Garcia v. State

¶1Specially Concurring.

¶2Because I agree with the majority’s disposition of this case, I concur as to the result. I must write separately, however, inasmuch as the majority has neglected to address the important issue of the warrant-less search of Garcia’s automobile. That search was not justified by the presence of exigent circumstances and was, therefore, improper.

¶3Garcia moved to suppress the fruits of the warrantless search. At the evidentiary hearing, the evidence indicated that four officers were on the scene; two secured the car during the first attempt to obtain a warrant. The officers believed that they had probable cause to search the car, though not to arrest Garcia. The court took judicial notice of the fact that the next nearest magistrate who could have issued a search warrant was in Carlsbad, a distance of 35 miles. The trial court concluded that the search was justified because the extra driving time made the circumstances exigent.

¶4In upholding the validity of the search, the court of appeals seriously misinterpreted the ruling of this Court in State v. Capps, 97 N.M. 453, 641 P.2d 484 (1982). In Capps, the court would permit, upon a valid stop by a police officer, a thorough search of an automobile and its contents where there is probable cause to search. Nevertheless, “[although there is probable cause, the second factor, exigent circumstances, must also be present.” Id. at 456, 641 P.2d at 487. The court of appeals decision stated that “the mobility of an automobile automatically provides the exigent circumstances if the justification for the search arose suddenly and unexpectedly.” State v. Garcia, 24 SBB 502, 504 (Ct.App.1985). This phraseology is over-broad, misleading, and still does not eliminate the need for a factual showing of exigency. In the case at bar, that showing simply was not made. Indeed, the facts indicate that there was time to attempt to obtain a warrant. Exigent circumstances did not come into being simply because the first judge was unavailable. The car was under observation in a parking lot, not beside the highway somewhere. At the hearing, officer Wesson testified that the decision to forego a warrant was based as much on convenience to the police as on a fear that the evidence would be removed. The Fourth Amendment requires that a citizen’s expectation of privacy prevail over law enforcement efficiency. The United States Supreme Court has declared that:

[The warrant requirement] is not an inconvenience to be somehow “weighed” against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the “well-intentioned but mistakenly over-zealous executive officers” who are a part of any system of law enforcement.

¶5Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564 (1971), (quoted in State v. Warren, 103 N.M. 472, 479, 709 P.2d 194, 201 (Ct.App.1985)). See also Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

¶6Moreover, Capps and the federal cases which support it1 are not really apposite to the facts here. In Capps, justification to search arose only after the police had stopped the car, smelled marijuana and interrogated the occupants. The Garcia vehicle was never stopped by the police at all; when the officers arrived, the occupants of the car were inside the hospital. Thus this case falls within the ambit of Coolidge, which insisted on a warrant for the search of defendant’s car parked in his driveway, after he had been arrested in his home. The United States Supreme Court has not renounced the holding in Coolidge, nor its precept that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge, 403 U.S. at 461-62, 91 S.Ct. at 2035-36. See also United States v. Ross, 456 U.S. 798, 828 n. 1, 102 S.Ct. 2157, 2174 n. 1, 72 L.Ed.2d 572 (1982) (Marshall, J., dissenting). The trial court erred in refusing to suppress the fruits of a warrant-less automobile search, absent a showing of exigent circumstances.