State v. Pittman

• Decision Date: 23 November 2005
• Docket Number: No. 24,671.,24,671.
• Citation: 2006 NMCA 006,127 P.3d 1116
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael PITTMAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

127 P.3d 1116

2006 NMCA 006

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

No. 24,671.

Court of Appeals of New Mexico.

November 23, 2005.

Certiorari Granted, No. 29,584, January 10, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

John Bigelow, Chief Public Defender, Cordelia A. Friedman, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

SUTIN, J.

{1} We consider the legality of a search of Defendant's car that occurred after Defendant was arrested, handcuffed, and placed in a patrol car. We conclude that under Article II, Section 10 of the New Mexico Constitution the search was illegal. We reverse the district court's denial of Defendant's motion to suppress and remand for further proceedings.

BACKGROUND

{2} Hobbs police officer Orin Tubbs saw Defendant's Cadillac pull out into traffic, on the opposite side of the roadway, from an apartment parking lot without stopping. He decided to stop Defendant, turned on his emergency equipment, and began a u-turn. As he did so, he saw Defendant pull into the parking area of an apartment building, park his car, quickly get out of the car, and lock the door. There were no other occupants in the car.

{3} Officer Tubbs pulled into the parking lot and asked for Defendant's license and registration. Defendant returned to his car, opened the passenger door, and retrieved the requested documents. The officer ran a wants and warrants check and discovered that there was an outstanding warrant for Defendant's failure to appear in municipal court. Based on that discovery, he arrested Defendant, handcuffed him, and put him in the rear seat of his patrol car.

{4} At that point, Defendant asked the officer to give the car keys to his grandmother, who Defendant said lived in the apartment complex. The officer took the keys, but chose instead to unlock Defendant's car and search it. He found a loaded.40 caliber handgun underneath the driver's seat. Officer Tubbs testified that at the time he searched the car, he did not feel he was in any danger, nor did he expect to find any evidence in the car related to the arrest for failure to appear.

{5} Defendant was charged with a traffic violation and with being a felon in possession of a firearm. He moved to suppress the evidence. The court denied the motion, whereupon Defendant entered a conditional no contest plea to the crime of felon in possession of a firearm reserving the right to appeal the suppression issue.

DISCUSSION

STANDARD OF REVIEW

{6} We review the denial of a motion to suppress by first reviewing the district court's factual determinations for substantial evidence in a light favorable to the prevailing party and then by reviewing the legal conclusions de novo. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72; see also State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994) (addressing the district court's exigency determination, determining that the question "extends beyond fact-finding and implicates an assessment of broader legal policies that the New Mexico Constitution entrusts to the reasoned judgment of the appellate courts of this state," and concluding that the mixed question of fact and law involved in determining exigent circumstances "lies closest in proximity to a conclusion of law" and "that such determinations are to be reviewed de novo").

SEARCH INCIDENT TO ARREST

{7} The State seeks to validate the search of Defendant's car as a search incident to arrest. The United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), held a search incident to an arrest justifiable as an exception to the warrant requirement under two rationales: the need to remove a weapon the arrestee might use to resist arrest or to escape, and the need to prevent the concealment or destruction of evidence. Id. at 762-63, 89 S.Ct. 2034. Those two rationales are still applied. Thornton v. United States, 541 U.S. 615, 620, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); see State v. Martinez, 1997-NMCA-048, ¶¶ 6-8, 123 N.M. 405, 940 P.2d 1200 (citing to Chimel in formulating the test to be used under the New Mexico Constitution regarding searches incident to arrest of a person in his home).

{8} Chimel described the spacial area of concern to be an area "into which an arrestee might reach." 395 U.S. at 763, 89 S.Ct. 2034. Application of this spacial limitation became problematic in later cases when the arrest involved an occupant of a vehicle, and over the years the Supreme Court widened the area of the arrestee's "reach" in considering his temporal and spacial relationship to the vehicle. See Thornton, 541 U.S. at 620, 124 S.Ct. 2127; New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

{9} Underlying the weapon removal rationale for a search incident to an arrest is a very "legitimate and weighty" concern for officer safety. See Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (internal quotation marks and citation omitted); see also State v. Gutierrez, 2004-NMCA-081, ¶ 11, 136 N.M. 18, 94 P.3d 18 (permitting a search of an automobile incident to arrest where the defendant reported that there was a weapon in the vehicle and a passenger had access to it under an officer safety rationale); cf. State v. Paul T., 1999-NMSC-037, ¶¶ 10, 11, 14, 128 N.M. 360, 993 P.2d 74 (considering the Terry search circumstances "in light of a concern for officer safety").

{10} The evidence concealment/destruction rationale for a search incident to an arrest is based on the need to act quickly or else lose critical evidence of a crime which the police have probable cause to believe the suspect committed. See Cupp v. Murphy, 412 U.S. 291, 296, 301, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (Douglas and Brennan, JJ., dissenting in part) (determining, in accordance with Chimel, that a limited search to "preserve the highly evanescent evidence" under a detainee's fingernails to be appropriate, agreeing with the Court "that exigent circumstances existed making it likely that the fingernail scrapings ... might vanish if [the detainee] were free to move about"). When there is no such critical evidence to be found either on an occupant or in the vehicle, a search is unreasonable if purportedly done under the evidence concealment/destruction rationale. See Knowles, 525 U.S. at 119, 119 S.Ct. 484 (declining to extend the authority to conduct a search incident to an arrest "to a situation where the concern ... for destruction or loss of evidence is not present at all").

{11} "[Belton] ... held that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest." Thornton, 541 U.S. at 617, 124 S.Ct. 2127. Belton became the Supreme Court's most influential case in Chimel automobile search situations. As set out in LaFave's treatise on search and seizure, "[g]iven the Belton majority's avowed purpose of foreclosing the need for case-by-case determinations of an arrestee's control of the car" and its abandonment of the Chimel "immediate control" requirement for a broader rule, many federal and state cases have held that a search of a car incident to arrest is valid even if the arrestee is safely placed in the police car. 3 Wayne R. LaFave, Search and Seizure § 7.1(c) at 517-18 & n. 89 (4th ed.2004) (citing cases and noting Justice Brennan's statement in his dissent in Belton that "the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car before placing them under arrest" (internal quotation marks omitted)).

{12} Interestingly, Thornton involved a vehicle search after the arrestee was handcuffed and placed in a patrol car. However, these facts were not pertinent to the issue addressed by the Supreme Court. See Thornton, 541 U.S. at 617, 124 S.Ct. 2127. In Thornton, the issue on certiorari was whether the rule in Belton "is limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle, or whether it applies as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle." Thornton, 541 U.S. at 617, 124 S.Ct. 2127. The Supreme Court held in Thornton that police may search an automobile as a search incident to arrest "even when an officer does not make contact until the person arrested has left the vehicle." Id. The Court permitted a search so long as an arrestee is "the sort of `recent occupant' of a vehicle such as petitioner was here." Id. at 623-24, 124 S.Ct. 2127. Because it was outside the question on which the Court granted certiorari, the majority in Thornton declined to address the defendant's argument that the Court "should limit the scope of Belton to recent occupants who are within reaching distance of the car." Thornton, 541 U.S. at 622 n. 2, 124 S.Ct. 2127 (internal quotation marks omitted).

INTERSTITIAL AND NEW MEXICO CONSTITUTIONAL ANALYSES

{13} When a defendant, as here, appeals under both the federal and state constitutions, we apply the interstitial approach to constitutional analysis. See State v. Gomez, 1997-NMSC-006, ¶¶ 17, 19, 122 N.M. 777, 932 P.2d 1; Gutierrez, 2004-NMCA-081, ¶ 9, 136 N.M. 18, 94 P.3d 18. If the right being asserted is protected under the federal constitution, we need not reach the state constitutional claim. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. If Defendant's rights are not fully protected under the federal constitution, we must then determine whether the state constitution provides broader protection. See id. We may diverge from federal precedent if...