1998 -NMCA- 177, State v. Ingram

• Decision Date: 06 October 1998
• Docket Number: No. 18,640,18,640
• Citation: 970 P.2d 1151,126 N.M. 426,1998 NMCA 177
• Parties: , 1998 -NMCA- 177 STATE of New Mexico, Plaintiff-Appellee, v. Jerry Lee INGRAM, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1151

970 P.2d 1151

126 N.M. 426, 1998 -NMCA- 177

STATE of New Mexico, Plaintiff-Appellee, v. Jerry Lee INGRAM, Defendant-Appellant.

No. 18,640.

Court of Appeals of New Mexico.

Oct. 6, 1998.

Certiorari Denied, No. 25,433,

Nov. 19, 1998.

Tom Udall, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Assistant Public Defender, Santa Fe, for Appellant.

OPINION

WECHSLER, Judge.

¶1 Defendant Jerry Lee Ingram appeals the district court's denial of his motion to suppress marijuana and cocaine evidence seized during a traffic stop, contending that the items seized were the fruit of an unlawful search or an unreasonable detention by police officers. Defendant also appeals his sentence of 364 days of imprisonment for failure to have a valid driver's license, claiming that the sentence is illegal. We reverse the denial of Defendant's motion to suppress, and we vacate the 364-day sentence.

Background

¶2 Shortly before 7:00 p.m. on September 16, 1996, Tucumcari Police Officer Joseph Alvidrez stopped a car driven by Defendant because neither Defendant nor his passenger was wearing a seat belt. In the course of the stop, Officer Alvidrez learned that Defendant did not have a valid driver's license. He also noticed that the passenger was acting in a nervous manner. He asked the passenger to get out of the vehicle, patted him down, and arrested him as a result of the pat down. While he was dealing with the passenger, Officer Alvidrez called for backup. Officer Charles Aguirre responded. Officer Alvidrez told Officer Aguirre to pat down Defendant. Defendant had not been placed under arrest at this time, but neither was he free to leave, because Officer Alvidrez intended to cite him for the seat belt violation and lack of a valid driver's license.

¶3 Instead of patting down Defendant, Officer Aguirre asked him to step out of his car and to empty his pockets. The officer admitted that his "request" could have been interpreted as a directive. Defendant pulled something from his pockets, but seconds later, without disclosing what was in his hands, he turned and fled. The officers gave chase, and Defendant ran into an alley. Officer Aguirre tackled Defendant and as he fell down, Defendant threw some items over a fence. The items turned out to be marijuana, cocaine, and a twenty dollar bill. Defendant was arrested and charged with possession of cocaine, possession of marijuana, failure to use a seat belt, and driving without a valid license.

¶4 Defendant sought to have the drug evidence suppressed. After a hearing, his motion was denied. Defendant entered a conditional guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and State v. Hodge, 118 N.M. 410, 418, 882 P.2d 1, 9 (1994), reserving the right to appeal the denial of his motion to suppress. The court sentenced Defendant to serve eighteen months on the cocaine charge, six months on the marijuana charge, and 364 days on the driver's license charge, and fined Defendant $25 on the seat belt violation. This appeal followed.

Suppression of the Evidence

¶5 Defendant contends that the district court erred in failing to suppress the cocaine and marijuana he tossed while being chased by the officers, claiming that the evidence seized was the fruit of an unlawful search or an unreasonable detention by the officers. In reviewing the denial of a motion to suppress, the appropriate standard is whether the law was correctly applied to the facts, viewing them in a light most favorable to the court's ruling. See State v. Esguerra, 113 N.M. 310, 313, 825 P.2d 243, 246 (Ct.App.1991). But we review the application of the law to the facts de novo. See State v. Flores, 1996-NMCA-059, p 6, 122 N.M. 84, 920 P.2d 1038. Under this standard, we reverse the district court's denial of Defendant's motion to suppress and remand for further proceedings consistent with this opinion.

1. Unreasonable Search

¶6 The Fourth Amendment of the United States Constitution, which applies to the states through the Fourteenth Amendment, proscribes unreasonable searches, as does Article II, Section 10 of the New Mexico Constitution. See Mapp v. Ohio, 367 U.S. 643, 648, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Gutierrez, 116 N.M. 431, 444, 863 P.2d 1052, 1065 (1993). It is well-established doctrine that a police officer, in an encounter with a citizen, may conduct a protective search, known as a Terry search, to ensure that the individual is not armed. See Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Eskridge, 1997-NMCA-106, p 24, 124 N.M. 227, 947 P.2d 502 (an officer concerned about his or her personal safety may check for weapons during an investigatory stop when the officer reasonably believes an individual may be armed and dangerous). The purpose of such a Terry search is to allow the officer to conduct an investigation without fear of violence. See Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Flores, 1996-NMCA-059, p 17, 122 N.M. 84, 920 P.2d 1038 (a Terry search is allowed for the limited purpose of protecting the investigating officer).

¶7 A Terry search permits an officer to pat down the outer clothing of the individual to feel for weapons. See 392 U.S. at 29, 88 S.Ct. 1868. A protective search may be unreasonable when it extends beyond ensuring that the person is not armed. See id. at 29-30, 88 S.Ct. 1868 (an officer may not place his or her hands in the individual's pockets or under the outer surface of an individual's garments until the officer feels weapons, and then the officer may merely reach for and remove the weapons); Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (an officer reaching into an individual's pocket without first conducting "an initial limited exploration" is unreasonable); see also Flores, 1996-NMCA-059, p 17, 122 N.M. 84, 920 P.2d 1038 (absent probable cause, a Terry search for weapons may not be expanded into a search for evidence of a crime).

¶8 In the case before us, Officer Aguirre did not feel the outside of Defendant's pocket but asked Defendant to empty his pockets at a time when Defendant was not free to leave and in a manner that the officer admitted was directive. Officer Aguirre testified that when he asked Defendant to empty his pockets, Defendant started to remove something, but at the same time, Defendant also turned and fled. The "examination of the contents of a person's pocket is clearly a search, whether the pocket is emptied by the officer or by the person under the compulsion of the circumstances." United States v. DiGiacomo, 579 F.2d 1211, 1215 (10th Cir.1978); cf. Dickerson, 508 U.S. at 378, 113 S.Ct. 2130 (manipulation of a suspect's pocket in order to ascertain its contents by feel is a search). This Court too has held that a request to empty one's pockets, under circumstances similar to those in this case, is a search without consent. See State v. Garcia, 83 N.M. 490, 492, 493 P.2d 975, 977 (Ct.App.1971). Based upon the facts presented at the suppression hearing, Officer Aguirre may have been justified in conducting a pat down for weapons, but by directing Defendant to empty his pockets, the officer exceeded the constitutionally permissible bounds of a Terry search.

2. Exclusionary Rule

¶9 Evidence which is obtained as a result of an unconstitutional search or seizure may be suppressed under the "exclusionary rule." See Gutierrez, 116 N.M. at 444-47, 863 P.2d at 1065-68; see also Dickerson, 508 U.S. at 373, 113 S.Ct. 2130 (if a Terry search goes beyond what is necessary to determine whether a suspect is armed, it is no longer valid and its fruit will be suppressed); Mapp, 367 U.S. at 655, 81 S.Ct. 1684. Having determined that Officer Aguirre exceeded the limits of a constitutionally permissible protective search by compelling Defendant to empty his pockets, resulting in a search without consent, we turn to the question of whether the drugs discarded by Defendant were the fruit of the unlawful search. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

¶10 Evidence which is obtained by exploitation of a "primary illegality" will be the fruit of that search and will be suppressed, unless an "intervening independent act of a free will" can purge the taint of the illegally seized evidence. Id. at 486, 488, 83 S.Ct. 407. The State contends that just such an intervening event occurred when Defendant threw away the contraband, thereby abandoning the property, and that once Defendant abandoned the property the officers found the items in plain view. Property that is abandoned normally may be admissible. See Esguerra, 113 N.M. at 314, 825 P.2d at 247. However, when the "abandonment was coerced by or otherwise the fruit of unlawful police action ... courts have not hesitated to hold that property inadmissible." 1 Wayne R. LaFave, Search and Seizure § 2.6(b), at 584-85 (3d ed.1996) (footnotes omitted). Professor LaFave notes that abandonment of property in the face of an illegal search and seizure must result in suppression of the seized evidence because to hold otherwise is "an invitation to police to engage in illegal [actions]." Id. § 2.6(b), at 585 n. 69.

¶11 The distinction between voluntary abandonment and coerced discard of property is an important one that our previous opinions have not directly addressed. Our courts have reviewed voluntary abandonment in contexts in which alleged illegal police activity took place after the abandonment of the property. In Esguerra, the trial court admitted evidence seized after a warrantless search of the defendant's knapsack. See 113 N.M. at 314, 825 P.2d at 247. Police officers found the knapsack in the parking lot of a motel after having entered the defendant's motel room without a valid search warrant. See id....