{ "id": 4003154, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Daniel MU\u00d1OZ, Defendant-Appellant", "name_abbreviation": "State v. Mu\u00f1oz", "decision_date": "2008-05-21", "docket_number": "No. 26,956", "first_page": "350", "last_page": "359", "citations": [ { "type": "official", "cite": "144 N.M. 350" }, { "type": "parallel", "cite": "187 P.3d 696" }, { "type": "parallel", "cite": "2008-NMCA-090" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "180 P.3d 1181", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2008-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2008-NMCA-044", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784073 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0765-01" ] }, { "cite": "2007-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3668412 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0340-01" ] }, { "cite": "2004-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427946 ], "weight": 6, "pin_cites": [ { "page": "\u00b6\u00b6 15, 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0306-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 23" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "110 N.M. 359", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716951 ], "weight": 16, "pin_cites": [ { "page": "360" }, { "page": "253" }, { "page": "360-61" }, { "page": "253-54" }, { "page": "364" }, { "page": "257" }, { "page": "360" }, { "page": "253" }, { "page": "360-61" }, { "page": "253-54" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0359-01" ] }, { "cite": "107 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597064 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "167" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0165-01" ] }, { "cite": "1999-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106530 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0360-01" ] }, { "cite": "2008-NMCA-004", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783485 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 6, 10" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0239-01" ] }, { "cite": "2007-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692773 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0001-01" ] }, { "cite": "536 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254966 ], "weight": 13, "year": 2002, "pin_cites": [ { "page": "197-98" }, { "page": "199" }, { "page": "204" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/us/536/0194-01" ] }, { "cite": "501 U.S. 429", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108039 ], "weight": 11, "year": 1991, "pin_cites": [ { "page": "431-32" }, { "page": "432" }, { "page": "435" }, { "page": "435-36" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "2000-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217157 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0352-01" ] }, { "cite": "166 P.3d 1089", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "142 N.M. 435", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3691099 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 20-21" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0737-01" ] }, { "cite": "468 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338811 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "439-40", "parenthetical": "explaining that an officer may make a traffic stop and question the driver without giving Miranda warnings" }, { "parenthetical": "explaining that an officer may make a traffic stop and question the driver without giving Miranda warnings" }, { "parenthetical": "explaining that an officer may make a traffic stop and question the driver without giving Miranda warnings" } ], "opinion_index": 0, "case_paths": [ "/us/468/0420-01" ] }, { "cite": "541 U.S. 652", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5869197 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "663", "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/541/0652-01" ] }, { "cite": "1998-NMSC-048", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827394 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 39" }, { "page": "\u00b6 40" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0535-01" ] }, { "cite": "2001-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183136 ], "weight": 16, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 18" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0001-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1137, "char_count": 29607, "ocr_confidence": 0.694, "pagerank": { "raw": 6.01171556934892e-08, "percentile": 0.3730667309175168 }, "sha256": "13257a009af1bf250f7e93c5c75ead99752a2ab6087566249b093e13a763c611", "simhash": "1:99c88a2f2e889a43", "word_count": 4806 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Daniel MU\u00d1OZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} The central issue in this appeal is whether Defendant Daniel Mu\u00f1oz, a passenger on a bus, was subjected to an unlawful search that was not performed with his valid consent. During an inspection of the cargo of the bus at a checkpoint, a trained dog alerted to a bag that was ultimately linked to Defendant. Law enforcement agents subsequently questioned Defendant, asking him to empty his pockets and remove his shoes. We affirm the district court\u2019s findings that (1) Defendant was not in custody at the time of the agents\u2019 questioning so as to invoke Defendant\u2019s rights under the Fifth Amendment to the United States Constitution and (2) Defendant voluntarily responded to the agents\u2019 requests. We further hold that Defendant did not preserve the arguments that he raises on appeal concerning alleged violations of the New Mexico Constitution. We affirm.\nFACTUAL AND PROCEDURAL BACKGROUND\n{2} Defendant entered a conditional plea of no contest after his trial resulted in a mistrial and the district court granted the State\u2019s motion for reconsideration of its previous order suppressing evidence. At the trial, the State presented the testimony of Agents Douglas Kubos and Carlos Medina of the United States Border Patrol. Agent Kubos testified that he was assigned to the Highway 54 checkpoint on May 11, 2005. Defendant was a passenger on a bus operated by a commercial bus line. As part of a systematic search at the checkpoint, Agent Kubos inspected the cargo area of the bus with a dog trained to detect odors. The dog alerted to a black duffel bag marked with a tag number. Agents went through the aisle of the bus asking if the bag belonged to anyone on the bus. When no one claimed the bag, they considered it abandoned and opened it. They found fifteen \u201clittle wrapped bundles\u201d consistent with narcotics smuggling. Field testing indicated that the bundles contained marijuana. A forensic scientist testified to confirm the content of the bundles.\n{3} Agent Medina testified that the bus company maintained a list matching ticket stubs with passenger seat numbers and that Defendant was seated in seat number 33, which was the seat that matched the ticket stub for the black duffel bag. He then testified that Defendant was therefore detained for further investigation and asked to empty his pockets and take off his shoes for safety reasons. Subsequently, outside the presence of the jury, Defendant\u2019s counsel argued to the district court that after the agents\u2019 request, the agents seized the ticket stub corresponding to the black duffel bag that Defendant produced from his shoe, the agents arrested Defendant, and Defendant gave a statement. In response, the district court ruled that the search that led to Defendant\u2019s production of the ticket stub was illegal and suppressed Defendant\u2019s statement. Because there was concern that there had been testimony about Defendant\u2019s statement, the district court also declared a mistrial.\n{4} About a month later, the State filed a motion asking the district court to reconsider its suppression order. The State asserted that although Agent Medina stated that he asked Defendant to empty his pockets and remove his shoes for safety purposes, he could not remember the reason for the request and was only guessing. According to the State, the arresting agent was Hugo Gonzales, who was unavailable for trial because \u201che had changed jobs and moved.\u201d\n{5} The district court held a hearing on the State\u2019s motion at which Agent Gonzales testified. He testified that Defendant was the only passenger who did not present a baggage ticket stub. When he questioned Defendant on the bus, Defendant was sweating profusely, shied away from him, and gave evasive answers. Based on the information connecting the duffel bag to Defendant\u2019s seat and Defendant\u2019s demeanor, Agent Gonzales asked him to step off the bus in order to be able to speak with him more privately. Once off the bus, Agent Gonzales told Defendant the facts that he had learned. He testified that Defendant \u201clooked down\u201d and \u201clooked defeated\u201d in reaction. Specifically, he stated, \u201c[Defendant] just looked down, dropped his shoulders, his head went down to the ground.\u201d At that point, Agent Gonzales asked Defendant, \u201cWould you please \u2014 would you empty out your pockets for us?\u201d Defendant complied, and Agent Gonzales then asked Defendant \u201cif he would remove his shoes.\u201d When he did, the ticket stub came out of one of his shoes. Agent Gonzales testified that he did not order Defendant to take any action and that Defendant\u2019s actions were voluntary. He testified that if Defendant had refused to comply with the request, he would have sought a search warrant. After he found the ticket stub and again confronted Defendant with the facts, Defendant admitted that the drugs were his.\n{6} Ultimately, the district court ruled that (1) the stop and inspection of the bus were free from impropriety, (2) the agents\u2019 focus on Defendant was reasonable, (3) the detention was reasonable and supported by probable cause, and (4) Defendant was free to leave during the questioning. As to the search and statements, the district court found that Defendant\u2019s actions when he emptied his pockets and removed his shoes were voluntary and that the statements that he subsequently made were not connected to an illegal search.\nLAWFULNESS OF THE SEARCH\n{7} Defendant argues on appeal that the agents engaged in an unlawful search in violation of the Fourth Amendment to the United States Constitution that resulted in the agents obtaining the baggage ticket stub and ultimately Defendant\u2019s admission of guilt. According to Defendant, the agents subjected him to an unlawful custodial interrogation because they did not advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As a consequence of this Fifth Amendment violation, Defendant argues that \u201cany alleged consent given following the custodial interrogation was tainted.\u201d Alternatively, Defendant contends that his Fourth Amendment rights were violated because the evidence does not support the district court\u2019s finding that he consented to the search of his person.\nInterrogation by Agents\n{8} With regard to the agents\u2019 interrogation, Defendant asserts that he was in custody from the time that Agent Gonzales approached him while he was seated on the bus, stood over him, blocked him in his seat, and confronted him with the facts as Agent Gonzales understood them. He further contends that he was in custody when the agents asked him to leave the bus for further questioning. At the very least, Defendant asserts that he was in custody when, outside the bus, Agent Gonzales \u201ctold\u201d him to empty his pockets and take off his shoes. Because the agents did not advise Defendant of his Miranda rights until they subsequently took him \u201cinto the checkpoint,\u201d Defendant claims that the entire encounter was tainted, requiring suppression of the baggage ticket stub and his subsequent confession.\n{9} Defendant\u2019s Fifth Amendment argument raises a mixed question of law and fact. State v. Javier M., 2001-NMSC-030, \u00b6 17, 131 N.M. 1, 33 P.3d 1. We review the district court\u2019s factual determinations for substantial evidence and its application of the law to the facts under the de novo standard of review. State v. Munoz, 1998-NMSC-048, \u00b6 39, 126 N.M. 535, 972 P.2d 847.\n{10} Under Miranda, law enforcement officers must warn a person who is subjected to a custodial interrogation of his or her right against self-incrimination protected by the Fifth Amendment and extended to the states through the Fourteenth Amendment. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602. A person is considered to be in custody if he or she is under formal arrest or if an officer restrains the person\u2019s freedom of movement to the \u201cdegree associated with a formal arrest.\u201d Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (internal quotation marks and citation omitted). The test is an objective one, depending on \u201chow a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.\u201d Id. (internal quotation marks and citation omitted). However, based on Fourth Amendment principles, officers may seize an individual upon reasonable suspicion of criminal activity to conduct an investigatory inquiry without giving rise to the individual\u2019s Fifth Amendment protections. See Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (explaining that an officer may make a traffic stop and question the driver without giving Miranda warnings). Nevertheless, an officer may not restrain a suspect\u2019s freedom of movement in such an investigatory detention without first reading the suspect his or her Miranda warnings before questioning commences if the restriction on the suspect\u2019s movement is comparable to the \u201cdegree associated with a formal arrest.\u201d State v. Wilson, 2007-NMCA-111, \u00b6\u00b6 20-21, 142 N.M. 737, 169 P.3d 1184 (internal quotation marks and citation omitted), cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089.\n{11} We look to the totality of the circumstances in order to ascertain whether an interrogation is objectively custodial. See State v. Lopez, 2000-NMCA-069, \u00b6 7, 129 N.M. 352, 8 P.3d 154. By way of example, our Supreme Court in Munoz referenced numerous considerations that bear on the restraint on a suspect\u2019s freedom of movement, including (1) \u201cthe purpose, place, and length of [the] interrogation\u201d; (2) \u201cthe extent to which the defendant is confronted with evidence of guilt\u201d; (3) \u201cthe physical surroundings\u201d; (4) \u201cthe duration of the detention\u201d; and (5) \u201cthe degree of pressure applied.\u201d Munoz, 1998-NMSC-048, \u00b6 40, 126 N.M. 535, 972 P.2d 847 (internal quotation marks and citation omitted); see also Javier M., 2001-NMSC-030, \u00b6 18, 131 N.M. 1, 33 P.3d 1 (recognizing isolation as a factor in determining whether Fifth Amendment protections are implicated). When we analyze the totality of the facts of this case, we conclude that Defendant was not in the agents\u2019 custody.\n{12} We first note the two United States Supreme Court cases that involved police encounters with passengers on buses in order to point out what is not involved in this case. In Florida v. Bostick, 501 U.S. 429, 431-32, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), officers boarded a bus at a stopover and asked the defendant for permission to search his luggage. They advised the defendant that he had the right to refuse consent. Id. at 432, 111 S.Ct. 2382. The Supreme Court held that the circumstances of the questioning in the confines of the bus did not remove the case from the general rule that law enforcement officers may generally ask questions of an individual in a public place, even without any reasonable suspicion of criminal activity, provided that they \u201cdo not convey a message that compliance with their requests is required.\u201d Id. at 435, 111 S.Ct. 2382. According to the Court, the relevant factor was not the confining setting of the bus; rather, it was whether the officers acted in a coercive manner. Id. at 435-36, 111 S.Ct. 2382. The question was \u201cwhether a reasonable person would feel free to decline the officers\u2019 requests or otherwise terminate the encounter.\u201d Id. at 436, 111 S.Ct. 2382.\n{13} In United States v. Drayton, 536 U.S. 194, 197-98, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), police officers boarded a bus at a scheduled stop, and one spoke with the passengers. The officer first asked the defendants if he could check their bag. Id. at 199, 122 S.Ct. 2105. After searching the bag and finding no contraband, the officer asked for permission to check their \u201c \u2018person.\u2019 \u201d Id. Those searches revealed that the defendants were carrying illegal drugs concealed beneath their clothing. Id. Ultimately, the United States Supreme Court held that the encounter was neither coercive nor confrontational. Id. at 204, 122 S.Ct. 2105. In so concluding, it stated, \u201cThe fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure.\u201d Id. As to the nature of a crowded bus, it noted that \u201cbecause many fellow passengers are present to witness officers\u2019 conduct, a reasonable person may feel even more secure in his or her decision not to cooperate with police on a bus than in other circumstances.\u201d Id.\n{14} The notable difference between Bostick and Drayton and this case is that in this case, the agents had reasonable suspicion that the bag that contained drugs belonged to Defendant before they questioned him in the bus. Defendant did not argue in the district court, and does not argue on appeal, that the agents\u2019 search of his duffel bag was improper. As a result of that uncontested search, the agents discovered the bundles of marijuana and found out that Defendant\u2019s seat number matched the ticket stub for the bag. Thus, for Fourth Amendment purposes, the agents were entitled to detain Defendant to question him as part of their investigation. See State v. Gutierrez, 2007-NMSC-033, \u00b6 29, 142 N.M. 1, 162 P.3d 156 (explaining that it is permissible under the Fourth Amendment for a law enforcement officer who has reasonable suspicion that a crime has been committed to temporarily seize a suspect for the purpose of questioning). The officers in Bostick and Drayton did not have such right to effect a seizure.\n{15} Nor does the testimony indicate that the agents had Defendant in custody while they were on the bus. Defendant was not isolated; instead, he was in a bus full of other passengers. Agent Gonzales asked Defendant if he could produce a baggage ticket stub, and when Defendant said that he could not, he told Defendant that the agents had information that the person sitting in seat 33 owned the bag in question. Although Agent Gonzales testified that Defendant was not \u201cnecessarily\u201d free to leave, as we have stated, Agent Gonzales had reasonable suspicion to detain Defendant at that time.\n{16} The testimony also does not reflect a custodial setting when Agent Gonzales asked Defendant to leave the bus. Agent Gonzales testified that during his conversation with Defendant on the bus, he observed Defendant sweating profusely, shying away from him, and being evasive. He then asked Defendant to step outside the bus so that he could speak with him more freely and privately. In State v. McNeal, 2008-NMCA-004, \u00b6\u00b6 6, 10, 143 N.M. 239, 175 P.3d 333, we held that the defendant was not entitled to Miranda warnings when law enforcement agents asked him to exit a bus after they had connected him to a bag containing illegal drugs. Although the agents in this case may have seized Defendant with their exercise of authority, we see no basis to conclude that Defendant was in custody so as to require the agents to give him Miranda warnings. See id. \u00b6 10 (\u201cAlthough a person is seized for Fourth Amendment purposes whenever an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, not all Fourth Amendment seizures rise to the level of \u2018custody\u2019 for Fifth Amendment purposes.\u201d) (internal quotation marks and citation omitted).\n{17} Outside the bus, Agent Gonzales had the right to detain Defendant to continue the investigation because he had reasonable suspicion that Defendant may have been violating a law. See Javier M., 2001-NMSC-030, \u00b6 19, 131 N.M. 1, 33 P.3d 1. In order to investigate, it was permissible for Agent Gonzales to ask Defendant a \u201cmoderate number of questions\u201d as part of his investigation. Id. As explained by our Supreme Court, this type of investigatory detention is permitted by the Fourth Amendment and does not trigger Fifth Amendment protections because the person being detained \u201cis not obliged to respond.\u201d Id. If, on the other hand, the \u201catmosphere surrounding\u201d such an investigatory detention is \u201cso inherently coercive that the detainee feels compelled to speak,\u201d it must be considered custodial, thereby implicating the Fifth Amendment\u2019s privilege against self-incrimination. Id. Without citation to the record, Defendant contends that such a coercive atmosphere existed outside the bus because, \u201c[w]ith his back to the bus immediately upon exiting,\u201d Defendant was \u201cliterally surrounded\u201d by a \u201ccadre of agents ____ [who] he considered antagonistic.\u201d But the record does not support these assertions. Agent Gonzales presented the only testimony about the questioning. He testified on cross-examination that although other agents were part of the investigation, only one other agent was in close proximity to Defendant while he was being questioned. Additionally, there was no testimony about Defendant\u2019s position in relation to the bus.\n{18} In Javier M., our Supreme Court addressed circumstances that were similar to the ones in this case. In that case, police officers investigating a noise complaint encountered a juvenile in an apartment. Id. \u00b6\u00b62-3. Smelling alcohol on the juvenile\u2019s breath or clothing, one of the officers asked him to step outside, where he was questioned. Id. \u00b6 3, 33 P.3d 1. The officer testified that the juvenile was not free to leave. Id. \u00b6 4, 33 P.3d 1. The Court held that although the juvenile was issued a citation during the detention, the detention was not custodial because it was \u201ctemporary, non-coercive, and public.\u201d Id. \u00b6 20, 33 P.3d 1. In addition, although there were more officers in the apartment, only one officer conducted the questioning, and there was no indication that the juvenile was \u201coverpowered by police presence.\u201d Id. \u00b6 21, 33 P.3d 1. Similarly, in this case, the detention was temporary. Only Agent Gonzales and another agent were with Defendant during Agent Gonzales\u2019 questioning, and the questioning occurred in a public place. Nothing in the testimony suggests that the detention was coercive or that Defendant was overpowered by the agents. A reasonable person in Defendant\u2019s position would not have believed that he or she was subjected to the constraints of a formal arrest. Under these circumstances, Agent Gonzales was not required to give Defendant any Miranda warnings before questioning him.\nVoluntariness of Consent to Search\n{19} With regard to Defendant\u2019s Fourth Amendment arguments, we address his contention that he did not voluntarily consent to the search of his person. The State had the burden of proving Defendant\u2019s voluntary consent based on the totality of the circumstances. State v. Paul T., 1999-NMSC-037, \u00b6 28, 128 N.M. 360, 993 P.2d 74. The issue is a factual one that we review for substantial evidence. Id. In determining whether consent was voluntary, we utilize a \u201cthree-tiered analysis\u201d that includes the following factors: \u201c(1) there must be clear and positive testimony that the consent was specific and unequivocal; (2) the consent must be given without duress or coercion; and (3) the first two factors are to be viewed in light of the presumption that disfavors the waiver of constitutional rights.\u201d State v. Anderson, 107 N.M. 165, 167, 754 P.2d 542, 544 (Ct.App. 1988).\n{20} Our analysis of these factors indicates that there is substantial evidence to support the district court\u2019s determination. The first factor is met by the clarity of the request and the response. Agent Gonzales expressly asked Defendant if he would empty his pockets and remove his shoes. Defendant complied with both requests, and the evidence shows that his consent was specific and unequivocal. The evidence also supports the second factor \u2014 the absence of duress or coercion. Agent Gonzales testified that he asked Defendant, \u201cWould you please \u2014 would you empty out your pockets for us?\u201d After Defendant complied, he asked Defendant \u201cif he would remove his shoes.\u201d Agent Gonzales made requests; he did not give orders or directives. As we have discussed, there was no testimony, as Defendant argues without citation to the record, that agents surrounded Defendant outside the bus. Contrary to Defendant\u2019s argument that Defendant believed that he had no choice but to acquiesce, the evidence indicates that Defendant acted voluntarily in response to Agent Gonzales\u2019 requests.\n{21} Defendant also argues that State v. Villanueva, 110 N.M. 359, 796 P.2d 252 (Ct. App.1990) requires reversal in this case because it is \u201ca case with facts almost identical to these in the present case.\u201d In Villanueva, border patrol agents used a trained dog to cheek the luggage compartment of a bus at a checkpoint. Id. at 360, 796 P.2d at 253. The dog alerted to two pieces of luggage, and the bus driver identified the bags in question as belonging to the defendant. Id. The defendant denied having any bags on the bus, and the agents asked him to step off the bus into the checkpoint trailer in order to talk to him. Id. In the trailer, the agents asked the defendant to empty his pockets and then told him to remove his shoes. Id. The defendant took off one shoe and was directed to take off the other. Id. at 360-61, 796 P.2d at 253-54. When he reluctantly complied, baggage tickets fell from his shoe. Id. This Court affirmed the district court\u2019s suppression of the evidence, concluding that the district court could reasonably have found that the defendant\u2019s consent was involuntary. Id. at 364, 796 P.2d at 257.\n{22} Although similar in its factual setting, Villanueva is different from this ease in two significant ways. First, the agents brought the defendant to the checkpoint trailer for questioning, a setting more confining than the outside of the bus. See id. at 360, 796 P.2d at 253. Second, an agent initially told the defendant to take off his shoes and then specifically directed him to take off the second shoe. Id. at 360-61, 796 P.2d at 253-54. These actions were more coercive than the requests made of Defendant by Agent Gonzales. Accordingly, Villanueva does not control our decision in this case.\nARGUMENTS UNDER THE NEW MEXICO CONSTITUTION\n{23} Defendant also argues on appeal that \u201c[t]he practice of bus interdiction often involves situations that amount to custodial interrogation\u201d of bus passengers that requires law enforcement officers to inform passengers \u201cthat they have a right to not cooperate\u201d with the officers. Defendant acknowledges that the United States Supreme Court specifically rejected such an argument in Drayton, 536 U.S. at 203, 122 S.Ct. 2105. He contends, however, that we should interpret the New Mexico Constitution to reflect such a right.\n{24} The State counters that Defendant did not argue this issue in the district court, and, by virtue of the preservation requirements of Rule 12-216(A) NMRA as interpreted in State v. Gomez, 1997-NMSC-006, \u00b6 23, 122 N.M. 777, 932 P.2d 1, Defendant may not raise the issue for the first time on appeal. Gomez, in explaining the interstitial approach for preserving state constitutional arguments, differentiates between circumstances in which New Mexico case law construes the New Mexico Constitution more broadly than the United States Constitution and circumstances in which it does not. Id. \u00b6 22. Without precedent construing the New Mexico Constitution more broadly than the Federal Constitution, Gomez requires a defendant wishing to assert a state constitutional right to argue in the district court \u201cthat the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently.\u201d Id. \u00b6 23 (emphasis omitted).\n{25} Defendant does not argue that any New Mexico case law currently construes the New Mexico Constitution more broadly than the Federal Constitution with respect to Defendant\u2019s issue. Nor does he argue that he specifically followed the dictates of Gomez before the district court. He does contend, however, that he nonetheless adequately preserved the argument that he makes on appeal. According to Defendant, his trial counsel \u201carticulated the reasons for departing from federal precedent, but did not claim the New Mexico Constitution provides greater protection than its federal counterpart.\u201d Thus, Defendant argues that the district court was adequately alerted to the nature of the claimed error and was therefore able to issue an intelligent ruling.\n{26} At the motion hearing, Defendant\u2019s counsel argued, \u2018Tour honor, I would submit that the claim that [Defendant] was not in custody and did not have to respond to [Agent Gonzales] is based on the legal fiction as a practical matter out on the roadway, and I think [the Affsprung case] addressed it in connection with motorists.\u201d Defendant\u2019s counsel was referring to State v. Affsprung, 2004-NMCA-038, \u00b6\u00b6 15, 18, 135 N.M. 306, 87 P.3d 1088, in which this Court held that a passenger in a motor vehicle is seized under the Fourth Amendment when an officer stops a vehicle for a traffic violation and subsequently requests and obtains the passenger\u2019s identification card. Defendant\u2019s counsel argued that, by analogy to Affsprung, Defendant was seized and that Agent Gonzales was therefore required to give him Miranda warnings. Defendant\u2019s counsel then argued that Defendant \u201cwas in custody at least from the moment he was asked to step out of his seat and exit the bus. There is Agent Gonzale[s] there, there\u2019s at least one other agent that\u2019s around him, and he\u2019s questioned, he\u2019s not Mirandized and \u2014 so, I think, that there\u2019s an additional Miranda issue here as well.\u201d\n{27} Defendant has entirely failed to preserve the issue under Gomez. He did not argue to the district court that the state constitution provides greater protection than the Federal Constitution and did not state any reason why it should. See Gomez, 1997-NMSC-006, \u00b6 23, 122 N.M. 777, 932 P.2d 1. He failed to even mention the New Mexico Constitution. Affsprung relies on the Fourth Amendment, not the New Mexico Constitution. See Affsprung, 2004-NMCA-038, \u00b6 18, 135 N.M. 306, 87 P.3d 1088. If Defendant is arguing on appeal that his trial counsel\u2019s mention of \u201can additional Miranda issue\u201d in the context of his arguments below raised a separate state constitutional argument that the agents were obligated to inform him that he had a right not to cooperate with them, his argument is an unreasonable stretch of the district court record.\n{28} Defendant additionally argues that because he has raised an issue of a fundamental right, this Court should not apply the preservation restrictions of Gomez and Rule 12-216(A). Rule 12-216(B)(2) allows this Court discretion to entertain unpreserved issues involving the fundamental rights of a party. We decline to exercise such discretion. Defendant had the opportunity to invoke complete scrutiny of the issue in the district court. If he had done so, the parties would have had the ability to fully develop the facts and argue the law on the issue, and the district court would have been able to make a decision with a sufficient record before it. See State v. Pacheco, 2007-NMSC-009, \u00b6 10, 141 N.M. 340, 155 P.3d 745 (explaining that fundamental rights \u201cmay be waived or lost\u201d and concluding that the defendant waived his right to argue his fundamental right to a trial by a fair and impartial jury by \u201cfailing to timely invoke the ruling of the trial court\u201d).\n{29} As a final argument, Defendant asserts that the Gomez preservation requirement of a state constitutional claim is an unconstitutional requirement under Article II, Section 18 of the New Mexico Constitution because it deprives a criminal defendant of equal protection under the law. Defendant contends that the requirement creates a class of similarly situated defendants who are treated dissimilarly. He contends that criminal defendants are a similarly situated group whose trial counsel develop the facts necessary to allow appellate courts to rule based on either the federal or state constitution but are treated differently, as two classes, depending on whether their trial counsel conformed to the strict requirements of Gomez. However, as we recently stated in State v. Garcia, 2008-NMCA-044, \u00b6 30, 143 N.M. 765, 182 P.3d 146, cert. granted, 2008-NMCERT-003, 143 N.M. 682, 180 P.3d 1181, this argument \u201cis inherently flawed.\u201d\n{30} Indeed, to support his equal protection claim under both the constitutions of the United States and New Mexico, Defendant must demonstrate that the preservation requirement \u201cdraws classifications that discriminate against a group of persons to which [he] belongs.\u201d Id. \u00b6 30 (alteration in original) (internal quotation marks and citation omitted). But, as we stated in Garcia, \u201c[t]he class of individuals to which [Rule 12-216(A)] applies includes all appellants before the appellate courts. Every litigant must properly preserve an error in the trial court to assert it on appeal. Rule 12-216(A) treats all individuals in this class alike.\u201d Garcia, 2008-NMCA-044, \u00b6 31, 143 N.M. 765, 182 P.3d 146. Thus, there is no discriminatory classification that triggers an equal protection claim. Id.\nCONCLUSION\n{31} We affirm the district court\u2019s order denying Defendant\u2019s motion to suppress.\n{32} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Joseph P. Walsh, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-090\n187 P.3d 696\nSTATE of New Mexico, Plaintiff-Appellee, v. Daniel MU\u00d1OZ, Defendant-Appellant.\nNo. 26,956.\nCourt of Appeals of New Mexico.\nMay 21, 2008.\nCertiorari Granted, No. 31,151, June 27, 2008.\nGary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Joseph P. Walsh, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0350-01", "first_page_order": 382, "last_page_order": 391 }