State v. Luna

• Decision Date: 21 March 1978
• Docket Number: No. 3251,3251
• Citation: 91 N.M. 560,1978 NMCA 33,577 P.2d 458
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Michael LUNA, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 458

577 P.2d 458

91 N.M. 560

STATE of New Mexico, Plaintiff-Appellant, v. Michael LUNA, Defendant-Appellee.

No. 3251.

Court of Appeals of New Mexico.

March 21, 1978.

Writ of Certiorari Denied April 12, 1978.

[91 N.M. 562] Toney Anaya, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

David R. Lee, Albuquerque, for defendant-appellee.

OPINION

WOOD, Chief Judge.

Defendant is charged with the murder of Nina T. Nelson and aggravated burglary of the Nelson home. After an evidentiary hearing, the trial court suppressed certain items of evidence. The State appealed. Section 21-10-2.1(B)(2), N.M.S.A.1953 (Repl.Vol. 4, Supp.1975). Defendant contends the trial court erred in failing to suppress evidence on additional grounds. Thus, the appeal requires a review of various search and seizure questions ruled on by the trial court.

The Initial Stop

The trial court's order states:

A. On April 6, 1977, Defendant was observed in an automobile by Officer Fabry, pulling away from a traffic light on Main Street in the City of Roswell at a high acceleration rate, with his tires spinning and the rear-end of the automobile fishtailing.

B. Officer Fabry took up pursuit for the purpose of making a stop of the automobile for exhibition driving, contrary to Section 12-6-12.19 of the Roswell City Code.

C. There was probable cause to make a traffic stop for purpose of issuance of citation under the ordinance.

The evidence supports the factual determinations. These facts justify the stop. State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977).

The Arrest

The trial court's order states:

A. Upon stopping the vehicle of the Defendant, Officer Fabry determined that the Defendant had been drinking, and was under age, and placed him under arrest for permitting himself to be served with intoxicant out of the presence of his parent or guardian.

B. There was probable cause for the arrest. The officer was justified in inferring that a violation was occurring in his presence.

The evidence supports the factual determinations. The arrest being based on the officer's observations, it was valid. City of Roswell v. Mayer,78 N.M. 533, 433 P.2d 757 (1967); Cave v. Cooley, 48 N.M. 478, 152 P.2d 886 (1944).

Search I and Seizure I

The trial court's order states:

A. Officer Fabry, following arrest of the Defendant made a field search of the automobile, observed a bottle of whiskey in the automobile and took it into custody.

B. The search and seizure were justified as an automobile search pursuant to lawful arrest.

C. The officer was justified in taking the bottle of liquor into custody.

The evidence supports the factual determinations. The legal basis for the search and seizure is discussed hereinafter under the heading, Search IV.

At this point, our numbering of the searches and seizures departs from the trial court's numbering. This is because the trial court's order misstates the place and time of the second search and second seizure.

Search II and Seizure II

The second search occurred at the place where defendant was initially stopped and arrested, on the public street. This search was of defendant's person, after the valid arrest of defendant for the liquor offense. This search was valid. State v. Barela, 88 N.M. 446, 541 P.2d 435 (Ct.App.1975); see State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.1974), cert. denied,420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975).

This second search, of defendant's person, resulted in the discovery of a smoking pipe in defendant's pocket. The bowl of the pipe had "heavy residue in it", "was still partially warm" and had an odor of marijuana. The seizure of this pipe was proper as suspected contraband. State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976).

Seizure III

Defendant was taken to the police station in a patrol car; his car was driven to the police station by an officer.

Upon arrival at the police station, defendant was interrogated for approximately thirty minutes about the Nelson homicide. The trial court ruled:

A. During custodial interrogation, the shoes of the Defendant were removed for the purpose of comparison with a track found at the scene of a robbery. The robbery was circumstantially connected to the investigation of the Nelson murder case.

B. The removal of the shoes for such purposes was permissible, and the evidence obtained thereby is not suppressed.

The evidence supports the factual determinations. Seizure of the shoes was valid. State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968), footnote 1; State v. Herring, 77 N.M. 232, 421 P.2d 767 (1966), cert. denied, 388 U.S. 923, 87 S.Ct. 2126, 18 L.Ed.2d 1372 (1967); State v. Adams, 80 N.M. 426, 457 P.2d 223 (Ct.App.1969).

Search III and Seizure IV

The trial court ruled:

A. Following interrogation at the Police Department the Defendant was taken to the Chaves County Jail for incarceration. Upon searching the Defendant prior to incarceration, a packet of marijuana was found in his undershorts.

B. The custodial search of the Defendant, was justifiable, and the evidence obtained thereby is not subject to suppression.

The evidence supports the factual determination. The search and seizure were valid. See case citations under Seizure III.

Search IV

Following the custodial interrogation, defendant's car was searched. The trial court ruled:

C. The search of the automobile is variously characterized as an inventory search; a search for contraband; and a search for evidence of his involvement in the Nina Nelson murder. The search was without warrant.

D. The search was not a proper warrantless search. No evidence was seized from the automobile at this time.

Although no evidence was seized during this search, its validity is important because of the evidence suppressed by the trial court. See discussion hereinafter under (a) Search V and Seizure V, and (b) Search VI and Seizure VI.

Characterization of this search as an inventory search would not be proper. There is no evidence that the car was searched for the purpose of inventorying its contents. State v. Vigil, supra.

Two reasons appear for the search. Officer Fabry testified that the car was taken to the police station "because we wanted to search the vehicle further." "The original reason I wanted to search it, I wanted to see if there was any other marijuana in the vehicle at the time, or possibly any other liquor in the vehicle." There is evidence that the search occurred after discovery of the marijuana packet in defendant's undershorts and was a search for contraband. There is an inference that the search had nothing to do with discovery of the packet of marijuana; in that the search occurred after the interrogation of defendant in connection with the homicide. Detective Pacheco, aware that other officers desired to search for contraband, searched the car "to find anything I could relate back to the murder scene."

There is no evidence in this transcript showing probable cause to search the car for evidence relating to the homicide. The warrantless search of the car at the police station cannot be justified on this ground.

There is substantial evidence that the police had probable cause to search the car for contraband. By contraband, we mean the marijuana and the liquor since, under the facts, it was improper for defendant to possess either. This probable cause justified the warrantless search at the police station. Our reasoning follows.

The arresting officer could have searched the car at the time and place of the arrest on the liquor charge. Such a search would be justified either as a search incident to an arrest based on probable cause to arrest or a search based on probable cause to search. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Vallejos, 89 N.M. 23, 546 P.2d 871 (Ct.App.1976).

The search of the car at the scene was cursory; the car was taken to the police station for a more thorough search for contraband. With these facts, the requirement necessary to justify the police station search was probable cause to search. See State v. Courtright, 83 N.M. 474, 493 P.2d 959 (Ct.App.1972). Why? Probable cause to search justified the initial intrusion into the car when it was stopped on the street. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971).

Although the initial intrusion, the cursory search at the scene, was justified, on what basis is the delayed search at the police station justified? In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) defendant had been arrested and taken to the police station; his car had been towed to a garage. The subsequent search of the car "was too remote in time or place to have been made as incidental to the arrest", the warrantless search was held to be unreasonable.

Consistent with Preston, supra, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970), held that the delayed police station search was not justified as a search incident to arrest. Chambers also held, however, that the delayed search was proper because the officers had probable cause to search the car. "On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house . . .."

But what of exigent circumstances? Footnote 20 in Coolidge v. New Hampshire, supra, states:

It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any "exigent circumstances" had passed, and for all the record shows, there was a magistrate easily available. . . . The rationale of Chambers is that given a...