{ "id": 2869949, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Frank BLOOM and Ralph Mikorey, Defendants-Appellants", "name_abbreviation": "State v. Bloom", "decision_date": "1976-03-16", "docket_number": "Nos. 2121, 2122", "first_page": "226", "last_page": "236", "citations": [ { "type": "official", "cite": "90 N.M. 226" }, { "type": "parallel", "cite": "561 P.2d 925" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "441 P.2d 761", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1968, "opinion_index": 0 }, { "cite": "79 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2744097 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0232-01" ] }, { "cite": "79 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737731 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0235-01" ] }, { "cite": "88 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840899 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0103-01" ] }, { "cite": "82 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326923 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0682-01" ] }, { "cite": "83 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5339743 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0225-01" ] }, { "cite": "88 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840798 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0466-01" ] }, { "cite": "252 Miss. 257", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1833944 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/miss/252/0257-01" ] }, { "cite": "267 U.S. 132", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137701 ], "weight": 3, "year": 1925, "opinion_index": 0, "case_paths": [ "/us/267/0132-01" ] }, { "cite": "307 A.2d 875", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1973, "opinion_index": 0 }, { "cite": "453 Pa. 107", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 577623 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/pa/453/0107-01" ] }, { "cite": "300 A.2d 66", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "44 So.2d 784", "category": "reporters:state_regional", "reporter": "So. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "406 U.S. 311", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170455 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0311-01" ] }, { "cite": "422 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0873-01" ] }, { "cite": "528 F.2d 713", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1079864 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/528/0713-01" ] }, { "cite": "457 F.2d 15", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 733873 ], "opinion_index": 0, "case_paths": [ "/f2d/457/0015-01" ] }, { "cite": "79 N.M. 677", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2735464 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0677-01" ] }, { "cite": "80 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354928 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0274-01" ] }, { "cite": "237 A.2d 683", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1968, "opinion_index": 0 }, { "cite": "108 N.H. 404", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4463522 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nh/108/0404-01" ] }, { "cite": "181 S.W.2d 338", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1944, "opinion_index": 0 }, { "cite": "181 Tenn. 344", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8531602 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/tenn/181/0344-01" ] }, { "cite": "254 S.W.2d 979", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1953, "opinion_index": 0 }, { "cite": "194 Tenn. 698", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8530381 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/tenn/194/0698-01" ] }, { "cite": "246 Miss. 481", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 8819863 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/miss/246/0481-01" ] }, { "cite": "503 F.2d 277", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 103855 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/503/0277-01" ] }, { "cite": "85 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776001 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/85/0449-01" ] }, { "cite": "88 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840899 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/88/0103-01" ] }, { "cite": "88 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840798 ], "weight": 2, "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/88/0466-01" ] } ], "analysis": { "cardinality": 1095, "char_count": 28929, "ocr_confidence": 0.804, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08524203534646228 }, "sha256": "e3ca2bb966aba378b12b99252b916db8b5fb674928dd79c80207e374978dbb84", "simhash": "1:89c8b233350119d2", "word_count": 5195 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "WOOD, C. J., dissenting in part and concurring in part." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Frank BLOOM and Ralph Mikorey, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nBloom was convicted of possession of marijuana contrary to \u00a7 54-ll-23(B)(3), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, 1962, Supp.1975), aggravated assault upon a police officer contrary to \u00a7 40A-22-21(l), N.M.S.A.1953 (2d Repl. Vol. 6, 1972) and escape from the custody of a peace officer contrary to \u00a7 40A-22-10, N.M.S.A.1953 (2d Repl. Vol. 6, 1972). Mikorey was convicted of the same count of possession of marijuana and escape from custody charges, and also of battery upon a peace officer contrary to \u00a7 40A-22-23, N.M.S.A.1953 (2d Repl. Vol. 6, 1972). Both defendants appeal asserting: (1) the trial court erred in refusing to suppress the marijuana seized because the seizure was a result of an illegal stop, arrest and seizure; (2) the police officer was not in the lawful discharge of his duties when he arrested the defendant; and (3) the marijuana conviction should be reversed for failure of the state to disclose pursuant to Rule 27 of the R.Cr.P.\nMotion to Suppress\nDefendants\u2019 motion to suppress was on the grounds that the \u201cstop, search, seizure, and arrest was made without the necessary probable cause.\u201d The following testimony is taken from the motion to suppress hearing and is taken solely from Patrolman Williams\u2019 testimony. We set forth the testimony as reported as any attempted summary would be unfair. At approximately 3:00 p.m. on January 27, 1975 Patrolman Williams, New Mexico State Police was conducting a road block checking driver\u2019s licenses and registration certificates.\nDirect examination of Williams by the state.\n\u201cQ Okay, now, would you tell us what you were set up or instructed, or what you were actually doing out there in making the checks, how you conducted the checks, and so on. You stated you were looking for driver\u2019s license, stolen cars, marijuana, all of it, but what were you actually doing then in looking for these things, the next car that came?\n\u201cA That\u2019s what I was looking for.\n\u201cQ Okay. All right, lets take the next car that you said you checked. What did you do with reference to that car?\n\u201cA Driver\u2019s license-registration, like I said. I don\u2019t remember what car it was or who it was or \u2014 I don\u2019t even think I searched it, but I might have. I don\u2019t know, I mean searching, open the trunk and look in it, I don\u2019t call that searching.\n\u201cQ Okay, have you ever opened anyone\u2019s trunk and looked in their trunk without asking their consent?\n\u201cA No, sir.\n\u201cQ Or at least whether it\u2019s a valid search or not, that you felt there was reason to make such a search?\n\u201cA No, sir.\n\u201cA I would have no reason to search it if I didn\u2019t think I had a valid reason.\n\u201cQ Then with reference to that car that you had checked out, go ahead and tell us again, chronologically, the way you remember it happening, up to the time the vehicle in which the defendant, Mikorey, was driving came by.\n\u201cA Well, I just flagged them down and checked their driver\u2019s license. Mikorey, he was driving. I asked him for driver\u2019s license and registration and he handed me a driver\u2019s license and a rental contract.\n\u201cQ All right, at that point was there any conversation about it being a rental car?\n\u201cA No, sir, I could see that with the contract.\n\u201cQ All right.\n\u201cA I told him to pull over to the side, then I had some more traffic backed up, I think, and I waved them on by, probably checked one more, two more cars, I don\u2019t know, you know, driver\u2019s license, registration.\n\u201cQ Okay, and as you approached the window this time, do you recall what was said by you and by the defendant?\n\u201cA Yeah, I asked Mr. Mikorey, I asked him what he had in the trunk.\n\u201cQ Okay, why did you ask him that?\n\u201cA Why? Cause I suspected him of hauling marijuana.\n\u201cQ Why at that point?\n\u201cA Well, I could, I thought I could smell it. I didn\u2019t know for sure if I could smell it or not. I smelled what appeared to be marijuana, but I didn\u2019t know.\n\u201cQ Did you observe anything about the automobile?\n\u201cA Well, yes, it was heavily loaded, had a bunch of big paintings and stuff in the back seat, you know, which could have fit in the trunk.\n\u201cQ Okay, and you asked him then what he did have in the automobile?\n\u201cA Yes, I asked him, I said, what he had in the trunk of the car.\n\u201cQ And he answered, to the best of your recollection, by what?\n\u201cA Luggage, clothes.\n\u201cQ And what did you do then?\n\u201cA I said, \u2018Do you mind if I take a look?\u2019 [in the trunk]\n\u201cQ And how did he respond?\n\u201cA He said, \u2018No.\u2019 So he got out of the car, walked around to the trunk, started to open it, and I told him, I said, \u2018You realize you don\u2019t have to open the trunk.\u2019 And he wanted to know why I wanted to look in-there, and I told him that we was looking for marijuana, and I said, \u2018We could go to town and get a search warrant,\u2019 whatever he \u2014 it would probably be better for him if we did.\n\u201cQ If you did what?\n\u201cA Went to town and got a search warrant.\n\u201cQ All right, did you, up to that point, had you made any \u2014 well, had the defendant asked what would happen if he did not\u2014 had you made any statements as to what would happen if he did not let you look in the trunk, anything of this nature?\n\u201cA No, he never denied me that I couldn\u2019t look in the trunk.\n\u201cQ Okay, so the trunk then was opened. Who opened it?\n\u201cA Mikorey.\n\u201cQ And what happened once the trunk was opened?\n\u201cA Okay, I asked him what he had in the suitcases and he said, \u2018Clothes,\u2019 and I said, \u2018What do you have in the gold suitcase?\u2019 which was setting on top, and he said, \u2018Nothing.\u2019 I said, \u2018Would you open it?\u2019 He opened, he pulled it out of the car first and set it on the ground.\n\u201cQ Okay, was \u2014 did he make any statement when you said, \u2018Would you open it?\u2019 did he make any statement or\u2014\n\u201cA No, he didn\u2019t.\n\u201cQ \u2014shake his head?\n\u201cA He didn\u2019t want to open it, but he didn\u2019t make any statements or anything. He hesitated, and so he picked it back up and set it in the trunk of the car, and I said, \u2018Are you going to open that for me?\u2019 And he said, \u2018Okay.\u2019 So he opened it and there was some marijuana residue in there.\n\u201cQ All right, anything else in the trunk other than the marijuana, or substance you believed to be marijuana?\n\u201cA Yes, sir, I think there was two more suitcases, I believe, and a green, I don\u2019t remember what color it was, I think it was green trunk, footlocker.\n\u201cQ Okay, but was the gold suitcase, was it empty other than the residue that you have described?\n\u201cA Yes, sir.\n\u201cQ And approximately how much residue \u2014 when you, when we talk of residue, how much are you talking about? How much did you see in that gold suitcase?\n\u201cA Not very much, you know, just a little bit on the bottom.\n\u201cQ All right, not very much. Can you\u2014\n\u201cA Well, like\u2014\n\u201cQ \u2014be a handfull?\n\u201cA Like a baggie full, or something.\n\u201cQ As much\u2014\n\u201cA I don\u2019t know if it was that much.\n\u201cQ Approximately a baggie if it was put together?\n\u201cA Yes, sir.\n\u201cQ All right, upon the trunk being opened, did you receive any other essential sensation, anything come to your attention upon the trunk being opened?\n\u201cA Sure. I could smell the marijuana from the trunk.\n\u201cQ Okay.\n\u201cA I knew it wasn\u2019t that what I smelled in that suitcase, I knew it wasn\u2019t that.\n\u201cQ Okay, so when you, in the trunk, what I refer to as the Mikorey automobile, there was an odor, a definite odor that you recognized.\n\u201cA Yes, when the trunk was opened.\u201d Cross-examination of Williams by defendants.\n\u201cQ Okay, now, at the time that you stopped the Mikorey vehicle, did you have any reasonable cause to believe that that vehicle was unsafe or not equipped as required by law?\n\u201cA No,\u2019I knew it was hauling marijuana, or something, there was something wrong with it.\n\u201cQ Okay, did you have any reason to believe that its equipment was not in proper adjustment or repair?\n\u201cA No, I\u2019m not a mechanic.\n\u201cQ Okay, did you have any reason to believe that the driver did not have a valid license or registration?\n\u201cA That\u2019s why I asked him, to see if he did have.\n\u201cQ I see. Did you have any reason to believe that the automobile was stolen?\n\u201cA No, I knew it was a rent car, a rental car. I suspected it, being a rental car.\n\u201cQ Then why did you stop it?\n\u201cA Why did I stop him?\n\u201cQ Yeah.\n\u201cA Because I figured he was hauling marijuana.\n\u201cQ This is before you, before you even approached the car?\n\u201cA Yeah.\n\u201cQ Now, you said that you do not search all the cars unless you have reason to, right?\n\u201cA Right.\n\u201cQ And that day did you search some of the other cars?\n\u201cA Yes, sir.\n\u201cQ I see. What were the reasons that you searched those other cars?\n\u201cA Like one I thought was a stolen vehicle, which I had run it through on the computer, but it come back that it wasn\u2019t stolen, but like California, they don\u2019t enter their vehicles until 24 hours after they have been missing and they can be further than here in 24 hours and not ever be entered in the computer, and I check them, see if their spare tire and stuff are in there. You know, usually, somebody steals a car, they got no money, so they take the spare tire out and jacks and sell them.\n\u201cQ Well, did you have any reason to believe that any of the cars that you searched were, in fact, stolen?\n\u201cA Yeah, I just said I did.\n\u201cQ Okay, what led you to believe that they might have been stolen?\n\u201cA By the way the people act, by the car they are driving. You take a \u2018skroag\u2019 driving a Lincoln Continental, a ten thousand dollar car and he don\u2019t even have shoes to put on, something wrong.\n\u201cQ A what? What did you call\u2014\n\u201cA Hippie, skroag, whatever.\n\u201cQ (Continuing by Mr. Rosenberg.) Did you encounter any vehicles like that that day?\n\u201cA Oh, yeah, I encounter a lot of them.\n\u201cQ Did you stop them and search them?\n\u201cA Oh, some of them I did. I can tell whether they are hauling dope, usually.\n\u201cQ So, then the reason that you signalled to Mr. Mikorey to stop at that roadblock is because you suspected he was hauling dope?\n\u201cA Uh huh.\n\u201cQ And what was it about that car, its appearance as it approached you that led you to believe it was hauling dope?\n\u201cA Rent car. Nearly every car we pick up hauling marijuana is a lease vehicle.\n\u201cQ I see. Do you every encounter any leased vehicles that don\u2019t have marijuana?\n\u201cA No, I haven\u2019t.\n\u201cQ Or do you just stop the lease cars that have marijuana and let the lease cars that don\u2019t have marijuana go by?\n\u201cA Well, yeah. Why would I want to stop the ones that didn\u2019t have marijuana?\n\u201cQ What was it about this car that led you to believe that it was a lease car before you stopped it?\n\u201cA I can tell a lease car.\n\u201cQ What is it about a car that\u2014\n\u201cA Well, all of them has got a little sticker in the window, and some of them has got them up behind the mirror or on the bumper.\n\u201cQ I see. And where did this car have its sticker?\n\u201cA I think it was on the left or right side of the windshield up at the top.\n\u201cQ And what did it say?\n\u201cA It\u2019s just got numbers on it.\n\u201cQ And that\u2019s what led you to believe that it was a rent car?\n\u201cA Uh huh.\n\u201cQ And that it was hauling marijuana.\n\u201cA Yes, sir. That, and then the two people in the car.\n\u201cQ What was it about the two people in the car?\n\u201cA They just looked like dope haulers.\n\u201cQ Okay, what do dope haulers look like?\n\u201cA Just like that.\n\u201cQ Would you tell the Court, would you describe to the Court what their appearance was on the day in question that led you to believe that they were dope haulers.\n\u201cA I just told you.\n\u201cQ What was it?\n\u201cA Well, they just look like dope haulers.\n\u201cQ Okay.\n\u201cA I got my own way of telling..\n\u201cTHE COURT: How would I know what to look for if I were looking for a dope hauler, Mr. Williams?\n\u201cTHE WITNESS: Well, your Honor, you would have to go through the State Police school and be out on the highway and know, you can tell these people. I mean, you have to do it with experience, you just, you couldn\u2019t just jump out there say that guy, I think, is hauling dope.\n\u201cTHE COURT: Go ahead.\n\u201cQ (continuing by Mr. Rosenberg) When in your State Police school did they tell you how to identify dope haulers?\n\u201cA No, like I said, it comes with experience.\n\u201cQ I see. Was it their age?\n\u201cA No, I didn\u2019t know how old they was.\n\u201cQ Okay, was it their length of hair?\n\u201cA No.\n\u201cQ Was it the clothes they.were wearing?\n\u201cA. No. It was by the way they acted. Like I said, I got my own way of telling which you wouldn\u2019t have.\n\u201cQ Okay.\n\u201cA You know, I can\u2019t explain it to you.\n\u201cQ So you, you knew before that car even came to a stop, you felt in your own mind it was hauling\u2014\n\u201cA No.\n\u201cQ \u2014dope?\n\u201cA I had a good idea it was when I found out it was a rent car, lease car.\n\u201cQ And there was something about the people in the car that you can\u2019t really describe to us that you knew?\n\u201cA Sure.\n\u201cQ Okay.\n\u201cA Nervous.\n\u201cQ Who was nervous?\n\u201cA Mikorey.\n\u201cQ He was nervous?\n\u201cA I never did talk to Bloom at the initial contact.\n\u201cQ What would you have done if Mikorey hadn\u2019t let you look in his trunk?\n\u201cA What would I have done?\n\u201cQ Yeah.\n\u201cA I would have probably brought him to town and obtained a search warrant.\n\u201cQ Did you tell him that?\n\u201cA No, he never did tell me I couldn\u2019t look in there.\n\u201cQ Okay. What purpose were you there originally on the highway, for what purpose were you there originally on the highway?\n\u201cA Like I said, we was checking for stolen cars, driver\u2019s license, registration checks, equipment checks, marijuana.\n\u201cQ Just\u2014\n\u201cA Pills, we pick up a lot of pills.\n\u201cQ I see. Just more or less anything you could find?\n\u201cA Anything that\u2019s illegal.\n\u201cQ That you could find.\n\u201cA Yeah. We usually find it, you know, if it\u2019s illegal.\n\u201cQ In other words, that was the purpose that you established this roadblock.\n\u201cA Yes, sir.\n\u201cQ Now, after Mr. Mikorey gave you his driver\u2019s license and registration, was there anything about those that appeared to be in violation of any law or statute, Motor Vehicle Code?\n\u201cA No, except Mr. Mikorey said the lease contract had a due date on it and it didn\u2019t, it was an indefinite contract.\u201d\nRe-direct examination.\n\u201cQ Okay, is this a factor in your conclusion that this, as you stated, figured he was hauling marijuana? Is the rental car existence, is that a, a factor?\n\u201cA Yes, sir, because they rent these cars. That\u2019s the way, this way we can\u2019t confiscate them.\n\u201cQ All right, based on your experience, then, that\u2019s a very common occasion for marijuana to be hauled in rental cars. \u201cA Yes, sir, that\u2019s in, anybody picks up marijuana, most of the arrests are made out of rental vehicles.\n\u201cQ Okay, now, you mentioned in your direct examination the fact that the car was heavily loaded in the rear. Is that a factor?\n\u201cA Well, it was loaded, it wasn\u2019t heavily loaded. I mean it wasn\u2019t setting down on the ground, but I could tell there was something in the trunk, either that or he had real bad shocks, one of the two.\n\u201cQ Okay, and you have also mentioned seeing clothes and pictures and this type thing in the back seat. Is that one of the factors that you might put together with the others to justify some seeking out or further\u2014\n\u201cA Well, I figured, you know, them pictures, they could have put them in the trunk. There had to be something in the trunk, where the pictures wouldn\u2019t go. I wouldn\u2019t think they would haul them in the back seat.\n\u201cQ In other words, if they have marijuana in the trunk, they would have to put their clothes and other objects in the back seat?\n\u201cA Yes, sir.\n\u201cQ So all these combinations are factors, is that correct?\n\u201cA Yes, sir.\n\u201cQ Plus, you stated the way they acted when they see a police officer is \u2014 am I quoting you right there, is that a factor?\n\u201cA Yes, sir, they get nervous.\n\u201cQ Okay, do you find that a normal tourist, say, upon being stopped by police officer gets nervous? Are you talking about something different, or can you elaborate a little?\n\u201cA No. Like I said, lot of them don\u2019t get nervous if you stop them and give them a ticket, they don\u2019t get real nervous. May get a little mad, but they don\u2019t get nervous.\u201d\nDefendants\u2019 motion to suppress was based on the fact \u201c. . . [tjhat said stop, search, seizure and arrest was made without the necessary probable cause to support the actions of Officer Williams.\u201d The trial court denied the motion to suppress and \u201c. . . found that the arrest, search and seizure occurring on January 27, 1975, was not an unreasonable search and seizure as defined by the Constitution of the United States.\u201d\nSubsequently, defendants filed a motion asking the trial court to reconsider its ruling on defendants\u2019 motion to suppress together with a trial brief which reemphasized the fact that Patrolman Williams was \u201c. . . selectively stopping vehicles based on past experience when he saw \u2018scrods\u2019, \u2018hippies\u2019, \u2018longhairs\u2019 and rental cars, etc. . . .\u201d The motion to reconsider was also denied.\nThe Stop\nWe first consider the basic authority of Officer Williams to conduct a driver\u2019s license and vehicle registration check. The two following statutory sections are pertinent. Section 64-3-11, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2, 1972) states in part:\n\u201c. . . Every such registration evidence or duplicates thereof certified by the division shall be exhibited upon demand of any police officer.\u201d\nSection 64-13-49, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2, 1972) states:\n\u201c. . License to be carried and exhibited on demand. \u2014 Every licensee shall have his operator\u2019s or chauffeur\u2019s license in his immediate possession at all times when operating a motor vehicle and shall display the same upon demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division. However, no person charged with violating this section shall be convicted if he produces in court an operator\u2019s or chauffeur\u2019s license theretofore issued to him and valid at the time of his arrest.\u201d\nCompare the cases of United States v. Cupps, 503 F.2d 277 (6th Cir. 1974); Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512 (1963); Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979 (1953); Cox v. State, 181 Tenn. 344, 181 S.W.2d 338 (1944) and State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968) and cases cited therein regarding statutes similar to New Mexico.\nNo New Mexico cases have dealt directly with \u00a7\u00a7 64-3-11, supra, 64-13-49, supra. See State v. Lewis, 80 N.M. 274, 454 P.2d 360 (Ct.App.1969); State v. Slicker, 79 N.M. 677, 448 P.2d 478 (Ct.App.1968). See also United States v. Fallon, 457 F.2d 15 (10th Cir.1972). However, in United States v. Jenkins, 528 F.2d 713 (10th Cir. 1975) the court stated:\n\u201cIn stopping Jenkins\u2019 vehicle the patrolman was acting pursuant to 64-3-11 and 64-13-49, New Mexico Statutes Annotated. 64-3-11 provides that every owner of a vehicle shall exhibit his vehicle registration papers \u2018upon demand of any police officer.\u2019 64-13-49 provides that every driver shall display his driver\u2019s license \u2018upon demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division.\u2019 However, even though the patrolman in the instant case may well have been acting in accord with New Mexico law, his actions must still comport with the requirements of the Fourth Amendment to the United States Constitution. . . . \u201d\nWe further note that there is support for the statutory authority granted by footnote 8, in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) wherein the court stated in part:\n\u201c. . . Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding driver\u2019s licenses, vehicle registration, truck weights, and similar matters.\u201d\nCompare also United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) where the court held, with regard to inspecting records and a storeroom of a federally licensed gun dealer, that where regulatory inspections further urge federal interests and the possibilities of abuse and threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant wherein specifically authorized by statute.\nWe believe that the same rationale applies to the above quoted statutes. Here there is an urgent state interest involved. The New Mexico State Police Report for 1974, page 63, states that there is a motor vehicle theft in New Mexico every two hours and thirty-six minutes. It further states at page 9 that there was a total of 39,471 traffic accidents in New Mexico of which 10,463 were investigated by the State Police. The checking of drivers licenses will tend to protect the public in that it can keep many unsafe drivers off the highways. City of Miami v. Arnovitz, 44 So.2d 784 (Fla.1959).\nIn view of the foregoing, we hold that the above quoted statutes grant the police the unquestioned good faith right to detain motor vehicles for the purposes specified therein. Compare Commonwealth v. Swanger, 300 A.2d 66 (Pa.1973) affirmed on reargument, 453 Pa. 107, 307 A.2d 875 (1973).\nHowever, the actions of the police must be in conformity with the constitutional requirements of the Fourth Amendment. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Jenkins, supra. When the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful the actions then become unreasonable and fail to meet the constitutional requirement. Murphy v. State, supra; Morgan v. Town of Heidelberg, supra; Coston v. Mississippi, 252 Miss. 257, 172 So.2d 764 (1965). Compare City of Miami v. Arnovitz, supra.\nIn reviewing the record of the motion to suppress we have no doubt that the stopping of defendants\u2019 vehicle and requesting the driver\u2019s license and registration was merely an excuse to go beyond the sanctions permitted by the statute as viewed from the constitutional mandate. One cannot do by indirection that which is directly prohibited. We are unwilling to sanction such conduct. The detention, under the record of this case, was a mere subterfuge and cannot be condoned. The motion to suppress should have been granted.\nIn so holding we are not avoiding the traditional standards of appellate review. State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975). However, there are certain cases where the traditional approach would be closing one\u2019s eyes to the realities of the situation. We feel the present record presents such a case.\nThe cold sterile record on appeal speaks with clarity and certainty as to the \u2019\u2022ealities of the reason for the detention. Any other approach by us would be \u2019 [a]phlegmatic detachment of such magnitude . . . [which] boggles the mind.\u201d Mares v. State, 83 N.M. 225, 490 P.2d 667 (1971) reversing State v. Mares, 82 N.M. 682, 486 P.2d 618 (Ct.App.1971).\nLawful Arrest\nAfter Patrolman Williams discovered the marijuana he placed Mikorey under arrest and attempted to handcuff him. Bloom then got out of the car and came toward Williams and said: \u201cWhat\u2019s going on?\u201d Officer Williams told Bloom that he too was under arrest for possession of marijuana over eight ounces. As Officer Williams reached over to grab defendant Bloom\u2019s hand, Bloom jerked away. It was at this time that Bloom jerked Officer Williams\u2019 pistol out of his holster. Officer Williams grabbed for the pistol and Mikorey pushed the officer from behind and knocked him off his balance. Bloom then stepped back about four or five feet and told Officer Williams that he was going to kill him. Bloom then told Mikorey to get Officer Williams\u2019 radio mike and car keys. Mikorey then walked over to the police car, and pulled out the mike and took the car keys. Defendants Mikorey and Bloom then jumped into their car and drove off. The defendants were rearrested at a later time.\nThere may be cases where \u201c. . .in the lawful discharge of his duties . . \u201d there is a distinct question apart from the validity of the arrest. State v. Frazier, 88 N.M. 103, 537 P.2d 711 (Ct.App.1975). In the instant case whether the arrest was valid depends on whether the officer was \u201c. . . in the lawful discharge of his duties . . . .\u201d\nWe first decide the meaning of \u201clawful discharge of his duties.\u201d The powers and duties of the state police are prescribed by statute. Section 39-2-17(a), N.M.S.A.1953 (2d Repl. Vol. 6, 1972) states:\n\u201c. . . They shall be conservators of the peace within the state of New Mexico, with full power to apprehend, arrest and bring before the proper court all law violators within the state of New Mexico.\u201d (Emphasis Ours)\nPossession of marijuana is a violation of the law. Section 54 \u2014 11\u201423(B)(3), supra.\nAlthough we have held that the marijuana must be suppressed, because the search and seizure was the fruit of the illegal detention, we nonetheless hold that the arrests by the officer, after smelling and seeing the marijuana, was in the \u201clawful discharge of his duties.\u201d\nTo hold otherwise would place the officer in the position of not being able to seize obvious known contraband even though he was not lawfully in the area of the contraband. The remedy for the seizure is suppression. That, however, does not negate a lawful arrest under the facts of this case. The arrest was legal. But the convictions following such arrest would be based on nonadmissible evidence (the marijuana seized). Those convictions must be reversed.\nEscape from Custody of a Police Officer\nSection 40A-22-10, N.M.S.A.1953 (2d Repl. Vol. 6, 1972) states in part:\n\u201c. . . Escape from custody of a peace officer consists of any person who shall have been placed under lawful arrest for the commission or alleged commission of any felony, unlawfully escaping or attempting to escape from the custody or control of any peace officer.\u201d\nThe issue here necessarily turns upon the question of \u201c. . . who shall have been placed under a lawful arrest . . . .\u201d As we have heretofore held the arrests were lawful. Thus, the defendants\u2019 convictions of escape from custody are affirmed. State v. Lopez, 79 N.M. 235, 441 P.2d 764 (1968); State v. Martinez, 79 N.M. 232, 441 P.2d 761 (1968).\nHaving held the seizure illegal we do not reach defendants\u2019 third issue relating to disclosure.\nAccordingly, the convictions of both defendants of possession of marijuana are reversed. The conviction of aggravated assault upon a peace officer by defendant Bloom and battery upon a police officer by defendant Mikorey, and of escape from custody of a police officer are affirmed.\nIT IS SO ORDERED.\nHERNANDEZ, J., concurs.\nWOOD, C. J., dissenting in part and concurring in part.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "WOOD, Chief Judge\n(dissenting in part and concurring in part).\nThe majority hold that the officer illegally stopped and detained defendants. I disagree. The officer\u2019s testimony is contradictory. As to the initial stop, the officer testified defendants\u2019 car was stopped because the officer figured defendants were hauling marijuana. The officer also testified that he was manning a general roadblock, checking driver\u2019s licenses, ear registrations, checking for stolen cars, anything illegal. The evidence is clear that other vehicles were being stopped and checked. A Marine AWOL had been apprehended and was in the officer\u2019s car when defendants\u2019 car was stopped.\nAs to having defendants pull off the road and wait, again the evidence is in conflict. The officer indicated this was done because defendants looked like dope haulers and the officer \u201cfigured\u201d marijuana was being hauled. On the other hand, the officer testified he was suspicious that marijuana was being hauled because the car was a lease car, the way the car was loaded, the nervous way the defendants acted and because the officer thought he smelled marijuana, although he was not sure.\nAs to the opening of the trunk, the evidence is again contradictory. The officer\u2019s testimony that Mikorey consented is not directly contradicted. However, the context of the officer\u2019s testimony would permit the inference that consent was under a threat to get a search warrant.\nConflicts in the testimony of the officer were to be resolved by the fact finder. State v. Landlee, 85 N.M. 449, 513 P.2d 186 (Ct.App.1973). Our function, on appellate review, is to view the evidence in the light most favorable to the trial court\u2019s decision and determine whether the evidence substantially supports the trial court\u2019s decision. State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975). Under this standard, the trial court\u2019s denial of the motion to suppress should be affirmed. Accordingly, I would affirm the marijuana convictions.\nI concur in the affirmance of the other convictions. Even under the majority view that the stop and detention was illegal, I agree that the officer was in the lawful discharge of his duties at the time of the assault and battery on him by the defendants. The officer was clearly performing his lawful duties in arresting defendants for possession of contraband which the officer had seen and smelled. State v. Frazier, 88 N.M. 103, 537 P.2d 711 (Ct.App.1975) is not to the contrary.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WOOD, Chief Judge" } ], "attorneys": [ "Toney Anaya, Atty. Gen., Ralph W. Muxlow, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Dahl L. Harris, Rosenberg & Harris, Albuquerque, for defendants-appellants." ], "corrections": "", "head_matter": "561 P.2d 925\nSTATE of New Mexico, Plaintiff-Appellee, v. Frank BLOOM and Ralph Mikorey, Defendants-Appellants.\nNos. 2121, 2122.\nCourt of Appeals of New Mexico.\nMarch 16, 1976.\nToney Anaya, Atty. Gen., Ralph W. Muxlow, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nDahl L. Harris, Rosenberg & Harris, Albuquerque, for defendants-appellants." }, "file_name": "0226-02", "first_page_order": 262, "last_page_order": 272 }