State v. Boswell

cou- majority found room. the nurse’s

pling with of Ybarra’s that was

questions created an environment disagree. The offi-

inherently coercive. I legitimate security presence served a

cer’s official com- produce did not

function and inherent cus-

pulsion above the level being custody,

tody Ybarra’s itself. anxiety, producing some could

while itself him discussion with

not turn the nurse’s interrogation. The nurse could not

into an ques- pressure such that her

exert official interrogation. an

tions would constitute (no compulsion official Mauro Cf. incriminating conversation

found where the police station

was recorded at a with present).

police officers majority objects to the officer’s con- advantage he took of the situ-

duct because However, long so as Officer

ation. complied constitu-

Wright’s conduct with taking advantage requirements,

tional investigative lead does not violate Mi- fair in Whether such action was

randa.

any constitutionality sense other than its

irrelevant to the issue before us.

Accordingly, I would affirm the district testimony.

court’s decision admit the decision, however, should sustained “right any

under the for reason” doctrine. Hensel,

See State v. 106 N.M. 738 P.2d (trial (Ct.App.) court will be affirmed appeal right reason), for cert.

denied, The “rescue doctrine” apply to

does not these facts. Mexico, Petitioner, New STATE of Gen., Udall, Atty. Anthony Tupler, Tom Gen., Fe, Atty. petitioner. Asst. Santa BOSWELL, Douglas Respondent. P.C., Marlowe, Daniel R. Marlowe & Marlowe, Taos, respondent.

No. 18922. Supreme Court of New Mexico. OPINION Jan.

BACA, Justice. petitioned for a writ of certio- appeals, rari to the court of had held which respondent-defendant’s not fall within of an search did the ambit invento- ry search. was unlawful and violated defen- wallet rights. fourth 110 N.M. dant’s amendment properly We find that the officer con 190, granted peti- P.2d 1343. We an inventory ducted search of the wallet and reverse.

tion within constitutional limits as defined in Williams, 634, pertinent The facts are as follows. De- State 97 N.M. 642 P.2d 1093, apprehended Boswell and de- fendant 101, 74 grocery suspected (1982), in a as a Ruffino,

tained store (1980), shoplifter. manager held him in an N.M. Colora police Bertine, were summoned. office while the do U.S. arrived, defendant, (1987), officer down patted

An and Illinois La shoplifting. and discovered fayette, evidence (1983), identification,

The officer then and we do not find it asked necessary produced validity from his which defendant wallet. address the of the Defendant, as subsequently who search incident to a lawful arrest. arrested booking, and taken to the station appeals The court of focused on the wal- inadvertently left the a file cabi- being person let on defendant’s when booked, After he being net. asked about he was booked po- to resolve whether the wallet, and it was determined that the proper inventory lice undertook a search. had been left at store in the recognized The court an inventory manager’s office. The officer offered to done in with search accordance established wallet, retrieve the but defendant said that procedure appropriately may per- arrange pick would up. he for a friend to completely formed to search arrestee’s officer, however, insisted returned person, then found: to the store. He found the wallet on the problem this case that the wal- cabinet, it, file searched discovered a person let was not on the defendant’s charged with blotter LSD. Defendant was time If he was booked. the wallet possession of with controlled substances pocket had been in defendant’s at the with intent to After the distribute. district booked, he was could time have been suppress, court denied his motion to defen- properly pursuant searched to an inven- guilty plea, reserving dant entered a his however, tory. Inventory, cannot be right appeal the constitutional issue. as the used reason to search the wallet appeal

On part we determine whether the when it was not the effects on his (Citations person booking. search violated fourth amend- at the time of that, rights. argues omitted.) ment after a arrest, valid not have a defendant did rea- Williams, 642 P.2d at N.M. at expectation privacy sonable the wal- requirements we set forth the for a let, that could have because the wallet been lawful search: arrest or at the searched at the time of object custody have control or of the of the arrest, as to an a search incident search; pursu- that the is made valid, subsequent and that search was regulations; ant established inventory. was valid as a lawful the search is reasonable. See Ruffi- Accordingly, it that the court contends no, appeals erred evidence of when it ordered required we also that “there the contraband a result of discovered be some must nexus between (cid:127) admittedly sup- warrantless [although] impounding, reason for pressed. only nexus need be reasonable.” 97 appeals

Defendant court of 1096. In this case maintains the appeals court “that a determined that had continu- held reason- privacy interest in that the nexus did not offi- able exist for could not to return of the as a search cer to take wallet. to an sus- and that the search There no evidence the -, U.S. 109 L.Ed.2d shoplifting was con- evidence of pected that (1990)(inventory in the mislaid wallet.” search must be conducted cealed pursuant to criteria or estab standardized ex has a reasonable An individual an in designed produce lished routine and, wallet, there privacy in a pectation of although po to ventory, discretion allowed fore, the implicates the search of the wallet search). lice the based on the concerns of United Katz v. fourth amendment. See search, Moreover, in the of the the location 507, 347, 19 States, 88 389 U.S. S.Ct. station, store’s office rather than the (1967). Accordingly, for this L.Ed.2d 576 does This turns on not inválidate it.2 lawful, must fit it to have been prong the of test we articulated in first the inventory as exception, such the within an Williams, 636, at 97 N.M. at 642 P.2d 1095: exception, search reasonable making the police lawfully custody whether the had of constitutionally permissible. and therefore wallet, i.e., the a was there reasonable nex circumstances, a appropriate Under the us between arrest and the sei in an Boswell’s searched in lawfully may be wallet U.S. zure Lafayette, 462 of the wallet? ventory search. See 648, it (holding “that is 103 at 2610 S.Ct. possession police inventory “A of some police, part of for as the not ‘unreasonable’ * * * presupposes of the that the arrestee incarcerating procedure routine taking had some for valid reason person, an to search container arrested object, only for is of it be- possession”); People in his v. or article taking custody that cause of such 543, 776, 244 Hovey, 44 Cal.3d 749 P.2d obligation police can be said to have some (contents Cal.Rptr. 121 Lafave, safeguard 2 W. contents.” denied, during inventory), searched cert. 5.5(b) (2d 1987). ed. Search and Seizure § 871,109 188,102 L.Ed.2d 157 person in Property found on the or Annotation, generally see Lawful possession immediate lawful arrestee Purse ness Search Warrantless presents problem may no seizure Suspected Person Arrested Wallet of 646-47, Lafayette, inventoried. U.S. at 771, Crime, De 29 A.L.R.4th § at 2609-10. Containers found in has not contested that the search fendant lawfully-impounded properly may vehicle regular pursuant po was not conducted — Wells, Bertine, procedure.1 lice be inventoried. 479 U.S. at 372- Florida v. suppression require suppression, response questioning at house not 1. In does hearing, his motive in long the officer indicated that as the is in conducted accordance retrieving the wallet was defendant’s obvious appropriate approved procedures. with He it be lost. testified he concern that an at the search of automobile conducted scene items of value de- believed that contained impoundment of 634, in State fendant, he not want to risk con- did 642 P.2d cert. 459 U.S. personal liability. being possible tents lost or (1982). Similarly 103 S.Ct. L.Ed.2d 91 police procedure The required also testified Bertine, in Colorado v. 479 U.S. inventory personal him to secure (1987), the United States subsequent property of an arrestee Supreme inventory upheld Court an money emphasizing that all must an automobile conducted the scene inventory. He indicated for in accounted ("Our id. seizure. See S.Ct. at 742 booking space cards contain a where however, opinion Lafayette, suggest did not listed, money, specifically, to be setting inventory that the station-house of the through customary procedure included a search holding search was critical to our in that case. cash, including money potentially wallets for present Lafayette, Both in the case and in wallet, department protect hidden in a governmental guard common interests [to Although from theft. unfounded accusations theft, against negligence, claims of or vandal on officer admitted that cross-examination the searches.’’). inventory inventory only were served ism] without listed ref- contents, Laiwa, People explained that erence to its But see 34 Cal.3d and, money, bank) specifically (1983) (in (on Cal.Rptr. wallet was searched because no cash found disallowing prac grounds, state constitutional necessary inventory the other contents. booking whereby tice "accelerated search” arrest). subject arrestee to full search at scene Merely because the officer conducted the search in the office rather than at (1976)(“probable-cause approach unhelp Generally po 741-42. 107 S.Ct. at upon analysis if it ful when centers the reason seizing property are lice of the ableness administrative caretak scene of routine safely left at the cannot be Chadwick, functions”). justi The state interests arrest. See United States fying indepen constitute an (reasonable items (1977) to take dent basis for the reasonableness public search.3 person arrested to station Grill, F.2d

place); United States v. justified pursuant If the seizure is to an Cir.1973) seizure of arres (justifiable probable theory, cause is irrele- airplane), departing tee’s suitcase nexus between the vant. reasonable 94 S.Ct. 416 U.S. arrest and seizure need not be based on United States v. cf. cause, probable can be based on “all but (N.D.Tex.1989) Wright, F.Supp. this case in the facts and circumstances of impermissible (police seizure of suitcase light of fourth [established amendment] justify warrantless search and did not principles.” Id. 96 S.Ct. at 3100. guard by under locked inde when suitcase principles Those established include the party danger and thus no of pendent third property of a search of in reasonableness claim). liability for false theft or police custody inventory purposes pur- procedures. inventory justi- An is a reasonable search suant to established range governmental of interests fied the wallet, although per- on defendant’s inventory protects An support it. in son at the time of was not his property police custody in from defendant’s possession immediately prior to his incar- theft; conversely, protects However, underly- the concerns ceration. of from accusations or false claims theft ing in- the reasonableness of an in-station property pos- that was in an arrestee’s ventory justify the officer’s return Moreover, inventory prevents session. and its to the store to retrieve the wallet setting the introduction into the custodial subsequent inventory. Boswell arrest- dangerous may instrumentalities office, place ed in the store innocent-looking concealed in articles. expectation privacy where he had no words, orderly police other administration possessory interest. The wallet was left inventorying of justifies examination and accidentally where it was not secure as an posses- items removed from an arrestee’s According- arrest. immediate result of the person. Lafayette, 462 U.S. at sion or ly, defendant risked the theft or loss of the Bertine, 2610; see 479 U.S. at wallet, police potentially and the were sub- 372, 107 at 741 wallet, regarding ject to accusations Contrary holding of the court should it or its contents have been lost or to inventory defendant asked to have a appeals, lawfulness of an stolen. The any for him. This independently from friend retrieve operates that inter- police of contraband that would not have removed the risk suspicion by the vening in the loss of Probable causes would result may be concealed a container. wallet, exculpate justify an invento nor would it required is not cause Bertine, 371-73, justifi- had it been lost. The officer was ry search. re- (inventory ably not investi concerned that —as an immediate 107 S.Ct. at 741-42 investigation would gative reasonable because sult of his tool and search —the interests); department sub- South legitimate caretaking be lost and the would be ject liability. Simply n. because the officer Opperman, Dakota v. 428 U.S. safeguarding de- initially 49 L.Ed.2d 1000 was careless 3097 n. on the Lafayette, sonable we must its intrusion “balanc[e] the Court discussed the rationale inventory Fourth Amendment interests of an so-called individual’s against "[a] search: legitimate governmen- legal concept promotion independent is not an but its ’ step 462 U.S. at 103 S.Ct. at rather an follow- tal interests.” incidental administrative Prouse, (quoting preceding Delaware v. arrest and incarceration. To de- * * * 1391, 1396, (1979)). termine whether the search was unrea- Thus, government interests his on property does not remove fendant’s (to search reasonable prop make going responsibility to insure that the theft, property from loss or Leaving safeguard the wallet erty is secured. and false protect liability in from office, privacy no defendant had where claims, protect from hid security and expectation of where terest or dangers), under the facts and circum may of unknown individuals den number case, justified the officer’s of this subject access to the stances gained have wallet. The seizure retrieving it return to retrieve the possibly friend at some time, reasonable police proce therefore reasonable —the would be careless future the initial arrest seizure evincing nexus between dure a lack concern for probable theory in a cause belongings. This is not a situ is not found defendant’s suspect the existence contraband or property could have been ation where evidence, necessarily on an incident safely was,4 it a nor left where it nor was safeguard theory, the need situation where pro immediately property from loss and to safely could have been liability charges from placed to a friend a safe tect entrusted negligence.6 place.5 (D.C. belongings appropriate Lyons, caretak- 4. v. 706 F.2d 321 restee’s were See United States * * * Cir.1983) (arrestee expectation pro- procedures had [T]he reasonable functions. room, privacy police police against charges dishonesty of in hotel seizure tected the of unjustified). inventory might search of coat in closet negligence that have had arisen property disappeared. arrestee’s The intru- State, Ga.App. v. 155 270 See Gaston necessary prop- sions to secure [defendant’s] accident, (1980) (following car sei- S.E.2d 877 erty were therefore reasonable. Id. 877 justified bag zure when it had of defendant’s omitted). (citation bailee). willing But see v. been left with State Griffin, also States F.2d United v. 729 475 Cole, (Utah 1983) (defendant left Cir.) (valid caretaking exercise of function knapsack po- with friend at time of impound parked than it vehicle rather leave personal explaining it lice retrieved all effects highway, though side of interstate even defen station; accompany of must inventory defendant to fruits it, have a dant asked to friend retrieve because still search admissible because items theft), protect car of need to from vandalism or control); Weide, police under 155 denied, 469 U.S. 105 cert. (1990) (authorizing Wis.2d N.W.2d Staller, States L.Ed.2d United squad purse accidentally car left (5th Cir.) (upholding F.2d 1284 search subse suspect a where owner neither nor arrestee and police taking custody quent to of defendant’s purse immediately). called to claim owner legitimate legally-parked exercise automobile caretaking of function because of risk to car adopted courts have a similar ratio- 6. Federal denied, lot), overnight parked in mall cert. regarding inventory nale of searches vehicles (1980). example, an For seized after arrest. in United previously upheld We a similar seizure in Scott, (9th Cir.1981), the States v. 665 F.2d 874 State outstanding was arrested on an war- defendant stopped rant traffic after he was for a violation. case, In that the defendant police The officer asked defendant whether during robbery armed was arrested an legally preferred parked he the vehicle leave grocery. During booking, an officer found a set impounded; it the defen- the scene have it, keys; he returned to the crime scene and proviso dant that a chose leave with the legally parked, whereup car pick up. found defendant's friend would it subse- immediately inventory on he conducted an quently tried secure the vehicle invento- Although ried search. certain items found in the car. State, (Wyo.1988), impounded, upheld P.2d 478 car was never the court Roose Supreme Wyoming police search as a valid Court found reason- action secure able, grounds, police Addressing overriding question slightly vehicle. reasonableness, different pants, the court which had determined that the of an arrestee’s been police actions were: arrest. The officers left at the scene removing the trousers after sus- response legitimate Although retrieved the needs. pect discovered contraband legally parked, from the scene and [defendant’s] car was ar- [his] inventory during police search. court deter- property had rest left his unse- scope though of an search "is Even mined that the cured. car was not in though control may limited to items the immediate and even have duty belong- If the arrestee’s access to the [defendant's] had no to secure the defendant. protect objects ings, procedures time the ar- searched terminates between the Accordingly, identification, request we hold that offi- the officer’s de- not conduct a search violation of cer did fendant removed his driver’s license from the fourth amendment when inventoried his wallet. The officer discovered evidence wallet. contents of defendant’s That shoplifting conducting pat-down while the inventory fell within defendant. The officer arrested by appropriate exception and was transported defendant and him concerns that defendant’s station, where he was booked. Defendant judgment be secured. reverse inquired about his and it was deter- appeals the judg- the court of and reinstate mined that defendant had left it at the ment the district court. store office. Defendant re- IT IS SO ORDERED. quested that he be allowed to make ar- rangements pick up to have a friend RANSOM, MONTGOMERY wallet. officer refused and returned FRANCHINI, JJ., concur. to the store to retrieve himself. Al- SOSA, C.J., dissents. though recognizing immediately, the wallet SOSA, the officer looked inside make sure it (dissenting). Chief Justice belonged to After confirming defendant. agree majority opinion I cannot with the did, proceeded the officer to search agree Appeals and I with the Court of the wallet in order to its con- hereby adopt Appeals Majori- Court of cards, He tents. found white which tested Opinion in ty my toto as dissent. positive for LSD. No. 10844. charged defendant with at- Appeals Court of of New Mexico. tempt felony possession to commit 16, Nov. with intent to distribute. The district court suppress denied defendant’s motion

OPINION evidence obtained from the search of his BIVINS, Judge. Chief guilty pled pursues wallet. Defendant pled charge guilty Defendant to the appeal challenge ruling. this that attempt felony possession commit the permissible Warrantless are searches of a controlled with intent substance distribute, they reserving right ap- recognized while his fall within one of ex- peal suppress denial of the motion to ceptions requirements. to the warrant See judgment evidence. Prom a and sentence 500, Ruffino, v. State N.M. guilty plea, ap- on the defendant entered (1980). argues peals, raising one issue: whether the war- this case falls within two of those rantless search and seizure of defendant’s exceptions: a search incident to arrest and wallet, produced purpose for the identifi- search. cation at the time of his arrest but left exception The search to arrest incident behind when he was to the taken requirement the warrant arose out of the booking, for violated his fourth possible danger person that a arrested rights. amendment hold that it did and We might weapon, concealing be a or that evi- reverse and remand. Defendant raised one might destroyed dence the crime docketing issue in other statement but brief; concealed. It has been held reasonable for argue did not it is his therefore Fish, arresting deemed v. abandoned. 102 the officer to conduct a warrant- State 775, (Ct.App.1985). N.M. person less the arrestee’s and the area within his immediate control in order Apprehended grocery shop- store for a others, safeguard himself and and to lifting, personnel store took defendant to prevent the loss of evidence. Chimel v. personnel the store The office. California, 395 U.S. office detained defendant until a compliance (1969). police officer with L.Ed.2d 685 This search is confined arrived. search, arrest it is sufficient control at the time of arrest.” at 483. Id. time of person the items or in were on his his argues the search The state also control of the immediate to the area within Kaiser, Inven- inventory search. proper as an State defendant. See (Ct.App.1978). upheld as reason- searches have been tory P.2d 1257 contemporane- pur- they must also be a are The search because done able York New of the arrest. ous incident poses protecting owner’s Belton, 101 S.Ct. subsequent police from protecting the (1981). Thus, a search L.Ed.2d 768 poten- property, or of lost or stolen claims promptly conducted. must be to an arrest Opperman, Dakota v. danger. South tial 428 U.S. case, we do not of this Under the facts that, agree wal the search of defendant’s believe that Ruffino. once arrested and removed arrest to his lawful was incident let station, subject, in accord- the wallet was an arrestee shoplifting. The search of arrest inventory procedures, defendant had been conducted after ance with established station. complete person ed and taken to to a his immediate longer his was no within Illinois La- property upon person. his longer no a reasonable There was control. 640, 648, fayette, 462 U.S. weapon a obtain fear that defendant would problem destroy or con seek to from the not the wallet was this v. Chad United States ceal evidence. Cf. person at the time wick, 53 L.Ed.2d in defen- booked. If the wallet had been justi (search (1977) footlocker booked, pocket time dant’s at the he was arrest where as a incident to an fied pursu- properly searched could have been place in time or from search was remote See id. inventory. Inventory, to an ant existed). exigency no the arrest and however, be used as the reason to cannot Furthermore, period time had part wallet when it was search the re elapsed between defendant’s person the time of the effects on his officer’s station and the moval LaFave, booking. discussion in 2 W. of the state return and search wallet. (2d 5.5(b), at 536 ed. Search and Seizure § legally argues if the wallet could 1987) inventory of (police possession ar- arrest searched at the time defendant was presupposes police that had valid restee ed, could be searched later. The then it taking object). that custody reason for support that by the state do not cases cited not Mexico courts have ad While New truly search argument. The cases are not question presented in precise the dressed cases, rely on inven arrest to appeal, supreme decision in this one court analysis. of the cases tory search all volving inventory of an merits automobile state, by the searched were cited the items Williams, In State v. 97 brief discussion. continuously the of either within control 459 N.M. police or the and were searched defendant U.S. See, e.g., in custody. was after defendant (1982), an inven supreme upheld court the Edwards, States v. United automobile, tory a defendant’s United (1974); near scene of the which had been left the McEachern, F.2d 618 States are The court held that there four arrest. Cir.1982). agree do not with the state’s We requirements for a constitutional argument if the search would have (1) inventoried is search: the vehicle arrest, time' a later been valid at the (2) police custody; the invento Billias, control State v. search was also valid. Cf. ry pursuant is made established (1989) 635, 555 A.2d 448 Conn.App. reasonable; (3) regulations; the search is (search bag gym at station of defendant’s (4) is a reasonable nexus between there as a valid house could not custody reason the arrest and the though even search incident property. sup Even the evidence exception the fallen under might have require ported first three of these bag was seized had it been conducted when ments, nexus that a reasonable did highway). on we hold from car at time requested not exist for the officer to return pick up defendant that a friend take of the wallet. There is no the had no re- further suspected sponsibility evidence the officer for its loss. holdWe that the of shoplifting evidence of crime was discovery rule apply inevitable could not concealed mislaid wallet. facts this case as a matter of law. Although argued by parties, not The search of defendant’s wallet without Judge dissenting Donnelly’s separate opin- supported by excep- a warrant is not either proposes discovery ion inevitable rule Therefore, argued by tion the state. justify would itself affirmance. We cannot pursuant evidence obtained presented by consider theories not suppressed. should have been Defendant’s Doe, re pleadings. briefs 98 conviction is re- reversed N.M. P.2d proceedings. manded for further Thomson, (1969). Post, State P.2d 487 Nevertheless, point we will address this (1989)(remand for trial than rather dismis- that, posits raised It the dissent. since appropriate sal where evidence disallowed possession appeal). the time of arrest would inevitably IT SO ORDERED. IS during have been discovered routine in- ventory search at the station had MINZNER, J., concurs. store, not defendant left the wallet at the DONNELLY, J., dissents.* improper for the

the wallet when he returned to retrieve it store. do believe inev- discovery applied

itable rule can be

facts and circumstances of this case.

First, exception apply,

prosecution by preponderance must show evidence that the contraband would

inevitably by indepen- have been discovered

dent lawful means. Nix v. showing, In order to make that prove

state would have had to ultimately

store owner would have found police,

the wallet and turned it in to the would have then inventoried no

its contents. The state made such fact,

showing. unchallenged facts

reflect was discovered

through inquiry during booking.

Second, principal we believe that dissent, United States v.

relied on in

Andrade, Cir.1986), F.2d 1431 case,

distinguishable. In that the defen- garment bag accompanied

dant’s him the station; here, was left behind.

Andrade, right, if had a not a

responsibility, protection, own their bag part

search the their Here, belongings. in con-

the defendant’s

trast, obligation. there was no such Once

* Judge Donnelly’s Appeals dissent Court opinion published at 110

Case Details

Case Name: State v. Boswell

Court Name: New Mexico Supreme Court

Date Published: Jan 14, 1991

Citation: 804 P.2d 1059

Docket Number: 18922

Court Abbreviation: N.M.