State v. Cohen
| Decision Date | 09 December 1985 |
| Docket Number | No. 15818,15818 |
| Citation | 103 N.M. 558,1985 NMSC 111,711 P.2d 3 |
| Parties | STATE of New Mexico, Petitioner, v. Mier COHEN and Erez Atava, Respondents. |
| Court | New Mexico Supreme Court |
Paul G. Bardacke, Atty. Gen., Charles D. Noland, Asst. Atty. Gen., Santa Fe, for petitioner.
Reber Boult, Nancy Hollander, Albuquerque, for respondents.
Defendants Mier Cohen (Cohen) and Erez Atava (Atava) were indicted for possession of cocaine and trafficking of a controlled substance. Cohen was also charged with speeding. After a hearing on a motion to suppress evidence, the trial court found that the stop of the defendants' automobile was proper; that the consent to search was voluntary; but that the detention of Cohen and Atava before the consent was obtained was an "illegal siezure" and, therefore, the consent was invalid as a matter of law.
The State appealed to the Court of Appeals, raising the issue of the reasonableness of the detention as well as the question of voluntariness as a matter of law, considering the totality of the circumstances.
The Court of Appeals affirmed the trial court. We granted certiorari and reverse the Court of Appeals and trial court, and reinstate the case on the trial docket.
FACTS.
On January 5, 1984, Summers (Summers) of the New Mexico State Police stopped a Pontiac automobile for speeding sixty-one miles per hour in a fifty-five mile-per-hour zone. The automobile was driven by Cohen and occupied by a passenger, Atava. Officer Summers decided to give Cohen a ticket for speeding. Summers became concerned by other facts he observed. He noticed the automobile was an out-of-state rental car that had been paid for by cash and was a one-way rental from Florida to California. The car did not contain much luggage for a cross-country trip; both the occupants appeared to be foreigners and both appeared to Summers to be more concerned about the stop than was ordinarily encountered for stops of this kind. While Summers was in his car writing up the speeding ticket and waiting for a response on his request to the National Crime Information Computer (NCIC), 1 Cohen got out of his automobile and walked back toward the state police car. Summers got out of his car and met Cohen between the automobiles. Cohen told Summers that he was in a hurry and would like Summers to issue his ticket so he could leave. Summers testified that Cohen appeared nervous and anxious and, that with the temperature about twenty-five degrees on a cold and windy day, it seemed very unusual that Cohen would get out to talk to the officer.
Summers considered the facts he had observed in conjunction with information he had recently received in a state police course concerning common factors in narcotics trafficking cases in New Mexico ("profile" factors). These "profile" factors were: (1) two persons appearing to be foreigners Based on his observations, Summers decided that he had a reasonable suspicion to investigate further. He called for assistance from other state police officers and shortly thereafter, Officer Marino (Marino) and Sargent Velarde (Velarde) (the officers in charge of narcotics) responded. While waiting for the additional officers, Summers filled out a consent to search form in anticipation of requesting permission from Cohen to search the automobile. The NCIC response was received and Summers was informed that there were no warrants outstanding for Cohen and that the car was not reported as stolen. A few minutes later, 2 the other officers arrived and were briefed by Summers.
[103 NM 560] (2) driving a rental car with Florida license plates, (3) across the country (4) with a small amount of luggage, (5) and with a one-way car rental being paid for in cash.
After the other officers arrived, both Cohen and Atava were asked to get out of the car. Cohen was advised of his Miranda rights. Velarde also told him that they would like to search his car for weapons and narcotics. Cohen was presented with the consent to search form. Cohen "read the form", consented to the search and signed the form. No threats were made to obtain the consent. 3
Because it was cold and getting dark, and because there was heavy traffic on the highway, the officers decided to drive the car to the closest, warm; well-lit area to conduct the search. Cohen was instructed to follow one patrol car and the other police car (with Atava as a passenger) followed Cohen to a service station three miles away. The car was driven inside and the search was conducted. During the search the officers noticed an extra tire in the trunk. It's bolt pattern was different than that of the rental car (which had its spare tire in place) and it was flat. When Marino picked it up, he noticed there was something "loose" inside. The tire was broken down and eleven pounds of cocaine were found inside.
The issue is whether the detention of Cohen and Atava for a short time after Summers received a negative response from his NCIC inquiry voids the consent as a matter of law. 4
REASONABLENESS OF DETENTION.
Summers testified that he stopped the car at 5:09 p.m. The initial stop of Cohen and Atava was proper. 5 He requested an NCIC check on the defendants and the car. Within five minutes, Cohen exited the car and approached Summers' patrol unit. After a conversation with Cohen, Summers decided to "pursue the investigation further." He testified that it was ten to fifteen minutes after stopping. It was at least 5:19 p.m. He requested assistance from Marino who was at police headquarters. It took Marino three to four minutes to arrive at the location where the defendants were stopped. During this period, Summers received a reply from his NCIC inquiry that must have been between 5:19 p.m. and 5:24 p.m. Marino and Velarde arrived and were briefed. Cohen was presented with a consent to search form which he signed after being advised that he did not have to consent to a search. After a brief examination of the items in the car, the officers decided that since it was getting dark and there was a lot of traffic they would move the car to search it. Cohen was directed to follow the police unit to a service station three miles away which Summers testified was the closest, warm, well-lit area.
After the search was commenced, the tire was observed "about 5:25" or "5:35" at the service station. 6 The cocaine was found after the tire was taken apart ten minutes later. The period of time that could have elapsed according to the testimony from the time that the NCIC check came back negative until the consent form was signed is between three minutes and thirteen minutes (5:19 until 5:22, if the tire was located at 5:25 as it took "three or four minutes to drive to the service station," or 5:19 until 5:32, if the tire was located at 5:35).
The issue then becomes whether the detention of Cohen and Atava for a few minutes while the officer asked for and obtained a consent to search form was unreasonable in light of the facts that Summers had observed. 7 We hold that it was not.
A recent case on the issue of what is a reasonable detention is United States v. Sharpe, --- U.S. ----, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). 8 The Court in Sharpe pointed out that only unreasonable searches and seizures are prohibited by the Constitution. However, investigatory stops of vehicles are subject to the limits of the fourth amendment also. In discussing the reasonableness of a stop, (which is analagous to a detention once the reason for a valid stop expires, as did here when the NCIC report came back negative) the Court quoted from Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) the following test: "[W]hether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Sharpe, --- U.S. at ----, 105 S.Ct. at 1573, 84 L.Ed.2d at 613.
This is the test of "reasonableness" that was used in analyzing the officers conduct in Sharpe. 9 In determining the purpose of a stop, the court must consider the law enforcement purposes being served as well as the time reasonably needed to effectuate their purposes, United States v. Hensley, --- U.S. ----, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), and if the purpose underlying an investigative stop or detention (that of investigating possible criminal activity) is to be met, the police must, under certain circumstances, be able to detain the individual. See Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981).
The Court in Sharpe stated:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
United States v. Sharpe, --- U.S. at ----, 105 S.Ct. at 1575, 84 L.Ed.2d at 615-616.
In the instant case, Summers detained Cohen and Atava only for a few minutes after he received the negative report from NCIC and wrote out the speeding ticket. Considering the information that he relied upon, (i.e., there were two men in the car with out-of-state plates; they appeared to be foreigners; they were on a cross-country trip in a one-way car rental paid for by cash from an area suspected by authorities to be a point of origin in drug shipments; that they appeared more nervous than the average person stopped for speeding; that they appeared to want to get away from the officer as quickly as possible) and in conjunction with the number of these factors that the officer had been told previously were common in cases involving recent drug arrests in New Cohen and Atava argue that the consent would have been proper if obtained prior to the NCIC check being completed, but the few minutes that they were detained after the NCIC check was completed, until the...
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