State v. Valencia Olaya, 9263

• Decision Date: 05 March 1987
• Docket Number: No. 9263,9263
• Citation: 736 P.2d 495,1987 NMCA 40,105 N.M. 690
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Henry VALENCIA OLAYA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 495

736 P.2d 495

105 N.M. 690

STATE of New Mexico, Plaintiff-Appellee, v. Henry VALENCIA OLAYA, Defendant-Appellant.

No. 9263.

Court of Appeals of New Mexico.

March 5, 1987.

Certiorari Denied May 7, 1987.

[105 NM 690] Dean E. Border, Mitchell & Border, Tucumcari, for defendant-appellant.

[105 NM 691] Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MINZNER, Judge.

Defendant appeals his conviction for possession of cocaine, contending that the trial court erred in denying his motion to suppress evidence seized prior to arrest. Defendant raises three issues: (1) whether the police roadblock violated the fourth amendment of the United States Constitution and article II, Section 10 of the New Mexico Constitution; (2) whether the state established that defendant consented to the search of his automobile; and (3) whether the search followed an unlawful detention that tainted defendant's consent. We affirm.

BACKGROUND.

Defendant, a Panamanian citizen, and his companion, also Latin American, were driving east from Tucumcari on Interstate 40 in a 1982 car bearing Texas license tags, approximately 20 miles from the Texas border. On October 5, 1985, at approximately 9:30 a.m., they were stopped by State Police Officers Toler and Wallace at a routine roadblock.

The officers were given permission by their immediate supervisor to establish the roadblock at a place of their choice. They were required to use reflectors, marked units, and a stop sign. They stopped all privately-owned, east-bound vehicles in order to check driver's licenses and car registrations and, for New Mexico drivers, to check proof of insurance. Commercial vehicles were waved through, as a border checkpoint for them lay several miles ahead.

When defendant drove up alongside the stop sign, Officer Toler requested his license and car registration. Defendant gave him a valid Texas driver's license; a current registration in the name of Juan Cantu; an application for Texas title transfer dated November 1, 1982, and signed by defendant and Cantu; and a retail installment contract between Cantu and GMAC dated July 26, 1982. In addition, defendant's companion gave Officer Toler his valid temporary Texas driver's license.

Officer Toler requested that defendant pull his car to the right shoulder. He testified that he did this because he smelled deodorizer in the car and because of the title irregularity. He returned to his patrol car and ran an NCIC check on defendant, his companion, and the automobile. The NCIC response was negative. He returned to defendant, handed him all his documents, and then asked defendant from where he was traveling and where he was going. Defendant said he was traveling from Albuquerque to Houston. At this point, the officer asked for consent, but here the officer's testimony and that of defendant diverges.

Officer Toler testified on direct examination that he asked defendant if he could look inside the vehicle, and that after defendant agreed, he asked if he could look in the trunk first. Defendant responded by opening the trunk with the latch inside the car. On cross-examination, the officer said that he did not specifically ask to look in the trunk. Rather, he asked defendant what he had in the car. Defendant replied he had luggage and the officer said "well, I'd like to look in your vehicle," at which point defendant said "yes, sir," and opened the trunk.

Defendant testified the officer asked what he had in the car and he replied "just luggage." The officer then said "I need to see your luggage, can you open the trunk?" Defendant said "yes, sir," and opened the trunk.

The officer and defendant agree that defendant stood near the back of the car while Officer Toler searched the trunk and opened and searched the luggage in the trunk. They also agree that the officer did not ask permission to open the luggage but that defendant did not object.

Officer Toler testified that after searching the trunk he asked if he could look inside the vehicle itself. When defendant said yes, he asked defendant to have his friend get out of the car.

Defendant, on the other hand, testified that after Officer Toler looked in the luggage he "was talking about the ownership of the car," so defendant gave him additional papers regarding the car. The additional papers apparently included a power of attorney from Cantu. Defendant testified that Officer Toler then entered the back seat. Defendant also testified that the officer never asked him if he could look in the car, but only if defendant could open the trunk.

Upon checking the passenger compartment, the officer discovered a bottle of Pine Sol. Noticing that a vent cover in the door was loose, he removed it with a screwdriver from his patrol car and discovered six small packages of tin foil containing cocaine.

Officer Toler testified that he decided he wanted to search the car thoroughly after receiving the NCIC response and before returning to defendant's car. He was suspicious because the occupants of the car were Latin American and were traveling east to a large city, and because of the irregularity in the title. According to Officer Toler's testimony, these are characteristics he believed to be common in drug cases. He also testified that he made a conscious decision not to ask for a written consent to search, even though he had consent forms in his patrol car. He estimated that about ten minutes elapsed from the time defendant entered the roadblock until the cocaine was found.

After a hearing, the trial court entered an order that contained findings of fact. With respect to the roadblock, the trial court found: "[t]he roadblock was conducted in daylight with due regard for proper location, equipment, officers and traffic conditions. The Court finds no evidence of the delegation of unbridled discretion to the officers nor did they act to assume same."

The trial court also specifically found "that Officer Toler did ask to look into the vehicle" and that "defendant was not afraid or frightened." The trial court found that "the consent to search the vehicle was not confusing nor misleading," and that, although defendant was present throughout the search, he did not "give the officer any indication of any lack of consent to search the automobile." Finally, the trial court found that "the brief detention was reasonable."

Based on these findings, the trial court ruled the roadblock was valid. The court sustained the search on the basis of a valid consent and denied defendant's motion to suppress.

THE VALIDITY OF THE ROADBLOCK.

New Mexico recognizes the validity of routine roadblock stops for the purpose of checking driver's licenses, registrations, and proof of insurance. State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977); State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975); State v. Ruud, 90 N.M. 647, 567 P.2d 496 (Ct.App.1977). The Tenth Circuit has, on several occasions, approved the application of roadblocks set up to make routine checks of licenses and registrations. United States v. Diaz-Albertini, 772 F.2d 654 (10th Cir.1985).

Defendant concedes the validity of systematic non-random roadblocks, but he argues that the lack of written guidelines setting explicit and neutral limitations on the conduct of individual officers violates the standards articulated in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In Delaware v. Prouse, the Court held that:

[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the * * * States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.

Id. at 663, 99 S.Ct. at 1401 (footnote omitted). See also Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

Delaware v. Prouse and the cases that have applied it prohibit unbridled discretion on the part of police officers in conducting their stops, but the facts in this case are distinguishable. Officers Toler and Wallace conducted a permissible-type roadblock designed to stop every vehicle on the highway, except commercial carriers. Moreover, the officers' conduct had explicit and neutral limitations. The record discloses that they stopped all private vehicles for the purpose of checking license, registrations, and proof of insurance.

Defendant relies heavily on cases addressing the unconstitutionality of drunk driving stops where officers in the field acted without specific guidelines set by high-ranking superior officers. State ex rel. Ekstrom v. Justice Court of Arizona, 136 Ariz. 1, 663 P.2d 992 (1983) (en banc); Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983). In each of these cases, a state supreme court affirmed a trial court's decision that a roadblock violated fourth amendment protection. In the first case, the record discussed a "not insubstantial amount of discretionary law enforcement activity," State ex rel. Ekstrom v. Justice Court of Arizona, 136 Ariz. at 5, 663 P.2d at 996, and in the second, the record failed "to establish sufficient police presence, and adequate lighting and warning to approaching motorists" and did not otherwise "establish lack of arbitrariness and undue delay." See Commonwealth v. McGeoghegan, 389 Mass....