Albuquerque Criminal Lawyer Blog

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 New Mexico Supreme Court once again reaffirms the greater protections afforded under the New Mexico Constitution than under the United States Constitution.

The ruling came in a case involving illegal search and seizure. The Court in State v. Erica Rivera readily acknowledged that the search and seizure would have passed muster under the 4th Amendment and federal case-law. However, the Court stated that Article II, Section 10 of the New Mexico Constitution provided greater protections against unlawful search and seizure.

The facts of the case are interesting. Marijuana was shipped to the defendant in Albuquerque via El Paso-Los Angeles Limousine Express bus service. Unfortunately for Ms. Rivera, her package ended up in Denver. Bus employees found the package suspicious and opened it to find marijuana. The bus employees then reported it to a DEA agent who requested that the package be forwarded to Albuquerque. The bus employees complied resealing and shipping the package. Upon arrival, the DEA agent and bus employee in Albuquerque reopened the package. Ms. Riveras was charged with possession of a controlled substance with intent to distribute

First, the Court noted the well established principle that 4th Amendment search and seizure rules do not apply to searches conducted by private parties. As such, the actions of the bus employees in opening the package did not give rise to a violation of the 4th Amendment. The Court further recognized the "private search doctrine" which allows a private search to be replicated by law enforcement.

The Court recognized that the search in this case would have met the requirements of the private search doctrine set forth in the 1984 U.S. Supreme Court case of United States v. Jacobsen. In so doing the court restated Jacobsen: "The rationale for this doctrine is that by conducting a search subsequent to the private search, the agent is not learning anything that he did not already know as a result of what was disclosed by the private search."

However, the Court stated that Article II, Section 10 of the New Mexico Constitution has a very strong preference for a search warrant. There are a number of recognized exceptions to the warrant requirement: "exigent circumstances, consent, searches incident to arrest, plain view, inventory searches, open field, and hot pursuit." The court found that none of these exceptions were present in the Rivera case. The court could find no legitimate reason under the facts for the failure of the DEA agent to obtain a search warrant.

The court ruled that the evidence was rightfully suppressed by the trial court under Article II, Section 10 stating: "If the State conducts a search without a warrant and without sufficient grounds for an exception to the warrant requirement, we will suppress the evidence to effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure." The Court recognized throughout that the results would have been much different under federal law and the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Habitual Offender statute is a tool available to the prosecution and the courts to enhance the sentence of a felony defendant who has a prior felony conviction within ten years of the date of the newly alleged crime. If the defendant is deemed a Habitual Offender, the statute increases the defendant's prison exposure significantly.

A habitual offender finding has very serious penal consequences. The first felony increases the sentence by one year, the second felony by four years and the third or subsequent felonies by eight years. The New Mexico Court of Appeals addressed the issue of double jeopardy in habitual offender sentencing in State v. May. Specifically, the Court addressed the use of a gun offense as both a separate crime as well as an enhancement to the underlying drug trafficking charges.

In 2007 Defendant James May pled guilty to "felon in possession of a firearm," a fourth degree felony along with several other misdemeanors. Maximum exposure for a fourth degree felony is 18 months and an additional 364 days for each misdemeanor. After the guilty plea was entered, the Prosecutor filed a supplemental criminal information alleging that James May was a habitual offender. The State sought to enhance the base felony sentence by four years.

The defendant May had 3 prior felonies. The state used as predicates one prior 2005 State felony conviction and one prior 1991 Federal conviction. Interestingly, the Court disregarded the State felony from 2005 summarily stating that it was not concerned with that case.

Instead, the Court focused on May's 1991 convictions. In 1991, May was convicted under federal law for Possession with Intent to Distribute Methamphetamine. Arising out of the same incident, the defendant was convicted of Carrying a Firearm during a Drug Trafficking Crime under 18 U.S.C. Section 924(c)(1). Rather than take what would seem to be the easier route for legitimating the 4 year enhancement with the one Federal conviction and the 2005 State conviction, the Court instead chose instead to use the two 1991 convictions.

It is well accepted that the State cannot use the same prior felony conviction twice during sentencing. However, the court determined that double jeopardy does not prohibit the use of two convictions for enhancement under two separate statutes as long as the predicate crimes are separate incidents of criminal conduct. It does not matter that both arose from the same judgment and sentence and the same underlying crime.

The defendant argued that the 924(c)(1) firearm crime was an enhancement of the original possession conviction and could not also be used to enhance the later State sentence. The Court disagreed finding that the federal firearm offense was clearly under federal law a separate and distinct conviction from the possession crime despite the fact that the two charges arose out the same incident. As such, the Court found that the 1991 convictions could serve as the basis for the 4 year enhancement.

Unfortunately for the defendant, the Court did not buy his double jeopardy arguments regarding duplicate use of the same offense for enhancement purposes. On the other hand, by the court's reasoning, the defendant might have dodged the 8 year enhancement by virtue of the Court ignoring the 2005 State court conviction.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

It is well established that individuals on probation have significantly fewer rights than the general population. One of the rights that is generally forfeited by a probationer is the right against search and seizure by the probation officer.

While on probation, the probation officer has a right and a duty to insure that the probationer is complying with the terms of probation. The terms of probation universally prohibit the use of illegal drugs while on probation. Likewise, a probation officer can order the probationer to cease contact with known felons or drug dealers.

These variables came together in the New Mexico Court of Appeals case of State v. Sundae Bolin. In Bolin, local law enforcement was seeking to execute a warrant on an associate of Ms. Bolin who was suspected of drug trafficking. In order to try to locate the suspect, the police enlisted the aid of Bolin's probation officer.

Upon request of the police officers, the probation officer escorted the police to Bolin's residence where she was questioned about the suspect's whereabouts. The suspect was not present, nor was there any reason to believe the suspect would be present at Bolin's residence. After questioning Ms. Bolin about the location of the suspect, the police officers and probation officer began questioning Bolin about drug use. Ms. Bolin admitted drug use precipitating a search of the premises. Police discovered a variety of contraband for which Bolin was charged with trafficking a controlled substance.

Interestingly, the court noted that contact with felons or drug dealers is not necessarily a violation of probation unless there is an express prohibition against such contact. Nor is it a crime. As such, neither the police nor the probation officer had any reasonable basis for being at Ms. Bolin's home. Without grounds for presence at her home, they also lacked any basis for questioning her about her drug use which led to the search of her residence.

The Court made clear that probationers have a lessened expectation of privacy under the 4th Amendment while on probation. The court also made clear that probation officers may call upon law enforcement in the performance of their duties. To the contrary, police may not enlist probation officers in their law enforcement duties. In short, the court would not allow a police investigation to be conducted under the pretense of a probationary visit.

The court found that when Bolin answered that the suspect was not there, the encounter should have ended. There was no legitimate law enforcement purpose for their continued presence, nor was there a legitimate probationary purpose. The probation officer was at Bolin's home purely for the purpose of assisting the police officers in a criminal investigation.

The Court found that the search and seizure upon which the charges against Bolin were illegal under the 4th Amendment. As such, the district court's decision to suppress the evidence seized as a result of the illegal search was upheld.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in State v. Jose Manuel Martinez. The case involved the expansion of an investigation of an felony aggravated battery case to the detention of the defendant until a canine unit could be called to the scene for a search of the defendant's car.

The defendant was identified as the perpetrator in an aggravated battery where the alleged victim had suffered serious injuries and coma. The police officers went to the location of the alleged incident where they found a number of individuals including the defendant. The officers smelled marijuana in the residence and asked the occupants to step outside. The officers conducted a walk through search but found no evidence of drugs or weapons.

Despite the apparent lack of any evidence of a crime at the scene, the officers then asked if the defendant had any weapons in his car. The defendant answered that all he had in his car was a crowbar. The officer asked to search the car. Defendant refused the search stating that he would retrieve the crowbar for the officer. The officer then detained the defendant calling in the canine unit. Upon searching the vehicle, the officers found two bags containing cocaine, a digital scale, and rolling papers resulting in charges of trafficking a controlled substance and possession of drug paraphernalia.

The question was whether the expansion of the investigation under these circumstances was reasonable and constitutional under the 4th Amendment. The Court of Appeals found that the expansion was reasonable thereby denying the defendant's motion for suppression of the cocaine and paraphernalia.

The court stated, "An officer may expand the scope of an investigatory stop if the officer has reasonable suspicion that other criminal activity is taking or has taken place... If evidence of another crime surfaces during a routine investigatory stop, the officer may proceed in a reasonable manner to investigate." The court was quite generous toward the investigating officers in allowing for the search on these grounds. The Court stated that the defendant's admission that he had a crowbar, but refusal to allow the search of his vehicle, was an indication of other criminal activity sufficient to justify the detention of the defendant until the canine unit arrived, and the search of the defendant's car.

In light of the customary deference to the 4th Amendment and the expansive protections against unlawful search and seizure under New Mexico law, the outcome is somewhat surprising. The case seems like a good candidate for further appeal to the New Mexico Supreme Court where there may be a different outcome.

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

Arguments in Carachuri-Rosendo v. Holder began yesterday before United States Supreme Court. The case addresses the issue severe immigration consequences of removal and deportation of immigrants from the United States for minor possession of marijuana.

The case involved a situation where the defendant was convicted for simple possession of marijuana in 2004. He was sentenced to 20 days in jail. One year later, he was convicted of simple possession of xanax on a no-contest plea. Both were misdemeanors under Texas law. Despite the fact that both convictions were misdemeanors, the prosecutor argued and the Court agreed (both the district court and the 5th Circuit Court of Appeals in Texas) that successive convictions allowed for the defendant to be charged with drug trafficking for the second offense. Drug trafficking convictions are deportable offenses, with very few exceptions.

The Supreme Court will address whether or not the practice of equating two misdemeanor drug offenses to a drug trafficking offense is constitutionally allowed. Several Circuits have already ruled that it is not with the 5th Circuit (Texas, Louisiana and Mississippi) continuing the practice.

The Court's ruling will affect thousands of immigrants facing immigration for misdemeanor drug offenses. Under the current state of the law, there is an exception to removal for first time simple possession of marijuana (less than 30 grams). Any subsequent drug offenses no matter how trivial will result in removal and deportation.

The New York Times addressed an individual who is keenly interested in the case's outcome. The article addressed Jerry Lemaine who had been arrested for a small amount of marijuana as a teenager. That case was dismissed. He was caught later with a single marijuana cigarette in 2007. His public defender had advised him to plead guilty and pay the $100 fine. This would make sense in the typical case, but in case of an immigrant, the plea resulted in Jerry being placed in removal. He has spent the next three years in confinement fighting removal to Haiti where he left when he was 3 years old. The court refused to consider his exemplary life where he was working on a nursing degree, helping to care for a brain injured United States citizen sister, and helping his mother single mother who worked two jobs to care for the family and get them out of a dangerous Bronx neighborhood to Long Island.

There are thousands of others currently in removal proceedings for similar charges of minor possession of marijuana. The Court's ruling will affect thousands of immigrants facing immigration for misdemeanor drug offenses. Under the current state of the law, there is an exception to removal for first time simple possession of marijuana (less than 30 grams). Any subsequent drug offenses no matter how trivial will result in removal and deportation.

The immigration enforcement policies have tragic consequences for many immigrants and their families. The policies have broader policy implications that directly impact local law enforcement, prosecutor offices and the Courts. These will be addressed in the second part of this article.

www.CollinsAttorneys.com

Read the New York Times Article

The 10th Circuit Court of Appeals ruled that a common drug supplier does not make a conspiracy. In U.S. v. Caldwell, Michael Caldwell was convicted for conspiracy to distribute marijuana with two other individuals based upon the mere presence of a common supplier to Caldwell and another party. The jury determined that the three men had entered into a single a three party conspiracy to distribute at least 100 kilograms of marijuana over a two-year period.

The defendant admitted to a conspiracy with his supplier but denied the conspiracy with respect to the third party. It may sound like an inconsequential rhetorical argument but the finding of the tri-party conspiracy had significant consequences for Caldwell's sentencing. Because of the jury's erroneous finding of a three party conspiracy, the quantity of marijuana involved in the alleged conspiracy pushed Caldwell into a higher sentencing category.

The facts are pretty straightforward. Caldwell had purchased marijuana from Herrera. Caldwell then sold the marijuana to other users. A friend of Caldwell's, Anderson, source had dried up. Caldwell introduced therefore introduced Anderson to Herrera. Anderson then began buying his marijuana from Herrera. Caldwell received no economic benefit for the introduction nor was he involved in the exchanges between Herrera and Anderson other than the initial introduction.

The 5th Circuit Court of Appeals found that no single tri-party conspiracy existed. Instead, the government had shown only the existence of multiple conspiracies. The court stated that it is often difficult to distinguish between a single large conspiracy and several small conspiracies. However, the Court stated that it would not uphold the finding of large scale conspiracy by "piling inference upon inference...The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt."

Citing United States v. Sells (10th Cir. 2007), the Court set forth the following requirements for a finding of a conspiracy:

(1) two or more persons agreed to violate the law, (2) the defendant was aware of the essential objectives of the conspiracy, (3) the defendant knowingly and voluntarily became a part of the conspiracy, and (4) the alleged co-conspirators were interdependent.

The pivotal question according to the court was the existence of interdependence of the parties which is present only where the co-conspirators intended to act in concert for their shared and mutual benefit. Citing U.S. v. Evans (10th Cir.1992).

The court boiled the issue down to the question of whether "the mere introduction of a common supplier, made by one drug dealer to another, is sufficient to create a single conspiracy among all the dealers?" The court concluded that it was not.

The finding of a single large scale conspiracy created an erroneous factual basis for Caldwell's sentence. The court should not have included quantities sold by Herrera to Anderson. The case was therefore remanded to district court for resentencing based purely upon the transactions established at trial between Caldwell and Herrera.

www.CollinsAttorneys.com