This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. No. 30,274 9 MANUEL MARTINEZ, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 12 Sheri A. Raphaelson, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Adrianne R. Turner, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 211 Record proper references are to th e record for District Court Case No. D-0117-CR-200900178. 2 SUTIN, Judge. 1 Defendant Manuel Martinez appeals the district court’s revocation of his 2 probation. We affirm the district court. 3 BACKGROUND 4 On October 15, 2009, Defendant pleaded guilty to three counts of aggravated 5 assault with a deadly weapon and one count of shooting at an inhabited dwelling or 6 occupied building. [RP 30-33 1 ] He was sentenced to ei ghteen months incarceration 7 on each charge for a total of six years, followed by parole. [RP 32] All of the 8 incarceration was suspended, and Defendant was placed on three years probation with 9 conditions including not consuming or possessing alcohol. [RP 32, 41] 10 On January 29, 2010, Defendant was stopped for suspicion of driving while 11 under the influence of alcohol (DWI) by a police officer driving an unmarked police 12 surveillance vehicle. [MIO 2; RP 41] The officer, Abraham Baca, was not wearing 13 a police uniform, but was wearing a “state poli ce jacket” to indicate his official status. 14 [MIO 2] After a hearing, the distri ct court revoked Defendant’s probation and 15 sentenced him to thirty days incarcer ation followed by continued supervised 16 probation. [RP 45-46] 173 ADEQUACY OF DISCOVERY 1 Defendant asserts that the State did not provide him with a witness list and 2 discovery sufficiently in advance of the probation revocation hearing to allow him 3 time to adequately prepare. [DS 3; MIO 3] At the start of his probation revocation 4 hearing, Defendant informed the districtcourt that the State had not provided a 5 witness list or discovery and argued that without these he would be unable to prepare 6 for the hearing. [DS 2] The court stay ed its ruling on the motion and proceeded to 7 take evidence. [Id.] The only witness was Officer Baca, who testified among other 8 things that he had made an audio recordi ng of the encounter, buthe did not have it 9 with him. [DS 3] It had not been producedearlier. [Id.] The district court denied 10 Defendant’s motion alleging a violation of Rule 5-805(I) NMRA and ruled that 11 Defendant had consumed alcoholin violation of his conditions of probation. [DS 3; 12 RP 45-46 (No. 2009-00178)] “[T]he full rights owed a criminal defendant in a 13 criminal prosecution do not apply in probation revocation proceedings, and only 14 minimum due process requirements must be met.” State v. Sanchez , 109 N.M. 718, 15 719, 790 P.2d 515, 516 (Ct. App. 1990); see alsoRule 11-1101(D)(2) NMRA 16 (providing that the Rules of Evidence do not apply in probation revocation 17 proceedings). Rule 5-805(G) and (H) provide for an initial hearing and an 18 adjudicatory hearing in probation revocation cases, with the latter commencing no 194 later than sixty days after the former. Ru le 5-805(I) provides that “[t]he parties shall 1 exchange witness lists and di sclose proposed exhibits no le ss than ten . . . days after 2 the initial hearing.” 3 In State v. DeBorde , 1996-NMCA-042, ¶ 9, 121 N.M. 601, 915 P.2d 906, this 4 Court noted the potential loss of liberty atstake in a probation revocation proceeding 5 and stated: 6 [T]ermination [of probation] calls for a reasonably orderly process, 7 including at least some discovery prior to the hearing. The rules of 8 criminal procedure, applied with dueregard to the nature of probation 9 revocation hearings, provide an accep table framework for that process. 10 While we acknowledge that probationers are not entitled to full 11 discovery under the rules, we are persuaded that they are entitled to 12 reasonable discovery in these hearings. 13 Citing State v. Sandoval , 99 N.M. 173, 175, 655 P.2d 1017, 1019 (1982), this Court 14 also considered whether the defendant had been prejudiced by the lack of pre-hearing 15 discovery and conclude d he was prejudiced by the lack of opportunity to investigate 16 an expert witness’s qualifications. DeBorde , 1996-NMCA-042, ¶ 14. 17 In the present case, Defendant asserts that he was not given a witness list or 18 other discovery materials. [D S 2] He apparently had a c opy of the report of violation, 19 however, and could determine from this who would likely be called as witnesses and 20 the essence of their testimony. [RP 35-37] As noted earlier, the State’s only witness 21 was the arresting officer. [DS 2-3] This case, unlike DeBorde , does not involve 225 questionable expert testimony or any other factor that would have made advance 1 disclosure essential. The district court based revocation on Defendant’s consumption 2 of alcohol in violation of the terms of his probation, not on driving while under the 3 influence of alcohol. [RP 45] Thus, the State’s evidence did not need to prove the 4 elements of DWI. 5 We conclude that Defendant was not prejudiced by the State’s violation of Rule 6 5-805(I) and affirm the district court on this issue. 7 ARREST BY OFFICER OUT OF UNIFORM 8 Defendant asserts that the district c ourt committed reversible error when it 9 found a traffic stop to be reasonable where the arresting offi cer was driving an 10 unmarked police surveillance vehicle and wa s not wearing a New Mexico State Police 11 uniform. 12 Defendant was stopped for su spicion of DWI. [RP 41] New Mexico statutes 13 provide: “No person sh all be arrested for violating the Motor Vehicle Code . . . or 14 other law relating to motor vehicles punishable as a misdemeanor except by a 15 commissioned, salaried peace officer who, atthe time of arrest, is wearing a uniform 16 clearly indicating the peace officer’s official status.” NMSA 1978, § 66-8-124(A) 17 (2007). “Members of the New Mexico st ate police, sheriffs, and their salaried 186 deputies and members of any municipal poli ce force may not make arrest for traffic 1 violations if not in uniform[.]” NMSA 1978, § 66-8-125(C) (1978). 2 If any person is arrested or brought totrial for violation of the Motor 3 Vehicle Code or other law, ordinan ce or regulation relating to motor 4 vehicles punishable as a misdemeanor by any officer, agent or employee 5 of any political subdivision, or be fore any municipal judge, whose 6 compensation depends in any way upon the arrest or conviction of 7 persons violating these laws, ordinan ces or regulations, the fact of such 8 compensation or that the person making the arrest was not in uniform at 9 the time is a defense to the charge. 10 NMSA 1978, § 66-8-137(B) (1978). 11 To the extent that Section 66-8-137(B) may apply to the officer’s stop of 12 Defendant for suspected DWI, we propose to conclude that the issue before us does 13 not involve a “violation of the Motor Vehicle Code or other law, ordinance or 14 regulation relating to motor vehicles.” Thus, Section 66-8-137(B) is not relevant to 15 the probation revocation proceedings alleging possession of alcohol. 16 Sections 66-8-124(A) and 66-8-125(C) are directed at the police and do not 17 specify a remedy for a person arrested by an officer out of uniform. In State v. 18 Slayton , 2009-NMSC-054, ¶¶ 28-34, 147 N.M. 340, 223 P.3d 337, our Supreme Court 19 held that the defendant’s unauthorized seizure by a police aide did not require 20 suppression of evidence under the Fourth Ame ndment. The Court held that “an arrest 21 made by a state actor in violation of a statute is not per se a violation of the Fourth 22 Amendment. The pertinent question is whether the state actor who seized the 237 defendant had probable cause to believe that a person ha s committed a crime in their 1 presence.” Id. ¶ 33 (alteration omitted) (internal quotation marks and citations 2 omitted). Defendant in the present case does not argue that there was no probable 3 cause to arrest him. We conclude th at the Fourth Amendment does not require 4 suppression of the evidence obtained in Defendant’s arrest. 5 Defendant’s memorandum in opposition also argues that his arrest was 6 improper under Article II, Section 10 of the New Mexico Constitution. In State v. 7 Marquart, 1997-NMCA-090, 123 N.M. 809, 945 P.2d 1027, this Court held that under 8 the New Mexico Constitution, the exclusionary rule applies toprobation revocation 9 proceedings. Neither Defendant’s docketing statement nor his memorandum in 10 opposition indicates that an argument under Article II, Section 10was preserved in 11 district court. Accordingly, we do not address this question. 12 CONCLUSION 13 For the reasons stated in this opinion, we affirm the district court. 14 IT IS SO ORDERED. 15

__________________________________ 16 JONATHAN B. SUTIN, Judge 17 WE CONCUR: 18

______________________________________ 198 CYNTHIA A. FRY, Chief Judge 1

______________________________________ 2 LINDA M. VANZI, Judge 3