NM: Detention of passenger in car did not violate Fourth Amendment, but it did violate NM Constitution

While there was no Fourth Amendment violation in a second officer detaining the passenger in this case, the court finds that the New Mexico constitution was violated by the detention. Also, state constitutional law is so well developed that mere citation to it is all that is required. State v. Portillo, 150 N.M. 187, 258 P.3d 466 (N.M. App. 2011), cert. denied State v. Portillo, 266 P.3d 633 (N.M. 2011):

P21 It appears that Officer Thatcher’s questioning about narcotics and weapons would pass muster under Fourth Amendment analysis. Those few questions, while unrelated to the reason for the initial stop, did not appreciably extend the length of the traffic stop as a whole. See Leyva, 2011 NMSC 9, ¶ 18 (observing that under Fourth Amendment analysis, “[t]he questions posed during a traffic stop no longer need to be reasonably related to the initial justification of the stop” as long as the length of the stop is not extended beyond “the time required to conduct a reasonable investigation into the initial justification for the stop”).

P22 While there appears to be no Fourth Amendment violation under these circumstances, it is clear that Defendant preserved his claim that the extension of the initial traffic stop violated Article II, Section 10 of the State Constitution. The Court in Leyva clarified what is required to preserve a claim under the State Constitution and stated that “[w]here a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court.” Leyva, 2011 NMSC 9, ¶ 49. …

P23 Under our State Constitution, Officer Thatcher could ask questions about narcotics and weapons only if he had developed independent, reasonable suspicion giving rise to such questions. See Funderburg, 2008 NMSC 26, ¶ 24. The only basis for suspicion of criminal activity that the State articulated in the district court involved Defendant’s demeanor when Officer Thatcher approached the vehicle and requested the driver’s documentation. Officer Thatcher testified that Defendant’s posture, with his hands in his lap while looking straight ahead and failing to make eye contact apart from a single furtive glance, was abnormal and caused him to suspect that there were narcotics or weapons in the vehicle. We conclude that this behavior, standing alone and in the absence of any other suspicious circumstances, was insufficient to give rise to a reasonable suspicion of criminal activity. See, e.g., State v. Vandenberg, 2003 NMSC 30, ¶ 44, 134 N.M. 566, 81 P.3d 19 (observing that a nervous demeanor and failure to make eye contact did not give rise to reasonable suspicion about the possession of drugs or other criminal activity sufficient to support further detention of the occupants of a vehicle); State v. Gutierrez, 2008 NMCA 15, ¶ 21, 143 N.M. 522, 177 P.3d 1096 (holding that a nervous and possibly furtive demeanor was insufficient to give rise to reasonable suspicion to detain); Patterson, 2006 NMCA 37, ¶¶ 9, 29 (holding that nervous behavior and failure to make eye contact did not give rise to reasonable, individualized suspicion).

P24 To summarize, Defendant was detained at the inception of the traffic stop, and he remained subject to continuing detention thereafter. Although the stop was originally justified, the ensuing expansion of the inquiry into weapons and narcotics was unsupported by reasonable suspicion. We therefore conclude that Defendant was subjected to an illegal detention.

While this case was working its way up, the state Court of Appeals held that pretextual stops violated the state constitution. Since the parties did not get to try that issue below, the case is remanded to develop the record. State v. Gonzales, 2011 NMSC 12, 150 N.M. 74, 257 P.3d 894 (2011).*