State v. Galio
Decision Date | 05 July 1978 |
Docket Number | No. 3276,3276 |
Citation | 1978 NMCA 68,587 P.2d 44,92 N.M. 266 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Thomas C. GALIO and Joe Cruz, Defendants-Appellants. |
Court | Court of Appeals of New Mexico |
Defendant, Galio, was convicted of one count of dismantling a motor vehicle without a license contrary to § 64-8-1(A)(2), N.M.S.A.1953 , conspiracy to dismantle a motor vehicle without a license contrary to § 40A-28-2, N.M.S.A.1953 , four counts of vehicles without manufacturer's numbers contrary to § 64-9-7, N.M.S.A.1953 , three counts of receiving or transferring stolen vehicles contrary to § 64-9-5, N.M.S.A.1953 and § 64-37-4, N.M.S.A.1953 , and one count of receiving stolen property contrary to § 40A-16-11(A) and (E), N.M.S.A.1953 . Defendant, Cruz, an employee of Galio's, was convicted on one count of conspiracy supra and one count of receiving stolen property supra. They appeal alleging several points for reversal. Point I regarding a warrantless search (inspection) is dispositive and we reverse.
A warrantless inspection, whereby the numerous criminal violations were discovered, was conducted of Galio's business premises (Auto Diagnostic and Repair Clinic) by the Albuquerque Police Department. The inspection was made pursuant to § 64-2-14, N.M.S.A.1953 which states in part:
We are not here concerned with a consent search or with probable cause to search. The sole issue is whether § 64-2-14(d) and (e), supra, meets the requirements of a warrantless search as set forth in State ex rel. Environmental v. Albuquerque Pub., 91 N.M. 125, 571 P.2d 117 (1977) and the subsequent United States Supreme Court case of Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, decided May 23, 1978. We hold that it does not.
State ex rel. Environmental v. Albuquerque Pub., supra, lists four tests. We discuss the third test of whether the warrantless inspection is a crucial part of a regulatory scheme designed to further an urgent government interest. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); Compare, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 18 L.Ed.2d 943, 87 S.Ct. 1737 (1967).
We must first decide what is an urgent governmental interest. Historically it is one that involves some inherent danger of public concern or an interest in excisable or dutiable articles as opposed to a private concern or interest. The Biswell rationale was that a close scrutiny of interstate firearms traffic was undeniably of key importance to federal efforts to prevent violent crimes and to assist the states in regulating firearm traffic within their borders. Warrantless inspections were deemed to be reasonable official conduct and essential to properly supervise firearms traffic. The Colonnade rationale was that of an interest in an historically regulated industry with deep concern in the revenues to the government. Further, it was in response to a relatively unique circumstance. See Marshall.
Unless the statutory or regulatory standards involve a relatively unique circumstance a warrant is required to make an inspection as was made in the instant case. See Marshall.
Although not enacted as a part of the law which enacted § 64-2-14, supra, § 64-37-1, N.M.S.A.1953 reflects the policy of the legislature with respect to motor vehicles which states:
That policy is similar to 29 U.S.C.A. § 651 of the Occupational Safety and Health Act, which states:
Marshall held that a warrantless search under the OSHA policy would not be reasonable under the Fourth Amendment. In light of Marshall and the foregoing cases we fail to see what urgent government interest would be served by a warrantless inspection. Our holding does not foreclose warrantless inspections in case of...
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