STATE V. JUTTE, 1998-NMCA-150, 126 N.M. 244, 968 P.2d 334
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
WAYNE A. JUTTE, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1998-NMCA-150, 126 N.M. 244, 968 P.2d 334
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY. William P. Lynch, District Judge.
Certiorari Denied, No. 25,349, October
14, 1998. Released for Publication October 23, 1998. As Amended.
Tom Udall, Attorney General, Steven S.
Suttle, Assistant Attorney General, Santa Fe, NM, for Appellee.
Paul J. Kennedy, Albuquerque, NM, for
Appellant.
RICHARD C. BOSSO, Judge. WE CONCUR: JAMES
J. WECHSLER, Judge, M. CHRISTINA ARMIJO, Judge.
AUTHOR: RICHARD C. BOSSON
{1} In this case we
determine how long and under what conditions a commercial truck may be detained
at a roadside weigh station before a routine, regulatory stop ripens into an
unlawful de facto arrest that may vitiate a subsequent consent to search.
Because we conclude under the circumstances of this case that Defendant was
unreasonably and unlawfully detained before he consented to a search of his
truck, we conclude that Jutte's motion to suppress should have been granted,
and accordingly, we reverse the decision of the district court to the contrary.
{2} On May 21, 1996,
at 7:30 a.m., Defendant Wayne Jutte pulled his commercial truck into what is
called a portable port of entry (a portable weigh station), which was set up by
the New Mexico Motor Transportation Division (MTD) in Chaves County about
twelve miles west of Roswell on U.S. 70. All commercial vehicles were required
to stop at this port of entry, but not all were checked
{*246}
thoroughly because of the volume of traffic.
See NMSA 1978, §
65-1-11 (1992) (authorizing port of entry stops of commercial trucks). The MTD
officers were stationed there to weigh the trucks, to check the drivers'
records and licenses, and to make sure the loads were secure. They also
performed commodity inspections, checked the vehicle equipment, and verified
the cargo against the load bill.
{3} Jutte produced his
license and log book for inspection at the request of the MTD officer, Officer
Langehennig, who asked Jutte where he was coming from and what his destination
was. Jutte responded that he had come from Tucson, where he had been visiting
friends, and was returning home to Ohio. Jutte told Officer Langehennig that he
was not carrying a commercial load and therefore had no load bill, but he was
carrying two motorcycles that belonged to him. Jutte produced proof of
ownership for the motorcycles.
{4} Within
approximately five minutes after Jutte had first stopped at the weigh station,
Officer Langehennig had completed weighing the truck, but he nonetheless asked
Jutte to pull over into the secondary inspection area. In court, Officer
Langehennig subsequently explained that he wanted to confirm ownership of the
motorcycles by further investigation. The officer also acknowledged that he
thought it was odd that a commercial vehicle would be traveling so far without
a load, and this aroused his suspicion. At around this same time, Officer
Langehennig asked another officer at the weigh station to call the Roswell
office for drug dogs. Upon request, Jutte produced two Ohio registrations for
the motorcycles, and he and Officer Langehennig went to the back of the trailer
to compare them with the motorcycles. Upon looking inside the trailer, the
officer saw the two motorcycles as well as a pickup truck, which Jutte had not
disclosed. Jutte explained that he had taken the motorcycles with him to Tucson
so that he could get around while he was there, and he told Officer Langehennig
that the pickup belonged to his passenger, John Holden. Both of the registrations
on the motorcycles matched the license plates, but the vehicle identification
number (VIN) on one of the registrations did not match the VIN on the
motorcycle.
{5} Officer
Langehennig then asked to see the passenger, Holden, who was in the sleeping compartment
of the tractor. Holden had recently bought the pickup, and he showed Officer
Langehennig the title. The two entered the truck to verify that the VIN on the
pickup matched the VIN on the title. However, the title to the pickup was not
in Holden's name, and Holden had not obtained a bill of sale from the seller.
Officer Langehennig then turned the vehicle registrations over to another
officer to check with the National Crime Information Center (NCIC) whether the
motorcycles and the pickup had been reported stolen. Shortly thereafter, the
NCIC search on the motorcycles and the pickup came back negative. However,
Jutte and Holden were not allowed to leave because they could not prove to
Officer Langehennig's satisfaction that they owned these vehicles. According to
the officers, the NCIC search only verified the lack of any report of stolen
vehicles; it did not confirm rightful title in these individuals and it did not
dispel their suspicion.
{6} Even though Jutte
was not hauling a commercial load and had no load bill against which to verify
the cargo, Officer Langehennig testified that he believed that it was part of
his duties as a MTD officer to verify "the load" by confirming
ownership. There was no testimony, however, as to what procedures would be
followed to verify ownership once the NCIC search failed to confirm the
officer's suspicion that the vehicles might be stolen. There was no testimony
outlining how either Jutte or the officers were going to confirm or dispel
suspicion of vehicular theft. Officer Langehennig also testified that he
intended to keep Jutte at the weigh station until the drug dogs arrived, which
made it apparent that Jutte was under suspicion for illegal drugs as well as
transportation of stolen vehicles.
{7} Sometime between
8:00 a.m. and 8:30 a.m., the MTD supervisor, Lieutenant Walker, arrived at the
weigh station from Roswell and met with the officers. He asked if a
consent-to-search form had been filled out,
{*247}
and was told that one had been filled out, but that Jutte had not yet
signed it. Lieutenant Walker testified that the vehicles were being held
because of problems with verifying ownership of the pickup. Lieutenant Walker
told Jutte that he wanted his consent to search the truck so that they could
"explore the items further." Lieutenant Walker also told Jutte that
he thought there may be other items that Jutte was not being truthful
about--either money or drugs. The lieutenant testified that when someone does
not have the proper paperwork on a vehicle, "or an alternate
identification number, you can hold it [the vehicle without the proper
paperwork] up to, I believe, seven days or thereabouts until you can identify
the ownership and verify the vehicle is not stolen." Lieutenant Walker
stated that until the officers "could verify the problem with the vehicles
in the trailer," the tractor-trailer would have been held "till we
could clear that issue." Contrary to Officer Langehennig's testimony,
however, Lieutenant Walker testified that Jutte and Holden were free to leave
"because there was nothing to detain them on."
{8} At 8:30 a.m., an
hour after Jutte had first pulled into the weigh station, Lieutenant Walker
obtained Jutte's consent to search. There was no evidence of overt coercion and
the district court so found. At this point both Jutte and Holden were placed in
police cars, although they were not formally placed under arrest. Approximately
one hour later, illegal drugs were found in the tractor-trailer after the
speakers had been removed with power tools. At 10:30 a.m., the truck was driven
to Roswell for a more extensive search.
{9} Jutte raises two
issues on appeal: (1) whether the roadblock was unlawfully conducted because
the field officers had unlimited discretion about whom to stop and pull over to
the secondary inspection area, and (2) whether his detention for one hour
constituted a de facto arrest that contaminated Jutte's consent to search the
tractor-trailer.
{10} Jutte argues that
the evidence should be suppressed because the stop was illegal and the consent
to search was contaminated by his prolonged detention that ripened into a de
facto arrest, made without probable cause or exigent circumstances. The State,
on the other hand, claims that the weigh station stop was authorized by statute
and passes constitutional muster because it was conducted as part of a
highly-regulated commercial activity in which truck drivers do not have the
same expectation of privacy as do drivers of personal cars not holding a
commercial license. The State also contends that the consent to search is valid
because it was voluntarily given. We first address the question of whether the
initial stop and the move to the secondary inspection area constituted an
unreasonable search and seizure.
The Initial Stop and the Initial Secondary
Inspection were Reasonable
{11} Jutte first
argues that the initial stop of his commercial vehicle was unlawful because the
field officers had unlimited discretion over whom they would stop and whom they
would pull over into the secondary inspection area. Under NMSA 1978, §
65-5-1
(1983), all commercial motor vehicles are required to stop at every port of
entry designated by MTD inspectors. Additionally, Section 65-1-11 provides that
ports of entry can be either temporary or permanent. In
State v. Clark,
112 N.M. 500, 501-02,
816 P.2d 1122, 1123-24 , this Court held a MTD stop
unconstitutional when an inspector stopped vehicles randomly, at his own
discretion, and not at a designated port of entry. We observed that "in
the absence of reasonable suspicion, stops must be carried out pursuant to a
plan which embodies explicit, neutral limitations on the conduct of individual
officers."
Id. at 501, 816 P.2d at 1123.
{12} Unlike the stop
in
Clark, however, the stop in this case was made at a designated port
of entry, and there is no dispute that the MTD inspectors required all
commercial vehicles to enter the weigh station. Officer Langehennig testified
that the decision to have Jutte pull over to the secondary inspection area was
made to get the truck out of the line of traffic while he checked the
registrations of the motorcycles. This kind of administrative stop, which
applies equally to all commercial vehicles, is conducted according
{*248} to a statutory scheme "'embodying
explicit, neutral limitations on the conduct of individual officers.'"
State
v. Creech,
111 N.M. 490, 493,
806 P.2d 1080, 1083 (quoting
Brown v.
Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979)). Thus, it
has been held that "the brief weighing detention undertaken does not
result in a search of either the vehicle or its driver and in light of the
regulatory need for it, is valid under the Fourth Amendment."
United
States v. Rivera-Rivas, 380 F. Supp. 1007, 1009 (D.N.M. 1974). In that
opinion, the federal court noted that "the Fourth Amendment is satisfied
because a reasonable regulatory purpose is being furthered, the intrusion is
necessary to further the regulatory purpose, and the invasion to privacy is
minimal."
Id. at 1010.
{13} Jutte contends
that
City of Las Cruces v. Betancourt,
105 N.M. 655,
735 P.2d 1161 is
controlling in this case, and that the extent of officer discretion over who
should be detained in the secondary inspection area makes the stop illegal. We
disagree.
Betancourt does not control because the case before us
involves a routine stop and inspection of all commercial vehicles in a
highly-regulated industry.
Betancourt addresses the reasonableness of
roadblocks that stop private citizens without reasonable suspicion and that are
unsupported by the presumption of legitimacy that is inherent in government
regulation of commercial activity.
See 105 N.M. at 658-59, 735 P.2d at
1164-65. In the context of a closely regulated industry like the commercial
trucking industry, the regulatory means of stopping and briefly detaining all
or nearly all commercial vehicles advances legitimate regulatory purposes which
renders the stop reasonable.
See Missouri v. Rodriguez, 877 S.W.2d 106,
109 (Mo. 1994) (en banc) ("Permanent checkpoints at which all or nearly
all of the commercial vehicles are required to submit to weighing and
inspection constitute reasonable seizures[.]"). Thus, we disagree with
Jutte's contention that the initial stop and referral to the secondary
inspection area were unreasonable under the United States Constitution.
The Initial Lawful Detention Ripened Into an
Unlawful De Facto Arrest
{14} This Court has
previously stated in
State v. Flores, 1996-NMCA-59, P15,
122 N.M. 84,
920 P.2d 1038, that "when a detention exceeds the boundaries of a
permissible investigatory stop, it becomes a de facto arrest requiring probable
cause." There is no basis for contending that the officers had probable
cause to support an arrest prior to the search. Therefore, if Jutte's detention
constituted a de facto arrest prior to the search, then that arrest was
unlawful and it may have tainted his consent to the search.
{15} Recently, in
State
v. Hernandez, 1997-NMCA-6, PP22-36,
122 N.M. 809,
932 P.2d 499, this
Court addressed the issue of when a consent to search is rendered invalid by an
extended detention without probable cause. We acknowledged in
Hernandez
that there is no bright-line test pinpointing the moment when a detention
becomes a de facto arrest, but that "'we must apply a balancing test in
which the Court weighs "both the character of the official intrusion [on
the person's liberty] and its justification."'"
Id. P 23
(quoting
Michigan v. Summers, 452 U.S. 692, 701, 69 L. Ed. 2d 340, 101
S. Ct. 2587 (1981)). We observed that our Supreme Court has identified three
factors to consider when balancing the intrusion against the justification:
"length of the detention, place of the detention, and restriction on the
defendant's freedom of movement."
Id. P 24 (citing
State v.
Werner,
117 N.M. 315, 318,
871 P.2d 971, 974 (1994)). In
Hernandez,
we concluded that holding a female suspect at a border checkpoint for two hours
while awaiting the arrival of a female agent to perform a strip search,
constituted a significant intrusion on personal liberty, and thus it was a de
facto arrest under
Werner which required probable cause.
See id.,
122 N.M. at 813-15, 1997-NMCA-6, P24. The de facto arrest tainted an otherwise
uncoerced consent to search, and the evidence was ordered suppressed.
See
id. P 36.
{16} The State
attempts to justify the reasonableness of holding Jutte for an hour by arguing
that the average wait at a weigh station lasts approximately forty-five
minutes,
{*249} and thus a one-hour wait
is only marginally longer and not unreasonable when taken in context. The facts
of this case, however, demonstrate that this was not an average inspection and
would not ordinarily have required anything close to that much time. Jutte was
not carrying a commercial load that would have required inspection. He was
transporting two motorcycles and a pickup truck, none of which was reported
stolen on the NCIC search. There was no evidence that the NCIC search required
a full hour or even close to that amount of time; to the contrary, it appears
to have been completed in a matter of minutes. We do not doubt that in some
circumstances involving large loads that require time-consuming inspections, an
hour-long regulatory detention might be reasonable, but under the facts of this
case, Jutte should have been detained no longer than it took to receive and
analyze the NCIC reports, so as to confirm or dispel the officers' initial
suspicion of stolen vehicles.
{17} The State
contends that Jutte was not subjected to a de facto arrest because he was free
to leave during this hour-long investigation. The State relies on
Ohio v.
Robinette, 519 U.S. 33, 117 S. Ct. 417, 421, 136 L. Ed. 2d 347 (1996) for
the principle that the Fourth Amendment does not require that a suspect be told
he is free to leave as a condition precedent to a valid consent to search. We
note that there was conflicting testimony at trial over whether Jutte and
Holden were free to leave, and that the district court concluded: "Given
the isolated location of the port of entry, I conclude that Defendant was not
free to leave the scene." As the State reminds us, this Court must give
deference to the factual findings of the district court while conducting a de
novo review of the lower court's application of the law to the facts.
See
Flores,
1996-NMCA-059, P 6;
see also Connecticut v. Ostroski, 186
Conn. 287, 440 A.2d 984, 986 (Conn. 1982) (concluding defendant separated from
his car was not free to leave). We agree with the district court that, as a
practical matter, Jutte was not free to leave given detention in such an
isolated area. In analyzing the reasonableness of the detention, this weighs
against the State in terms of the "place of the detention, and restriction
on the defendant's freedom of movement."
Hernandez,
1997-NMCA-006,
P 24.
{18} The significance
of the intrusion upon Jutte's liberty must be balanced against the weight of
the "government's justification for the intrusion."
Werner,
117 N.M. at 318, 871 P.2d at 974. As we discussed earlier, the regulatory purposes
of weighing and inspecting trucks initially justify the State's actions in
stopping and checking commercial vehicles. However, in evaluating the
justification for the length of the detention, we noted in
Hernandez
that the state's diligence in verifying or dispelling suspicion during
detention is particularly significant:
Diligence in the investigation is key, and the
expansion of the investigation to look, search, or fish elsewhere is not
contemplated for investigatory stops. The concept of diligence has an aspect of
speed or haste. As soon as the investigation requires awaiting the development
of circumstances off the scene, the validity of the investigatory stop becomes
suspect.
Hernandez, 1997-NMCA-006, P 25 (quoting Werner,
117 N.M. at 319, 871 P.2d at 975).
{19} After questioning
Jutte and Holden, inspecting their registration and title documents as well as
the vehicles' license plates and VINs, and receiving the NCIC report, the
officers had exhausted the means of investigation by which they could confirm
or dispel their suspicions quickly.
See United States v. Sharpe, 470
U.S. 675, 686, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985) ("In assessing
whether a detention is too long in duration to be justified as an investigatory
stop, we consider it appropriate to examine whether the police diligently
pursued a means of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain the
defendant."). The investigation failed to establish probable cause that
the vehicles were stolen. Although there was testimony at the hearing on the
motion to suppress that the MTD officers believed they were authorized to
impound the tractor-trailer at this point, the Attorney General has cited no
authority to support this claim. Thus, once the reports
{*250}
from NCIC could not confirm that the vehicles in question were stolen, the
officers had no reasonable basis to detain Jutte or Holden any longer on
suspicion of vehicle theft.
{20} Neither can we
approve of Jutte's detention solely on the grounds that the drug dogs had not
yet arrived. The inspectors may have initially suspected illegal possession of
drugs, but they had no reasonable articulable basis for such suspicion. Under
Hernandez,
the inspectors could not justify detaining Jutte and Holden for an hour for the
dogs to arrive, merely on the unsubstantiated whim that something might turn
up. Seen from whatever angle, this detention constitutes an unlawful de facto
arrest which the constitution simply does not permit.
The "Fruit of the Poisonous Tree"
Doctrine Requires Suppression of the Evidence
{21} Jutte contends
that a de facto arrest without probable cause contaminates the consent and
requires the suppression of any evidence discovered as a result of that
consent. The State argues that the consent was voluntary and not coerced and
therefore the evidence should be admitted. This argument, however, does not
respond directly to Jutte's claim that the consent was tainted by the unlawful
arrest. This Court observed in
State v. Bedolla,
111 N.M. 448, 455,
806
P.2d 588, 595 , that under
Brown v. Illinois, 422 U.S. 590, 602, 45 L.
Ed. 2d 416, 95 S. Ct. 2254 (1975), the Fifth Amendment voluntariness analysis
is separate from the Fourth Amendment fruit of the poisonous tree analysis.
These two tests are not identical, and "evidence obtained by the purported
consent should be held admissible only if it is determined that the consent was
both voluntary and not an exploitation of the prior illegality." 3
Wayne R. LaFave,
Search and Seizure § 8.2(d), at 656 (3d ed. 1996).
{22} The fruit of the
poisonous tree doctrine bars the admission of evidence obtained after an
illegal arrest or detention except in very limited circumstances.
See
Bedolla, 111 N.M. at 454, 806 P.2d at 594. If there is a break in the
causal chain from the unlawful arrest to the search, then the evidence may be
admitted. 111 N.M. at 454-55, 806 P.2d at 594-95 (citing
Brown, 422 U.S.
at 601-02). A valid consent removes the taint of an illegal detention only if
there was "sufficient attenuation . . . between the . . . detention[] and
the consent to search[.]"
Id. at 453, 806 P.2d at 593. To determine
whether there was "sufficient attenuation," we consider the temporal
proximity of the arrest and the consent, the presence of intervening
circumstances, and the flagrancy of the official misconduct.
See Hernandez,
1997-NMCA-006, P 31.
{23} In this case
there was no attenuation to break the causal chain. Jutte was unreasonably
detained, resulting in a de facto arrest without probable cause. Officer
Langehennig testified that he intended to keep Jutte at the weigh station until
the drug dogs arrived, and Lieutenant Walker told Jutte, while he was being
detained, that he would like to obtain Jutte's consent to search his vehicle to
"explore the items further." Thus, the purpose of the detention
appears to have been linked to obtaining Jutte's consent to search his
tractor-trailer, even though the inspectors' suspicions about whether the
vehicles were stolen could not be confirmed. Under these circumstances, we find
no intervening or attenuating circumstances to cleanse the taint of the illegal
arrest.
{24} For the foregoing
reasons, we determine that the district court erred by denying Jutte's motion
to suppress the evidence obtained after he was arrested without probable cause.
Therefore, we reverse Jutte's conviction and remand for further proceedings
consistent with this opinion.
M. CHRISTINA ARMIJO, Judge