(dissenting).
I respectfully dissent.
The dispositive issue on appeal is whether the trial court erred in denying defendant’s motion to suppress evidence of controlled substances found in defendant’s wallet, where the wallet was in defendant’s possession at the time of his arrest, but was left by him at the scene of his arrest and was retrieved and searched after he was incarcerated. I would affirm the ruling of the trial court denying suppression of the evidence.
After defendant’s initial detention for suspected shoplifting in a grocery store by store personnel, the police were summoned. Upon the arrival of a police officer, the officer requested that defendant produce some identification. The defendant complied by removing his driver’s license from his wallet and handing the license to the officer. Defendant was then searched and evidence of shoplifting was found on his person. Thereafter, defendant was arrested and transported to the police station where he was booked and incarcerated.
At the hearing on defendant’s motion to suppress, defendant testified that after the officer asked him at the store for identification, instead of replacing the wallet in his pocket, defendant placed it on top of a file cabinet in the store manager’s office and then forgot to take it with him to the police station. After his arrival at the station the defendant asked the officer if he had defendant’s wallet. The officer responded that he did not.
Defendant then told the officer that he had left his wallet at the store and requested that he be allowed to make arrangements to have a friend pick up his wallet and keep it until he was released. The officer declined to allow someone else to pick up the wallet, and instead, returned to the store and retrieved the wallet. After returning to the store the officer located the wallet and opened it in order to verify that it belonged to the defendant. During the search of defendant’s wallet the officer discovered that it contained LSD. The officer testified that he also examined the contents of the wallet to ascertain whether it contained any money, to protect against claims of theft, and so that any valuables could be inventoried. The officer also testified that police department regulations required securing any property or money in possession of the individual at the time of his arrest so that it could be inventoried.
The trial court’s denial of the motion to suppress was supported by evidence presented at the suppression hearing. A warrantless search and seizure is permissible if it is shown to fall within one or more of the recognized exceptions to the warrant requirements. See State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980). Here, the arresting officer testified that he searched the wallet in order to avoid any claim that the wallet or its contents had been misappropriated, and presented evidence that it was in fact departmental policy to inventory valuable property taken from an arrestee. In the case of a lawful arrest a full search of the person is an exception to the warrant requirement of the fourth amendment. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
The majority decision declares that the search of the wallet was not a valid inventory search because the wallet was not “part of the effects on his person at the time of booking,” and that “the search of defendant’s wallet was [not] incident to his lawful arrest for shoplifting.” The facts, however, presented at the suppression hearing were such that the trial court could reasonably determine that the search of defendant’s wallet occurred substantially contemporaneously with his arrest so that it was proper as a search incident to defendant’s arrest or alternatively that it constituted a valid inventory search. As observed in United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771 (1974), “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (upholding inventory search of personal effects incident to booking and jailing suspect). Similarly, the author in 2 W. LaFave, Search and Seizure Section 5.3(a) (2d ed. 1987), observes that in post-Edwards decisions, many courts have consistently upheld on
incident-to-arrest grounds * * * that at the station the police may search through the arrestee’s pockets, wallet, [or] other containers ... [and] may seize incriminating objects thereby revealed. It is not necessary that there be advance probable cause that such objects will be found. Indeed, it may be said more generally that the courts assume that this search may be just as extensive as could have been made * * * at the scene of the custodial arrest, and this is so even where the arrestee’s access to the object of the search was terminated between the time of arrest and the time of the search. That is, the scope of the search at the station is not limited to items then in the “immediate control” of the defendant; it is sufficient that the items were on his person at the time of arrest.” [Emphasis added.]
Nor, is it required that an “inventory” search be carried out solely at the time of booking or at the police station. See Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In Bertine the Court stated that their opinion in Lafayette did not suggest that the station-house setting was critical to their holding in that case. See United States v. Edwards; United States v. Simpson, 453 F.2d 1028 (10th Cir.1972) (search of wallet at time of defendant’s arrest upheld even though incriminating objects unrelated to the offense for which he was arrested were discovered). In Edwards the Court held that effects in the possession of a defendant at the time of arrest, including defendant’s clothing, may lawfully be subjected to search and seizure “even though a substantial period of time has elapsed between the arrest * * * and the taking of property.” Id. 415 U.S. at 807, 94 S.Ct. at 1239. Edwards also observed:
[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the “property room” of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.
Id. at 807-08, 94 S.Ct. at 1239.
The fact that the defendant left the wallet in the store manager’s office did not mandate that a search warrant be obtained as a prerequisite to its retrieval or inspection. See United States v. Basurto, 497 F.2d 781 (9th Cir.1974) (search incident to arrest conducted of defendant’s wallet thirty minutes after his arrest, held valid, where facts indicated wallet was taken from him at time of arrest but was left on dashboard of officer’s car); United States v. Rega, 496 F.Supp. 101 (S.D.N.Y.1980) (affirming inventory search at DEA headquarters of defendant’s purse following her arrest).
Other courts have sustained police search and seizure of an arrestee’s wallet either on the basis of an inventory search or search incident to his arrest. See United States v. Gardner, 480 F.2d 929 (10th Cir.1973) (upholding inventory search of defendant’s wallet shortly after arrest to safeguard police from claims of theft); Alston v. United States, 518 A.2d 439 (D.C.App.1986) (upholding validity of search incident to arrest of defendant’s tote bag for possible shoplifting despite fact that security officer’s search was not carried out immediately upon defendant’s apprehension); Roseborough v. United States, 86 A.2d 920 (D.C.1951) (upholding right of police officer to inventory contents of wallet either lost or abandoned); State v. Schaffer, 467 So.2d 1349 (La.Ct.App.1985) (search incident to arrest of wallet and seizure of LSD therefrom upheld where evidence disclosed defendant attempted to deliberately leave wallet at scene of arrest); People v. Wright, 88 App.Div.2d 879, 452 N.Y.S.2d 594 (1982) (inventory search of pocketbook found on floor of bar held valid); Swain v. State, 621 P.2d 1181 (Okla.1980) (upholding legality of inventory search of wallets after suspects were taken into custody). See generally Annotation, Lawfulness of Warrantless Search of Purse or Wallet of Person Arrested or Suspected of Crime, 29 A.L.R.4th 771 (1984); Annotation, Modem Status of Rule as to Validity of Non-consensual Search and Seizure Made Without Warrant After Lawful Arrest as Affected by Lapse of Time Between, or Difference in Places of, Arrest and Search, 19 A.L.R.3d 727 (1968).
Moreover, since it is undisputed that the wallet was in defendant’s possession at the time he was arrested and would have been inevitably discovered during a routine inventory search at the police station had defendant not left the wallet in the grocery store at the scene of the arrest, it was not improper for the officer to inspect and search the wallet when he returned to retrieve it from the place where defendant had been arrested. See State v. Corneau, 109 N.M. 81, 781 P.2d 1159 (Ct.App.1989) (upholding police warrantless seizure of wallet of alleged victim where facts indicated it was subject to inevitable discovery exception).
In United States v. Andrade, 784 F.2d 1431 (9th Cir.1986), the court considered contentions similar to those raised by the defendant herein. There, at the time of his arrest by DEA agents, Andrade was carrying a garment bag. The officers did not search the bag immediately and instead waited for the arrival of drug detection dogs. Approximately an hour later, following a dog search, which did not alert police to any contraband, the police opened the bag and discovered a package of cocaine contained therein. The contraband was not seized, but was left in the garment bag. Thereafter, defendant was taken to a DEA office and booked and the bag was inventoried. On appeal from denial of defendant’s motion to suppress, the circuit court upheld the search and seizure observing:
We hold that even if the [initial search] was unlawful, the cocaine was admissible because it would have been inevitably discovered through a routine inventory search.
The inevitable discovery doctrine is an exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). For the exception to apply, the prosecution must show by a preponderance of the evidence that the contraband or other material seized would have been discovered inevitably by lawful means. Id. at 444, 104 S.Ct. at 2509. We adopted the Nix standard in United States v. Merriweather, 777 F.2d 503, 506 (9th Cir.1985).
The scope of a permissible inventory search is controlled by Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). It is not “ ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.” Id. at 648, 103 S.Ct. at 2611.
Id. at 1433.
The court in Andrade held that the government met its burden of establishing that the search and seizure came within a valid exception to the search warrant requirement and that the prosecutor “properly showed that the cocaine would have been discovered through a lawful procedure.” Id. The court further stated that defendant’s transfer to the DEA’s holding facility for processing was inevitable, and that a subsequent routine booking search of his belongings, including the garment bag, would have inevitably disclosed the existence of cocaine.
At the hearing on the motion to suppress, the defendant testified that he did not know that his wallet contained LSD. Defendant also stated that he told the officer that he wanted to have a friend pick up his wallet from the store. From these facts the trial court could reasonably determine that the defendant purposely left the wallet at the place of arrest to avoid a search of its contents. Since the trial court was the fact finder, I find no error in the trial court’s ruling.
Under the facts herein, the trial court’s motion to suppress was not error. I would affirm the ruling of the trial court.