Opinion
Criminal No. 05-188 WJ.
September 16, 2005
ORDER DENYING MOTION TO SUPPRESS OR IN THE ALTERNATIVE TO DISMISS THE INDICTMENT
THIS MATTER comes before the Court on Defendant Charles D. Barnes' Motion to Suppress or in the Alternative to Dismiss the Indictment (Doc. 14). The Court, after reviewing the pleadings on file herein, considering the testimony of New Mexico State Probation and Parole Officer ("PPO") Michael Baca and PPO Carl Cleland, the two witnesses who testified at the Suppression Hearing on July 20, 2005, the exhibits admitted into evidence and after considering oral and written arguments of counsel, finds and concludes for the reasons set forth in this Order that Defendant Barnes' Motion to Suppress or in the Alternative to Dismiss the Indictment shall be denied.
Factual Background
The events precipitating Defendant Barnes' arrest and subsequent Indictment for felon in possession of a firearm occurred on September 8, 2003 in Albuquerque, Bernalillo County, New Mexico. As evidenced by the Government's Exhibit 1, Defendant Barnes was paroled by the State of New Mexico Adult Parole Board on or about February 11, 2003, for a two year term of parole. Although Defendant Barnes' specific felony conviction resulting in his incarceration by the State of New Mexico was not introduced into evidence, testimony presented at the suppression hearing established that Defendant Barnes was convicted of and was serving time for aggravated assault with a deadly weapon. Defendant Barnes had stabbed a female victim with a knife. In addition to Defendant Barnes' past history of violence, testimony by PPO Michael Baca and PPO Carl Cleland established that as of September 8, 2003, Defendant Barnes was known to have had past gang affiliations, a tendency to use dangerous weapons and a history of mental illness, i.e. paranoid schizophrenia, for which Defendant Barnes was taking medication. Between the time Defendant Barnes was paroled from state prison (February 11, 2003) and the date of the incident in question (September 8, 2003), there was no evidence presented that he had violated his conditions of parole.
On September 8, 2003, PPOs Michael Baca and Aubyn Rhoades conducted a random field visit to Defendant Barnes' Albuquerque apartment. Defendant Barnes was identified as having "high needs" in terms of his parole supervision based on his conviction for a violent crime, past gang affiliation and mental illness. Consequently, Defendant Barnes was being supervised by the Community Corrections Unit ("CCU") as part of the Intensive Supervision Program ("ISP") which oversees special and high needs cases including parolees such as Defendant Barnes with diagnosed mental illnesses.
As conditions of parole, Defendant Barnes consented to visits by PPOs at all reasonable times and places and consented to warrantless searches in accordance with State of New Mexico Probation and Parole policy. See Government's Exhibit 1. On September 8, 2003, PPOs Baca and Rhodes conducted a field visit with Defendant Barnes at his apartment during daylight hours. Upon entering Defendant Barnes' residence, PPOs Baca and Rhodes observed Defendant Barnes attempting to conceal a large container of alcoholic beverage and they observed a glass containing what appeared to be an alcoholic beverage. PPOs Baca and Rhodes looked in the refrigerator and discovered more alcoholic beverages. No further search of Defendant Barnes' apartment was conducted and the containers containing alcoholic beverages that were discovered were poured out into the sink in the presence of Defendant Barnes.
PPO Baca testified that Defendant Barnes was told to report to the Probation Office the very next day. Upon leaving Defendant Barnes' apartment, PPOs Baca and Rhodes determined that Defendant Barnes should be arrested for violating conditions of parole by consuming or possessing alcoholic beverages.
PPO Baca testified that PPO Carl Cleland and his partner are assigned to the Albuquerque Police Department ("APD") and they utilize APD for back up. According to PPO Baca, PPOs have immediate phone contact with PPO Cleland and he can usually respond immediately to effectuate arrests. PPO Baca testified that he and PPO Rhodes considered possession of alcohol a serious violation for a parolee such as Defendant Barnes who was in ISP. Moreover, the CCU has a zero tolerance policy for violations of supervision. Phone contact was made with PPO Cleland to arrest Defendant Barnes and PPO Rhodes proceeded to obtain an arrest order. Approximately two hours later, PPO Rhodes returned to Defendant Barnes' apartment with PPO Carl Cleland and PPO Jason Gordon to effect an arrest upon Defendant Barnes. The officers knocked on the door, Defendant Barnes answered the door and PPO Cleland identified himself and advised Defendant Barnes that he was under arrest for violating his conditions of parole. According to PPO Cleland, when Defendant Barnes was instructed to place his hands behind his back, he attempted to break free and ran towards the kitchen, but was subdued by PPOs Cleland and Rhodes, handcuffed and moved into the living room. PPO Cleland testified that he performed a "pat down" of Defendant Barnes for officer safety and located a metallic cylinder in Defendant Barnes' left front pants pocket which contained pieces of a substance later confirmed to be crack cocaine. PPO Cleland testified that as he moved Defendant Barnes to another part of the apartment, a loaded 9 millimeter handgun fell out of Defendant Barnes' pants onto the floor. On or about January 25, 2005, a Federal Grand Jury returned an indictment charging Defendant Barnes with felon in possession of firearm and ammunition.
Legal Authorities
A. Federal Law
The Fourth Amendment protects citizens from unreasonable searches and seizures and absent exigent circumstances, law enforcement officers may not enter a defendant's residence to execute an arrest without a warrant. See Peyton v. New York, 445 U.S. 573, 590 (1980). An exception to this general rule exists, however, for individuals serving terms of probation or parole. See United States v. McCarty, 82 F.3d 945, 947 (10th Cir. 1996). Probationers or parolees may be arrested or have their residence searched without a warrant and with less than probable cause. Griffin v. Wisconsin, 483 U.S. 868, 877-88 (1987). In Griffin, the United States Supreme Court recognized that the special needs and benefits of a state probation system limit or condition the liberty of a probationer as compared to the liberty of regular citizens. Griffin, 483 U.S. at 873-74.See also United States v. Lewis, 71 F3d 358 (10th Cir. 1995).
Nonetheless, warrantless searches and seizures must comply with the reasonableness standards of the Fourth Amendment. United States v. Knights, 534 U.S. 112, 122 (2001) (holding warrantless serach of probationer's home was reasonable under the Fourth Amendment as it was supported by reasonable suspicion and authorized by a condition of probation). Reasonableness is determined by weighing the degree of intrusion upon an individual's privacy against the need for promotion of legitimate government interests. Knights, 534 U.S. at 118-119, citing Wyoming v. Houghton, 526 U.S. 295, 300 (1999). Because the privacy expectations of probationers and/or parolees are diminished, warrantless searches and seizures are reasonable when there is a reasonable suspicion of criminal activity. Knights, 534 U.S. at 119-122.
B. New Mexico Law
Since Defendant Barnes was being supervised by State of New Mexico PPOs as a result of his serving state time on state charges and since he was paroled by the State of New Mexico Adult Parole Board, controlling Supreme Court and Tenth Circuit precedent require that the Court look at New Mexico law to determine the lawfulness of Defendant Barnes' arrest by PPO Cleland. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979);United States v. Lepinski, 460 F.2d 234, 237 (10th Cir. 1972). Under New Mexico law when a warrantless arrest is challenged, the Government must prove that the arrest meets constitutional muster. State of New Mexico v. Ponce, 103 P.3d 54 (N.M.App. 2004) cert. granted 103 P.3d 1098, 2004-NMCERT-12 (N.M. Dec 06, 2004) (No. 28,917); State of New Mexico v. Duran, 76 P.3d 1124 (N.M.App. 2003) cert. granted 76 P.3d 638 (N.M. Sep 03, 2003) (No. 28,241).
In Ponce, the defendant was on ISP supervision based on prior convictions for aggravated assault and battery. He was arrested by his PPO on a probation violation for consuming alcohol. When the defendant was arrested in the probation office, a pat down search was conducted producing $985.00 in cash, two cell phones and a set of car keys. The PPO questioned defendant and then went into the parking lot, matched the key to a Chevrolet Suburban, unlocked the Suburban, searched it and discovered additional contraband. The state trial judge denied defendant's motion to suppress holding that the PPOs had reasonable cause to arrest defendant and search his vehicle.
Defendant appealed arguing the arrest and search violated State of New Mexico Probation and Parole Policies and Procedures and defendant was not read his Miranda rights before he was questioned by the PPOs. In a two to one decision, the New Mexico Court of Appeals affirmed the denial of defendant's motion to suppress. Ponce, 103 P.3d at 66. New Mexico Court of Appeals Judge Michael Vigil dissented from that part of the majority opinion holding that the search of the defendant's vehicle did not violate his rights under the United States Constitution and the New Mexico Constitution. Id. Certiorari has been granted by the New Mexico Supreme Court and the Ponce case is now under consideration by the New Mexico Supreme Court. State of New Mexico v. Ponce, 103 P.3d 1098, 2004-NMCERT-12, No. 28,917 (N.M. Dec 06, 2004).
In citing Ponce, the Court is relying on that part of the opinion that held that the arrest of the Defendant for violating conditions of ISP, i.e. not consuming alcohol, was constitutional. Moreover, in Judge Vigil's dissent, he did not take issue with the legality of defendant's arrest for violating conditions of supervision by consuming alcohol. Ponce, 103 P.3d at 66.
In New Mexico, there is a specific state statute defining Intensive Supervision Programs. According to NMSA 1978 § 31-21-13.1(a), "ISP . . . means programs that provide highly structured and intense supervision, with stringent reporting requirements of certain individuals who represent an excessively high assessment of risk of violation of probation or parole, emphasized meaningful rehabilitative activities and reasonable alternatives without seriously increasing the risk of recidivous crime and facilitate the payment of restitution by the offender to the victim."
Legal Conclusions
At the time Defendant Barnes was paroled, the New Mexico Adult Parole Board imposed conditions of parole to which Defendant Barnes agreed including the requirements that he would allow his PPO to visit at all reasonable times and places, that he would submit to warrantless searches per Probation and Parole Division Policy and that he would not consume or buy intoxicating beverages at any time. See Government Exhibit 1. There were additional conditions accepted by Defendant Barnes in the CCU, none of which contradict his parole conditions. See Government's Exhibit 2. Accordingly, there was nothing introduced at the suppression hearing in terms of other exhibits which contained any provision or regulation that in any way modified or altered Defendant Barnes' conditions of parole established by the New Mexico Adult Parole Board.
State of New Mexico Probation and Parole Policy 215 ("Policy 215"), which was also in issue in Ponce, states a policy that arrest orders "are authorized when there is sufficient evidence to indicate a possible serious or repeated pattern of violation of conditions of probation or parole and there is a compelling need for detaining the offender, or the offender is a risk to public or individual safety". Ponce 103 P.3d at 59. See also Government Exhibit 4. The Government argues that when PPOs Baca and Rhodes conducted a random visit to Defendant Barnes' apartment on September 8, 2003 and found him to be consuming and/or possessing alcohol, in accordance with Policy 215 there was sufficient evidence of a serious violation of Defendant Barnes' conditions of parole. The Government also argues, as an additional violation of Policy 215, that considering (i) Defendant Barnes' past violent felony conviction, (ii) past history of gang affiliation and possession of weapons, (iii) his mental illness, and (iv) evidence of alcohol consumption, there was a risk to public or individual safety justifying arrest of Defendant Barnes. In upholding the validity of the arrest of the defendant in Ponce, the New Mexico Court of Appeals stated:
Defendant, a high-risk potential probation violator, was placed in a statutorily-backed highly structured intensive supervision program with stringent reporting and compliance requirements, pursuant to the probation order and the ISP agreement. In our view, the determinative constitutional point is that Defendant's arrest was based on sufficient cause to pass muster under federal and State constitutional reasonableness standards. The arrest was by no means arbitrary or otherwise without reasonable basis. The probation officer knew that Defendant's urine had three days earlier tested positive for alcohol and knew that Defendant was prohibited under his probation conditions from consuming alcohol. The arrest having been on this knowledge, we hold that the warrantless arrest was reasonable and constitutionally sufficient whether or not it was handled according to a more stringent administrative policy.Ponce, 103 P.3d at 61.
Like the defendant in Ponce, Defendant Barnes was considered to be "high risk" and was placed in a statutorily-backed highly structured ISP with stringent reporting and compliance requirements which included a prohibition against alcohol consumption. Moreover, Policy 215 specifically authorizes arrest when there is sufficient evidence to indicate a possible serious violation of conditions of parole or the parolee is a risk to public or individual safety. When PPOs Baca and Rhodes conducted an authorized random visit to Defendant Barnes' residence on September 8, 2003 and observed Defendant Barnes attempt to conceal a container of alcoholic beverage and discovered additional alcoholic beverages in the apartment, there was sufficient evidence to arrest Defendant Barnes right then and there for a serious violation of his conditions of parole pursuant to Policy 215. The fact that PPOs Baca and Rhodes told Defendant Barnes to report to the probation office the next day, but instead contacted PPO Cleland to come and arrest Defendant Barnes is immaterial. Moreover, the fact that the arrest order for Defendant Barnes has typed on the form "alcohol use" as the basis for the violation but then has handwritten "9mm handgun," which someone added after the arrest, likewise has no legal significance. The arrest order was issued based on sufficient evidence that Defendant Barnes consumed alcohol. The handwritten notation had nothing to do with Defendant Barnes' consumption of alcohol. Furthermore, considering Defendant Barnes' conviction for assault with a deadly weapon, his known gang affiliation, his prior use of dangerous weapons, his taking medication for paranoid schizophrenia and combine all of this with evidence of alcohol consumption, there was sufficient evidence to arrest Defendant Barnes on the basis that he posed a risk to public safety or to himself in accordance with Policy 215.
Conclusion
Defendant Barnes upon his parole was placed in ISP and supervised by the CCU based on his past violent felony conviction, past gang association, past possession of weapons and history of mental illness. One of the conditions of parole was no consumption of alcohol. When PPOs Baca and Rhodes performed an authorized visit to Defendant Barnes' apartment, they actually observed Defendant Barnes holding an alcoholic beverage and found more alcoholic beverages in Defendant Barnes' apartment. Accordingly, PPOs Baca and Rhodes had reasonable suspicion and sufficient evidence to effectuate an arrest of Defendant Barnes and the subsequent arrest by PPO Cleland pursuant to Policy 215 passes muster under both the United States Constitution and the Constitution of the State of New Mexico.
IT IS THEREFORE ORDERED that Defendant Barnes' Motion to Suppress or in the Alternative Motion to Dismiss Indictment (Doc. 14) is hereby DENIED.