{"id":1810,"date":"2008-12-23T17:58:02","date_gmt":"2008-02-22T09:11:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-22T09:11:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1810","title":{"rendered":"Police aid to a bondsman required that the gun found on entry be suppressed"},"content":{"rendered":"

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<\/a>, 2008 NMCA 18, 143 N.M. 422, 176 P.3d 1154 (N.M. App. 2007), certiorari granted, 176 P.3d 1130 (N.M. 2008):<\/p>\n

[*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<\/em>, 138 Md. App. 300, 771 A.2d 478, 484-85 & n.3 (Md. Ct. Spec. App. 2001), aff’d<\/em>, 367 Md. 700, 790 A.2d 660, 670-72 (Md. 2002); see also Ryon<\/em>, 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<\/em>, 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<\/em>, 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<\/em>, 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. <\/p>\n

[*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<\/em>, 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. <\/p><\/blockquote>\n

Comment:<\/em> New Mexico cases are not released until after state cert is granted or denied. Here, it was granted.<\/p>\n

Randolph<\/em><\/a> 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<\/a>, 516 F.3d 1117 (9th Cir. 2008).<\/p>\n

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).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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