STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
FRANK STEVEN APODACA, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1991-NMCA-048, 112 N.M. 302, 814 P.2d 1030
Appeal from the District Court of
Socorro County; Leslie C. Smith, District Judge.
Petition for Writ of Certiorari Denied
July 8, 1991
Tom Udall, Attorney General, Margaret B.
Alcock, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
Todd Hotchkiss, TIMOTHY M. PADILLA &
ASSOCIATES, P.C., Albuquerque, New Mexico, Attorneys for Defendant-Appellant.
Harris L. Hartz, Judge. Thomas A.
Donnelly, Judge, William W. Bivins, Judge, concur.
{1} Defendant was convicted
of possession with intent to distribute marijuana. He was stopped while driving
north on Interstate 25 south of Socorro. Officer Pete Conticelli stopped the
vehicle for an alleged violation of the New Mexico safety-belt statute. After
inquiry regarding the ownership and destination of the vehicle, Officer
Conticelli obtained permission to look in the trunk. There he found a suitcase
from which he claimed he detected the odor of marijuana. With the assistance of
a passing border patrol agent, Officer Conticelli broke open the suitcase; it
contained the marijuana that formed the basis of defendant's conviction.
{2} On appeal defendant
challenges the denial of his motion to suppress the marijuana. He contends: (1)
the officer did not have reasonable suspicion to justify the initial stop of
his vehicle, (2) the stop was pretextual, (3) consent to search was illegally
obtained during the course of an unjustifiably prolonged detention, (4) any
consent to search was withdrawn before the suitcase was opened, and (5) the
warrantless search of the suitcase was unlawful. Defendant also contends that
there was insufficient evidence to establish that the alleged crime occurred in
New Mexico. We affirm.
{3} We view the evidence in
the light most favorable to support the district court's ruling on the motion
to suppress and the jury's verdict.
See State Lankford,
92 N.M. 1,
582
P.2d 378 (1978);
State v. Boeglin,
100 N.M. 127,
666 P.2d 1274 (Ct. App.
1983).
{4} The New Mexico safety
belt statute, NMSA 1978, Section
66-7-372(A) (Repl. Pamp. 1987) states in
pertinent part:
Each front seat occupant of a passenger car manufactured with
safety belts in compliance with federal motor vehicle safety standard number
208 shall have a safety belt properly fastened about his body at all times when
the vehicle is in motion, unless all seating positions equipped with safety
belts are occupied.
Officer Conticelli testified that he stopped defendant's
vehicle because the shoulder harnesses for the driver and front seat passenger
were dangling from the ceiling. Defendant contends that the dangling shoulder
harnesses did not establish noncompliance with the statute because the statute
required only fastening the lap belt, {*304}
which could be disconnected from the shoulder harness. Therefore, in his
view, Officer Conticelli did not have reasonable grounds to believe that
defendant and his passenger were violating the law.
{5} We find it unnecessary to
decide whether defendant's construction of Section 66-7-372 is corrected. Even
if it is, Officer Conticelli possessed sufficient information to establish
reasonable suspicion justifying the stop. We agree with the district court that
police officers should not be required to know the design of the safety-belt
system in every motor vehicle. Moreover, regardless of whether Officer
Conticelli knew that the lap belt could be detached from the shoulder harness
in defendant's vehicle, it was reasonable for him to believe that a driver or
passenger who permitted the shoulder harness to dangle free was not wearing his
lap belt either. A reasonable suspicion may be a mistaken one.
Cf. State v.
Eden,
108 N.M. 737,
779 P.2d 114 (Ct. App. 1989) (reasonable but mistaken
belief that snowmobile was a motor vehicle did not invalidate arrest).
{6} Defendant argues that the
stop of his vehicle was unconstitutional under the doctrine expressed in
United
States v. Guzman, 864 F.2d 1512 (10th Cir. 1988).
Guzman held that a
stop is unconstitutional if "'under the same circumstances a reasonable
officer
would [not] have made the stop in the absence of the invalid
purpose.'"
Id. at 1515 (quoting
United States v. Smith, 799
F.2d 704, 709 (11th Cir. 1986) (emphasis in original). As in
State v.
Benjamin C.,
109 N.M. 67,
781 P.2d 795 (Ct. App. 1989), we need not decide
whether to follow
Guzman, because the
Guzman pretext doctrine
would not invalidate the stop in this case.
{7} The district court
rejected defendant's claim under
Guzman, making a specific finding that
"the stop was not pretextual in nature." Officer Conticelli testified
that he had a practice of stopping vehicles for violations of the safety-belt
law. He stated that in the past year he had issued some fifty citations and an
additional fifty warnings for such violations. He testified that he had consulted
with his superiors about this practice. Defense counsel vigorously
cross-examined the officer concerning his motivations for the stop, and
defendant's testimony at the suppression hearing could have cast suspicion on
the officer's testimony. The issue, though, is whether the evidence at the
hearing was sufficient to justify the district court's determination that the
stop was not pretextual. It was.
See United States v. Werking, 915 F.2d
1404, 1408 (10th Cir. 1990).
III. PROLONGATION OF THE STOP
{8} Defendant contends that
even if the initial stop was lawful, he should have been released prior to the
request to search the trunk. We disagree.
{9} After defendant was
stopped, he exited his vehicle and approached Officer Conticelli, who requested
defendant's driver's license. Officer Conticelli noted that defendant carried a
Texas driver's license while the vehicle bore Oklahoma license plates. During a
period of less than ten minutes Officer Conticelli pursued this discrepancy. He
requested the vehicle registration. Defendant could not produce one. Defendant
stated that he was buying the vehicle from someone named "Jason." He
also stated that he had been in El Paso and was returning the car to Jason in
Oklahoma. When Officer Conticelli asked defendant how he had travelled to El
Paso in the first place, defendant did not respond. When the officer asked the
passengers in the vehicle where they were going, they said Ruidoso. Defendant
did not respond when the officer asked him why the passengers and defendant
declared different destinations. During the conversation defendant appeared
nervous as he repeatedly removed and put on his sunglasses. At some point
during these discussions Officer Conticelli ran a computer check on defendant's
vehicle. The check came back "not on file," which the officer
interpreted as meaning that the vehicle was newly registered. His suspicions
aroused by the information he had obtained, Officer Conticelli requested
permission to look in the trunk of the vehicle. Defendant does not
{*305} challenge the district court's finding
that he voluntarily consented.
{10} We hold that the
information acquired by Officer Conticelli was sufficiently suspicious to
justify the relatively brief detention of defendant and his vehicle. Officer
Conticelli's inquiries were appropriate police work. When Officer Conticelli
requested permission to look in the trunk, there were still several suspicious
circumstances that had not been resolved. Therefore, we need not rely on our
holding in
State v. Bolton,
111 N.M. 28,
801 P.2d 98 (Ct. App. 1990),
that even after reasonable suspicion has been dissipated, an officer may detain
a motorist momentarily to request permission for a search. Also, because
Officer Conticelli had reasonable grounds to detain defendant, we need not
decide whether the latter part of the conversation took place during a
detention or during a consensual encounter.
See United States v. Werking
(encounter between officer and driver became consensual citizen encounter once
officer returned license and registration to driver);
United States v.
Deases, 918 F.2d 118 (10th Cir. 1990) (following
Werking).
{11} On appeal defendant
makes much of Officer Conticelli's testimony that defendant and his passengers
were free to leave while the officer was conducting his inquiry. Defendant
suggests that this testimony meant that any suspicion must have lapsed. The
officer's subjective belief, however, is not relevant to the existence of
reasonable suspicion.
See Bolton, 111 N.M. at 28, 801 P.2d at 112; 1 W.
LaFave,
Search and Seizure 3.2(b) (2d ed. 1987). The information known
to Officer Conticelli justified the detention. Nothing more was required.
IV. SEARCH OF THE SUITCASE
{12} Defendant contends that
the search of the suitcase found in the trunk cannot be justified as a consent
search. The state does not challenge that contention. The findings of the
district court refer only to consent to search the trunk. The court justified
the search of the suitcase itself on the basis of probable cause. Therefore, we
consider whether there was probable cause to search the suitcase and whether
that probable cause justified a search without a warrant.
1
{13} The district court found
"that probable cause existed for the search once the trunk was open and
the officer identified marijuana on the outside of the suitcase." That
finding was supported by the evidence. Officer Conticelli testified that when
the trunk was opened he observed three small overnight bags and a suitcase. On
the handle of the suitcase was a green substance that he believed to be
marijuana. He leaned his head near the suitcase and smelled the odor of
marijuana. He had considerable training and experience in detecting marijuana
by its odor. Thus, Officer Conticelli had probable cause to believe that the
suitcase contained marijuana.
See State v. Capps,
97 N.M. 453,
641 P.2d
484 (1982);
State v. Sandoval,
92 N.M. 476,
590 P.2d 175 (Ct. App.
1979).
{14} To justify searching the
suitcase without a warrant, however, the officer needed probable cause to
search not just the suitcase but the entire vehicle. In
United States v.
Ross, 456 U.S. 798 (1982), the United States Supreme Court held that if
officers possess probable cause to justify the search of a motor vehicle, they
can search without a warrant every part of the vehicle and its contents,
including sealed containers, that may conceal the object of the search.
Id.
at 825. The New Mexico Supreme Court followed
Ross in
State v. Pena,
108 N.M. 760,
779 P.2d 538 (1989).
Ross overruled in part
Arkansas v.
Sanders, 442 U.S. 753 (1979) (ordinarily need warrant to search luggage in
automobile), upon which we relied in
State v. White,
94 N.M. 687,
615
P.2d 1004 (Ct. App. 1980), and
State v. Walker,
93 N.M. 769,
605 P.2d
1168 (Ct. App. 1980). Although we have previously recognized the rule in
Ross,
see State v. Miles,
108 N.M. 556,
775 P.2d 758 (Ct. App. 1989),
{*306} we have not expressly overruled
White
and
Walker to the extent that they are inconsistent with
Ross. It
is appropriate for us to do so now, particularly given our Supreme Court's
approval of
Ross in its decision in
Pena.
{15} In this case Officer
Conticelli had probable cause to search the entire vehicle. Having identified
marijuana on (and in) one container in the vehicle, he had probable cause to
believe that elsewhere in the vehicle there was additional marijuana and other evidence
of the offense, such as documentation identifying the perpetrators.
See
State v. Pena (discovery of marijuana residue on roach clip in vehicle
ashtray established probable cause to search entire vehicle);
State v. Capps
(odor of marijuana provided probable cause to search passenger compartment and
trunk);
State v. Sandoval (same).
{16} The fact that the
evidence of the presence of contraband may have focused on a specific container
did not dispel probable cause to search the entire vehicle. In
United States
v. Johns, 469 U.S. 478 (1985), officers who had been conducting
surveillance on two pickup trucks smelled marijuana as they approached the
vehicles. In the back of the trunks they recognized packages of the sort
commonly used for marijuana. The Supreme Court wrote:
Given their experience with drug smuggling cases, the
officers no doubt suspected that the scent was emanating from the packages that
they observed in the back of the pickup trucks. The officers, however, were
unaware of the packages until they approached the trucks, and contraband might
well have been hidden elsewhere in the vehicles.
Id. at 482. The Court held that Ross applied
because there was probable cause to search the vehicles.
{17} In our view, the United
States Supreme Court decision in
Johns, as well as New Mexico precedents
such as
Pena, Capps, and
Sandoval, compel the conclusion that
Officer Conticelli had probable cause to search the entire vehicle. Therefore,
no warrant was required to search the suitcase.
2
V. PROOF THAT THE CRIME OCCURRED IN NEW MEXICO
{18} The state bore the
burden of proving beyond a reasonable doubt that the alleged offense occurred
within New Mexico.
See State v. Benjamin C.. Defendant contends that the
state failed in meeting this burden because of the absence of affirmative
evidence that defendant was seized at a particular place in New Mexico. We
reject this contention. Circumstantial evidence sufficed to establish the
location of the crime.
See State v. Ramirez,
89 N.M. 635,
556 P.2d 43
(Ct. App. 1976).
{19} The state's summary of
the pertinent evidence, which has not been challenged by defendant, includes:
1. Officer Conticelli testified that he was a New Mexico
State Police Officer residing in Socorro and that he was on his regular patrol
when he stopped defendant on Interstate 25.
2. Officer Conticelli testified that he ran a registration
check through the State of Oklahoma on the license plate displayed on
defendant's vehicle. When asked how long the check took, he responded:
"From out of state it takes longer than New Mexico. It took a couple of
minutes."
3. When cross-examined about the identity of the border
patrol agent who assisted him in opening the suitcase, Officer Conticelli
testified that the agent regularly transported illegal aliens back and forth
through Officer Conticelli's patrol area and routinely stopped to offer Officer
{*307} Conticelli assistance. Asked
where the agent patrolled, Officer Conticelli answered: "He doesn't
patrol. All he does is transport prisoners from Albuquerque to down south-- T
or C or wherever their holding area is for the illegals."
4. A state police narcotics agent called to establish the
chain of custody of the marijuana testified that he took custody of the blue
suitcase containing the marijuana from Officer Conticelli in Socorro.
5. State's Exhibit 3, a New Mexico State Police form entitled
"Drug Control Report," records that the marijuana was seized on
Interstate 25 in Socorro County.
{20} To this summary we need
add only that there was no need to tell a jury in Socorro County that Socorro
and T or C (whose official name is "Truth or Consequences") are
within New Mexico.
{21} For the above reasons,
we affirm defendant's conviction.
1
The state also contends that defendant abandoned the suitcase, thereby waiving
any fourth amendment protection with respect to the suitcase. We do not address
that argument. The district court made no finding regarding abandonment. Nor
does the state's brief or our review of the record indicate that the issue was
preserved in the district court.
2
We note that this is not a case where an officer with probable cause to search
a suitcase delayed seizing it until it was placed in a vehicle. In that
circumstance it may be unreasonable to search the suitcase without a warrant
despite probable cause to search the entire vehicle. Cf. United States v. Chadwick,
433 U.S. 1 (1977) (unlawful to conduct warrantless search of footlocker seized
as it was being placed in trunk of vehicle); United States v. Barrett,
890 F.2d 855, 862 (6th Cir. 1989) (probable cause acquired after container
placed in vehicle).