State v. Mann

• Decision Date: 19 November 1985
• Docket Number: No. 8435,8435
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Stephen J. MANN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 6

712 P.2d 6

103 N.M. 660

STATE of New Mexico, Plaintiff-Appellee, v. Stephen J. MANN, Defendant-Appellant.

No. 8435.

Court of Appeals of New Mexico.

Nov. 19, 1985.

Certiorari Denied Jan. 2, 1986.

[103 NM 662] Paul G. Bardacke, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

David A. Freedman, Nancy Hollander, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant.

OPINION

DONNELLY, Chief Judge.

On rehearing, the previous opinion is withdrawn and the following is substituted.

Defendant appeals from a conviction of unlawful possession of a controlled substance, marijuana, with intent to distribute contrary to NMSA 1978, Section 30-31-22 (Repl.Pamp.1980). Four issues are presented on appeal: (1) claim of pretextual stop of defendant's automobile; (2) legality of car search; (3) legality of the defendant's detention; and (4) validity of seizure of evidence. We affirm.

On June 22, 1984, defendant was driving a rental car en route to Tennessee. As defendant approached within a few miles of Roswell, traveling in the eastbound lane, he passed a state police officer, Phillip Baiers, who was observing traffic. The roadway at that point was a four-lane highway with two lanes going both east and west. Defendant was traveling in the inside lane. The maximum speed posted in the area is fifty-five miles per hour. The patrolman followed defendant for approximately two miles. Officer Baiers testified that he did not see any other cars in the roadway when he began following defendant, but that there were other vehicles in the area at the time he stopped defendant. Defendant testified that he believed he was driving approximately forty-five miles per hour. Officer Baiers testified that he determined defendant to be traveling at a speed of approximately thirty-five miles per hour and that defendant was driving in the passing lane of the eastbound lanes.

Officer Baiers signaled defendant to stop and informed him that he would be issued a citation for driving in such a manner so as to impede traffic. The officer requested defendant to produce his vehicle registration papers and driver's license. The car driven by defendant had been rented in Tucson by another person, but defendant's name and driver's license number also appeared on the car rental agreement specifying him as an authorized driver of the vehicle.

Baiers testified that after looking at the registration papers and defendant's driver's license, he requested permission from him to search the trunk of the vehicle. Baiers stated that during the time he was talking with defendant, he observed the following: (1) the rental agreement for the car recited that the car had been rented by another individual; (2) defendant appeared to be nervous; and (3) there were some items placed in the back seat of the car, which Baiers felt were of the type which normally were stored in the trunk of the vehicle.

Defendant initially refused to authorize the officer to conduct a search of the vehicle. Defendant testified that Baiers then informed him that if he did not consent to the search, he would detain him until he could obtain a search warrant. Baiers denied that he made this statement. After defendant refused permission for the search, the officer returned to his patrol car and radioed a request for an NCIC check on defendant and his vehicle.

Defendant testified while the officer was waiting for the NCIC response, he decided to open the trunk to the vehicle and informed Baiers that he would consent to allow the officer to search the car trunk. Baiers testified that when he looked into the trunk he observed the following: (1) the spare tire was sitting on top of some luggage; (2) the lining on the back sides and wall of the car's trunk was loose and had been tampered with; and (3) upon moving some luggage, he saw that one part of the trunk lining had fallen over, partially disclosing a brown package sealed with tape, positioned behind the trunk lining. The officer started to remove the package. At that point, defendant informed the officer that he was terminating his consent to search and closed the trunk lid. The officer then detained defendant and transported him to jail. Baiers testified that the wrapping of the package observed by him appeared to be of the type normally used to package marijuana. After defendant was booked into jail, Officer Baiers issued him a ticket for impeding traffic by driving too slowly, contrary to NMSA 1978, Section 66-7-305(A).

Following defendant's detention, Baiers secured a search warrant from a magistrate and conducted a further search of the vehicle and the contents of the brown, wrapped package. Upon execution of the search warrant, the hidden package was found to contain eighty-eight pounds of marijuana, wrapped in twelve separate blocks. Defendant was thereafter charged with possession of marijuana with intent to distribute.

I. CLAIM OF PRETEXTUAL STOP

Defendant contends that the initial stop by Officer Baiers was pretextual and that the officer's claim that he stopped defendant's car for impeding traffic was patently unbelievable. Defendant argues that there were caution signs posted in the highway area and little actual traffic in the vicinity. Defendant also asserts that the trial court erred in denying his motion to suppress and that all evidence obtained from his initial traffic stop, including the evidence seized pursuant to a subsequently obtained search warrant, should have been suppressed.

The appellate standard of review of a trial court's denial of a motion to suppress evidence obtained by the police following a warrantless search of a vehicle after a claimed pretextual stop for a traffic violation involves a two-part analysis. First, the appellate court looks to the record to determine if there was a valid basis for the stop, supportive of the trial court's ruling. See Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir.1968); Taglavore v. United States, 291 F.2d 262 (9th Cir.1961); State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977); State v. Luna, 91 N.M. 560, 577 P.2d 458 (Ct.App.1978); State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977). Second, the appellate court reviews the record to determine whether there is substantial evidence indicating the existence of facts which bring the search and seizure of any evidence within some clearly delineated exception to the fourth amendment requirement for obtaining a search warrant. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Bloom.

Once a defendant puts in issue facts alleging that law enforcement officers stopped his vehicle on pretext and conducted a warrantless search and seizure, the state has the burden of coming forward with the evidence to show that there was a valid legal basis for the stop and that the search and seizure came within the ambit of a recognized exception to the search warrant requirements imposed by the fourth amendment. United States v. Humphrey, 409 F.2d 1055 (10th Cir.1969); State v. Nittolo, 317 So.2d 748 (Fla.1975), cert. denied, Hover v. Florida, 423 U.S. 1036, 96 S.Ct. 572, 46 L.Ed.2d 411 (1975). See also State v. Cohen, 24 SBB 388 (Ct.App.), cert. granted (1985); Annot., 10 A.L.R.3d 314 (1966). A police officer may stop the driver of a vehicle if he has a reasonable suspicion that a law has been or is being violated. State v. Galvan.

The fourth amendment of the United States Constitution interdicts against subjecting individuals to unreasonable searches and seizures. Amador-Gonzalez v. United States; State v. Martinez, 94 N.M. 436, 612 P.2d 228 (1980).

In reviewing the propriety of the stop and any subsequent search and seizure of evidence, an appellate court may consider facts elicited not only at the suppression hearing, but also at the trial. State v. Dobbs, 100 N.M. 60, 665 P.2d 1151 (Ct.App.), cert. denied, 100 N.M. 53, 665 P.2d 809 (1983). The evidence in the instant case is clearly conflicting as to whether a sufficient basis existed to justify defendant's stop for an infraction of the traffic code.

Defendant contends that there was no substantial evidence to support a conclusion that Officer Baiers was justified in making his initial stop of defendant. We disagree. Section 66-7-305(A) provides that no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or compliance with the law. Here Baiers testified that defendant was traveling thirty-five miles per hour in a fifty-five miles per hour zone while occupying the inside traffic lane. The officer said there were other vehicles in the area when he stopped defendant. While it is true traffic could pass defendant in the outside lane, pursuant to NMSA 1978, Section 66-7-311, slower traffic is directed to normally occupy the outside lane. See NMSA 1978, Sec. 66-7-308(B). Given these facts and the standard of review, we are unable to say the trial court's finding is unsupportable.

Where there is conflicting evidence and testimony but there is substantial evidence to support the finding of the trial court, the appellate court will not find error as a matter of law nor reweigh the evidence. State v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979); State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976); See also State v. Gonzales, 96 N.M. 556, 632 P.2d 1194 (Ct.App.1981). Conflicts in the evidence are to be resolved by the trier of facts, including any conflicts in the testimony of the witnesses. State v. Johnson, 99 N.M. 682, 662 P.2d 1349 (1983).

The trial court's determination that Officer Baiers' initial stop of defendant's vehicle was lawful is supported by substantial evidence.

The trial court determined, in effect, that Officer Baiers' assertion that he stopped defendant for a...