Opposition Brief — New Mexico v. Hensel

Supreme Court, US.

« Pt 8 Pier’ Se

f sO tee ts Sed FILED

"Me Bees Ue ber

~ OCT 21 1987

f Q JOSEPH F. SPANION JF

y CLERK

No. 87-162

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NEW MEXICO,

Petitioner,

RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF NEW MEXICO

DEAN E. BORDER

Mitchell & Border, P.A.

Counsel of Record

Post Office Box 1263

Tucumcari, New Mexico 88401

(505) 461-1363

Counsel for Respondent.

RESPONSE TO

1. The New Mexico Court of Appeals did not err in

holding that Respondent Craig Hensel's constitutional rights

were violated by the admission of hearsay evidence at the

suppression hearing.

2. The State did not satisfy its burden of proving a

valid consent to search.

a. Common authority, not mere ownership is

required for a third party to provide a

valid consent to search.

b. An absent third party cannot consent to a

search when the target of the search is

present.

TABLE OF CONTENTS

RESPONSE TO QUESTIONS PRESENTED. . . . . + + e+ © e+ »© we oe bd

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 6

BASIS FOR DENYING THE WRIT OF CERTIORARI . .... +++ 6

ARGUMENT >. >. . al >. >. . . . . . . >. . . . . . . . . . . . 6

i.

The New Mexico Court of Appeals did not

violated by the admission of hearsay

evidence at the suppression hearing. ....... .6

The state did not satisfy its burden of

proving a valid consent to search. ........ .ll

a. Common authority, not mere ownership is

required for a third party to provide a

wense Gumment toe g@eerem. « 2 0 et tte tll wl

b. An absent third party cannot consent to a

search when the target of the search is

present. * . * * * * * * * * * >. * * * * * * * 16

CONCLUSION * . . . . . . . . . . . . . *. . . . . *. . . . 2 19)

APPENDIX . . . . . . 2, . . . . . . . . . . *.

ii

CASES:

TABLE OF AUTHORITIES

399 U.S. 149 (1970). ......

640 P.2d 776 (Cal. 1982)

410 U.S. 284, (1973) ......

pf oe gl

peg ee

333 U.S. 10,

354 F.2d 16 (Sth Cir.

(1948). . . . . .

1965)...

’

408 U.S. 204, (1972) . .... -

’

156 U.S. 237 (1895). . . « « « eo

,

437 U.S. 385, (1978) . « « « « «

: 2

N.M.__, 738 P.2d 126 (Ct.App.

1987)

85 N.M. 465, 513 P.2d 399 (Ct. App. 1973).

94 N.M. 795, 617 P.2d 1310 (1980). ....

91 N.M. 375, 574 P.2d 594 (Ct. App. 1978).

’

86 N.M. 692, 526 P.2d 1285 (Ct. App. 1974)

97 N.M. 73, 636 P.24 892 (Ct. App. 1981)

v

397 N.E.2d 1319 (Ct. App. N.¥. 1979)

og Ee

609 P.2d 631 (Or. App.

380 U.S. 400 (1965). ........

iii

’

“SF AB Be! re: ) ee ee ee ee er ee ee er

da,

344 So.2d 559 (Fla. 1977). « «© «© «© « «© « « « 17, 19, 20

ia,

376 U.S. 483 (1964). . «© « « « «© «© © oF, 12, 13, 14, 18

ce,

797 F. 2a 691 (8th cir 1986) i * . . — 7 . >. . _ . .* 8, 9

nk,

728 F.2d 1228 (9th Cir. 1984). ....... 17, 18, 19

415 U.S. 164 (1974) . . .6, 8, 9, 10, 12, 13, 16, 17. 18

le,

307 F.Supp. 1185 (E.D. La. 1969) .......... 29

on,

479 F.2d 300 (7th Cir. 1973) .......... 17, 19

in

567 F.2d 684 (6th Cir. arth 4s 4d) © eo 4) ee ee

CONSTITUTIONS, STATUTES AND RULES

United States Constitution Amendment IV

In all criminal prosecutions the accused shall

enjoy the right. . «to be confronted with witnesses

against him...

iv

No.87=-162

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NEW MEXICO,

Petitioner,

vs.

CRAIG HARRIS HENSEL,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF NEW MEXICO

STATEMENT OF THE CASE

The state of New Mexico has petitioned this Court for a

Writ of Certiorari to the New Mexico Court of Appeals.

Craig Hensel had appealed his conviction of manufacturing a

controlled substance to the New Mexico Court of Appeals

following a Plea and Disposition Agreement, in the Tenth

Judicial District Court wherein the Respondent specifically

reserved his right to appeal the trial court's decision

refusing to suppress evidence.

The trial court at the suppression hearing held that

Craig Hensel had standing to contest the validity of the

search (Tr. 128). The trial court, having found standing,

thereafter decided that a valid consent to search was given

by Charlotte Hensel to search the home occupied by Craig

Hensel. (Tr. 130). The New Mexico Court of Appeals reversed

the trial court and remanded the case for another

suppression hearing.

Page 2

On October 3, 1985, Craig Hensel was arrested for

manufacturing a controlled substance. The arrest was a

result of a warrantless search of Craig Hensel's residence

conducted by Officer David Bryant of the New Mexico State

Police and the DeBaca County Sheriff, Earl Turnbow. The

search was conducted without a search warrant and without

consent of any occupant of the premises. The state based

the lawfulness of the search on the alleged consent of Craig

Hensel's mother, who was approximately eighty-seven miles

away in Roswell, New Mexico at the time the consent to

search was given.

All testimony concerning Mrs. Hensel's consent to

search was given by officers of the New Mexico State Police

Department. At the suppression hearing, Officer Larry

Rogers of the Roswell Office of the State Police Department

testified that on October 3, 1985, Craig Hensel's "alleged"

mother and sister came into the State Police Department at

Roswell complaining that-Mre. Hensel‘s car had been stolen

by Craig Hensel. (Tr. 5).- Officer Rogers testified he had

neither met Mrs. Hensel nor her daughter prior to that day.

(Tr. 5).

Mrs. Hensel signed an Auto Theft Affidavit Form for the

automobile. (Tr. 131). Officer Rogers conceded that

numerous statements on the Theft Affidavit were false. (Tr.

20, 151). According to Officer Rogers, Mrs. Hensel stated

her son may be at a home, which she referred to as the

Scully Ranch. (Tr. 10, 11). Officer Rogers stated

Charlotte Hensel agreed to sign a consent to the search of

the Scully Ranch. (Tr. 11, 12, 132). The consent form was

to allow the state police to search for the vehicle at the

Scully Ranch and obtain possession of the vehicle. (Tr. 13,

14, 24, 50).

Mrs. Hensel told Officer Rogers she had power of

attorney over the Scully Ranch and the ranch was a part of

the estate of her deceased sister, Harriett Scully. (Tr.

39). At the time Mrs. Hensel signed the consent to search,

she had provided no documentation to Officer Rogers showing

any property interest in the Scully Ranch. (Tr. 31). The

trial court took judicial notice that Charlotte Hensel was

Personal Representative of Harriett Scully's estate. (Tr.

42).

Officer Rogers informed the state police officer in

DeBaca County, Officer Bryant, that a complaint for a stolen

car had been signed by Mrs. Hensel and her daughter. (Tr.

43, 44). Officer Rogers also informed Officer Bryant that a

written consent to search the Scully Ranch had been signed

by Mrs. Hensel (Tr. 44). At approximately 5:50 p.m. on

October 3, 1985, Officer Bryant observed the alleged stolen

vehicle. (Tr. 64). Upon stopping the car, Officer Bryant

found Craig Hensel's brother, Ross Hensel, driving the

vehicle. (Tr. 65). Officer Bryant was advised by Ross

Hensel that the vehicle Was not stolen. (Tr. 65, 66).

Officer Bryant and Ross Hensel then drove to the Scully

Ranch to get Craig Hensel. (Tr. 66, 67). Upon their

arrival, Craig Hensel exited the house and joined his

brother and Officer Bryant. (Tr. 67). After informing

Craig Hensel of the situation, Officer Bryant followed Ross

Hensel and Craig Hensel to the sheriff's office in Fort

Sumner. (Tr. 67, 68).

At the sheriff's office, Officer Bryant spoke by

telephone with a woman, who he believed was Mrs. Hensel.

(Tr. 69). Officer Bryant could not remember whether or not

Mrs. Hensel was intoxicated but did not dispute that he told

the Clovis dispatcher that Mrs. Hensel was drunk and to

forget about it. (Tr. 102, 103, 133).

Mrs. Hensel refused to come to Fort Sumner after the

alleged stolen vehicle. (Tr. 70). She advised Officer

Bryant to have her sons drive the vehicle back to Roswell.

(Tr. 70).

Officer Bryant then requested Craig and Ross Hensel

to return the vehicle to Roswell. (Tr. 71. 72) Officer

Bryant stated he never requested Ross Hensel's or Craig

Hensel's permission to search the Scully Ranch. (Tr. 101,

102).

Despite Mrs. Hensel's request to allow Craig Hensel and

Ross Hensel to return to Roswell and neither brother being

under arrest, Officer Bryant and Sheriff Turnbow followed

Ross and Craig Hensel to the Scully Ranch. (Tr. 72). They

followed the brothers despite Officer Bryant's belief that

nothing would be found if they searched the ranch. (Tr. 72,

73).

Officer Bryant obtained oral consent from Mrs. Hensel

to check the Scully Ranch and stated he was relying upon

this oral consent from Mrs. Hensel to proceed with the

subsequent warrantless search. (Tr. 99). Officer Bryant

did not know Mrs. Hensel (Tr. 99), or whether she was

credible or reliable. (Tr. 90). Officer Bryant never

testified to having any knowledge of Mrs. Hensel's ownership

or relationship to the premises. Further, there is nothing

in the record showing he received any information from

Officer Rogers as to Mrs. Hensel's relationship to the

premises. Also, he had never seen Mre. Hensel at the Scully

Ranch. (Tr. 93).

Upon reaching the Ranch, Officer Bryant and Sheriff

Turnbow saw Craig Hensel and his brother enter the house.

(Tr. 72). Officer Bryant and Sheriff Turnbow immediately

entered the home, without a search warrant or a consent to

search from any person in the home. (Tr. 72, 73).

Officer Bryant stated all of the windows were covered

with blankets or a drape type material. (Tr. 74). An air

mattress, clothes, suitcases, luggage and different items

were in one room. (Tr. 74). The clothing in the house was

Craig Hensel's size, (Tr. 100, 101) and in the kitchen was a

table and a chair. (Tr. 75). He also indicated that there

were pots, pans and food in the house. (Tr. 109).

Officer Bryant had previously met Craig Hensel st a

Grug store owned by Harriett Scully. (Tr. 100). Craig

Hensel had been selling property from the drug store and had

been writing down the amount of each item that was sold.

(Tr. 109). It was also Officer Bryant's opinion that Craig

Hensel had been living there for more than one day. (Tr.

106). Officer Bryant testified that there was some recent

construction at the well house and Craig Hensel had told him

at the sheriff's office that he had been fixing the place

up. (Tr. 106).

Sheriff Earl Turnbow was not aware of Mrs. Hensel ever

occupying the Scully home. (Tr. 115). He conceded that the

Defendants were occupying the Scully Ranch. (Tr. 115). He

also testified that he had a deputy, Champ Landrum, who

lived on the adjoining property and was available to be

witness. (Tr. 114, 115).

Craig Hensel testified at the suppression hearing that

he had been living at the Scully Ranch on weekends since

March, 1985 and also spent a week there on three different

eccasions. (Tr. 121, 122). He had a bed, tables, chairs,

food, and cooking utensils in the house. (Tr. 121). He had

also discussed the possible sale of the premises with Champ

Summers, the deputy sheriff. His occupancy was based on an

agreement with his mother. (Tr. 121). Craig Hensel stated

he had done some recent repair work on the premises,

including repairing the pump house. (Tr. 122).

Page 6

BASIS FOR DENYING A WRIT OF CERTIORARI

The New Mexico Court of Appeals correctly held that the

admission of hearsay statements at the suppression hearing

violated the Defendant's confrontation rights. In addition,

the Court of Appeals correctly held that, "the mere fact

that Mrs. Hensel stands in the position of an owner of the

ranch is, in itself, not sufficient to support a finding

that she had the authority to consent to the warrantless

search of the premises".

ARGUMENT

1. THE NEW MEXICO COURT OF APPEALS DID NOT ERR IN

HOLDING THAT RESPONDENT, CRAIG HENSEL'S CONSTI-

TUTIONAL RIGHT OF CONFRONTATION WAS VIOLATED

BY THE ADMISSION OF HEARSAY SAY EVIDENCE AT

THE SUPPRESSION HEARING.

On appeal, the Court of Appeals had originally proposed

summary reversal of the trial court's order as to Craig

Hensel based on the state's failure to show any evidence of

Mrs. Hensel's authority over the premises. The Court of

Appeals then affirmed the conviction of Craig Hensel without

analysis of the common authority issue. After a Motion for

Rehearing, the Court of Appeals thereafter ordered

supplemental briefs on the issue of common authority and

whether a third party can consent to a search when the

target of the search is present.

After the supplemental briefing the Court of Appeals

withdrew its original opinion and substituted « new opinion

It reversed the decision of the trial court as to Craig

Hensel. In its opinion the Court of Appeals stated;

The mere fact that Mrs. Hensel stands in the

position of an owner of the Ranch is, in itself,

not sufficient to support a finding that she had

the authority to consent to the warrantless search

of the premises. The authority which justifies

third party consent does not rest upon the law of

property, but rests rather on the sutual use of

the property by persons generally having joint

access or control. United States vs. Matlock 415

U.S. at 171, n.7, 94 S&.Ct. at 993 n.7 (1974)

(citing Chapman vs. United States, 365 U.S. £10,

Page 7

81 S.Ct. 776, 5 L.Ed.2d 828 (1961));

, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d

856 (1964); New Mexico v. Madrid. The only other

evidence presented to support a finding that Mrs.

Hensel had the authority to consent was the

testimony of Officer Rogers, which was based

exclusively on the out-of-court statements of Mrs.

Hensel.

New Mexico v. Hensel,

(Ct.App. 1987).

co, Oe 5 TO OBR 106, 196

The Court of Appeals recognized that the confrontation

clause does not rest on applicability of the Rules of

Evidence. The court stated, "[t)he fact that the statements

were not barred by the Rules of Evidence does not make them

per se admissible." Hensel, 738 P.2d at, 128.

This Court has recognized that the constitutional right

to confront witnesses and the concept of hearsay are

separate and distinct. Ohio v. Roberts, 448 U.S. 56 (1980).

The Court has consistently looked beyond mere evidentiary

rules to determine whether a defendant's right to

confrontation has been violated by an arbitrary or

unreasonable evidentiary rule. Pointer v. Texas, 380 U.S.

400, 407 (1965); Chambers v. Mississippi, 410 U.S. 284, 299-

302 (1973). The Sixth Amendment's right to confront

witnesses is not absolute, but rather the "focus of the

Court's concern has been to insure that there are indicia of

reliability .. . and to afford the trier of fact a

satisfactory basis for evaluating the truth of the prior

statement." Mancusi v. Stubbs, 408 U.S. 204, 213 (1972).

In Ohio v. Roberts, 448 U.S. 56 (1980) the Court

formulated a general framework of analysis when confronted

with a Sixth Amendment claim. The Sixth Amendment

established a rule that the prosecution must either produce

or demonstrate the unavailability of the declarant whose

evidence it wishes to use against the accused. [d. at 65.

If the witness is shown to be unavailable, the prosecutor

Page 8

must show that the hearsay to be placed before the jury has

the necessary indicia of reliability. Jd.

The Court has applied this "indicia of

reliability" requirement principally by concluding

that certain hearsay exceptions rest upon such

solid foundations that admission of virtually any

evidence within them comports with the "substance

of the constitutional protection" . . . This

reflects the truism that "hearsay rules and the

Confrontation Clause are generally designed to

protect similar values". . . and “stem from the

same roots". . . It also responds to the need for

certainty in a workaday world of conducting

criminal trials.

Id. at 66. (citations omitted).

The heart of the confrontation clause is a practical

concern of the accuracy of the truth determining process in

criminal trials. Dutton v. Evans, 400 U.S. 74, 89 (1970).

The Court has interpreted the confrontation clause to

bar the use of out-of-court statements unless such evidence

bears intrinsic guarantees of trustworthiness or other

indicia of reliability. Mattox v. United States, 156 U.S.

237 (1895); Ohio v. Roberts, 448 U.S. 56 (1980). The

Federal Rules of Evidence while serving the same basic

purpose, i.e. the actual determination of facts at trial,

are not congruent. California v. Green, 399 U.S. 149

(1970). Evidence that may be clearly admissible under the

Rules of Evidence may not be admissible under the

confrontation clause. Dutton v. Evans, 490 U.S. 74 (1970).

The state in requesting a writ of certiorari relies on

United States v. Matlock, 415 U.S. 164 (1974) and United

States v. Boyce, 797 F.2d 691 (8th Cir. 1986). In both of

these cases, the issue was whether the hearsay statements at

a suppression hearing were admissible. In both cases the

game analysis as used in Ohio v. Roberts was used in

determining whether the hearsay was admissible.

Page 9

In Boyce, the court held:

Accordingly, the trial court may accept hearsay

evidence at a suppression hearing if the court is

satisfied that the statements were made and that

there is nothing to raise serious doubt about

their truthfulness.

United States v. Boyce, 797 F.2d at 693.

The Matlock court was faced with a very similar

factual situation as the case at bar, however, the

petitioner's reliance in Matlock is misplaced. In Matlock,

the government contended it had received the consent to

search from a co-occupant of the premises. The trial court

had refused to admit the statements by the co-occupant at

the respondent's suppression hearing.

The Court, in allowing the hearsay statements noted

several factors showing the reliability of the statements.

They were as follows:

(1) The trial court was satisfied that the

statements had in fact been made; (2) There was

nothing in the record to raise serious doubts

about the truthfulness of the statements; (3) Mrs.

Graff harbored no hostility or bias against the

respondent; (4) She testified on behalf of the

respondent at the suppression hearing; (5) She was

present at the premises and at the time of the

search informed the'officers she occupied a

bedroom with the defendant; (6) She and defendant

slept together in the bedroom; (7) All of her

statements were corroborated by evidence that they

had lived together previously, they were seen

going upstairs together, the room showed all

evidence of being occupied by a woman and the

defendant had indicated in prior statements that

he and Mrs. Graff were husband and wife; (8)

Cohabitation out of wedlock is not the type of

relationship one would falsely confess; (9) Mrs.

Graff was a witness for the defendant and subject

to cross-examination.

Matlock, at 175-177.

The Court held that under these circumstances “there

was no apparent reason for the judge to distrust the

evidence." Matlock, at 176.

This Matlock factual situation is sharply in contrast

to the following facts presented in the case at bar.

1. Mrs. Hensel in attempting to obtain her vehicle

had a reason to lie.

Page i0

2. She made false statements in the Theft Affidavit.

3. There is no evidence to corroborate her

statements.

4. There was no evidence of her occupancy of the

premises.

5. A charge of trespass against Craig Hensel was

dismissed at a preliminary hearing. (Tr. 107, 108).

6. Her statements conflict with Officer Bryant's

testimony that he had seen Craig Hensel selling property

belonging to the estate.

7. The state failed to call a deputy who lived next

door to the premises searched.

8. The state presented no evidence contradicting the

statements of Craig Hensel.

9. There was evidence of Mrs. Hensel's intoxication

when she gave consent to Officer Bryant.

The Court in Matlock stated that at the suppression

hearings the "judge should receive the evidence and give it

such weight as his judgment and experience counsel."

Matlock, at 175. Judges' should be empowered to hear

reliable hearsay. Matlock, n.12 at 175.

The New Mexico Court of Appeals, specifically held that

an accused is not "guaranteed the right to confront all out-

of-court declarants in any suppression hearing." Hensel,

738 P.2d at 129. The court after reviewing the record

found that it would be "fundamentally unfair to find that

Craig's mother validly consented to the search while denying

Craig the opportunity to confront her in court." Jd. The

court further stated;

We are hard pressed to find a more extreme case

than this one in which an accused was denied the

right of confrontation.

Page 11

So ew ere weetr aoe

The Petitioner in its Petition for writ of Certiorari

attempts to argue that the hearsay statements bear

sufficient indicia of reliability. The state attempts to

attack Craig Hensel's statements as to his occupancy.

Despite their opportunity to cross-examine Craig Hensel

their argument is that the estate paid the utility bills,

that Craig Hensel resided there only on the weekends and

received no mail. The state's argument, taken to its

logical conclusion would allow any landlord to consent to

the search of a lessee's home if the lessee was renting a

weekend vacation home, not paying the utilities, and the

lessee did not receive any mail. The state had the

opportunity to refute Craig Hensel's statements by simply

calling the deputy sheriff who was Craig's neighbor and who

was on duty that day.

Further, the state argues that independent evidence

supports Mrs. Hensel's claim of authority. Petition for

Writ of Certiorari, p. 9. For this argument, the petitioner

states that Officer Bryant-testified that the house was

abandoned, then in the néxt sentence states that he

testified that it was obvious someone was in it. The

petitioner fails to explain how an abandoned house can be

occupied. The petitioner then states that Sheriff Turnbow

testified that nobody had lived in the house for five or six

years, but he also said someone was occupying the house.

The uncontradicted evidence showed that Craig Hensel

was living at the house. Officer Bryant was well aware of

this occupancy, when he had picked Craig Hensel up at the

Ranch to question hin.

Page i2

The petitioner would apparently expect the defendant to

present both the state's case and the defendants. Mrs.

Hensel and deputy Landrum were avaiiable to the state to

call as witnesses and the state refused to present these

witnesses, the inescapable conclusion being their testimony

would have supported Craig Hensel's statements.

2. THE STATE DID NOT SATISFY ITS BURDEN OF PROVING

A VALID CONSENT TO SEARCH.

A. COMMON AUTHORITY, NOT MERE OWNERSHIP IS REQUIRED

FOR A THIRD PARTY TO PROVIDE A VALID CONSENT TO

SEARCH.

This Court should refuse to grant certiorari in this

case as the Court of Appeals has correctly decided the issue

and aptly stated that one would be "hard pressed to find a

more extreme case than this one in which an accused was

denied the right of confrontation." Hensel, 738 P.2d at

129.

It is undisputed that the sole evidence presented by

the state as to Mrs. Hensel's authority to consent to the

search was her status as personal representative of the

estate. Craig Hensel does not contest that Mrs. Hensel, as

the personal representative of the estate, was the owner of

the Ranch.

Assuming arguendo that all of Mrs. Hensel's statements

were considered, she never stated that she had ever occupied

or used the premises. This Court in a succession of cases

has held legal ownership of the premises is not the

dispositive issue in determining whether a third party's

consent is valid to search the premises. See, Chapman v.

United States, 365 U.S. 610 (1961); Stoner v. California,

376 U.S. 43 (1964); United States v. Matlock, 415 U.S. 164

(1874). In both Chapman and Stoner it was undisputed that

the third party was the owner of the premises or the agent

of the owner. In both cases the court held legal ownership

is insufficient to validate a third party consent to search.

Page 13

The controlling case on third party consent is United

States v. Matlock, 415 U.S. 164, (1974). In Matlock, the

Court stated;

Common authority is, of course, not to be implied

from the mere property interest a third party has

in the property. The authority which justifies a

third party consent does not rest upon the law of

property, with its attendant historical and legal

refinements, see Chapman _v. United States, 365

U.S. 610 L.Ed.2d 828, 81 S. Ct. 776 (1961),

(landlord could not validly consent to a search of

a house he has rented to another), Stoner v.

, 376 U.S. 483, 11 L. Ed.2d 856, 84 S.

Ct. 889 (1964) (night hotel clerk cannot validly

consent to a customer's room) but rests rather on

mutual use of the property by persons generally

having joint access or control for most purposes,

so that it is reasonable to recognize that any of

the co-inhabitants has a right to permit the

inspection in his own right in that the others

have assumed that one of their number might permit

the common area to be searched.

Matlock, n.7 at 171.

The United States Supreme Court has consistently held a

mere proprietary interest in property does not validate the

consent of a third party. See, Chapman, 365 U.S. 610;

Stoner, 376 U.S. 43. New Mexico follows the Matlock

analysis that mere ownership of premise standing alone does

not per se establish that the person who consented to the

search was authorized to do so. New Mexico v. Madrid, 91

N.M. 375, 574 P.2d 594 (Ct. App.), cert. denied, 91 N.M.

491, 576 P.2d 297 (1978); New Mexico v. Mascarenas, 86 N.M.

375, 695 P.2d 1285 (Ct. App. 1974); New Mexico v. Johnson,

85 N.M. 465, 513 P.2d 399 (Ct. App. 1973).

The case at bar is almost identical to Stoner and

Chapman. In Stoner and Chapman the party providing the

third party consent was a mere proprietary owner of the

premises. The sole interest Mrs. Hensel had in the premises

was as personal representative of estate of Harriett Scully.

There was absolutely no evidence presented that she had

mutual use, joint access, control or common authority of the

Scully Ranch.

Page 14

In Chapman, the defendant's landlord noticed a strong .

odor of “whiskey mash" from defendant's house. The landlord

consented to the police officers' search of Chapman's house.

Chapman, 365 U.S. at 612. The government contended that the

tenant was committing waste and the common law provides the

landlord with the absolute right to enter the demised

premises to view waste. Jd. at 616. The Court stated,

To uphold such an entry, search and seizure

“without a warrant would reduce the [Fourth]

Amendment to a nullity and leave [tenants] homes

secure only in the discretion of [landlords)."

, BSUpra (333 U.S. at 14).

Moreover, it is unnecessary and ill-advised to

import into the law surrounding the constitutional

right to be free from unreasonable searches and

seizures subtle distinctions, developed and

refined by the common law in evolving the body of

private property law, which, more than almost any

other branch of law, has been shaped by

distinctions whose validity is largely historical.

We ought not to bow to them in the fair

administration of the criminal law. To do s0

would not comport with our justly proud claim of

the procedural protections accorded to those

charged with crime.

Chapman, 365 U.S. at 617.

In Stoner, a hotel night clerk consented to the search

of Stoner's hotel room. The Court stated,

Nor is there any substance to the claim that the

search was reasonable because the police, relying

upon the night clerk's expressions of consent, had

a reasonable basis for the belief that the clerk

had authority to consent to the search. Our

decisions make clear that the rights protected by

the Fourth Amendment are not to be eroded by

strained applications of the law of agency or by

unrealistic doctrines of "apparent authority.". .

Stoner, 376 U.S. at 488.

It is important to bear in mind that it was the

petitioner's constitutional right which was at

stake here, and not the night clerk's nor the

hotel's. It was a right, therefore, which only

the petitioner could waive by word or deed, either

directly or through an agent. It is true that the

night clerk clearly and unambiguously consented to

the search. But there is nothing in the record to

indicate that the police had any basis whatsoever

to believe that the night clerk had _. been

authorized by the petitioner to permit the police

to search the petitioner's roon.

Stoner, 376 U.S. at 489.

Page 15

The New Mexico courts have also required more than a

mere proprietary interest in the premises searched to

validate a search and seizure by third party consent. New

Mexico v. Madrid, 91 N.M. 375, 574, P.2d 594 (Ct. App).

cert. denied, 91 N.M. 491, 576 P.2d 297 (1978); New Mexico

Vv. Larson, 94 N.M. 795, 617 P.2d 1310 (1980); New Mexico v.

Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct. App. 1975); New

Mexico v. Johnson, 85 N.M. 465, 513 P.2d 399 (Ct. App.

1973).

In Madrid, the wife of the defendant had consented to

the search of their home. "The question of "joint

possessor" or “common authority" is not to be determined on

the basis of the wife's property interest in the premises."

Madrid, 91 N.M. at 377. In Madrid, the wife had moved from

the premises five months previously and had no ownership in

the apartment. The court stated, "[t]jhe fact that property

of the wife remained on the premises and the fact that the

wife had a key to the premises prevents an inference of

exclusive use." Jd. The common authority or other

sufficient relationship to the premises was the existence of

her access to the premises and her "use" of the premises by

her property remaining on the premises. [d.

In the case at bar, the state presented neither

evidence of Mrs. Hensel's access to the premises nor

evidence of her use of the premises. Craig Hensel's

undisputed testimony was that he was living at the Scully

Ranch and in consideration was performing repairs at the

Ranch. Whether he received mail or paid the utility bills

is of no significance. The respondent submits that many

tenants neither receive mail at their apartments nor pay

utility bills.

Page 16

Craig Hensel was living at the Scully Ranch, had done

repair work on the premises, spoke with neighbors about

selling the property and had been in other Scully estate

properties selling items of the estate. The house was

equipped with a bed, pots, pans, food, and other items of

furniture. Every witness testified that Mr. Hensel occupied

the premises and was living there on the day the search of

the premises was conducted.

Further, the trial court specifically found that Craig

Hensel has standing to contest the search. To contest the

search he had to be legitimately on the premises.

A person may assert his right against unreasonable

searches and seizure when the police conduct has invaded his

legitimate expectation of privacy. Rakas v. Illinois, 439

U.S. 128, (1978); New Mexico v. Waggoner, 97 N.M. 73, 636

P.2d 892 (Ct. App. 1981). The Court has emphasized that a

person's expectation of privacy is at its greatest in his

hone and has steadfastly -preserved one's privacy by

suppressing unlawful searches in people's homes. Johnson v.

United States, 333 U.S. 10, (1948); Mincey v. Arizona, 437

U.S. 385, (1978);

b. AN ABSENT THIRD PARTY CANNOT CONSENT TO A SEARCH

WHEN THE TARGET OF THE SEARCH IS PRESENT.

Third party consent is valid against the "absent" non-

consenting person. United States v. Matlock, 415 U.S. 164

(1974).

In the case at bar, Mrs. Hensel was in Roswell, New

Mexico giving her consent to search premises located eighty-

seven miles away in Fort Sumner, New Mexico and to the

premises occupied by Craig Hensel. Counsel has been unable

to locate any case where the third party was absent from the

premises searched and the target of the search was present.

Page 17

The only reference to such a scenario is in California

v. Haskett, 640 P.2d 776 (Cal. 1982) (In Bank). Wherein the

court stated,

For instance, an absent co-tenant cannot authorize

the police to burst into occupied premises

unannounced if there is no emergency justifying

such a frightening intrusion.

Haskett, 640 P.2d at 786.

The cases are split as to whether a present third party

can consent to search of the premises when the target of the

search is also present. The majority view would appear to

be that a third party cannot consent when the target is

present. See, United States v. Matlock, 415 U.S. 164

(1974); United States v. Impink, 728 F.2d 1228 (9th Cir.

1984); United States v. Robinson, 479 F.2d 300 (7th Cir.

1973); Silva v. Florida, 344 So.2d 559 (Fla. 1977); Lucero

v. Donovan, 354 F.2d 16 (9th Cir. 1965). But see, United

States v. Sumlin, 567 F.2d 684 (6th Cir. 1977); Oregon v.

Frame, 609 P.2d 831 (Or. ‘App. 1980); New York v. Cosme, 397

N.E.2d 1319 (Ct. App. N.¥. 1979); California v. Haskett, 640

P.2d 776 (Cal. 1982).

The respondent submits that the better reasoned cases

are those holding that when the target is present a third

~arty cannot consent to the search.

In United States v. Impink, 728 F.2d 1228 (9th Cir.

1984) two narcotic agents were informed by the landlord of

possible drug activity on the leased premises. The agents

had consent from the landlord to look in the garage. From

the observations, agents were able to conclude that a

Clandestine laboratory was in operation. The district court

had accepted the state's argument that the landlord's

consent circumvented the warrant requirement. Jd. at 1232.

Page 18

The Kinth Circuit citing Stoner noted that a lessor

cannot consent to a search of leased premises. JImpink, 728

F.2d at 1232. However, here the parties had stipulated that

the landlord had reserved the right to store certain

property in the garage of the residence. The court in

applying the factors enunciated in United States v. Matlock,

415 U.S. 164 (1974), stated that the Matlock court had held

that “the consent of one who possesses common authority over

premises or effects is valid against the absent, non-

consenting person with whom that authority is shared."

impink, 728 F.2d at 1232-1233. The court in Impink noted

that the Matlock opinion was explicitly limited to

situations where “persons generally have joint access or

control for most purposes." Jd. at 1233. The court held

that Matlock leaves three possible variables in the consent

calculus:

First, the third party may not generally have

joint access. . .for most purposes; his right of

access may be narrowly prescribed. Second, the

objector may not be an absent. . . person; he may

be present at the time third party consent is

obtained. Finally, the objector may not simply be

non-consenting; he may actively oppose the search.

Each of these variables have been altered between

Matlock and the case before us, and each change

suggest that an effective consent cannot be given

in this case.

Impink, 728 F.2d at 1233.

The court noted that in this case presents a situation

where a third party and the defendant did not have equal use

of the place in which both are present. The court noted

that a full-time caretaker and the lessee of the house were

present and both had unlimited right to the premises. The

court stated, “[a]s between the resident and the lessor with

a narrowly proscribed right of access, there can be no doubt

that the resident has the greater right of access or control

for most purposes." Jd. This determination is based on

actual expectations of privacy rather than common law,

definitions of property rights. Jd. n.4 at 1233.

Page 19

The court found that at every step in the investigation

in this case, a person with a privacy interest superior to

the third person giving consent was present during the

search. Jd. at 1233. The police knew at the time they

began the search that the lessee of the home was present.

id. at 1234. The court stated, “when the police

intentionally bypass a suspect who is present and known by

them to possess a superior privacy interest, the validity of

third party consent is less certain." Jd.

In the case at bar, Officer Bryant had the written

consent of Mrs. Hensel when he first went to the Scully

Ranch and picked up Craig. He did not search the Ranch at

that time. Only after he had spoken with Mrs. Hensel by

telephone, and having declined to arrest Craig, did he

intentionally bypass the occupants of the house to search

the premises. Officer Bryant was well aware of Craig Hensel

residing at the Ranch.

The Impink court contrasted the limited right of access

of the third party to the full access of the defendant. In

the case at bar, the contrast is impossible because there in

no evidence whatsoever showing Mrs. Hensel had any right of

access to the premises.

In United States v. Poole, 307 F.Supp. 1185 (E.D. La.

1969) the court held that evidence obtained in a search is

inadmissible if the person having equal rights in the

premises is present at the time of the search and does not

consent. In Poole, the defendant was present and his

consent was neither given nor sought. See also, United

States v. Robinson, 479 F.2d 300 (7th Cir. 1973).

In Silva v. Florida, 344 So.2d 559 (Fla. 1977) the

court stated, "(tjhe justification for allowing any person

to consent to a search which may result in a seizure of

evidence against another is the authority that person has by

virtue of his sharing dominion and control over the

Page 20

premises. The law is clear that if a person whose

possessions are the object of a search is absent from the

premises another having joint control may validly consent to

the search. Jd. at 562. The court further stated,

It is only reasonable that the person whose

property is the object of a search should have

controlling authority to refuse consent. His

ae are personal to him and derive from the

United States Constitution. . .Though a joint

eccupant should have authority to consent to a

search of jointly held premises if the other party

is unavailable, a present, objecting party should

not have his constitutional rights ignored because

of a leasehold or other property interest shared

with another. This is particularly true where the

police are aware that the person objecting is the

one whose constitutional rights are at stake.

Silva, 344 So.2d at 562. (citations omitted).

In Lucero vy. Donovan, 354 F.2d 16 (9th Cir. 1966), the

court held that the third party's consent to search was

rescinded by his sister's express protests in her demand for

a search warrant. In Donovan the third party and his sister

both occupied the premises.

The courts which have allowed a third party to consent

when the third party is present have not fully recognized

the personal rights of the target of the search. The

respondent submits that the more persuasive view is of not

allowing the third party to directly invade and diminish

another persons fundamental Constitutional rights. It is

unreasonable to allow the warrantless search of the premises

occupied by the target of the search when he is present and

unwilling to allow the search of the premises.

CONCLUSION

Respondent respectfully requests this court to deny the

Petition for Writ of Certiorari and affirm the decision of

the New Mexico Court of Appeals.

Page 21

Respectfully submitted,

MITCHELL & BORDER, P.A.

Attorneys for Respondent

Post Office Box 1263

Tucumcari, New Mexico 88401

(505) 461-1363

I hereby certify that a true and correct copy of the

foregoing Response to Petition for Writ of Certiorari to the

Court of Appeals of New Mexico was mailed to Charles A.

Rennick, Post Office Drawer 1508, Santa Fe, New Mexico

87504-1508, on this 19th day of October, 1987.