{ "id": 1575569, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Joshua GARDNER and Thaddeus Gardner, Defendants-Appellees", "name_abbreviation": "State v. Gardner", "decision_date": "1980-08-21", "docket_number": "No. 4573", "first_page": "171", "last_page": "175", "citations": [ { "type": "official", "cite": "95 N.M. 171" }, { "type": "parallel", "cite": "619 P.2d 847" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "521 F.2d 246", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 616233 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/521/0246-01" ] }, { "cite": "92 N.M. 643", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557157 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0643-01" ] }, { "cite": "87 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830945 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0400-01" ] }, { "cite": "573 F.2d 1074", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 913895 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/573/1074-01" ] }, { "cite": "488 P.2d 630", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1971, "opinion_index": 0 }, { "cite": "97 Cal.Rptr. 302", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "568 P.2d 1090", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1592180 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ariz/116/0192-01" ] }, { "cite": "116 Ariz.App. 192", "category": "reporters:state", "reporter": "Ariz. App.", "year": 1977, "opinion_index": 0 }, { "cite": "91 N.M. 386", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571155 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0386-01" ] }, { "cite": "521 F.2d 259", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 616131 ], "weight": 5, "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/521/0259-01" ] }, { "cite": "447 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189085 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0727-01" ] }, { "cite": "440 U.S. 741", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188710 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/440/0741-01" ] }, { "cite": "540 P.2d 245", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "opinion_index": 0 }, { "cite": "88 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838461 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0324-01" ] } ], "analysis": { "cardinality": 615, "char_count": 13299, "ocr_confidence": 0.809, "pagerank": { "raw": 2.3269889609886013e-07, "percentile": 0.7906520804880902 }, "sha256": "64c0f56345f491830a32e10bf0a3d764c3bd42230d328ebed7a530c0e397285e", "simhash": "1:639af309b98bb029", "word_count": 2055 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS and ANDREWS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Joshua GARDNER and Thaddeus Gardner, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendants\u2019 motion to suppress evidence was granted; the State appealed. Section 39-3-3(B)(2), N.M.S.A. 1978. There are two issues: (1) consent to search obtained in violation of administrative regulations, and (2) constitutional propriety of the search.\nAn indictment, filed in August, 1977, charged Joshua Gardner with trafficking in cocaine. Pursuant to a plea bargain, accepted by the trial court, Joshua pled guilty to possession of cocaine. Joshua was sentenced in April, 1978 to not less than one nor more than five years in the penitentiary; all but the first thirty days of this sentence was suspended. In connection with the suspension, Joshua was placed on probation for two years after serving the thirty-day sentence. The judgment, by Judge Wright, provides:\nThe Defendant is further subject to the following special terms of probation:\na. Defendant shall submit a urine sample at anytime upon the request of his probation officer.\nb. Defendant shall submit to a search of his car, person or residence at anytime upon request of his probation officer.\nc. Defendant shall not use or possess any drugs during the term of his probation.\nGeneral conditions of Joshua\u2019s probation required Joshua to obey state laws, and restricted his travel.\nSkis and ski clothing were stolen from a shop in Taos. Police officials received confidential information that Joshua, or Thaddeus, or both, had attempted to sell the stolen items in Albuquerque. Joshua\u2019s probation officer was notified.\nThe probation officer, the police chief, and an investigator went to Joshua\u2019s residence on November 5, 1979. After being informed (or reminded) by his probation officer that submission to search was a condition of probation, Joshua opened the trunk of his car. Items in the trunk were identified as stolen. The defendants were charged with receiving stolen property in violation of \u00a7 30-16-11, N.M.S.A. 1978.\nDefendants moved to suppress the stolen items recovered from the trunk of Joshua\u2019s car.\nConsent to Search in Violation of Administrative Regulations\nThe Manual of Instructions for Officers, issued by the State of New Mexico Probation Department provided:\nOfficers will not search the person, vehicle or home of clients....\nIf a search is necessary, then we should take our information to local law enforcement officials and they have their own procedures for securing and executing search warrants.\nJudge Caldwell, after an evidentiary hearing, granted the motion to suppress, finding that the search of the car trunk was with the voluntary agreement of Joshua, however, Joshua\u2019s agreement was obtained upon the basis of the special condition of Joshua\u2019s probation that he submit to a search. The trial court also found:\n3. That the Adult Probation Officer for this District, Gardner\u2019s immediate probation supervisor, acting under the color of his authority as a State Official, was the person who informed Gardner of the requirements of his probation agreement at the scene of the search and immediately prior to Gardner\u2019s acquiescence.\n4. That at the time of giving such information, the Probation Officer was specifically prohibited by the regulations of his department from conducting urder his authority any search without a warrant, and therefore was prohibited from being present and participating in the search in the manner done in this case. He was therefore without any legal authority to communicate the probation requirements to the Defendant in the manner done in this case in order to elicit Defendant\u2019s voluntary compliance to search.\nThis is not a case of a district judge refusing to give effect to decisions of another district judge. Compare Miller v. City of Albuquerque, 88 N.M. 324, 540 P.2d 245 (Ct.App. 1975). Judge Caldwell did not rule on the special probation conditions imposed by Judge Wright. Rather, Judge Caldwell ruled that the probation officer\u2019s participation in the search was in violation of administrative regulations and suppressed the evidence on that basis.\nA New Mexico court has the duty to enforce an agency regulation when compliance with the regulation is mandated by the federal or state Constitutions or state law. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); see United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980).\nDefendants point to no constitutional provision requiring probation officers to abstain from searches of probationers. They rely on statutory provisions that require the \u201cdirector\u201d to supervise probationers, direct the work of probation officers and formulate methods of supervision. See \u00a7\u00a7 31-21-5(E) (1980 Cum.Supp.) and 31-21-7, N.M.S.A. 1978. These statutory provisions do not, however, require a court to enforce the provisions of the manual concerning abstention from searches by probation officers.\nSection 31-21-21, N.M.S.A. 1978 provides:\nThe board [of probation and parole, \u00a7 31-21-5(D), supra] shall adopt general regulations concerning the conditions of probation which apply in the absence of specific conditions imposed by the court. All probationers are subject to supervision of the board unless otherwise specifically ordered by the court in the particular case. Nothing in the Probation and Parole Act [31-21-3 to 31-21-19 NMSA 1978] limits the authority of the court to impose or modify any general or specific condition of probation.\nInstead of requiring compliance with the provisions of the manual, \u00a7 31-21-21, supra, authorizes specific conditions of probation, imposed by the court, which override any general administrative regulations.\nA specific condition imposed by Judge Wright was that Joshua submit to a search of his car upon request of his probation officer. That specific provision overrode manual provisions directing that probation officers abstain from searches of probationers. The grounds stated by Judge Caldwell, for suppressing the evidence, were erroneous.\nConstitutional Propriety of the Search\nDefendants recognize that a probationer\u2019s rights concerning searches are more limited than the rights of a person not on probation. We agree. United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) states:\n[S]ome forms of search by probation officers are not only compatible with rehabilitation, but, with respect to those convicted of certain offenses such as possession and distribution of narcotics, are also essential to the proper functioning of a probationary system.\nDefendants also assert that in limiting a probationer\u2019s rights concerning searches, the limitation must be reasonable. Again, we agree. Consuelo-Gonzalez, supra.\nDefendants claim that Judge Caldwell reached the correct result in suppressing the evidence because the special conditions of . probation were unreasonable. We disagree.\nDefendants advance both legal and factual arguments in support of their unreasonableness claim.\nOne legal argument suggests that Judge Wright lacked authority to impose, as a condition of probation, the requirement that Joshua submit to a search upon request of his probation officer. Joshua was placed on probation in connection with a suspended sentence. Section 31-20-6(F), N.M.S.A. 1978 states that a defendant may be required to satisfy conditions \u201creasonably related to his rehabilitation.\u201d\nAnother legal argument is that the search requirement was not reasonably related to Joshua\u2019s rehabilitation. To be reasonably related, the probation condition must be relevant to the offense for which probation was granted. State v. Holland, 91 N.M. 386, 574 P.2d 605 (Ct.App. 1978). The special conditions of probation were to refrain from use or possession of drugs, submission of urine samples upon request, and submission to search upon request. Probation conditions reasonably related to rehabilitation must, of necessity, be flexible, because of uncertainty about how rehabilitation is accomplished. Consuelo-Gonzalez, supra. A condition of probation which requires a prior narcotics offender to submit to search is reasonably related to the probationer\u2019s prior criminal conduct and is aimed at deterring or discovering subsequent criminal offenses. State v. Jeffers, 116 Ariz.App. 192, 568 P.2d 1090 (1977); People v. Mason, 97 Cal.Rptr. 302, 488 P.2d 630 (1971). The search requirement was reasonably related to Joshua\u2019s rehabilitation after his conviction of possessing cocaine.\nAnother legal argument is that the search condition imposed by Judge Wright does not use the word \u201creasonable\u201d. Because of the absence of the word \u201creasonable\u201d in the special condition, defendants contend the condition, as actually imposed, was an \u201cunqualified right to ... search\u201d. The requirement to submit to a search must be \u201creasonable\u201d both under the Constitution, Consuelo-Gonzalez, supra, and under the statute, \u00a7 31-20-6(F), supra.\nDefendants may also be contending, as a matter of law, that the search condition is too broad to be enforced. If so, the contention is without merit. The condition does not require submission to search upon the request of police officers, but only upon the request of the probation officer. Consuelo-Gonzalez, supra. The requirement to submit to search \u201cat any time\u201d is subject to the requirement that the \u201ctime\u201d be reasonable. Compare United States v. Jeffers, 573 F.2d 1074 (9th Cir. 1978).\nDefendants suggest, as a matter of fact, that the search was unreasonable both as to time and manner. Nothing supports this claim. The probation officer, the police chief and the investigator went to Joshua\u2019s residence about noon and explained why they were there. Joshua did not want to open the trunk of his car, explaining that the contents of the trunk belonged to Thaddeus and Thaddeus should be the one to open the trunk. When reminded of the search condition, Joshua opened the trunk. This evidence shows reasonableness, both in time and manner.\nDefendants assert \u201cthe State made no attempt to establish, nor did it introduce any evidence, that the search ... was made within the probationary process.\u201d It was defendants\u2019 motion to suppress, not the State\u2019s. It was defendants, not the State, who had the burden of coming forward with evidence sufficient to raise an issue as to the \u201cillegal search and seizure\u201d claimed in the motion. See State v. Lujan, 87 N.M. 400, 534 P.2d 1112 (1975); State v. Cervantes, 92 N.M. 643, 593 P.2d 478 (Ct.App. 1979). Joshua\u2019s trial attorney attempted to meet this burden. It is appellate counsel who argue, incorrectly, that the state had the initial burden of producing evidence.\nDefendants point to no evidence that the search was outside the scope of the probationary process. The only evidence is that the probation officer questioned Joshua concerning the possibility of violating general conditions of Joshua\u2019s probation before the probation officer utilized the search condition. The evidence shows a search within proper probationary supervision.\nThe police chief and the investigator were primarily concerned with a new criminal offense, that of disposing of stolen property. The probation officer was concerned with the possible violation of several of the general conditions of Joshua\u2019s probation. The fact that there was cooperation between the probation officer and the police did not make the search illegal, because it was requested by the probation officer. When the search is at the probation officer\u2019s request, as it was in this case, the search was reasonable \u201cif the probation officer believes that a search is necessary to perform his duties properly.\u201d State v. Jeffers, supra. This sufficiently relates the probation officer\u2019s activity to the probationary process.\nAn additional question concerning the probation officer\u2019s activity would go to whether, in fact, the probation officer\u2019s activity was improper because a subterfuge for a criminal investigation by the police. As stated in Consuelo-Gonzalez, supra:\n[A] proper visitation by a probation officer does not cease to be so because he is accompanied by a law enforcement official. Nor is an ordinary law enforcement official precluded from seeking the probationer\u2019s consent to conduct a search provided no coercion, actual or threatened, is employed. The probationer\u2019s refusal to accede to such a request makes it necessary either that the matter be referred to the probation officer or that a warrant be obtained. However, under no circumstances should cooperation between law enforcement officers and probation officers be permitted to make the probation system \u201ca subterfuge for criminal investigations.\u201d See Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975).\nThere is no evidence, and no suggestion, that in fact the probation officer\u2019s request was a subterfuge for a police investigation.\nThe order suppressing evidence is reversed. The cause is remanded for trial.\nIT IS SO ORDERED.\nWALTERS and ANDREWS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Jeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.", "Mark A. Hirsch, Taos, for Joshua Gardner.", "Tony Lopez, Friedland, Simon, Lopez, Vigil & Nelson, Taos, for Thaddeus Gardner." ], "corrections": "", "head_matter": "619 P.2d 847\nSTATE of New Mexico, Plaintiff-Appellant, v. Joshua GARDNER and Thaddeus Gardner, Defendants-Appellees.\nNo. 4573.\nCourt of Appeals of New Mexico.\nAug. 21, 1980.\nWrit of Certiorari Denied Oct. 6, 1980.\nJeff Bingaman, Atty. Gen., Marcia E. White, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nMark A. Hirsch, Taos, for Joshua Gardner.\nTony Lopez, Friedland, Simon, Lopez, Vigil & Nelson, Taos, for Thaddeus Gardner." }, "file_name": "0171-01", "first_page_order": 203, "last_page_order": 207 }