Albuquerque Criminal Lawyer Blog

Under the Fourth Amendment of the U.S. Constitution, individuals are protected from unreasonable searches and seizures that are not accompanied by a warrant or supported by probable cause. There are a small number of exceptions to the warrant requirement when police can conduct a search and seizure. A 2011 Supreme Court case, Kentucky v. King, explained the limits of the exigent circumstances exception to the warrant requirement when officers search a private residence.

In Kentucky v. King, police officers followed a suspected drug dealer to an apartment complex where they smelled marijuana coming from one of the apartment doors. Officers knocked on the door and announced their presence. Officers at the scene testified that when they began knocking they could hear movement within the apartment that sounded like the occupants were destroying evidence. Law enforcement officers kicked the door in and found marijuana and cocaine in plain view during a protective sweep of the apartment.

The Defendant claimed that the warrantless entry and search of the apartment was in violation of the Fourth Amendment and that the exigent circumstances exception did not apply because police created the exigency. Essentially, the defendant argued that by loudly knocking on the door, police created a situation where there was a danger of destruction of evidence. The Supreme Court disagreed.

A warrantless search of a private residence is generally considered unreasonable and therefore prohibited by the Fourth Amendment. However, law enforcement officers may enter and search a private home without a warrant if there are exigent circumstances present. Exigent circumstances are present when there is an eminent danger of harm to an individual, a suspect is escaping, or evidence may be destroyed.

Under the "police-created exigency" rule, the exigent circumstances exception does not apply if law enforcement officers "manufactured" or created the exigency. However, lower courts have come up with different tests to determine whether an exigency was created by police officers. The Supreme Court in Kentucky v. King announced the correct test to determine whether the exigency was "police-created."

Under this ruling, police create an exigency only when they "engage or threaten to engage in conduct violating the Fourth Amendment." Simply put, the exigent circumstances exception to the warrant requirement applies even if the police officers' actions caused the exigency, as long as the officers were acting lawfully and reasonably.

In this case, police knocked loudly and announced their presence. Neither knocking nor announcing the presence of law enforcement, according to the Court, is in violation of a residence's occupants' Fourth Amendment rights. According to the majority, police may need to knock forcefully and announce themselves loudly in order to let a residence's occupants know that they are at the door. In this case, officers did not enter the apartment or make any demands to enter the apartment or otherwise suggest an eminent search. They entered he residence only once they heard people moving inside and feared that evidence would be destroyed.

Therefore, even when police create a situation where a suspect may destroy evidence by knocking at their door, as long as police are acting reasonably and lawfully, they may enter the residence without a warrant. Of course, the officers must have a legitimate and lawful reason to knock on the door to begin with. Likewise, there must be an exigency meriting a warrantless entry. For this determination, the Supreme Court send the case back to the Kentucky courts.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Delinquency Act creates three different types of juvenile offenders. The juvenile criminal offender's classification is very important, because it determines whether they may be tried as an adult. This in turn will determine the possible penalties they can receive.

A "serious youthful offender" is a child from 15 to 18 years old that is charged with first-degree murder. Once charged with first degree murder, they are no longer a juvenile under the law and are automatically sentenced as adults if they are convicted.

A "youthful offender" is a child aged 14 to 18 and found guilty of specified felony offenses (like second degree murder, assault with intent to commit violent felony, kidnapping, aggravated battery, criminal sexual penetration and robbery); who has three prior, separate felony convictions in the past three; or is 14 and found guilty of first degree murder. A youthful offender may receive either a juvenile or adult sanction.

Finally, a "delinquent offender" is a child that commits a less serious crime. The child is tried in Children's Court under the Children's Court Rules. A delinquent offender will receive juvenile sanctions under the Children's Code.

A recent case before the New Mexico Court of Appeals, New Mexico v. Nanco, examined whether a child charged with murder but only found guilty of a lesser crime should receive credit for the time they serve before sentencing.

The defendant was a fifteen-year-old who was arrested because police believed he was involved in a fatal shooting. He was charged with one count of first-degree murder and two counts of tampering with evidence related to the shooting. Due to his age and charges, the defendant was classified as a serious youthful offender and tried as an adult. After a trial, he was found not guilty of first-degree murder and one of the evidence tampering charges. However, the jury found him guilty of voluntary manslaughter and tampering with evidence.

The defendant's charges meant that his classification would be changed to a delinquent offender. Under New Mexico law, a serious youthful offender would be entitled to a credit for the time served prior to sentencing, but a youthful offender or a delinquent offender would not. In New Mexico, juveniles do not receive credit for time served. The defendant argued that he should receive credit for the time served, because he was initially categorized as a serious youthful offender. The court disagreed.

The New Mexico statute allowing pre-sentence credit specifically states that the credit applies against a sentence. However, a delinquent offender, like the defendant, is not "convicted" or "sentenced." Under New Mexico law, the defendant was "adjudicated" and received a "disposition." Since the defendant was a juvenile and was not sentenced, the pre-sentence credit law cannot apply to him.

In addition, New Mexico seeks to rehabilitate juveniles in the criminal justice system. In order to do so, juveniles are treated differently from adults. One important difference is the way consequences are determined, with the possibility that a sentence can be cut short or extended based upon the needs of the child and the public. By allowing pre-sentence credit, the juvenile's rehabilitation could be cut short at a critical time, harming both the child and the public at large.

The juvenile criminal process is somewhat different than the adult criminal process. Because of the differences, it is typically beneficial have an attorney experienced in the juvenile criminal courts. If your child is involved in the juvenile criminal courts in the Albuquerque area, feel free to contact us at Collins & Collins, P.C.

Related Reading:
Timely Preliminary Hearings for Juveniles Facing Adult Charges in New Mexico
Youthful Offender, No-Bills and Time Limits in Juvenile Criminal Cases
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

The Federal Indian Country Crimes Act limits the ability of state and local law enforcement officials in charging Native Americans with crimes when the alleged crime occurs on Native American land. This raises the issue of what is considered Native American land.

While certain situations are simple such as historical treaty land, allotted lands or lands later federally recognized as Indian lands, other situations are more complicated. The recent New Mexico Court of Appeals case of State v. Vandever presented one such more challenging case.

The question in Vandever was whether land purchased by a tribe, used by the tribe and for the benefit of the tribe constituted tribal lands. The question might seem to answer itself. However, there were added complications. Most notably that the land was neither within the historical boundaries of the tribe nor had it been officially designated tribal land by Congress.

The defendant was driving under the influence of alcohol, when he struck and killed a highway worker. He continued driving leaving the scene until later stopped by the police. The officer smelled alcohol. When asked, the defendant admitted to drinking a six-pack of beer. The defendant then took a blood test, which revealed the defendant had a blood alcohol level of .19%.

The defendant was charged with an aggravated DWI, homicide by vehicle and knowingly leaving the scene of an accident. In court, he argued that the court did not have jurisdiction because he is a member of the Navajo Nation and the incident occurred on the Navajo Nation land.

Interestingly, both the defendant and the prosecution agreed that the incident occurred on land purchased and owned by the Navajo Nation. The issue then became, whether the land owned by the Navajo Nation was considered part of the Navajo reservation under the Indian Country Crimes Act, thereby preventing the police from charging the defendant in New Mexico State Court.

The Court noted and the testifying experts agreed that the historically drawn borders of Indian lands, including that of the Navajo Nation, have changed or time stating:

"...since the 1868 treaty was signed, there have been changes made to Navajo Nation treaty boundaries by congressional acts of diminishment, temporary expansions of boundaries, allotments of parcels of land to individual Indians, and return of land to the public domain."

The State argued and the Court agreed that the critical question was whether the crime occurred on Indian land as defined and delineated at the time of the crime not the historical boundaries.

The Court placed the burden on the defendant to prove that the crime occurred within then existing tribal boundaries. It was not enough that the tribe owned the land and used it for tribal purposes. The land had to be federally recognized as tribal land at the time of the crime which the defendant was unable to show.

The case makes sense in that tribal sovereignty without the distinction of federal recognition could be greatly expanded through the simple purchase of lands for tribal use. This was never the intent of Congress at the time of the 1868 Treaty or since.

And in the end, keep in mind, that had the State of New Mexico not assumed jurisdiction over the case, the U.S. Attorney surely would have. So a victory may have been short-lived in any event.

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The police are not permitted to simply search anyone for any reason. Their powers to search people are limited by the Fourth Amendment to the U.S. Constitution, preventing unreasonable searches and seizures. In most cases, the police must acquire a warrant in order to search a person. A number of exceptions do exist that allow police to forgo a warrant, but those exceptions are limited.

Earlier this year, the New Mexico Court of Appeals examined the use of "pat-down searches" to acquire evidence in New Mexico v. Almanzar. In this case, two police officers were dispatched to investigate a domestic violence incident. By the time the police arrived, the defendant and his girlfriend left the scene of the alleged domestic violence. Both had gone their separate ways and were at different locations when the officers made contact.

When the officers approached the defendant, the defendant allegedly put his hands in his front pockets and refused to remove them. While neither officer believed the defendant was armed, they handcuffed him and conducted a pat-down search for weapons.

During the pat-down search, the officer felt a hard "golf ball-size thing" in the defendant's pocket, which he then removed, despite the fact that he knew it was not a knife or gun. The officers believed the object was powdered cocaine.

The defendant was arrested for possession of cocaine with intent to distribute. The defendant, believing that the police search violated his constitutional rights, sought to have the evidence suppressed so that it could not be used against him at trial. The trial court allowed the evidence. The defendant then entered a conditional plea to trafficking cocaine reserving on the issue of the search and seizure question.

Officers are permitted to pat-down or frisk suspects only for the purpose of officer safety. Specifically, they are allowed to search for weapons. In fact, an officer may only conduct a pat-down search if he or she believes that the suspect is armed and presently dangerous.

The search itself must be limited to what the officer needs to do in order to locate any weapons. If the officer detects something that reasonably may be a weapon, then the officer may remove it.

The courts will generally defer to an officer's judgment when determining if a pat-down search is required. In this case, the defendant's behavior, including putting his hands in his pockets and refusing to remove them, provided a basis for the pat-down search. However, in order to remove the object from the defendant's pocket, the officers were required to believe that it could be a weapon.

A pat-down search is not a search for evidence. It is strictly for the protection of the officer. In this case, the officer testified that he did not believe the object was a weapon. As such, removal of the object was not necessary for officer safety. At that point it became an evidentiary search and was therefore an illegal search under the 4th Amendment.

There is a further exception to the limited scope of the pat-down search. If the evidence would have been discovered anyway, then it may still be admissible under the "inevitable discovery doctrine." Here the police argued that it would have been discovered anyway due to a search incident to arrest on domestic violence.

The New Mexico Court of Appeals disagreed. In fact, the Court reiterated the misdemeanor arrest rule in New Mexico which requires that an officer be present at the scene of the crime to make an arrest. This rule applies equally to domestic violence and has in fact been codified in NMSA 31-1-7(A) as follows:

Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.

The State took a broad view of "at the scene" arguing that it meant in the vicinity. The Court of Appeals again disagreed using the plain meaning of the words despite some agile arguments made by the State attempting to equate it to related DWI rules.

In short, a pat-down search is limited to officer safety. It is not a basis for a full search for evidence. Naturally, this will not be the end of it as it will often come down to what the officer believed. And this is obviously open to interpretation.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant

Collins & Collins, P.C.
Albuquerque Attorneys

Police officers often collect evidence used in later criminal prosecutions after using search warrants to examine various places, like homes and cars. However, there are specific rules about when it is proper for officers to obtain those warrants from a judge. If a warrant is obtained without sufficient probable cause than the search is improper and the evidence found via the search cannot be used in a trial.

Earlier this year the New Mexico Supreme Court ruled in State v. Haidle held that multiple levels of hearsay are not sufficient to support a constitutionally valid search warrant. Therefore, any evidence obtained using that search warrant could not be used.

In this case the decomposed body of a woman was found in a remote area with signs that she had been killed by blunt-force trauma to the head. Over ten months later, the police received tips from a confidential source and two concerned citizens that the defendant admitted to at least one person that he killed the woman.

The police obtained a search warrant for the man's home and truck. They found a bloody t-shirt that was too small for him and a piece of living room carpet containing bloodstains that had apparently been cleaned. Using this evidence, the police then obtained a warrant for the defendant's DNA. After the blood on the carpet matched the victim's, he was arrested and charged with first-degree murder.

Before trial, the defendant sought to suppress all the evidence obtained as a result of the search of his home. He argued that the police failed to obtain probable cause for the warrant. The district court agreed that the police did not have probable cause, but allowed the evidence because it would inevitably be discovered anyway. The defendant appealed this determination, and the issue went to the New Mexico Supreme Court.

The New Mexico Supreme Court determined that the affidavit used to support the warrant included both hearsay information from unnamed informants and nonhearsay evidence gathered independently by the police. New Mexico Rules of Criminal Procedure address the use of hearsay for a basis of probable cause for a warrant. The Court in Haidle quoted those rules stating:

Rule 5-211(E) NMRA provides that when a showing of probable cause depends in whole or in part on hearsay information, the affidavit must show "a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."

The court found that the hearsay information did not provide any evidence of truthfulness because there was no indication that the sources had provided reliable information in the past or made statements against their own interest. In short, there was no basis for the court to find unnamed sources reliable and trustworthy.

The Supreme Court then had to address whether the evidence would have inevitably been discovered, even without the warrant. First, the court rejected what it termed the "we-could-have-done-it-lawfully-so-it-doesn't-matter-that-we-didn't view." The court found that there was nothing in the record that would indicate the bloody carpet would have been discovered without the warrant. Furthermore, allowing the police to use the inevitable discovery doctrine would make the probable cause requirement meaningless.

The court then concluded that the inevitable discovery doctrine would not apply in this case. The Court's language seemed to go further though it did not outright state that the inevitable discovery rule did not apply in New Mexico.

The Court anticipated the sour feeling one might have after reading the Court's opinion. It appears that justice was denied. And many will use cases like this to attack the courts, the rules of evidence, the exclusionary rule, and of course, criminal defense attorney. However, keep in mind the words from the U.S. Supreme Court case of Mapp v. Ohio as quoted by the Court in Haidle, "[n]othing can destroy a government more quickly than its failure to observe its own laws..."

Related Reading:
Expansion of Police Investigation Under the 4th Amendment in New Mexico
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the Constitution protects people against warrantless searches of their persons, papers and homes. The law requires police to possess a valid warrant when searching a home for evidence, unless they act within one of the exceptions created by the courts. In order for the police to obtain a valid warrant, the police must have probable cause and specifically describe the place to be searched and items they want to seize.

The New Mexico Court of Appeals found a search invalid where the police failed to properly describe the area where they seized evidence in the search warrant. In New Mexico v. Hamilton, the police obtained a warrant to search the defendant's home. The warrant described the place to be searched as "a residence," more specifically as "a red stucco single level home with turquoise trim."

The police executed the warrant, and soon witnessed the defendant and his brother exiting a detached guesthouse located in the backyard area of the main house. The defendant and his brother were detained while drug-sniffing dogs searched both the main house and the guesthouse. The dogs alerted the police during the sniff of the guesthouse. The police then searched the guesthouse leading them to evidence upon which the defendant was charged.

The Fourth Amendment exists to prevent the police from searching people and places without cause. The courts have limited the police's authority to search, which ensures that the search will be carefully tailored and will not be a general search that the Constitution prohibits.

The area encompassing the "home" may extend beyond the walls of the home, and is sometimes referred to as the "curtilage." The Fourth Amendment does extend to protect the curtilage. There is no set definition of curtilage, but several factors are considered by the courts. However, it is clear that where the police want to search two houses, they are required to provide probable cause to each, and specifically describe the residences and things they wish to seize.

In the Hamilton case, the warrant did not mention the separate guesthouse. The main house and guesthouse were owned as a common unit, but the defendant used the guesthouse as a separate residence. In addition, the guesthouse had been rented out to tenants in the past, and it formerly had a different address.

The State argued that the guesthouse was part of the main house, due to its close proximity. However, the evidence showed that the guesthouse was, in fact, a separate residence. As a separate residence, it cannot be considered as part of the main house because it contains the intimate activities of its own respective occupants. The simple fact that an adult child lives closely to his parents, even when they are both allowed access to both homes, does not make the two residences one.

The contents of a warrant are very important. A defective warrant will result in the suppression of evidence. If this is the only evidence of a crime, then the prosecutor would have a difficult time at best moving forward. It is important to discuss these matters with your criminal defense attorney. Evidentiary suppression issues are often the best line of defense against criminal charges.

Related Reading:
4th Amendment and the Plain View Doctrine
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys