State v. Garcia

Decision Date22 December 1971
Docket NumberNo. 690,690
Citation83 N.M. 490,493 P.2d 975,1971 NMCA 186
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Paul GARCIA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

WOOD, Chief Judge.

Defendant was indicted and convicted of 'unlawful possession of a narcotic drug' in violation of § 54--7--13, N.M.S.A.1953 (Repl.Vol. 8, pt. 2) as that section was worded prior to its amendment by Laws 1971, ch. 245, § 6. The applicable wording is found in Laws 1968, ch. 32, § 1. Defendant's appeal presents issues concerning: (1) search and seizure and (2) refused instructions. We decide these issues and, in addition, refer to the asserted defect in § 54--7--13, supra, that is raised in the dissent.

Search and seizure.

There is evidence that defendant was in possession of heroin. Defendant moved to suppress the heroin, asserting it was obtained by an unreasonable search and seizure. After an evidentiary hearing, the motion was denied.

Three witnesses testified at the hearing--defendant, his wife and Officer Giron. Defendant's evidence, in support of the motion, is that he had gone to his cousin's house between 8:30 and 9:00 a.m.; that no one answered the door; that he lay down on a couch on the porch and went to sleep. According to defendant he was awakened when Giron 'grabbed me by the mouth, and I started fighting;' that Giron told defendant he was under arrest for possession of heroin and Giron had a bottle in his hand. Since this testimony does not refer to a search or seizure, the motion could have been properly denied at this point.

The State, however, called Giron. Giron testified that at 10:30 a.m. '. . . Lieutenant Mier and myself received a call (from an unidentified person) . . . telling us that Paul Garcia could not be awakened, that he was asleep or apparently passed out after a dosage of heroin. That Paul Garcia had been selling heroin the night before. That he had brought this heroin from Albuquerque, and that this man was passed out on a couch at the rear of 617 Kathryn Street, that this man could not be awakened. . . .'

Giron and Mier responded to the call. They went to the street address named and found, on a couch on the porch, a man who Giron recognized as Garcia, the defendant. Since this location was private property, defendant argues that the officers had no right to be there. We disagree; the officers were doing no more than investigating in response to the telephone call.

Giron patted defendant on his knee to see if he was alive; defendant came up fighting. The officers grabbed defendant to hold him back, identified themselves as police officers and told defendant of the telephone call they had received. Defendant started yelling: 'You're framing me.' They asked defendant if he had any heroin in his possession, '. . . and again he tried to take off from us, . . .' The officers held defendant's arms and turned him loose after he settled down.

At this point, according to Giron, defendant was asked to empty his pockets. Defendant took money from his pants pocket and the officers told him to put the money back. '. . . At this time, he tried to take off again, and this time we had to hold him after that all the time, because all the time he insisted on running. At this time, he started yelling to the neighbors that he was being framed, and 'Look what this officer is doing to me,' and 'They planted this stuff on me.' At this time, I started frisking his pockets from the outside, and I came up to his left shirt pocket where I felt a small bottle, . . .' The officer took the bottle, which contained the heroin.

At the times defendant tried to get away from the officers, and the officers held him back, defendant 'took swings' at the officers.

Defendant was 'seized' within the meaning of the constitutional prohibition of unreasonable search and seizure, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This seizure occurred when the officers restrained defendant after defendant 'came up fighting' on being awakened. This seizure (for purposes of investigation, State v. Hilliard, 81 N.M. 407, 467 P.2d 733 (Ct.App.1970)), was not unreasonable. While the hearsay information from the telephone call did not give the officers probable cause to detain defendant, the corroboration of that telephone call did. The corroboration was that the person involved was the defendant, he was at the named address, and on the couch as the caller had said. In addition, Giron was concerned about an overdoes from 'the way he wanted to run.' See State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967).

After the first instance of physical restraint, defendant was asked if he had heroin in his possession. Defendant yelled that he was being framed and again tried to run. The second physical restraint occurred. At this point, defendant was asked to empty his pockets. This request by the officers, in these circumstances, was a search. Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354 (1956).

The emptying of the pockets was not completed however; devendant again attempted to run away. At this point defendant was again held by the officers. Defendant again started yelling that he was being framed, that the 'stuff' had been planted and contemporaneously the heroin was discovered in a shirt pocket. Even if a search for weapons was reasonable when defendant was told to empty his pockets (and there is evidence which supports a weapon search at this point), defendant contends the search, which resulted in the discovery of the heroin, was unreasonable because the small bottle that Giron felt in the shirt pocket was obviously not a weapon.

In answering this claim we expressly do not consider whether the heroin was discovered and seized as contraband during the course of a lawful search for weapons. See State v. Carlton, 82 N.M. 537, 484 P.2d 757 (Ct.App.1971); compare State v. Ramirez, 79 N.M. 475, 444 P.2d 986 (1968). In our opinion, Giron had probable cause to arrest defendant for unlawful possession of heroin prior to the seizure of the heroin.

Giron had more information than did the officer in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Not only had portions of the telephone call been corroborated, but defendant had fought with the officers, had attempted to flee and was yelling that he had been framed and the 'stuff' had been planted. '. . . (D)eliberately furtive actions and flight at the approach of . . . law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest. . . .' Sibron v. New York, supra; see State v. Baxter, 68 Wash.2d 416, 413 P.2d 638 (1966). Here, not only had defendant attempted to flee, he had fought with the officers and yelled that he was being framed. The officers had specific knowledge of these incidents.

The fighting, fleeing and yelling occurred after defendant had been told about the telephone call. These three incidents, together with the portion of the telephone information that had been verified, provided probable cause for an arrest when defendant was asked to empty his pockets. By probable cause we mean, in this case, that the officer had reasonable grounds to believe that the crime of unlawful possession of heroin was being committed in his presence. State v. Ramirez, supra.

There being probable cause for the arrest, the search and seizure, contemporaneous with the arrest, was valid as an incident of the arrest. State v. Deltenre, supra. The trial court did not err in denying the motion to suppress or in admitting the heroin at trial.

Defendant also argues, under this point, that the officers should have gotten a search warrant and, because the search was not under authority of a warrant, it was unreasonable. We disagree. The absence of a warrant is not a controlling factor in the circumstances of this case. State v. Deltenre, supra.

Refused instructions.

Defendant requested an instruction which would have permitted the jury to determine whether the search and seizure was reasonable. This was a matter of law for the court to determine. The request was properly refused. State v. Deltenre, supra.

Defendant also requested an instruction concerning a citizen's right to resist an unlawful arrest. This instruction was properly refused for two reasons. First, the requested instruction would have the jury determine probable cause; this was a matter of law for the court. State v. Deltenre, supra. Second, defendant would justify the requested instruction on the basis that defendant was 'arrested' at the time of the first 'seizure.' This is incorrect; the seizure, when defendant came up fighting after being awakened, was short of an arrest. See Terry v. Ohio, supra. Thus, the refused instruction would have interjected a false issue into the case.

Asserted defect in Section 54--7--13, supra.

The applicable wording of the statute is:

"Whoever, not being a manufacturer or wholesaler licensed pursuant to section 54--7--4 New Mexico Statutes Annotated, 1953 Compilation, physician, veterinarian dentist, nurse acting under the direction of a physician, or an employee of a hospital or laboratory acting under the direction of its superintendent or official in immediate charge, or a common carrier or messenger when transporting any drug mentioned herein between parties hereinbefore mentioned in the same package in which the drug was delivered to him for transportation, is found in possession thereof, except by reason of an order or prescription lawfully and properly issued...

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