In re Paul T.

1997 NMCA 071, 943 P.2d 1048, 123 N.M. 595
CourtNew Mexico Court of Appeals
DecidedJune 16, 1997
DocketNo. 17296
StatusPublished
Cited by2 cases

This text of 1997 NMCA 071 (In re Paul T.) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Paul T., 1997 NMCA 071, 943 P.2d 1048, 123 N.M. 595 (N.M. Ct. App. 1997).

Opinion

OPINION

DONNELLY, Judge.

1. The Child appeals his conviction in children’s court as a delinquent child. Three issues are raised on appeal: (1) whether the Child’s violation of a municipal curfew ordinance, and the circumstances attendant to his being taken into custody, constituted a valid basis justifying a warrantless search of his person; (2) whether the Child’s consent for the officer to search his pockets was voluntary; and (3) whether the pat-down search of the Child was pretextual. For the reasons discussed herein, we affirm.

FACTS

2. Shortly after midnight on September 9, 1995, a Saturday, John Serna, an Alamogordo, New Mexico, police officer stopped an automobile operating with only one headlight. The Child, aged fifteen, was a passenger in the back seat of the car. The officer recognized the Child from a prior incident and knew that he was under sixteen years of age. The City of Alamogordo had enacted a curfew ordinance making it unlawful for a child under the age of sixteen to be in any public place within the municipality without adequate supervision on weekends from 12:00 midnight to 6:00 a.m., and on weekdays from 11:00 p.m. to 6:00 a.m. Under the ordinance, if a child is not accompanied by a parent or a responsible adult, the officer is required to take the child into custody and notify the child’s parent or guardian.

3. The officer requested that the Child get out of the car he was riding in, and the Child obeyed. The officer told the Child he was going to give him a ride home. At the time the Child was taken into custody he was fifteen years old and was not accompanied by a parent or guardian.

4. Prior to placing the Child in the police car, as a safety precaution, the officer conducted a pat-down search of the Child for weapons. During the pat-down search, the officer detected some small, hard objects in the Child’s pockets. The officer asked for and received the Child’s permission to empty his pockets. The subsequent search revealed a sandwich-sized plastic bag containing a small amount of marijuana, coins wrapped in tissue paper, and a package of cigarette rolling papers. Following this discovery, the Child was taken to the police station and was later released to his sister’s custody.

5. A petition alleging that the Child was delinquent was filed on October 10, 1995. The petition also alleged the Child was in possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (Repl. Pamp.1989), and possessed one ounce or less of marijuana, contrary to NMSA 1978, Section 30-31-23 (Cum.Supp.1996). The Child filed a motion to suppress the evidence seized during the search of his person, alleging that the pat-down search conducted by the officer was unlawful. Following an evidentiary hearing, the children’s court denied the Child’s motion to suppress.

6. Thereafter, on February 22, 1996, the Child entered a no contest plea to each of the two charges in the petition and reserved the right to appeal the denial of the motion to suppress.

DISCUSSION

7. The Child, observing that the factual situation presented herein constitutes an issue of first impression in New Mexico, argues that the search conducted by the officer cannot be justified as a search incident to an arrest because a curfew violation does not constitute a delinquent act or an offense for which he was subject to arrest. The Child also asserts that the search conducted here fails to satisfy the criteria of an investigatory frisk for weapons permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) or the protections imposed by Article II, Section 10 of the New Mexico Constitution.

8. The Child correctly observes that where an individual has not been placed under arrest, a warrantless search is per se unreasonable unless the State can demonstrate that the search falls within a recognized exception to the search warrant requirement mandated by either the Fourth Amendment to the United States Constitution or Article II, Section 10 of the New Mexico Constitution. State v. Diaz, 122 N.M. 384, 386, 925 P.2d 4, 6 (Ct.App.1996). Under the record before us, however, we conclude that the children’s court correctly determined that the search conducted herein was reasonable because it did not exceed Fourth Amendment limitations articulated in Terry or the protections set forth in Article II, Section 10 of the New Mexico Constitution. On appeal, we review a court’s ruling on a motion to suppress as a mixed question of law and fact in order to determine whether the law was correctly applied to the facts, viewing the facts as determined by the court in the light most favorable to the ruling below. State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995); State v. Flores, 122 N.M. 84, 87, 920 P.2d 1038, 1041 (Ct.App.1996).

9.Terry involved the investigatory stop of three men who, according to the officer’s testimony, appeared to be preparing to rob a store. 392 U.S. at 5-8, 88 S.Ct. at 1871-73. The officer stopped the men, identified himself as a police officer, and requested that they identify themselves. Id. at 6-7, 88 S.Ct. at 1872. He then patted down the outside of their clothing and found revolvers on two of the men. The men were subsequently charged with carrying concealed weapons. Id. at 7, 88 S.Ct. at 1872. The Court upheld the search, finding that the officer had reasonable grounds to believe that the men were “armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.” Id. at 30, 88 S.Ct. at 1884. A Terry search conducted under such circumstances constitutes a narrowly-drawn exception to the warrant requirement in order to permit a protective search for weapons. Id. at 27, 29, 88 S.Ct. at 1883, 1884.

10. Both this Court and courts in other jurisdictions have upheld pat-down, protective searches as reasonable in other situations wherein it was necessary to transport persons taken into protective custody in a police vehicle. Cf. State v. Blakely, 115 N.M. 466, 468, 853 P.2d 168, 170 (Ct.App.1993) (finding pat-down search reasonable where law enforcement officer conducted search before transporting intoxicated person); State v. Smith, 112 Ariz. 531, 533-34, 544 P.2d 213, 215-16 (1975) (en bane) (upholding pat-down search of intoxicated individual taken into protective custody as reasonable to assure officer’s safety while transporting him home); In re Terrence G., 109 A.D.2d 440, 492 N.Y.S.2d 365, 370 (1985) (upholding pat-down search of juvenile runaway); State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 167 (1993) (recognizing validity of brief pat-down search for weapons when officer has lawful reason to detain driver in officer’s patrol car).

11.

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Related

In Re Josue T.
1999 NMCA 115 (New Mexico Court of Appeals, 1999)
State v. Warsaw
1998 NMCA 044 (New Mexico Court of Appeals, 1997)

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Bluebook (online)
1997 NMCA 071, 943 P.2d 1048, 123 N.M. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paul-t-nmctapp-1997.