(dissenting).
{19} This is a United States Border Patrol fixed or permanent checkpoint case. These fixed checkpoints have become fixtures on our landscape. Persons driving in southern New Mexico should know that fixed checkpoints exist at certain locations and that the agents are interested in both illegal immigration and illegal drugs. See United States v. Martinez-Fuerte, 428 U.S. 543, 557-60, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (holding detention at Border Patrol fixed checkpoint legal). Those persons should also expect that at these fixed checkpoints Border Patrol agents might use drug-sniffing dogs. See United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir.1990) (holding use of dog at police roadblock to sniff drugs outside vehicle not a search under the Fourth Amendment). My dissent in this ease relates only to the use of drug-sniffing dogs at Border Patrol fixed checkpoints.
{20} Cases in federal court involving searches at Border Patrol fixed checkpoints are governed by the Fourth Amendment to the United States Constitution. In these Border Patrol cases, if federal case precedent exists, we should follow it. Although if an appellant has properly raised Article II, Section 10 of the New Mexico Constitution in the trial court and then on appeal, under the requirements stated in State v. Gomez, 1997-NMSC-006, ¶ 21, 122 N.M. 777, 932 P.2d 1, we are free to analyze the constitutionality of a search under our New Mexico Constitution and determine whether to read our Constitution to provide broader protection than that provided by the federal courts under the Fourth Amendment. Here, Defendant did not sufficiently raise the New Mexico Constitution and did not ask us to apply our Constitution in a more protective way than the protection afforded by the federal cases decided under the Fourth Amendment.
{21} Under Tenth Circuit case precedent, a dog-sniff outside and around a lawfully detained vehicle at a roadblock is not a search within the meaning of the Fourth Amendment. See Morales-Zamora, 914 F.2d at 203. I see the question in the present case to be the following: Does an outside dog-sniff become a search within the meaning of the Fourth Amendment where, as here, during the lawful detention at a Border Patrol fixed checkpoint, the trunk of the vehicle is consensually and voluntarily opened by the driver pursuant to a Border Patrol agent’s request “to inspect the trunk,” and the agent then directs a dog to the area outside but near the trunk to sniff for drugs?
{22} The Fourth Amendment focus in this ease should be whether the use of the dog at a Border Patrol fixed checkpoint is a search, not whether the agent exceeded the scope of consent by use of the dog. The focus in this case necessarily is based on federal law interpreting the Fourth Amendment, and not what State law perhaps should be under the New Mexico Constitution.
{23} When we analyze the underlying purpose of the Fourth Amendment protection against unreasonable searches, we must determine whether the police activity “is an intrusion on a legitimate expectation of privacy.” State v. Warsaw, 1998-NMCA-044, ¶ 14, 125 N.M. 8, 956 P.2d 139 (citing Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)).
[W]e consider: (1) whether the individual’s conduct demonstrated a subjective expectation of privacy, and (2) whether society recognizes the individual’s expectation of privacy as reasonable.
Warsaw, 1998-NMCA-044, ¶ 14 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).
{24} It is undisputed here that Defendant consented to the agent’s inspection of the trunk, that Defendant got out of the vehicle and opened the trunk, and that Defendant was lawfully detained at the time the agent requested consent to inspect the trunk and during the dog-sniff. It is beyond question that Defendant voluntarily relinquished any expectation of privacy he reasonably had insofar as a trunk inspection by the agent was concerned. That is, Defendant waived any Fourth Amendment protection he may otherwise have had to the agent’s inspection of the trunk.
{25} We look then at the steps taken by the agent at the location of the voluntarily-opened trank and during a lawful detention based on reasonable suspicion. The agent had a dog brought to the vehicle, and located the dog downwind from the trunk for the purpose of inspecting the trank by sniffing to detect drugs. We analyze this activity in the light of Morales-Zamora, in which the Tenth Circuit Court of Appeals held that a dog-sniff of the exterior of a vehicle during a lawful city police roadblock detention is not a search within the meaning of the Fourth Amendment. See Morales-Zamora, 914 F.2d at 205. In Morales-Zamora, the court held that “society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor.” Id.; see also Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 1466, 146 L.Ed.2d 365 (2000) (Breyer, J., dissenting) (“Consider, too, the accepted police practice of using dogs to sniff for drugs hidden inside luggage.”); United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (deciding that exposure of traveler’s luggage at airport to a trained canine did not constitute a “search” within the meaning of the Fourth Amendment); State v. De Jesus-Santibanez, 119 N.M. 578, 582, 893 P.2d 474, 478 (Ct.App.1995) (ruling that drug dog brought to vehicle during lawful detention that alerted to bed of truck satisfied probable cause to then begin search); State v. Villanueva, 110 N.M. 359, 362-63, 796 P.2d 252, 255-56 (Ct.App.1990) (stating that bus passenger has “no privacy right or reasonable expectation of privacy ... as to the airspace surrounding closed items of luggage,” and dog-sniffs of luggage compartment of bus did not constitute a search within the meaning of the Fourth Amendment).
{26} Defendant distinguishes Morales-Zamora by drawing a distinction between the “dog-sniff of the outside of the vehicle” in Morales-Zamora, which Defendant characterizes as a “standard ‘dog sniff,’ in which the dog is run around the outside of the vehicle,” and the circumstance in which an agent directs “a drug dog to inspect [an] open[ed] trunk.” [BIC 11] Defendant calls the latter circumstance a search, and proceeds from that premise to argue that the agent exceeded the scope of Defendant’s consent to inspect the trunk.
{27} It seems clear under Morales-Zamora that if the agent had not gotten the trunk opened, an exterior dog-sniff and alert to the rear quarter panel would not have constituted a search. Defendant in fact concedes this. If then, pursuant to Morales-Zamora, a dog-sniff of the exterior of a vehicle with its trunk closed does not implicate the Fourth Amendment, why is the Fourth Amendment implicated if the exterior drug-sniff occurs at the direction of the agent after an agent requests and a driver consents to opening the trunk? I am unable to implicate the Fourth Amendment based either on the idea of police deception or on the scope of consent.
{28} Were Morales-Zamora not present, application of the test of privacy in Warsaw would be our primary guideline. Pursuant to Warsaw, we ask whether, in the context of the consensual trunk opening for “inspection” combined with the directed exterior dog-sniff, (1) defendant “demonstrated a subjective expectation of privacy,” and (2) “society recognizes [that] expectation of privacy as reasonable.” Warsaw, 1998-NMCA-044, ¶ 14. Boiled down in this manner, I find no demonstration here of any subjective expectation of privacy on Defendant’s part. Defendant consented to an inspection of the trunk, and without having to be asked to do so got out of the vehicle and opened the trunk. Defendant was present when Agent Stack had Agent Martinez bring the dog out and when the agent located the dog at the rear of the vehicle. Defendant did not act or conduct himself to indicate any concern, and did not object to the use of the dog. Cf. State v. Garcia, 1999-NMCA-097, ¶ 14, 127 N.M. 695, 986 P.2d 491 (contrasting an Eighth Circuit case upholding a search as constitutional “because the defendant stood and watched and did not object,” and implying that a defendant can imply consent by failing to object); see also United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir.1993) (“[F]ailure to object made it objectively reasonable for the officers to conclude that his general consent to search the truck included consent to access the compartment in a minimally intrusive manner”).
{29} Nor am I persuaded that any subjective expectation Defendant may have had (of which there exists no evidence in this case) is recognized by society as reasonable. Defendant has presented no argument to support such a recognition. While society and courts, too, unquestionably must be ever vigilant and extremely guarded against government and police intrusion of privacy, I do not find the particular circumstances in this ease to be ones requiring us to draw a line and hold the agent’s use of the dog unconstitutional under the Fourth Amendment and case law interpreting the Fourth Amendment.
{30} Furthermore, neither New Mexico ease law following federal precedent, nor federal precedent itself, compels a determination that the use of the dog constituted a search. Defendant’s primary reliance in arguing to the contrary are two cases, namely, Warsaw and United States v. Winningham, 140 F.3d 1328 (10th Cir.1998). Neither Warsaw nor Winningham involved a fixed checkpoint stop, and both cases are also significantly different than the present case.
{31} In Warsaw, the trunk of the vehicle was opened due to an accident. See Warsaw, 1998-NMCA-044, ¶ 2. The vehicle was towed to an impound lot. See id. ¶3. Defendant later went to the impound lot and then actually told a lot employee that drugs were in a readily inaccessible area in the trunk. The employee told this to his boss, and the employee’s boss instructed the employee to call the police. See id. ¶ 5. The police brought a drug-sniffing dog to the impound lot, “introduced” the dog to the vehicle by stimulating the dog to locate drugs, and, after the agent reached into the trunk and cleared glass out from the trunk, the dog alerted to a rear-wheel well and then jumped into the trunk. Id. ¶ 6. Defendant at no time consented to any of this police activity and, in fact, had wanted to try to get his drugs out of the car before the police were involved. This Court held that defendant had an “expectation of privacy in his open[ed] trunk.” Id. ¶ 17.
{32} We reasoned in Warsaw that the police officer violated the defendant’s expectation of privacy by reaching “into the trunk to remove the glass-laden carpet because he expected the narcotics dog to jump in there,” by bending “their heads into the trunk to view the object of [the dog’s] alert,” and by causing the dog to jump into the opened trunk. Id. ¶ 17. We held “these activities” to constitute an illegal search. Id. We also held in Warsaiv that the police had probable cause to search the trunk, but that there were no exigent circumstances to justify a warrantless search. See id. ¶ 19. In addition, this Court held that defendant’s later consent to search was tainted due to the illegality of the search.
{33} Warsaw does not address the issue whether a dog-sniff in the exterior car space is a search or, if a search, is an unreasonable one that violates a person’s reasonable expectation of privacy. See Fernandez v. Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (holding that cases are not authority for propositions they did not consider). Furthermore, in Warsaw the defendant did not give consent before the police “reached into the trunk,” “bent their heads into the trunk,” and caused the dog to jump into the trunk through the officer’s “preparation, guidance, and stimulation.” Warsaw, 1998-NMCA-044, ¶ 17. Moreover, this Court determined that the defendant specifically sought to preserve the contents of his track as private. See id. ¶ 15. In the case before us, on the other hand, consent was given to inspect, no agent or dog entered the trunk space, and Defendant took no action to preserve the contents of his trank as private. Further, unlike Warsaw, the issue whether the use of the dog constituted a search is directly before us. Warsaw is not authority upon which to reverse the trial court in this case.
{34} Winningham is also markedly distinguishable. In Winningham, Border Patrol agents obtained consent to search a van. See Winningham, 140 F.3d at 1329. They asked the driver to step out of the van, and then the agents opened the sliding door of the van and conducted a visual search of its interior. See id. Finding nothing, the agents asked for and obtained consent to “ran a dog on [the] vehicle.” Id. The dog sniffed areas outside the van, and then when the dog reached the opened door, it jumped into the van and sniffed the interior, and eventually alerted at a rear vent. See id. at 1330. The trial court found that there was no voluntary consent for the dog to enter the cabin and suppressed the evidence. See id.
{35} The Tenth Circuit Court of Appeals affirmed, basing its affirmance on two points: First, the officers opened the door, and then unleashed the dog as the dog neared the open door, indicating “[a] desire to facilitate a dog sniff of the van’s interior”; and second, the officers had no reasonable suspicion, in that “reasonable suspicion was exhausted after [the agent] searched the van’s interior.” Id. at 1331. The court distinguished its previous decision in United, States v. Stone, 866 F.2d 359 (10th Cir.1989). Stone held that “the Fourth Amendment was not implicated when a trained drug dog leapt into the open[ed] hatchback door of a suspect’s car during a valid Terry stop because the dog’s action was ‘instinctive.’ ” Winningham, 140 F.3d at 1330. The court distinguished Stone “on both factual and legal grounds,” namely, that the “holding in Stone was driven not by what the officers did, but what they did not do,” and that “the officers in Stone acted under reasonable suspicion, a circumstance underscored by our limited holding.” Id. at 1330, 1331.
{36} Winningham is not authority in this case to reverse the trial court. The court did not address the question whether the dog’s activity outside the van constituted a search. In Winningham, consent was an issue; whether the dog’s use constituted a search was not. Moreover, Winningham was concerned with the fact that when the agents used the dog they no longer had reasonable suspicion on which to search inside the van with the use of the dog. See id. at 1331. In the present ease, as in Stone, the agents acted under reasonable suspicion. In addition, in the present case, neither agent nor dog entered the vehicle’s trunk space; whereas, in Winningham, the agents and the dog entered the van.
{37} It is also important to note that neither Winningham nor Warsaw mentions Morales-Zamora, presumably because neither Winningham nor Warsaw involve the issue of whether an exterior dog-sniff constitutes a search or exceeds the scope of a consent to search.
{38} I am very much aware of a concern that, because of the extraordinary ability a dog has to detect odors, a dog-sniff is in the nature of a technological breakthrough to detect drugs. The canine nose power goes far beyond an agent’s power of smell or ability to inspect without a destructive search. The arguments are either that the “game” is no longer fair, or that citizens’ privacy is impermissibly invaded, because citizens’ expectations are based on human limitations, and not on extraordinary sense or modern technological investigative processes that are not physically intrusive.
{39} However, in this day many travelers are familiar with Border Patrol fixed checkpoints. Many traveling citizens are aware that drug dogs are used at border crossings and in international airports. United States Supreme Court opinions refer to “accepted police practice of using dogs to sniff’ for hidden drugs. Bond, 120 S.Ct. at 1466 (Breyer, J., dissenting). While there may exist skepticism about the benefit of fixed Border Patrol checkpoints, concern about the consequences if one refuses to allow a trunk inspection or objects to the use of a dog, and fear of encroachments on our Fourth Amendment protections from wrongful racial profiling or retaliation for asserting Fourth Amendment or other rights, no one should be surprised by the use of dogs to sniff around our vehicle at a Border Patrol fixed checkpoint, or even to sniff from outside a trunk that the driver voluntarily opens after giving the agent permission to inspect the trunk.
{40} The focus on scope of consent arises only upon a determination first that the conduct constitutes a search. To deviate from federal law and hold the conduct in this case to constitute a search requires that the Gomez preservation requirements be met. Because those requirements were not met, we cannot in this case determine whether New Mexico, under its own Constitution, should broaden the privacy interests of citizens and provide greater protection to citizens when Border Patrol agents use drug-sniffing dogs.
{41} Consistent with the underlying basis for my dissent in State v. Cardenas-Alvarez, 2000-NMCA-009, 128 N.M. 570, 995 P.2d 492, I think that Tenth Circuit law validates the use of the dog to sniff outside the vehicle notwithstanding the failure of the agent to obtain Defendant’s specific consent to the use of the dog to sniff the voluntarily-opened trunk. And also consistent with my dissent in Cardenas-Alvarez, failing proper preservation of the issue below as required in Gomez, this Court in the present case should not expand Defendant’s Fourth Amendment protection to outlaw this use of a drug-sniffing dog.