State v. Miller

• Citation: 1966 NMSC 41,412 P.2d 240,76 N.M. 62
• Decision Date: 14 March 1966
• Docket Number: No. 7893,7893
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lloyd LaRoi MILLER, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 240

412 P.2d 240

76 N.M. 62

STATE of New Mexico, Plaintiff-Appellee, v. Lloyd LaRoi MILLER, Defendant-Appellant.

No. 7893.

Supreme Court of New Mexico.

March 14, 1966.

Charles Driscoll, Melvin L. Robins, Albuquerque, for appellant.

Boston E. Witt, Atty. Gen., Roy G. Hill, Asst. Atty. Gen., Santa Fe, for appellee.

CHAVEZ, Justice.

On July 4, 1962, Gloria Monson, a clerk in an Albuquerque, New Mexico, liquor store, was shot and killed in an apparent robbery attempt.

More than two years later, on July 7, 1964, a U.S. Commissioner in Albuquerque issued a warrant for appellant's arrest. An F.B.I. agent, Cary Carlton, had filed a complaint upon which the warrant was issued. The complaint charged that appellant, on or about June 17, 1964, fled the state of New Mexico and traveled in interstate commerce to avoid prosecution in New Mexico for armed robbery, a felony in this state, all in violation of 18 U.S.C. § 1073.

Appellant was arrested in San Diego, California, on July 16, 1964, by F.B.I. agent Thomas Mitchell, acting under the authority of the U.S. Commissioner's warrant. Agent Mitchell took appellant to the San Diego F.B.I. office where a 'major case' set of appellant's fingerprints were obtained. The fingerprints were later introduced in evidence at the preliminary hearing and at the trial.

Detective James Bundy of the Albuquerque police department signed a complaint on July 10, 1964, before justice of the peace Flavio Romero of Bernalillo County, New Mexico, charging appellant with the murder of Gloria Monson. Appellant was then returned to Albuquerque to answer the charge.

Appellant was found guilty of murder by a jury and judgment was entered on that verdict. Appellant was sentenced to execution.

Appellant's first contention is that the trial trial court erred when it failed to suppress the evidence concerning the fingerprints which were taken pursuant to the San Diego arrest. Appellant states that they were obtained by the police in the course of an illegal arrest. He contends that the arrest in San Diego was illegal because it was made upon a warrant which had been issued on a complaint which was insufficient, as it did not show the necessary 'probable cause' for appellant's arrest.

Appellant made motions to suppress the fingerprints at the preliminary hearing, before trial and during trial, and all of his motions were denied.

It is clear that evidence obtained through an illegal search cannot be introduced in state or federal courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Fingerprints are so excluded if they are taken pursuant to an illegal arrest. Bynum v. United States (1958), 104 U.S.App.D.C. 368, 262 F.2d 465; approved in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Argument in this case focuses upon the constitutional adequacy of the complaint which gave rise to the issuance of the warrant upon which appellant was arrested. The State argues, in an alternative answer to appellant's contention, that agent Mitchell had authority under 18 U.S.C § 3052, which gives F.B.I. agents authority to make arrests without a warrant, if they have reasonable grounds to believe a person has committed any felony under the laws of the United States.

At the preliminary hearing, agent Mitchell testified:

'A. Well, we had information that a warrant had been issued for Mr. Miller's arrest for unlawfully fleeing the State of New Mexico to avoid prosecution for the crime of armed robbery, and we were in the process of trying to locate him and effect his arrest.'

Upon cross-examination, agent Mitchell testified that he arrested appellant because there was a federal warrant outstanding for his arrest. The same basis for the arrest was reiterated at the trial.

We find no evidence in the record to sustain the State's contention that agent Mitchell arrested appellant under the provisions of 18 U.S.C. § 3052. Agent Mitchell's testimony indicates his positive reliance on the federal arrest warrant which had been issued. It is, therefore, necessary that we examine the complaint upon which that warrant was issued and determine if it was sufficient.

The first case, in a series of cases which have outlined the requirement of a sufficient complaint, is Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. In that case the court stressed the importance of having the judicial officer exercise an independent judgment concerning the reasonableness of making an arrest. The court stated that the officer issuing an arrest warrant must be supplied with facts upon which he can 'assess independently the probability that petitioner (appellant) committed the crime charged.' The complaint in that case charged substantially the language of the statute and nothing more. The court held that, since the necessary facts did not appear in the complaint, the arrest was illegal, and the narcotics seized in the illegal arrest should not have been admitted into evidence.

The reason for requiring sufficient facts in the complaint leading to the issuance of an arrest warrant was clearly stated in a later case, Wong Sun v. United States, supra, when it said (83 S.Ct. 407, 414):

'* * * The arrest warrant procedure surveys to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause. * * * '

In the four cases cited below, the court was deciding cases which involved the sufficiency of the complaint upon which search warrants were issued. We feel that what the court said in those cases is applicable to complaints leading to the issuance of arrest warrants as well. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The court recognized that hearsay evidence could be relied upon to find the necessary 'probable cause' in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. But the court noted that the complaint must present facts to the judicial officer which give credibility to the hearsay evidence.

An example of an adequate complaint, based on hearsay evidence, is given in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887. The complaint detailed the crime which had occurred, showed the unique nature of the items stolen, related the reliability of certain informers and the information which they had given to complainant, and cited other information linking defendant's market to the stolen property.

But in Aguilar v. State of Texas, supra, the court examined another complaint based on hearsay evidence and found it insufficient In that case two Houston police officers stated that they had received reliable information from a credible person and, therefore, believed that narcotic drugs were being kept in a particular place for unlawful sale. The court held that the complaint failed to show the underlying circumstances from which the police officers concluded that the informant was credible, or that his information was 'reliable,' nor did it show how the informer concluded that the narcotics were where they claimed they were.

The recent case of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, indicates that the concepts related in the cases cited above are still the law.

The complaint in the instant case recites:

'The undersigned complainant (Cary Carlton, Special Agent, F.B.I.) being duly sworn states: That on or about 17 June, 1964, at Albuquerque, in the District of New Mexico, LLOYD LaROL MILLER did flee the State of NEW MEXICO and travel in interstate commerce to avoid prosecution in the Second Judicial District of New Mexico for the crime of Armed Robbery, a felony under the laws of the State of New Mexico. And the complainant states that this complaint is based on information received from Detective James Bundy of the Albuquerque Police Department that the defendant had fled the State of New Mexico.'

The complaint charges violation of 18 U.S.C. § 1073, which reads, in part:

'Whoever moves or travels in interstate * * * commerce with intent * * * to avoid prosecution, * * * under the laws of the place from which he flees, for a crime, * * * which is a felony under the laws of the place from which the fugitive flees, * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both.'

Two elements appear clear: (1) Interstate travel; and (2) intent to avoid prosecution under the laws of the state from which one flees for a felony in that state. The first element is an entirely legal act which becomes criminal only when combined with the intent of the second element. Lupino v. United States, (8 CCA 1959), 268 F.2d 799.

It is clear that formal prosecution need not have commenced at the time of the interstate travel. United States v. Bando, (2 CCA 1957), 244 F.2d 833; Lupino v. United States, supra. It is equally clear that mere absence from a state after commission of a crime does not show the necessary intent provided by the law. Reis v. United States Marshal, (E.D.Pa.1961), 192 F.Supp. 79. And when specific intent is an element of the crime charged, the complaint seeking an arrest warrant must indicate facts which show 'probable cause' to believe the required intent was present. Pugach v. Klein, (S.D.N.Y.1961), 193 F.Supp. 630.

The complaint before us does not show any facts indicating the commission of a particular armed robbery, or that appellant was in New Mexico, or that appellant left New Mexico. Neither does it state facts which show that appellant left New Mexico with knowledge of possible prosecution or an intent to avoid that prosecution.

The complaint is deficient in another respect. It is based on the conclusory statement of another police officer. It does not show how the informing officer concluded that appellant had committed the crime charged. Aguilar v. State of Texas, s...