Albuquerque Criminal Lawyer Blog

A recent case from the New Mexico Court of Appeals addressed the validity of the consent to a search under the 4th Amendment. The case of State v. Norman Davis involved the search of an individual's property for marijuana.

In a joint operation, the New Mexico State Police, the New Mexico National Guard and officers from a number of other law enforcement agencies entered Mr. Davis' property to investigate the presence of marijuana. The numerous officers were heavily armed with handguns and AR-15 semi-automatic weapons. In addition, the operation included two Army National Guard helicopters which were hovering over the residence at the time that contact was made with Mr. Davis.

Mr. Davis had a greenhouse on his property. The investigation began as a result of helicopter surveillance that suggested the presence of marijuana in the greenhouse. The greenhouse had an opaque finish so it was not possible to view its contents from outside the greenhouse which raises some questions regarding the validity of the initial suspicion.

Against this backdrop, Mr. Davis was asked for consent to search his greenhouse. Mr. Davis asked the officer if he had to consent to which the officer responded "No", but it would take less than 30 minutes to obtain a warrant during which time Mr. Davis' property would be secured. During this conversation, the many other officers were scattered across Mr. Davis property to which Mr. Davis commented that it looked like they were already searching anyway.

Mr. Davis moved for suppression of the evidence arguing that the consent was invalid because it was not voluntary. His motion was denied. As a result, Mr. David entered a conditional plea reserving the right to appeal the illegal search and seizure question.
The New Mexico Court of Appeals found that there was no voluntary consent to the search. The Court laid out three requirements for voluntary consent to a search:

"First, the consent must be unequivocal and specific, second, the consent must be given without duress or coercion, and third, the first two factors must be viewed with a presumption against the waiver of constitutional rights."

The Court found that the first requirement of a specific and unequivocal consent had been met. However, the Court determined that the second had not. Instead, the Court found that the consent had been given under duress and coercion. In holding that the consent was given under duress, the court cited the helicopters, the numerous armed law enforcement, the suggestion that refusal was futile, and the fact that from the defendant's perspective, the search was already under way.

Perhaps a more subtle approach would have been warranted under the circumstances given the fact that it was a greenhouse, not a mobile meth lab, and it was Norman Davis, not Tony Montana. In any event, a softer approach would have avoided the suppression of evidence and dismissal of the claims.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established in New Mexico that a law enforcement officer cannot extend the scope of a traffic stop beyond the initial basis for the stop in the absence of fairly restrictive circumstances. However, the issue of a passenger's right to challenge the scope of the ensuing investigation had not been specifically addressed until the recent New Mexico Court of Appeals case of State v. Portillo.

Portillo involved a routine traffic stop. The defendant, Portillo, was a passenger in the car. The officer went through the standard procedure of requesting the driver's license, insurance and registration. As he was conducting the investigation, the officer noticed that the defendant passenger "remained looking straight ahead with his hands in his lap, avoiding eye contact with Officer Thatcher and only glancing furtively at him once when Officer Thatcher moved." The officer found this behavior suspicious thereby expanding the scope of the traffic stop asking the driver and later the passenger whether there were drugs or weapons in the car and for consent to search the vehicle.

Both the driver and the defendant denied the presence of drugs or weapons but both consented to the search. Naturally, drugs were found and the defendant was charged with possession of narcotics. The defendant entered a conditional plea reserving his right to appeal the constitutionality of the search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

There were a number of interesting points addressed in the case. First, the Court noted that the alleged suspicious behavior was insufficient basis for expanding the investigation beyond the speeding investigation. The court noted a number of cases in New Mexico that clearly state that nervous behavior alone does not give rise to the reasonable suspicion necessary to expand the scope of a traffic stop.

Second, the Court addressed the defendant's standing to challenge the search of the vehicle. It is well established that a passenger has no legal standing to challenge the search of a vehicle. In short, the passenger has no expectation of privacy in this situation. However, the passenger can challenge both the stop and the subsequent expansion of the investigation beyond the scope of the stop since it effectively results in a seizure of the passenger by law enforcement. The passenger has an equal right to be free of illegal search and seizure as does the driver.

The Court noted that Article II, Section 10 provide greater protection than the 4th Amendment under federal law. Under federal case-law including United States Supreme Court precedent, law enforcement is given significantly greater latitude in extending the length and scope of a traffic stop. The officer may extend the scope of the investigation if reasonable suspicion of other crimes surfaces during the routine traffic investigation. The Court noted that under Fourth Amendment analysis, the scope of investigation and questioning may be expanded so along as the length of the stop is no longer than "the time required to conduct a reasonable investigation into the initial justification for the stop". In other words, under the 4th Amendment, the officer is given significant leeway in the scope of his "traffic" investigation.

As in many situations, the New Mexico Constitution provides greater protection that does the 4th Amendment. Under Article II, Section 10, there is no such latitude defined by the amount of time or inconvenience to the defendant which is inherently vague and susceptible to abuse. Unrelated questions beyond the scope of the traffic stop may be asked only when there is independent reasonable suspicion for the questioning, issues of officer safety suggest further questioning, or where the interaction has developed into a consensual encounter. Again, nervous behavior is not enough. Nor was there any reasonable basis for believing there were weapons or threats to officer safety. Finally, the defendant was already seized and therefore the encounter could not by definition be consensual since there was nothing suggesting that he was free to leave.

Collins & Collins, P.C.
Albuquerque Attorneys

In the recent case of State v. Olson, the New Mexico Court of Appeals addressed a police officer's authority to question a person about unrelated crimes after pulling him over for a traffic violation. The Court concluded, consistent with recent New Mexico Supreme Court search and seizure case-law, that questioning following a traffic stop must be limited in scope to issues related to the traffic stop itself.

A little after midnight on December 2007, the subject officer was parked in his patrol car in an alley behind a convenience store in Albuquerque. He then saw the defendant, Gunnar Olson, drive his car into the alley, then back out and continue driving. The officer found the behavior suspicious "giv[ing him] the impression like, oh no, the police." The officer followed Olson and pulled him over for a traffic stop based on an expired temporary tag.

Upon approaching the vehicle, the officer found that Olson had a male transvestite known to be a prostitute by the officer. The officer asked Olson to exit the vehicle to question him about the passenger. Olson admitted the passenger was a prostitute but stated that he was just giving him/her a ride. While questioning Olson, the officer noticed and began questioning him on his fanny pack. The officer then ordered Olson to place the fanny pack on the hood of the car. Upon request by the officer and as Olson was retrieving his ID from his fanny pack, the officer asked if he could take a look into the pack to make sure there were no weapons. Upon inspection, the officer found several crack pipes. Finally, the officer asked Olson where his crack was and Olson admitted it was in his front pocket.

Olson was charged with possession of a controlled substance. He moved for suppression of the evidence as an unlawful search and seizure under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution.

The Court applied the two-part test set forth in the recent 2011 New Mexico Supreme Court Case State v. Leyva to determine the reasonableness of the officer's questioning during a traffic stop. First, the stop must be justified from its inception (expired tags in this case.) Second, all questions asked during the investigation of a traffic stop must be "reasonably related to the initial reason for the stop." There are few and limited exceptions to this requirement. Citing Leyva, the Court stated that "[u]nrelated questions are permissible when supported by independent reasonable suspicion, for reasons of officer safety, or if the interaction has developed into a consensual encounter."

The court further wrote that to allow a police officer "carte blanche ... to stop any vehicle late at night whenever he saw a driver and a known prostitute in the vehicle, to require the driver to exit the vehicle, and to question the driver and the passenger regarding their relationship" would be "tantamount to a seizure of a driver based on the mere presence of a passenger known to have committed a past criminal act ... such a seizure ... or extended detention ... is closer to arbitrary or harassing police conduct than to society's need for reasonable law enforcement investigative activity."

The Court, as in Leyva, recognized that Article II, Section 10 of the New Mexico Constitution provides greater protections than does the federal law under the 4th Amendment. It was admitted by the officer that the stop was based upon the expired tags. Though interesting, it was thus unnecessary to address the issue of stopping every person in the presence of a known prostitute, or any other criminal for that matter. Questioning about the prostitute was well beyond the scope of the initial stop, the expired tags. So the State does not get to the officer safety justification of searching the fanny pack as this followed upon the heels of illegal questioning.

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Vest, the New Mexico Court of Appeals found that a confidential informant's report that the defendant, Shane R. Vest, was selling marijuana was not enough to justify a search of his house under the search and seizure protections of the 4th Amendment and New Mexico Constitution, Article II, Section 10 because the State had failed to establish the informant's veracity.

The informant participated in two controlled purchases of marijuana and told police that he observed Mr. Vest handling between one-quarter and one-half pound of marijuana in his trailer in Logan, New Mexico. A police officer staked out Mr. Vest's trailer on four separate occasions and observed vehicles arriving at a rate of between two and seven per hour. Each visitor stayed at the trailer for just five minutes. This behavior was consistent with drug-trafficking, according to the police.

When the police acted on a warrant and searched Mr. Vest's trailer, they found currency, guns, ammunition, marijuana, scales, packaging materials, and drug paraphernalia. The defendant entered a conditional plea to distribution of marijuana and possession of drug paraphernalia reserving his challenged to the search and the district court's denial of his Motion to Suppress.

The Court overturned Mr. Vest's conviction, finding that the issuance of the warrant had violated his rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution, both of which require probable cause before a search warrant is issued.

The Court applied the five-prong test of In re Shon Daniel K., which says, "Reliability of an informant may be established, among other ways, by showing that: (1) the informant has given reliable information to police officers in the past; (2) the informant is a volunteer citizen-informant; (3) the informant has made statements against his or her penal interest; (4) independent investigation by police corroborates informant's reliability or information given; and (5) facts and circumstances disclosed impute reliability."

The State disputed the first and fourth factors applied in this case, but the Court found that the State failed to meet its burden for either factor. First, the Court agreed with the defendant that "the affidavit merely contained conclusory assertions, rather than any actual evidence that the informant had provided reliable information in the past," thereby failing under the first factor.

Second, because there was no "timely corroboration" of the informant's information, the police officer's observation of suspicious activity consistent with drug trafficking did not support the informant's claim that the defendant "had present possession of marijuana."

In short, the New Mexico Court of Appeals strictly enforced the protections under the 4th Amendment and Article II, Section 10. The protections against unlawful search and seizure are strictly applied in New Mexico. In fact, Article II, Section 10 provides even greater protection than federal law in keeping with New Mexico's heightened protection of individual rights to privacy above and beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The recent New Mexico Court of Appeals case of State v. Crane illustrates the high level of protection against unlawful search and seizure afforded those in New Mexico under the New Mexico Constitution, Article II, Section 10.

The case involved a meth lab set up in a motel room. The police received an anonymous call presumably from another guest complaining of a chemical smell emanating from the defendant's room. Two agents from the Clovis drug task force went to the motel to investigate.

Upon approaching the room, neither officer could detect a chemical odor coming from the room. While conducting surveillance of the room, the agents saw one of the residents taking garbage to the motel dumpster. The agent looked into the dumpster to view an open box with latex gloves. No other contraband was detected. However, as the agent was searching the contents of the open box behind the dumpster, an unidentified resident dumped several sealed garbage bags into the dumpster.

Without first obtaining a warrant, the agents opened the sealed garbage bags finding a variety of meth production tools and materials. The residents of the room, including Crane, were charged with trafficking methamphetamine and possession of drug
paraphernalia.

The defendant moved to suppress the evidence under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The trial court agreed with the defendant suppressing the evidence for illegal search and seizure under Article II, Section 10.

The Court from the outset noted that Article II, Section 10 provides greater protection than the 4th Amendment under federal law. The Court cited the divergence of the New Mexico Courts from the 1988 U.S. Supreme Court decision in California v. Greenwood where the Court found that there is no expectation of privacy in garbage. The New Mexico Court of Appeals in the 2006 case of State v. Granville rejected the argument in Greenwood that there is no reasonable expectation of privacy in garbage which is "readily accessible to any member of the public."

The Court in Granville found that "individual's garbage reveals evidence of a person's most private traits and intimate affairs." The court in Granville found that when a person places garbage in a sealed opaque bag protecting it from view, there is a reasonable expectation of privacy.

Notably, the Granville decision dealt with garbage disposed of at a private residence, not a motel. The Court in State v. Crane refused the State's argument that motel guest have a lessened expectation of privacy in garbage dumped in the motel dumpster.

The State argued that this garbage was particularly vulnerable to intrusion by other motel guests and/or vagrants and homeless people. The court flatly rejected this reasoning stating, "There is a difference between a homeless person scavenging for food and clothes, and an officer of the [s]tate scrutinizing the contents of a garbage bag for incriminating materials."

The Court in Crane cited the 1964 U.S. Supreme Court case of Stoner v. California which long ago recognized that motel guests do not forfeit their privacy rights by virtue of checking into a motel. The Court in Stoner held that motel and hotel guests have privacy interests comparable to those in the home.

In short, motel guests are entitled to privacy as are any other citizens. In addition, contrary to federal law, private residents and motel guests alike in New Mexico have an expectation of privacy over their garbage. Thus, law enforcement must obtain a warrant prior to searching sealed garbage bags, whether at a person's home or at a motel. To do otherwise, will as here result in a suppression of the State's evidence.

Collins & Collins, P.C.
Albuquerque Attorneys

Because computers store such a large volume and variety of documents, a police search and seizure of your computer during is often a far greater intrusion on your privacy than a normal search would be. Computers can hold anything from banking records to e-mails to text documents to photos. Technology is advancing at an astounding rate, and hard drives can now store enough data to fill a warehouse.

A warrant to search your house for specific evidence doesn't give police carte blanche to search every nook and cranny for evidence of unrelated crimes. For example, a warrant to search for illegal firearms doesn't allow police to read your financial documents for evidence of tax evasion. Nor does a warrant to search your computer for specific evidence give police the right to open and examine every file on your hard drive.

This issue is still in debate, so you should consult with an Albuquerque criminal attorney with up-to-date knowledge on the latest case law, but here are some of the main arguments your attorney may wish to present that a computer search was improper.

Police can do searches for specific keywords, and computer forensic experts have advanced tools that can filter files based on different criteria. They do not need to open each file and inspect its contents to look for relevant evidence as they might do when looking through a file cabinet.

Imagine that a search warrant specifies that police can search your computer for e-mails relating to suspected fraud. E-mails stored on your computer have a identifiable file extensions. Police should not review image files or other unrelated file extensions since this would exceed the scope of the warrant. On occasion, law enforcement will stumble on to evidence of other crimes as they unlawfully peruse the contents of a suspect's computer. In cases where the scope of the warrant has been exceeded, a criminal defendant may want to challenge the scope of the search. A search may be unlawful under the 4th Amendment if it exceeds to legal scope of the warrant meriting the suppression of any illegally gathered evidence.

Because these issues are complex both legally and technologically, it may be necessary to obtain expert computer forensics assistance in figuring out exactly what transpired during the search of your computer. In order to determine the scope and legality of a search, it may be necessary to retrace the computer search. This is not a simple process requiring expert assistance which is well beyond the aptitude of most criminal defense attorneys (including this one).

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established that a woman's purse is protected against unlawful search and seizure. Time and time again, the courts have ruled that "a purse is the type of container with which a person possesses the highest expectation of privacy."

The limits of these protections were tested in the recent New Mexico Court of Appeals case of State v. Tiffany Bond. In the Bonds case, the defendant was convicted on one count of possession of a controlled substance, fourth degree felony. The defendant had entered a conditional plea reserving her right to challenge the legality of the search and seizure of the evidence against her.

In a nutshell, Ms. Bond was a passenger in a stolen vehicle. The stolen car was tracked by GPS and pulled over. During the ensuring investigation, the police officer turned his sights on Ms. Bond's purse. Ms. Bonds acknowledged that the purse was hers but disavowed ownership of a smaller black bag in the purse which was visible to the officer. Due to Ms. Bond's denial of ownership of the black bag, the officer removed it from her purse, searched it and found the meth with which she was charged.

The defendant on appeal argued that she had not consented to the search of her purse and therefore the search and seizure of the black bag was illegal under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The state did not deny that there had been no consent to search the purse or the black bag. However, the state argued that because Ms. Bonds had disavowed ownership, no consent to the search was necessary to search the black bag. To hedge its bets, the State argued in the alternative that the search was legal under the "plain view doctrine."

The Court of Appeals disagreed on both grounds stating the search was illegal under the 4th Amendment. As such, the Court found it unnecessary to enlist the broader protections of New Mexico's Constitution.

The Court began with the basic premise that warrantless searches are presumed unreasonable with the burden on the State to prove the search reasonable. The Court shot down the argument of the State that denial of ownership necessarily waives the need for consent. The Court recognized case law to the contrary. However, in this case, the Court recognized that the denial of ownership was likely simply an attempt by the defendant to escape responsibility for the drugs in case they were discovered. The Court also recognized that disavowal of ownership of the black bag did not waive protections over the purse itself from which the bag was seized.

The Court finally addressed the State's "plain view" arguments in short order. The plain view doctrine requires that the evidence be not only plainly visible to the officer but also that the incriminating nature of the evidence be plainly apparent. Clearly, a black bag by itself does not and should not elicit suspicion sufficient for search and seizure and the Court ruled as much.

In short, a suspect admitting ownership of a purse but denying ownership to the contents does not give an officer the right to search the contents. It is not hard to imagine how a contrary ruling would lead to significant abuses by law enforcement.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court case of State v. Guthrie addresses the rights of defendants in probation violation hearings to due process and confrontation of the State's witnesses. The court determined that the rights of probationers in probation violation hearings were measured on a "sliding scale with extremes at either end and much balancing and weighing of competing interests in between."

The facts of the Guthrie case are pretty straightforward. The defendant failed to complete a residential treatment program required under the terms of his probation. The probation officer that filed the probation violation report had been relocated and was unable to attend the hearing. In her place, her supervisor testified to the contents for her report and the contents of the probation file. The supervisor had no direct knowledge of the probation violation and had never met or spoken with the defendant or the residential treatment facility.

The defendant did not dispute that he had not completed treatment and it was taken as an undisputed fact. The defendant's objections at the probation hearing were strictly related to the violation of his right to confront and cross examine his probation officer. The district court found the evidence of violation sufficient for the revocation of defendant's probation. The defendant filed an appeal arguing a violation of due process and his right to confrontation of witnesses.

The Court cited the U.S. Supreme Court Morrissey v. Brewer for the proposition that probation revocation hearings are rather informal depriving a defendant not of an absolute liberty but only a conditional liberty under the terms of probation. Because revocation of probation addresses on conditional liberties, the Court reasoned that the full spectrum of criminal trial rights do not apply.

Under Morrissey, live testimony of probation officers is not always required. Instead, the court may rely on a variety of hearsay evidence such as affidavits, depositions, and documentary evidence. The Court stated further that it had no intention of preventing the State "from developing other creative solutions" suggesting ever greater latitude for courts and prosecutors in probation violation settings.

In short, the Court in Guthrie found that the live testimony of the defendant's probation officer was not necessary. The Court also emphasized that whether or not defendant completed treatment was a simple factual determination not susceptible to subjective interpretation. The failure of the defendant to offer any rebuttal evidence to suggest otherwise weighed heavily on the Court's ruling. The Court suggested that due process and the right to confrontation might require live testimony where the violation of probation was in dispute and/or relied on more subjective criteria.

The specific findings of the case are not so troubling as the broad parameters the Court set forth for probation violations. As it stands, the due process and confrontation rights of probationers are tenuous at best. After all, a sliding scale of justice with creative prosecution is not where a defendant would like to be.

Collins & Collins, P.C.
Albuquerque Attorneys

Rule 5-503 of New Mexico District Court Rules of Criminal Procedure requires that any State witnesses be made available for pretrial interview by the defense. There are comparable rules for both Metropolitan Court and Magistrate Court. The New Mexico Court of Appeals case of State v. Curtis Harper lays down some guidelines on the application of the Rule. In so doing, it also added a significant level of confusion.

The Harper case involved charges of criminal sexual penetration of a minor. Among the State's witnesses was an expert psychologist. The State failed to make the expert available for interview by the defense despite several direct orders from the district court judge to do so. The State's reason for refusing the interview was that the defense had failed to pay the doctor's expert witness fees. The district court judge determined that Rule 5-503 overrode any such considerations and ultimately suppressed the testimony of the State's expert. The State appealed the suppression of the expert.

The Court of Appeals ruled that the State did have duty to provide the witness for interview. The Court ruled that the requirements of Rule 5-503 were unconditional. The Court ruled that once the State undertakes the duty to provide interviews, those interviews must be provided. The Court suggested that the State obtains some advantage by taking on responsibility for the interviews since the State is then present and can hear the questions asked by the defense and prepare accordingly. The State cannot both insist on participation in the pretrial interview process and refuse to make its witnesses available.

The Court specifically addressed the State's position that an expert could be withheld from the defense until expert witness fees were paid. The Court stated that this position was unacceptable and that the prosecutor could not stand as a "preemptive guarantor of the fee." The Court then stated that any prosecutor engaging in this conduct would see its case suffer the consequences.

So far so good for the defendant's 6th Amendment rights to confrontation of witnesses. It appeared the Court was moving toward a ruling that would disallow hoisting the expense of the State's experts on to the defense and that such behavior would result in the suppression of the expert's testimony. Unfortunately, the Court declined to do either.

Instead, the Court suggested that the defense could and would in fact be compelled to pay expert witness fees in order to interview the State's expert witnesses in a criminal case. In the end, the Court also stated that the failure of the State to provide the interviews in direct violation of the district court's orders to do so was not so prejudicial to the defendant as to merit suppression.

In the end, the whole judicial exercise was rendered rather meaningless. The Court in essence stated that the rules requiring the State to make witnesses available to the defense were unconditional; that an expert could not be withheld for failure to pay fees; and that the State's case would suffer in the event that it failed to abide by the rule.

After saying all this, the Court then ruled such behavior would not result in suppression. The ruling is quite puzzling as it is hard to see how the State's case has suffered despite clear violation of both the rules of procedure and the Court's own dictates. The ruling in fact simply added confusion to an already confusing area of criminal procedure.

Collins & Collins, P.C.
Albuquerque Attorneys

There are some widely held misconceptions regarding a defendant's Miranda rights. Defendants often complain that police questioned them without the presence of an attorney. What they do not understand is that a police officer may question them without an attorney so long as they are not in custody.

"In custody" is in fact fairly narrowly construed. A suspect is considered to be in custody if there was no freedom to leave. If the suspect was not free to leave and the police continue to question him or her, then this would be considered a custodial interrogation.

There is a careful distinction made by the courts between a custodial interrogation and investigative questioning. Police officers are free to ask an individual questions, even when that person is a suspect, so long as the questioning is voluntary. Once the questioning passes into the domain of involuntary questioning, Miranda rights kick in. At that point, the suspect must be read his or her rights which include the right to an attorney.

Whether or not the questioning is involuntary thereby constituting a custodial interrogation is measured by whether a reasonable person would believe he is free to terminate the questioning. In some cases, this matter is quite easily resolved. In others, the "reasonable man" would have to quite bold to simply leave the scene.

For instance, in the 2009 New Mexico Court of Appeals case of State v. Smile, the defendant pulled up voluntarily in his vehicle, voluntarily left his vehicle, and then voluntarily walked 50 feet toward the officers yelling out that he heard the officers were looking for him. He then commenced to confess a number of acts, including suggestions of future violence, sufficient for conviction for felony domestic violence under the aggravated stalking statutes. All of this was done voluntarily by the defendant almost in a bragging tone as if to say "look at all the hell I have put her through and the hell to come if she does not come around." Needless to say Mr. Smile was convicted of aggravated stalking and his Miranda appeal was denied.

Contrast this to the 1998 New Mexico Supreme Court case of State v. Munoz. In that case, the defendant, as a suspect in a murder case, was taken by FBI investigators from his home in an officer's vehicle. The defendant was driven a mile or so from his home and questioned for an hour and forty minutes by the FBI officers. He ultimately confessed to the crime. The Court in Munoz found that despite the nature of the questioning, it remained strictly voluntary. The defendant was free to terminate the questioning and exit the vehicle or in the alternative not get in the vehicle to begin with. As such, the questioning was voluntary and not a custodial interrogation. There was therefore no obligation to advise the defendant of his Miranda rights and his confession was fully admissible.

In either case, the defendants in both the Smile and Munoz cases would have done well to shut up and ask for an attorney. In fact, any suspect or defendant would be well to shut up and ask for an attorney. It is a risky gamble to assume that confessions made to police will somehow be excluded due to Miranda violations. In fact, such evidentiary exclusions are rare. So once again, defendants should "shut up and ask for an attorney." There is certainly no harm there. It is a constitutionally protected right!

Collins & Collins, P.C.
Albuquerque Attorneys

DNA testing has resulted in the exoneration of 266 innocent people in the United States. Among these were included 17 who were on death row.

Many more remain behind bars today, wrongfully convicted. Nobody knows the true scope of the problem. Nobody knows how many innocent men and women remain in prison. More disturbing, nobody knows how many more will be wrongfully convicted this week, this month or this year based upon flawed and unreliable forensic science or eyewitness misidentification. These are in fact more common than the more publicized DNA cases.

The Innocence Project provides pro-bono post-conviction legal assistance to individuals that are seeking to prove their innocence with DNA testing. Just as importantly, the Innocence Project works tirelessly for reforms needed to protect innocent Americans from wrongful prosecution, conviction and incarceration. Take a look at their stories. Some look remarkably familiar, a neighbor, a friend, a family member.

With your support, the Innocence Project is fighting to overturn wrongful convictions and enacting reforms to lessen the risks of wrongful convictions in the future.
To continue their work, they rely on donor funding. Make a Contribution now, even if it is only $10.00. Each contribution, no matter how small, is step toward a more fair and just criminal justice system.

I hope you will be as generous as possible. Your commitment to justice means everything to the innocent men and women who have been wrongfully convicted. it means everything to their families left behind. It means everything to the next innocent man or woman who will suffer a similar fate if we do not insist on better from our criminal justice system. And a better criminal justice system needs the Innocence Project.

Collins & Collins, P.C.
Albuquerque Attorneys

When dealing with illegal search & seizure issues under the Fourth Amendment protection cases, courts evaluate whether the defendant had a "legitimate expectation of privacy" in the first place.

As a general rule, courts look at both the individual's and the societal expectation of privacy for that determination. The courts will look to both the "subjective expectation of privacy" and the "objective expectation of privacy."

For instance, any person expects to have privacy while using a public restroom and the majority of people in society finds this desire of privacy reasonable. So, if police officers spy upon a person inside a restroom without a valid reasonable basis and see a packet of drugs that the person had hidden, the search is considered illegal. On the other hand, if police agents spot a weapon or drugs on the front seat of a car, the search is not protected because most people would not consider this place private since would agree that the front seat of a car is publicly exposed.

These cases are connected to what is called "the plain view doctrine". Under this rule, governmental agents can conduct warrantless searches and seize evidence of criminal activities that are in their plain view - in public - and as long as the agents have a "legal right to be in that place". The plain view doctrine even in traditional searches can become rather complicated. The proliferation of technology has greatly increased the complexity of a plain view analysis of a search.

The increasing presence of technology in our daily routines in fact may significantly erode our right and expectation of privacy. This can be seen with the growing use of surveillance video cameras in public places.

Clearly, if any person commits a serious illegal act such as drugs trafficking or robbery in front of a public camera, most would argue that police should have a right to take action without worrying about an illegal search and seizure. In fact, there is a significant body of case-law that has ruled individuals videotaped in public view have no reasonable expectation of privacy. As such the use of video evidence could not be challenged under the 4th Amendment. Most have no problem with stripping criminals of their privacy rights.

The more difficult issue is the encroachment on the privacy of law-abiding citizens through the use of these videos. For the instance, there is a growing trend to install video cameras over public roads, highways, shopping centers, schools and a host of other public places. The reality is that there are many private acts, other than criminal acts, that occur in public.

Keeping in mind that your car is considered a public place to the degree it's interior is in plain view. Would any of us really want everything that occurs in our car to be exposed to public view? There is answer is probably no but the reality is that it already is. So as is often the case, our zeal in tracking down bad guys has left the great majority of good guys quite exposed.

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment to the U.S. Constitution provides limits to law enforcement search and seizure procedures in order to protect individuals' privacy. Under the 4th Amendment, unreasonable searches and seizures carried out by law enforcement officials are forbidden, Perhaps most importantly, any evidence gathered in violation of the 4th Amendment is inadmissible in Court.

The 4th Amendment prohibits police officers from entering your house or your workplace, searching your backpacks, purses, or any other private personal item, among other private matters, in the absence of either probable cause or consent to the search.

Unfortunately, the protections of the 4th Amendment do not extend to illegal searches and seizures by non-governmental agents. Essentially, individuals may be subject to unreasonable and otherwise illegal search and seizure at the hands of a host of private actors such as landlords, employers, store employees, private security guards and the like. The New Mexico Supreme Court held as much in State v. Luis Santiago.

The lack of protection means that should a later court action be commenced, whether civil or criminal, 4th Amendment rights and remedies do not generally apply. As such, illegal search and seizure may as a basis for excluding the evidence

A not too uncommon example will illustrate the point. Mall security guards can be quite aggressive. On occasion, based upon pure hunch (to be generous), they may choose to search a teenager's backpack. In so doing, contraband such as marijuana or other drugs may be discovered. Mall security may then hold the teenager until police arrive, who coincidentally are often conveniently located nearby.

Even if the security guard lacked probable cause to search the teenager's backpack, the search would not be considered illegal. Moreover, the drugs would be admissible so long as it is not found that the mall security was acting as an arm or under the direction of law enforcement.

Determining whether or not the mall security was acting under the direction of law enforcement can be challenging at best. Perhaps more problematic are situations where mall security engage in profiling or other constitutionally suspect behavior that gives rise to the search to begin with. Unfortunately, this may be far more common than we would like to believe. This type of conduct gives rise to a whole new set of issues beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

Expungement of a criminal record is very difficult, and in New Mexico very rare. In order to obtain an expungement, the defendant/petitioner must show extraordinary circumstances justifying the expungement. As it happens, this is a near impossible standard in New Mexico as the law now stands.

The 2010 New Mexico Court Appeals case of State v. C.L. makes clear that adverse employment consequences do not rise to the level of "extraordinary circumstances." Rather, the court stated that adverse employment consequences are not an extraordinary consequence but a natural result of a criminal charge or conviction.

State v. C.L. involved an individual that was charged with first degree felony child abuse resulting in great bodily harm. She pled to 4th degree felony child abuse on a conditional discharge. The conditional discharge indicated that upon successful completion of the terms of 5 years of probation, there would be no adjudication of guilt. In fact, the petitioner was released early from probation due to her performance on probation.

The petitioner was denied several employment opportunities due to the charges despite the fact that there was no adjudication of guilt. She therefore sought to have her the charges expunged and all records related to the charges sealed.

The Court of Appeals recognized that many states allow district court judges authority to expunge criminal records. The Court, however, refused such authority for New Mexico's district court judges.

Petitioner's arguments of extraordinary circumstances based upon the fact that she was only an accessory, she entered an Alford plea, she was granted a conditional discharge, she was released early from probation and finally that she was suffering adverse employment consequences collectively did not amount to "extraordinary circumstances."

The Court did not expressly set forth the criteria necessary to establish "extraordinary circumstances." However, the Court in addressing the shortcomings of the petition did suggest some very strict parameters for an expungement. The Court referenced the 1997 New Mexico Court of Appeals case of Toth v. Albuquerque Police as follows:

" in Toth, Defendant does not challenge the accuracy of the information "in her record[,] . . . the general interest of law enforcement agencies in retaining" the criminal records, or "the lawfulness of the underlying arrest," and she has not demonstrated "that the dismissal of [the] charges against [her are] predicated on factual innocence."

In short, based upon this language, it appears that to show "extraordinary circumstances" necessary for an expungement, the defendant/petitioner would have to show inaccuracies in her criminal record, constitutional violations suggesting unlawful arrest, and/or a wrongful conviction. This is an extraordinarily high hurdle that very few defendants will be able to meet.

Collins & Collins, P.C.
Albuquerque Attorneys

The 6th Amendment's confrontation clause is crucial in criminal trials because it allows defendants to have a fair trial which the framers spelled out in the Constitution of the United States. The 6th Amendment of the Constitution protects an individual's right to confront their accuser at trial in a criminal case.

The confrontation clause bars the admission of hearsay evidence unless the out of court declarant testifies at trial. In other words, the statements of a witness or alleged victim cannot be admitted into court without the witness' or alleged victim's in-court testimony.

This is particularly important in domestic violence cases. When an alleged victim accuses a person of domestic violence, the alleged victim's and any other witness' statements can only be used against the defendant if they show up to court and testify. There are few exceptions to the rules prohibiting hearsay testimony. These rules would rarely apply in the typical domestic violence case.

At trial, the defendant has a right to cross examine the alleged victim and other State witnesses to determine the truthfulness of their statements. When an alleged victim does not show up to trial, the State usually does not have the necessary evidence to present their case.

By only presenting evidence of a crime without actually having a victim appear in court, the prosecution is attempting evidence based prosecution. Evidence based prosecution which is often attempted by prosecutors in domestic violence cases faces many challenges due to hearsay objections and confrontation issues under the 6th Amendment.

For example, prosecutors will frequently obtain the alleged victim's 911 call. As part of evidence based prosecution, the State may attempt to use the 911 tapes to prove that the defendant committed the alleged act of domestic violence such as battery or assault on a household member. In doing so, the State may argue that this is public record and try to admit this evidence.

The State is attempting to recreate the drama of the alleged incident to a jury through the 911 call. The State is also attempting to illicit statements from the 911 call which may implicate the defendant in wrong-doing. However, once the 911 operator begins to engage in any type of questioning, the statements are then testimonial hearsay and the confrontation clause bars this evidence from use at trial. Perhaps just as problematic is the identification of the caller. This issue would be raised as an objection for failure to authenticate the caller's identification.

If the State's only case is evidence based prosecution without eyewitness testimony, the State has an uphill battle when presenting its case. The prosecution will have a hard time overcoming the evidentiary objections to hearsay and authentication.

Collins & Collins, P.C.
Albuquerque Attorneys