State v. Martinez

• Decision Date: 02 June 1980
• Docket Number: No. 12772,12772
• Citation: 612 P.2d 228,94 N.M. 436,1980 NMSC 66
• Parties: STATE of New Mexico, Petitioner, v. Jose MARTINEZ, Respondent.
• Court: New Mexico Supreme Court

Page 228

612 P.2d 228

94 N.M. 436

STATE of New Mexico, Petitioner, v. Jose MARTINEZ, Respondent.

No. 12772.

Supreme Court of New Mexico.

June 2, 1980.

Rehearing Denied June 26, 1980.

Jeff Bingaman, Atty. Gen., Walter G. Lombardi, Asst. Atty. Gen., Santa Fe, for petitioner

Martha A. Daly, App. Defender, Michael Dickman, Asst. App. Defender, Santa Fe, for respondent.

OPINION

FELTER, Justice.

Defendant-Appellant, Jose Martinez (Martinez), was convicted of larceny over $100 and contributing to the delinquency of a minor. The Court of Appeals reversed the judgment and sentence and remanded the case. We granted certiorari and now reverse the decision of the Court of Appeals.

The underlying question presented for our review is whether there was probable cause supported by reliable information for the warrantless arrest and the search incident thereto.

To reach the underlying question we must determine (1) whether a radio dispatch furnished to an arresting officer reliable information showing probable cause upon which he could base a warrantless arrest and search, and (2) whether an appellate court is limited to the record made on a motion to suppress or may review the entire record to determine if there was reliable information showing probable cause to support a warrantless arrest and search.

Larry Reynolds, a gas station manager, contacted the police to report that he had been robbed and to describe the suspects and the vehicle they were driving.

Police Officer Roger Tompkins testified at the suppression hearing that at or about 5:30 in the afternoon on September 21, 1978 he received a communication from his dispatcher in Alamogordo. The message was, to be on the lookout for a vehicle which had just been involved in the robbery of an Alamogordo Exxon station. The car was described as a 1978 Dodge Colt, white over blue, with New Mexico license plate number CJX-367. He was told that two Spanish male subjects were in the vehicle, that the younger suspect was driving, and the other one was wearing a stocking cap. In addition he was informed that the vehicle was heading south out of Alamogordo on U.S. Highway 54.

Further, Officer Tompkins testified that he was familiar with the vehicle and the subjects. He had stopped the vehicle twice previously and had given both subjects citations for speeding. He stated that he had seen the vehicle at least once a week.

Shortly after receiving the dispatch, Officer Tompkins spotted the described vehicle south of Alamogordo on U. S. Highway 54. It was occupied by two Spanish males. The license number was the same as that described to Officer Tompkins. He knew both subjects and had them stop and get out of the driver's side of the vehicle. Garcia was driving the vehicle and Martinez was on the passenger's side. Both subjects were told they were under arrest for robbery. The officer found a stocking cap lying on the front seat. Martinez had a "gob" of money that he was trying to stick in his right rear pocket, a part of which dropped out of his hand. Officer Tompkins took the stocking cap, a screwdriver "sitting beside" Martinez in the vehicle, because "it could have been used as a weapon", and about $120 from Martinez.

The dispatcher had not included in the dispatch an information about the source of the information and conclusions contained in the dispatch. Larry Reynolds did not testify at the suppression hearing. However, Reynolds did testify at the trial concerning the details of the robbery personally observed by him, and he identified the defendant as the person who had gone into the office where the robbed cash register was located. Further, Reynolds testified that he called the police twice and on the second call gave the police an account of the incident, describing the car and its occupants who had robbed the station.

The dispatch did not state that it was Reynolds who had given the dispatcher the information upon which the dispatch was based. Officer Tompkins was not called upon to make a judgment about the reliability of the dispatcher's information in order to decide whether he would or would not make a warrantless arrest.

While a magistrate or dispatcher, as the case may be, is called upon to make such a judgment of probable cause and must have facts showing reliability of the informant before issuing a warrant or placing the dispatch for arrest or search and seizure, it is not normal police practice to require the officer receiving the dispatch to check out the reliability of the informant. Law enforcement would be seriously hampered by such a requirement. This practice is supported by case precedent, e. g., Whiteley v. Warden, 401 U.S. 560, 566, 568, 91 S.Ct. 1031, 1036, 1037, 28 L.Ed.2d 306 (1971):

(T)he standards applicable to the factual basis supporting the officer's probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment. (Citation omitted.)

The State, however, offers one further argument in support of the legality of the arrest and search: the Laramie police relied on the radio bulletin in making the arrest, and not on Sheriff Ogburn's unnamed informant. Clearly, it is said, they had probable cause for believing that the passengers in the car were the men described in the bulletin, and, in acting on the bulletin, they reasonably assumed that whoever authorized the bulletin had probable cause to direct Whiteley's and Daley's arrest. To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are perpetrators of a crime would, it is argued, unduly hamper law enforcement.

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest. (Emphasis added.)

The above language applies a simple, common sense rationale to the requirements of the Fourth and Fourteenth Amendments to the United States Constitution...