Albuquerque Criminal Lawyer Blog

The New Mexico Court of Appeals was recently called upon to review the "knock and announce" rule in the case of State of New Mexico v. Jean-Paul. The gist of the opinion is that the not only is there a requirement that police knock and announce in New Mexico, they must also wait a reasonable period of time to enter or risk suppression of suppression of any evidence seized. "Reasonable time" is not a static definition. It depends on the circumstances. As a rule, however, a one second wait is not sufficient absent exceptional circumstances.

Both the 4th Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution protect citizens against unlawful search and seizure. One protection is the aforementioned "knock and announce" rule which requires police officers seeking to execute a warrant to knock and announce their presence to the occupants. Then they must wait a "reasonable" amount of time to allow the occupants a chance to voluntarily open the door. As you can imagine, the question is often what period of time is considered reasonable?

In this case, the police were seeking to execute a search warrant on the defendant's home. They knocked on the door and announced their presence, then after waiting only one second, they used a battering ram to enter the defendant's home. The police officers later explained that they waited such a short period because a man in the home was looking out a window at them as they approached. Inside the home, the officers found drugs and drug paraphernalia for which the defendant was charged with drug trafficking and possession of drug paraphernalia.

Before trial, the defendant sought to have any evidence discovered as a result of the search warrant's execution suppressed. She argued that the police did not wait a reasonable period of time after announcing their presence, and that no exceptions to the knock and announce rule were present.

There are only two exceptions to the knock and announce rule that could have applied in this case. The police are not required to knock and announce if it would merely be an empty gesture or if there are exigent circumstances. A court would consider knocking and announcing an empty gesture if the occupants were already aware that the police were on the premises for purposes of searching the premises. Similarly, the police would not be required to knock and announce if there was a real risk that evidence would be destroyed by waiting. However, it should be noted that simply because the occupants see the police approaching does not give rise to an exception.

In determining whether police officers waited long enough after knocking to forcibly enter the premises, the courts will often review the size of the premises, the time of day and whether the police know someone is inside. While the defendant's home in this case was small, New Mexico courts have only approved wait times of ten seconds or more, unless there are exigent circumstances. Only waiting one second, like in this case, does not provide the occupants with enough time to collect themselves and move toward the door to allow the police officers entry into the defendant's home. While in some cases a court will permit a shorter wait due to concerns by the police that do not quite reach the level of exigent circumstances, the police officers could not provide evidence of any such concerns here.

The court noted that while both the 4th Amendment and the New Mexico Constitution follow the knock and announce rule, the remedy for a violation is different under the two. The New Mexico Court of Appeals recognized that under the 2006 U.S. Supreme Court Case of Hudson v. Michigan, violation of the knock-and-announce rule does not necessarily require suppression of the evidence. As such, application of the federal law here would likely have led to very different consequences for the defendant.

In short, the police must knock and announcing their presence. They must also under New Mexico law wait a reasonable period of time to enter the premises or face suppression of any evidence seized. One second is clearly not sufficient. How long the police must wait will depend on the circumstances. If you have been arrested, and your property searched under a warrant, it highly advisable to seek the assistance of attorney knowledgeable of search and seizure issues in New Mexico.

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The 2011 New Mexico Supreme Court decision in State v. Williams addressed the legality of an under-clothing search incident to arrest. The Court found the search under the crimustances of the case reasonable under the 4th Amendment's and related cases on search and seizure.

This case involved a traffic stop. When the officer approached the stopped vehicle he saw through the window that the Defendant was "fumbling around" with an object. Based on the officer's training and experience he concluded that these actions were consistent with attempting to conceal contraband or searching for a weapon. When the Defendant exited the car his pants were unzipped and his belt was unbuckled.

Because the Defendant had an outstanding warrant the officer placed him under arrest and handcuffed him. The Defendant was placed between two police cars parked bumper to bumper on the side of the road. The arresting officer patted the Defendant down and shook the waistband of the Defendant's pants. The officer also pulled the waistband of his pants out about six inches and looked down and saw a plastic bag underneath the Defendant's underpants. With a gloved hand the officer reached down and removed the bag, the contents of the bag latter tested positive for illegal drugs.

The Defendant challenged the search as an illegal search and seizure under the 4th Amendment. The Court found that the search was not illegal and was warranted under the circumstances.

To determine the reasonableness of the officer's underclothing search the Court applied the factors previously set forth by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).

These factors require the Court to determine whether the justification, scope, manner and place of the search were reasonable in the context of the totality of the circumstances surrounding the underclothing roadside search.

In this case the Court concluded that each of these factors was met:

1. The search was justified because the officer reasonably suspected that the Defendant was hiding a weapon or drugs in his underpants based on Defendant's movements within the vehicle and exiting the car with his pants unzipped and belt unbuckled.


2. The scope of the search was narrowly tailored as the officer limited his underclothing search to the area in which he suspected the weapon or drugs to be hidden.


3. The manner of the search was appropriate as only the Defendant and searching officer were able to see underneath the Defendant's clothing.


4. The location of the search on the side of the road was appropriate as the Defendant was protected from public view by the police cars and the officers on the scene.

After concluding that the Bell factors supported the arresting officer's search the Court's final step was a balance of the public and private interests at stake. The Court concluded that the underclothing search protected the public interest in safety without unreasonably violating Defendant's privacy expectations under the Fourth Amendment.

While the Court found the undergarment search in this case to be reasonable the Court was careful to point out that invasive underclothing searches remain the exception. The opinion in this case is not to be construed as a blanket approval of underclothing searches as part of the typical search performed incident to arrest.

If you are charged with a crime, search and seizure issues are extremely important to your defense. Illegally seized evidence will not be allowed into court. The suppression of illegally obtained evidence is often the best line of defense. It is important to discuss these matters with an attorney experienced in search and seizure issues.

Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible
Courts Continue Assault on the Rights Against Unlawful Search & Seizure

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of State v. Cofer, the New Mexico Court of Appeals considered the use of improper hearsay testimony to establish the market value of stolen goods.

In June 2008, the defendant took a 32" Sanyo LCD television from a Wal-Mart. Soon after, the defendant was pulled over by a police officer, based upon information provided by the police dispatcher. While the defendant was pulled over, the officer noticed a 32" Sanyo LCD television in plain view in the back seat of the defendant's vehicle. The police officer read the defendant his Miranda rights, and the defendant admitted that he shoplifted the television from Wal-Mart. He was charged with one count of shoplifting over $500.

At trial, the defendant admitted to taking the 32" Sanyo LCD television, but he did not state its value. The prosecution's only witness, a Wal-Mart assistant manager from the electronics department, testified that she researched the value of the television on the in-store database. She concluded that the television was worth $576 on the date of the crime. The trial court accepted the valuation of the television, and the defendant was convicted of shoplifting merchandise valued at more than $500.

At trial there are rules governing the proper way to introduce evidence. Generally, a witness is not allowed to testify about another person's statement. That is known as hearsay. Of course, there are exceptions to that rule, like where the other statement is a record of regularly conducted business activity.

Specifically, the courts in New Mexico have traditionally allowed the admission of price tags or testimony thereon as non-hearsay evidence. In this case, there was no price tag for admission. Nor did the manager have firsthand knowledge of the price of the item at the time of the theft. Instead, she conducted research into the pricing using historical inventory and pricing reports 10 months after the incident.

There were several problems with the pricing testimony and one easy solution for the state. The first problem was the lack of a price tag. The second was lack of firsthand knowledge of the price.

The last problem was the reliance on inventory and pricing reports. The obvious question is why is this a problem? Here, those inventory and pricing reports were not provided to the defense nor were they entered into evidence. Instead, manager just testified to what she found.

This might seem like a gotcha type case for prosecutors. However, the solutions would have been relatively easy. First, the police could have secured the price tag and pricing info at the time of the theft. Second, the prosecutor could have obtained the inventory reports and presented them as business records through the manager.

These are routine steps in the introduction of evidence. Shortcuts are not allowed. It is not hard to imagine how even a seemingly trivial shortcut like this one could quickly lead to abusive prosecution tactics. In short, the Courts did their jobs in holding the prosecutor accountable for following the rules of procedure and the rules of evidence.

Related Reading:
4th Amendment and the Plain View Doctrine
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The police are not permitted to simply search anyone for any reason. Their powers to search people are limited by the Fourth Amendment to the U.S. Constitution, preventing unreasonable searches and seizures. In most cases, the police must acquire a warrant in order to search a person. A number of exceptions do exist that allow police to forgo a warrant, but those exceptions are limited.

Earlier this year, the New Mexico Court of Appeals examined the use of "pat-down searches" to acquire evidence in New Mexico v. Almanzar. In this case, two police officers were dispatched to investigate a domestic violence incident. By the time the police arrived, the defendant and his girlfriend left the scene of the alleged domestic violence. Both had gone their separate ways and were at different locations when the officers made contact.

When the officers approached the defendant, the defendant allegedly put his hands in his front pockets and refused to remove them. While neither officer believed the defendant was armed, they handcuffed him and conducted a pat-down search for weapons.

During the pat-down search, the officer felt a hard "golf ball-size thing" in the defendant's pocket, which he then removed, despite the fact that he knew it was not a knife or gun. The officers believed the object was powdered cocaine.

The defendant was arrested for possession of cocaine with intent to distribute. The defendant, believing that the police search violated his constitutional rights, sought to have the evidence suppressed so that it could not be used against him at trial. The trial court allowed the evidence. The defendant then entered a conditional plea to trafficking cocaine reserving on the issue of the search and seizure question.

Officers are permitted to pat-down or frisk suspects only for the purpose of officer safety. Specifically, they are allowed to search for weapons. In fact, an officer may only conduct a pat-down search if he or she believes that the suspect is armed and presently dangerous.

The search itself must be limited to what the officer needs to do in order to locate any weapons. If the officer detects something that reasonably may be a weapon, then the officer may remove it.

The courts will generally defer to an officer's judgment when determining if a pat-down search is required. In this case, the defendant's behavior, including putting his hands in his pockets and refusing to remove them, provided a basis for the pat-down search. However, in order to remove the object from the defendant's pocket, the officers were required to believe that it could be a weapon.

A pat-down search is not a search for evidence. It is strictly for the protection of the officer. In this case, the officer testified that he did not believe the object was a weapon. As such, removal of the object was not necessary for officer safety. At that point it became an evidentiary search and was therefore an illegal search under the 4th Amendment.

There is a further exception to the limited scope of the pat-down search. If the evidence would have been discovered anyway, then it may still be admissible under the "inevitable discovery doctrine." Here the police argued that it would have been discovered anyway due to a search incident to arrest on domestic violence.

The New Mexico Court of Appeals disagreed. In fact, the Court reiterated the misdemeanor arrest rule in New Mexico which requires that an officer be present at the scene of the crime to make an arrest. This rule applies equally to domestic violence and has in fact been codified in NMSA 31-1-7(A) as follows:

Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.

The State took a broad view of "at the scene" arguing that it meant in the vicinity. The Court of Appeals again disagreed using the plain meaning of the words despite some agile arguments made by the State attempting to equate it to related DWI rules.

In short, a pat-down search is limited to officer safety. It is not a basis for a full search for evidence. Naturally, this will not be the end of it as it will often come down to what the officer believed. And this is obviously open to interpretation.

Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant

Collins & Collins, P.C.
Albuquerque Attorneys

Police officers often collect evidence used in later criminal prosecutions after using search warrants to examine various places, like homes and cars. However, there are specific rules about when it is proper for officers to obtain those warrants from a judge. If a warrant is obtained without sufficient probable cause than the search is improper and the evidence found via the search cannot be used in a trial.

Earlier this year the New Mexico Supreme Court ruled in State v. Haidle held that multiple levels of hearsay are not sufficient to support a constitutionally valid search warrant. Therefore, any evidence obtained using that search warrant could not be used.

In this case the decomposed body of a woman was found in a remote area with signs that she had been killed by blunt-force trauma to the head. Over ten months later, the police received tips from a confidential source and two concerned citizens that the defendant admitted to at least one person that he killed the woman.

The police obtained a search warrant for the man's home and truck. They found a bloody t-shirt that was too small for him and a piece of living room carpet containing bloodstains that had apparently been cleaned. Using this evidence, the police then obtained a warrant for the defendant's DNA. After the blood on the carpet matched the victim's, he was arrested and charged with first-degree murder.

Before trial, the defendant sought to suppress all the evidence obtained as a result of the search of his home. He argued that the police failed to obtain probable cause for the warrant. The district court agreed that the police did not have probable cause, but allowed the evidence because it would inevitably be discovered anyway. The defendant appealed this determination, and the issue went to the New Mexico Supreme Court.

The New Mexico Supreme Court determined that the affidavit used to support the warrant included both hearsay information from unnamed informants and nonhearsay evidence gathered independently by the police. New Mexico Rules of Criminal Procedure address the use of hearsay for a basis of probable cause for a warrant. The Court in Haidle quoted those rules stating:

Rule 5-211(E) NMRA provides that when a showing of probable cause depends in whole or in part on hearsay information, the affidavit must show "a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished."

The court found that the hearsay information did not provide any evidence of truthfulness because there was no indication that the sources had provided reliable information in the past or made statements against their own interest. In short, there was no basis for the court to find unnamed sources reliable and trustworthy.

The Supreme Court then had to address whether the evidence would have inevitably been discovered, even without the warrant. First, the court rejected what it termed the "we-could-have-done-it-lawfully-so-it-doesn't-matter-that-we-didn't view." The court found that there was nothing in the record that would indicate the bloody carpet would have been discovered without the warrant. Furthermore, allowing the police to use the inevitable discovery doctrine would make the probable cause requirement meaningless.

The court then concluded that the inevitable discovery doctrine would not apply in this case. The Court's language seemed to go further though it did not outright state that the inevitable discovery rule did not apply in New Mexico.

The Court anticipated the sour feeling one might have after reading the Court's opinion. It appears that justice was denied. And many will use cases like this to attack the courts, the rules of evidence, the exclusionary rule, and of course, criminal defense attorney. However, keep in mind the words from the U.S. Supreme Court case of Mapp v. Ohio as quoted by the Court in Haidle, "[n]othing can destroy a government more quickly than its failure to observe its own laws..."

Related Reading:
Expansion of Police Investigation Under the 4th Amendment in New Mexico
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops

Collins & Collins, P.C.
Albuquerque Attorneys

One of the most common grounds for dismissal of criminal cases is violation of the Sixth Amendment Confrontation Clause. The Sixth Amendment has been used in several situations to exclude testimonial evidence and is closely guarded by U.S. courts. A recent example of this is the U.S. Supreme Court case of Bullcoming v. New Mexico.

In Bullcoming v. New Mexico the defendant was charged with DWI. The prosecution's main evidence consisted of a forensic laboratory report that certified that the Defendant's blood alcohol level was above the threshold for aggravated DWI in New Mexico. The Defendant's blood sample was tested in the New Mexico Department of Health's Scientific Laboratory Division (SLD).

However, the forensic analyst who completed, certified, and signed the report had by the time of the Defendant's trial been placed on unpaid leave, and was not called as a witness by the prosecution. The prosecution did not state that the analyst was unavailable but instead called another analyst employed at SLD to validate the report. The second analyst was familiar with the testing procedures but had not participated in the testing of the Defendant's blood.

At trial, the second analyst was allowed to testify over the Defendant's objection and the blood alcohol report was entered into evidence. The Defendant was convicted and appealed, arguing that his rights under the Confrontation Clause of the Sixth Amendment had been violated. The Supreme Court agreed with him and reversed the conviction.

The Confrontation Clause of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. Under the Sixth Amendment, testimonial evidence is inadmissible in court against a defendant unless the witness is present and the defendant has an opportunity to cross-examine the witness on their testimony.

Statements made by a witness outside of court are not admissible unless the witness is unavailable and the defendant had a previous opportunity to cross-examine that witness on their testimony. Out of court testimony includes not only witness statements, but also autopsy reports, forensic analysis results, etc. In accordance with the Confrontation Clause, the person who created the report or was present to observe when the report was being made must in most cases be present in court for the report to be admissible.

In Bullcoming v. New Mexico, the U.S. Supreme Court held that it is a violation of the Confrontation Clause to introduce a forensic lab report in order to prove a fact at trial through the testimony of an analyst who did not personally perform or observe the test or who did not sign the certification of the test. According to the Supreme Court, it is the right of the Defendant to confront the particular analyst who certified the report.

While this may at first seem at odds with New Mexico v. Gonzales later decided by the New Mexico Court of Appeals, the two cases are consistent. In Gonzales, the Court stated that the prosecution could not call an expert witness simply to parrot the findings of an autopsy report in place of the analyst who originally created the report. However, an independent analyst could use otherwise inadmissible report to come up with his or her own conclusions and opinions if the evidence was routinely used by analysts in the field.

The difference between the two cases is that in Bullcoming the second analyst was simply validating a report created by someone else while in Gonzales the expert witness would use the autopsy report created by another to draw her own independent conclusions. While this may seem like splitting hairs, it could make a serious difference in a criminal trial.

The outcome of criminal cases often turns on the admission or exclusion of evidence. It is important discuss these matters with an experienced criminal law attorney.

Related Reading:
Factors Leading to a Charge of Aggravated DWI in New Mexico
Confrontation And Victim Identifications
Prosecution Medical Experts and the Confrontation Clause in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

In a decision earlier this year, the New Mexico Court of Appeals held in State v. Montoya that a defendant's Confrontation Clause rights were not violated when the lower court prevented him from questioning the victim about their prior sexual history together.

State v. Montoya presented an interesting set of undisputed facts. The defendant and the victim were in an altercation that turned physical. He was subsequently convicted of several charges including kidnapping and aggravated battery. The only dispute in the case was over the defendant's intent. The defendant claimed his actions were not intended to harm the victim but to initiate "make-up sex" which the couple often engaged in after an argument.

During the trial, the defendant tried to introduce evidence of their sexual relationship--including their tendency to use sexual relations as a dispute resolution technique--to show its influence on his state of mind at the time of the incident. Relying on New Mexico's Rape Shield Rule, the court denied his motion to introduce the evidence.

Enacted by the New Mexico Legislature in 1975, the Rape Shield Rule prevents the admission of opinion or reputation evidence regarding the victim's past sexual conduct. The Rule only permits admission in cases where the evidence is material to the case and where its prejudicial nature does not outweigh its probative value. This is a crucial evidentiary distinction that hinges on the discretion of the judge.

Although the defendant was unable to introduce this specific evidence, he was able to introduce evidence supporting his theory. In fact, the victim confirmed that she was not in fear during the encounter and explained that the defendant's action were an attempt to get her to consent to sex. Regardless of the introduction of this evidence, the defendant claimed the court violated his right to confront the witness.

In a criminal prosecution, the Sixth Amendment to the United States Constitution--and a similar provision in the New Mexico Constitution--guarantees the accused the right "to be confronted with the witnesses against him." These Confrontation Clause protections, however, are not absolute. Instead, trial courts retain wide discretion to impose reasonable limits on cross-examination to prevent harassment, confusion, or repetition.

The court in Montoya examined a number of factors to determine if the exclusion in this case was within the acceptable parameters. Based largely on the fact that the victim had introduced similar evidence, the court determined that the probative value of the new evidence had substantially diminished and would have been inflammatory and repetitive. In other words, the court determined that the value of the information to the jury in reaching a verdict was not nearly as strong as the information's potential to mislead them.

Accordingly, this recent holding by the New Mexico Appeals Court serves to further outline what protections are--and are not--required by the Confrontation Clause in light of what has come to be known as the Rape Shield Rule.

The admission and/or suppression of evidence in a case is critical to the defense of criminal charges. It is important to discuss these matters with your criminal defense attorney.

Related Reading:
Confrontation And Victim Identifications
6th Amendment Confrontation Rights in New Mexico Domestic Violence Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution and the New Mexico Constitution guarantee the right of a criminal defendant to confront witnesses that offer testimony against them. In accordance with the Confrontation Clause, testimonial evidence is inadmissible in court against a defendant unless the defendant is able to cross-examine the witness giving the testimony. However, a recent U.S. Supreme Court case and a subsequent New Mexico Supreme Court case have both held that an identification of the perpetrator by a mortally-wounded shooting victim close to the time of the shooting is not testimonial evidence and therefore not in violation of the Confrontation Clause.

In Michigan v. Bryant police called to a gas station found the Victim mortally shot. The Victim identified the Defendant as his shooter before he died. At the Defendant's trial, police officers at the scene testified about the Victim's statements identifying the Defendant as his shooter. The Defendant was found guilty of second-degree murder, but the Supreme Court of Michigan reversed the conviction on the grounds that the officer's testimony of what the Victim said violated the Defendant's rights under the Confrontation Clause of the Sixth Amendment. The U.S. Supreme Court reversed.

The Supreme Court in Michigan v. Bryant held that the Victim's description and identification of the shooter were not testimonial evidence and therefore not in violation of the Confrontation Clause. The Court stated that police interrogations are testimonial if there was no ongoing emergency and the primary purpose of the interrogation was to determine or establish previous events with the objective of later using those statements in a criminal prosecution. However, police interrogation is not testimonial if the primary purpose for the interrogation is to facilitate police response to an ongoing emergency.

The Court stated that to evaluate the primary purpose of a police interrogation, courts must evaluate (1) the circumstances of the encounter between the police and individual that gave a statement, including the existence of an ongoing emergency, and (2) the statements and actions of both the individual and police.

For the first part of the inquiry, where the questioning took place and whether it occurred during or after the emergency are relevant. If the emergency is ongoing, it is likely that the primary purpose of an inquiry is to put an end to a dangerous or threatening situation; if the inquiry occurs after the danger is eliminated, it is more likely that the purpose of the interrogation is to establish past facts in preparation for criminal prosecution. The formality of the questioning may also be telling. While formality may indicate that the emergency is not ongoing, informality does not always, but may, indicate that the emergency is ongoing.

In Michigan v. Bryant the Court found that the Victim's identification was not testimonial because its primary purpose was to meet an ongoing threat to police and the public. Earlier this year, the New Mexico Supreme Court came to the same conclusion in a similar case in State of New Mexico v. Largo.

In State v. Largo, the victim was allegedly shot by her ex-husband. A neighbor responded and called 911. Through the neighbor, the victim identified her ex-husband as the shooter to the 911 operator and later to a police officer who responded to the scene. Both the 911 recording and the officer's testimony of what the victim said were admitted as evidence and the Defendant was convicted of murder.

On appeal, the Defendant argued that the 911 call and the officer's testimony violated his rights under the Confrontation Clause. For the same reasons as the Supreme Court in Bryant, the New Mexico Supreme Court found that since the Defendant was armed and at large, the victim's statements were not testimonial and obtained instead to meet an ongoing emergency. For this reason, the statements were allowed into evidence and the conviction was upheld.

If you are faced with criminal charges, it is important to understand your rights and defenses. Understanding issues such as the confrontation clause is very important to your defense. These issues are can be quite complicated depending on the circumstances. As such, it is highly advisable that you seek the guidance of a criminal defense attorney as soon as possible.

Related Reading:
Pleas of Co-Defendants: Admissability and Harmless Error in New Mexico
Defendants Have the Right to Pretrial Interview of State's Expert Witnesses But...
6th Amendment Confrontation Rights in New Mexico Domestic Violence Cases

Collins & Collins, P.C.
Albuquerque Attorneys

A 2011 New Mexico Supreme Court case highlights that police officers have wide discretion to ask questions during a traffic stop as long as the questions are supported by reasonable suspicion.

In State of New Mexico v. Leyva, the New Mexico Supreme Court upheld the validity of an officer's questions during a routine traffic stop for speeding where he ultimately discovered drugs in the vehicle. Immediately prior to the stop, the officer allegedly observed the defendant lean toward the passenger seat for approximately 10 seconds. Then, during the stop, the officer asked defendant if there was anything else in the car that he needed to know about. In response, the defendant volunteered that there was marijuana under the passenger seat. Continuing his search of the vehicle, the officer also found methamphetamine.

In a subsequent criminal proceeding, the defendant argued that her constitutional rights were violated by the officer's questioning and subsequent search.

Under both the U.S. Constitution and the New Mexico Constitution, the defendant asserted that she had been subjected to an unreasonable search and seizure. She argued that the questions were not justified by the initial stop, The defendant argued that the illegally gathered evidence should be suppressed. The exclusionary rule holds that when an officer engages in conduct that violates one's constitutional rights (such as an unreasonable search or seizure), the "fruits" of that search (i.e. what is found) cannot be used in a criminal proceeding.

The Fourth Amendment of the U.S. Constitution sets minimum standards for protection from unreasonable searches and seizes. Accordingly, states are free to guarantee protections beyond those found in the U.S. Constitution but cannot require any less. Article II, Section 10 of the New Mexico Constitution provides greater protection to citizens against unreasonable searches and seizures, as interpreted by New Mexico courts.

Under State v. Duran, the New Mexico Supreme Court held that all questions during traffic stops must be either: (1) reasonably related to the initial reason for the stop or (2) supported by independent and articulable reasonable suspicion. Applying this two-prong standard to this case, the court held that the questions asked were not unreasonable. Although the officer's questions did not pass the first prong, the officer did have a reasonable suspicion based on her actions that Leyva had hidden something in the car. Therefore, it was not unreasonable for the officer to question her about weapons or other contraband in the vehicle.

The important issue in this case was the officer's claim that she saw the defendant act in a suspicious manner immediately prior to the stop. The officer's ability to articulate an independent reason for the suspicion was, according to the court, enough to justify the questioning.

Though the police do have fairly broad discretion in asking questions during a traffic stop, there are limits. If those limits are not respected, the evidence will be suppressed. These are issues that should you find yourself in this situation, you would do well to discuss with an experienced criminal defense attorney.

Related Reading:
Questioning During Traffic Stop Limited to Basis for the Stop Under New Mexico Law
4th Amendment and the Plain View Doctrine
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops
Do Minors Have Broader Rights Under the 4th Amendment Than Adults?

Collins & Collins, P.C.
Albuquerque Attorneys

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. As such, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness who's statements are admitted into evidence.

In State of New Mexico v. Tollardo, the issue came up in the context of the state attempting to admit into evidence the guilty plea of a co-defendant. The facts of State v. Tollardo involved a murder in which Defendant allegedly took part. During the Defendant's trial, the prosecutor asked a police witness whether he knew if certain co-defendants had been convicted for the Victim's death. Neither co-defendant was present or a witness at Defendant's trial.

Even though the police witness was not allowed to answer the question in the presence of the jury, the court took judicial notice of the co-defendants' pleas and informed the jury of them after the State rested its case. The jury subsequently convicted the Defendant. The Defendant appealed his conviction arguing that the introduction of the co-conspirator convictions violated his right to confront witnesses against him under the Sixth Amendment.

The Confrontation Clause applies to witnesses against a criminal defendant who "bear testimony." Since pleas must be made in open court before a judge where the judge ascertains whether the defendant understands the meaning and consequences of the plea, the Court held that pleas of this kind are testimonial. As testimonial evidence, pleas and convictions of co-conspirators are inadmissible in court against a defendant to prove facts of the case unless the defendant has a chance to cross-examine the co-defendant about the plea or conviction in court.

On the other hand, if the co-defendant is available for cross examination, the co-defendant may be questioned about the plea to determine the co-defendant's credibility and possible reasons for pleading guilty. In fact, there are many reasons for taking a plea other than guilt and this is something a jury is entitled to hear.

This brought the court to a the issue of harmless error. Once a Defendant has proven a violation of the Confrontation Clause, the prosecution must prove that the error was harmless. If the prosecution cannot prove that the error was harmless, the proper remedy is a new trial. Before this case, New Mexico used a three-part test announced in the 1980 case State v. Moore to analyze whether an error was harmless. In its current opinion, however, the Court overruled the Moore test and all of the cases that applied Moore to resolve harmless error questions on the basis that the Moore test misapplied the law.

In its place, the Court held that when reviewing a harmless error question, courts should only consider an error harmless when there is no reasonable possibility that the error affected the verdict for constitutional errors, and when there is no reasonable probability that the error affected the verdict for non-constitutional errors. The Court explained the different standards for constitutional and non-constitutional errors arguing that the burden of proof should be higher when it involves a constitutional right.

The Court enumerated some factors that courts should consider when evaluating whether there was a reasonable possibility or probability that the error affected the verdict. However, the Court refused to set out a new test and instead encouraged courts to examine every case individually and make an educated judgment call as to whether the error influenced the verdict.

First off, the Court stated that a judge should weigh all of the circumstances relating to the error, including an examination of the error itself, its source, and the emphasis placed on it during trial. Courts should also look at how important the error was to the prosecution's argument, whether it bolstered facts already introduced through other evidence, or whether it presented new facts.

While this seems beneficial to defendants in that it eliminates the rigid Moore test, the real effects of this opinion remain to be seen. In any event, is it definitely a step in the right direction.

Additional Reading on the Right to Confrontation of Witnesses:
Prosecution Medical Experts and the Confrontation Clause in New Mexico
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
6th Amendment Confrontation Rights Take a Blow in the 10th Circuit

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals recently held in State v. Gonzales that the State can call a forensic pathologist as a medical expert to testify about circumstances of death even if that expert took no part in the autopsy performed on the victim. This is true even if the autopsy is ruled inadmissible and the expert relies on the autopsy to reach his or her conclusions regarding the cause of death.

State v. Gonzales involved an interlocutory appeal from a district court. An interlocutory appeal is one where the appeal is ruled on before the trial ends. The Defendant was charged with second-degree murder. A forensic pathology fellow at the Office of Medical Investigator (OMI) performed the autopsy on the victim, but by the time of the trial had moved to Washington. The prosecution decided to avoid expenses and logistical difficulties by electing not to bring him back to New Mexico to testify at Defendant's trial.

At trial, the prosecution did not introduce the autopsy report into evidence, but included another forensic pathologist from OMI on its witness list. Defendant moved to exclude the forensic pathologist as a witness on the grounds that it violated his Sixth Amendment right to confrontation of witnesses. The lower court granted the motion. This appeal followed and the New Mexico Court of Appeals held that the lower court erred in completely excluding the witness and ordered a new trial.

Both the Confrontation Clause of the Sixth Amendment of the U.S. Constitution and the New Mexico Constitution guarantee the right of a criminal defendant to confront witnesses. To this end, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness giving the testimony. An autopsy report is considered testimonial when it is performed as part of a police investigation and therefore is inadmissible unless the person who prepared the report is available in court for cross-examination by the defense. Additionally, another individual cannot simply attest to or confirm the findings of an autopsy report prepared by another person as a way to admit the report into evidence if it is otherwise inadmissible as testimonial hearsay.

In this case, the autopsy report was not introduced into evidence, but the state's expert witness would rely on the report to give an opinion on the victim's cause of death. The Court found that expert testimony would be admissible if (1) the report itself is not admitted into evidence (2) the expert's testimony will be offered through their role as an expert and not a surrogate to introduce the inadmissible report, and (3) the expert will not repeat the findings of the report's author but will reach her own opinions and conclusions as to the cause of death.

Further, the expert would be able to rely on the data and other information found in the autopsy report, even though it is inadmissible if experts customarily rely on that type of evidence in the practice of their profession. In this case, forensic pathologists often rely on the raw data, pictures, and tests found in an autopsy report to determine cause of death. The Court found that the expert could therefore rely on the information found in the autopsy report but that the reviewing court would have to be vigilant as to the degree to which the expert repeats the findings of the report.

This recent holding may seems to open the door for prosecutors to try to include otherwise inadmissible evidence. It seems to go against the grain of recent decisions such as Bullcoming and Melendez Diaz. Courts and criminal defense attorneys must be vigilant of prosecutors attempting to use witnesses as surrogates for inadmissible hearsay. It takes little imagination to envision abusive and unconstitutional tactics in attempts to circumvent 6th Amendment Rights.

Related Reading:
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
Defendants Have the Right to Pretrial Interview of State's Expert Witnesses But...
Forensic Testimony in New Mexico Drug Prosecutions

Collins & Collins, P.C.
Albuquerque Attorneys

The 4th Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. The New Mexico Children's Code further protects juveniles and sometimes expands their constitutional rights.

In a recent opinion involving juvenile criminal charges, however, the New Mexico Court of Appeals held that in relation to 4th Amendment searches and seizures, under the Children's Code minors have no greater rights than adults. Specifically, an officer is not required to advise a minor of his right to refuse consent to a search of his vehicle.

The underlying case in State v. Carlos A. involved a routine traffic stop for a non-functioning license plate light. The Defendant driver was seventeen years old at the time. When the officer pulled the Defendant over, he noticed a strong odor of marijuana and asked Defendant if he would consent to a search of his person.

The driver consented. Upon finding nothing suspicious from the search, the officer called for backup and when backup arrived asked Defendant whether he would consent to a search of his car. Defendant agreed to the search whereupon marijuana and other paraphernalia were found. The defendant was then placed under arrest and charges were brought against him. The time between the stop and the end of the automobile search was no more than ten minutes and the entire exchange was non-threatening and cordial at all times.

At trial, the Defendant filed a motion to suppress the evidence from the search of his car. The Defendant argued that his consent was involuntary because officers were required to inform him of his right to deny consent to the search due to his status as a minor under the New Mexico Children's Code. The district court and the New Mexico Court of Appeals both disagreed.

Under the 4th Amendment, any unreasonable search or seizure by government agents requires a search warrant unless there is a recognized exception. Consent is one of the exceptions to the warrant requirement. To demonstrate consent, the prosecution must show that under the totality of the circumstances, the consent was voluntary and not the product of intimidation or coercion.

To assess the totality of the circumstances, a court must evaluate all of the factors involved, including the particular situation of the person giving consent, the circumstances of the detention, and the behavior of the government agents requesting consent. One of the factors considered is whether the defendant was advised of his or her right to refuse consent. However, being advised of the right to refuse consent is only one factor to consider and not dispositive of the question of whether consent was voluntary under the totality of the circumstances analysis.

Having established that the 4th Amendment does not require a police officer to advise an adult of their right to refuse consent to a search, the Court of Appeals went on to analyze whether the New Mexico Children's Code required it when the person giving consent was a juvenile.

Under Section 32A-2-14(C) of the Children's Code any juvenile interrogated by police must first be advised of his or her rights. This provision basically mirrors the 5th Amendment right to remain silent and a warning that anything said will be used against them. However, the Court in this case refused to expand this protection to 4th Amendment searches and seizures making the distinction between a consensual search and a custodial interrogation.
Therefore, as the law in New Mexico stands, a juvenile's 4th Amendment rights are not violated if he or she is not advised of the right to refuse consent to a search if the consent was otherwise voluntary. While the fact that the juvenile was not made aware of their right to refuse consent will be a factor in determining whether the consent was voluntary, it is not dispositive. If, as in this case, the detention was brief, in public, and the officers showed no signs of intimidation, it is likely that consent will be deemed voluntary even if the juvenile was not advised of his right to refuse.

Each case is unique and requires individual analysis. Moreover, the case does nothing that would allow a nonconsensual search. In any case where the search was non-consensual or perhaps unknowing, it is important to raise these issues with your child's criminal defense attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The "plain view doctrine" applies to searches and seizures under the Fourth Amendment of the U.S. Constitution. In simple terms, the plain view doctrine allows an officer to seize evidence without a warrant if it is in plain view of the officer.

For the plain view doctrine to apply, the seizure must meet the following three requirements: (1) the officer must have been legally on the premises, (2) the object must have been in plain view, and (3) it must have been immediately apparent that the object was incriminating.

An officer has to be legally on the premises for the plain view doctrine to apply. If the evidence was viewed from a public space, the officer was legally allowed to be on the premises. This would apply when an officer views a gun inside an open window of a house from a public sidewalk or when an officer sees a bag of narcotics on the dashboard of a vehicle at a routine traffic stop.

If, on the other hand, the officer is inside a private residence or place of business, the officer is required to have probable cause or a warrant to be on the premises in the first place. Officers can also legally be inside a private residence or place of business when there is consent or when exigent circumstances require it.

The object must be in plain view. An officer is not allowed to move objects to get a better view of an object. For example, a police officer is not allowed to move the curtains in an open window of a residence to get a better view of the home. Officers are also prohibited from moving an object to get a better view of the serial number unless they have a warrant to do so.

Similarly, officers are not allowed to open closed containers unless there is a warrant to search for an object that is likely to fit in said container. For example, if an officer has a warrant to search a suspect's home for a stolen television, the officer is not allowed to open the suspect's purse.

The incriminating character of the evidence must be apparent immediately. Incriminating character of evidence usually involves objects that are likely to be stolen, items used to commit crimes, illegal items, or other evidence of criminal activity.

For example, if police are serving a search warrant for an unrelated crime and find a table with hundreds of different credit cards from different banks and under different names, it is likely that they are stolen and therefore the plain view doctrine applies.

Items used to commit crimes include all types of weapons as well as gadgets like prohibited credit card scanners. Illegal items often involve drugs. The illegal items might also relate to instrumentalities of crime under investigation. For example, if police are serving a search warrant for evidence of weapons used in a bank robbery and an officer sees a black ski mask on a chair like the one worn by the suspect at the scene, the mask may be taken into evidence.

Officers and prosecutors may try to take advantage of the plain view doctrine in order to admit otherwise inadmissible evidence. They may venture into areas where they are not legally authorized to be. They may enter a home or business without the proper consent. They may move items in order to bring an item into plain view. They may seize evidence that is not particularly indicative of criminal activity.

The 4th Amendment is among the greatest protections afforded citizens. If evidence has been seized from your home, business, car or other private property, it is important to consult with an experienced criminal law attorney to ensure that your Fourth Amendment rights are protected.

Collins & Collins, P.C.
Albuquerque Attorneys

Cellular phones have become a ubiquitous part of everyday life. According to CTIA Wireless Association, 302.9 million people in the U.S.--over 96% of the population--carry a cell phone. However, the price of being permanently "connected" via your cell phone may just be your privacy.

Several times each minute, cell phones register with the network when getting a wireless signal. This function cannot be turned off, and creates a very accurate record of where an individual is virtually every minute of their lives. Police and other law enforcement increasingly use cell phone tracking in emergency and non-emergency situations alike.

The ACLU recently released a study that examined the use of cell phone tracking by a number of law enforcement departments. The findings contains findings from over 380 public records requests and 200 responses made to and from police departments from 31 states around the country. To say the least, the results are alarming. According to the ACLU, police departments are repeatedly using cell phone tracking in situations where they have not obtained a warrant in violation of the 4th Amendment.

Under the 4th Amendment of the U.S. Constitution, an individual has the right to be free from unreasonable searches and seizures unless the search or seizure is supported by a warrant based on probable cause. Even though there is no law specifically concerning cell phone tracking, an analogy can be made with the recent case of US v. Jones where the Supreme Court ruled that government agents were required to obtain a warrant before placing a GPS tracking system in a suspected drug dealer's car. Attorneys argue that it should be no different when a person is tracked through the GPS in their cell phone. However, it seems that police departments around the country have routinely failed to obtain warrants for purposes of tracking individuals' cell phone activity.

Nearly all of the 200 responses received by the ACLU from state and local law enforcement departments stated that they employed cell phone location tracking in some way. Only 10 respondents stated that their department never tracked cell phones. The practice is so common that cell phone companies have manuals for communicating with police officers and some charge police departments "surveillance fees." Some police departments have even acquired their own cell phone tracking equipment. A very small number of respondents reported regularly obtaining a warrant to access and individual's phone location information.

In New Mexico, the ACLU sent out requests to the Albuquerque, Las Cruces, and Roswell police departments. Only the Albuquerque PD (APD) responded to the request. The request and response can be found at: https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-documents-new-mexico#Albequerque.

In its response, the APD stated that it obtains a warrant or subpoena based on probable cause except in cases of "exigency." The response did not include an explanation of the standards used to determine exigency. The APD response also stated that any records obtained from a cell phone company were stored with each case file in the APD Records division, presumably indefinitely.

One of the biggest problems cited by the ACLU was the lack of a uniform laws concerning cell phone tracking policies. Federal and state laws regarding electronic surveillance are outdated, contradictory, and in some cases do not even exist.

To address these shortcomings, there is currently a bipartisan bill, the Geolocation Privacy and Surveillance (GPS) Act, before Congress aimed at protecting privacy rights from police use of GPS tracking via cell phone. This bill would require law enforcement to obtain a warrant based on probable cause before accessing cell phone location information. These privacy protections are needed equally by all citizens, law-abiding and otherwise.

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