Rodriquez v. State

580 P.2d 126, 91 N.M. 700
CourtNew Mexico Supreme Court
DecidedJune 6, 1978
Docket11699
StatusPublished
Cited by23 cases

This text of 580 P.2d 126 (Rodriquez v. State) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriquez v. State, 580 P.2d 126, 91 N.M. 700 (N.M. 1978).

Opinion

OPINION

SOSA, Justice.

On September 17, 1976, Tommy Dean Jones gave George Hanks a ride over to the house belonging to the defendant Juan Rodriquez. Not knowing the owner of the house, Jones remained in the car waiting for Hanks. After about fifteen minutes had elapsed, Jones got out of the vehicle and approached the house.

Once Jones was close enough to hear voices coming from within the house he heard someone, whom he could not identify, discuss needing a “fix.” Jones then left the house and went to a phone booth where he called the Hobbs police department. Pursuant to this phone call an officer met Jones. Jones explained to the officer that he had a friend in the house in which a “fix” was being discussed. The officer after speaking with Jones decided to call his supervisor.

The supervisor then assembled six officers around the defendant’s house. Four of the officers stationed themselves between the defendant’s parked vehicle and his house. Three of the officers testified that they could only see silhouettes on the window shades but that they heard a “click” from a rifle. All were in the immediate vicinity of the defendant’s open window. The fourth officer testified that he saw the defendant holding a rifle when he peered into the defendant’s home from right outside the window. Meanwhile, the other two officers, upon entering the private property of the defendant, heard something coming from within the residence that sounded like the bolt of the rifle being opened and closed. One of the officers then proceeded to the front door, knocked and announced himself. Upon knocking on the door, the officers heard feet shuffle and the toilet flush. Defendant opened the door pursuant to the officer’s request.

Once the door was opened, the two officers at the door observed from the threshold narcotics “paraphernalia” on the coffee table behind the defendant. When they observed the defendant start to clean up the table,' they entered the home. Three of the officers were ordered into the house to keep the three people in the house from speaking with one another. One of the officers seized the items on the coffee table and then, with another officer, went into the bedroom and began searching. During the search a rifle was found in plain view resting up against a wall in a closet which had no door attached. The two conducting the search were ordered to radio the serial number of the rifle into the station. It was reported stolen, so the defendant was taken into custody.

Upon the departure of the defendant to the police station the search continued. Within the closet a green sleeping bag was found. The officers unrolled the sleeping bag and found eight tinfoil packets and two plastic baggies, later found to contain heroin.

The defendant was charged in three separate informations with receiving stolen property (the rifle), trafficking in heroin and escape from custody. The defendant filed two pretrial motions: (1) a motion to suppress evidence; and (2) a motion to dismiss escape charges.

A pretrial hearing was held on January 24, 1977, and the motions were denied. Throughout the trial the motions were renewed and denied.

When the State sought to place the rifle into evidence, the defendant objected, stating his reason, but the objection was overruled.

The causes were tried to a jury, defendant was convicted of all charges and sentence was imposed. Notice of appeal was timely filed.

The Court of Appeals heard the matter and affirmed the convictions of the defendant on the grounds that the Court of Appeals was unable to review the contentions urged in regards to the search and seizure issues because neither Jones’ affidavit nor the preliminary hearing transcript was included in the appellate record. The Court of Appeals asserted that the fact that the defendant renewed his motions during trial added nothing. The statement and the transcript were still missing from the appellate record and it was incumbent upon defense counsel to have included within the appellate record such matters as might be necessary for review by that court. The Court of Appeals concluded that, absent the statement and the transcript considered by the trial court, they had no basis upon which to review the appellant’s contentions. We reverse in part and affirm in part.

I. In reviewing the trial court’s decision on the issue raised by defendant’s motion to suppress, the facts to be examined on appeal are those facts elicited before the trial court at the hearing on the motion to suppress. State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967). Once the trial court has denied a motion to suppress, the question on appeal is whether the facts before the trial court supported its decision as to the reasonableness of the arrest and seizure; and this decision will not be disturbed in the face of substantial evidence. Deltenre, supra.

In the case at bar the motion to suppress was again asserted at trial. Although it is true that the defendant did not attach the transcript and affidavit from the preliminary hearing, once he reiterated his motion in the trial proper, the Court of Appeals had a record from which to review such denial of the motion. In the defendant’s brief-in-chief to the Court of Appeals he indicated all the areas of the transcript which would support his motion to suppress.

We, therefore, believe that the appellant fulfilled the requirement which is to insure that a correct and sufficient record is obtained for review on appeal. State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). Our decision in this matter is limited to this set of circumstances since we believe that the trial record revealed the impropriety of the search. We therefore reverse the Court of Appeals on this point.

II. Upon the defendant opening the door for the officers, he was informed by one officer that they, were requested to make a “welfare” inquiry about Hanks. It appears from the record that the defendant then turned toward the table and began to tamper with the items on the coffee table. At that point, after having seen the narcotics paraphernalia in plain view, the officers entered the residence and took the items on the table into their possession — all over the objection of the defendant.

The defendant argues that the officers intruded on his property with the purpose of conducting a drug raid but under the guise of a “welfare” inquiry. He urges this Court not to apply the plain view doctrine since in order to invoke the doctrine the officers must lawfully be in a position to enable them to see what is allegedly in plain view. State v. Ledbetter, 88 N.M. 344, 540 P.2d 824 (1975).

It is our opinion that the circumstances presented here allowed the officers to lawfully enter upon the defendant’s property in order to inquire as to the welfare of Hanks. The police were investigating the possibility of a serious crime being committed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Martinez
1997 NMCA 048 (New Mexico Court of Appeals, 1997)
Campos v. State
870 P.2d 117 (New Mexico Supreme Court, 1994)
State v. Campos
827 P.2d 136 (New Mexico Court of Appeals, 1991)
State v. Villanueva
796 P.2d 252 (New Mexico Court of Appeals, 1990)
State v. Gallegos
719 P.2d 1268 (New Mexico Court of Appeals, 1986)
State v. Krout
674 P.2d 1121 (New Mexico Supreme Court, 1984)
State v. Rogers
673 P.2d 142 (New Mexico Court of Appeals, 1983)
State v. Boeglin
666 P.2d 1274 (New Mexico Court of Appeals, 1983)
State v. Dobbs
665 P.2d 1151 (New Mexico Court of Appeals, 1983)
State v. Perea
626 P.2d 851 (New Mexico Court of Appeals, 1981)
State v. Jones
627 P.2d 409 (New Mexico Supreme Court, 1981)
Candelaria v. State
624 P.2d 501 (New Mexico Supreme Court, 1981)
State v. Jones
627 P.2d 413 (New Mexico Court of Appeals, 1980)
State v. Martinez
612 P.2d 228 (New Mexico Supreme Court, 1980)
State v. Manus
597 P.2d 280 (New Mexico Supreme Court, 1979)
State v. Adams
593 P.2d 1072 (New Mexico Supreme Court, 1979)
State v. Moore
593 P.2d 760 (New Mexico Court of Appeals, 1979)
State v. Doe
598 P.2d 1166 (New Mexico Court of Appeals, 1979)
State v. Blea
587 P.2d 47 (New Mexico Court of Appeals, 1978)
State v. Ramirez
585 P.2d 651 (New Mexico Court of Appeals, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
580 P.2d 126, 91 N.M. 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriquez-v-state-nm-1978.