State v. Copeland

• Decision Date: 19 August 1986
• Docket Number: No. 8998,8998
• Citation: 105 N.M. 27,1986 NMCA 83,727 P.2d 1342
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mickey Dean COPELAND, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1342

727 P.2d 1342

105 N.M. 27

STATE of New Mexico, Plaintiff-Appellee, v. Mickey Dean COPELAND, Defendant-Appellant.

No. 8998.

Court of Appeals of New Mexico.

Aug. 19, 1986.

Certiorari Denied Oct. 16, 1986.

[105 N.M. 29] Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Paul D. Campos, Archuleta, Sanchez & Co., P.A., Santa Fe, Martin A. Lopez, Albuquerque, for defendant-appellant.

OPINION

ALARID, Judge.

Defendant appeals from his convictions for homicide by vehicle and driving while intoxicated. NMSA 1978, Secs. 66-8-101 and -102 (Cum.Supp.1986). We affirm. We address each of defendant's appellate issues below.

FACTS

Defendant's truck struck and killed State Police Officer Manuel Olivas on the night of February 1, 1985, at the Pecos River bridge between Santa Fe and Las Vegas. The incident occurred at about 8:30 p.m. while Olivas was walking along I-25 with a measuring wheel, investigating a traffic accident near the bridge. Olivas was hit about twenty feet from the Las Vegas end of the bridge. There were no eyewitnesses to the accident.

Officers Perkins and Martinez investigated the accident. They found vehicle body parts on the road and scuff marks in the snow. Based on the evidence, Martinez concluded that the suspect vehicle would be damaged on the right front; the headlight would be round and broken, the grill would be damaged, the portion around the headlight would be square, and the vehicle would be a truck. This information was broadcast and received by Officer Meserve in Las Vegas. Martinez told Meserve to search local motel parking lots for vehicles with similar damage.

At the third motel, Meserve located such a truck at about 11:15 p.m. The motel manager told Meserve that the driver of the truck checked into the motel at around 9:00 that evening, or perhaps between nine and ten. Meserve, knowing that an officer had been killed, called for back-up.

When the back-up arrived, all the officers examined the truck. They noticed a piece of cloth on the bottom of it, which indicated that the vehicle could have struck a person. There was also a slight indentation across the hood. The officers banged on the door of the room into which the driver of the truck had checked in. There was no answer. The manager opened the door with a pass key. However, the door would not open because the chain was up. Through a crack in the door, the officers could see someone lying on the bed with his glasses on.

The officers were nervous. They knew an officer had been killed. They did not know whether the man in the room was injured or whether he was lying in wait. They suspected that the man in the room had hit Olivas and was drunk. According to Meserve, hit-and-runs are usually associated with driving while intoxicated. The officers did not want the evidence to dissipate. A search warrant would have taken two-and-one-half to three hours to procure. They decided to break the chain lock. They did not ask the motel manager questions which might have helped to confirm or deny their beliefs about the man in the room.

Once in the room, the officers questioned defendant. Defendant stated that he owned the pickup and had come from Albuquerque. Defendant was arrested, read his rights, and told to get dressed. Defendant had trouble getting dressed. Meserve said that defendant smelled of alcohol. There were two beer cans in the room. One was unopened and the other was half full.

Defendant was taken to the police station, where he was given breath alcohol tests. These were given at 11:45 p.m. They registered .19, .21, and .21. Defendant made a number of statements at the police station. He told officers that, after a quarrel with his wife, he had driven from Albuquerque to Las Vegas; that he thought he struck something on the road but did not know what it was; and that he had drunk some beer while driving. All defendant's statements, except the one about striking something, were suppressed.

Officer Meserve next swore out a search warrant to get a blood alcohol test and to search the car. In the affidavit, he related that Olivas had been killed, that the damage on the truck matched the damage the officer was looking for, that the times coincided, that defendant had two beer cans by the bed, and that defendant made the statements. The search warrant issued and the blood alcohol test, performed three hours after the breath tests, showed a content of .18.

Defendant first argues that the police did not have probable cause to break into his room; that all the police had were suspicions which could have been dispelled had the officers questioned the manager of the motel. Defendant asserts that the motel manager would have told the police that defendant acted normally when he checked in. Defendant's second issue is based on the fact that Meserve, at one point, stated that he thought defendant could have operated a vehicle safely. Thus, defendant contends that there was no probable cause to arrest defendant because there was no probable cause that he drove in such a way as to cause an accident. Defendant's third issue appears to raise three sub-issues: (1) because there was no probable cause, the officers could not invoke the Implied Consent Act (Act), NMSA 1978, Sections 66-8-105 to -112 (Orig.Pamp. and Cum.Supp.1986), at all; (2) the officers could not seek a blood alcohol test once defendant consented to a breath test; and (3) defendant's consent to take the breath test was involuntary. Similarly, there are three sub-issues in defendant's fourth issue: (4)(a) there was no probable cause; (b) because statements subsequently suppressed from evidence appeared in the affidavit for the search warrant, and the evidence discovered pursuant to it were fruits of the poisonous tree; and (c) there were misrepresentations in the affidavit, specifically the affirmation that there were two beer cans in the room when the facts were that one was unopened and one was only half consumed. We now turn to these contentions.

I. PROBABLE CAUSE AND EXIGENT CIRCUMSTANCES FOR THE ARREST

Defendant's motel room is treated as his dwelling for fourth amendment purposes. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). See State v. Madrid, 91 N.M. 375, 574 P.2d 594 (Ct.App.1978). In order to make a warrantless, nonconsensual entry into a person's home to make an arrest, the police must have probable cause to arrest and there must be exigent circumstances necessitating the immediate entry. State v. Chavez, 98 N.M. 61, 644 P.2d 1050 (Ct.App.1982).

Probable cause exists when the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient to warrant a man of reasonable caution to believe that an offense has been, or is being, committed. State v. Donaldson, 100 N.M. 111, 666 P.2d 1258 (Ct.App.1983). Probable cause means more than a suspicion but less than a certainty; only a probability of criminal conduct need be shown. Id. The officers do not need to positively know that a crime was committed; nor do they need to specify the exact crime as long as it is a serious crime. United States ex rel. Frasier v. Henderson, 464 F.2d 260 (2d Cir.1972).

In this case, the officers knew that a fellow officer had been killed by a hit-and-run driver in a truck with a certain type of headlight and that the headlight would be damaged. The officer was killed by someone driving toward Las Vegas at a time when the person may have been expected to stop at Las Vegas. The officers knew that hit-and-runs frequently involve alcohol. Thus, when the officers located defendant's truck and saw the recent damage to it, which was consistent with the damage they believed would be caused by the impact, and when they learned that defendant checked into the motel at a time consistent with the time at which the person who hit Olivas would have arrived in Las Vegas, there was probable cause to believe that defendant was the person who struck Olivas in the unlawful operation of a motor vehicle.

Questions of the exigency of the circumstances are fact questions for the trial court, whose decision will be upheld if supported by substantial evidence. Chavez. Exigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. Id. The issue is not what the circumstances eventually show; it is whether, on the basis of the facts known to a prudent, cautious, trained officer, the officer could reasonably conclude that swift action was necessary. Id.

In this case, the officers knew that the accident happened about two-and-one-half hours prior to their entry into the room and that it would take another two-and-one-half to three hours to get a warrant. In the meantime, the alcohol thought to be in defendant's system would be metabolizing. This is a means of destruction of evidence, no less than flushing drugs down the toilet. Under Chavez, based on the destruction of evidence rationale alone, the trial court was warranted in finding exigent circumstances. See also State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025 (1985).

When, to this rationale, the other facts of this case are added, the exigency becomes even more compelling. The other facts include the following. The officers were aware that an officer had been killed. This made them nervous. They did not know what type of person they were dealing with. When defendant did not answer the door, the officers thought that defendant was either too drunk to do so, that he was injured, or that he was lying in wait for them. This belief became even stronger when they saw, through the crack in the door, that defendant was lying on the bed with his glasses on. Although none of these possibilities was, in fact, the case, the officers' beliefs in them were reasonable...