Albuquerque Criminal Lawyer Blog

It is well established that individuals on probation have significantly fewer rights than the general population. One of the rights that is generally forfeited by a probationer is the right against search and seizure by the probation officer.

While on probation, the probation officer has a right and a duty to insure that the probationer is complying with the terms of probation. The terms of probation universally prohibit the use of illegal drugs while on probation. Likewise, a probation officer can order the probationer to cease contact with known felons or drug dealers.

These variables came together in the New Mexico Court of Appeals case of State v. Sundae Bolin. In Bolin, local law enforcement was seeking to execute a warrant on an associate of Ms. Bolin who was suspected of drug trafficking. In order to try to locate the suspect, the police enlisted the aid of Bolin's probation officer.

Upon request of the police officers, the probation officer escorted the police to Bolin's residence where she was questioned about the suspect's whereabouts. The suspect was not present, nor was there any reason to believe the suspect would be present at Bolin's residence. After questioning Ms. Bolin about the location of the suspect, the police officers and probation officer began questioning Bolin about drug use. Ms. Bolin admitted drug use precipitating a search of the premises. Police discovered a variety of contraband for which Bolin was charged with trafficking a controlled substance.

Interestingly, the court noted that contact with felons or drug dealers is not necessarily a violation of probation unless there is an express prohibition against such contact. Nor is it a crime. As such, neither the police nor the probation officer had any reasonable basis for being at Ms. Bolin's home. Without grounds for presence at her home, they also lacked any basis for questioning her about her drug use which led to the search of her residence.

The Court made clear that probationers have a lessened expectation of privacy under the 4th Amendment while on probation. The court also made clear that probation officers may call upon law enforcement in the performance of their duties. To the contrary, police may not enlist probation officers in their law enforcement duties. In short, the court would not allow a police investigation to be conducted under the pretense of a probationary visit.

The court found that when Bolin answered that the suspect was not there, the encounter should have ended. There was no legitimate law enforcement purpose for their continued presence, nor was there a legitimate probationary purpose. The probation officer was at Bolin's home purely for the purpose of assisting the police officers in a criminal investigation.

The Court found that the search and seizure upon which the charges against Bolin were illegal under the 4th Amendment. As such, the district court's decision to suppress the evidence seized as a result of the illegal search was upheld.

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

Puncturing a car's gasoline tank to steal gas may be charged as burglary under New Mexico Law. By statute, burglary of an automobile is a 4th degree felony punishable by up to 18 months in prison and $5000 fine.

In State v. Muqqddin, the defendant used a nail to puncture a gas tank and steal the gasoline from what he believed was an abandoned vehicle. The facts showed that the vehicle had been parked in an alley for 6 months. However, the owner of the vehicle indicated that he had not abandoned the vehicle but rather was going to donate it to charity or sell it for salvage.

Mr. Muqqddin was convicted of burglary. He appealed the conviction on two grounds. First, he argued that puncturing the gas tank did not fall within the definition of burglary. Second, he argued that he believed the vehicle was abandoned and therefore he lacked the requisite intent necessary for a burglary conviction.

The New Mexico Court of Appeals upheld the conviction. Though sympathetic to Mr. Muqqddin's arguments, the Court noted that the act of puncturing the gasoline tank to steal gasoline clearly fell within the statutory definition of burglary. The statute defined burglary as "the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein."

The Court analogized to past cases in New Mexico. In the 1984 New Mexico Court of Appeals case of State v. Rodriguez, it was found that reaching into the back of a pickup bed to steal a toolbox. In the 1990 Court of Appeals case of State v. Reynolds, the defendant was convicted of burglary for reaching into the engine compartment from underneath the vehicle to steal the starter.

The more interesting aspect of the appeal was in Muqqddin's challenge to the finding of intent by the jury. The 1952 United States Supreme Court case of Morissette v. United States established that abandoned property belongs to nobody and therefore may be "appropriated by the first taker." Mr. Muqqddin arguably believed that the vehicle had been abandoned. The evidence seemed to show that this was not an irrational conclusion.

The Court of Appeals did express sympathy for Mr. Muqqddin's situation. However, the Court refused to reverse the jury's factual finding of intent stating that it would not substitute's the Court's own finding for the finding of the jury.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The "knock and announce" rule that has arisen under the 4th Amendment protections against unlawful search and seizure requires officers to wait a reasonable amount of time for an occupant's response before resorting to forcible entry. The amount of time that is reasonable is dependent upon the circumstances.

In State v. Ulibarri, the New Mexico Court of Appeals found that 10 to 12 seconds was insufficient under the circumstances of the case. In Ulibarri, the defendant was convicted on a conditional plea to felony possession of heroin and cocaine. The evidence was seized during the search of the defendant's grandfather's home. The defendant was not present at the time of the search. He was already in custody. The only occupant at the time of the search was the defendant's 75 year old grandfather.

It was admitted by the 12 member police team that executed the warrant that they waited only 10 to 12 seconds after knocking and announcing before kicking in the door. Unfortunately, the grandfather who was trying to get to the door was knocked down and injured as the door struck him.

The Court spelled out the purposes of the "knock and announce" rule which is to prevent the needless destruction of property, avoid violence toward both the police and the occupants, to protect individual privacy, and particularly relevant here, to avoid unnecessary injury to the occupants. Failure to abide by the rule results in the suppression of the evidence.

The State in its appeal argued that it was customary to wait only 10 to 12 seconds based upon a couple of cases involving hotel rooms and mobile homes. The Court distinguished these cases stating that 10 to 12 seconds might be reasonable in such small quarters. The Court further distinguished these cases since the suspects were known to be present during these forced entries.

The State further argued that exigent circumstances will allow for shorter waiting times to protect officer safety. However, the Court pointed out that the State had not argued exigent circumstances at trial but rather that 10 to 12 seconds was by law a sufficient waiting period.

The Court emphasized that there were no bright line rules for proper waiting period. Instead the reasonableness of the wait is viewed under the totality of the circumstances. Most importantly, the Court reaffirmed that it is the State's burden to "show the reasonableness of the execution of the warrant." In this case, the Court determined the State had not met its burden and therefore the conviction of Mr. Ulibarri was reversed.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In keeping with the New Mexico Supreme Court's decision in State v. Aragon, the New Mexico Court of Appeals upholds a defendant facing drug charges rights to confront and cross examine the State's forensic chemist.

The case of State v. Delgado has an interesting procedural history. The defendant's original appeal of his convictions for possession of cocaine and tampering with evidence was denied by the New Mexico Court of Appeals. However, the case was sent back to the Court of Appeals after a series of 6th Amendment right to confrontation cases beginning with the United States Supreme Court decision of Melendez-Diaz. Based upon Melendez-Diaz, the New Mexico Supreme Court held in State v. Aragon that the testimony of the forensic chemist who conducted the testing and prepared the forensic report was required. The Court held that it was a violation of a defendant's 6th Amendment rights to have a substitute forensic chemist testify on the opinions of the non-testifying chemist.

In light of the ruling in Aragon, the Supreme Court remanded the case of State v. Delgado back to the Court of Appeals. The Court of Appeals then issued its ruling consistent with the decisions in Melendez-Diaz and Aragon. On remand, the Court of Appeals issued its ruling in a Memorandum Opinion. Upon the motion of the defendant, the Court substituted the Memorandum with a formally published opinion.

In short, the Courts in New Mexico will, as they must, adhere to the Melendez-Diaz decision. The rash of cases from State v. Aragon, State v. Bullcoming and now State v. Delgado make clear the State's commitment to the 6th Amendment rights of confrontation. The prosecutor must bring the forensic chemist who tested the drugs and prepared the forensic report. In the absence of this testimony, the drug evidence is inadmissible.

Sadly for Mr. Delgado, the Court also ruled that he was not entitled to a dismissal, but a new trial. It may be expected that the prosecutor will have the appropriate chemist in court for the next trial.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the issue of judge shopping by the prosecutor in State v. Cornelius White.

Mr. White was charged with felony DWI and battery on a police officer. The prosecutor took the case before a Magistrate Court judge on a preliminary hearing. The judge found that there was no probable cause and dismissed the case.

The prosecutor then filed a criminal complaint in district court on the same facts. The district court remanded the case to magistrate court for a preliminary hearing. The case landed back before the original magistrate. The state then recused the judge on a peremptory excusal.

The case was then sent to another magistrate court judge. The new magistrate judge simply listened to the transcript of the original magistrate court preliminary hearing. Upon the very same facts and testimony presented at the first preliminary hearing, the new judge found probable cause and bound the case over to district court on the felony charges.

Mr. White entered a conditional plea preserving his appeal on the legality of the prosecutor's tactics. Mr. White argued that the State was barred by collateral estoppels from presenting identical allegations and evidence following the original dismissal at the preliminary hearing. He further argued that the original magistrate court judge was improperly recused. He argued finally that his rights to a speedy trial under the 6th Amendment had been violated.

The New Mexico Court of Appeals agreed with Mr. White that the subsequent criminal complaint was barred by collateral estoppel and that the original judge was improperly recused. This was sufficient for reversal of Mr. White's conviction and it was unnecessary to address the speedy trial issue.

On the issue of collateral estoppel, the general rule is that a finding that there is no probable cause by a magistrate court judge at preliminary hearing is binding. It is binding both on the judge that made the ruling and any other magistrate court judge. In order to re-file the charges, the prosecutor must produce additional evidence in support of the allegations. The prosecutor in White simply re-filed the same complaint with the same supporting evidence.

This brings us to the second portion of the ruling regarding peremptory recusal. Once the prosecutor or any other lawyer calls upon the court for a ruling of any kind, that judge may not later be recused. This rule is designed to prevent the judge shopping that occurred here.

The rules apply to all cases, and both sides of the case. However, it is easy to see why it is so important in the case of criminal matters where a prosecutor might simply re-file the same case with the same evidence with the expectation of a different outcome before a friendlier judge.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

California voters will vote on a ballot measure that would legalize marijuana. In the meantime, Governor Arnold Schwarzenegger has signed a bill that reduces the penalties of the marijuana possession down to the level of a traffic violation. However, he remains opposed to the legalization and taxation of marijuana.

It might seem that reduction of the consequences of a marijuana conviction to a traffic ticket is sufficient to address the concerns of marijuana legalization activists. It does address a few. Reclassification of the offense will avoid criminalizing personal possession of a substance that an estimated 83 million Americans have tried. It avoids potentially criminalizing one half of the country's high school population that admits to trying marijuana before high school graduation. Perhaps most importantly, it will help to alleviate the hugely disproportionate impact marijuana criminalization has on minorities, particularly blacks and hispanics, who are far more likely to be arrested and prosecuted for the offense than similarly situated Anglos.

Despite the merits of reclassification, this solution does not go far enough. Marijuana continues to be classified as a controlled substance under State and Federal law. Reclassifying the seriousness of the offense will not change the controlled substance classification.

Why does it matter? Conviction, even without incarceration, of a controlled substance offense has many collateral consequences beyond the penal consequences. The most obvious is that conviction for a controlled substance offense, including marijuana, is a deportable offense. This means that many law abiding legal residents may be deported, not just those folks that according to Jan Brewer are littering our deserts with headless bodies.

Of course, there are those that are not opposed to the rather harsh measure of deportation of legal residents for minor possession of marijuana. There are other consequences as well. Perhaps most concerning is the impact a controlled substance conviction has on federal student loan eligibility. For those that were lucky enough to avoid student loans and unlikely to need them in the future, a controlled substance conviction can cause all kinds of future problems related to employment.

In short, reclassifying marijuana offenses to a less serious penal status does not address the inequities of marijuana criminalization. If the estimates are correct, there are 83 million Americans potentially at risk. Any law that would threaten to arrest and prosecute over a quarter of country's population for a controlled substance offense is simply unacceptable.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com