Albuquerque Criminal Lawyer Blog

The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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In Albuquerque and throughout New Mexico, you can be charged with DWI even when you are under the legal limits. You can even be charged for DWI when you have not been driving at all. In fact, it is illegal to sleep in your truck after drinking. Albuquerque Police will charge you with DWI and the Courts here will convict. This bizarre consequence with potentially disastrous effects is made possible by New Mexico case-law.

A case in Georgia last week found that one could not be charged with auto theft for stealing a lawnmower. Contrast that with cases around the country where people have been charged with DWI for driving a lawnmower drunk. Granted these drivers were driving on the roads, and one was actually making a beer run when he was pulled over. However, in the zealous drive to prosecute people for DWI even when they are not driving, it is only a matter of time that the Albuquerque Police will arrest, and charge someone for mowing drunk. Perhaps, we will have a new category of MWI (Mowing While Intoxicated) to go along with SWI (Sleeping While Intoxicated).

The Georgia case piqued my interest in New Mexico' treatment of mowing while drunk as this seems to be a favorite past-time of many. I could find no case-law addressing the situation. However, if a man can be charged and convicted for DWI for sleeping in his truck, I would be very reluctant to have a beer before jumping on my lawnmower. In fact, the situation posed to the New Mexico Courts by those electing to sleep off a bender in their vehicle poses far greater public safety risks than the lawnmower scenario. This suggests the very real possibility of DWI while mowing the lawn. The math speaks for itself.

According to the National Highway Safety Administration's DWI Training material which is the universal source of DWI training for law enforcement in the United States, for every DWI arrest there are 500 to 2000 DWI violations that go undetected. Contrast this with the odds of detection of sleeping in your vehicle in a bar or restaurant parking lot after drinking. I have found no statistics on this but I would guess that the odds of detection are pretty high due to random patrols of such locations. Looking at the math, an odds driven person might determine that the risks are far greater sleeping off a drunk than driving home.

Thus, the math associated with this calculation would actually encourage drunk driving rather than discouraging it. This is a bizarre outcome of a flawed and overzealous DWI policy throughout New Mexico, and particularly in Albuquerque. This policy is dangerous for both the drunk driver as well as the innocents he or she may encounter on the way home. I can think of no possible victims associated with that same person sleeping off his drunk in his car. We can only hope the Courts will address this anomaly in the near future. If they do not, it is just a matter of time before an innocent victim is badly injured or killed as a result of this bizarre law and policy.

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The 4th Amendment to the United States Constitution reads:

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.

The 4th Amendment protections against unlawful search and seizure rests on the right to privacy proving protection against unlawful and abusive law enforcement practices that would invade that right to privacy. The protections of the 4th Amendment are broad and complex. Entire books are written on the 4th Amendment, and there are legal scholars that spend much of their careers studying and writing about the 4th Amendment. Many of the most important cases in criminal law and criminal procedure derive from the 4th Amendment as do the rights of criminal defendants.

The importance of the protections afforded under the 4th Amendment cannot be over-stated. The 4th Amendment protects at every stage of a criminal case from the initial stop by the officer, to the search of the suspect's vehicle, home, property or other belongings both before, during or after the arrest, and of course to the arrest itself.

The 4th Amendment provides protection in all variety of encounters with law enforcement. The protections stretch from the petty shoplifting offense, to DWI/DUI stops and investigations to the most serious felony offenses. Violations of the 4th Amendment have serious consequences including the exclusion of evidence seized illegally. Often, the exclusion of illegally seized evidence will result in the dismissal of the charges in whole or in part. Should the prosecutor refuse to dismiss based upon the lack of evidence, the exclusion of the illegally seized evidence can be an insurmountable obstacle for the prosecution at trial.

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Most people are surprised to learn they can be charged with DWI/DUI even when below the limits of .08. In fact, under the limits DWI charges in Albuquerque are quite common. In fact, people are arrested for DWI even when they are not driving.

A recent story in the Albuquerque Journal told the story of a Vietnam veteran, Fidencio Francia, who was arrested for DWI despite the fact that he never started his car. Instead, he knew that he had had too much to drink so he wisely chose not to drive. Rather than drive, he chose to sleep it off in his car. He was arrested and charged for DWI for sleeping in his car after consuming alcohol.

Albuquerque District Attorneys argue that such behavior puts the city at risk. They argue that folks like Mr. Francia are not using the car as a shelter but instead are in control of a "4000 pound bullet." The judge in the case, Judge Fitzwater argued that the law is well settled that one does not have to drive to be convicted of Driving While Intoxicated. Counter-intuitive, is it not?

In fact, the New Mexico Court of Appeals has ruled that it is unnecessary to drive to get a DWI/DUI. The court found that one need only be control of the car. The definition of control is very loose. In State v. Sims, the Court found that the person was in control of the car even though the keys were not even in the ignition, but in the passenger seat. And the defendant was asleep. Yet he was still in control of the car and presumably a threat to the public with his 4000 pound bullet.

What is the lesson here? Don't drink, if you do drink, don't get near a car, if it is freezing outside, you have to make a hard choice between dying in the cold, driving drunk, or getting a DWI for sleeping in your car.

There is no reason or rationality in the prosecution of DWI/DUI in Albuquerque. The policy of prosecuting people for not driving drunk is certain to end in disastrous consequences as some will decide the risk of driving drunk is no worse than the risk of not driving drunk. The only real question is when such a disaster will strike and whether the District Attorney and the Albuquerque DWI Unit will accept responsibility for the ill-advised policy of prosecuting people for not driving drunk. Meeting DWI quotas is I suppose far more important that actual public safety.

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Once past the due process issues presented by the confidential informant's mental health and prescription drug issues, the Court in U.S. v. Robinson went on to address the confrontation issues under the 6th Amendment raised by the trial court's refusal to allow the defense attorney to cross examine the confidential informant at trial on those issues.

The 10th Circuit Court of Appeals found that the district court had indeed violated the Confrontation Clause under the 6th Amendment when it forbade the defense from cross-examining the CI on his mental health history and use of prescription medications. Further, the court found that the prosecutor had failed to meet the high burden of proving beyond a reasonable doubt that these constitutional errors were not harmless errors.

The Court stated that the 6th Amendment guarantees the right of a defendant to "be confronted with the witnesses against him." The primary right under the Confrontation Clause is the right to confront and cross examine the State's witnesses. And though the trial court may exercise its discretion through "reasonable limits" on the scope of questioning, cross examination is the primary means by which the credibility of witnesses is determined by the jury.

The Court found that the trial court had not violated the Confrontation Clause on the issue of illegal drug use since it allowed the defense to cross examine the confidential informant on these issue. However, the prohibition against cross examination of the confidential informant on his mental health issues and related prescription drug use violated the defendant's right to confrontation since the cross examination on the illegal drug use may have been much different with full access and knowledge to the informant's mental health records.

The Court stated, "Where the witness the accused seeks to cross-examine is the 'star' government witness, providing an essential link in the prosecution's case, the importance of full cross-examination to disclose possible bias is necessarily increased." The Court stated further that "a constitutional violation occurs when the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor."

In short, the informant's credibility was essential to the government's case. The defendant had a right to put the informant's credibility before the jury and the jury's view of his credibility was critical to the outcome of the case for both sides. Preclusion of the defense's review and cross examination on issues of mental health and drug use was a fundamental violation of both due process and the right to confrontation of witnesses.

The 10th Circuit Court of Appeals addressed the issue of confidential informants in U.S. Robinson. The defendant was charged as being a felon in possession of a firearm after allegedly selling a gun to the confidential informant. The Court addressed the issues of due process and the right to confrontation of witnesses.

The confidential information had serious mental health issues including the use of several prescription drugs. The Court reviewed the medical file in camera but refused to allow defense counsel to access the records. The Court found that the Court's refusal to allow the defense attorney access to medical file was a violation of due process under the 5th Amendment.

The court determined that the Court's restrictions resulted in the jury seeing an incomplete and inaccurate picture of the confidential informant's credibility. From the perspective of the jury, the confidential informant had only "a little bit" of a drug problem. Moreover, the jury never heard of the repeated violations of the confidential informant's agreement with the ATF by using drugs. By the prosecutor's version
of events, the confidential informant had reformed since becoming an ATF informant. had largely reformed himself after becoming an ATF informant. Finally, the confidential informant had singifnicant memory issues related to the events which he attributed to a lapse of time. The jury was unable to judge his credibility independently based upon the mental health and drug issues.

The Due Process Clause of the Fifth Amendment provides that "[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law. The 5th Amendment's primary protection is that of a fundamentally fair trial. This requires that all material evidence be admitted. This does not necessarily mean that
the withheld records would have resulted in acquittal. The Court stated instead, that
"the touchstone is simply whether the ultimate verdict is one 'worthy of
confidence."

Having addressed the due process issues under the 5th Amendment, the Court went on to address confrontation issues under the 6th Amendment.