STATE V. PATSCHECK, 2000-NMCA-062,
129 N.M. 296, 6 P.3d 498
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MARGO PATSCHECK, Defendant-Appellant, and STATE OF NEW
MEXICO, Plaintiff-Appellee, v. RICHARD PATSCHECK,
Defendant-Appellant.
Docket Nos. 20,003 and 20,030
(Consolidated)
COURT OF APPEALS OF NEW MEXICO
2000-NMCA-062, 129 N.M. 296, 6 P.3d 498
APPEAL FROM THE DISTRICT COURT OF SAN
JUAN COUNTY. George A. Harrison, District Judge.
Released for Publication August 1,
2000. Certiorari Denied, Nos. 26,418, and 26,414, July 24, 2000.
Patricia A. Madrid, Attorney General, Ann
M. Harvey, Assistant Attorney General, Santa Fe, New Mexico, for Appellee.
Phyllis H. Subin, Chief Public Defender,
Lisabeth L. Occhialino, Assistant Appellate Defender, Santa Fe, New Mexico, for
Appellant Margo Patscheck.
Liane E. Kerr, Albuquerque, New Mexico,
for Appellant Richard Patscheck.
JAMES J. WECHSLER, Judge. WE CONCUR: LYNN
PICKARD, Chief Judge, M. CHRISTINA ARMIJO, Judge.
AUTHOR: JAMES J. WECHSLER
{1} Defendants Margo
and Richard Patscheck, co-defendants at trial and mother and stepfather of the
two victims, appeal their convictions. We have consolidated their appeals
because they raise many of the same issues. Only certain issues relating to
suppression of evidence meet the criteria for publication under Rule
12-405
NMRA 2000. Therefore, only those issues will be published. The remainder of the
opinion, including a listing of the issues and the complete disposition of the
case, is contained in a memorandum opinion that will not be published.
{2} The Patschecks
were convicted of multiple counts of sexual offenses against Margo's children.
The counts arose from Richard's desire, and Margo's acquiescence in it, to
engage in various types of sexual relations with the victims on an ongoing
basis, with all people participating, over the course of six or seven years
from the time the children were preteens.
Suppression of Evidence - Search Warrants
{3} Margo and Richard
argue that the trial judge erred when he denied their motions to suppress
evidence seized under the authority of search warrants. They argue that the
evidence should have been suppressed because the search warrants failed to
identify the items to be seized with sufficient particularity and that the
searches exceeded the scope of the warrants.
{4} The affidavit in
support of the October 14, 1997 search warrant requests permission to search
for videotapes and still photographs of the victim and of other juveniles, for
pornographic movies, and for sexual devices located in a box on the floor of
the master bedroom closet. The return and inventory based on this warrant
refers to a "box containing sexual toys[,] . . . [a] photo album[,] . . .
binders [with] pornographic magazines[,] . . . [a] polaroid camera, [and] 120
videotapes." The affidavit in support of the October 16, 1997 search
warrant reports the successful seizure of items set forth in the October 14,
1997 search warrant and requests permission--based on a subsequent interview
with Margo's daughter--to seize pornographic video cassette tapes, a computer
located in the office with discs and software, a ledger guide to the video
cassettes, and eight-millimeter cassettes. The return and inventory based on
this warrant refers to multiple computer disks, eight-millimeter reels, an
eight-millimeter projector, multiple slides, a Cumulus computer with monitor, a
Packard Bell computer with monitor, and an Emerson computer.
{5} The affidavit in
support of the October 20, 1997 search warrant sets forth that the affiant
reviewed the material previously seized from the residence, and--based on
further interviews with Margo's son and daughter--requests permission to seize
pornographic video cassette tapes, a computer with discs and software, clothing
used during sexual activities, and pornographic magazines and photographs. The
return and inventory based on this warrant lists the following items:
"multiple video cassettes, computer disks, [pornographic] magazines,
computers, [and a] scanner."
Particularity of Search Warrants
{6} Margo and Richard
argue that the search warrants were impermissibly vague in their description of
items the officers were authorized to seize. They argue that the warrants did
not explain what constituted "pornographic movies" or
"pornographic magazines," did not list the specific titles of
particular pornographic movies
, or did not set forth specific
descriptions of "sexual devices."
{7} The degree of
specificity required in a search warrant, however, varies depending upon the
circumstances and types of items seized.
See State v. Elam,
108 N.M.
268, 270,
771 P.2d 597, 599 . Under the circumstances of this case, reference
to the general nature of these items was sufficient. There is no indication
that the officers were unable to identify applicable evidence based on the
descriptions in the search warrants. The search warrants' reference to the
general nature of the foregoing evidence adequately conveyed to the officers the
type of materials sought.
See, e.g.,
State v. Jones,
107 N.M.
503, 505,
760 P.2d 796, 798 (Ct. App. 1988) (recognizing case law that holds
that the particularity requirement must be applied with a practical margin of
flexibility, depending on the type of property to be seized, and that a
description of property will be acceptable if it is as specific as possible,
considering the circumstances and the nature of activity under investigation);
see
also United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995)
("Generic language is permissible if it particularizes the
types of
items to be seized.").
{8} Margo and Richard
also rely upon federal cases interpreting the particularity requirement.
Richard argues that the warrants failed to limit the discretion of the
executing officers to search for sexual devices and films. Richard correctly
notes that "the Fourth Amendment prohibits issuance of general warrants
allowing officials to burrow through a person's possessions looking for any
evidence of a crime."
Id. at 727. However, the discretion left to
officers executing a search warrant is properly limited when the language of a
warrant "particularly describes the place to be searched and the person or
things to be seized."
Id. The test for particularity is "whether
an executing officer reading the description in the warrant would reasonably
know what items are to be seized."
Id.
{9} The warrants in
this case, when viewed under these standards, are sufficiently particular
because they convey to an executing officer the particular items to be seized,
such as pornographic movies and videotapes, photographs of Margo's daughter or
other juveniles, and specific brands and models of computers. Furthermore, the
warrants specified the exact location of the box in which the sexual devices
were located. We are satisfied that the warrants were sufficiently particular
to direct an executing officer to the items to be seized, despite the generic
language used to describe the types of film, photographs, and magazines.
See
id.
{10} The additional
federal cases upon which Margo and Richard rely do not lead to a contrary
result.
See United States v. Van Damme, 48 F.3d 461, 465-67 (9th Cir.
1995) (suppressing evidence not in plain view because the attachment describing
the items to be seized was not attached to the warrant at the time of the
search);
United States v. George, 975 F.2d 72, 75-76 (2d Cir. 1992)
(holding portion of warrant invalid because language authorizing officers to
search for "'any other evidence relating to the commission of a
crime,'" failed to limit the executing officer's discretion);
United
States v. Dozier, 844 F.2d 701, 707-08 (9th Cir. 1988) (holding portion of
warrant invalid when warrant sought broad categories of personal papers and the
executing officers could not have in good faith relied upon the language of the
warrant);
United States v. Guarino, 729 F.2d 864, 867 (1st Cir. 1984)
(holding warrant invalid in obscenity prosecution when language of warrant
directed executing officers to seize anything that the officers thought was
obscene);
In re Grand Jury Proceedings, 716 F.2d 493, 497-99 (8th Cir.
1983) (holding warrant invalid when it authorized a search for all records for
seven-year period without specifying transactions, files, or categories of documents).
The language used in the warrants in this case is not as broad as that used in
the warrants in the above cases. Therefore, the cited cases do not affect our
conclusion that the warrants in this case are sufficiently particular.
{11} Margo and Richard
both raise arguments that the search warrants did not meet the standards
required to seize material presumptively protected by the First Amendment.
See
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-28, 60 L. Ed. 2d 920, 99
S. Ct. 2319 (1979). A search warrant infringes upon First Amendment rights if
it acts as a prior restraint of protected material.
See Maryland v. Macon,
472 U.S. 463, 470, 86 L. Ed. 2d 370, 105 S. Ct. 2778 (1985). However, in the
present case, no First Amendment rights were implicated. The warrants were
issued not because of the ideas contained in the material, but instead to
corroborate Margo's daughter's testimony.
See United States v. Layne, 43
F.3d 127, 133 (5th Cir. 1995) (stating that First Amendment was not implicated
in possession of child pornography case where the "warrant was issued to
seize evidence corroborating a victim's testimony. . . . [and] was not issued
because of the ideas contained in the material"). Accordingly, any
heightened level of particularity implicated by First Amendment cases is not at
issue in this case.
{12} As a corollary to
their particularity arguments, Margo and Richard argue that the trial judge
should have suppressed all the evidence seized under the authority of the
search warrants because the executing officers exceeded the scope of the
warrants. Margo and Richard rely on cases in which the Tenth Circuit held that
blanket suppression of all seized evidence was a remedy when executing officers
exceeded the scope of search warrants.
See United States v. Foster, 100
F.3d 846, 848-53 (10th Cir. 1996) (holding blanket suppression was appropriate
where warrant authorized search for marijuana and four guns and officers seized
thirty-five items over seven hours);
United States v. Medlin, 842 F.2d
1194, 1195-1200 (10th Cir. 1988) (holding blanket suppression was appropriate
where the warrant sought firearms and the search reaped a total of 667 items
not identified in the warrant);
United States v. Rettig, 589 F.2d 418,
420-23 (9th Cir. 1978) (holding blanket suppression was appropriate where
warrant authorized search for marijuana related items and officials used the
warrant to search for evidence of a cocaine conspiracy). We have not recognized
blanket suppression as a remedy for violations of warrants in New Mexico, nor
need we on the facts of this case. Nonetheless, we address Defendant's
arguments in full.
{13} The Tenth Circuit
has recognized that blanket suppression is not always the appropriate remedy
when officers exceed the scope of a search warrant.
See United States v. Le,
173 F.3d 1258, 1269 (10th Cir. 1999). In
Le, the Tenth Circuit noted
that generally, when officers exceed the scope of a search warrant, only the
evidence that was seized as a result of a search outside the scope of a warrant
should be suppressed.
See id. The Court stated that blanket suppression
applies only when executing officers flagrantly disregard the terms of a search
warrant.
See Le, 173 F.3d at 1269-70. In the absence of flagrant
disregard, "the remedy for any improper seizure . . . would be suppression
of the items improperly seized."
Id. at 1271.
{14} Based upon
Le,
even if we were to apply the Tenth Circuit's blanket suppression analysis,
blanket suppression of all the evidence seized under the authority of the
search warrants would not be appropriate in this case. The executing officers
did not flagrantly disregard the terms of the search warrants because they only
seized items of the type listed in the search warrants.
See Le, 173 F.3d
at 1269-70.
{15} In addition, the
trial judge in this case analyzed the seized evidence in the manner approved by
the Tenth Circuit in
Le. At the pre-trial suppression hearing, the trial
judge considered each piece of evidence to ensure that it was seized under the
authority of an applicable warrant. When the judge had problems with seized
items not specified in the search warrant, the judge found the items to be
inadmissible. For instance, the trial judge excluded the computer that was
seized from the kitchen during the second search, but was not authorized by the
second warrant (the warrant referred only to a computer in the office).
Similarly, the trial judge excluded sexual devices found in Margo's daughter's
room that were not found in the box in the master bedroom closet, as described
in the first search warrant. The trial judge also excluded seized clothing items
that were not listed in the appropriate return. In addition, although the
officers searched a vehicle without an authorizing warrant
, no evidence
was seized from the vehicle. As a result, even if we were to accept the Tenth
Circuit's application of its blanket suppression remedy, Margo and Richard are
not entitled to a blanket suppression of all the evidence seized under the
authority of the search warrants.
See Le, 173 F.3d at 1269-71.
{16} Margo's reliance
on
State v. Sansom,
112 N.M. 679, 683-84,
818 P.2d 880, 884-85 for the
proposition that blanket suppression is a proper remedy is also misplaced. In
Sansom,
we held that it was error for the court to admit an improperly seized rifle. We
held that the affidavit supporting the search warrant was insufficient to
demonstrate probable cause and that the admission of the rifle prejudiced the
defendant.
See Sansom, 112 N.M. at 681-84, 818 P.2d at 882-85. In this
case, however, only the particularity and scope of the search warrants are at
issue, and we have concluded that the trial judge did not admit any improperly
seized evidence.
Sansom does not suggest that blanket suppression is a
remedy when the particularity or scope of search warrants is at issue.
Sansom,
therefore, does not apply.
{17} Margo and Richard
further rely on
United States v. Carey, 172 F.3d 1268, 1270-71 (10th
Cir. 1999). In
Carey, the Tenth Circuit suppressed evidence of child
pornography seized under a warrant authorizing officers to search for evidence
of the sale and possession of cocaine.
See id. In this case, however,
the search at all times remained focused on the seizure of items related to
alleged acts of sexual misconduct. At all times the warrants sought only
evidence of sexual crimes and the warrants were not disregarded to seize
evidence of other, unrelated crimes. The holding in
Carey does not apply
to this case.
{18} We note lastly
that Margo's assertion that the officers did not have authority for printing
computer documents that contained her name and billing information is without
merit. First, there is no indication that this particular argument was raised
below.
See State v. Lucero,
104 N.M. 587, 590,
725 P.2d 266, 269
(stating that issues raised on appeal must have been specifically raised
below). Nevertheless, the officer's authority is implicit in the search
warrants' authorization to seize the computers and related documents. This case
is unlike
Carey, upon which Margo relies, because officers in that case
exceeded the scope of the warrant by searching for computer files unrelated to
the subject matter of the warrant.
See Carey, 172 F.3d at 1271-76. The
trial judge in this case ensured that the admitted evidence was seized under
the authority of the warrant that specifically authorized such seizure. We
conclude that the executing officers did not exceed the scope of the warrant
when they accessed Margo's computer files.
{19} We affirm the
trial court's decisions on Defendants' motions to suppress.
LYNN PICKARD, Chief Judge
M. CHRISTINA ARMIJO, Judge