Albuquerque Criminal Lawyer Blog

A recent case from the New Mexico Court of Appeals addressed the validity of the consent to a search under the 4th Amendment. The case of State v. Norman Davis involved the search of an individual's property for marijuana.

In a joint operation, the New Mexico State Police, the New Mexico National Guard and officers from a number of other law enforcement agencies entered Mr. Davis' property to investigate the presence of marijuana. The numerous officers were heavily armed with handguns and AR-15 semi-automatic weapons. In addition, the operation included two Army National Guard helicopters which were hovering over the residence at the time that contact was made with Mr. Davis.

Mr. Davis had a greenhouse on his property. The investigation began as a result of helicopter surveillance that suggested the presence of marijuana in the greenhouse. The greenhouse had an opaque finish so it was not possible to view its contents from outside the greenhouse which raises some questions regarding the validity of the initial suspicion.

Against this backdrop, Mr. Davis was asked for consent to search his greenhouse. Mr. Davis asked the officer if he had to consent to which the officer responded "No", but it would take less than 30 minutes to obtain a warrant during which time Mr. Davis' property would be secured. During this conversation, the many other officers were scattered across Mr. Davis property to which Mr. Davis commented that it looked like they were already searching anyway.

Mr. Davis moved for suppression of the evidence arguing that the consent was invalid because it was not voluntary. His motion was denied. As a result, Mr. David entered a conditional plea reserving the right to appeal the illegal search and seizure question.
The New Mexico Court of Appeals found that there was no voluntary consent to the search. The Court laid out three requirements for voluntary consent to a search:

"First, the consent must be unequivocal and specific, second, the consent must be given without duress or coercion, and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights."

The Court found that the first requirement of a specific and unequivocal consent had been met. However, the Court determined that the second had not. Instead, the Court found that the consent had been given under duress and coercion. In holding that the consent was given under duress, the court cited the helicopters, the numerous armed law enforcement, the suggestion that refusal was futile, and the fact that from the defendant's perspective, the search was already under way.

Perhaps a more subtle approach would have been warranted under the circumstances given the fact that it was a greenhouse, not a mobile meth lab, and it was Norman Davis, not Tony Montana. In any event, a softer approach would have avoided the suppression of evidence and dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

There a variety of factors that come together during the holidays that far too often end with trip to jail and a journey through the courts. Sadly, the holiday season brings with it a significant increase in incidents of domestic violence. One need not look far to figure out the causes for this.

Alcohol is perhaps the chief culprit. Generally, alcohol is a significant contributor to incidents of domestic violence. This is well recognized and is one reason alcohol use is strictly prohibited as a condition of release in domestic violence cases. Violations of the prohibition on alcohol use have serious consequences for the defendant not infrequently resulting in confinement while a criminal domestic violence case is pending.

Unfortunately, use of alcohol increases substantially during the holidays. Most every party and get together will have alcohol. In addition, there are the alcohol fueled football game watching activities. Alcohol is often even served at company parties and holiday functions. It would be hard to avoid alcohol even if one were inclined to do so. And, many are predisposed in the other direction due to any number of circumstances.

Stress during the holidays can add significant pressures to a relationship. There are too many holiday stressors to enumerate here. Suffice it to say that stress coupled with alcohol can lead to some unfortunate outcomes.

Alcohol and stress cannot used to explain away domestic violence. Nor can it be used as an excuse. Domestic violence is a very serious issue with much deeper and complex explanations than a mix of alcohol and stress. On the hand, it is fairly well established that many people do not handle alcohol very well. They do things under the influence of alcohol that they would not otherwise do.

It is clear that stress and the lack of control or inhibitions brought on by alcohol can lead to escalation of situations that would not otherwise occur. The stress and emotions of the holidays can put everyone on edge. Throw in alcohol and the inhibitions may come down completely. As does the judgment.

What might otherwise be a rational conversation can quickly escalate to the point that the police are called by one of the parties, frightened children, friends or neighbors. Once the police are called out on a domestic violence call, even when the call itself may have been an overreaction fueled by alcohol, one of the parties is going to jail.

On occasion, it seems as if who goes to jail is simply a coin toss. One way or the other, the event can have extremely costly consequences for the family. Honestly, the attorney fees alone should be a deterrent. However, there are far more serious and lasting consequences beyond attorney fees such as the possibility of permanent criminal record and lifetime domestic violence offender registration.

In addition, and as a result of the finding of domestic violence, there can be severe employment consequences. In fact, a domestic violence conviction will make one ineligible for many jobs. In New Mexico, one chief concern is the loss of security clearances. And these are not all. There are several other consequences of a domestic violence finding including extremely severe immigration consequences.

The best way to avoid these outcomes is to avoid one of the primary causes which is over-drinking. If you cannot drink without over-drinking, then don't drink. And don't put yourself and your loved ones in a situation where this might even remotely become a problem.

In other words, if you cannot control yourself around an open bar, then stay away from parties. If you cannot go out with friends to watch football without overdoing it, then watch football at home. If tensions and stress are already high around your home, then don't throw gasoline on the fire. If you cannot resist the urge to drink even though you know drinking might lead to problems, then seek counseling. And understand that if you don't go voluntarily, the court will sternly nudge you in that direction.

The holidays can be trying. The aftermath can be even more difficult. This is particularly so if you are facing domestic violence charges. The stress of the holidays will not be alleviated one bit by a criminal prosecution in the new year. In the unfortunate event that domestic violence charges are a part of your holiday season, seek the guidance of an attorney before further harm is done.

Collins & Collins, P.C.
Albuquerque Attorneys