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Certiorari Granted, No. 31,430, December 30, 2008

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-002

Filing Date: November 3, 2008

Docket No. 24,720

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JULIAN OCHOA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Gary L. Clingman, District Judge

Gary K. King, Attorney General

M. Victoria Wilson, Assistant Attorney General

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

VIGIL, Judge.

{1} If a police officer cannot, consistent with the constitution, obtain information he

wants from a citizen (such as his identification), does the New Mexico Constitution permit

him to use what is otherwise a constitutionally valid traffic stop as a pretextual subterfuge

to obtain that information? The New Mexico Supreme Court has directed us to answer that

question for the first time in this case. State v. Ochoa, 2008-NMSC-023, ¶ 22, 143 N.M.

749, 182 P.3d 130 (“[W]e . . . remand to the Court of Appeals to determine whether the stop

was pretextual and, if so, whether article II, section 10 [of the New Mexico Constitution]
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prohibits pretextual stops.”), rev’g on other grounds, State v. Ochoa, 2006-NMCA-131, 140

N.M. 573, 144 P.3d 132. We conclude that the traffic stop of Defendant was pretextual and,

departing from federal precedent, hold that pretext stops violate the New Mexico

Constitution.

FACTUAL BACKGROUND

{2} The material facts are not in dispute. We refer to the facts in our Supreme Court’s

opinion and add detail where necessary. Agent Edmondson of the Pecos Valley Drug Task

Force was surveilling a residence for drug trafficking when he saw a vehicle with which he

was not familiar. See Ochoa, 2008-NMSC-023, ¶ 2. He wanted to investigate it, so he

returned to the residence several times to check on it. Id. On one of his checks, Agent

Edmondson testified that while he watched the vehicle drive away from the house, he saw

that the driver (Defendant) was not wearing a seatbelt. Id. Agent Edmondson testified that

he wanted to identify and question the driver so he radioed Officer Martinez, a uniformed

patrol officer, to see if he could stop the vehicle. Id. ¶ 3. Officer Martinez testified that

Agent Edmondson told him “there was a black utility vehicle heading north on 7th and the

driver wasn’t wearing a seatbelt.” Id. (internal quotation marks omitted). On the basis of

the radio call, Officer Martinez located and followed the vehicle for approximately thirteen

blocks, and stopped it. Officer Martinez testified that while trailing Defendant, he could not

see whether he was wearing a seatbelt because the windows on the vehicle were tinted. Id.

When Defendant stopped and rolled down the driver-side window, Officer Martinez

immediately recognized him as a someone with outstanding warrants for his arrest. Id.

Officer Martinez could not recall whether or not Defendant was wearing his seatbelt when

he was stopped. See id.; Ochoa, 2006-NMCA-131, ¶ 2. 

{3} Officer Martinez confirmed the warrants, arrested Defendant, and placed him in the

patrol car. Ochoa, 2008-NMSC-023, ¶ 5. Agent Edmondson and two other officers arrived.

Id. Agent Edmondson read Defendant his rights, and questioned him about drug trafficking

at the residence the agent was investigating. Id. Defendant gave Agent Edmondson consent

to search the vehicle and told him there was a pipe and methamphetamine in the vehicle. Id.

With Defendant’s assistance and through the vehicle inventory search, the officers found

methamphetamine, a pipe, and a handgun. Id. Defendant was charged with possession of

a controlled substance and possession of drug paraphernalia. Id. 

{4} Defendant moved to suppress the evidence on the grounds that the traffic stop to

enforce an alleged technical violation of the traffic code was a pretext to investigate Agent

Edmondson’s unsupported intuition that Defendant was involved in drug activity and that

a pretextual stop violates article II, section 10 of the New Mexico Constitution. Id. ¶ 1. The

State argued that the stop was permitted by the New Mexico Constitution on grounds that

it was supported by reasonable suspicion, even probable cause, to believe that Defendant

violated the traffic code by not wearing his seatbelt. 

{5} The district court agreed with Defendant that Agent Edmondson “had little, if any,

interest in the seatbelt violation [and that he wanted] the vehicle stopped so that he could I.D.
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the driver and ask about activities at the residence.” The district court nevertheless agreed

with the State that Officer Martinez could stop Defendant’s vehicle based on the reliable

information from Agent Edmondson that Defendant was not wearing a seatbelt. The district

court thus denied the motion to suppress.

DISCUSSION

{6} “The constitutionality of a search or seizure is a mixed question of law and fact and

demands de novo review.” State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386,

25 P.3d 225. When a defendant invokes our inherent power as a separate sovereign in our

federalist system of government to provide more liberty under the New Mexico Constitution

than is mandated by the United States Constitution, we utilize the interstitial approach to

interpret the New Mexico Constitution. State v. Gomez, 1997-NMSC-006, ¶¶ 17, 19-22, 122

N.M. 777, 932 P.2d 1. 

INTERSTITIAL ANALYSIS 

{7} “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.”

Cardenas-Alvarez, 2001-NMSC-017, ¶ 6. 

Federal Interpretation of the Fourth Amendment

{8} The United States Supreme Court has decided that pretextual traffic stops are not

prohibited by the Fourth Amendment. See Whren v. United States, 517 U.S. 806 (1996).

In Whren, the Supreme Court held that for an ordinary traffic stop to be constitutionally

valid, all that is needed is probable cause that the driver violated the traffic code. 517 U.S.

at 810, 813-14, 819. The Court stated that “[s]ubjective intentions [whatever they may be]

play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813. Thus,

because the Fourth Amendment of the United States Constitution does not protect citizens

against pretextual stops, we examine whether Defendant preserved his challenge under the

New Mexico Constitution. 

Preservation

{9} When a party claims that the state courts have not interpreted a provision of the state

constitution differently than its federal counterpart, that “party also must assert in the trial

court that the state constitutional provision at issue should be interpreted more expansively

than the federal counterpart and provide reasons for interpreting the state provision

differently from the federal provision.” Gomez, 1997-NMSC-006, ¶ 23 (emphasis omitted)

(footnote omitted). In the present case, both parties acknowledged to the district court that

the validity of pretextual stops under the New Mexico Constitution has not been squarely

addressed by New Mexico appellate courts. 
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{10} Defendant argued to the district court that New Mexico constitutional law should

protect against pretextual traffic stops because it provides a distinctive, extra layer of

protection against unreasonable searches and seizures involving automobiles that is

unavailable at the federal level. Furthermore, Defendant argued, New Mexico courts cannot

provide this layer of protection if they are unable to meaningfully review all evidence

regarding the reasonableness of an officer’s conduct. The State therefore agrees that

Defendant properly preserved his state constitutional challenge to pretextual stops, that the

district court was sufficiently apprised of his claims, and that the district court had an

opportunity to rule on the matter.

{11} We agree with the parties, and hold that Defendant adequately preserved his state

constitutional claim for our review by developing the relevant facts through the officers’

testimony and the reasons to interpret our state constitution more expansively through legal

argument at the suppression hearing. Therefore, we next determine whether justification

exists to diverge from federal precedent. 

Diverging from Federal Precedent

{12} “We may depart from federal precedent if federal analysis is flawed or undeveloped,

if structural differences exist between state and federal government, or if New Mexico has

distinct state characteristics supporting such a departure.” State v. Granville, 2006-NMCA098, ¶ 17, 140 N.M. 345, 142 P.3d 933. We depart from federal constitutional law in this

case because we find the federal analysis unpersuasive and incompatible with our state’s

distinctively protective standards for searches and seizures of automobiles. 

Critique of Whren

{13} The Whren opinion, authorizing pretextual traffic stops, has suffered widespread

criticism of its legal reasoning, policy choices, and consequences. See, e.g., Phyllis W. Beck

& Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling and

Public Policy Concerns, 72 Temp. L. Rev. 597, 597 (1999) (“Scholars, journalists, and

lawyers promptly and vociferously assailed the Whren decision as legally incorrect,

technically flawed, and fundamentally unfair.”); David O. Markus, Whren v. United States:

A Pretext to Subvert the Fourth Amendment, 14 Harv. BlackLetter L.J. 91, 96-109 (1998)

(explaining how the Whren decision disregarded the purpose of the Fourth Amendment’s

“reasonableness” requirement, inexplicably dismissed the Supreme Court’s own statements

condemning police pretext, relied on unpersuasive evidentiary problems with discerning

subjective intent, and disempowered the courts from ferreting out police perjury and

weighing the evidence); Patricia Leary & Stephanie Rae Williams, Toward a State

Constitutional Check on Police Discretion to Patrol the Fourth Amendment’s Outer

Frontier: A Subjective Test for Pretextual Seizures, 69 Temp. L. Rev. 1007, 1025 (1996)

(describing the Whren decision as “a rickety piece of judicial scholarship . . . built upon

unreasoned distinctions, perversions of precedent, a question-begging unarticulated and

unsupported premise, bootstrapping, logical inconsistencies, and a narrow vision of the

Fourth Amendment”). 
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{14} The Whren decision uses objectivity as the ultimate constitutional measure for

reasonable traffic stops without offering an affirmative reason for this conclusion. The

Whren opinion dismissed the Supreme Court’s own prior statements expressing hostility

toward police pretext and declared that Supreme Court case law forecloses any inquiry into

the officers’ motivations to conduct a routine traffic stop. See Whren, 517 U.S. at 811-13;

see also Markus, supra, at 98 (“[S]ince when do prior statements become irrelevant,

especially where they are so pervasive and consistently caution against pretext?”). The

Court reached its conclusion with an air of inevitability, despite the obvious: the Court had

not yet decided the constitutionality of pretextual traffic stops, and there was inconsistency

among the federal circuits and state appellate courts in their approaches to pretextual traffic

stops under the Fourth Amendment. See State v. Heath, 929 A.2d 390, 398-99 (Del. Super.

Ct. 2006) (describing the standards used by the federal circuit courts and state appellate

courts to address pretextual stops prior to Whren). 

{15} The United States Supreme Court distinguished those cases in which it questioned

the existence of police pretext in the course of a search and seizure, on the grounds that they

involved inventory and administrative searches, which do not require probable cause. See

Whren, 517 U.S. at 811-12; see also State v. Ryon, 2005-NMSC-005, ¶¶ 33-36, 137 N.M.

174, 108 P.3d 1032 (adopting a subjective motivation test for officers acting under the

emergency assistance doctrine based on the distinction made in Whren for criminal

investigations that do not require probable cause). The assumption underlying this

distinction is that the requirement of reasonable suspicion or probable cause is, by itself,

sufficient protection from an officer using a search or seizure as a subterfuge or pretext to

gather evidence for a criminal investigation. See Ryon, 2005-NMSC-005, ¶¶ 33-34.

Applying its distinction, the Whren Court contrasted the ordinary traffic stop with inventory

and administrative searches and seizures which do not require probable cause. See Whren,

517 U.S. at 811-13. However, what makes a traffic stop “ordinary” is that the driver is being

stopped because of a reasonable suspicion that the driver is involved in criminal activity or

because of a reasonable suspicion that the driver committed a traffic violation. 

{16} We are not persuaded that the distinction made by the United States Supreme Court

is meaningful in the context of a pretextual traffic stop. In performing a pretextual traffic

stop, a police officer is stopping the driver, “not to enforce the traffic code, but to conduct

a criminal investigation unrelated to the driving. Therefore the reasonable articulable

suspicion that a traffic infraction has occurred which justifies an exception to the warrant

requirement for an ordinary traffic stop does not justify a stop for criminal investigation.”

State v. Ladson, 979 P.2d 833, 837-38 (Wash. 1999) (en banc). Although there may be a

technical violation of the traffic law, the true reason for the stop lacks legal sufficiency.

Thus, by definition, a pretextual stop raises the identical constitutional concerns which our

Supreme Court recognized under the emergency assistance doctrine in Ryon: that police

officers will abuse what is otherwise valid presence as a subterfuge to conduct an invalid

investigation. 

{17} One of the main criticisms of Whren is its failure to acknowledge that because the

extensive traffic code regulates all manner of driving “‘[w]hether it be for failing to signal
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while changing lanes, driving with a headlight out, or not giving ‘full time and attention to

the operation of the vehicle, virtually the entire driving population is in violation of some

regulation as soon as they get in their cars, or shortly thereafter.’” Ladson, 979 P.2d at 842

n.10 (quoting Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First

Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997)). We

have previously recognized that the underlying concern of the United States Supreme Court

and other courts and commentators addressing police pretext is the unbridled police

discretion that results from the extensiveness of the traffic code:

[G]iven the pervasiveness of . . . minor [traffic] offenses and the ease

with which law enforcement agents may uncover them in the conduct of

virtually everyone, [the requirement of a traffic violation] hardly matters, for

. . . there exists “a power that places the liberty of every man in the hands of

every petty officer,” precisely the kind of arbitrary authority which gave rise

to the Fourth Amendment. 

State v. Bolton, 111 N.M. 28, 33, 801 P.2d 98, 103 (Ct. App. 1990) (alteration in original)

(quoting 1 Wayne R. LaFave, Search and Seizure, § 1.4(e), at 95 (2d ed. 1987)). 

{18} This concern with practically limitless discretion afforded officers enforcing traffic

laws is not merely hypothetical. Given the ubiquity of driving in this country, it is ordinary

traffic stops that are “among the most common encounters regular citizens have with police.”

David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black”

Matters, 84 Minn. L. Rev. 265, 298 (Dec. 1999). Furthermore, “the statistics show that

[pretextual traffic stops] are not simply disconnected anecdotes or exaggerated versions of

personal experiences, but rather established and persistent patterns of law enforcement

conduct.” Id. at 299. Thus, we are not persuaded as the Whren court was, that probable

cause and reasonable suspicion standards are sufficient to limit police discretion to

enforcement of traffic offenses. This is because driving a vehicle is ubiquitous in American

life. The extensive regulation of all manner of driving subjects virtually all drivers to the

whim of officers who choose to selectively enforce the traffic code for improper purposes.

We believe the United States Supreme Court has drawn a distinction without a difference.

The concerns that justify testing officers’ subjective motivations in suspicionless checkpoints

and inventory searches as a practical matter are at least equally applicable to “ordinary”

traffic stops. See Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too

Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1854 (2004)

(“Indeed, it is likely true that the probable-cause requirement in the context of minor traffic

offenses provides considerably less protection against arbitrariness than do the ‘standardized

procedures’ and ‘reasonable legislative or administrative standards’ requirements for

inventories and administrative inspections, respectively.” (internal quotation marks

omitted)).

{19} In response to the arguments in Whren that the selective enforcement of traffic code

is often informed by factors such as race, the United States Supreme Court agreed that

selective law enforcement based on such improper considerations is wrong and, indeed,
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unconstitutional. See Whren, 517 U.S. at 813; LaFave, Routine Traffic Stop, supra, at 1861.

Discarding the Fourth Amendment as an avenue to redress such improper subjective

motives, the opinion states that the appropriate “constitutional basis for objecting to

intentionally discriminatory application of laws is the Equal Protection Clause.” Whren, 517

U.S. at 813. This remedy is often criticized as ineffective. See, e.g., LaFave, Routine Traffic

Stop, supra, at 1860-61; David A. Harris, “Driving While Black” and All Other Traffic

Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology

544, 550-53 (1997) (explaining how federal precedent precludes proof of disparate impact

and does not consider statistical evidence of racial patterns and how inaccessible relevant

law enforcement information is to criminal defendants). LaFave describes the hurdles to

establishing a federal equal protection claim as nearly insurmountable and concludes that “it

is still less than certain that meaningful relief would be forthcoming, for absent recognition

of an equal protection exclusionary rule, the defendant’s only relief is likely to be dismissal

of the traffic charge.” LaFave, Routine Traffic Stop, supra, at 1861 (footnote omitted).

Furthermore, the Equal Protection Clause provides no remedy to redress pretextual stops

motivated by improper factors outside of race. The exclusionary rule is available only where

a court believes that the search and seizure was unreasonable and that excluding the evidence

will work as a deterrent for police misconduct. See Illinois v. Krull, 480 U.S. 340, 347

(1987) (stating that “the prime purpose of the exclusionary rule is to deter future unlawful

police conduct and thereby effectuate the guarantee of the Fourth Amendment against

unreasonable searches and seizures” (internal quotation marks and citation omitted)).

Because the United States Supreme Court does not believe that a traffic stop permitted by

the traffic code, but initiated for an unconstitutional reason, renders the stop unreasonable,

the Court not only refuses to condemn this bad police conduct, it rewards pretextual stops

by permitting prosecution with the evidentiary fruits of the stop. 

New Mexico’s Distinctive Protection of Privacy in an Automobile

{20} New Mexico constitutional law permits us to expand the federal protections afforded

New Mexico’s motorists from unreasonable searches and seizures because New Mexico

courts have rejected “the notion that an individual lowers his expectation of privacy when

he enters an automobile.” Cardenas-Alvarez, 2001-NMSC-017, ¶ 15. “The extra layer of

protection from unreasonable searches and seizures involving automobiles is a distinct

characteristic of New Mexico constitutional law” and therefore supports our departure from

Whren. Id.

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, and no warrant to search any place, or seize any

person or thing, shall issue without describing the place to be searched, or the

persons or things to be seized, nor without a written showing of probable cause,

supported by oath or affirmation.

N.M. Const. art. II, § 10. “[S]earches conducted outside the judicial process, without prior
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approval by judge or magistrate, are per se unreasonable, subject only to well-delineated

exceptions.” State v. Rowell, 2008-NMSC-041, ¶ 10, 144 N.M. 371, 188 P.3d 95 (internal

quotation marks and citation omitted). “Warrantless seizures are presumed to be

unreasonable and the State bears the burden of proving reasonableness.” Id. (internal

quotation marks and citation omitted). “The warrant requirement protects an individual from

unreasonable searches and seizures by ensuring that a neutral party determines that probable

cause exists, thereby justifying a search that might otherwise be unreasonable.” Granville,

2006-NMCA-098, ¶ 24. New Mexico courts recognize the distinct interests of police and

the courts and emphasize a strong preference for warrants: “[t]hrough the warrant procedure,

we prevent law enforcement ‘from allowing the competitive pressures of fighting crime to

compromise their judgment about whether or not to carry out a given search.’” Id. ¶ 24

(quoting Gomez, 1997-NMSC-006, ¶ 38).

{21} Our courts have refused to adopt federal precedent, which permits searches and

seizures conducted under an exception to the warrant requirement when the reason for the

search or seizure is not justified by the reason for that exception. See, e.g., id. ¶¶ 18-21;

Gomez, 1997-NMSC-006, ¶¶ 34, 37-44. 

{22} In Gomez, our Supreme Court examined the two principles upon which the federal

automobile exception to the warrant requirement was created: “(1) the inherent mobility of

automobiles creates exigent circumstances, and (2) a lesser expectation of privacy attaches

to the contents of a motor vehicle because of the pervasive regulation of vehicles capable of

traveling on the public highways.” Id. ¶ 34 (internal quotation marks and citations omitted).

The Court rejected the federal automobile exception, holding that warrantless automobile

searches cannot be automatic; they must be reasonable, based on a true exigency. See id. ¶¶

37-44. The Court determined that where there is no reasonable basis to believe that the

delay in obtaining a search warrant will jeopardize legitimate law enforcement interests,

there is no justification for an exception to the warrant requirement. See id. ¶¶ 41-43. 

{23} Most recently, in Rowell, our Supreme Court departed from federal precedent that

an officer may search an automobile “whenever an arrestee had been stopped in a car, even

if he or she no longer had any access to it at the time of the search.” 2008-NMSC-041, ¶ 15.

The Court expressed concern that the federal case law “creates a risk that police will make

custodial arrests which they otherwise would not make as a cover for a search which the

Fourth Amendment otherwise prohibits.” Id. ¶ 21 (internal quotation marks and citation

omitted). The Court determined that allowing a search of the vehicle as a search incident

to arrest would stretch the exception beyond its breaking point where an arrestee has no

access to the vehicle. See id. ¶¶ 22-25 (emphasizing that the exception for searches incident

to arrest is focused on constitutional reasonableness to be applied to the specific

circumstances facing the officer). 

{24} New Mexico courts have frequently broadened search and seizure protections under

our state constitution. See Granville, 2006-NMCA-098, ¶ 14 (listing nine cases from the

previous fifteen years in which our courts have construed article II, section 10 to provide

broader protections than are available under the Fourth Amendment). In these cases and
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more, New Mexico courts have consistently rejected federal bright-line rules in favor of an

examination into the reasonableness of officers’ actions under the circumstances of each

case. See Granville, 2006-NMCA-098, ¶ 18 (“We avoid bright-line, per se rules in

determining reasonableness; instead we consider the facts of each case.”); Gomez, 1997-

NMSC-006, ¶¶ 37-44 (rejecting the federal automobile exception to the warrant requirement

and requiring officers to have reasonable basis to believe that a particular exigency exists

to search a vehicle); Granville, 2006-NMCA-098, ¶ 18 (“In all cases that invoke [a]rticle

II, [s]ection 10, the ultimate question is reasonableness.”). “The myriad rules, exceptions,

and exceptions to exceptions that flourish in the jurisprudence of search and seizure are often

no more than factual manifestations of the constitutional requirement that searches and

seizures be reasonable.” State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) ,

modified on other grounds by State v. Lopez, 2005-NMSC-018, ¶¶ 13-20, 138 N.M. 9, 116

P.3d 80. 

{25} The exception to the warrant requirement at issue in the present case is an

investigatory stop supported by reasonable suspicion of criminal activity or probable cause

that the traffic code has been violated. The purpose of requiring objectively reasonable

suspicion based on the circumstances “is to prevent and invalidate police conduct based on

‘hunches,’ which are, by definition, subjective.” Leary & Williams, supra, at 1030; see State

v. Neal, 2007-NMSC-043, ¶¶ 21, 28, 142 N.M. 176, 164 P.3d 57. A pretextual traffic stop

is a detention supportable by reasonable suspicion or probable cause to believe that a traffic

offense has occurred, but is executed as a pretense to pursue a “hunch,” a different more

serious investigative agenda for which there is no reasonable suspicion or probable cause.

Whren “established a bright-line rule that any technical violation of a traffic code legitimizes

a stop, even if the stop is merely pretext for an investigation of some other crime.” United

States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006). Our courts reject “bright-line rules that

would have held certain categories of searches or seizures to be per se reasonable so long as

there was probable cause.” State v. Rodarte, 2005-NMCA-141, ¶ 14, 138 N.M. 668, 125

P.3d 647. 

{26} We believe that our constitutional requirement that searches and seizures be

reasonable based on the particular facts of each case should preclude our adoption of the

mechanical federal rule that a technical violation of the traffic code automatically legitimizes

a stop. Further, consistent with our previous departures from federal precedent, we do not

believe that the federal bright-line rule is justified. The purpose of the reasonable

suspicion/probable cause exception to the warrant requirement–to prevent officers from

acting on unsupported hunches–is not furthered when our courts refuse to examine the

unconstitutional hunch motivating the stop. 

{27} The Supreme Court of Washington has rejected Whren on a basis consistent with this

Court’s view. See Ladson, 979 P.2d at 837-42. It states that Washington’s “state

constitutional provision is designed to guard against unreasonable search and seizure, made

without probable cause.” Id. at 838 (internal quotation marks and citation omitted).

Characterizing pretext as “result without reason,” the Washington Supreme Court concluded

that “[t]he ultimate teaching of our case law is that the police may not abuse their authority

to conduct a warrantless search or seizure under a narrow exception to the warrant
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requirement when the reason for the search or seizure does not fall within the scope of the

reason for the exception.” Id. at 838, 842. 

{28} Similarly, the Superior Court of Delaware has determined that permitting police

unfettered discretion to use a traffic violation to investigate an officer’s hunch about a

separate offense is “the equivalent of granting the police a general warrant to search and

seize virtually all travelers on the roads of this [s]tate.” Heath, 929 A.2d at 402. The

Delaware court concluded that purely pretextual stops, “demonstrated to have been made

exclusively for the purpose of investigating an officer’s hunch about some other offense,”

run afoul of the underlying purpose of the prohibition against unreasonable searches and

seizures in the Delaware Constitution. Id. 

The State’s Arguments

{29} First, the State relies on several cases that have held that an officer need only

reasonable suspicion that a law has been or is being violated to stop a driver. See State v.

Vargas, 120 N.M. 416, 418-19, 902 P.2d 571, 573-74 (Ct. App. 1995); State v. Mann, 103

N.M. 660, 663, 712 P.2d 6, 9 (Ct. App. 1985); State v. Galvan, 90 N.M. 129, 131, 560 P.2d

550, 552 (Ct. App. 1977). None of these cases analyze the traffic stop under the state

constitutional interstitial approach we employ here. Therefore, we see no basis in these

cases for concluding that our state constitutional preference for warrants is inapplicable to

traffic stops.

{30} Second, the State contends that this Court has, in fact, rejected the claim that an

investigative detention should be analyzed differently under the New Mexico Constitution,

relying on State v. Jimmy R., 1997-NMCA-107, ¶ 6, 124 N.M. 45, 946 P.2d 648. We are not

persuaded by the State’s characterization of our holding nor are we persuaded that the

opinion applies here. Jimmy R. did not involve a traffic stop or any claim of police pretext.

Id. ¶¶ 1-2. Furthermore, in that case we were not persuaded that Child met his burden of

persuasion under the requirements of the interstitial approach that the New Mexico

Constitution affords more protection for investigative detentions than the United States

Constitution. Id. ¶ 6 (“Child cites no authority and makes no arguments to explain why an

investigative detention should be analyzed differently under the New Mexico

Constitution.”).

{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-083, ¶¶ 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
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defendant was engaged in drug activity. 1996-NMCA-083, ¶¶ 13-14. 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. BoteroOspina, 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-054, ¶ 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-005, ¶¶ 34-37 (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, ¶ 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
12

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.

{36} The State argues that the existing case law in New Mexico sufficiently protects

individuals from searches and seizures by strictly limiting the scope of a traffic stop to

specific articulable suspicions. We agree that our case law strictly limits the scope of traffic

stops, often in an effort to curb pretextual traffic stops. See Prince, 2004-NMCA-127, ¶ 19;

Neal, 2007-NMSC-043, ¶¶ 21, 28. However, it is a basic tenet of search and seizure law that

a traffic stop must be reasonable and justified at its inception. See State v. Anaya, 2008-

NMCA-020, ¶ 17, 143 N.M. 431, 176 P.3d 1163 (holding that the officer’s mistaken belief

that a traffic offense had occurred did not create reasonable suspicion necessary for a valid

traffic stop). The case at hand exemplifies the need to enforce constitutional limits on

searches and seizures at the inception of the stop because the scope of the stop does not

ferret out the pretextual motivations underlying it.

{37} The purpose of our objective reasonable suspicion/probable cause exception to the

warrant requirement is to prevent officers from arbitrarily acting on whims or unsupported

hunches, because that is constitutionally unreasonable. See Leary & Williams, supra, at

1029-30; Neal, 2007-NMSC-043, ¶¶ 21, 28. The purpose of the exception is undermined

where the reason for the stop is an unsupported hunch or is otherwise legally insufficient.

“Pretext is therefore a triumph of form over substance; a triumph of expediency at the

expense of reason.” Ladson, 979 P.2d at 838. 

{38} We do not accept the State’s arguments that our constitution, which favors an

examination into the reasonableness of officers’ actions under the circumstances of each

case, should disempower and disable the courts from examining whether an officer has an

unconstitutional reason for making a stop. This would be an abdication of our judicial

responsibility to meaningfully review police action, ferret out police perjury, weigh the

evidence, and guard our citizens’ privacy rights. We would in effect legitimize a charade,

a mockery of the legal justifications we recognize for permitting the most common of police

intrusions. This we will not do. We hold that pretextual traffic stops are not constitutionally

reasonable in New Mexico. 
13

Standard for Pretextual Stops

{39} To determine whether a stop is a pretextual subterfuge, courts should consider the

totality of the circumstances, judge the credibility of witnesses, weigh the evidence, make

a decision, and exclude the evidence if the stop was unreasonable at its inception. The

totality of the circumstances includes considerations of the objective reasonableness of an

officer’s actions and the subjective intent of the officer–the real reason for the stop. See id.

at 843 (“When determining whether a given stop is pretextual, the court should consider the

totality of the circumstances, including both the subjective intent of the officer as well as the

objective reasonableness of the officer’s behavior.”). We are reminded that courts perform

the task of identifying intent regularly in a variety of settings. In the context of an alleged

pretext stop, the officer’s intent is determined like any other fact, based on the evidence

presented and consideration of the factors we describe below. 

{40} We believe that the following standard can identify an unreasonable, pretextual stop.

See Heath, 929 A.2d at 403 (adopting a similar standard). First, the trial court must

determine whether there was reasonable suspicion or probable cause for the stop. Id. at 402-

03. As usual, the State has the burden of proof to justify the stop under an exception to the

warrant requirement. See Rowell, 2008-NMSC-041, ¶ 10. If the stop can be justified

objectively on its face and the defendant argues that the seizure was nevertheless

unreasonable because it was pretextual under the New Mexico Constitution, then the district

court must decide whether the officer’s “motive for [the stop] was unrelated to the objective

existence of reasonable suspicion or probable cause.” Leary & Williams, supra, at 1038.

The defendant has the burden of proof to show pretext based on the totality of the

circumstances. If the defendant has not placed substantial facts in dispute indicating pretext,

then the seizure is not pretextual. If the defendant shows sufficient facts indicating the

officer had an unrelated motive that was not supported by reasonable suspicion or probable

cause, then there is a rebuttable presumption that the stop was pretextual. See id. The

burden shifts to the state to establish that, based on the totality of the circumstances, even

without that unrelated motive, the officer would have stopped the defendant. See id. 

{41} Facts relevant to the totality of the circumstances may include the following: whether

the defendant was arrested for and charged with a crime unrelated to the stop; the officer’s

compliance or non-compliance with standard police practices; whether the officer was in an

unmarked car or was not in uniform; whether patrolling or enforcement of the traffic code

were among the officer’s typical employment duties; whether the officer had information,

which did not rise to the level of reasonable suspicion or probable cause, relating to another

offense; the manner of the stop, including how long the officer trailed the defendant before

performing the stop, how long after the alleged suspicion arose or violation was committed

the stop was made, how many officers were present for the stop; the conduct, demeanor, and

statements of the officer during the stop; the relevant characteristics of the defendant;

whether the objective reason articulated for the stop was necessary for the protection of

traffic safety; and the officer’s testimony as to the reason for the stop. See Heath, 929 A.2d

at 403; Shakow, supra, at 640; Leary & Williams, supra, at 1038-39. This is not an

exhaustive list of pretext indicators, but some guiding factors relevant to the inquiry. 
14

{42} Where there is a factual finding of pretext, that the officer had a constitutionally

invalid purpose for the stop which is not exempt from the warrant requirement, the stop

violates the New Mexico Constitution, and the evidentiary fruits of the stop are inadmissible.

Application of the Pretext Standard

{43} Because sufficient facts were developed and findings were made, we apply the

pretext standard here. The officers’ objective justification for the stop was a seatbelt

violation. The district court ruled that Agent Edmondson’s radio call indicating that he saw

Defendant was not wearing a seatbelt was reliable information upon which to conduct the

stop. Undisputedly, a seatbelt violation constitutes sufficient objective justification for the

stop. Defendant argued that the stop for an alleged seatbelt violation was a pretext, however,

for Agent Edmondson to investigate his unsupported intuition that Defendant was involved

in drug activity.

{44} The facts developed in support of Defendant’s claim of pretext were as follows.

Officer Edmondson was investigating the residence for drug activity and the presence of

Defendant’s vehicle at the residence. See Ochoa, 2008-NMSC-023, ¶ 2. Agent Edmondson

does not issue traffic citations as a part of his duties as a narcotics investigator with the

Pecos Valley Drug Task Force. Agent Edmondson testified that he wanted to identify and

question Defendant. Id. ¶¶ 2-3. The agent radioed a uniformed patrol officer “to see if

Officer Martinez would pull [Defendant] over.” Id. ¶ 3. On the sole basis of the radio call,

Officer Martinez followed Defendant for approximately thirteen blocks and stopped him.

Id. ¶ 4. Because the windows on Defendant’s vehicle were tinted, Officer Martinez could

not determine whether or not Defendant was wearing a seatbelt. Id. Nevertheless, because

of Agent Edmondson’s report, Officer Martinez pulled over Defendant. Id. After Officer

Martinez arrested Defendant because he immediately recognized Defendant as having

warrants for his arrest, Agent Edmondson approached Defendant and began questioning him

about drug activity at the residence. Id. ¶ 5. 

{45} The district court found that Agent Edmondson “had little, if any, interest in the

seatbelt violation [and that he wanted] the vehicle stopped so that he could I.D. the driver

and ask about activities at the residence.” Agent Edmondson lacked a constitutionally

reasonable suspicion that Defendant was involved in drug activity to justify his motive for

having Defendant stopped. See Neal, 2007-NMSC-043, ¶¶ 21-28 (holding that there was no

individualized, particularized reasonable suspicion of drug activity to detain the defendant

despite his cracked windshield, where the defendant was present at a residence under

investigation for drug activity, the defendant spoke and was associated with the resident of

the home under surveillance, became nervous speaking with police, exhibited a desire to

leave, and denied police consent to search his vehicle).

{46} On these facts, Defendant established a rebuttable presumption that the stop was

pretextual. The burden shifted to the State to establish that even without Agent

Edmondson’s unrelated motive, Officer Martinez would have stopped Defendant. There is

no dispute that Officer Martinez had no independent basis for pulling over Defendant, and
15

that he would not have done so without the radio call from Agent Edmondson. With the

Agent’s admission and the district court’s finding that Agent Edmondson was interested in

investigating Defendant for drug activity, which lacked a constitutionally valid basis, and

not the traffic violation, we hold that the stop was pretextual. 

CONCLUSION

{47} Because pretextual stops are not constitutionally reasonable in New Mexico, we

reverse the district court’s denial of Defendant’s motion to suppress.

{48} IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

RODERICK T. KENNEDY, Judge

Topic Index for State v. Ochoa, No. 24,720

CA Criminal Procedure

CA-PQ Pretextual Stop

CA-SZ Search and Seizure

CT Constitutional Law

CT-IA Interstitial Analysis

CT-NC New Mexico Constitution, General