Albuquerque Criminal Lawyer Blog

In State v. Olson, the New Mexico Supreme Court recently reversed a Court of Appeals decision, addressing a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation.

An officer filling out paperwork noticed Defendant driving suspiciously. After following the defendant, the officer noticed that the car's temporary tags were expired and pulled him over. When he approached the vehicle, the officer recognized the passenger in the front seat as a prostitute. The officer then asked Defendant to step out of the car. Defendant was holding a fanny pack and the officer asked him to place it on the hood of car, as a safety precaution. When asked for identification, Defendant reached for his fanny pack. The officer asked to look inside the fanny pack, to make sure no weapons were inside and the defendant agreed.

Inside the fanny pack the officer discovered three crack pipes. Defendant then admitted that he used the pipes to smoke cocaine. The officer arrested and handcuffed Defendant, asking him where the cocaine was located, and he directed the officer to five crack rocks in his front pocket.

Defendant was charged with possession of a controlled substance. He moved to suppress the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The 4th Amendment and Article II, Section 10 of the New Mexico Constitution are intended to prevent the police from engaging in unreasonable searches and seizures. An automobile stop, with detention of its occupants, is considered a seizure under the law. Under New Mexico law the officer must have a valid reason for the traffic stop, and any questions asked during the stop must be reasonably related to the reason for the stop. However, the officer may expand the questioning where he has reasonable suspicion that other criminal activity has been or is occurring.

After a suppression hearing, the district court denied the motion to suppress. The Court of Appeals then reversed on the grounds that the officer could not expand the traffic stop into an investigation of prostitution solicitation, tainting the fanny pack search.

The NM Supreme Court noted that normally the mere presence of a suspected prostitute would not be enough to allow the officer to expand his questioning beyond the traffic search. However, in this case, the officer described several specific instances of Defendant's suspicious behavior. The Court elected to defer to the training and experience of the officer with regard to what constituted suspicious behavior. While recognizing that police officers should not be permitted to stop and harass individuals just because they associate with known criminals, the Court determined that was not the case here because the officer properly pulled Defendant over for the expired tags.

The defense of criminal charges often turns on the admission of evidence. Often the best defense is a good offense in seeking to have the evidence suppressed under illegal search and seizure grounds. It is important to discuss these matters with an experienced criminal defense attorney as this is often the best line of defense.

Related Reading:
4th Amendment and the Plain View Doctrine
Police in New Mexico Have Wide Latitude in Questioning During Traffic Stops
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys

One of the most common grounds for dismissal of criminal cases is violation of the Sixth Amendment Confrontation Clause. The Sixth Amendment has been used in several situations to exclude testimonial evidence and is closely guarded by U.S. courts. A recent example of this is the U.S. Supreme Court case of Bullcoming v. New Mexico.

In Bullcoming v. New Mexico the defendant was charged with DWI. The prosecution's main evidence consisted of a forensic laboratory report that certified that the Defendant's blood alcohol level was above the threshold for aggravated DWI in New Mexico. The Defendant's blood sample was tested in the New Mexico Department of Health's Scientific Laboratory Division (SLD).

However, the forensic analyst who completed, certified, and signed the report had by the time of the Defendant's trial been placed on unpaid leave, and was not called as a witness by the prosecution. The prosecution did not state that the analyst was unavailable but instead called another analyst employed at SLD to validate the report. The second analyst was familiar with the testing procedures but had not participated in the testing of the Defendant's blood.

At trial, the second analyst was allowed to testify over the Defendant's objection and the blood alcohol report was entered into evidence. The Defendant was convicted and appealed, arguing that his rights under the Confrontation Clause of the Sixth Amendment had been violated. The Supreme Court agreed with him and reversed the conviction.

The Confrontation Clause of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. Under the Sixth Amendment, testimonial evidence is inadmissible in court against a defendant unless the witness is present and the defendant has an opportunity to cross-examine the witness on their testimony.

Statements made by a witness outside of court are not admissible unless the witness is unavailable and the defendant had a previous opportunity to cross-examine that witness on their testimony. Out of court testimony includes not only witness statements, but also autopsy reports, forensic analysis results, etc. In accordance with the Confrontation Clause, the person who created the report or was present to observe when the report was being made must in most cases be present in court for the report to be admissible.

In Bullcoming v. New Mexico, the U.S. Supreme Court held that it is a violation of the Confrontation Clause to introduce a forensic lab report in order to prove a fact at trial through the testimony of an analyst who did not personally perform or observe the test or who did not sign the certification of the test. According to the Supreme Court, it is the right of the Defendant to confront the particular analyst who certified the report.

While this may at first seem at odds with New Mexico v. Gonzales later decided by the New Mexico Court of Appeals, the two cases are consistent. In Gonzales, the Court stated that the prosecution could not call an expert witness simply to parrot the findings of an autopsy report in place of the analyst who originally created the report. However, an independent analyst could use otherwise inadmissible report to come up with his or her own conclusions and opinions if the evidence was routinely used by analysts in the field.

The difference between the two cases is that in Bullcoming the second analyst was simply validating a report created by someone else while in Gonzales the expert witness would use the autopsy report created by another to draw her own independent conclusions. While this may seem like splitting hairs, it could make a serious difference in a criminal trial.

The outcome of criminal cases often turns on the admission or exclusion of evidence. It is important discuss these matters with an experienced criminal law attorney.

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico
Confrontation And Victim Identifications
Prosecution Medical Experts and the Confrontation Clause in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys