state constitutional claim in New Mexico

2023Under this analysis, we “answer three questions: (1) whether the right asserted by the defendant is protected under the federal constitution, (2) whether the defendant preserved the state constitutional claim, and (3) whether there exists any one of three reasons for diverging from federal precedent.” Id.

2023“This will enable the trial court to tailor 13 proceedings and to effectuate an appropriate ruling on the issue.” Id. 14 {28} Defendant argues that he preserved the state constitutional claim because trial 15 counsel cited Article II, Section 14 in her motion to suppress.

2022See State v. Ketelson, 2011-NMSC-023, ¶ 10 , 150 N.M. 137 , 257 P.3d 957 (“If the right is protected by the federal constitution, then the state constitutional claim is not reached.”). {4} When reviewing a district court’s denial of a motion to suppress, we consider whether its findings of fact are supported by substantial evidence.

2022See State v. Ketelson, 2011-NMSC-023, ¶ 10 , 150 N.M. 137 , 257 P.3d 957 (“If the right is protected by the federal constitution, then the state constitutional claim is not reached.”). {4} When reviewing a district court’s denial of a motion to suppress, we consider whether its findings of fact are supported by substantial evidence.

2023If it is, then the state constitutional claim is not reached.” (internal quotation marks and citations omitted)). {8} “It is well-established that Article II, Section 10 provides more protection against unreasonable searches and seizures than the Fourth Amendment.” State v. Leyva, 2011-NMSC-009, ¶ 51 , 149 N.M. 435 , 250 P.3d 861 .

2023If it is, then the state constitutional claim is not reached.” (internal quotation marks and citations omitted)). {8} “It is well-established that Article II, Section 10 provides more protection against unreasonable searches and seizures than the Fourth Amendment.” State v. Leyva, 2011-NMSC-009, ¶ 51 , 149 N.M. 435 , 250 P.3d 861 .

2022Under the interstitial approach, we ask “(1) whether the right being asserted is protected under the federal Constitution; (2) whether the state constitutional claim has been preserved; and (3) whether there exists one of three reasons for diverging 12 from federal precedent.” State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6 , 130 N.M. 386 , 25 P.3d 225 .

2022Under the interstitial approach, we ask “(1) whether the right being asserted is protected under the federal Constitution; (2) whether the state constitutional claim has been preserved; and (3) whether there exists one of three reasons for diverging 12 from federal precedent.” State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6 , 130 N.M. 386 , 25 P.3d 225 .

2016See, e.g., Garcia, 2009-NMSC-046, ¶ 43 (defining reasonable suspicion in a state constitutional analysis as a “particularized suspicion, based on all the circumstances[,] that a particular individual, the one detained, is breaking, or has broken the law” (alteration in original) (quoting Jason L., 2000-NMSC-018 , ¶¶ 19-20 (analyzing reasonable suspicion under the Fourth Amendment))). {39} Accordingly, we apply the same reasonable suspicion analysis to the investigatory stop here under Article II, Section 10 as we did under the Fourth Amendment, and we hold that under the circumstances the traf

2016See, e.g., Garcia, 2009-NMSC-046, ¶ 43 (defining reasonable suspicion in a state constitutional analysis as a “particularized suspicion, based on all the circumstances[,] that a particular individual, the one detained, is breaking, or has broken the law” (alteration in original) (quoting Jason L., 2000-NMSC-018 , ¶¶ 19-20 (analyzing reasonable suspicion under the Fourth Amendment))). {39} Accordingly, we apply the same reasonable suspicion analysis to the investigatory stop here under Article II, Section 10 as we did under the Fourth Amendment, and we hold that under the circumstances the traf

2015“If the right 9 is protected by the federal constitution, then the state constitutional claim is not 10 reached.” Id.; see also State v. Jean-Paul, 2013-NMCA-032, ¶ 5 , 295 P.3d 1072 11 (“Under New Mexico’s interstitial approach to state constitutional interpretation, this 12 Court should only reach the state constitutional question if the federal constitution 13 does not provide the protection sought by the party raising the issue.”).

2014“If the right is protected by the federal constitution, then the state constitutional claim is not reached.” Id.; see also State v. Jean-Paul, 2013-NMCA-032, ¶ 5 , 295 P.3d 1072 (stating that “[ujnder New Mexico’s interstitial approach to state constitutional interpretation, this Court should only reach the state constitutional question if the federal constitution does not provide the protection sought by the party raising the issue”).

2011See Granville, 2006-NMCA-098, ¶¶ 9, 34-35 , 140 N.M. 345 , 142 P.3d 933 (analyzing only the state constitutional claim of privacy in garbage from one’s residence where the state did not argue the existence of another exception to the warrant requirement).

2011See Granville, 2006-NMCA-098, ¶¶ 9, 34-35 , 140 N.M. 345 , 142 P.3d 933 (analyzing only the state constitutional claim of privacy in garbage from one’s residence where the state did not argue the existence of another exception to the warrant requirement).

2013The right of confrontation is guaranteed by the Sixth Amendment to the United States Constitution, which in turn “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965). {8} “[T]he [United States] Supreme Court has long held that cross-examination at a preliminary hearing is not required by the confrontation clause of the Sixth Amendment.” 4 Wayne R.

2013The right of confrontation is guaranteed by the Sixth Amendment to the United States Constitution, which in turn “is made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965). {9} The United States Supreme Court consistently has interpreted confrontation as a right that attaches at the criminal trial, and not before.

2014Leyva also clarified that the “less stringent of Gomez’[s] preservation requirements[,]” namely the “asserti[on of] the constitutional principle” and a “showing [of] the factual basis needed for the [district] court to rule on the issue[,]” Leyva, 2011-NMSC-009, ¶¶ 40, 44, 50 (internal quotation marks and citation omitted), applies to issues such as that raised herein because “ ‘a plethora of precedent already interprets Article II, Section 10 more expansively than the Fourth Amendment.’ ” Leyva, 2011-NMSC-009, ¶ 50 (quoting State v. Garcia, 2009-NMSC-046, ¶ 52 , 147 N.M. 134 , 217 P.3d 1032 (

2014Leyva also clarified that the “less stringent of Gomez’[s] preservation requirements[,]” namely the “asserti[on of] the constitutional principle” and a “showing [of] the factual basis needed for the [district] court to rule on the issue[,]” Leyva, 2011-NMSC-009, ¶¶ 40, 44, 50 (internal quotation marks and citation omitted), applies to issues such as that raised herein because “ ‘a plethora of precedent already interprets Article II, Section 10 more expansively than the Fourth Amendment.’ ” Leyva, 2011-NMSC-009, ¶ 50 (quoting State v. Garcia, 2009-NMSC-046, ¶ 52 , 147 N.M. 134 , 217 P.3d 1032 (

2013In Ochoa, we said that the Gomez Court “determined that where there is no reasonable basis to believe that the delay in obtaining a search warrant will jeopardize legitimate law enforcement interests, there is no justification for an exception to the warrant requirement.” Ochoa, 2009-NMCA-002, ¶ 22 (citing Gomez, 1997-NMSC-006, ¶¶ 41-43 ).

2009See State v. Ochoa, 2009-NMCA-002, ¶ 9 , 146 N.M. 32 , 206 P.3d 143 , cert granted, 2008-NMCERT-012 , 145 N.M. 572 , 203 P.3d 103 (stating that to preserve such actions, the ‘“party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision’ ”) (quoting State v. Gomez, 1997-NMSC-006, ¶ 23 , 122 N.M. 777 , 932 P.2d 1 ).

2008See State v. Pacheco, 2007-NMSC-009, ¶ 10 , 141 N.M. 340 , 155 P.3d 745 (explaining that fundamental rights “may be waived or lost” and concluding that the defendant waived his right to argue his fundamental right to a trial by a fair and impartial jury by “failing to timely invoke the ruling of the trial court”). {29} As a final argument, Defendant asserts that the Gomez preservation requirement of a state constitutional claim is an unconstitutional requirement under Article II, Section 18 of the New Mexico Constitution because it deprives a criminal defendant of equal protection under the la

2008See State v. Pacheco, 2007-NMSC-009, ¶ 10 , 141 N.M. 340 , 155 P.3d 745 (explaining that fundamental rights “may be waived or lost” and concluding that the defendant waived his right to argue his fundamental right to a trial by a fair and impartial jury by “failing to timely invoke the ruling of the trial court”). {29} As a final argument, Defendant asserts that the Gomez preservation requirement of a state constitutional claim is an unconstitutional requirement under Article II, Section 18 of the New Mexico Constitution because it deprives a criminal defendant of equal protection under the la

2007See State v. Vaughn, 2005-NMCA-076, ¶ 7 , 137 N.M. 674 , 114 P.3d 354 .

2007See State v. Vaughn, 2005-NMCA-076, ¶ 7 , 137 N.M. 674 , 114 P.3d 354 .

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2006See Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 2, 5 , 130 N.M. 386 , 25 P.3d 225 (holding that the extended detention of the defendant at a border checkpoint was unlawful under Article II, Section 10); Gomez, 1997-NMSC-006, ¶¶ 39, 44 , 122 N.M. 777 , 932 P.2d 1 (rejecting the federal bright-line automobile exception to the warrant requirement and providing greater protections under Article II, Section 10); Campos v. State, 117 N.M. 155, 156, 157-59 , 870 P.2d 117, 118, 119-21 (1994) (holding that Article II, Section 10, requires a warrantless arrest to be based on both probable cause and sufficient e

2025Compare Thompson, 2022-NMSC-023 , ¶¶ 27-28 7 (declining to address constitutional challenges which were raised for the first time 8 in the answer brief), with Montoya v. Ulibarri, 2007-NMSC-035, ¶ 18 , 142 N.M. 89 , 9 163 P.3d 476 (stating that the petitioner’s state constitutional claim was preserved 10 when it was raised in the “Supplemental Memorandum on Petition for Writ of 11 Habeas Corpus”).

2025Compare Thompson, 2022-NMSC-023 , ¶¶ 27-28 7 (declining to address constitutional challenges which were raised for the first time 8 in the answer brief), with Montoya v. Ulibarri, 2007-NMSC-035, ¶ 18 , 142 N.M. 89 , 9 163 P.3d 476 (stating that the petitioner’s state constitutional claim was preserved 10 when it was raised in the “Supplemental Memorandum on Petition for Writ of 11 Habeas Corpus”).

2025Michigan v. Summers, 452 U.S. 692, 699-700 (1981).

2024See State v. Woodruff, 1997-NMSC-061, ¶ 21 , 124 N.M. 388 , 951 P.2d 605 (holding that a state constitutional claim was properly preserved where the lower court’s decision was “fairly invoked,” the district court was “alerted to the claim of error and had a meaningful opportunity to correct any mistake, and the prosecutor had a fair opportunity to respond”).

2024See State v. Woodruff, 1997-NMSC-061, ¶ 21 , 124 N.M. 388 , 951 P.2d 605 (holding that a state constitutional claim was properly preserved where the lower court’s decision was “fairly invoked,” the district court was “alerted to the claim of error and had a meaningful opportunity to correct any mistake, and the prosecutor had a fair opportunity to respond”).