(specially concurring).
No claim is made that defendants consented to a search or that the search was incidental to the arrest of defendants.' The issue before the trial court, and here, is whether the officers who searched the trunk of the car had probable cause for a warrantless search.
In the trial court, the State contended that probable cause resulted from a combination of information acquired in the various investigative steps. That information was: (a) the smell-of marijuana when the car was initially stopped; (b) absence of vehicle registration papers; (c) an expired car rental agreement in the name of a person other than defendants; (d) a request by the car rental agency that the vehicle be held for the agency; (e) discovery of marijuana seeds in the seats of the car upon entering the car to inventory its contents. The State asserted to the trial court that this combined information provided probable cause for a “complete and full search of the vehicle” and, thus, probable cause for searching the trunk of the car and the contents of the trunk.
No such contention is presented on the appeal. Accordingly, it is not necessary to consider whether the record supports the facts on which the State relied in the trial court and is not necessary to consider whether the alleged facts were legally sufficient for a “probable cause” search.
In the appeal, the State expressly declined to defend the search of the trunk and its contents on the basis of an inventory search. Accordingly, no question is presented as to the continuing validity of State v. Nemrod, 85 N.M. 118, 509 P.2d 885 (Ct.App.1973) or the effect of the United States Supreme Court decision in Cady v. Dombrowski, supra, upon Nemrod, supra.
In the appeal, the State defends the search of the trunk solely on the basis that probable cause existed at the time of the initial stop of the car on the street. Although the State does not abandon items (b) and (c) above — -the absence of vehicle registration papers and the expired car rental agreement — the State’s emphasis is that “probable cause” can be based on the marijuana smell.
The State’s contention is not before us for review. In the trial court, the State’s position was that probable cause for a search did not exist at the time of the initial stop of the vehicle. The State is attempting to change its theory on appeal. See Maryland Casualty Company v. Foster, 76 N.M. 310, 414 P.2d 672 (1966). The State’s theory on appeal is not before us for review because such a theory was not an issue raised in the trial court. State v. Lopez, 84 N.M. 402, 503 P.2d 1180 (Ct.App.1972).
I do not join in Judge Sutin’s opinion because it appears to decide the search issue on the merits. On the basis of the foregoing discussion, I concur in the result reached.
LOPEZ, J., concurs in Chief Judge WOOD’S specially concurring opinion.