A-1-CA-36369 | Omnilex

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Court of Appeals of New Mexico
Filed 8/23/2019 11:16 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Opinion Number: Filed 8/23/2019 11:16 AM
Filing Date: August 23, 2019 A. > :
al

No. A-1-CA-36369 Mark Reynolds
NEW MEXICO
CONSTRUCTION INDUSTRIES
DIVISION AND MANUFACTURED
HOUSING DIVISION,

Petitioner-Appellee,
v.
RABBI Y’HOSHUA COHEN,

Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY

Angie K. Schneider, District Judge

Hector H. Balderas, Attorney General

Sally J. Galanter, Special Assistant Attorney General
Albuquerque, NM

for Appellee

Rabbi Y’Hoshua Cohen
Alto, NM

Pro Se Appellant

OPINION
M. ZAMORA, Chief Judge.
{1}, | Respondent Y’Hoshua Cohen appeals the district court’s order requiring him
to allow investigators, acting under the authority of the New Mexico Construction
Industries and Manufactured Housing Division (the Division), to enter his property
to inspect for code violations. Respondent, pro se, argues, among other things, that
the order violates his Fourth Amendment right to be free from unreasonable searches
and seizures. Concluding that an administrative search warrant supported by
probable cause was required to conduct the search of Respondent’s premises, we
reverse and remand with instructions to the district court to issue findings
determining whether probable cause has been shown to support the issuance of an
administrative search warrant.
BACKGROUND
{23 Respondent’s property is located in Alto, New Mexico. Evidence presented at
trial demonstrated that Respondent, while he also lived there, rented out parts of his
property as “apartments” to tenants. At the heart of this case is whether Respondent
conducted new construction without a permit on his property to create these
“apartments,” contrary to 14.5.2.8(A) NMAC, entitled “Permits required.”
33 The Division is charged with adopting and enforcing codes and standards for

construction. NMSA 1978, § 60-13-1.1 (1989). The Division received two written

complaints regarding Respondent’s property. It received a letter from an attorney on
behalf of Jennifer Wright, a former tenant of Respondent, regarding the unsafe
conditions of Respondent’s property. Ms. Wright’s affidavit, attached to the letter,
stated she had significant health issues from renting from Respondent, including
headaches and nausea she attributed to a swamp gas smell and either no or
inadequate venting in the home. The attorney’s letter requested that the Division
“take whatever action appropriate under your authority to immediately inspect and
determine whether the apartments are safe for occupancy.” The Division also
received a letter from the planning director of Lincoln County, Curt Temple,
expressing concern with Respondent’s property. Mr. Temple wrote that the Lincoln
County planning office had received complaints for several years about
Respondent’s property and that the “complaint has always been about the multiple
additions that have occurred on the property without proper permits, or inspections.”
Mr. Temple also asked that the Division inspect the property to ensure Respondent
was in compliance with the building code.

{4 Soon thereafter, the Division’s inspectors attempted to inspect the property to
look for code violations, but Respondent denied access. The Division then issued an
order requiring Respondent to schedule an inspection. The order stated that the
Division received a complaint alleging that Respondent had constructed additions to

his home without obtaining permits and that the additions are commercially leased

or rented. Respondent did not permit the inspection and instead filed a petition for a
writ of mandamus in the First Judicial District. The First Judicial District Court
granted the Division’s motion to quash the petition, ordering the case dismissed with
prejudice and finding that the Division had the statutory authority to conduct an
inspection and pursue any related relief.

{5} The Division then filed a petition in the Twelfth Judicial District seeking a
court order to enforce its “administrative order’ demanding entry to inspect
Respondent’s property. The Division asserted that it had a right to enter the property
to inspect for violations based on NMSA 1978, Section 60-13-42(A) (2011), which
provides in part: “A state certified inspector may, during reasonable hours, enter any
building or go upon any premises in the discharge of the inspector’s official duties
for the purpose of making an inspection of work performed or for the purpose of
testing any installation authorized within the jurisdiction of the inspector’s trade
certification.”

{6} Respondent filed an answer to the petition in which he argued, in part, that the
Division could not simply secure an order from the district court to enforce its
administrative order and that under the Fourth Amendment, a search warrant based
on probable cause was required. The district court ultimately held a trial on the merits
where the Division presented witness testimony and introduced exhibits into

evidence. Omar Halama, the Division’s compliance officer, Thomas Maese, the

Division’s chief inspector, and Clay Bailey, LP Gas Bureau Chief, each testified
about complaints the Division had received and each of their fruitless efforts to
obtain consent to search Respondent’s property. For the presentation of his case,
Respondent testified by way of making a statement and represented that there had
not been any new construction since he purchased the property.

(7; In its oral findings, the district court stated that it was basing its findings and
conclusions “on the totality of what was submitted.” The district court issued a
written “Trial Order” (order) directing that the Division would inspect the property
within twenty days of the order. In it, the district court made the following findings:
(1) the Division has an obligation to conduct an investigation upon receipt of
complaints as to life and property safety, (2) the Division has the statutory authority
and the statutory right to conduct an inspection and to pursue any relief based on its
statutory duty to protect life and property safety, and (3) the Division has a statutory
duty to protect life and property by ensuring code compliance. Otherwise, the district
court made no findings of fact.

DISCUSSION

I. The Fourth Amendment

{83} The primary question before us is whether the Division can enforce its
administrative order statutorily or whether an administrative search warrant is

required. Respondent argues that the district court order permitting the Division to

search his property violates his Fourth Amendment rights because it is a
“nonconsensual, warrantless, administrative” entry. Quoting Mimics, Inc. v. Village
of Angel Fire, 394 F.3d 836, 844 (10th Cir. 2005), Respondent contends that a search
warrant was required for the Division to search his property because “New Mexico’s
interest in safeguarding the well-being of the public by prohibiting unsafe
construction does not necessarily equate with a need for nonconsensual, warrantless,
investigative entries.”

(93 | In response, the Division argues that the Fourth Amendment is not implicated
by a court order to inspect a building when no entry or inspection occurred without
judicial authorization. Thus, the Division contends that the district court did not err
in ordering the search to take place. Moreover, the Division argues that even if the
Fourth Amendment does apply, warrantless entry is permitted because the case falls
into an exception to the administrative search warrant requirement.

A. Standard of Review

{10} “We review any factual questions under a substantial evidence standard and
... review the application of the law to those facts, making a de novo determination
of the constitutional reasonableness of a search or seizure.” State v. Sewell, 2009-
NMSC-033, § 12, 146 N.M. 428, 211 P.3d 885 (alteration, internal quotation marks,
and citations omitted); see State v. Williamson, 2009-NMSC-039, 4 28, 146 N.M.

488, 212 P.3d 376 (explaining that in the context of a warrantless search, we review

ie.)

the lower court’s determination de novo). Whether a warrant is required by the
Fourth Amendment and whether an exception to the warrant requirement applies
require a de novo review. See State v. Vargas, 2017-NMSC-029, 16, 404 P.3d 416
(reviewing the Fourth Amendment argument de novo); State v. Trudelle, 2007-
NMCA-066, § 28, 142 N.M. 18, 162 P.3d 173 (applying a de novo standard of review
to the question of whether exigent circumstances supported warrantless entry).

B. Under the Fourth Amendment, the Division’s Search Required an

Administrative Search Warrant Supported by a Finding of Probable
Cause

{11} The Construction Industries Licensing Act (the Act), NMSA 1978, §§ 60-13-
1 to -59 (1967, as amended through 2019), charges the Division with “promot[ing]
the general welfare of the people of New Mexico by providing for the protection of
life and property by adopting and enforcing codes and standards for construction,
alteration, installation, connection, demolition and repair work.” Section 60-13-1.1.
The New Mexico Construction Code requires a permit for any building or structure.
14.5.2.8(A) NMAC (“[N]o building or structure shall be erected, constructed,
enlarged, altered, repaired, moved, improved, removed, converted or demolished, no
electrical wiring, plumbing or mechanical work and LP gas work as defined and
described in the applicable New Mexico construction codes for those trades, may be
installed, repaired or maintained in or on such building or structure, unless the

applicable permit has first been obtained from the division, unless otherwise

provided by statutes or rule.”). The Act provides that “[a] state certified inspector
may, during reasonable hours, enter any building or go upon any premises in the
discharge of the inspector’s official duties for the purpose of making an inspection
of work performed or for the purpose of testing any installation authorized within
the jurisdiction of the inspector’s trade certification.” Section 60-13-42(A). To
ensure compliance, “[t]he commission or division may enforce in the district court
of the county in which the offense was committed the provisions of the . . . Act by
injunction, mandamus or any proper legal proceeding.” Section 60-13-53. Certain
violations under the Act can bring criminal or disciplinary penalties. See Section 60-
13-52 (penalizing falsely holding out as a contractor or journeyman); 14.5.2.16
NMAC (explaining that a fee or disciplinary action may be assessed for failure to
obtain a permit before beginning work).

{12}. But, the Division’s statutory authority is still subject to the constitutional
limitations of the Fourth Amendment. See Marshall v. Barlow’s, Inc., 436 U.S. 307,
325 (1978) (holding that part of the Occupation Safety and Health Act (OSHA) was
unconstitutional “insofar as it purports to authorize inspections without a warrant or
its equivalent”); N.M. Envel. Improvement Div. v. Climax Chem. Co., 1986-NMCA-
137, § 6, 105 N.M. 439, 733 P.2d 1322 (citing Marshall and concluding that if a
statutory scheme provides the governmental agency with sufficient authority to

obtain a search warrant and “consent to enter and inspect is denied, an administrative

THN BH W

search warrant is [necessary]”). The Fourth Amendment which is applicable to the
states through the Fourteenth Amendment states:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.

U.S. Const. amend IV;!' see Mapp v. Ohio, 367 U.S. 643, 646 n.4, 655 (1961). The
primary purpose of the Fourth Amendment is to “safeguard the privacy and security
of individuals against arbitrary invasions by governmental officials.” Camara v.
Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 528 (1967).

{13}. The United States Supreme Court has held that the Fourth Amendment applies
to searches and seizures in the civil context. /d. at 534. Specifically, administrative
searches by government inspectors “are significant intrusions upon the interests
protected by the Fourth Amendment,” id, and thus, searches by administrative
agencies must comport with the requirements and limitations of the Fourth
Amendment. See Barlow’s, Inc., 436 U.S. at 311, 324-25 (holding that a search
warrant was required to search the nonpublic area of an electrical and plumbing

installation business even though the OSHA statute authorized warrantless searches

' Although Respondent briefly cites to N.M. Const., art. II, § 10, he fails to
develop any argument that the New Mexico Constitution offers different protections.
“This Court has no duty to review an argument that is not adequately developed.”
Corona v. Corona, 2014-NMCA-071, { 28, 329 P.3d 701. Therefore, we only review
his federal constitutional claim.

of a business); See v. City of Seattle, 387 U.S. 541, 545 (1967) (holding that
“administrative entry, without consent, upon the portions of commercial premises
which are not open to the public may only be compelled through prosecution or
physical force within the framework of a warrant procedure”); Mimics, Inc., 394
F.3d at 847 (concluding that a building inspector “was required to seek a warrant to
remain in compliance with the Fourth Amendment” to search a corporation’s private
condominium); Climax Chem. Co., 1986-NMCA-137, § 6 (considering an
administrative inspection of a chemical plant and holding that “[o]btaining a search
warrant, as was done in this case, is the proper procedure”). Therefore, “except in
certain carefully defined classes of cases, a search of private property without proper
consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”
Camara, 387 U.S. at 528-29 (citing supporting cases); see Climax Chem. Co., 1986-
NMCA-137, 4 6 (“In the event consent to enter and inspect is denied,

an administrative search warrant is required.” (citing Barlow’s, Inc., 436 U.S. 307)).

We begin by examining whether the order satisfies the requirements of the Warrant
Clause.
{143 The Division argues that no inspection occurred without judicial

authorization, and therefore, the Fourth Amendment is not implicated here. Citing

no authority, the Division argues that the order “provid[ed] much more protection

CoO WANDMN

and accountability than a search warrant” and is “certainly a more than adequate
substitute for a warrant.”
{15} The “precise and clear” words of the Warrant Clause of the
Fourth Amendment “require only three things” for a valid search warrant:
First, warrants must be issued by neutral, disinterested magistrates.
Second, those seeking the warrant must demonstrate to the magistrate
their probable cause to believe that the evidence sought will aid in a
particular apprehension or conviction for a particular offense. Finally,
warrants must particularly describe the things to be seized, as well as
the place to be searched.
Dalia v. United States, 441 U.S. 238, 255 (1979) (internal quotation marks and
citations omitted). We first address the requirement that the Division demonstrate
probable cause because it is dispositive to our analysis.
{16} Administrative probable cause exists based on either: (1) “specific evidence
of an existing violation” or (2) “a showing that reasonable legislative or
administrative standards for conducting an inspection are satisfied with respect to a
particular establishment.” Barlow’s, Inc., 436 U.S. at 320 (alteration, omission,
internal quotation marks, and citation omitted). Since the Division based its order to
search on specific complaints regarding Respondent, this case falls into the first
category, specific evidence. While “[a]n administrative warrant application based
upon specific evidence is more analogous to an application for a criminal search

warrant than to an application for a search warrant under a regulatory scheme[,]”

Marshall v. Horn Seed Co., 647 F.2d 96, 101 (10th Cir. 1981), the probable cause

standard in administrative cases differs from the standard in criminal cases. See
Wilson Corp. v. State ex rel. Udall, 1996-NMCA-049, 9 9, 121 N.M. 677, 916 P.2d
1344 (stating that “probable cause does not have the same meaning in the context of
administrative searches that it has in the context of searches for evidence of crime’’).
Rather, when, like in this case, the search is “grounded not upon conformance with
administrative or legislative guidelines but upon ‘specific evidence’ of
violations .. ., there must be some plausible basis for believing that a violation is
likely to be found.” Marshall, 647 F.2d at 102. “The facts offered must be sufficient
to warrant further investigation or testing.” /d. For an administrative warrant, “[i]t is
not sufficient that the affiant ... simply state that a complaint was received and detail
the conditions alleged to be unsafe[;]” rather, the “warrant application must, of
course, inform the [judicial officer] of the substance of the complaint so that [it] can
determine whether the alleged conditions, if true, constitute a violation.” Jd. at 103.
117} Here, the district court’s order found that the Division had statutory authority
to conduct an inspection; however, the order lacked a determination of whether
probable cause supported an administrative search. As we have stated, merely
having statutory authority is not the end of the inquiry. See Climax Chem. Co., 1986-
NMCA-137, § 5-6 (considering a similar statutory scheme in which the statute
provides for inspections and holding that a search warrant was required). Instead,

the district court needed to determine whether there was a plausible basis to believe

that a violation of the code is likely to be found. /d. § 12. Because the order lacked
any findings related to probable cause, the district court erred. To be clear, our
holding is not that the district court lacked specific evidence of an existing violation
to support a finding of probable cause under this standard, but rather that the district
court did not enter the requisite findings, whether or not there was probable cause.
We now turn to whether this case falls into an exception permitting warrantless
searches.

{18} Because Respondent did not consent to the inspection, a warrant supported by
probable cause is required unless this case falls into one of the “certain carefully
defined classes of cases” permitting warrantless searches. See Michigan v. Tyler, 436
U.S. 499, 508-09 (1978) (internal quotation marks and citation omitted). The
Division argues that this case does not require a search warrant because it falls into
an exception to the general prohibition of warrantless searches that has developed
for pervasively regulated businesses and “ ‘closely regulated’ industries long subject
to close supervision and inspection.” Barlow’s, Inc., 436 U.S. at 313 (internal
quotation marks and citation omitted); see United States v. Biswell, 406 U.S. 311,
316 (1972) (“[I]f the law is to be properly enforced and inspection made effective,
inspections without warrant must be deemed reasonable official conduct under the
Fourth Amendment.”); State ex rel. Envtl. Improvement Agency v. Albuquerque

Publ’g. Co., 1977-NMSC-083, ¥ 3, 91 N.M. 125, 571 P.2d 117 (listing requirements

for a nonconsensual administrative inspection of a business); State v. Montoya,
1993-NMCA-097, 7 10, 116 N.M. 297, 861 P.2d 978 (explaining that “if certain
criteria are met, closely regulated industries with a history of pervasive government
regulation may be inspected without a warrant”). The United States Supreme Court
has explained that “[t]he element that distinguishes these [closely regulated]
enterprises from ordinary businesses is a long tradition of close government
supervision, of which any person who chooses to enter such a business must already
be aware.” Barlow’s, Inc., 436 U.S. at 313.

(193 The Tenth Circuit has already rejected the argument that “balancing the
important government interest in safe construction against any individual harm from
government intrusion justifies as reasonable brief, unauthorized investigative
entries[.]” Mimics, Inc., 394 F.3d at 844. The Tenth Circuit explained that “New
Mexico’s interest in safeguarding the well-being of the public by prohibiting
unsafe construction does not necessarily equate with a need for nonconsensual,
warrantless, investigative entries.” Jd. We are persuaded by the Tenth Circuit, and
the Division fails to distinguish this case or cite us to any other contrary authority
suggesting that construction is a pervasively regulated industry. See Curry v. Great
Nw. Ins. Co., 2014-NMCA-031, 928, 320 P.3d 482 (“Where a party cites no
authority to support an argument, we may assume no such authority exists.”); see

also Barlow’s, Inc., 436 U.S. at 313 (clarifying that “[t]he clear import of our cases

is that the closely regulated industry of the type involved in Colonnade [Catering
Corp. v. United States, 397 U.S. 72 (1970)] and Biswell is the exception[,]” not the
general rule).

{20} Finally, the Division argues that Respondent’s property is open to the public,
and therefore a warrantless search is lawful. However, the Division’s conclusory
statement is an undeveloped argument that we will not review. See Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, § 15, 137 N.M. 339, 110 P.3d 1076 (“We
will not review unclear arguments, or guess at what [the plaintiff's] arguments might
be.”).

213. Thus, under the facts before us, no exception to the warrant requirement
applies. Because the district court only found that the Division had the statutory
authority and did not determine whether there was probable cause to support an
administrative search warrant, we hold that the district court erred by ordering
enforcement of the Division’s order.

II. Respondent’s Additional Arguments

922} Because we remand this case for further proceedings, we address
Respondent’s remaining arguments. We conclude they are all meritless.

(23} First, Respondent argues that the Division lacks standing to bring this petition
against Respondent because the Division lacks the requisite statutory authority.

However, as discussed above, Sections 60-13-42 and 60-13-53 give the Division the

authority to enforce the Act “in the district court of the county in which the offense
was committed . . . by injunction, mandamus or any proper legal proceeding.”
Section 60-13-53. Respondent’s arguments regarding any other statutory authority
are inapposite.

{243 Respondent additionally argues, as he did below, that the district court judge,
Judge Schneider, abused her discretion in refusing to recuse herself from this case.
Respondent bases this claim on Judge Schneider’s former representation of the
Property Owners’ Committee of Rancho Ruidoso Valley Estates (POCRRVE), a
committee Respondent has a contentious relationship with, and the fact that
Respondent met with Judge Schneider years ago relating to her representation of
POCRRVE. Respondent contends that Judge Schneider “had prior personal intimate
knowledge of the parties [and] issues, had formerly represented the party or parties
that made the false allegations to [the Division], and overall gave the appearance that
she would be biased.”

25} “We review the denial of a motion to recuse for an abuse of discretion.” State
v. Trujillo, 2009-NMCA-128, 7 9, 147 N.M. 334, 222 P.3d 1040. “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts
and circumstances of the case. We cannot say the [district] court abused its discretion

by its ruling unless we can characterize it as clearly untenable or not justified by

reason.” State v. Rojo, 1999-NMSC-001, 9 41, 126 N.M. 438, 971 P.2d 829 (internal
quotation marks and citation omitted).

{26} Rule 1-088.1(G) NMRA states that “[n]o district judge shall sit in any action
in which the judge’s impartiality may reasonably be questioned under the provisions
of the Constitution of New Mexico or the Code of Judicial Conduct[.]” However,
“there must be a reasonable factual basis for doubting the judge’s impartiality[,]”
State ex rel. Bardacke v. Welsh, \985-NMCA-028, § 62, 102 N.M. 592, 698 P.2d
462, and “[a] claim of bias, including a claim of an appearance of bias, cannot be
based on mere speculation.” Trujillo, 2009-NMCA-128, ¥ 11. “[RJecusal is only
required when a judge has become so embroiled in the controversy that he [or she]
cannot fairly and objectively hear the case.” State v. Riordan, 2009-NMSC-022,
q 14, 146 N.M. 281, 209 P.3d 773 (alteration, internal quotation marks, and citation
omitted). “In determining whether an objective observer would conclude that a
judge’s impartiality was questionable, an appellate court should look to see how the
judge arrived at the decision not to recuse and then should review the judge’s actions
for bias.” Trujillo, 2009-NMCA-128, § 10 (internal quotation marks and citation
omitted).

27 In Trujillo, this Court examined whether a district court judge abused its
discretion when it denied a request to recuse, upon allegations that before joining the

bench, the judge had been appointed as a contract public defender to represent the

victim in a separate matter. /d. 4] 3, 10. However, a private investigator in the case
determined that the judge’s former law partner actually appeared at all the hearings
in the victim’s case. Id. § 5. The judged stated on the record that she did not
personally represent the victim and thus denied the motion to recuse. /d. ¥ 4. This
Court held that the judge did not abuse her discretion because she did not actually
represent the victim, and she had no knowledge of the case. Jd. ¥ 12.

28} Similarly, here, Judge Schneider explained on the record that she had no
independent, personal knowledge or recollection or any prior legal proceeding that
would cause her to be biased, and that she was convinced she could be fair and
impartial. The record reveals that Judge Schneider’s former client, POCRRVE, was
not a party to this case. Like Trujillo, Judge Schneider did not actually represent a
party in this case, and she had no recollection of interacting with Respondent.
Respondent has not shown a factual basis to demonstrate bias, and thus, we cannot
say that Judge Schneider abused her discretion by not recusing herself.

29} Respondent also argues that the Division sought entrance to his property to
obtain evidence of alleged criminal violations of Section 60-13-52 (listing criminal
penalties for holding out as a contractor or journeyman within the meaning of the
Act without a license), and thus, the district court violated his rights by refusing to
appoint him counsel. Because Section 60-13-52 regards misdemeanors, Respondent

additionally argues that this case is therefore barred by the criminal statute of

limitation for misdemeanors. The criminal statute of limitations does not apply since
this is a civil matter regarding failure to permit and have inspections, and does not
involve criminal or unlicensed contracting. Additionally, Respondent fails to cite us
to anywhere in the record in which the Division sought to pursue criminal penalties
under Section 60-13-52. We conclude that Respondent does not have a right to
counsel. See Bruce v. Lester, 1999-NMCA-051, 94, 127 N.M. 301, 980 P.2d 84
(explaining that a party in a civil proceeding “does not have a right to appointed
counsel”).

30} We also reject Respondent’s unsupported argument that a court should not
hold a pro se party to the same standard as attorneys. We have already stated, on
many occasions, that we hold pro se litigants to the “same standard of conduct and
compliance with court rules, procedures, and orders as are members of the
bar.” Newsome v. Farer, 1985-NMSC-096, J 18, 103 N.M. 415, 708 P.2d 327. To
the extent Respondent argues that holding him to the “technical niceties of the law”
was a violation of his constitutional rights, this argument is unpreserved, and we will
not review it. See Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, 4 24, 314 P.3d
688 (“To preserve an issue for review on appeal, it must appear that appellant fairly
invoked a ruling of the [district] court on the same grounds argued in the appellate

court.” (internal quotation marks and citation omitted)).

{31} Respondent’s argument that the Division “enter[ed] into a scheme to abuse
the Electronic Filing System” and misused Odyssey is not developed and relies on
facts not in the record proper before us. We therefore also do not reach this argument.
See Muse v. Muse, 2009-NMCA-003, 7 51, 145 N.M. 451, 200 P.3d 104 (“It is not
our practice to rely on assertions of counsel unaccompanied by support in the record.
The mere assertions and arguments of counsel are not evidence.”).

{32} Finally, to the extent Respondent argues that the district court erred by failing
to have hearings on all of his motions he filed, we are not persuaded. “A request for
hearing shall be filed at the time an opposed motion is filed.” Rule 1-007.1(G)
NMRA. The district court pointed out to Respondent on the record that to have a
hearing on his motions, he had to request a hearing with the district court. We have
found nowhere in the record in which Respondent has requested a hearing that was
not granted.

CONCLUSION

{333 While the district court and the Division thoroughly followed the statutory
requirements, such statutory adherence does not, on its own, satisfy the important
Fourth Amendment requirements of the Warrant Clause. For the aforementioned
reasons, this case is reversed and remanded to the district court with instructions to
make a determination of whether probable cause exists to support the issuance of an

administrative search warrant.

1 {34} IT IS SO ORDERED.
-
M. MONICA ZAMORA, Chief Judge
WE CONCUR:
4 5 6
Megan P Duffy
MEGAN P. DUFFY, Judge
7 8
MICHAEL D. BUSTAMANTE, Judge Pro Tempore
20
2
3

August 23, 2019- New Mexico Construction Industries v. Rabbi Y’hoshua Cohen, No. A-1-CA-36369

Gesamter Gesetzestext

OCR transcription for search; preserved printed pages are authoritative

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