State v. Pacheco

193 P.3d 587

2008 NMCA 131

STATE of New Mexico, Plaintiff-Appellee, v. Mario PACHECO, Defendant-Appellant.

No. 26,721.

No. 26,739.

Court of Appeals of New Mexico.

August 14, 2008.

Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.

James E. Bierly, Albuquerque, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} Defendant Mario Pacheco, a vehicle passenger, appeals his convictions for possession of methamphetamine with intent to distribute and for conspiracy. The police discovered the drugs upon searching a compartment hidden near stereo equipment that replaced the vehicle's back seat. Defendant raises four issues on appeal, challenging: (1) the denial of a motion to suppress evidence seized in the course of a traffic stop; (2) the district court's response to the State's destruction of evidence; (3) the exclusion of evidence that the driver absconded and was the subject of a bench warrant; and (4) the sufficiency of the evidence to support Defendant's convictions. We address all of these issues and reverse the exclusion of evidence that the driver absconded. We also determine that there was sufficient evidence to permit retrial of Defendant.

MOTION TO SUPPRESS

{2} Law enforcement officers discovered significant quantities of methamphetamine in a vehicle in which Defendant was traveling. Defendant moved to suppress this evidence on grounds that the detention and search of the vehicle were improper. The district court denied the motion. Defendant challenges this ruling on appeal.

Standard of Review

{3} When reviewing a ruling on a motion to suppress, "we observe the distinction between factual determinations which are subject to a substantial evidence standard of review and application of law to the facts[,] which is subject to de novo review." State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration in original) (internal quotation marks and citation omitted). We view the facts in the light most favorable to the State as the prevailing party, indulging all reasonable inferences in support of the district court's ruling and disregarding all evidence and inferences to the contrary. State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964; State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. We review the application of the law to those facts de novo. State v. Ochoa, 2004-NMSC-023, ¶ 5, 135 N.M. 781, 93 P.3d 1286.

Suppression Hearing: Facts

{4} On the afternoon of February 14, 2002, Deputy Roth observed a small, red Mazda traveling at approximately eighty-five miles per hour in a seventy-five mile-per-hour zone, and he initiated a traffic stop. As he approached the passenger side of the vehicle, the officer noticed a heavy odor of air freshener, heavy perfume, or after shave. The deputy asked the driver for his license and registration. The driver presented an identification card, but could not produce a driver's license. The deputy noticed the driver's hand was visibly trembling, and he appeared to be uncommonly nervous. Defendant, who was seated in the passenger seat, assisted in producing the vehicle registration from the glove compartment.

{5} Noticing that the name of the registered owner did not match the name on the identification card provided by the driver, Deputy Roth asked the driver about the registered owner of the vehicle, and the name of the person who had given him permission to use the vehicle. The driver could not recall or did not know. The deputy then asked Defendant if the car belonged to him. Defendant indicated that it did not.

{6} Deputy Roth asked the driver and Defendant about their travel plans. Although he could not remember their responses with specific detail, viewing the evidence in the light most favorable to the State the driver said they were traveling to Albuquerque to visit an uncle, while Defendant said they were traveling to Colorado for work. Deputy Roth thought that Defendant and the driver gave conflicting travel plans.

{7} Deputy Roth returned to his patrol unit to prepare a speeding citation. He also initiated a wants-and-warrants check on both the driver and Defendant and checked the vehicle's status. The deputy was informed that there were no outstanding warrants and that the vehicle had not been reported stolen. Remaining suspicious, he prepared a consent-to-search form and requested the assistance of a canine unit.

{8} Deputy Roth presented the speeding citation to the driver and returned his paperwork. He then asked the driver if there were any drugs in the car. The driver indicated that there were not. Deputy Roth then asked for permission to search the vehicle. The driver agreed and proceeded to read, initial, and sign a consent-to-search form. Deputy Roth also obtained Defendant's verbal and written consent to search.

{9} The canine unit arrived shortly thereafter. However, the dog did not alert to the vehicle in an appropriate fashion. Instead, it exhibited "unacceptable behavior by biting" rather than scratching or digging. When the handler attempted to correct this behavior, the dog became uncooperative.

{10} At that juncture, officers searched the vehicle. The rear seat was missing. A large stereo speaker system existed in its place, and the officers found a hinged compartment which contained numerous packages of methamphetamine. At this point, approximately fifty minutes after the traffic stop was initiated, both the driver and Defendant were arrested.

Discussion

{11} Defendant contends that he was detained in violation of the Fourth Amendment, which rendered the ensuing search of the vehicle invalid. A two-part analysis is typically applied to issues of this nature. See State v. Duran, 2005-NMSC-034, ¶ 23, 138 N.M. 414, 120 P.3d 836. First, we consider whether the Deputy Roth's action was justified at its inception. Id. Second, we must determine whether the officer's conduct was reasonably related in scope to the circumstances which justified the interference in the first place. Id. Expansion of the scope of inquiry is only permitted if the officer had a reasonable, articulable suspicion that other criminal activity may have been afoot. Id.

{12} In this case, the first prong of the analysis is not in dispute. Deputy Roth's observation of the speeding violation provided a sufficient basis for him to stop the car and to request license, registration, and proof of insurance. See State v. Romero, 2002-NMCA-064, ¶ 9, 132 N.M. 364, 48 P.3d 102 ("After stopping [the d]efendant for speeding, [the o]fficer ... could lawfully detain [the d]efendant to inspect his license, proof of registration, and insurance."). We therefore turn to the second prong.

{13} Because the driver lacked a valid driver's license and the name on the vehicle registration did not match the name on the driver's identification card, and because there was an obvious masking odor present, Deputy Roth inquired about the driver's authorization to use the vehicle. To the extent that this represented an expansion of the inquiry, it was permissible. See State v. Van Dang, 2005-NMSC-033, ¶ 15, 138 N.M. 408, 120 P.3d 830 (observing where the driver's name did not appear on a rental contract, the officer had a right to investigate whether the driver was authorized to operate the vehicle); Romero, 2002-NMCA-064, ¶ 12, 132 N.M. 364, 48 P.3d 102 ("Once [the d]efendant was unable to produce ... indicia of lawful possession ... [the law enforcement officer] reasonably could have suspected that the car might be stolen.").

{14} When the driver was unable to provide the name of either the registered owner of the vehicle or the person who had given him permission to use the vehicle, Deputy Roth asked both the driver and Defendant about their travel plans. Although Defendant contends that this was improper, prior decisions indicate that Deputy Roth's questions were permissible under the circumstances. See Van Dang, 2005-NMSC-033, ¶¶ 1, 15, 138 N.M. 408, 120 P.3d 830 (holding that questioning of driver and passenger about their travel plans was permissible, as a part of an investigation into the driver's authorization to use the vehicle and whether it was stolen); Duran, 2005-NMSC-034, ¶¶ 37-38, 138 N.M. 414, 120 P.3d 836 (holding that "strange or suspicious circumstances surrounding the initial justification for the traffic stop," including a strong odor emanating from the vehicle and an irregular bill of sale, provided grounds for the officer to ask the driver and passenger about their travel plans).

{15} While preparing the speeding citation, Deputy Roth learned that there were no outstanding wants or warrants, and the vehicle had not been reported stolen. He nevertheless requested a canine unit, inquired about the presence of drugs, and obtained consent to search the vehicle. Defendant contends that this was improper, on grounds that the results of the wants-and-warrants inquiry, as well as the report on the status of the vehicle, should have quelled Deputy Roth's suspicions. We disagree.

{16} Deputy Roth testified that he became suspicious about the presence of drugs based on: (1) the strong odor of air freshener, heavy perfume, or after shave emanating from the vehicle, which Deputy Roth stated in his experience is frequently used by traffickers to conceal the odor of narcotics; (2) the driver's inability to produce a valid driver's license; (3) the strange situation with regard to the ownership and registration of the vehicle, including the driver's inability to identify the source of authorization to operate the vehicle; (4) the driver's excessive nervousness; and (5) the apparent inconsistencies in the descriptions of their travel plans.

{17} If Deputy Roth's suspicions had only concerned the status of the vehicle, it would have been improper to continue the detention. See State v. Jutte, 1998-NMCA-150, ¶¶ 5, 19-20, 126 N.M. 244, 968 P.2d 334 (holding that protracted detention while...