1997 -NMSC- 6, State v. Gomez

• Decision Date: 07 January 1997
• Docket Number: No. 23224,23224
• Parties: , 1997 -NMSC- 6 STATE of New Mexico, Plaintiff-Respondent, v. Alfredo GOMEZ, Defendant-Petitioner.
• Court: New Mexico Supreme Court

Page 1

932 P.2d 1

122 N.M. 777, 1997 -NMSC- 6

STATE of New Mexico, Plaintiff-Respondent, v. Alfredo GOMEZ, Defendant-Petitioner.

No. 23224.

Supreme Court of New Mexico.

Jan. 7, 1997.

T. Glenn Ellington, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, for Defendant-Petitioner.

Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Plaintiff-Respondent.

Ellen L. Bayard, Santa Fe, for Amicus Curiae NMCDLA.

OPINION

RANSOM, Justice.

¶1 Alfredo Gomez was charged with possession of lysergic acid diethylamide (LSD), a Schedule I controlled substance prohibited under NMSA 1978, Section 30-31-23 (Repl.Pamph.1989). The trial court denied a motion to suppress evidence obtained from the warrantless search of Gomez's automobile while he was under arrest. Gomez pleaded nolo contendere and reserved the right to appeal the denial of his suppression motion. In an unpublished memorandum opinion, the Court of Appeals affirmed the conviction, holding that Gomez had failed to preserve in the trial court his argument that the search was invalid under Article II, Section 10 of the New Mexico Constitution, which proscribes unreasonable searches and seizures and requires specificity and probable cause for warrants, even if permitted under the virtually same Fourth Amendment to the United States Constitution. We issued our writ of certiorari to address, first, what is required to "fairly invoke" and preserve for appellate review a search and seizure claim under Article II, Section 10; and, second, what the State must show to justify the warrantless search of an automobile.

¶2 We hold that a state constitutional claim was preserved because Gomez both invoked a principle of exigency previously recognized under the New Mexico Constitution and developed the facts needed for a ruling on that question. He thus met the requirements of Rule 12-216(A) NMRA 1996 (mandating that to preserve a question for review "it must appear that a ruling or decision by the district court was fairly invoked"). We also hold that to justify the warrantless search of Gomez's automobile, the State must show reasonable grounds for the belief that exigent circumstances existed. In this case, it was reasonable for the officer to believe exigent circumstances existed. Therefore, we affirm the conviction.

¶3 Facts and Proceedings. In his motion to supress, Gomez alleges that "Lea County Deputy Sheriff Guy Payne searched Alfredo Gomez's car--including a closed container in the car--without a search warrant, or exigent circumstances to justify a warrantless search ... [and this was] violative of the Fourth Amendment to the United States Constitution, and Section 10, Article II of the New Mexico Constitution." The trial court held a hearing on the motion, at which Deputy Payne was the sole witness. A summary of his testimony follows.

¶4 Late at night on June 13, 1994, Payne was dispatched to a "party disturbance" near Lovington, New Mexico. Arriving at the scene, Payne observed cars parked on both sides of a dirt road and fifty to sixty people walking in the road and yards. He spoke to several men to inquire whether there was a problem. They told him that if there were a problem, it would be at Alfredo Gomez's car where some "juveniles" had gathered. He drove his patrol car slowly towards Gomez's car, which was parked on the left side of the road with the passenger side closest to Payne. As he approached, Payne observed some beer on the trunk of Gomez's car, but observed no disturbance. He stopped his patrol car about eight feet away from and parallel to Gomez's car. Three men were leaning towards the passenger side of the car and focussing their attention on Gomez, who was sitting in the passenger seat.

¶5 As Payne watched, one of the men outside Gomez's car glanced around, noticed the patrol car with Payne in it, and said, "The cops!" Gomez made eye contact with Payne and began to move about frantically. Payne heard the sound of a tin container being shut and saw Gomez furtively stuff something under the front seat. Payne got out of the patrol car and Gomez got out of his car locking the opened passenger door. Payne smelled the odor of burned and unburned marijuana, and, before Gomez was able to shut the passenger door, Payne grabbed it and the two struggled briefly as Payne tried to keep the door open and Gomez attempted to shut it.

¶6 Payne handcuffed Gomez, "Mirandized" him, searched him, and secured him in the patrol car. Payne's search of Gomez's person uncovered some money and cigarette papers. By the time Gomez had been arrested and secured, additional officers had arrived on the scene. Then, looking inside Gomez's car, Payne observed marijuana scattered on the console, seat, and floorboard. He also saw a brass pipe and a pair of hemostats, items commonly used for smoking marijuana. Payne opened the door, searched the interior of the car, and seized the pipe, hemostats, marijuana, a tin container, and a fanny pack. He unzipped the fanny pack and inside it found perforated tabs of white paper, which from experience he believed to contain LSD. He also found some small "baggies" inside the fanny pack.

¶7 On cross-examination, defense counsel asked Payne whether an emergency existed to justify his warrantless search of Gomez's car. The State objected on the grounds that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), allows a search of an automobile with probable cause alone. The State asserted Payne's warrantless search was valid because New Mexico courts have followed Ross. Defense counsel responded that there was contrary New Mexico precedent. The trial court allowed Payne to answer the question and postponed argument on the legal issue raised by the State's objection until after Payne's testimony.

¶8 Payne testified further that he felt no threat to his safety after he secured Gomez in his patrol car. He felt, however, that he and the other officers had to be careful because their activities had drawn the attention of as many as one hundred onlookers. He did not believe that taking the car keys would suffice to secure the car, nor that the other officers at the scene could pay attention to the car while dealing with developing problems and with what easily could have turned into a hostile crowd. He believed the car would not have remained at the scene if he had left it unattended to obtain a search warrant. He did not know when he could get a tow truck to the scene. After the search, he did call a tow truck and, when Gomez's car was impounded, Payne returned to the police station where he turned over the drugs and paraphernalia from Gomez's car to a narcotics officer for testing.

¶9 Following Payne's testimony, the court entertained argument in which the State asserted that, from Payne's vantage point while stopped parallel to Gomez's automobile, he observed facts sufficient to establish reasonable suspicion justifying further investigation. Once Payne smelled marijuana, he had probable cause to search Gomez's automobile and its closed containers. In support of its argument that the warrant requirement does not apply to a lawfully stopped vehicle, the State cited Ross together with State v. Pena, 108 N.M. 760, 779 P.2d 538 (1989), and State v. Apodaca, 112 N.M. 302, 814 P.2d 1030 (Ct.App.1991). It argued that probable cause alone justifies searching a movable vehicle and its closed containers. The State acknowledged, however, that a "recent case from Roswell" required police to obtain a warrant for the arrest of the operator of a moving vehicle unless there are exigent circumstances. See Campos v. State, 117 N.M. 155, 870 P.2d 117 (1994) (Campos II ) (reversing State v. Campos, 113 N.M. 421, 827 P.2d 136 (Ct.App.1991) (Campos I )).

¶10 Defense counsel noted that the fanny pack, a closed container, was not in plain view when Gomez was arrested. He cited State v. Coleman, 87 N.M. 153, 530 P.2d 947 (Ct.App.1974), for the proposition that exigent circumstances were required to justify this warrantless search. In Coleman, an officer stopped the defendant's speeding car, which was being driven by an unlicensed occupant of the car. At the officer's request, the defendant followed the officer in the defendant's car to the sheriff's office where the defendant and the other occupants of the car were arrested. The officer then conducted a warrantless search of the car securely parked outside the sheriff's office. The search was held invalid because there were no exigent circumstances. Id. at 155, 530 P.2d at 949.

¶11 The State replied that Payne's testimony was reasonable and believable, noted that Pena and Apodaca were decided more recently than Coleman, and observed that whereas Pena was decided by the New Mexico Supreme Court, Coleman was a Court of Appeals opinion. Adopting Payne's testimony as factual, the court ruled that, while it did not disagree with the holding in Coleman, it regarded Coleman as distinguishable from the facts of this case. The court denied the motion to suppress, explaining that with the marijuana and paraphernalia in plain view Payne had probable cause under Pena and Apodaca to search the entire vehicle, including closed containers therein such as the fanny pack.

¶12 Preservation of Article II, Section 10 claim. The Court of Appeals refused to review Gomez's Article II, Section 10 claim because "[his] argument below not only failed to articulate why the New Mexico Constitution affords greater protection under these circumstances, but failed to even mention the state constitution." The State contends that New Mexico's independent search and seizure law does not obviate the requirements of Rule 12-216(A); that Gomez's citation to Coleman was not enough to alert the trial court to the broader-protection issue; that Gomez made less of a showing than the defendant in State v. De Jesus-Santibanez, 119 N.M. 578, 893 P.2d 474 (Ct.App.), ...