dissenting.
I respectfully dissent.
I cannot join in the majority opinion for the following reasons:
1. The United States Supreme Court has consistently held that the “automobile exception” to the warrant requirement does not justify the warrantless search of a closed container found inside the luggage compartment of an automobile. Yet, the majority purposely ignores the clear mandate of the United States Supreme Court in Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Robbins, in particular, is indistinguishable from the case at bar and unquestionably supports a holding that the evidence herein should be suppressed. We are required to follow the United States Supreme Court decisions interpreting federal constitutional questions. Bourguet v. Atchison, Topeka & Santa Fe Railway Co., 65 N.M. 207, 334 P.2d 1112 (1959); Silva v. Crombie & Co., 39 N.M. 240, 44 P.2d 719 (1935). The majority opinion is a blatant violation of our own mandate and overrules the above cases sub silentio. In fact, the United States Supreme Court rejects the argument that state courts can interpret the Fourth Amendment of the federal constitution in a more restrictive fashion than what they have. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).
2. The majority opinion has, in effect, done away with the warrant requirement of our federal and state constitutions, stating, “If there is probable cause to search for a particular item, the officer can search every container and location within the permitted area where that item could be located.”
3. The surrounding circumstances in the case at bar amounted to probable cause to search the bags. However, probable cause alone has never been sufficient to justify a warrantless search absent exigent circumstances. The State did not claim that exigent circumstances existed to search the bags. As such, the officer should have and could have obtained a search warrant.
4. The majority is negating the constitutional protections afforded all individuals simply on the basis of this particular defendant’s guilt.
5. The historical dissertation regarding the “search incident to an arrest” and “automobile” exceptions to the warrant requirement is nothing more than dicta; the only issue before us on certiorari is whether the officer’s warrantless search of the triwrapped and taped bags was unconstitutional.
I shall now elaborate on the theses of my dissent.
A more thorough discussion of the facts follows: On February 13, 1979, Officer Privetts of the Artesia Police Department stopped a car in which the defendant was a passenger.1 The officer inquired of the driver as to the ownership of the vehicle. While the driver opened the door to reach in the glove compartment and obtain ownership papers, the officer smelled an aroma of raw marijuana. The officer then asked the driver what he had in the car. After the driver answered “nothing,” the officer asked if he could look in the trunk. After hesitating for some time, the driver accompanied the officer to the rear of the vehicle. The defendant remained in the back seat of the vehicle. After placing the key in the trunk, the driver attempted to bribe the officer. The officer then ordered the driver and the defendant to keep their hands where he could see them. The officer testified that, at this point, he considered the driver and the defendant to be under arrest. After being told to keep their hands where the officer could see them, the driver told the officer: “We got no guns. We got dope, but we don’t got no guns.” The trunk was then opened and the aroma of raw marijuana and talcum powder became stronger. The officer observed nine dark green trash bags sealed with silver tape and a brown paper bag.2 The officer then tore a hole in one of the trash bags so that he “could see inside of it,” although he “knew what was in them.” The bags were then removed from the car and put in police department evidence lockers and the car was impounded.
The trial court denied motions to suppress, and later found the defendant guilty of possession of marijuana with the intent to distribute. The Court of Appeals (Andrews, J., dissenting) reversed the trial court; holding that the warrantless search of the containers was unconstitutional. The majority now reverses the Court of Appeals.
The major flaw of the majority opinion is the majority’s refusal to follow the clear mandate of the United States Supreme Court in Arkansas, supra, and Robbins, supra.
In Arkansas, the United States Supreme Court was presented with the issue of whether the warrantless search of the defendant’s suitcase fell under either the Chadwick, supra, (search of a locked footlocker located in the trunk of an automobile is unlawful) or the Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (automobile exception cases), interpretation of the Fourth Amendment. The Court opted toward applying Chadwick and refused the State’s insistence to extend the Carroll/Chambers cases to allow warrantless searches of everything found within an automobile, as well as the automobile itself. Arkansas, supra.
The Court unequivocally stated that their decision in Arkansas meant “only that a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.” Id. 442 U.S. at 765 n. 13, 99 S.Ct. at 2594 n. 13 (emphasis added).
Again, on January 19, 1981, the United States Supreme Court granted certiorari in Robbins v. California, supra, because of the continuing uncertainty as to whether closed containers found during a lawful warrant-less search of an automobile may, themselves, be searched without a warrant. The Court in Robbins recognized that “[i]n recent years, we have twice been confronted with the suggestion that this ‘automobile exception’ somehow justifies the warrant-less search of a closed container found inside an automobile.” Id. at 2844-45. The Court then acknowledged that, in Arkansas, supra, and Chadwick, supra, the Court had refused to accept the suggestion. The Court stated: “Those cases [Arkansas and Chadwick] made clear, if it was not clear before, that a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else.” Id. at 2845.
The Court then proceeded to analyze the facts in Robbins (which are indistinguishable from our case) and concluded:
Although the two bricks of marihuana were discovered during a lawful search of the petitioner’s car, they were inside a closed, opaque container. We affirm today that such a container may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile. [Emphasis added.]
Id. at 2847.
Thus, as late as July 1, 1981, the United States Supreme Court has ruled that the “automobile exception” to the warrant requirement DOES NOT justify a warrant-less search of the containers located in the luggage compartment of an automobile. We are required by law to follow the precedent set by the United States Supreme Court. Bourguet, supra; Silva, supra. Yet, the majority takes the same theory which has been consistently rejected by the United States Supreme Court and attempts to justify the search in this case. The majority opts toward citing a single federal court decision, United States v. Milhollan, 599 F.2d 518 (3d Cir. 1979), which was decided three months before Arkansas, supra, and which is not on point,3 to justify their position, although the United States Supreme Court subsequently decided Robbins, supra, which is directly on point with our case.
In Robbins, after a valid stop, the police officer found roaches, tweezers, marijuana seeds and a plastic baggie containing marijuana in the passenger compartment of the defendant’s car. While searching the passenger compartment, Robbins told the officer, “What you are looking for is in the back.” The officer then opened the luggage compartment of the car and found several containers and unwrapped them. The containers were described as being wrapped or boxed in an opaque material sealed on the outside with a strip of opaque tape. The containers resembled oversized cigar boxes. The Court reaffirmed that “such a container may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile.” (Emphasis added.) Id. at 2847.
The Court rejected the California Court of Appeals’ reasoning that “[a]ny experienced observer could have inferred from the appearance of the packages that they contained bricks of marijuana.” People v. Robbins, 103 Cal.App.3d 34, 40, 162 Cal. Rptr. 780, 783 (1980). We, too, should not rely on the experience of the officer. The United States Supreme Court’s rationale in Robbins was twofold. One, the officer’s vague testimony (not inexperience) failed to establish that the packages could only contain marijuana. Two, the configuration of the packages failed to establish that they could only contain marijuana. To that end, the Court stated:
Expectations of privacy are established by general social norms, and to fall within the second exception of [footnote 13 in Arkansas, infra] a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. If indeed a green plastic wrapping reliably indicates that a package could only contain marihuana, that fact was not shown by the evidence of record in this case.2 [Emphasis added.]
Robbins v. California, 101 S.Ct. at 2847. The Court, in footnote 2, noted that Judge Rattigan wrote in his dissenting opinion that the containers could have been books, canned goods or any number of other innocuous items, and that, in fact, the containers resembled a carton of emergency highway flares that he carried in his trunk.
In the case at bar, the facts reveal that defendant has an even stronger factual basis to support a reasonable expectation of privacy under Robbins, supra. After the trunk of the car was opened, Officer Privetts testified that he saw nine bundles or packages wrapped in dark green plastic trash bags completely sealed with an opaque tape. In fact, each bundle was triple wrapped and taped with an opaque tape. When asked to describe the bags, the officer answered:
They were (pause) a standard trash bag (indicating) like they use for packaging marijuana. It’s a plastic trash bag. I don’t know how to explain it to you.
The district judge then asked the officer to give an approximate height, width and depth of the bags, to which the officer responded:
They were taped up. The packages were approximately twenty-four inches by twenty-four inches by twelve inches thick.
The officer then proceeded to testify that, in his experience, that was a common method of packaging marijuana. Yet, no definite configuration was given of the containers. In fact, the officer testified that he could not describe the bags.
Admittedly, not all containers are deserving of Fourth Amendment protection. This was stated by the United States Supreme Court in footnote 13 of Arkansas, supra.
Footnote 13 provides in pertinent part: Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant. [Citation omitted.]
Id. 442 U.S. at 764-65, 99 S.Ct. at 2593.
The Court in Robbins, supra, after quoting the footnote, explained its meaning by stating:
The second of these exceptions obviously refers to items in a container that is not closed. The first exception is likewise little more than another variation of the “plain view” exception, since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents.
Id. at 2846.
What Robbins holds is that the “distinctive configuration” or “transparency” of a container must clearly announce the contents of the container for it to be in plain view. In Robbins, a brick-shaped container wrapped in opaque plastic did not clearly announce that the container only had marijuana. In the case at bar, the officer’s vague testimony as to the configuration of the containers does not establish that the bags could only contain marijuana. As the district judge noted for the record, the type of bag in the case at bar, wrapped the way it was, is like a trash bag or paper bag he uses to carry laundry in his trunk. The officer also testified that the bags could be used for any number of other purposes.
In addition, the United States Supreme Court, for purposes of the Arkansas, supra, analysis, attached no significance to the fact that Robbins told the officer that what he was looking for was in the back of his car. Nor should we attach any significance to the driver’s statement that they had dope.
In my judgment, Robbins is controlling and supports the reasonable expectation of privacy the defendant has in these triwrapped and sealed containers. The officer should have proceeded to obtain a search warrant. The fact that the containers were in an automobile does not justify a search of the containers absent exigent circumstances. The State does not allege that there were exigent circumstances to search the bags.
The majority, however, citing Milhollan, supra, persist in arguing that, since the automobile was mobile and the discovery of the bags was unexpected, there were exigent circumstances to justify application of the automobile exception to the warrant requirement. I disagree with this argument.
The United States Supreme Court has delineated what constitutes an “exigency” for searching closed, opaque containers found during the lawful warrantless search of an automobile. In Arkansas, supra, at footnote 11, the Court acknowledged that certain “special exigencies would justify the warrantless search of a suitcase and cited Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), where the police had reason to believe that the automobile contained a weapon. The Court then went on to state that “such exigencies will depend upon the probable contents of the luggage and the suspect’s access to those contents — not upon whether the luggage is taken from an automobile.” Arkansas 442 U.S. at 763, n. 11, 99 S.Ct. 2593, n. 11. Thus, where police officers, without endangering themselves or risking loss of the evidence, lawfully detain a person suspected of criminal activity and secure the containers in the suspect’s automobile, the officers should delay the search of the containers until having obtained judicial approval to do so. Id.
Albeit, the majority states that, since Officer Privetts did not seize the bags, he could search them. This is nothing more than sophistry. The majority tells all police officers that they can rummage through all containers located in an automobile undergoing a lawful warrantless search, so long as they do not “seize” the containers. The rationale of the majority is that the automobile is “mobile.” This is wrong. The only question is whether the officer should have taken the bags along with the defendants to the police station and then should have obtained a warrant to search the bags, rather than immediately searching the bags without a warrant. Both Robbins, supra, and Arkansas, supra, hold that the former must be done. While automobiles, and containers therein, may both be mobile, containers, themselves, may be brought and kept under the control of the police. Robbins.
The officer, in the case at bar, should have followed appropriate police procedures and should have obtained a search warrant. The bags were in the exclusive control of the Artesia Police Department from the moment of arrest, and Officer Privetts had no reason to believe that the bags contained any items which may have been inherently dangerous to him. In fact, the driver dispelled the officer of any concern of danger. To require Officer Privetts to impound the sealed bags and obtain a warrant to search the bags’ contents creates no great hardship. The officer, defendants and the bags were all headed to the police station immediately following the arrest and unlawful search. When weighed against the deprivation of constitutional guarantees, such a requirement of obtaining a warrant from a neutral magistrate is a minimal hardship. In my judgment, the officer had probable cause but no exigent circumstances. If probable cause dispensed with the necessity of a warrant, as. the majority states, then one would never be required. The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required by our constitutions. Arkansas, supra. An illegal search cannot be justified by what it uncovers. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
Furthermore, although the New Mexico Legislature and other political bodies have made the “exclusionary rule” a target for a deathblow, that should be of no significance to the disposition of this case. We are not to decide these cases on the basis of what may be popular in the communities of our nation; we must decide these cases on their constitutional merit.
The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), guarantees to all citizens “[t]he right * * * to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * U.S.Const.amend. IV. No doubt, when examining a Fourth Amendment issue, courts have an arduous duty of determining now much protection to afford an individual citizen without unduly hampering the efforts of police to maintain peace and order. What is involved is the merits of individual rights versus the security of the remainder of the community. However, unless courts protect against infringement of individual rights, it is the community which must ultimately suffer; to protect the innocent from unreasonable invasions, courts must enforce the constitutional rights of the accused.
The United States Supreme Court has unhesitatingly asserted that the right of privacy and personal security protected by the Fourth Amendment are to be regarded as of the very essence of constitutional liberty. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Thus, searches for evidence of crime demand the greatest, not the least, restraint upon an officer’s intrusion into privacy. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The exclusionary rule is required not only in hope of deterring unconstitutional searches, but it is also required to vindicate the right of privacy guaranteed all individuals by the Fourth Amendment. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (Brennan, J., concurring opinion).
There exist countless cases on record in which officers, either from their over-zealous efforts to enforce the law or solve a crime, or because of their particular dislike of members of a certain minority group, commit acts which violate our constitution. For example, in State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App.1970), the Court of Appeals stated that, since nothing had been seized as a result of the unlawful rummaging through drawers of the defendant, no issue as to the exclusion of improperly-seized evidence was before them. In fact, in the case at bar, the officer admitted under oath that it is his standard practice to speak with defendants, knowing they have an attorney but without checking with the attorney, to investigate further the matter in question. This is contrary to a defendant’s Sixth Amendment right to counsel.
I intend these examples simply as illustrations that courts must continually enforce constitutional rights as a reminder that such fundamental rights are not to be violated. Once we commence lowering the barriers of constitutional protections because of a particular defendant’s guilt, then we lower the barriers for all, and for the countless number of people who may be unduly harassed by officers from whom we never hear because of their innocence, and because they chose to endure the harassment rather than speak up.
For the foregoing reasons and, more particularly, because we are mandated to follow the United States Supreme Court rather than reverse it sub silentio, I respectfully dissent.
. On April 11, 1980, this Court denied appellee’s writ of certiorari which challenged the Court of Appeals’ memorandum opinion upholding the validity of this stop. (No. 13,032).
. It is unclear by the testimony whether the brown bag was closed or open.
. The target theory espoused in the Milhollan case supports a holding suppressing the evidence in this case. The court therein held that the satchel which was found in the passenger compartment of the automobile was not a target of the search since the police had no “inkling” that the satchel, by itself, contained relevant evidence. In this case, the officer had an “inkling” (vague notion) of what was in the sealed bags. Thus, absent exigent circumstances, the officer should have obtained a search warrant from a neutral and detached judge.