Legal Question in Criminal Law in New Mexico

Re: search of a vehicle by probation officers

Your rights under the 5th and 14th Amendments to be secure from intrusive searches & seizures by law enforcement are not absolute. You can 'waive' those rights [give them up] and you did by signing the probation conditions of release.

Under those circumstances, having waived your rights, you have no standing to complain about the search you describe. Neither your permission nor your presence are required under the clause you signed.

Sorry. That was the price of being granted probation in the first place.

Re: search of a vehicle by probation officers

You may have heard the old saw that "possession is nine points of the law." The agreement to allow a search extends to any item of property (car, boat, glider, airplane, whatever) of which the probationer is in possession, regardless who is the lawful owner. As far as a search conducted outside the presence of the probationer, where an arrest has been effected, this is called an "inventory search." It is very well established law that police have a right to inventory any vehicle seized. It is also well established law that police have the right to impound any vehicle where it would otherwise be left abandoned because of an arrest. The official purpose of an inventory search is to protect the police against civil claims that property was missing after an arrest in which a vehicle was impounded. However, if during the course of an inventory search evidence of a crime is discovered, such evidence can be used in a criminal prosecution.

As to the right to be present at an inventory search - there isn't one. These searches are normally conducted outside the owner/posessor's presence, because that person is in jail at the time of the inventory search.

D. Montoya

MONTOYA LAW, INC.