State v. Anderson
| Decision Date | 14 April 1988 |
| Docket Number | No. 10433,10433 |
| Citation | 107 N.M. 165,1988 NMCA 33,754 P.2d 542 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Robert ANDERSON, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The state appeals from the order of the trial court granting defendant's motion to suppress the evidence against him. The trial court found and concluded that defendant's consent to search was not voluntary, and that the officers did not have probable cause to search or arrest defendant. The docketing statement challenged all three of these rulings. Our calendar notice proposed summary affirmance, and the state filed a memorandum in opposition to the proposed disposition. Not persuaded by the state's memorandum, we affirm the order of the trial court.
On May 8, 1987, defendant was driving east on I-40 in Bernalillo County. Officer Garley, by use of a radar device, clocked defendant's car at 67 miles per hour in a 65-mile-per-hour zone. Garley stopped defendant to issue him a speeding ticket. After defendant pulled over, the officer asked him for his driver's license and vehicle registration. While defendant was looking for these items, Garley engaged him in conversation concerning his point of departure and point of destination. Defendant stated that he was on his way from Phoenix, Arizona, to Oklahoma City, Oklahoma. The information in defendant's driver's license and vehicle registration indicated that both were in proper order. The documents showed defendant was the sole owner of the car he was driving. The car was registered in Iowa, the license plates were from Iowa and defendant's driver's license had an Iowa address. Defendant was dressed in clothes with Harley-Davidson motorcycle logos. He was alone in the car, had no luggage visible in the passenger compartment except a carry-on bag, and had slept at a rest area at some point during his travels. There was a box of Kentucky Fried Chicken on the car seat. Defendant had some difficulty finding his driver's license and appeared to be nervous.
At the hearing, Garley testified that the presence of the Kentucky Fried Chicken and the carry-on bag, the travel in an easterly direction, defendant's admission of having slept at a rest area, and defendant's nervousness made him feel that he had "a reasonable suspicion based on articulable facts" to believe that defendant was carrying drugs. According to the officer, this was based on the "drug courier profile" taught to him in a law enforcement class.
When defendant gave Garley his driver's license and vehicle registration, the officer had all the information he needed to issue a speeding ticket. After defendant presented his driver's license, the officer asked him if he was carrying any narcotics. Defendant answered in the negative. The officer asked if he could look in the trunk of the car, and defendant said "yes" and opened the trunk. Garley did not ask defendant whether he could do a thorough search, nor did he ask whether he could search or look inside bags or sacks in the trunk. He had consent to search forms but decided not to use them. Garley did not inform defendant he had the right to refuse him permission to look inside the trunk.
When he looked in the trunk, Garley saw some motor oil, a sleeping bag and an opaque white cloth bag. When asked what was inside the white bag, defendant said "laundry." Upon handling the bag, Garley felt something soft, like a plastic container. He then opened the bag and pulled out clear plastic bags containing a white substance inside and two plastic bottles marked "Inositol" wrapped in a white towel. The officer asked defendant about the white substance in the clear plastic bags, and defendant told him it was a food supplement used for diabetics. Garley smelled the powder in the bags and bottles and found it to be odorless.
Garley then placed defendant under arrest for possession of a controlled substance, read him his rights, took him to the patrol car, and then radioed a second officer to bring field test kits for narcotics to the scene. Garley and the second officer both thought the white powdered substance was cocaine. They ran two field tests on the white powder in the plastic bags to test for cocaine. Both tests were negative. Nevertheless, the officers took defendant to the state police office in Albuquerque and had a wrecker tow the car into Albuquerque. At the state police office, the white powder in the bags tested positive for methamphetamine. The white powder in the plastic bottles was in fact Inositol, a supplement for diabetics.
The voluntariness of a consent to search is a factual question. State v. Valencia Olaya, 105 N.M. 690, 736 P.2d 495 (Ct.App.1987). The government has the burden of proving that a consent to search was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The determination of voluntariness involves a three-tiered analysis: (1) there must be clear and positive testimony that the consent was specific and unequivocal; (2) the consent must be given without duress or coercion; and (3) the first two factors are to be viewed in light of the presumption that disfavors the waiver of constitutional rights. United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985); State v. Cohen, 103 N.M. 558, 711 P.2d 3 (1984), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1985); State v. Valencia Olaya. The question is whether, given the totality of the circumstances, the consent was voluntary. Schneckloth v. Bustamonte.
It is for the trial court to weigh the evidence, determine the credibility of witnesses and decide if the evidence is sufficient to clearly and convincingly establish that the consent was voluntary. State v. Valencia Olaya. The appellate court reviews the evidence in the light most favorable to the trial court's decision and will uphold the decision if it is supported by substantial evidence. Id. The question is whether the trial court's result is supported by substantial evidence, not whether the trial court could have reached a different conclusion. Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 715 P.2d 462 (Ct.App.1986). The finding of facts frequently involves selecting which inferences to draw. See, e.g., State v. Tovar, 98 N.M. 655, 651 P.2d 1299 (1982). The possibility that on similar facts another trial court may have drawn different inferences and found the consent in this case voluntary does not mean that we must reverse here.
The state argues that the trial court's decision is not supported by substantial evidence. In regard to the first factor, the state argues that the testimony at the evidentiary hearing was that Garley asked defendant if he could look in the trunk of the car and defendant said that he could and opened the trunk. The trial court found that this was consent only to look into the trunk, not to search the items of luggage in the trunk. The state does not point to any evidence that would support a finding that defendant also consented to the search of the items in the trunk. See State v. Sisneros, 98 N.M. 201, 647 P.2d 403 (1982). Accordingly, the trial court's decision concerning this factor is supported by substantial evidence. Cf. State v. Valencia Olaya (evidence at suppression hearing supported a finding that police officer had the driver's unlimited consent to search the vehicle).
With regard to the second factor, the trial court found that defendant's consent to the search of the trunk was affected by the inherently coercive nature of the situation. The state concedes that Garley's testimony was identical to the officer's testimony in State v. Ruud, 90 N.M. 647, 567 P.2d 496 (Ct.App.1977), but argues that the case is distinguishable because the initial stop in Ruud was found to be illegal, and because the defendant in Ruud was female. Neither of these points is persuasive. As to the first, it is true that the stop in Ruud was illegal while the initial stop in this case was legal. However, we view the trial court's decision as incorporating a finding that the detention of defendant beyond what was necessary to issue a speeding ticket was unreasonable. Under these circumstances, the trial court's finding that the atmosphere was coercive must be sustained. Cf. State v. Cohen (detention of defendants held reasonable, because based on reasonable suspicion); State v. Valencia Olaya (where trial court found brief detention was reasonable, defendant's unlimited consent to search of vehicle was not tainted). Both Ruud and the present case involve detentions beyond what was permissible. As to the second point, we do not find the difference in stature and gender between the defendant in Ruud and defendant here to be a sufficient basis for distinguishing the holding in Ruud.
The state also argues that every traffic stop involves a detention and questioning and, thus, if the consent here can be considered in some way coerced, no consent would ever be voluntary. We...
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