# Opposition Brief — New Mexico v. Hensel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 958

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0687%3A2. Public record. Not legal advice.