NM: Game officer invited to sex offense search warrant unconstitutionally expanded search

While officers were investigating a sex crime, they saw wild animal parts, and they called a game officer to join in the search, and he questioned the defendant, too. That entry was outside the scope of the warrant, and the evidentiary value was not “immediately apparent” to the officers. He could object to the game officer as an extention of the search. State v. Moran, 2008 NMCA 160, 145 N.M. 297, 197 P.3d 1079 (2008):

[*13] Although Officer Jackson ultimately may have acquired information establishing probable cause to believe that some of the game animal parts were possessed unlawfully, the investigation during which Officer Jackson questioned Defendant and during which Defendant was unable to produce documentation of lawful possession occurred while Officer Jackson was present within Defendant’s home without a warrant and over Defendant’s objection. A search warrant does not completely nullify a homeowner’s Fourth Amendment rights, allowing law enforcement officers executing a search warrant to declare a private residence a law enforcement open house. During the execution of a search warrant, a homeowner retains residual constitutional privacy rights, including the right to object to the presence of persons whose presence is not reasonably related to the purposes for which the warrant was issued. See United States v. Showalter, 858 F.2d 149, 152 (3rd Cir. 1988) (affirming order suppressing “plain smell” olfactory observations of state troopers and DEA agents who accompanied U.S. Marshals conducting inventory search incident to civil forfeiture proceeding; emphasizing evidence that presence of state troopers and DEA agents was not necessary to the taking of the inventory or for the security of the marshals conducting the inventory and that state troopers and DEA agents did not participate in inventory or deploy themselves in a manner consistent with a peacekeeping function); cf Wilson v. Layne, 526 U.S. 603, 609-11, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999) (holding that occupants’ Fourth Amendment rights were violated when law enforcement officers brought media into home to observe and record attempted execution of warrant; noting that media were not present to assist the police in executing the warrant; emphasizing principle that police actions in execution of a warrant must be “related to the objectives of the authorized intrusion”). There is no dispute that Officer Jackson entered Defendant’s home to investigate possible violations of game and fish laws, not to assist Deputy Brazil and the other officers in searching for the evidence of CSP described in the warrant. Officer Jackson was not authorized by the search warrant issued in the CSP case to conduct an investigation inside Defendant’s home into possible violations of game and fish laws. Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 756 N.E.2d 1175, 1182-83 (Mass. App. Ct. 2001) (rejecting Commonwealth’s “plain view” argument; suppressing evidence of cellular telephone fraud seized by second team of detectives composed of members of specially trained cellular phone fraud unit who entered the defendant’s apartment while narcotics investigators were executing a search warrant limited to evidence of drug crimes).