*1 Mеxico, Plaintiff-Appellee, STATE of New Arthur SEDILLO Defendants-Appellants.
No. 347. Appeals of New Mexico.
Court
Oct. 1969. Denied Dec.
Certiorari Albuquerque, appel- Burciaga, Juan
lants. Fe, Gen., Atty. Maloney, A. Santa James Gen.,, ap- Atty, D’Angelo, Asst. Vince pellee. *2 The thought
OPINION officers they identified Fred as passed. defendants As the light traffic OMAN, Judge. changed, the officers turned to the east indicted and convicted Defendants were аppeared behind defendants. to the of- upon jury burglary defined trial of ficers that kept defendants looking back 40A-16-3, (Repl.Vol. N.M.S.A.1953 § and trying them, were to evade They appeal rely upon three 1964). and pulled up officers They closer. noticed the Defendant, points Fred for reversal. trunk lid on defendants’ car was not com- Sedillo, point. upon relies a fourth also pletely closed and was wired down. in the or points These will considered be passed As defendants over the railroad presentation in the brief in der of their tracks, the officers were about two car- chief. lengths behind. The trunk lid on defend- “ * * * point the trial court The first car ants’ up bounced it and sup- in denying erred defendants’ motion to looked both like these covers [officers] press pair flashlight and as evidence you typewriters have They on under the seat gloves taken from front appeared saw what to them to be office being of an automobile which was driven machines. defendant, apparently belonged and Shortly after defendants crossed the rail- Sedillo, defendant, Epifanio and in which they road tracks left turned on to Com- Sedillo, testimony riding, and mercial Street. At this the officers typewriters, dictaphones, as to three two stop decided to defendants. one The of- adding machine transister and radio driver, ficer went Epifanio taken from the trunk automobile. and asked for his driver’s license. He had equipment, except gloves This for the and none, step so the officer asked him to out flashlight, had beеn stolen law of- from he, of the car. The officer then if Albuquerque closing fices in after on No- officer, open trunk, Epi- could and vember 1968. The record fails show fanio nodded. just stopped by when defendants were two Upon giving Epifanio of the nod police officers, but was time be- some opеned the trunk was and the officers ob- S, p. tween 7:00 m. on November and 3:00 equipment. Epifanio served the im- a. During m. on November oral mediately rights, advised and asked argument court, attorney before this “ * * * got where he it.” representing appeal defendants on this stat- answered, “I found it.” No further dis- ed it p. was about 10:00 m. оn November cussion occurred. S. suppress The motion to was not made un- The than looked elsewhere in til after of three witnesses the car gloves and found the and flash- State, including one of the officers light. placed Defendants were under ar- stopped defendants, who had been conсlud- city taken jail rest to the and booked. ed. These witnesses testified in detail as At stopped, the time defendants were ar-
to a break-in at the law offices city rested and taken to jail, the of- identity removed there- knowledge ficers had burglary aof found in the trunk of defend- in the area. All units were advisеd " ants’ automobile. * * * of what the two officers Defendants were po- well-known they found looking were for a burglars. lice as The two officers were break-in at of the commercial law of- ” patrolling the downtown area of Albu- fices so forth. It was not querque in a proceed- car and werе until morning next that someone at ing north They stopped on Second Street. reported law burglary. offices light, traffic passed and defendants equipment was then claimed and returned them, front going Marquette. east on to the owners. position denied, It is cert. 386 U.S. wére the time arrested were S.Ct. L.Ed.2d stoppеd; prob- Slicker, at that time there not (Ct. officers, able cause for the as men of rea- App.1968). caution, sonable believe an offense had opened trunk was and the machines committed; being been or was *3 range, examined close but this was with “ * * * the validity search must rest of Epifanio. not, the consent of We need and upon propriety underlying the ar- of the not, do decide whether the officers were ” * * * rest. justified in opening the trunk and examin- ing the consent, machines without because record not clear as to when Epifanio had consent. expressly was placed arrest, the officers defendants under by he, one of the officers if the of- apparently but after the was trunk was ficer, open trunk, could Epifanio the fully opened and the contents thereof ob nodded. is true the to record fails state by served the then officers. It was anything by response further as the to Epifaniо, who had nodded assent to the Epifanio inquiry to made of him. opening of the trunk his was advised of According to Merriam-Webster’s Third rights. prior stopping defendants Dictionary, Unabridged New International investigate, although to an invasion of (1966), “nod” is defined as: necessarily personal security, their not (cid:127) Lewis, an arrest. in As was said State v. quick incline the “to head with a mo- 274, (Ct.App.1969): 80 P.2d N.M. 454 360 quick tion: a downward motion of make assent, sign (as the head a whether as appropriate “In circumstances in salutation, involuntarily command) or or appropriate manner, an a officer (as drowsiness) cousin may approach person investigate to a [her * in in- agreement]; nodded to possible though criminal even behavior cline (as head) or bend downward may probable not have cause officer forward; specif: quick to make a down- justify an arrest. an inva To such sign head) a (the ward motion security, a рersonal sion citizen’s approval] head in his specify officer must be able to [nodded judged the intrusion. These facts are to the action taken was v. N.M. facts Ed.2d ferences person Ohio, facts which, 889 by 392 U.S. therefrom, available 448 (1968); reasonable caution to believe together objective P.2d 478 to State v. appropriate? 88 reasonably S.Ct. standard —would (Ct.App.1968).” officer rational 1868, Slicker, warrant warrant Terry 20 in be 79 L. with which we asking permission, reasonably suggests that granted. approval from side to side and or dissent. The conduct of the [*] head, which, ordinarily requested permission [*] *» See State nodded, assent, and are here v. signifies disapproval Campbell, Minn. he did concerned, means clearly or consent was in the context 281 not officer in indicated shake 161 which defend- N.W.2d 47 Here the facts known to of “ ‘yes’ to an in- ant nodded in the fashion” ficers at they stopped the time to quiry by police him officers as wheth- opinion are sеt out these above. our “ blood right er it take some ‘was to reasonably stopping facts warranted ” recog- nod samples’ from him. The made into vehicle and invasion in- an affirmative answer nized as security. Compare personal defendants’ the tak- quiry indicating consent to and as States, 132, 45 v. 267 Carroll United U.S. samples. ing the blood A.L.R. 69 L.Ed. 39 790 S.Ct. States, ; here, by the nod Brinegar evidenced v. United 338 U. The consent acquiescence Epifanio, (1949); L.Ed. is unlike S. 69 S.Ct. 93 1879 n authority Deltenre, P.2d claim lawful discussed 424 v. 77 N.M. State 50 Carolina, given 391 answer either
Bumper v. North
U.S.
of .the of
circumstances,
L.Ed.2d 797
ficers.
these
20
Under
no er
88 S.Ct.
Lewis,
preserved
supra.
v.
rоr
review.
v.
State
State
Sisneros,
P.2d
examining
the trunk
opening
After
Wallis,
State
P.
proceeded
machines,
then
;
Ortega,
(1929) State v.
N.M.
car
search the remainder of
(Ct.App. 1968);
P.2d 346
Gutier
flashlight,
gloves
at which
found the
rez, 79
(Ct.App.
clearly
grounds
reasonable
1968).
to an arrest.
incident
conduct a search
States,
suprа;
v. United
Carroll
See
As
cross-examination
States, supra;
Brinegar
United
Fred,
Assistant District Attorney
con
Slicker, supra.
Lewis, supra;
cerning
daily
drug addiction and the
cost
first
find no 'merit
to defendant’s
addiction,
securing drugs
satisfy
this
*4
point.
preservation
there was likewise
er
no
review,
for
if
ror
in fact error was com
third
argue
their second
Defendants
any
objection
mitted. No
made to
was
to
together.
points
These
relate
points
given,
question asked
answer
and de
part
trial court
claimed error on
questioned
de
fendants’
counsel
this
own
tes-
permiting prosecution witnesses
to
fendant
on re-direct examinаtion
records,
further
character
tify
police
as to the
concerning
drug
the fact that
his
habit and
defendants,
permitting
reputation
of.
Albuquerque police.
was known to
Attorney, on cross-
the Assistant .District
Sisneros, supra;
v.
v. Orte
State
State
See
Fred,
inquiry as
to make
examination of
Gutierrez, supra.
ga, suрra;
v.
State
drug addiction
to this defendant’s
satisfying
daily
this addiction.
cost of
by
solely
The last
is raised
records,
police
urges
character
He
that
evidence is in
As
Fred.
to
defendants,
reputation
the entire
sufficient
to sustain his conviction.
lines, except
testimony along
these
An
fails
dis
examination
the record
to
habit,
drug
to
was
as
his
of Fred
sufficiency of
question
that the
close
by
on cross-
elicited
themselves
was
support
conviction
the evidence to
his
who
examination of
two
presented
the trial court. Under
ever
to
cannot
for the
A defendant
testified
State.
circumstances,
demand
he cannot
these
appeal that he was
complain
be heard to
on
right.
a matter of
review of the evidence as
injected
he
prejudiced
evidence which
by
421,
Lee,
265
N.M.
432 P.2d
v.
78
State
,
Ariz.
98
into the
v.
case.. State
Chavez
Slayton,
also,
v.
(Ct.App.1967). See
State
;
236,
(1965)
403
State v. Gor
P.2d 545
;
239,
v.
N.M.
51
Salazar,
justice is
v.
78 N.M.
minutes to their jo, (1931). officers; taking him Epifanio was ap- We feel that this case calls grandmother’s home on Commercial his pliсation only of that doctrine. Not was living; he he had where Street any there an par- absence of However, un- not entered the law offices. Salazar, ticipation by as that term is de- here, jury not re- der record fined in State Ochoa N.M. [41 testimony. quired accept See Galvan supra, replete but the record 609] Miller, P.2d 961 suggesting with evidence inca- Henry, Medler v. 101 P.2d pable forming performing act or (1940). requisite criminal intent. Under the here, may properly ownership facts we consider Except apparent for the *5 support whether substantial evidence to by Epifanio, the the fact that automobile finding guilt present.” a is driving, and the fact that he stated of equipment, he had found the the evi- office record, it, The as I indicates a com- read equally inculpatory is both. dence plete guilt lack of evidence of as to Fred This evidence is outlined above. only proof in Arthur offered Sedillo. say are unable that the innocence support charge against him that is indisputable, guilt of Fred is or passenger he was a in driven an automobile the if his doubtful as shock conscience The auto- by defendant Sedillo. permitted can conviction be to stand. Nor stopped by and the of- mobile was the say there total of evidence is absence we as the fice later identified stolen support his conviction. the property found in the trunk of judgment be af- of conviction should recently undisputed car. that seems the firmed. furnished equipment so stolen office found conviction. the sole basis for It is so ordered. Romero, 352 P.2d In HENDLEY, J., concurs. court, considering in the suf- case, ficiency burglary in a of the evidence SPIESS, part in Judge (concurring Chief said: dissenting part). in that deciding, “Assuming, without majority opinion insofar in the I concur re possession of unexplained exclusive of defendant
as it
the conviction
affirms
may be substantial
cently
goods
stolen
respect to defend-
Epifanio Sedillo. With
a convic
sustain
evidence on which to
Sedillo, I am
ant Fred Arthur
unable
Lott, 1936, N.
compare
majority and re-
in the view of the
concur
tion —
with State
56 P.2d
spectfully
M.
dissent.
White,
when such to another. equal right, be attributed ’* Frank Sul- of Idaho v. al., P. et Idaho
livan and 908.’ pages 907
A.L.R. the state has shown
“At best possession of appellant constructive Mexico, Plaintiff-Appellee, STATE New occupying the jewelry virtue of There in which was found. same room ANAYA, Defendant-Appellant. Jake tending to showing was no Nо. 380. knowledge, appellant had that the show Appeals Court of of New Mexico. disposal power in the control voice Dec. concerning jewelry.” may prosecution case the instant possession of have shown constructive equipment in Arthur Sedillo
office pas- fact that he was reason *6 time the at the
senger in the automobile evi- There was no found. it could be said from which
dence a voice in knowledge, control or equipment. disposal
power Romero, supra, the court “exclu- following definition of
adopted the :
sive” guilt, an inference of
“To create not mean
term ‘exclusive’ does separate
possession must be provided there is other
others the offense.” with
to connect defendant any other evi-
The record is barren of de- connecting tending connect
dence of- Fred Arthur
fendant Sedillo
fense. expressed requirement meet the
To Salazar, discloses supra, the record in the exculpatory nature evidence of defendant, Arthur majori- in the summarized
ty opinion.