State v. Kaiser , 91 N.M. 611 ( 1978 )

OPINION

LOPEZ, Judge.

The defendant was indicted in Bernalillo County, New Mexico on May 25, 1977, for the following crimes: (1) possession of peyote with intent to distribute, contrary to § 54-11-22(A)(2)(a), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, Supp.1975); (2) possession of LSD with intent to distribute contrary to § 54-11-22(A)(2)(a), supra; (3) possession of marijuana contrary to § 54-11-23(A) & (B)(2), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975); (4) possession of hashish contrary to § 54-11-23(A) & (B)(4), N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp.1975); (5) possession of cocaine contrary to § 54-ll-23(A) & (B)(5), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1975); and (6) conspiracy in violation of § 40A-28-2, N.M.S.A.1953 (2nd Repl.Vol. 6, 1972). The defendant pled not guilty to each count. Thereafter, defendant moved to suppress all evidence confiscated from defendant’s roomette in a railroad pullman car and all statements made by the defendant. The trial court granted the motion to suppress the evidence. The State filed an appeal pursuant to § 21-10-2.1(B)(2), N.M. S.A.1953 (Repl.Vol. 4, Supp.1975). We affirm.

The appeal presents two issues: (1) whether defendant’s arrest was valid; and (2) whether the search and seizure of defendant’s luggage in his train compartment was in violation of the Fourth Amendment to the United States Constitution.

Facts

On February 9, 1977, an Amtrak agent notified the Albuquerque Police Department that two passengers who had boarded an Amtrak train at Flagstaff, Arizona were suspected of transporting contraband. The agent had been informed of the passengers’ suspect activities by another Amtrak agent who had received this information from the railroad attendant who had assisted the passengers in loading their luggage in Flagstaff, Arizona. The attendant’s suspicions were aroused when he noticed that the passengers, the defendant and a companion, fit an informal profile of narcotic traffickers; young, clean-cut men of college age; paying cash for a one-way ticket to Pittsburgh, Pennsylvania; having several pieces of heavy luggage; and insisting that the luggage be put in their compartment rather than in the baggage car. Upon receiving the agent’s information, the Albuquerque Police Department arranged for further investigation by the narcotics squad who then awaited the arrival of the train in Albuquerque. Three dogs, trained in marijuana detection, and their handlers, were included in the group. The train arrived in Albuquerque two hours later than scheduled. At that time two of the dogs entered the defendant’s car and independent of each other indicated or “keyed” on marijuana in defendant’s compartment. As a third dog was boarding the train to confirm the indication of the first two dogs, the defendant, Kaiser, exited from the compartment. The defendant was then arrested and advised of his rights. After the defendant had disembarked from the train in the custody of a police officer, one of the dogs entered the compartment and indicated the presence of marijuana in a suitcase and in a pipe which had been left on the seat. The police officers then conducted a search of all the baggage. They discovered approximately 1,200 pounds of peyote and various other controlled substances including marijuana, hashish, LSD and cocaine. The officer who escorted the defendant learned of the discovery of peyote en route to the police station and initiated the conversation in which defendant made incriminating statements. The police did not attempt to remove the baggage before searching it; they did not attempt to secure a warrant; nor did they ask for defendant’s consent to search. At the hearing on the motion to suppress, the State’s witnesses testified that there was no concern about the dangerousness of the defendant, nor was there any concern about the presence of any weapons or explosives. Further, the defendant was not even present in the compartment at the time of the search.

Point I

The arrest of the defendant was lawful.

The legality of a warrantless arrest depends upon whether the arrest was based upon probable cause. If probable cause to arrest the defendant exists, the need for police officers to get an arrest warrant is obviated. In State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967), the New Mexico Supreme Court, quoting from Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) set out the definition of probable cause:

“ * * * Probable cause exists where ‘the facts and circumstances within their [the officers] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” [citation omitted.]

Although neither the keying of the dogs, nor the railroad attendant’s suspicions alone would be sufficient to establish probable cause, the combination of the attendant’s suspicions and the confirmation of these suspicions by the reactions of the two police dogs specifically trained to detect the presence of marijuana did establish sufficient probable cause to believe that marijuana was being transported. People v. Campbell, 35 Ill.App.3d 196, 340 N.E.2d 690 (1975); Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966).

The indication óf a police dog trained to detect marijuana has been held to establish the necessary probable cause to arrest. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Race, 529 F.2d 12 (1st Cir. 1976); United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); United States v. Fulero, 162 U.S.App.D.C. 207, 498 F.2d 749 (1974); United States v. Johnston, 497 F.2d 397 (9th Cir. 1974); People v. Campbell, supra. Thus, there is no question that the legality of the defendant’s arrest was in conformity with well-established law.

Point II

The search and seizure of defendant’s luggage in his train compartment is in violation of the Fourth Amendment to the United States Constitution.

Although the arrest of the defendant was lawful, the police had no legal authority to search the luggage in defendant’s compartment. A warrantless search is per se unreasonable, subject to a very few, carefully delineated and limited exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Ledbetter, 88 N.M. 344, 540 P.2d 824 (Ct.App.1975); State v. Gorsuch, 87 N.M. 135, 529 P.2d 1256 (Ct.App.1974).

The State argues that the trial court erred in granting the defendant’s motion to suppress because the warrantless search was justified. The State relied on the following exceptions: (a) probable cause plus exigent circumstances; or (b) search incident to a lawful arrest.

We must determine in this instance whether or not either of these exceptions is applicable. The first exception asserted by the State is that there was probable cause plus exigent circumstances. Taking into account the agent’s suspicions, the informal profile and the indication by the dogs, there was probable cause. The question presented here, however, is whether this situation presented the necessary exigent circumstances which made it unnecessary to get a warrant.

“Exigent circumstances” are summarized in U. S. v. Rubin, 474 F.2d 262 (3d Cir. 1974), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973) as follows:

“ . (1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) reasonable belief that the contraband is about to be removed; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that ‘efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged . . [citations omitted]

None of these exigent circumstances exist in the present case. Although the train had been running late, the police had complete custody of the defendant and his luggage. When the police searched the luggage the defendant was not even present. Further, there wa3 no danger of any weapons, explosives or destructible evidence which is the rationale for the reasonableness of a warrantless search under the probable cause plus exigent circumstances exception. Compare State v. Sanchez, 88 N.M. 402, 540 P.2d 1291 (1975). The State seems to argue that the exigent circumstances were created by the fact that the train was running two hours late and the police did not desire to delay the train any longer. The search took about 20 minutes. The police would have saved time if they had just removed the luggage, taken it to the police station, and then secured a search warrant. United States v. Chadwick, supra, clearly supports this idea.

The question presented in Chadwick was whether federal agents are required to have a search warrant before opening a lawfully seized footlocker at the time of the arrest of its owners where there is probable cause to believe it contains contraband Although there are superficial differences in the facts in Chadwick, the holding is clearly applicable. The Court held that under the circumstances a warrant was required. We conclude that the facts of the case at bar do not justify the application of the “probable cause plus exigent circumstances” in this case. United States v. Chadwick, supra; State v. Ledbetter, supra; State v. Gorsuch, supra.

The second exception by which the State seeks to justify the failure to secure a search warrant is that the search was incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) sets out the permissible scope of a search incident to a lawful arrest:

“There is ample justification for a search of the arrestee’s person and the area ‘within his immediate control’— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

It is difficult to conceive of how defendant’s luggage could have been “within his immediate control”, such that he could have destroyed evidence or have seized a weapon, since he had already been placed in custody and removed from the train. As the Court in Chadwick stated:

“Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence the search of that property is no longer an incident of the arrest.”

The Fourth Amendment protects people from unreasonable governmental intrusion into their legitimate expectations of privacy. Katz v. United States, supra; United States v. Chadwick, supra. As the court in Chimel noted:

“And we can see no reason why, simply because some interference with an individual’s privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.” Chimel, note 12, 395 U.S. at 766, 89 S.Ct. at 2042, 23 L.Ed.2d at 696.

We see no distinction between luggage in a private compartment and luggage in a home belonging to the defendant. If the luggage had been in the home of the defendant, certainly the police department would not have hesitated to get a search warrant. Chadwick confirms the expectation of privacy inherent in locked luggage. This expectation of privacy is the same in the instant case. The purpose for permitting a warrantless search incident to a valid arrest is not present. 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).

The State further argues that Chadwick is not applicable to the case at bar. The State contends that the United States Supreme Court decided the Chadwick case subsequent to the search of defendant’s luggage. The defendant does not dispute the fact that the case was decided subsequent to the search. The issue of retroactivity is only raised, however, when a court’s decision overturns a prior case or makes new law where the enforcement officials have relied on prior law. Stevens v. Wilson, 534 F.2d 867 (10th Cir. 1976); United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Chadwick merely applies the existing search and seizure law to the facts in the instant case. The State’s contention regarding retroactivity is without merit.

The search and seizure of the defendant’s luggage without a warrant was unlawful and therefore, any incriminating statements made by the defendant relative to the contents in the luggage were inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The trial court correctly granted defendant’s motion to suppress the evidence gained from the unlawful search of the defendant’s luggage and the incriminating statements stemming therefrom as contrary to the Fourth Amendment of the United States Constitution.

The order of suppression entered by the trial court is affirmed.

IT IS SO ORDERED.

HERNANDEZ, J., specially concurring. WOOD, C. J., concurring in part and dissenting in part.