Albuquerque Criminal Lawyer Blog

When dealing with illegal search & seizure issues under the Fourth Amendment protection cases, courts evaluate whether the defendant had a "legitimate expectation of privacy" in the first place.

As a general rule, courts look at both the individual's and the societal expectation of privacy for that determination. The courts will look to both the "subjective expectation of privacy" and the "objective expectation of privacy."

For instance, any person expects to have privacy while using a public restroom and the majority of people in society finds this desire of privacy reasonable. So, if police officers spy upon a person inside a restroom without a valid reasonable basis and see a packet of drugs that the person had hidden, the search is considered illegal. On the other hand, if police agents spot a weapon or drugs on the front seat of a car, the search is not protected because most people would not consider this place private since would agree that the front seat of a car is publicly exposed.

These cases are connected to what is called "the plain view doctrine". Under this rule, governmental agents can conduct warrantless searches and seize evidence of criminal activities that are in their plain view - in public - and as long as the agents have a "legal right to be in that place". The plain view doctrine even in traditional searches can become rather complicated. The proliferation of technology has greatly increased the complexity of a plain view analysis of a search.

The increasing presence of technology in our daily routines in fact may significantly erode our right and expectation of privacy. This can be seen with the growing use of surveillance video cameras in public places.

Clearly, if any person commits a serious illegal act such as drugs trafficking or robbery in front of a public camera, most would argue that police should have a right to take action without worrying about an illegal search and seizure. In fact, there is a significant body of case-law that has ruled individuals videotaped in public view have no reasonable expectation of privacy. As such the use of video evidence could not be challenged under the 4th Amendment. Most have no problem with stripping criminals of their privacy rights.

The more difficult issue is the encroachment on the privacy of law-abiding citizens through the use of these videos. For the instance, there is a growing trend to install video cameras over public roads, highways, shopping centers, schools and a host of other public places. The reality is that there are many private acts, other than criminal acts, that occur in public.

Keeping in mind that your car is considered a public place to the degree it's interior is in plain view. Would any of us really want everything that occurs in our car to be exposed to public view? There is answer is probably no but the reality is that it already is. So as is often the case, our zeal in tracking down bad guys has left the great majority of good guys quite exposed.

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico's Implied Consent Act, any driver arrested for DWI is deemed to have given consent to "chemical tests of his breath or blood or both." Refusal of the tests results in both the automatic one year revocation of the driver's license and charges for aggravated DWI.

On occasion, a driver may decline the test then later change his or her mind. The question that will arise is whether the change of heart is sufficient to avoid the consequences of a refusal. The answer is that it probably will not.

There are many states that consider any refusal no matter how brief to be a violation of the Implied Consent Act thereby resulting in the all the consequences associated with a refusal. New Mexico takes a more liberal approach. However, it is only slightly more liberal.

The rule in New Mexico was set forth in the 1994 New Mexico Supreme Court case of State v. Suazo. The Court in Suazo adopted a subsequent consent rule with several strict parameters. The change of heart must come within a reasonable length of time necessary to understand the consequences of a refusal. In The consent must come within a time frame when a test would still be accurate. Finally, there must be no substantial inconvenience or expense to the police necessitated by the change of heart.

This all might seem a little vague but the court cleared things up when it stated that the time allowed for a change of mind would be a "very short time, never more than a matter of minutes." The Court made clear also that the burden is on the driver to prove the reasonableness of the change of mind.

In short, a refusal of the breath alcohol test carries very serious consequences including automatic one year revocation of driving privileges and charges for aggravated DWI which carries mandatory jail time on conviction. Under Suazo, the decision of whether to consent must be made almost immediately. Indecision or delay is not in the driver's favor and will be strictly construed against the driver.

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment to the U.S. Constitution provides limits to law enforcement search and seizure procedures in order to protect individuals' privacy. Under the 4th Amendment, unreasonable searches and seizures carried out by law enforcement officials are forbidden, Perhaps most importantly, any evidence gathered in violation of the 4th Amendment is inadmissible in Court.

The 4th Amendment prohibits police officers from entering your house or your workplace, searching your backpacks, purses, or any other private personal item, among other private matters, in the absence of either probable cause or consent to the search.

Unfortunately, the protections of the 4th Amendment do not extend to illegal searches and seizures by non-governmental agents. Essentially, individuals may be subject to unreasonable and otherwise illegal search and seizure at the hands of a host of private actors such as landlords, employers, store employees, private security guards and the like. The New Mexico Supreme Court held as much in State v. Luis Santiago.

The lack of protection means that should a later court action be commenced, whether civil or criminal, 4th Amendment rights and remedies do not generally apply. As such, illegal search and seizure may as a basis for excluding the evidence

A not too uncommon example will illustrate the point. Mall security guards can be quite aggressive. On occasion, based upon pure hunch (to be generous), they may choose to search a teenager's backpack. In so doing, contraband such as marijuana or other drugs may be discovered. Mall security may then hold the teenager until police arrive, who coincidentally are often conveniently located nearby.

Even if the security guard lacked probable cause to search the teenager's backpack, the search would not be considered illegal. Moreover, the drugs would be admissible so long as it is not found that the mall security was acting as an arm or under the direction of law enforcement.

Determining whether or not the mall security was acting under the direction of law enforcement can be challenging at best. Perhaps more problematic are situations where mall security engage in profiling or other constitutionally suspect behavior that gives rise to the search to begin with. Unfortunately, this may be far more common than we would like to believe. This type of conduct gives rise to a whole new set of issues beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

Under New Mexico law, the courts maintain jurisdiction over criminal cases for the duration of the probationary period. It was made clear in the New Mexico Court of Appeals case of State v. Jose Alfredo Ordunez that once the probationary period has lapsed, the court loses jurisdiction over the defendant.

The Ordunez case held that any action by the state for violations of probation must be filed within the probationary period. As such, once the probationary period has lapsed, the State is barred from filing for a revocation of probation. In fact, this is what occurred in Ordunez. The State failed to file for revocation of probation prior to the end of the defendant's probationary period thereby defeating the court's jurisdiction.

Though not pivotal to the outcome of the case, the court also addressed the issue of tolling of the jurisdictional limits when a defendant absconds from justice. In other words, the court addressed what happens when the defendant disappears following a probation violation for which revocation could be filed.

As an aside, disappearing while on probation is typically itself a violation of probation. More often, a separate violation of probation precipitates the disappearance due to defendant's knowledge of the coming probation revocation and possible incarceration. There are defendants who mistakenly believe that if they disappear long enough for their probation to end, they are somehow off the hook.

The Court in Ordunez cited both statute and case law to the contrary. NMSA §31-21-15(C) states:

"if it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation."

It is clear from the language of the statute as well as the Court's language in Ordunez among other cases that "a probationer cannot defeat the district court's jurisdiction merely by remaining a fugitive from justice until he probation period has run."

In short, as unpleasant as it may be, a violation of probation must be dealt with by a defendant. In fact, as many have found, the consequences of running from the violation are often more serious than the violation itself.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of criminal charges in New Mexico, a conditional discharge is often a very positive outcome. A conditional discharge will result in the eventual dismissal of the charges.

A conditional discharge allows for the disposition of the criminal charges without an adjudication of guilt. This means that the defendant is never found guilty of any crime so long as all conditions of probation are met.

However, to get a conditional discharge, the defendant must enter a plea of guilty or no-contest. In the event of a violation of the terms of the conditional discharge, the plea then turns into a conviction.

The conditional discharge does not wipe the record clean. Though there is no conviction, there will always remain a record of the charges and the proceedings. As such, anyone doing a background check on the defendant will see that the charges were filed and dismissed.

Because there was no conviction, many defendants believe that the record should be expunged. The mere fact of the charges can have very serious consequences in the future. Unfortunately, despite the fact of the dismissal, the New Mexico Courts have held consistently the right to expungement to be very limited.

The issue came up most recently in State v. C.L. State v. C.L. addressed in depth the right to an expungement. In State v. C.L., a showing of adverse employment consequences due to the court record was expressly held to be insufficient for an expungement. Under the New Mexico Court of Appeals ruling in C.L., an expungement is possible only in case of a finding of unlawful arrest or unlawful conviction.

Unfortunately, a conditional discharge meets neither of these criteria. The conditional discharge is meant as a second chance of sorts. However, a conditional discharge will not completely wipe the record clean. This is possible only through expungement which is difficult and rare to put it mildly.

Collins & Collins, P.C.
Albuquerque Attorneys

The MVD hearing following a DWI arrest has always had pretty low standards for drivers license revocation. Essentially, if the cops showed for the hearing, it was almost a foregone conclusion that the license would be revoked.

Basically, once the hearing began, the officers need only show that they legally stopped the driver, the officer had reasonable grounds to believe the driver was driving while under the influence, the person was arrested, the hearing was held within ninety days of arrest, and the driver either blew over .08 or refused the breath alcohol test.

These were pretty low standards. The only possible basis for winning the revocation hearing was showing the stop was illegal. But even this offered a glimmer of hope, and a small thread of due process. It was small indeed. In actuality, the officer would basically have to admit that the driver was stopped illegally to lose the hearing once it commenced. Few officers would ever make such an admission.

Despite the extremely low standards for revocation, the standards just got even lower as a result of the New Mexico Court of Appeals decision in Glynn v. New Mexico Tax and Revenue, Motor Vehicles Division. Remarkably, the Court determined that the first element was no longer necessary. More remarkably, the Court held so despite the protestations of the MVD.

MVD argued that the MVD hearing officers had authority to determine the legality of the stop under the 4th Amendment. In fact, MVD stated that this had always been a part of the hearing arguing that "whether a stop is justified by reasonable suspicion is implicitly within the scope of MVD's statutory authority."

The Court disagreed flat stating "Fourth Amendment requirements is not a necessary element of a license revocation under the Act." The Court thus concluded that the exclusionary rule did not apply either.

The result is that officers are free to stop vehicles under whatever pretense and the license revocation will move forward so long as there a .08, a refusal and the hearing is held on time. The U.S. Constitution simply has no place in the MVD driver's license revocation hearing.

The MVD hearing is now no more than a sham formality whose purposes defy reason. There really is no need for the pretext of fairness or justice. The only remaining element for revocation is now whether the driver blew over .08 or refused the test. Is a hearing really necessary for this determination?

Collins & Collins, P.C.
Albuquerque Attorneys