State v. Bloom
| Citation | 90 N.M. 226,561 P.2d 925 |
| Decision Date | 16 March 1976 |
| Docket Number | Nos. 2121,2122,s. 2121 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Frank BLOOM and Ralph Mikorey, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Bloom was convicted of possession of marijuana contrary to § 54--11--23(B)(3), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, 1962, Supp.1975), aggravated assault upon a police officer contrary to § 40A--2--21(1), N.M.S.A.1953 and escape from the custody of a peace officer contrary to § 40A--22--10, N.M.S.A.1953 . Mikorey was convicted of the same count of possession of marijuana and escape from custody charges, and also of battery upon a peace officer contrary to § 40A--22--23, N.M.S.A.1953 . Both defendants appeal asserting: (1) the trial court erred in refusing to suppress the marijuana seized because the seizure was a result of an illegal stop, arrest and seizure; (2) the police officer was not in the lawful discharge of his duties when he arrested the defendant; and (3) the marijuana conviction should be reversed for failure of the state to disclose pursuant to Rule 27 of the R.Cr.P.
Defendants' motion to suppress was on the grounds that the 'stop, search, seizure, and arrest was made without the necessary probable cause.' The following testimony is taken from the motion to suppress hearing and is taken solely from Patrolman Williams' testimony. We set forth the testimony as reported as any attempted summary would be unfair. At approximately 3:00 p.m. on January 27, 1975 Patrolman Williams, New Mexico State Police was conducting a road block checking driver's licenses and registration certificates.
Direct examination of Williams by the state.
'Q Okay, now, would you tell us what you were set up or instructed, or what you were actually doing out there in making the checks, how you conducted the checks, and so on. You stated you were looking for driver's license, stolen cars, marijuana, all of it, but what were you actually doing then in looking for these things, the next car that came?
'A That's what I was looking for.
'Q Okay. All right, lets take the next car that you said you checked. What did you do with reference to that car?
'A Driver's license-registration, like I said. I don't remember what car it was or who it was or--I don't even think I searched it, but I might have. I don't know, I mean searching, open the trunk and look in it, I don't call that searching.
'Q Okay, have you ever opened anyone's trunk and looked in their trunk without asking their consent?
'A No, sir.
'Q Or at least whether it's a valid search or not, that you felt there was reason to make such a search?
'A No, sir.
'. . .
'A I would have no reason to search it if I didn't think I had a valid reason.
'. . .
'Q Then with reference to that car that you had checked out, go ahead and tell us again, chronologically, the way you remember it happening, up to the time the vehicle in which the defendant, Mikorey, was driving came by.
'. . .
'A Well, I just flagged them down and checked their driver's license. Mikorey, he was driving. I asked him for driver's license and registration and he handed me a driver's license and a rental contract.
'Q All right, at that point was there any conversation about it being a rental car?
'A No, sir, I could see that with the contract.
'Q All right.
'A I told him to pull over to the side, then I had some more traffic backed up, I think, and I waved them on by, probably checked one more, two more cars, I don't know, you know, driver's license, registration.
'. . .
'Q Okay, and as you approached the window this time, do you recall what was said by you and by the defendant?
'A Yeah, I asked Mr. Mikorey, I asked him what he had in the trunk.
'Q Okay, why did you ask him that?
'A Why? Cause I suspected him of hauling marijuana.
'Q Why at that point?
'A Well, I could, I thought I could smell it. I didn't know for sure if I could smell it or not. I smelled what appeared to be marijuana, but I didn't know.
'Q Did you observe anything about the automobile?
'A Well, yes, it was heavily loaded, had a bunch of big paintings and stuff in the back seat, you know, which could have fit in the trunk.
'Q Okay, and you asked him then what he did have in the automobile?
'A Yes, I asked him, I said, what he had in the trunk of the car.
'Q And he answered, to the best of your recollection, by what?
'A Luggage, clothes.
'Q And what did you do then?
'A I said, 'Do you mind if I take a look?' (in the trunk)
'Q And how did he respond?
'A He said, 'No.' So he got out of the car, walked around to the trunk, started to open it, and I told him, I said, 'You realize you don't have to open the trunk.' And he wanted to know why I wanted to look in there, and I told him that we was looking for marijuana, and I said, 'We could go to town and get a search warrant,' whatever he--it would probably be better for him if we did.
'Q If you did what?
'A Went to town and got a search warrant.
'. . .
'Q All right, did you, up to that point, had you made any--well, had the defendant asked what would happen if he did not--had you made any statements as to what would happen if he did not let you look in the trunk, anything of this nature?
'A No, he never denied me that I couldn't look in the trunk.
'. . .
'Q Okay, so the trunk then was opened. Who opened it?
'A Mikorey.
'Q And what happened once the trunk was opened?
'A Okay, I asked him what he had in the suitcases and he said, 'Clothes,' and I said, 'What do you have in the gold suitcase?' which was setting on top, and he said, 'Nothing.' I said, 'Would you open it?' He opened, he pulled it out of the car first and set it on the ground.
'Q Okay, was--did he make any statement when you said, 'Would you open it?' did he make any statement or--
'A No, he didn't.
'Q--shake his head?
'A He didn't want to open it, but he didn't make any statements or anything. He hesitated, and so he picked it back up and set in the trunk of the car, and I said, 'Are you going to open that for me?' And he said, 'Okay.' So he opened it and there was some marijuana residue in there.
'Q All right, anything else in the trunk other than the marijuana, or substance you believed to be marijuana?
'A Yes, sir, I think there was two more suitcases, I believe, and a green, I don't remember what color it was, I think it was green truck, footlocker.
'Q Okay, but was the gold suitcase, was it empty other than the residue that you have described?
'A Yes, sir.
'A Not very much, you know, just a little bit on the bottom.
'A Well, like--
'Q--be a handfull?
'A Like a baggie full, or something.
'Q As much--
'A I don't know if it was that much.
'Q Approximately a baggie if it was put together?
'A Yes, sir.
'Q All right, upon the trunk being opened, did you receive any other essential sensation, anything come to your attention upon the trunk being opened?
'Q Okay.
'A I knew it wasn't that what I smelled in that suitcase, I knew it wasn't that.
'. . .
'Q Okay, so when you, in the trunk, what I refer to as the Mikorey automobile, there was an odor, a definite odor that you recognized.
'A Yes, when the trunk was opened.' Cross-examination of Williams by defendants.
'Q Okay, now, at the time that you stopped the Mikorey vehicle, did you have any reasonable cause to believe that that vehicle was unsafe or not equipped as required by law?
'A No, I knew it was hauling marijuana, or something, there was something wrong with it.
'Q Okay, did you have any reason to believe that its equipment was not in proper adjustment or repair?
'A No, I'm not a mechanic.
'Q Okay, did you have any reason to believe that the driver did not have a valid license or registration?
'A That's why I asked him, to see if he did have.
'Q I see. Did you have any reason to believe that the automobile was stolen?
'A No, I knew it was a rent car, a rental car. I suspected it, being a rental car.
'Q Then why did you stop it?
'A Why did I stop him?
'Q Yeah.
'A Because I figured he was hauling marijuana.
'Q This is before you, before you even approached the car?
'A Yeah.
'Q Now, you said that you do not search all the cars unless you have reason to, right?
'A Right.
'Q And that day did you search some of the other cars?
'A Yes, sir.
'Q I see. What were the reasons that you searched those others cars?
'A Like one I thought was a stolen vehicle, which I had run it through on the computer, but it come back that it wasn't stolen, but like California, they don't enter their vehicles until 24 hours after they have been missing and they can be further than here in 24 hours and not ever be entered in the computer, and I check them, see if their spare tire and stuff are in there. You know, usually, somebody steals a car, they got no money, so they take the spare tire out and jacks and sell them.
'Q Well, did you have any reason to believe that any of the cars that you searched were, in fact, stolen?
'A Yeah, I just said I did.
'Q Okay, what led you to believe that they might have been stolen?
'A By the way the people act, by the car they are driving. You take a 'skroag' driving a Lincoln Continental, a ten thousand dollar car and he don't even have shoes to put on, something wrong.
'Q A what? What did you call--
'A Hippie, skroag, whatever.
'. . .
'Q (Continuing by Mr. Rosenberg.) Did you encounter any vehicles like that that day?
'A Oh, yeah, I encounter a lot of them.
'Q Did you...
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