Albuquerque Criminal Lawyer Blog

The recent 10th Circuit Court of Appeals case of US v. Silva-Arzeta brings both further illumination and concerns to the recent Arizona immigration enforcement bill. There are many in New Mexico clamoring for Arizona style immigration enforcement in our state. This case will provide little comfort to those already concerned about this prospect and the forfeiture of individual rights that it would bring.

In a nutshell, the defendant was stopped by officers while in his car leaving his apartment on suspicion of drug trafficking. The officers questioned the defendant in English. They searched his vehicle finding meth and $1038 in cash. The officers alleged that the defendant then consented to the search of his apartment. Really! That's what they alleged. They stopped him in his car, he is drug trafficker, and he consented to the search of his apartment. Drug dealers everywhere would be appalled by his lack of professionalism. All this was done in English.

After he was arrested, the defendant was finally provided a Spanish speaking interpreter for further questioning at the station. The interrogation at the station was conducted entirely in Spanish. The officers that obtained the consent to the search, searched the defendant's car and apartment and placed him under arrest stated that the defendant's English was fine. It is not clear why the station interrogation was in Spanish given the defendant's mastery of the English language. Perhaps it was because he did not speak English as testified to by his employer who stated that the defendant spoke little English and that he had to use a bilingual employee to assist him in communicating with the defendant on the job.

The defendant was acquitted of all charges in the first trial. The state was able to obtain a retrial and the defendant was then convicted on all counts. The defendant appealed arguing that all evidence seized in the case was seized in violation of the 4th Amendment prohibitions against unlawful search and seizure. The defendant argued that the consent to the search was not and could not be consensual due to his inability to adequately understand English. The 10th Circuit affirmed the conviction.

The court recognized that any warrantless search is presumed unreasonable. One exception of course is a consensual search. The Court stated that "Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error." In short, the question is left to the jury who judgment should not be second guessed. The most obvious question being which jury should we rely on? The first jury that acquitted him on all counts, or the second jury that convicted him?

The court recognized established case-law that "invalidated searches based on consents ... given by Hispanics who did not comprehend what they were doing." Despite the case-law, the court affirmed the conviction stating "Mr. Silva-Arzeta could converse in English sufficiently well to consent to the search." Naturally, no guidance was provided for the definition of "sufficiently well" effectively leaving it up the judgment of law enforcement.

Keep in mind this is what happened here. The defendant's English speaking ability was entirely evaluated by the arresting officers. The testimony of the defendant's employer was ignored as was the defendant's own testimony. And none of the conversations with the defendant were recorded. Not at the scene, and not at the station during the Spanish language interrogation. None of the officers saw fit to record these conversations despite the ease with which it can be done with the officers' standard issue belt-tapes.

These issues are even more problematic when the court states: "Mr. Silva-Arzeta's concerns, however, are the bread and butter of litigation. Much of the controversy at trials could be minimized, if not eliminated, if all acts were videotaped and all conversations recorded." The court further recognized approvingly the defendant's citation of Justice Department guidelines that suggest this practice. However, the court dismissed these as mere suggestions of best practice that do not give rise to constitutional concerns.

In short, a Spanish speaker has no right to protection against unlawful search and seizure. The defendant could be held to have consented based purely upon the self-serving testimony of the arresting officers as in this case where there was no mention of other corroborating witnesses to the defendant's ability to understand and speak English. Finally, officers are not required to record any of the encounter, unless they so choose despite the obvious evidentiary value of a recording.

The folks of New Mexico might want to keep an eye on the immigration enforcement debate in the upcoming elections. It's not just drug dealers that will suffer if New Mexico heads down this path of Arizona. It is not just drug dealers that benefit from the 4th Amendment protections against unlawful search & seizure. Use your imagination, I am out of space, and out of time.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The recent immigration law enforcement measure passed in Arizona should interest citizens of New Mexico. The Arizona law not only permits law enforcement officers to stop anyone who appears to be an immigrant to check their papers, it demands it. It is a gross violation of the 4th Amendment prohibitions against illegal search & seizure. It is a pervasive and dangerous infringement of individual rights.

The 2009 census suggests that 44.9% of New Mexico population is Hispanic. The Hispanic population in New Mexico exceeds the white non-Hispanic population which stands at 41.7%. In addition to the large Hispanic population, Blacks represent 3%, Native Americans represent 9.7%, Asians stand at 1.4%, Hawaiians and Pacific Islanders at .1% All told, whites are in the distinct minority.

So what would happen if such a law were passed in New Mexico? The answer is easy 55% of the population could be stopped at the whim of law enforcement. Some argue that there is nothing wrong with this and it is needed to protect our soil. Before jumping on board with this bill, why couldn't whites be stopped as well? After all, many immigrants are of white European descent and a diligent officer would question their legal status as well as those of darker skin color.

Keep in mind a driver's license is not proof of citizenship. Therefore, lawful citizens could be stopped and taken into custody for failure to provide their proof of citizenship. After all, how many citizens carry proof of citizenship? How many New Mexicans have a passport? I suspect that it is a relatively small percentage of the population. As a result, the law could be used to harass, intimidate, and terrorize illegal immigrants and citizens alike. The law basically gives a cop the right to stop anyone, anywhere, anytime, for any reason.

The good governor of Arizona has indicated that the law in not illegal racial profiling because racial profiling is illegal and Arizona law enforcement does not engage in illegal activity. Apart from the ridiculous nature of this argument, what other indicators other than race could be used as probable cause to stop a potential non-citizen? What other criteria could there possibly be to justify the stop of a vehicle other than race? What other observations could an officer make of a passing vehicle that would raise suspicion of illegal status?

The good governor responds further to the suggestion of racial profiling that the officers are well trained and she trusts their judgment. Of course, she then states that they will have to come up with some criteria and then train Arizona law enforcement so they do not engage in the illegal racial profiling in which they would never engage because they are trained not to engage in illegal activity. Perhaps, the resulting guidelines will be that all people of whatever skin color should be stopped so as to avoid any suggestion of racial profiling. That should solve it. I feel better now.

New Mexicans have an election coming up in November for their own governor. The rhetoric surrounding immigration enforcement coming from some of the candidates rings very familiar when set against the backdrop of Arizona's recent law. New Mexicans would be wise to carefully consider who they are putting in office. And in the meantime, stay out of Arizona!

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Possession of a controlled substance, including marijuana, can have serious consequences for student aid. A conviction results in an automatic suspension of eligibility for federal student loans, grants and work assistance.

Suspension of eligibility for student loans, grants and work assistance is automatic for a duration of 1 year for a first time conviction for possession of a controlled substance. A second conviction carries an automatic 2 year suspension. A third conviction results in an indefinite suspension of eligibility.

Because the definition of controlled substance includes marijuana, both under federal and New Mexico law, any college student charged with possession of marijuana needs to carefully consider the consequences of any possible plea offers. Often, the prosecutor or district attorney will offer a plea disposition that ultimately involves a dismissal of the charges. This is very common in minor first time possession of marijuana. However, the prosecutor will often condition the plea and eventual dismissal on an admission of guilt such as in offers of a deferred sentence.

Any offer resulting in ultimate dismissal would typically be a very good option for a criminal defendant. Unfortunately, much like the untended immigration consequences related to seemingly trivial offenses, an admission of guilt to possession of a marijuana, despite a later dismissal, will jeopardize student loan eligibility.

Unfortunately, these harsh federal laws have not caught up with the national trends toward greater leniency in marijuana prosecution. California is moving toward decriminalization. At least one town, Breckenridge, has decriminalized marijuana usage. Medical marijuana legalization is expanding fairly rapidly across the country. Even law enforcement officials across the country are leaning toward leniency in marijuana enforcement. All the while, federal law continues to penalize recipients of student loans and grants for what is a fairly widespread practice on college campuses.

Hopefully, the federal law will catch up with state laws and the realities of widespread marijuana usage throughout the population, including college students. However, until that day comes, any New Mexico college student facing this situation would be well advised to seek the advice of a New Mexico attorney. Going to court without the assistance of counsel believing this to be a minor matter could prove very costly.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The consequences for DWI/DUI conviction are severe. For repeat offenders, a conviction results in certain jail time. How much jail time is largely dependent upon the behavior of the DWI/DUI offender following arrest.

One does not have to look far to figure out why the consequences for repeat DWI/DUI offenders are growing in severity. Just today, the Albuquerque Journal had an article listing several tragic DWI/DUI accidents that have occurred since February. Of the 6 DWI/DUI accidents listed, 4 involved deaths of innocent victims. Keep in mind, the article only listed accidents since February of this year. Judges and prosecutors have far longer memories of the many tragic and often fatal DWI/DUI accidents that occur each year in New Mexico. According to the DWI Resource Center, there have been an average of 190 deaths per year from 2000 to 2009 keeping New Mexico in the top 10 across the country for these figures over most of this period.

Neither judges nor prosecutors have much patience for repeat offenders in this environment. As a result, repeat offenders have an uphill battle at sentencing. However, there are several things that can be done to help one's cause when facing this situation.

First, STOP DRINKING. PERIOD. This is not optional. Clients say all the time that they do not have a drinking problem. Trust me when I tell you the judge and prosecutor disagree. A first time DWI/DUI indicates a drinking problem. A subsequent offense indicates a serious problem. The worst thing a repeat offender can do for his or her cause is to walk into court and deny a drinking problem.

The remaining steps all surround the first. It is easy for a defendant to walk into court and tell the judge that he or she has stopped drinking. After all, how is the judge to know any better? Unfortunately for the repeat offender, the presumptions are not on his or her side. Once convicted, there are no more presumptions in your favor. This seems too obvious to say but some believe that it is up to the prosecutor to prove they are lying. Not so, the repeat offender must prove that he or she is not.

The only way to do this is through careful documentation. Therefore, a repeat offender should at a minimum begin Alcoholics Anonymous (AA). Frequent attendance is essential, at least 2 -3 times per week. To document attendance, take a sign in sheet which can be obtained from the court or probation/pretrial services. Some AA facilities may have these on hand since many attendees are there for this very reason.

Beyond AA, a repeat offender should be in alcohol and/or drug counseling. Again, many protest that they do not have a drinking problem. In answer to this, please review the paragraphs above. A good counselor can be very beneficial at sentencing. A good counselor will provide thorough documentation of your problem as well as your progress. In addition, a good counselor will document many other aspects of your life, employment, family, character and general history that could be very helpful in minimizing your jail time. Most important, counseling shows the judge that you are serious about addressing your problem.

This gets back to the initial point of this whole exercise. A second DWI/DUI carries a mandatory 4 days of jail, a third 30 days, a fourth 6 months. After that, it gets much worse. Now for the bad news, these are mandatory minimums and judges across New Mexico are growing increasingly reluctant to allow the mandatory minimums. This is why AA and counseling from the date of arrest, not 3 days before sentencing, is so important. Judges have a great deal of latitude in sentencing between the minimum and maximum. Do yourself a favor and give the judge good reason to lean toward the minimum.

www.CollinsAttorneys.com

The New Mexico Court of Appeals has validated the police-team concept in DWI/DUI investigations. Ironically, the decision comes on the heels of the Albuquerque Police Department's recent announcement that police-teams would no longer be used in DWI/DUI investigations.

The police-team approach to DWI/DUI's was used widely across New Mexico, particularly in Albuquerque where it was used in the vast majority of DWI/DUI investigations. In essence, the police-team approach involved the assistance of specially trained DWI/DUI officers in almost every DWI/DUI investigation in Albuquerque. Typically, there would be a stopping officer, generally from field services, who would initiate contact with the suspected DWI/DUI driver. If that officer believed that the driver was driving under the influence of alcohol, an officer from the DWI/DUI Unit would be called to the scene. Once on the scene, the DWI/DUI officer would take over the investigation.

Many defense attorneys challenged the practice over the years arguing that the police-team approach did not meet the basic rule that a misdemeanor arrest cannot be made unless the misdemeanor was committed in the presence of the arresting officer. There were a few judges throughout the state that did not recognize the police-team concept.

The Court of Appeals in State v. Mitchell validated this practice . Essentially, the court indicated that the team approach where the investigation was handed off from one officer to another was a legitimate practice. The Court found that the practice met the exception to the rule because of the officers' cooperation in the DWI/DUI investigation.

Thus, the police-team approach can now freely be used by New Mexico law enforcement in DWI/DUI investigations. The ruling comes just as the Albuquerque Police Department has done away with the practice. APD stated that the practice will avoid the necessity of two officers in court for the prosecution of DWI/DUI. Often times, trials are continued because either the stopping officer or the DWI/DUI investigating officer are not present. Both must be present in order to prosecute the case. On occasion, these cases would eventually get dismissed due to the unavailability of one of the officers at trial.

The decision to discontinue the practice also reflects budgetary realities. DWI/DUI prosecutions can be very expensive, burdening the police, the prosecutors' offices, and the courts when one or more officers routinely miss a hearing necessitating future hearings otherwise unnecessary hearings. In addition, the time that the officers accrue in court is typically counted as over-time pay, which is paid at a premium. The police-team concept is simply an inefficient means of prosecuting DWI/DUI burdening an already stretched criminal justice system.

The practice creates a severe burden on the system and the taxpayers that carry it. As such, though the practice has been validated by the Court of Appeals, Albuquerque Police Department, already hit by severe budget issues, will have to think carefully before reinstating it.

www.CollinsAttorneys.com

Arguments were heard last week by the Supreme Court in Carachuri-Rosendo v. Holder. The case addresses the immigration consequences of removal and deportation of immigrants from the United States for minor possession of marijuana. I set forth a summary of the case in a prior post. The last post did not address the public policy implications of the case. There are many that will be felt here in New Mexico.

News reports over the last several weeks have included California releasing thousands of prisoners due to budget issues. The State of New Mexico is considering permanently cutting over 1000 employment positions in the State, many of which are corrections and law enforcement. The New Mexico State Police have cut back on officers. Other cities and towns, including Albuquerque, are cutting law enforcement positions and/or salaries. The courts in New Mexico, including the Second Judicial District, are cutting hours and staff due to budget issues. Prosecutor budgets are being cut with prosecutors taking pay cuts. Think of what a continuation of the policy of deportation of immigrants on minor possession of marijuana has on prosecutor's offices.

Immigrants facing these charges have no plea options. Prosecutors are left with one few options, dismissing the case or going to trial. In many cases, these are only options if there were no other charges in the complaint. There is simply no lesser included offense that would allow plea. Criminal defense attorneys cannot advise their clients to take a plea involving any hint of drug possession. They cannot even allow a plea that would result in a dismissal if the plea involves an admission of marijuana possession. The admission alone, despite the later dismissal, is a deportable act.

Thus, the policy forces defendants to go to trial on otherwise trivial charges. Trials are a huge burden on the courts and prosecutors who are already under severe budgetary strains. Just today, the Albuquerque Journal reported that Albuquerque Public Schools face a $43 million budget deficit forcing the layoff of 664 APS employees. How should we as a society spend our tax dollars? For teachers or for prosecuting and deporting otherwise law-abiding immigrants on minor possession of marijuana?

Morality, humanity, compassion carry little weight in immigration debates. Money is always persuasive, and though money cannot buy happiness, it might buy change in a cruel and irrational immigration enforcement policy.

www.CollinsAttorneys.com

New Mexico was the first state to require ignition interlock devices for first time DWI/DUI offenders. Numerous other states have since passed laws requiring the devices following a DWI/DUI conviction. New Mexico Senator Tom Udall has introduced federal legislation for the requirement of the installation of an ignition interlock device for a minimum period of 6 months for any DWI/DUI conviction, including first time DWI/DUI offenders,

Many first time DWI/DUI offenders in New Mexico believe that a conviction is required for imposition of the ignition interlock requirements. In fact, no conviction is necessary for the revocation of one's driver's license and the consequent ignition interlock requirement.

Upon arrest for DWI/DUI, the person arrested is facing two different proceedings, the criminal proceeding and the MVD administrative proceeding. The Motor Vehicle Division license revocation proceeding will come up long before the criminal proceeding has come to an end. These MVD license revocation hearings are almost a formality for the revocation of the alleged DWI/DUI offender's driving privileges. The burden of proof at these hearings is extremely low requiring only that the hearing be held within 90 days of arrest, that the stop be legal and that the person blew over .08 on the breath alcohol test.

For MVD license revocation and the ignition interlock requirement, it does not matter if the alleged DWI/DUI offender later wins at trial in the criminal proceeding or even if the criminal DWI/DUI case is dismissed. In short, unlike the legislation in other states and the federal legislation introduced by Senator Udall, no conviction is required for the revocation of the alleged offender's license and the imposition of the ignition interlock requirement.

The consequences of DWI/DUI arrest on a person's driving privileges are severe. The first time DWI/DUI carries a minimum driver's license revocation of 6 months. If the driver refuses the breath alcohol test, the minimum revocation through MVD is 1 year. Subsequent offenses carry 1 year MVD revocations. The MVD hearings and revocations are completely independent of the criminal case. This can result in the actual revocation and interlock requirement greatly exceeding the 6 months proposed by Senator Udall even on a first time DWI/DUI offense.

The interaction of the MVD revocation and the revocation by the criminal court judge can be confusing. Likewise, the MVD imposed interlock requirements themselves can be both confusing and oppressive, particularly for those that do not own vehicles. These issues will be addressed in subsequent posts.

www.CollinsAttorneys.com

Arguments in Carachuri-Rosendo v. Holder began yesterday before United States Supreme Court. The case addresses the issue severe immigration consequences of removal and deportation of immigrants from the United States for minor possession of marijuana.

The case involved a situation where the defendant was convicted for simple possession of marijuana in 2004. He was sentenced to 20 days in jail. One year later, he was convicted of simple possession of xanax on a no-contest plea. Both were misdemeanors under Texas law. Despite the fact that both convictions were misdemeanors, the prosecutor argued and the Court agreed (both the district court and the 5th Circuit Court of Appeals in Texas) that successive convictions allowed for the defendant to be charged with drug trafficking for the second offense. Drug trafficking convictions are deportable offenses, with very few exceptions.

The Supreme Court will address whether or not the practice of equating two misdemeanor drug offenses to a drug trafficking offense is constitutionally allowed. Several Circuits have already ruled that it is not with the 5th Circuit (Texas, Louisiana and Mississippi) continuing the practice.

The Court's ruling will affect thousands of immigrants facing immigration for misdemeanor drug offenses. Under the current state of the law, there is an exception to removal for first time simple possession of marijuana (less than 30 grams). Any subsequent drug offenses no matter how trivial will result in removal and deportation.

The New York Times addressed an individual who is keenly interested in the case's outcome. The article addressed Jerry Lemaine who had been arrested for a small amount of marijuana as a teenager. That case was dismissed. He was caught later with a single marijuana cigarette in 2007. His public defender had advised him to plead guilty and pay the $100 fine. This would make sense in the typical case, but in case of an immigrant, the plea resulted in Jerry being placed in removal. He has spent the next three years in confinement fighting removal to Haiti where he left when he was 3 years old. The court refused to consider his exemplary life where he was working on a nursing degree, helping to care for a brain injured United States citizen sister, and helping his mother single mother who worked two jobs to care for the family and get them out of a dangerous Bronx neighborhood to Long Island.

There are thousands of others currently in removal proceedings for similar charges of minor possession of marijuana. The Court's ruling will affect thousands of immigrants facing immigration for misdemeanor drug offenses. Under the current state of the law, there is an exception to removal for first time simple possession of marijuana (less than 30 grams). Any subsequent drug offenses no matter how trivial will result in removal and deportation.

The immigration enforcement policies have tragic consequences for many immigrants and their families. The policies have broader policy implications that directly impact local law enforcement, prosecutor offices and the Courts. These will be addressed in the second part of this article.

www.CollinsAttorneys.com

Read the New York Times Article