State v. Cardenas-Alvarez

OPINION

FRANCHINI, Justice.

{1} On September 6,1997, a federal agent at a permanent border patrol checkpoint more than sixty miles north of the Mexican border seized eighty-five pounds of marijuana from Defendant. At trial in state court, Defendant moved to suppress the evidence based on the federal agent’s alleged violation of the United States and New Mexico Constitutions. The trial court denied the motion. A two-judge majority of the Court of Appeals reversed the trial court, holding that the federal agent unlawfully extended Defendant’s detention. We granted certiorari to review that holding. We hold: (1) the federal agent did not violate the federal Constitution; (2) the New Mexico Constitution and laws apply to evidence seized by federal agents at a border patrol checkpoint sixty miles within the State of New Mexico when that evidence is proffered in state court; (3) the federal agent violated the New Mexico Constitution; and (4) the evidence thereby seized must be excluded in state court. We reverse Defendant’s conviction.

I.

{2} On the date in question, federal agent Hector Arredondo had been employed as a border patrol agent on the U.S.-Mexico border for approximately two-and-one-half months. At about 7:45 p.m., Candelario Cardenas-Alvarez, driving a pick-up with Mexican plates, reached Agent Arredondo’s primary station at a permanent checkpoint more than sixty miles north of the border. When asked for identification, Defendant produced a resident alien identification card. After inspecting Defendant’s documents, Agent Arredondo began to ask Defendant about the origin, destination and purpose of his trip. Defendant stated that he was on his way from El Paso to Albuquerque to pick up a vehicle that he had already purchased. He said that he borrowed the vehicle he was driving if om a friend.

{3} Agent Arredondo considered it suspicious that Defendant was driving at this time, since the late hour would cause Defendant to incur additional expenses for food and lodging. After having towed vehicles for a living for seven years prior to becoming a federal agent, Agent Arredondo thought it was strange that Defendant had not brought a second person to help tow the vehicle. Nor did Defendant appear to have a tow bar or tools other than those that might have fit in the small tool box that Agent Arredondo observed in the cab. Agent Arredondo also had suspicions concerning Defendant’s decision to follow a longer, less popular highway, rather than taking Interstate 25 to Albuquerque. Finally, Agent Arredondo thought it suspicious that Defendant was driving a vehicle with Mexican plates even though he was a resident alien. Agent Arredondo ordered Defendant to a secondary inspection area.

{4} At the secondary inspection area, Agent Arredondo asked for and obtained Defendant’s consent to search the vehicle. That search revealed fresh scratch marks on the bolts attached to the gas tank. Agent Arredondo then asked for and obtained Defendant’s consent to conduct a canine inspection of the truck. The dog alerted to the gas tank, and a visual inspection revealed that it contained an internal tank. The agent arrested Defendant and advised him of his rights. Federal agents later dismantled the vehicle and discovered some eighty-five pounds of marijuana within the internal tank.

{5} At trial in state court, Defendant moved to suppress the evidence on the ground that Agent Arredondo lacked the reasonable suspicion of criminal activity required to detain Defendant beyond the initial questioning. The trial judge denied the motion to suppress based on her conclusion that Defendant’s responses to Agent Arredondo’s questions raised reasonable suspicion. After a jury trial, Defendant was found guilty of possession of marijuana with intent to distribute. The Court of Appeals reversed the conviction, holding that the extended detention of Defendant was unlawful. See State v. Cardenas-Alvarez, 2000-NMCA-009, 128 N.M. 570, 995 P.2d 492. We granted certiorari, and now affirm the Court of Appeals. We hold that although Agent Arredondo did not violate the United States Constitution, he did violate Article II, Section 10 of the New Mexico Constitution. The evidence obtained by Agent Arredondo must therefore be suppressed in state court.

II.

{6} The constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994); State v. Hernandez, 1997-NMCA-006, ¶ 18, 122 N.M. 809, 932 P.2d 499. Defendant claims that the search and seizure conducted by Agent Arredondo violated his rights under both federal and state constitutions. For reasons set forth below, we reject Defendant’s claim that the search and seizure violated his rights under the federal Constitution. In addressing his state constitutional claim, we employ the interstitial analysis adopted in State v. Gomez, 1997-NMSC-006, ¶¶ 19-22, 122 N.M. 777, 932 P.2d 1. Pursuant to Gomez, we ask: (1) whether the right being asserted is protected under the federal Constitution; (2). whether the state constitutional claim has been preserved; and (3) whether there exists one' of three reasons for diverging from federal precedent. Id.

A. WHETHER THE RIGHT IS PROTECTED BY THE FEDERAL CONSTITUTION

{7} If the federal Constitution affords Defendant the protection he seeks, we will not examine his state constitutional claim. See Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. Here, Defendant seeks protection from the extension of his detention at a border checkpoint stop when the officer conducting the detention allegedly lacked reasonable suspicion of criminal activity. In Cardenas-Alvarez, the two-judge majority recognized that unlike New Mexico courts, which demand “reasonable suspicion” to extend a detention beyond routine questions, the Tenth Circuit requires mere “suspicious circumstances.” 2000-NMCA-009, ¶ 14, 128 N.M. 570, 995 P.2d 492 (comparing State v. Galloway, 116 N.M. 8, 9, 859 P.2d 476, 477 (Ct.App.1993) with United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993)). The Court of Appeals held Defendant’s extended detention unconstitutional because “the facts known to the Border Patrol agents [do not meet] what we have assumed to be the lower Tenth Circuit standard of suspicious circumstances.” Cardenas-Alvarez, 2000-NMCA-009, ¶ 18, 128 N.M. 570, 995 P.2d 492. The State argues that this holding “rests on a misunderstanding of federal border search law.” We agree. Under federal law, Defendant’s detention constituted a routine border checkpoint stop and therefore need not have been supported by suspicious circumstances.

{8} Federal courts have rendered the referral of a motorist from primary to secondary legally immaterial; a Border Patrol agent need not observe suspicious circumstances to make such a referral so long as the detention is permissible in scope and duration. See United States v. Ludlow, 992 F.2d 260, 263-64 (10th Cir.1993) (holding that “Border Patrol agents have virtually unlimited discretion to selectively refer cars to the secondary inspection area. Thus a routine checkpoint inquiry may properly take place at a primary inspection area, a secondary inspection area, or both as long as the scope of the inquiry is appropriate.”); United States v. Sanders, 937 F.2d 1495, 1499-1500 (10th Cir.1991) (holding that suspicious circumstances are not required to justify the referral of an individual to a secondary inspection station); see also United States v. Pinedo-Montoya, 966 F.2d 591, 593-94 (10th Cir.1992) (holding that reasonable suspicion is required to detain a motorist and to conduct more than a routine stop, but referral of the accused to secondary detention was routine and constitutionally insignificant).

{9} Under federal law, Defendant’s detention was not excessive in scope or duration. Defendant does not allege, nor does the record suggest, that he was detained for an impermissibly long period of time. With regard to the scope of the detention, federal courts have held that a routine stop may include more than questions regarding citizenship and immigration. “[A] few brief questions concerning such things as vehicle ownership, cargo, destination and travel plans may be appropriate [at a routine checkpoint stop] if reasonably related to the agent’s duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband.” U.S. v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.1993); see also United States v. Massie, 65 F.3d 843, 848 (10th Cir.1995) (same); United States v. Chavira, 9 F.3d 888, 889 (10th Cir.1993) (same).1 As demonstrated above, such a routine stop may be conducted at primary or secondary inspection areas without suspicious circumstances. Here, because Agent Arredondo’s questions concerned Defendant’s travel plans and were reasonably related to his duty to prevent the smuggling of contraband (in this case narcotics) they fell within the routine scope of inquiry allowed under the federal Constitution.

{10} Because federal law does not protect the right asserted by Defendant, Defendant’s consent to submit to a search of his vehicle was not tainted, under federal law, by any unlawful police conduct. Nor do we find merit in Defendant’s suggestion that his consent was involuntary under federal law, or that the dismantling of the vehicle exceeded the scope of his consent. Under federal law the dismantling of a vehicle is generally found to be reasonable and within the parameters of a general consent. See United States v. Pena, 920 F.2d 1509, 1514-15 (10th Cir.1990) (holding that a search that included removing a panel from the car door was within the scope of the defendant’s consent to “look” in his ear). The agents in the present case did not dismantle the vehicle until after they substantiated the presence of narcotics within the body of the vehicle by carrying out a canine search to which Defendant had also consented. See United States v. Santurio, 29 F.3d 550, 553 (10th Cir.1994) (holding that the removal of screws that fastened a strip of carpet covering a metal compartment containing cocaine did not exceed the scope of the defendant’s consent to search, especially since the officer did not “enter the compartment until the drug detection dog alerted to the presence of narcotics.”). Under federal law, the dismantling of Defendant’s vehicle in order to access the inner compartment of the gas tank did not exceed the scope of Defendant’s consent. Because the protections sought by Defendant are not cognizable under the federal Constitution, we now examine Defendant’s state constitutional claim.

B. PRESERVATION

{11} We begin our examination of Defendant’s state constitutional claim by determining whether Defendant properly preserved it. Under Gomez, our analysis of whether a state constitutional claim has been preserved depends on how our precedent treats the constitutional provision in question. 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1. If there is no precedent construing the state constitutional provision more broadly than its federal analog the defendant must assert at trial that the state constitution should be interpreted more broadly and provide reasons for the requested departure. Id. ¶ 23. If, on the other hand, there exists “established precedent” demonstrating that our interpretation of the New Mexico Constitution departs from federal constitutional law, we require less of the defendant to preserve his claim. See id. ¶22. If such state precedent exists, the defendant preserves his claim 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.” Id.

{12} Defendant alleges that his detention was impermissibly extended without reasonable suspicion of criminal activity. This claim is governed by Article II, Section 10 of the New Mexico Constitution. As recognized in Gomez, although the language of this section closely resembles its federal analog, “[t]here is established New Mexico law interpreting Article II, Section 10 more expansively than the Fourth Amendment.” Id. ¶ 24 (citing Campos v. State, 117 N.M. 155, 870 P.2d 117 (1994)). See also Attaway, 117 N.M. at 147-50, 870 P.2d at 109-12 (recognizing that “knock and announce” rule, while not compelled under federal law, is required by Article II, Section 10 of the New Mexico Constitution); State v. Gutierrez, 116 N.M. 431, 447, 863 P.2d 1052, 1068 (1993) (holding that “the good-faith exception to the federal exclusionary rule is incompatible with the constitutional protection found under Article II, Section 10.... ”); State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989) (concluding that New Mexico’s test for determining probable cause “better effectuatefs] the principles behind Article II, Section 10 of our Constitution than does the [federal] ‘totality of the circumstances’ test.”). Because established state precedent treats our state search and seizure provision more expansively than the Fourth Amendment, we apply the less restrictive test for preservation. Accordingly, we ask whether Defendant asserted the state constitutional principle that provides the protection he seeks and whether he provided a factual basis upon which the trial court could rule on the issue.

{13} Counsel for Defendant remarked in his closing statement at the suppression hearing that “[particularly in search and seizure law within New Mexico ... the appellate courts are saying that our constitution gives greater rights than the federal constitution does.” While Defendant failed to specify the article and section number of the relevant constitutional provision, he clearly alerted the court to the constitutional principle (the prohibition against unreasonable searches and seizures) under which he sought protection. The trial court was also provided with the factual basis necessary to rule on the issue. The State asked Agent Arredondo about the questions he asked Defendant and the facts that allegedly aroused his suspicion. Defendant’s cross-examination of Agent Arredondo and closing statement directly addressed the reasonableness of that suspicion. The trial court then ruled on the issue. We hold that Defendant’s state constitutional claim was preserved.

C. REASONS FOR DEPARTING FROM FEDERAL PRECEDENT

{14} Under Gomez, a state court may diverge from federal precedent for one of the following three reasons: “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 (internal citations omitted). We do not find flaw in the federal analysis, nor do we detect structural differences between state and federal gov-eminent that warrant departure from federal precedent. Our examination of New Mexico law, however, does reveal distinctive characteristics that command our departure from federal law governing border checkpoint detentions.

{15} In Gomez, we expanded the protection afforded New Mexico’s motorists from unreasonable searches and seizures. See id. ¶ ¶ 36-44. The Gomez Court questioned whether we should adopt the federal automobile exception to the warrant requirement. See id. The Court recognized that this exception, which would allow law enforcement officials to search vehicles without warrants so long as they have probable cause, was based, in part, on the notion that a motorist has a lesser expectation of privacy in an automobile. See Gomez, 1997-NMSC-006, ¶ 37, 122 N.M. 777, 932 P.2d 1. In rejecting the federal automobile exception to the warrant requirement, this Court dismissed the notion that an individual lowers his expectation of privacy when he enters an automobile, and elected instead to provide motorists with a “layer of protection” from unreasonable searches and seizures that is unavailable at the federal level. Id. ¶ 38. Gomez confirms that New Mexico courts interpret Article II, Section 10 of the state constitution more broadly than its federal counterpart, and specifically applies that broader protection to motorists. The extra layer of protection from unreasonable searches and seizures involving automobiles is a distinct characteristic of New Mexico constitutional law.

{16} In a series of pre-Gomez cases interpreting the Fourth Amendment, our Court of Appeals defined a “routine” border checkpoint in a way that permits less of an intrusion than we believe federal law allows. In Galloway, for example, we examined a border checkpoint stop at which the Border Patrol agent, after inquiring about the defendants’ citizenship, proceeded to ask additional questions regarding their travel plans, and referred them to secondary. 116 N.M. at 9, 859 P.2d at 477. Unlike the Tenth Circuit, which considers questions regarding travel plans and the referral of a defendant from primary to secondary part of a routine border checkpoint stop that requires no suspicion of criminal activity, the Galloway Court sought to determine whether the agent “had reasonable suspicion to prolong the detention at the primary area to ask about the nature of the trip and to refer the vehicle to the secondary area based on the answers he received.” Id. See also Affsprung, 115 N.M. at 548-49, 854 P.2d at 875-76 (requiring reasonable suspicion to justify a Border Patrol agent’s inquiry into the ownership of the defendant’s vehicle and his travel plans); Estrada, 111 N.M. at 799, 810 P.2d at 818 (“[I]f the issues of residence or citizenship are resolved at the primary area of the checkpoint, referral of a vehicle to the secondary area must be based on at least reasonable suspicion of wrongdoing.”); cf. State v. Guzman, 118 N.M. 113, 114-15, 879 P.2d 114, 115-16 (Ct.App.1994) (determining whether or not a Border Patrol agent’s questions regarding the defendant’s travel plans and vehicle ownership were supported by reasonable suspicion); State v. Porras-Fuerte, 119 N.M. 180, 184, 889 P.2d 215, 219 (Ct.App. 1994) (treating the second detention of a vehicle that had already left a border checkpoint as a secondary stop, and holding that “reasonable suspicion remains the standard by which we judge these second stops.”). Although Galloway, Affsprung, and Estrada conflict with the lesser degree of privacy that federal courts afford motorists and the prevailing Tenth Circuit approach to border checkpoints, these eases are consistent with the extra layer of protection that New Mexico offers its motorists. Therefore, in New Mexico, we continue to proscribe the prolongation of a border checkpoint stop once questions regarding citizenship and immigration status have been answered, unless the officer conducting the stop reasonably suspects the defendant of criminal activity. Traffic congestion may require the referral of a motorist from primary to secondary -without offending this rule, see Estrada, 111 N.M. at 800, 810 P.2d at 819, however, no such congestion was present in this ease. We now consider whether our state search and seizure jurisprudence applies to the ease at bar.

III.

{17} The State argues that New Mexico’s requirement that reasonable suspicion justify a prolonged border checkpoint stop cannot apply to federal agents. The State suggests that federal agents are not subject to state constitutions, and that their alleged non-compliance with the New Mexico Constitution, like the non-compliance of a private actor, does not affect the admissibility of evidence in a New Mexico court. The exclusionary rule requires suppression of the fruits of searches and seizures conducted in violation of the New Mexico Constitution. See Gutierrez, 116 N.M. at 444^47, 863 P.2d at 1065-68. If, as the State argues,, federal agents are incapable of violating a state constitution, the exclusionary rule would not be activated, and the evidence would be admissible. We therefore consider whether the actions of federal agents can implicate the protections of the New Mexico Constitution for purposes of determining the admissibility of evidence in state court.

{18} Article II, Section 10. of the New Mexico Constitution provides, “The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.... ” In Gutierrez, we stated that this clause is an expression of “the fundamental notion that every person in this state is entitled to be free from unwarranted governmental intrusion.” 116 N.M. at 444, 863 P.2d at 1065. The Court emphasized that the purpose of the exclusionary rale is not to deter or ensure judicial integrity, but to “effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.” Id. at 446, 865, 863 P.2d 1052. We find no mandate in the text of Article II, Section 10, nor in our jurisprudence interpreting this clause, to selectively protect New; Mexico’s inhabitants from intrusions committed by state but not federal governmental actors. Nor do we believe such a limitation is appropriate. Unlike the private actors with whom the State compares them, federal agénts exercise jurisdiction over New Mexicans and possess the authority to systematically subject our inhabitants to searches, seizures and other interferences. A federal agent who wields these powers unreasonably commits precisely the sort of “unwarranted governmental intrusion” against which the New Mexico Constitution ensures. We hold that when a federal agent effectuates such an intrusion and the State proffers the evidence thereby seized in state court, we will subject it to New Mexico’s exclusionary rule. See State v. Snyder, 1998-NMCA-166, ¶ 11, 126 N.M. 168, 967 P.2d 843 (applying the exclusionary rule to the use, in a New Mexico state court, of evidence seized in New Mexico by federal Border Patrol agents in violation of the New Mexico Constitution); State v. Davis, 313 Or. 246, 834 P.2d 1008, 1012 (1992) (holding that given the emphasis placed on individual rights by the Oregon Constitution, Oregon’s search and seizure provision applies no matter “where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it____”); State v. Williams, 94 Wash.2d 531, 617 P.2d 1012, 1017-18 (1980) (concluding that the Washington Privacy Act “fully applies to evidence proffered in state court, even when that evidence was gathered by federal peace officers.”); cf. Wilson v. Schnettler, 365 U.S. 381, 391, 81 S.Ct. 632, 5 L.Ed.2d 620 (1961) (Douglas, J., dissenting) (“In the state trial the issue will not be whether the federal agents have acted within the limits of their federal authority, but whether, under the state constitution, the search was a reasonable one.”); but see State v. Mollica, 114 N.J. 329, 554 A.2d 1315, 1327 (1989) (refusing to apply the New Jersey Constitution to the actions of federal officers because such application “would disserve the principles of federalism and comity, without properly advancing legitimate state interests.”).

{19} Justice Baca suggests that by applying state law to the evidence seized by Agent Arredondo, we risk “making illegal what federal law makes legal for federal agents.” J. Baca’s Special Concurrence, ¶ 30. We do not pretend to possess such authority. Our application of state constitutional standards to determine the admissibility in state court of evidence seized by federal agents will not affect any prosecution that might be brought against Defendant in federal court, or otherwise circumscribe federal activities within our borders. See, e.g., United States v. Wright, 16 F.3d 1429, 1434 (6th Cir.1994) (“[T]he state may exclude evidence in trials that would not be excluded by application of the Fourth Amendment. However, the state rule does not have to be applied in federal court.”); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir.1987) (refusing to apply state exclusionary rule in federal court); United States v. Rose, 806 F.2d 931, 932 (9th Cir.1986) (“The fact that Oregon sees fit to provide broader immunity is irrelevant where the question arises in federal court in response to a federal charge.”). We acknowledge the supremacy of the federal government and encourage federal agents to continue to enforce the law in as vigilant a manner as the federal Constitution permits. When such vigilance violates the protections guaranteed by our state constitution, however, we will not abandon our guard of those protections in order to accommodate evidence thereby yielded. Although we do not claim the authority to constrain the activities of federal agents, we do possess the authority-and indeed the duty-to insulate our courts from evidence seized in contravention of our state’s constitution.2

IV.

{20} The above analysis establishes that our state constitution applies to evidence seized by federal agents when the State seeks to admit that evidence in state court. Our interpretation of the New Mexico Constitution demands that after a Border Patrol agent has asked about a motorist’s citizenship and immigration status, and has reviewed the motorist’s documents, any further detention requires reasonable suspicion of criminal activity. See Galloway, 116 N.M. at 9, 859 P.2d at 477; Affsprung, 115 N.M. at 548-49, 854 P.2d at 875-76; Estrada, 111 N.M. at 799, 810 P.2d at 818. Agent Arredondo prolonged Defendant’s detention by asking him additional questions and referring him to secondary. We now question whether Agent Arredondo possessed the requisite reasonable suspicion.

{21} In determining whether reasonable suspicion exists, we examine the totality of the circumstances. See Affsprung, 115 N.M. at 549, 854 P.2d at 876. “Reasonable suspicion must be based on specific articulable facts and the rational inferences that may be drawn from those facts.” State v. Flores, 1996-NMCA-059, ¶7, 122 N.M. 84, 920 P.2d 1038. Agent Arredondo offered no justification for his decision to ask Defendant additional questions after the issue of immigration had been resolved. The only reasons he offered for his decision to refer Defendant to secondary were that “all the facts he was telling me [were suspicious]” and that Defendant’s account of what he was doing “was not very reasonable.” This testimony does not amount to specific facts from which an inference of criminal activity could possibly be drawn. Moreover, after reviewing the record in its entirety, we agree with the Court of Appeals that the facts that Agént Arredondo observed could not possibly have amounted to reasonable suspicion. See Cardenas-Alvarez, ¶ 17. Defendant was driving a friend’s pickup, with Mexican plates, along an alternate route from El Paso to Albuquerque at 7:45 in the evening. The fact that he had neither a companion nor a tow bar is not inconsistent with his stated purpose of picking up a vehicle that belonged to him because he could have been meeting a companion or picking up a tow bar in Albuquerque. We agree with the Court of Appeals that none of these facts, taken alone or together, “indicate a sinister motive” or otherwise raise reasonable suspicion.. See id. We therefore hold that Agent Arredondo violated the New Mexico Constitution when he prolonged Defendant’s detention without reasonable suspicion. Because we determine that Defendant’s detention was unconstitutional we need not reach his state constitutional claim that the ensuing search exceeded the scope of his consent.

V.

{22} Having determined- that the New Mexico Constitution applies to' the evidence seized by Agent Arredondo, and that the prolonged detention violated the New Mexico Constitution, we must now determine whether the evidence must be suppressed. As discussed above, the exclusionary rule requires the suppression of the fruits of an unconstitutional search and seizure. See Gutierrez, 116 N.M. at 444-47, 863 P.2d at 1065-68. A defendant’s consent to a search following an -unconstitutional search and seizure may sanitize the evidence and exempt it from the exclusionary rule if there exists a sufficient causal break between - the illegal conduct and the consent. See State v. Bedolla, 111 N.M. 448, 455-56, 806 P.2d 588, 593-94 (Ct.App.1991). Here, Defendant’s consent was tainted by the unlawfully prolonged detention that immediately preceded it. That taint was never purged by a causal, or even temporal, break in the chain of events that led from the unconstitutional seizure to the consent to search. All evidence thereby seized is therefore inadmissible in New Mexico state courts.

VI.

{23} Defendant’s conviction is reversed.

{24} IT IS SO ORDERED.

WE CONCUR: PAMELA B. MINZNER, Justice, PETRA JIMENEZ MAES, Justice. PATRICIO M. SERNA, Chief Justice (specially concurring). JOSEPH F. BACA, Justice (specially concurring).

. We recognize that, notwithstanding these cases, our Court of Appeals has held that federal law restricts a "routine” border checkpoint to questions regarding citizenship. See Galloway, 116 N.M. at 9, 859 P.2d at 477; State v. Affsprung, 115 N.M. 546, 548-49, 854 P.2d 873, 875-76 (Ct.App.1993); State v. Estrada, 111 N.M. 798, 799, 810 P.2d 817, 818 (Ct.App.1991). Chief Justice Serna suggests that Estrada represents the correct federal approach to border checkpoints, and that the present case may be resolved on federal grounds without analyzing the state constitution. C.J. Serna’s Special Concurrence, ¶1161-63. We disagree. While our Court of Appeals’ cases represent a sound approach to border checkpoints under the New Mexico Constitution, we believe that in light of Rascon-Ortiz, Massie and Chavira, they misinterpret the federal law they purport to apply. In arguing that federal law protects the Defendant’s right, the Chief Justice also relies on U.S. v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), which is silent on the permissible scope of a border checkpoint stop, and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 457, 148 L.Ed.2d 333 (2000), which did not involve a border checkpoint stop and did "nothing to alter the constitutional status of the ... border checkpoints that [the Supreme Court] approved in ... Martinez-Fuerte." We do not believe that these Supreme Court cases limit the scope of a routine border checkpoint to questions regarding citizenship. Even if Edmond did, as the Chief Justice suggests, place the scope of a routine border checkpoint stop "in some doubt”, C.J. Serna’s Special Concurrence, ¶ 59, we believe that such doubt would compel, rather than foreclose, our examination of state constitutional law.

. We believe that our decision to apply New Mexico’s exclusionary rule to evidence seized by federal agents in violation of the New Mexico Constitution and proffered in state court will have precisely the same limited impact on the federal government as would Justice Baca’s contention that "because the evidence in this case was obtained by federal agents, the New Mexico Constitution determines the admissibility of the evidence in state court." J. Baca’s Special Concurrence, V 46. While we find state action in the federal agent's prolonged detention of Defendant, however, Justice Baca instead argues that "state action occurred when the State filed charges against the Defendant and sought to use and did, in fact, use the evidence in a New Mexico prosecution." J. Baca’s Special Concurrence, ¶ 45. We have encountered no legal authority for this version of state action. Normally, in order to find state action in the prosecutor’s use of evidence, there must be a showing of agency between the party who obtained the evidence and the party using it. See, e.g., Skinner v. Ry. Labor Executives’ Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Here, the federal government was not acting as agent of the State. Moreover, according to Justice Baca, the source of the constitutional violation (a necessary ingredient to the imposition of the exclusionary rule) lies not in the action of the state prosecutors, but in the idea that, "Since the evidence obtained as a result of the prolonged seizure of the Defendant and subsequent search of his vehicle would be unlawful under Article II, Section 10 of the New Mexico Constitution had state officials conducted the search, our exclusionary rule prohibits the use of such evidence in a New Mexico state court.” J. Baca’s Special Concurrence, 1157. Even according to this questionable interpretation of the exclusionary rule, the state actors (New Mexico prosecutors) are not responsible for tire constitutionally offensive action (the prolonged seizure of Defendant). We doubt that the exclusionary rule can be properly imposed upon such grounds.