New Mexico rejects Whren under the State Constitution and decides that the officer’s subjective intent for a stop may be inquired into by the defense to prevent abuse. State v. Ochoa, 2009 NMCA 2, 146 N.M. 32, 206 P.3d 143 (2008), released for publication January 13, 2009, certiorari granted, No. 31,430, December 30, 2008:
[*31] Third, the State argues that New Mexico’s historical treatment of pretext claims does not justify our departure from Whren. The State refers us to cases in which we have rejected pretextual traffic stop claims where there was an objectively valid basis for the stop. See State v. Pallor, 1996 NMCA 83, PP 14-15, 122 N.M. 232, 923 P.2d 599; State v. Benjamin C., 109 N.M. 67, 69, 781 P.2d 795, 797 (Ct. App. 1989); Mann, 103 N.M. at 663-64, 712 P.2d at 9-10. Again, these cases do not apply the interstitial analysis of state constitutional claims.
[*32] In Pallor, we rejected the defendant’s claim that the officers’ traffic stop was a pretext to investigate drug activity because the officers had a reasonable suspicion that the defendant was engaged in drug activity. 1996 NMCA 83, PP 13-14, 122 N.M. 232, 923 P.2d 599. In Benjamin C., we applied two federal standards to the child’s claim of pretext: (1) the purely objective probable cause/reasonable suspicion standard that was adopted in Whren, and (2) the more probing federal standard applied at the time by the Tenth Circuit in United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). Benjamin C., 109 N.M. at 69, 781 P.2d at 797. Guzman applied the “would have” approach to pretextual stops: “In the same circumstances would a reasonable police officer have made the stop in the absence of an invalid purpose? Under Guzman, [a] stop [i]s unreasonable not because the officer secretly hope[s] to find evidence of a greater offense, but because it [i]s clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.” Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (alterations in original) (internal quotation marks and citations omitted). Because the child in Benjamin C. did not articulate what ulterior motive the officers had for the stop, we had no basis to engage any meaningful Guzman analysis. See id. In Mann, we applied the federal standard under the Fourth Amendment to the defendant’s claim that the initial stop was pretextual. 103 N.M. at 663-64, 712 P.2d at 9-10. Further, like Benjamin C., the Mann opinion gives no indication what the pretextual purpose might have been.
[*33] Since Mann, this Court has been inconsistent in its approach to allegations of pretextual stops, reflective of the varying federal standards before Whren, and we have been hesitant to establish a definitive standard. See, e.g., State v. Apodaca, 112 N.M. 302, 304, 814 P.2d 1030, 1032 (Ct. App. 1991) (observing that the district court made a specific finding that the officer did not have a pretextual purpose in stopping the defendant); Bolton, 111 N.M. at 35, 801 P.2d at 103 (refusing to decide “whether to adopt a sole-bad-purpose test or a primary-bad-purpose test-or even whether to adopt a subjective test at all” where a defendant challenged his stop at a state police roadblock administered by both the state police and United States Border Patrol agents, on pretext grounds, but concluding that “the district court was entitled to find, based on the evidence before it, that the purpose of the roadblock in this case was legitimate”); Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (articulating both the probable cause/reasonable suspicion standard and the “would have” standard).
[*34] Although no New Mexico case until today has decided the validity of pretextual stops under our state constitution, we have admonished pretextual practices, revealing a distinct inclination to remove police pretext from the range of reasonable police conduct. See, e.g., State v. Lowe, 2004 NMCA 54, P 22, 135 N.M. 520, 90 P.3d 539 (stating that where officers attempt to “inquire about weapons as a ploy leading to other bad faith action to uncover criminal activity based on speculation or bare suspicion, [w]e make it very clear that an abuse of these precautionary measures to protect against harm from weapons should not be tolerated by district courts and will not be tolerated by this Court when those measures smack of pretext or ruse”); see also Ryon, 2005 NMSC 5, PP 34-37, 137 N.M. 174, 108 P.3d 1032 (refusing to permit officers to “use the [emergency assistance] doctrine as a subterfuge or pretext when the real purpose of the search is to arrest a suspect or gather evidence without probable cause”); State v. Prince, 2004 NMCA 127, P 19, 136 N.M. 521, 101 P.3d 332 (facing a claim of pretext and refusing to permit the officer to ” use a lawful stop to fish for evidence of other crimes” and expand the traffic stop into a drug investigation that was not supported by reasonable, articulable suspicion); State v. Montoya, 116 N.M. 297, 303, 861 P.2d 978, 984 (Ct. App. 1993) (“This pretext doctrine is generally justified as a means of restricting what would otherwise amount in practice to unbridled police discretion in certain circumstances, such as detentions for traffic offenses.”).
[*35] Finally, the State argues that diverging from Whren is not needed to protect New Mexico citizens from unreasonable searches and seizures. The State argues that the police do not have unlimited discretion under Whren because they are limited by probable cause and reasonable suspicion. At the same time, the State admits that officers must decide who to stop and when because it would not be possible to strictly enforce the multitude of traffic laws. We agree. However, we limit that discretion to avoid bad faith. Police officers may enforce any and all traffic laws, so long as it is done with reasonable suspicion and in good faith for that purpose.
