Albuquerque Criminal Lawyer Blog

A recent case from the New Mexico Court of Appeals points out the intersection of contract law and criminal law. Specifically, the New Mexico Court of Appeals held that criminal plea agreements are enforceable just as other contracts. In so doing, the Court also set forth some unique principles that apply to plea agreements that in most cases would not hold in a standard contract dispute.

The facts of State v. Gomez are interesting in their own right but need not be discussed in great depth here. In a nutshell, the defendant entered into a series of 3 plea agreements. Under the agreements, it was agreed by the State that he would be exposed to a maximum of 9 years on the 3 pleas agreements that were to run concurrently. The district court judge misconstrued the pleas to allow up to 21 years in prison. Based upon the misconstruction of the plea and a violation of probation, the court sentenced the defendant to 21 years, 16 years of which were suspended, for a total of 5 years of incarceration.

The defendant appealed and the Court of Appeals reversed the sentence sending it back to district court for sentencing consistent with the written plea agreements. In doing so, the Court made some interesting findings regarding the application of contract law to plea agreements.

The court began by recognizing that a plea agreement is a form of contract and should be treated as such by the court. The law of contract suggests that ambiguities in language should be construed against the draftsman. In case of criminal plea agreements, ambiguity according to the Court of Appeals should be construed against the State and in favor of the defendant. In so doing, the Court must determine the reasonable understanding of the defendant as to the terms of the plea.

The Court set forth exceptions to this rule that would not otherwise apply to contracts. The Court stated that if the plea is ambiguous, the district court judge may resolve ambiguities on the record. With general contract law, agreements or understandings outside the contract itself are typically not admissible to change the terms of the written contract. With criminal plea agreements, unlike the typical contract dispute, the court record if any serves to amend the terms of the plea.

This issue will be most interesting in magistrate and municipal court proceedings throughout New Mexico that are non-record cases, meaning that they are not recorded. This will pose some interesting issues in case of misconstruction of pleas in these non-record courts.

Having said all this regarding construction and interpretation of plea agreements in the face of ambiguous terms, the Court of Appeals stated that there was no such ambiguity present in the plea agreements at hand. The court found that the plea agreements were clear and that the sentencing judge had done nothing, though he had full authority to do so, to amend the plea agreements on the record.

Finally, because the Court found that the plea agreements were unambiguous and that the plea agreements would stand as written, the defendant was entitled to specific performance of the agreements. Again, specific enforcement is drawn from the law of contracts which allows the non-breaching party to enforce the agreements as written.

It was found that the defendant did not wish to withdraw his plea which he might have done in case the district court had refused to accept the plea at the outset. Instead, the defendant chose to enforce the pleas as written through specific performance. As such, the Court of Appeals returned the case to the district court for sentencing in line of the written agreements.

Collins & Collins, P.C.
Albuquerque Attorneys

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

A deferred sentence in a first time DWI in New Mexico is pretty common in most courts around the state. A deferred sentence eventually results in a dismissal of the charges. However, the dismissal does not have the effect that most DWI offenders would wish it to have.

A deferred sentence in any case, including a first time DWI, requires a plea of guilty or no-contest. The deferred sentence does result in a finding of guilt. As such, even though the charges are eventually dismissed, the deferred sentence has important consequences for the DWI offender.

First and foremost, much to the chagrin of many repeat DWI offenders, the first time DWI counts as a prior despite the fact that there was a deferred sentence and the charges were eventually dismissed. As a result, even though the first time DWI is dismissed on the deferred sentence, a subsequent DWI comes with all the disastrous consequences associated with repeat DWI offenses. The most notable consequences of repeat DWI offenses are mandatory jail time and much stricter levels of probation.

Unfortunately, the deferred sentence is the best possible plea in most first time DWI cases. Gone are the days when the prosecutors offered pleas to lessor offenses. Neither will prosecutors any longer agree to conditional discharges on first time DWI. The conditional discharge to the lay observer would appear to be identical to a deferred sentence. However, there is one very big difference. Despite the typical requirement of a plea of guilty or no-contest for court approval of the conditional discharge, there is no adjudication of guilt.

Due to the seriousness and often tragic consequences associated with DWI in New Mexico, neither judges nor prosecutors will allow any disposition of even a first time DWI that will not later count as a prior for a subsequent DWI. In fact, there is mandatory DWI sentencing dictated by statute that disallows such an outcome.

If you are charged with a first time DWI, you should understand all the possible consequences including mandatory sentencing. Because of the seriousness of a DWI conviction, it is wise to speak with an experienced New Mexico DWI attorney. If you cannot afford a private attorney, there are many very experienced and capable public defenders, one of whom will be appointed to assist you.

Collins & Collins, P.C.
Albuquerque Attorneys