State v. Quintana

534 P.2d 1126, 87 N.M. 414

• Court: New Mexico Court of Appeals
• Decided: April 2, 1975
• Docket: 1612
• Status: Published

Opinions

OPINION

HERNANDEZ, Judge.

Defendant appeals his jury conviction for trafficking in heroin contrary to Section 54-11-20, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2, 1973 Supp.). He alleges two points of error:

1. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO QUASH THE SEARCH WARRANT AND TO SUPPRESS REAL EVIDENCE.

2. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A DIRECTED VERDICT AS TO THE OFFENSE OF “TRAFFICKING IN HEROIN” BECAUSE THERE IS NOT SUBSTANTIAL EVIDENCE TO SUPPORT A CONVICTION FOR “TRAFFICKING.”

We affirm.

The facts are these: On December 7, 1972, several law enforcement officers, both city and state, went to the headquarters of the El Vicio Methadone Maintenance Program at 331 Garfield Street in Santa Fe for the purpose of executing a search warrant. The officers arrived in an unmarked car at approximately 6:30 a. m., drove around the block to observe any activity on the premises or in the neighborhood and then returned to the front of the building, parked and waited. At about 6:45 a. m., defendant arrived, parked his car, and entered the building. When the officers saw the defendant approach the building they got out of their vehicle and walked toward him. Their testimony indicates that they intended to reach him before he went into the building. There is no evidence that defendant either saw or was aware of the presence of these officers; and upon entering the building, he locked the door behind him. State Police Officer Ortiz, who was in charge of the search party, reached the two steps leading to the door just as the defendant was locking it; and when he knocked, the defendant turned and looked at him through a small window in the door. The Officer identified himself and told defendant that he had a warrant to search the premises. Defendant responded through the door that he did not want to open the door. He then turned and walked very rapidly to the opposite side of the entry room.

The room was rectangular in shape measuring approximately 18 x 20 feet. Through the window in the door, Officer Ortiz observed the defendant squat down in front of a gas heater, put his right hand in his right coat pocket and remove “what appeared to be aluminum foil.” He next saw the defendant place his left hand in the other coat pocket and then throw whatever he had in both hands under the heater. At that moment the officers forced the door open and entered the building. Officer Ortiz went directly to where the defendant was squatting and reiterated his identity and purpose. Officer Ortiz then searched under the heater and retrieved two large aluminum foil packets. An examination of the packets disclosed that one contained three smaller packets, each of which con-tamed approximately one gram of heroin. The other packet contained 30 smaller packets of heroin.

The biochemist’s analysis of random samples taken from the contents of all the packets demonstrates that they contained heroin. There is no evidence as to the total weight nor as to the purity of the heroin confiscated.

Defendant’s first point asserts that the search warrant fails to describe with particularity the items to be seized and therefore constitutes a general warrant in contravention of the Fourth Amendment to the Constitution of the United States which provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The search ■ warrant reads in pertinent part:

“NOW, THEREFORE, YOU ARE HEREBY COMMANDED to make an immediate search anytime between the hours of 6:00 a. m. and 10:00 p. m. of the building described above and any appurtenant structures thereto and any and all automobiles which may be found on the premises at the time of the search and of any persons who may enter upon said premises or may be found there at the time of the search for any and all controlled substances which may be kept there contrary to law . . . ” [Emphasis ours.]

Section 54 — 11—2 (E), N.M.S.A.1953 (Repl. Vol. 8, 1973 Supp.) defines controlled substances as follows:

“ . . . ‘controlled substance’ means a drug, substance or immediate precursor listed in Schedules I through V of the Controlled Substances Act or regulations adopted pursuant thereto; . . .

Schedules I through V list approximately 148 substances.

Defendant cites Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), in which the items listed in the search warrant were, “ . . . books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas and the operations of the Communist Party in Texas . ”. The Supreme Court of the United States reversed Stanford’s conviction on the ground that it had been achieved by use of illegally seized evidence which should have been suppressed. The warrant, held the court, was a general warrant forbidden by the Fourth Amendment.

We would note, however, that the court in Stanford distinguishes situations involving First Amendment rights from situations not involving speech, press, religion or assembly.

“But while the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper.

“What is significant to note is that this history is largely a history of conflict between the Crown and the press. . In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel.

“In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” [Footnotes omitted.] [Emphasis ours.]

The items seized in Stanford were several hundred books, pamphlets and periodicals.

More appropriate to our situation is United States v. Fuller, 441 F.2d 755 (4th Cir. 1971). In that case, the warrant authorized search and seizure of “bookmaking records and wagering paraphernalia consisting of, but not limited to, accounting sheets, rundown sheets, betting slips, recap sheets, sports information papers, miscellaneous line notations, line sheets, books of account, checks, money orders, and United States Currency . . . .” During the search two of the agents executing the warrant answered telephone calls for almost half an hour. “The callers identified themselves by number and asked for the ‘line’.” The agents gave them the “line” information. Line referred to the predicted point spread between teams in athletic contests. The agents testified about these telephone conversations; and defendant argued that interception of the phone calls constituted a seizure. Since the telephone inquiries had not been listed on the search warrant, the defendant urged that they were seized in violation of the Fourth Amendment. The Fourth Circuit Court of Appeals held as follows:

“The description [of the items listed in the search warrant] is necessarily general and clearly contemplates that material relating to gambling activity but not precisely described might be seized. The intent of the generalized description is clearly to permit the seizure of any items directly related to the appellants’ booking operation. The telephone calls answered by the agents were clearly a part of appellants’ booking operation [,] and, therefore, we think within the scope of the general language of the warrant. [Footnote omitted.] “Nor do we think that a warrant which is limited to the seizure of items which are directly related to a booking operation to be the kind of general search prohibited by the Fourth Amendment. This is not a case where ‘the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude [because] the “things” are books, and the basis for their seizure is the ideas which they contain.’ ” [Citation omitted.]

Similarly, we think the opinion rendered in James v. United States, 416 F.2d 467 (5th Cir. 1969) undercuts appellant’s reliance on Stanford. The search warrant in that case listed the items to be seized as: “gambling paraphernalia, including but not limited to dice, crap tables, wires, magnets, coils, solenoid switches, records, sales receipts, customers’ lists, shipping orders, supplies, machine equipment, machine tools and hand tools for the manufacture of gambling paraphernalia, including but not limited to dice, crap tables and cards.” One of the defendants in the James case sought to suppress various items seized at his home and manufacturing plant on the ground that the “search was a general exploratory one in violation of the Fourth and Fifth Amendments.” The Court of Appeals held as follows:

“The search was for the instrumentalities involved. It was not general. It was not exploratory. The place to be searched and the items to be seized were as precisely identified in the warrant as the nature of the activity permitted. When circumstances make an exact description of instrumentalities, a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.”

We are of the opinion that the items to be searched for and seized in the case before us were as precisely identified in the warrant as the situation permitted considering the wide variety of drugs used by addicts in the United States. The words, “controlled substances contrary to law”, used in the warrant have a definite meaning in that they refer to certain and definite lists of drugs and their derivatives. Nothing was left to the discretion of the Officers. They were commanded to seize any of the items on those lists present on the premises contrary to law, and nothing else. Heroin is one of the drugs listed, and it was heroin that the officers seized.

Finally, under defendant’s first point, it is urged in the briefs that the manner in which the officers executed the warrant was improper. This contention appears to be based on the fact that the officers waited in front of the El Vicio headquarters until defendant arrived before they attempted to enter the premises. From this sequence, defendant concludes that the officers were somehow improperly motivated and that their execution of the warrant was in fact directed exclusively against this defendant. Suffice it to say that this theory of inadmissibility was never brought to the attention of the trial court, and, accordingly, defendant may not now raise it without first demonstrating plain error. See R.Evid. 103, § 20-4-103, N.M.S.A.1953 (Repl. Vol. 4, Supp.1973). The record as it comes before us would not support a finding of error and does not support defendant’s contention that the search and seizure otherwise exceeded the limitations set forth in the warrant. Compare State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969), cert. den., 80 N.M. 746, 461 P.2d 228 (1969), cert. den., 397 U.S. 1044, 90 S.Ct 1354, 25 L.Ed.2d 654 (1970).

Defendant’s second point, that there is not substantial evidence to support a conviction for “trafficking”, is likewise without merit.

Although there was no direct evidence at trial that the defendant had sold, delivered or dispensed heroin, the quantity discovered in his possession amply supports an inference on intent from the circumstances attending possession.

The applicable rule may be stated as follows:

“ . . . [T]he circumstantial evidence rule is not a concept independent of the question of whether there is substantial evidence to support the verdict. As stated in State v. Clements, 31 N.M. 620, 249 P. 1003 (1926): The rule in a circumstantial evidence case is but a special application of the general rule of reasonable doubt. The jury having been properly instructed as to defendant’s rights, its decision is final if supported by substantial evidence. . . . ’” State v. Madrid, 83 N.M. 603, 495 P.2d 383 (Ct. App.1972).

The evidence showed that defendant was in possession of more than thirty “caps” of heroin. Defendant contends that this evidence is not inconsistent with personal use and that therefore he would be innocent of the charge of possession with intent to distribute a controlled substance. However, it was adduced as part of the state’s case that defendant was not, nor had he ever been, a heroin addict or user; the defendant testified to this. The only possible inference to be drawn from the evidence is that defendant, at the least, intended to give the heroin away. This evidence is sufficient to conclude that defendant was trafficking in heroin.

The judgment of the district court is affirmed.

It is so ordered.

HENDLEY, J., concurs. SUTIN, J., dissents.