State v. White
615 P.2d 1004
N.M. Ct. App.
1980
Check Treatment

*1 Mexico, New STATE of

Plaintiff-Appellant, Este-

John Michael WHITE and Manuel Pazos, Defendants-Appellees.

ban

Nos. 4438. Gen., John Bingaman, Atty. G. Jeff Appeals of New Mexico. Fe, McKenzie, Jr., Gen., Atty. Santa Asst. plaintiff-appellant. July Hill, White. Alamogordo, for Larry R. Whorton, Alamogordo, Pazos. T. Jack OPINION WOOD, Judge. Chief appealed the trial court’s order The State in two marijuana contained suppressing bags. The boxes cardboard boxes trunk of bags were car The trial occupied defendants. findings, referred as is- sugar dispositive “onion sacks”. was a reasonable ex- sue is whether there to the contents pectation was war- bags. The search the boxes and exigent claim is no rantless and there circumstances. pa- stopped a border

Defendants’ car County, checkpoint in New Mexi- Otero trol observations Because of certain co. experience with what he ob- the officer in connection open the served, asked to trunk Pazos was The cardboard complied. car. observed, hidden during the clothing, were the trunk. was no consent there erred in of fact. Al question search. Consent conflicting inferences though there are could trial court was no consent. find (Ct. Austin, 581 P.2d Ruud, App.1978); *2 upon by of relied Although the trial court found a lack was the State in the trial search, court; court, it also found that the consent to the theories in the trial State’s cause to probable officer had by requested findings as shown its and con- illegal aliens. Defend- search the trunk for clusions, (a) (b) were consent and the boxes support ants assert the evidence does bags repositories personal were not of this con- finding. this We need not answer possession” “exclusive effects. Because tention; however, v. 94 was not relied on in the trial this 243, (Ct.App.1980). N.M. 608 P.2d 1125 appeal. contention will not be considered on Crim.App.Proc. Rule of opened, the trunk of the car was the Once that the “detected trial court found The claims the two boxes and State marijuana.” strong a odor of This repositories “not bags were common challenged. provided prob- is not The odor and associated with personal one’s effects marijuana. able cause to search for State The expectation privacy.” State 476, Sandoval, (Ct. 590 P.2d 175 bags plas would liken the boxes and App.1979). Smith, bag (Ct.App.) No. tic State The were dur- bags 3927, 8, (St.B.Bull. filed November 1979 ing marijuana. The evidence search for 19, 3, p. 37), Vol. No. overruled is to the effect that boxes and Supreme grounds, Court on other closed containers. was asked 379, (1980). 610 1208 The Court of boxes; replied they what was in the he Smith, Appeals opinion supra, State open contained books. Pazos started to stated: hesitated; then an officer Luggage repository is a common for one’s actually opened the box and discovered that effects, personal inevita- and therefore is it marijuana. opened contained An officer bly expectation associated with bags; they other box and the two also privacy. very containers their Some marijuana. contained support any nature reasonable ex- cannot The trial court ruled officers had pectations privacy because their con- probable cause “to search the vehicle and their outward tents can be inferred from any containers therein which were not re- appearance. positories personal effects.” The trial (which plastic bag held that the con- Smith suppressed, the two box- drugs) not fall in the classi- tained did same es, bags, the two and their In contents. so fication as a suitcase. doing, applied it the rule that even if there .Smith, State v followed footnote personal is cause to seize luggage, Sanders, supra. 13 in That Arkansas v. opened it cannot be and searched without a Walker, quoted footnote is in State v. 93 authority possess warrant. “An officer’s to 769, N.M. The package authority a distinct his is to points all containers footnote out that not examine its contends.” Walter v. United - - by police during found the course of a States, -, U.S. 100 S.Ct. protection 2398, (1980). search will deserve the full L.Ed.2d 410 2395 at 65 the Fourth Amendment to the United contends the rule does not (search seizure). States Constitution apply police until the have “secured” the “There will be difficul footnote states: is, luggage, luggage reduced the to determining parcels ties in which taken their “exclusive control”. United See require a warrant from an automobile 97 U.S. S.Ct. Thus, their search and which do not.” (1977); 53 L.Ed.2d 538 Arkansas v. required whether a to search a warrant Sanders, U.S. S.Ct. depends container which has been seized (1979). The L.Ed.2d 235 State asserts the upon concerning the facts the container. possession officer did not have exclusive (and also) declare, presumably seeks to have us as a law, theory expectation when the search occurred. was No such matter of no of Sanders and, application asserts that in the two boxes warrant, retroactive improper an required to case would be therefore, was not this a arguments disagree. law. These We of new items. search these United followed spurious. are Chadwick, supra, in- United States was decid- supra, which footlocker; Arkansas volved long ed before the *3 Walker, supra, involved supra and State applied United Dien, F.2d suitcases. United States Kaiser, rehearing, 615 1979), on (2d Cir. aff’d had and Kaiser (Ct.App.1978), rea- (2d 1980), there were held F.2d 10 Cir. in this case. the search before been decided three privacy in expectations of sonable apply; Kaiser Chadwick and Both partially sealed large cardboard each was no retro- There state new law. did not re- warrant was tape, and a plastic with of new law. See State active boxes. United quired to search the “ Kaiser, supra. ‘luggage supra, referred to ” The form of personal property.’ other is af- suppressing evidence order suitcase, footlocker, box— the container — firmed. determinative; a war- whether may not be IS ORDERED. IT SO a closed container required to search rant is a reasonable there was depends on whether ANDREWS, J., concurs. to its contents. privacy as expectation of found that the trial court In this case HENDLEY, J., specially concurs. photo- bags were shown HENDLEY, Judge (specially concurring). photo- evidence. which was in graph closed graph reveals I majority opinion except concur tape. The partially sealed and at least part to that which relates to cause solid were of photograph shows “however, material, the State contends. “mesh” as 243, 608 P.2d (Ct.App.1980).” top. at the and tied were closed language is totally unnecessary opin- photograph, appearance in the From their appears give ion and weight opin- to an properly rule court could I totally wrong ion which consider pri- expectation of there was a reasonable discussion as probable- to what amounts to was re- vacy A warrant in these items. cause. search items. The quired to search these warrantless, the trial court being boxes, bags and contents.

suppressed holding in that our on Arkan- paragraph is based preceding claims that Sand- supra. It

sas v. it was decided because applicable

ers is not It day after the