State v. Villanueva, Nos. 11511

• Docket Nº: Nos. 11511
• Citation: 796 P.2d 252, 1990 NMCA 51, 110 N.M. 359
• Case Date: April 24, 1990
• Court: Court of Appeals of New Mexico

Page 252

796 P.2d 252 110 N.M. 359 STATE of New Mexico, Plaintiff-Appellant,
v.
Jose Mario VILLANUEVA, Defendant-Appellee. Nos. 11511, 11560. Court of Appeals of New Mexico. April 24, 1990.
Certiorari Denied June 27, 1990.

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[110 N.M. 360] Hal Stratton, Atty. Gen., and Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Timothy M. Padilla, Timothy M. Padilla & Associates, P.C., Albuquerque, for defendant-appellee.

OPINION

DONNELLY, Judge.

Both the state and defendant pursue interlocutory appeals from an order granting in part and denying in part defendant's motion for suppression of evidence seized at a border checkpoint. We discuss: (1) whether the border patrol's stop of a commercial bus in which defendant was a passenger, and the use of a narcotics detection dog to sniff the bus luggage compartments, constituted an illegal search; (2) whether the court erred in suppressing baggage claim tickets found as a result of a search of the defendant; and (3) whether the trial court erred in denying defendant's motion to suppress evidence obtained following a warrantless search of defendant's luggage. We affirm the rulings of the trial court.

On June 11, 1988, defendant was a passenger on a bus that was travelling north into New Mexico from El Paso, Texas. The bus was stopped at a border patrol checkpoint near Oro Grande, in Otero County. In accordance with routine procedure, border patrol agents checked the citizenship of the passengers and obtained permission from the bus driver to open the luggage compartments on the bus. The agents then used a trained dog to sniff the luggage area for the presence of humans or possible narcotics. The dog reacted positively to two pieces of luggage which the bus driver indicated had been given to him by defendant. A third suitcase, a blue bag, was also pointed out by the driver as belonging to defendant.

A border patrol agent asked defendant if the luggage in question belonged to him. Defendant denied having any luggage on the bus. Defendant was then asked if he would mind exiting the bus and stepping inside the checkpoint trailer so the officers could talk to him further. Inside the trailer, defendant again denied having any luggage. The officers asked defendant to empty his pockets. An officer also told defendant to remove his shoes. Defendant took off his left shoe and shook it. The

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[110 N.M. 361] officer then said "[T]ake off your right shoe." Defendant reluctantly complied and three baggage claim tickets fell out of his shoe. Defendant immediately covered up the tickets with his foot. An officer told him to move his foot and retrieved the tickets. Examination of the tickets indicated that they matched those on the luggage alerted to by the dog. At this point the agents summoned a state police officer; the three bags were removed from the bus; and it was allowed to leave without defendant.

After the arrival of the state police officer, defendant was read his Miranda rights, and he requested to speak with an attorney. Without obtaining a search warrant, the agents proceeded to open and search the three items of luggage. The search revealed approximately 40 pounds of marijuana contained inside the luggage. Defendant was then arrested and charged with possession of marijuana with intent to distribute. After defendant was arrested, the officers continued questioning defendant. Defendant told the officers that he had carried the marijuana across the river in burlap bags, that he had purchased the suitcases to transport the contraband and had boarded the bus in El Paso en route to Denver, Colorado.

Defendant filed a motion to suppress evidence of the three baggage claim tickets, the marijuana found in the luggage identified by numbers matching those of the claim tickets, and the oral statements made by defendant after he requested the opportunity to speak to an attorney. Following an evidentiary hearing, the court entered an order suppressing evidence of the baggage claim tickets and defendant's oral statements, but refused to rule that the dog sniff was illegal or to grant defendant's motion to suppress the marijuana discovered in the suitcases. The state does not challenge on appeal the trial court's order suppressing defendant's oral statements given after he indicated that he wished to speak to an attorney.

I. PROPRIETY OF CANINE DETECTION

Defendant asserts that the action of the officers in subjecting his luggage to examination by a trained drug detection dog, without any showing of probable cause or exigent circumstances, constituted an illegal search contrary to the fourth amendment.

The United States Supreme Court has addressed the fourth amendment status of a canine sniff examination in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Place held that although an individual possesses a privacy interest in the contents of personal luggage that is protected by the fourth amendment, subjecting luggage or personal effects to examination by means of a dog sniff differs from other types of intrusions, and that "exposure of * * * luggage * * * located in a public place, to a trained canine--[does] not constitute a 'search' within the meaning of the Fourth Amendment." Id. at 707, 103 S.Ct. at 2644.

Other courts which have considered this issue have reached similar results. See United States v. Stone, 866 F.2d 359 (10th Cir.1989) (police use of narcotic's detection dog to sniff automobile held not to be illegal search); United States v. MacDonald, 670 F.2d 910 (10th Cir.), cert. denied, 459 U.S. 1015, 103 S.Ct. 373, 74 L.Ed.2d 508 (1982) (use of trained dog to sniff for contraband in area where officer and dog are not trespassing does not constitute an unreasonable search contrary to fourth amendment); United States v. Venema, 563 F.2d 1003 (10th Cir.1977) (the olfactory activities of a trained police dog legitimately on the premises held not to constitute a search); United States v. Bronstein, 521 F.2d 459 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976) (alert of trained dog to presence of possible narcotics held not to amount to search or seizure).

Additionally, like results have been upheld by appellate courts in Arizona and Hawaii. State v. Martinez, 26 Ariz.App. 210, 547 P.2d 62 (1976) (use of trained dog to sniff for possible marijuana was not search where vehicle was lawfully stopped); State v. Snitkin, 67 Haw. 168,

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[110 N.M. 362] 681 P.2d 980 (1984) (narcotics detection dog's sniff of a package held not to be a fourth amendment search). See also State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (Ct.App.1979) (odor of controlled substance is evidence to establish probable cause for search of vehicle). See generally, Annotation, Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 31 A.L.R.Fed. 931 (1977). Compare United States v. Beale, 674 F.2d 1327 (9th Cir.1982) (use of dog sniff to check luggage held to constitute search within meaning of fourth amendment but could be conducted without warrant subject to articulable, founded suspicion); Horton v. Goose Creek Indep. School Dist., 690 F.2d 470 (5th Cir.1982) (use of sniffer dog to check students in classroom violated fourth amendment); United States v. Morales, 714 F.Supp. 1146 (D.N.M.1989) (use of trained canine to sniff for contraband held improper where it intruded upon defendant's reasonable expectation of privacy); People v. Evans, 65 Cal.App.3d 924, 134 Cal.Rptr. 436 (1977) (dog search without prior knowledge or suspicion of presence of contraband held improper).

Border patrol agent Sanchez testified that the dog used to check the luggage compartment had over 200 hours of training, was taken to El Paso for additional training every two weeks, and had recently been recertified. We apply the rationale set forth in Place and MacDonald to the facts before us. We hold that the use of a trained narcotics detection dog, in an area where the officers and the animal have a right to be, for the purpose of sniffing for odor of narcotics or other contraband, does not constitute an illegal search. See United States v. Venema; People v. Mayberry, 31 Cal.3d 335, 644 P.2d 810, 182 Cal.Rptr. 617 (1982). We do not agree under the facts herein that we should adopt the rule urged by defendant that the use of a trained sniffer dog was proper only after officers had first...