OPINION
LOPEZ, Judge.
Defendants were convicted of possession of more than 8 ounces of marijuana under § 54-11-23, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973). We reverse and dismiss.
The defendants’ auto was stopped at a state police roadblock for a routine license and registration check. Grant, who was driving, produced a registration indicating ownership in another individual. One of the officers then attempted, unsuccessfully, to find through the national computer network if the car was stolen. During this brief check, another officer asked Grant to open his car trunk, then asked Grant for keys to open footlockers found inside the trunk. These events produced a considerable quantity of marijuana.
Defendants argue, as in their pre-trial motion to suppress, that the search of the trunk was illegal and that the marijuana subsequently seized should have been excluded. Ms. Bidegain also contests the substantiality of the evidence underpinning her conviction.
Exclusion of Evidence
The Fourth Amendment of the United States Constitution encompasses the right of persons to be secure in their effects against unreasonable searches and seizures. And despite exceptions which have been allowed in some vehicular searches, the mere fact that an auto is involved “does not declare a field day for the police in searching automobiles . there must be probable cause for the search.” Almeida-Sanches v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973), cited in State v. Shoemaker, 11 Wash.App. 187, 522 P.2d 203 (1974); State v. Brubaker, 85 N.M. 773, 517 P.2d 908 (Ct.App.1973). See also State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967); State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969).
The standard by which all search and seizure cases are to be determined is reasonableness. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). State v. Hilliard, 81 N.M. 407, 467 P.2d 733 (Ct.App.1970), states:
“The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). ...”
This case is no different.
The search initiated in this case was purely exploratory. There was no reason for the officer to make the opening inquiry: “What’s in the trunk?” Had the officer sought a search warrant, he would not have been able to show probable cause to justify its issuance. The record shows that the question was asked from pure speculation, which is insufficient probable cause. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brinegar v. United States, supra. See State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966).
Police officers cannot just ask anyone for permission to search his effects. As State v. Lewis, supra, says:
“In appropriate circumstances and in an appropriate manner, a police officer may approach a person to investigate possible criminal behavior even though the officer may not have probable cause for an arrest. To justify such an invasion of a citizen’s personal security, the police officer must be able to specify facts which, together with rational inferences therefrom, reasonably warrant the intrusion. These facts are to be judged by an objective standard — would the facts available to the officer warrant a person of reasonable caution to believe the action taken was appropriate? Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Slicker, 79 N.M. 677, 448 P.2d 478 (Ct.App.1968).” 80 N.M. at 276, 454 P.2d at 362.
The police officers claim that they did have a proper reason to ask to look inside the trunk: to check to see if the vehicle were stolen. Their theory is that if there were items in the trunk which the defendants could not identify, or if the jack and spare tire were missing, then there might be an indication that the car had been stolen.
This explanation is insufficient because there is nothing in the record to lead the officers to suspect the car of being stolen. After learning that the local computer outlet was not operating, the officers requested their headquarters to telephone Connecticut, where the car was registered, to check out the registration. This check would have indicated, without a search, whether the car were stolen. All the police knew at the time of asking their question was that the registration was not in the name of the driver. However, a registration was produced; and it happens often enough that a car owner gives the use of his auto to another driver.
The state contends that consent was given which validated the search of defendants’ car trunk. It is established in the law of New Mexico that the voluntariness of a consent “must be proved by clear and positive evidence with the burden of proof on the state.” State v. Aull, supra.
There is a conflict in the record as to when the police officers stated that they would get a search warrant. The officers said it was after the car trunk was opened, and after they smelled marijuana in the footlockers. Grant says it was before the trunk was opened, and that he opened the trunk only because the officers said they would get a warrant, feeling that he had no choice. This conflict does not meet the “reasonableness” test of State v. Aull, supra, and State v. Lewis, supra. See Justice Marshall’s dissent in Schneckloth v. Bustamonte, 412 U.S. 218, 891, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
Judge Hendley, in his dissent below, suggests that the seizure of marijuana resulted from a proper convergence of “probable cause” and “exigent circumstances”. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Granting, for the sake of discussion, the presence of “exigent circumstances”, we do not agree that the officers’ alleged sniffing of the marijuana fragrance constitutes the requisite “probable cause”.
Judge Hendley cites abundant case law as authority for the proposition that smell alone constitutes probable cause. In some of these cases, the officials involved had extensive experience or training dealing with the detection of marijuana. In the instant case, there is no evidence on the record as to the training or experience of the police officers making this warrantless search. The other cases cited by the dissent are replete with other types of probable cause and mention smell only in dicta.
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OPINION
LOPEZ, Judge.
Defendants were convicted of possession of more than 8 ounces of marijuana under § 54-11-23, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973). We reverse and dismiss.
The defendants’ auto was stopped at a state police roadblock for a routine license and registration check. Grant, who was driving, produced a registration indicating ownership in another individual. One of the officers then attempted, unsuccessfully, to find through the national computer network if the car was stolen. During this brief check, another officer asked Grant to open his car trunk, then asked Grant for keys to open footlockers found inside the trunk. These events produced a considerable quantity of marijuana.
Defendants argue, as in their pre-trial motion to suppress, that the search of the trunk was illegal and that the marijuana subsequently seized should have been excluded. Ms. Bidegain also contests the substantiality of the evidence underpinning her conviction.
Exclusion of Evidence
The Fourth Amendment of the United States Constitution encompasses the right of persons to be secure in their effects against unreasonable searches and seizures. And despite exceptions which have been allowed in some vehicular searches, the mere fact that an auto is involved “does not declare a field day for the police in searching automobiles . there must be probable cause for the search.” Almeida-Sanches v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973), cited in State v. Shoemaker, 11 Wash.App. 187, 522 P.2d 203 (1974); State v. Brubaker, 85 N.M. 773, 517 P.2d 908 (Ct.App.1973). See also State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967); State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969).
The standard by which all search and seizure cases are to be determined is reasonableness. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). State v. Hilliard, 81 N.M. 407, 467 P.2d 733 (Ct.App.1970), states:
“The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). ...”
This case is no different.
The search initiated in this case was purely exploratory. There was no reason for the officer to make the opening inquiry: “What’s in the trunk?” Had the officer sought a search warrant, he would not have been able to show probable cause to justify its issuance. The record shows that the question was asked from pure speculation, which is insufficient probable cause. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brinegar v. United States, supra. See State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966).
Police officers cannot just ask anyone for permission to search his effects. As State v. Lewis, supra, says:
“In appropriate circumstances and in an appropriate manner, a police officer may approach a person to investigate possible criminal behavior even though the officer may not have probable cause for an arrest. To justify such an invasion of a citizen’s personal security, the police officer must be able to specify facts which, together with rational inferences therefrom, reasonably warrant the intrusion. These facts are to be judged by an objective standard — would the facts available to the officer warrant a person of reasonable caution to believe the action taken was appropriate? Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Slicker, 79 N.M. 677, 448 P.2d 478 (Ct.App.1968).” 80 N.M. at 276, 454 P.2d at 362.
The police officers claim that they did have a proper reason to ask to look inside the trunk: to check to see if the vehicle were stolen. Their theory is that if there were items in the trunk which the defendants could not identify, or if the jack and spare tire were missing, then there might be an indication that the car had been stolen.
This explanation is insufficient because there is nothing in the record to lead the officers to suspect the car of being stolen. After learning that the local computer outlet was not operating, the officers requested their headquarters to telephone Connecticut, where the car was registered, to check out the registration. This check would have indicated, without a search, whether the car were stolen. All the police knew at the time of asking their question was that the registration was not in the name of the driver. However, a registration was produced; and it happens often enough that a car owner gives the use of his auto to another driver.
The state contends that consent was given which validated the search of defendants’ car trunk. It is established in the law of New Mexico that the voluntariness of a consent “must be proved by clear and positive evidence with the burden of proof on the state.” State v. Aull, supra.
There is a conflict in the record as to when the police officers stated that they would get a search warrant. The officers said it was after the car trunk was opened, and after they smelled marijuana in the footlockers. Grant says it was before the trunk was opened, and that he opened the trunk only because the officers said they would get a warrant, feeling that he had no choice. This conflict does not meet the “reasonableness” test of State v. Aull, supra, and State v. Lewis, supra. See Justice Marshall’s dissent in Schneckloth v. Bustamonte, 412 U.S. 218, 891, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
Judge Hendley, in his dissent below, suggests that the seizure of marijuana resulted from a proper convergence of “probable cause” and “exigent circumstances”. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Granting, for the sake of discussion, the presence of “exigent circumstances”, we do not agree that the officers’ alleged sniffing of the marijuana fragrance constitutes the requisite “probable cause”.
Judge Hendley cites abundant case law as authority for the proposition that smell alone constitutes probable cause. In some of these cases, the officials involved had extensive experience or training dealing with the detection of marijuana. In the instant case, there is no evidence on the record as to the training or experience of the police officers making this warrantless search. The other cases cited by the dissent are replete with other types of probable cause and mention smell only in dicta.
Even had the officers in this case properly obtained consent to open the defendants’ car trunk, the mere smell of marijuana in unopened footlockers would not have given them probable cause for a further warrantless search, absent a foundation as to the officer’s expertise.
The defendants’ conduct at the time of the registration check was no different from that of other motorists. The traveling public has a right to proceed without harassment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925). We find these “stop and snoop” tactics of the state police to be harassment, and conclude that the search was unreasonable.
The exclusionary rule must be applied and the evidence seized should have been suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L. R.2d 933 (1961); State v. Washington, 82 N.M. 284, 480 P.2d 174 (Ct.App.1971).
Constructive Possession
Ms. Bidegain contests the substantiality of the evidence relating to her conviction for possession of the seized marijuana. There is no evidence on the record indicating that Ms. Bidegain had direct or constructive possession of the marijuana.
“For possession, the State must prove physical or constructive possession of the object, with knowledge of the object’s presence and narcotic character. . . State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970). There is no evidence that Ms. Bidegain had any control over the keys to the car or to the footlockers, or that she had any knowledge whatsoever of the contents of the car trunk. Mere presence in the absence of some outward manifestation is insufficient to show constructive possession. State v. Salazar, 78 N.M. 329, 431 P.2d 62 (1967).
Where a person is not in exclusive possession, it cannot be inferred that she knew that marijuana was present or that she had control over it unless some other incriminating circumstances or statements buttress such an inference. State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct. App.1974). No such circumstances or statements appear in the record of this case. Therefore, the case against Ms. Bidegain must be dismissed under this theory, as well as exclusion of evidence, above.
The trial court should have granted defendants’ motion to suppress. Further, the evidence relied upon to sustain the conviction of Ms. Bidegain is totally insubstantial. Since the defendants presented no evidence, choosing to stand upon their motions, and since there is no evidence deemed properly admissible in this case, judgment is reversed and the charges based upon this evidence are dismissed.
It is so ordered.
SUTIN, J., concurs. HENDLEY, J., concurs in part and dissents in part.