State v. Cohen

Mexico, Petitioner, New STATE Atava, and Erez

Mier COHEN

Respondents.

No. New Mexico.

Supreme Court of 9, 1985.

Dec. law,

tion of voluntariness as a matter of considering totality of the circumstanc- es. Appeals

The Court of affirmed the trial granted court. We certiorari and reverse court, Appeals the Court of and trial reinstate the case on the trial docket. FACTS. 5, 1984, (Summers) January

On Summers the New stopped Mexico State Police speeding sixty-one Pontiac automobile for per in fifty-five mile-per-hour miles hour zone. The automobile was driven Cohen occupied by passenger, Atava. Offi- give cer decided Summers Cohen ticket for speeding. Summers became concerned by other facts he observed. He noticed the automobile was an out-of-state rental car paid that had been for cash and was one-way rental from Florida to California. luggage The car did not contain much for a cross-country trip; occupants ap- both the peared foreigners appeared to be and both Summers be more concerned about stop than ordinarily encountered Bardacke, Gen., Atty. Paul G. Charles D. stops for of this kind. While Summers Noland, Gen., Fe, Atty. Asst. Santa writing up speeding in his car ticket petitioner. waiting response request for a on his Boult, Nancy Hollander, Reber Albu- Comput- to the National Crime Information querque, respondents. (NCIC),1 got er Cohen out of his automobile and walked back toward the state OPINION got car. Summers out of his car met RIORDAN, Justice. between the Cohen automobiles. Cohen hurry told Summers that he was in a (Cohen) Defendants Mier Cohen and Erez would like Summers to issue his ticket so (Atava) possession Atava were indicted for he could leave. testified that Summers trafficking of cocaine and of a controlled and, appeared Cohen nervous and anxious charged substance. Cohen was also with temperature twenty- that with the about speeding. hearing After a on a motion to degrees windy day, five on a cold and it evidence, suppress the trial court found very get seemed unusual that would defendants’ automobile out to talk to the officer. proper; that the consent to search was voluntary; but that the detention of Cohen considered the facts he had Summers and Atava before the consent was obtained conjunction observed in with information and, “illegal therefore, was an siezure” recently he had received a state consent was invalid as a matter of law. concerning in nar- course common factors appealed Ap- trafficking

The State to the Court of cotics New Mexico peals, factors). raising (“profile” “profile” the issue of the reasonable- factors These (1) ques- persons appearing ness of the detention as well as the were: two to be for- procedure request person stopped 1. The standard was to make a to whether the the car was wanted or .Computer reported of the National Crime Information stolen. (which spare had its Flor- that of the rental (2) driving rental car with eigners, (4) (3) country across Marino plates, place) tire and it was flat. When ida license (5) and luggage, amount a small with picked up, he noticed there was some- being paid for in rental one-way car with a thing “loose” inside. The tire was broken cash. pounds down and eleven of cocaine were observations, de- found inside.

Based on suspicion to a reasonable that he had cided whether the detention of The issue is assist- He called for further. investigate a short time after Cohen and Atava for police officers and from other state ance negative response Summers received (Marino) thereafter, Marino Officer shortly inquiry the consent as from his NCIC voids (Velarde) (the officers Sargent Velarde a matter of law.4 narcotics) responded. While charge officers, OF DETENTION. REASONABLENESS Sum- waiting for the additional to search form filled out a consent mers stopped the Summers testified that he permission from anticipation requesting p.m. The initial of Cohen car at 5:09 the automobile. to search Cohen proper.5 requested He an and Atava was was received and Summers response NCIC and the car. NCIC check on the defendants were no warrants informed that there minutes, five Cohen exited the car Within and that the car was outstanding for Cohen approached patrol unit. Af- Summers’ A few minutes reported as stolen. Cohen, with ter a conversation Summers were later,2 arrived and the other officers “pursue investigation fur- decided to briefed Summers. that it ten to fif- ther.” He testified arrived, both Co- After the other officers stopping. It was at teen minutes after get were asked to out of hen and Atava p.m. requested He assistance least 5:19 advised of his Miranda car. Cohen was was at head- from Marino who Velarde also told him that four quarters. It took Marino three to weapons like to search his car for would the location where the minutes to arrive at presented with and narcotics. Cohen stopped. During pe- this form. “read the consent to search Cohen riod, reply received a from his Summers form”, the search and consented to inquiry that must have been between were made to the form. No threats signed p.m. p.m. Marino and Ve- 5:19 5:24 the consent.3 obtain and were briefed. Cohen was larde arrived dark, getting Because it was cold and form presented with a consent to search heavy on the there was traffic and because being advised that he signed which he after drive the highway, the officers decided to After to consent to a search. did not have closest, warm; area to well-lit car to car, in the examination of the items a brief Cohen was instructed conduct get- it was decided that since patrol car and the other to follow one was a lot of traffic ting dark and there (with passenger) followed Atava as it. the car to search Co- they would move three miles to a service station police unit to was directed to follow the hen inside and the away. The car was driven away three miles which a service station During the search search was conducted. closest, warm, testified was the in the an extra tire the officers noticed than well-lit area. pattern was different trunk. It’s bolt cross-appeal evidence was taken and the exact time 4. No record does not contain the

2. The hearing supports involved, suppression p.m. introduced at the the car was at 5:09 but finding regard. placed court’s in this under arrest the trial the defendants were seized, fifty minutes about after the cocaine later. the basis of was attacked not on 5. The consent uninformed, being being rather but coerced or voluntarily illegally virtue of obtained motion but and Marino testified at the 3. Summers hearing. the detention. nor Atava testified. Neither Cohen commenced, Sharpe.9 determining conduct in After the search was “5:35” at purpose stop, “about 5:25” or of a the court must consider tire was observed purposes being station.6 The cocaine was enforcement the service law served apart reasonably the tire was taken ten well found after as time needed to period of time that purposes, minutes later. effectuate their Hensley, 469 according to the testi- U.S. elapsed have could (1985), check mony purpose from the time that the NCIC and if the un negative derlying investigative stop until the consent form came back or detention (that signed investigating possible is between three minutes and criminal ac 5:22, (5:19 met, must, if tivity) minutes until the tire is to be thirteen under circumstances, at as it took “three or four was located 5:25 certain be able to detain the station,” Summers, Michigan minutes to drive to the service individual. See 5:32, located at until if the tire was 69 L.Ed.2d 5:19 5:35). then becomes whether the de- issue Sharpe The Court in stated: min- and Atava for a few

tention Cohen assessing In whether detention is too for and ob- utes while officer asked justified in long duration to be as an was unrea- tained a consent to search form stop, investigative appro- we consider it light sonable in of the facts that Summers priate police to examine whether the dili- not. had observed.7 We hold that it was gently pursued investigation a means of likely dispel that was to confirm or A the issue of what recent case on suspicions quickly, during which time it is a reasonable detention is United States necessary — to detain the defendant. -, Sharpe, U.S. 105 S.Ct. — (1985).8 Sharpe The Court at -, Sharpe, United States v. U.S. pointed only out that unreasonable at 84 L.Ed.2d at 105 S.Ct. 615-616. by prohibited searches and seizures are the instant Summers de ? However, investigatory Constitution. only tained Cohen and Atava for a few stops subject of vehicles are the limits of negative minutes after he received the re discussing the fourth amendment also. In port speed from out the NCIC wrote (which stop, the reasonableness of a is ana ing Considering ticket. the information lagous to a detention once the reason for a (i.e., upon, that he relied there were two stop expires, when the valid as did here plates; men in the car with out-of-state report negative) came back Court they were they appeared foreigners; to be 1, 20, Ohio, quoted Terry from one-way car cross-country trip on a in a 1868, 1879, (1968) 20 L.Ed.2d 889 paid rental cash from an area sus “[Wjhether the following test: officer’s pected by point origin authorities to be a inception, justified action was at its they appeared drug shipments; that reasonably scope whether it was related average person more nervous than the justified which to the circumstances they appeared speeding; that Sharpe, place.” interference in the first get away the officer as to want to — -, at U.S. at quickly possible) conjunction and in with at L.Ed.2d 613. the number of these factors that the officer previously were common in had been told This is the test of “reasonableness” involving drug arrests in New eases recent analyzing that was used in Appeals opinion case was in this the tire was found at Court 6. Marino testified 5, 1985, days prior testified that the tire fifteen "about 5:25”. Summers filed on March some first observed at "about 5:35”. Sharpe. 7. We assume for the sake of discussion approximately Sharpe detention in 9. grounds suspi- reasonable officers need such as twenty minutes. cion to ask for consent Mexico, negative. gave based on reason- Recalde the officers verbal this detention was permission suspicion. to search trunk of his car. able Nothing unusual was found. The arrest argue and Atava ing officers instructed Recalde to follow prior if proper would have been obtained them to the station.11 Inside the being completed, but the the NCIC check station, Recalde was Miranda warn few minutes that were detained after ings sign and was asked to a consent to completed, until the the NCIC check was form, which he did. search Recalde testi arrived, made the arrest narcotics officers English fied that he did not read well and However, and ordi- illegal. common sense the officer read it him. The did not nary experience govern human must over prosecution conceded that the search of rigid Sharpe. judges criteria. Creative Recalde’s car at the station was not engaged post hoc evaluations of probable war judicial based on cause or always imagine can some conduct almost They entirely rant. relied on the consent objectives alternative means which the signed Recalde at How form the station. police might have been accom- ever, the court stated that the extended plished. We do not believe the fourth Id. prior obtaining detention and movement interpreted by amendment as the United justified. the consent to search could not be Supreme requires Court such absurd The court held the reasonableness of results. investigation the detention and ended after pending Tenth While this case was continuing the first fruitless search. Appeals Circuit Court of decided two sim- found, nothing the detention after all Recalde, ilar cases: v. 761 United States subsequent investigation, including the Cir.1985) F.2d 1448 and United form, signed consent became tainted. That Uribe, (D.N.M. v. No. 84-1146 filed Atava, is not the case with Cohen and who 1985).10 17, Both involve con- June drug profile appeared fit the sent searches in which the consent was unusually An must nervous. officer proper- obtained after defendants had been facts, specific aware of these articulable stopped. In re- ly both cases court together with rational inferences from suppressed versed the conviction and provide suspi those facts to basis for during evidence seized a search of defend- Brignoni-Ponce, cion. United States ant’s automobile. 873, 884, 2574, 2581, 422 U.S. 95 S.Ct. 45 distinguishable is from the Recalde 607 The facts and inferenc L.Ed.2d arresting police current facts in that judged by objective stan es are to be in acting “gut officer was on more than dard, i.e., would the facts available to the Recalde, detaining In stinct” Cohen. person warrant the officer as a of officer originally stopped Recalde for officer reasonable caution to believe the action and con speeding, Hilliard, then issued a citation appropriate? was taken State v. (Ct. Re 407, 409, ducted a NCIC check on the status of N.M. 735 81 registered car. The car was to an App.1970). Unsupported calde’s intuition is insuf Mallides, person, other Recalde did not know 473 whom ficient. Therefore, (9th Cir.1973). assisting police how to contact. An officer F.2d response then called. The was the issue here is whether the facts known go. unpublished or- told he was free to The officer testi- 10. United States v. Uribe is an never leave, judgment United States Court der and from the but fied that Recalde was free to Appeals of for the Tenth Circuit. suspected vehicle would have been detained for transport illegal was trav- narcotics. Recalde Argentina. from 11. Recalde was resident alien highway, eling miles alone on an interstate five gave undisputed testimony upbring- He ing that his the nearest town. The Court concluded Argentina experiences instilled had not, by any objective stan- that "Recalde was dard, acquiescence police authority. He in him an Recalde, go.” free to United States v. testified that he did not feel free to leave under at F.2d these circumstances and felt that the offi- through cer with him. Recalde was

5(53 specific suspi- constituted reasonable cal and as stated in to the the consent any period Second, signed by cion to detain defendants form Cohen. of the

time. The reasonableness detention without duress coercion. Co- balancing competing rests on the inter- hen was he informed that did not have to quality of the in- ests: nature addition, sign “[T]he the form. In Cohen was trusion on the individual’s Fourth Amend- given his Miranda and stated he importance ment against interests Third, understood them. pre- is a governmental alleged justi- interests sumption against waiver of constitutional fy the intrusion.” States v. United Re- appear The facts as though the calde, (quoting 761 F.2d at 1454 prosecution has met burden its of establish- Place, 696, 703, States v. 462 U.S. ing both the of any absence duress or 2637, 2642, (1983)). L.Ed.2d specific coercion unequivocal nature of the consent. Voluntariness is a Sharpe held court question of fact to be determined from the length test for of a Terry stop whether the totality Recalde, of the circumstances. met the fourth amendment reasonableness F.2d at 1457. The court in Recalde found requirement was whether the investi the consent illegal tainted detention. gated “in diligent and reasonable man That is not the case here. We have deter- dispel ner” that confirm or “likely is mined that legal. detention was In suspicions light quickly.” addition, New Mexico follows the rule that short amount of time Cohen and Atava can validate what minutes, detained, govern a few might otherwise be an search and mental stopping interest of traffick Bustamonte, seizure. Schneckloth v. ing justified. completing 36 L.Ed.2d 854 sign Cohen to consent form for while Ruud, State v. N.M. assisting enroute. He officers were (Ct.App.1977). The validation of investigating diligent in a reasonable hinges the search on the voluntariness of Thus, there was un manner. we hold no the consent. Cohen’s state mind and the reasonable detention. procedure police in advising of the him of rights are factors considered in assess- VALIDITY OF CONSENT. ing the of voluntariness the consent. get asked Defendants were out Thus, the consent form alone could validate taken back of the car. Atava was to the the search that followed. separately police They car. adminis were rights. tered Both stated The second their Miranda decision the Tenth Cir- Appeals cuit understood their Cohen was Court of is United States v. Uribe, presented in with the consent to search form which Uribe was in a and was told that the would like routine traffic for checking officers roadblock driv- weapons registration. search his car and er’s license narcotics. and vehicle He sign driving registered was advised that he not have to Uribe was was search, agreed the form.12 to the someone else. did not know Cohen Uribe how to signed orally read the contact the twice form and then it. For owner. Uribe con- reasons, safety the automobile was moved sented to allow officers search the facts, nearby gas During to a These trunk. search the offi- station. second any well as the lack claim that cers noticed a “sweet odor” consistent with of involuntary, distinguish consent that of cocaine or deodorants used to mask was this Upon inspec- a third case from that of The consent odor of cocaine. Recalde. of tion of the trunk and also the rear seat upon and three-tiered was, first, area, analysis unequivo- powdery in a “white substance” was Recalde it search, merely 12. We an advice sent to but we recite the facts do not hold that either of person or advice not have to that a does from this case. required obtaining to a search is when a con- used. Based profile five or six left for officer found. One intuition, car was field test kit. the officers’ obtain a minutes to length of negative for the found the The court substance searched. powdery further in- Uribe was and there was of narcotics. unreasonable13 presence accompany asked to and then between the questioned attenuation sufficient and one- police station one to the the consent to search. Gon- detention and city. nearby Oral miles half than the more similar to Uribe zalez is Of- the vehicle. again given to search Here, we have more facts of this case. plastic packages found several ficers then intuition, the consent form was just than a waiver signed containing cocaine. Uribe car, signed the movement before forty minutes after rights one hour station not taken to the car was found that stop. The Court the initial nearby gas station. but to detain or probable cause to was no factual distinc light In of the above no consent to and there was arrest Uribe length and reasonableness tions and station; thus, there was go to defendants, not be we do the detention the un- attenuation between not sufficient in this the search and seizure lieve that and the consent of Uribe lawful seizure ac unreasonable. The officer’s case was inception and the justified at its tion was from this are different The facts Uribe investigation appropriate means of Uribe, repeatedly case. pursued. The consent diligently prob They had no trunk. searched Uribe’s voluntarily, thus signed search form was cause, up turned noth as their efforts able We reverse validating the evidence found. police sta the move to the ing until after Appeals trial court and the Court signed the con In this tion. the trial docket. reinstate the case on first, pursued then the officers sent form IT IS SO ORDERED. attempt diligently. An the search trunk, but because made to search FEDERICI, C.J., and STOWERS darkness, cold the effort was traffic and WALTERS, JJ., concur. available, a near place the closest moved to movement of the car is by gas station. The Jr., SOSA, dissenting and Senior Justice safety, distinguishable in that it was for Appeals’ opinion as his adopting Court of nearby service sta light and warmth to dissent. to the station as Uribe tion not procedure the officers and Recalde. The APPENDIX in a manner followed this case was done No. quickly that would have confirmed or dis — pelled suspicions. Sharpe, their Appeals of New Mexico. Court of at-, at L.Ed.2d at March 615-616. There was no unreasonable de lay. OPINION Gonzalez, F.2d HENDLEY, Judge. (10th Cir.1985) is another case similar order appeals the trial court’s The state police to in that the officer noticed Uribe concern evidence. issues suppressing used the odor of a deodorizer that is often raise Defendants and consent. detention to mask the odor of narcotics. The officer stop, claim- concerning the initial issue where a took Gonzalez to the station our stop. Because of pretext ing it was a speeding citation was issued and a necessary us to for disposition, it is not origi- signed. to search form Gonzalez that issue. reach speeding and was moved nally detained for We affirm. ownership car. No investigate to of the twenty minutes. approximately detained him for claimed that the officer

13. Gonzalez vehicle, After Summers went back to his New Mexico Summers Officer he to decided radio assistance from 1-40 patrol radar on was on State Police Then narcotics division. Summers received earlier, A Albuquerque. few weeks near replies inquiries negative concerning to his a seminar on narcotics attended he had documentation and defendants’ 1-40, at which he learned on smuggling vehicle. He waited for the assistance to profile,- based arrive, during prepared time he which cases, police. For made on recent form. consent to search When the assist- 1-40, profile up made of the follow- arrived, explained ance he situation (1) Florida license ing characteristics: officers, other the two Velarde and Marino. cars; (3) (2) occupants, usual- plates; rental foreigners, approached two, to be usual- officers then ly appear who defendants’ descent; (4) lug- very little car. ly approached Velarde of Latin Atava and took cross-country trip, with a desti- him gage back to the vehicles. Summers Angeles. Los Cohen, nation of approached and Marino him handed p.m., or Summers clocked At 5:07 5:09 form, the consent him get asked out sixty-one going miles defendants’ vehicle of the vehicle. Cohen was read Mi- his per fifty-five per in a mile hour zone. hour randa said he his understood passed, After the vehicle he noticed Miranda Cohen was asked if he plates and fact that there were Florida would mind if the vehicle was searched. engaged He his emer- two males inside. He said that the officers could search. Co- pulled gency equipment the car over. signed hen the consent form. Velarde tes- indicating the vehicle He noticed sticker tified that he told Cohen that Cohen Although Summers said that was rented. have consent to a safety search. For car, luggage in the there was much reasons, the vehicles were ser- driven to a there were some new clothes and two suit- station, vice where the per- search was Summers received identification cases. formed. driver, Cohen, pas- Mier Atava, senger, Erez and the rental contract pounds The search revealed eleven names, on the on the car. Based Summers spare cocaine in an extra tire in the trunk foreigners. that defendants were believed of the car. The tire was first observed at contract indicated that the car rental p.m. 5:40 5:45 Summers testified that and was route from prepaid cash en approximately forty elapsed minutes be- Angeles. Florida Los tween and the seizure of the co- papers Summers took the and told the caine, and that defendants were not free to occupants that Cohen would cited for during leave this entire time. Summers speeding. He also told them he want- long could not remember how it be- ed to run a check documents. Sum- negative reply tween the to his National mers went back car. Some time (NCIC) inquiries Crime Information Center passed, during which saw Summers defend- assisting and the arrival of the officers. conversing looking ants back at him. twenty The state asserts was fifteen began got out of the car and walk- minutes. ing back to the vehicle. Summers Detention got him out and met between the cars. sculpt out some of the Two situa thought this unusual be- may citi police tions where the encounter cause windy it was cold and outside. Co- Berry, zens. United v. 670 F.2d States being hen wanted to know whether he was (5th Cir.1982); v. Superior 583 Wilson go cited and whether would on Angeles County, 34 Court Los Cal.3d record. Summers described Cohen more 777, 671, (1983), Cal.Rptr. 670 P.2d 325 195 person than nervous a normal at this time. denied, 944, 1929, told cert. 104 Cohen that it was cold out- 466 S.Ct. (1984). First, side, are reply he had not a 80 L.Ed.2d 474 yet, that received go involving and that he no should back to his vehicle. communications or encounters 566 drug profiles. courier See Florida

of some detention; 491, 1319, involve these do not 103 S.Ct. 75 Royer, coercion v. 460 U.S. police and the need drug amendment A courier Berry. the fourth L.Ed.2d 229 do them. whatsoever justification no simply a series of characteristics profile is Second, or deten- there are brief seizures drug smug many police that the believe strictly scope limited in are tions which drug glers Berry. meet. Most these, duration; police only need a for airports profile have arisen in courier Third, there are full- suspicion. reasonable airport to air profile varies arrests; these, probable cause is for scale that clear from the cases is port. What is necessary. drug profile by itself will courier A supported warrantless arrest must be probable cause to arrest. United provide Garcia, by probable cause. State v. 100 (6th McCaleb, F.2d 717 Cir. v. 552 States 120, (Ct.App.1983). N.M. 666 P.2d 1267 1977). provides not it a reason Whether or Probable cause exists when the facts and depends the other factors suspicion able knowledge circumstances within the profile drug courier in the case because the officers, reasonably based on trustworthy trav category of innocent large describes information, are sufficient to warrant a 438, 448 U.S. Georgia, ellers. Reid v. See person of reasonable caution to believe that (1980). 2752, L.Ed.2d 890 65 being an offense has been or is committed. court was claims that the lower The state Snedeker, 286, State v. 99 N.M. 657 P.2d is no case it said that “there wrong when (1982). requires It the officer to be- justify to even profile courier that finds the lieve, believe, good have reason to disagree. stop.” We Terry type [sic] person he has arrests committed felo- state relies do on which the The cases ny. Jones, 14, v. 96 N.M. drug profile find that a match between (1981). the defendant characteristics of and certain may, appropriate cir- police A officer Most is sufficient. her behavior or his or cumstances, pur- person approach have one of cited the state the cases investigating possible criminal be- poses of line present. In one factors two additional probable no though even there is havior cases, factor is the additional Galvan, v. make an arrest. State cause to when have lied to (Ct.App.1977). 90 N.M. in consensual encoun initially questioned Ohio, 392 U.S. S.Ct. Terry v. See also Jodoin, 672 F.2d E.g. ter. (1968). In such a L.Ed.2d 889 Cir.1982); (1st v. Vas States United case, a reasonable must have the officer Cir.1979); (2d F.2d 1338 quez, 612 being has or is suspicion that the law been Cir.1979), Elmore, 595 F.2d 1036 means suspicion violated. A reasonable denied, 447 U.S. rt. ce specific be aware of that the officer must In another facts, rational together with the articulable line, is that the additional factor It therefrom. State v. Galvan. inferences tick history of the defendant’s checked the inferences and reasonable is these facts if he was going; to know where he et suspicion. for the provide the basis city, they contacted going to a source the officer must con- The facts available to defendant fol and had the police there caution to person of reasonable vince. lowed; went to an area if the defendant appropriate. taken that the action believe trafficking, drug city known case, In this information additional factor. See United would be the perceived had on these defendants was a (9th Cir.1979). Post, 607 F.2d States v. police’s match between the elements of the drug profile courier Applying and some characteris- these rules to this once defendants, tics exhibited but negative reply little officer received the more. inquiries, The “little more” was that Cohen his all he left with person. pro- more nervous than the normal were the elements of the It part nothing should be noted that nervousness is file and else. The few elements of

567 only v. Kennedy, cites state themselves, profile, the by do (1981), 290 Or. 624 authori- provide suspicion. not a reasonable See ty. Kennedy distinguishable. In that is here, Berry; case, defendant, Galvan. Under the facts af- say- ter papers, NCIC cleared defendants’ the talk. ing they Defendant asked wanted police kept papers, drugs. defendants’ two addi- The officers said De- about what. appeared, any carrying tional officers and that he was not defendants fendant said separated. immediately were offered to allow the This was not a and continua- present In the original tion of the to search. questioning and unlawfully for fifteen to were detained investigation. This was similar to the cir- minutes, they separated, twenty were cumstances which were held to have the af- requested Cohen’s consent an in instrusiveness of arrest Royer. The him asking to leave the car stand ter detention, NCIC, after clearance from cold, him his they while read illegal. authority in this Kennedy applicable is not Consent situation. question The next illegal is whether the distinguish attempt Royer The state’s detention tainted the consent. In order for by simply relating Royer the facts taint, a consent to eliminate any there must unpersuasive. Roy- case This is similar to proof be that voluntary consent was illegal involved an deten- er. Both cases that product it was not the illegal search; tion; a consent to both involved detention. Berry. trial court found were defendants who moved both involved that voluntary consent was but that was prior by requesting around illegal tainted agree. detention. We consent; both involved defendants who In analyzing whether a confession is signifi- is no were not free to leave. There purged of the taint of illegal arrest, an Roy- between this case and cant difference require courts inquiry into the following er. temporal factors: proximity between confession; the arrest and the presence In Berry, the court found that there of intervening circumstances; pur- were intervening substantial circumstances pose flagrancy of the official which served to miscon- attenuate the taint. These Taylor Alabama, duct. were two defendants were told they consent, they not need to Gilbert, State v. were they N.M. told that could 650 P.2d 814 contact an attor- (1982). The ney courts phone use this and were offered a analysis in for this cases, fourth purpose, amendment permitted too. E.g. Royer; to con- Wilson; Berry; In sult with one another. States v. Robin- son, (4th Cir.1982), 690 F.2d Cir.1982). Gooding, F.2d court that the taint not held vitiated argue The state not does that the taint illegal because the seizure and the consent dissipated by using the three-factor brief, all occurred the same continuous presented Rather, analysis Gilbert. Taylor encounter. v. Alabama holds that simply voluntary state contends con- simple warning is insufficient to attenu- given sent atmosphere a non-coercive ate the and that must taint be any overcomes the taint of deten- intervening “meaningful” event. Rob- Ruud, tion. To the extent that State v. inson, advice that one could refuse (Ct.App.1977), N.M. may given illegal de- consent was well into the say consent, be read that a tention and the in the consent was more, without can validate consent taint- immediate circumstances thereof. The illegal detention, ed it is taint not purged. followed. Ruud found the to be involuntary. Accordingly, intervening only issue circumstances were taintedness warnings reached. that defendants received Miranda defendants, from the to the search

consent and Velarde told Cohen that he did not advised defendants both as to the officers have to consent Under the cir- to search. rights they not Miranda and that did their simple of this these warn- cumstances to search of their vehicle. have ings Tay- cure are insufficient to the taint. of the The officers then conducted search warning lor. reason The is because the pounds and discovered eleven automobile was at a the were time when spare hidden an extra tire of cocaine illegal exploiting otherwise the detention. the the trunk of rental car. request during The for consent occurred after In letter written to counsel issued the unlawful at a time when the detention suppress, the motion to the hearing on possession officers retained of documents trial court noted: defendants needed to continue on their given in statements each factual [t]he way. Also, request the for consent came fairly hearing At our brief are accurate. after period a substantial of time in which matter, I stop this ruled that on the kept waiting, knowing defendants were speeding prop- the was what transpiring. request for Defendants for er; investigation the into that consent occurred after defendants were further identities, record, possessory and separated step and Cohen was made to proper; in the vehicle were interests vehicle, outside of his into the cold. the af- that the detention of Defendants short, exploited the detention completed the had his duties ter officer by placing position Cohen in a of vulnera- an relative to the traffic constituted bility they requested before consent. seizure; illegal the search police miscon- flagrancy the As the made defendants vehicle was without duct, flagrancy it clear that Taylor makes arrest, warrant, not incident to a lawful physical abuse necessarily refer does not cause; probable and not based outrageous It refers conduct. or other given by the the consent sei- police’s deprivation of Defend- voluntary. ants to the search was by that opportunity presented [Em- zure of the phasis they evidence that deprivation added.] to uncover lawfully. That would not have uncovered who defendants’ ve- officer here. happened is what an check on the car. sought hicle received, After the NCIC information Affirmed. approximately were detained defendants J., MINZNER, concurs. Al- twenty longer. minutes fifteen to DONNELLY, C.J., dissents. though the trial court found DONNELLY, voluntary, he found that it was tainted Judge (dissenting). Chief by illegal and that the evi- detention majority disagree I with the decision ensuing search dence discovered defend- holding that the consent search The trial suppressed. should be court ant’s vehicle invalidated find the consent to search defendants, detention of the from the coerced or forced defendant. following evidence seized subject suppression. finding the search was that the consent The trial court’s with the direct conflict stop, trial court found initial that the search determination lower court’s identification, request National deter- improper. Absent a car was (NCIC) check Crime Information Center over- will was mination that defendants’ proper. Following stop of defendants improperly, express defendants, borne or obtained delayed some- a search of an accused to consent of twenty forty where minutes between validate vehicle should police sought while information con- state Bustamonte, 412 U.S. from Schneckloth cerning the S.Ct. 36 L.Ed.2d obtaining Prior to a written NCIC. Ruud, (Ct. Officers,” 90 N.M. tody 9 A.L.R.3d (1966), App.1977). “[m]any support the conclu person validly a may sion that consent to a finding the trial th by court that though search even the given consent is given by consent the to the custody; while is in he the fact of search “voluntary”, of the automobile was custody inherently does not render the con should sup dictate reversal of the order party sent invalid.” A can waive rights his pressing the evidence entered herein. under Fourth the Amendment and consent issue as to the voluntariness of search the provided to a repre search that the consent was the issue ultimate to be determined. sents a free and uncoerced decision. State The fact that the to search was v. Ruud. Voluntariness to given during the time de defendants were question a fact search is to be determined a tained does not as matter of invali law “totality from the in circumstances” date the consent. each case. Whether or not defendant is An may accused consent to a search custody under arrest or in is not the deter law enforcement and if the consent validity issue as to minative of a con genuine is neither search warrant nor sent to search. See States v. United Men probable Aull, necessary. cause is v. State 544, denhall, 1870, 446 U.S. 100 S.Ct. 64 607, (1967); 78 N.M. P.2d 437 435 v. State (1980); 497 L.Ed.2d United States v. Prich Austin, 793, (Ct. 91 N.M. 581 P.2d 1288 ard, (10th Cir.), denied, F.2d 645 854 cert. App.1978). also See Parkhurst v. State 832, 130, 454 102 S.Ct. 70 L.Ed.2d 110 (Wyo.), denied, 628 P.2d 1369 cert. 454 U.S. (1981); McMahan, v. 583 State S.W.2d 540 899, 402, (1981) 70 L.Ed.2d 216 (Mo.App.1979); Angel, v. 356 State So.2d (upholding validity of search of car trunk 1978). (La. 986 after defendants were and consent The mere fact that a defendant in is search). ed to warrantless In Schneckloth custody not alone does render accused’s Bustamonte, v. Supreme the United States search v. Lange, consent to invalid. State prosecution Court stated that must (N.D.1977) (upholding 255 N.W.2d 59 demonstrate that the consent to search was search of automobile after defendant was voluntarily given product and was not the detained, taken station to coercion; of duress or is voluntariness search); gave People thereafter consent to question to of fact be determined from 471, 794, Ill.App.3d v. 53 11 Ill.Dec. Zynda, circumstances; the totality of all (1977) (upholding validity 368 N.E.2d 1079 right “while subject’s knowledge of a of defendant’s consent to a search fol to refuse to ac is a factor be taken into arrest); (defend lowing Angel, v. State count, prosecution required is not to to search vehicle was af ant’s consent knowledge prerequi demonstrate such as a despite determination that his de firmed establishing site to consent.” illegal where there was no tention Watson, See also United v. 423 U.S. coercion); showing States v. Al United 411, 820, 96 46 S.Ct. L.Ed.2d 598 Cir.1980) (consent lison, F.2d 779 v. State Ruud. despite de to search automobile held valid explanation ruling for the of the trial arrest); v. States Wil fendant’s expressed court as in his (5th Cir.1981) (consent letter to counsel iams, F.2d appears to invalidate consent to search personal to search effects of defendant This custody. while an accused is held after defendant was detained valid New is not the law in Mexico. v. possible drug smug State met because he test (1966), Plas, Herring, 77 N.M. gler); v. 80 Nev. State denied, (fact (1964) cert. 388 U.S. that defendant was cus (1967) (consent questioning can validate detained did not tody and search). validity negate an unlawful v. of his consent search See also State vehicle). Plas, appeal “Validity Austin. As noted the Annot. State that, ruling the trial of Consent to Given in Cus- court reversed court’s Search One search is not of a consent to custody granting held defendant was because a suppressed as “fruit of automatically invalid as be search the consent tree,” but have instead stat- prior poisonous case the instant of law. In matter automobile, suppressed the driver ed that evidence search by exploita- gained only and advised if the consent his Miranda was read or that defendant’s to consent to tion conduct did not have that he that the consent was overcome so free will voluntary. Kennedy, was not uphold the prerequisite It is not 2 W. also 624 P.2d 99 See Or. a to without validity of a consent search Seizure, LaFave, 8.1 at and Search § first be accorded warrant that defendant (1978). Arizona, v. rights set forth in Miranda 436, 16 L.Ed.2d the trial court’s order I would reverse Carlton, Ruud; v. State v. State the cause to and remand suppression (Ct.App.1972). 83 N.M. of the issues for determination trial court rendered Neither is search under suppress motion to presented involuntary by failure advise defend set totality of circumstances test right request ant to refuse a v. Bustamonte forth Schneckloth warrant. search without a search United v. Ruud. State Shields, v. 573 F.2d 18 Cir. States 1978); v. 620 F.2d Agapito, United States (2nd 1980); People Tremblay, Cir. v. (1980). In

A.D.2d 430 N.Y.S.2d 757 present case defendants were advised right Miranda

of their give

refuse to their consent to search their vehicle absent a search warrant. The 711 P.2d 15 trial find court that defendants’ SMITH, Petitioner-Appellee, James Lee under coercive circum right stances. The to search an automobile v. than the

is different from broader MALDONADO, Jim Sheriff of Colfax right premises building, search of a Mexico, County, New Laughter, home or office. v. State Respondent-Appellant. (defend (App.1980) Ariz. 625 P.2d 327 No. 15805. upheld despite ant's consent to search car fact handcuffed defendant Supreme Court of New Mexico. arrest). placed him under Dec. validity To of a consent test search, judge against trial court must totality of all the circumstances was the consent essen-

pivotal question is

tially voluntary, free and unconstrained duress, was it the result of coer-

choice or

cion, threat, express implied, or implicit, v. force. Busta-

or of covert Schneckloth

monte; voluntary na- v. Ruud. The question of

ture a consent is a fact Tolias, law. (9th Cir.1977);

F.2d 277

Watson. jurisdictions have consist-

Courts other following

ently held that evidence obtained

Case Details

Case Name: State v. Cohen

Court Name: New Mexico Supreme Court

Date Published: Dec 9, 1985

Citation: 711 P.2d 3

Docket Number: 15818

Court Abbreviation: N.M.