State v. Ponce

• Decision Date: 21 September 2004
• Docket Number: No. 23,193.,23,193.
• Citation: 103 P.3d 54,136 N.M. 614
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael PONCE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

103 P.3d 54

136 N.M. 614

STATE of New Mexico, Plaintiff-Appellee, v. Michael PONCE, Defendant-Appellant.

No. 23,193.

Court of Appeals of New Mexico.

September 21, 2004.

Certiorari Granted December 6, 2004.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 28,917, December 6, 2004.

OPINION

SUTIN, Judge.

{1} While meeting his appointment with his probation officer, Defendant Michael Ponce was arrested for a probation violation. He had tested positive for alcohol three days earlier. The probation officer conducted a patdown search that produced vehicle keys which then ultimately led to a search of Defendant's vehicle where cocaine was found. Defendant appeals the denial of his motion to suppress. He attacks the arrest and the search. We affirm.¹

BACKGROUND

{2} Defendant was on probation for prior aggravated assault and aggravated battery convictions. A special condition of his probation required him to participate in the Probation and Parole Division's (PPD) Intensive Supervision Program (ISP). See NMSA 1978, § 31-21-13.1(A) (1991) (defining intensive supervision programs for probation). Another special condition of Defendant's probation was that he was not allowed alcohol. When Defendant reported to the PPD office on February 8, 2001, he was arrested because a urinalysis performed three days earlier, on February 5, 2001, and received by the probation office on February 7 or 8, 2001, was positive for alcohol. The arrest was pursuant to an "arrest order" prepared by Probation Officer Garnand on which Officer Garnand checked off boxes indicating that Defendant was arrested both because he was a risk to himself and a risk to the public.

{3} A patdown was conducted after Defendant was arrested, producing $985 in cash, two cell phones, and a set of car keys. Officer Garnand asked Defendant how he came to get that kind of money, and Defendant said that he had picked up his last paycheck. The officer thought the sum of money was unusual because she thought based on a conversation with Defendant that Defendant was not employed.² Defendant was also asked how he had arrived at the probation office, and Defendant said that his friends had dropped him off. Another probation officer, Officer Borunda, took Defendant's keys outside and matched what appeared to be a Chevrolet key to a Chevrolet Suburban in the parking lot across the street by trying the key in that vehicle's door lock and unlocking the door with the key. Afterwards, Officer Borunda told Officer Garnand about the match, and Officer Garnand asked Defendant if the vehicle belonged to Defendant and why he had lied about how he got to the office. Officer Garnand did not recall what Defendant stated, other than that Defendant admitted the vehicle was his. Probation officers then searched the vehicle and discovered contraband, after which a police officer was summoned and filed a criminal complaint against Defendant.

{4} Defendant sought suppression of the evidence obtained from the search of the vehicle on the grounds his rights under the United States and New Mexico Constitutions were violated. He asserted in his motion (1) that he was arrested in violation of New Mexico Probation and Parole Division (PPD) Administrative Regulation PPD-215 which sets out PPD policy and procedure regarding arrests of petitioners, and (2) that the searches of Defendant and his vehicle were conducted in violation of PPD Regulation PPD-214 which sets out policy and procedure regarding searches, in that the probation officer did not have reasonable cause to determine if one of the keys in Defendant's possession unlocked any of the vehicles in the parking lot outside, and did not have reasonable cause to search inside the vehicle. After an evidentiary hearing, the district court denied Defendant's motion to suppress on the ground that the probation officers had reasonable cause to arrest Defendant and search the vehicle.

{5} Defendant raises two points on appeal: (1) the arrest and searches were unconstitutional because they violated standards in the probation division regulations; and (2) the probation officers failed to read him his Miranda rights before questioning him after his arrest.

DISCUSSION

Standard of Review and Burdens

{6} We review the legality of a seizure and of a subsequent search questioned in a suppression hearing as mixed questions of law and fact, we review any factual questions under a substantial evidence standard, and we review the application of law to the facts de novo. State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Werner, 117 N.M. 315, 316-17, 871 P.2d 971, 972-73 (1994); State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994). In reviewing the application of law to facts, we view the facts in a manner most favorable to the prevailing party. State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856; State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983). {7} A defendant moving to suppress evidence has the burden to come forward with evidence to raise an issue as to an illegal search and seizure. State v. Gardner, 95 N.M. 171, 175, 619 P.2d 847, 851 (Ct.App.1980). In the face of a defendant's challenge to the constitutionality of a warrantless arrest or search, the State is required to present testimony or other evidence showing that the arrest or search met constitutional muster. See State v. Duran, 2003-NMCA-112, ¶ 15, 134 N.M. 367, 76 P.3d 1124 ("[D]efendants have the burden to raise an issue as to their illegal search and seizure claims. Once they have done so, the burden shifts to the [S]tate to justify the warrantless search [or seizure]." (alteration in original) (internal quotation marks and citation omitted)), cert. granted, Sup.Ct. No. 28,241, 134 N.M. 320, 76 P.3d 638 (Sept. 3, 2003); State v. Gallegos, 2003-NMCA-079, ¶ 12, 133 N.M. 838, 70 P.3d 1277 ("It is the State's burden to prove the existence of circumstances justifying a warrantless search."), cert. granted, Sup.Ct. No. 28,068, 133 N.M. 771, 70 P.3d 761 (Jun. 6, 2003); State v. Diaz, 1996-NMCA-104, ¶¶ 8-9, 122 N.M. 384, 925 P.2d 4 (stating that "[a] search and seizure conducted without a warrant is unreasonable unless it ... fall[s] within one of the exceptions to the warrant requirement" and that under the consent exception, the State "has the burden of establishing common authority"); State v. Valencia Olaya, 105 N.M. 690, 694, 736 P.2d 495, 499 (Ct.App.1987) ("The government has a heavy burden when it seeks to justify warrantless arrests and searches.").

Applicable Probation-Related Statutes, Regulations, and Orders

{8} "Probation is the release by the court without imprisonment of an adult defendant convicted of a crime." State v. Chavez, 94 N.M. 102, 103, 607 P.2d 640, 641 (Ct.App.1979) (internal quotation marks omitted). It constitutes "a form of conditional liberty intended to alleviate the aspects of punishment by incarceration," and "[i]t offers rehabilitation and restoration to society." Id. "The broad general purposes of probation are education and rehabilitation" of the defendant. State v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct.App.1983). It is an act of clemency and is not meant to be painless. Id. In order to effectuate a probationer's rehabilitation, a sentencing court may impose conditions that have as their objective the deterrence of further misconduct. Id.

{9} The Legislature has expressly determined procedures to bring a person on probation before the court for violation of a condition of probation. Under NMSA 1978, § 31-21-15(A) (1989), three alternative procedures may be employed: (1) a court-issued warrant; (2) a court-issued notice to appear; and (3) arrest without a warrant by an authorized probation officer. The third alternative, in pertinent part, reads:

the director [of the field services division of the corrections department or any employee designated by him] may arrest a probationer without warrant or may deputize any officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the director, violated the conditions of his release. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer.

§ 31-21-15(A)(3); NMSA 1978, § 31-21-5(E) (1991).

{10} The "board," presumably the parole board, is required under NMSA 1978, § 31-21-21 (1963) to "adopt general regulations concerning the conditions of probation which apply in the absence of specific conditions imposed by the court." See § 31-21-5(D); NMSA 1978, § 33-1-7 (1977). Section 31-21-21 further reads:

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. The board may recommend and by order the court may impose and modify any conditions of probation. The court shall transmit to the board and to the probationer a copy of any order.

(Alteration in original.) In Gardner, in addressing differences between (1) search provisions contained in a State of New Mexico Probation Department's Manual of Instructions for Officers and (2) a probation order entered in the case before the Court on appeal, this Court held that Section 31-21-21 authorized specific court-imposed conditions of probation, and that those conditions of probation override administrative regulations. Gardner, 95 N.M. at 173-74, 619 P.2d at 849-50.

{11} PPD Regulation 215 states a policy that...