{ "id": 1571076, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Johnny AUSTIN and Leonardo Hooks, Defendants-Appellees", "name_abbreviation": "State v. Austin", "decision_date": "1978-06-27", "docket_number": "Nos. 3400, 3401", "first_page": "793", "last_page": "795", "citations": [ { "type": "official", "cite": "91 N.M. 793" }, { "type": "parallel", "cite": "581 P.2d 1288" } ], "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": "88 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0619-01" ] }, { "cite": "90 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870419 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0192-01" ] }, { "cite": "90 N.M. 647", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870878 ], "weight": 7, "opinion_index": 0, "case_paths": [ "/nm/90/0647-01" ] }, { "cite": "81 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0521-01" ] }, { "cite": "88 N.M. 90", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0090-01" ] }, { "cite": "43 L.Ed.2d 432", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "95 S.Ct. 1339", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "420 U.S. 955", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11658208, 11658113, 11658181, 11658157, 11658132, 11658141, 11658239 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/420/0955-06", "/us/420/0955-01", "/us/420/0955-05", "/us/420/0955-04", "/us/420/0955-02", "/us/420/0955-03", "/us/420/0955-07" ] }, { "cite": "86 N.M. 388", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0388-01" ] }, { "cite": "85 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768059 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/85/0118-01" ] } ], "analysis": { "cardinality": 363, "char_count": 5433, "ocr_confidence": 0.823, "pagerank": { "raw": 8.724684075917225e-08, "percentile": 0.49418788508519224 }, "sha256": "fd475f3132dd07bdaf5d0f34021d18ee1a8420e12664f2e23c038b848f45c72a", "simhash": "1:2f427212a7cc0c69", "word_count": 874 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Johnny AUSTIN and Leonardo Hooks, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThese consolidated appeals present questions concerning the search of the trunk of the automobile driven by Hooks and in which Austin was a passenger. We discuss: (1) defendants\u2019 standing, and (2) consent to search.\nDefendants\u2019 automobile was going 65 m.p.h. in a 55 m.p.h. zone. The state police officer stopped the vehicle for the purpose of issuing a ticket for speeding. Hooks\u2019 driver\u2019s license had expired. The officer was shown a \u201ctemporary transfer\u201d card filled out in pencil with a possible alteration of the year shown on the card. The officer became suspicious that the car was stolen, and asked what was in the trunk. Informed there was luggage, the officer asked permission to look. Hook said either \u201cYes\u201d or \u201cOkay\u201d, and without hesitation, opened the trunk.\nThere was luggage in the trunk. In addition, the officer saw a partially open paper sack from which the top of a prescription bottle protruded. The officer opened the sack, there was cocaine in the bottle. Thereafter the car was searched, marijuana and additional incriminating evidence were discovered and seized. Defendants moved to suppress \u201call evidence or items seized\u201d. After an evidentiary hearing, the trial court suppressed the cocaine. The State appealed.\nDefendants\u2019 Standing\nThe State contends the motion to suppress should have been denied because defendants\u2019 lacked standing. The State as.serts that defendants failed to affirmatively show that they were legitimately in the vehicle that was searched. Defendants were charged with possession of cocaine with intent to distribute, and possession of marijuana.\nDefendants had standing because possession of the cocaine and marijuana were essential elements of the offenses with which they are charged. State v. Nemrod, 85 N.M. 118, 509 P.2d 885 (Ct.App.1973), overruled on other grounds in State v. Vigil, 86 N.M. 388, 524 P.2d 1004 (Ct.App.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1339, 43 L.Ed.2d 432 (1975); see State v. Ellis, 88 N.M. 90, 537 P.2d 698 (Ct.App.1975); State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.1970).\nRelying principally on an overruled Maryland decision, the State contends State v. Nemrod, supra, should no longer be followed. We disagree. A defendant charged with possession has standing to challenge the validity of the seizure of the items allegedly possessed.\nConsent to Search\nThe trial court found there was a valid consent to search the trunk of the automobile. The trial court also found that the consent was \u201cfactually established by clear and convincing evidence.\u201d Nevertheless, the trial court suppressed the cocaine on the basis that State v. Ruud, 90 N.M. 647, 567 P.2d 496 (Ct.App.1977) required this result.\nThe trial court\u2019s findings are consistent with Ruud, supra. Under those findings, Ruud, supra, did not require that the cocaine be suppressed. The trial court found a legitimate stop for speeding, that the officer had a reasonable basis for a \u201cstolen automobile investigation\u201d, that Hooks consented to the officer looking in the trunk and without hesitation opened the trunk, that when giving consent there was nothing in the circumstances that was coercive or indicative of coercion other than the presence of the officers, that defendants presented no evidence of lack of valid consent. Prom the findings, the trial court could properly rule the evidence was clear and convincing, as required in State v. Ruud, supra.\nContrary to defendants\u2019 contention, the trial court\u2019s findings are supported by substantial evidence. This evidence is much more than was present in Ruud, supra; thus, this case is factually distinguishable from Ruud, supra. The evidence in this case \u201ccould properly be construed as consent on this defendant\u2019s part to look into and make a search of the trunk.\u201d ' State v. Bloom, 90 N.M. 192, 561 P.2d 465 (1977).\nDefendants argue:\nEven assuming the consent to look into the trunk was valid, the consent was limited on its face to looking into the trunk to see if there was luggage. The officer\u2019s sole purpose for looking into the trunk was to determine whether there was luggage, the presence'of which would have indicated the car was not stolen. Once the officer saw the luggage his viewing should have ceased. He had neither reason nor permission to seize the paper bag nor to search it.\nThis argument is a cunning attempt to confuse the facts. It is true that the officer was not looking for anything but luggage. He testified he opened the paper sack because he was curious. The officer\u2019s personal motivations are not pertinent. Hooks consented to a search of the trunk and this consent was unlimited. There is no issue concerning a search in scope beyond the consent given. Searching pursuant to the consent, the officer could properly seize contraband found during the search. See State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976).\nThe order of the trial court, suppressing the cocaine, is reversed. The cause is remanded for further proceedings.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Toney Anaya, Atty. Gen., Robert G. Sloan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.", "Sarah M. Singleton, Pickard & Singleton, Santa Fe, for defendants-appellees." ], "corrections": "", "head_matter": "581 P.2d 1288\nSTATE of New Mexico, Plaintiff-Appellant, v. Johnny AUSTIN and Leonardo Hooks, Defendants-Appellees.\nNos. 3400, 3401.\nCourt of Appeals of New Mexico.\nJune 27, 1978.\nRehearing Denied July 10, 1978.\nToney Anaya, Atty. Gen., Robert G. Sloan, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nSarah M. Singleton, Pickard & Singleton, Santa Fe, for defendants-appellees." }, "file_name": "0793-01", "first_page_order": 829, "last_page_order": 831 }