Torres v. Glasgow
| Decision Date | 13 June 1969 |
| Docket Number | No. 289,289 |
| Citation | 1969 NMCA 53,456 P.2d 886,80 N.M. 412 |
| Parties | Xavier TORRES, Plaintiff-Appellant, v. Bruce GLASGOW, Frank Turkal, Jack Love, and John Bradford, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
This is an appeal by plaintiff from a summary judgment entered in favor of all defendants. We affirm.
Plaintiff brought suit to recover damages for the alleged wrongful issuance and service of a search warrant.
Defendant Love was at all times material hereto an Assistant District Attorney of Bernalillo County. On July 12, 1966, Mrs. Victoria Gonzales made a complaint to Love in affidavit form in which she stated that at about 4:00 p.m. on July 11, 1966, in the County of Bernalillo, she gave plaintiff permission to take three of her children to the store for ice cream; shortly thereafter the two older children were returned, but Max Torres, who was four years of age, was not returned to her; the older children, whose ages were eight and ten years, had told her that plaintiff brought them home in his automobile but had taken the four-year-old child with him; the child had been in her custody at all times since his birth; she had never been married to plaintiff; plaintiff was intentionally confining or restraining the child without consent and with knowledge on the part of plaintiff that he had no lawful authority to so confine or restrain the child.
Plaintiff and Victoria Gonzales are the parties to the custody suit involved in Torres v. Gonzales, 80 N.M. 35, 450 P.2d 921 (1969). The child, whose custody was in issue in that suit, is the four-year-old child here involved. That custody suit was filed in Colfax County on July 26, 1966.
Pursuant to the affidavit of Mrs. Gonzales, Mr. Love authorized the filing of a criminal complaint by her against plaintiff in Bernalillo County, charging plaintiff with false imprisonment of the child contrary to the provisions of § 40A--4--3, N.M.S.A.1953.
Defendant posted bail and appeared in Bernalillo County for a preliminary hearing on the charge of false imprisonment, which is a fourth degree felony. However, he did not return the child.
On July 20, 1966, Love executed a written affidavit for a search warrant for the recovery of the child from the possession of plaintiff. This affidavit recited in detail what Love had been told by Victoria Gonzales concerning the taking of the child by plaintiff; that plaintiff was residing at the Turf Motel in Raton; that plaintiff's attorney had admitted to Love that plaintiff had the child in Raton; and what had transpired in the criminal case. This affidavit was typed on a form ordinarily used in petitioning for a search warrant for property, and is entitled 'Affidavit for Search Warrant.' It was presented to the Honorable John B. McManus, one of the district judges in Bernalillo County, who thereupon issued what is denominated a 'Search Warrant.'
This warrant was directed to the Sheriff or any constable of Bernalillo County or any State Police Officer. It described the child; recited that Love had reason to believe the child was at the Turf Motel in Raton or elsewhere in the City of Raton in the possession of plaintiff; recited that the District Judge was satisfied that the child was being concealed and possessed in the places described, and that grounds for the issuance of the warrant existed; and commanded that the officer or officers enter the places described, make a search for the child, and, if found, to take him into possession, to safely keep him until disposed of according to law, and to make return of the proceedings on the warrant without delay.
This 'Search Warrant' appears upon a printed search warrant form. The information as to the name and description of the child, where it was believed the child then was, and the reasons for Love's belief that the child was unlawfully concealed and possessed by plaintiff, was typed on this form. The printed form referred to 'property,' and, when read together with the language typed thereon, described the child as property for which the officers were to search and take into custody. However, it is apparent from a reading of the entire 'Search Warrant' that what the court was commanding the officers to do was to search for the child, take him into custody, keep him safely, and make a return of the proceedings on the warrant.
The warrant was placed by Love in the hands of Defendant Turkal, who was a Deputy Sheriff of Bernalillo County. Turkal proceeded to Raton for the purpose of executing the warrant. He located plaintiff and the child in a trailer house behind the Turf Motel. He introduced himself to plaintiff and handed plaintiff a copy of the warrant. Plaintiff stated he wished to call his attorney.
Turkal left and called Love for advice. Love advised him that he now had reasonable grounds to believe the child was in the trailer house, and that he should execute the warrant by taking the child. Love also advised him to stand by and not permit the child to be taken away, and that assistance would be on the way. Turkal then returned to the trailer house and waited until Defendant Glasgow arrived.
Love telephoned Defendant Bradford at Santa Fe, who was the Chief of the New Mexico State Police and knew Love to be an Assistant District Attorney in Albuquerque. Love advised Bradford of the foregoing stated facts, and, in addition thereto, that plaintiff claimed to be the father of the child, but had not contributed toward his support; no one in Raton had authority to hold the child; and that the Office of the District Attorney at Albuquerque took full responsibility for the actions taken.
Thereupon Bradford got in touch with Defendant Glasgow, a New Mexico State Police officer stationed at Raton, and requested that Glasgow locate and assist Turkal in executing the order.
Glasgow located Turkal, who pointed out the trailer house wherein the child was located. They knocked on the door and plaintiff, who was known to Glasgow, opened it. After several demands upon and refusals by plaintiff to deliver the child to them, they did take custody of the child.
Glasgow advised Bradford that the child had been recovered without incident, and that Turkal was returning him to Albuquerque.
This suit was then filed by plaintiff in Colfax County on July 27, 1966.
A hearing was conducted on August 11, before the Honorable C. R. McIntosh, District Judge at Raton. All parties appeared by counsel and agreed this was a hearing to show cause why defendants should not be required to return the child to plaintiff.
At the conclusion of the hearing, Judge McIntosh entered an order requiring defendants to forthwith make a return of their actions under the warrant to Judge McManus, and to obtain a ruling as to the disposition of the custody of the child, or to forthwith return the child to plaintiff.
A hearing was conducted before Judge McManus at Albuquerque on October 13, 1966, and he filed a written decision wherein he gave as his opinion:
As stated above, the custody suit involved in Torres v. Gonzales, supra, had been filed by plaintiff in Colfax County on July 26, 1966.
After the decision of Judge McManus was entered in Bernalillo County on October 13, 1966, defendants filed their motions for summary judgment in this cause. After hearing on these motions, Judge McIntosh entered summary judgment for defendants on July 17, 1968. His ruling was based on two grounds: (1) That Judge McManus' ruling was binding upon him, and (2) that the warrant was apparently valid on its face, with the result that defendants were immune from suit.
Plaintiff contends Judge McIntosh erred in not overruling the decision of Judge McManus and in holding that decision was binding upon Judge McIntosh. However, plaintiff's argument is directed toward the dismissal by the New Mexico Supreme Court of his appeal from the decision of Judge McManus, to which decision reference is above made. He also refers to his appeal in Torres v. Gonzales, supra, which was still pending at the time of the filing of his brief in chief in the present case.
His argument apparently is that because the Supreme Court dismissed his appeal from the decision of Judge McManus, he has been deprived of his right to a '* * * ruling on the legality of the procurement and service of the Search Warrant, * * *.'
We agree that plaintiff has not obtained an...
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