STATE V. AUSTIN, 1978-NMCA-063, 91 N.M.
793, 581 P.2d 1288 (Ct. App. 1978)
STATE of New Mexico,
Plaintiff-Appellant,
vs.
Johnny AUSTIN and Leonardo Hooks, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1978-NMCA-063, 91 N.M. 793, 581 P.2d 1288
Motion for Rehearing Denied July 10,
1978
Toney Anaya, Atty. Gen., Robert G. Sloan,
Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.
Sarah M. Singleton, Pickard &
Singleton, Santa Fe, for defendants-appellees.
WOOD, C.J., wrote the opinion. HENDLEY and
LOPEZ, JJ., concur.
{*794} WOOD, Chief
Judge.
{1} These consolidated
appeals present questions concerning the search of the trunk of the automobile
driven by Hooks and in which Austin was a passenger. We discuss: (1)
defendants' standing, and (2) consent to search.
{2} Defendants' automobile
was going 65 m.p.h. in a 55 m.p.h. zone. The state police officer stopped the
vehicle for the purpose of issuing a ticket for speeding. Hooks' driver's
license had expired. The officer was shown a "temporary transfer"
card filled out in pencil with a possible alteration of the year shown on the
card. The officer became suspicious that the car was stolen, and asked what was
in the trunk. Informed there was luggage, the officer asked permission to look.
Hook said either "Yes" or "Okay", and without hesitation,
opened the trunk.
{3} There was luggage in the
trunk. In addition, the officer saw a partially open paper sack from which the
top of a prescription bottle protruded. The officer opened the sack, there was
cocaine in the bottle. Thereafter the car was searched, marijuana and additional
incriminating evidence were discovered and seized. Defendants moved to suppress
"all evidence or items seized". After an evidentiary hearing, the
trial court suppressed the cocaine. The State appealed.
{4} The State contends the
motion to suppress should have been denied because defendants' lacked standing.
The State asserts that defendants failed to affirmatively show that they were
legitimately in the vehicle that was searched. Defendants were charged with
possession of cocaine with intent to distribute, and possession of marijuana.
{5} Defendants had standing
because possession of the cocaine and marijuana were essential elements of the
offenses with which they are charged.
State v. Nemrod,
85 N.M. 118,
509
P.2d 885 (Ct. App.1973), overruled on other grounds in
State v. Vigil,
86 N.M. 388,
524 P.2d 1004 (Ct. App.1974), cert. denied, 420 U.S. 955, 95 S.
Ct. 1339, 43 L. Ed. 2d 432 (1975); see
State v. Ellis,
88 N.M. 90,
537
P.2d 698 (Ct. App.1975);
State v. Torres,
81 N.M. 521,
469 P.2d 166 (Ct.
App.1970).
{6} Relying principally on an
overruled Maryland decision, the State contends
State v. Nemrod, supra,
should no longer be followed. We disagree. A defendant charged with possession
has standing to challenge the validity of the seizure of the items allegedly
possessed.
{7} The trial court found
there was a valid consent to search the trunk of the automobile. The trial
court also found that the consent was "factually established by clear and
convincing evidence." Nevertheless,
{*795}
the trial court suppressed the cocaine on the basis that
State v. Ruud,
90 N.M. 647,
567 P.2d 496 (Ct. App.1977) required this result.
{8} The trial court's
findings are consistent with
Ruud, supra. Under those findings,
Ruud,
supra, did not require that the cocaine be suppressed. The trial court found a
legitimate stop for speeding, that the officer had a reasonable basis for a
"stolen automobile investigation", that Hooks consented to the
officer looking in the trunk and without hesitation opened the trunk, that when
giving consent there was nothing in the circumstances that was coercive or
indicative of coercion other than the presence of the officers, that defendants
presented no evidence of lack of valid consent. From the findings, the trial
court could properly rule the evidence was clear and convincing, as required in
State v. Ruud, supra.
{9} Contrary to defendants'
contention, the trial court's findings are supported by substantial evidence.
This evidence is much more than was present in
Ruud, supra; thus, this
case is factually distinguishable from
Ruud, supra. The evidence in this
case "could properly be construed as consent on this defendant's part to
look into and make a search of the trunk."
State v. Bloom,
90 N.M.
192,
561 P.2d 465 (1977).
Even assuming the consent to look into the trunk was valid,
the consent was limited on its face to looking into the trunk to see if there
was luggage. The officer's sole purpose for looking into the trunk was to
determine whether there was luggage, the presence of which would have indicated
the car was not stolen. Once the officer saw the luggage his viewing should
have ceased. He had neither reason nor permission to seize the paper bag nor to
search it.
{11} This argument is a
cunning attempt to confuse the facts. It is true that the officer was not
looking for anything but luggage. He testified he opened the paper sack because
he was curious. The officer's personal motivations are not pertinent. Hooks
consented to a search of the trunk and this consent was unlimited. There is no
issue concerning a search in scope beyond the consent given. Searching pursuant
to the consent, the officer could properly seize contraband found during the
search. See
State v. Alderete,
88 N.M. 619,
544 P.2d 1184 (Ct.
App.1976).
{12} The order of the trial
court, suppressing the cocaine, is reversed. The cause is remanded for further
proceedings.
HENDLEY and LOPEZ, JJ., concur.