State v. Clark

• Decision Date: 09 November 1976
• Docket Number: No. 2675,2675
• Citation: 89 N.M. 695,1976 NMCA 109,556 P.2d 851
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John David CLARK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 851

556 P.2d 851

89 N.M. 695

STATE of New Mexico, Plaintiff-Appellee, v. John David CLARK, Defendant-Appellant.

No. 2675.

Court of Appeals of New Mexico.

Nov. 9, 1976.

[89 NM 695] Jan A. Hartke, Acting Chief Public Defender, Reginald J. Storment, Appellate Defender, William H. Lazar, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of possession of marijuana over eight ounces, contrary to § 54--11--23(B)(3), N.M.S.A.1953 (2d Repl.Vol. 6, 1972, Supp.1975) defendant appeals. He contends the trial court erred in denying his motion to suppress the evidence seized. We agree.

This case was assigned to the legal calendar pursuant to N.M.Crim.App. Rule 207(c). Accordingly, the facts as stated in the docketing statement are the facts for purposes of review on appeal, unless the state objects to the recitation of facts contained therein. State v. Pohl, 89 N.M. 523, 554 P.2d 984 (Ct.App.) decided September 14, 1976. The state does not dispute the facts.

On June 29, 1976 State Police Officer Bittinger noticed a U-Haul vehicle parked in front of the Buckaroo Motel in Tucumcari, New Mexico. It fit a description he had previously received of a stolen vehicle. The officer arrested the defendant for stealing the U-Haul vehicle, which in fact had been leased by defendant who violated the terms of the lease by leaving the originating state. The officer searched the front of the U-Haul, locked the vehicle, and took the keys and the defendant to the State Police station where a U-Haul representative was called. The local U-Haul dealer, Darrell Johnson, came to the State Police station and informed Officer Bittinger that no criminal complaint would be signed, but that defendant would have to pay U-Haul that sum of money that was owed them under the terms of his lease. Mr. Johnson advised Officer Bittinger that the U-Haul vehicle would be towed to his garage, and the vehicle and its contents kept until the money was paid. Defendant was released and advised Mr. Johnson he would pay the money due. Defendant returned to the Buckaroo Motel and so advised the police.

Mr. Johnson had the U-Haul vehicle towed to his private garage. After Officer Bittinger had finished taking a coffee break, he went to Mr. Johnson's garage and informed Mr. Johnson that he was going to take an inventory of the contents in the back of the U-Haul vehicle. He picked the lock and in the process of searching found the marijuana. Defendant was subsequently arrested for possession of marijuana.

The state first contends that the defendant did not have standing to object to the search and seizure. We disagree. Mr. Johnson stated that he was holding the vehicle until paid what was owing and if defendant did not pay he was going to keep the contents of the van. The facts show that Mr. Johnson was waiting for the money owing at the time of the inventory search. Mr. Johnson was holding the vehicle for the defendant subject to payment. This recognition of defendant's right to the vehicle by the U-Haul representative, Mr. Johnson, was sufficient to give defendant standing to object to the inventory search and seizure. State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969). There is no claim that probable cause to search existed. The state relies entirely on an inventory search.

The issue is whether an inventory search is constitutionally permissible absent a search warrant after police have relinquished possession, custody and control to a third party who has the legal right to...