State v. Brubaker
517 P.2d 908
N.M. Ct. App.
1973
Check Treatment

*1 OPINION

PER CURIAM: petition proceeding filed this

seeks and by review an evaluation this petitioner’s

court answers to the March bar graded given by examination and

the New Mexico Board Bar Examiners. having legal matter been heard by

defenses filed the Board and the court

having directed counsel to examine the tal-

ly containing petitioner sheets grades of report

and submit a to the having

court and examined considered said

report advised, fully being otherwise

the court as concludes follows:

The facts and of this cause issues are

substantially similar to those Pacheco,

Petition of hereby adopt We Pache- opinion, supra,

co as authority and dismiss petition

this for failure to state claim may granted. which relief

It is so ordered.

McMANUS, OMAN, STE-

PHENSON, MONTOYA MAR-

TINEZ, JJ., concurring. Williams, Atty., Jr.,

E. H. Las Dist. Cruces, plaintiff-appellant. Steere, Philip Campbell, W. T. K. defendants-appellees. Mexico, Plaintiff-Appellant, STATE of New OPINION SUTIN, Judge. Dale Etter Richard BRUBAKER and Vaughn, Defendants-Appellees. appeals an order of the The state

No. 1248. suppressed court which the evidence trial occupied by by seized from a car Appeals Court of of New Mexico. the defendants. We affirm. Dec. 1973. charged with ille- Defendants were (1) possession contrary to gal § (Repl. 11-23(A),(B)(3), N.M.S.A.1953 54— (2) pt. Supp.) Vol. possession intent to dis- marihuana with (1), su- contrary 11-22(A) tribute § 54— pra. suppress, on motion to hearing

At the presented was the testi- only evidence *2 774 Rent A Car Hertz re- patrol was checked

mony police officer involved of the it send held and would quested car be the in the case. pick up. to someone at 2:30 A.M. in shows that The record officer, of in the absence patrol Mexico, The patrol offi- the New keys for his be- asked Brubaker right Vaughn, stopped light a fed cer impounded and he had been the car occupied by cause The car hand lane of a road. officer, patrol inventory it. The to wanted in left hand stopped the the defendants of time, suspect Brubaker did not at this lane, length behind the officer. a half car’s he Brubaker if told anything. officer Plymouth The Arizo- a 1973 The car was would keys, the officer give up the did not plates. na license officer away him. The take them green, Plym- lights turned the When the necessary Bru- force. use meant he would proceed past to outh the officer waited keys. The offi- the gave officer baker the Plym- proceeding, the the intersection. to search writing requested cer consent The remained behind the officer. outh sign the refused to the car but Brubaker speed p.m. h. officer limit was 35 The consent. hour, per 10 15 miles the other car drove prob- no he had patrol stated The officer per This seemed unusual to miles hour. was until contact able cause search police passing After the in- the officer. of de- absence made with Tucson. tersection, pulled the officer off officer, together with fendants, patrol the Plymouth road. As the shoulder of the officer, into the car to look another went officer, passed looked at the the he driver back In the front and and to it. Plymouth his the and the driver turned marijuana seats, seeds. the found officers later, away. face Two blocks the officer car, three suitcases In the trunk of the stopped Plymouth. only the The reason them, found, upon opening were 80 Plymouth stopping the was its hesita- found, pounds marijuana were passing tion in the officer. The officer placed arrest. defendants then under were got Plym- out of his car and walked to the occupied by outh the defendants. right inven state discarded right tory it had no search and admitted asleep in Vaughn Defendant the car. stopped on search when car was Brubaker, driver, upon Defendant re- road. The quest, police showed the officer his driver’s Plymouth, seizure of the requested license. When to show vehicle marijuana, seeds and was unlawful because registration, explained Brubaker given, consent the search was not rental; car was an Arizona it was arrest, pursuant and there was no to an two at the weeks overdue Tucson Interna- cause to warrant search. State Upon Airport. request, Brubaker tional Torres, 521, (Ct. 81 N.M. produced the rental contract. The lessee 465, App.1970); Johnson, 85 State v. N.M. Margie was Marie or officer Corkill. The (Ct.App.1973); Almeida-San thought the inside like smelled States, chez v. 413 93 United U.S. S. smoked, marijuana that had been but he (1973); United Ct. 37 L.Ed.2d 596 sure. the officer did not So Byrd, (5th States v. 483 F.2d 1196 Cir. charge any defendants with viola- criminal 1973). Compare Cady tions. 2523, 37 U.S. 93 S.Ct. L.Ed.2d Brubaker to follow officer asked police him to the station in to check order Affirmed. with the rental ar- Tucson. On It station, is so ordered. police at the locked rival Brubaker keys his Inside car and took with him. station, Vaughn WOOD, specially J., Brubaker and placed separate Tucson rooms. concur. WOOD, question Judge (specially ry Accordingly, concur- no ring). validity continuing as to the Nemrod, 85 State v. No claim is made that defendants con- or the effect of (Ct.App.1973) sented to a search or that the search was Supreme United Court decision States *3 incidental to the arrest defendants.' The Nemrod, Cady supra, upon v. court, here, issue before the trial is supra. whether the officers who searched the trunk probable of the car appeal, had cause a State defends solely search of the on the basis that trunk probable the time of the cause existed at court, In the trial contended State stop of street. Al- initial the car on the probable that cause resulted from a combi- does not items though the State abandon nation acquired of information in the vari- (b) absence of vehicle (c) above—-the investigative ous steps. That information expired registration papers car (a) was: the smell-of when the emphasis is agreement rental State’s initially car stopped; —the (b) absence on “probable cause” can be based registration vehicle papers; (c) expired marijuana smell. agreement rental of per- name a son other defendants; than (d) request a contention is before us The State’s by the car rental that the vehicle In review. the trial the State’s held for the agency; (e) discovery of mari- probable position for a cause juana seeds the seats of the car en- ini search did not exist at the time of the tering the car its contents. The stop tial is at vehicle. The State State asserted to the trial court that this tempting appeal. change theory on combined provided probable information Maryland Casualty Company Foster, See cause “complete for a and full and, thus, vehicle” cause for theory appeal on us State’s not before searching the trunk of the car and the con- theory review because such tents of the trunk. an issue raised the trial court. State Lopez, No (Ct. such contention is appeal. App.1972). Accordingly, it is not necessary to consider whether the supports record I join Judge opinion do not Sutin’s facts on which the State relied in the trial appears because decide the search is- court and is not necessary to consider sue on the merits. On the basis of the whether alleged facts legally suf- discussion, foregoing I concur in the result ficient “probable for a cause” search. reached. appeal, the State expressly de- clined to defend the search of the trunk J., concurs Judge and its on contents the basis of an invento- specially concurring opinion. WOOD’S