State v. Guebara

Decision Date07 March 1995
Docket NumberNo. 15219,15219
Citation894 P.2d 1018,119 N.M. 662,1995 NMCA 31
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Michael GUEBARA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

APODACA, Chief Judge.

Michael Guebara (Defendant) appeals the trial court's denial of his motion to suppress the Vehicle Identification Number (VIN) seized from a motor vehicle. We must decide whether, in order to observe a VIN generally and otherwise observable from outside an automobile, a police officer may reach into the passenger compartment of an unoccupied, parked and locked vehicle to move papers obscuring the VIN, without probable cause. We answer this question negatively. We hold that, in the circumstances of this case, Defendant's Fourth Amendment rights were violated when police searched his vehicle without probable cause. We thus reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 1992, a blue 1992 Chevrolet pickup truck (the vehicle) was stolen from Casa Chevrolet in Albuquerque, New Mexico. In late April or early May 1992, Robert Hudson asked Deborah Cook to store the vehicle on her property in Artesia, New Mexico. Hudson explained that a friend of his was going through a divorce and that his friend's spouse might "tear up" the vehicle. Cook then gave Hudson her permission to park the vehicle at her home.

Approximately one week later, when Cook returned home, the vehicle was parked in her yard. Cook did not know who brought the vehicle to her yard, and no one came to check on it for about three weeks. The vehicle was parked behind the house and was not visible from the street.

Nearly three weeks later, Cook asked a mutual friend, Donny Self, to tell Hudson to remove the vehicle from her property. Before Hudson could comply with this request, however, Cook's husband contacted the Artesia Police Department to express his concern about the vehicle left on his property and indicated that he thought it might be stolen.

Police Officers Jerry Privetts and Raymond Gates responded to the call. They observed that the vehicle had no license plates but had a temporary registration sticker in the back window made out to Dynamite Motors in Roswell, New Mexico. The officers attempted to check the VIN located on the dashboard, but it was covered with an envelope. The officers contacted the person whose name appeared on the envelope, but he knew nothing about the vehicle. The officers unsuccessfully attempted to contact Dynamite Motors about the vehicle. The Sheriff of Chaves County informed the officers that Dynamite Motors was not a registered car dealer in Chaves County. The officers unsuccessfully tried to open the vehicle with a "slim-jim" because the keys were unavailable. Because of bad weather, the officers decided to return at another time.

The officers returned the following day and inserted a coat hanger through the window to move the envelope covering the VIN to expose it. The officers read the VIN from outside the vehicle, through the front windshield. Because a check of the VIN revealed that the vehicle had been stolen from Casa Chevrolet, the officers seized the vehicle. No further search of the vehicle's interior was conducted. The police later arrested Defendant and charged him with one count of receiving or transferring a stolen motor vehicle in violation of NMSA 1978, Section 66-3-505 (Repl.Pamp.1994), and one count of conspiracy to receive or transfer a stolen motor vehicle in violation of NMSA 1978, Section 30-28-2 (Repl.Pamp.1994).

Defendant filed two separate motions, one to suppress the VIN seized from the vehicle, the other to dismiss the case against him on other grounds. Following the suppression hearing, the trial court denied Defendant's motion to suppress, summarily holding that the search was legal under the facts, without offering any other basis for its decision. The trial court then immediately conducted a hearing to address Defendant's motion to dismiss. At the conclusion of this second hearing, Defendant requested additional rationale from the trial court for its denial of the motion to suppress. The trial court elaborated on its earlier ruling on the suppression issue, stating:

We have a vehicle that's parked at a private residence in Artesia for about three weeks by some guy named Hudson or some guy named Self. The property owner called the sheriff's department and said, "Come out here and check out this vehicle--I think it's stolen." They get out there and they find the VIN number is covered up and they try to locate whoever might own the car and in order to check on whether it's stolen or not, because it's been abandoned at this private residence. I'm going to find that it was--it was originally placed there with this guy's wife's permission, but he called the cops and said, "This thing has been here for three weeks and I'm afraid it's stolen." I think the police actions of putting a coat hanger through the window to move the envelope which covered the VIN number out of the way so that they could find out if it was stolen were very reasonable under the circumstances of this case and were not unlawful.

The trial court also determined that the officers had time to get a warrant but that a warrant was not necessary.

Defendant plead no contest to one count of receiving or transferring a stolen motor vehicle, reserving the right to appeal the denial of the motion to suppress.1

II. DISCUSSION
A. Standing

Initially, the State argues that Defendant did not have standing to object to the search of the vehicle because he did not show any lawful personal or possessory interest in the vehicle and was not present when police actually searched the vehicle. The State, however, failed to raise this issue in the trial court. In light of this Court's decision in State v. Porras-Fuerte, 119 N.M. 180, 889 P.2d 215, (Ct.App.), cert. granted, 118 N.M. 21, 888 P.2d 467 (1994), we decline to decide the issue of Defendant's standing because "standing may not be raised for the first time on appeal." This ruling "does not, however, preclude the State from raising [the issue of standing] upon remand." Id.

B. Abandonment

Defendant argues that the trial court erred in determining that Defendant abandoned the vehicle and, in so doing, relinquished his Fourth Amendment reasonable expectation of privacy. See State v. Esguerra, 113 N.M. 310, 314, 825 P.2d 243, 247 (Ct.App.1991); State v. Clark, 105 N.M. 10, 12-13, 727 P.2d 949, 951-52 (Ct.App.), cert. denied, 104 N.M. 702, 726 P.2d 856 (1986). One who has no reasonable expectation of privacy lacks standing to complain of an illegal search. Esguerra, 113 N.M. at 314, 825 P.2d at 247.

In a Fourth Amendment context,

[t]he issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.

United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (citing United States v. Edwards, 441 F.2d 749, 753 (5th Cir.1971)). Abandonment, in this sense, is primarily a matter of acts and intent. Clark, 105 N.M. at 13, 727 P.2d at 952; Colbert, 474 F.2d at 176. Intent "may be inferred from words spoken, acts done, and other objective facts." Colbert, 474 F.2d at 176. "The intent to abandon will not be presumed and must be affirmatively shown by the party relying on abandonment. The showing must be by clear, unequivocal and decisive evidence." Clark, 105 N.M. at 13, 727 P.2d at 952.

The trial court's conclusion that Defendant abandoned the vehicle, and thus relinquished his legitimate expectation of privacy, is not supported by the record. First, the time lapse was not accompanied by any acts indicating an intent to abandon the vehicle. Second, the vehicle was parked on private property with the consent of the property owners. Whether the withdrawal of that consent was ever communicated to Defendant was never shown. Also, the Cooks did not have the keys to the vehicle. The only evidence presented that might indicate abandonment was the length of time the vehicle was parked at the Cooks' residence. That fact, standing alone, however, is insufficient to establish by "clear, unequivocal and decisive evidence" that the vehicle was abandoned. We hold that, in the circumstances of this case, the parking of a locked vehicle on private property for several weeks, with the consent of the property owners, did not signify that the vehicle was abandoned.

C. Expectation of Privacy in a VIN

The State relies primarily on New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), for the proposition that Defendant had no reasonable expectation of privacy in the VIN. In that case, a motorist was stopped for a traffic violation. Id. at 108, 106 S.Ct. at 962-63. He stepped out of the car and approached one of the officers. Id. The other officer opened the car door to look for the VIN, which was located on the left door jamb in pre-1969 automobiles. Id. When the officer did not find the VIN on the door jamb, he reached into the car's interior to move some papers obscuring the area of the dashboard where the VIN was located on later-model automobiles. Id. In so doing, the officer saw the handle of a gun protruding from underneath the driver's seat and seized the gun. Id. The defendant was then arrested.

In Class, the Supreme Court held that the officer's actions constituted a search but that "this search was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the...

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3 cases
  • 1998 -NMSC- 52, State v. Torres
    • United States
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  • State v. Romero
    • United States
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    ...to do the same without expressing any opinion as to the meaning or applicability of Class to this case. Cf. State v. Guebara, 119 N.M. 662, 667, 894 P.2d 1018, 1023 (Ct. App.1995) (distinguishing Class and declining to apply its VIN analysis to a parked car on private property). Therefore, ......
  • State v. Celusniak
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