October 28, 2015 – State of New Mexico v. Lamont Swain, No. 34,047

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	OCTOBER 28, 2015
NO. 34,047
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
LAMONT SWAIN,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DE BACA COUNTY
Matthew J. Sandoval, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellant
Garrett Law Firm, P.A.
Michael T. Garrett
Clovis, NM
for Appellee

OPINION
ZAMORA, Judge.
{1} 	The State of New Mexico appeals from an order granting a motion to suppress
evidence based on an unconstitutional sobriety checkpoint. The State raises a single
issue on appeal: whether the lack of advance publicity makes a sobriety checkpoint
unconstitutional, where the remainder of the factors in City of Las Cruces v.
Betancourt, 1987-NMCA-039, ¶ 13, 105 N.M. 655, 735 P.2d 1161, are met. We hold
that it does not and, therefore, reverse.
I. 	BACKGROUND
{2} 	The facts are largely undisputed. Defendant Lamont Swain was charged with
concealing identity, driving while under the influence of intoxicating liquor or drugs
(DWI), and four counts of possession of a controlled substance following his arrest
for refusing to show his driver’s license at a sobriety checkpoint. Defendant filed a
motion 	to 	suppress 	evidence 	on 	the 	grounds 	the 	sobriety 	checkpoint 	was
unconstitutional because the State failed to comply with the final Betancourt factor
relating to advance publicity. Id.
{3} 	Sergeant Herbert Hinders of the New Mexico State Police prepared the plan and
supervised the checkpoint in De Baca County, between Santa Rosa and Fort Sumner.
Sergeant Hinders sent an e-mail to a radio station a month before the scheduled
checkpoint with a request to publicize the roadblock. He did not request confirmation

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of the radio station’s receipt of his e-mail and did not know whether the station
received his e-mail. Sergeant Hinders also did not listen to the radio station to confirm
the checkpoint was publicized and did not seek publication in the county newspaper.
II. 	DISCUSSION
{4} 	A sobriety checkpoint is a seizure. State v. Bates, 1995-NMCA-080, ¶ 9, 120
N.M. 457, 902 P.2d 1060 (stating “there is no question that a roadblock is a seizure”).
“Whether a search and seizure was constitutional is a mixed question of law and fact.”
State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836, overruled on
other grounds by State v. Leyva, 2011-NMSC-009, 149 N.M. 435, 250 P.3d 861. “We
review factual 	determinations by the trial court under a substantial evidence
standard.” 	Duran, 	2005-NMSC-034, 	¶ 	19. 	“We 	review 	the 	lower 	court’s
determination of legal questions de novo.” Id.
{5} 	A sobriety checkpoint “is constitutionally permissible so long as it is reasonable
within the meaning of the fourth amendment as measured by its substantial
compliance with [eight guidelines].” Betancourt, 1987-NMCA-039, ¶ 16. The eight
factors include: “[(1) the r]ole of supervisory personnel[, (2) r]estrictions [on]
discretion of field officers[, (3) s]afety[, (4) r]easonable location[, (5) t]ime and
duration[, (6) i]ndicia of official nature of the roadblock[, (7) l]ength and nature of
detention[, and (8) a]dvance publicity.” Id. ¶ 13.

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{6} 	The district court found that the checkpoint plan was compliant with all but the
advance publicity factor. The district court based its finding on the following facts:
(1) the radio station never received an e-mail from Sergeant Hinders, (2) Sergeant
Hinders did not verify that the e-mail had been opened or received, (3) Sergeant
Hinders did not have any personal knowledge of whether the checkpoint had been
publicized, (4) Sergeant Hinders did not seek to have the checkpoint publicized in the
county newspaper, and (5) the radio station from which Sergeant Hinders sought the
advance publicity did not reach the county in which the checkpoint was located. The
district court found that, while the State attempted to publicize the checkpoint in
advance, it did not act reasonably to provide advance publicity and, therefore, it did
not substantially comply with the Betancourt factors.
{7} 	For the purpose of discussion, we note that no evidence was presented
regarding the radio station’s broadcast range at trial. We also note that the only
mention of the advance publicity issue came in Defendant’s closing argument. We
therefore decline to accept the district court’s finding that “[a]t this point it’s
uncontroverted that the radio station that Sergeant Hinders attempted to publicize on
does not reach De Baca County.” Other than this exception, the district court’s factual
findings are supported by substantial evidence. However, Sergeant Hinders’ deficient
attempts to publicize are not the central issue to this appeal. The question before us

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is whether a lack of advance publicity related to an otherwise Betancourt-compliant
roadblock renders the roadblock constitutionally invalid. We hold that it does not.
{8} 	In Betancourt, this Court analyzed a sobriety roadblock within the context of
the Fourth Amendment to the United States Constitution. Betancourt, 1987-NMCA-
039, ¶¶ 9, 14. We noted that because of the Fourth Amendment’s protections against
unreasonable searches and seizures, “the reasonableness of any roadblock will be very
closely scrutinized.” Id. ¶ 10. We presented eight guidelines to be considered in
determining the reasonableness of a roadblock and emphasized that “we do not
foreclose consideration of other relevant factors where appropriate and we hold that
no one guideline is necessarily dispositive of the issue[.]” Id. ¶ 13. Post-Betancourt,
two subsequent appellate decisions of this Court, discussed below, relate directly to
the advance publicity guideline. Guiding those decisions was our holding in
Betancourt where we noted, with regard to advance publicity, that “[t]he deterrence
value of any roadblock and its reasonableness for sobriety checks will be enhanced
if given widespread advance publicity.” Id. ¶ 13. In Betancourt, advance publicity
concerning the sobriety roadblocks was disseminated to a local radio station for
release.
{9} 	In State v. Olaya, 1987-NMCA-040, 105 N.M. 690, 736 P.2d 495, filed on the
same day as Betancourt, police officers were given permission to establish a

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roadblock at a location of their choice. “They were required to use reflectors, marked
units, and a stop sign.” Olaya, 1987-NMCA-040, ¶ 3. They were to stop all privately
owned east bound vehicles in order to check for driver’s licenses, registration, and
proof of insurance. Id. There was no advance publicity. Id. ¶ 22. The Court applied the
Betancourt guidelines, noted the lack of advance publicity, and held that “[b]ecause
no one guideline is dispositive, and because there was substantial evidence to support
the [district] court’s conclusion that the officers in this case did not have or [did not]
exercise unbridled discretion [that] the roadblock was valid.” Id.
{10} 	In Bates, law enforcement sent out a news release to the media identifying dates
and location of the checkpoint. The defendant argued that the media either gave the
wrong location, or that the information was generalized when it was simply stated that
there would be stepped-up DWI checkpoints to deter drunk driving during the holiday
weekend. 1995-NMCA-080, ¶ 5. Consistent with 	Betancourt, 	the Court first
noted,“[i]n determining the reasonableness of a roadblock, all the factors must be
considered, and none is dispositive but the role of supervisory personnel and the
restrictions on discretion of field officers.” Bates, 1995-NMCA-080, ¶ 22. In
specifically addressing the advance publicity, the Court held that “[w]hether or not
there [was] advance publicity is not dispositive of the reasonableness of a DWI
roadblock[,]” and the facts in that case “were legally sufficient to show the

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reasonableness of the roadblock under both the New Mexico and United States
Constitutions.” Id. ¶¶ 26-27 (citing Bentancourt, 1987-NMCA-039, ¶ 13).
{11} 	We again affirmed this principle, four months after Bates, in State v. Madalena,
1995-NMCA-122, 121 N.M. 63, 908 P.2d 756. We declared that “the facts and
circumstances of each road block must be examined in light of the guidelines
articulated in Betancourt.” Madalena, 1995-NMCA-122, ¶ 33. In Madalena, the
parties did not contest the lack of advance publicity. Id. ¶ 32. Instead, the defendant
challenged the constitutionality of the entire practice of DWI checkpoints under
Article II, Section 4 and Article II, Section 10 of the New Mexico Constitution. Id. ¶
1. We held “that a sobriety checkpoint conducted in substantial compliance with the
eight Betancourt factors is constitutional under the New Mexico Constitution.” Id. ¶¶
26, 32.
{12} 	In the present case, Sergeant Hinders attempted, but failed, to comply with the
advance publicity requirement by e-mailing the radio station with a request for
publication of the checkpoint, though the radio station never received it. Sergeant
Hinders did not verify that the e-mail had been opened or received, did not have any
personal knowledge of whether the checkpoint had been publicized, nor did he seek
to have the checkpoint publicized in the county newspaper. Whether Sergeant

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Hinders’ attempt to generate advance publicity of this checkpoint satisfies the final
Betancourt factor is a question for another day.
{13} 	Based on our longstanding case law, a lack of advance publicity, without more,
is simply not sufficient to find that a DWI checkpoint constitutes an illegal seizure.
We take this opportunity to reaffirm Bates and Olaya inasmuch as each case stands
for the proposition that advance publicity, while beneficial from a deterrence
perspective, is not dispositive with respect to the illegal search and seizure analysis
under the Fourth Amendment and Article II, Section 10 of the New Mexico
Constitution. See Bates, 1995-NMCA-080, ¶ 26; Olaya, 1987-NMCA-040, ¶ 22.
While Betancourt stated that the reasonableness for a sobriety checkpoint would be
enhanced if given widespread advance publicity, we do not take this to mean that the
last factor is a mere disposable accessory to the other seven factors resulting in either
its wholesale disregard, or is it an invitation for potential abuse that would effectively
remove it from the Betancourt analysis entirely.
CONCLUSION
{14} 	The advance notice factor is merely one of eight factors to be considered in
determining the reasonableness of a checkpoint. Because no argument was made that
the remaining Betancourt factors were not met, and that the advance publicity factor
is not dispositive, we hold that the checkpoint was constitutional. For the forgoing

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reasons, we reverse the district court’s order granting Defendant’s motion to suppress
evidence.
{15} 	IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
MICHAEL D. BUSTAMANTE, Judge