{ "id": 1557100, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Paul MOORE, Defendant-Appellant", "name_abbreviation": "State v. Moore", "decision_date": "1979-03-22", "docket_number": "No. 3760", "first_page": "663", "last_page": "667", "citations": [ { "type": "official", "cite": "92 N.M. 663" }, { "type": "parallel", "cite": "593 P.2d 760" } ], "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": "433 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176124 ], "weight": 4, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/433/0001-01" ] }, { "cite": "91 N.M. 700", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571107 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0700-01" ] }, { "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": "483 P.2d 1377", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10575206 ], "opinion_index": 0, "case_paths": [ "/p2d/483/1377-01" ] }, { "cite": "87 N.M. 16", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836073 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/87/0016-01" ] }, { "cite": "91 N.M. 611", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571028 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0611-01" ] }, { "cite": "84 N.M. 652", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773120 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/84/0652-01" ] }, { "cite": "545 P.2d 1333", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "127 Cal.Rptr. 629", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1976, "opinion_index": 0 }, { "cite": "16 Cal.3d 263", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2295095 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/cal-3d/16/0263-01" ] }, { "cite": "88 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839678 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0402-01" ] }, { "cite": "387 U.S. 294", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11336837 ], "weight": 5, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/387/0294-01" ] }, { "cite": "427 U.S. 38", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174406 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/427/0038-01" ] }, { "cite": "90 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871457 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0129-01" ] }, { "cite": "90 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869816 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0319-01" ] } ], "analysis": { "cardinality": 652, "char_count": 13230, "ocr_confidence": 0.818, "pagerank": { "raw": 6.520580423013849e-08, "percentile": 0.4005897641136607 }, "sha256": "f8d69cb596f8c3a267c6af357999741596300b1903dd29ae221b90ad1e280caa", "simhash": "1:ec757cfc44c1d0bf", "word_count": 2227 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Paul MOORE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nMoore appeals his conviction of receiving stolen property. All but one of the issues listed in the docketing statement were abandoned because not briefed. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App.1977). The one issue presented involves a warrantless search of Moore\u2019s residence. We discuss: (1) the initial stop, (2) entry into the house, and (3) seizure of stolen goods.\nThe Initial Stop\nThe Rainey residence was burglarized on the evening of July 30th; three rifles and their cases were among the items taken in the burglary. Checking the neighborhood for possible witnesses, Patrolman Brown was informed by a neighbor that the neighbor \u201chad seen one of Mr. Rainey\u2019s renters there earlier in the evening.\u201d The renter had been seen at the front door. The neighbor described the person seen; Rainey stated the description matched Moore, who lived in one of Rainey\u2019s \u201crent houses\u201d one block behind Rainey\u2019s residence. Brown went to the rent house in an attempt to contact Moore, \u201cthere was no answer.\u201d\nOn July 31st, Brown drove into the neighborhood and observed a light green Dodge pickup in front of the rent house. When he came back to the rent house, fifteen to twenty minutes later, the pickup was gone.\nOn August 1st, Brown observed the pickup in front of the rent house and stopped to talk to Moore. The man who came to the door said Moore was not at home; however, the person who came to the door matched the description of Moore which Brown had received from the neighbor. Brown then did two things. He ran a registration check on the pickup, which had expired Texas license plates. The report was that the pickup was registered to someone in Texas. He contacted Rainey to \u201cconfirm identity of Mr. Moore . . . .\u201d Brown described the man who came to the door; Rainey informed Brown, \u201cthat was Mr. Moore.\u201d Brown went back to the rent house; the pickup was gone and no one answered the door.\nOn the evening of August 1st, Brown observed Moore driving toward the rent house. Brown pulled in behind Moore in front of the rent house. It was 8:45 p. m. Brown asked if Moore was at home, Moore stated that he wasn\u2019t and wanted to know what Brown wanted. Brown asked Moore \u201cif he had any identification on him\u201d; Moore said that he did not.\nThe above facts show Brown had a reasonable basis for stopping Moore to investigate his identity. Defendant does not claim to the contrary. State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977).\nEntry Into the House\nWhen asked for identification, Moore got nervous and was pacing around. Brown asked Moore to come to the police department and answer some questions. Moore asked, \u201cfor what.\u201d \u201cI told him first off it was evident that he didn\u2019t have a driver\u2019s license if he didn\u2019t have any identification on him\u201d and also told Moore that the \u201cpickup registration was expired . . ..\u201d Moore stated he would go in the house and get some identification; Brown permitted him to do so.\nGunnells, in the process of moving out of his residence, had stayed with Moore at the rent house one or two nights prior to August 1st. Gunnells was a passenger in the pickup on the evening of August 1st and was present when Brown asked Moore for identification.\nMoore and Gunnells walked from the pickup toward the rent house. Brown saw Moore and Gunnells \u201cstanding at the front door\u201d; it appeared to Brown \u201cthat they both went inside the house.\u201d Brown then called Lt. Vinyard, his supervisor, on the radio. When Moore did not reappear in \u201cabout two minutes\u201d Brown went up to the house. Brown asked Gunnells \u201cwhere Mr. Moore had went and he said last time that I saw him, and he pointed over his shoulder, said that he was headed for the back door.\u201d\nVinyard arrived at 8:58 p. m.; Brown reported \u201cwhat had happened previously with Mr. Moore . . . .\u201d Vinyard and Brown went to the door of the rent house. Vinyard asked, and Gunnells confirmed, that he had been staying there. Vinyard asked Gunnells if Moore had gone into the house. \u201cAnd he [Gunnells] thumbed, a thumbing motion and nodded his head like to the back bedroom of the house where Mr. Moore had gone.\u201d In addition to motioning with his thumb and head, Gunnells said that Moore \u201cwent to the back.\u201d Vinyard took Gunnells thumbing motion as a \u201c[g]ester to enter the house.\u201d Vinyard and Brown entered the house.\nWhile searching the rent house for Moore, stolen property was discovered. Defendant claims this warrantless search was unlawful because the officers were not justified in entering the house. Defendant asserts the only exceptions conceivably applicable to the warrantless entry were \u201cconsent\u201d and \u201chot pursuit,\u201d and neither was applicable in this case. We do not discuss \u201cconsent\u201d.\nDefendant contends that \u201chot pursuit\u201d allows the police, acting without a warrant, to pursue and arrest a \u201csuspected felon\u201d who retreats within a house. He claims \u201chot pursuit\u201d is inapplicable because no arrest had been set in motion when he fled, and that he was not a suspected felon. Defendant asserts that his offenses, at most, were the misdemeanors of concealing identity, see \u00a7 30-22-3, N.M.S.A.1978, and driving without a driver\u2019s license, see \u00a7\u00a7 66-5-16 and 66-5-37, N.M.S.A.1978. The State asserts that \u201chot pursuit\u201d is not limited to suspected felons; that the police could pursue and arrest defendant because he had committed misdemeanors in the presence of Brown. Neither the defendant\u2019s nor the State\u2019s position sufficiently reflects the facts in this case.\nA man of Moore\u2019s description had twice been identified as Moore; twice Moore had denied to Brown that he was Moore. Brown was pursuing the question of Moore\u2019s identity when he allowed Moore to enter the house to obtain identification. Brown thought Moore had entered the rent house when in fact Moore \u201cjumped the fence next to the front door\u201d and fled. Why was the question of identification being pursued? Because a man of Moore\u2019s description, and referred to as one of Rainey\u2019s renters, had been observed at the Rainey residence on the evening of the burglary. When Moore failed to reappear, Brown suspected him of the burglary.\nWhen Brown and Vinyard entered the house they were in \u201chot pursuit\u201d of a suspected felon who had twice concealed his identity. The term \u201chot pursuit\u201d describes what the officers were doing, but the terrii, in itself, does not justify the entry. The justification depends on why the officers were in \u201chot pursuit\u201d. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The justification for a \u201chot pursuit\u201d warrantless entry depends on exigent circumstances and the purpose for the entry.\nWhat amounts to exigent circumstances is a fact question which depends upon practical considerations of the individual case. \u201cThe circumstances must be evaluated from the point of view of a prudent, cautious and trained police officer.\u201d State v. Sanchez, 88 N.M. 402, 540 P.2d 1291 (1975). People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 (1976) states:\n\u201c[Ejxigent circumstances\u201d means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.\nNew Mexico exigent circumstances cases come easily within this definition. State v. Sanchez, supra; In re One 1967 Peterbilt Tractor, Etc., 84 N.M. 652, 506 P.2d 1199 (1973); State v. Kaiser, 91 N.M. 611, 577 P.2d 1257 (Ct.App.1978); State v. Hansen, 87 N.M. 16, 528 P.2d 660 (Ct.App.1974).\nThere were exigent circumstances in this case. The man who had been identified as being at the scene of the burglary and had twice denied his identity, had, with permission, entered the rent house to obtain identification, but had failed to reappear. The emergency situation, requiring swift action, was to determine if Moore was still in the house.\nThe purpose of the entry must be valid. The discussion of purpose is often in terms of probable cause to arrest, see United States v. Santana, or probable cause to search, see Warden, Maryland Penitentiary v. Hayden, supra. This does not mean there may not be other valid purposes for entry, lor example, a reasonable belief as to a medical emergency. In this case, however, there was probable cause to arrest Moore for the burglary on the basis of the two identifications that Rainey made to Brown. In addition, there was probable cause to search the rent house to forestall the imminent escape of Moore, the suspected burglar. See In re One Peterbilt Tractor, Etc., supra, and State v. Hansen, supra.\nBecause we hold there was probable cause to arrest Moore and probable cause to search for Moore as a suspected felon, we do not consider the State\u2019s argument that the valid purpose was to arrest Moore because he committed a misdemeanor in the presence of the officer. On the merits of this claim, see Phillips v. State, 483 P.2d 1377 (Okl.Cr.1971).\nSeizure of Stolen Goods\nUpon entry, Vinyard identified himself as a police officer and called out for Moore. There was no response. The officers went through each of the rooms \u201clooking in the closets\u201d for Moore. They came to the last room, a bedroom. Vinyard first checked the closet, then looked under the bed. As Vinyard knelt down to look under the bed: \u201c[Tjhere was a brown leather case protruding out between the mattress and the box springs two or three inches. Observed it as being the end of a gun butt . .\u201d After ascertaining that Moore was not under the bed, Vinyard \u201cpulled the mattress up and there appeared to be three cases or weapons concealed in three different types of cases.\u201d\nVinyard put the mattress back down, called for Brown and inquired the reason Brown stopped Moore \u201cother than just traffic stop. And he [Brown] said, \u2018Residential burglary.\u2019 \u201d Vinyard had Brown describe the weapons; Brown described two rifles. Vinyard removed the gun cases from under the mattress and opened them. Two of the rifles met Brown\u2019s description. The three cases, with rifles, were taken into custody. Rainey identified the three cases, with rifles, as his. A search warrant was then obtained; other items stolen from Rainey were discovered during this search and seized.\nIt is uncontradicted that Vinyard observed what he thought was a protruding gun butt during a good faith search for Moore. See State v. Alderete, 88 N.M. 619, 544 P.2d 1184 (Ct.App.1976). Vinyard then lifted the mattress and saw three rifle cases. Defendant seems to argue that it was improper for Vinyard to lift the mattress. We disagree. Verification that a rifle case was, in fact, under the mattress was a common-sense security precaution for an officer present in the residence of a suspected burglar who had not been found. See Warden, Maryland Penitentiary v. Hayden, supra; Rodriquez v. State, 91 N.M. 700, 580 P.2d 126 (1978).\nOnce three rifle cases were observed under the mattress, Vinyard verified that rifles had been stolen from the Rainey residence. He then opened the gun cases and found they contained rifles matching the description of rifles that had been stolen. Defendant states: \u201cWhile there may well have been probable cause to believe the closed cases contained contraband, the officers could not open them without first obtaining a warrant.\u201d Defendant relies on Rodriquez v. State, supra, and the quotation in Rodriquez taken from United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). We, of course, must apply the limitations of those decisions when applicable. Here they are not applicable because the \u201cincident to arrest\u201d aspect is missing.\nUnited States v. Chadwick, supra, and Rodriquez v. State, supra, dealt with personal property in the exclusive control of the police so that there was no danger that the arrestee might gain access to the property to seize a weapon or destroy evidence. In this case we do not have an arrestee; Moore had not been found. Because Moore had not been found, the officers could properly open the gun cases to verify that the cases did in fact contain the stolen rifles, and to know that the rifles were in fact in their possession so that they could not be used against the officers. This was for the officers\u2019 own security. See Rodriquez v. State, supra.\nThe search warrant obtained on the basis of the stolen rifles and cases seized during the search for Moore was proper. Accordingly, we do not consider whether there was probable cause for the search warrant independent of that recovered stolen property.\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Michael J. Dickman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "593 P.2d 760\nSTATE of New Mexico, Plaintiff-Appellee, v. Paul MOORE, Defendant-Appellant.\nNo. 3760.\nCourt of Appeals of New Mexico.\nMarch 22, 1979.\nJohn B. Bigelow, Chief Public Defender, Michael J. Dickman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0663-01", "first_page_order": 699, "last_page_order": 703 }