State v. Bedolla

• Decision Date: 03 January 1991
• Docket Number: No. 11949,11949
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Miguel BEDOLLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 588

806 P.2d 588

111 N.M. 448

STATE of New Mexico, Plaintiff-Appellee, v. Miguel BEDOLLA, Defendant-Appellant.

No. 11949.

Court of Appeals of New Mexico.

Jan. 3, 1991.

Certiorari Denied Feb. 14, 1991.

[111 NM 449] Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Ramon I. Garcia, Roswell, for defendant-appellant.

OPINION

ALARID, Chief Judge.

Defendant appeals his conviction for possession with intent to distribute cocaine. Defendant claims (1) the stop of his vehicle was constitutionally impermissible; (2) his subsequent consent was not voluntary and was an exploitation of the prior impermissible stop and detention; and (3) the drug evidence must be suppressed as fruit of the poisonous tree. We reverse because the search that led to the cocaine was the product of an illegal stop and because defendant's consent to search his motel room was tainted by the illegal stop.

FACTS

Police officers received an anonymous Crimestoppers' tip that a man named Frank and another man, who had a purple Nissan pickup truck with California plates, were dealing cocaine out of a room at the Navajo Motel. The officers went to the Navajo Motel, and, after more than an hour, a purple Nissan drove up, and three Spanish males exited the vehicle and went into a room at the motel. After some time, four people came out of the motel and got into two vehicles, the purple Nissan and a blue Nissan with California plates. Both vehicles drove away from the motel. During this time, the officers did not notice anyone arrive in cars, briefly visit the room, and then leave. Apparently the blue vehicle had been at the motel during the whole surveillance time. Both vehicles departed the motel around dinner time.

The officers followed the purple pickup and stopped it about a quarter of a mile from the motel. The vehicle was not stopped for any traffic violation, and there were no signs of any criminal activity that the officer observed either taking place in the truck or having taken place at the motel. The only reason the truck was stopped was because of the Crimestoppers' tip. The officer wanted to confirm or dispel the information given by the informant. The officer called for assistance before making the stop, so at the time of the stop four officers were present.

Officer Lara was the main person confronting defendant at this time. He conversed with defendant on four topics at the time of the stop: (1) identification; (2) consent; (3) possible deals; and (4) defendant's wife and children, who were present. We understand from the testimony that the officer first asked for identification, then told defendant he was investigating the tip.

Officer Lara asked defendant to consent to a search of the motel room. Defendant asked whether a warrant was needed. The officer said a warrant was needed. The officer also told defendant, "I believed, based on the information and corroboration at this point, I believe I had maybe enough probable cause to get a warrant."

After Officer Lara asked if defendant would consent to the search of his room, defendant said there were drugs in his room, and, if the police would just let him go back to California, he would not come back to Roswell. Officer Lara's impression of this was that defendant was trying to elicit some sort of bargain from him. Officer Lara responded that he could not say anything until he determined the amount of drugs in the room.

Officer Lara could not remember whether he or defendant brought up the subject of defendant's family. Another officer said defendant brought it up. When the officer told defendant what he was investigating, defendant began to get nervous and looked in the direction of his wife and children. The officer told defendant that if drugs were found in the room, his wife would not be charged and defendant's children could stay with his wife.

The officers and defendant went back to the motel. Defendant was given his Miranda rights. A consent to search form was filled out. Defendant read it and signed it before the room was searched. Defendant's wife was never charged and the children were never taken away from her.

DISCUSSION

Defendant argues that the stop of his truck was unlawful and that both his subsequent consent and the drug evidence must be suppressed as fruit of the poisonous tree. The state contends that due to defendant's subsequent consent, the legality of the stop is not at issue because "New Mexico follows the rule that a voluntary consent can validate what might otherwise be an illegal search and seizure." The state cites and quotes dicta from State v. Cohen, 103 N.M. 558, 563, 711 P.2d 3, 8 (1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2276, 90 L.Ed.2d 719 (1986), and cites State v. Hadley, 108 N.M. 255, 771 P.2d 188 (Ct.App.1989), and State v. Ruud, 90 N.M. 647, 567 P.2d 496 (Ct.App.1977). We address both whether the stop was legal and whether a voluntary consent alone always purges the taint of prior police illegalities. ¹ We conclude the stop was illegal, and under New Mexico law and the applicable United States Supreme Court rulings, it tainted the search. See State v. Cohen; State v. Gilbert, 98 N.M. 530, 650 P.2d 814 (1982); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

1. The Validity of the Stop

The trial court, relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), found the initial stop and detention valid. We disagree. Terry was a limited decision permitting brief investigative detentions where the police officer "is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing ... in an attempt to discover weapons which might be used to assault him." 392 U.S. at 30, 88 S.Ct. at 1884. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the court stated the purpose of the limited weapons search "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." 407 U.S. at 146, 92 S.Ct. at 1923.

Moreover, in order to justify a Terry-type stop in New Mexico, our cases require much more in the way of articulable facts than the officers had in this case. See State v. Barton, 92 N.M. 118, 584 P.2d 165 (Ct.App.1978) (significant corroboration through police investigative work of informant's tip justified investigatory stop); State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977) (inarticulate hunch insufficient to meet reasonable suspicion standard); State v. Hall, 90 N.M. 554, 566 P.2d 103 (Ct.App.1977) (stop valid because circumstances and events were all consistent with officer's experience with cars hauling marijuana).

Barton presented facts similar in critical detail to this case. An anonymous informer related significant details about four people at a motel possessing heroin, and about to leave for Oklahoma. The informant provided names, vehicle type and description, the room number, and the type and quantity of drug. The police went to the motel and investigated. They found the suspects had checked out and departed. They found evidence in the room consistent with heroin use and possession. This court said,

At this point, the sheriff and Deputy West had three items of information: 1) information from motel personnel, 2) information from the search of the motel rooms, and 3) informer's information which had been verified. These items were sufficient to warrant the officers, as men of reasonable caution, to believe that an offense had been or was being committed.

92 N.M. at 120, 584 P.2d at 167.

Barton illustrates the type of follow-up investigation our cases require where police are relying on an informer's tip to sufficiently justify a subsequent stop. The facts of Barton are readily distinguishable from the facts before us. In this case, the officers were present at the motel for over an hour before seeing a vehicle matching that described by informant. Yet, they did not attempt to corroborate any of the tip's information by speaking with the motel personnel until after the search. Despite the hour-long surveillance of room 125, and following defendant's truck for approximately one-quarter mile, their investigative work yielded nothing consistent with criminal behavior and corroborated nothing more of the tip than that the purple Nissan vehicle existed, that it had California tags, and that it was driven by an unidentified person. The arresting officer testified that the vehicle was stopped solely to investigate the tip.

Our recent case of State v. Therrien, 110 N.M. 261, 794 P.2d 735 (Ct.App.1990), contains applicable language. In Therrien, we reversed a conviction for marijuana possession because the affidavit used to secure the search warrant was insufficient. The insufficiency related to the veracity prong of the Aguilar-Spinelli (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), overruled in part, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) test. This court said,

The only confirmation of the caller's information in this case (aside from the statement of the confidential informant, which we have already held cannot be credited) related to descriptions of the premises to be searched and of two vehicles parked on the property. The corroborated information was in no sense incriminatory. Also, it was so readily available to any member of the public that the caller's accuracy in this regard was not probative of his accuracy regarding covert criminal activity at the location.

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The function of anonymous tips, however, is to direct police investigative...