It is well established in New Mexico that a law enforcement officer cannot extend the scope of a traffic stop beyond the initial basis for the stop in the absence of fairly restrictive circumstances.
However, the issue of a passenger‘s right to challenge the scope of the ensuing investigation had not been specifically addressed until the recent New Mexico Court of Appeals case of State v. Portillo.
Portillo involved a routine traffic stop. The defendant, Portillo, was a passenger in the car. The officer went through the standard procedure of requesting the driver‘s license, insurance and registration. As he was conducting the investigation, the officer noticed that the defendant passenger “remained looking straight ahead with his hands in his lap, avoiding eye contact with Officer Thatcher and only glancing furtively at him once when Officer Thatcher moved.”
The officer found this behavior suspicious thereby expanding the scope of the traffic stop asking the driver and later the passenger whether there were drugs or weapons in the car and for consent to search the vehicle.
Both the driver and the defendant denied the presence of drugs or weapons but both consented to the search. Naturally, drugs were found and the defendant was charged with possession of narcotics. The defendant entered a conditional plea reserving his right to appeal the constitutionality of the search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.
There were a number of interesting points addressed in the case. First, the Court noted that the alleged suspicious behavior was insufficient basis for expanding the investigation beyond the speeding investigation. The court noted a number of cases in New Mexico that clearly state that nervous behavior alone does not give rise to the reasonable suspicion necessary to expand the scope of a traffic stop.
Second, the Court addressed the defendant‘s standing to challenge the search of the vehicle. It is well established that a passenger has no legal standing to challenge the search of a vehicle. In short, the passenger has no expectation of privacy in this situation. However, the passenger can challenge both the stop and the subsequent expansion of the investigation beyond the scope of the stop since it effectively results in a seizure of the passenger by law enforcement. The passenger has an equal right to be free of illegal search and seizure as does the driver.
The Court noted that Article II, Section 10 provide greater protection than the 4th Amendment under federal law. Under federal case-law including United States Supreme Court precedent, law enforcement is given significantly greater latitude in extending the length and scope of a traffic stop. The officer may extend the scope of the investigation if reasonable suspicion of other crimes surfaces during the routine traffic investigation. The Court noted that under Fourth Amendment analysis, the scope of investigation and questioning may be expanded so along as the length of the stop is no longer than “the time required to conduct a reasonable investigation into the initial justification for the stop”. In other words, under the 4th Amendment, the officer is given significant leeway in the scope of his “traffic” investigation.
As in many situations, the New Mexico Constitution provides greater protection that does the 4th Amendment. Under Article II, Section 10, there is no such latitude defined by the amount of time or inconvenience to the defendant which is inherently vague and susceptible to abuse. Unrelated questions beyond the scope of the traffic stop may be asked only when there is independent reasonable suspicion for the questioning, issues of officer safety suggest further questioning, or where the interaction has developed into a consensual encounter. Again, nervous behavior is not enough. Nor was there any reasonable basis for believing there were weapons or threats to officer safety. Finally, the defendant was already seized and therefore the encounter could not by definition be consensual since there was nothing suggesting that he was free to leave.