March 16, 2009 – State of New Mexico v. Erica Rivera, No. 25,798

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _March 16, 2009

NO. 25,798

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

ERICA RIVERA,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District J udge

Gary K. King, Attomey General
Andrew S. Montgomery, Assistant Attomey General
Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender
Navin H. Jayaram, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

WECHSLER, Judge.
{1} 	This case is before us on remand from the New Mexico Supreme Court. In this
opinion, we address whether the State’s warrantless search and seizure was
reasonable. This inquiry requires findings on the factual question of whether there
was state involvement in the original opening of the package in Denver. We reverse
and remand this issue to the district court for further consideration. We analyze the
remaining issues to assist the district court in its analysis if it finds that there was not
state involvement in the original opening. If the district court so finds, then a private
actor breached Defendant Erica Rivera’s expectation of privacy, and the ensuing
investigation of the package was reasonable.
{2} 	Additionally, we reiterate that the Fourth Amendment is not violated when a
private actor infringes on the privacy rights of another without state involvement. See
State v. Murillo, 113 N.M. 186, 188, 824 P.2d 326, 328 (Ct. App. 1991). Therefore,
the Denver station employee’s invasion of Defendant’s privacy does not implicate the
Fourth Amendment. Further, although there was state involvement in the transfer of
the package from Denver to Albuquerque and in the opening of the package in
Albuquerque, the involvement was reasonable because the investigation did not
exceed the scope of the original opening. In addressing this issue, we evaluate and
adopt the private search doctrine laid out in United States v. Jacobsen, 466 U.S. 109,

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122 (1984).
BACKGROUND
{3} 	The facts are generated primarily by the testimony of Agent Gerald Perry of the
United States Drug Enforcement Administration (DEA) at the hearing on the motion
to dismiss. In December 2003, a package was shipped to Defendant in Albuquerque
using the services of the El Paso-Los Angeles Limousine Express Company (Bus
Company). The package was inadvertently rerouted to the Denver station. A woman
who identified herself as Defendant called the Bus Company numerous times
inquiring about the package, which she claimed contained beef jerky. Because of the
number of calls made, a Denver station employee became suspicious and, against the
Bus Company’s policy, opened the package. The Denver station employee discovered
a pillow, under which was a toolbox filled with bundles of what appeared to be
marijuana. 	The Denver station employee called the Bus Company’s Los Angeles
office, which then contacted Agent Perry to inform him of the situation. Based on the
description of the package and its contents, and based on his experience, Agent Perry
believed that the packaging of the bundles was consistent with the packaging of
marijuana. He instructed the caller to have the package rewrapped and sent on the
next bus to Albuquerque. A Bus Company representative informed Defendant that

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the package would arrive at the Albuquerque station the next day.
{4} 	The package arrived at the Albuquerque station shortly before closing that next
day, where the manager of the station opened it in Agent Perry’s presence, and Agent
Perry confirmed that the packaging was consistent with marijuana. Defendant did not
arrive until the following morning, whereupon she took physical possession of the
package, before surrendering it moments later when a companion informed her that
police were present. 	Defendant subsequently drove away from the bus station.
Presumably, Agent Perry seized the package at that point, and another officer caught
up to Defendant’s vehicle and arrested her.
{5} 	The district court granted Defendant’s motion to suppress the package and
evidence found in the package. 	It made findings from the bench, which it later
adopted in an order nunc pro tunc adopting Defendant’s findings of fact and
conclusions of law, that there was state involvement and a seizure in Denver when
Agent Perry directed that the package be sent to Albuquerque, and if there was no
seizure in Denver, then one occurred in Albuquerque with Agent Perry’s involvement
in opening the package. The district court did not make any findings on the question
of whether there was state involvement in the original opening of the package by the
Denver station employee. The district court dismissed the case.

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{6} 	The State filed its notice of appeal, and this Court affirmed the district court’s
suppression of the package and evidence from the package on Confrontation Clause
grounds. State v. Rivera, 2007-NMCA-104, ¶ 22, 142 N.M. 427, 166 P.3d 488, rev’d,
2008-NMSC-056, ¶ 1, 144 N.M. 836, 192 P.3d 1213. The Supreme Court reversed
and remanded, holding that the Confrontation Clause does not apply to pretrial
hearings. Rivera, 2008-NMSC-056, ¶ 1. We now reverse the district court’s order,
in which it concluded that an illegal seizure occurred when Agent Perry directed the
Denver station employee to ship the package to Albuquerque and, if not then, when
Agent Perry oversaw the package’s opening in Albuquerque. 	We remand on the
question of whether there was state involvement in the original opening of the package
in Denver.
STANDARD OF REVIEW
{7} 	When a defendant raises a Fourth Amendment issue concerning a warrantless
search or seizure, the state has the burden of proving its justification. 	State v.
Martinez, 1997-NMCA-048, ¶ 9, 123 N.M. 405, 940 P.2d 1200. We review the facts
in the light most favorable to the prevailing party and defer to the district court’s
findings of fact when they are supported by substantial evidence. 	State v. Urioste,
2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. We review the district court’s

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application of the law to the facts de novo. State v. Baca, 2004-NMCA-049, ¶ 11, 135
N.M. 490, 90 P.3d 509.
FOURTH AMENDMENT ISSUES
{8} 	The Fourth Amendment to the United States Constitution protects against
unreasonable search and seizure. U.S. Const. amend IV. New Mexico recognizes the
principle that the Fourth Amendment is not violated when a private actor infringes on
the privacy rights of another without state involvement. 	Murillo, 113 N.M. at 188,
824 P.2d at 328 (“The courts of New Mexico, like other jurisdictions, have accepted
the long-standing rule that the protections of the Fourth Amendment do not apply to
private individuals acting for their own purposes.” (footnote omitted)); see also
Jacobsen, 466 U.S. at 113 (reiterating that the Fourth Amendment applies only to
governmental action and not “to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the [g]overnment or with the
participation or knowledge of any governmental official” (internal quotation marks
and citation omitted)).
A. 	The Original Opening in Denver
{9} 	We thus address the factual question of whether the Denver station employee
opened the package without state involvement. “[W]hether a ‘private’ person is acting

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as an agent of the government is determined as a question of fact in light of all the
circumstances.” Murillo, 113 N.M. at 190, 824 P.2d at 330. We do not agree with the
State that it is “undisputed” that the Denver station employee opened the package
absent any state involvement. The district court did not make any such finding of fact,
either orally or in the adopted findings of fact submitted by Defendant.
{10} 	Further, Defendant presented a rebuttal witness, criminal investigator Eileen
Chavez for the State of New Mexico, who testified that she investigated the Bus
Company’s policies regarding customers’ packages. She testified that, according to
the manager of the Denver station, the Bus Company maintained a policy to “not open
any packages” and further stated that “it would be a violation of their policy” to do so.
This testimony implies that the Denver station employee would not have opened the
package of his own accord, intimating possible state involvement.
{11} 	There are no findings of fact in the record on the question of whether there was
state involvement in the original opening of the package. Therefore, we remand to the
district court to make such findings upon the existing record or, in its discretion, to
receive such additional evidence as appears relevant to resolve the question.
B. 	The Transfer of the Package and the Opening of the Package in
Albuquerque
{12} 	Assuming the Denver station employee opened the package without state

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involvement, we must determine if Agent Perry’s actions, when he requested that the
package be transferred to Albuquerque and oversaw the opening of the package in
Albuquerque, were reasonable and, thus, not a violation of the Fourth Amendment.
The State argues that the district court erred in finding state involvement because the
Denver station employee breached Defendant’s expectation of privacy. The State’s
argument rests on the “private search doctrine,” which New Mexico has not
previously adopted. 	See State v. Cline, 1998-NMCA-154, ¶ 20, 126 N.M. 77, 966
P.2d 785. This Court noted in Cline that the private search doctrine, as laid out in
Jacobsen, “applies to searches conducted by private parties . . . which are then
repeated by government agents.” 	Cline, 1998-NMCA-154, ¶ 20. 	We further
explained that the subsequent search would not be deemed a violation of a defendant’s
right against unreasonable search and seizure because the private actor had breached
the defendant’s expectation of privacy. Id. 	The facts in Cline did not require us to
reach the question of whether New Mexico should adopt the doctrine. We do so now.
{13} 	In Jacobsen, a case with facts similar to the present one, employees of a private
freight carrier cut open a tube inside a damaged package and found plastic bags
containing white powder. Jacobsen, 466 U.S. at 111. They repackaged the tube and
notified federal agents, who opened the tube and the bags and took a sample for a field

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test. 	Id. at 111-12. 	Although the agents asserted dominion and control over the
package and thereby seized it, the United States Supreme Court held that the seizure
was not unreasonable because a privacy expectation in the privately opened package
no longer existed. Id. at 120-21. Explaining its reasoning, the Court stated, “prior to
the field test, respondents’ privacy interest in the contents of the package had been
largely compromised,” which it deemed “highly relevant” in determining the
reasonableness of the agents’ actions. Id. at 121. The Court also stated that, after an
individual’s expectation of privacy has been breached by a private actor, the
information conveyed by the private actor to a government authority may be used by
the authority without violation of the Fourth Amendment. Id. at 117. In other words,
“[o]nce frustration of the original expectation of privacy occurs,” the information is
deemed not private and is no longer protected by the Fourth Amendment. 	Id. 	We
consider the Court’s analysis to be sound and therefore adopt the conclusion that, if
an individual’s expectation of privacy is breached by a private actor, then subsequent
investigation by the state is not an unreasonable search or seizure under the Fourth
Amendment, so long as the subsequent investigation does not expand upon the scope
of the original breach.
{14} 	In the present case, Agent Perry’s actions were based upon his belief that the

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package had already been 	opened by the Denver station employee. 	As discussed
above, the Denver station employee notified the Bus Company’s Los Angeles office,
which then contacted Agent Perry with information on a package with suspicious
contents. The package was rewrapped and sent to Albuquerque per Agent Perry’s
instructions, 	and, 	once 	in 	Albuquerque, 	it 	was 	opened 	under 	Agent 	Perry’s
supervision. The facts are remarkably similar to those in Jacobsen, and, in following
the reasoning established therein, we similarly hold that Agent Perry’s search and
seizure of the package was not unreasonable because a privacy expectation in the
privately opened package no longer existed. See id. at 111-12. Just as in Jacobsen,
Defendant’s “privacy interest in the contents of the package had been largely
compromised.” Id. at 121. Thus, when Agent Perry opened the package and observed
the same bundles previously described to him, his actions were within the scope of the
privacy violation already perpetrated by the Denver station employee. Even if Agent
Perry cut open one of the bundles in Albuquerque, as Defendant alleges, he did not
unreasonably expand upon the original breach of Defendant’s expectation of privacy.
The knowledge Agent Perry gained from the Bus Company employee about the
package, his experience with drugs and packaging of drugs, and his observations of
the package and the bundles within would have supported his actions. Agent Perry’s

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investigation did not unreasonably expand the private search and was therefore not a
violation of the Fourth Amendment.
CONCLUSION
{15} 	We reverse the district court’s findings that the search and seizure by Agent
Perry was unreasonable both when he directed that the package be sent to
Albuquerque and when he participated in the opening of the package in Albuquerque.
We remand the case on the question of whether there was state involvement in the
original opening of the package by the Denver station employee.
{16} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge

JONATHAN B. SUTIN, Judge
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