Officers actively assisting a bailbondsman in apprehending the defendant made the entry one governed by the Fourth Amendment. The state was also held to have waived standing by not asserting it in the trial court. State v. Gutierrez, 2008 NMCA 18, 143 N.M. 422, 176 P.3d 1154 (N.M. App. 2007), certiorari granted, 176 P.3d 1130 (N.M. 2008):
[*19] When we consider Defendant’s argument, we find persuasive the reasoning of the Maryland Court of Special Appeals and Court of Appeals that when an officer’s “stand by service” to assist a bail bondsman in apprehending a fugitive becomes “more than mere presence,” the officer’s participation converts the bail bondsman into a state actor such that the requirements of the Fourth Amendment apply to all participants. See Collins v. State, 138 Md. App. 300, 771 A.2d 478, 484-85 & n.3 (Md. Ct. Spec. App. 2001), aff’d, 367 Md. 700, 790 A.2d 660, 670-72 (Md. 2002); see also Ryon, 2005 NMSC 5, P 23, 137 N.M. 174, 108 P.3d 1032 (“Warrantless searches and seizures [by government actors] inside a home are presumptively unreasonable, subject only to a few specific, narrowly defined exceptions.”). We have recently stated that “[r]ecognized exceptions to the warrant requirement include exigent circumstances, searches incident to arrest, inventory searches, consent, hot pursuit, open field, and plain view.” Weidner, 2007 NMCA 63, P 6, 141 N.M. 582, 158 P.3d 1025. As discussed above, none of these exceptions applies in the present case. We see no reason to create a new exception that would allow police officers to circumvent the warrant requirement by “piggybacking” on any arguable authority of a bail bondsman to enter a private home to arrest a principal. Moreover, we note, as was the case in Collins, 771 A.2d at 485 n.3, the record does not reflect that the residence in which Defendant was found was his residence, thereby decreasing the arguability of the bail bondsman’s authority to enter this particular home. See State v. Lopez, 105 N.M. 538, 543, 734 P.2d 778, 783 (Ct. App. 1986). We therefore hold that, absent a warrant or the existence of a recognized exception to the warrant requirement, merely accompanying a bail bondsman to apprehend a bonded accused does not automatically give police officers constitutional authority to enter private homes.
[*20] In reaching this conclusion, however, we note that we do not discourage officer assistance in apprehending a bonded accused. An officer may respond to a request for assistance by a bail bondsman, but the response must be limited to actions that are lawful under the Fourth Amendment to the United States Constitution or Article II, Section 10 of the New Mexico Constitution. For example, when an officer, without either a search warrant or the existence of an exception to the warrant requirement, is asked to remain present outside of or near a home in order to ensure the safety of a private citizen, the officer’s actions constitute “benign attendance” and “mere acquiescence … to `stand by in case of trouble.'” United States v. Coleman, 628 F.2d 961, 964 & n.1 (6th Cir. 1980) (reversing the suppression of evidence that was obtained when police officers, standing by while a private citizen repossessed a vehicle, remained in their police unit about a block away from the debtor’s home, were engaged in “passive surveillance,” and did not actively participate in the repossession of the vehicle). In such a case, the officer would merely be protecting the safety of the public, and the Fourth Amendment would not be implicated. See id. The officer’s presence outside the home would allow him or her to monitor the situation and to spring into action when appropriate. In contrast, the officers in the present case aggressively participated in the entry and search of the home to apprehend Defendant without either a warrant or the existence of an exception to the warrant requirement. The fact that the bail bondsman might have legitimately feared for his safety did not serve to allow the officers to ignore the requirements of the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution by unconstitutionally assisting him in arresting Defendant in the third party’s home.
Comment: New Mexico cases are not released until after state cert is granted or denied. Here, it was granted.
Randolph applies to a storage unit. A person using the storage unit with the permission of the renter was asked for consent and refused, so the renter was asked. The target’s refusal was binding. United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008).
Defendant did not show standing in the place to be searched to challenge the search. Alternatively, there was probable cause for the search shown to support the warrant. United States v. Morrison, 2008 U.S. Dist. LEXIS 11752 (E.D. Mo. February 15, 2008).*
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
