State v. Apodaca, No. 12274

• Decision Date: 25 April 1991
• Docket Number: No. 12274
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Frank Steven APODACA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1030

814 P.2d 1030

112 N.M. 302

STATE of New Mexico, Plaintiff-Appellee, v. Frank Steven APODACA, Defendant-Appellant.

No. 12274.

Court of Appeals of New Mexico.

April 25, 1991.

Certiorari Denied July 8, 1991.

[112 NM 303] Tom Udall, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Todd Hotchkiss, Timothy M. Padilla & Associates, P.C., Albuquerque, for defendant-appellant.

OPINION

HARTZ, Judge.

Defendant was convicted of possession with intent to distribute marijuana. He was stopped while driving north on Interstate 25 south of Socorro. Officer Pete Conticelli stopped the vehicle for an alleged violation of the New Mexico safety-belt statute. After inquiry regarding the ownership and destination of the vehicle, Officer Conticelli obtained permission to look in the trunk. There he found a suitcase from which he claimed he detected the odor of marijuana. With the assistance of a passing border patrol agent, Officer Conticelli broke open the suitcase; it contained the marijuana that formed the basis of defendant's conviction.

On appeal defendant challenges the denial of his motion to suppress the marijuana. He contends: (1) the officer did not have reasonable suspicion to justify the initial stop of his vehicle, (2) the stop was pretextual, (3) consent to search was illegally obtained during the course of an unjustifiably prolonged detention, (4) any consent to search was withdrawn before the suitcase was opened, and (5) the warrantless search of the suitcase was unlawful. Defendant also contends that there was insufficient evidence to establish that the alleged crime occurred in New Mexico. We affirm.

We view the evidence in the light most favorable to support the district court's ruling on the motion to suppress and the jury's verdict. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978); State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983).

I. THE STOP

The New Mexico safety belt statute, NMSA 1978, Section 66-7-372(A) (Repl.Pamp.1987) states in pertinent part:

[E]ach front seat occupant of a passenger car manufactured with safety belts in compliance with federal motor vehicle safety standard number 208 shall have a safety belt properly fastened about his body at all times when the vehicle is in motion, unless all seating positions equipped with safety belts are occupied.

Officer Conticelli testified that he stopped defendant's vehicle because the shoulder harnesses for the driver and front seat passenger were dangling from the ceiling. Defendant contends that the dangling shoulder harnesses did not establish noncompliance with the statute because the statute required only fastening the lap belt which could be disconnected from the shoulder harness. Therefore, in his view, Officer Conticelli did not have reasonable grounds to believe that defendant and his passenger were violating the law.

We find it unnecessary to decide whether defendant's construction of Section 66-7-372 is correct. Even if it is, Officer Conticelli possessed sufficient information to establish reasonable suspicion justifying the stop. We agree with the district court that police officers should not be required to know the design of the safety-belt system in every motor vehicle. Moreover, regardless of whether Officer Conticelli knew that the lap belt could be detached from the shoulder harness in defendant's vehicle, it was reasonable for him to believe that a driver or passenger who permitted the shoulder harness to dangle free was not wearing his lap belt either. A reasonable suspicion may be a mistaken one. Cf. State v. Eden, 108 N.M. 737, 779 P.2d 114 (Ct.App.1989) (reasonable but mistaken belief that snowmobile was a motor vehicle did not invalidate arrest).

II. PRETEXT

Defendant argues that the stop of his vehicle was unconstitutional under the doctrine expressed in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988). Guzman held that a stop is unconstitutional if " 'under the same circumstances a reasonable officer would [not] have made the stop in the absence of the invalid purpose.' " Id. at 1515 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (emphasis in original). As in State v. Benjamin C., 109 N.M. 67, 781 P.2d 795 (Ct.App.1989), we need not decide whether to follow Guzman, because the Guzman pretext doctrine would not invalidate the stop in this case.

The district court rejected defendant's claim under Guzman, making a specific finding that "the stop was not pretextual in nature." Officer Conticelli testified that he had a practice of stopping vehicles for violations of the safety-belt law. He stated that in the past year he had issued some fifty citations and an additional fifty warnings for such violations. He testified that he had consulted with his superiors about this practice. Defense counsel vigorously cross-examined the officer concerning his motivations for the stop, and defendant's testimony at the suppression hearing could have cast suspicion on the officer's testimony. The issue, though, is whether the evidence at the hearing was sufficient to justify the district court's determination that the stop was not pretextual. It was. See United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990).

III. PROLONGATION OF THE STOP

Defendant contends that even if the initial stop was lawful, he should have been released prior to the request to search the trunk. We disagree.

After defendant was stopped, he exited his vehicle and approached Officer Conticelli, who requested defendant's driver's license. Officer Conticelli noted that defendant carried a Texas driver's license while the vehicle bore Oklahoma license plates. During a period of less than ten minutes Officer Conticelli pursued this discrepancy. He requested the vehicle registration. Defendant could not produce one. Defendant stated that he was buying the vehicle from someone named "Jason." He also stated that he had been in El Paso and was returning the car to Jason in Oklahoma. When Officer Conticelli asked defendant how he had travelled to El Paso in the first place, defendant did not respond. When the officer asked the passengers in the vehicle where they were going, they said Ruidoso. Defendant did not respond when the officer asked him why the passengers and defendant declared different destinations. During the conversation defendant appeared nervous as he repeatedly removed and put on his sunglasses. At some point during these discussions Officer Conticelli ran a computer check on defendant's vehicle. The check came back "not on file," which the officer interpreted as meaning that the vehicle was newly registered. His suspicions aroused by the information he had obtained, Officer Conticelli requested permission to look in the trunk of the vehicle. Defendant does not challenge the district court's finding that he voluntarily consented.

We hold that the information acquired by Officer Conticelli was sufficiently suspicious to justify the relatively brief detention of defendant and his vehicle. Officer Conticelli's inquiries were appropriate police work. When Officer Conticelli requested permission to look in the trunk, there were still several suspicious circumstances that had not been resolved. Therefore, we need not rely on our holding in State v. Bolton, 111 N.M. 28, 801 P.2d 98 (Ct.App.1990), that even after reasonable suspicion has been dissipated, an officer may detain a motorist momentarily to request permission for a search. Also, because Officer Conticelli had reasonable grounds to detain defendant, we need not decide whether the latter part of the conversation took place during a detention or during a consensual encounter. See United States v. Werking (encounter between officer and driver became consensual citizen encounter once officer returned license and registration to driver); United States v. Deases, 918 F.2d 118 (10th Cir.1990) (following Werking ).

On appeal defendant makes much of Officer Conticelli's testimony that defendant and his passengers were free to leave while the officer was conducting his inquiry. Defendant suggests that this testimony meant that any suspicion must have lapsed. The officer's subjective belief, however, is not relevant to the existence of reasonable suspicion. See Bolton, 111 N.M. at 42, 801 P.2d at 112; 1 W. LaFave, Search and Seizure Sec. 3.2(b) (2d ed. 1987). The information known to Officer Conticelli justified the detention. Nothing more was required.

IV. SEARCH OF THE SUITCASE

Defendant contends that the search of the suitcase found in the trunk cannot be justified as a consent search. The state does not challenge that contention. The findings of the district court refer only to consent to search the trunk. The court justified the search of the suitcase itself on the basis of probable cause. Therefore, we consider whether there was probable cause to search the suitcase and whether that probable cause justified a search without a warrant.¹

The district court found "[t]hat probable cause existed for the search once the trunk was open and the officer identified marijuana on the outside of the suitcase." That finding was supported by the evidence. Officer Conticelli testified that when the trunk was opened he observed three small overnight bags and a suitcase. On the handle of the suitcase was a green substance that he believed to be marijuana. He leaned his head near the suitcase and smelled the odor of marijuana. He had considerable training and experience in detecting marijuana by its odor. Thus, Officer Conticelli had probable cause to believe that the suitcase contained marijuana. See State v. Capps, 97 N.M. 453, 641 P.2d 484 (1982); State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (Ct.App.1979).

To justify searching the suitcase without a warrant, however, the officer needed probable cause to search not just the suitcase but the entire vehicle. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d...