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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 32,994

 5 AIDE ZAMORA SANCHEZ,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando Macias, District Judge

 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Herman E. Ortiz
14 Mesilla Park, NM

15 for Appellee


16                                 MEMORANDUM OPINION

17 GARCIA, Judge.
 1   {1}   The State appeals an order of the district court suppressing evidence seized by

 2 federal agents at an international border crossing. In our notice of proposed summary

 3 disposition, we proposed to affirm. The State has filed a memorandum in opposition,

 4 which this Court has duly considered. As we do not find the State’s arguments

 5 persuasive, we affirm.

 6   {2}   Relying upon a concurring opinion in State v. Caldenas-Alvarez, 2001-NMSC-

 7 017, 130 N.M. 386, 25 P.3d 225, the State initially argued that the district court erred

 8 because the evidence in this case was seized at an international border crossing rather

 9 than at a permanent border patrol checkpoint. [DS 6-7] In our notice of proposed

10 summary disposition, we proposed to hold that the majority opinion in Caldenas-

11 Alvarez required suppression in this case, regardless of the location of the checkpoint.

12 The State’s memorandum in opposition now argues that Caldenas-Alvarez is

13 distinguishable based upon the location of the checkpoint, and that the district court

14 should have applied the interstitial approach to independent constitutional

15 interpretation prescribed by State v. Gomez, 1997-NMSC-006, ¶ 18, 122 N.M. 777,

16 932 P.2d 1.

17   {3}   For the reasons articulated in our proposed summary disposition, however, we

18 decline to read Caldenas-Alvarez as narrowly as suggested by the State. Instead, we

19 understand Caldenas-Alvarez to rely upon “the extra layer of protection that New


                                              2
 1 Mexico offers its motorists,” in requiring the suppression of evidence obtained after

 2 a stop has been prolonged longer than necessary to address “questions regarding

 3 citizenship and immigration status . . . unless the officer conducting the stop

 4 reasonably suspects the defendant of criminal activity.” 2001-NMSC-017, ¶ 16. Thus,

 5 this case falls within the rule articulated in Caldenas-Alvarez, and it was not necessary

 6 for the district court to independently determine whether the defendant in this case

 7 was entitled to broader protections under Article II, Section 10 of the New Mexico

 8 constitution than under the Fourth Amendment, since that question has already been

 9 answered by our New Mexico Supreme Court. In short, this case did not require the

10 district court to engage in the interstitial analysis described in Gomez, because that

11 court, like this Court, is “bound by decisions of our state’s highest court, and must

12 follow a holding of our . . . [s]upreme [c]ourt.” Garcia v. Las Vegas Med. Ctr., 1991-

13 NMCA-053, ¶ 24, 112 N.M. 441, 816 P.2d 510 (citation omitted).

14   {4}   Finally, the State asserts, in the alternative, that “the full record would disclose

15 that the agent articulated precisely the type of suspicion that justifies a brief expansion

16 of a checkpoint detention.” [MIO 4] We understand this assertion to suggest

17 that—even applying the “extra layer of protection” described in Cardenas-Alvarez to

18 this case—the expansion of the stop at issue in this case was justified by reasonable

19 suspicion. This is a new argument, addressing an issue that was not raised in the


                                                3
 1 State’s docketing statement. [DS 6] The State has not filed a motion to amend the

 2 docketing statement pursuant to Rule 12-208(F) NMRA.

 3   {5}   Nonetheless, construing the memorandum in opposition as a motion to amend

 4 the docketing statement, we note that the State has not recited facts that would justify

 5 reversal. See Rule 12-208(D)(3) NMRA (stating that the docketing statement must

 6 summarize “all facts material to a consideration of the issues presented”). Instead, the

 7 State’s memorandum recites: that Customs and Border Patrol Agents must, “within

 8 approximately thirty seconds,” make assessments regarding citizenship and

 9 contraband; that “[i]f the agent is not satisfied within that time, the vehicle is sent to

10 secondary inspection outside the flow of border traffic;” and facts suggesting that the

11 agent in this case may have been unable to quickly assess the immigration status and

12 the potential presence of contraband in the defendant’s mini-van. [MIO 5]

13   {6}   Unlike federal law, New Mexico precedent requires that “if the issues of

14 residence or citizenship are resolved at the primary area of the checkpoint, referral of

15 a vehicle to the secondary area must be based on at least reasonable suspicion of

16 wrongdoing.” State v. Estrada, 1991-NMCA-026, ¶ 5, 111 N.M. 798, 810 P.2d 817;

17 see also Cardenas-Alvarez, 2001-NMSC-017, ¶ 16. The State’s docketing statement

18 admits that the Defendant presented a resident alien card prior to referral to secondary

19 [DS 3], and the State also concedes that “[i]t is not clear from [the] record whether the


                                               4
 1 residence and citizenship of all occupants of Defendant’s car were resolved prior to

 2 referral to secondary inspection.” [MIO 5] Thus, the facts relied upon by the State

 3 neither establish that issues of residence or citizenship were unresolved when the

 4 Defendant was sent to the secondary inspection area nor that there was any basis for

 5 a reasonable suspicion of wrongdoing at that time. See State v. Galloway, 1993-

 6 NMCA-071, ¶ 10, 116 N.M. 8, 859 P.2d 476 (“[r]easonable suspicion is the standard

 7 by which to judge detention at a checkpoint which extends beyond the time necessary

 8 for agents to satisfy themselves about the citizenship of a vehicle’s occupants.”).

 9   {7}   The State’s further assertion that a review of “the full record” would disclose

10 facts establishing reasonable suspicion [MIO 4] is insufficient to justify an amendment

11 of the docketing statement or to satisfy Rule 12-208(D)(3). See State v. Rael, 1983-

12 NMCA-081, ¶ 10, 100 N.M. 193, 668 P.2d 309 (“[g]eneral conclusory statements in

13 a memorandum in opposition to a proposed calendaring are insufficient to show cause

14 for a re-calendaring.”). Thus, to the extent that the State seeks to amend its docketing

15 statement to assert an alternative basis for reversal of the suppression order in this

16 case, the State has failed to assert facts that would justify such a reversal. See State v.

17 Moore, 1989-NMCA-073, ¶ 44, 109 N.M. 119, 782 P.2d 91 (“Nonviable issues are

18 not deserving of being added to the docketing statement[.]”).




                                                5
1   {8}   Accordingly, we construe the State’s memorandum in opposition as a motion

2 to amend the docketing statement, we deny that motion, and—for the reasons stated

3 in our notice of proposed summary disposition—we affirm the district court’s

4 suppression order.

5   {9}   IT IS SO ORDERED.


6
7                                        TIMOTHY L. GARCIA, Judge


8 WE CONCUR:


 9
10 RODERICK T. KENNEDY, Chief Judge


11
12 LINDA M. VANZI, Judge
