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State v. Olaya3/5/1987
ope of the consent. Id.
The state cites United States v. Espinosa, 782 F.2d 888 (10th Cir.1986), for the proposition that a failure to object to the continuation of a search may be considered an indication that the search was within the scope of the consent. However, in United States v. Espinosa the defendant and his companion were both specifically asked whether agents could search the car, and defendant stated, "no problem, go ahead." United States v. Espinosa cites generally to United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.), cert. denied, 439 U.S. 936, 99 S. Ct. 333, 58 L. Ed. 2d 333 (1978), which upheld a similar search where defendant watched the search and made no attempt to retract or narrow his consent. As authority for holding the search was within the scope of consent, the United States v. Sierra-Hernandez court cited United States v. Miller, 491 F.2d 638 (5th Cir.), cert. denied, 419 U.S. 970, 95 S. Ct. 236, 42 L. Ed. 2d 186 (1974). In United States v. Miller, defendant permitted the IRS to remove documents for inspection and apparently acquiesced in their removal. The court held that in so doing the defendant waived any restrictions against removal that may have been contained in a letter agreeing to permit government inspection.
Because Officer Toler had searched the luggage in the trunk prior to asking a second time for permission to look in the car, the trial court might have concluded that there was evidence of an unlimited consent. Under these circumstances, when Officer Toler used a screwdriver to remove the loose door panel, the evidence supports a finding that he was acting with defendant's consent. Given the standard of review on appeal, we conclude the state carried its burden of proof.
WHETHER DEFENDANTS' CONSENT WAS TAINTED.
Defendant has argued that defendant's consent was tainted an unlawful detention. The state contends that defendant has waived the argument by failing to identify
the period of time on which he relies. It seems clear that defendant relies on the period of time between Officer Toler's receiving a negative NCIC report and the time defendant consented. We understand his argument, however, to be based on a claim that defendant's testimony, rather than the officer's, was the more credible.
The trial court found that the brief detention was reasonable. The record supports a conclusion that there was a very brief interval between the time the officer received a negative response and the time he asked for consent, during which he asked defendant's point of origin and destination. We assume, but need not decide, that this period of time was not an unreasonable detention.
Defendant's argument on appeal has been that State v. Cohen is distinguishable, because in that case defendants had been advised of their rights and had signed a written consent form. We understand State v. Cohen, however, to have ruled, alternatively, that where the detention was not unreasonable, it was not sufficient to taint defendant's consent. In view of the trial court's finding concerning the detention, we conclude that State v. Cohen controls. See also Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).
Conclusion.
Having reviewed the record in light of the requisite standard, we conclude that the roadblock was valid and that the state carried its burden of proof as to defendant's consent. Under these circumstances, the trial court's decision to deny defendant's motion to suppress must be affirmed.
IT IS SO ORDERED.
WE
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