{ "id": 4243835, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Julian OCHOA, Defendant-Appellant", "name_abbreviation": "State v. Ochoa", "decision_date": "2008-11-03", "docket_number": "No. 24,720", "first_page": "32", "last_page": "46", "citations": [ { "type": "official", "cite": "146 N.M. 32" }, { "type": "parallel", "cite": "2009-NMCA-002" }, { "type": "parallel", "cite": "206 P.3d 143" } ], "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": "2008-NMCA-020", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784662 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0431-01" ] }, { "cite": "116 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727613 ], "weight": 2, "pin_cites": [ { "page": "303" }, { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0297-01" ] }, { "cite": "2004-NMCA-127", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1224593 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b619" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0521-01" ] }, { "cite": "2004-NMCA-054", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428075 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0520-01" ] }, { "cite": "112 N.M. 302", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720173 ], "weight": 2, "pin_cites": [ { "page": "304" }, { "page": "1032" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0302-01" ] }, { "cite": "71 F.3d 783", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7415125 ], "opinion_index": 0, "case_paths": [ "/f3d/71/0783-01" ] }, { "cite": "864 F.2d 1512", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10537897 ], "opinion_index": 0, "case_paths": [ "/f2d/864/1512-01" ] }, { "cite": "109 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590310 ], "weight": 9, "pin_cites": [ { "page": "69" }, { "page": "797" }, { "page": "69" }, { "page": "797" }, { "page": "69" }, { "page": "797", "parenthetical": "alterations in original" }, { "page": "69" }, { "page": "797", "parenthetical": "articulating both the probable cause/reasonable suspicion standard and the \"would have\" standard" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0067-01" ] }, { "cite": "122 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322307 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/122/0232-01" ] }, { "cite": "1996-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 14-15" }, { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0 }, { "cite": "1997-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18584 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0045-01" ] }, { "cite": "90 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871457 ], "weight": 2, "pin_cites": [ { "page": "131" }, { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0129-01" ] }, { "cite": "103 N.M. 660", "category": "reporters:state", "reporter": 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[ 3691756 ], "weight": 12, "pin_cites": [ { "page": "\u00b6\u00b621, 28" }, { "page": "\u00b6\u00b6 21, 28" }, { "page": "\u00b6\u00b6 21, 28" }, { "page": "\u00b6\u00b6 21-28" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0176-01" ] }, { "cite": "2005-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548790 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 13-20" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0009-01" ] }, { "cite": "117 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552727 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "145" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0141-01" ] }, { "cite": "2008-NMSC-041", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4002999 ], "weight": 10, "pin_cites": [ { "page": "\u00b610" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 15" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0371-01" ] }, { "cite": "480 U.S. 340", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131469 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "347", "parenthetical": "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)" }, { "parenthetical": "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)" }, { "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/us/480/0340-01" ] }, { "cite": "87 J.Crim. L. & Criminology 544", "category": "journals:journal", "reporter": "J. Crim. L. & Criminology", "year": 1997, "pin_cites": [ { "page": "550-53", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "102 Mich. L.Rev. 1843", "category": "journals:journal", "reporter": "Mich. L. Rev.", "year": 2004, "pin_cites": [ { "page": "1854" } ], "opinion_index": 0 }, { "cite": "84 Minn. L.Rev. 265", "category": "journals:journal", "reporter": "Minn. L. Rev.", "weight": 2, "pin_cites": [ { "page": "298", "parenthetical": "Dec. 1999" }, { "page": "299" } ], "opinion_index": 0 }, { "cite": "111 N.M. 28", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715054 ], "weight": 4, "pin_cites": [ { "page": "33" }, { "page": "103" }, { "page": "35" }, { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0028-01" ] }, { "cite": "24 Am. J. Crim. L. 627", "category": "journals:journal", "reporter": "Am. J. Crim. L.", "year": 1997, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "979 P.2d 833", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 7, "year": 1999, "pin_cites": [ { "page": "837-38", "parenthetical": "en banc" }, { "page": "837-42" }, { "page": "838", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "838, 842" }, { "page": "838" }, { "page": "843", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "138 Wash.2d 343", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 887355 ], "year": 1999, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/138/0343-01" ] }, { "cite": "2005-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929147 ], "weight": 9, "pin_cites": [ { "page": "\u00b6\u00b6 33-36" }, { "page": "\u00b6\u00b6 33-34" }, { "page": "\u00b6\u00b6 34-37" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0174-01" ] }, { "cite": "929 A.2d 390", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8354157 ], "weight": 6, "pin_cites": [ { "page": "398-99" }, { "page": "402" }, { "page": "403", "parenthetical": "adopting a similar standard" }, { "page": "402-03" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/a2d/929/0390-01" ] }, { "cite": "69 Temp. L.Rev. 1007", "category": "journals:journal", "reporter": "Temp. L. Rev.", "year": 1996, "pin_cites": [ { "page": "1025", "parenthetical": "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\"" } ], "opinion_index": 0 }, { "cite": "72 Temp. L.Rev. 597", "category": "journals:journal", "reporter": "Temp. L. Rev.", "year": 1999, "pin_cites": [ { "page": "597", "parenthetical": "\"Scholars, journalists, and lawyers promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed, and fundamentally unfair.\"" } ], "opinion_index": 0 }, { "cite": "2006-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671457 ], "weight": 15, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b624" }, { "page": "\u00b6 14" }, { "page": "\u00b6 18" }, { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0345-01" ] }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 17, "year": 1996, "pin_cites": [ { "page": "810, 813-14, 819" }, { "page": "813" }, { "page": "811-13" }, { "page": "811-12" }, { "page": "811-13" }, { "page": "813" }, { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 15, "pin_cites": [ { "page": "\u00b6\u00b617, 19-22" }, { "page": "\u00b6 23" }, { "page": "\u00b6 38" }, { "page": "\u00b6\u00b634, 37-44" }, { "page": "\u00b6\u00b6 37-44" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "2001-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352577 ], "weight": 10, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 6" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0386-01" ] }, { "cite": "2006-NMCA-131", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671278 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0573-01" ] }, { "cite": "2008-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783699 ], "weight": 20, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 2" }, { "page": "\u00b6 5" }, { "page": "\u00b62" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0749-01" ] } ], "analysis": { "cardinality": 1632, "char_count": 46589, "ocr_confidence": 0.677, "pagerank": { "raw": 2.455417561010791e-07, "percentile": 0.8049839971365126 }, "sha256": "5035c9d68cc86da451fc3b0b94fe0110b98190a4d1fcb9ca3e0345de7486edd8", "simhash": "1:e80836447ac992bb", "word_count": 7256 }, "last_updated": "2023-07-14T18:28:31.770781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Julian OCHOA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Judge.\n{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, \u00b6 22, 143 N.M. 749, 182 P.3d 130 (\u201c[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] prohibits pretextual stops.\u201d), rev\u2019g 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.\nFACTUAL BACKGROUND\n{2} The material facts are not in dispute. We refer to the facts in our Supreme Court\u2019s 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, \u00b6 2, 143 N.M. 749, 182 P.3d 130. He wanted to investigate it, so he returned to the residence several times to check on it. Id. On one of his cheeks, Agent Edmondson testified that while he watched the vehicle drive away from the house, he saw that the driver (Defendant) was not wearing a seat-belt. 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. \u00b6 3. Officer Martinez testified that Agent Edmondson told him \u201cthere was a black utility vehicle heading north on 7th and the driver wasn\u2019t wearing a seatbelt.\u201d 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, \u00b6 2, 140 N.M. 573, 144 P.3d 132.\n{3} Officer Martinez confirmed the warrants, arrested Defendant, and placed him in the patrol car. Ochoa, 2008-NMSC-023, \u00b6 5, 143 N.M. 749, 182 P.3d 130. 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\u2019s 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.\n{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\u2019s 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. If 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.\n{5} The district court agreed with Defendant that Agent Edmondson \u201chad 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.\u201d The district court nevertheless agreed with the State that Officer Martinez could stop Defendant\u2019s 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.\nDISCUSSION\n{6} \u201cThe constitutionality of a search or seizure is a mixed question of law and fact and demands de novo review.\u201d State v. Cardenas-Alvarez, 2001-NMSC-017, \u00b6 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, \u00b6\u00b617, 19-22, 122 N.M. 777, 932 P.2d 1.\nINTERSTITIAL ANALYSIS\n{7} \u201cPursuant 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.\u201d Cardenas-Alvarez, 2001-NMSC-017, \u00b6 6, 130 N.M. 386, 25 P.3d 225.\nFederal Interpretation of the Fourth Amendment\n{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, 116 S.Ct. 1769, 135 L.Ed.2d 89 (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, 116 S.Ct. 1769. The Court stated that \u201c[s]ubjective intentions [whatever they may be] play no role in ordinary, probable-cause Fourth Amendment analysis.\u201d Id. at 813, 116 S.Ct. 1769. 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.\nPreservation\n{9} When a party claims that the state courts have not interpreted a provision of the state constitution differently than its federal counterpart, that \u201cparty 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.\u201d Gomez, 1997-NMSC-006, \u00b6 23, 122 N.M. 777, 932 P.2d 1 (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.\n{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\u2019s 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.\n{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\u2019 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.\nDiverging from Federal Precedent\n{12} \u201cWe 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.\u201d State v. Granville, 2006-NMCA-098, \u00b6 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\u2019s distinctively protective standards for searches and seizures of automobiles.\nCritique of Whren\n{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) (\u201cScholars, journalists, and lawyers promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed, and fundamentally unfair.\u201d); 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\u2019s \u201creasonableness\u201d requirement, inexplicably dismissed the Supreme Court\u2019s 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\u2019s Outer Frontier: A Subjective Test for Pretextual Seizures, 69 Temp. L.Rev. 1007, 1025 (1996) (describing the Whren decision as \u201ca 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\u201d).\n{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\u2019s own prior statements expressing hostility toward police pretext and declared that Supreme Court case law forecloses any inquiry into the officers\u2019 motivations to conduct a routine traffic stop. See Whren, 517 U.S. at 811-13, 116 S.Ct. 1769; see also Markus, supra, at 98 (\u201c[Sjince when do prior statements become irrelevant, especially where they are so pervasive and consistently caution against pretext?\u201d). 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).\n{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, 116 S.Ct. 1769; see also State v. Ryon, 2005-NMSC-005, \u00b6\u00b6 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, \u00b6\u00b6 33-34, 137 N.M. 174, 108 P.3d 1032. 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, 116 S.Ct. 1769. However, what makes a traffic stop \u201cordinary\u201d 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.\n{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, \u201cnot 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.\u201d State v. Ladson, 138 Wash.2d 343, 979 P.2d 833, 837-38 (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.\n{17} One of the main criticisms of Whren is its failure to acknowledge that because the extensive traffic code regulates all manner of driving \u201c \u2018[wjhether it be for failing to signal while changing lanes, driving with a headlight out, or not giving \u2018full time and attention\u2019 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.\u2019\u201d 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:\n[GJiven 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 \u201ca power that places the liberty of every man in the hands of every petty officer,\u201d precisely the kind of arbitrary authority which gave rise to the Fourth Amendment.\nState 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, \u00a7 1.4(e), at 95 (2d ed. 1987)).\n{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 \u201camong the most common . encounters regular citizens have with police.\u201d David A. Harris, The Stories, the Statistics, and the Law: Why \u201cDriving While Black\u201d Matters, 84 Minn. L.Rev. 265, 298 (Dec. 1999). Furthermore, \u201cthe 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.\u201d 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\u2019 subjective motivations in suspicionless checkpoints and inventory searches as a practical matter are at least equally applicable to \u201cordinary\u201d traffic stops. See Wayne R. LaFave, The Routine Traffic Stop From Start to Finish: Too Much \u201cRoutine, \u201d Not Enough Fourth Amendment, 102 Mich. L.Rev. 1843, 1854 (2004) (\u201cIndeed, 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 \u2018standardized procedures\u2019 and \u2018reasonable legislative or administrative standards\u2019 requirements for inventories and administrative inspections, respectively.\u201d (internal quotation marks omitted)).\n{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, unconstitutional. See Whren, 517 U.S. at 813, 116 S.Ct. 1769; 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 \u201cconstitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause.\u201d Whren, 517 U.S. at 813, 116 S.Ct. 1769. This remedy is often criticized as ineffective. See, e.g., LaFave, Routine Traffic Stop, supra, at 1860-61; David A. Harris, \u201cDriving While Black\u201d 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 \u201cit is still less than certain that meaningful relief would be forthcoming, for absent recognition of an equal protection exclusionary rule, the defendant\u2019s only relief is likely to be dismissal of the traffic charge.\u201d 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 rale 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, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (stating that \u201cthe 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\u201d (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.\nNew Mexico\u2019s Distinctive Protection of Privacy in an Automobile\n{20} New Mexico constitutional law permits us to expand the federal protections afforded New Mexico\u2019s motorists from unreasonable searches and seizures because New Mexico courts have rejected \u201cthe notion that an individual lowers his expectation of privacy when he enters an automobile.\u201d Cardenas-Alvarez, 2001-NMSC-017, \u00b6 15, 130 N.M. 386, 25 P.3d 225. \u201cThe extra layer of protection from unreasonable searches and seizures involving automobiles is a distinct characteristic of New Mexico constitutional law\u201d and therefore supports our departure from Whren. Id.\nArticle II, section 10 of the New Mexico Constitution provides:\nThe 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.\nN.M. Const, art. II, \u00a7 10. \u201c[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable, subject only to well-delineated exceptions.\u201d State v. Rowell, 2008-NMSC-041, \u00b610, 144 N.M. 371, 188 P.3d 95 (internal quotation marks and citation omitted). \u201cWarrantless seizures are presumed to be unreasonable and the State bears the burden of proving reasonableness.\u201d Id. (internal quotation marks and citation omitted). \u201cThe 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.\u201d Granville, 2006-NMCA-098, \u00b624, 140 N.M. 345, 142 P.3d 933. New Mexico courts recognize the distinct interests of police and the courts and emphasize a strong preference for warrants: \u201c[t]hrough the warrant procedure, we prevent law enforcement \u2018from allowing the competitive pressures of fighting crime to compromise their judgment about whether or not to carry out a given search.\u2019 \u201d Id. \u00b6 24 (quoting Gomez, 1997-NMSC-006, \u00b6 38, 122 N.M. 777, 932 P.2d 1).\n{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. \u00b6\u00b6 18-21; Gomez, 1997-NMSC-006, \u00b6\u00b634, 37-44,122 N.M. 777, 932 P.2d 1.\n{22} In Gomez, our Supreme Court examined the two principles upon which the federal automobile exception to the warrant requirement was created: \u201c(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.\u201d Id. \u00b6 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. \u00b6\u00b6 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. \u00b6\u00b6 41-43.\n{23} Most recently, in Rowell, our Supreme Court departed from federal precedent that an officer may search an automobile \u201cwhenever 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.\u201d 2008-NMSC-041, \u00b6 15, 144 N.M. 371, 188 P.3d 95. The Court expressed concern that the federal case law \u201ccreates 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.\u201d Id. \u00b6 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. \u00b6\u00b6 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).\n{24} New Mexico courts have frequently broadened search and seizure protections under our state constitution. See Granville, 2006-NMCA-098, \u00b6 14, 140 N.M. 345, 142 P.3d 933 (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 more, New Mexico courts have consistently rejected federal bright-line rules in favor of an examination into the reasonableness of officers\u2019 actions under the circumstances of each ease. See Granville, 2006-NMCA-098, \u00b6 18, 140 N.M. 345, 142 P.3d 933 (\u201cWe avoid bright-line, per se rules in determining reasonableness; instead we consider the facts of each case.\u201d); Gomez, 1997-NMSC-006, \u00b6\u00b6 37-44, 122 N.M. 777, 932 P.2d 1 (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, \u00b6 18, 140 N.M. 345, 142 P.3d 933 (\u201cIn all cases that invoke [ajrticle II, [sjection 10, the ultimate question is reasonableness.\u201d). \u201cThe 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.\u201d 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, \u00b6\u00b6 13-20, 138 N.M. 9, 116 P.3d 80.\n{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 \u201cis to prevent and invalidate police conduct based on \u2018hunches,\u2019 which are, by definition, subjective.\u201d Leary & Williams, supra, at 1030; see State v. Neal, 2007-NMSC-043, \u00b6\u00b621, 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 \u201chunch,\u201d a different more serious investigative agenda for which there is no reasonable suspicion or probable cause. Whren \u201cestablished 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.\u201d United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006). Our courts reject \u201cbright-line rules that would have held certain categories of searches or seizures to be per se reasonable so long as there was probable cause.\u201d State v. Rodarte, 2005-NMCA-141, \u00b6 14, 138 N.M. 668, 125 P.3d 647.\n{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 suspieion/probable cause exception to the warrant requirement \u2014 to prevent officers from acting on unsupported hunches \u2014 is not furthered when our courts refuse to examine the unconstitutional hunch motivating the stop.\n{27} The Supreme Court of Washington has rejected Whren on a basis consistent with this Court\u2019s view. See Ladson, 979 P.2d at 837-42. It states that Washington\u2019s \u201cstate constitutional provision is designed to guard against unreasonable search and seizure, made without probable cause.\u201d Id. at 838 (internal quotation marks and citation omitted). Characterizing pretext as \u201cresult without reason,\u201d the Washington Supreme Court concluded that \u201c[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 requirement when the reason for the search or seizure does not fall within the scope of the reason for the exception.\u201d Id. at 838, 842.\n{28} Similarly, the Superior Court of Delaware has determined that permitting police unfettered discretion to use a traffic violation to investigate an officer\u2019s hunch about a separate offense is \u201cthe equivalent of granting the police a general warrant to search and seize virtually all travelers on the roads of this [s]tate.\u201d Heath, 929 A.2d at 402. The Delaware court concluded that purely pretextual stops, \u201cdemonstrated to have been made exclusively for the purpose of investigating an officer\u2019s hunch about some other offense,\u201d run afoul of the underlying purpose of the prohibition against unreasonable searches and seizures in the Delaware Constitution. Id.\nThe State\u2019s Arguments\n{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 eases 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.\n{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, \u00b6 6, 124 N.M. 45, 946 P.2d 648. We are not persuaded by the State\u2019s 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. \u00b6\u00b6 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. \u00b6 6 (\u201cChild cites no authority and makes no arguments to explain why an investigative detention should be analyzed differently under the New Mexico Constitution.\u201d).\n{31} Third, the State argues that New Mexico\u2019s 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, \u00b6\u00b6 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.\n{32} In Pallor, we rejected the defendant\u2019s claim that the officers\u2019 traffic stop was a pretext to investigate drug activity because the officers had a reasonable suspicion that the defendant was engaged in drug activity. 1996-NMCA-083, \u00b6\u00b6 13-14, 122 N.M. 232, 923 P.2d 599. In Benjamin C., we applied two federal standards to the child\u2019s 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. Botero-Ospina, 71 F.3d 783 (10th Cir.1995). Benjamin C., 109 N.M. at 69, 781 P.2d at 797. Guzman applied the \u201cwould have\u201d approach to pretextual stops: \u201cIn 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.\u201d 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\u2019s 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.\n{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 \u201cwhether to adopt a\nsole-bad-purpose test or a primary-bad-purpose test \u2014 or even whether to adopt a subjective test at all\u201d 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 \u201cthe district court was entitled to find, based on the evidence before it, that the purpose of the roadblock in this case was legitimate\u201d); Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (articulating both the probable cause/reasonable suspicion standard and the \u201cwould have\u201d standard).\n{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, \u00b6 22, 135 N.M. 520, 90 P.3d 539 (stating that where officers attempt to \u201cinquire 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\u201d); see also Ryon, 2005-NMSC-005, \u00b6\u00b6 34-37,137 N.M. 174,108 P.3d 1032 (refusing to permit officers to \u201cuse 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\u201d); State v. Prince, 2004-NMCA-127, \u00b6 19, 136 N.M. 521,101 P.3d 332 (facing a claim of pretext and refusing to permit the officer to \u201cuse a lawful stop to fish for evidence of other crimes\u201d 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) (\u201cThis 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.\u201d).\n{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.\n{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, \u00b619, 136 N.M. 521, 101 P.3d 332; Neal, 2007-NMSC-043, \u00b6\u00b6 21, 28, 142 N.M. 176, 164 P.3d 57. 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, \u00b6 17, 143 N.M. 431, 176 P.3d 1163 (holding that the officer\u2019s 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.\n{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, \u00b6\u00b6 21, 28, 142 N.M. 176, 164 P.3d 57. The purpose of the exception is undermined where the reason for the stop is an unsupported hunch or is otherwise legally insufficient. \u201cPretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason.\u201d Ladson, 979 P.2d at 838.\n{38} We do not accept the State\u2019s arguments that our constitution, which favors an examination into the reasonableness of officers\u2019 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\u2019 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.\nStandard for Pretextual Stops\n{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\u2019s actions and the subjective intent of the officer\u2014the real reason for the stop. See id. at 843 (\u201cWhen 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\u2019s behavior.\u201d). 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\u2019s intent is determined like any other fact, based on the evidence presented and consideration of the factors we describe below.\n{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, \u00b6 10, 144 N.M. 371, 188 P.3d 95. 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\u2019s \u201cmotive for [the stop] was unrelated to the objective existence of reasonable suspicion or probable cause.\u201d 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.\n{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\u2019s 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\u2019s 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\u2019s 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.\n{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.\nApplication of the Pretext Standard\n{43} Because sufficient facts were developed and findings were made, we apply the pretext standard here. The officers\u2019 objective justification for the stop was a seatbelt violation. The district court ruled that Agent Edmondson\u2019s radio call indicating that he saw Defendant was not wearing a seatbelt was reliable information upon which to conduct the stop. Undisputedly, a seat-belt 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.\n{44} The facts developed in support of Defendant\u2019s claim of pretext were as follows. Officer Edmondson was investigating the residence for drug activity and the presence of Defendant\u2019s vehicle at the residence. See Ochoa, 2008-NMSC-023, \u00b62, 143 N.M. 749, 182 P.3d 130. 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. \u00b6\u00b6 2-3. The agent radioed a uniformed patrol officer \u201cto see if Officer Martinez would pull [Defendant] over.\u201d Id. \u00b6 3. On the sole basis of the radio call, Officer Martinez followed Defendant for approximately thirteen blocks and stopped him. Id. \u00b6 4. Because the windows on Defendant\u2019s vehicle were tinted, Officer Martinez could not determine whether or not Defendant was wearing a seatbelt. Id. Nevertheless, because of Agent Edmondson\u2019s 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. \u00b6 5.\n{45} The district court found that Agent Edmondson \u201chad 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.\u201d 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, \u00b6\u00b6 21-28, 142 N.M. 176, 164 P.3d 57 (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).\n{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\u2019s unrelated motive, Officer Martinez would have stopped Defendant. There is no dispute that Officer Martinez had no independent basis for pulling over Defendant, and that he would not have done so without the radio call from Agent Edmondson. With the Agent\u2019s admission and the district court\u2019s 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.\nCONCLUSION\n{47} Because pretextual stops are not constitutionally reasonable in New Mexico, we reverse the district court\u2019s denial of Defendant\u2019s motion to suppress.\n{48} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges.", "type": "majority", "author": "VIGIL, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "2009-NMCA-002\n206 P.3d 143\nSTATE of New Mexico, Plaintiff-Appellee, v. Julian OCHOA, Defendant-Appellant.\nNo. 24,720.\nCourt of Appeals of New Mexico.\nNov. 3, 2008.\nCertiorari Granted, No. 31,430, Dec. 30, 2008.\nGary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0032-01", "first_page_order": 62, "last_page_order": 76 }