Albuquerque Criminal Lawyer Blog

In the case of Missouri v. McNeely , the United States Supreme Court recently addressed the legality of a warrantless, non-consensual blood draw in a DWI investigation. More specifically, the Court addressed whether there could be a per se blanket rule exception to the 4th Amendment under the exigent circumstances exception in DWI investigations.

The Court ruled that there could be no such per se rule. Instead, the cases must be analyzed on a case by case basis. As a result, there was nothing justifying a per se rule, but there was likewise nothing suggesting a per se rule prohibiting such non-consensual, warrantless blood draws.

In the McNeely case, the Court held, based upon the circumstances of the case, that the blood draw was a violation of the 4th Amendment search and seizure protections. Instead, McNeely was no more than a routine DWI investigation with nothing suggesting exigent circumstances necessary for an exception to the warrant requirement.

For those in New Mexico, it is important to understand the limitations of the opinion. It would be unwise to read too much into the opinion with potentially serious consequences for your rights.

First, as suggested, the Court stated that these cases must be analyzed on a case by case basis. In short, there may be a situation where a warrantless, non-consensual blood draw is allowable. The Court discussed a number of such past cases.

Second, the Court in no way suggested that a non-consensual blood draw would be disallowed where a warrant was properly secured and executed. In fact, the Court explicitly recognized the ease and speed with which a lawful warrant for a blood draw may be obtained. In those situations where the warrant is legally obtained, then there simply is no prohibition against a non-consensual blood draw.

Perhaps, most importantly for New Mexico drivers, it must be recognized that there are consequences for a refusal to consent to a blood and/or breath alcohol examination that are independent of the criminal charges. Under the New Mexico Implied Consent Act, a refusal has several automatic and quite serious consequences.

First, a refusal will result in the automatic revocation of your driver's license. Under New Mexico law, a refusal carries a mandatory and automatic 1 year license revocation. In addition, the license revocation is independent of the criminal charges. In other words, even if you are successful in excluding the illegal blood draw as in the case of McNeely and you thereby are acquitted of the DWI charges, the license revocation still stands. Your guilt or innocence in the DWI criminal proceedings in no way affects the Motor Vehicle Division's revocation of your license.

Second, refusal of a breath and/or blood alcohol test will result in the aggravation of your charges. In other words, you will be charged with Aggravated DWI instead of simple DWI. Aggravated DWI carries mandatory jail time. In cases of repeat DWI offenders, conviction for aggravated DWI carries increasingly severe mandatory jail time.

Finally, a blood and/or breath test is not necessary for a conviction. The test could be excluded and you could still be convicted under New Mexico's "impaired to the slightest degree" standard. The rule originated to deal specifically with refusals. This is a fairly easy standard to meet and a blood/breath alcohol test is by no means necessary to meet it.

In short, there are consequences for refusal to provide a blood or breath sample. Though the McNeely case certainly provides important 4th Amendment privacy protections for DWI suspects, it is by no means a get out of jail free card. In fact, there is no such get out of free jail card in DWI cases. And if you can't get out of jail free then you might want to avoid jail altogether and this can be done only by not drinking and driving.

Related Reading:
DWI/DUI: License Revocation Under the New Mexico Implied Consent Act
DWI/DUI: The True Standard in New Mexico is Impaired to the Slightest Degree
Factors Leading to a Charge of Aggravated DWI in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The U.S. Supreme Court recently heard Florida v. Harris, a Florida case concerning the use of police dogs in traffic-stop searches. The case addresses indicia of reliability and hence legality of narcotics sniffing dogs under 4th Amendment search and seizure.

Essentially, the case is about whether a drug-detection dog must have proven reliability in the field and what is sufficient to show such reliability. The U.S. Supreme Court held that searches demand a "flexible, common-sense standard," and that it is not necessary to produce exhaustive records about drug-detection dogs' training and reliability in order to have probable cause for a vehicle search.

The facts of the case are relatively straightforward. During a routine traffic stop, a police officer pulled the defendant over. The police officer noticed that the defendant appeared nervous, and he had an open beer can in his car. The police officer asked the defendant if he could search the car, and the defendant refused. The police officer then led his trained narcotics dog around the defendant's. The dog signaled the presence of drugs. Because of the dog's alert, the police officer determined that he had probable cause to which is required for a search.

The police officer searched the defendant's car. During that search, he found pseudoephedrine and other illegal ingredients used to manufacture methamphetamine. The police officer arrested the defendant for illegal possession of the ingredients, although none of them were substances that the dog was actually trained to detect.
When the defendant was out on bail, the police officer stopped him again for a broken brake light and the dog alerted again, but the police officer didn't find any illegal substances--"nothing of interest was found."

The defendant moved to suppress the evidence found in his car (the ingredients for manufacturing methamphetamine) by arguing that the dog's alert didn't give the police officer reasonable cause for a search. The defendant emphasized that the dog wasn't trained to detect the type of drug ingredients found, and that the dog had a false positive during the second search.

The trial court ruled that the search was legal, and the defendant appealed. The case then went to the Florida Supreme Court in 2012. That court there decided in favor of the defendant, finding that it's necessary to have extensive records of a drug-detection dog's training and field reliability in order for a search to be legal. It said that mere proof of a dog's training and certification "is simply not enough." The Florida Supreme Court emphasized a need for "evidence of the dog's performance history." The state appealed to the U.S. Supreme Court, which overruled the Florida Supreme Court's decision.

The U.S. Supreme Court emphasized that, in cases concerning probable cause for a search, it looks to a "totality of the circumstances." This means simply that it looks to all the factors involved in order to determine whether a reasonable person would believe that there was evidence of illegal drugs or other contraband materials, making the search legal.

The U.S. Supreme Court described this standard as a "practical" and "common-sensical" one, and emphasized that it rejects "rigid rules" and "bright-line tests" like the one proposed by the Florida Supreme Court. Instead, in situations concerning probable cause for a search, police officers can be "flexible," taking an "all-things-considered approach." For the U.S. Supreme Court, a dog's training and certification is sufficient to say that the dog is capable of sniffing out illegal substances and properly alerting a police officer. Training records alone are enough to establish reliability.

This ruling seems to ignore the fact that dogs, like humans, have different abilities. Training alone does not make a dog any more competent than a human. In fact, it seems that the reliability of the dog can only be measured by its history of service. There may be dogs, like humans, that are predisposed to false alerts creating overboard searches which is the very thing that is prohibited by the 4th Amendment.

Related Reading:
Consent to Police Search Must be Voluntary
Plain View Exception to 4th Amendment Search & Seizure Warrant Requirements
Unlawful Search & Seizure Under the 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys

During the course of a legal case, whether criminal or civil, the law imposes certain deadlines. Generally, if those deadlines are not met the party failing to meet the deadline will be subject to penalties. These penalties may include having their case dismissed or having a judgment entered against them.

Recently, in New Mexico v. Leon, the New Mexico Court of Appeals dealt with a situation where the defendant missed the deadline to file an appeal on his criminal conviction. In cases where an appeal is not timely filed, an ineffective assistance of counsel may be presumed. This case held consistently with this position despite the state's argument that there was no 6th Amendment right to counsel in this case since it involved probation violations as opposed to original criminal charges.

The defendant was convicted of one count of contributing to the delinquency of a minor and one count of selling or giving alcoholic beverages to a minor, and he was sentenced to three years of incarceration followed by one year of parole. The court partially suspended his sentence and ordered him placed in supervised probation. The defendant also had a prior felony conviction for a sex offense, for which he is required to register as a sex offender. As a condition of the defendant's probation, he was not permitted to drink or possess alcohol, he was required to receive permission from his probation officer for missing any counseling sessions and he was required to get written permission from his probation officer before having unsupervised contact with children under eighteen years of age.

The defendant's probation officer filed four probation violation reports based on possession of alcohol, failing to register as a sex offender and missing two counseling sessions. As a result, the State sought to revoke the defendant's probation based on the violations. In addition, the State filed a supplemental criminal information requesting that the defendant's sentence be enhanced due to his habitual offender status. The court reviewed the evidence and revoked the defendant's probation, sentencing the defendant to five years of incarceration followed by a period of supervised probation.

Despite the fact that New Mexico law requires an appeal to a court's decision to be filed within thirty days of the final decision, the defendant did not file his appeal until sixty-two days after the final decision was entered. While the trial court may have granted the defendant an extension to file his appeal, he did not file the request for an extension until more than sixty days after the final decision as well. By that time, the trial court could not rule on any matters pertaining to the case, because it no longer had jurisdiction.

The defendant argued that his counsel's failure to file the appeal on time was ineffective assistance of counsel. Ineffective assistance of counsel is a claim raised when a criminal defendant believes their attorney's performance was so ineffective that it deprived them of their constitutional right to an attorney. In the past, New Mexico courts have presumed ineffective assistance of counsel where an appeal is not filed before the deadline passes, in which case the court will then review the defendant's case. However, this case differed slightly from the normal untimely appeal cases, because it deals with revocation of probation.

The State argued that in an appeal from a revocation of probation, the defendant had no right to counsel. However, the defendant's probation revocation hearing involved contested evidence, legal issues and complicated legal arguments, which most certainly require the assistance of an attorney. Additionally, the defendant had the right to appeal the revocation of his probation. Due to the significant effect a revocation of probation would have on the defendant's liberty, he should not have his right to appeal taken away due to his lawyer's mistake. Therefore, the defendant was permitted to appeal his probation revocation, despite missing the filing deadline.

Related Reading:
Sliding Scales of Due Process in New Mexico Probation Violation Hearings
4th Amendment Rights Limited for Probationers and Parolees
You Can Run but ...: Tolling of Probation and Jurisdiction in New Mexico Criminal Cases

Collins & Collins, P.C.
Albuquerque Attorneys

In most situations in New Mexico, a criminal suspect being held for an interrogation must be read his or her Miranda rights. For Miranda rights to kick in, the suspect must be subject to a custodial interrogation. One hallmark of the custodial interrogation is that the subject does not feel free to leave. This takes on unique meaning in a juvenile criminal case involving the questioning of a student.

Investigatory Detention by School Personnel Not a Custodial Interrogation

In a recent case, State v. Antonio T., the New Mexico Court of Appeals examined the rights of a student when being questioned by a school official in the presence of a police officer. The court was tasked with determining whether this situation arose to the level of a custodial interrogation or whether it was instead simply an investigatory detention.

The court found that it was simply an investigatory investigation despite the many attributes that would suggest that this was a custodial interrogation including the fact the student probably by no means felt free to leave. Moreover, because it was conducted by the Vice Principal in a school setting, the questioning was not considered an investigatory detention by police.

This is an important distinction since juveniles in New Mexico are protected against such investigatory police detentions due to the fact that they are less likely to know their rights or to exert them even if they do know them because of their youth. Because it was only an investigatory detention by a school official, the court of appeals agreed that the student was not entitled to a reading of his rights under Miranda.

Police Presence Not Enough to Trigger Miranda

In this case, the student was taken into the vice principal's office to be questioned about being intoxicated on school grounds. Soon after the student entered the vice principal's office, a police officer acting as the school's resource officer arrived in the office as well.

The police officer was dressed in his full uniform and was called in to administer a portable breath test. While the police officer prepared the portable breath test, the vice principal questioned the defendant. The student admitted to the Vice Principal that he had two shots of peppermint schnapps and the portable breath test showed that the student had a blood alcohol concentration of .11 percent.

At trial, the student sought to suppress his admission about consuming the alcohol. He alleged that the prosecution did not show that he made a knowing, intelligent and voluntary waiver of his right to remain silent due to the failure to read him his rights under Miranda. The trial court disagreed as would the Court of Appeals.

In this case, though the student was questioned by the school official in the presence of a police officer, it was found that it was not a custodial interrogation. The court reasoned that the police officer only listened while the student was questioned. The officer did not pariticpate in the questioning nor control the area wehre the questioning took place.

Greater Rights for Juveniles Not at Issue Investigation by School Personnel

New Mexico does have a statute providing juveniles with greater protections in an investigatory interrogation. In fact, New Mexico is the only state that requires a reading of Miranda rights during an investigatory interrogation of a juvenile.

However, the New Mexico statute limits when a juvenile must be read their Miranda rights in an investigatory interrogation to situations where the investigation is undertaken by, or on behalf of, law enforcement officials. Here, the investigation was not undertaken on behalf of law enforcement. Thought the police officer was aware of the investigation, he did not provide any direct assistance or even ask any questions.

Perhaps most important for the ruling are the student safety issues facing schools. In this case, it was determined that the vice principal conducted the questioning in order to ensure the safety of the child and the other students in the school. As a vice principal, she has a legitimate interest, separate from the law enforcement aspect of the incident, to inquire into whether the student was intoxicated and whether the alcohol remained on the premises possibly endangering the defendant or other students.

The student safety considerations seem to dictate the court's decision. A traditional analysis of whether a custodial interrogation took place would likely result in a different outcome. After all, would a student in this situation really feel free to simply leave despite the fact that the officer was simply present but not conducting the questioning?

Related Reading:
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?
Consent by a Minor to Warrantless Search in New Mexico
What Does "You have the right to remain silent" Under Miranda Actually Mean?

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals was recently called upon to review the "knock and announce" rule in the case of State of New Mexico v. Jean-Paul. The gist of the opinion is that the not only is there a requirement that police knock and announce in New Mexico, they must also wait a reasonable period of time to enter or risk suppression of suppression of any evidence seized. "Reasonable time" is not a static definition. It depends on the circumstances. As a rule, however, a one second wait is not sufficient absent exceptional circumstances.

Both the 4th Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution protect citizens against unlawful search and seizure. One protection is the aforementioned "knock and announce" rule which requires police officers seeking to execute a warrant to knock and announce their presence to the occupants. Then they must wait a "reasonable" amount of time to allow the occupants a chance to voluntarily open the door. As you can imagine, the question is often what period of time is considered reasonable?

In this case, the police were seeking to execute a search warrant on the defendant's home. They knocked on the door and announced their presence, then after waiting only one second, they used a battering ram to enter the defendant's home. The police officers later explained that they waited such a short period because a man in the home was looking out a window at them as they approached. Inside the home, the officers found drugs and drug paraphernalia for which the defendant was charged with drug trafficking and possession of drug paraphernalia.

Before trial, the defendant sought to have any evidence discovered as a result of the search warrant's execution suppressed. She argued that the police did not wait a reasonable period of time after announcing their presence, and that no exceptions to the knock and announce rule were present.

There are only two exceptions to the knock and announce rule that could have applied in this case. The police are not required to knock and announce if it would merely be an empty gesture or if there are exigent circumstances. A court would consider knocking and announcing an empty gesture if the occupants were already aware that the police were on the premises for purposes of searching the premises. Similarly, the police would not be required to knock and announce if there was a real risk that evidence would be destroyed by waiting. However, it should be noted that simply because the occupants see the police approaching does not give rise to an exception.

In determining whether police officers waited long enough after knocking to forcibly enter the premises, the courts will often review the size of the premises, the time of day and whether the police know someone is inside. While the defendant's home in this case was small, New Mexico courts have only approved wait times of ten seconds or more, unless there are exigent circumstances. Only waiting one second, like in this case, does not provide the occupants with enough time to collect themselves and move toward the door to allow the police officers entry into the defendant's home. While in some cases a court will permit a shorter wait due to concerns by the police that do not quite reach the level of exigent circumstances, the police officers could not provide evidence of any such concerns here.

The court noted that while both the 4th Amendment and the New Mexico Constitution follow the knock and announce rule, the remedy for a violation is different under the two. The New Mexico Court of Appeals recognized that under the 2006 U.S. Supreme Court Case of Hudson v. Michigan, violation of the knock-and-announce rule does not necessarily require suppression of the evidence. As such, application of the federal law here would likely have led to very different consequences for the defendant.

In short, the police must knock and announcing their presence. They must also under New Mexico law wait a reasonable period of time to enter the premises or face suppression of any evidence seized. One second is clearly not sufficient. How long the police must wait will depend on the circumstances. If you have been arrested, and your property searched under a warrant, it highly advisable to seek the assistance of attorney knowledgeable of search and seizure issues in New Mexico.

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Both the United States and New Mexico Constitutions protect people in New Mexico from unreasonable searches and seizures by the police. These protections arise under Article II, Section 10 of the New Mexico State Constitution and the 4th Amendment to the U.S. Constitution.

In order for the police to search any place or seize any person, they must obtain a warrant. A warrant requires the police to specifically describe what they want to seize, and it has to include a written description of why the police officer believes he or she has probable cause to believe the search will show criminal activity occurred.

In New Mexico v. Boyse, the New Mexico Court of Appeals determined that a warrant obtained by an officer over the telephone was not permitted. In August 2008, an officer responded to a call about a dead horse smell at the defendant's home. He saw evidence of numerous problems while he was looking around the property, and he decided to obtain a search warrant.

The courts were closed at that point, and the police officer did not attempt to find a judge in person. Instead, the police officer contacted the on-call judge by telephone to obtain verbal approval for the warrant. The judge administered an oath to the police officer, and the officer read him the typed facts in support of the search warrant. The judge approved the warrant and the police officer signed the judge's name to the warrant. Several days later, the judge then signed and initialed the warrant himself.

In New Mexico, the Constitution requires a written showing of probable cause. The fact that a sworn writing exists is not enough to satisfy the requirements of the New Mexico Constitution. The requirement for the existence of a sworn writing indicates that the sworn writing must exist somewhere, but also that it must be shown and considered by the court before the warrant issues. In other words, the judge must physically review the police officer's sworn statement before issuing a warrant. Therefore, the constitutional requirements are not met if the police officer writes out a probable cause statement but does not show it to the judge.

In this case, when the judge approved the warrant, the police officer did not show the writing to the judge. While the police officer read the written statement to the judge, the judge had no way of knowing whether the written statement even existed. Furthermore, the judge did not have any way of knowing if it was modified between the phone conversation and the time the judge signed the warrant. The possibility of error or abuse is simply too great. The warrant was invalid, and the evidence obtained from the search could not be used against the defendant.

The protections of the 4th Amendment and Article II, Section 10 of the New Mexico State Constitution provide significant protections to the public. This is particularly true for those charged with crimes in the State. In fact, search and seizure violations and the suppression of illegally obtained evidence are in many cases the best and/or only line of defense in a criminal case.

If you have been charged with a crime, it is important to speak with an attorney with knowledge of search and seizure issues. It is particularly important to discuss the facts surrounding any search of your property as well as the circumstances of arrest. It may be that your best defense is on search and seizure grounds.

More Reading on Search & Seizure:
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
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the U.S. Constitution and Article II, Section 10 of the New Mexico State Constitution protect us against unreasonable searches and seizures. This means that law enforcement are required to first get a search warrant before going into someone's house or car to seize evidence. A search warrant is issued by a judge and is a court order that authorizes law enforcement officers to conduct a search of a person or a location for evidence of criminal activity and to seize that evidence.

The U.S Constitution and the New Mexico State Constitution require that searches be reasonable and specific. Therefore, a search warrant must specifically state the exact place and object that may be searched. A warrantless search, therefore, is presumed to be unreasonable. There are, however, a few recognized exceptions that make warrantless searches reasonable and permissible. These include exigent circumstances, searches incident to arrest, inventory searches, consent, hot pursuit, open field, and plain view. When law enforcement conducts a warrantless search, it is the responsibility of the state to prove that the warrantless search was reasonable. This can be done by proving that the warrantless search fits into one of the recognized exceptions to the warrant requirement listed above.

The Plain View Doctrine

One of the exceptions frequently relied upon by law enforcement when a warrantless search is conducted is what is commonly referred to as the plain view doctrine. This exception allows a police officer to seize something that is illegal or suspicious if it is in the plain view of the officer. Two requirements must be met in order for the plain view exception to apply. First the officer must be legitimately present at the searched location and second, the incriminating nature of the evidence seized must be immediately apparent giving the officer probable cause to believe that the item seized is evidence of a crime.

For example, if a police officer has a warrant to search someone's home for a stolen T.V. and while searching the home for the T.V. the police happen to see drugs laying on a coffee table in the living room, the police may seize the drugs under the plain view doctrine. The seizure of the drugs is reasonable and not a Fourth Amendment violation even though the warrant that allowed the police to search the home for the stolen T.V. did not also specifically state that the officer may search the home for drugs.

The plain view doctrine applies because the police were legitimately present at the searched location pursuant to the search warrant for the T.V. and the drugs were in the plain view of the police. In this same scenario, the plain view doctrine would not apply if the drugs were hidden in a drawer of the coffee table instead because they would no longer be in plain view.

If you are facing criminal charges it is wise to discuss your case with an experienced criminal law attorney. A criminal law attorney will review the details of your case with you to determine whether you have been subject to an unlawful search and seizure. If your attorney determines that your Fourth Amendment Rights have been violated he or she can file a motion to suppress the evidence obtained through the unlawful search and seizure.

Related Reading:
4th Amendment and the Plain View Doctrine
Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Cofer, the New Mexico Court of Appeals considered the use of improper hearsay testimony to establish the market value of stolen goods.

In June 2008, the defendant took a 32" Sanyo LCD television from a Wal-Mart. Soon after, the defendant was pulled over by a police officer, based upon information provided by the police dispatcher. While the defendant was pulled over, the officer noticed a 32" Sanyo LCD television in plain view in the back seat of the defendant's vehicle. The police officer read the defendant his Miranda rights, and the defendant admitted that he shoplifted the television from Wal-Mart. He was charged with one count of shoplifting over $500.

At trial, the defendant admitted to taking the 32" Sanyo LCD television, but he did not state its value. The prosecution's only witness, a Wal-Mart assistant manager from the electronics department, testified that she researched the value of the television on the in-store database. She concluded that the television was worth $576 on the date of the crime. The trial court accepted the valuation of the television, and the defendant was convicted of shoplifting merchandise valued at more than $500.

At trial there are rules governing the proper way to introduce evidence. Generally, a witness is not allowed to testify about another person's statement. That is known as hearsay. Of course, there are exceptions to that rule, like where the other statement is a record of regularly conducted business activity.

Specifically, the courts in New Mexico have traditionally allowed the admission of price tags or testimony thereon as non-hearsay evidence. In this case, there was no price tag for admission. Nor did the manager have firsthand knowledge of the price of the item at the time of the theft. Instead, she conducted research into the pricing using historical inventory and pricing reports 10 months after the incident.

There were several problems with the pricing testimony and one easy solution for the state. The first problem was the lack of a price tag. The second was lack of firsthand knowledge of the price.

The last problem was the reliance on inventory and pricing reports. The obvious question is why is this a problem? Here, those inventory and pricing reports were not provided to the defense nor were they entered into evidence. Instead, manager just testified to what she found.

This might seem like a gotcha type case for prosecutors. However, the solutions would have been relatively easy. First, the police could have secured the price tag and pricing info at the time of the theft. Second, the prosecutor could have obtained the inventory reports and presented them as business records through the manager.

These are routine steps in the introduction of evidence. Shortcuts are not allowed. It is not hard to imagine how even a seemingly trivial shortcut like this one could quickly lead to abusive prosecution tactics. In short, the Courts did their jobs in holding the prosecutor accountable for following the rules of procedure and the rules of evidence.

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

Collins & Collins, P.C.
Albuquerque Attorneys

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 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

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

In a decision earlier this year, the New Mexico Court of Appeals held in State v. Montoya that a defendant's Confrontation Clause rights were not violated when the lower court prevented him from questioning the victim about their prior sexual history together.

State v. Montoya presented an interesting set of undisputed facts. The defendant and the victim were in an altercation that turned physical. He was subsequently convicted of several charges including kidnapping and aggravated battery. The only dispute in the case was over the defendant's intent. The defendant claimed his actions were not intended to harm the victim but to initiate "make-up sex" which the couple often engaged in after an argument.

During the trial, the defendant tried to introduce evidence of their sexual relationship--including their tendency to use sexual relations as a dispute resolution technique--to show its influence on his state of mind at the time of the incident. Relying on New Mexico's Rape Shield Rule, the court denied his motion to introduce the evidence.

Enacted by the New Mexico Legislature in 1975, the Rape Shield Rule prevents the admission of opinion or reputation evidence regarding the victim's past sexual conduct. The Rule only permits admission in cases where the evidence is material to the case and where its prejudicial nature does not outweigh its probative value. This is a crucial evidentiary distinction that hinges on the discretion of the judge.

Although the defendant was unable to introduce this specific evidence, he was able to introduce evidence supporting his theory. In fact, the victim confirmed that she was not in fear during the encounter and explained that the defendant's action were an attempt to get her to consent to sex. Regardless of the introduction of this evidence, the defendant claimed the court violated his right to confront the witness.

In a criminal prosecution, the Sixth Amendment to the United States Constitution--and a similar provision in the New Mexico Constitution--guarantees the accused the right "to be confronted with the witnesses against him." These Confrontation Clause protections, however, are not absolute. Instead, trial courts retain wide discretion to impose reasonable limits on cross-examination to prevent harassment, confusion, or repetition.

The court in Montoya examined a number of factors to determine if the exclusion in this case was within the acceptable parameters. Based largely on the fact that the victim had introduced similar evidence, the court determined that the probative value of the new evidence had substantially diminished and would have been inflammatory and repetitive. In other words, the court determined that the value of the information to the jury in reaching a verdict was not nearly as strong as the information's potential to mislead them.

Accordingly, this recent holding by the New Mexico Appeals Court serves to further outline what protections are--and are not--required by the Confrontation Clause in light of what has come to be known as the Rape Shield Rule.

The admission and/or suppression of evidence in a case is critical to the defense of criminal charges. It is important to discuss these matters with your criminal defense attorney.

Related Reading:
Confrontation And Victim Identifications
6th Amendment Confrontation Rights in New Mexico Domestic Violence Cases

Collins & Collins, P.C.
Albuquerque Attorneys