Albuquerque Criminal Lawyer Blog

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures without a warrant supported by probable cause. However, the U.S. Supreme Court recently held in Florence v. Board of Chosen Freeholders of County of Burlington that routine comprehensive strip-searches before any arrestee is admitted into the general prison population were constitutional regardless of the arrestee's particular offense or criminal history.

The underlying facts in Florence involved a Defendant arrested for a minor, non-violent offense. Upon arrest and before being introduced into the jail's general population, the Defendant was subjected to the standard inmate intake procedures employed by Burlington County jails.

The procedures employed by the jail included requiring arrestees to shower with a delousing agent and submitting to visual bodily inspection for injuries, scars, marks, gang tattoos, and contraband. Inspection included instructing arrestees to open their mouth, lift their tongue, hold out their arms, lift their genitals, etc. The procedures apply to all arrestees entering the general prison population regardless of offense, behavior, criminal history, or demeanor.

The Defendant argued that this kind of search was a violation of an individual's Fourth and Fourteenth Amendment privacy rights if the corrections officers did not have reason to suspect the particular inmate of concealing contraband, drugs, or weapons.

The Supreme Court disagreed, holding that forcing corrections officers to make a judgment call of the kind placed the entire prison population at risk. On the other hand, the Court held that a uniform policy struck the correct balance between the privacy rights of inmates and the security interests of the prison.

The Court explained that maintaining safety and order in prisons required a particular expertise and experience that a court of law did not possess. In situations where a regulation impinges on the constitutional rights of inmates, courts should defer to the judgment of prison officials if the regulation "is reasonably related to legitimate penological interests." In other words, unless there is evidence that the prison officials have exaggerated their response to the situation, regulations of this kind should be upheld.

To come to this determination, the Court weighed the legitimate interest of prison officials in ensuring safety and order in their institution against the privacy interests of individuals arrested for minor, non-violent offenses.

In the opinion of the Court, jails and prisons have a significant interest in performing a comprehensive strip search of every inmate that comes into contact with the general prison population to prevent the spread of disease, identify the need for immediate medical attention, identify gang members, and detect and deter contraband including drugs and weapons. Considering the information available to officers about the arrestee and the time constraints involved at intake, conducting a less invasive search on certain types of detainees would be unworkable.

The Court cited evidence that the seriousness of an offense is not a good predictor of whether a person is likely to possess contraband or be a dangerous criminal. Additionally, the court determined that it would cause serious difficulties in implementation for prison officials to classify arrestees by their current and prior offenses before an intake search. In effect, it would place prison officers in the position of having to make a legal constitutional determination during the brief intake process with the little information available to them at the time. This would in turn create a larger risk for the entire jail population because officers would be less inclined to conduct thorough searches in debatable cases in order to avoid liability.

Balancing this significant interest of prisons in maintaining order and safety with the privacy interests of inmates, the Court held that uniform comprehensive strip-searches before any arrestee is admitted into the general prison population is not contrary to an individual's Fourth Amendment privacy rights. Considering the risks and logistical problems involved, the Court found this to be true regardless of the severity and nature of the offense or the arrestee's demeanor.

It remains to be seen how this will play out in the jails across the country. It takes little imagination to predict the many abuses that will follow this opinion. Many may view this as a strike against crime. However, one might pause to consider that strip searches of harden gangsters really has no bearing or relationship at all to a strip search of a young woman or man suspected of shoplifting or even a young mother of 3 picked up on warrants for traffic violations.

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. The New Mexico Children's Code further protects juveniles and sometimes expands their constitutional rights.

In a recent opinion involving juvenile criminal charges, however, the New Mexico Court of Appeals held that in relation to 4th Amendment searches and seizures, under the Children's Code minors have no greater rights than adults. Specifically, an officer is not required to advise a minor of his right to refuse consent to a search of his vehicle.

The underlying case in State v. Carlos A. involved a routine traffic stop for a non-functioning license plate light. The Defendant driver was seventeen years old at the time. When the officer pulled the Defendant over, he noticed a strong odor of marijuana and asked Defendant if he would consent to a search of his person.

The driver consented. Upon finding nothing suspicious from the search, the officer called for backup and when backup arrived asked Defendant whether he would consent to a search of his car. Defendant agreed to the search whereupon marijuana and other paraphernalia were found. The defendant was then placed under arrest and charges were brought against him. The time between the stop and the end of the automobile search was no more than ten minutes and the entire exchange was non-threatening and cordial at all times.

At trial, the Defendant filed a motion to suppress the evidence from the search of his car. The Defendant argued that his consent was involuntary because officers were required to inform him of his right to deny consent to the search due to his status as a minor under the New Mexico Children's Code. The district court and the New Mexico Court of Appeals both disagreed.

Under the 4th Amendment, any unreasonable search or seizure by government agents requires a search warrant unless there is a recognized exception. Consent is one of the exceptions to the warrant requirement. To demonstrate consent, the prosecution must show that under the totality of the circumstances, the consent was voluntary and not the product of intimidation or coercion.

To assess the totality of the circumstances, a court must evaluate all of the factors involved, including the particular situation of the person giving consent, the circumstances of the detention, and the behavior of the government agents requesting consent. One of the factors considered is whether the defendant was advised of his or her right to refuse consent. However, being advised of the right to refuse consent is only one factor to consider and not dispositive of the question of whether consent was voluntary under the totality of the circumstances analysis.

Having established that the 4th Amendment does not require a police officer to advise an adult of their right to refuse consent to a search, the Court of Appeals went on to analyze whether the New Mexico Children's Code required it when the person giving consent was a juvenile.

Under Section 32A-2-14(C) of the Children's Code any juvenile interrogated by police must first be advised of his or her rights. This provision basically mirrors the 5th Amendment right to remain silent and a warning that anything said will be used against them. However, the Court in this case refused to expand this protection to 4th Amendment searches and seizures making the distinction between a consensual search and a custodial interrogation.
Therefore, as the law in New Mexico stands, a juvenile's 4th Amendment rights are not violated if he or she is not advised of the right to refuse consent to a search if the consent was otherwise voluntary. While the fact that the juvenile was not made aware of their right to refuse consent will be a factor in determining whether the consent was voluntary, it is not dispositive. If, as in this case, the detention was brief, in public, and the officers showed no signs of intimidation, it is likely that consent will be deemed voluntary even if the juvenile was not advised of his right to refuse.

Each case is unique and requires individual analysis. Moreover, the case does nothing that would allow a nonconsensual search. In any case where the search was non-consensual or perhaps unknowing, it is important to raise these issues with your child's criminal defense attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The "plain view doctrine" applies to searches and seizures under the Fourth Amendment of the U.S. Constitution. In simple terms, the plain view doctrine allows an officer to seize evidence without a warrant if it is in plain view of the officer.

For the plain view doctrine to apply, the seizure must meet the following three requirements: (1) the officer must have been legally on the premises, (2) the object must have been in plain view, and (3) it must have been immediately apparent that the object was incriminating.

An officer has to be legally on the premises for the plain view doctrine to apply. If the evidence was viewed from a public space, the officer was legally allowed to be on the premises. This would apply when an officer views a gun inside an open window of a house from a public sidewalk or when an officer sees a bag of narcotics on the dashboard of a vehicle at a routine traffic stop.

If, on the other hand, the officer is inside a private residence or place of business, the officer is required to have probable cause or a warrant to be on the premises in the first place. Officers can also legally be inside a private residence or place of business when there is consent or when exigent circumstances require it.

The object must be in plain view. An officer is not allowed to move objects to get a better view of an object. For example, a police officer is not allowed to move the curtains in an open window of a residence to get a better view of the home. Officers are also prohibited from moving an object to get a better view of the serial number unless they have a warrant to do so.

Similarly, officers are not allowed to open closed containers unless there is a warrant to search for an object that is likely to fit in said container. For example, if an officer has a warrant to search a suspect's home for a stolen television, the officer is not allowed to open the suspect's purse.

The incriminating character of the evidence must be apparent immediately. Incriminating character of evidence usually involves objects that are likely to be stolen, items used to commit crimes, illegal items, or other evidence of criminal activity.

For example, if police are serving a search warrant for an unrelated crime and find a table with hundreds of different credit cards from different banks and under different names, it is likely that they are stolen and therefore the plain view doctrine applies.

Items used to commit crimes include all types of weapons as well as gadgets like prohibited credit card scanners. Illegal items often involve drugs. The illegal items might also relate to instrumentalities of crime under investigation. For example, if police are serving a search warrant for evidence of weapons used in a bank robbery and an officer sees a black ski mask on a chair like the one worn by the suspect at the scene, the mask may be taken into evidence.

Officers and prosecutors may try to take advantage of the plain view doctrine in order to admit otherwise inadmissible evidence. They may venture into areas where they are not legally authorized to be. They may enter a home or business without the proper consent. They may move items in order to bring an item into plain view. They may seize evidence that is not particularly indicative of criminal activity.

The 4th Amendment is among the greatest protections afforded citizens. If evidence has been seized from your home, business, car or other private property, it is important to consult with an experienced criminal law attorney to ensure that your Fourth Amendment rights are protected.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys

Cellular phones have become a ubiquitous part of everyday life. According to CTIA Wireless Association, 302.9 million people in the U.S.--over 96% of the population--carry a cell phone. However, the price of being permanently "connected" via your cell phone may just be your privacy.

Several times each minute, cell phones register with the network when getting a wireless signal. This function cannot be turned off, and creates a very accurate record of where an individual is virtually every minute of their lives. Police and other law enforcement increasingly use cell phone tracking in emergency and non-emergency situations alike.

The ACLU recently released a study that examined the use of cell phone tracking by a number of law enforcement departments. The findings contains findings from over 380 public records requests and 200 responses made to and from police departments from 31 states around the country. To say the least, the results are alarming. According to the ACLU, police departments are repeatedly using cell phone tracking in situations where they have not obtained a warrant in violation of the 4th Amendment.

Under the 4th Amendment of the U.S. Constitution, an individual has the right to be free from unreasonable searches and seizures unless the search or seizure is supported by a warrant based on probable cause. Even though there is no law specifically concerning cell phone tracking, an analogy can be made with the recent case of US v. Jones where the Supreme Court ruled that government agents were required to obtain a warrant before placing a GPS tracking system in a suspected drug dealer's car. Attorneys argue that it should be no different when a person is tracked through the GPS in their cell phone. However, it seems that police departments around the country have routinely failed to obtain warrants for purposes of tracking individuals' cell phone activity.

Nearly all of the 200 responses received by the ACLU from state and local law enforcement departments stated that they employed cell phone location tracking in some way. Only 10 respondents stated that their department never tracked cell phones. The practice is so common that cell phone companies have manuals for communicating with police officers and some charge police departments "surveillance fees." Some police departments have even acquired their own cell phone tracking equipment. A very small number of respondents reported regularly obtaining a warrant to access and individual's phone location information.

In New Mexico, the ACLU sent out requests to the Albuquerque, Las Cruces, and Roswell police departments. Only the Albuquerque PD (APD) responded to the request. The request and response can be found at: https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-documents-new-mexico#Albequerque.

In its response, the APD stated that it obtains a warrant or subpoena based on probable cause except in cases of "exigency." The response did not include an explanation of the standards used to determine exigency. The APD response also stated that any records obtained from a cell phone company were stored with each case file in the APD Records division, presumably indefinitely.

One of the biggest problems cited by the ACLU was the lack of a uniform laws concerning cell phone tracking policies. Federal and state laws regarding electronic surveillance are outdated, contradictory, and in some cases do not even exist.

To address these shortcomings, there is currently a bipartisan bill, the Geolocation Privacy and Surveillance (GPS) Act, before Congress aimed at protecting privacy rights from police use of GPS tracking via cell phone. This bill would require law enforcement to obtain a warrant based on probable cause before accessing cell phone location information. These privacy protections are needed equally by all citizens, law-abiding and otherwise.

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. criminal system has largely become a system of pleas. According to the Department of Justice, 98% of federal convictions and 94% of state convictions are the result of guilty pleas, with a large part of these arising from plea bargains between the prosecution and defendant. Consequently, the Supreme Court of the U.S. has extended the Sixth Amendment right to counsel to the plea bargain process. In a recent case, Lafler v. Cooper, the Court addressed the right to counsel in the context of pleas that are rejected by a defendant on the mistaken advice of their attorney.

The Defendant in Lafler v. Cooper was charged with assault with the intent to murder and three additional offenses. In exchange for a guilty plea, the prosecution offered to recommend a 51-to-85 month sentence for two of the charges and dismiss the other two. The defendant rejected the offer on the advice of his attorney that the State would not be able to establish his intent to murder the Victim because Defendant shot the Victim below the waist. The Defendant was subsequently found guilty and sentenced to a mandatory minimum of 185-to-360 months.

The Sixth Amendment to the U.S. Constitution guarantees the accused in all criminal trials the effective assistance of counsel. The right to effective assistance of counsel applies to all "critical stages" in a criminal proceeding. Critical stages include arraignment, post indictment line-ups, post indictment interrogation, entering a plea of guilty, and the plea bargaining process.

To analyze whether the ineffective assistance rises to a Sixth Amendment violation, courts must follow a two-part test set out in Strickland v. Washington. Under the Strickland test, a defendant must show that (1) counsel's advice fell below an objective standard of reasonableness, and (2) but for counsel's ineffective advice, the outcome of the case would have been different.

Adapting the Strickland standard to cases in which an offer is rejected due to ineffective advice, the Court announced a new test to prove the second Strickland prong. In cases like this one, once the defendant has proved that counsel offered ineffective advice, a defendant must also prove that but for the advice there is a reasonable probability that (1) the plea offer would have been presented to the court, (2) that the court would have accepted the terms, and (3) that the sentence, conviction, or both would have been less severe under the offer's terms than under the actual judgment or sentence that resulted.

Having established both parts of the Strickland test as modified in this case, the Court went on to address the type of remedy that should be available to a defendant. The Court stated that while the remedy "must neutralize the taint" of the Sixth Amendment violation, it must not give the defendant a bonus or waste the resources invested by the state in prosecuting the case.

To this end, the Court announced that in cases like this, there are several remedies that a court may choose from depending on the particular facts. If the only difference between having accepted and rejected the plea involves sentencing, the court must have an evidentiary hearing where it is determined whether there is a reasonable probability that defendant would have accepted the plea offer. If the court finds the defendant would have taken the plea, it can decide whether to grant the terms of the plea, the sentencing at trial, or a different sentence.

On the other hand, there may be other instances where this remedy would not be sufficient. In cases where the plea offer dismissed counts for which the defendant was later convicted at trial or where there are mandatory sentencing guidelines, the Court held that the remedy might require the prosecution to reoffer the plea. Once the plea is offered again, the court may choose to accept the plea and vacate the conviction, or leave the conviction as-is.

As such, the outcome will depend on the circumstance of each case, and may in large part be dependent upon the particular trial judge. The dissent argued that the case would open a floodgate of challenges. This remains to be seen but rest assured the latitude left the judge in deciding what to do with the defective plea leaves open enormous room for further dispute.

Collins & Collins, P.C.
Albuquerque Attorneys

Last month the United States Supreme Court issued a ruling affecting Miranda warnings and when they apply to prisoners. In Howes v. Fields, the Court held that Miranda warnings are not always necessary when police officers interrogate prisoners about events that occurred outside the jail. In this landmark case, the Court seems to take a distinctly different approach to Miranda, its original philosophy, and the Court's own earlier case law.

In Howes v. Fields a prisoner was taken aside and questioned about a prior offense without being advised of his Miranda rights. The defendant confessed after five to seven hours of questioning. He was then charged with the crime and his confession was used as evidence against him. The Defendant argued that the confession was inadmissible because it was obtained in violation of his Miranda rights. The Supreme Court disagreed.

The Miranda warning originates from the 1966 Supreme Court case Miranda v. Arizona. Miranda warnings were put in place to counter-balance the inherently coercive and intimidating setting of a custodial interrogation. In Miranda, the Supreme Court held that it was a violation of a person's 5th Amendment right against self-incrimination to be interrogated while in police custody without being warned of the right to remain silent.

Under Miranda, if police fail to inform a suspect of their Miranda rights, any confession or incriminating information stemming from a custodial interrogation is inadmissible in court. Miranda warnings are only required when a suspect is being (1) interrogated by a known state agent (2) while in custody which would seem to clearly include interrogation of prisoners.

While it may seem that being incarcerated is the ultimate form of custody, the Supreme Court in Howes held that imprisonment alone does not rise to the level of custody for Miranda purposes. The Court reasoned that custody, when it comes to prisoners, does not depend on whether the individual is incarcerated, but whether there exists the "coercive pressure that Miranda was designed to guard against."

The Court did not find that "coercive pressure" in this case. The opinion argued that the questioning of a prisoner did not create the same distress that an initial arrest would, and by consequence, would not have the same coercive pressure on the individual.

Moreover, the Court explained that a recent arrestee and a prisoner have different expectations during an interrogation. While the arrestee may be prompted to answer questions in the hopes that he or she will be allowed to return home quickly, the prisoner has no similar expectations and is therefore not pressured to speak.

Finally, the Court distinguished a prison interrogation from an initial arrest interrogation in that the prisoner knows that his interrogators have no power to grant parole or affect the duration of his sentence. In prison situations, it is unlikely that the prisoner will be motivated to say something to please the interrogators, and therefore the Court concluded that the coercive atmosphere that Miranda was set in place to guard against is absent.

In sum, even though the Court seemed to find support for its ruling in Howes among its earlier cases, the truth is that this case marks a dramatic reduction of Miranda protections. By changing the meaning of custody, the Court has opened the door for potentially abusive interrogation of prisoners without the even nominal cautions afforded by Miranda.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico there are time limits that prosecutors and courts must adhere to in order to ensure due process. One of the limits involves timely preliminary hearings. These time limits are very important to the rights of accused persons. They are taken seriously by the courts of New Mexico and often the form the basis for dismissal.

The time limits come up in a variety of ways from the speedy trial rule to discovery violations to statutes of limitations. A lesser known violation of time limits came up recently in the in State v. Leticia T.. In that case, the New Mexico Court of Appeals ruled on what type of remedy is available to a juvenile who did not receive a timely preliminary hearing when the State was seeking an adult sentence.

The underlying case in State v. Leticia T. involved a sixteen-year-old child charged with assault and battery of a police officer, for which the State sought an adult sentence. The child was taken into custody and her preliminary hearing was held twenty-four days after the prosecution filed a notice to seek an adult sentence.

Under Rule 10-213 (B) of the New Mexico Children's Court Rules, a preliminary hearing must be conducted within fifteen days after a notice to seek an adult sentence, unless the case is presented to a grand jury or the child waives her right to a preliminary hearing or grand jury. Under Section 32A-2-20 (A) of the New Mexico Children's Code, a preliminary hearing must be conducted within ten working days of the State's notice to seek an adult sentence.

In the present case, the Court did not go into the question of whether the Defendant was entitled to a preliminary hearing within ten or fifteen days of the filing of notice to seek adult charges because both were violated. Instead, the Court went on to analyze what remedy is appropriate when either statute is violated, since both are "worded in mandatory terms."

According to the Court of Appeals, dismissal of the charges is not the proper remedy for a violation of the mandatory time limits for a preliminary hearing. Under Children's Court Rule 10-101 (A)(2)(b), when there is a notice to seek adult charges and the child is a "youthful offender," the Rules of Criminal Procedure govern all proceedings in Children's Court, unless specifically provided in the Children's Court Rules. Children's Court Rule 10-144 specifically provides that error by the court or any party, including violation of time limits, is not ground for dismissal unless this is inconsistent with the interests of justice.

In this case, the Court found that despite the violation of Rule 10-213 (B)'s preliminary hearing requirement, there were no grounds for dismissal of the charges. Similarly, the Court found that dismissal was not the proper remedy for a violation of Section 32A-2-20 (A) of the New Mexico Children's Code.

To warrant dismissal under this Section, a defendant child must show prejudice. In other words, the Defendant must show that the delay in their preliminary hearing past ten days of the notice was not due to scheduling conflicts and other administrative reasons, but because there was prejudice against her either on the part of the court or state. The Court did not find such prejudice in this case and therefore denied the Defendant's motion to dismiss.

The Court itself understood that its ruling in this case represents the erosion of the protections given to juveniles under the New Mexico Children's Court Rules and Children's Code. However, the Court stated that it had no choice because only the New Mexico Supreme Court can write or rewrite rules of court procedure.

The Court in this case echoed the New Mexico Supreme Court in calling on the Children's Rules Committee to revisit the time limits for youthful offenders. As the law in New Mexico stands today, even though the rules are written in mandatory language, there is effectively no real remedy for the youthful offenders when they are not given a preliminary hearing in a timely manner.

The time limits in criminal prosecutions often rely on the discretion of the court and a determination of prejudice to the defendant. These time limits are important and should and typically are challenged by criminal defense attorneys. Though the outcome here suggests otherwise, time limits are often the first and best line of defense.

Collins & Collins, P.C.
Albuquerque Attorneys