Albuquerque Criminal Lawyer Blog

A recent decision from the Court of Appeals of the State of New Mexico makes it clear that a protective sweep of the inside of a Defendants' residence, incident to an arrest taking place outside of the residence, is impermissible unless there is a "reasonable belief based on specific and articulable facts that the area to be swept harbor[s]an individual posing a danger to those on the arrest scene."

The facts as stated by the Court in State of New Mexico v. Eckard are pretty straightforward. Felony warrants were issued for the Defendant and his wife. Several agents arrived at the house to serve the warrants. Some of the agents went to the front door while some of the agents went around to the back of the house. There was no response to the agents' knock on the front door of the house. The agents that went around to the back of the house found the Defendant and his wife sitting at a table about ten feet from an open sliding door.

The Defendant and his wife were then handcuffed. Some of the agents then entered the house to conduct a protective sweep. The agents walked through the house and on their way out they noticed a blanket against the wall covering a large item. The agents removed the blanket and found six or seven trash bags that smelled of marijuana. A search warrant was obtained and the trash bags were opened exposing one hundred and sixty pounds of marijuana.

The Defendants moved to suppress the evidence obtained during the protective sweep and the subsequent search of the trash bags. The Defendants argued that the protective sweep constituted an illegal search under Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution.

The Court in Eckard relied on the 1990 United States Supreme Court case of Maryland v. Buie where the Court laid out when a protective sweep incident to an in house arrest may be conducted. Applying Buie to the present case, the New Mexico court explained that the agents needed to have a reasonable belief based on specific and articulable facts that there was someone inside the Defendants' house that posed a danger to the agents on the scene, and that the sweep conducted must be limited to a cursory inspection of where such a dangerous person may be found.

Applying this standard the Court concluded that the agents testimony about the Defendants' "general criminal history, general officer safety and standard protocol" did not meet the burden of specific and articulable facts reasonable to conclude that someone hiding in the house posed a threat to the agents on the scene. Likewise, the Court found that the search of the inside of the house was not a search of a space immediately adjoining the place of the arrest because the sliding glass doors entering the house were ten feet from where the Defendant and his wife were sitting.

The Court also rejected the State's argument that the focus must be on the nature of the crimes for which the arrest was made, i.e. the danger of conducting an arrest of a fugitive wanted for drug trafficking is sufficient to warrant a protective sweep. Once again, relying on Buie, the Court explained that the justification for a protective sweep is based upon the threat posed by third persons, not the threat posed by the arrestee.

Based upon these findings the Court held that the protective sweep was unjustified and due to the illegal nature of the protective sweep, the resulting search warrant was also invalid. All of the evidence seized was suppressed as the fruit of the initial illegal entry.

The legality of a search and seizure frequently determines the outcome of a criminal prosecution. It is important that you discuss thoroughly with an experienced criminal defense attorney the facts and circumstances surrounding any search and seizure of evidence in course of your criminal investigation or arrest.

Related Reading:
4th Amendment and the Plain View Doctrine
Consent to Police Search Must be Voluntary
Expectation of Privacy in Garbage in New Mexico Even in a Motel Dumpster!

Collins & Collins, P.C.
Albuquerque Attorneys

A 2011 New Mexico Supreme Court case highlights that police officers have wide discretion to ask questions during a traffic stop as long as the questions are supported by reasonable suspicion.

In State of New Mexico v. Leyva, the New Mexico Supreme Court upheld the validity of an officer's questions during a routine traffic stop for speeding where he ultimately discovered drugs in the vehicle. Immediately prior to the stop, the officer allegedly observed the defendant lean toward the passenger seat for approximately 10 seconds. Then, during the stop, the officer asked defendant if there was anything else in the car that he needed to know about. In response, the defendant volunteered that there was marijuana under the passenger seat. Continuing his search of the vehicle, the officer also found methamphetamine.

In a subsequent criminal proceeding, the defendant argued that her constitutional rights were violated by the officer's questioning and subsequent search.

Under both the U.S. Constitution and the New Mexico Constitution, the defendant asserted that she had been subjected to an unreasonable search and seizure. She argued that the questions were not justified by the initial stop, The defendant argued that the illegally gathered evidence should be suppressed. The exclusionary rule holds that when an officer engages in conduct that violates one's constitutional rights (such as an unreasonable search or seizure), the "fruits" of that search (i.e. what is found) cannot be used in a criminal proceeding.

The Fourth Amendment of the U.S. Constitution sets minimum standards for protection from unreasonable searches and seizes. Accordingly, states are free to guarantee protections beyond those found in the U.S. Constitution but cannot require any less. Article II, Section 10 of the New Mexico Constitution provides greater protection to citizens against unreasonable searches and seizures, as interpreted by New Mexico courts.

Under State v. Duran, the New Mexico Supreme Court held that all questions during traffic stops must be either: (1) reasonably related to the initial reason for the stop or (2) supported by independent and articulable reasonable suspicion. Applying this two-prong standard to this case, the court held that the questions asked were not unreasonable. Although the officer's questions did not pass the first prong, the officer did have a reasonable suspicion based on her actions that Leyva had hidden something in the car. Therefore, it was not unreasonable for the officer to question her about weapons or other contraband in the vehicle.

The important issue in this case was the officer's claim that she saw the defendant act in a suspicious manner immediately prior to the stop. The officer's ability to articulate an independent reason for the suspicion was, according to the court, enough to justify the questioning.

Though the police do have fairly broad discretion in asking questions during a traffic stop, there are limits. If those limits are not respected, the evidence will be suppressed. These are issues that should you find yourself in this situation, you would do well to discuss with an experienced criminal defense attorney.

Related Reading:
Questioning During Traffic Stop Limited to Basis for the Stop Under New Mexico Law
4th Amendment and the Plain View Doctrine
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. As such, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness who's statements are admitted into evidence.

In State of New Mexico v. Tollardo, the issue came up in the context of the state attempting to admit into evidence the guilty plea of a co-defendant. The facts of State v. Tollardo involved a murder in which Defendant allegedly took part. During the Defendant's trial, the prosecutor asked a police witness whether he knew if certain co-defendants had been convicted for the Victim's death. Neither co-defendant was present or a witness at Defendant's trial.

Even though the police witness was not allowed to answer the question in the presence of the jury, the court took judicial notice of the co-defendants' pleas and informed the jury of them after the State rested its case. The jury subsequently convicted the Defendant. The Defendant appealed his conviction arguing that the introduction of the co-conspirator convictions violated his right to confront witnesses against him under the Sixth Amendment.

The Confrontation Clause applies to witnesses against a criminal defendant who "bear testimony." Since pleas must be made in open court before a judge where the judge ascertains whether the defendant understands the meaning and consequences of the plea, the Court held that pleas of this kind are testimonial. As testimonial evidence, pleas and convictions of co-conspirators are inadmissible in court against a defendant to prove facts of the case unless the defendant has a chance to cross-examine the co-defendant about the plea or conviction in court.

On the other hand, if the co-defendant is available for cross examination, the co-defendant may be questioned about the plea to determine the co-defendant's credibility and possible reasons for pleading guilty. In fact, there are many reasons for taking a plea other than guilt and this is something a jury is entitled to hear.

This brought the court to a the issue of harmless error. Once a Defendant has proven a violation of the Confrontation Clause, the prosecution must prove that the error was harmless. If the prosecution cannot prove that the error was harmless, the proper remedy is a new trial. Before this case, New Mexico used a three-part test announced in the 1980 case State v. Moore to analyze whether an error was harmless. In its current opinion, however, the Court overruled the Moore test and all of the cases that applied Moore to resolve harmless error questions on the basis that the Moore test misapplied the law.

In its place, the Court held that when reviewing a harmless error question, courts should only consider an error harmless when there is no reasonable possibility that the error affected the verdict for constitutional errors, and when there is no reasonable probability that the error affected the verdict for non-constitutional errors. The Court explained the different standards for constitutional and non-constitutional errors arguing that the burden of proof should be higher when it involves a constitutional right.

The Court enumerated some factors that courts should consider when evaluating whether there was a reasonable possibility or probability that the error affected the verdict. However, the Court refused to set out a new test and instead encouraged courts to examine every case individually and make an educated judgment call as to whether the error influenced the verdict.

First off, the Court stated that a judge should weigh all of the circumstances relating to the error, including an examination of the error itself, its source, and the emphasis placed on it during trial. Courts should also look at how important the error was to the prosecution's argument, whether it bolstered facts already introduced through other evidence, or whether it presented new facts.

While this seems beneficial to defendants in that it eliminates the rigid Moore test, the real effects of this opinion remain to be seen. In any event, is it definitely a step in the right direction.

Additional Reading on the Right to Confrontation of Witnesses:
Prosecution Medical Experts and the Confrontation Clause in New Mexico
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
6th Amendment Confrontation Rights Take a Blow in the 10th Circuit

Collins & Collins, P.C.
Albuquerque Attorneys

According to the 2005 Survey of Violence Victimization in New Mexico, one out of every four adults in New Mexico will be a victim of domestic violence during their lifetime. In 2007, there were 22,286 domestic violence incidents reported to law enforcement within the state. Domestic violence is a serious crime with severe and far-reaching consequences for both the victim and the alleged perpetrator. For purposes of this article, we are focusing on the consequences for the alleged perpetrator.

Aside from serious criminal penalties, there are several many other consequences to a domestic violence conviction and even to allegations of domestic violence. These are often referred to as collateral consequences. Domestic violence charges can follow an individual around for a very long time and become a factor in several unexpected situations. Findings of domestic violence can have disastrous immigration consequences for non-citizens. A finding of domestic violence can also impact the right to carry a firearm. Additionally, a domestic violence conviction can affect an individual's employment, security clearances, student loan, and scholarship eligibility.

Domestic violence charges are especially serious for non-citizens. Even in the absence of a domestic violence conviction, non-citizens may face deportation, loss of immigration status, and future inadmissibility into the U.S. In many cases, admission of guilt alone may trigger deportation or loss of immigration status. Making the situation even more difficult for non-citizens, Early Intervention Programs, Conditional Discharges, and Deferred Sentences that ultimately end in a dismissal of charges may require a defendant to admit guilt. Since admitting guilt may lead to deportation and other negative immigration consequences, even otherwise very favorable outcomes are not available to the non-citizen.

Under both New Mexico and federal law, a person convicted of domestic violence may not possess a license to carry a firearm. Under federal law, the loss of the license is permanent, and each violation of this law carries a possible prison sentence of up to ten years. This can be especially damaging if the defendant's job requires carrying a firearm, like police officers, members of the armed forces, or armed guards. A domestic violence conviction also bars an individual from hunting with a firearm.

A conviction for domestic violence will have other serious employment consequences. A growing number of employers conduct background checks on prospective employees and are generally reluctant to hire an individual convicted of a crime. It is estimated that up to two thirds of employers will not hire an individual with a criminal record. Worse yet for a those charged with domestic violence, a finding of domestic violence may itself disqualify the person for many jobs.

Furthermore, a conviction of domestic violence may trigger the revocation of a number of state-issued and/or professional licenses or make an individual ineligible to obtain a license. These may include medical, nursing, contractor, education, real estate, or several types of care licenses. An individual's government security clearance or ability to obtain clearance may also be compromised by allegations of domestic violence, especially if the particular clearance requires the individual to carry a firearm.

Domestic violence convictions will affect an individual's eligibility to obtain a student loan or scholarships in many cases. Many public and private institutions ask scholarship and student loan applicants whether they have been convicted of a domestic violence crime and consider it a factor when making a decision. Other scholarships, including some ROTC scholarships specifically make individuals who have a domestic violence conviction ineligible.

If you are being accused of domestic violence, it is important to understand and consider all of these collateral consequences as your case proceeds. It is especially important to understand these issues when deciding whether or not to accept a plea offer. An experienced criminal defense attorney will be able to explain this to you and to help guide you through a very difficult process.

Related Reading:

Domestic Violence Early Intervention Programs in New Mexico
Armed Forces Eligibility Consequences of Criminal Convictions
Firearms and Domestic Violence: A Toxic Mix

Collins & Collins, P.C.
Albuquerque Attorneys