State v. Cobbs

711 P.2d 900, 103 N.M. 623
CourtNew Mexico Court of Appeals
DecidedNovember 12, 1985
Docket8631
StatusPublished
Cited by71 cases

This text of 711 P.2d 900 (State v. Cobbs) 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. Cobbs, 711 P.2d 900, 103 N.M. 623 (N.M. Ct. App. 1985).

Opinion

OPINION

BIVINS, Judge.

From an order suppressing evidence, the state appeals. NMSA 1978, § 39-3-3(B). We reverse and remand.

In its docketing statement, the state raised two issues. The first issue was whether the patdown search of the defendant was justified, and, second, whether the search of the defendant’s jacket pockets exceeded the permissible scope of a pat-down search for weapons. With the filing of its brief-in-chief, the state moved to amend its docketing statement to add two additional arguments: first, whether the discovery of a syringe during the patdown provided probable cause for the further search which led to the discovery of the cocaine; and, second, whether the discovery of the syringe could be justified as the result of a search incident to a lawful arrest. We deferred ruling on the motion pending consideration on the merits. Because we rule that the frisk was justified and remand for a further fact-finding, we need not reach those issues presented by the motion. Instead, we remand the case to the district court to determine whether the scope of the officer’s patdown of the defendant exceeded permissible limits; and if the scope of the patdown was within permissible limits, whether after discovering the syringe, the officer’s search of the defendant was justified.

For the purposes of clarity, we order our discussion as follows:

1) Whether Officer Pell had “reasonable suspicion” to believe that the defendant was engaged in criminal activity;

2) Whether the officer’s protective pat-down of the defendant was permissible;

a. Whether the officer erred in failing to question the defendant prior to conducting the patdown;

b. Whether the patdown exceeded constitutional limits because prior to performing the patdown, the officer had no particularized belief that the defendant was presently armed and presently dangerous; and

c.When the right to conduct a protective search arises.

FACTS

On February 9, 1985, at about 11:40 p.m., Officer Pell of the Hobbs Police Department received a dispatch to investigate “suspicious persons” and a possible residential burglary in progress. According to the dispatch, two men were repeatedly approaching the rear door of a residence and then returning to their vehicle. Their vehicle was parked behind the residence. There was evidence that the dispatcher had reported that the two men were sitting in the vehicle.

When Officer Pell arrived at the scene, he observed a car parked behind the residence with its lights on and two passengers sitting in it. About two minutes after the officer began surveillance, the vehicle started to leave. At that point, Officer Pell turned on the lights of his patrol car and pulled the car over. After stopping the car, the officer left his patrol car, drew his revolver, and ordered the two men out of their vehicle. He ordered the men to lean against their car with their hands on the hood. The officer kept the men in that position while awaiting the arrival of another officer. Apparently, the officer did not question the suspects or request any identification until sometime following the pat-downs.

When the second officer arrived, each officer patted down a suspect. Officer Pell patted down the defendant. In the course of the patdown, the officer felt a hard object, approximately three inches long, in the right front pocket of the defendant’s jacket. The officer thought that the object might be a pocket knife. Based upon that belief, he reached into the pocket in order to identify the object. When he did, a sharp object pricked his hand, and he immediately pulled his hand out of the pocket. The officer then put his hand back into the pocket in order to discover what had stuck him. He discovered a syringe.

When he discovered the syringe, Officer Pell began a search of the defendant for narcotics. In the defendant’s left front jacket pocket, the officer found a plastic bag, the contents of which were later determined to be cocaine.

Officer Pell, an eight-year veteran of military and civilian police work, justified the patdowns of the suspects on the basis of the nature of the dispatch. Because he was called to investigate suspicious persons and a possible burglary in progress, the officer reasoned that the suspects might be armed or dangerous. The officer’s concern for his safety was prompted only by the nature of the radio call. The suspects apparently were cooperative and displayed no violent tendencies.

Concerning his search of the defendant for narcotics, Officer Pell testified that, based upon his police experience, the discovery of the open needle suggested its use for injecting narcotics into the body. Additionally, the needle appeared to have been used; a wet substance was inside the syringe.

After he discovered the narcotics, the officer arrested the defendant, read to him his Miranda rights, and placed him in the back seat of the patrol car. Later, after defendant had been transported to the police station, two additional syringes were found in Officer Pell’s patrol car. Those syringes were traced to the defendant.

PROCEEDINGS BELOW

Defendant moved to suppress introduction of the cocaine on the basis that the cocaine was seized as the result of an unlawful search and unlawful arrest. At the hearing on defendant’s motion, the trial judge did not allow argument because he had read the defendant’s brief and the preliminary hearing transcript. The court granted the motion to suppress without expressly articulating any findings or rulings. Based upon a colloquy between the court and Officer Pell, the court apparently disapproved of the officer’s failure to question the defendant prior to conducting the patdown. Due to the uncertain nature of the court’s ruling, however, we will review the stop and the frisk, beginning with an analysis of whether the stop was justified.

DISCUSSION

Issue I: The Initial Stop.

This court has recognized that, in appropriate circumstances, a police officer may detain a person in order to investigate possible criminal activity, even if there is no probable cause to make an arrest. State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977). “Appropriate circumstances” arise from the officer’s “reasonable suspicion” that the law is being or has been broken. Id. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The officer must be able to base such “reasonable suspicion” upon specific articulable facts, together with rational inferences from those facts. Terry v. Ohio. Those facts and accompanying inferences must provide the basis for the reasonable suspicion. State v. Galvan. Unsupported intuition and inarticulate hunches are not sufficient. Id.

Reasonable suspicion is measured by an objective standard.

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Cite This Page — Counsel Stack

Bluebook (online)
711 P.2d 900, 103 N.M. 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cobbs-nmctapp-1985.