Motion To Suppress - Rio Arriba County

FIRST JUDICIAL DISTRICT COURT
COUNTY OF RIO ARRIBA
STATE OF NEW MEXICO

D-0117-CR-99-842
D-0117-CR-99-843

STATE OF NEW MEXICO,
Plaintiff,
vs.MARK RENDLEMAN, and
TIFFANY MIA BARBOSA
Defendants.

MOTION TO SUPPRESS EVIDENCE

Defendants, Mark Rendleman (Mr. Rendleman) and Tiffany Mia Barbosa (Ms. Barbosa), pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, Art. II ¤10 of the New Mexico Constitution, and Rule 5-212(B) NMRA 1999, move the Court to suppress all evidence seized pursuant to warrants issued in connection with this case. Defendants also move to suppress all evidence obtained directly or indirectly as a result of the items and information seized.
As grounds, Mr. Rendleman and Ms. Barbosa state as follows:
0. Mr. Rendleman is charged in a thirty count indictment with sexual exploitation of children (18 counts), contrary to NMSA 1978 ¤30-6A-3B, criminal sexual contact of a minor (11 counts), contrary to NMSA 1978 ¤30-9-13A(1), and one count of child abuse, contrary to NMSA 1978 ¤30-6-1B. The offenses are alleged to have occurred between May of 1995 and September of 1999.
1. Ms. Barbosa, who is Mr. Rendleman's daughter, is charged in a twenty count indictment with sexual exploitation of children (8 counts), contrary to NMSA 1978 ¤30-6A-3B, criminal sexual contact of a minor (11 counts), contrary to NMSA 1978 ¤30-9-13A(1), and one count of child abuse, contrary to NMSA 1978 ¤30-6-1B. The offenses are alleged to have occurred between May of 1995 and September of 1998.
2. On October 4, 1999, Elizabeth Stewart (who is Ms. Barbosa's mother and an acquaintance of Mr. Rendleman), 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.
3. 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 and did not then accuse him of wrongdoing, talked of Mr. Rendleman's nudist habits, and of his taking their pictures in the nude. One child claimed that Mr. Rendleman touched her genital area over a year earlier on one occasion.
4. 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, crossed 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.
5. 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. The Embudo home's description in the warrant was based on information learned during Ms. Yontz' and Officer 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.
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 Embudo home were a box containing 78 computer floppy disks, a computer, its keyboard and mouse, and art work. Photographs and innocent correspondence not listed in the warrant were seized.
8. Ms. Yontz requested a second search warrant for the Embudo home on October 15, 1999, received it and executed it the same day. The description was based on the same, original illegal entry by Ms. Yontz and Officer Shiel onto Mr. Rendleman's property on October 6, 1999. This warrant allowed the search and seizure of adult erotic paraphernalia, pictures, and art work, and included "all items used for sexual purposes". It also requested permission to video tape the house and caves behind it that were connected to and contiguous with the house. The apparent purpose for this warrant was really to retrieve cameras left behind and not seized after the first search, and to retrieve a video tape police had made of the home and caves; the inventory indicates that the only items seized were cameras and camera equipment, and the inventory does not indicate that any adult erotic paraphernalia was seized.
9. The October 7, 1999 warrant for the Embudo home was based on information learned from an unauthorized and unconstitutional entry onto the protected curtilage of Mr. Rendleman's home. For these reasons, the evidence seized must be suppressed.
10. 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.
11. The warrant executed on the Embudo home on October 15, 1999 was the fruit of the two October 7, 1999 warrants and, for the same reasons, evidence seized during that search must be suppressed.
12. Counsel requests an evidentiary hearing on this motion.
13. Due to the nature of this motion, concurrence of opposing counsel has not been sought.

WHEREFORE, for these reasons, Mr. Rendleman and Ms. Barbosa request that the Court, after an evidentiary hearing, grant their motion to suppress the evidence seized in this case.

MEMORANDUM IN SUPPORT OF
MOTION TO SUPPRESS EVIDENCE

Defendants Mark Rendleman (Mr. Rendleman) and Tiffany Mia Barbosa (Ms. Barbosa), submit this memorandum in support of their Motion to Suppress Evidence.

I. POLICE VIOLATED THE PRIVACY OF MR. RENDLEMAN'S EMBUDO
HOME TO COLLECT EVIDENCE USED TO SECURE THE WARRANT IN
THIS CASE.

The Fourth Amendment protects the curtilage of a house from government intrusions; the extent of the curtilage is determined by factors that bear upon whether an individual may reasonably expect that the area in question should be treated as the home itself. Oliver v. United States, 466 U.S. 170, 180 (1984). The central component of the inquiry is whether the area harbors the "intimate activity associated with the sanctity of a man's home and the privacies of life." Id. (Internal quotations and citations omitted). Four factors should be referred to when determining whether the area is curtilage: (1) the proximity of the area to the home; (2) whether the area is enclosed in an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passers by. United States v. Dunn, 480 U.S. 294, 301 (1987); State v. Sutton, 112 N.M. 449, 452, 816 P.2d 518 (Ct. App. 1991); United States v. Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993).
In Sutton, the court, applying the Dunn factors, held that the marijuana fields a distance from the defendant's cabin were not curtilage. The fields were over 100 yards from the cabin. The area was not enclosed within the same enclosure as the cabin. The growing plots were not associated with the intimate activities of the home life. Additionally, he the defendant made no attempt to shield the area from public view. He had failed to fence the exterior, and failed to post "no trespassing" signs. Therefore, on balance, these factors rendered the area not curtilage. Id. at 453. See also, United States v. Finnigin, 113 F.3d 1182, 1186 (10th Cir. 1997) (outbuildings and vehicles within the curtilage of a residence are considered part of that residence for purposes of the search warrant. Outbuildings and vehicles not specifically named in the warrant could be searched because they were within the curtilage of the home), and State v. Crenshaw, 105 N.M. 329, 332, 732 P.2d 437 (Ct. App. 1986) (cabin, and clearing surrounding it containing marijuana plants was curtilage, protected from intrusion under Fourth Amendment).
There is no fixed distance a structure must be from the house to fall within or without the curtilage; a detached cottage can be within the curtilage of the home. Daughenbaugh v. City of Tiffin, 150 F.3d 594, 598 (6th Cir. 1998). Natural boundaries, such as trees or hedges, can constitute an enclosure and the enclosure need not be a fence. Id. at 599. An enclosure is not always necessary; land next to a home that occupies the same clearing in the woods as the home is within the curtilage. State v. Sutton, 112 N.M. at 453.
Mr. Rendleman's home in Embudo is separated from the public road by the Rio Grande River north of Embudo Station. Cliffs and high bluffs encircle the property to the north and west. The home, as well as the guest house, is located on the west side of the river, and is accessible only by a one mile long private, dirt road from the south. At the beginning by Embudo Station, the private dirt road is clearly marked as such, and the public is barred from entry. Signs indicating the private nature of the road are posted along its entire length. In fact, Mr. Rendleman owns the road and maintains it himself. A gated fence surrounds the property, and the property is clearly posted with no trespassing signs. The guest house is close to the main house. The entire area is shielded from any public view by the trees which surround the area. At the time Yontz and Shiel entered the property and searched it, it was not possible to see into the house or know the configuration of the house without entering the curtilage. Moreover, access to the caves that are contiguous with and part of the living space of the house was also closed off from the public. Ms. Yontz and Officer Shiel entered these areas as well without permission and without a warrant. The are was protected curtilage. State v. Sutton, 112 N.M. at 453.
The particular description of the places to be searched related in the affidavit was learned only by virtue of this illegal entry onto the property; the description includes mannequins which could be viewed only through the window, and which could only be seen by walking onto the curtilage and peering into the windows. It also describes caves that originate from the house - - again, this description was learned by virtue of Ms. Yontz and Officer Shiel's illegal entry into the curtilage. Mr. Rendleman will present evidence by an eyewitness that Ms. Yontz and Officer Shiel entered Mr. Rendleman's property the day before Ms. Yontz obtained a search warrant, crossed over fences, walked up to the house, walked around the home, peered through windows, and took pictures of the entire area.
A particularized description of the place to be searched is essential, and a warrant lacking such a description is invalid. State v. Ortega, 114 N.M. 193, 198-9, 836 P.2d 639 (Ct. App. 1992), aff'd, 117 N.M. 160, 870 P.2d 122 (1994). A search conducted prior to the issuance of a warrant in order to learn the description of the place to be searched is illegal. See, United States v. Karo, 468 U.S. 705, 718 (1984) (the Supreme Court rejected the government's argument that its use of a beeper was justified because it would be impossible to describe the place to be searched in order to obtain a warrant prior to using the beeper, since the location of the place is precisely what was sought to be discovered by using the beeper to search). This is precisely what law enforcement did in this case - - they made an illegal entry onto Mr. Rendleman's property in order to learn information in order to particularize a description of the place to be searched. For this reason, the evidence seized is a result of that illegal entry and 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 Embudo home listed film type items, without modification, in the same wording as in the Santa Fe home warrant; it listed camera equipment, unmodified, as in the Santa Fe warrant; it listed correspondence and computer items, unmodified, as in the Santa Fe warrant. Some film, and much computer equipment, was taken. Additionally, innocent correspondence unrelated to any alleged crime was taken from both places, and numerous photographs not depicting children, nudity, or Mr. Rendleman were seized (these three classes of photographs were the only photographic items authorized by the warrant to be seized). Moreover, art work, not listed in the warrant, and not remotely evidence of a crime, was taken.
As in Leary, the warrant in this case was 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 these warrants. 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. Apparently, they were in his Embudo home for at least as long. The warrant is conclusively invalid because of its 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 warrants, and because items were seized beyond the scope of these warrant, the only remedy is to suppress all the evidence seized under the warrant.
The October 15 warrant was the fruit of the illegalities, discussed above, of the two October 7 warrants and evidence seized pursuant to the October 15 warrant, too, must be suppressed. 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). Moreover, the evidence seized during the October 15 search was evidence left over or forgotten after the October 7 search of the Embudo home, making it clearly the fruit of the first search.
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 87504-8180
(505) 986-1334
Attorneys for Defendant Mark Rendleman

MARLOWE LAW FIRM, P.C.

By: _______________________________________
Dan Marlowe
P.O. Box 8207
Santa Fe, NM 87504-8207
(505) 988-1144
Attorney for Tiffany Mia Barbosa

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:
Maria Sanchez-Gagne
Assistant District Attorney
321 Sandoval St.
Santa Fe, NM 87501

_________________________________________
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, CRON & SCHOENBURG, LLP

S:005.00Arriba Motion to Suppress.wpd

FIRST JUDICIAL DISTRICT COURT
COUNTY OF RIO ARRIBA/SANTA FE
STATE OF NEW MEXICO

STATE OF NEW MEXICO,
D-0117-CR-99-00842
Plaintiff, D-0117-CR-99-00843
D-0117-CR-99-00824
vs.
The Honorable Michael E. Vigil
MARK RENDLEMAN,
TIFFANY MIA BARBOSA,

Defendants.

DEFENDANTS REPLY TO THE STATE'S RESPONSE
TO THEIR MOTIONS TO SUPPRESS EVIDENCE

Statement of Facts

As a result of information provided by defendant Mark Rendleman's (ex-wife), Mr. Rendleman and Tiffany Mia Barbosa became the subject of a law enforcement investigation. On October 5, 1999, Kenny and Kelley S. gave a safe house interview which was witnessed by District Attorney Investigator Karen Yountz. During the course of these interviews, the children mentioned a home which Rendleman owned in Embudo, and described it as a house with caves and a mannequin. The children did not provide any more information about the Embudo home.
The next day, Investigator Yountz, along with other law enforcement officers, traveled to Embudo to try and locate Mr. Rendleman's home. At that time, the officers did not know where Mr. Rendleman lived: they did not have a street address, a post office box, or a rural route number; they did not know if the caves described by the children were man made or natural; and, they did not have any actual description of the home.
When they arrived in Embudo, the officers passed through an open gate behind Embudo Station with a prominent sign which announced that the road was private and that travel was permitted only with prior permission. In traveling to Mr. Rendleman's home, the officers noticed numerous tan or brown, single-story stucco houses with satellite dishes located off of forks in the road. Along the two-mile route to Mr. Rendleman's home the officers passed no less than eight "No Trespassing" or "Private Property" signs.
While looking for Mr. Rendleman's home the officers encountered his neighbor, Ermenita Campos, and asked her where Mr. Rendleman's lived. Ms. Campos pointed in the direction of her neighbor's home and explained that Mr. Rendleman's home was beyond a hill covered by trees. The officers then traveled in the direction identified by Ms. Campos, took a right fork in the road, passed through a barbed wire fence, and discovered a group of homes along that fork.
At the time the arrived at Mr. Rendleman's home, the officers still did not know that they were on his property. They noticed that the property had a main house, a guest house, and a studio, and that the property was bordered on one side by the Rio Grande river, by steep cliffs to the north and west, and by a fence along the road. The officers then parked their car and began looking around. When they looked through the front windows of the main house they saw a mannequin. They then walked around the back-at distances as close as six feet from the home-and discovered an entrance to a cave. At that point they knew that the home belonged to Mr. Rendleman, and they returned to Santa Fe.
On October 7, Investigator Yountz prepared search warrants for Mr. Rendleman's homes in Santa Fe and Embudo. Ms. Yountz obtained almost all of the descriptive details of Mr. Rendleman's Embudo home as a result of the October 6 search. In addition, both warrants described the property to be seized in broad terms and requested permission to search for and seize all video tapes, eight millimeter film, cameras, photo processing equipment, computer disks, and computer print outs. The warrants were approved, however they were not authorized for a nighttime search.
The police began their search of the Santa Fe home shortly before eight at night on October 7, 1999, and remained in the home until well after midnight. Among the items seized from the Santa Fe home were hundred of tapes and films, 13 carousels of slides, and an additional six boxes of slides. Most of these tapes, films and slides were not even remotely connected to the allegations against Mr. Rendleman.
The police also searched the Embudo home on October 7. In their search they seized a box containing 78 computer floppy disks, a computer, a key board, a mouse, and art work. On October 15, Investigator Yountz requested a second search warrant of the Embudo home, relying on the same description of the property contained in the October 7 warrant.
The State's statement of facts in its response to defendant's Rendleman's Motion to Suppress Evidence contains numerous inaccuracies about the October 6 search. First, the road to Mr. Rendleman's home is at least two miles long, not one-mile as alleged (Response, p. 2, ¦ 2); second, although the entrance to the private road contains "only one sign ... indicating that this is a private road" (Response, p. 2, ¦ 2), between Embudo station and Mr. Rendleman's home there are no less that eight posted no trespassing or private property signs; third, contrary to the State's assertion, there is a visible barbed wire fence surrounding the property (Response, p. 1, ¦ 3). In addition to these errors, the greatest inaccuracy in the State's response is the assertion that Mr. Rendleman claims a curtilage violation because the officers traveled along a private road to his house; in fact, the violation of Mr. Rendleman's constitutional right of privacy occurred when law enforcement officers, after traveling over two miles past numerous no trespassing signs, passed through the fence surrounding his Embudo home, walked around his house, peered into his windows, and approached the entrance to the caves.
Argument.
. The Officers Invaded the Curtilage of Mr. Rendleman's Home.

In its response, the State relies exclusively on federal authorities to argue that the officers did not invade the curtilage of Mr. Rendleman's Embudo home. However, this authority is inapposite. The police misconduct violated Article II, section 10 of the New Mexico Constitution, which provides greater protection against unreasonable searches and seizure than the federal constitution.
Where an initial search prior to the issuance of a search warrant illegally invades the curtilage of the defendant's home, the subsequent warrant is invalid and the evidence seized must be suppressed. State v. Crenshaw 105 N.M. 329, 332, 732 P.2d 431, 434 (Ct.App. 1986). Generally, the enclosed area surrounding a home is constitutionally protected curtilage, especially where that area harbors "the intimate activities of a man's home and the privacies of life." State v. Sutton, 112 N.M. 449, 452, 816 P.2d 518, 521 (1991).
In Crenshaw the officers obtained probable cause to search an area surrounding Mr. Crenshaw's home by entering a clearing next to his home which was enclosed by dense woods and which contained several outbuildings, a cookout grill and a clothesline. The Court concluded that the intrusion into the curtilage of Mr. Crenshaw's home was illegal because he "had a legitimate expectation of privacy in this area." State v. Crenshaw, supra, 105 N.M. at p. 332.
This case is virtually indistinguishable from Crenshaw. Investigator Yountz was only able to obtain a description of Mr. Rendleman's home after driving two miles over a private road marked with no trespassing signs, passing through an opening in a barbed wire fence, and walking within a few feet of Mr. Rendleman's home. The area surrounding the home was enclosed by both natural and man-made boundaries and contained numerous buildings, a cookout grill, and picnic tables. Most important, the officers did not determine that the home belonged to Mr. Rendleman until they peered into the windows of his home, walked around the back, and approached the entrance to the caves. Therefore, because Mr. Rendleman had a legitimate expectation of privacy in this area which is identical to the facts of Crenshaw, the intrusion onto the curtilage violated his constitutional right to be free from unreasonable search and seizure.
Article II, section 10 of the New Mexico Constitution provides greater protection against unreasonable searches than the Fourth Amendment of the United States Constitution. Cf. State v. Campos, 117 N.M. -, 158, 870 P.2d -, 120 [all warrantless arrests of felons in public are not permitted]; State v. Gutierrez, 116 N.M. -, 446, 863 P.2d -, 1067-68 [rejecting "good faith" exception to the exclusionary rule]; State v. Cordova 109 N.M. 217- 217, 784 P.2d 35-36 [two-part test for determining the reliability of an informant.] Consequently, the Court in State v. Sutton suggested that the New Mexico Constitution may provide greater protection against observations from "open fields" than the federal constitution; however, the Court did not reach the question because the Mr. Sutton did not exhibit an expectation of privacy in the area searched by posting signs, erecting fences, or taking other to steps to impede traffic from a public road. State v. Sutton, supra, 112 N.M. at 455. Nevertheless, the Sutton Court suggested that in the face of such steps, our state constitution would provide broader protection than the federal constitution, both because our state constitution protects homes not houses, and because of the difference in custom and terrain in New Mexico which gives rise to more unique expectations of privacy: "we have in New Mexico already indicated, prior to [United States v.] Oliver, some discomfort with the concept of "open fields .... [because] the United States Supreme Court was ... increasingly discarding fictional and procedural barriers resting on property concepts." Id. at p. 455.
By arguing that the officers observed Mr. Rendleman's property from "open fields," the State not only mischaracterizes the evidence but also ignores the limits of the open field doctrine in this state. Because Mr. Rendleman's efforts to protect his property were precisely the same steps which the court outlined in Sutton-posting signs, erecting fences, and taking extensive steps to prevent traffic from a public road without his prior permission-it is apparent that Article II section 10 protects him from the unlawful actions of the law enforcement officers.

The Warrants Lacked Particularity.
In its response, the State concedes that the appendix to the search warrant which detailed the items to be seized "contains some broad categories." However, the State attempts to minimize the harmful effects of this overbroad warrant because of the nature of the criminal activity involved. This argument ignores the plain fact that the warrant authorized a search for items which were not even remotely criminal, and permitted they type of "general, exploratory rummaging in a person's belongings" which the Fourth Amendment and Article II section 10 were designed to protect. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
A search warrant must describe the area to be searched and the things to be seized with particularity. State v. Ortega 114 N.M. 193,199; 836 P.2d 639, 645 (Ct.App. 1992). The requirement that warrants must particularly describe the things to be seized is designed to "make general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is taken nothing is left to the discretion of the officer." State v. Paul, 80 N.M. 521, 523; 458 P.2d 596, 598 (Ct.App. 1969), citing Marron v. United States, 275 U.S. 192 (1927). A court must be particularly wary of sanctioning an overbroad search warrant when the items to be seized are written materials which are simply sought because of the ideas which they contain. Stanford v. Texas, 379 U.S. 476, 486 (1965).
The affidavits in support of the search warrants for Mr. Rendleman's Embudo and Santa Fe homes both describe property to be seized in an identical fashion. Although seven categories of items are listed, only two arguably target evidence of a crime: "photographs and negatives of the alleged victims or other children depicting nudity and/or sexual activities;" and "undeveloped film ... that might reveal other potential victims and identify the defendant." The remaining categories permit the search and seizure of innocuous, innocent material which was not even remotely related to criminal activity. Consequently the officers seized commercial video tapes, photographs, computer printouts, and works of art by a nationally-recognized artist which had nothing to do with the alleged crime, and which were ultimately returned to Mr. Rendleman.
The warrants in this case authorized precisely the kind of "exploratory rummaging" which the particularity requirement of the Fourth Amendment was designed to prevent. In fact, the search of each home lasted over five hours, as officers searched for and seized items such as personal correspondence and art work. These overbroad warrants essentially allowed the officers to seize any printed which they, in the unfettered exercise of their discretion, decided to take. Such a warrant is fatally flawed, and therefore all of the seized evidence must be suppressed. Cf. United States v. Leary, 846 F.2d 592, 610 (10th Cir. 1988) [evidence properly seized must be suppressed as a sanction to deter future overbroad warrants].
. The Warrants Did Not Permit A Nighttime Search.
A nighttime search is particularly intrusive. United States v. Callwood, 66 F.3d 1110, 113 (10th Cir. 1995). Consequently, NMRA, Rule 5-211 provides that a search warrant shall be served between the hours of 6:00 a.m. and 10:00 p.m., unless the issuing judge authorizes a nighttime search. This rule reflects an implicit assumption that nighttime searches are per se unreasonable. State v. Hausler, 101 N.M. 143, 145, 679 P.2d 811 (1984) (Walters, J., dissenting). Consequently, where evidence is improperly seized as a result of a nighttime search it must be suppressed. State v. Dalrymple, 80 N.M. 492; 458 P.2d 96 (Ct.App. 1969)
In this case neither party disputes that the warrant for the Santa Fe home was served after dark, just before 8:00 p.m. More important, the search of the Santa Fe home lasted until almost 1:00 a.m. There was no appropriate provision in the warrant which permitted a nighttime search, and the State has never made any showing to explain why a warrant issued at 9:45 in the morning had to be served well into the night. Consequently, because the officers conducted an unauthorized nighttime search, the evidence seized from the Santa Fe home must be suppressed.
Conclusion
For all of the foregoing reasons, Mr. Rendleman and Ms. Barbosa respectfully request that this Court grant their motion to suppress the evidence seized in an unconstitutional search of the homes in Santa Fe and Embudo.
Dated: July 21, 2000

Respectfully submitted,

______________________________________
Dan Cron, Esq.
Dan Cron Law Firm, P.C.
125 Lincoln Ave., Suite 400
Santa Fe, New Mexico 87501
(505) 986-1334

Attorney for Defendant Mark Rendleman

________________________________________
Daniel R. Marlowe
The Marlowe Law Firm, P.C.
P.O. Box 8207
Santa Fe, New Mexico 87504
(505) 988-1144

Attorney for Defendant Tiffany Mia Barbosa

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of July, 2000, I served a true and correct copy of the foregoing pleading on the following counsel by first class U.S. mail, postage prepaid:
Maria Sanchez-Gagne, ADA
P.O. Box 2041
Santa Fe, New Mexico 87504-2041

______________________________
ROTHSTEIN, DONATELLI, HUGHES,
DAHLSTROM, SCHOENBURG & ENFIELD