(concurring in result).
{57} I concur in the result. However, I would affirm the Court of Appeals on the basis of the Fourth Amendment to the United States Constitution, and I respectfully believe it is unnecessary to reach the state constitutional question in this appeal. Under the interstitial approach outlined in Gomez, we look first to federal law and only address the New Mexico Constitution if the right being asserted is not protected by the federal Constitution. This approach advances the “responsibility of state courts to preserve national uniformity in development and application of fundamental rights guaranteed by our state and federal constitutions.” Gomez, 1997-NMSC-006, ¶21, 122 N.M. 777, 932 P.2d 1 (quoted authority and quotation marks omitted).
{58} The majority relies upon Tenth Circuit case law to conclude that the seizure in this case did not violate federal law. I do not disagree with the majority’s interpretation of existing Tenth Circuit precedent. Instead, I disagree with the Tenth Circuit’s construction of the opinions of the United States Supreme Court, and I also believe that a recent United States Supreme Court opinion raises some doubts about the Tenth Circuit’s position on this issue. To begin with, the courts of New Mexico are bound by the United States Supreme Court’s interpretation of the federal Constitution, but where the issue has not been explicitly resolved by the Supreme Court, we are not bound in our search for the meaning of the Fourth Amendment by the Tenth Circuit’s interpretation of Supreme Court precedent. See ASARCO, Inc. v. Radish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (“[Sjtate courts ... possess the authority, absent a provision for exclusive federal jurisdiction, to render binding decisions that rest on their own interpretations of federal law.”); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n. 11, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Lockhart v. Fretwell, 506 U.S. 364, 375-76, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Thomas, J., concurring) (“In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. An Arkansas trial court is bound by this Court’s (and by the Arkansas Supreme Court’s and Arkansas Court of Appeals’) interpretation of federal law, but if it follows the Eighth Circuit’s interpretation of federal law, it does so only because it chooses to and not because it must.” (citations omitted)). Tenth Circuit case law on the subject is merely persuasive, albeit substantially persuasive, authority. In this case, the Court of Appeals relied on New Mexico precedent in its interpretation of the Fourth Amendment, and I believe that this precedent correctly interprets federal law. See Cardenas-Alvarez, 2000-NMCA-009, ¶ 9, 128 N.M. 570, 995 P.2d 492 (citing to State v. Affsprung, 115 N.M. 546, 547, 854 P.2d 873, 874 (Ct.App. 1993), and State v. Porras-Fuerte, 119 N.M. 180, 184, 889 P.2d 215, 219 (Ct.App.1994), both of which interpreted federal law and neither of which cited Article II, Section 10). Under this precedent, the Fourth Amendment required individualized suspicion for Agent Arredondo to order Defendant to the secondary area.
{59} The starting point in the analysis under the Fourth Amendment is the United States Supreme Court’s opinion in MartinezFuerte, in which the Court addressed the constitutionality of fixed checkpoints located a reasonable distance from the border at which individuals were stopped without particularized suspicion for the purpose of detecting illegal aliens. The Court determined that a stop at a border checkpoint constitutes a seizure within the meaning of the Fourth Amendment. Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. 3074. However, “weighfing] the public interest against the Fourth Amendment interest of the individual,” id. at 555, 96 S.Ct. 3074, the Court concluded that there was a substantial public interest in maintaining a traffic-checking program to detect illegal immigration and that the intrusion on Fourth Amendments rights was “quite limited.” Id. at 556-57, 96 S.Ct. 3074. As a result, the Court determined that the checkpoints did not violate the Fourth Amendment.
{60} Of particular relevance to the present case, the Court further determined that “it is constitutional to refer motorists selectively to the secondary inspection area ... on the basis of criteria that would not sustain a roving-patrol stop.” Id. at 563, 96 S.Ct. 3074. However, the design of the checkpoint in Martinez-Fuerte differed from the checkpoint in the present case. In MartinezFuerte, all vehicles passed through a primary area only for general visual inspection in order to minimize the intrusion on the general public, and most vehicles were allowed to continue through the checkpoint without further investigation. Id. at 546, 96 S.Ct. 3074. An agent at the primary area selected a small number of vehicles for further investigation at a secondary area, which included a closer visual inspection and brief inquiry into the occupants’ citizenship and immigration status and which lasted an average of three to five minutes. Id. Thus, the secondary area in Martinez-Fuerte is equivalent to the primary area in the present case. In determining that referral to a secondary area was permissible, the Court in Martinez-Fuerte based its decision on the “sufficiently minimal” intrusion that occurred at the secondary area, id. at 563, 96 S.Ct. 3074, and indicated that any detention beyond the stops at issue in the case would require individualized suspicion or consent. See id. at 567, 96 S.Ct. 3074.
{61} The Court of Appeals first meaningfully examined Martinez-Fuerte in State v. Estrada, 111 N.M. 798, 810 P.2d 817 (Ct.App. 1991). In that case, the Court of Appeals explained that “[a]t motor vehicle checkpoints, travelers are constitutionally subject only to brief questioning and limited visual inspection of them vehicles. More .extensive detention must be based on some degree of individualized suspicion or consent.” Id. at 799, 810 P.2d at 818 (citation omitted). In response to an argument by the State that Martinez-Fzierte allows referral to secondary areas without reasonable suspicion, the Court of Appeals pointed out that
the questioning at the secondary area in [.Martinez-Fuerte] was equivalent to the brief questioning performed at the primary area in this case. The issue in this ease and in [Martinez-Fuerte], therefore, is not simply whether a secondary or primary area was the location of the questioning. The issue is the extent of detention allowed to accomplish the purposes of the checkpoint.
Id. at 800, 810 P.2d at 819 (citation omitted). The Court of Appeals noted that some federal courts had interpreted Martinez-Fuerte in accordance with the State’s position, but the Court rejected this position as being inconsistent with the Supreme Court’s analysis in Martinez-Fuerte. Id. (“We should distinguish between diversion to secondary for [the purpose of initial brief questioning and inspection] and diversion to secondary after the routine questioning and investigation has been completed.”). The Court of Appeals reiterated this standard in Affsprung: “We have previously indicated that, in order to justify detention of a vehicle, beyond routine questioning, law enforcement agents need only have a reasonable suspicion of criminal activity.” 115 N.M. at 549, 854 P.2d at 876 (emphasis added).
{62} Under New Mexico precedent interpreting the federal Constitution, then, it is not the referral to a secondary area in and of itself that triggers the need for reasonable suspicion;1 it is the length of detention and the scope of the inquiry. “[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.” Estrada, 111 N.M. at 799, 810 P.2d at 818. In this case, Agent Arredondo resolved the issues of residence and citizenship at the primary area, and at the time of the referral to secondary, he lacked reasonable suspicion of criminal activity. Therefore, under Estrada, the seizure in this case violated the Fourth Amendment. By concluding that the federal Constitution offers no protection to Defendant in this case, the majority is effectively overruling Estrada and its progeny. I believe that this overruling of Court of Appeals’ precedent is unwarranted because, as explained further below, Estrada represents a reasonable interpretation of MartinezFuerte.
{63} Additionally, I do not believe that the interpretation of Martinez-Fuerte by the Court of Appeals in Estrada is necessarily inconsistent with Tenth Circuit case law. Like Estrada, the Tenth Circuit does not focus on the location of the questioning, whether it takes place at a primary or secondary area; the focus is on the length of detention and the scope of inquiry. Perhaps unlike Estrada, the Tenth Circuit permits a limited inquiry into suspicious circumstances beyond questions concerning immigration during the initial brief investigation authorized by Martinez-Fuerte. However, the Tenth Circuit has also held that “when the questions asked at the primary inspection area satisfy all concerns about a person’s citizenship and immigration status,” an agent must have reasonable suspicion that a crime has been committed in order to direct a vehicle to a secondary area for further questioning. United States v. Preciado, 966 F.2d 596, 598 (10th Cir.1992). “When an officer seeks to expand the investigation of a motorist beyond the reasons stated for the checkpoint, he or she must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir.1998) (quotation marks and quoted authority omitted).
Requiring an individualized, reasonable suspicion as a prerequisite to expanding the scope of detentions at fixed checkpoints protects motorists and passengers from random stops involving the “kind of standardless and unconstrained discretion [that] is the evil the Court has discerned when in previous eases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.”
Id. (quoting Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)) (alteration in original). Thus, what is clear under Tenth Circuit precedent is that federal border agents must have reasonable suspicion in order to justify extending a detention at a fixed checkpoint once the purposes of the checkpoint have been satisfied. What is not clear under Tenth Circuit case law is whether the detection of narcotics is one of the purposes of a fixed border checkpoint located a reasonable distance inside the border.
{64} In Sanders, 937 F.2d at 1499-1501, the Tenth Circuit held that border patrol officers may ask questions about “suspicious circumstances,” including circumstances related to narcotics trafficking, as part of the routine questioning under Martinez-Fuerte. The Tenth Circuit permitted border patrol agents to direct an individual to a secondary area after the individual responded to questions about citizenship and his destination because the individual was evasive in responding to a question about the contents of containers in his vehicle. Id. at 1499. The Tenth Circuit explained that “routine questions” at a border checkpoint can include asking about the ownership of the vehicle, asking to see the vehicle registration, and asking about the ownership and contents of cargo or containers, as well as follow-up questions if the initial inquiry produces suspicious circumstances. Id at 1500-01. In Chavira, 9 F.3d at 889, the Tenth Circuit reaffirmed its position that, even in the absence of reasonable suspicion, border patrol agents may ask a few brief questions about such matters as an individual’s destination and travel plans if the questions are reasonably related to illegal immigration and the smuggling of contraband. Further questioning and a brief detention is permitted if suspicious circumstances relating to immigration or contraband smuggling, falling short of reasonable suspicion, arise during the course of the routine questioning. Id. Based on these cases, it appears that the Tenth Circuit views an interior border patrol checkpoint as having the dual purpose of detecting illegal immigration and the smuggling of contraband. See United States v. Ludlow, 992 F.2d 260, 264 (10th Cir.1993).
{65} New Mexico cases thus differ from the Tenth Circuit in the interpretation of Martinez-Fuerte with respect to the permissible purposes for a fixed border checkpoint located inside the United States. I believe that New Mexico cases reflect a construction of the Fourth Amendment that more accurately accords with Supreme Court precedent. I also believe that the Tenth Circuit’s position is now in some doubt. In a recent opinion, the Supreme Court addressed the constitutionality of a fixed checkpoint designed primarily to discover the possession of illegal drugs. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 450, 148 L.Ed.2d 333 (2000). The Court discussed in some detail its opinion in Martinez-Fuerte. The Court noted that “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” Id. at 451. The Court has “recognized only limited circumstances in which the usual rule does not apply.” Id. Those limited circumstances have all involved programs “designed to serve special needs, beyond the normal need for law enforcement.” Id. (quotation marks and quoted authority omitted). With respect to Martinez-Fuerte, the Court emphasized the ‘“formidable law enforcement problems’ posed by the northbound tide of illegal entrants into the United States” and “the difficulty of effectively containing illegal immigration at the border itself.” Id. at 452 (quoting Martinez-Fuerte, 428 U.S. at 552, 96 S.Ct. 3074). The Court then contrasted these “special needs” from the general interest in crime control served by a drug checkpoint. Id. at 454-55. The Court noted the social evils and the “daunting and complex” law enforcement problems created by the drug trade. Id. at 454. However, the Court determined that “there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose” unless the Court drew the line at the general governmental interest of crime control. The Court therefore held that the drug checkpoint violated the Fourth Amendment. Id. at 458. ‘We cannot sanction stops [unsupported by reasonable suspicion] justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” Id. at 455.
{66} Although the Supreme Court stopped short of addressing whether a fixed border checkpoint established to detect illegal immigration may be enlarged to detect the possession of narcotics without individualized suspicion, see id. at 457 n. 2 (expressing “no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car”); see also United States v. Barnett, 935 F.2d 178, 181 (9th Cir.1991) (“Martinez-Fuerte says nothing about the legality of searching for drugs at permanent immigration checkpoints.”), I believe that the language used in both Martinez-Fuerte and Edmond supports the Court of Appeals’ interpretation of the Fourth Amendment in Estrada. Under Martinez-Fuerte, the government’s interest in conducting a seizure without reasonable suspicion is the substantial federal interest of “policing the Nation’s borders,” and a fixed checkpoint “serve[s] a border control function.” Edmond, 121 S.Ct. at 452 (“Our subsequent cases have confirmed that considerations specifically related to the need to police the border were a significant factor in our Martinez-Fuerte decision.”). Like the detection of illegal immigration, there is a substantial federal interest in preventing the smuggling of contraband across the international border. Thus, at the border, it would seem that a fixed checkpoint may be established for the dual purpose of detecting illegal immigration and preventing the smuggling of contraband.
{67} In Martinez-Fuerte, the Court explained that fixed checkpoints located away from the border at a reasonable distance inside the United States are necessary for the detection of illegal immigration because adequate detection at the border is a virtual law enforcement impossibility. 428 U.S. at 552, 556-57, 96 S.Ct. 3074. Unlike illegal immigration, however, it would be practically futile to detect whether narcotics possessed by an individual at an interior checkpoint had been transported across the border. Indeed, the illegal act sought to be uncovered by the border patrol at an interior checkpoint is not the importation of the narcotics but their mere possession. Whereas illegal immigration is exclusively a border issue, possession of narcotics is a vice that can be committed wholly inside New Mexico without the necessity of crossing the international border. As a result, the interdiction of narcotics inside the United States does not directly implicate “the [federal] Government’s interests in policing the Nation’s borders.” Edmond, 121 S.Ct. at 452. The detention of New Mexico residents on a New Mexico highway for the detection of illegal narcotics would again raise the specter of subjecting ‘“the residents of ... [border] areas to potentially unlimited interference with their use of the highways’ ” that attended the unconstitutional activity of random roving-patrol stops. Martinez-Fuerte, 428 U.S. at 558-59, 96 S.Ct. 3074 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 882-83, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975))(omission and alteration in original). Additionally, in Martinez-Fuerte, the Supreme Court emphasized that the record in that case supported the need to establish interior checkpoints in order to detect illegal immigration. 428 U.S. at 554, 562, 96 S.Ct. 3074. There is no showing in the record in this ease, however, that an interior checkpoint is necessary to prevent the importation of narcotics across the international border. Therefore, as in Edmond, at an interior border checkpoint, the detection of narcotics is a general crime control interest, which is a lesser governmental interest than the detection of illegal immigration. In other words, for purposes of the Fourth Amendment analysis, this ease does not involve any governmental “special needs,” as that phrase was used in Edmond.
{68} Of course, the conclusion that there is a lesser governmental interest at stake in this case, the general interest in crime control, does not necessarily mean that the Fourth Amendment requires reasonable suspicion. “In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual.” Martinez-Fuerte, 428 U.S. at 555, 96 S.Ct. 3074. Because the Fourth Amendment permits a fixed border checkpoint a reasonable distance within the United States for the purpose of detecting illegal immigration, individuals at an interior checkpoint will have already been legitimately stopped. The individual interest, then, is not the broader “ ‘right to free passage without interruption,’ ” Martinez-Fuerte, 428 U.S. at 557-58, 96 S.Ct. 3074 (quoting Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), but the more narrow freedom from an extended detention unsupported by individualized suspicion. Under these circumstances, I agree with the Tenth Circuit that routine questioning can include a brief and limited inquiry into an individual’s destination, travel plans, vehicle ownership, and cargo, as long as the questions remain routine and are circumscribed so as to ensure an extremely brief detention. See Chavira, 9 F.3d at 889. Although not all of these questions directly relate to illegal immigration and tend to relate more to narcotics, the additional intrusion over the initial stop is sufficiently minimal that it does not implicate the Fourth Amendment.
{69} Once this highly abbreviated questioning has been completed, however, I believe the detention rises to the level of requiring reasonable suspicion under the Fourth Amendment. If an officer persists in asking questions beyond those specifically listed above or to follow up on questions already asked, the length of the detention would necessarily increase. In addition, the subjective intrusion that the Supreme Court described in Martinez-Fuerte as minimal at fixed checkpoints would undoubtedly be heightened by the implicit message sent to the individual that the agent distrusts or is suspicious of the answers given to the routine questions. This is especially true of a referral to a secondary area as in this case because, unlike Martinez-Fuerte, the referral to secondary is not a routine matter. For the individual, a referral to a secondary area after initial questioning, as opposed to the referral for the purpose of routine questioning in Martinez-Fuerte, would undoubtedly cause a heightened level of “concern or even fright on the part of lawful travelers” that was not considered by the Court in Martinez-Fuerte.
{70} Also, the more questions an agent is permitted to ask, the greater the potential for abusive “discretionary enforcement activity.” Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074; accord Galindo-Gonzales, 142 F.3d at 1221. If an agent is permitted to extend a detention due solely to suspicious circumstances relating to narcotics, there would be no check on the agent’s ability to extend the detention indefinitely based only on the “generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” Edmond, 121 S.Ct. at 455. Suspicious circumstances would lead to questions beyond a routine inquiry, the answers to which could raise entirely new suspicious circumstances, thereby justifying even further detention. This form of prolonged questioning can only be described as an extended detention, and it would take place without the need for any reasonable suspicion of criminal activity. Finally, to expand routine questioning to include inquiry into any potential suspicious circumstances beyond the brief initial questions would make the “potential interference with legitimate traffic” more than just the minimal interference contemplated by the Court in Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074.
{71} Thus, prolonged questioning most certainly goes beyond “the type of stops described in” Martinez-Fuerte. Just as the Supreme Court determined that it was necessary to draw a line in Edmond “to prevent such intrusions from becoming a routine part of American life,” I believe that the line requiring reasonable suspicion must be drawn at border checkpoints once the initial routine inquiry has been completed and the purpose of detecting illegal immigration has been satisfied. I agree with the Tenth Circuit that border patrol agents are not required to ignore evidence of criminal activity, see Ludlow, 992 F.2d at 264 n. 3, but I believe that the heightened detention necessary to inquire into “suspicious circumstances” relating to narcotics, as with any detention related to a general interest in crime control, is subject to the Fourth Amendment norm of reasonable suspicion and, therefore, the evidence of criminal activity must be sufficient to meet that standard.
{72} I would emphasize that this is not a subjective inquiry. See Barnett, 935 F.2d at 181 (stating that the limitation of MartinezFuerte to immigration-related stops “does not mandate an inquiry into the subjective purpose of the agent making referrals to secondary inspection, unless there is some objective evidence supporting the charge of pretext”). It does not matter for purposes of the Fourth Amendment whether the agent who refers an individual to secondary acts on a subjective hunch about narcotics or about some other matter. Once the purpose of the checkpoint is satisfied and routine questioning has been completed, then, objectively speaking, any further detention necessarily enlarges the scope of the seizure beyond illegal immigration. Cf. Edmond, 121 S.Ct. at 456 (“[Pjrogrammatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion.”).
{73} In light of the Supreme Court’s cautionary language in Edmond that fixed checkpoints are an extremely limited exception to the rule of particularized suspicion, I am unwilling to take the step that the Circuit Courts of Appeals have taken, and that the majority takes in this case, to expand Martinez-Fuerte beyond its explicit language to include an extended detention for the purpose of detecting illegal narcotics possession. See Martinez-Fuerte, 428 U.S. at 567, 96 S.Ct. 3074 (“[O]ur holding today is limited to the type of stops described in this opinion.”). Therefore, consistent with our Court of Appeals’ analysis in Estrada, I would interpret the Fourth Amendment to require reasonable suspicion of criminal activity at a fixed border checkpoint in order to justify further detention once the purpose of detecting illegal immigration has been satisfied and once routine questioning has been completed. See Martinez-Fuerte, 428 U.S. at 566-67, 96 S.Ct. 3074 (“The principle protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”).
{74} In this case, Agent Arredondo completed his initial brief questioning and visual inspection necessary to ensure that Defendant was legally within the United States and was not engaged in the smuggling of illegal aliens. Agent Arredondo asked routine questions about Defendant’s destination, and Defendant answered those questions. Agent Arredondo then ordered Defendant to the secondary area. Thus, as an objective matter, Defendant’s seizure was transformed from one of extremely brief duration concerning the substantial federal interest of illegal immigration for which reasonable suspicion is not required into one “whose primary purpose [was] the discovery and interdiction of illegal narcotics.” Edmond, 121 S.Ct. at 450. The Fourth Amendment to the United States Constitution requires that such an extended detention to detect evidence of ordinary criminal wrongdoing be supported by individualized suspicion based on specific articulable facts. See Estrada, 111 N.M. at 800, 810 P.2d at 819 (“At the checkpoint involved in this case, the routine questioning and inspection were accomplished at the primary area instead of the secondary area. For- that reason, the referral to the secondary area ... was equivalent to the ‘further detention’ referred to in [Martinez-Fuerte] and had to be based on sufficient particularized suspicion.”). This standard was not met in the present case. Agent Arredondo’s hunch and the general governmental crime control interest in detecting illegal drugs are insufficient to justify the further detention and heightened intrusion on Defendant’s Fourth Amendment rights caused by ordering Defendant to the secondary area. As a result, because the referral to secondary violated the Fourth Amendment, Defendant’s consent is invalid, and the evidence obtained in the search should have been suppressed.
{75} Although I believe this case is resolved under the Fourth Amendment, I believe a few remarks about the state constitutional analysis in the majority opinion are in order. I feel obligated to first say that I have no doubt that Article II, Section 10 of the New Mexico Constitution prevents government agents at a fixed checkpoint from arbitrarily extending a seizure by referring an individual to a secondary area without individualized suspicion after having completed routine questioning at a primary area. However, because this case involves a federal border checkpoint, I believe that it raises highly complex questions of federalism, questions that have caused me a great deal of ambivalence. The area of border patrol searches, even when conducted some distance inside the State of New Mexico, seems to implicate the uniquely federal concern of illegal immigration. See United States v. Martinez-Fuerte, 428 U.S. 543, 562 n. 15, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (discussing the reasonableness of checkpoints located within a limited distance of the border). It seems to me that state courts would do well to tread lightly in evaluating under state constitutions the actions of federal agents at border checkpoints.
{76} The majority holds that a federal border patrol agent who conducts an unreasonable search and seizure sixty miles within the state of New Mexico violates Article II, Section 10 of the New Mexico Constitution. See Majority Opinion ¶¶ 1, 18, 21 (“We therefore hold that Agent Arredondo violated the New Mexico Constitution when he prolonged Defendant’s detention without reasonable suspicion.”). Respectfully, I have some doubt as to whether New Mexico has the authority to deem a search conducted by federal agents at a federal checkpoint for federal purposes pursuant to and in compliance with federal law to be illegal under the New Mexico Constitution. As expressed by Justice Baca, I believe that the majority’s analysis implicates the Supremacy Clause of the United States Constitution. Because the federal officers in this case were acting pursuant to federal law, I am concerned that the holding by the majority might conflict with the pronouncement in the United States Constitution that the laws of the United States are supreme and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI. This Court is obligated to defer to the duly enacted, valid laws of Congress as implemented by the executive branch of the federal government as long as that implementation complies with the provisions of the United States Constitution. By concluding that the federal agents acted “unreasonably,” thereby committing an “‘unwarranted governmental intrusion,”’ the majority fails to give deference to the federal laws that are, as a matter of our federalist system, superior to our Constitution. See N.M. Const, ait. II, § 1 (“The state of New Mexico is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land.”). Moreover, the practical effect of imposing stricter requirements on federal agents may be the routine prosecution of New Mexico citizens in federal courts instead of our state courts, which will not only render the added protections afforded by the New Mexico Constitution ineffectual but also subject these individuals to potentially more severe sanctions. The majority’s application of Article II, Section 10 to federal agents, while at the same time acknowledging federal supremacy, also has the disconcerting effect of “eneourag[ing]” federal officers to violate the New Mexico Constitution. Majority Opinion ¶ 19. Ultimately, I believe that the application of state constitutional requirements to federal agents acting pursuant to federal law is an important and burgeoning area of law on which state courts would welcome guidance by the United States Supreme Court concerning the scope of the Supremacy Clause.
{77} If the majority’s analysis is inconsistent with the Supremacy Clause, then the question arises whether the evidence should still be suppressed under the exclusionary rale inherent in Article II, Section 10 of the New Mexico Constitution. The Court of Appeals has held that the exclusionary rule applies to evidence sought to be admitted in state court that was obtained by federal border agents even though the Court did not hold, as the majority holds in this case, that state constitutional protections apply to the actions of federal agents. Snyder, 1998-NMCA-166, ¶ 18, 126 N.M. 168, 967 P.2d 843; accord Davis, 834 P.2d at 1012 [Davis 77]. Nevertheless, I disagree with the Court of Appeals’ analysis of the exclusionary rale in Snyder because I believe it is inconsistent with this Court’s discussion in Gutierrez. I believe that the exclusionary rule applies only if there has been an actual, rather than a hypothetical, violation of the New Mexico Constitution.
{78} In Gutierrez, this Court explained that the exclusionary rule advances the principles of judicial integrity and deterrence, but those principles do not constitute the core purpose of the rule. 116 N.M. at 445-447, 863 P.2d at 1066-68. The focus of the exclusionary rale “is to effectuate in the pending ease the constitutional right of the accused to be free from unreasonable search and seizure.” Id. at 446, 863 P.2d at 1067. We effectuate the constitutional right by “deny[ing] the government the use of evidence obtained pursuant to an unlawful search.” Id. at 445, 863 P.2d at 1066 (emphasis added). Thus, the need to apply the exclusionary rule, the constitutional trigger, is an unlawful search in violation of the accused’s rights.
{79} In formulating this interpretation of the exclusionary rule in Gutierrez, we found “most persuasive” the reasoning of the court in United States v. Mounday, 208 F. 186 (D.Kan.1913). Gutierrez, 116 N.M. at 444, 863 P.2d at 1065. “[S]hall this court wink at the unlawful manner in which the government secured the proofs now desired to be used, and condone the wrong done defendants by the ruthless invasion of their constitutional rights, and become a party to the wrongful act by permitting the use of the fruits of such act?” Gutierrez, 116 N.M. at 445, 863 P.2d at 1066 (quoting Mounday, 208 F. at 189). We determined in Gutierrez that the reasoning of Mounday “suggested] the essential core of our interpretation of Article II, Section 10.” Gutierrez, 116 N.M. at 445, 863 P.2d at 1066. As the quotation from Mounday indicates, and as explicitly stated in Gutierrez, the core concern of the exclusionary rale, beyond deterrence and judicial integrity, is the illegal intrusion on the defendant’s rights. We explained in Gutierrez that “[d]enying the government the fruits of unconstitutional conduct at trial best effectuates the constitutional proscription of unreasonable searches and seizures by preserving the rights of the accused to the same extent as if the government’s officers had stayed within the law.” Gutierrez, 116 N.M. at 446, 863 P.2d at 1067 (emphasis added).
{80} Assuming the New Mexico Constitution’s protection against unreasonable searches and seizures does not apply to federal agents at a border patrol checkpoint based on the Supremacy Clause and that the federal agents comply with the federal Constitution, there would be no unlawful governmental conduct to redress through the exclusionary rule. Applying the exclusionary rule would not “preserve the rights of the accused to the same extent as if the government’s officers had stayed within the law,” because the government officers would have in fact stayed within the law, both within the meaning of federal law and under Article II, Section 1 of the New Mexico Constitution. There would be no “ruthless invasion,” “wrongful act,” or illegal governmental conduct to fear condoning or to which we would become a party by allowing admission of the evidence. Article II, Section 10 proscribes unreasonable searches and seizures; it does not proscribe searches and seizures that would be unreasonable if they had been conducted by a different sovereign subject to different constitutional restrictions. In short, the purpose of the exclusionary rule is to effectuate an actual right, not a hypothetical one. We stated in Gutierrez that “[o]ne wrong plus another does not make a right,” in the sense of a just result. 116 N.M. at 445, 863 P.2d at 1066 (quoted authority omitted). By the same token, the absence of a wrong does not create a right, in the sense of a constitutional protection. If the evidence was obtained in compliance with the federal Constitution and if the Supremacy Clause prevents our application of Article II, Section 10 to federal agents acting at a border checkpoint, then none of the purposes served by our exclusionary rule would be advanced by suppressing the evidence.
{81} Nevertheless, as I have indicated, I believe it is unnecessary to resolve these difficult questions involving the New Mexico Constitution due to our interstitial approach to state constitutional law. I conclude that the extended detention in this case violated the Fourth Amendment. I therefore concur in the result of affirming the Court of Appeals.
. The Court of Appeals concluded that "movement to a secondary area is considered detention beyond a reasonable inquiry.” Cardenas-Alvarez, 2000-NMCA-009, ¶ 10, 128 N.M. 570, 995 P.2d 492. This conclusion misstates the holding of Estrada and Affsprung and, in any event, is in direct conflict with Martinez-Fuerte. As a result, this is not a proper characterization of federal law. Further, I would also reject the proposition that referral to a secondary area automatically requires reasonable suspicion under Article II, Section 10 of the New Mexico Constitution. The length of detention is always a benchmark in determining the reasonableness of a seizure and the level of justification that is required of the government. To focus only on the location of questioning at a checkpoint, rather than the content and length of questioning, would establish the type of “bright-line rule” that we have previously eschewed in our interpretation of Article II, Section 10. See Gomez, 1997-NMSC-006, ¶¶44-45, 122 N.M. 777, 932 P.2d 1. A determination of reasonableness must be made on a case-by-case basis in light of the totality of circumstances.