State v. Patscheck

6 P.3d 498, 129 N.M. 296
CourtNew Mexico Court of Appeals
DecidedJune 7, 2000
Docket20,003, 20,030
StatusPublished
Cited by13 cases

This text of 6 P.3d 498 (State v. Patscheck) 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
State v. Patscheck, 6 P.3d 498, 129 N.M. 296 (N.M. Ct. App. 2000).

Opinion

OPINION

WECHSLER, Judge.

{1} Defendants Margo and Richard Patscheek, co-defendants at trial and mother and stepfather of the two victims, appeal them 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a listing of the issues and the complete disposition of the case, is contained in a memorandum opinion that will not be published.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 Patsehecks 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 (Ct.App.1989). 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) (“[G]eneric 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 “[t]he 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 described] 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

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Cite This Page — Counsel Stack

Bluebook (online)
6 P.3d 498, 129 N.M. 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-patscheck-nmctapp-2000.