Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals draws the parameters of investigatory stops in State v. Eric K. An anonymous call was made to 911 reporting that a female had pulled a gun and took the caller's money during an apparent drug transaction. A police officer went to the area where the alleged crime had occurred to investigate. Upon arrival, he noticed two male youths that he believed looked a little bit nervous but "nothing real suspicious."

Based upon the 911 report and his belief that the two youths looked nervous, the officer initiated contact with the youths. As the officer approached, the youths began to enter a laundromat. The officer called for them to come over to speak with him. During the conversation, the officer instructed one of the children to remove his hands from his pockets. At that time, one side of the child's coat hung lower than the other prompting the officer to pat down the child. A gun, drugs and drug paraphernalia were discovered in the pat down search. The child moved to suppress all of the evidence as fruits of an illegal search & seizure. The trial court denied the motion to suppress. The New Mexico Court of Appeals reversed.

An officer is always free to initiate a voluntary encounter with a citizen. However, once the circumstances are such that a reasonable person would not feel free to leave, the encounter turns into a seizure for which there must be reasonable suspicion. Mere proximity to a reported crime does not constitute reasonable suspicion,. Nor does looking a little nervous. Instead, the court reiterated the well-established rule that there must be "individualized, articulable, reasonable suspicion" at the time of the seizure which the court found in this case to be when the officer ordered the child to remove his hands from his pockets.

The 4th Amendment provides significant protection against illegal search and seizure. This includes cases where officers without reasonable suspicion, but merely on a hunch or perhaps simply in the process of fishing for evidence, initiate an non-voluntary investigative encounter with a citizen. The 4th Amendment attempts to balance individual rights against community and officer safety.

This case points out the tension between these interests. On the one hand, the child had a gun, an illegal act and perhaps a danger to the community. On the other, the officer had no basis for investigating the child. It is a difficult balance for law enforcement and the courts as the interests on both sides are extremely important. However, the 4th Amendment right against unlawful search and seizure must not be compromised on a case by case basis where an officer just happens upon a crime through an illegal investigation. To allow the end result of an illegal investigation to justify the unlawful police conduct would render the 4th Amendment meaningless. As much as a case like this rattles our insecurities, the alternative is far worse.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The recent 10th Circuit Court of Appeals case of US v. Silva-Arzeta brings both further illumination and concerns to the recent Arizona immigration enforcement bill. There are many in New Mexico clamoring for Arizona style immigration enforcement in our state. This case will provide little comfort to those already concerned about this prospect and the forfeiture of individual rights that it would bring.

In a nutshell, the defendant was stopped by officers while in his car leaving his apartment on suspicion of drug trafficking. The officers questioned the defendant in English. They searched his vehicle finding meth and $1038 in cash. The officers alleged that the defendant then consented to the search of his apartment. Really! That's what they alleged. They stopped him in his car, he is drug trafficker, and he consented to the search of his apartment. Drug dealers everywhere would be appalled by his lack of professionalism. All this was done in English.

After he was arrested, the defendant was finally provided a Spanish speaking interpreter for further questioning at the station. The interrogation at the station was conducted entirely in Spanish. The officers that obtained the consent to the search, searched the defendant's car and apartment and placed him under arrest stated that the defendant's English was fine. It is not clear why the station interrogation was in Spanish given the defendant's mastery of the English language. Perhaps it was because he did not speak English as testified to by his employer who stated that the defendant spoke little English and that he had to use a bilingual employee to assist him in communicating with the defendant on the job.

The defendant was acquitted of all charges in the first trial. The state was able to obtain a retrial and the defendant was then convicted on all counts. The defendant appealed arguing that all evidence seized in the case was seized in violation of the 4th Amendment prohibitions against unlawful search and seizure. The defendant argued that the consent to the search was not and could not be consensual due to his inability to adequately understand English. The 10th Circuit affirmed the conviction.

The court recognized that any warrantless search is presumed unreasonable. One exception of course is a consensual search. The Court stated that "Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error." In short, the question is left to the jury who judgment should not be second guessed. The most obvious question being which jury should we rely on? The first jury that acquitted him on all counts, or the second jury that convicted him?

The court recognized established case-law that "invalidated searches based on consents ... given by Hispanics who did not comprehend what they were doing." Despite the case-law, the court affirmed the conviction stating "Mr. Silva-Arzeta could converse in English sufficiently well to consent to the search." Naturally, no guidance was provided for the definition of "sufficiently well" effectively leaving it up the judgment of law enforcement.

Keep in mind this is what happened here. The defendant's English speaking ability was entirely evaluated by the arresting officers. The testimony of the defendant's employer was ignored as was the defendant's own testimony. And none of the conversations with the defendant were recorded. Not at the scene, and not at the station during the Spanish language interrogation. None of the officers saw fit to record these conversations despite the ease with which it can be done with the officers' standard issue belt-tapes.

These issues are even more problematic when the court states: "Mr. Silva-Arzeta's concerns, however, are the bread and butter of litigation. Much of the controversy at trials could be minimized, if not eliminated, if all acts were videotaped and all conversations recorded." The court further recognized approvingly the defendant's citation of Justice Department guidelines that suggest this practice. However, the court dismissed these as mere suggestions of best practice that do not give rise to constitutional concerns.

In short, a Spanish speaker has no right to protection against unlawful search and seizure. The defendant could be held to have consented based purely upon the self-serving testimony of the arresting officers as in this case where there was no mention of other corroborating witnesses to the defendant's ability to understand and speak English. Finally, officers are not required to record any of the encounter, unless they so choose despite the obvious evidentiary value of a recording.

The folks of New Mexico might want to keep an eye on the immigration enforcement debate in the upcoming elections. It's not just drug dealers that will suffer if New Mexico heads down this path of Arizona. It is not just drug dealers that benefit from the 4th Amendment protections against unlawful search & seizure. Use your imagination, I am out of space, and out of time.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

A bench warrant will typically toll the running of the 6 month speedy trial rule under the 6th Amendment. The time during which a defendant has absconded from the court will not run against the prosecution. In addition, there may be other extensions of time either for the benefit of the defense, or for good cause, for the State that will extend the 6 month rule.

The New Mexico Court of Appeals in State v. Martinez has addressed these two issues from an interesting perspective. In Martinez, a bench warrant was orally issued by the court due to the defendant's failure to appear at a hearing. However, a signed warrant was never filed with the court. Likewise, due to the failure of the defendant to appear at the hearing, the State had requested an extension of the 6 month speedy trial rule. Again, the Court issued an oral ruling extending the speedy trial rule without filing a signed order.

Neither of these oral orders was entered with the Court until after the 6 month rule had elapsed. The defendant with counsel then came to court armed with a Motion to Dismiss under the speedy trial rule. The District Court granted the motion and dismissed the case. Interestingly, the district court had made the mistake in its failure to file the written orders and accepted the consequences of the error.

The prosecutor filed an appeal arguing that the oral orders should be fully enforced, and that the dismissal was fundamentally in error. The New Mexico Court of Appeals disagreed stating that to show fundamental error, the state must "demonstrate the existence of circumstances that 'shock the conscience' or implicate the fundamental unfairness within the system that would undermine judicial integrity if left unchecked."

The Court of Appeals refused the State's arguments indicating no such error was present. In doing so, the Court pointed out that the State had 49 days during which it could have cured the problem with the oral orders prior to the expiration of the six month rule. The Court cited prior cases for the proposition that it is up to the State to get a case to trial. It is not the defendant's duty to bring himself to trial.

This case at first seems somewhat difficult to reconcile with State v. Garza where the New Mexico Supreme Court set forth speedy trial guidelines; 12 months for simple cases, 15 months for cases with intermediate complexity, and 18 months for complex cases. However, in that case, the State had moved for and been granted extensions of time. In Martinez, though the State had been granted extensions of time, the oral orders were deemed ineffective for these purposes.

It seems that despite the beating speedy trial rights took in Garza, the 6th Amendment will not stay down for the count. Seems the constitution has a strong chin.

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The New Mexico Court of Appeals addressed the knock and announce rule in the recent case of State v. Gonzales. It is well established in New Mexico that law enforcement must first knock and announce their presence and wait a reasonable amount of time for a response before entering a residence to execute a search warrant.

The rule avoids the needless destruction of property while recognizing the sanctity of the home and the right to privacy. Failure to comply with this rule constitutes unlawful search and seizure in violation of the 4th Amendment to the United States Constitution. The Court, in its ruling, reinforced these very important protections afforded by the knock and announce rule.

In State v. Gonzales, the Court addressed a situation where it the facts indicated that the officers had not knocked and had waited only 8 seconds after announcing their presence before bursting through the front door with a battering ram. The Court determined that, under the circumstances, 8 seconds was not a reasonable amount of time to wait following announcement of their presence. The Court also deferred to the District Court's factual finding, based upon the officers' belt tapes, that the police had not knocked despite uncontroverted testimony to the contrary. As a result, the marijuana and cocaine seized from the residence was suppressed.

The Court, in determining the reasonableness of the 8 seconds, contrasted the facts in the case with several prior rulings. There are circumstances where a brief wait following announcement of the officer's presence would be deemed reasonable. The court cited several prior cases involving hotel/motel rooms and other small residences where a brief wait was justified due to the brief amount of time that it would require the resident to get to the door. A delay in these cases would indicate constructive refusal of the warrant.

Likewise, the Court indicated there might be exigent circumstances that would avoid completely the necessity of the knock and announce rule. These cases involved situations where the circumstances indicated announcement posed a danger to law enforcement. An indication that the target was attempting to destroy evidence would also obviate the need for a knock and announce.

The Court was careful to indicate that the fact that evidence might be destroyed was insufficient to override the protections of the knock and announce rule. Therefore, the simple fact that drugs were involved, which could be easily destroyed, was insufficient grounds to avoid the knock and announce rule. There must be some indication under the circumstances that the suspect was in fact attempting to destroy evidence.

State v. Gonzales illustrates the great deference the New Mexico Courts have for the 4th Amendment and the U.S. Constitution, often exceeding federal constitutional protections.

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The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in the case of State v. Winton. The defendant was charged with possession of a controlled substance and drug paraphernalia following a warrantless stop, detention and search of the defendant by police officers.

The police had obtained a search warrant for 1822 Hammett Street. Upon arriving at the scene, the police found the defendant at 1824 Hammett Street as he was entering 1822 Hammett Street. The defendant was ordered to the ground where the officer held him for about 5 minutes with the officer's boot on his neck. The defendant was then held on the ground for another 10 minutes after the officer removed his boot from his neck as the officers searched the premises of 1822 Hammett.

After conducting a search of the residence, Officer Hengst exited the residence to find the defendant lying on the ground. The officer handcuffed the defendant. At that time, he allegedly observed a knife in defendant's pocket. The defendant allegedly told the officer that he had another knife in his possession. Upon searching the defendant, the officer found a pipe with meth residue.

The New Mexico Court of Appeals took note that defendant was not on the property that was the subject of the search warrant, that the defendant was not named in the search warrant, and that the text of the warrant did not provide the officers with the authority to search and seize the defendant. The Court further recognized the longstanding precedent that a warrantless search is presumptively unreasonable under the 4th Amendment placing the burden on the State to prove reasonableness.

The Court stated an exception to the warrant rule allowing officers to detain and search those present on the subject property to prevent flight, preserve evidence, minimize risks to officers, and to facilitate the orderly completion of the search. The Court also recognized that a visitor's mere presence at a home subject to a search warrant is insufficient to justify a search of the visitor. Instead, there must be facts present that would render it reasonable under the circumstances to search the visitor. In short, the officer must have a reasonable belief that the visitor has some connection to the premises or the criminal activity. So far, so good for the Defendant?

Despite the fact that the defendant was not on the subject premises, and therefore not a visitor at all, and the fact that there appeared to be no suspected connection to the property or the suspected crimes therein, the Court found that the search and seizure of the defendant was lawful. The Court found that the search and seizure was lawful because the police had information that the subject of the warrant, not the defendant, was not afraid to shoot someone. Thus, the search and seizure of defendant was necessary for officer safety despite the lack of connection to the property or the crimes under investigation via the warrant or the threat to officer safety expressed in the warrant.

Thus, visitors cannot be searched and seized simply because of their presence on premises subject to a search warrant. However, a visitor can be detained, held down by a boot on his her neck, and subsequently searched if the police can make any suggestion of officer safety issues. This is apparently the case even where the visitor is not on the property, has no connection to the property or the crime, and was not the individual named in the warrant or the individual feared to pose threats to officer safety.

In short, under State v. Winton, a visitor or apparently anyone in close proximity to the premises can be searched and seized without any real justification as long as the officer expresses a fear for officer safety, which should not be hard for the imaginative officer. This ruling makes absolutely no sense in light of the authority recognized by the Court. The ruling effectively negates the protection of visitors against unlawful search and seizure set forth in prior New Mexico cases. Hopefully, the case will move on to the New Mexico Supreme Court where, if the 4th Amendment has any meaning In New Mexico, it should be reversed.

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New Mexico law does not allow law enforcement to take a blood draw without the suspect's consent. However, a blood draw may be taken upon the issuance of lawful search warrant. Likewise, in the absence of a search warrant, a suspect may not be forced to submit to a blood draw.

Blood draws are common in controlled substance cases. They also are used in DWI/DUI cases. However, it is pretty rare that an officer would order a blood draw in a DWI/DUI case. In the recent case of State v. Bullcoming, a blood draw was taken from the defendant under search warrant following the defendant's refusal to take the breath alcohol test and his refusal to voluntarily submit to a blood draw.

The Bullcoming case has importance for a number of reasons, most notably the admissibility of the blood draw report. Though the issue of the search warrant itself was mentioned only in setting forth the facts of the case, almost in passing, the issue is certainly not a trivial one. The defendant in Bullcoming was charged with aggravated felony DWI/DUI. The aggravated portion arose from the fact that the defendant was involved in an accident , and then promptly fled the scene. Once the officer tracked him down, the defendant refused the blood alcohol test, also grounds for aggravated DWI/DUI.

No doubt the result of the defendant's antics, the officer in Bullcoming took the rare step of obtaining a search warrant to obtain the blood draw. Unfortunately for the defendant, his blood alcohol level was .21, almost three times the legal limit, again an aggravating factor.

The more common response of law enforcement to a suspect's refusal to submit to the breath alcohol test is to simply note the refusal and charge the DWI/DUI as aggravated. Aggravated DWI/DUI carries significantly greater penalties than simple DWI/DUI. Thus the refusal can have severe consequences.

No matter how the blood draw is taken, whether voluntarily or by warrant, the suspect has the right to an independent test. In a situation like Bullcoming where the blood alcohol level comes in so high, the independent blood draw may serve only to bolster the results. In closer cases, the suspect would do well to obtain an independent blood draw. The independent test is free to the suspect so long as he or she did not refuse the blood alcohol test. So there is no good reason to waive this right in close cases.

The police officer should inform a suspect of the right to independent testing. If an independent blood test is merited, then the suspect should insist on the test even if the officer has not advised him or her of this right. In fact, the suspect should be quite vocal if the officer is resistant to the request for an independent blood test. As seen in the recent case of State v. Duarte, the presumptions are with the officer so that if he or she says he advised the suspect, it is taken as gospel.

In short, you cannot be forced to take a blood test without a warrant. If you are forced by warrant to take a blood test, you would be well advised in cases close to .08 (simple DWI/DUI) or .16 (aggravated DWI/DUI) to demand an independent blood test. However, in cases with very high levels, or cases that come in just below the aggravated .16 or simple .08, you may be very disappointed with your independent testing.

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Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

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The 10th Circuit Court Appeals addressed the 6th Amendment Right to a speedy trial in U.S. v. Seltzer. Though the constitutional protections under New Mexico law are typically more expansive than federal law, the 10th Circuit in the Seltzer case appears more respectful of the 6th Amendment than the recent New Mexico Supreme Court decision of State v. Garza.

In State v. Garza, the court set forth a sliding scale related to a criminal defendant's right to a speedy trial in New Mexico. The court suggested speedy trial parameters as follows: 1) 12 months for simple cases, 2) 15 months for cases with intermediate complexity, and 2) 18 months for complex cases. The New Mexico Supreme Court even allowed for some leeway in the these standards by stating that these time limits were mere thresholds for further inquiry.

The 10th Circuit in U.S. v. Seltzer set forth a number of considerations in the determination of whether or not a defendant's right to a speedy trial have been violated. The Court stated that a delay of more than one year from the date of arrest or indictment, whichever is earlier, was "presumptively prejudicial" to the defense. The court noted that in particularly complex cases, longer delays, even a two year delay might not be unreasonable. The court noted further that in straightforward cases, even a minor delay might be considered prejudicial and unreasonable.

The Court found that the charges against the defendant Seltzer related to counterfeiting, drug possession, and firearm possession by a felon were not complex and a delay of more than one year was presumptively unreasonable. The Court stated that even lesser delays might prove prejudicial in cases involving eyewitness testimony.

Once the presumption of prejudice has been found, it is up to the State to "provide an inculpable explanation for delays in speedy trial claims." The Court cited the 1972 United States Supreme Court case of Barker v. Wingo as follows: "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." Thus the burden quickly shifts to the State to show a legitimate reason for any delay impacting the defendant's speedy trial rights. This burden becomes harder to meet in cases involving simple charges.

Unlike the New Mexico Court in State v. Garza, there is a heavy burden on the State to justify any delay impacting the defendant's 6th Amendment right to a speedy trial. New Mexico typically zealously protects the constitutional rights of its citizens. The protections under New Mexico's Constitution are generally much broader than under federal law. In State v. Garza, the burden appears to be on the defendant to prove prejudice, rather than on the State where the burden belongs. Hopefully, the New Mexico Supreme Court will take the lead of the 10th and revisit the 6th Amendment rights that are so important to due process and a fair trial.

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A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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The 4th Amendment to the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment protections against unlawful search and seizure rests on the right to privacy proving protection against unlawful and abusive law enforcement practices that would invade that right to privacy. The protections of the 4th Amendment are broad and complex. Entire books are written on the 4th Amendment, and there are legal scholars that spend much of their careers studying and writing about the 4th Amendment. Many of the most important cases in criminal law and criminal procedure derive from the 4th Amendment as do the rights of criminal defendants.

The importance of the protections afforded under the 4th Amendment cannot be over-stated. The 4th Amendment protects at every stage of a criminal case from the initial stop by the officer, to the search of the suspect's vehicle, home, property or other belongings both before, during or after the arrest, and of course to the arrest itself.

The 4th Amendment provides protection in all variety of encounters with law enforcement. The protections stretch from the petty shoplifting offense, to DWI/DUI stops and investigations to the most serious felony offenses. Violations of the 4th Amendment have serious consequences including the exclusion of evidence seized illegally. Often, the exclusion of illegally seized evidence will result in the dismissal of the charges in whole or in part. Should the prosecutor refuse to dismiss based upon the lack of evidence, the exclusion of the illegally seized evidence can be an insurmountable obstacle for the prosecution at trial.

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The Supreme Court of New Mexico overruled the New Mexico Court of Appeals in State v. Anaya. The Court of Appeals had ruled that evasion of a DWI/DUI Checkpoint was not an illegal act and therefore could not provide the reasonable suspicion necessary for an investigatory stop. The New Mexico Supreme Court ruled that the surrounding circumstances and the evasion of the a checkpoint itself gave rise to a reasonable suspicion of DWI/DUI and thus was sufficient foundation for the investigatory stop.

State v. Anaya involved a DWI checkpoint set up outside of Farmington. The highway leading up to the checkpoint was well marked with cones, droplights, emergency lights, and signs indicating to approaching motorist the presence of the checkpoint. The defendant, Anaya, upon seeing the checkpoint, made a legal u-turn to avoid the checkpoint. She was pulled over by a police officer who was stationed nearby for these very purposes.

Anaya attempted to suppress the evidence gathered during the stop arguing that the stop constituted an illegal search and seizure in violation of the 4th Amendment. The trial court denied the motion. Anaya entered a no contest plea reserving the right to challenge the constitutionality of the stop.

The New Mexico Court of Appeals sided with Anaya finding that the u-turn was not a violation of law, nor was evasion of a DWI/DUI checkpoint without more a violation of law. As such, the u-turn and evasion of the checkpoint was insufficient for the investigatory stop. The Court also found that the checkpoint was constitutionally unreasonable under Las Cruces v. Betancourt (NMCA 1987). The Supreme Court found otherwise finding that the checkpoint was indeed reasonable and legal under the law, and further that evasion of the checkpoint itself provides reasonable suspicion for a investigatory stop.

Miranda warnings are required whenever there has been a formal arrest or a restraint of movement indicating a formal arrest. The recent New Mexico Court of Appeals decision in State v. Hernandez makes it clear that there is no such formal arrest or restraint when the suspect voluntarily converses with a police officer over the phone.

In the case of State v. Hernandez, the police were called to a home that had been receiving repeated threatening phone calls. Following each phone call, the caller allegedly fired shots into the home. Upon arrival of the officers, the caller called the home again. The officer answered the phone. The Defendant's phone number was indicated on caller ID. The caller then made incriminating statements including identifying himself as Roberto and confirming he was the shooter.

At trial, the Defendant's attorneys were successful in suppressing the statements of the Defendant as a violation of the Defendant's Miranda rights. Miranda v. Arizona requires that the suspect be under interrogation while in custody. The Court found that Hernandez was neither in custody nor under interrogation as he voluntarily initiated the phone call as well as the conversation. He was free to hang up the phone. Instead, he made the statements voluntarily.

The lesson here is clear: Stop Talking and Hang Up the Phone. It is exceedingly unwise to voluntarily give incriminating statements to a police officer over the phone particularly when you initiated the call. Miranda will not protect you here.

There were other issues regarding the rights of the Defendant to confront witnesses under Crawford v. Washington. The Court remanded the case to District Court for a determination of facts necessary for the Crawford determination including the identification of the caller, and the related foundation for admission of the statements made during the call.

A criminal defendant has a right to confront and cross examine the State's witnesses under the 6th Amendment. This is the chief weapon for domestic violence defendants in Albuquerque and throughout New Mexico. The refusal of the alleged victim to testify is the basis for the great majority of the dismissal of these types of cases. Unfortunately for defendants, this option may be very limited in the future as a result of the New Mexico Court of Appeals ruling in State v. Soliz.

The U.S. Supreme Court of Crawford v. Washington made the right to confrontation of witnesses more explicit when it ruled that a defendant has a right to confront any testimonial witness. The Court stated that when the witness is unavailable, any out of court testimonial statement made by that witness is inadmissible. The question becomes what is "testimonial"? Crawford set out some guidelines with the basic premise being whether or not the statements were given with an eye toward prosecution of the defendant.

The U.S. Supreme Court in Davis v. Washington set further guidelines on the term "testimonial." The Court in Davis stated that statements are non-testimonial if they are given with the primary purpose of assisting the police in an ongoing emergency. They are testimonial when there is no such ongoing emergency, and the primary purpose of the statement is to provide information potentially relevant to a subsequent criminal prosecution.

The New Mexico Court of Appeals in State v. Soliz had an opportunity to address the definition of testimonial witness in a domestic violence setting. State v. Soliz involved a domestic violence call to 911. Soliz girlfriend was frantic and crying when she told the 911 operator that Soliz had just attacked her, he had fled, he had pursued her with the instrument with which he had attacked her, and he was under the influence of drugs or alcohol.

The Court in Soliz followed Davis fining that the statements by Soliz' girlfriend were non-testimonial since made in an emergency situation for the purpose of gaining assistance from the police. Because they were non-testimonial, they were fully admissible at trial despite her unavailability. In fact, the girlfriend refused to testify or otherwise cooperate in the prosecution of Soliz. This frequently occurs in domestic violence cases.

The ruling in Soliz poses some real potential problems for domestic violence defendants in the future. In essence, Soliz will allow the State to go to trial on the back of a 911 call without the necessity of bringing the victim to trial. The lack of a victim has in the past been the primary means for getting these cases dismissed. This option is now severely curtailed by Soliz.