State v. Rowell

• Decision Date: 12 April 2007
• Docket Number: No. 26,429.,26,429.
• Citation: 2007 NMCA 075,161 P.3d 280
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Richard ROWELL, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

161 P.3d 280

2007 NMCA 075

STATE of New Mexico, Plaintiff-Appellant, v. Richard ROWELL, Defendant-Appellee.

No. 26,429.

Court of Appeals of New Mexico.

April 12, 2007.

Certiorari Granted, No. 30,380, June 4, 2007.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellant.

Downing & Henderson, P.C., David Henderson, Santa Fe, NM, for Appellee.

OPINION

SUTIN, Chief Judge.

{1} The State of New Mexico appeals the suppression of evidence in the prosecution of Defendant Richard Rowell, who was stopped for speeding in a school zone. The suppressed evidence consisted of marijuana in plain view seized from Defendant's pocket while he sat in his vehicle, drug paraphernalia found in Defendant's pocket after Defendant was out of the vehicle, and weapons later seized from Defendant's vehicle. The district court held that the seizure of the marijuana was unlawful and that the seizures of the paraphernalia and weapons were also unlawful as fruits of an unlawful seizure and arrest related to the possession of marijuana. The State contends that the seizure of the marijuana was lawful and that the seizures of the paraphernalia and weapons were justified under various theories. We agree with the State that the seizure of the marijuana was lawful, and that the marijuana and drug paraphernalia should not have been suppressed. We therefore reverse the suppression of the marijuana and drug paraphernalia. We disagree that the seizure of the weapons was lawful. We therefore affirm the suppression of the weapons.

BACKGROUND

{2} Defendant's motion to suppress was heard on stipulated facts. The facts were contained in a narrative prepared by Officer E. Thomas of the Taos Police Department, in Taos, New Mexico.

{3} Officer Thomas was "running stationary radar during the lunch hour school zone while students [were] entering and exiting campus." He caught Defendant speeding and "conducted a traffic stop . . . in the visitor's parking lot of the high school." The officer requested Defendant's driver's license, insurance, and registration. When Defendant leaned across to the glove box, the officer "could see a plastic baggy protruding from his front left pocket," and "[i]t appeared the baggy contained a green leafy substance believed to be marijuana in plain view." The officer reached in, took the baggy from Defendant's pocket, and confirmed that it was marijuana. He then asked Defendant to exit the vehicle, at which time the officer handcuffed him and, while checking his pockets, asked Defendant "if he had anything else I should be aware of such as guns, knifes [sic], bombs or bazookas." To that question Defendant answered "No." The officer found a glass-like marijuana pipe and a lighter in Defendant's pockets. The officer placed Defendant under arrest for possession of marijuana and drug paraphernalia. As the officer took Defendant to his patrol car, Defendant "spontaneously stated there was a shotgun in the back seat of the vehicle."

{4} The officer placed Defendant in the unit for safety purposes and made the decision to impound Defendant's vehicle. At some point after the officer had advised Defendant of his rights, Defendant volunteered that he was coming onto school grounds to drop off lunch to his mother, and admitted to possession of a firearm on school grounds. The officer requested a second police unit to assist with the transport of Defendant.

{5} "While conducting an inventory pending impound of the vehicle," the officer took photographs of a number of items in the vehicle, namely, a shotgun, a loaded revolver, a two-foot long wooden bat/club, a wooden handle straight blade knife, nineteen rounds of shotgun shells, two box cutter type blades, a package of zig-zag rolling papers, a baseball cap with a particular symbol on it, as well as a bandana, both of which were known to the officer to be worn by gang members, and a Leatherman-type knife/multi-tool. At a later time, the officer noticed "NSL" written in the dust of the vehicle and knew those initials to be that of the "north side" gang.

{6} The officer moved Defendant from his unit to the unit that arrived to assist and requested a tow truck to remove Defendant's vehicle. Upon being advised that the tow truck was unavailable, the officer decided to locate Defendant's mother. When Defendant's mother was located, she informed the officer that the vehicle was her son's vehicle. The officer told her that Defendant was under arrest and that the officer was not able to impound the vehicle due to the unavailability of a tow truck, and asked her "if she could take custody/control of the vehicle." Defendant's mother said that she would take responsibility for the vehicle. The officer then seized the evidence he had found during his inventory of the vehicle.

{7} Defendant was ultimately charged with four counts of possession of a deadly weapon on school premises, contrary to NMSA 1978, § 30-7-2.1 (1994), but he was not charged with any counts based on possession of marijuana or paraphernalia. Defendant moved to suppress the evidence, and stated in his motion that he was charged with possession of marijuana and possession of drug paraphernalia. Defendant sought suppression of "all the evidence stemming directly or indirectly from the unlawful entry into his car, the seizure of a baggy from his pocket and /or from the unlawful search of his car." The State argued that the seizures of the marijuana and the weapons were justified on various grounds, but conceded that the pre-towing inventory search was not justified.

{8} The district court suppressed the marijuana, relying on State v. Garcia, 2005-NMSC-017 ¶ 29, 138 N.M. 1, 116 P.3d 72, in which our Supreme Court held that under New Mexico's Constitution, "even with an object in plain view, an officer may not enter the car and seize the object, without either consent, a warrant, or exigent circumstances." The court suppressed the paraphernalia and weapons as fruits of the illegal seizure of the marijuana. The State appeals from the order suppressing the evidence, asserting (1) that the New Mexico Constitution does not require a warrant in order to seize contraband in plain view from an occupied vehicle, and that case law cited as holding to the contrary does not apply to contraband in plain view on a defendant's person inside a vehicle; (2) that the contraband was properly seized pursuant to a search incident to arrest; (3) that the inevitable discovery and independent source doctrines apply in this case with respect to the marijuana and the weapons; and (4) that the weapons were properly seized as part of a search incident to arrest and based on exigent circumstances.

DISCUSSION

I. Standard of Review

{9} The facts are not in dispute. This Court's review of the district court's suppression of the evidence is de novo. State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18.

II. Seizure of the Marijuana Was Lawful

{10} The officer seized marijuana on Defendant's person while Defendant was behind the wheel of the vehicle. The marijuana was in plain view and the officer knew that it was marijuana. It was objectively clear that Defendant could drive away with the marijuana. The circumstances in State v. Weidner, 2007-NMCA-063, 141 N.M. 582, 158 P.3d 1025, which we are filing concurrently with the present case, are indistinguishable. In Weidner, we hold that the seizure of drugs in plain view from a person who is behind the wheel and in control of the vehicle, and a contemporaneous arrest for possession of the drugs are lawful based on the exigent circumstances and search incident to arrest exceptions to the warrant requirement. Id. ¶¶ 1, 17, 24. Our holding in Weidner controls here.

{11} We hold that the seizure of the marijuana from Defendant in the present case was lawful. Despite the fact that the record in this case reflected no drug-related charges against Defendant, the parties and the district court appear to have been operating under the assumption that Defendant was charged with drug-related crimes when, in fact, he had not been so charged. The district court suppressed the drug-related evidence and the State appealed that ruling. We hold that the court erred in suppressing the marijuana and the paraphernalia.

{12} Because we hold the seizure of the marijuana to be lawful, we need not, and therefore do not address the application of the independent source doctrine related to the marijuana. See State v. Wagoner, 2001-NMCA-014, ¶ 21, 130 N.M. 274, 24 P.3d 306 ("The independent source doctrine is an exception to the exclusionary rule where evidence is legally seized after an illegal search."). As we discuss next, notwithstanding the lawfulness of the seizure of the marijuana, we hold that the later seizure of the weapons was not constitutionally permissible.

III. Seizure of the Weapons Was Not Lawful

A. Preliminary Matters

{13} The State conceded in the district court that the proper procedures were not followed to justify the search as an inventory search and the State does not argue on appeal that the search was justified as an inventory search. Thus, we do not address whether the search was constitutional as an inventory search.

{14} On appeal, the State argues that the district court did not address the issue of suppression of the weapons separately from suppression of the marijuana even though the parties presented the questions separately. Thus, the State argues that if we reverse suppression of the marijuana we should remand for the district court to decide the issue of suppression of the weapons. We disagree. The parties made various arguments for and against allowing the weapons into evidence. The court, in its memorandum letter stated: "If this was a seizure from a vehicle, then Garcia would dictate suppression of the baggy, the arrest, and all that flows from that sequence of events. . . . I think Garcia controls, and the evidence must be...