State v. Nemrod

• Decision Date: 13 April 1973
• Docket Number: No. 1008,1008
• Citation: 1973 NMCA 59,85 N.M. 118,509 P.2d 885
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Hank NEMROD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 885

509 P.2d 885

85 N.M. 118

STATE of New Mexico, Plaintiff-Appellee, v. Hank NEMROD, Defendant-Appellant.

No. 1008.

Court of Appeals of New Mexico.

April 13, 1973.

Patrick S. Villella, Knight, Sullivan & Villella, Albuquerque, for defendant-appellant

David L. Norvell, Atty. Gen., Harvey Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Defendant was convicted of possession of more than one ounce of marijuana. Sections 54--9--3 and 54--9--4, N.M.S.A.1953 (Repl.Vol.1962, pt. 2, Supp.1971).

Defendant contends, among other things, that his motion to suppress should have been granted. We agree. The issues of standing and unlawful search are dispositive of the appeal. We reverse and remand.

The record discloses the following on the motion to suppress. Defendant was stopped by State Police Officer Bibiano in a 'routine driver's license and registration check.' Defendant produced an expired driver's license and a car rental agreement in the name of Donald L. Williams. The officre and defendant then proceeded to the nearest telephone and called the manager of the car rental agency. Both the officer and defendant talked to the manager. Defendant attempted to convince the manager to release the car to him. This was not done because defendant had neither a valid driver's license nor permission from Donald L. Williams. The car rental manager requested the officer to impound the car. Defendant was not placed under arrest at this time but the officer stated that defendant was '* * * contained, since we could not obtain a judge, * * *.'

The officer asked defendant to remove his belongings from the car. The defendant removed some luggage and loose clothing from the backseat of the car. The officer testified that he did not intend to search the defendant or anything which defendant claimed as his own. After the defendant had removed his belongings from the car, the officer, pursuant to standard police practice, proceeded to inventory the contends of the car. Defendant told the officer he did not have a key to the trunk of the car and that he had lost the key. Defendant also stated that there was nothing in the trunk. Defendant was asked to look in his pockets for the trunk key. Defendant '* * * put his hand in his pocket and came out with a bunch of keys. * * *' The officer noticed one that '* * * looked like the keys that belonged to the car. * * *' The officer then asked defendant for the key and defendant gave it to him.

The officer opened the trunk of the car and saw two suitcases and a trunk (footlocker). The officer went on to testify:

'* * * I asked him who the suitcases belonged to, and he said that the suitcases belonged to Donald Williams. So I opened up the trunk and noticed some packages wrapped in blue cellophane which appeared to be marijuana. * * *'

Upon seeing and smelling what appeared to be marijuana the officer placed defendant under arrest and advised him of his constitutional rights. Defendant then admitted the trunk and the suitcases belonged to him.

The car was towed to a gas station. The officer obtained a search warrant based upon his affidavit that he '* * * opened said footlocker (truck) for inventory purposes and observed several kilo bricks of suspected marijuana * * *' and '* * * also detected the strong odor of marijuana. * * *'

Defendant's position is that the taking of an inventory is in reality an unlawful search and as such was without probable cause, without consent, not pursuant to an arrest, and without a warrant at the time the officer first saw the marijuana. We agree.

STANDING

The state contends defendant had no standing to raise the issue of an unlawful search and seizure. We disagree.

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) stated:

'* * * (W)e relaxed (the) standing requirements in two alternative ways in Jones v. United States, supra. (362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960)). First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. Second, we held alternatively that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs. * * *'

All that is necessary to give a defendant standing is 'possession' of the seized evidence (marijuana) which is itself an essential element of the offense with which the defendant is charged. Defendant has met the test. Defendant had standing in the instant case.

In so holding we have not overlooked State v. Lucero, 70 N.M. 268, 372 P.2d 837 (1962). Lucero puts 'standing' to challenge search and seizure upon one who claims '* * * ownership, legal custody and control of the automobile, or some proprietary right or interest therein. * * *' This principle, however, was overruled in Simmons v. United States, supra.

UNLAWFUL SEARCH--'INVENTORY'

Although there are cases to the contrary (People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464 (1971); State v. Keller, 497 P.2d 868 (Or.App.1972)); we are persuaded by the logic of Mozzetti v. Superior Court of Sacramento County, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84 (1971). See also Wright v. State, --- Nev. ---, 499 P.2d 1216 (1972); In re One 1965 Econoline, I.D. # E16JH702043, Ariz.L. EC--7887, 17 Ariz.App. 64, 495 P.2d 504 (1972). We quote extensively from Mozzetti with approval:

'It seems undeniable that a routine police inventory of the contents of an automobile involves a substantial invasion into the privacy of the vehicle owner. Regardless of professed benevolent purposes and euphemistic explication, an inventory search involves a thorough exploration by the police into the private property of an individual. In that process suitcases, briefcases, sealed packages, purses--anything left open or closed within the vehicle--is subjected without limitation to the prying eyes of authorities. Merely because the police are not searching with the express purpose of finding evidence of crime, they are not exempt from the requirements of reasonableness set down in the Fourth Amendment. Constitutional rights may not be evaded through the route of finely honed but nonsubstantive distinctions.

'Purely and simply the police inventory conducted here was a police search. * * *

'The interests of a vehicle owner are said to be protected by police inventory because the procedure provides the owner with a detailed list of the articles taken into custody by the police, an itemization he can use in making valid claims for loss or damage against the police and the storage bailee. Also, the inventory brings to light articles of special value or of a perishable nature which might require unusual care by the police and the storage bailee.

'This contention is rebutted by recognition of the vehicle owner's countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner's property against the owner's rights under the Fourth Amendment, we observe that items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property. In the instant case, because the automobile involved was a convertible, adequate protection of valuables could be achieved by raising the top or, if necessary, by moving visible items, like the small suitcase, into the trunk for safekeeping.

'We have no doubt that the police, in the course of such valid protective measures, may take note of any personal property in plain sight within the automobile being taken into custody. Any objects clearly visible without probing--including the suitcase in this instance--may be listed in an inventory or other police report. (See Harris v. United States (1968) . . ., 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067. ()) What concerns us here is the reasonableness of the search into the closed suitcase.

'* * *

'It is clear that mere legal custody of an automobile by the police does not create some new possessory right to justify the search of that vehicle. In Cooper v. California (1967) * * *, 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed.2d 730, the United States Supreme Court pointed out that "lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it." The court indicated that 'the reason for and nature of the custody may constitutionally justify the search,' and it held that custody of an automobile held as evidence of crime and pending forfeiture was such custody. And in Chambers v. Maroney (1970) * * *, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, the Supreme Court validated a search of an automobile in lawful police custody only because there was probable cause to believe it contained weapons and stolen money.

'* * *

'It is undeniable that, under the facts before us, as in the inventory context generally, there could be no basis upon which a magistrate might issue a search warrant. The inventory by its nature, involves a random search of the articles left in an automobile taken into police custody; the police are looking for nothing in particular and everything in general. But this fact does not justify the search and establish its constitutionality. To the contrary, a random police search is the precise invasion of privacy which the ...