Albuquerque Criminal Lawyer Blog

The presumptive breath alcohol level for driving is .08. A driver who blows over .08 is presumed to be DWI. There are no such levels established for drugs and driving. This issue is becoming more prevalent with increasing trends by Albuquerque and Rio Rancho police to arrest drivers who are on prescription medication.

The problem has made headlines recently with DUI charges against Ron Bell, a well known local Albuquerque attorney. Ron Bell was arrested for the use of prescription methylphenidate, Ritalin, which is commonly used for the treatment of ADHD. In fact, studies show that treatment of ADHD actually reduces driving risks so any policy that would deter ADHD drivers from taking their prescription medications will actually put New Mexico drivers and their families at risk.

The trend toward arresting drivers on prescription medications is problematic for any number of reasons. First, the medications may be necessary for the individual to function, i.e. go to school or work. Second, many of the medications for which drivers are being charged do not impair driving ability at therapeutically prescribed levels. Finally, and most importantly, there are no standards for when an officer can make an arrest. The arrest decision is left entirely up to the officer.

The problem resembles the "impaired to the slightest degree" standard used in DWI to convict drivers at breath alcohol levels well below .08. The "impaired to the slightest degree" standard and the complete lack of standards for prescription drug use leads to some interesting due process issues. So how do you know when a driver is impaired? Arriving at the answer to that is pretty straightforward. In a bench trial without the benefit of a jury the answer is easy. Though, there may be some theatrics and a few procedural protocols, it comes down to the prosecutor and the judge asking the cop what he or she thinks. If the cop says you are impaired, you are impaired unless your attorney can convince the judge otherwise. Juries are much more discriminating. Unfortunately, first time DWI's are not eligible for a jury trial.

There are many that take the position that any alcohol, no matter how little, is too much for driving. There are others that cry that any drugs and driving are unacceptable. Its more than a little ironic that Ron Bell fit into the first group as the self-anointed punisher of drunk drivers and now falls prey to the second. Both those in the first group, like Mr. Bell, and those in the second might want to consider the implications for both due process and their family's safety when getting behind what appears to be a trending policy toward arresting drivers for prescription medication use without the benefit of any standards to protect against wrongful conviction.

Most officers are honest and professional. But even honest officers could have problems here. There simply are no standards forcing officers to err on the side of caution. This may be fine for most endeavors but not criminal justice. The standard for conviction is "beyond a reasonable doubt." How is this standard of proof applied to a crime that has no definition?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Broad discovery is fundamental to due process in the defense of criminal charges. The New Mexico Court of Appeals addressed the issue in State v. Ortiz. The court stated that a defendant is entitled to all discovery that might reasonably relate to the defense. The defendant need not know in advance that the records, documents or other evidence are helpful, but only that they might possibly be helpful to the defense.

Ortiz involved a DWI stop. The officer stated in grand jury testimony that he stopped the defendant due to erratic driving behavior. Through discovery, the State provided a videotape of the incident. However, the video was missing 6 minutes of footage. The defendant insisted that the State provide the excised portion of the tape. The State refused stating that the missing portion was irrelevant to the case. The defendant also requested the officer's cell phone records for the missing 6 minute period. Again, the State refused stating that the officer had an expectation of privacy in his personal cell phone records.

The district court ordered the State to provide both the missing video footage as well as the officer's cell phone records for the six minute period. The State refused. The Court, exercising its discretionary authority for discovery violations, suppressed all evidence arising from the DWI stop which resulted in dismissal of the case. The Court of Appeals affirmed the district court's dismissal of the case.

The Court of Appeals reiterated the liberal discovery standard in criminal cases. The court cited United States v. Lloyd, a 1993 D.C. Circuit Court case, as follows: the "materiality standard...is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation , corroborating testimony or assisting impeachment or rebuttal."

The Court agreed with the district court that both the missing video footage and the officer's cell phone records during the missing 6 minutes might play a role in the defense. It was not up to the defendant to prove the materiality of the evidence. Instead, the defendant had the right to obtain and review the evidence for its materiality. The court indicated that liberal discovery was fundamental to the defendant's due process rights and his right to a fair trial.

The Court's ruling as well as the liberal rules of discovery are essential to the defense. In addition, they reflect plain common sense. A defendant would hardly be entitled to any discovery if it were required that he or she first show the materiality of the evidence before obtaining it. The materiality of evidence often cannot be known until it has been reviewed. In many cases, a review of the evidence may find that it is immaterial or otherwise inadmissible. But due process dictates that all potentially material or relevant evidence be disclosed. Only then can a determination of admissibility be undertaken. It takes little imagination to envision potential abuse of a less stringent discovery rule.

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

New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

www.CollinsAttorneys.com

The New Mexico Supreme Court addressed expert testimony given by police officer in DWI/DUI trials in State v. Marquez. The case involved an Albuquerque police officer who gave testimony regarding the statistical correlations between a suspect's performance on field sobriety tests and the probability of a blood alcohol score over .08.

The defendant's attorney had argued that the officer was not qualified as an expert to testify on statistical probabilities under the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals. Interestingly, the State conceded that the testimony given by the officer was improperly admitted. Instead, the State argued that the admission of the evidence was harmless because there was sufficient legally admitted evidence for the conviction.

The case of State v. Marquez is interesting because the New Mexico Supreme Court found that the testimony was unnecessary for the conviction. The Court cited New Mexico Uniform Jury Instruction 14-4501 along with the well established New Mexico case law suggesting that the true standard is whether the defendant's ability to drive was impaired to the slightest degree.

The testimony of the officer undoubtedly would have established this without the statistical testimony. The officer testified that she saw the defendant stumble out of a bar, get in his car, almost strike another vehicle as he backed out of his parking space, and then back 60 feet into oncoming traffic on a congested and dangerous street. In addition, the officer testified that the defendant was slow to respond to questions, fumbled with his identification, was slow getting out of his vehicle, had to brace himself against his vehicle for balance and generally performed poorly on the field sobriety tests.

In light of impaired to the slightest degree standard, the statistical evidence was hardly necessary. However, the prosecutor got a little greedy perhaps and solicited the testimony anyway over the objection of the defense attorney. Basically, the officer gave testimony on statistical studies suggesting that poor performance on the field sobriety tests correlates to a high probability that the defendant's breath score exceeded the .08 limit.

The Court recognized that because of the impaired to the slightest degree standard, the breath alcohol score is not necessary for a DWI/DUI conviction in New Mexico. The Court further recognized that it is common knowledge that a breath score of over .08 is an indication of impairment. Thus, the testimony of the Albuquerque police officer, though unnecessary for a conviction, could have confused and misled the jury. In short, the testimony may have distracted the jury from its role of weighing properly admitted evidence by undue attention to the wrongfully admitted statistical evidence. In essence, the statistical evidence improperly undermined the credibility of the defendant.

Because the evidence was improperly admitted and could have confused or distracted the jury, the defendant's DWI conviction was reversed. The case was remanded for a new trial. In light of the evidence available to the State, and the Court's ruling that the breath alcohol score is unnecessary, the outcome of the new trial is likely to be the same as the first.

The case is somewhat paradoxical that the Court further restricts the bounds of admissible DWI evidence while at the same time reiterating its position that such evidence is unnecessary anyway. However, the case should prove important in cases where the evidence of intoxication is not so overwhelming as was the case here.

www.CollinsAttorneys.com

There are often delays in indictment on felony cases in Albuquerque, and throughout New Mexico. We often get questions regarding the legality of the delay in indictment following the first appearance.

When a felony action is commenced in Albuquerque, the case typically begins in the Metropolitan Court on a first appearance. During the first appearance, the court will address the statement of probable cause. The burden for probable cause is pretty low at this stage. The statement of probable cause need only establish that a crime was committed and that logically a jury could find the defendant guilty based upon that statement if true.

It is rare that the court would find probable cause lacking. In cases where probable cause is found, the Albuquerque Metropolitan Court judge will first address bond. Assuming that bond has been satisfied, the judge will set 60 day conditions of release. These conditions are fairly routine such as no further violations of the law, no contact with the alleged victim, no return to the scene of the crime, no deadly weapons, no drugs or alcohol, and no leaving the County without approval of the Court.

Many people accused of crimes believe that once the 60 days is up, the State is barred from taking the case to grand jury. That is not the case. The only consequence of failing to take the case to grand jury within the 60 day conditions of release is that those conditions lapse. The State is still free to bring the charges at a later date, and unfortunately for the defendant over whom the charges are hanging, often a much later date.

The only deadlines for getting the case to grand jury and formal charges filed is the statute of limitations. The statute of limitations for criminal cases in New Mexico are quite lengthy as set forth in by statute as follows:

• • Capital or 1st degree violent felony - no limitation,
• • 2nd degree felony - 6 years from the date of the crime,
• • 3rd or 4th degree felony - 5 years from the date of the crime,
• • Misdemeanor - 2 years from the date of the crime, and
• • Petty Misdemeanor - 1 year from the date of the crime.

These deadlines are pretty lengthy so that a delay generally does not mean much regarding the intentions of the District Attorney. However, in less serious cases, no news is good news. In the meantime, if you are in this situation, you should keep your head down and avoid any contact with law enforcement. This means at a minimum staying out of trouble. It would be unfortunate to raise a red flag on an old case due to subsequent violations of the law.

www.CollinsAttorneys.com

Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

www.CollinsAttorneys.com

Once past the due process issues presented by the confidential informant's mental health and prescription drug issues, the Court in U.S. v. Robinson went on to address the confrontation issues under the 6th Amendment raised by the trial court's refusal to allow the defense attorney to cross examine the confidential informant at trial on those issues.

The 10th Circuit Court of Appeals found that the district court had indeed violated the Confrontation Clause under the 6th Amendment when it forbade the defense from cross-examining the CI on his mental health history and use of prescription medications. Further, the court found that the prosecutor had failed to meet the high burden of proving beyond a reasonable doubt that these constitutional errors were not harmless errors.

The Court stated that the 6th Amendment guarantees the right of a defendant to "be confronted with the witnesses against him." The primary right under the Confrontation Clause is the right to confront and cross examine the State's witnesses. And though the trial court may exercise its discretion through "reasonable limits" on the scope of questioning, cross examination is the primary means by which the credibility of witnesses is determined by the jury.

The Court found that the trial court had not violated the Confrontation Clause on the issue of illegal drug use since it allowed the defense to cross examine the confidential informant on these issue. However, the prohibition against cross examination of the confidential informant on his mental health issues and related prescription drug use violated the defendant's right to confrontation since the cross examination on the illegal drug use may have been much different with full access and knowledge to the informant's mental health records.

The Court stated, "Where the witness the accused seeks to cross-examine is the 'star' government witness, providing an essential link in the prosecution's case, the importance of full cross-examination to disclose possible bias is necessarily increased." The Court stated further that "a constitutional violation occurs when the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor."

In short, the informant's credibility was essential to the government's case. The defendant had a right to put the informant's credibility before the jury and the jury's view of his credibility was critical to the outcome of the case for both sides. Preclusion of the defense's review and cross examination on issues of mental health and drug use was a fundamental violation of both due process and the right to confrontation of witnesses.

The 10th Circuit Court of Appeals addressed the issue of confidential informants in U.S. Robinson. The defendant was charged as being a felon in possession of a firearm after allegedly selling a gun to the confidential informant. The Court addressed the issues of due process and the right to confrontation of witnesses.

The confidential information had serious mental health issues including the use of several prescription drugs. The Court reviewed the medical file in camera but refused to allow defense counsel to access the records. The Court found that the Court's refusal to allow the defense attorney access to medical file was a violation of due process under the 5th Amendment.

The court determined that the Court's restrictions resulted in the jury seeing an incomplete and inaccurate picture of the confidential informant's credibility. From the perspective of the jury, the confidential informant had only "a little bit" of a drug problem. Moreover, the jury never heard of the repeated violations of the confidential informant's agreement with the ATF by using drugs. By the prosecutor's version
of events, the confidential informant had reformed since becoming an ATF informant. had largely reformed himself after becoming an ATF informant. Finally, the confidential informant had singifnicant memory issues related to the events which he attributed to a lapse of time. The jury was unable to judge his credibility independently based upon the mental health and drug issues.

The Due Process Clause of the Fifth Amendment provides that "[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law. The 5th Amendment's primary protection is that of a fundamentally fair trial. This requires that all material evidence be admitted. This does not necessarily mean that
the withheld records would have resulted in acquittal. The Court stated instead, that
"the touchstone is simply whether the ultimate verdict is one 'worthy of
confidence."

Having addressed the due process issues under the 5th Amendment, the Court went on to address confrontation issues under the 6th Amendment.

The U.S. Supreme Court refused to hear a case involving a DWI arrest based upon an anonymous tip. Albuquerque and Bernalillo County officials appear unconcerned with the Court's ruling. Bernalillo County Sheriff Darren White stated "Believe me, I can tell you when a person's impaired."

The case itself involved an anonymous tip where the driver was pulled over despite the fact that the officer had not observed any indications in the driver's driving behavior indicating DWI/DUI.

The fact is a stop like the one in the Virginia case would plainly violate the requirement of reasonable suspicion for a DWI/DUI stop. Without the reasonable suspicion requirement, officers would be free to pull drivers over without any reason whatsoever. The hazards and possible abuses are clear allowing officers to pull over drivers for countless illegitimate reasons.

Darren White states further that New Mexico law protects the innocent driver who has swerved in a traffic lane, but is not under the influence. What Sheriff White fails to appreciate is that many innocent drivers may be subject to illegal stops based upon ill motivated anonymous tips. Little imagination is required to understand the many possible motivations that might lead to an illegitimate anonymous tip.

In fact, there is little protection for the innocent driver as Sheriff White suggests. Instead, a stop lacking reasonable suspicion results in a gross violation of privacy, and the right against unlawful search and seizure. The result is that many innocent drivers can be pulled over and subjected to the stressful, embarrassing and humiliating battery of DWI tests so that they must prove they are not under the influence to a police officer who may already be convinced or otherwise biased toward a finding of DWI/DUI.

In fact, New Mexico law, which thankfully applies to Albuquerque Police and Bernalillo County Sheriffs despite Sheriff Whites apparent belief to the contrary, requires that the stopping officer actually observe driving that indicates DWI/DUI. An anonymous tip is not sufficient for a stop. Of course, it takes very little effort on the part of a determined police officer to find a reason for a stop. With the rash of under the limits DWI/DUI arrests in Albuquerque, and the recent revelation of DWI/DUI quotas for Albuquerque Police Officers, this requirement offers little real protection or comfort for Albuquerque drivers rendering the right of privacy and protection against unlawful search & seizure in our cars meaningless.

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.

Continued Assault on the Rights Against Unlawful Search & Seizure

The 10th Circuit Court issued another remarkable ruling that continues the assault on the rights of individuals to be free of unlawful search and seizure. In U.S. v. Roach (10th Cir. 2009), the court ruled that although a warrant lacked probable cause, the evidence seized during the unlawful search is admissible so long as the officers acted in good faith.

An affidavit was issued in support of the warrant from the federal magistrate. The affidavit failed to establish probable cause that the defendant was a member of the gang under investigation. The affidavit also failed to establish that the defendant even lived at the residence that was to be searched. In fact, the residence was the defendant's girlfriend's residence.

The unlawful search unsupported by probable cause for the warrant resulted in the seizure of a variety of drugs and firearms. The defendant moved to suppress the illegally obtained evidence. The motion to suppress was denied.

In U.S. v. Roach, the 10th Circuit Court of Appeals upheld the denial of the suppression motion. In doing so, the court acknowledged a warrant should issue only on probable cause. The Court further stated that there must be probable cause to believe that a crime has been committed, the defendant committed the crime and that the place to be searched has some connection to the crime. The court stated that probable cause could not be built upon hunches.

Then despite the very clear state of the law the Court ruled that suppression of the evidence must be refused if the officers executing the warrant relied in good faith on the authorization of the magistrate.

This is pretty remarkable circuitous reasoning clearly directed toward further restrictions on the rights against unlawful search and seizure. After all, did the officers themselves not provide the magistrate with the affidavit upon which the warrant was issued? So the officers are relying upon the magistrate who issued the warrant who relied upon the affidavit provided by the officers. In short, the officers have relied upon their own faulty affidavit which failed to establish probable cause. How can this ever be construed as good faith?

The New Mexico Supreme Court in State v. Ochoa clarified the rights of privacy in a car. The New Mexico constitution allows for New Mexico courts to expand on the rights against unlawful search & seizure afforded under federal law.

Under federal law, there is a lower expectation of privacy once a person enters into an automobile. The justification for the lower level of privacy in an automobile under federal law is that the inherent mobility of an automobile creates greater need for an immediate stop to prevent the loss of evidence.

New Mexico acknowledges the reasoning but rejects the conclusions of the U.S Supreme Court in Whren. Instead, Ochoa states that warrantless searches are per se unreasonable. The State bears the burden of proving the stop and the ensuing search were reasonable.

The Court in Ochoa explains that the greater protection from unreasonable search & seizure in an automobile is a distinct characteristic of the laws of New Mexico. Ochoa explicitly rejects the suggestion under Whren that a person's expectation of privacy is lessened in a car.

Finally, the court stated that though there are exceptions to the warrant requirement, the same standard requiring exigent circumstances to conduct a warrantless search are present in a car as in a person's home. Exigent circumstances justifying a warrantless search exist only where delay in obtaining a warrant will jeopardize the legitimate interests of law enforcement.

A mere hunch as present in Ochoa is simply not enough.

It is unlawful in New Mexico for a police officer to stop you under the pretext of a traffic violation for the purposes of investigating another unrelated crime. The law of New Mexico goes further in protecting its citizens against unlawful search and seizure under these circumstances than federal law under the U.S. Supreme Court decision of Whren v. United States.

Under Whren, it is allowable for a police officer to stop someone under the pretext of a traffic stop in order to investigate them for something entirely different, such as possession or distribution of narcotics. New Mexico through State v. Ochoa recognizes the danger of allowing such searches. In the Ochoa case, the police officer suspected an individual of possession of narcotics. He lacked any verifiable proof, and he lacked a valid warrant to search the vehicle. Due to his hunch, and despite the lack of a warrant or other evidence of possession, he called the vehicle in on a traffic violation, and the car was stopped by another officer. Indeed, there were drugs in the vehicle.

The Court in Ochoa recognizes that due to the huge volume of possible traffic offenses, we are all in violation of at least one traffic law at any given time. Allowing a police officer to stop someone to investigate an unrelated crime under the pretext of a traffic violation would basically nullify our rights against illegal search and seizure while in our cars. We would be at the mercy of the whim of any particular officer while in our vehicles. Police officers would be free to search our vehicles at their leisure since they would need only articulate any one of hundreds of possible traffic violations. It would not take much of an imagination to come up with a reason to stop a vehicle. There would be no protection at all from the search of our vehicles. Every citizen, both guilty and innocent, would be subject to abusive police practices. The right to privacy in our vehicles would have little meaning.

Fortunately, the Supreme Court of New Mexico recognized the potential for abusive police practices under Whren. The court laid out some guidelines. The Court in Ochoa stated that in determining whether or not the stop was pretextual, the Courts should consider the totality of the circumstances, the credibility of witnesses, and the weight of the evidence. The totality of the circumstances includes a consideration of the both the objective reasonableness of the officer's actions and the subjective intent or what the Court described as the "real reason" for the stop.

The burden of proving pretext is on the defendant. However, if it is found that the stop was not reasonable from its inception, any evidence discovered during the illegal stop will be excluded.

In the past, it was pretty well accepted in New Mexico metropolitan, municipal and magistrate court cases that the 6th Amendment Right to a speedy trial meant that the State had to bring its case to trial within 6 months. The Courts in Albuquerque followed this rule pretty closely. If the State failed to bring a case to trial within 6 months, the case was dismissed. The New Mexico Supreme Court threw this long established custom out in the case of State v. Garza (NM 2009).

In doing so, the court laid out some "guidelines" for speedy trial rights for the future. The guidelines are 12 months for simple cases, 15 months for cases with intermediate complexity, and 18 months for complex cases. The Court even took the teeth out of these requirements by saying that these guidelines were merely thresholds for further inquiry.

So what does this mean for you and your case? Suffice it to say it is not good. It is unclear how how this ruling will affect the criminal trial process in Albuquerque and throughout the courts of New Mexico. The standard leaves so much to interpretation that it seems judges can pretty well disregard the speedy trial rights of defendants if they so choose. It means also that the district attorneys will become even more negligent in the prosecution of their cases.

Walk into any metropolitan, municipal or magistrate court in the State on any given day, and you will see case after case after case where the prosecutor has failed to provide discovery, failed to make witnesses available, failed to meet statutory deadlines, and largely failed to prosecute their cases in a diligent manner. When this occurs, the prosecutor would typically be given warnings about being prepared the next time. Many judges would dismiss the cases the next time if the prosecutors came unprepared again.

In the past, the speedy trial rule provided some check on prosecutor's negligence of their files. The prosecutors had a deadline that they had to meet and this prevented them from ignoring a file and their responsibilities as prosecutors and attorneys. It seems now that they are free to prosecute their cases at their leisure with no real deadlines to insure their diligence.

The case of State v. Garza does more than infringe the rights of the defendant, who must be present at each trial setting only to hear the prosecutor is not ready. The defendant life is put on hold now for what at least for now is an indeterminate amount of time left to the whim of the particular judge.

Many people are not sympathetic to criminal defendants. In fact, most are downright hostile. What these folks might consider is the costs to the taxpayer of prosecutorial negligence. For each and every hearing to which they come unprepared, they have tied up the resources of their own office since they must be present prepared or not. They have tied up in many cases the office of the public defender who is funded by the taxpayer. Then they are tying up an already overburdened court. For each hearing, there must be a judge who is paid handsomely for his or her presence. There are guards, bailiffs, secretaries, court reporters, interpreters, and a host of other court personnel depending upon the case. This is hugely expensive. And now in a time of budget crisis for government across our country, the prosecutor has been written a blank check at the expense of the taxpayer.

Perhaps the Supreme Court has given judges leeway to stretch the speedy trial period over an indeterminate time. However, judges on an individual basis must still manage their courtrooms. They must manage their budgets. Ultimately, they must answer to taxpayers. But on a more mundane level, they must answer to themselves. Playing fast and loose with the speedy trial rule will cause their caseload to grow as case turnover slows to a crawl. Hopefully, if not motivated to protect the rights of the defendant, the courts will at least be motivated to manage their own workload.

Parrish Collins
Collins & Collins, P.C.
http://www.collinsattorneys.com