Rodriquez v. State

• Decision Date: 06 June 1978
• Docket Number: No. 11699,11699
• Citation: 91 N.M. 700,580 P.2d 126,1978 NMSC 46
• Parties: Juan Garza RODRIQUEZ, Petitioner, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 126

580 P.2d 126

91 N.M. 700

Juan Garza RODRIQUEZ, Petitioner, v. STATE of New Mexico, Respondent.

No. 11699.

Supreme Court of New Mexico.

June 6, 1978.

[91 N.M. 701] Ken Cullen, Albuquerque, for petitioner.

Toney Anaya, Atty. Gen., Santa Fe, for respondent.

OPINION

SOSA, Justice.

On September 17, 1976, Tommy Dean Jones gave George Hanks a ride over to the house belonging to the defendant Juan Rodriquez. Not knowing the owner of the house, Jones remained in the car waiting for Hanks. After about fifteen minutes had elapsed, Jones got out of the vehicle and approached the house.

Once Jones was close enough to hear voices coming from within the house he heard someone, whom he could not identify, discuss needing a "fix." Jones then left the house and went to a phone booth where he called the Hobbs police department. Pursuant to this phone call an officer met Jones. Jones explained to the officer that he had a friend in the house in which a "fix" was being discussed. The officer after speaking with Jones decided to call his supervisor.

The supervisor then assembled six officers around the defendant's house. Four of the officers stationed themselves between the defendant's parked vehicle and his house. Three of the officers testified that they could only see silhouettes on the window shades but that they heard a "click" from a rifle. All were in the immediate vicinity of the defendant's open window. The fourth officer testified that he saw the defendant holding a rifle when he peered into the defendant's home from right outside the window. Meanwhile, the other two officers, upon entering the private property of the defendant, heard something coming from within the residence that sounded like the bolt of the rifle being opened and closed. One of the officers then proceeded to the front door, knocked and announced himself. Upon knocking on the door, the officers heard feet shuffle and the toilet flush. Defendant opened the door pursuant to the officer's request.

Once the door was opened, the two officers at the door observed from the threshold narcotics "paraphernalia" on the coffee table behind the defendant. When they observed the defendant start to clean up the table, they entered the home. Three of the officers were ordered into the house to keep the three people in the house from speaking with one another. One of the officers seized the items on the coffee table and then, with another officer, went into the bedroom and began searching. During the search a rifle was found in plain view resting up against a wall in a closet which had no door attached. The two conducting the search were ordered to radio the serial number of the rifle into the station. It was reported stolen, so the defendant was taken into custody.

Upon the departure of the defendant to the police station the search continued. Within the closet a green sleeping bag was found. The officers unrolled the sleeping bag and found eight tinfoil packets and two plastic baggies, later found to contain heroin.

The defendant was charged in three separate informations with receiving stolen property (the rifle), trafficking in heroin and escape from custody. The defendant filed two pretrial motions: (1) a motion to suppress evidence; and (2) a motion to dismiss escape charges.

A pretrial hearing was held on January 24, 1977, and the motions were denied. Throughout the trial the motions were renewed and denied.

When the State sought to place the rifle into evidence, the defendant objected, stating his reason, but the objection was overruled.

The causes were tried to a jury, defendant was convicted of all charges and sentence was imposed. Notice of appeal was timely filed.

The Court of Appeals heard the matter and affirmed the convictions of the defendant on the grounds that the Court of Appeals was unable to review the contentions urged in regards to the search and seizure issues because neither Jones' affidavit nor the preliminary hearing transcript was included in the appellate record. The Court of Appeals asserted that the fact that the defendant renewed his motions during trial added nothing. The statement and the transcript were still missing from the appellate record and it was incumbent upon defense counsel to have included within the appellate record such matters as might be necessary for review by that court. The Court of Appeals concluded that, absent the statement and the transcript considered by the trial court, they had no basis upon which to review the appellant's contentions. We reverse in part and affirm in part.

I. In reviewing the trial court's decision on the issue raised by defendant's motion to suppress, the facts to be examined on appeal are those facts elicited before the trial court at the hearing on the motion to suppress. State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967). Once the trial court has denied a motion to suppress, the question on appeal is whether the facts before the trial court supported its decision as to the reasonableness of the arrest and seizure; and this decision will not be disturbed in the face of substantial evidence. Deltenre, supra.

In the case at bar the motion to suppress was again asserted at trial. Although it is true that the defendant did not attach the transcript and affidavit from the preliminary hearing, once he reiterated his motion in the trial proper, the Court of Appeals had a record from which to review such denial of the motion. In the defendant's brief-in-chief to the Court of Appeals he indicated all the areas of the transcript which would support his motion to suppress.

We, therefore, believe that the appellant fulfilled the requirement which is to insure that a correct and sufficient record is obtained for review on appeal. State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). Our decision in this matter is limited to this set of circumstances since we believe that the trial record revealed the impropriety of the search. We therefore reverse the Court of Appeals on this point.

II. Upon the defendant opening the door for the officers, he was informed by one officer that they were requested to make a "welfare" inquiry about Hanks. It appears from the record that the defendant then turned toward the table and began to tamper with the items on the coffee table. At that point, after having seen the narcotics paraphernalia in plain view, the officers entered the residence and took the items on the table into their possession all over the objection of the defendant.

The defendant argues that the officers intruded on his property with the purpose of conducting a drug raid but under the guise of a "welfare" inquiry. He urges this Court not to apply the plain view doctrine since in order to invoke the doctrine the officers must lawfully be in a position to enable them to see what is allegedly in plain view. State v. Ledbetter, 88 N.M. 344, 540 P.2d 824 (1975).

It is our opinion that the circumstances presented here allowed the officers to lawfully enter upon the defendant's property in order to inquire as to the welfare of Hanks. The police were investigating the possibility of a serious crime being committed. It was reasonable for the officers to respond in this manner. The defendant voluntarily opened the door at the lawful request of the police, thus exposing the paraphernalia to the plain view of the officer. See Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963).

If an officer is lawfully in a position which exposes contraband or evidence to plain view, the evidence may be seized without benefit of a search warrant. Merely seeing those objects which are in plain view does not constitute a search. State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966); State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct.App.1969), cert. denied,80 N.M. 198, 453 P.2d 219 (1969). "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Because the paraphernalia on the coffee table was observed from the threshold of the doorway by the officers in plain view prior to their entry, the evidence was not obtained as a result of a search. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

III. The defendant next contends that the officer did not have probable cause to arrest. He urges that, if there was no probable cause, the arrest was unlawful, and therefore, the defendant cannot be charged with escape. However, since the officer was lawfully in a position which exposed the narcotics paraphernalia to the officer's plain view, this provided sufficient probable cause for the police to believe that a felony was being or had been committed. If an officer believes, and has good reason to believe, that a person has committed or is about to commit a felony, he may arrest without a warrant. This is to say that an officer must have probable cause to believe that a felony has been or is about to be committed and that the person arrested committed or is about to commit it. State v. Darst, 65 Wash.2d 808, 399 P.2d 618 (1965).

The probable cause essential to support an arrest without a warrant is a belief based upon facts within the knowledge of the arresting officer, persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested person guilty. Henry v. United...