Albuquerque Criminal Lawyer Blog

The recent New Mexico Court of Appeals case of State v. Trevizo addressed the statute of limitations on first time DWI and reckless driving in New Mexico. The court concluded both first time DWI and reckless driving are petty misdemeanors under New Mexico law and therefore subject to a one year statute of limitations.

The facts are pretty straightforward. The defendant was arrested on October 13, 2005. The criminal complaint for DWI and reckless driving was not filed until April 12, 2007, one day short of 18 months from the date of arrest.

The defendant filed a motion to dismiss in Albuquerque Metropolitan Court for violation for one year statute of limitations on petty misdemeanors. The motion was denied and the defendant was convicted on both counts. The defendant appealed to District Court which reversed the Metro Court decision. The State then appealed the District Court ruling.

The relevant statutes as set forth by the Court of Appeals provide the following statute of limitations:

C. for a misdemeanor, within two years from the time the crime was committed; D. for a petty misdemeanor, within one year from the time the crime was committed; G. for any crime not contained in the Criminal Code or where a limitation is not otherwise provided for, within three years from the time the crime was committed.

The State argued under paragraph C, D and G of NMSA §30-1-8 (now paragraphs C, D & H under 2009 Amendments) resulted in either a 2 or 3 year statute of limitations. The State argued that because the offenses were in the MVD code and not the criminal code, they should be covered by the catchall 3 year provision in paragraph G. In the alternative, the State argued that because the MVD code stated that all MVD code violations were classified as misdemeanors in the absence of contrary language in the code.

The Court of Appeals disagreed pointing out a number of problems with the State's position. The Court noted the absurdity of placing all MVD violations under the 3 year statute of limitations by virtue of the fact that they fall outside the criminal code. The result would be that not only would first time DWI and reckless driving be covered by the 3 year statute, so too would "speeding violations, parking violations, failure to signal, following too closely, and other traffic violations." The result would be that these petty traffic offenses would carry limitations period equal to that to serious felonies.

After a thorough analysis of the case-law and statutes, the Court concluded that the classification of a crime should be determined by the possible penalties. In doing so, the Court also addressed the State's position regarding the classification of all MVD violations not specifically delineated in the code.

Granted the MVD code does have some contradictory language. Section 66-8-7(B) of the Motor Vehicle Code provides "Unless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than three hundred dollars ($300) or by imprisonment for not more than ninety days or both." Thus the MVD sentencing guidelines are consistent with sentencing for a petty misdemeanor despite the language suggesting that the offenses should be classified as misdemeanors.

Consistent with the possible sentencing of only 90 days, the Court concluded that both DWI first offense and reckless driving must be classified as a petty misdemeanor and therefore subject to the one year statute of limitation. For those facing dated DWI charges, keep in mind that the ruling is limited to first time DWI and reckless driving. Repeat DWI offenders face much longer sentences which would bring them under the 2 year misdemeanor statute of limitation or in 4th or subsequent DWI offenses, the felony limitations period.

Due to the inconsistency in the MVD code language, and the seriousness with which DWI is treated in New Mexico, it is likely that this case will be appealed to the New Mexico Supreme Court. In addition or in the alternative, the legislature may address the issue in the next session to lengthen the statute of limitations. As such, if you are faced with a situation like this, be sure to consult with a DWI attorney to identify the limitations period on your case.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Vest, the New Mexico Court of Appeals found that a confidential informant's report that the defendant, Shane R. Vest, was selling marijuana was not enough to justify a search of his house under the search and seizure protections of the 4th Amendment and New Mexico Constitution, Article II, Section 10 because the State had failed to establish the informant's veracity.

The informant participated in two controlled purchases of marijuana and told police that he observed Mr. Vest handling between one-quarter and one-half pound of marijuana in his trailer in Logan, New Mexico. A police officer staked out Mr. Vest's trailer on four separate occasions and observed vehicles arriving at a rate of between two and seven per hour. Each visitor stayed at the trailer for just five minutes. This behavior was consistent with drug-trafficking, according to the police.

When the police acted on a warrant and searched Mr. Vest's trailer, they found currency, guns, ammunition, marijuana, scales, packaging materials, and drug paraphernalia. The defendant entered a conditional plea to distribution of marijuana and possession of drug paraphernalia reserving his challenged to the search and the district court's denial of his Motion to Suppress.

The Court overturned Mr. Vest's conviction, finding that the issuance of the warrant had violated his rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution, both of which require probable cause before a search warrant is issued.

The Court applied the five-prong test of In re Shon Daniel K., which says, "Reliability of an informant may be established, among other ways, by showing that: (1) the informant has given reliable information to police officers in the past; (2) the informant is a volunteer citizen-informant; (3) the informant has made statements against his or her penal interest; (4) independent investigation by police corroborates informant's reliability or information given; and (5) facts and circumstances disclosed impute reliability."

The State disputed the first and fourth factors applied in this case, but the Court found that the State failed to meet its burden for either factor. First, the Court agreed with the defendant that "the affidavit merely contained conclusory assertions, rather than any actual evidence that the informant had provided reliable information in the past," thereby failing under the first factor.

Second, because there was no "timely corroboration" of the informant's information, the police officer's observation of suspicious activity consistent with drug trafficking did not support the informant's claim that the defendant "had present possession of marijuana."

In short, the New Mexico Court of Appeals strictly enforced the protections under the 4th Amendment and Article II, Section 10. The protections against unlawful search and seizure are strictly applied in New Mexico. In fact, Article II, Section 10 provides even greater protection than federal law in keeping with New Mexico's heightened protection of individual rights to privacy above and beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment protection against unlawful search and seizure is fairly broad. Violations of the protections under 4th Amendment and/or New Mexico Constitution, Article II, Section 10 are perhaps the most common basis for suppression of evidence and the dismissal of criminal actions. However, there are limits to search and seizure protections. Among the most commonly invoked is the plain view doctrine.

In most cases, particularly in the search of a home or vehicle, a warrant is required. The plain view doctrine gives police the right to seize evidence in plain view without a warrant, as long as three conditions are met:

• The officer did not violate the Fourth Amendment in arriving at the place from which the object could be plainly viewed.
• The object's incriminating character must be immediately apparent.
• The officer must have a lawful right of access to the object itself.

These conditions are set forth in the 1990 U.S. Supreme Court case Horton v. California. They are commonly known as the "three-prong Horton test."

Prior to the Horton case, plain view evidence needed to be discovered "inadvertently." This is no longer the case, and police officers may actively look for plain view evidence as long as they do not violate the Fourth Amendment in doing so. In other words, if they in the home or business legally, stopped the vehicle legally, or otherwise encountered a defendant on his or her property legally, then they may conduct a plain view search of the subject premises.

Naturally, the plain view doctrine is often abused by law enforcement who will take the opportunity to conduct a broad and invasive search well beyond the scope of the plain view doctrine. In addition, it is critical that law enforcement is legally on the premises or otherwise engaged with the citizen.

Illegal presence is in fact the most common basis for challenging a plain view search. This is not uncommon in cases involving vehicle searches where the car was stopped illegally from the inception.

The search may also be challenged if the incriminating nature of the item seized was not immediately apparent (i.e. the officer felt a hard item in your pocket but knew that it was not a weapon and did not otherwise know of its incriminating nature). It is also worth noting that for an object's "incriminating character" to be "immediately apparent," an officer is not allowed to move the object in order to further inspect the item (i.e. turning the item over record its serial number which shows that it is stolen).

The case-law on search and seizure and the plain view exceptions are expansive. Each case must be closely evaluated to determine the possibility of a successful challenge. It is important to provide as much information as possible to your criminal defense attorney. It is equally important to provide accurate information so that your attorney is not wasting time on baseless challenges when his or her time could be more productively spent on other aspects of your defense.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Crane illustrates the high level of protection against unlawful search and seizure afforded those in New Mexico under the New Mexico Constitution, Article II, Section 10.

The case involved a meth lab set up in a motel room. The police received an anonymous call presumably from another guest complaining of a chemical smell emanating from the defendant's room. Two agents from the Clovis drug task force went to the motel to investigate.

Upon approaching the room, neither officer could detect a chemical odor coming from the room. While conducting surveillance of the room, the agents saw one of the residents taking garbage to the motel dumpster. The agent looked into the dumpster to view an open box with latex gloves. No other contraband was detected. However, as the agent was searching the contents of the open box behind the dumpster, an unidentified resident dumped several sealed garbage bags into the dumpster.

Without first obtaining a warrant, the agents opened the sealed garbage bags finding a variety of meth production tools and materials. The residents of the room, including Crane, were charged with trafficking methamphetamine and possession of drug
paraphernalia.

The defendant moved to suppress the evidence under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The trial court agreed with the defendant suppressing the evidence for illegal search and seizure under Article II, Section 10.

The Court from the outset noted that Article II, Section 10 provides greater protection than the 4th Amendment under federal law. The Court cited the divergence of the New Mexico Courts from the 1988 U.S. Supreme Court decision in California v. Greenwood where the Court found that there is no expectation of privacy in garbage. The New Mexico Court of Appeals in the 2006 case of State v. Granville rejected the argument in Greenwood that there is no reasonable expectation of privacy in garbage which is "readily accessible to any member of the public."

The Court in Granville found that "individual's garbage reveals evidence of a person's most private traits and intimate affairs." The court in Granville found that when a person places garbage in a sealed opaque bag protecting it from view, there is a reasonable expectation of privacy.

Notably, the Granville decision dealt with garbage disposed of at a private residence, not a motel. The Court in State v. Crane refused the State's argument that motel guest have a lessened expectation of privacy in garbage dumped in the motel dumpster.

The State argued that this garbage was particularly vulnerable to intrusion by other motel guests and/or vagrants and homeless people. The court flatly rejected this reasoning stating, "There is a difference between a homeless person scavenging for food and clothes, and an officer of the [s]tate scrutinizing the contents of a garbage bag for incriminating materials."

The Court in Crane cited the 1964 U.S. Supreme Court case of Stoner v. California which long ago recognized that motel guests do not forfeit their privacy rights by virtue of checking into a motel. The Court in Stoner held that motel and hotel guests have privacy interests comparable to those in the home.

In short, motel guests are entitled to privacy as are any other citizens. In addition, contrary to federal law, private residents and motel guests alike in New Mexico have an expectation of privacy over their garbage. Thus, law enforcement must obtain a warrant prior to searching sealed garbage bags, whether at a person's home or at a motel. To do otherwise, will as here result in a suppression of the State's evidence.

Collins & Collins, P.C.
Albuquerque Attorneys