State v. Bowers

529 P.2d 300, 87 N.M. 74
CourtNew Mexico Court of Appeals
DecidedNovember 20, 1974
Docket1490
StatusPublished
Cited by45 cases

This text of 529 P.2d 300 (State v. Bowers) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowers, 529 P.2d 300, 87 N.M. 74 (N.M. Ct. App. 1974).

Opinion

OPINION

LOPEZ, Judge.

Defendants were tried and convicted of possession of marijuana with intent to distribute [§ 54-11-22, N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1973)] and possession of cocaine [§ 54-11-23, N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1973)]. After judgment and sentence defendants appeal; we affirm as to the marijuana and reverse as to the cocaine.

The Marijuana Convictions

Defendants argue a lack of probable cause to support the issuance of the search warrants pursuant to which the marijuana was seized; they further object to the fact that warrants were issued for several vehicles, while probable cause was not shown for a belief that marijuana would be found in each and every vehicle; and they contend that the warrants are invalid because they are based in part on hearsay. They also argue that the admission into evidence of all the alleged marijuana seized was improper on the grounds that only part of the material found was actually tested.

Four search warrants were issued by the magistrate: one to the dwelling house of the defendants; two to the cars owned by two of the defendants; and a fourth to a car leased by one of the defendants which was parked in the driveway of the defendants’ residence.

Affidavits presented to the magistrate indicated that the affiants personally inspected two cars rented previously by the defendants and found significant traces of marijuana. These affidavits further noted that the defendants lived together, spent large amounts of cash for purchases, had no visible means of support, rented numerous automobiles for trips to El Paso and Las Cruces, and flew on airplanes to El Paso and Denver during the period of surveillance. Based on all this information the magistrate could assure himself that the affidavits were not based on rumors circulating in the underworld or merely on the defendants’ reputation. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

There was sufficient information before the magistrate for him to be satisfied that the statements were reliable and that the circumstances by which the affiants came by their information demonstrated probability. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Ferrari, 80 N.M. 714, 460 P.2d 244 (1969); State v. Perea, 85 N.M. 505, 513 P.2d 1287 (Ct.App.1973); § 41-23-17(f), N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973).

We believe that the following should be the standards for the sufficiency of search warrants: (1) only a probability of criminal conduct need be shown; (2) there need be less vigorous proof than the rules of evidence require to determine guilt of an offense; (3) common sense should control; (4) great deference should be shown by courts to a magistrate’s determination of probable cause. United States v. Koonce, 485 F.2d 374 (8th Cir. 1973).

Under these standards, we find that the trial court committed no error in denying the defendants’ motion to suppress and in allowing the introduction of the seized evidence at trial.

The defendants next claim that since only 11.2 pounds of marijuana was actually tested, only this amount, not the 246.15 pounds of material seized, should have been admitted into evidence to support the conviction for possession with intent to distribute. Again, we disagree.

The record reflects possession by the defendants of all the material seized. All of the alleged marijuana was in the form of bricks having the same size, color and appearance as those tested. Although only a portion of the material was actually analyzed and tested, the fact finder could infer from the evidence that the remaining substance was the same as the tested portion. State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.1974); State v. Mosier, 83 N.M. 213, 490 P.2d 471 (Ct.App.1971). Whether the untested portion of material was marijuana was a question of fact for the fact finder.

The defendants argue that there is no evidence that they sold or tried to sell any marijuana in the State of New Mexico. They further state that their activities during the surveillance period were insufficient, as a matter of law, to support a conviction for possession with intent to distribute.

While there is no evidence of a sale or an attempted sale of marijuana, the possession of 246.15 pounds of the substance, together with the defendants’ activities, does allow the court to infer that the defendants had the necessary intent to distribute. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Johnson,. 469 F.2d 973 (5th Cir. 1972); United States v. Moore, 452 F.2d 569 (6th Cir. 1971).

It is also contended that there is insufficient evidence to show that defendants planned to distribute the marijuana within New Mexico. Section 54-11-22, supra, prohibits possession with intent to distribute. The crime is complete if there is possession with the requisite intent. The State was not required to prove the place of the intended distribution.

We conclude that the convictions for possession with intent to distribute marijuana should be affirmed.

The Cocaine Convictions

Cocaine was seized at the time of the search pursuant to the above warrants. It was in a plastic vial inside a decorative box on a coffee table in the main room of the defendants’ house. The trial court found that the cocaine was in the common control of all the defendants, and that it was constructively possessed by each of them. We believe the court erred on this point.

There is no evidence on the record that the defendants had direct or constructive possession of the cocaine. “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 of actual physical possession by any of the defendants. The State contends that since the defendants were in common control of the house, it may be inferred that they constructively possessed the cocaine. Constructive possession exists when the accused has “knowledge of the presence of the narcotic and control over it.” State v. Montoya, 85 N.M.

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

Related

State v. Holguin
New Mexico Court of Appeals, 2017
State v. Rael-Gallegos
2013 NMCA 092 (New Mexico Supreme Court, 2013)
State v. Rael-Gallegos
New Mexico Court of Appeals, 2013
State v. Godoy
2012 NMCA 084 (New Mexico Court of Appeals, 2012)
State v. Maes
2007 NMCA 089 (New Mexico Court of Appeals, 2007)
State v. Knight
2000 NMCA 016 (New Mexico Court of Appeals, 2000)
State v. Duquette
2000 NMCA 006 (New Mexico Court of Appeals, 1999)
State v. Steinzig
1999 NMCA 107 (New Mexico Court of Appeals, 1999)
Seke v. Commonwealth
482 S.E.2d 88 (Court of Appeals of Virginia, 1997)
State v. Attaway
835 P.2d 81 (New Mexico Court of Appeals, 1992)
State v. Becerra
817 P.2d 1246 (New Mexico Court of Appeals, 1991)
State v. Vasquez
815 P.2d 659 (New Mexico Court of Appeals, 1991)
Commonwealth v. Johnson
571 N.E.2d 623 (Massachusetts Supreme Judicial Court, 1991)
Everroad v. State
570 N.E.2d 38 (Indiana Court of Appeals, 1991)
State v. Muniz
800 P.2d 734 (New Mexico Court of Appeals, 1990)
State v. Wisdom
800 P.2d 206 (New Mexico Court of Appeals, 1990)
State v. Brietag
772 P.2d 898 (New Mexico Court of Appeals, 1989)
State v. Crenshaw
732 P.2d 431 (New Mexico Court of Appeals, 1986)
State v. Bejar
679 P.2d 1288 (New Mexico Court of Appeals, 1984)
State v. Aragon
656 P.2d 240 (New Mexico Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
529 P.2d 300, 87 N.M. 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowers-nmctapp-1974.