¶1(concurring in part and dissenting in part).
¶2Upon stopping the vehicle, the officer checked defendant’s driver’s license and sought to check the registration papers for the vehicle. This is undisputed. However, it is also undisputed that the reason for stopping the car was not for a good faith driver’s license or a registration check. Rather, the stop was on the basis of the officer’s “hunch” that the car was stolen. The officer arrived at this “hunch” after observing a young female driving a fairly new pickup with a camper shell and with an out-of-state license plate. These three facts do not provide a basis for an investigatory stop. See State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App.1977).
¶3The justification advanced for the stop is that New Mexico statutes authorize stops to check on driver’s licenses and vehicle registrations. State v. Bloom, 90 N.M. 226, 561 P.2d 925 (Ct.App.1976), overruled on other grounds, 90 N.M. 192, 561 P.2d 465 (1977) held that such stops are constitutionally impermissible if the stop is a “subterfuge or excuse for some other purpose which would not be lawful . . . .” The uncontradicted evidence is that the stop in this case was for the purpose of following up a hunch that the vehicle was stolen. This was a pretext stop and was illegal. To this extent I agree with the majority opinion.
¶4I disagree with the majority in holding all random stops to check driver’s licenses and registration papers illegal and in purporting to overrule United States v. Jenkins, 528 F.2d 713 (10th Cir. 1975) and United States v. Lepinski, 460 F.2d 234 (10th Cir. 1972). The stop in our case was not for the purpose of checking defendant’s license or registration; thus, the validity of “random,” stops need not be decided. Even if Jenkins and Lepinski are applicable, they go no further than to uphold a good faith stop. That is not the situation in this case.
¶5I also disagree with the majority discussion of defendant’s consent. There was no claim that her consent was involuntary. Defendant’s argument to the trial court was “that this initial detention is in violation of her rights under the Fourth Amendment and everything that followed is tainted thereby.” There was no reason for the State to prove a “voluntary” consent in the trial court because the validity of the consent was not attacked. The matter at issue in the trial court was the validity of the initial stop. While defendant asserted a “tainted” consent in the trial court, this “taint” was not developed in the trial court and is not argued on appeal. Whether the consent was tainted by the illegal stop is a question of fact. See Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1973); compare State v. Bidegain, 88 N.M. 466, 541 P.2d 971 (1975). No ruling of the trial court was invoked, either on “consent” or “tainted consent”-.
¶6Although the initial stop was illegal, there is no basis for reversing unless the consent was invalid. Since the validity of the consent was not litigated in the trial court and since there is no “consent” ruling to review, I would affirm.