{ "id": 4245194, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Daniel B. HERRERA, DefendantAppellee", "name_abbreviation": "State v. Herrera", "decision_date": "2009-10-30", "docket_number": "No. 27,733", "first_page": "441", "last_page": "444", "citations": [ { "type": "official", "cite": "147 N.M. 441" }, { "type": "parallel", "cite": "2010-NMCA-006" }, { "type": "parallel", "cite": "224 P.3d 668" } ], "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": "440 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187389 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/us/440/0648-01" ] }, { "cite": "892 F.2d 972", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10528025 ], "weight": 2, "pin_cites": [ { "page": "974" } ], "opinion_index": 0, "case_paths": [ "/f2d/892/0972-01" ] }, { "cite": "475 U.S. 106", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6198038 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "113-14" }, { "page": "118-19" } ], "opinion_index": 0, "case_paths": [ "/us/475/0106-01" ] }, { "cite": "494 F.3d 1146", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3540379 ], "weight": 9, "year": 2007, "pin_cites": [ { "page": "1150-52" }, { "page": "1148" }, { "page": "1148-49" }, { "page": "1149" }, { "page": "1150" }, { "page": "1148, 1150-51" }, { "page": "1150" }, { "page": "1151" } ], "opinion_index": 0, "case_paths": [ "/f3d/494/1146-01" ] }, { "cite": "119 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561231 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "386", "parenthetical": "holding that individuals have no expectation of privacy in their license, registration, or insurance documents and citing out-of-state cases that have held that individuals do not have a privacy interest in their registration records" }, { "page": "1318", "parenthetical": "holding that individuals have no expectation of privacy in their license, registration, or insurance documents and citing out-of-state cases that have held that individuals do not have a privacy interest in their registration records" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0383-01" ] }, { "cite": "2008-NMCA-160", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243317 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0297-01" ] } ], "analysis": { "cardinality": 650, "char_count": 14038, "ocr_confidence": 0.676, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3081880449400718 }, "sha256": "867651954b85f634c217df981fb2d3f0b1158cf81d4c71c7a94f27f29d99eb2c", "simhash": "1:c35f5023355a864e", "word_count": 2242 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY, Chief Judge and RODERICK T. KENNEDY, Judge." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Daniel B. HERRERA, DefendantAppellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} The State appeals the district court finding that Investigator Bill Hubbard needed reasonable suspicion to justify checking Defendant Daniel B. Herrera\u2019s license plate and that because he did not have reasonable suspicion, the evidence obtained after the license plate check was \u201cfruit of the poisonous tree\u201d and therefore inadmissible. We clarify that an individual has no reasonable expectation of privacy in his license plate number or vehicle identification number (VIN) and hold that Investigator Hubbard\u2019s license plate check on Defendant\u2019s vehicle was not a search under the Fourth Amendment. Therefore, we reverse and remand for further proceedings.\nBACKGROUND\n{2} Investigator Hubbard, an investigator with the Eighth Judicial District Attorney\u2019s Office (DAO), testified to the following undisputed facts. On October 5, 2006, Tim Has-son from the DAO informed Investigator Hubbard that there was a \u201cpotential incident in the parking lot,\u201d referencing Defendant\u2019s ear. Investigator Hubbard observed Defendant leave the car and enter the DAO, at which point Investigator Hubbard \u201ccontinued to observe the vehicle that [Defendant] had gotten out of.\u201d Investigator Hubbard could not see into the car. Although he testified that he believed that someone may have been in the car who might have been in peril, he did not attempt to ascertain whether there was someone in the car at that point. Instead, he noted the license plate number and ran it through the New Mexico Crime Information Center (NCIC) for a motor vehicle check. The result of the NCIC check informed Investigator Hubbard that the plates did not match the car \u2014 the car was a Chevrolet Camaro and the NCIC check matched the plates to a Mercury.\n{3} As a result of this discrepancy, Investigator Hubbard decided to return to the car to acquire the VIN. However, at that time, Defendant passed Investigator Hubbard\u2019s office, so Investigator Hubbard made contact with Defendant in the lobby. He introduced himself to Defendant, walked with him to the parking lot, and asked him about the discrepancy between the car and the NCIC check. Defendant explained that the wrong plates were on the ear because he had just purchased the vehicle and had not yet registered it. Investigator Hubbard did not deem this response to be adequate, so he decided to make contact with central dispatch to have the VIN checked. As Investigator Hubbard was reading the VIN over the phone, Defendant opened the driver\u2019s door and sat down, allowing Investigator Hubbard to see a silver-colored handgun inside the car on the floor. Because the gun was within Defendant\u2019s reach, Investigator Hubbard was concerned for his safety and, therefore, asked Defendant to step from the car while Investigator Hubbard placed the gun on the windshield. Investigator Hubbard then concluded his telephone call after learning that the VIN report revealed \u201cthat there was no current valid registration in New Mexico on the car.\u201d Investigator Hubbard testified that although it does not necessarily prove rightful possession or rightful ownership either way, this sort of report \u201cleaves a lot of gray area,\u201d such that \u201c[fjurther inquiry would need to be made.\u201d\n{4} Investigator Hubbard again approached Defendant, at which point Defendant, \u201cwithout any question from [Investigator Hubbard] or anything, talked about the gun.\u201d Defendant explained \u201cthat he had just taken that gun from his nephew [that] morning, who was trying to take it to school with him.\u201d Investigator Hubbard then asked Defendant if he was a convicted felon, which Defendant confirmed. At that point, additional officers had arrived at the scene, and Investigator Hubbard placed Defendant under arrest for being a convicted felon in possession of a firearm. Investigator Hubbard instructed another officer to call a wrecker to the scene and inventory the contents of the car according to standard protocol. As a result of the inventory search, a fanny pack and the gun were taken from the car.\n{5} Based on the items found during the inventory search, Defendant was charged with trafficking in cocaine and with possession of drug paraphernalia. Defendant filed a motion to suppress the evidence obtained from the inventory search, arguing that Investigator Hubbard had no reasonable suspicion that any law was being violated once the VIN \u201cwas cleared by dispatch\u201d and that, therefore, Defendant\u2019s Fourth and Fourteenth Amendment rights were violated by the \u201ccontinued detention that was no longer based in a reasonable suspicion that a crime had been committed.\u201d Defendant further argued that the discovery of the gun was \u201cof no consequence and [was] not related to [Investigator Hubbard\u2019s] suspicions justifying the stop.\u201d At the hearing on Defendant\u2019s motion to suppress, he argued that the seizure of the gun and the ensuing inventory search were improper without a search warrant. At the end of the suppression hearing, without addressing the arguments raised by the parties, the district court found that Investigator Hubbard lacked reasonable suspicion \u201cabout anything illegal about the car itself\u2019 and, therefore, had no \u201cright to run a license plate check, a VIN ... check, or any other thing.\u201d The court therefore concluded that once Investigator Hubbard ran the license plate, \u201che undertook an illegal investigation because he had no suspicion. Everything that occurred after that, and evidence obtained after that was illegally obtained.\u201d The district court did not address the questions of whether Investigator Hubbard had a right to ask Defendant whether he was a felon or whether the inventory search was proper.\n{6} The State filed a motion to reconsider the district court\u2019s finding, after which the district court filed an order suppressing all of the evidence. In its order, the district court did not address the parties\u2019 arguments and, instead, reiterated that Investigator Hubbard \u201cdid not articulate any facts giving rise to [a] reasonable suspicion of illegal activity or criminal conduct\u201d and that as a result, \u201ceverything Investigator Hubbard did following that was an illegal search and seizure. Everything discovered was illegal and what ever [sic] followed was fruit of the poisonous tree.\u201d The State appeals.\nMOTION TO SUPPRESS\n{7} The State argues that the district court erred in requiring Investigator Hubbard to have reasonable suspicion to justify checking Defendant\u2019s license plate. Appellate review of a motion to suppress presents a mixed question of fact and law. State v. Moran, 2008-NMCA-160, \u00b6 6, 145 N.M. 297, 197 P.3d 1079. As the facts in this case are not in dispute, we review the district court\u2019s grant of Defendant\u2019s motion to suppress de novo. See id.\n{8} The State argues that when the district court erroneously found that, because Investigator Hubbard lacked reasonable suspicion about anything pertaining to the car he had no right to run a license plate check, it equated the license plate check \u201cwith an officer stopping a car without reasonable suspicion of illegal activity.\u201d The State asserts that this was inappropriate in that the license plate check \u201cwas neither a search nor a seizure because Defendant did not have an expectation of privacy in the license plate number.\u201d We agree with the State. Although New Mexico has not explicitly addressed this issue, our case law has relied on this assumption in related eases. See, e.g., State v. Reynolds, 119 N.M. 383, 386, 890 P.2d 1315, 1318 (1995) (holding that individuals have no expectation of privacy in their license, registration, or insurance documents and citing out-of-state cases that have held that individuals do not have a privacy interest in their registration records).\n{9} In a similar ease involving a license plate check without reasonable suspicion, the Ninth Circuit Court of Appeals held that a license plate check is not a search under the Fourth Amendment. United States v. Diaz-Castaneda, 494 F.3d 1146, 1150-52 (9th Cir. 2007). In that case, the officer checked the license plate of a truck that was ahead of him on the highway and discovered that the vehicle\u2019s registered owner had a suspended license. Id. at 1148. As a result, the officer stopped the driver and arrested him for driving with a suspended license. Id. at 1148-49. The defendant was a passenger in the truck and a Mexican citizen with an immigration detainer for his arrest as an illegal alien. Id. at 1149. The defendant argued that the officer\u2019s check of the vehicle\u2019s license plate was an unreasonable search because the officer did not have reasonable suspicion of any wrongdoing when he initiated the check. Id. at 1150.\n{10} The court, agreeing with \u201call the other courts that have considered the issue,\u201d id. at 1148, 1150-51, held that \u201ca license plate cheek does not qualify as a search under the Fourth Amendment.\u201d Id. at 1150. It stated that \u201cpeople do not have a subjective expectation of privacy in their license plates, and that even if they did, this expectation would not be one that society is prepared to recognize as reasonable.\u201d Id. at 1151. It listed several reasons for its holding: (1) \u201clicense plates are located on a vehicle\u2019s exterior, in plain view of all passersby, and are specifically intended to convey information about a vehicle to law enforcement authorities\u201d; (2) \u201ca license plate check is not intrusive\u201d since the driver is not even aware that the check has occurred unless the officer discovers something warranting further investigation; and (3) \u201cthe Supreme Court has ruled that people have no reasonable expectation of privacy in their [VIN], which is located inside the vehicle but is typically visible from the outside,\u201d equating a license plate with a YIN. Id. (citing New York v. Class, 475 U.S. 106, 113-14, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986)). The court concluded that \u201cwhen police officers see a license plate in plain view, and then use that plate to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search.\u201d Id. at 1152.\n{11} The Tenth Circuit Court of Appeals has also addressed this issue. In United States v. Walraven, 892 F.2d 972, 974 (10th Cir.1989), that court stated that \u201cbecause they are in plain view, no privacy interest exists in license plates.\u201d It reasoned that the officer\u2019s registration check on the defendant\u2019s vehicle \u201cneither unreasonably burdened nor restricted [the defendant\u2019s] travel\u201d because \u201c[u]nless a registration check reveals information which raises a reasonable suspicion of criminal activity, the subject remains unaware of the check and unencumbered.\u201d Id.\n{12} We agree with this reasoning of the Ninth and Tenth Circuits. Because a license plate is located in plain view, a license plate check is not intrusive, and because the United States Supreme Court has held that VIN searches are not Fourth Amendment violations because of the lack of a reasonable expectation of privacy, see Class, 475 U.S. at 118-19, 106 S.Ct. 960 (holding that \u201cas part of an undoubtedly justified traffic stop,\u201d officers checking for the VIN in order to run a search is \u201csufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN\u201d), license plate checks are not searches under the Fourth Amendment. Therefore, they do not require reasonable suspicion of criminal activity. As such, Investigator Hubbard did not need reasonable suspicion to conduct a license plate check on Defendant\u2019s car, and the ensuing investigation, including the VIN check and questioning of Defendant to explain the discrepancy discovered from the license plate check, was permissible. We additionally note that although \u201cpolice may not randomly stop a vehicle solely to check a driver\u2019s license or car registration because a seizure of this nature is arbitrary,\u201d Reynolds, 119 N.M. at 385, 890 P.2d at 1317 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)), there was no seizure of Defendant in this case because Investigator Hubbard conducted the NCIC check while Defendant was inside the building.\n{13} The State further argues that the motion to suppress cannot stand because it was not right for any reason since (1) Investigator Hubbard did not seize the gun when he moved it from Defendant\u2019s reach, (2) even if Investigator Hubbard did seize the gun, \u201cDefendant\u2019s arrest was valid because it was independent of the seizure and was sufficiently attenuated from the seizure,\u201d and (3) Investigator Hubbard was permitted to ask Defendant if he was a felon. Additionally, the State argues that \u201cthe inventory search of Defendant\u2019s car would have occurred regardless of the arrest\u201d and that, therefore, \u201cthe evidence was admissible under the inevitable discovery doctrine.\u201d Because we agree with the State that Investigator Hubbard did not need reasonable suspicion to check Defendant\u2019s license plate and because the district court suppressed the evidence on grounds not argued by the parties, we do not reach the State\u2019s remaining arguments.\nCONCLUSION\n{14} We reverse the district court order granting Defendant\u2019s motion to suppress and remand for the district court to answer the issues raised below regarding whether evidence obtained after any of the following actions should be suppressed: (1) the alleged seizure of the gun, (2) the question posed to Defendant regarding his felony status, or (3) the inventory search after Defendant\u2019s arrest.\n{15} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge and RODERICK T. KENNEDY, Judge.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellant.", "Hugh W. Dangler, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2010-NMCA-006\n224 P.3d 668\nSTATE of New Mexico, Plaintiff-Appellant, v. Daniel B. HERRERA, DefendantAppellee.\nNo. 27,733.\nCourt of Appeals of New Mexico.\nOct. 30, 2009.\nCertiorari Denied, Dec. 11, 2009, No. 32,057.\nGary K. King, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellant.\nHugh W. Dangler, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellee." }, "file_name": "0441-01", "first_page_order": 477, "last_page_order": 480 }