Albuquerque Criminal Lawyer Blog

A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

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DWI/DUI is taken very seriously in New Mexico. Strict DWI/DUI enforcement is intended to deter drunk driving. As such, the laws are very strictly enforced throughout New Mexico and the consequences of a DWI/DUI conviction can be severe. In fact, Albuquerque police go even further arresting and charging people for DWI even when they have not been driving.

Due to the strict enforcement of DWI/DUI laws, people arrested for a 1st time DWI first want to know whether they will be going to jail. The next question often relates to their driver's license. Finally, they typically want or need to know the other penalties and fines associated with DWI/DUI in New Mexico.

For a first time offender, the worst case outcome is generally sentencing to the First Offender Program. As part of the First Offender Program, the defendant's sentencing is deferred for one year. The defendant is placed on supervised probation during this one year period. In addition, following conditions are imposed on the defendant as part of the First Offender Program:

1. DWI School,

2. Alcohol and Drug Abuse Screening,

3. Counseling and Treatment if recommended following screening,

4. Attendance of the Victim Impact Panel,

5. Random drug and alcohol testing if deemed necessary by probation following screening,

6. No consumption or possession of alcohol or illegal drugs,

7. Installation of an ignition interlock device on the defendant's vehicle for 1 year (this allows the defendant to continue to drive while on probation),

8. Community service which is typically 24 hours,

9. Payment of Court Costs, and

10. Payment of probation costs (these are often waived by the Court).

This is the standard sentence for a simple first time DWI/DUI in New Mexico. This sentence is imposed whether or not the defendant enters a plea or loses at trial. Thus, many simple first DWI's will go to trial since there is no difference in the penalties between a conviction on a plea versus conviction at trial.

The decision of whether or not to go to trial is made more difficult in an Aggravated DWI case. Conviction on an Aggravated DWI carries mandatory 48 hour jail time. Aggravated DWI is charged in cases where the driver's breath alcohol score is .16 or higher, the driver refused the breath alcohol test, or there was an accident involving alcohol.

Because of the mandatory 48 jail time, many DWI defendants do not want to risk a conviction of Aggravated DWI at trial. The result is that many, if not most, Aggravated DWI cases plea to a simple first DWI prior to trial which allows the defendant to enter the First Offender Program.

So getting back to the opening, the question is whether a first time DWI defendant will go to jail, and whether he or she will be able to drive following conviction on a DWI. The answer to the first question is that it is very unlikely under the current state of New Mexico law that a first time DWI defendant will go to jail unless he or she is convicted on an Aggravated DWI. The answer to the second question is yes, the defendant will be allowed to drive with an interlock license.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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It is estimated that drug violence has claimed over 16,000 lives in Mexico during the past three years. These deaths have resulted from a virtual war between the Mexican government and the drug cartels. The cash crop is marijuana.

The cartels are turning increasingly to child runners. Mexican drug gangs are recruiting children as drug runners and mules. The Texas Department of Public Safety refers to the child recruitment campaign as "scare and awe." The awe comes in the form of the promise of easy money and status while the fear comes in the form of torture and death.

Several states now have medicinal marijuana programs, including New Mexico. It is estimated that California has up to 2000 medical marijuana dispensaries. There is now even a Cannabis University, Oaksterdam University, that teaches people how to grow and dispense weed. Yet New Mexico, and Albuquerque in particular, continues to prosecute possession very aggressively. God forbid, you have over 8 ounces in your possession because you will likely then be charged with distribution.

Lives continue to be ruined on both sides of the border as a result of the war on drugs and the prosecution of marijuana possession. Thousands of lives have been lost, children are exploited and even tortured, immigrants are deported routinely for marijuana possession, people are hauled into court for minor possession, and those with more than 8 ounces can face 2nd degree felony trafficking charges carrying up to 9 years in prison.

No amount of reason has worked thus far to alter the enforcement of the marijuana laws. Perhaps, reason simply lacks the persuasive force of profits. This is particularly so when the insurance industry is involved. Due to the explosive growth of the medical marijuana industry, a new cottage insurance industry catering to the needs of the medical marijuana industry has sprouted up. Insurance is now available for everything from standard worker's compensation to crop theft insurance.

Medical marijuana is becoming big business California leads the country with as many as 2000 medical marijuana dispensaries. Colorado is a distant second with 60. However, the number is growing in the states that have legalized medical marijuana. You can bet the industry is growing when the insurance industry has taken note.

The insurance industry is generally much maligned and for good reason. Maybe, the very greed that is generally so repulsive in the insurance industry will lead to positive social change as the medical marijuana industry takes root. Perhaps, similar profit motives will dictate more enlightened marijuana policies across the board as the insurance industry spots new profit centers. Where the logic of saving lives, saving children from exploitation and torture, saving immigrants from deportation for minor possession, and saving otherwise law abiding citizens from often harsh and inhumane prosecution has fallen on deaf ears, the logic of capitalism will hopefully carry the day. This is a rare occasion when I am pulling for the insurance industry to make more money.

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The felony process can be pretty confusing for accused persons in Albuquerque and throughout New Mexico. In addition, the process differs from county to county. The process below applies to the process followed by the district attorney's office in Albuquerque.

A felony criminal action may begin with an arrest or a felony warrant. If you are arrested, you are taken into custody until your first appearance or until you are able to post bond. If you are able to post bond, then you are released pending the first appearance which will generally occur within a few days of your release.

If you are unable to post bond, then the prosecutor must take the case to the grand jury within 10 days of arrest. Failure to bring the case to grand jury within 10 days will result in release from custody. It does not mean the case goes away. It simply means that the State must release you from custody pending the grand jury investigation.

If you are able to post bond, the case will be set for first appearance. At the first appearance, the prosecutor will present a statement of probable cause outlining the charges against you. The statement of probable cause requires no presentation of evidence. The defendant may dispute probable cause but again the statement is taken at face value and the statements very rarely fail to state adequate probable cause for the arrest. It is simply a statement of the case by the prosecutor or the arresting officer. These are taken at face value by the judge.

Assuming the judge finds probable cause, the judge will then set conditions of release and bail. The conditions of release for felony cases typically include the following terms:

1. The defendant may no possess firearms or dangerous weapons,
2. The Defendant will not return to the location of the alleged incident,
3. The Defendant will not possess or consume alcohol/illegal drugs or enter liquor establishments,
4. The Defendant will not violate federal, state or local criminal law,
5. The Defendant notify the Court of any change of address,
6. The Defendant will not leave the jurisdictional county of the court,
7. The Defendant will maintain contact with his or her attorney,
8. The Defendant will have no contact with the alleged victim or any witnesses,
9. The Defendant will no drive without a valid license.

The conditions of release continue for 60 days or until the date of arraignment if the Defendant is eventually indicted. This does not mean the case goes away after 60 days if the prosecutor has not indicted the Defendant by that time. It simply means the conditions of release lapse.

The prosecutor has very liberal time limits on obtaining the indictment. The only limitation is set by the statute of limitations which are very long in criminal cases. On rare occasions, a Motion to Dismiss for pre-indictment delay may be filed but these are very difficult to win.

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The United States Supreme Court finds that the 6th Amendment right to confrontation requires that an analyst who tested drugs in the lab must testify in court to get those lab results entered into evidence. This important case will impact both drug cases and DWI/DUI cases in Albuquerque and throughout New Mexico.

The United States Supreme Court case of Melendez-Diaz v. Massachusetts involved the introduction of evidence by the prosecution of laboratory certificates from the state laboratory regarding cocaine connected to the defendant. The analyst that conducted the testing of the cocaine was not present at trial.

The defendant objected to the admission of the lab certificate without in-court testimony by the lab analyst. The defendant argued that the practice was a violation of the 6th Amendment confrontation clause as set forth in the 2004 Supreme Court case Crawford v. Washington.

The United States Supreme Court in Melendez-Diaz v. Massachusetts agreed that the practice of admitting lab certificates in lieu of or in the absence of foundational testimony was a violation of the confrontation clause as set forth in Crawford.

The court rejected the prosecution's arguments that these analyst were not accusatory witnesses. The court stated that there was no exemption from the confrontation clause for those witnesses testifying to facts other those observed at the crime scene. The court found any witness who offers his testimony is subject to the confrontation clause.

The court also refused the prosecution's argument that these certificates are excluded from the hearsay rules as official business record. Likewise, the Court refused the argument that these lab analysts are neutral and unbiased simply applying scientific methods to the substance in question. Finally, the court stated that it was immaterial that the defendant himself could have subpoenaed the analyst to court holding that it was the State's burden to bring their witnesses to court for foundational purposes.

The Melendez case could have significant impact on cases throughout the State of New Mexico. It appears that the ruling will cover the admission of lab results from New Mexico's scientific lab division in both drug cases and DWI/DUI cases. The cases are winding their way through the New Mexico courts now as the Courts here attempt to deal with the Melendez-Diaz rulings.

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