{ "id": 1555195, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Abel GONZALES, Defendant-Appellant", "name_abbreviation": "State v. Gonzales", "decision_date": "1981-11-12", "docket_number": "No. 5238", "first_page": "182", "last_page": "188", "citations": [ { "type": "official", "cite": "97 N.M. 182" }, { "type": "parallel", "cite": "637 P.2d 1237" } ], "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": "645 F.2d 318", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1213221 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/645/0318-01" ] }, { "cite": "19 U.S.C.S. \u00a7 482", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1977, "opinion_index": 0 }, { "cite": "488 F.2d 1169", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 213471 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/488/1169-01" ] }, { "cite": "415 U.S. 164", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172884 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0164-01" ] }, { "cite": "404 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174724 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/404/0477-01" ] }, { "cite": "632 F.2d 737", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1417364 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/632/0737-01" ] }, { "cite": "638 F.2d 1171", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1357427 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/638/1171-01" ] }, { "cite": "647 F.2d 990", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1224343 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/647/0990-01" ] }, { "cite": "638 F.2d 765", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1357564 ], "weight": 7, "year": 1981, "opinion_index": 0, "case_paths": [ "/f2d/638/0765-01" ] }, { "cite": "432 F.2d 1320", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2224206 ], "year": 1970, "pin_cites": [ { "page": "1322-23" } ], "opinion_index": 0, "case_paths": [ "/f2d/432/1320-01" ] }, { "cite": "394 F.2d 75", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2153829 ], "year": 1968, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/f2d/394/0075-01" ] }, { "cite": "592 F.2d 735", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 53112 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/592/0735-01" ] }, { "cite": "588 F.2d 147", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 832116 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/588/0147-01" ] }, { "cite": "431 U.S. 606", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1727 ], "weight": 7, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0606-01" ] }, { "cite": "94 N.M. 243", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0243-01" ] }, { "cite": "603 F.2d 122", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1440725 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/603/0122-01" ] }, { "cite": "620 F.2d 230", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1372667 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/f2d/620/0230-01" ] }, { "cite": "428 U.S. 543", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178901 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0543-01" ] }, { "cite": "422 U.S. 891", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9454 ], "weight": 4, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0891-01" ] }, { "cite": "422 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0873-01" ] }, { "cite": "413 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11340163 ], "weight": 7, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/413/0266-01" ] }, { "cite": "94 N.M. 687", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573060 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/94/0687-01" ] }, { "cite": "442 U.S. 753", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532109 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/442/0753-01" ] }, { "cite": "95 N.M. 86", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575496 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0086-01" ] }, { "cite": "92 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557080 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0001-01" ] }, { "cite": "93 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568662 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/93/0095-01" ] } ], "analysis": { "cardinality": 963, "char_count": 22002, "ocr_confidence": 0.833, "pagerank": { "raw": 5.573615982097121e-08, "percentile": 0.3501495647043515 }, "sha256": "67e7bbadd7223ab187fdd574d2cfccc9317d93a3dc627292cc83d3801b009deb", "simhash": "1:a6db9116b9044c40", "word_count": 3649 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, C. J., and HENDLEY, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Abel GONZALES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nCharged with possession of marijuana with intent to distribute, defendant moved to suppress the marijuana. The trial court denied the motion, ruling that the stop of defendant, the search of his automobile and the search of his suitcase were conducted in conformity with federal law and not in violation of the Fourth Amendment prohibition of an unreasonable search and seizure. We granted an interlocutory appeal. We (1) set forth the facts introduced at the evidentiary hearing on the motion; (2) point out that the marijuana was not seized in conformity with general Fourth Amendment law; and (3) discuss the propriety of the seizure under the border search exception to the Fourth Amendment.\nFacts\nWe must view the evidence in the light most favorable to the prosecution. State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979); State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). See State v. Padilla, 95 N.M. 86, 619 P.2d 190 (Ct.App.1980). The evidence most favorable to the State follows.\nMount Cristo Rey is on the border of the United States and Mexico; it overlooks the community of Anapra, New Mexico. The border is less than two miles from McNutt Road in Anapra. The area between the border and Anapra is basically uninhabited. Also, \u201c[t]here\u2019s no wild animals .... It\u2019s almost denuded area of any vegetation that would harbor any animals.\u201d Within this area, the Border Patrol had placed electronic sensors to detect \u201cintrusions\u201d by people using pathways to enter the United States from Mexico.\nOn the evening of January 16, 1981, agents of the Border Patrol were in Anapra looking out for intrusions because interception of illegal aliens in that area is a daily occurrence. Around 9:30 or 9:40 p. m., an agent was notified by the dispatcher that one of the sensors had tripped. This sensor was on a \u201cwell-known pathway for persons entering from Mexico\u201d and between one-half and three-quarters of a mile from McNutt Road.\nBecause of the nature of the terrain, a person using the pathway could \u201ccome out\u201d at several places; it depended on the gully that was used. \u201c[A] person could sit on one trail and not see these people, depending on which route they\u2019ve taken.\u201d After being notified that the sensor had tripped, two agents stationed themselves on the trail that a person \u201ccould have come down.\u201d Two other agents, Berry and Garcia, stationed themselves to look along McNutt Road \u201cto see if anybody coming out of this area would come across this road and we would be able to spotlight them by the background lights that were present in the area.\u201d Berry had been a border patrol agent for six years and had worked the Mount Cristo Rey area two-to-three years. Garcia had been with the Border Patrol for three and one-half years, and had about one and one-half years\u2019 experience in the area.\nThe weather was cold. \u201cI [Berry] would estimate the temperature was around 40 degrees and there was an intermittent rain falling.\u201d\nBerry testified: \u201cThrough those gullies and canyons [between Anapra and the border], there\u2019s not any traffic at all in that time of night usually; especially with the weather conditions. The local people will get up in there when it\u2019s warm or in the daytime, but in my experience at night, under those conditions, I\u2019ve never found anybody up there.\u201d\nBerry testified that, within the community of Anapra, there were a few cars, but the traffic was not the \u201cusually heavy traffic like it would normally be.\u201d Berry did not notice any of the local people on foot. \u201cThere may have been one or two, but at that hour and with that weather, it\u2019s not usual for people to be out walking around.\u201d\nAfter waiting between fifteen-to-twenty minutes, Berry saw an individual cross the road in an unhurried fashion; Berry thought this person \u201ccould be a local.\u201d A few minutes later he saw two other people cross the road. One of these two had the large silhouette of a backpack, \u201cthe top of the backpack stuck over his head ... . \u201d \u201cIt was a very large pack. It wasn\u2019t the type that you would normally associate with somebody going hiking or camping.\u201d These two people disappeared into the dark area in the rear of the Morocco Club. A person walking from the tripped sensor to the road would have reached the road about the time these people crossed the road.\nBerry and Garcia drove to where the people crossed the road. Garcia got out of the patrol vehicle to search for the people. Berry left and contacted the agents stationed on the trail; Berry returned in three-to-five minutes and picked up Garcia.\nGarcia testified that he got out of the patrol vehicle \u201cright behind the Morocco Club,\u201d went past some houses \u201cto an open little field\u201d to look for tracks. He observed tracks of at least two people and followed the tracks \u201chalf way\u201d in the open area. On the basis of his tracking experience he considered the tracks to be fresh. At that point he observed an individual under a pole with a light; the individual was stuffing something inside the trunk of a vehicle. The tracks Garcia were following \u201cled in that same direction where that car was at.\u201d The vehicle, in the nature of a Camaro or Firebird, was a dark color; other than this vehicle \u201cthere really weren\u2019t any cars around that area.\u201d Garcia\u2019s conclusion that something was being stuffed inside the trunk of the vehicle was on the basis \u201cthat the trunk was open, closed, reopened and somebody bent inside of the trunk and then closed the trunk[.]\u201d With these observations, Garcia ceased tracking, returned to, and was picked up by, Berry and reported his observations to Berry.\nBerry decided to investigate the car observed by Garcia. \u201cWe went to turn in there [in the rear of the Morocco Club] when we encountered this car coming out. My partner said, \u2018That\u2019s the car that I saw the man putting something into.\u2019 \u201d This car pulled into the parking lot of the Morocco Club and parked. \u201cThe driver got out and walked into the Morocco Club looking back over his shoulder at us all the time.\u201d Garcia described the driver as walking \u201churriedly and looking back at us; very nervous to me, it seemed like.\u201d The agents made a quick search of the area where Garcia had observed activity in connection with the trunk of a car. This area was. 25-to-50 yards from the Morocco Club. \u201cWe couldn\u2019t find anything.\u201d Asked if he had any serious doubt that the car that parked in the parking lot of the Morocco Club was the same car previously observed, Garcia testified: \u201cI wouldn\u2019t swear, but I\u2019m sure that that was the vehicle.\u201d\nReturning to the Morocco Club parking lot, the agents observed some wet ponchos on the back seat of the parked car. Garcia testified the ponchos \u201cwere soaking wet. The window was rolled down and we were looking around in the car.\u201d According to Garcia, there had been a light drizzle for two hours prior to this observation. A check was run on the car, there was a call for assistance from \u201cCustoms,\u201d and agents were sent into the club to get the defendant, who was the driver of the car.\nDefendant was placed in the \u201ccontainment\u201d area of the Border Patrol vehicle, was read his \u201cMiranda\" rights, was told the agents were investigating the possibility of illegal aliens, and was asked if he would open the trunk of the car. Defendant had given the agent some keys, none of which would open the car trunk. Defendant said he did not have a key to the trunk. An agent heard something metallic drop to the floor of the containment area; it was the key to the trunk. At about this time the \u201cCustoms Patrol Agent\u201d arrived; this agent was informed of the Border Patrol agents\u2019 activities and observations.\nDefendant opened the trunk after being advised that the Customs agent, was going to open the trunk and do a \u201ccustoms border search\u201d. In the trunk was a \u201clarge\u201d suitcase, probably one foot deep and four-by-four feet in length and width. The suitcase was tied to a backpack frame. The suitcase \u201chad water all over it. It had been raining. There was mist on the suitcase itself and it looked like quite damp.\u201d The Customs agent opened the suitcase; it contained marijuana wrapped in newspaper and cellophane. This marijuana is the basis of the criminal charge and is the marijuana that defendant sought to suppress.\nGeneral Fourth Amendment Law\nThe parties argue the propriety of each step of the proceedings under Fourth Amendment decisions. The propriety of these steps need not be discussed. Whether or not the initial stop, the detention of defendant, the detention of defendant\u2019s automobile, the entry into the trunk of the automobile, and the seizure of the suitcase were valid makes no difference. The opening of the suitcase was invalid under general Fourth Amendment law. No evidence indicates that the suitcase was opened with defendant\u2019s consent. No warrant authorized the opening of the suitcase. If general Fourth Amendment law applies, the evidence should have been suppressed under Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). See State v. White, 94 N.M. 687, 615 P.2d 1004 (Ct.App.1980).\nAlthough the State\u2019s appellate theories are ambiguous, in the trial court, the State contended that the facts established a valid border search. Defendant contends that general Fourth Amendment law applies to border searches. The cases relied on by defendant do not support this contention. Those cases are: Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Rengifo-Castro, 620 F.2d 230 (10th Cir. 1980); United States v. Gooch, 603 F.2d 122 (10th Cir. 1979); State v. White, supra; State v. Franco, 94 N.M. 243, 608 P.2d 1125 (Ct.App.1980). In each of these cases there was some factual relationship to the border; each of these cases applied general Fourth Amendment law; however, none of these cases applied the border search exception to the Fourth Amendment.\nUnited States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977), discussed the border search exception:\nBorder searches, then, from before the adoption of the Fourth Amendment, have been considered to be \u201creasonable\u201d by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless \u201creasonable\u201d has a history as old as the Fourth Amendment itself. We reaffirm it now.\n* * * * * *\n[T]he \u201cborder search\u201d exception is not based on the doctrine of \u201cexigent circumstances\u201d at all. It is a longstanding, historically recognized exception to the Fourth Amendent\u2019s [sic] general principle that a warrant be obtained ....\nWhether the marijuana should have been suppressed depends on whether its seizure occurred in accordance with the border search exception.\nBorder Search Exception\nUnited States v. Ramsey, supra, points out that a traveler may be stopped in crossing an international boundary and be required to identify himself and his belongings; that a traveler\u2019s right to be let alone does not prevent the search of his luggage at the border and the seizure of illegal materials discovered during such a search; that, historically, such broad power has been necessary to prevent smuggling.\nSuch a search may be done at the border; what, however, is the meaning of \u201cborder\u201d? United States Supreme Court decisions are to the effect that \u201cborder\u201d means the actual border, and functional equivalents of the border. Almeida-Sanchez, supra; BrignoniPonce, supra; Ortiz, supra.\nThe search in this case did not occur at the actual border. Did it occur at a functional equivalent? Almeida-Sanchez, supra explained \u201cfunctional equivalent\u201d:\n[S]earches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.\nThe facts in this case do not show a \u201cfunctional equivalent\u201d search as that term is used in Almeida-Sanchez, supra.\nAnother category appearing in the decisions is the \u201cextended border\u201d search. The federal decisions have recognized this category. We are not concerned with whether \u201cextended border\u201d comes under \u201cactual border\u201d or \u201cfunctional equivalent\u201d of the border. We agree with footnote 11 in United States v. Johnson, 588 F.2d 147 (5th Cir. 1979), which states:\nThis is a semantic difference only. Properly conceived, an extended border search is the functional equivalent of a search at the border since the object under surveillance \u201cbrings the border with it\u201d to the point of search. See United States v. Brennan, 538 F.2d [711] at 715.\nAlthough not expressly recognized in that decision, Almeida-Sanchez, supra, indirectly referred to this category in stating: \u201c[T]here was no ... assurance that the individual searched was within the proper scope of official scrutiny \u2014 that is, there was no reason whatever to believe that he or his automobile had even crossed the border\nOn what basis is the \u201cextended border\u201d concept to be applied? Our discussion of this question refers only to the later decisions in particular federal circuits; we do not attempt to trace the evolution of the rule stated in these later decisions.\nThe Fourth Circuit, in United States v. Bilir, 592 F.2d 735 (4th Cir. 1979), states:\nThe test of validity [of an extended border search] is one of reasonableness under the circumstances. For this, no rigid formula can be prescribed. Time and distanee factors may be of importance, but are not alone decisive. Ultimately the question is simply whether under all the circumstances\u2014time and distance factors included\u2014the customs officials had a reasonable basis for the suspicion leading to the search away from the actual border. See United States v. McGlone, 394 F.2d 75, 78 (4th Cir. 1968). Their suspicions must be reasonable not only with respect to the nature of the material seized, but to the fact that it has indeed illegally crossed a border within a reasonably recent time. See United States v. Weil, 432 F.2d 1320, 1322-23 (9th Cir. 1970).\nThe Fifth Circuit, in United States v. Richards, 638 F.2d 765 (5th Cir. 1981), states:\n(a) It must be established by a preponderance of the evidence that a border crossing has occurred.\n(b) The government must show \u201cwith reasonable certainty, that conditions remained unchanged from the time of the border crossing until the subsequent warrantless search.... In other words, it must be established with reasonable certainty that, when searched, the person or thing was in the same condition as when the border was crossed.\u201d\n(c) \u201c[B]efore conducting a warrantless extended border search, the government agents must possess a reasonable suspicion, supported by articulable facts, that the person or thing searched is involved in illegal activity, such as smuggling contraband.\u201d\nThe Ninth Circuit, in United States v. Jacobson, 647 F.2d 990 (9th Cir. 1981), states there was a \u201clegal and reasonable\u201d extended border search\nbecause the totality of circumstances surrounding the search, including the time elapsed after the initial border crossing and the distance from the border are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of the search had been unlawfully imported and was in the vehicle at the time of or immediately subsequent to the unlawful entry.\nUnited States v. Moore, 638 F.2d 1171 (9th Cir. 1980), refers to a reasonable certainty of a border crossing and any contraband found was aboard when the border was crossed. United States v. Driscoll, 632 F.2d 737 (9th Cir. 1980), states that \u201creasonable certainty\u201d is a higher standard than probable cause, but less than proof beyond a reasonable doubt.\nThe above circuit decisions differ in stating the basis for applying the extended border category. However, two concepts are common to these decisions. The first concept is proof that a border crossing has occurred; because an \u201cextended\u201d border is involved, this first concept has two parts. Those parts are: a border crossing and an absence of change after crossing the border. The second concept is the authority of an agent to search once the facts establish a border crossing.\nSearches made at the border \u201care reasonable simply by virtue of the fact that they occur at the border .... \u201d United States v. Ramsey, supra. For the extended border category to be applicable there must have been a border crossing. A border crossing is a critical fact. United States v. Ramsey, supra.\nWhat proof is required to establish a border crossing? The Fourth Circuit (Bilir, supra) suggests that an agent\u2019s reasonable suspicion of a border crossing is sufficient. The Fifth Circuit (Richards, supra) required proof by a preponderance of the evidence that a crossing occurred. The Ninth Circuit (Driscoll, supra) required the agents to have a firm belief that a crossing occurred, and in Jacobson, supra, required the crossing be established with reasonable certainty.\nLego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), held that questions of admissibility of evidence were to be determined by a preponderance of the evidence: \u201c[T]he prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.\u201d United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in footnote 14, states: \u201c[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.\u201d The Ninth Circuit, in United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973), stated: \u201cThe government has the burden of showing by a preponderance of the evidence that one or more of these exceptions [to the Fourth Amendment] exists.\u201d\nA border search is an exception to the Fourth Amendment; a critical fact of that exception is that a border crossing occurred. That fact must be proved by a preponderance of the evidence. An agent\u2019s \u201csuspicion\u201d or \u201cfirm belief\u201d may be an evidentiary matter, but the view of an agent, in itself, is not sufficient to justify application of the extended border category; there must be proof, by a preponderance of the evidence, that a border crossing occurred. United States v. Richards, supra, is the correct statement of this requirement.\nWhere the Fourth Amendment exception is based on the extended, rather than the actual border, an additional element is required. The Fifth Circuit (Richards, supra) states this additional requirement as a showing that conditions remained unchanged from the time of the border crossing until the subsequent warrantless search, and explains the proof is usually by evidence of constant surveillance or evidence that contraband was not likely to have been introduced during any breaks in the surveillance. This proof, of no change from the time of the border crossing, is required to bring the non-border search to the border. See United States v. Johnson, supra, footnote 11. United States v. Richards, supra, requires the showing that contraband did cross the border be established to a reasonable certainty. Reasonable certainty is required \u201c[b]ecause the primary justification for the relaxation of fourth amendment standards in these situations is the crossing of a border ... . \u201d We do not understand United States v. Jacobson, supra, to state a different standard.\nOnce a border crossing is established by a preponderance of the evidence and unchanged conditions are established to a reasonable certainty after the crossing, on what authority may agents conduct a search? Customs officials are authorized by 19 U.S.C.S. \u00a7 482 (1977) to conduct a border search if they \u201chave a reasonable cause to suspect there is merchandise which was imported contrary to law ... . \u201d United States v. Ramsey, supra, states: \u201cThe \u2018reasonable cause to suspect\u2019 test adopted by the statute is, we think, a practical test which imposes a less stringent requirement than that of \u2018probable cause\u2019 imposed by the Fourth Amendment as a requirement for the issuance.of warrants.\u201d The Fourth Circuit (Bilir, supra) and Fifth Circuit (Richards, supra) apply this standard. To the extent the Ninth Circuit (Jacobson and Moore, supra) fails to apply this standard, that Circuit\u2019s decisions are not to be followed.\nSummarizing the above discussion, the legal standard to be applied in determining the propriety of an extended border search is stated in the Fifth Circuit decision of United States v. Richards, supra.\nApplying this legal standard to the facts, the search and seizure was valid \u2014 the trial court could properly rule that a border crossing was established by a preponderance of the evidence, the absence of change was established to a reasonable certainty, and Agents Berry and Garcia had a reasonable suspicion that the automobile trunk and suitcase were involved in illegal activity. See United States v. Ramos, 645 F.2d 318 (5th Cir. 1981); United States v. Driscoll, supra.\nThe order denying the motion to suppress is affirmed.\nIT IS SO ORDERED.\nWALTERS, C. J., and HENDLEY, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Albert H. Engel, Engel & Olszta, Las Cruces, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Carol J. Vigil, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "637 P.2d 1237\nSTATE of New Mexico, Plaintiff-Appellee, v. Abel GONZALES, Defendant-Appellant.\nNo. 5238.\nCourt of Appeals of New Mexico.\nNov. 12, 1981.\nWrit of Certiorari Denied Dec. 18, 1981.\nAlbert H. Engel, Engel & Olszta, Las Cruces, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Carol J. Vigil, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0182-01", "first_page_order": 212, "last_page_order": 218 }