1997 -NMCA- 90, State v. Marquart

• Decision Date: 30 July 1997
• Docket Number: No. 17767,17767
• Citation: 1997 NMCA 90,123 N.M. 809,945 P.2d 1027
• Parties: , 1997 -NMCA- 90 STATE of New Mexico, Plaintiff-Appellee, v. Raymond MARQUART, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1027

945 P.2d 1027

123 N.M. 809, 1997 -NMCA- 90

STATE of New Mexico, Plaintiff-Appellee, v. Raymond MARQUART, Defendant-Appellant.

No. 17767.

Court of Appeals of New Mexico.

July 30, 1997.

Certiorari Denied Sept. 17, 1997.

[123 N.M. 810] Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

T. Glenn Ellington, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

OPINION

DONNELLY, Judge.

¶1 In this appeal we examine the issue of whether the trial court erred in revoking Defendant's probation based, in part, on the basis of evidence obtained from an allegedly illegal search of Defendant's person and vehicle. Because we find that the exclusionary rule of Article II, Section 10 of the New Mexico Constitution applies in probation revocation hearings, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 On June 17, 1996, Officer Paul Martino of the City of Tucumcari Police Department stopped Defendant for not wearing his seat belt. Martino testified that, as he approached Defendant's vehicle, both Defendant and his passenger, Gary Olguin, appeared to be acting in a "suspicious manner." The officer asked Defendant and Olguin to exit the vehicle because the officer stated he was concerned for his own safety. When Defendant got out of the vehicle, the officer saw that the vehicle had been "hot-wired." Martino then asked Defendant for his driver's license, proof of insurance, and registration. Defendant was unable to produce the items and told Martino that his license had been suspended.

¶3 Martino stated that he then conducted a pat-down search of Defendant because he continued to be concerned for his own safety. During this search, the officer testified he felt something bulky. Continuing with the search, Martino removed a small change purse from Defendant's rear, right pocket and unzipped it. Inside the purse he found a white envelope which he also opened. The envelope contained a white powdery substance which subsequently tested positive for methamphetamine.

¶4 Martino then asked Defendant if he could search the vehicle. He testified that Defendant gave his consent. In addition to the items found on Defendant's person, the officer found three hypodermic needles in a bag situated inside the vehicle. Following the discovery of these items, Defendant was placed under arrest. Martino then ran a computer check and verified that Defendant's license had been suspended.

¶5 At the time of this arrest, Defendant was on probation for prior drug-related offenses. Defendant had previously pled guilty to possession of methamphetamine, possession of drug paraphernalia, driving on a revoked license, and possession of marijuana, all growing out of a prior incident which occurred on August 29, 1995. As a result of the August 1995 charges, Defendant had received a suspended sentence and had been placed on probation for a period of eighteen months.

¶6 Following Defendant's June 17, 1996, arrest, the State moved to revoke Defendant's probation. At his probation revocation hearing, Defendant objected to the use of evidence which he claimed to have been illegally seized. Defendant asserted that Officer Martino's search was unconstitutional and all evidence seized as a result of the search was "fruit of the poisonous tree." He argued that the trial court erred in considering evidence illegally obtained and that the only evidence which should have been considered at the hearing to revoke probation related to his violations of the Motor Vehicle Code. The trial court responded, "We really didn't have a motion to suppress, that would be addressed to the underlying charge.... This was not a suppression hearing. This was a motion for probation revocation." The trial court proceeded to revoke Defendant's probation. The trial court found that Defendant had violated the terms of his probation by possessing a controlled substance, possessing drug paraphernalia, and driving while his license was suspended or revoked.

ANALYSIS

¶7 Defendant contends that the exclusionary rule applies to probation revocation hearings because the rule protects his constitutional right to be free from unreasonable searches and seizures pursuant to Article II, Section 10 of the New Mexico Constitution. In addressing this issue, both parties correctly observe that the question of whether the exclusionary rule applies in a probation revocation proceeding constitutes an issue of first impression in New Mexico. In examining the merits of this argument, we review the constitutional issue de novo. State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) (applying de novo review to threshold constitutional issues).

¶8 Defendant, although acknowledging that the trial court could properly revoke his probation on any of the three grounds found by the court, argues that absent evidence of the drug and drug paraphernalia charges, it was questionable as to whether the trial court would have ordered the revocation of his probation solely on the driving charges. He emphasizes, for instance, that the trial court stated it would have considered some alternative treatment had the facts shown that there had been merely "a technical violation of his probation agreement or some other matter."

¶9 The State argues that New Mexico's exclusionary rule does not apply to probation revocation hearings because such proceedings are not criminal prosecutions or trials. It points out correctly that this Court has held that the full panoply of rights possessed by a defendant in a criminal prosecution do not apply in probation revocation proceedings. See State v. Sanchez, 109 N.M. 718, 719, 790 P.2d 515, 516 (Ct.App.1990). Instead, the State contends only minimum due process requirements must be met. See id. Responding to these contentions, Defendant argues, however, that, although all of the rights possessed by an accused in a criminal prosecution do not apply in probation revocation hearings, nevertheless, Article II, Section 10 of the New Mexico Constitution requires application of the exclusionary rule at probation revocation hearings, where the evidence in question is obtained as a result of an illegal search and seizure. The latter constitutional provision provides:

The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.

¶10 Courts in other jurisdictions that have considered the question of whether the exclusionary rule applies to probation revocation proceedings have reached differing results. See generally Phillip E. Hassman, Annotation, Admissibility, In State Probation Revocation Proceedings, of Evidence Obtained Through Illegal Search and Seizure, 77 A.L.R.3d 636 (1977 & Supp.1996). Courts which have declined to apply the exclusionary rule in probation revocation proceedings have generally followed the rationale applied by a majority of federal circuits which have held that the exclusionary rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights through its deterrent effect, and that the rule does not bestow a personal constitutional right upon an aggrieved party. See, e.g., United States v. Bazzano, 712 F.2d 826, 830-34 (3d Cir.1983) (en banc) (discussing deterrence rationale of Fourth Amendment exclusionary rule as applied to probation revocation); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir.1978) (holding Fourth Amendment exclusionary rule inapplicable to probation revocation proceedings). But see United States v. Workman, 585 F.2d 1205, 1211 (4th Cir.1978) (determining rule applicable to parole revocation hearing).

¶11 State courts that have followed the approach of a majority of the federal circuit courts have similarly concluded that the exclusionary rule should not apply in probation revocation hearings. Courts which have applied this result generally apply a balance of interest analysis utilized by the United States Supreme Court to determine whether to extend the reach of the exclusionary rule. See United States v. Calandra, 414 U.S. 338, 349-52, 94 S.Ct. 613, 620-22, 38 L.Ed.2d 561 (1974) (considering whether to extend exclusionary rule to grand jury proceedings). In resolving the question of whether to apply the exclusionary rule to probation revocation proceedings, state courts have frequently sought to weigh the prophylactic effect of the exclusionary rule against the perceived adverse effect the application of such rule would impose upon the rehabilitative objectives of the probationary process and the requirements of judicial integrity. See State v. Turner, 257 Kan. 19, 891 P.2d 317, 320 (1995); see also State v. Sears, 553 P.2d 907, 913 (Alaska 1976); State v. Alfaro, 127 Ariz. 578, 623 P.2d 8, 9 (1980) (en banc); McGhee v. State, 25 Ark.App. 132, 752 S.W.2d 303, 304-05 (1988); People v. Wilkerson, 189 Colo. 448, 541 P.2d 896, 898 (1975) (en banc); Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, 507 (1988); People v. Dowery, 20 Ill.App.3d 738, 312 N.E.2d 682, 687 (1974), aff'd, 62 Ill.2d 200, 340 N.E.2d 529 (1975); Dulin v. State, 169 Ind.App. 211, 346 N.E.2d 746, 751 (1976); Tiryung v. Commonwealth, 717 S.W.2d 503, 504 (Ky.Ct.App.1986); Chase v. State, 309 Md. 224, 522 A.2d 1348, 1362 (1987); Commonwealth v. Olsen, 405 Mass. 491, 541 N.E.2d 1003, 1006 (1989); People v. Perry, 201 Mich.App. 347, 505 N.W.2d 909, 911-12 (1993); State v. Field, 132 N.H. 760, 571 A.2d 1276, 1279-80 (1990); Richardson v. State, 841 P.2d 603, 605 (Okla.Crim.App.1992) ¹; Spratt, 386 A.2d at 1095-96; Johnson v. Commonwealth, 21 Va.App. 172, 462 S.E.2d 907, 909-10 (1995).

¶12 Other courts...