Albuquerque Criminal Lawyer Blog

A recent case from the New Mexico Court of Appeals points out the intersection of contract law and criminal law. Specifically, the New Mexico Court of Appeals held that criminal plea agreements are enforceable just as other contracts. In so doing, the Court also set forth some unique principles that apply to plea agreements that in most cases would not hold in a standard contract dispute.

The facts of State v. Gomez are interesting in their own right but need not be discussed in great depth here. In a nutshell, the defendant entered into a series of 3 plea agreements. Under the agreements, it was agreed by the State that he would be exposed to a maximum of 9 years on the 3 pleas agreements that were to run concurrently. The district court judge misconstrued the pleas to allow up to 21 years in prison. Based upon the misconstruction of the plea and a violation of probation, the court sentenced the defendant to 21 years, 16 years of which were suspended, for a total of 5 years of incarceration.

The defendant appealed and the Court of Appeals reversed the sentence sending it back to district court for sentencing consistent with the written plea agreements. In doing so, the Court made some interesting findings regarding the application of contract law to plea agreements.

The court began by recognizing that a plea agreement is a form of contract and should be treated as such by the court. The law of contract suggests that ambiguities in language should be construed against the draftsman. In case of criminal plea agreements, ambiguity according to the Court of Appeals should be construed against the State and in favor of the defendant. In so doing, the Court must determine the reasonable understanding of the defendant as to the terms of the plea.

The Court set forth exceptions to this rule that would not otherwise apply to contracts. The Court stated that if the plea is ambiguous, the district court judge may resolve ambiguities on the record. With general contract law, agreements or understandings outside the contract itself are typically not admissible to change the terms of the written contract. With criminal plea agreements, unlike the typical contract dispute, the court record if any serves to amend the terms of the plea.

This issue will be most interesting in magistrate and municipal court proceedings throughout New Mexico that are non-record cases, meaning that they are not recorded. This will pose some interesting issues in case of misconstruction of pleas in these non-record courts.

Having said all this regarding construction and interpretation of plea agreements in the face of ambiguous terms, the Court of Appeals stated that there was no such ambiguity present in the plea agreements at hand. The court found that the plea agreements were clear and that the sentencing judge had done nothing, though he had full authority to do so, to amend the plea agreements on the record.

Finally, because the Court found that the plea agreements were unambiguous and that the plea agreements would stand as written, the defendant was entitled to specific performance of the agreements. Again, specific enforcement is drawn from the law of contracts which allows the non-breaching party to enforce the agreements as written.

It was found that the defendant did not wish to withdraw his plea which he might have done in case the district court had refused to accept the plea at the outset. Instead, the defendant chose to enforce the pleas as written through specific performance. As such, the Court of Appeals returned the case to the district court for sentencing in line of the written agreements.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not unusual for a person to be arrested but never charged. It is also not unusual to be arrested and charged, but not convicted. When either of these situations arises, among the first concerns is the effect that the arrest will have on future employment.

The case-law and the EEOC make clear that with few exceptions employers are prohibited from blanket discrimination on the basis of arrests records alone. Such discrimination would constitute a violation of Title VII of the Civil Rights Act of 1964. The reasoning behind this is clear.

It is has been well established that arrest records alone are not a reliable indicator that the person has actually committed a crime. In addition, and related to the first, it is clear also that discrimination based upon arrest records alone has a highly discriminatory impact on minorities, particularly blacks and Hispanics. As such, these practices are highly discouraged.

There are some exceptions to this prohibition. However, the exceptions are fairly narrow and the burdens are on the employer to prove a legitimate basis for using an arrest record to justify a hiring or other employment decision. The EEOC sets forth the business justification exception with a thorough discussion in its report, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964."

Though business justifications may justify consideration of arrests records in hiring or other employment decisions, the burden is on the employer to show that the practice is necessary for its business operations. The employer must both show that the arrest indicates culpability and that the basis for the arrest has some rational relationship to the employment position at issue. If either is missing, then an arrest alone cannot form the basis of an adverse employment decision.

In New Mexico, the second criterion is perhaps the most problematic since many jobs here require certain levels of security clearance. However, other jobs might pose problems as well such as cashiering, banking, bookkeeping, accounting or other such jobs where the arrest was for theft or other crimes of dishonesty. There are certainly many other situations where the arrest if indicative of guilt would fall within the second prong of the business justification exceptions.

Though consideration of arrest in employment decisions may fall within the exception, there remain limitations. First, and foremost, there cannot be a blanket policy of excluding employment for anyone with an arrest record. This would most certainly violate the law. Instead, the employer must make additional inquiries into the circumstances of the arrest. The employer must then determine that the arrest in fact indicates guilt and that guilt of such an offense has some bearing on job performance. The burden is on the employer to prove both these elements.

All this being said (i.e. employers cannot have a blanket policy against hiring those with arrest records, the burden is on the employer, the burden is high and so on) the problem for employees in this position is that it may be hard to prove. More to the point, it may be very expensive to prove which may make obtaining an attorney quite difficult in the absence of some very compelling circumstances.

Collins & Collins, P.C.
Albuquerque Attorneys

Travel restrictions are a standard condition of release in criminal cases. Travel restrictions are often imposed on defendants even in minor misdemeanor cases. These restrictions are often routinely set as a condition of release even when there is no need for them. In some cases, restrictions on travel can have very harmful and unnecessary consequences for the defendant and his or her family.

It is very important to address travel restrictions at the earliest opportunity which may be at the first appearance or arraignment depending upon the circumstances. It is also very important to inform your attorney if travel restrictions will pose problems. These problems can arise in a variety of ways.

Job duties and family duties are the most common basis for modifying the conditions of release to lessen travel restrictions. Many New Mexicans must travel outside the restricted areas for a variety of job and family related reasons.

The travel restrictions often limit travel to the county of the defendant's residence. Sometimes, the travel restrictions will be less strict allowing travel to adjacent counties or even the State of New Mexico as a whole. Travel limitations which restrict travel to the county of residence or adjacent counties can cause enormous work and family related problems.

Because New Mexico is fairly spread out, people often work in counties other than where they reside. In addition, kids often go to school, have doctor's appointments, daycare, family support structures and so on outside the county of residence or even beyond adjacent counties. In addition, there are many defendants that must travel outside New Mexico for work.

Other issues can arise as well such as the need to care for sick parents or other family members that are outside the county or even the state. There may also be training and education requirements that require travel. In short, there are countless reasons a defendant might be required to travel outside his or her county or New Mexico.

Travel restrictions can cause severe burdens on the defendant and the family. At worst, the defendant could lose his or her job or the kids cannot get to school on time or perhaps at all due to the inability to travel. At best, unnecessary travel restrictions are a burden that serve neither the alleged victim or the public.

Depending upon the circumstances, the nature of the charges, the defendants criminal history, the defendant's record of attending all required hearings and so on, many judges will entertain modifications to the travel restrictions to minimize harmful and unnecessary burdens on the defendant and his or her family.

Work and family duties will be considered carefully by most judges as it is clearly to the benefit of none for the defendant to lose his job, the family to lose financial resources, or the family to suffer unnecessary burdens and losses. On the other hand, judges are less likely to entertain vacation and recreational travel though in some cases even these may be accommodated so long as the prosecutor does not oppose.

The most important thing to take from this is that the court needs to know the burdens that travel restrictions will cause the defendant. This means informing your attorney if you have one, or telling the court directly if you do not. Otherwise, the conditions are imposed as a matter of course. Once in place, it is much harder to get them modified and will require a motion and likely a hearing with the defendant present in court.

Collins & Collins, P.C.
Albuquerque Attorneys

A recent case from the New Mexico Court of Appeals addressed the validity of the consent to a search under the 4th Amendment. The case of State v. Norman Davis involved the search of an individual's property for marijuana.

In a joint operation, the New Mexico State Police, the New Mexico National Guard and officers from a number of other law enforcement agencies entered Mr. Davis' property to investigate the presence of marijuana. The numerous officers were heavily armed with handguns and AR-15 semi-automatic weapons. In addition, the operation included two Army National Guard helicopters which were hovering over the residence at the time that contact was made with Mr. Davis.

Mr. Davis had a greenhouse on his property. The investigation began as a result of helicopter surveillance that suggested the presence of marijuana in the greenhouse. The greenhouse had an opaque finish so it was not possible to view its contents from outside the greenhouse which raises some questions regarding the validity of the initial suspicion.

Against this backdrop, Mr. Davis was asked for consent to search his greenhouse. Mr. Davis asked the officer if he had to consent to which the officer responded "No", but it would take less than 30 minutes to obtain a warrant during which time Mr. Davis' property would be secured. During this conversation, the many other officers were scattered across Mr. Davis property to which Mr. Davis commented that it looked like they were already searching anyway.

Mr. Davis moved for suppression of the evidence arguing that the consent was invalid because it was not voluntary. His motion was denied. As a result, Mr. David entered a conditional plea reserving the right to appeal the illegal search and seizure question.
The New Mexico Court of Appeals found that there was no voluntary consent to the search. The Court laid out three requirements for voluntary consent to a search:

"First, the consent must be unequivocal and specific, second, the consent must be given without duress or coercion, and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights."

The Court found that the first requirement of a specific and unequivocal consent had been met. However, the Court determined that the second had not. Instead, the Court found that the consent had been given under duress and coercion. In holding that the consent was given under duress, the court cited the helicopters, the numerous armed law enforcement, the suggestion that refusal was futile, and the fact that from the defendant's perspective, the search was already under way.

Perhaps a more subtle approach would have been warranted under the circumstances given the fact that it was a greenhouse, not a mobile meth lab, and it was Norman Davis, not Tony Montana. In any event, a softer approach would have avoided the suppression of evidence and dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

There a variety of factors that come together during the holidays that far too often end with trip to jail and a journey through the courts. Sadly, the holiday season brings with it a significant increase in incidents of domestic violence. One need not look far to figure out the causes for this.

Alcohol is perhaps the chief culprit. Generally, alcohol is a significant contributor to incidents of domestic violence. This is well recognized and is one reason alcohol use is strictly prohibited as a condition of release in domestic violence cases. Violations of the prohibition on alcohol use have serious consequences for the defendant not infrequently resulting in confinement while a criminal domestic violence case is pending.

Unfortunately, use of alcohol increases substantially during the holidays. Most every party and get together will have alcohol. In addition, there are the alcohol fueled football game watching activities. Alcohol is often even served at company parties and holiday functions. It would be hard to avoid alcohol even if one were inclined to do so. And, many are predisposed in the other direction due to any number of circumstances.

Stress during the holidays can add significant pressures to a relationship. There are too many holiday stressors to enumerate here. Suffice it to say that stress coupled with alcohol can lead to some unfortunate outcomes.

Alcohol and stress cannot used to explain away domestic violence. Nor can it be used as an excuse. Domestic violence is a very serious issue with much deeper and complex explanations than a mix of alcohol and stress. On the hand, it is fairly well established that many people do not handle alcohol very well. They do things under the influence of alcohol that they would not otherwise do.

It is clear that stress and the lack of control or inhibitions brought on by alcohol can lead to escalation of situations that would not otherwise occur. The stress and emotions of the holidays can put everyone on edge. Throw in alcohol and the inhibitions may come down completely. As does the judgment.

What might otherwise be a rational conversation can quickly escalate to the point that the police are called by one of the parties, frightened children, friends or neighbors. Once the police are called out on a domestic violence call, even when the call itself may have been an overreaction fueled by alcohol, one of the parties is going to jail.

On occasion, it seems as if who goes to jail is simply a coin toss. One way or the other, the event can have extremely costly consequences for the family. Honestly, the attorney fees alone should be a deterrent. However, there are far more serious and lasting consequences beyond attorney fees such as the possibility of permanent criminal record and lifetime domestic violence offender registration.

In addition, and as a result of the finding of domestic violence, there can be severe employment consequences. In fact, a domestic violence conviction will make one ineligible for many jobs. In New Mexico, one chief concern is the loss of security clearances. And these are not all. There are several other consequences of a domestic violence finding including extremely severe immigration consequences.

The best way to avoid these outcomes is to avoid one of the primary causes which is over-drinking. If you cannot drink without over-drinking, then don't drink. And don't put yourself and your loved ones in a situation where this might even remotely become a problem.

In other words, if you cannot control yourself around an open bar, then stay away from parties. If you cannot go out with friends to watch football without overdoing it, then watch football at home. If tensions and stress are already high around your home, then don't throw gasoline on the fire. If you cannot resist the urge to drink even though you know drinking might lead to problems, then seek counseling. And understand that if you don't go voluntarily, the court will sternly nudge you in that direction.

The holidays can be trying. The aftermath can be even more difficult. This is particularly so if you are facing domestic violence charges. The stress of the holidays will not be alleviated one bit by a criminal prosecution in the new year. In the unfortunate event that domestic violence charges are a part of your holiday season, seek the guidance of an attorney before further harm is done.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals again addressed the issue of evidence of driving in a DWI case. The recent case of State v. Cotton is a bit hard to reconcile with the Court's other recent opinion in State v. Owelicio.

The Cotton case, like Owelicio, involved an immobile vehicle. Like Owelicio, the investigating officer found a vehicle beside the road. In Cotton, unlike Owelicio, the officer found an individual behind the wheel of the car. Along with the driver, the officer in Cotton found a female with a bloody lip, possibly a victim of domestic violence which was the impetus for the investigation to begin with. In addition, the officer found 4 small children in the car. Cotton failed the field sobriety tests. He refused the breath alcohol test which resulted in a charge of aggravated DWI. He was also charged with negligent child abuse.

Like Owelicio, the defendant made certain confessions. He confessed to drinking where Owelicio had confessed to driving despite evidence to the contrary. Cotton was convicted and appealed the verdict arguing the evidence was insufficient to support the DWI conviction. Specifically, he argued that the State had not proven that he was driving.

The State argued that it could be inferred that Cotton had been driving from the fact that the car was next to the road and Cotton neither lived in the car on the side of the road nor was it "placed there by aliens." The Court basically stated that the location of the vehicle next to the road did not prove that Cotton had been driving. He could have drank after pulling the car over. A finding of guilt required speculation on the part of the jury to find that he had been driving while intoxicated which the Court refused to allow.

The 2010 New Mexico Supreme Court case State v. Sims set forth requirements for a conviction where there was no witness to the driving but the defendant is in the vehicle. Basically, Sims requires that it be proven that defendant intended to drive the vehicle as evidenced by physical control over the vehicle. Sims makes clear that it applies only to cases premised on intent to drive, not cases such as Cotton where it is alleged that the defendant had driven in the immediate past.

Instead, the Court found the relevant case to be State v. Mailman, another 2010 New Mexico Supreme Court case. Remarkably, in the Mailman case, the officer found the defendant in the driver's seat. The car was not running and the keys were not in the ignition. However, the defendant admitted that he had been drinking and that he had thrown empty beer cans out of the vehicle while he was driving. Essentially, Mailman admitted to drinking and driving. He refused the breath alcohol test stating he was too drunk to pass. He was charged and convicted for aggravated DWI.

In Mailman, and in Cotton, the courts found that there was insufficient evidence of driving to support the DWI conviction. The Court in Mailman stated "[a]ctual physical control is not necessary to prove DWI unless there are no witnesses to the vehicle's motion and insufficient circumstantial evidence to infer that the accused actually drove while intoxicated." The Court in Mailman stated that the defendant might have been convicted based upon actual physical control and intent to drive but this had not been proven at trial. Nor had the State proven that he had driven. As result, the conviction was remanded for a new trial for the sole determination of whether he had driven in the immediate past.

The Court in Cotton, applying Mailman, found that the State had failed to prove the defendant had been driving. In addition, the State had not even attempted to prove control and intent to drive under Sims. Consequently, Cotton's conviction was reversed.

This decision is interesting in its own right. However, it is perhaps more interesting in comparison to the same Court of Appeals prior holding in State v. Owelicio. In that case, the car was on the side of the road, there was an intoxicated man changing two flat tires, and there was the defendant in the passenger seat. The passenger confessed to the DWI under protests from both the intoxicated man, who claimed a third party had been driving, and the officer who believed and told her she was lying.

The Court in Owelicio recognized that a confession alone without the corpus delicti (the act of driving while intoxicated) was insufficient. Yet the Court went to great lengths to find that the corpus delicti was established through corroborating evidence (the vehicle next to the road with 2 flat tires and 2 intoxicated individuals). The Court did not entertain the possibility that it could have been the same group of aliens that dropped Mr. Cotton's car next to the road had done likewise with the car in which witnesses had seen Owelicio traveling as a passenger? What about 2 flat tires changes the level of presumption or speculation necessary to show that Owelicio had been driving or that any DWI had occurred at all? The sequel is sure to come.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals revisited the issue of whether a confession by a defendant standing alone is sufficient for a conviction. State v. Owelicio is the first opportunity the Court has had to address the rules regarding confessions in a DWI case. The Court took some great logical leaps in order to uphold the DWI conviction.

The facts of the case were somewhat muddled but can be boiled down pretty succinctly. Basically, an Albuquerque police officer came upon a car on the side of the road with 2 flat tires and a man changing the tires. The officer pulled over and upon smelling alcohol on the man's breath asked if he had been drinking and driving. The man denied drinking and driving and said his friend had been driving and had left the scene to go get assistance. There was also a female present who was in the passenger seat. The dash-cam video showed her getting into the passenger seat as the officer approached. The female claimed that she had been driving. The man and the cop both told her she was lying, but she insisted. Finally, she was arrested, charged and convicted for DWI.

The rule is generally that a confession alone is not enough in the absence of other evidence of the crime. The Court addressed cases both from New Mexico and beyond regarding the circumstances under which a confession must be corroborated to stand alone.

The Court went through a rather lengthy analysis of the corpus delicti rule. Basically, the corpus delicti rule will allow the confession to stand in the absence of corroborating evidence because the existence of the crime itself is enough corroboration without necessarily identifying the perpetrator of the crime. The examples used by the court, and a common application of the rule, included homicide cases where the circumstances of the death and the condition of the corpse made it apparent that there had been a homicide. In these cases, the existence of the crime was clear and certain. The confession of the defendant was therefore supported by the clear existence of a crime.

To the contrary, the court noted a U.S. Supreme Court case where it found no such corpus delecti in a tax evasion case. In the 1954 US Supreme Court case of Smith v. United States, the court found the corpus delecti missing because the crime of tax evasion has no " "tangible injury which can be isolated as a corpus delicti."The same holds true of DWI in most cases in the absence of an accident.

The Court in Owelicio went to great lengths to uphold the DWI conviction first stating no corroboration was needed due to corpus delecti and then suggesting that there was other corroborating evidence standing in place of the corpus delicti. In conclusion, the Court stated that it was clear that the crime of DWI had been committed by someone and thus provided the foundation upon which to admit the defendant's confession in the absence of other corroborating evidence.

The Court in fact repeatedly suggested that there was corroborating evidence. The Court alluded to a corroborating witness who was the defendant's sister. However, it is later stated by the Court that the sister saw the defendant leave the bar where they had been drinking in the passenger seat. She stated further that she had been following the car in which her sister was traveling until they became separated. Thus, she provided no corroborating evidence at all that her sister had been the driver.

To the contrary, the sister, the man changing the blown tires, and even the cop provided evidence that she had not been driving. The Court ignored this and instead hung its argument on the corpus delicti rule saying it was obvious that someone had committed DWI. But the facts do not support this conclusion. DWI is far different matter than murder where there is a dead body involved. DWI is very different and there is nothing that would suggest a DWI in this case or most others in the absence of an intoxicated driver behind the wheel of a car.

What is it exactly about this case that made it obvious that someone had committed DWI? Two flat tires? A man who smelled of alcohol changing the tires? A denial by the man that he had been driving? A suggestion that someone else had been driving and left the scene? A clearly intoxicated female in the passenger seat taking responsibility for the DWI with no other evidence that she had ever been in the driver's seat? The cop who suggested she was lying and that he did not believe her? The man changing the tire who said she was lying? The sister saying she last saw her traveling in the car in the passenger seat?

None of these provide the corpus delicti required under prior caselaw. Instead, the Court redefined corpus delecti in order to uphold the conviction. After all, somebody needs to be punished for the DWI even if it is the wrong person. Let's hope this case sees its way to the New Mexico Supreme Court.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established in New Mexico that a law enforcement officer cannot extend the scope of a traffic stop beyond the initial basis for the stop in the absence of fairly restrictive circumstances. However, the issue of a passenger's right to challenge the scope of the ensuing investigation had not been specifically addressed until the recent New Mexico Court of Appeals case of State v. Portillo.

Portillo involved a routine traffic stop. The defendant, Portillo, was a passenger in the car. The officer went through the standard procedure of requesting the driver's license, insurance and registration. As he was conducting the investigation, the officer noticed that the defendant passenger "remained looking straight ahead with his hands in his lap, avoiding eye contact with Officer Thatcher and only glancing furtively at him once when Officer Thatcher moved." The officer found this behavior suspicious thereby expanding the scope of the traffic stop asking the driver and later the passenger whether there were drugs or weapons in the car and for consent to search the vehicle.

Both the driver and the defendant denied the presence of drugs or weapons but both consented to the search. Naturally, drugs were found and the defendant was charged with possession of narcotics. The defendant entered a conditional plea reserving his right to appeal the constitutionality of the search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

There were a number of interesting points addressed in the case. First, the Court noted that the alleged suspicious behavior was insufficient basis for expanding the investigation beyond the speeding investigation. The court noted a number of cases in New Mexico that clearly state that nervous behavior alone does not give rise to the reasonable suspicion necessary to expand the scope of a traffic stop.

Second, the Court addressed the defendant's standing to challenge the search of the vehicle. It is well established that a passenger has no legal standing to challenge the search of a vehicle. In short, the passenger has no expectation of privacy in this situation. However, the passenger can challenge both the stop and the subsequent expansion of the investigation beyond the scope of the stop since it effectively results in a seizure of the passenger by law enforcement. The passenger has an equal right to be free of illegal search and seizure as does the driver.

The Court noted that Article II, Section 10 provide greater protection than the 4th Amendment under federal law. Under federal case-law including United States Supreme Court precedent, law enforcement is given significantly greater latitude in extending the length and scope of a traffic stop. The officer may extend the scope of the investigation if reasonable suspicion of other crimes surfaces during the routine traffic investigation. The Court noted that under Fourth Amendment analysis, the scope of investigation and questioning may be expanded so along as the length of the stop is no longer than "the time required to conduct a reasonable investigation into the initial justification for the stop". In other words, under the 4th Amendment, the officer is given significant leeway in the scope of his "traffic" investigation.

As in many situations, the New Mexico Constitution provides greater protection that does the 4th Amendment. Under Article II, Section 10, there is no such latitude defined by the amount of time or inconvenience to the defendant which is inherently vague and susceptible to abuse. Unrelated questions beyond the scope of the traffic stop may be asked only when there is independent reasonable suspicion for the questioning, issues of officer safety suggest further questioning, or where the interaction has developed into a consensual encounter. Again, nervous behavior is not enough. Nor was there any reasonable basis for believing there were weapons or threats to officer safety. Finally, the defendant was already seized and therefore the encounter could not by definition be consensual since there was nothing suggesting that he was free to leave.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Nance, the New Mexico Court of Appeals considered whether a warrantless home arrest in a DWI case was unconstitutional and found that under the circumstances of this case, it was not.

Steve Chavez was leaving a business when he saw Koulungjim Nance's vehicle collide with his own in a parking lot. Chavez confronted Nance upon which Nance returned to his vehicle and drove away. During this encounter, Chavez detected a strong odor of hard liquor on Nance's breath. Chavez called 911 and drove after Nance.

Chavez observed Nance swerving into oncoming traffic, pulling out in front of traffic, speeding, and running stop signs. Within a few minutes, Nance arrived at his home with Chavez and police arriving soon after. The officers tried to make contact with Nance by knocking on the door and identifying themselves. Initially, Nance did not respond but 15 minutes later, he came out of the house. At that time, the officers administered a breathalyzer test registering scores of 0.29 and a 0.27.

The facts in Nance's trial were undisputed. The only issue before the district court was the suppression of the breath score for the warrantless home arrest. The district court agreed with the defense finding the warrantless home arrest unlawful under the 4th Amendment thereby suppressing the breath score.

In its ruling, the district court cited the1994 10th Circuit case of Howard v. Dickerson as follows; "minor offenses do not justify warrantless home arrests." The district court suggested that DWI was a minor offense for which there was no relevant exception under the misdemeanor arrest rule.

The Court of Appeals took exception to the characterization of DWI as a minor offense citing New Mexico Supreme Court precedent from the 2010 case of City of Santa Fe v. Martinez, '[t]he crime of DWI as defined by our Legislature is not a 'minor crime...compelling public interest in eradicating DWI occurrences and [their] potentially deadly consequences." As such, the Court justified the treatment of DWI as a felony for purposes of search and seizure analysis focusing on the exigent circumstances exception for warrantless searches.

The Court then addressed whether exigent circumstances existed sufficient to justify the warrantless encounter with Nance. Citing the 1997 New Mexico Supreme Court case of State v. Gomez, the Court defined exigent circumstances as "an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence."

The Court cited a number of cases most notably the 1986 New Mexico Court of Appeals case of State v. Copeland for the proposition that the possible dissipation of alcohol levels does meet the exigent circumstances test. Copeland involved a hit and run accident that killed a police officer. The investigating officers traced the defendant back to a hotel room where they forcibly entered his room and made the arrest. In that case, the court found that "the alcohol thought to be in defendant's system would be metabolizing" and that "based on the destruction of evidence rationale alone, the trial court was warranted in finding exigent circumstances."

The Court did not go so far as to suggest that dissipation of alcohol by itself is sufficient grounds to justify a warrantless home entry, the court declined to read it that way because the Copeland case had an exceptional set of facts. Instead, the Court found that DWI arrests were still constrained by the reasonableness requirements in the probable cause inquiry of felony warrantless arrests.

In addressing the reasonableness requirement, the Court noted that the police did not enter Nance's house, did not draw their weapons, and did not search the premises but simply stood outside of his house for 15 minutes. The Court found this to be reasonable as only a "slight intrusion was well tailored to the exigency in this case."

In sum, the Court concluded that there were both exigent circumstances present for the warrantless encounter and that the warrantless encounter was reasonable under the circumstances. The court did not determine whether police would have been justified in entering Nance's house without a warrant under these conditions as it was unnecessary for the ruling. It is to be expected that this will be the next line of inquiry as law enforcement attempt to stretch the boundaries of this ruling.

Collins & Collins, P.C.
Albuquerque Attorneys

In the recent case of State v. Olson, the New Mexico Court of Appeals addressed a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation. The Court concluded, consistent with recent New Mexico Supreme Court search and seizure case-law, that questioning following a traffic stop must be limited in scope to issues related to the traffic stop itself.

A little after midnight on December 2007, the subject officer was parked in his patrol car in an alley behind a convenience store in Albuquerque. He then saw the defendant, Gunnar Olson, drive his car into the alley, then back out and continue driving. The officer found the behavior suspicious "giv[ing him] the impression like, oh no, the police." The officer followed Olson and pulled him over for a traffic stop based on an expired temporary tag.

Upon approaching the vehicle, the officer found that Olson had a male transvestite known to be a prostitute by the officer. The officer asked Olson to exit the vehicle to question him about the passenger. Olson admitted the passenger was a prostitute but stated that he was just giving him/her a ride. While questioning Olson, the officer noticed and began questioning him on his fanny pack. The officer then ordered Olson to place the fanny pack on the hood of the car. Upon request by the officer and as Olson was retrieving his ID from his fanny pack, the officer asked if he could take a look into the pack to make sure there were no weapons. Upon inspection, the officer found several crack pipes. Finally, the officer asked Olson where his crack was and Olson admitted it was in his front pocket.

Olson was charged with possession of a controlled substance. He moved for suppression of the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

The Court applied the two-part test set forth in the recent 2011 New Mexico Supreme Court Case State v. Leyva to determine the reasonableness of the officer's questioning during a traffic stop. First, the stop must be justified from its inception (expired tags in this case.) Second, all questions asked during the investigation of a traffic stop must be "reasonably related to the initial reason for the stop." There are few and limited exceptions to this requirement. Citing Leyva, the Court stated that "[u]nrelated questions are permissible when supported by independent reasonable suspicion, for reasons of officer safety, or if the interaction has developed into a consensual encounter."

The court further wrote that to allow a police officer "carte blanche ... to stop any vehicle late at night whenever he saw a driver and a known prostitute in the vehicle, to require the driver to exit the vehicle, and to question the driver and the passenger regarding their relationship" would be "tantamount to a seizure of a driver based on the mere presence of a passenger known to have committed a past criminal act ... such a seizure ... or extended detention ... is closer to arbitrary or harassing police conduct than to society's need for reasonable law enforcement investigative activity."

The Court, as in Leyva, recognized that Article II, Section 10 of the New Mexico Constitution provides greater protections than does the federal law under the 4th Amendment. It was admitted by the officer that the stop was based upon the expired tags. Though interesting, it was thus unnecessary to address the issue of stopping every person in the presence of a known prostitute, or any other criminal for that matter. Questioning about the prostitute was well beyond the scope of the initial stop, the expired tags. So the State does not get to the officer safety justification of searching the fanny pack as this followed upon the heels of illegal questioning.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Trevizo addressed the statute of limitations on first time DWI and reckless driving in New Mexico. The court concluded both first time DWI and reckless driving are petty misdemeanors under New Mexico law and therefore subject to a one year statute of limitations.

The facts are pretty straightforward. The defendant was arrested on October 13, 2005. The criminal complaint for DWI and reckless driving was not filed until April 12, 2007, one day short of 18 months from the date of arrest.

The defendant filed a motion to dismiss in Albuquerque Metropolitan Court for violation for one year statute of limitations on petty misdemeanors. The motion was denied and the defendant was convicted on both counts. The defendant appealed to District Court which reversed the Metro Court decision. The State then appealed the District Court ruling.

The relevant statutes as set forth by the Court of Appeals provide the following statute of limitations:

C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed.

The State argued under paragraph C, D and G of NMSA §30-1-8 (now paragraphs C, D & H under 2009 Amendments) resulted in either a 2 or 3 year statute of limitations. The State argued that because the offenses were in the MVD code and not the criminal code, they should be covered by the catchall 3 year provision in paragraph G. In the alternative, the State argued that because the MVD code stated that all MVD code violations were classified as misdemeanors in the absence of contrary language in the code.

The Court of Appeals disagreed pointing out a number of problems with the State's position. The Court noted the absurdity of placing all MVD violations under the 3 year statute of limitations by virtue of the fact that they fall outside the criminal code. The result would be that not only would first time DWI and reckless driving be covered by the 3 year statute, so too would "speeding violations, parking violations, failure to signal, following too closely, and other traffic violations." The result would be that these petty traffic offenses would carry limitations period equal to that to serious felonies.

After a thorough analysis of the case-law and statutes, the Court concluded that the classification of a crime should be determined by the possible penalties. In doing so, the Court also addressed the State's position regarding the classification of all MVD violations not specifically delineated in the code.

Granted the MVD code does have some contradictory language. Section 66-8-7(B) of the Motor Vehicle Code provides "Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both." Thus the MVD sentencing guidelines are consistent with sentencing for a petty misdemeanor despite the language suggesting that the offenses should be classified as misdemeanors.

Consistent with the possible sentencing of only 90 days, the Court concluded that both DWI first offense and reckless driving must be classified as a petty misdemeanor and therefore subject to the one year statute of limitation. For those facing dated DWI charges, keep in mind that the ruling is limited to first time DWI and reckless driving. Repeat DWI offenders face much longer sentences which would bring them under the 2 year misdemeanor statute of limitation or in 4th or subsequent DWI offenses, the felony limitations period.

Due to the inconsistency in the MVD code language, and the seriousness with which DWI is treated in New Mexico, it is likely that this case will be appealed to the New Mexico Supreme Court. In addition or in the alternative, the legislature may address the issue in the next session to lengthen the statute of limitations. As such, if you are faced with a situation like this, be sure to consult with a DWI attorney to identify the limitations period on your case.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Vest, the New Mexico Court of Appeals found that a confidential informant's report that the defendant, Shane R. Vest, was selling marijuana was not enough to justify a search of his house under the search and seizure protections of the 4th Amendment and New Mexico Constitution, Article II, Section 10 because the State had failed to establish the informant's veracity.

The informant participated in two controlled purchases of marijuana and told police that he observed Mr. Vest handling between one-quarter and one-half pound of marijuana in his trailer in Logan, New Mexico. A police officer staked out Mr. Vest's trailer on four separate occasions and observed vehicles arriving at a rate of between two and seven per hour. Each visitor stayed at the trailer for just five minutes. This behavior was consistent with drug-trafficking, according to the police.

When the police acted on a warrant and searched Mr. Vest's trailer, they found currency, guns, ammunition, marijuana, scales, packaging materials, and drug paraphernalia. The defendant entered a conditional plea to distribution of marijuana and possession of drug paraphernalia reserving his challenged to the search and the district court's denial of his Motion to Suppress.

The Court overturned Mr. Vest's conviction, finding that the issuance of the warrant had violated his rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution, both of which require probable cause before a search warrant is issued.

The Court applied the five-prong test of In re Shon Daniel K., which says, "Reliability of an informant may be established, among other ways, by showing that: (1) the informant has given reliable information to police officers in the past; (2) the informant is a volunteer citizen-informant; (3) the informant has made statements against his or her penal interest; (4) independent investigation by police corroborates informant's reliability or information given; and (5) facts and circumstances disclosed impute reliability."

The State disputed the first and fourth factors applied in this case, but the Court found that the State failed to meet its burden for either factor. First, the Court agreed with the defendant that "the affidavit merely contained conclusory assertions, rather than any actual evidence that the informant had provided reliable information in the past," thereby failing under the first factor.

Second, because there was no "timely corroboration" of the informant's information, the police officer's observation of suspicious activity consistent with drug trafficking did not support the informant's claim that the defendant "had present possession of marijuana."

In short, the New Mexico Court of Appeals strictly enforced the protections under the 4th Amendment and Article II, Section 10. The protections against unlawful search and seizure are strictly applied in New Mexico. In fact, Article II, Section 10 provides even greater protection than federal law in keeping with New Mexico's heightened protection of individual rights to privacy above and beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment protection against unlawful search and seizure is fairly broad. Violations of the protections under 4th Amendment and/or New Mexico Constitution, Article II, Section 10 are perhaps the most common basis for suppression of evidence and the dismissal of criminal actions. However, there are limits to search and seizure protections. Among the most commonly invoked is the plain view doctrine.

In most cases, particularly in the search of a home or vehicle, a warrant is required. The plain view doctrine gives police the right to seize evidence in plain view without a warrant, as long as three conditions are met:

• The officer did not violate the Fourth Amendment in arriving at the place from which the object could be plainly viewed.
• The object's incriminating character must be immediately apparent.
• The officer must have a lawful right of access to the object itself.

These conditions are set forth in the 1990 U.S. Supreme Court case Horton v. California. They are commonly known as the "three-prong Horton test."

Prior to the Horton case, plain view evidence needed to be discovered "inadvertently." This is no longer the case, and police officers may actively look for plain view evidence as long as they do not violate the Fourth Amendment in doing so. In other words, if they in the home or business legally, stopped the vehicle legally, or otherwise encountered a defendant on his or her property legally, then they may conduct a plain view search of the subject premises.

Naturally, the plain view doctrine is often abused by law enforcement who will take the opportunity to conduct a broad and invasive search well beyond the scope of the plain view doctrine. In addition, it is critical that law enforcement is legally on the premises or otherwise engaged with the citizen.

Illegal presence is in fact the most common basis for challenging a plain view search. This is not uncommon in cases involving vehicle searches where the car was stopped illegally from the inception.

The search may also be challenged if the incriminating nature of the item seized was not immediately apparent (i.e. the officer felt a hard item in your pocket but knew that it was not a weapon and did not otherwise know of its incriminating nature). It is also worth noting that for an object's "incriminating character" to be "immediately apparent," an officer is not allowed to move the object in order to further inspect the item (i.e. turning the item over record its serial number which shows that it is stolen).

The case-law on search and seizure and the plain view exceptions are expansive. Each case must be closely evaluated to determine the possibility of a successful challenge. It is important to provide as much information as possible to your criminal defense attorney. It is equally important to provide accurate information so that your attorney is not wasting time on baseless challenges when his or her time could be more productively spent on other aspects of your defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Crane illustrates the high level of protection against unlawful search and seizure afforded those in New Mexico under the New Mexico Constitution, Article II, Section 10.

The case involved a meth lab set up in a motel room. The police received an anonymous call presumably from another guest complaining of a chemical smell emanating from the defendant's room. Two agents from the Clovis drug task force went to the motel to investigate.

Upon approaching the room, neither officer could detect a chemical odor coming from the room. While conducting surveillance of the room, the agents saw one of the residents taking garbage to the motel dumpster. The agent looked into the dumpster to view an open box with latex gloves. No other contraband was detected. However, as the agent was searching the contents of the open box behind the dumpster, an unidentified resident dumped several sealed garbage bags into the dumpster.

Without first obtaining a warrant, the agents opened the sealed garbage bags finding a variety of meth production tools and materials. The residents of the room, including Crane, were charged with trafficking methamphetamine and possession of drug
paraphernalia.

The defendant moved to suppress the evidence under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The trial court agreed with the defendant suppressing the evidence for illegal search and seizure under Article II, Section 10.

The Court from the outset noted that Article II, Section 10 provides greater protection than the 4th Amendment under federal law. The Court cited the divergence of the New Mexico Courts from the 1988 U.S. Supreme Court decision in California v. Greenwood where the Court found that there is no expectation of privacy in garbage. The New Mexico Court of Appeals in the 2006 case of State v. Granville rejected the argument in Greenwood that there is no reasonable expectation of privacy in garbage which is "readily accessible to any member of the public."

The Court in Granville found that "individual's garbage reveals evidence of a person's most private traits and intimate affairs." The court in Granville found that when a person places garbage in a sealed opaque bag protecting it from view, there is a reasonable expectation of privacy.

Notably, the Granville decision dealt with garbage disposed of at a private residence, not a motel. The Court in State v. Crane refused the State's argument that motel guest have a lessened expectation of privacy in garbage dumped in the motel dumpster.

The State argued that this garbage was particularly vulnerable to intrusion by other motel guests and/or vagrants and homeless people. The court flatly rejected this reasoning stating, "There is a difference between a homeless person scavenging for food and clothes, and an officer of the [s]tate scrutinizing the contents of a garbage bag for incriminating materials."

The Court in Crane cited the 1964 U.S. Supreme Court case of Stoner v. California which long ago recognized that motel guests do not forfeit their privacy rights by virtue of checking into a motel. The Court in Stoner held that motel and hotel guests have privacy interests comparable to those in the home.

In short, motel guests are entitled to privacy as are any other citizens. In addition, contrary to federal law, private residents and motel guests alike in New Mexico have an expectation of privacy over their garbage. Thus, law enforcement must obtain a warrant prior to searching sealed garbage bags, whether at a person's home or at a motel. To do otherwise, will as here result in a suppression of the State's evidence.

Collins & Collins, P.C.
Albuquerque Attorneys

DWI roadblocks or sobriety checkpoints have become commonplace in New Mexico, particularly in Albuquerque. Those caught in the roadblock often have questions regarding the legality of the roadblock.

The 4th Amendment protects citizens from unlawful searches and seizures without probable cause of a crime. Clearly, everybody traveling through a roadblock is not under suspicion of having committed a crime. These roadblocks are clearly trolling for DWI drivers.

From a 4th Amendment perspective, these roadblocks just do not sit well with those concerned with the right to privacy and the right against unlawful search and seizure. As objectionable as the DWI roadblocks might be, the constitutionality of roadblocks under the 4th Amendment search and seizure provisions has long been established.

The legal precedent governing this area of law is complicated and expansive. There are a number of United States Supreme Court cases that have addressed the issue, Michigan v. Sitz, Indianapolis v. Edmond, and Illinois v. Lidster. These cases, in order to skirt the issue of trolling for criminal activities simply reframed the argument. The common thread coming from the cases is that roadblocks intended to fish for criminal activity are unconstitutional. However, the court ruled that it was not unconstitutional if the roadblock was not simply a means of detecting criminal activity but a means to promote public safety.

In short, roadblocks are legal despite the fact that they are clearly intended to detect criminal activity. Of course, there is a public safety argument but the same could be argued for any random search of a citizen. After all, if by chance a criminal is caught during random searches, whether on the road, in the mall, or door to door, then the community is slightly safer.

The New Mexico courts have ruled consistently that roadblocks are not unconstitutional. The seminal New Mexico case of Las Cruces v. Betancourt (NMCA 1987), has long established the legality of DWI roadblocks in New Mexico. Betancourt and its progeny have established acceptable purposes and and procedures necessary for a legal roadblock. Suffice it it to say that it is not a high bar for law enforcement. However, there are minimal procedural requirements that must be met. In the absence of these procedural protections, the roadblock will be rendered unconstitutional.

Challenging a roadblock is no trivial matter. It takes a lot of work and investigation to determine whether the police followed all of the procedural safeguards. The fact is that for the most part they do. However, there are those rare occasions where they did not and it is worth the effort to find out. Invalidation of the roadblock will typically result in a dismissal of the DWI charges unless there were some other grounds for the traffic stop.

Again, it is relatively rare that a roadblock is found unconstitutional. Roadblocks are growing in frequency around New Mexico as is the seriousness with which DWI is treated. Don't drink and drive and you will not have to worry about either. If you do get caught and arrested for DWI in a roadblock, consult with a DWI attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys