{ "id": 4243015, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Erica RIVERA, Defendant-Appellee", "name_abbreviation": "State v. Rivera", "decision_date": "2009-03-16", "docket_number": "No. 25,798", "first_page": "194", "last_page": "198", "citations": [ { "type": "official", "cite": "146 N.M. 194" }, { "type": "parallel", "cite": "207 P.3d 1171" }, { "type": "parallel", "cite": "2009-NMCA-049" } ], "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": "1998-NMCA-154", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827379 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 20" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0077-01" ] }, { "cite": "2004-NMCA-049", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427962 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0490-01" ] }, { "cite": "2002-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260742 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0592-01" ] }, { "cite": "1997-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142197 ], "weight": 3, "pin_cites": [ { "page": "\u00b69" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0405-01" ] }, { "cite": "2008-NMSC-056", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4003641 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 1" }, { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0836-01" ] }, { "cite": "2007-NMCA-104", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692237 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0427-01" ] }, { "cite": "466 U.S. 109", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194938 ], "weight": 20, "year": 1984, "pin_cites": [ { "page": "122" }, { "page": "113" }, { "page": "111" }, { "page": "111-12" }, { "page": "120-21" }, { "page": "121" }, { "page": "117" }, { "page": "111-12" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/us/466/0109-01" ] }, { "cite": "113 N.M. 186", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723186 ], "weight": 6, "pin_cites": [ { "page": "188" }, { "page": "328" }, { "page": "188" }, { "page": "328", "parenthetical": "\"The courts of New Mexico, like other jurisdictions, have accepted the longstanding rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes.\" (footnote omitted)" }, { "page": "190" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0186-01" ] } ], "analysis": { "cardinality": 631, "char_count": 13953, "ocr_confidence": 0.664, "pagerank": { "raw": 5.103496388371802e-08, "percentile": 0.3206754525070767 }, "sha256": "e5d388dfd8dd4f1d1c7b6dbbd17d23ff048d3578177ed8e620baf65b61c5cd3f", "simhash": "1:b2acac23508b824d", "word_count": 2239 }, "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 JONATHAN B. SUTIN, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Erica RIVERA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} This case is before us on remand from the New Mexico Supreme Court. In this opinion, we address whether the State\u2019s warrantless search and seizure was reasonable. This inquiry requires findings on the factual question of whether there was state involvement in the original opening of the package in Denver. We reverse and remand this issue to the district court for further consideration. We analyze the remaining issues to assist the district court in its analysis if it finds that there was not state involvement in the original opening. If the district court so finds, then a private actor breached Defendant Erica Rivera\u2019s expectation of privacy, and the ensuing investigation of the package was reasonable.\n{2} Additionally, we reiterate that the Fourth Amendment is not violated when a private actor infringes on the privacy rights of another without state involvement. See State v. Murillo, 113 N.M. 186, 188, 824 P.2d 326, 328 (Ct.App.1991). Therefore, the Denver station employee\u2019s invasion of Defendant\u2019s privacy does not implicate the Fourth Amendment. Further, although there was state involvement in the transfer of the package from Denver to Albuquerque and in the opening of the package in Albuquerque, the involvement was reasonable because the investigation did not exceed the scope of the original opening. In addressing this issue, we evaluate and adopt the private search doctrine laid out in United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).\nBACKGROUND\n{3} The facts are generated primarily by the testimony of Agent Gerald Perry of the United States Drug Enforcement Administration (DEA) at the hearing on the motion to dismiss. In December 2003, a package was shipped to Defendant in Albuquerque using the services of the El Paso-Los Angeles Limousine Express Company (Bus Company). The package was inadvertently rerouted to the Denver station. A woman who identified herself as Defendant called the Bus Company numerous times inquiring about the package, which she claimed contained beef jerky. Because of the number of calls made, a Denver station employee became suspicious and, against the Bus Company\u2019s policy, opened the package. The Denver station employee discovered a pillow, under which was a toolbox filled with bundles of what appeared to be marijuana. The Denver station employee called the Bus Company\u2019s Los Angeles office, which then contacted Agent Perry to inform him of the situation. Based on the description of the package and its contents, and based on his experience, Agent Perry believed that the packaging of the bundles was consistent with the packaging of marijuana. He instructed the caller to have the package rewrapped and sent on the next bus to Albuquerque. A Bus Company representative informed Defendant that the package would arrive at the Albuquerque station the next day.\n{4} The package arrived at the Albuquerque station shortly before closing that next day, where the manager of the station opened it in Agent Perry\u2019s presence, and Agent Perry confirmed that the packaging was consistent with marijuana. Defendant did not arrive until the following morning, whereupon she took physical possession of the package, before surrendering it moments later when a companion informed her that police were present. Defendant subsequently drove away from the bus station. Presumably, Agent Perry seized the package at that point, and another officer caught up to Defendant\u2019s vehicle and arrested her.\n{5} The district court granted Defendant\u2019s motion to suppress the package and evidence found in the package. It made findings from the bench, which it later adopted in air order nunc pro tunc adopting Defendant\u2019s findings of fact and conclusions of law, that there was state involvement and a seizure in Denver when Agent Perry directed that the package be sent to Albuquerque, and if there was no seizure in Denver, then one occurred in Albuquerque with Agent Perry\u2019s involvement in opening the package. The district court did not make any findings on the question of whether there was state involvement in the original opening of the package by the Denver station employee. The district court dismissed the case.\n{6} The State filed its notice of appeal, and this Court affirmed the district court\u2019s suppression of the package and evidence from the package on Confrontation Clause grounds. State v. Rivera, 2007-NMCA-104, \u00b6 22, 142 N.M. 427, 166 P.3d 488, rev\u2019d, 2008-NMSC-056, \u00b6 1, 144 N.M. 836, 192 P.3d 1213. The Supreme Court reversed and remanded, holding that the Confrontation Clause does not apply to pretrial hearings. Rivera, 2008-NMSC-056, \u00b6 1, 144 N.M. 836, 192 P.3d 1213. We now reverse the district court\u2019s order, in which it concluded that an illegal seizure occurred when Agent Perry directed the Denver station employee to ship the package to Albuquerque and, if not then, when Agent Perry oversaw the package\u2019s opening in Albuquerque. We remand on the question of whether there was state involvement in the original opening of the package in Denver.\nSTANDARD OF REVIEW\n{7} When a defendant raises a Fourth Amendment issue concerning a warrantless search or seizure, the state has the burden of proving its justification. State v. Martinez, 1997-NMCA-048, \u00b69, 123 N.M. 405, 940 P.2d 1200. We review the facts in the light most favorable to the prevailing party and defer to the district court\u2019s findings of fact when they are supported by substantial evidence. State v. Urioste, 2002-NMSC-023, \u00b6 6, 132 N.M. 592, 52 P.3d 964. We review the district court\u2019s application of the law to the facts de novo. State v. Baca, 2004-NMCA-049, \u00b6 11, 135 N.M. 490, 90 P.3d 509.\nFOURTH AMENDMENT ISSUES\n{8} The Fourth Amendment to the United States Constitution protects against unreasonable search and seizure. U.S. Const, amend IV. New Mexico recognizes the principle that the Fourth Amendment is not violated when a private actor infringes on the privacy rights of another without state involvement. Murillo, 113 N.M. at 188, 824 P.2d at 328 (\u201cThe courts of New Mexico, like other jurisdictions, have accepted the longstanding rule that the protections of the Fourth Amendment do not apply to private individuals acting for their own purposes.\u201d (footnote omitted)); see also Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652 (reiterating that the Fourth Amendment applies only to governmental action and not \u201cto a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the [government or with the participation or knowledge of any governmental official\u201d (internal quotation marks and citation omitted)).\nA. The Original Opening in Denver\n{9} We thus address the factual question of whether the Denver station employee opened the package without state involvement. \u201c[Wjhether a \u2018private\u2019 person is acting as an agent of the government is determined as a question of fact in light of all the circumstances.\u201d Murillo, 113 N.M. at 190, 824 P.2d at 330. We do not agree with the State that it is \u201cundisputed\u201d that the Denver station employee opened the package absent any state involvement. The district court did not make any such finding of fact, either orally or in the adopted findings of fact submitted by Defendant.\n{10} Further, Defendant presented a rebuttal witness, criminal investigator Eileen Chavez for the State of New Mexico, who testified that she investigated the Bus Company\u2019s policies regarding customers\u2019 packages. She testified that, according to the manager of the Denver station, the Bus Company maintained a policy to \u201cnot open any packages\u201d and further stated that \u201cit would be a violation of their policy\u201d to do so. This testimony implies that the Denver station employee would not have opened the package of his own accord, intimating possible state involvement.\n{11} There are no findings of fact in the record on the question of whether there was state involvement in the original opening of the package. Therefore, we remand to the district court to make such findings upon the existing record or, in its discretion, to receive such additional evidence as appears relevant to resolve the question.\nB. The Transfer of the Package and the Opening of the Package in Albuquerque\n{12} Assuming the Denver station employee opened the package without state involvement, we must determine if Agent Perry\u2019s actions, when he requested that the package be transferred to Albuquerque and oversaw the opening of the package in Albuquerque, were reasonable and, thus, not a violation of the Fourth Amendment. The State argues that the district court erred in finding state involvement because the Denver station employee breached Defendant\u2019s expectation of privacy. The State\u2019s argument rests on the \u201cprivate search doctrine,\u201d which New Mexico has not previously adopted. See State v. Cline, 1998-NMCA-154, \u00b6 20, 126 N.M. 77, 966 P.2d 785. This Court noted in Cline that the private search doctrine, as laid out in Jacobsen, \u201capplies to searches conducted by private parties ... which are then repeated by government agents.\u201d Cline, 1998-NMCA-154, \u00b6 20, 126 N.M. 77, 966 P.2d 785. We further explained that the subsequent search would not be deemed a violation of a defendant\u2019s right against unreasonable search and seizure because the private actor had breached the defendant\u2019s expectation of privacy. Id. The facts in Cline did not require us to reach the question of whether New Mexico should adopt the doctrine. We do so now.\n{13} In Jacobsen, a case with facts similar to the present one, employees of a private freight carrier cut open a tube inside a damaged package and found plastic bags containing white powder. Jacobsen, 466 U.S. at 111, 104 S.Ct. 1652. They repackaged the tube and notified federal agents, who opened the tube and the bags and took a sample for a field test. Id. at 111-12, 104 S.Ct. 1652. Although the agents asserted dominion and control over the package and thereby seized it, the United States Supreme Court held that the seizure was not unreasonable because a privacy expectation in the privately opened package no longer existed. Id. at 120-21, 104 S.Ct. 1652. Explaining its reasoning, the Court stated, \u201cprior to the field test, respondents\u2019 privacy interest in the contents of the package had been largely compromised,\u201d which it deemed \u201chighly relevant\u201d in determining the reasonableness of the agents\u2019 actions. Id. at 121, 104 S.Ct. 1652. The Court also stated that, after an individual\u2019s expectation of privacy has been breached by a private actor, the information conveyed by the private actor to a government authority may be used by the authority without violation of the Fourth Amendment. Id. at 117, 104 S.Ct. 1652. In other words, \u201c[o]nce frustration of the original expectation of privacy occurs,\u201d the information is deemed not private and is no longer protected by the Fourth Amendment. Id. We consider the Court\u2019s analysis to be sound and therefore adopt the conclusion that, if an individual\u2019s expectation of privacy is breached by a private actor, then subsequent investigation by the state is not an unreasonable search or seizure under the Fourth Amendment, so long as the subsequent investigation does not expand upon the scope of the original breach.\n{14} In the present case, Agent Perry\u2019s actions were based upon his belief that the package had already been opened by the Denver station employee. As discussed above, the Denver station employee notified the Bus Company\u2019s Los Angeles office, which then contacted Agent Perry with information on a package with suspicious contents. The package was rewrapped and sent to Albuquerque per Agent Perry\u2019s instructions, and, once in Albuquerque, it was opened under Agent Perry\u2019s supervision. The facts are remarkably similar to those in Jacobsen, and, in following the reasoning established therein, we similarly hold that Agent Perry\u2019s search and seizure of the package was not unreasonable because a privacy expectation in the privately opened package no longer existed. See id. at 111-12, 104 S.Ct. 1652. Just as in Jacobsen, Defendant\u2019s \u201cprivacy interest in the contents of the package had been largely compromised.\u201d Id. at 121, 104 S.Ct. 1652. Thus, when Agent Perry opened the package and observed the same bundles previously described to him, his actions were within the scope of the privacy violation already perpetrated by the Denver station employee. Even if Agent Perry cut open one of the bundles in Albuquerque, as Defendant alleges, he did not unreasonably expand upon the original breach of Defendant\u2019s expectation of privacy. The knowledge Agent Perry gained from the Bus Company employee about the package, his experience with drugs and packaging of drugs, and his observations of the package and the bundles within would have supported his actions. Agent Perry\u2019s investigation did not unreasonably expand the private search and was therefore not a violation of the Fourth Amendment.\nCONCLUSION\n{15} We reverse the district court\u2019s findings that the search and seizure by Agent Perry was unreasonable both when he directed that the package be sent to Albuquerque and when he participated in the opening of the package in Albuquerque. We remand the ease on the question of whether there was state involvement in the original opening of the package by the Denver station employee.\n{16} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and JONATHAN B. SUTIN, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellant.", "Hugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Navin H. Jayaram, Assistant Appellate Defender, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2009-NMCA-049\n207 P.3d 1171\nSTATE of New Mexico, Plaintiff-Appellant, v. Erica RIVERA, Defendant-Appellee.\nNo. 25,798.\nCourt of Appeals of New Mexico.\nMarch 16, 2009.\nCertiorari Granted, No. 31,656, May 5, 2009.\nGary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellant.\nHugh W. Dangler, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Navin H. Jayaram, Assistant Appellate Defender, Santa Fe, NM, for Appellee." }, "file_name": "0194-01", "first_page_order": 224, "last_page_order": 228 }