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Motion To Suppress Evidence - Santa Fe County
FIRST JUDICIAL DISTRICT COURT
COUNTY OF SANTA FE
STATE OF NEW MEXICO
D-0101-CR-99-00824
STATE OF NEW MEXICO,
Plaintiff,
vs.
MARK RENDLEMAN,
Defendant.
MOTION TO SUPPRESS EVIDENCE
Defendant, Mark Rendleman (Mr. Rendleman), pursuant to the Fourth
and Fourteenth Amendments to the United States Constitution, Art.
II §10 of the New Mexico Constitution, and NMRA 5-212(B), moves
the Court to suppress all evidence seized pursuant to warrants issued
in connection with his case. Defendant also moves to suppress all
evidence obtained directly or indirectly as a result of the items
and information seized.
As grounds, he states as follows:
0. Mr. Rendleman is charged in a two count indictment with sexual
exploitation of children, and criminal sexual contact of a minor.
The offenses are alleged to have occurred in February of 1996, and
between May and September of 1999, respectively.
1. On October 4, 1999, Elizabeth Stewart (who is the mother of Mr.
Rendleman's 24 year old daughter, Mia Barbosa), called the FBI office
in Santa Fe to make a report against Mr. Rendleman. Ms. Stewart,
who has a history of fraudulent activity, mental imbalance and aggressive
acts against Mr. Rendleman, accused him of filming her two younger
children (not Mr. Rendleman's children) in the nude. She voiced
a belief that he had molested the children. At some undisclosed
times, she had entered Mr. Rendleman's home in Santa Fe and removed
video tapes and photographs, which she gave to the FBI agent. The
FBI agent viewed the tapes and photographic material, and notified
state authorities.
2. On October 5, 1999, the two children were interviewed by Santa
Fe law enforcement personnel. The children, who had been interviewed
at an undisclosed earlier time, talked of Mr. Rendleman's nudist
habits, and of his taking their pictures in the nude. One child
claimed that Mr. Rendleman intentionally touched her genital area
over a year earlier.
3. On October 6, 1999, Karen Yontz, an investigator with the Santa
Fe District Attorney's office, and New Mexico State Police Officer
Shiel, entered Mr. Rendleman's property near Embudo, New Mexico
where he has a second home. They left the public road, crossed the
Rio Grande river, cross a number of closed fences posted with "No
Trespassing" kinds of signs, and walked up to his home, his
work space next to the home, and a guest home a few steps away from
the home. They peered through all the windows and generally searched
over the property. The entered caves made by Mr. Rendleman as an
adjacent and contiguous part of his home, and walked through those
caves from room to room. A video tape was made of the intrusion
and has been requested, but not yet turned over to the defense.
4. On October 7, 1999, Karen Yontz applied for and received a warrant
to search Mr. Rendleman's Santa Fe home, and a warrant to search
Mr. Rendleman's Embudo home. Neither search was authorized as a
night time search. The Embudo home's description in the warrant
was based on information learned during Yontz' and Shiel's illegal
entry onto Mr. Rendleman's property the day before. The substance
of the affidavit in support of each search warrant was materially
identical.
5. Police began their search of the Santa Fe home at 7:51 p.m. on
October 7, 1999, even though the warrant was issued at 9:45 a.m.
They remained in the home until well after midnight.
6. Both warrants describe most of the property to be searched for
and seized in extremely general terms: All video and 8 millimeter
film and tapes, all cameras and film processing equipment, all computer
equipment, computer disks, and print outs.
7. Among the items seized from the Santa Fe home were numerous video
tapes and films (one box with 54 tapes, another with 26 "super
8" tapes, and yet another with 144 films or tapes, slides,
six boxes of slides and 13 carousels with slides). Many of these
photographs were of fully dressed people, of places, and not of
the specifically allowed subject matters listed in the indictment.
8. The warrant for the Santa Fe home was executed after dark on
October 7, 1999, rendering the search an unconstitutional night
time search. For this reason, the evidence seized must be suppressed.
9. Moreover, the warrant was broad in what it allowed to be searched
for and seized, lacked particularity and officers took innocent
items not specified in the warrant, thus rendering the search unconstitutional,
requiring the seized evidence to be suppressed.
10. Counsel requests an evidentiary hearing on this motion.
11. Due to the nature of this motion, concurrence of opposing counsel
has not been sought.
WHEREFORE, for these reasons, Mr. Rendleman requests that the Court,
after an evidentiary hearing, grant his motion to suppress the evidence
seized in this case.
MEMORANDUM IN SUPPORT OF
MOTION TO SUPPRESS EVIDENCE
Defendant Mark Rendleman (Mr. Rendleman), submits this memorandum
in support of his Motion to Suppress Evidence.
I. POLICE CONDUCTED AN UNCONSTITUTIONAL NIGHTTIME SEARCH
OF MR. RENDLEMAN'S SANTA FE HOME.
The search of a person's home or his effects is a drastic intrusion
upon personal rights; therefore, statutes regulating the use of
a search warrant should be construed in favor of the individual.
Sgro v. United States, 287 U.S. 206, 210 (1932). The Fourth Amendment
is intended to protect a reasonable expectation of privacy from
unjustified government intrusions. Katz v. United States, 389 U.S.
347, 360-62 (1967). To comport with constitutional reasonableness,
a warrant generally should be served during the day time.
If there is significant federal involvement in the search, then
the search is federal in character and must comport with federal
law. United States v. Rios, 611 F.3d 1335, 1347 n.22 (10th Cir.
1979). However, regardless of whether the federal or state statute
applies, the search must conform to constitutional requirements
of reasonableness. United States v. Moorehead, 959 F.2d 1489, 1497
(10th Cir. 1992), aff'd on other grounds, sub nom., United States
v. Hill, 971 F.2d 1461 (10th Cir. 1992).
Police executed the warrant for the Santa Fe home at 7:51 p.m. on
October 7, 1999. It was nighttime; the sun had set over an hour
earlier at 6:40 p.m. The affidavit contained no facts that indicated
the necessity for a nighttime search, such as exigencies because
evidence would be destroyed or removed if the search was not allowed
immediately. In fact, the warrant was issued at 9:45 that same morning.
The police were aware that Mr. Rendleman was out of the country.
The unexplained eight hour delay between issuance of the warrant
and its execution belies any claim that it was necessary to execute
the warrant at night.
The standard language of a search warrant in New Mexico allows for
searches to be conducted between the hours of 6:00 a.m. and 10:00
p.m. NMRA 5-211(B) (1998 ed.). New Mexico case law indicates that
a warrant authorizing a nighttime search is valid even if it contains
no facts in the affidavit outlining the exigencies justifying a
nighttime search. State v. Hausler, 101 N.M. 143, 145, 679 P.2D
811, 813 (1984). Nevertheless, it is Mr. Rendleman's position that
federal constitutional standards are more exacting than these standards,
and under constitutional standards, the search in this case was
unconstitutional.
In the Fourth Amendment context, the issue of a nighttime search
is related to the reasonableness issue. United States v. Moorehead,
959 F.2d at 1497, citing United States v. Gibbons, 607 F.2d 1320,
1326 (10th Cir. 1979) (evidence in Moorehead was that the search
was conducted before dark and, therefore, was reasonable). A nighttime
search is particularly intrusive. United States v. Callwood, 66
F.3d 1110, 1113 (10th Cir. 1995). A nighttime search of a home presents
a strong case for unreasonableness, especially when there are no
circumstances showing the need for immediate police action. Gibbons,
607 F.2d at 1327. If exigencies are plain in the affidavit of the
warrant, a court can reasonably consider that a nighttime search
was authorized. Callwood, 66 F.3d at 1113. (Police went to the magistrate's
home at 1:30 a.m. and requested permission, on the face of the affidavit,
to search "immediately", in a drug related investigation.
The issuing court therefore authorized a nighttime search).
Mr. Rendleman had a reasonable expectation of privacy in his home
that was violated by the nighttime search conducted by Santa Fe
law enforcement personnel. The search ended up lasting over five
hours, and amounted to a wholesale rummaging through all of his
belongings. No exigencies required such a nighttime search. Mr.
Rendleman was not even in the country. Because the Fourth Amendment
right to be free from unreasonable government intrusion was violated,
the evidence must be suppressed.
II. THE WARRANT LACKED PARTICULARITY AND WAS
UNCONSTITUTIONALLY OVERBROAD.
The Fourth Amendment of the United States Constitution provides
that no warrants shall issue except those "particularly describing
the ... persons or things to be seized." A central purpose
of the particularity requirement is to limit the discretion of the
officer executing the warrant. State v. Paul, 80 N.M. 521, 458 P.2d
596 (Ct. App. 1970). In the words of the United States Supreme Court,
the requirement "makes general searches ... impossible and
prevents the seizure of one thing under a warrant describing another.
As to what is to be taken, nothing is left to the discretion of
the officer executing the warrant." Marron v. United States,
275 U.S. 192, 196 (1927). General search warrants leave too much
discretion to the officers. Anderson v. Maryland, 427 U.S. 463,
480 (1976). The prohibition against general warrants "ensures
that the search ... will not take on the character of the wide ranging
exploratory searches the framers intended to prohibit." Maryland
v. Garrison, 480 U.S. 79, 84 (1987). A sufficiently particularized
warrant will "prevent a general exploratory rummaging in a
person's belongings." Coolidge v. New Hampshire, 403 U.S. 443,
467 (1971). This follows from the general rule that in searches
made pursuant to warrants, only the specifically enumerated items
may be seized, and once they are, the search must end. Horton v.
California, 496 U.S. 128, 140 (1990) (if the scope of the search
exceeds that permitted by the terms of the warrant, the search is
unconstitutional).
Although broad terms may be valid in a warrant where that description
is as particular as the circumstances allow, the Fourth Amendment
requires the government to describe the items to be seized with
as much specificity as the government's knowledge and as circumstances
allow. "[W]arrants are conclusively invalidated by their substantial
failure to specify as nearly as possible the distinguishing characteristics
of the goods to be seized". United States v. Leary, 846 F.2d
592, 600 (10th Cir. 1988). The warrant in Leary, which allowed the
search and seizure of documents which were typical business records
relating to the purchasing, sale, and illegal exportation of goods
in violation of federal law, was held to be overbroad on its face.
Id. at 601. Even if reference to the law alleged to have been violated
is included in the affidavit, that does not describe with particularity
the items to be seized. Id. Any argument that the affidavit limited
the scope of the allowed search was belied by the fact that documents
not relating to any alleged crime were also seized. Id. at 604.
The remedy was to suppress all evidence seized under the warrant.
Id. at 610. See also, United States v. Foster, 100 F.3d 846, 849
(10th Cir. 1998) (even evidence properly seized must be suppressed
if officers executing the warrant overstep its terms). Compare,
State v. Steinzig, __ N.M. __, 987 P.2d 409 (Ct. App. 1999) (computer
items described in warrant as specifically related to counterfeiting
operation described with sufficient particularity).
In this case, the warrant for the Santa Fe home broadly authorized
the seizure of all film type items used in camcorders, with no modification.
All films were, in fact, seized from Mr. Rendleman's home. The warrant
authorized seizure of all cameras, and developing equipment, with
no modifications; it authorized the seizure of all correspondence
regarding the transfer to others of the above un-described, unlimited,
and unmodified film; it authorized seizure of all computers, computer
records, floppy disks, compact disks, computer print outs, and all
correspondence relating to Mr. Rendleman's Internet server, with
no modification. All such items were, in fact, seized. Much of the
material seized under these non-particularized listings was material
that did not relate to any alleged crime.
As in Leary, the warrants in this case were overbroad, with no modification
made regarding what types of otherwise innocuous items might be
seized. In fact, many items in the above outlined categories, not
indicative of any alleged crime, were seized, precisely because
the warrant was so overbroad and so lacking in particularity. Moreover,
many items not listed in the warrant were also taken, indicating
again the constitutional weakness of the warrant. The failure to
particularize what was to be seized led to a wholesale searching
and rummaging through Mr. Rendleman's belongings, a danger warned
of numerous times since the Supreme Court decided Marron v. United
States (citations omitted). Police were in Mr. Rendleman's Santa
Fe home for well over five hours, rummaging through his belongings.
The warrant is conclusively invalid because of the substantial failure
to specify as nearly as possible the distinguishing characteristics
of the goods to be seized. United States v. Leary, 846 F.2d at 600.
Because innocuous items were seized under the broad, unparticularized
terms of the warrant, and because items were seized beyond the scope
of the warrant, the only remedy is to suppress all the evidence
seized under the warrant. Wong Sun v. United States, 371 U.S. 471,
487-88 (1963); State v. Flores, 122 N.M. 84, 89, 920 P.2d 1038,
1043 (Ct. App. 1996).
IV. CONCLUSION.
For these reasons, Mr. Rendleman requests that, after an evidentiary
hearing on these motions, the Court suppress all evidence seized
under the warrant.
Respectfully submitted,
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP
By: ___________________________________
Dan Cron
Peter Schoenburg
P.O. Box 8180
Santa Fe, NM 87504
(505) 986-1334
Attorneys for Defendant Mark Rendleman
CERTIFICATE OF SERVICE
I hereby certify that on the ______ day of January, 2000, I served
a true and correct copy of the foregoing pleading on the following
counsel by hand-delivery to:
Maria Sanchez-Gagne
321 Sandoval
Santa Fe, NM 87501
_________________________________________
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP
S:005.00Fe Motion to suppress.wpd
THIS REPLY WILL BE POSTED SOON
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