State v. Capps , 97 N.M. 453 ( 1982 )

OPINION

RIORDAN, Justice.

Defendant Richard E. Capps (Capps) was convicted of possession of marijuana with the intent to distribute. § 30-31-22(A)(1), N.M.S.A.1978 (Repl.Pamp.1980). The Court of Appeals reversed the defendant’s conviction holding that a police officer had conducted an unlawful car search by tearing open one of nine plastic bags that contained marijuana, located in the car’s trunk. We granted certiorari, and we reverse the Court of Appeals.

The issue presented on appeal is whether the police officer pursuant to the “automobile exception” could search the trunk of a car and open the plastic bags located in the trunk.

A police officer, who was a narcotics investigator with 16 years of law enforcement experience, validly¹ stopped a car driven by James Lear (Lear) and occupied by Capps. When he approached the car, the officer smelled marijuana and talcum powder coming from the car. The officer knew from experience that talcum powder was frequently used to mask the odor of marijuana. The officer asked if Lear minded if he looked inside the trunk. Lear answered, “No, I guess not.” However, before unlocking the trunk, Lear attempted to bribe the officer saying, “Look, Officer, can’t we make a deal? If you’ll just forget this whole thing, I’ll make it worth your while." The officer refused the bribe and ordered Lear and Capps to keep their hands where he could see them. Lear then volunteered the statement, “We got no guns. We got dope, but we don’t got no guns.” When Lear opened the trunk of the car, the smell of marijuana and talcum powder became stronger. The officer observed nine dark green trash bags with silver tape sealing them and a browit paper bag. The officer then tore a hole in one of the trash bags and also looked inside the brown paper bag. They contained marijuana.²

The trial court ruled that the officer had probable cause to search the trunk and bags and that no warrant was needed.

Two well recognized exceptions to obtaining a search warrant are: search incident to arrest and the automobile exception, sometimes referred to as the Carroll Doctrine. The common element running through these two exceptions is exigency.

Incident to Arrest

In Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), the Court held that a lawful arrest gives rise to a contemporaneous search of the place where the arrest is made in order to find and seize items connected with the crime. Agnello did not, however, define the extent of such a search. In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), a search of a closet was upheld as incident to an arrest. However, in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932), the Court held unlawful a search of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. But in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), overruled on this issue, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), a search of an entire apartment was upheld as incident to an arrest. Thus, we find that the Supreme Court has broadened and narrowed the perimeters, of the search incident to arrest exception, over the years.

In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the permissible extent of a search incident to a lawful arrest was redefined. In Chimel, the defendant was arrested inside his home. The officers making the arrest searched the defendant’s entire house looking for evidence of the crime. The Court held that incident to an arrest, a search is confined to the area within the immediate control of the defendant in order to seize weapons and/or to prevent the destruction of evidence. Therefore, the seizure in Chimel was unlawful.

In the recent United States Supreme Court case New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), it now appears, that in reference to car searches, the limits of a search incident to an arrest have been expanded or redefined. The officer in Belton stopped a car for speeding. When he approached the car, he smelled marijuana. The officer arrested the four occupants and then searched the passenger compartment. On the back seat, he found a black leather jacket belonging to Belton. He unzipped one of the pockets and discovered cocaine. The Supreme Court upheld the search. The Court stated that “when a policeman had made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 2864. The Court further held that “the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach.” Id.

Automobile Exception

The “automobile exception”, also referred to as the Carroll Doctrine, has also been a difficult area in understanding the permissible limits of a warrantless search. The exception began with Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). A car was stopped and searched without a warrant. The search turned up 68 bottles labeled “scotch whiskey” and “Gordon’s gin”. Carroll was convicted of violating the National Prohibition Act. The Supreme Court held that a search is proper when it is not practicable to secure a warrant because of the mobility of an automobile. However, before a search can be conducted two requirements must be met:

1) There must be probable cause³ that the automobile contains evidence of a crime, and

2) there must be an exigency to search the automobile at that moment, because of the automobile’s mobility and fear that evidence could be destroyed.

Between 1925 and 1970, the Carroll Doctrine was seldom relied on and was not really developed by the Supreme Court decisions, probably because most cases were decided under the “search incident” exception that was broadly interpreted prior to Chimel.⁴ There were opinions during this time citing Carroll, e.g., United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), but not until Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (the year after Chimel), did the Supreme Court breathe new life into the Carroll Doctrine. Chambers dealt with a gas station robbery. The two men involved were arrested and their car was taken to the police station and searched without a warrant. During the search, evidence of the robbery was found. The search was upheld under the Carroll Doctrine. The Court held that the officers had probable cause to believe that the robbers’ car contained guns and fruits of the crime. The right to search and the validity of the seizure was not dependent on the right to arrest. They were based on the probable cause that the seizing officer had that the contents of the automobile included evidence or fruits of the crime.

In the present case, the officer’s right to search was not dependent on the arrest, but rather upon the officer’s bélief that the automobile contained evidence of a crime. Carroll and Chambers justified the search of the entire car and the officer’s opening and seizing the plastic bags.

The officer in this case had validly stopped Lear’s car. He then smelled marijuana and talcum powder as well as having the voluntary admission that the car contained “dope”. The smell of marijuana alone can satisfy the probable cause requirement for a warrantless search. United States v. Rumpf, 576 F.2d 818 (10th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978); United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973). Thus, the aroma gave the officer probable cause to search the car, including the trunk. State v. Sandoval, 92 N.M. 476, 590 P.2d 175 (Ct.App.1979). The officer did not need to obtain a search warrant. The officer had probable cause to search the car immediately. “[Ajutomobiles * * * may be searched without a warrant * * * provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” (Emphasis added.) Chambers v. Maroney, supra 399 U.S. at 48, 90 S.Ct. at 1979.

Although there is probable cause, the second factor, exigent circumstances, must also be present. United States v. Milhollan, 599 F.2d 518 (3rd Cir.), cert. denied, 444 U.S. 909, 100 S.Ct. 221, 62 L.Ed.2d 144 (1979), restates the second factor as “the justification for the search must arise suddenly and unexpectedly.” Id. at 526. The officer stopped Lear’s car because of an earlier teletype that stated to be on the lookout for a car that fitted the description of Lear’s car. When Lear was getting his car registration, the officer then smelled marijuana and talcum powder. Prior to this, the officer had no knowledge that the car may contain marijuana. Therefore, probable cause was satisfied by the aroma and the admission of the driver; and exigent circumstance was satisfied by this unexpected discovery and by the fact that the automobile was mobile. The officer satisfied the two requirements to the automobile exception. He could then search the entire car knowing that marijuana may be located somewhere in the automobile. Chambers v. Maroney, supra; United States v. Milhollan, supra.

Capps claims that even if the officer was authorized to search the automobile including the trunk, he was not allowed to open the bundles or the paper sank in the trunk. This is not true; the officer could search the entire car including containers inside the car to locate marijuana. In United States v. Milhollan, supra,⁵ Milhollan was trying to cash suspicious money orders. The teller at the bank notified an officer who approached Milhollan; Milhollan ran and was apprehended a few blocks away. A search of Milhollan produced car keys to a gold Capri. The officer found the car in a public parking lot. The officer drove the car to the police station and then searched it. A closed but unlocked satchel was found in the back seat. The officer opened the satchel and found cash and stolen money orders. Milhollan contended that the search of the car and the satchel were illegal. The Court, however, found a valid search of both under the Carroll Doctrine. The police had probable cause to search Milhollan’s automobile because of their belief that there may be evidence of an attempt to pass stolen or forged money orders. The probable cause was also found to arise suddenly and unexpectedly because events surrounding the arrest triggered the officer’s suspicion that the automobile contained evidence. Therefore, the search of the automobile was valid. Relying on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), Milhollan contended that the search of the satchel was invalid. The Court held that Chadwick was not applicable. In Chadwick, the trunk was the target of the investigation or search rather than the automobile that was carrying it.

Here, the police had probable cause to believe that Milhollan’s car, not a particular container in brief contact with Milhollan’s car, contained evidence of a crime. Their suspicions were not localized; their search of the automobile was not a pretext for a search of the satchel. They only knew that somewhere in Milhollan’s automobile there probably was evidence shedding, light on his true identity. These facts bring this case within Chambers and distinguish it from Chadwick.

United States v. Milhollan, supra at 527.

In the present case, the plastic bags in the trunk were not the target of the officer’s search. The officer was searching for marijuana; he did not know where it would be located. Thus, the officer is allowed to search items or containers located in the car to find the contraband as long as a specific container is not a particular target. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), are not applicable to this case. Sanders and Chadwick are “container” cases and this present case is not a container case.

In Chadwick, a suspicious footlocker thought to contain marijuana was loaded from a train to the trunk of a car. While the trunk was still open, arrests were made and the footlocker was seized. The locker was taken to a Federal Building and opened an hour and one-half after the arrests. The Supreme Court held that the warrantless search of the trunk was invalid because it was already in custody; therefore, there were no exigent circumstances.

In Sanders, an officer had received information that the defendant would be coming in on a flight with a green suitcase containing marijuana. At the airline baggage pick-up, the defendant picked up a green suitcase matching the description received by the officer. The green suitcase was put in a taxi’s trunk, and the taxi drove away. The officer stopped the taxi a few blocks away. Upon the request of the officer, the taxi driver opened the trunk of his vehicle. The officer found the green unlocked suitcase and without asking permission, the police opened the suitcase finding marijuana. The state of Arkansas argued that Carroll applied, however the Court stated:

Here, as in Chadwick, the officers had seized the luggage and had it exclusively within their control at the time of the search.

* # * * * *

* * * Once police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken. Accordingly, as a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.

Sanders, supra 442 U.S. at 762-64, 99 S.Ct. at 2592-93.

Sanders, in a footnote, explained that the seizure of a “target container” and the seizure of an automobile is quite different.

We view, however, the seizure of a suitcase as quite different from the seizure of an automobile. In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they could be kept, with due regard to the safety of the vehicles and their contents, until a magistrate ruled on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments. (Citations omitted.)

Id. at 765, n. 14, 99 S.Ct. at 2594, n. 14. In the present case, if the officer was not allowed to search the entire automobile, he would have had to seize the automobile because he did not know where the marijuana was particularly located.

When an officer executes a search warrant, he may search thoroughly every part of the described premises where there is any likelihood that the property sought may be found. 1 Wharton’s Criminal Procedure § 172 (12th ed. 1974). The same principle applies when a lawful search, without a warrant, is conducted pursuant to a warrant exception. If there is probable cause to search for a particular item, the officer can search every container and location within the permitted area where that item could be located.

Between the time certiorari was granted in this case and the decision, the United States Supreme Court decided Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).⁶ In deciding this case, we have fully examined Robbins and feel that it is not controlling.

In Robbins, the defendant, driving erratically, was validly stopped by a police officer. When the defendant opened the car door to show his registration, the officer smelled marijuana. The Court found that the officer had probable cause to search Robbins’ car, including the trunk. In the luggage compartment of the trunk were a totebag and two packages wrapped in green opaque plastic. The police unwrapped the packages; the packages contained marijuana.

The Supreme Court analyzed Robbins as a Sanders-Chadwiek container case. The Court reiterates the same language cited on page 488 of this opinion. That once the police have seized the suitcase, the extent of its mobility is no longer affected. The officer in Robbins must have been considered to have seized the bricks of marijuana. The officer here never seized the plastic bags. While the bags were in the car, he tore a hole in them. The Sanders-Chadwiek analysis is not applicable to the present case.

We find that the opening of the plastic bags during the car search was within the extent of the automobile exception. The officer did not violate Capps’ Fourth Amendment rights.

The decision of the Court of Appeals is reversed.

IT IS SO ORDERED.

PAYNE and FEDERICI, JJ., concur. EASLEY, C. J., concurring in the result. SOSA, Senior Justice, dissenting.

1 . Prior to trial, the Court of Appeals granted the defendant an interlocutory appeal to determine whether the stop was valid. The Court of Appeals in a memorandum opinion, found the stop valid.

2 . The nine plastic bags contained approximately 88 pounds of marijuana.

3 . The United States Supreme Court in Carroll, supra 267 U.S. at 161, 45 S.Ct. at 288, defines probable cause as: “ ‘[i]f the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.’ ” (Citation omitted.)

4 . For an excellent discussion of the history of the automobile exception, see Moylan, The Automobile Exception: What It Is and What It Is Not—A Rationale in Search of a Clearer Label, 27 Mer.L.Rev. 987 (1976).

5 . The United States Supreme Court denied certiorari to United States v. Milhollan, supra, October 9, 1979. Arkansas v. Sanders, infra, was decided June 20, 1979.

6 . The United States Supreme Court has granted review of United States v. Ross, - U.S. -, 102 S.Ct. 386, 70 L.Ed.2d 205 (1981), and has directed the parties to address the question whether the Court should reconsider Robbins v. California, supra.