State v. Bolin

Certiorari Denied, No. June 21, 2010, No. 32,416

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-066

Filing Date: April 22, 2010

Docket No. 28,139

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

SUNDAE BOLIN,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
Teddy L. Hartley, District Judge

Gary K. King, Attorney General
Francine A. Chavez, Assistant Attorney General
Santa Fe, NM

for Appellant

Hugh W. Dangler, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION

KENNEDY, Judge.

{1} Defendant-Appellee, Sundae Bolin, was indicted on charges of trafficking a
controlled substance in violation of NMSA 1978, Section 30-31-20 (2006), and conspiracy
to traffic in a controlled substance contrary to NMSA 1978, Section 30-28-2 (1979). Prior
to trial, the district court granted Defendant’s motion to suppress, finding that the evidence
against her was obtained by police who improperly enlisted the assistance of probation
officers to conduct a police investigation. The State appeals the suppression and argues that
the district court’s decision is unsupported by substantial evidence.
{2} We hold that substantial evidence supports the district court’s conclusion that police
improperly used probation officers to effectuate an investigation. All further inquiries in this
case flow from that surrogate relationship, and we therefore have no cause to consider the
State’s other contentions as those events occurred after the initial impropriety had already
occurred.

{3} We affirm.

FACTS

{4} On November 17, 2006, Probation Officer Don Guy received a telephone call from
police attempting to execute a warrant on Rebecca Valdez in an ongoing narcotics
investigation. Valdez had been seen the previous week in the company of Defendant, one
of Guy’s probationers, and police speculated the two might be together. Probation Officer
Guy agreed to assist police, and later that day, he and Probation Officer Wade Carter
traveled to Defendant’s residence with Sergeant Brack Rains and Patrol Officer John Hanks
of the Portales Police Department. Once there, the four made contact with Defendant, who
informed them that she had not seen Valdez. Defendant’s physical appearance indicated to
the group that she might be using drugs and, when asked, Defendant said she had taken
drugs the previous evening. Probation officers Guy and Carter then administered a drug test
that came up positive. They conducted a search of Defendant’s immediate area that revealed
various contraband items. They arrested Defendant for a probation violation, and the search
was temporarily halted while police requested a warrant. Once the warrant was approved,
police conducted a second search that revealed additional contraband.

{5} Citing Defendant’s positive drug test and the contraband discovered at her residence
during the initial search by probation officers, the State charged Defendant with a probation
violation. Then, in a separate action based on evidence found during the second search
under the police warrant, a grand jury returned an indictment against Defendant for
trafficking a controlled substance and conspiracy to traffic a controlled substance. Objecting
to the searches, Defendant filed a motion to suppress and, on October 16, 2007, the district
court held an evidentiary hearing to consider the matter.

{6} Probation Officer Wade Carter testified first. He stated that on November 17, 2006,
Defendant’s probation officer, Don Guy1, received a phone call from Police Sergeant Rains
indicating that Defendant might be associating with Valdez, a known criminal. Carter
accompanied Probation Officer Guy, Sergeant Rains, and Patrol Officer John Hanks to
Defendant’s residence, where he assisted in both questioning Defendant and searching her
home. No home visit was scheduled that day for Defendant, and Carter testified that had it
not been for the call from Sergeant Rains, none would have been conducted. He stated that

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Probation Officer Don Guy was not called to testify at the suppression hearing.

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even though he did not know what Valdez was wanted for at the time of the visit, it would
be inappropriate for a probationer to associate with a criminal like Valdez. For that reason,
he and Probation Officer Guy intended to accompany police to Defendant’s home in order
to inform her that she could no longer associate with Valdez. Carter testified that only after
a probationer has been told not to associate with a particular known criminal does
associating with that person constitute a probation violation.

{7} Defendant met the group when it arrived at her home. She informed them that
Valdez was not there, and when asked, Defendant admitted using drugs. At that point,
Probation Officer Carter testified that he considered Defendant under arrest for a probation
violation. Carter and Probation Officer Guy then administered a drug test on Defendant that
came back positive and quickly searched her immediate area. That first search turned up
several prohibited items, which in turn gave police the probable cause necessary to procure
a warrant for the second search.

{8} Patrol Officer John Hanks testified next. Hanks stated that he was employed as a K-9
officer, and that prior to the visit to Defendant’s home, he had been involved with Sergeant
Rains in a narcotics investigation involving Valdez. Valdez was wanted for dealing drugs,
and Officer Hanks testified that because Valdez had been seen with Defendant the week
prior, police intended to use Defendant to lead them to Valdez. They were acting on a
hunch, and had no facts to indicate that Valdez would be present at Defendant’s residence
other than that the two had been recently seen together. Sergeant Rains called Probation
Officer Guy on the phone to discuss the situation and set up the visit. When the group
arrived at Defendant’s residence, Sergeant Rains participated in questioning Defendant about
her drug use and her association with Valdez. Once Defendant admitted to violating her
probation, probation officers Carter and Guy conducted a search and discovered contraband.
It was at that point that Sergeant Rains ordered everyone to stop the search so that he could
apply for a search warrant.

{9} The suppression hearing concluded with the testimony of Police Sergeant Brack
Rains. He confirmed that he and Officer Hanks had been conducting an investigation and
needed to serve a warrant on Valdez, who had been seen with Defendant. Because the two
had been seen together, he called the probation office to enlist its assistance. Rains also
confirmed that he went into the house with probation officers Guy and Carter, participated
in the initial questioning of Defendant, and applied for the search warrant after the search
by Guy and Carter revealed contraband. Police went to Defendant’s home not only to serve
the warrant on Valdez, but also to provide security for the probation officers who were
checking on Defendant. As far as Sergeant Rains could tell, Defendant never posed any
threat to probation officers Guy and Wade. Throughout the visit, Defendant was
cooperative; she was neither aggressive, combative, nor armed. In response to questions
about the search warrant, Sergeant Rains testified that when probation officers “call [police]
to do a home visit” and contraband is found, standard procedure dictates that officers seek
a search warrant.

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{10} The district court granted Defendant’s motion in a letter decision dated October 23,
2007, which suppressed all evidence produced after Defendant informed officers that Valdez
was not at her residence. The court found that the police officers’ only reason for arriving
at Defendant’s residence was to find Valdez. Likewise, the probation officers’ only reason
for being there was to aid a police investigation. Probation officers, when they have
reasonable cause to believe that a probation violation has occurred, may enlist the help of
police in executing a search. However, the court concluded, police may not use probation
officers to assist in conducting police duties. Thus, in this case, police improperly searched
Defendant’s residence under the right given to probation officers. They derived probable
cause from contraband found by probation officers who were present only because they
were assisting police to locate a person other than their probationer. As a result, when
Defendant informed officers that Valdez was not present, the encounter should have ended
and any evidence produced thereafter was acquired illegally.

{11} On appeal, the State challenges the district court’s order and argues that it is
unsupported by substantial evidence. The State claims: first, that the probation officers’
visit was not a subterfuge for a police investigation; second, that once they arrived at
Defendant’s home, the probation officers acquired reasonable cause to believe a violation
of probation had occurred and therefore properly conducted the search; and third,
notwithstanding the question of reasonable cause, the probation officers were justified in
searching Defendant’s home incident to a lawful arrest as a result of a clear probation
violation.

STANDARD OF REVIEW

{12} Whether a district court properly suppressed evidence as the fruit of an illegal search
creates mixed questions of law and fact. As such, we determine whether substantial
evidence supports the court’s findings of fact and then review de novo the application of law
to those facts. State v. Baca, 2004-NMCA-049, ¶ 11, 135 N.M. 490, 90 P.3d 509; State v.
Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995). In reviewing the way in which
the court applied law to the facts, “we view the facts in a manner most favorable to the
prevailing party.” Baca, 2004-NMCA–049, ¶ 11; see State v. Jason L., 2000-NMSC-018,
¶ 10, 129 N.M. 119, 2 P.3d 856.

Cooperation Between Probation Officers and Police

{13} Searches and seizures conducted upon probationers without a warrant must be
reasonable under the Fourth Amendment of the United States Constitution and Article II,
Section 10, of the New Mexico Constitution. State v. Ponce, 2004-NMCA-137, ¶ 16, 136
N.M. 614, 103 P.3d 54. A probationer’s rights in this regard are more limited than those of
other citizens, State v. Gardner, 95 N.M. 171, 174, 619 P.2d 847, 850 (Ct. App. 1980), and
our courts have held that probation officers may constitutionally search a probationer’s home
without a warrant when they possess reasonable cause to believe a probation violation has
occurred. See, e.g., Baca, 2004-NMCA-049, ¶ 3; Ponce, 2004-NMCA-137, ¶ 12; see also

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Griffin v. Wisconsin, 483 U.S. 868, 872 (1987) (holding that a warrantless search of a
probationer’s home was constitutional where the probation officer possessed “reasonable
grounds”).

{14} Though the authority of probation officers to conduct such searches is broad, that
authority may not be exercised as a proxy or surrogate for police investigations. See Baca,
2004-NMCA-049, ¶ 53. To ensure that the constitutional reasonableness test is met, when
police participate in such a search with probation officers, courts must determine that
probation officers acted independently. Analyzing a collaboration of this type in Gardner,
this Court held

The fact that there was cooperation between the probation officer and the
police did not make the search illegal, because it was requested by the
probation officer. When the search is at the probation officer’s request, as it
was in this case, the search was reasonable if the probation officer believes
that a search is necessary to perform his duties properly.

....

[P]roper visitation by a probation officer does not cease to be so because he
is accompanied by a law enforcement official . . . . However, under no
circumstances should cooperation between law enforcement officers and
probation officers be permitted to make the probation system a subterfuge for
criminal investigations.

95 N.M. at 175, 619 P.2d at 851 (internal quotation marks and citations omitted); see Baca,
2004-NMCA-049, ¶¶ 54, 55. In summarizing the issue, the American Law Reports have
noted that, the mere fact that police are present or involved in a search does not render that
search invalid, “[b]ut if the [probation] officer becomes a mere tool of the police who are
seeking to take advantage of his authority to conduct warrantless searches of a [probationer],
the search has been held invalid.” Phillip E. Hassman, Validity, Under Fourth Amendment,
of Warrantless Search of Parolee or his Property by Parole Officer, 32 A.L.R. Fed. 155 §
2[a] (2009) (internal quotation marks omitted).

{15} New Mexico courts have not yet been called to determine when a warrantless search
of a probationer becomes a “subterfuge for criminal investigations.” Gardner, 95 N.M. at
175, 619 P.2d at 851 (internal quotation marks and citation omitted). A survey of other
jurisdictions, however, indicates that the decisive inquiry is whether probation officers acted
with a probationary purpose. In other words, as the Tenth Circuit held in United States v.
Warren, the well-established rule that probation officers may conduct warrantless searches
of their probationers rests “on the rehabilitative relationship” between the two; thus, the
authority to conduct such a search does not extend “to other law enforcement officers unless
they are acting under the direction of the [probation] officer.” 566 F.3d 1211, 1217 (10th
Cir. 2009) (emphasis omitted) (internal quotation marks and citation omitted); Smith v. Rhay,

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419 F.2d 160, 162-63 (9th Cir. 1969) (unconstitutional search resulted where sheriff was
investigating a burglary, wanted to talk to probationer, and enlisted the assistance of
probation officer, who conducted a search); see United States v. Hallman, 365 F.2d 289, 292
(3rd Cir. 1966) (where parolee was apprehended by police and then transported to parole
officer’s office, a search conducted by parole officer was “part and parcel of the same
transaction” involving police and was therefore unconstitutional); People v. Candelaria, 406
N.Y.S.2d 783, 786 (N.Y. App. Div. 1978) (holding that “a parolee’s status ought not to be
exploited to allow a search which is designed solely to collect contraband or evidence in aid
of the prosecution of an independent criminal investigation [and that] [w]hen the search is
of such a nature, the parole officer becomes the conduit of the police officer in doing what
the police officer could not do himself” (citation omitted)). In order for the search to be
constitutional under the probationer exception to the warrant requirement, the probation
officer must be acting as the defendant’s “supervising guardian,” not “as the agent of the
very authority upon whom the requirement for a search warrant is constitutionally imposed,”
namely, the police. Smith, 419 F.2d at 162-63.

Involvement of Probation Officers Was Subordinate to the Police Purpose

{16} The district court’s letter decision is unmistakably premised on the conclusion that
probation officers Guy and Carter were improperly recruited by Sergeant Rains to assist the
police in arresting Valdez pursuant to a narcotics investigation. The court stated that
“[w]hile APO Carter may request backup from Portales Police in activity appropriate to APO
Carter’s duties as a probation officer (and I understand this is common), Portales Police
cannot utilize the rights of APO Carter to conduct ‘home visits’ in order to assist Portales
Police in the conduct of police duties.” The visit made to Defendant’s home “was to see if
the fugitive, Rebecca Valdez, was there. She was not. Upon the determination that [she] was
not there, . . . these officers should have been on their way.” Viewing the facts in the light
most favorable to Defendant, we hold that substantial evidence supports the conclusion that
the visit in this case, and thus the resulting searches, was not conducted for a probationary
purpose.

{17} The visit to Defendant’s home, the two searches conducted there and, at last,
Defendant’s arrest, punctuate a series of events that began when police became aware of
Defendant’s suspected association with Valdez; Defendant’s arrest constitutes the
culmination of an active police investigation. When asked about how police learned of
Defendant, Patrol Officer Hanks testified that while participating in a surveillance operation,
he had seen Defendant with Valdez. He then briefed Sergeant Rains on the matter, and when
the two sought to serve a warrant on Valdez, Rains called Probation Officer Guy in hopes
of tracing her whereabouts via the association with Defendant. As Patrol Officer Hanks
testified, the police effort to locate Valdez was proceeding on a lead, a hunch that connected
Valdez to the Defendant. Nothing, other than one association noted in a surveillance
operation, indicated that Valdez would be at Defendant’s house. Nor did police have any
indication that Defendant would know Valdez’s location. The police narrative
accompanying Defendant’s arrest warrant states, “As part of an [ongoing] narcotic

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investigation we were looking for [Valdez] reference a warrant for trafficking cocaine. I
know that [Valdez] and [Defendant] have been known to hang around together and I’ve seen
them together. [Defendant] is on Adult Probation with Don Guy.”

{18} But for the police seeking Valdez on the outstanding warrant and their investigation,
probation officers Guy and Carter never would have appeared at Defendant’s doorstep. No
home visit had been scheduled for that day and, once at Defendant’s home, police actively
participated in questioning Defendant, not only about Valdez’s whereabouts, but about
whether Defendant had herself been dealing drugs. Indeed, as Defendant’s arrest warrant
makes clear, police had Defendant in custody and were interrogating her while probation
officers conducted the first search. When the probation officers’ search revealed contraband,
it was Sergeant Rains, not the probation officers on site, who ordered a halt while he could
procure a search warrant.

{19} The State relies on evidence that once at Defendant’s residence, officers Guy and
Carter had the authority to conduct a search based on reasonable cause. As probation officer
Carter testified, the visit was made for two reasons: to assist police in finding Valdez and
also to tell Defendant she could no longer associate with Valdez. When Carter and Guy
confronted Defendant, she had experienced “sudden weight loss and scratch marks on [her]
face,” and such symptoms are consistent with continued drug use. Likewise, when
questioned by police and probation officers, Defendant admitted to recent drug use. We
have no doubt that such facts would be sufficient to establish reasonable cause if probation
officers Guy and Carter had been acting independently of police. See, e.g., Baca, 2004-
NMCA-049, ¶¶ 4-6.

{20} Certainly, Carter’s testimony that he and Guy intended to tell Defendant not to
associate with Valdez tends to show at least some non-police motivation. Had there been
more testimony of this type tending to establish an independent probationary reason for the
visit, the district court might have reasonably reached a different conclusion. But as it stands
under the unique circumstances of this case, the district court chose to accord greater weight
to the testimony of all three witnesses, testimony tending to show that probation officers
were motivated, at least in significant part, by a desire to assist police in apprehending a
fugitive. Such a motivation does nothing to promote the rehabilitative relationship between
Defendant and her probation officer. See Warren, 566 F.3d at 1217. Based on the evidence,
it was the police who first called the probation officers for assistance, it was the police who
participated in questioning Defendant about Valdez, it was the police who detained
Defendant while Carter and Guy performed the first search, and it was the police who
ordered the probation officers to stop the search while a warrant was requested.

CONCLUSION

{21} Though the court had before it evidence indicating that probation officers might have
maintained at least some motivation independent of police, the weight of the evidence
clearly cuts the other way. Thus, viewing the facts in the light most favorable to the district

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court’s determination, we hold that substantial evidence supports the decision of the district
court to grant her motion to suppress. We affirm.

{22} IT IS SO ORDERED.

___________________________________
RODERICK T. KENNEDY, Judge

WE CONCUR:

___________________________________
CELIA FOY CASTILLO, Judge

___________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Bolin, Docket No. 28,139

CL CRIMINAL LAW
CL-CS Conspiracy
CL-CL Controlled Substances

CA CRIMINAL PROCEDURE
CA-MR Motion to Suppress
CA-PB Probation
CA-SE Substantial or Sufficient Evidence
CA-SZ Search and Seizure
CA-WS Warrantless Search

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