State v. Bidegain
| Decision Date | 08 October 1975 |
| Docket Number | No. 10515,10515 |
| Citation | 541 P.2d 971,1975 NMSC 60,88 N.M. 466 |
| Parties | STATE of New Mexico, Petitioner, v. Yetta J. BIDEGAIN and Louis M. Grant, Respondents. |
| Court | New Mexico Supreme Court |
This cause is before us upon a writ of certiorari directed to the New Mexico Court of Appeals, which reversed the convictions of the defendants for unlawful possession of 8 ounces or more of marijuana, contrary to the prohibition contained in § 54--11--23, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp.1973). State v. Bidegain and Grant, 540 P.2d 864 (Ct.App.) opinion issued May 28, 1975. No claim is made that the Court of Appeals erred in reversing the conviction of Bidegain. Therefore, we concern ourselves only with the decision of the Court of Appeals insofar as it reversed the judgment of conviction of Grant. We reverse the Court of Appeals to this extent and remand the cause to that court for whatever further action is appropriate.
The question presented is whether the Court of Appeals correctly held that the trial court erred in denying Grant's motion to suppress the marijuana as evidence. The marijuana was seized in a warrantless search of an automobile which Grant was driving. He was stopped by the New Mexico State Police in a routine driver's license and vehicle registration check. He produced an Arizona driver's license and a Connecticut registration certificate, but the registration certificate showed the vehicle to be registered in another person's name. In view of this, the police decided to make a computer check by radio to determine if the vehicle was stolen. This consisted of one of the officers returning to his vehicle, which was parked nearby, and sending a radio message to a computer center known as the N.C.I.C., which would, in approximately six seconds, advise whether or not the vehicle had been reported as stolen. It turned out that the computer was inoperative at the time.
While the one officer had gone to his vehicle to make the computer check, the other officer explained to Grant what was being done and the purpose for the computer check. In the course of their conversation, the officer asked Grant what he had in the trunk of the automobile. At least one of the purpose for asking this question was to determine if Grant knew what was in the trunk. This was relevant to a determination of whether or not the vehicle was stolen. Grant responded that he had 'luggage, suitcases.' At about this time, the officer who had attempted to make the computer check returned to the Grant vehicle, and the officer, who had been talking with Grant, asked: 'Do you mind if we look'? Grant replied, 'No, don't mind if you look.' He then got out of the automobile and unlocked and opened the trunk. The officers saw three foot-lockers which were locked. The officers smelled what they both concluded was the aroma of marijuana.
The officers then requested permission to look in the footlockers. Grant replied that he would rather the officers didn't look, because the lockers did not belong to him. Thereupon, the officers told him they smelled marijuana, that they believed marijuana was in the footlockers, and that he would be detained until they could obtain a search warrant. Grant then delivered the keys to the padlocks on the foot-lockers to the officers who opened the lockers and found them to be filled with bricks of marijuana. The officers then searched two suitcases located in a U-Haul rack on top of the automobile and found marijuana in them.
As we understand their decision, the majority of the Court of Appeals held:
(1) That the officers had no right to inquire as to what was in the trunk of the automobile, because, at that point, they lacked the probable cause necessary to secure a search warrant;
(2) That the conduct of the officers in securing Grant's consent to look into the trunk of the automobile did not meet the requirements for a voluntary consent as announced in State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668 (1968), and State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969), overruled on other grounds, 85 N.M. 118, 509 P.2d 885 (Ct.App.1973), because there was a conflict in the evidence as to when the officers stated they would get a search warrant. Grant testified that the request was made before he opened the automobile trunk, and the officers testified it was after the trunk was opened, after they had seen the locked footlockers, in the trunk, after they had smelled marijuana, after they had arrived at a belief that the marijuana was in the footlockers, after they had requested permission to look in the footlockers, and after Grant had expressed a desire that they not do so because the footlockers did not belong to him;
(3) Apparently, because of this stated conflict in the evidence, that Grant's consent to the officers to look into or search the vehicle trunk was not 'proved by clear and positive evidence with the burden of proof on the state' as required by the decision in State v. Aull, supra;
(4) That the officers acted unreasonably and without probable cause in requesting permission to look in the footlockers, because the smelling of marijuana by them could not constitute probable cause for a warrantless search in the absence of 'a foundation as to (their) expertise.'
We disagree with all of the reasoning of the Court of Appeals as we understand it, and disagree that the conduct of the officers constituted 'stop and snoop' tactics and 'harassment.'
The officers were conducting a routine check of driver's license and vehicle registrations; Grant was routinely stopped as a part of this procedure; and there is nothing in the record to indicate, and no contention has been made by Grant, that this check was not being conducted lawfully. Thus, no question of the validity of the conduct of the officers in stopping Grant is presented.
The 'snooping,' as the majority of Court of Appeals chose to describe the conduct of the officers, began after Grant, who resided in Tucson, Arizona, had produced an Arizona driver's license issued to him and a Connecticut certificate of registration showing the vehicle to be registered in that state in the name of another person. The officers then asked what Grant had in the trunk of the vehicle. He responded that he had luggage. He was then asked if he minded if they looked in the trunk. He replied that he did not mind, got out of the vehicle and personally unlocked and opened the trunk.
The quotation appearing in the majority opinion of the Court of Appeals from State v. Lewis, supra, does not support the position that the officers exceeded their authority in asking Grant what he had in the trunk of the automobile. A police officer making a lawful stop of a motorist is not precluded from making reasonable inquiries concerning the purpose or purposes for the stop. An inquiry by an officer is not automatically violative of the right of security of a motorist, because the officer lacks probable cause to secure a warrant, or even because he lacks reasonable grounds for suspecting the motorist to be guilty of a crime. There is nothing wrong with an officer asking for information or asking for permission to make a search. Permission need not be initially volunteered to constitute consent. Schneckloth v. Bustamonte, supra; United 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A search authorized by consent is an exception to the requirements of both a warrant and probable cause and is wholly valid. Schneckloth v. Bustamonte, supra; United States v. Beckham, 505 F.2d 1316 (5th Cir.1975); Meister v. C.I.R., 504 F.2d 505 (3d Cir. 1974); United States v. Heisman, 503 F.2d 1284 (8th Cir. 1974); Bradley v....
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