STATE V. BRUBAKER, 1973-NMCA-152, 85
N.M. 773, 517 P.2d 908 (Ct. App. 1973)
STATE OF NEW MEXICO, Plaintiff-Appellant
vs.
RICHARD BRUBAKER and DALE ETTER VAUGHN,
Defendants-Appellees
COURT OF APPEALS OF NEW MEXICO
1973-NMCA-152, 85 N.M. 773, 517 P.2d 908
APPEAL FROM THE DISTRICT COURT OF DONA
ANA COUNTY, BURKS, Judge
E. H. WILLIAMS, JR., District Attorney,
Las Cruces, N.M., Attorney for Appellant.
PHILIP W. STEERE, T. K. CAMPBELL, Las
Cruces, N.M., Attorneys for Appellees.
SUTIN, Judge, wrote the opinion.
Joe W. Wood, C.J., and Ramon Lopez, J.
(Specially Concurring).
{1} The state appeals from an
order of the trial court which suppressed the evidence seized by the police
from a car occupied by the defendant. We affirm.
{2} Defendants were charged
(1) with illegal possession of marijuana contrary to § 54-11-23(A)(B)(3),
N.M.S.A. 1953 (Repl. Vol. 88 pt. 2, 1973 Supp.) and (2) with possession of
marijuana with intent to distribute contrary to § 54-11-22(A)(1), supra.
{3} At the hearing on motion
to suppress, the only evidence presented was the testimony
{*774}
of the patrol police officer involved in the case.
{4} The record shows that at
2:30 A.M. in Las Cruces, New Mexico, the patrol officer stopped for a red light
in the right hand lane of a road. The car occupied by the defendants stopped in
the left hand lane, a half car's length behind the officer. The car was a 1973
Plymouth with Arizona license plates.
{5} When the lights turned
green, the Plymouth waited for the officer to proceed past the intersection. In
proceeding, the Plymouth remained behind the officer. The speed limit was 35
m.p.h. The officer drove 15 miles per hour, the other car 10 miles per hour. This
seemed unusual to the police officer. After passing the intersection, the
officer pulled off on the shoulder of the road. As the Plymouth passed the
officer, he looked at the driver of the Plymouth and the driver turned his face
away. Two blocks later, the officer stopped the Plymouth. The only reason for
stopping the Plymouth was its hesitation in passing the officer. The officer
got out of his car and walked to the Plymouth occupied by the defendants.
{6} Defendant Vaughn was
asleep in the car. Defendant Brubaker, the driver, upon request, showed the
police officer his driver's license. When requested to show vehicle
registration, Brubaker explained that the car was an Arizona rental; that it
was two weeks overdue at the Tucson International Airport. Upon request,
Brubaker produced the rental contract. The lessee was Marie or Margie Corkill.
The officer thought the inside of the car smelled like marijuana that had been
smoked, but he was not sure. So the officer did not charge defendants with any
criminal violations.
{7} The officer asked
Brubaker to follow him to the police station in order to check with the rental
agency in Tucson. On arrival at the police station, Brubaker locked the car and
took his keys with him. Inside the police station, Brubaker and Vaughn were
placed in separate rooms. Tucson was checked and Hertz Rent A Car requested the
car be held and it would send someone to pick it up.
{8} The patrol officer, in
the absence of Vaughn, asked Brubaker for his keys because the car had been impounded
and he wanted to inventory it. The patrol officer, at this time, did not
suspect Brubaker of anything. The officer told Brubaker if he did not give up
the keys, the officer would take them away from him. The officer meant he would
use necessary force. Brubaker gave the officer the keys. The officer requested
consent in writing to search the car but Brubaker refused to sign the consent.
{9} The patrol officer stated
he had no probable cause to search until contact was made with Tucson. In the
absence of defendants, the patrol officer, together with another officer, went
to look into the car and to inventory it. In the front and back seats, the
officers found marijuana seeds. In the trunk of the car, three suitcases were
found, and upon opening them, 80 pounds of marijuana were found, and the
defendants were then placed under arrest.
{10} The state discarded its
right to an inventory search and admitted it had no right to search when the
car was stopped on the road. The warrantless search of the Plymouth, and
seizure of the marijuana seeds and marijuana, was unlawful because consent was
to given, the search was not pursuant to an arrest, and there was no probable
cause to warrant a search. State v. Torres,
81 N.M. 521,
469 P.2d 166 (Ct. App.
1970); State v. Johnson,
85 N.M. 465,
513 P.2d 399 (Ct. App. 1973);
Almeida-Sanchez v. United States, 413 U.S. 266, 93 S. Ct. 2535, 37 L. Ed. 2d
596 (1973); United States v. Byrd, 483 F.2d 1196 (5th Cir. 1973). Compare Cady
v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).
Joe W. Wood, C.J., and Ramon Lopez, J. (Specially
Concurring).
{*775} WOOD, Chief
Judge (Specially Concurring).
{13} No claim is made that
defendants consented to a search or that the search was incidental to the
arrest of defendants. The issue before the trial court, and here, is whether
the officers who searched the trunk of the car had probable cause for a
warrantless search.
{14} In the trial court, the
State contended that probable cause resulted from a combination of information
acquired in the various investigative steps. That information was: (a) the
smell of marijuana when the car was initially stopped; (b) absence of vehicle
registration papers; (c) an expired car rental agreement in the name of a
person other than defendants; (d) a request by the car rental agency that the
vehicle be held for the agency; (e) discovery of marijuana seeds in the seats
of the car upon entering the care to inventory its contents. The State asserted
to the trial court that this combined information provided probable cause for a
"complete and full search of the vehicle" and, thus, probable cause
for searching the trunk of the car and the contents of the trunk.
{15} No such contention is
presented on the appeal. Accordingly, it is not necessary to consider whether
the record supports the facts on which the State relied in the trial court and
is not necessary to consider whether the alleged facts were legally sufficient
for a "probable cause" search.
{16} In the appeal, the State
expressly declined to defend the search of the trunk and its contents on the
basis of an inventory search. Accordingly, no question is presented as to the
continuing validity of State v. Nemrod,
85 N.M. 118,
509 P.2d 885 (Ct. App.
1973) or the effect of the United States Supreme Court decision in Cady v.
Dombrowski, supra, upon
Nemrod, supra.
{17} In the appeal the State
defends the search of the trunk solely on the basis that probable cause existed
at the time of the initial stop of the car on the street. Although the State
does not abandon items (b) and (c) above - the absence of vehicle registration
papers and the expired car rental agreement - the State's emphasis is that
"probable cause" can be based on the marijuana smell.
{18} The State's contention
is not before us for review. In trial court, the State's position was that
probable cause for a search did
not exist at the time of the initial
stop of the vehicle. The State is attempting to change its theory on appeal.
See Maryland Casualty Company v. Foster,
76 N.M. 310,
414 P.2d 672 (1966). The
State's theory on appeal is not before us for review because such a theory was
not an issue raised in the trial court. State v. Lopez,
84 N.M. 402,
503 P.2d
1180 (Ct. App. 1972).
{19} I do not join in Judge
Sutin's opinion because it appears to decide the search issue on the merits. On
the basis of the foregoing discussion, I concur in the result reached.
LOPEZ, J., concurs in Chief Judge WOOD's specially concurring
opinion.