                                                                     I attest to the accuracy and
                                                                      integrity of this document
                                                                        New Mexico Compilation
                                                                      Commission, Santa Fe, NM
                                                                     '00'04- 11:43:18 2018.03.27

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-017

Filing Date: February 22, 2018

Docket No. S-1-SC-35183

STATE OF NEW MEXICO,

        Plaintiff-Petitioner,

v.

EDWARD JAMES TAPIA, SR.,

        Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
William C. Birdsall, District Judge

Hector H. Balderas, Attorney General
Kenneth H. Stalter, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM

for Respondent

                                           OPINION

MAES, Justice.

{1}    In this case we address an issue of first impression: whether evidence of non-violent
crimes committed in the presence of a police officer after an unconstitutional traffic stop
must be suppressed under the Fourth Amendment of the United States Constitution (Fourth
Amendment) and Article II, Section 10 of the New Mexico Constitution (Article II, Section
10). Defendant Edward Tapia, Sr. entered a conditional plea of guilty to one count of
forgery, for signing his brother’s name to a traffic citation charging failure to wear a seat belt
in a motor vehicle, and reserved his right to appeal. See State v. Tapia, 2015-NMCA-055,

                                                1
¶¶ 1, 5, 348 P.3d 1050. He appealed to the Court of Appeals which reversed his conviction.
Id. ¶ 1. The State petitioned for a writ of certiorari, which we granted. See Rule 12-502
NMRA.

I.     Facts and Procedure

{2}      Because Defendant entered a conditional guilty plea, there was no trial. Therefore,
the facts are taken from the suppression hearing, the findings of fact and conclusions of law
entered by the district court, and the plea hearing. On August 8, 2012, Defendant and his
companions were traveling westbound on U.S. Highway 64 toward Farmington, in San Juan
County. Defendant was a passenger in the back seat of the car. New Mexico State Police
Officer Tayna Benally stopped the car because it was going forty miles per hour in a fifty-
five-mile-per-hour zone and because she was unable to read the license plate. After
contacting the driver, Benally noticed Defendant was not wearing a seat belt. When asked
about this, Defendant told Benally he was wearing a lap belt. Benally asked him to lift his
shirt so she could verify he was wearing a lap belt. Defendant complied and lifted his shirt,
and Benally observed he was not wearing a lap belt. At this point, Benally asked Defendant
for his driver’s license. Defendant said he didn’t have any identification. Benally then
asked Defendant to write down his name, date of birth, and social security number. He
wrote down “Robert Tapia DOB 03/22/1968” and said he did not know his social security
number.

{3}    Benally contacted San Juan County Dispatch and asked for a description of Robert
Tapia. The description given was inconsistent with Benally’s observations of Defendant’s
appearance. Despite the inconsistencies, Benally issued a “no seat belt” citation for Robert
Tapia, and Defendant signed the citation as Robert Tapia.

{4}     While Benally was dealing with Defendant, another officer at the scene spoke with
a second male passenger. The second passenger informed the second officer that
Defendant’s real name was Edward Tapia. The second officer had Defendant exit the car
and confirm his name. Defendant said his name was Robert Tapia but then restated his birth
date as March 22, 1974. The second officer informed Benally of what the second passenger
had told him, and Benally then arrested Defendant for concealing identity. Later, at the jail,
Defendant’s real identity was confirmed as Edward Tapia. His birth date and social security
number were also confirmed, and Benally discovered there was an outstanding warrant for
Defendant’s arrest for failing to appear at the San Juan Magistrate Court in Aztec, New
Mexico.

{5}     Defendant was charged with forgery, contrary to NMSA 1978, Section 30-16-10(A)
(2006); concealing identity, contrary to NMSA 1978, Section 30-22-3 (1963); and seat belt
violation, contrary to NMSA 1978, Section 66-7-372(A) (2001).

{6}    Defendant filed in the Eleventh Judicial District Court a motion to suppress all
evidence obtained by Benally, challenging the constitutionality of the traffic stop. The

                                              2
district court heard the motion to suppress, held that the traffic stop was unlawful because
the driver had made no moving violations and the license plate was concededly visible to the
officer, and suppressed the evidence of the seat belt violation. However, the evidence of
concealing identity and forgery was not suppressed. The district court found that those
crimes “had not yet been committed at the time of the stop,” that “[e]vidence of those crimes
did not exist at the time of the stop,” and concluded that “an unlawful stop does not justify
the commission of new crimes.”

{7}     Defendant entered a conditional guilty plea to the forgery charge, admitted to two
prior offenses for habitual sentencing purposes, and reserved the right to appeal the
suppression issue as to both forgery and concealing identity. The district court accepted the
plea and sentenced Defendant to eighteen months in the Department of Corrections, with all
but forty-five days of the sentence suspended in favor of unsupervised probation. Pursuant
to the plea, the Defendant appealed his conviction to the Court of Appeals.

{8}     The Court of Appeals reversed the ruling of the district court and held that “the
commission of a non-violent, identity-related offense in response to unconstitutional police
conduct does not automatically purge the taint of the unlawful police conduct under federal
law.” Tapia, 2015-NMCA-055, ¶ 17. The Court of Appeals then engaged in an attenuation
analysis and held that “the discovery of the evidence of concealing identity and forgery was
not sufficiently removed from the taint of the illegal stop to justify admitting the evidence
notwithstanding the exclusionary rule.” Id. ¶ 19. Concluding that the crimes of concealing
identity and forgery should have been suppressed under the Fourth Amendment, the Court
of Appeals did not reach defendant’s state constitutional claim. Id. ¶ 20.

{9}    The State petitioned for certiorari to review the issue of whether a new crime
exception to the exclusionary rule, which this Court has previously recognized for violent
crimes, also applies to non-violent, identity-related crimes. See N.M. Const. art. VI, § 3;
NMSA 1978, § 34-5-14 (1972); Rule 12-502. We granted certiorari under Rule 12-
502(C)(2)(d)(iii) as this case presents a significant constitutional question.

II.    Standard of Review

{10} “In reviewing a trial court’s denial of a motion to suppress, we observe the
distinction between factual determinations which are subject to a substantial evidence
standard of review and application of law to the facts[,] which is subject to de novo review.”
State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration in original)
(internal quotation marks and citation omitted). The district court made findings of facts and
conclusions of law. The parties do not dispute the pertinent facts, only the application of law
to those facts; therefore, our review is de novo. Id. ¶ 19; see State v. Pierce,
2003-NMCA-117, ¶¶ 1, 10, 134 N.M. 388, 77 P.3d 292 (stating that when the facts are not
in dispute on a motion to suppress, we determine whether the law was correctly applied to
those facts).


                                              3
III.    Discussion

{11} The State argues that the new crime exception to the exclusionary rule does not make
a categorical distinction between violent and non-violent crimes and that the potential
deterrence of unlawful searches and seizure by the State is outweighed by the cost of
excluding evidence of identity crimes. Defendant asks this Court to affirm the Court of
Appeals ruling that the crimes of concealing identity and forgery should have been
suppressed under the Fourth Amendment and asks alternatively for suppression under Article
II, Section 10.

{12} Under the interstitial approach adopted in State v. Gomez, 1997-NMSC-006, ¶ 21,
122 N.M. 777, 932 P.2d 1, we ask “first whether the right being asserted is protected under
the federal constitution. If it is, then the state constitutional claim is not reached.” Id. ¶ 19.
If it is not, we examine the state constitutional claim. Id. However, “we may diverge from
federal precedent where the federal analysis is flawed, where there are structural differences
between the state and federal governments, or because of distinctive New Mexico
characteristics.” State v. Garcia, 2009-NMSC-046, ¶ 27, 147 N.M. 134, 217 P.3d 1032
(citing Gomez, 1997-NMSC-006, ¶ 19).

A.      Attenuation Doctrine and the New Crime Exception

{13} The Fourth Amendment prohibits unreasonable searches and seizures by police.
Herring v. United States, 555 U.S. 135, 139 (2009). “As a general rule, the federal
constitution . . . requires suppression of evidence obtained in a manner that runs afoul of the
Fourth Amendment.” State v. Santiago, 2010-NMSC-018, ¶ 10, 148 N.M. 144, 231 P.3d
600. The requirement that evidence obtained as a result of an unconstitutional search or
seizure be suppressed is known as the “exclusionary rule.” State v. Ingram,
1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151. The purpose of the exclusionary rule
under the Fourth Amendment has been articulated as the deterrence of unlawful government
behavior. See Elkins v. United States, 364 U.S. 206, 217 (1960) (stating purpose of the
exclusionary rule is “to deter—to compel respect for the constitutional guaranty . . . by
removing the incentive to disregard it”). “[T]he exclusionary rule encompasses both the
‘primary evidence obtained as a direct result of an illegal search or seizure’ and . . .
‘evidence later discovered and found to be derivative of an illegality,’ the so-called ‘fruit of
the poisonous tree.’” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Segura v.
United States, 468 U.S. 796, 804 (1984)). The rule is not absolute, but “applicable only . . .
where its deterrence benefits outweigh its substantial social costs.” Strieff, 136 S. Ct. at
2061 (omission in original) (internal quotation marks and citation omitted).

{14} The United States Supreme Court has thus recognized three exceptions to the
exclusionary rule involving the causal relationship between the unconstitutional act and the
discovery of evidence.

        First, the independent source doctrine allows trial courts to admit evidence

                                                4
       obtained in an unlawful search if officers independently acquired it from a
       separate, independent source. Second, the inevitable discovery doctrine
       allows for the admission of evidence that would have been discovered even
       without the unconstitutional source. Third . . . is the attenuation doctrine:
       Evidence is admissible when the connection between unconstitutional police
       conduct and the evidence is remote or has been interrupted by some
       intervening circumstance, so that the interest protected by the constitutional
       guarantee that has been violated would not be served by suppression of the
       evidence obtained.

Id. at 2061 (omission in original) (internal quotation marks and citations omitted).

{15} Under the attenuation doctrine, the government can admit evidence when “the
relationship between the unlawful search or seizure and the challenged evidence becomes
sufficiently weak to dissipate any taint resulting from the original illegality.” United States
v. Smith, 155 F.3d 1051, 1060 (9th Cir. 1998). The United States Supreme Court in Brown
v. Illinois identified three factors by which a court may determine if seized evidence has
been purged of the taint of the original illegality: (1) the lapsed time between the illegality
and the acquisition of the evidence, (2) the presence of intervening circumstances, and (3)
the purpose and flagrancy of the official misconduct. See 422 U.S. 590, 603-04 (1975).

{16} “It was [the attenuation doctrine] that spawned the new crime exception to the
exclusionary rule.” Christopher J. Dunne, State v. Brocuglio: The Supreme Court of
Connecticut’s Modification of the New Crime Exception to the Exclusionary Rule, 23 QLR
853, 860 (2004). The new crime exception was first articulated by the Eleventh Circuit
Court of Appeals in United States v. Bailey, 691 F.2d 1009 (11th Cir. 1983). See Dunne,
supra, at 861. In Bailey, the Court of Appeals held that “notwithstanding a strong causal
connection in fact between lawless police conduct and a defendant’s response, if the
defendant’s response is itself a new, distinct crime, then the police constitutionally may
arrest the defendant for that crime.” 691 F.2d at 1016-17.

{17} Whether the new crime exception is part of the attenuation doctrine or a separate
exception to the exclusionary rule is unclear. 1 McCormick on Evidence § 180, at 972-73
(Kenneth S. Broun ed., 7th ed. 2013) (“Some courts appear to regard the doctrine as simply
a specialized application of the attenuation of taint doctrine, under which intervening
voluntary criminal conduct usually and perhaps inevitably attenuates the taint of illegality
preceding that conduct. . . . Other courts appear to regard the doctrine as a separate exception
to exclusionary requirements, based on considerations distinguishable from those supporting
the attenuation of taint doctrine.” (footnotes omitted)).1



       1
        The State asserts that “[t]here is no categorical or bright-line [new crime]
exception.”

                                               5
{18} The Tenth Circuit Court of Appeals adopted the new crime exception in United
States v. Waupekenay, 973 F.2d 1533 (10th Cir. 1992), a case that arose out of New Mexico.
In Waupekenay, the defendant pointed a rifle at tribal officers after they unlawfully entered
his home. Id. at 1535. The Court concluded that despite the unlawful entry, the defendant
no longer had a reasonable expectation of privacy when he assaulted the officers and that the
evidence against him would not be suppressed under the Fourth Amendment. Id. at 1536-38.
The opinion notes that courts have applied different rationales in similar cases but concludes
“whatever rationale is used, the result is the same: Evidence of a separate, independent crime
initiated against police officers in their presence after an illegal entry or arrest will not be
suppressed under the Fourth Amendment.” Id. at 1538.

{19} Waupekenay involved a defendant reacting violently toward police officers, and
many states, including New Mexico, have adopted the new crime exception to the
exclusionary rule in such cases. Id. at 1537 (listing numerous cases); see State v. Travison
B., 2006-NMCA-146, ¶ 11, 140 N.M. 783, 149 P.3d 99. In Travison B., officers improperly
entered the scene of a domestic disturbance and encountered an angry child, who then
battered the officers. 2006-NMCA-146, ¶ 2. The Court of Appeals essentially adopted the
new crime exception without explicitly stating so when it concluded that “[a]lthough
precipitated by the [unlawful] entry, [c]hild’s actions against the officers constituted new
criminal activity that is not subject to the exclusionary rule.” 2006-NMCA-146, ¶ 9.

{20} Cases where defendants committed an identity-related crime in the presence of police
after an unlawful search or seizure are much less common but do exist. Two federal
appellate courts have ruled that identity-related crimes committed in the presence of officers
after an illegal seizure were not protected under the Fourth Amendment. See United States
v. Pryor, 32 F.3d 1192, 1195-1196 (7th Cir. 1994) (involving a defendant’s
misrepresentation of identity to federal agents); United States v. Garcia-Jordan, 860 F.2d
159, 161 (5th Cir. 1988) (holding that a defendant’s false statement of citizenship was a new
and distinct crime committed in the border agent’s presence and not barred by the
exclusionary rule).

{21} Some state courts have also held that identity crimes committed after a Fourth
Amendment violation fall under the new crime exception to the exclusionary rule. See, e.g.,
People v. Diamond, 353 N.Y.S.2d 688, 690-91 (1974) (impersonating a transit authority
conductor was a new crime not tainted by illegal arrest); State v. Suppah, 369 P.3d 1108,
1112 (Or. 2016) (Suppah II) (concluding a defendant’s commission of new crime of
providing deputy with false name and address sufficiently attenuated taint of illegal stop);
State v. Earl, 2004 UT App 163, ¶¶ 23-24, 92 P.3d. 167 (holding that a defendant giving
officer a false name and birth date was an intervening act and not the product of the officer’s
illegal entry into the home in which defendant was staying); but see State v. Brocuglio, 779
A.2d 793, 801-802 (Conn. App. Ct. 2001) (holding that a defendant’s verbal utterances to
the officers requesting that they leave his property or he would let his dog loose did not
constitute a new, distinct crime).


                                               6
{22} Defendant asks us to limit the application of the attenuation for new crimes to only
those cases where an individual endangers the safety of police or the public. Defendant
points out that in New Mexico the early cases holding new crimes that were sufficiently
attenuated from the initial illegality involved assaults and threats against officers during
unlawful searches and seizures. See, e.g., State v. Chamberlain, 1989-NMCA-082, 109
N.M. 173, 783 P.2d 483; State v. Doe, 1978-NMSC-072, 92 N.M. 100, 583 P.2d 464. Based
on that history, Defendant suggests that the new crime attenuation analysis was “meant to
protect police officers and the public from violent conduct.” And Defendant points out that
the analysis has evolved into a “virtually automatic and deeply-ingrained exception to the
exclusionary rule” when the case involves violence, threats, or resistance to law enforcement
officers. See, e.g., United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir.1997) (holding that
firing of gun at officer after initial unlawful stop triggered exception to exclusionary rule);
People v. Villarreal, 604 N.E.2d 923, 928 (Ill. 1992) (declining to apply exclusionary rule
to suppress evidence of aggravated battery regardless of legality of officers’ entry into
home); Commonwealth v. Johnson, 245 S.W.3d 821, 824 (Ky. Ct. App. 2008) (finding
illegal entry into residence by police officer did not render evidence of subsequent assault
against officer inadmissible under exclusionary rule); State v. Herrera, 48 A.3d 1009, 1026
(N.J. 2012) (finding exclusionary rule does not apply to evidence of defendants’ attempt to
murder state trooper, regardless of the illegality of the initial stop).

{23} The State contends the Court of Appeals applied the correct analysis to the facts but
came to the wrong conclusion in reversing the district court. According to the State, the
Court of Appeals erred “in weighing the potential for deterrence too greatly and discounting
the societal cost of excluding evidence of identity crimes.” The State submits that under
federal law there should always be a balancing of the costs and benefits of exclusion and that
the Court of Appeals improperly discounted the costs of excluding evidence of non-violent,
identity-related crimes. The State also suggests that non-violent crimes can be as socially
harmful as violent crimes and that we should look to the penalty for an offense as it “‘reveals
the legislature’s judgment about the offense’s severity.’” (quoting Lewis v. United States,
518 U.S. 322, 326 (1996) (discussing the right to jury trial)).

{24} By contrast, Defendant directs this Court to three cases from other jurisdictions that
have declined to extend the new crime exception to non-violent acts by a defendant: People
v. Brown, 802 N.E.2d 356 (Ill. App. Ct. 2003), State v. Badessa, 885 A.2d 430 (N.J. 2005),
and State v. Suppah, 334 P.3d 463 (Or. Ct. App. 2014) (Suppah I). We find these cases
distinguishable for the reasons below.

{25} With regard to Suppah, the Oregon Supreme Court has reversed the Oregon Court
of Appeals in Suppah I since Defendant filed his brief. See Suppah II, 369 P.3d at 1108.
The facts in Suppah are similar to this case. The defendant in Suppah was driving his
girlfriend’s car and was stopped for a traffic violation that was later determined to be
improper. Id. at 1110-11. The defendant knew his driver’s license was suspended and did
not want his girlfriend’s car to get towed, so he gave the deputy his friend’s name and birth
date and said he did not have a physical or mailing address. Id. at 1110. The deputy

                                              7
checked the information with a dispatcher who told the deputy that the false name came back
as having a suspended license. Id. The deputy cited the defendant for driving on a
suspended license but did not cite the defendant for the traffic violation that led him to stop
the defendant in the first place. Id.

{26} A month after the traffic stop, the defendant called the police and told them he had
lied about his name. Id. As a result, the state dismissed the charges against the defendant’s
friend and charged the defendant with driving while suspended and giving false information
to a police officer. Id. Before trial, the defendant moved to suppress the false statements he
made to police when he was stopped and the statements he made a month afterward. Id. at
1110-11. The trial court denied the motion to suppress, concluding that the defendant’s
decision to give the deputy a false name and his decision to come forward with truthful
information a month later were not the product of the unlawful stop. Id. After a bench trial,
the court found the defendant guilty of giving false information to a police officer but not
guilty of driving while suspended. Id.

{27} On initial appeal, the Oregon Court of Appeals agreed with the defendant that the
evidence should have been suppressed and reversed the trial court’s judgment. Suppah I,
334 P.3d at 476. The Oregon Supreme Court reversed the Court of Appeals and affirmed
the trial court’s denial of the motion to suppress. Suppah II, 369 P.3d at 1117, concluding
that “in giving the deputy a false name and address . . . , defendant knowingly chose to do
something other than what the deputy had asked. . . . The reason for defendant’s
misrepresentation was unconnected, other than in a ‘but-for’ sense, from the unlawful stop
that preceded it.” Id. at 1116. The Oregon Supreme Court held “the stop had no appreciable
effect on the defendant’s decision to give the deputy a false name and date of birth,” and it
was the defendant’s independent, unprompted decision that “attenuated the taint of the
unlawful stop.” Id. at 1117.

{28} Second, Defendant relies on the holding in Badessa where the New Jersey Supreme
Court found that evidence gathered by the police after an unconstitutional traffic stop should
have been excluded in a prosecution for refusal to submit to a breathalyzer test. See 885
A.2d 430. In Badessa, the defendant was stopped by police after he turned onto a side street
in an apparent attempt to evade a DWI checkpoint. Id. at 433. Police observed signs of
intoxication coming from the defendant and had him perform field sobriety tests. Id. After
completing the tests, the officer arrested the defendant for driving while under the influence.
Id. Later at the police station, the defendant refused to submit to a breathalyzer test, so he
was charged with DWI and refusal to submit to a breathalyzer test which is a distinct crime
under New Jersey law. Id. The defendant challenged the legality of the stop. The trial court
found that the officer did not have probable cause to stop the defendant for DWI but did have
probable cause to request the breathalyzer test and acquitted the defendant on the DWI
charge but convicted him for refusing the breathalyzer test. Id. at 433. An appellate panel
concluded that although the officer lacked probable cause for the stop, there was probable
cause to support the request for the breathalyzer test. Id. at 434. The panel affirmed the
conviction for refusing to submit to the breathalyzer test, indicating that the refusal was

                                              8
sufficiently attenuated from the illegal stop to justify admission of the refusal evidence. Id.

{29}   The New Jersey Supreme Court disagreed, stating:

       Under the present circumstances, we cannot subscribe to the [s]tate’s position
       that a breathalyzer refusal and DWI are distinct for purposes of an
       exclusionary rule analysis. . . . The facts necessary to prosecute those two
       offenses are inextricably intertwined. After all, to secure a refusal
       conviction, the [s]tate must prove that the arresting officer had probable
       cause to believe that the person had been driving while under the influence
       and was placed under arrest for DWI.”

Id. at 436 (internal quotation marks and citations omitted).

{30} The New Jersey refusal statute’s dual requirements of probable cause and an arrest
for DWI were critical to the refusal analysis and thus the outcome of the case. In other
words, the New Jersey statute rendered the crime of refusing a breath test “inextricably
intertwined” with a DWI arrest and compelled a conclusion that refusal could not be
attenuated from an initial stop for DWI. Id.; see N.J. Stat. Ann. § 39:4-50.4a. The Badessa
case is thus distinguishable from the present case based on the specific crimes at issue and
the New Jersey refusal statute’s treatment of those crimes.

{31} No such specific statutory treatment applies to the crimes with which Defendant was
charged in this case. In New Mexico, concealing identity and forgery may be distinct crimes
from, and not conditioned upon, conduct giving rise to an initial stop. See State v. Ruffins,
1990-NMSC-035, ¶ 11, 109 N.M 668, 789 P.2d 616 (holding that forgery is completed when
a defendant possessing the requisite intent: (1) falsely makes or alters a writing which
purports to have legal efficacy, (2) physically delivers a forged writing, or (3) passes an
interest in a forged writing); § 30-22-3 (“Concealing identity consists of concealing one’s
true name or identity, or disguising oneself with intent to obstruct the due execution of the
law or with intent to intimidate, hinder or interrupt any public officer or any other person in
a legal performance of his duty or the exercise of his rights under the laws of the United
States or of this state.”).

{32} Finally, People v. Brown is no more persuasive. In People v. Brown, a police officer
unlawfully detained Brown simply because he was standing in front of a closed business.
802 N.E.2d at 357-58. The officer asked Brown for identification and Brown replied he had
none. Id. at 358. When the officer asked Brown for his name, address, and date of birth,
Brown provided a false name and date of birth. Id. The officer then radioed in this
information and discovered there was a warrant for Brown’s arrest. Id. Brown was
ultimately charged with obstructing justice, giving a false name, and falsely stating that he
was not carrying identification. Id. Brown moved to suppress his statements as they were
obtained as a result of his unlawful detention. Id. at 357-58. The trial court granted the
motion to suppress. Id. at 357. The state appealed, and the Appellate Court of Illinois

                                              9
affirmed the trial court, concluding that Brown was simply responding to the officer’s
questioning in conjunction with the illegal seizure and that “[r]efusing to provide
identification does not raise the same policy concerns as assaulting a law enforcement
officer.” Id. at 360.

{33} We decline to follow the reasoning in People v. Brown, 802 N.E.2d at 368. While
we acknowledge that like the defendant in People v. Brown, Defendant was unlawfully
seized when speaking with Benally, Defendant’s statements to Benally were not directly
connected to the seizure except in a “but-for” sense. Benally’s observation that Defendant
was not wearing a seat belt prompted her to ask him for identification. There is nothing that
indicates Benally obtained the evidence of Defendant’s false statements by exploiting the
unlawful seizure.

{34} The parties do not dispute the district court’s finding that Benally lacked reasonable
suspicion to initiate the traffic stop. The question before this Court is: do the Brown v.
Illinois factors suggest Defendant’s conduct was sufficiently attenuated between the initial
stop and Defendant’s false identification to render the exclusionary rule inapplicable to the
new evidence. This is an issue of first impression before the Court.

{35} We now apply the three general attenuation factors from Brown v. Illinois to assess
the attenuation in this case between the illegal police conduct and the discovery of evidence.
The first consideration requires that we review the lapsed time between the illegality and the
acquisition of the evidence, which in this case favors suppression, as it was only a short time
between the traffic stop and Defendant’s false identification. A little more time passed
before Defendant signed the traffic citation containing his brother’s identifiers, but it was
still only minutes.

{36} The second consideration requires that we look to any intervening circumstances that
serve to attenuate the illegal detention from the discovery of the evidence. An intervening
circumstance is one that breaks the relationship between the illegal conduct and the evidence
obtained. Various courts have concluded a defendant’s independent criminal act may itself
constitute an intervening circumstance sufficient to purge the taint of the initial illegality.
United States v. King, 724 F.2d 253, 256 (1st Cir. 1984) (concluding a “shooting was an
independent intervening act which purged the taint of the prior illegality”); State v. Nelson,
2015 OK CR 10, ¶ 23, 25, 356 P.3d 1113 (holding defendant’s behavior in walking away
from traffic stop for failing to signal left-hand turn was an intervening circumstance which
purged any taint originating from the illegal stop). To hold otherwise “would allow a
defendant carte blanche authority to go on whatever criminal rampage he desired and do so
with virtual legal impunity as long as such actions stemmed from the chain of causation
started by the police misconduct.” See State v. Miskimins, 435 N.W.2d 217, 221 (S.D.
1989). And in many scenarios, courts conclude that even independent, non-violent criminal
acts following an unlawful detention may constitute intervening circumstances, reasoning
that the conduct is neither natural nor predictable, and thus insufficiently connected to the
initial illegality to warrant application of the exclusionary rule. See, e.g., Ellison v. State,

                                              10
410 A.2d 519, 527 (Del. Super. Ct. 1979).

{37} Here, Defendant’s misrepresentation of his identity was such an intervening
circumstance. Although the interaction between the police and Defendant came about
initially as a result of the unlawful seizure, the Defendant’s response to Officer Benally was
not a natural or predictable progression from the unlawful seizure but rather an unprompted
act of his own free will.

{38} The third consideration requires that we assess the purpose and flagrancy of the
police misconduct. Nothing in the record indicates that Benally initiated the traffic stop for
the specific purpose of investigating Defendant or for some other merely pretextual reason.
And nothing indicates Benally approached and addressed Defendant for arbitrary reasons
or to provoke additional wrongdoing; rather, she addressed Defendant based on her
observation that he was not wearing a seat belt. Benally had probable cause to believe that
Defendant was violating the law; and under conditions of a lawful traffic stop, her course of
conduct thereafter would not have been unlawful. This third consideration tips the balance
away from suppression because nothing suggests that admission of the evidence will
embolden police to engage in unconstitutional traffic stops. Benally’s behavior cannot
reasonably be viewed as flagrant misconduct of a police officer searching for evidence.
Accordingly, the Fourth Amendment analysis does not require excluding evidence of
concealing identity because it was free of the taint of the unlawful seizure.

B.     State Constitutional Grounds

{39} Because we conclude that the Fourth Amendment does not offer Defendant
protection here, we must address his challenge under Article II, Section 10. See Gomez,
1997-NMSC-006, ¶ 19. Under the interstitial approach we adopted in Gomez, “we may
diverge from federal precedent where the federal analysis is flawed, where there are
structural differences between the state and federal governments, or because of distinctive
New Mexico characteristics.” Garcia, 2009-NMSC-046, ¶ 27.

1.     Preservation of State Constitutional Issue

{40} Because the Court of Appeals found the crimes of concealing identity and forgery
should have been suppressed under the Fourth Amendment, it did not address Defendant’s
challenge under Article II, Section 10. Therefore, as an initial matter, we must determine
whether Defendant properly preserved his argument under the New Mexico Constitution for
appellate review. See State v. Ketelson, 2011-NMSC-023, ¶ 10, 150 N.M. 137, 257 P.3d
957. The State concedes that Defendant’s state constitutional claim was adequately
preserved. Nevertheless, the rule of preservation must still be met. The requirements for
preservation of state constitutional claims were enunciated in Gomez, 1997-NMSC-006, ¶¶
22-23. When, as is the case here, a state constitutional provision has previously been
interpreted more expansively than its federal counterpart, trial counsel must develop the
necessary factual basis and raise the applicable constitutional provision in trial court. Id. ¶

                                              11
22.

{41} Defendant explicitly cited Article II, Section 10 in his motion to suppress. However,
in his motion to suppress, Defendant only discussed the facts leading up to the traffic stop
to argue the officer lacked reasonable suspicion. Very few facts regarding the crimes of
concealing identity and forgery were developed in the motion hearing. It is in the findings
of fact and conclusions of law that the district court states, “[I]t was during the issuance of
the citation that the charged crimes of concealing identity and forgery are alleged to have
occurred.” The district court concluded that an unlawful stop does not justify the
commission of new crimes and that the evidence of the forgery and concealing identity was
admissible at trial.

{42} We find that despite this marginal record, the necessary factual basis was still
developed and the district court’s ruling was fairly invoked. Therefore, Defendant’s Article
II, Section 10 challenge was adequately preserved. We next determine whether Article II,
Section 10 affords Defendant greater protection than the Fourth Amendment and requires
suppression of the evidence of the crimes of concealing identity and forgery committed after
an unlawful traffic stop.

2.      Article II, Section 10

{43} Article II, Section 10 provides that “[t]he people shall be secure in their persons,
papers, homes and effects, from unreasonable searches and seizures . . . .” N.M. Const. art.
II, § 10. Similar to the Fourth Amendment, this clause embodies “the fundamental notion
that every person in this state is entitled to be free from unwarranted governmental
intrusions.” State v. Gutierrez, 1993-NMSC-062, ¶ 46, 116 N.M. 431, 863 P.2d 1052. “The
key inquiry under Article II, Section 10 is reasonableness.” Ketelson, 2011-NMSC-023, ¶
20. “We avoid bright-line, per se rules in determining reasonableness; instead, we consider
the facts of each case.” State v. Granville, 2006-NMCA-098, ¶ 18, 140 N.M. 345, 142 P.3d
933.

{44} Defendant argues that upholding the district court ruling would create a bright-line,
per se standard whereby the commission of non-violent identity offenses would always be
sufficient to purge the taint of an unconstitutional seizure and would thus contradict our
preference to consider the facts of each case. Defendant also argues that unlike the federal
exclusionary rule, which only applies “where its deterrence benefits outweigh its substantial
social costs,” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998)
(internal quotation marks and citation omitted), the primary focus of the state exclusionary
rule is securing privacy interests, which is achieved by putting individuals in the same
position as if the misconduct had not occurred, see State v. Trudelle, 2007-NMCA-066, ¶ 40,
142 N.M. 18, 162 P.3d 173 (“The purpose of the state exclusionary rule[, to ensure freedom
from unreasonable search and seizure,] is accomplished by doing no more than return the
parties to where they stood before the right was violated.”). Finally, Defendant argues that
the three-factor federal attenuation analysis is flawed in that it fails to account for the greater

                                                12
protection of privacy granted under Article II, Section 10.

{45} The State argues that the Court of Appeals properly applied the federal analysis but
neglected to balance the costs and benefits of exclusion and that as a result, the Court of
Appeals drew a categorical distinction between violent and non-violent new crimes which
will lead to a systematic under-valuation of the societal costs of excluding evidence of
crimes such as forgery or giving a false identity. The State suggests that this Court adopt an
appropriate balancing test for evaluating attenuation under the state Constitution.

{46} While we have repeatedly expressed that Article II, Section 10 provides broader
protection of individual privacy than the Fourth Amendment, the key inquiry is still one of
reasonableness, which “depends on the balance between the public interest and the
individual’s interest in freedom from police intrusion upon personal liberty.” Ketelson,
2011-NMSC-023, ¶ 20. Article II, Section 10 is “a foundation of both personal privacy and
the integrity of the criminal justice system, as well as the ultimate regulator of police
conduct.” State v. Garcia, 2009-NMSC-046, ¶ 31 (emphasis added). “To evaluate whether
a search and seizure violates the protections of the New Mexico Constitution, courts judge
‘the facts of each case by balancing the degree of intrusion into an individual’s privacy
against the interest of the government in promoting crime prevention and detection.’” State
v. Davis, 2015-NMSC-034, ¶ 100, 360 P.3d 1161 (Davis II) (Chávez, J., specially
concurring) (quoting State v. Jason L., 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856).

{47} Application of the three-part federal attenuation analysis comports with our
preference to assess the reasonableness of law enforcement by considering the totality of the
circumstances of each case. See State v. Leyva, 2011-NMSC-009, ¶ 55, 149 N.M. 435, 250
P.3d 861. Defendant’s assertion that the federal attenuation analysis is flawed because it
fails to account for the heightened protections of privacy under Article II, Section 10 is
unpersuasive. The federal attenuation analysis has already been applied to Article II, Section
10 in instances involving confessions or consent to search. In State v. Monteleone, 2005-
NMCA-129, ¶¶ 17, 21, 138 N.M. 544, 123 P.3d 777, the Court of Appeals applied the three-
part federal analysis to determine whether the defendant’s consent to search his apartment
was sufficiently attenuated from the taint of the officers’ illegal entry. 2005-NMCA-129,
¶¶ 18-19. The Court concluded that the defendant’s consent was not sufficiently attenuated
from the officers’ illegal entry and therefore suppressed the state’s evidence under both the
Fourth Amendment and Article II, Section 10. Id. ¶¶ 21-22. Though Monteleone dealt with
a defendant’s consent to search, the application of the attenuation analysis protected
Monteleone’s state constitutional rights, and we do not see why its application in that case
or in this case is flawed. In addition, the greater protections afforded vehicle passengers in
New Mexico are not through an application of the federal attenuation factors to this case.
See, e.g., State v. Portillo, 2011-NMCA-079, ¶ 22-23, 150 N.M. 187, 258 P.3d 466 (holding
Article II, Section 10, unlike Fourth Amendment, allows officer to only ask passenger
questions related to the reason for the stop or otherwise supported by reasonable suspicion).

{48}   While Officer Benally’s decision to initiate the stop was mistaken, her conduct

                                             13
thereafter was lawful. Officer Benally reasonably requested Defendant’s identification after
observing the seat belt violation. We therefore conclude that the benefits of deterrence in
this case are not outweighed by the cost of excluding the evidence of Defendant’s crimes.
Though a passenger in an automobile has a right to be free of unreasonable seizure by the
government, the passenger’s unprovoked and willful criminal acts after an unreasonable
traffic stop cannot be sanctioned. The violation of Defendant’s Fourth Amendment or
Article II, Section 10 rights does not confer upon him a license to commit new crimes,
whether they be physical resistance or more passive forms of resistance to government
authority. See Waupekenay, 973 F.2d at 1537. Accordingly, we conclude that the important
principle of deterrence of police misconduct does not weaken the exclusionary rule under
Article II, Section 10, and all evidence obtained by flagrant or deliberate misconduct shall
be suppressed. But were we to draw a line based merely upon the nature of the violation,
it would embolden individuals to engage in non-violent yet still criminal acts that
compromise the integrity of the criminal justice system. Defendant’s impersonation of his
brother and forging his brother’s signature on a traffic citation could have caused his brother
real harm had it not been discovered. Forgery was a third-degree felony until the statute was
amended in 2006 to make it a fourth-degree felony when there is no quantifiable damage or
the damage is $2,500 or less. See § 30-16-10(B). The 2006 amendment also made forgery
a second-degree felony when the damage is over $20,000. See § 30-16-10(E). The fact that
the Legislature chose to keep all forgeries as felony offenses and increased the punishment
for serious forgery cases shows it considers this crime harmful to society.

{49} Finally, Defendant does not present any basis for us to conclude that this case
involves structural differences between the federal and state governments other than the
differences already articulated between the Fourth Amendment and Article II, Section 10.
However, our finding that the new crimes sufficiently purged the taint of the primary
illegality removed those crimes from the greater protection that New Mexico law provides
from unreasonable searches and seizures involving automobiles.

IV.    CONCLUSION

{50} We hold that the new crime exception to the exclusionary rule may apply to both
violent and non-violent crimes committed in response to unlawful police action.
Defendant’s attempts to conceal his identity after the unlawful traffic stop sufficiently
purged the taint of the initial illegality so as to render the exclusionary rule inapplicable
under both the Fourth Amendment and Article II, Section 10 of the New Mexico
Constitution. The evidence of the seat belt violation obtained as a direct result of the
unlawful stop was correctly suppressed. Accordingly, we reverse the Court of Appeals and
reinstate Defendant’s conviction.

{51}   IT IS SO ORDERED.

                                               ____________________________________
                                               PETRA JIMENEZ MAES, Justice

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WE CONCUR:

___________________________________
JUDITH K. NAKAMURA, Chief Justice

___________________________________
EDWARD L. CHÁVEZ, Justice

___________________________________
CHARLES W. DANIELS, Justice

___________________________________
BARBARA J. VIGIL, Justice




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