underscores that those cases modified, rather than abandoned, the second prong of the Terry
test. The temporal limitations on Terry stops continue to define the limits of the
reasonableness of the scope of the investigation. See United States v. Everett, 601 F.3d 484,
488 (6th Cir. 2010) (“Under Terry’s duration prong, a stop must last no longer than is
necessary to effectuate the purpose of the stop.” (internal quotation marks, citation, and
ellipses omitted)). The questions posed during a traffic stop no longer need to be reasonably
related to the initial justification of the stop in order to be permissible under the Fourth
Amendment; the length of the stop, however, is limited by the time required to conduct a
reasonable investigation into the initial justification for the stop. See id. at 488-89; Shabazz,
993 F.2d at 438; State v. Jenkins, 3 A.3d 806, 828-29 (Conn. 2010).

{19} In sum, after an officer has made a stop based on at least reasonable suspicion of
criminal activity, “[a]n officer’s subsequent actions are not reasonably related in scope to the
circumstances that caused him to stop the vehicle if he detains its occupants beyond the time
needed to investigate the circumstances that caused the stop, unless he develops reasonable

1
The New Mexico Court of Appeals cases Duran explicitly characterized as
“continu[ing] to be good law[,]” 2005-NMSC-034, ¶ 41, Taylor, 1999-NMCA-022, and City
of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93, also are
overruled to the extent they are inconsistent with this Opinion.

7
suspicion of additional criminal activity in the meantime.” United States v. Pack, 612 F.3d
341, 350 (5th Cir. 2010). Whether a detention becomes unreasonably prolonged depends
on “whether the police diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary to detain the
defendant.” Sharpe, 470 U.S. at 686. “The length of the detention should be reasonably
limited to the time it takes to complete the underlying justification for the stop.” Duran,
2005-NMSC-034, ¶ 35.

{20} While the temporal limitations of a Terry stop generally require an investigating
officer return a driver’s documents and permit the driver to depart as soon as the reason for
the traffic stop has been completed (unless, of course, the officer has developed reasonable
suspicion to conduct an investigation into other criminal activity), most courts have found
that a de minimis detention caused by questioning after the completion of the traffic stop is
not unreasonable under the Fourth Amendment. This is because reasonableness is the
touchstone of any Fourth Amendment analysis. See Everett, 601 F.3d at 492; see also
United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007) (“Whether a particular
detention is reasonable in length is a fact-intensive question, and there is no per se time limit
on all traffic stops.”). But see United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir.
1999) (finding that the traffic stop should have been completed as soon as the questions
related to the initial investigation were completed); 4 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 9.3 (4th ed. 2004 & Supp. 2010-11) (noting that
because the United States Supreme Court essentially removed the subject matter scope
limitation of Terry questioning, “that is all the more reason for holding firm on the matter
of temporal limits”). The rationale for permitting de minimis extensions of time also is
based in Johnson’s modification of the Muehler Court’s “no extension” standard to
permitting question so long as there is “no measurable extension” of the detention. Accord
State v. Morlock, 218 P.3d 801, 807-08 (Kan. 2009).

{21} This Court also has “refuse[d] to draw a bright-line, temporal cut-off point” for an
officer’s actions during a traffic stop under the Fourth Amendment. State v. Vandenberg,
2003-NMSC-030, ¶ 36, 134 N.M. 566, 81 P.3d 19; see also State v. Neal, 2007-NMSC-043,
¶ 39, 142 N.M. 176, 164 P.3d 57 (Bosson, J., dissenting) (stating that a de minimis detention
to conduct an investigation for reasons unrelated to the initial stop does not violate the
Fourth Amendment). Whether an officer’s questioning measurably extends the length of a
traffic stop remains the proper analysis under the Fourth Amendment. We agree with the
Sixth Circuit that a categorical ban on questions that extend the time of a stop is unwarranted
because “a police officer intent on asking extraneous questions could easily evade [a bright-
line rule] by delegating the standard traffic-stop routine to a backup officer, leaving himself
free to conduct unrelated questioning all the while, or simply by learning to write and ask
questions at the same time.” Everett, 601 F.3d at 492.2

2
Everett distinguished a prior Sixth Circuit case, United States v. Urrieta, 520 F.3d
569 (6th Cir. 2008), which held that questions asked in the twelve minutes the defendant was

8
{22} Extended detentions caused by questioning unrelated to the initial purpose of the stop
continue to violate the Fourth Amendment. See United States v. Peralez, 526 F.3d 1115,
1121 (8th Cir. 2008). To determine whether questioning creates an unreasonable detention,
the pertinent inquiry is whether the officer conducted the investigation diligently. See
Everett, 601 F.3d at 492 (“[W]e join our sister circuits in declining to construe Muehler and
Johnson as imposing a categorical ban on suspicionless unrelated questioning that may
minimally prolong a traffic stop.”). We adopt the Sixth Circuit’s articulation of the diligence
analysis:

[B]ecause the touchstone of any Fourth Amendment analysis is
reasonableness, we must conduct a fact-bound, context-dependent inquiry in
each case. Furthermore, we conclude that it would be inappropriate merely
to evaluate the reasonableness of the interval of prolongation in isolation.
Instead, the proper inquiry is whether the totality of the circumstances
surrounding the stop indicates that the duration of the stop as a
whole–including any prolongation due to suspicionless unrelated
questioning–was reasonable.

Id. at 493-94 (internal quotation marks and citations omitted).

d. Unrelated questions permitted when supported by reasonable suspicion,
including for police safety, or during consensual encounter.

{23} Even if a court determines that questioning unreasonably prolonged the length of the
stop, the questioning still may be constitutionally permissible. “An officer may expand the
scope of a traffic stop beyond the initial reason for the stop and prolong the detention if the
driver’s responses and the circumstances give rise to a reasonable suspicion that criminal
activity unrelated to the stop is afoot.” United States v. Chavez Loya, 528 F.3d 546, 553 (8th
Cir. 2008). Reasonable suspicion must consist of more than an officer’s hunch that
something is amiss; it requires objectively reasonable indications of criminal activity. See,
e.g., United States v. Washington, 559 F.3d 573, 576-77 (D.C. Cir. 2009) (finding reasonable
suspicion to conduct a protective frisk and car search existed based on the defendant’s
furtive movement under the car seat, unlikely explanation of the movement, and nervousness
in a high crime area). Courts defer to “the training and experience of the officer” when
determining whether “particularized and objective indicia of criminal activity” existed. State
v. Van Dang, 2005-NMSC-033, ¶ 16, 138 N.M. 408, 120 P.3d 830. Suspicion of criminal

detained after the traffic investigation was a complete violation of the Fourth Amendment
as they were not supported by reasonable suspicion, by stating that the questioning in Everett
occurred before the stop was completed. 601 F.3d at 492 n.2. We do not find this
distinction bars our reliance on Everett due to its focus on the fallacies of a non-prolongation
rule, and do not find Urrieta, which addressed the prolongation of the stop only briefly, to
be a more persuasive authority than Everett or the other authorities discussed above.

9
activity need not necessarily be of a specific crime. See Pack, 612 F.3d at 355-56 (holding,
and compiling cases in support of, the reasonable suspicion required to expand an
investigation is that a criminal activity is afoot and that the suspicion need not be directed
to a “specific crime requirement”).

{24} Although the scope of a stop may be expanded without violating the Fourth
Amendment when an officer has a reasonable suspicion that an individual is armed and
dangerous or that other criminal activity is afoot, we underscore that the requirement of
reasonable suspicion demands objective and articulable observations that indicate further
police action is necessary. This does not mean that an officer must be certain that weapons
are present, but rather that “a reasonable, well-trained officer would have made the [same]
judgment . . . .” Vandenberg, 2003-NMSC-030, ¶ 23 (internal quotation marks and citations
omitted). Courts must require articulable facts indicating reasonable suspicion. We find
instructive the caution of Judge Richard Posner, describing the testimony of the arresting
officer in a suppression hearing:

Gilding the lily, the officer testified that he was additionally
suspicious because when he drove by [the defendant] . . . he noticed that [the
defendant] was “staring straight ahead.” Had [the defendant] instead glanced
around him, the officer would doubtless have testified that [the defendant]
seemed nervous or, the preferred term because of its vagueness, “furtive.”
Whether you stand still or move, drive above, below, or at the speed limit,
you will be described by the police as acting suspiciously should they wish
to stop or arrest you. Such subjective, promiscuous appeals to an ineffable
intuition should not be credited.

United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (original bracket omitted)
(holding that reasonable suspicion to stop the defendant existed); see also Neal, 2007-
NMSC-043, ¶ 31 (rejecting an argument that reasonable suspicion existed when the
“circumstances smack more of the type of conjecture and hunch we have rejected in the past
as insufficient to constitute reasonable suspicion”).

{25} An officer may conduct a protective search of a stopped vehicle for reasons of officer
safety during a traffic stop because “traffic stops are ‘especially fraught with danger to police
officers.’” Johnson, ___ U.S. at ___, 129 S.Ct. at 786 (quoting Michigan v. Long, 463 U.S.
1032, 1047 (1983)). A protective search is not a search for evidence. See Vandenberg,
2003-NMSC-030, ¶ 33. Such a search must be based upon the objectively reasonable belief
that the individuals stopped pose a threat to officer safety, and the search must be limited to
its purpose of protecting the officers, and the public, during the stop. See id. ¶ 22; Holt, 264
F.3d at 1225 (“We emphasize also that the balance does not depend on whether the officer
subjectively fears the motorist. Subjective intentions rarely play a role in Fourth
Amendment analysis.” (footnote omitted)). During traffic stops, movements by the vehicle’s
occupants, consistent with hiding an object, generally give rise to reasonable safety
concerns. See, e.g., United States v. Nash, 876 F.2d 1359, 1361 (7th Cir. 1989) (finding that

10
a limited search for weapons in the car was permitted because the officer could reasonably
be concerned about his safety after noticing a “furtive gesture” by the defendant as the
officer approached and the defendant had a jacket awkwardly arranged over his lap and the
floor); People v. Altman, 938 P.2d 142, 146-47 (Colo. 1997) (en banc) (finding that the
officers acted reasonably in searching the stopped vehicle for weapons after observing the
defendant “bend over in his seat and make motions toward the bottom of his seat” and
limiting the search to the area near the seat); State v. Ashbrook, 586 N.W.2d 503, 508-09
(S.D. 1998) (holding that a protective sweep for weapons of a car during a legitimate traffic
stop was permitted when the officer observed the defendant make furtive movements during
the time between the activation of the emergency lights and pulling over).3

{26} Questions asked for purposes of ensuring officer safety during a stop generally are
proper because “[w]hen these measures are not too intrusive, the government’s strong
interest in officer safety outweighs the motorist’s interests.” Holt, 264 F.3d at 1221.
“Questions directed toward officer safety, therefore, do not bespeak a lack of diligence.”
Everett, 601 F.3d at 495.

{27} A police officer may also pose questions after the time needed to reasonably conduct
the investigation into the initial reason for the stop if the stop has ended and a consensual
encounter developed. “A detention for a traffic citation can turn into a consensual encounter
after the trooper has returned the driver his documentation so long as a reasonable person
under the circumstances would believe he was free to leave or disregard the officer’s request
for information.” United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308 (10th Cir. 2006)
(internal quotation marks and citation omitted). If the police officer has reasonably
conveyed to the citizen that the stop has ended, any further questioning does not constitute
a seizure under the Fourth Amendment. Id. (finding that questioning of a passenger who
was unaware that the stop of the driver had been terminated was an unreasonable detention
and the evidence discovered as a result of those questions must be suppressed).4

3
We note, without passing on its propriety, that the Tenth Circuit permits questions
about the presence of weapons for reasons of officer safety. See United States v. Valenzuela,
494 F.3d 886, 890 (10th Cir. 2007); Holt, 264 F.3d at 1221-22. In Valenzuela, after finding
the officer’s question to the defendant about the presence of weapons in the vehicle “was
permissible, if not adviseable[,]” the court held that asking about “other illegal items”
likewise was permissible because the inclusion of a few extra words did not “appreciably
prolong the length of the stop.” 494 F.3d at 890. The Valenzuela court applied the same
analysis to the request for consent to search, holding that the request for search likewise did
not unreasonably delay the stop and thus did not violate the Fourth Amendment. Id. at 891,
n2.
4
Leyva was not free to leave in his car because his license was suspended; he had
to wait until another individual arrived to pick the car up. See United States v. Mendenhall,
446 U.S. 544, 553-54 (1980) (setting forth what is commonly known as the “free to leave”

11
{28} Under these rationales, the holdings of cases we have decided under Duran, and
Duran itself, remain valid. The questions posed by the officer in Duran either were asked
during the time it took to reasonably complete the initial traffic investigation, were a de
minimis extension thereof, or were supported by independent reasonable suspicion. 2005-
NMSC-034, ¶¶ 37-38; accord Morlock, 218 P.3d at 807, 811 (finding questions asked
constitutionally permissible because they either occurred during the legitimate stop or were
supported by reasonable suspicion). In Funderburg, we held that the officer’s “minimal
detention” of the defendant “based on the presence of reasonable suspicion about the
contents of the car, to ask a single question about other criminal activity in the car before
asking for consent to search, was reasonable.” 2008-NMSC-026, ¶ 33; see also Van Dang,
2005-NMSC-033, ¶ 16 (“Because the detention took no longer than necessary and because
the officer’s questions arose from a reasonable suspicion, we hold that both the duration and
scope of the detention were reasonable under the circumstances.”).

{29} Based on the preceding discussion, our Fourth Amendment analysis requires us to
determine whether the contraband and consent questions were asked of Leyva during the
time it took to complete the initial lawful investigation. If the questions measurably
extended Leyva’s detention, Officer Hash was required to have had reasonable suspicion of
criminal activity or concern for police safety to support further questioning, or the interaction
must have evolved into a consensual encounter.

2. Under the Fourth Amendment, the defendant’s rights were not violated.

{30} We now review the district court’s denial of Leyva’s motion to suppress, a mixed
question of fact and law. Funderburg, 2008-NMSC-026, ¶ 10. Typically, this review is a
two-step process: we first look for substantial evidence to support the trial court’s factual
finding, with deference to the district court’s review of the testimony and other evidence

test). The district court did not address, nor will we, whether this fact meant that Leyva was
not free to leave the scene, meaning his lawful detention had not yet ended when Officer
Hash inquired about weapons or drugs. Compare Florida v. Bostick, 501 U.S. 429, 436-37
(1991) (stating that an individual is not seized for Fourth Amendment purposes when police
conduct plays no role in that individuals inability to leave the scene); Chavira, 467 F.3d at
1291 (holding that the defendant was free to leave, and thus his consent to search was not
the product of an unlawful detention, when “path to his vehicle was unobstructed and the
trooper was separated from him by the open patrol car door”); and State v. Snell, 99 P.3d
191, 195 (Mont. 2004) (applying the Mendenhall test under the state constitution to conclude
that “a reasonable person would have felt free to leave [the] patrol car” after receiving a
ticket and thus the officer’s subsequent request for consent to search the car was valid); with
Meghoo v. Commonwealth, 245 S.W.3d 752, 756 (Ky. 2008) (finding that the required
detention of the defendant’s truck pursuant to state law “mitigates any claim of
unreasonableness as to the length of the detention, since this is not a case in which [the
defendant] could have driven away but for the officers’ actions”).

12
presented, and we then review de novo the trial court’s application of law to the facts to
determine whether the search or seizure were reasonable. Neal, 2007-NMSC-043, ¶ 15;
Vandenberg, 2003-NMSC-030, ¶ 17. The burden to show reasonableness is on the State.
State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95. Our review of a district
court’s determination of whether reasonable suspicion existed is de novo based on the
totality of the circumstances. Neal, 2007-NMSC-043, ¶ 19.

{31} The first inquiry of the Terry analysis, whether the initial stop was lawful, is not at
issue in this case, because Leyva does not contest the legality of the initial stop for speeding.
Nor does Leyva contest that Officer Hash was authorized to request Leyva’s license,
registration, and proof of insurance, and have dispatch confirm all were valid. See Duran,
2005-NMSC-034, ¶ 24. The focus of our Fourth Amendment inquiry, limited to the second
part of the Terry analysis, is whether Officer Hash’s question about weapons or drugs did
not measurably extend the length of the valid stop; that is, whether the questioning exceeded
the temporal limitations on the scope of the investigation.

{32} The district court found that Officer Hash had completed his investigation into the
traffic violation and issued Leyva the citations before inquiring into the presence of
contraband in the vehicle. In making this finding, the district court determined that the
initial stop had come to an end. Because this is supported by both Officer Hash’s testimony
at the suppression hearing and the incident report, we defer to the district court’s factual
finding that the initial investigation was concluded when the officer asked Leyva about the
presence of guns and drugs in the car.

{33} As discussed above, a de minimis extension of a stop, particularly to ask questions
related to officer safety, is not unreasonable under the Fourth Amendment.5 See supra ¶¶
20-21. Approximately ten minutes passed between the time Leyva came to a stop and
Officer Hash returned to Leyva his documents. Posing the subsequent question, “Before I
turn this vehicle over to anyone else is there anything in it that I need to know about? . . .
[Are there] any knives, needles, guns, or drugs[?],” could not have taken more than ten
seconds. It would be nonsensical if we were to hold Officer Hash violated Leyva’s Fourth
Amendment rights by asking the question immediately after handing him the citation, when
the questions undoubtedly would have been permitted if Officer Hash had asked while he
was writing the citation or running the records check. See Everett, 601 F.3d at 492; United
States v. Canipe, 569 F.3d 597, 602 (6th Cir. 2009); Jenkins, 3 A.3d at 831-32.

{34} Furthermore, officer safety concerns strongly support the reasonableness of Officer
Hash’s questions. Although Officer Hash had returned Leyva’s information and handed him

5
Leyva argues that we should remand to the district court to consider whether the stop
was extended, a point the State apparently did not argue below. This is unnecessary because
we have access to the full record and we may uphold the district court if it is right for any
reason. See State v. Macias, 2009-NMSC-028, ¶ 17, 146 N.M. 378, 210 P.3d 804.

13
the citation, Officer Hash’s “need to control the scene,” see Johnson, ___ U.S. at ___, 129
S.Ct. at 788, had not yet come to an end—the deputy was waiting at the scene until a third
party arrived to remove the car Leyva was not permitted to drive, see Washington, 559 F.3d
at 577 (“[T]he police’s concern for safety during a traffic stop ordinarily does not terminate
until the officers allow the driver to depart.”). Officer Hash reasonably would have been
concerned about the possibility of the person retrieving the car accessing a hidden weapon,
particularly when the officer was unaware of the identity of the person arriving to retrieve
the car. Cf. Vandenberg, 2003-NMSC-030, ¶ 36 (finding that a frisk for officer safety
conducted after tickets completed, though not yet handed to the defendant, was permissible
because the officer had become nervous for his safety during the course of the investigation).
The weighty concerns of officer safety that are present in a situation such as this outweigh
the minimal intrusion to Leyva of having a single question, in which the word “drugs” was
but a small part, asked of him as he awaited a ride.

{35} We hold that, under the Fourth Amendment, the question Officer Hash asked Leyva
about the presence of weapons or drugs in the car was a permissible de minimis extension
of a valid stop posed for reasons of officer safety. After receiving Leyva’s answer that drugs
were present in the car, Officer Hash had reasonable suspicion to believe contraband was in
the car and thus expand his investigation as necessary. Cf. Vandenberg, 2003-NMSC-030,
¶¶ 66-67 (Minzner, J., dissenting) (stating that the preferable way for officers to investigate
suspicions that arise during traffic stops is incrementally). Leyva’s Fourth Amendment
rights were not violated and the motion to suppress was properly denied under the Fourth
Amendment.

B. Preservation Requirements of State Constitutional Argument and Interstitial
Analysis.

{36} Having clarified our Fourth Amendment analysis and determined that the district
court did not err in denying the suppression motion under the standards of the Fourth
Amendment, we now consider Duran’s vitality under the New Mexico Constitution. In
order for us to address Leyva’s rights under the state constitution, however, he must have
complied with the preservation requirements of Rule 12-216(A) NMRA. Rule 12-216(A)
states: “To preserve a question for review it must appear that a ruling or decision by the
district court was fairly invoked, but formal exceptions are not required . . . .”

We require parties to assert the legal principle upon which their claims are
based and to develop the facts in the trial court primarily for two reasons: (1)
to alert the trial court to a claim of error so that it has an opportunity to
correct any mistake, and (2) to give the opposing party a fair opportunity to
respond and show why the court should rule against the objector.

State v. Gomez, 1997-NMSC-006, ¶ 29, 122 N.M. 777, 932 P.2d 1.

{37} In his motion to suppress, Leyva cited both the Fourth Amendment and Article II,

14
Section 10, and stated that the New Mexico Constitution provides him with greater
protections from unreasonable searches and seizures. Leyva’s motion did not cite any cases
discussing greater protections provided by Article II, Section 10, nor did he discuss any such
cases during the suppression hearing. We now turn to the applicable law to determine
whether Leyva preserved his Article II, Section 10 argument.

1. State v. Gomez’ requirements for preserving arguments under the New Mexico
Constitution.

{38} The preservation requirements effective when Leyva filed his appeal were set forth
by this Court in Gomez over fourteen years ago. Since that time, Gomez often has been
construed more strictly than intended. Although it has been suggested that the Gomez rule
should be altered to encourage development of our state constitutional jurisprudence, see
State v. Garcia, 2009-NMSC-046, ¶ 56, 147 N.M. 134, 217 P.3d 1032 (Bosson, J., specially
concurring); J. Thomas Sullivan, Developing a State Constitutional Strategy in New Mexico
Criminal Prosecutions, 39 N.M. L. Rev. 407, 420-22 (2009), we conclude that Gomez’ rule
is sound—but that some opinions have strayed by imposing a higher standard, unwarranted
by Rule 12-216.

{39} The defendant in Gomez filed a motion to suppress evidence found during a car
search conducted in the absence of a warrant or exigent circumstances, stating that the search
violated his rights under the Fourth Amendment and Article II, Section 10; he cited cases
interpreting Article II, Section 10 more expansively than the Fourth Amendment during
argument on the motion. 1997-NMSC-006, ¶¶ 3, 10. The Court of Appeals found the
defendant did not preserve his state constitutional argument because he “not only failed to
articulate why the New Mexico Constitution affords greater protection under these
circumstances, but failed to even mention the state constitution.” Id. ¶ 12. On appeal the
defendant argued that “the fundamental goals underlying Rule 12-216 were met because the
facts needed for a ruling on the existence of exigent circumstances were developed
adequately and the trial court ruled on that issue.” Id. ¶ 13. The defendant characterized the
Court of Appeals’ preservation ruling as one that treated the New Mexico Constitution as
the “poor cousin” of the federal constitution, and that the preservation requirements should
be the same. Id.

{40} This Court agreed with the defendant and ruled that his state constitutional argument
was preserved. Id. ¶ 31. After explicitly adopting the interstitial approach to state
constitutional analysis, in which the appellate courts review reasons for departure from the
federal standard, id. ¶ 20, we set forth the preservation requirements for assignments of error
under the state constitution.

When a litigant asserts protection under a New Mexico Constitutional
provision that has a parallel or analogous provision in the United States
Constitution, the requirements for preserving the claim for appellate review
depend on current New Mexico precedent construing that state constitutional

15
 provision. If established precedent construes the provision to provide more
protection than its federal counterpart, the claim may be preserved by (1)
asserting the constitutional principle that provides the protection sought
under the New Mexico Constitution, and (2) showing the factual basis
needed for the trial court to rule on the issue. This is no more than is
required of litigants asserting a right under the federal constitution, a federal
statute, a state statute, or common law. That is, Rule 12-216 requires that
litigants “fairly invoke” a ruling by the trial court in order to raise that
question on appeal. Assertion of the legal principle and development of the
facts are generally the only requirement to assert a claim on appeal.
However, when a party asserts a state constitutional right that has not
been interpreted differently than its federal analog, a party also must assert
in the trial court that the state constitutional provision at issue should be
interpreted more expansively than the federal counterpart and provide
reasons for interpreting the state provision differently from the federal
provision. This will enable the trial court to tailor proceedings and to
effectuate an appropriate ruling on the issue.

Id. ¶¶ 22-23 (footnote and headings omitted).6

{41} Gomez concluded that the defendant preserved his claim of error under the state
constitution by arguing in his motion to suppress, in which he set forth the facts necessary
for a ruling, that his rights were violated under Article II, Section 10, because “[t]here is
established New Mexico law interpreting Article II, Section 10 more expansively than the
Fourth Amendment.” Id. ¶¶ 24, 27. In addition, the defendant cited a case discussing
exigent circumstances, id. ¶ 25, and the district court ruled directly on the issue of the
presence of exigent circumstances in denying the motion to suppress, id. ¶ 28. Gomez held
that, although the defendant did not cite cases interpreting Article II, Section 10 more
expansively, this “did not operate to prejudice the State in any way” because the district
court “is charged with knowing and correctly applying established New Mexico precedent
interpreting the state constitution.” Id. ¶ 30.

Where New Mexico courts have taken a different path than federal courts,
our precedent governs regardless of whether a party cites specific cases in
support of a constitutional principle, so long as the party has asserted the
principle recognized in the cases and has developed the facts adequately to
give the opposing party an opportunity to respond and to give the court an

6
If a state constitutional argument has been preserved, the role of the appellate court
is to conduct the interstitial analysis if necessary, reviewing the reasons for departure and
determining whether departure is warranted under the particular provision. Id. ¶ 19 (setting
forth examples of reason for departure: “a flawed federal analysis, structural differences
between state and federal government, or distinctive state characteristics”).

16
 opportunity to rule.

Id.

{42} Gomez’ preservation requirements were articulated so that arguments made under the
New Mexico Constitution were preserved under Rule 12-216 in the same manner as any
other argument; only where a state constitutional provision had never been interpreted to
provide greater protection than its federal analog are parties required to alert the trial court
and articulate reasons for departure. The reason for this slightly greater burden flows from
our adoption of the interstitial approach: in order for a court to consider whether the state
constitution provides greater protection than the federal constitution, the court must be
persuaded that there are reasons to depart from the federal analysis. Thus, providing the
court with reasons for departure is part of trial counsel’s duty to present the district court
with facts necessary to make a ruling and create a record for appellate review.7

{43} Since this Court decided Gomez, New Mexico’s appellate courts have purported
fidelity to its preservation requirements. See, e.g., Garcia, 2009-NMSC-046, ¶¶ 10-13;
Montoya v. Ulibarri, 2007-NMSC-035, ¶¶ 18-19, 142 N.M. 89, 163 P.3d 476; State v.
Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 11-13, 130 N.M. 386, 25 P.3d 225; State v. Ochoa,
2009-NMCA-002, ¶¶ 9-11, 146 N.M. 32, 206 P.3d 143. At times, however, the discussion
of preservation requirements has been blended with the interstitial analysis in a manner that
has resulted in the articulation of a preservation standard that exceeds that set forth in and
intended by Gomez. See, e.g., State v. Muñoz, 2008-NMCA-090, ¶ 24, 144 N.M. 350, 187
P.3d 696 (referring to Gomez’ teaching of “the interstitial approach for preserving state
constitutional arguments”). A review of the cases often cited for their discussion of
preservation requirements will assist us in distilling the principles of Gomez.

{44} In Cardenas-Alvarez, we held that the defendant preserved his argument that a border
checkpoint stop violated Article II, Section 10. 2001-NMSC-017, ¶¶ 1, 13. Noting the many
cases that had interpreted Article II, Section 10 to provide broader protection than the Fourth
Amendment, we found that the defendant “asserted the state constitutional principle that
provides the protection he seeks and . . . he provided a factual basis upon which the trial
court could rule on the issue.” Id. ¶ 12. Although the defendant did not explicitly cite
Article II, Section 10, the argument that the state constitution provided protection against
unreasonable searches and seizures, made during closing arguments, was held to be
sufficient to satisfy the requirements of Rule 12-216. Id. ¶ 13. We then concluded that an

7
This Court is not bound by the reasons for departure presented by trial or appellate
counsel—whether a state constitutional provision should be interpreted more broadly is a
question of law we review de novo. Cf. Garcia 2009-NMSC-046, ¶ 57 (Bosson, J., specially
concurring) (“In a government of dual sovereigns, it is imperative that our state Constitution
develop to its full potential and protect the rights of our citizens where we deem federal law
lacking.”).

17
“extra layer of protection from unreasonable searches and seizures involving automobiles
is a distinct characteristic of New Mexico constitutional law.” Id. ¶ 15. Cardenas-Alvarez
correctly applied our teachings from Gomez: the defendant alerted the district court to the
Article II, Section 10 argument and set forth the facts necessary for the court to rule on that
argument, and the appellate court determined that departure from the federal standard was
necessary. Id.

{45} Other cases also have executed Gomez’ preservation requirements properly. In
Montoya, this Court found a state constitutional argument had been preserved where the
defendant asserted that the applicable state constitutional provision provided greater
protection than the federal analog and set forth the facts necessary for the trial court to rule
on the issue. 2007-NMSC-035, ¶ 18; see also State v. Paul T., 1999-NMSC-037, ¶¶ 13, 26,
128 N.M. 360, 993 P.2d 74 (finding the state constitutional argument was preserved where
the defendant argued that Article II, Section 10 provides greater protection than the Fourth
Amendment and provided the factual basis necessary for a ruling because “Gomez requires
no more”); State v. Granville, 2006-NMCA-098, ¶ 14, 140 N.M. 345, 142 P.3d 933
(compiling cases in which Article II, Section 10 has been construed more broadly than the
Fourth Amendment and noting that “[the d]efendant need only to have alerted the trial court
to the legal issue and to have developed the facts necessary to rule on that issue” in order to
preserve his Article II, Section 10 argument).

{46} In contrast, some cases have imposed a higher preservation standard. Duran did not
address Article II, Section 10 because the defendant “did not address how the New Mexico
Constitution may afford her greater protection than the federal Constitution . . . .” 2005-
NMSC-034, ¶ 22. In Ochoa, the Court of Appeals determined the defendant had met the
preservation standard because he had asserted that the exact issue of the case (pretextual
stops) had not been considered under Article II, Section 10. 2009-NMCA-002, ¶ 9; see also
Funderburg, 2008-NMSC-026, ¶ 12 (not reviewing the defendant’s state constitutional
argument on appeal because “[the d]efendant did not argue below, and does not argue to this
Court, that the New Mexico Constitution provides any greater protection than the Federal
Constitution in the context of this case”).

{47} Other cases have created exceptions to the preservation requirements. In Garcia, this
Court excepted the defendant from Gomez’ preservation requirements because the question
of whether the defendant was seized under Article II, Section 10 was raised in the
suppression motion but not argued until the State asserted it as a “right for any reason”
argument to the Court of Appeals. Garcia, 2009-NMSC-046, ¶¶ 7, 12; see also Rivera,
2010-NMSC-046, ¶ 14 (“Because [the d]efendant prevailed at the district court level, her
citation to the New Mexico Constitution was adequate to preserve the state constitutional
claim.” (citing Garcia, 2009-NMSC-046, ¶ 12)). These cases, though reaching the right
result, did so in a way unnecessarily restrictive of Gomez’ rule.

{48} Justice Bosson, in his special concurrence in Garcia, drew attention to the higher
standard courts were setting for preserving arguments under the state constitution and

18
encouraged a “new look” at the preservation requirements. 2009-NMSC-046, ¶ 56 (Bosson,
J., specially concurring). In particular, Justice Bosson highlighted the confusion that has
developed in application of Gomez’ preservation standard when a state constitutional
provision has already been interpreted, with courts requiring previous discussion of “the
particular claim or principle” rather than the provision. Id. ¶¶ 54-55 (“In practical effect, it
could require litigants to meet the higher Gomez burden each time a new argument or fact
pattern under search and seizure is brought before a state court . . . . This is unduly
burdensome in the context of search and seizure, and . . . unnecessary.”). We agree that the
proper inquiry under Gomez is whether the provision of the state constitution has previously
been construed to provide broader protection than its federal counterpart, and disavow any
prior statements to the contrary. See, e.g., State v. Ochoa, 2004-NMSC-023, ¶ 6, 135 N.M.
781, 93 P.3d 1286 (“Thus, we assume without deciding that both constitutions afford equal
protection to individuals against unreasonable seizures in this context, and we analyze the
constitutionality of the seizure under one uniform standard.” (emphasis added)). Preserving
a state constitutional argument continues to follow the steps set forth in Gomez.

2. Preservation requirements restated.

{49} Rule 12-216 (A)’s preservation requirements are straightforward: “To preserve a
question for review it must appear that a ruling or decision by the district court was fairly
invoked . . . .” Where a state constitutional provision has previously been interpreted more
expansively than its federal counterpart, trial counsel must develop the necessary factual
base and raise the applicable constitutional provision in trial court. Where the provision has
never before been addressed under our interstitial analysis, trial counsel additionally must
argue that the state constitutional provision should provide greater protection, and suggest
reasons as to why, for example, “a flawed federal analysis, structural differences between
state and federal government, or distinctive state characteristics.” Gomez, 1997-NMSC-006,
¶ 19.8

3. The defendant’s preservation of his Article II, Section 10 argument.

{50} Leyva was required to meet the less stringent of Gomez’ preservation requirements
because “a plethora of precedent already interprets Article II, Section 10 more expansively
than the Fourth Amendment.” Garcia, 2009-NMSC-046, ¶ 52 (Bosson, J., specially
concurring). Leyva met this requirement by pleading that his right to be free from an
unreasonable search and seizure was violated under both the Fourth Amendment and Article
II, Section 10 and developing a factual record in his motion and at the suppression hearing.
Leyva’s Article II, Section 10 argument was preserved.

8
The exceptions to the preservation requirement contained in Rule 12-216(B) apply
to state constitutional arguments as they do to any other. See Gomez, 1997-NMSC-006, ¶
31 n.4 (noting the possibility of appellate courts considering unpreserved state constitutional
claims under the exceptions to preservation requirements contained in Rule 12-216(B)).

19
4. Interstitial analysis

{51} It is well-established that Article II, Section 10 provides more protection against
unreasonable searches and seizures than the Fourth Amendment. See, e.g., Neal, 2007-
NMSC-043, ¶ 16 (“For the past fifteen years, [A]rticle II, [S]ection 10 has been construed
to provide broader protections than the Fourth Amendment.”); Cardenas-Alvarez, 2001-
NMSC-017, ¶ 15 (“The extra layer of protection from unreasonable searches and seizures
involving automobiles is a distinct characteristic of New Mexico constitutional law”); State
v. Pittman, 2006-NMCA-006, ¶ 14, 139 N.M. 29, 127 P.3d 1116 (“New Mexico law
expresses a strong preference for a warrant.”); Sullivan, supra, at 427-39 (discussing cases
in which this Court and the Court of Appeals have departed from Fourth Amendment
analysis in construing Article II, Section 10). As such, we need not be confined by Fourth
Amendment law in determining whether Leyva’s rights were violated under the New Mexico
Constitution. The fact that we have departed from the analysis used to determine whether
a violation of the Fourth Amendment occurred in certain contexts, however, does not require
us to do so in all contexts. It remains necessary to conduct our de novo review of the law,
as “this Court has demonstrated a willingness to undertake independent analysis of our state
constitutional guarantees when federal law begins to encroach on the sanctity of those
guarantees.” State v. Gutierrez, 116 N.M. 431, 440, 863 P.2d 1052, 1061 (1993).

C. Article II, Section 10

{52} “The people shall be secure in their persons, papers, homes and effects, from
unreasonable searches and seizures . . . .” N.M. Const. art. II, § 10.

1. Duran’s two-prong analysis remains the test for reasonableness of police
questioning during traffic stops under Article II, Section 10.

{53} We have consistently said that “‘Article II, Section 10 expresses the fundamental
notion that every person in this state is entitled to be free from unwarranted governmental
intrusions,’ and thus identified a broader protection to individual privacy under the New
Mexico Constitution” than under the Fourth Amendment. Garcia, 2009-NMSC-046, ¶ 29
(quoting Gutierrez, 116 N.M. at 444, 863 P.2d at 1065). “Article II, Section 10 is calibrated
slightly differently than the Fourth Amendment. It is a foundation of both personal privacy
and the integrity of the criminal justice system, as well as the ultimate regulator of police
conduct.” Id. ¶ 31. As in Garcia, in this case we primarily are concerned with regulating
police conduct. See id. ¶ 26. We must now determine whether the Fourth Amendment’s
bright-line rule or Duran’s case-by-case analysis is better calibrated to protect the rights of
individuals on New Mexico’s roadways from unwarranted police intrusions under the New
Mexico Constitution.

{54} “New Mexico courts have consistently rejected federal bright-line rules in favor of
an examination into the reasonableness of officers’ actions under the circumstances of each
case.” Ochoa, 2009-NMCA-002, ¶ 24. This opposition to bright-line rules greatly

20
influenced our adoption in Duran of a two-part test, tracking the Terry analysis, to questions
during traffic stops. See supra ¶¶ 13-14. Duran rejected the approach later adopted by the
United States Supreme Court in Caballes, Muehler, and Johnson because “[w]e have
continually used a fact-based, case-by-case approach to determine what questions are
reasonably related to the initial justification for the stop and whether an officer had
reasonable suspicion to expand the scope of his or her search or seizure during an
investigatory stop.” 2005-NMSC-034, ¶ 34. Since Duran was decided, our cases construing
Article II, Section 10 have persisted in rejecting bright-line rules. See, e.g., Rivera, 2010-
NMSC-046, ¶ 23 (declining to adopt the Fourth Amendment private search doctrine under
Article II, Section 10 due to our constitution’s “strong preference for a warrant”); Garcia,
2009-NMSC-046, ¶ 37 (retaining the totality of the circumstances free-to-leave test for
seizures under Article II, Section 10); Rowell, 2008-NMSC-041, ¶ 20 (rejecting a bright-line
rule for car searches incident to arrest in favor of a case-by-case approach); State v. Bomboy,
2008-NMSC-029, ¶¶ 5, 8, 144 N.M. 151, 184 P.3d 1045 (“applying the fact-specific
reasonableness inquiry” rather than the bright-line rule sanctioned under the Fourth
Amendment).

{55} Duran’s analysis, requiring a reasonable justification for the initial stop and that all
questions asked during the stop be reasonably related to the reason for the stop or otherwise
supported by reasonable suspicion, see supra ¶ 13, ensures that investigating officers do not
engage in “fishing expeditions” during traffic stops. See Neal, 2007-NMSC-043, ¶ 28. This
approach comports better with the broader protections provided under Article II, Section 10,
which we have determined are best analyzed under a case-by-case approach rather than
bright-line temporal tests developed under the Fourth Amendment. We conclude that
Duran’s two-part analysis, adhering to the scope and duration requirements set forth in
Terry, best protects the right against unreasonable searches and seizures under Article II,
Section 10 of the New Mexico Constitution. Article II, Section 10 requires that all questions
asked during the investigation of a traffic stop be reasonably related to the initial reason for
the stop. Unrelated questions are permissible when supported by independent reasonable
suspicion, for reasons of officer safety, or if the interaction has developed into a consensual
encounter. See Duran, 2005-NMSC-034, ¶ 35. The overall reasonableness of the stop
continues to be “determined by balancing the public interest in the enforcement of traffic
laws against an individual’s right to liberty, privacy, and freedom from arbitrary police
interference.” Id. ¶ 22 (citing Mimms, 434 U.S. at 109).

{56} While our rejection of the Supreme Court’s bright-line rule for traffic stop
questioning is firmly rooted in Article II, Section 10, we note that the rule has come under
criticism from scholars and courts alike. Professor LaFave, discussing the bright-line rule
later adopted, called it “dead wrong[,]” and

totally at odds with the Terry line of Supreme Court decisions on the
limits applicable to temporary detentions, and amount[s] to nothing more
than an encouragement to police to engage in pretextual traffic stops so
that they may engage in interrogation about drugs in a custodial setting

21
 (albeit not custodial enough to bring even the protections of Miranda into
play). The correct rule is that followed by some other courts: that in
strict accordance with Terry and its progeny, questioning during a traffic
stop must be limited to the purpose of the traffic stop and thus may not
be extended to the subject of drugs.

Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,”
Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1887 (2004) (footnotes omitted);
see also State v. Washington, 898 N.E. 2d 1200, 1205-06 (Ind. 2008) (applying a distinct
analysis to a state constitutional claim after determining that questions asked of a driver
about contraband did not violate the Fourth Amendment pursuant to Muehler because “[t]he
Indiana Constitution may protect searches that the federal Constitution does not”); Brown
v. State, 182 P.3d 624, 626 (Alaska Ct. App. 2008) (interpreting the search and seizure
protections provided by the state constitution as more protective than the Fourth Amendment
because “the Fourth Amendment rules governing traffic stops create the potential risk that
law enforcement officers will compromise the privacy of many citizens”); cf. Jenkins, 3 A.3d
at 852 (holding that protections provided under the Connecticut constitution are coextensive
with those provided by the Fourth Amendment because “[o]ur own constitutional language,
precedents and history do not support a ready departure from the federal case law in this
area, particularly because the recent United States Supreme Court decisions do not represent
a sea change from prior Connecticut precedent”).

2. Under Article II, Section 10, the defendant’s rights were not violated.

{57} Our final task in this Opinion is to determine whether Leyva was subjected to an
unreasonable search and seizure under Article II, Section 10. The standard of review for
motions to suppress is the same under Article II, Section 10 as it is for the Fourth
Amendment. See supra ¶ 30.

{58} As under the Fourth Amendment analysis, we need not discuss whether Officer
Hash’s initial stop of Leyva was reasonable, as Leyva concedes this point. We may proceed
directly to determine whether the questions relating to contraband and for consent to search
were reasonably related to the initial reason for the stop, or if they were permitted otherwise.
The district court did not make an explicit ruling on whether the questions were permissible
under the second Duran prong, but concluded that Officer Hash had independent reasonable
suspicion to ask the question about contraband. In doing so, the district court implicitly
ruled that questioning Leyva about the presence of weapons or drugs in the car was not
reasonably related to the initial speeding stop, or to the discovery that Leyva was driving
without proof of insurance, and we will not disturb this conclusion.

{59} Because the questions were not permitted under the Duran test as reasonably related
to the initial stop, we must determine whether the district court properly concluded that
Officer Hash possessed independent and articulable reasonable suspicion to expand his
questioning of Leyva. A law enforcement officer must have “reasonable and articulable

22
suspicion that other criminal activity has been or may be afoot” in order to expand an
investigation. Neal, 2007-NMSC-043, ¶ 20 (quoting State v. Williamson, 2000-NMCA-068,
¶ 8, 129 N.M. 387, 9 P.3d 70); see also supra ¶¶ 23-24. Reasonable suspicion is measured
by an objective standard based on the totality of the circumstances. Neal, 2007-NMSC-043,
¶ 21.

{60} The district court found that Officer Hash possessed reasonable independent
suspicion that Leyva was engaged in illegal activity based on Leyva’s furtive movements
in the car—appearing to hide something under the passenger seat—before stopping. The
district court’s conclusion is supported by the incident report and the deputy’s testimony,
giving weight to Officer Hash’s eight years of experience and training as a law enforcement
officer, see Van Dang, 2005-NMSC-033, ¶ 16 (discussing importance of officer training and
experience to forming reasonable suspicion of criminal activity), and considerations of
officer safety, see Johnson, ___ U.S. at ___, 129 S.Ct. at 786 (stating that “legitimate and
weighty interest in officer safety” outweighs additional minor intrusions (internal quotation
marks and citation omitted)). In contrast, in Paul T., we found that the circumstances of the
seizure, viewed objectively, did not “rise to a level necessitating a full search analogous to
a search incident to arrest” under Article II, Section 10. 1999-NMSC-037, ¶ 14. In that
case, the defendant was taken into custody for a curfew violation and none of the
circumstances indicated that the officer reasonably was concerned about his safety in
transporting the youth. Id. We also concluded that the need to preserve evidence did not
justify a search where the crime was curfew violation. Id. ¶ 15.

{61} Based on the totality of the circumstances, we cannot say that it was unreasonable
for Officer Hash to inquire into the presence of weapons or other contraband in the vehicle.
Officer Hash was intending to permit an unknown third party to remove the vehicle from the
premises and Officer Hash possessed a reasonable suspicion that Leyva had hid an item in
the car.9 Based on the facts presented in this case we conclude that the State met its burden
of showing that Officer Hash’s questioning was not unreasonable under Article II, Section
10. Officer Hash was justified in asking Leyva about weapons and other contraband in the

9
While the State argues that Leyva’s failure to immediately pull over is a factor
contributing to Officer Hash’s development of reasonable suspicion, Officer Hash’s
testimony and report indicate that this activity was entirely normal for the road and thus
should not be given weight. Even if Officer Hash himself had not discredited any attempt
to include Leyva’s delay in pulling over after the emergency lights had been activated, we
would not find this factor especially weighty in the reasonable suspicion analysis. See, e.g.,
United States v. Jenson, 462 F.3d 399, 405-06 (5th Cir. 2006) (giving “great respect” to the
arresting officer’s testimony that, in his experience, it was unusual for the defendant’s car
not to come to an immediate stop but finding that “thirty seconds to a minute was a
reasonable amount of time for [the defendant] to respond to the flashing of the emergency
lights” and in itself could not support reasonable suspicion that the defendant possessed
contraband).

23
vehicle, and the response to this question gave him further justification to expand his search
by asking for consent to search the vehicle. Leyva’s argument that his consent was tainted
by an unreasonable seizure fails.

III. CONCLUSION

{62} Duran’s subject matter and duration Terry analysis for questioning during traffic
stops is no longer valid under the Fourth Amendment, but is retained for analysis under
Article II, Section 10 of the New Mexico Constitution. Leyva’s Fourth Amendment rights
were not violated by police questioning that occurred after the traffic investigation was
completed because the questions were a de minimis extension of the detention and
reasonable under the circumstances. Leyva preserved his Article II, Section 10 argument,
and the State carried its burden to show that questions asked after the traffic stop had been
concluded were not unreasonable under the New Mexico Constitution. The district court’s
order denying the motion to suppress is affirmed.

{63} IT IS SO ORDERED.

______________________________________
PATRICIO M. SERNA, Justice

WE CONCUR:

______________________________________
CHARLES W. DANIELS, Chief Justice

______________________________________
PETRA JIMENEZ MAES, Justice

______________________________________
RICHARD C. BOSSON, Justice

______________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Leyva, Docket No. 32,067

AE APPEAL AND ERROR
AE-PA Preservation of Issues for Appeal

CT CONSTITUTIONAL LAW
CT-FA Fourth Amendment
CT-IT Interstitial Analysis
CT-NM New Mexico Constitution, General

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CT-SU Suppression of Evidence

CA CRIMINAL PROCEDURE
CA-CN Consent
CA-MR Motion to Suppress
CA-RS Reasonable Suspicion
CA-SZ Search and Seizure
CA-WS Warrantless Search

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