Albuquerque Criminal Lawyer Blog

"Freeze" is not something you want to hear from a police officer. The command will send a chill through most reasonable people. That is exactly why it is considered a seizure under the 4th Amendment.

A seizure under the 4th Amendment occurs when the person stopped reasonably believes that her or she is not free to leave. The very command "freeze" suggests that the person is not allowed to leave. In fact, leaving would be a violation of the command to freeze. Leaving and freezing are mutually exclusive, unless of course the officer is considerate enough to offer you the option of freezing or leaving.

The issue was addressed in the Tenth Circuit cases of U.S. v. Alarcon-Gonzales (1996). The court in Alarcon-Gonzales, as would most, took it for granted that the command was a seizure. The court stated that whether or not it was a seizure was not even an issue, the issue was whether there was reasonable suspicion to yell the command to begin thereby taking for granted that the command was a seizure.

In Alarcon-Gonzalez, the immigration service (at that time "INS") was investigating roofing companies suspected of hiring undocumented workers. The company for whom the defendant worked was not necessarily suspected. The immigration officers intended to use consensual encounters with roofing workers to conduct their investigation and ferret out illegal workers. When they approached the defendant and one of his co-workers, they intended such a consensual encounter. However, as they approached, defendant's co-worker was reaching into the cab of his truck for a shingle gun. One of the officers mistook the gun for a weapon and yelled "freeze" to the co-worker. In response, the defendant also froze.

Despite the fact the command was not even yelled at defendant, the Court ruled that it constituted a seizure of defendant under the circumstances since he clearly did not feel free to leave. In addition, the Court found lack of reasonable suspicion for the seizure since there was no reason to suspect defendant or his friend of illegal activity, other than the color of their skin. Thus there was no reason to approach them to begin with and therefore the seizure was illegal from its inception.

Of course, had the defendant's friend not froze, and continued to pull out the shingle gun, the later conversation would likely have been one regarding excessive force and §1983 violations. Thus, faced with this situation, one is faced with a dilemma. You cannot both assert your constitutional rights and obey the command of the officer. A reasonable person would freeze believing they were not free to leave as the Court in Alarcon-Gonzales rightly noted.

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A bench warrant will typically toll the running of the 6 month speedy trial rule under the 6th Amendment. The time during which a defendant has absconded from the court will not run against the prosecution. In addition, there may be other extensions of time either for the benefit of the defense, or for good cause, for the State that will extend the 6 month rule.

The New Mexico Court of Appeals in State v. Martinez has addressed these two issues from an interesting perspective. In Martinez, a bench warrant was orally issued by the court due to the defendant's failure to appear at a hearing. However, a signed warrant was never filed with the court. Likewise, due to the failure of the defendant to appear at the hearing, the State had requested an extension of the 6 month speedy trial rule. Again, the Court issued an oral ruling extending the speedy trial rule without filing a signed order.

Neither of these oral orders was entered with the Court until after the 6 month rule had elapsed. The defendant with counsel then came to court armed with a Motion to Dismiss under the speedy trial rule. The District Court granted the motion and dismissed the case. Interestingly, the district court had made the mistake in its failure to file the written orders and accepted the consequences of the error.

The prosecutor filed an appeal arguing that the oral orders should be fully enforced, and that the dismissal was fundamentally in error. The New Mexico Court of Appeals disagreed stating that to show fundamental error, the state must "demonstrate the existence of circumstances that 'shock the conscience' or implicate the fundamental unfairness within the system that would undermine judicial integrity if left unchecked."

The Court of Appeals refused the State's arguments indicating no such error was present. In doing so, the Court pointed out that the State had 49 days during which it could have cured the problem with the oral orders prior to the expiration of the six month rule. The Court cited prior cases for the proposition that it is up to the State to get a case to trial. It is not the defendant's duty to bring himself to trial.

This case at first seems somewhat difficult to reconcile with State v. Garza where the New Mexico Supreme Court set forth speedy trial guidelines; 12 months for simple cases, 15 months for cases with intermediate complexity, and 18 months for complex cases. However, in that case, the State had moved for and been granted extensions of time. In Martinez, though the State had been granted extensions of time, the oral orders were deemed ineffective for these purposes.

It seems that despite the beating speedy trial rights took in Garza, the 6th Amendment will not stay down for the count. Seems the constitution has a strong chin.

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The New Mexico Court of Appeals addressed the knock and announce rule in the recent case of State v. Gonzales. It is well established in New Mexico that law enforcement must first knock and announce their presence and wait a reasonable amount of time for a response before entering a residence to execute a search warrant.

The rule avoids the needless destruction of property while recognizing the sanctity of the home and the right to privacy. Failure to comply with this rule constitutes unlawful search and seizure in violation of the 4th Amendment to the United States Constitution. The Court, in its ruling, reinforced these very important protections afforded by the knock and announce rule.

In State v. Gonzales, the Court addressed a situation where it the facts indicated that the officers had not knocked and had waited only 8 seconds after announcing their presence before bursting through the front door with a battering ram. The Court determined that, under the circumstances, 8 seconds was not a reasonable amount of time to wait following announcement of their presence. The Court also deferred to the District Court's factual finding, based upon the officers' belt tapes, that the police had not knocked despite uncontroverted testimony to the contrary. As a result, the marijuana and cocaine seized from the residence was suppressed.

The Court, in determining the reasonableness of the 8 seconds, contrasted the facts in the case with several prior rulings. There are circumstances where a brief wait following announcement of the officer's presence would be deemed reasonable. The court cited several prior cases involving hotel/motel rooms and other small residences where a brief wait was justified due to the brief amount of time that it would require the resident to get to the door. A delay in these cases would indicate constructive refusal of the warrant.

Likewise, the Court indicated there might be exigent circumstances that would avoid completely the necessity of the knock and announce rule. These cases involved situations where the circumstances indicated announcement posed a danger to law enforcement. An indication that the target was attempting to destroy evidence would also obviate the need for a knock and announce.

The Court was careful to indicate that the fact that evidence might be destroyed was insufficient to override the protections of the knock and announce rule. Therefore, the simple fact that drugs were involved, which could be easily destroyed, was insufficient grounds to avoid the knock and announce rule. There must be some indication under the circumstances that the suspect was in fact attempting to destroy evidence.

State v. Gonzales illustrates the great deference the New Mexico Courts have for the 4th Amendment and the U.S. Constitution, often exceeding federal constitutional protections.

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The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in the case of State v. Winton. The defendant was charged with possession of a controlled substance and drug paraphernalia following a warrantless stop, detention and search of the defendant by police officers.

The police had obtained a search warrant for 1822 Hammett Street. Upon arriving at the scene, the police found the defendant at 1824 Hammett Street as he was entering 1822 Hammett Street. The defendant was ordered to the ground where the officer held him for about 5 minutes with the officer's boot on his neck. The defendant was then held on the ground for another 10 minutes after the officer removed his boot from his neck as the officers searched the premises of 1822 Hammett.

After conducting a search of the residence, Officer Hengst exited the residence to find the defendant lying on the ground. The officer handcuffed the defendant. At that time, he allegedly observed a knife in defendant's pocket. The defendant allegedly told the officer that he had another knife in his possession. Upon searching the defendant, the officer found a pipe with meth residue.

The New Mexico Court of Appeals took note that defendant was not on the property that was the subject of the search warrant, that the defendant was not named in the search warrant, and that the text of the warrant did not provide the officers with the authority to search and seize the defendant. The Court further recognized the longstanding precedent that a warrantless search is presumptively unreasonable under the 4th Amendment placing the burden on the State to prove reasonableness.

The Court stated an exception to the warrant rule allowing officers to detain and search those present on the subject property to prevent flight, preserve evidence, minimize risks to officers, and to facilitate the orderly completion of the search. The Court also recognized that a visitor's mere presence at a home subject to a search warrant is insufficient to justify a search of the visitor. Instead, there must be facts present that would render it reasonable under the circumstances to search the visitor. In short, the officer must have a reasonable belief that the visitor has some connection to the premises or the criminal activity. So far, so good for the Defendant?

Despite the fact that the defendant was not on the subject premises, and therefore not a visitor at all, and the fact that there appeared to be no suspected connection to the property or the suspected crimes therein, the Court found that the search and seizure of the defendant was lawful. The Court found that the search and seizure was lawful because the police had information that the subject of the warrant, not the defendant, was not afraid to shoot someone. Thus, the search and seizure of defendant was necessary for officer safety despite the lack of connection to the property or the crimes under investigation via the warrant or the threat to officer safety expressed in the warrant.

Thus, visitors cannot be searched and seized simply because of their presence on premises subject to a search warrant. However, a visitor can be detained, held down by a boot on his her neck, and subsequently searched if the police can make any suggestion of officer safety issues. This is apparently the case even where the visitor is not on the property, has no connection to the property or the crime, and was not the individual named in the warrant or the individual feared to pose threats to officer safety.

In short, under State v. Winton, a visitor or apparently anyone in close proximity to the premises can be searched and seized without any real justification as long as the officer expresses a fear for officer safety, which should not be hard for the imaginative officer. This ruling makes absolutely no sense in light of the authority recognized by the Court. The ruling effectively negates the protection of visitors against unlawful search and seizure set forth in prior New Mexico cases. Hopefully, the case will move on to the New Mexico Supreme Court where, if the 4th Amendment has any meaning In New Mexico, it should be reversed.

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New Mexico law does not allow law enforcement to take a blood draw without the suspect's consent. However, a blood draw may be taken upon the issuance of lawful search warrant. Likewise, in the absence of a search warrant, a suspect may not be forced to submit to a blood draw.

Blood draws are common in controlled substance cases. They also are used in DWI/DUI cases. However, it is pretty rare that an officer would order a blood draw in a DWI/DUI case. In the recent case of State v. Bullcoming, a blood draw was taken from the defendant under search warrant following the defendant's refusal to take the breath alcohol test and his refusal to voluntarily submit to a blood draw.

The Bullcoming case has importance for a number of reasons, most notably the admissibility of the blood draw report. Though the issue of the search warrant itself was mentioned only in setting forth the facts of the case, almost in passing, the issue is certainly not a trivial one. The defendant in Bullcoming was charged with aggravated felony DWI/DUI. The aggravated portion arose from the fact that the defendant was involved in an accident , and then promptly fled the scene. Once the officer tracked him down, the defendant refused the blood alcohol test, also grounds for aggravated DWI/DUI.

No doubt the result of the defendant's antics, the officer in Bullcoming took the rare step of obtaining a search warrant to obtain the blood draw. Unfortunately for the defendant, his blood alcohol level was .21, almost three times the legal limit, again an aggravating factor.

The more common response of law enforcement to a suspect's refusal to submit to the breath alcohol test is to simply note the refusal and charge the DWI/DUI as aggravated. Aggravated DWI/DUI carries significantly greater penalties than simple DWI/DUI. Thus the refusal can have severe consequences.

No matter how the blood draw is taken, whether voluntarily or by warrant, the suspect has the right to an independent test. In a situation like Bullcoming where the blood alcohol level comes in so high, the independent blood draw may serve only to bolster the results. In closer cases, the suspect would do well to obtain an independent blood draw. The independent test is free to the suspect so long as he or she did not refuse the blood alcohol test. So there is no good reason to waive this right in close cases.

The police officer should inform a suspect of the right to independent testing. If an independent blood test is merited, then the suspect should insist on the test even if the officer has not advised him or her of this right. In fact, the suspect should be quite vocal if the officer is resistant to the request for an independent blood test. As seen in the recent case of State v. Duarte, the presumptions are with the officer so that if he or she says he advised the suspect, it is taken as gospel.

In short, you cannot be forced to take a blood test without a warrant. If you are forced by warrant to take a blood test, you would be well advised in cases close to .08 (simple DWI/DUI) or .16 (aggravated DWI/DUI) to demand an independent blood test. However, in cases with very high levels, or cases that come in just below the aggravated .16 or simple .08, you may be very disappointed with your independent testing.

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Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

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Many times clients are confused on the difference between a criminal domestic violence action and a civil domestic violence action. There are many distinctions between the two, too many to enumerate them all here. In short, however, each is extremely serious and should be treated as such.

A criminal domestic violence action usually begins with a criminal complaint alleging battery on a household member or assault on a household member. In Albuquerque, these are filed in Metropolitan Court. In other areas, including Rio Rancho and Sandoval County, they are filed in magistrate court. In cases involving serious injury or deadly weapons, the cases will be filed as felony domestic violence and the case will eventually be transferred to District Court.

A civil domestic violence action begins with a Petition for Order of Protection Against Domestic Abuse. In most areas of New Mexico including Albuquerque, Rio Rancho and Santa Fe, these cases are heard by a domestic violence hearing officer. These are not criminal in nature. As such, the standard of proof is not as rigorous as in a criminal proceeding and sometimes it seems that the hearing officers are predisposed to make a finding of domestic violence despite the evidence. On the other hand, a finding of domestic violence in a civil hearing will not result in criminal penalties such as probation or jail time.

In both the criminal and civil domestic violence actions, the alleged perpetrator of domestic violence will be ordered to have no contact with the alleged victim. In a criminal case, the "no contact" provision will be in the Order Setting Conditions of Release. In the civil action, a Temporary Order of Protection is issued upon filing the Petition for Order of Protection from Domestic Abuse. This Temporary Order will remain in effect until the hearing which usually is set within 10 days of service of the Order on the Respondent (alleged perpetrator). If there is a finding of domestic violence at the hearing on the Petition for Order of Protection, the Order of Protection will be extended for 6 months. It may be extended an additional 6 months for good cause on a Motion to Extend Order of Protection.

In both the civil and criminal cases, a violation of the "no-contact" provisions have very serious consequences. Violations of these Orders is a crime. In fact, violation can be charged as a felony in the criminal case with very serious penal consequences. In the criminal case, the defendant will be arrested and the judge may order the defendant held in custody until the trial date. In addition, the defendant will likely face new charges including possible felony domestic violence. In the civil case, a violation of the no-contact order can and typically does result in a finding of contempt for which the Respondent can be taken into custody often times for 10 days, though the judge can order a longer time period.

In addition to the distinctions above, the jurisdiction of the court over matters related to the parties is very different. The family court domestic violence officer can address who stays in the home, generally the alleged victim. The domestic violence hearing officer can also address temporary child custody and time-sharing , and child support. The criminal court cannot address these issues as its jurisdiction is limited to criminal prosecution. However, the no-contact order in the Order Setting Conditions of Release often has the effect of awarding the home to the alleged victim.

It is important that you understand the difference in these two proceeding if you have been accused of domestic violence. Though the criminal case may appear much more serious, the reality is that the civil case has much broader consequences addressing property rights, child custody and child support. And of course, a finding of domestic violence in the family court has most of the same negative consequences of a criminal conviction such as immigration consequences, employment consequences and gun ownership to name a few.

In short, in either case, you should contact an attorney immediately upon learning of allegations of domestic violence. The possible consequences are too severe to take these matters lightly.

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The collateral consequences of a criminal conviction can often outweigh the criminal penalties. The employment consequences can be particularly problematic. The impact of a criminal conviction on employment can be difficult to determine because the laws and regulations are often industry specific and are therefore found in the industry codes and regulations.

However, it is clear that many convictions will impact future employment. Most employers (80% of large corporations and 69% of small businesses) conduct background checks on all employees. It is estimated that two-thirds of employers will not hire a former offender. Due to the widespread practice of background checks along with the reluctance to hire those convicted of crimes, chances are a conviction will have serious consequences for your future employment.

In fact, there are many occupations where employment is barred completely by a variety of offenses, not all of which are felonies. Most professions and occupations will bar licensure in cases of felony convictions. In addition, many also bar licensure in cases of dishonesty or fraud. These categories cover a lot of ground, not unlike the crimes of moral turpitude classification critical to immigration cases. Those professions involving fiduciary responsibilities such as banking and financial services also carry bans for convictions involving breach of trust and money laundering.

Even where a conviction does not create an absolute bar, licensing agencies often may refuse licensing on the grounds of moral character. Those offenses reflecting on moral character can be quite broad ranging from failure to pay child support, domestic violence/battery on a household member, crimes of dishonesty, fraud and certainly any felony conviction.

There a number of professions that bar employment for controlled substance offenses including the medical profession, law enforcement, and private security. And of course, convictions for controlled substance offenses can be used in judging moral character. The problem with the controlled substance conviction is that by statute in New Mexico, marijuana remains classified as a controlled substance. As such, a marijuana conviction can potentially harm potential employment opportunities in the future.

Finally, many occupations and professions will have occupation specific bars. The most obvious case is daycare and teaching for those convicted of sex crimes. Again, charges for sex crimes can sometimes involve what would appear to rational people to be relatively innocent behavior. The most egregious abuse of sex crime statutes involves prosecution of young men and women, and even children, for sexual exploitation for carrying or transmitting explicit pictures of friends/classmates on their mobile phones. A conviction for even this can carry lifetime registration as a sex offender with all the employment consequences of said registration.

It is important to know the employment consequences of a conviction as you move forward in your case. Unfortunately, some charges are so severe that there is little room to maneuver or avoid the possible employment consequences without taking even greater risks of criminal consequences. However, it is important that you understand all of the collateral consequences of a conviction which often go well beyond punishment by the courts.

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