Albuquerque Criminal Lawyer Blog

The recent case of State v. Almeida illustrates the gravity of an illegal search and seizure in New Mexico. The case did not involve any deliberate wrongdoing by the officer. Rather, the case involved a stop of a vehicle based upon the officer's mistaken understanding of the traffic code.

The defendant, Rafael Almeida, had a couple of run-ins with the law on the day in question. First, he was stopped for running a stop sign. He provided false identification, was cited, and was allowed to continue on his way. Mr. Almeida later was stopped by another officer for what the officer believed to be an illegal execution of a left hand turn when he failed to complete his turn in the left most lane out of the intersection.

The officer questioned a very nervous and trembling Mr. Almeida. The officer noticed that the steering column was damaged with the ignition switch hanging from it. This indicated to the officer that the car might be stolen. Mr. Almeida was unable to produce a driver's license. The officer then asked Mr. Almeida to step out of the car at which time the officer noticed a gun on the floor of the vehicle.

Mr. Almeida was arrested and charged for a number of misdemeanors and felonies including felon in possession of a firearm and perhaps most notably under the circumstances the violation of the New Mexico Motor Vehicle Code for the presumed illegal turn.

Mr. Almeida filed a motion to suppress which was denied by the trial court. Consequently, he entered a conditional plea reserving his right to appeal on the issue of the legality of the initial stop. The New Mexico Court of Appeals reversed the trial court's ruling on the suppression motion.

The Court of Appeals, upon review of the traffic statute in question, found that there is no requirement that a motorist turn into the left-most lane on a left hand turn. The court found that the relevant "section simply does not specify a particular lane that the driver must end up in once the turn is completed." As a result, Mr. Almeida had violated no traffic laws and the officer had no right to stop him.

The Court of Appeals had previously held in State v. Anaya that a mistaken belief that a traffic offense has occurred cannot supply the reasonable suspicion necessary for a traffic stop. As such, the stop was illegal and all evidenced discovered after the illegal stop was suppressed. In other words, Mr. Almeida, at least on this occasion, is a very lucky felon.

In this case, there will be those that are taken back by the ruling. However, one might consider the consequences of allowing officer's to stop vehicles or initiate other types of searches and seizures under a mistaken belief in the law. Not only would this encourage ignorance of the law by officers, it would open up significant potential avenues for abuse by officers inclined to engage in illegal search and seizure. Fortunately, the New Mexico Court of Appeals will not go down that road.

Collins & Collins, P.C.
Albuquerque Attorneys

It is well established that a woman's purse is protected against unlawful search and seizure. Time and time again, the courts have ruled that "a purse is the type of container with which a person possesses the highest expectation of privacy."

The limits of these protections were tested in the recent New Mexico Court of Appeals case of State v. Tiffany Bond. In the Bonds case, the defendant was convicted on one count of possession of a controlled substance, fourth degree felony. The defendant had entered a conditional plea reserving her right to challenge the legality of the search and seizure of the evidence against her.

In a nutshell, Ms. Bond was a passenger in a stolen vehicle. The stolen car was tracked by GPS and pulled over. During the ensuring investigation, the police officer turned his sights on Ms. Bond's purse. Ms. Bonds acknowledged that the purse was hers but disavowed ownership of a smaller black bag in the purse which was visible to the officer. Due to Ms. Bond's denial of ownership of the black bag, the officer removed it from her purse, searched it and found the meth with which she was charged.

The defendant on appeal argued that she had not consented to the search of her purse and therefore the search and seizure of the black bag was illegal under the 4th Amendment and Article II, Section 10 of the New Mexico Constitution. The state did not deny that there had been no consent to search the purse or the black bag. However, the state argued that because Ms. Bonds had disavowed ownership, no consent to the search was necessary to search the black bag. To hedge its bets, the State argued in the alternative that the search was legal under the "plain view doctrine."

The Court of Appeals disagreed on both grounds stating the search was illegal under the 4th Amendment. As such, the Court found it unnecessary to enlist the broader protections of New Mexico's Constitution.

The Court began with the basic premise that warrantless searches are presumed unreasonable with the burden on the State to prove the search reasonable. The Court shot down the argument of the State that denial of ownership necessarily waives the need for consent. The Court recognized case law to the contrary. However, in this case, the Court recognized that the denial of ownership was likely simply an attempt by the defendant to escape responsibility for the drugs in case they were discovered. The Court also recognized that disavowal of ownership of the black bag did not waive protections over the purse itself from which the bag was seized.

The Court finally addressed the State's "plain view" arguments in short order. The plain view doctrine requires that the evidence be not only plainly visible to the officer but also that the incriminating nature of the evidence be plainly apparent. Clearly, a black bag by itself does not and should not elicit suspicion sufficient for search and seizure and the Court ruled as much.

In short, a suspect admitting ownership of a purse but denying ownership to the contents does not give an officer the right to search the contents. It is not hard to imagine how a contrary ruling would lead to significant abuses by law enforcement.

Collins & Collins, P.C.
Albuquerque Attorneys

False imprisonment is a fourth degree felony. As a felony, it has very serious felony consequences for the defendant. A true case of false imprisonment is a very serious matter deserving of serious treatment by the prosecutor. However, the charge of false imprisonment is often thrown in on the most whimsical evidence.

The New Mexico criminal statutes define false imprisonment as "intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so." Though the statute is intended to address very serious and specific behavior, the broadness of the language allows it to be applied in a fairly arbitrary manner.

The most common incidence of overcharging a defendant for false imprisonment arises in domestic settings. The charge is often coupled with domestic violence charges such as assault or battery on a household member. The creativity with which it is applied to the facts often comes as a surprise to both the defendant and the alleged victim.

For instance, and not uncommonly, the alleged victim will tell the police that the defendant was blocking a doorway so she could not get out of a room. The alleged victim may give this statement with little consideration, not knowing, and not intending to suggest the crime of false imprisonment. There are countless variations on this theme where the alleged victim suggests in some small way that her right of ingress or egress was inhibited.

Due to the broad language in the statute, prosecutors have a great deal of latitude in bringing the charge of false imprisonment. Unfortunately, the charges are brought far too often on fairly innocuous behavior and well beyond the intended grievance of the alleged victim. The defendant rightfully will be very alarmed by the felony domestic violence charges. Frequently, the alleged victim is equally outraged by the hyped up charges.

Because of the serious potential consequences of a felony conviction, it is important to address these types of charges early. On occasion, depending on the circumstances, it is possible to avoid indictment on false imprisonment charges if the charges are addressed early enough. Once the indictment is issued, there are still some though fewer options to avoid a felony conviction.

Anyone facing false imprisonment and felony domestic violence charges should contact a attorney experienced in criminal and domestic violence charges as soon as possible. Delay in addressing the problem may seriously impede possible defenses.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Court of Appeals has drawn strict parameters around appeals of grand jury indictments. In so doing, it appears that the reach of Jones v. Murdoch has been sharply curtailed.

In State v. Yaw, the defendants through their attorneys issued a "Murdoch letter" to the prosecutor requested certain exculpatory information be presented to the grand jury under Jones v. Murdoch. The prosecutor did not comply with the request of the defendant.

Under Jones v. Murdoch, a hearing was held by the district court judge to determine whether the evidence should be presented. The district court judge determined that the evidence need not be presented to the grand jury.

The grand jury hearing was held. The proposed exculpatory evidence was not presented. The defendants were indicted. Following the indictment, the defendants appealed.

State v. Yaw sets forth some interesting and important guidelines regarding the operation and effect of Jones v. Murdoch. The Court of Appeals drew a distinction between appeals of grand jury process and reviews of grand jury evidence.

The Court asserted that violations of grand jury process are always appealable citing such improprieties as improper persons in the grand jury room or failure to instruct on the elements of the offense. To the contrary, the Court ruled that evidentiary findings by the grand jury would not be reviewed.

This seems to be a rather odd ruling in light of Jones v. Murdoch since by definition, failure to present exculpatory evidence suggests a review of the evidence. To resolve this apparent contradiction, the Court distinguished between pre-indictment appeal and post indictment appeal then basically rules their are no rights to appeal on either.

Interestingly, the Court stated that Jones v. Murdoch provided for no appeal of the district court's ruling except under extreme circumstances on the filing of an extraordinary writ. These cases appear from the Court's ruling to be limited to cases of prosecutorial misconduct. The Court stated that the defendant must show bad faith on the part of the prosecutor in its failure to present the exculpatory evidence. Unfortunately, the Court failed to define precisely what it meant by bad faith or prosecutorial misconduct.

In light of the great deference provided to the district court in ruling on the admission of Murdoch letter evidence, the hurdle seems almost insurmountable. For all practical purposes, except in the most extreme cases, the ruling of the district court is final under State v. Yaw. Hopefully, the case will be taken up by the New Mexico Supreme Court. As it stands under Yaw, defendants are left with pretty no remedy for violations of their grand jury rights under Jones v. Murdoch.

The Albuquerque Police and the Albuquerque District Attorney are getting more and more creative in their charges of DWI. This is nothing new.

In the past, they have charged and convicted individuals for DWI for sleeping off a drunk in their car. They regularly prosecute individuals at breath alcohol levels below, sometimes well below, the .08 legal limits. They have charged at least one driver with DWI for driving while on prescription medication designed to enhance attention and concentration. So it should come as no surprise that they are prosecuting a person of DWI for allegedly allowing another to drive drunk.

In the case of State v. Janet O'Dell, Ms. Odell is charged for DWI for allowing her friend to drive drunk. According to news reports, Ms. O'Dell was not even in the car with her friend at the time of his arrest. She was in another car. But she allegedly had given her friend her keys knowing that he was intoxicated. Allegedly she told the officer that she allowed her friend to drive because she was drunker than he was.

The new and creative approach is based upon the 2009 case of State v. Marquez where a passenger was charged and convicted for vehicular homicide. The facts of that case were unique and extreme where both the passenger and driver were on a very dangerous binge of drinking and driving that ended in the death of 2 and severe injuries to 5 more in a van that they struck.

In O'Dell's case, she simply handed over the keys. She was according to the report so drunk that she could not figure out how to get out of the second car in which she was found by police. It appears from the news reports that she was neither complicit in getting her friend drunk, nor did she encourage him to drive.

Several questions arise with the O'Dell case. Will this case set precedent allowing all passengers to be charged in a DWI case? How are the passengers to know if the driver was drunk? This is particularly problematic in light of New Mexico's DWI standard of "impaired to the slightest degree." With this standard, a driver may have a breath alcohol level of well below .08 but be impaired under New Mexico law. This is difficult enough but what if the driver is on Ritalin or Adderall which is now charged as DWI as in the Ron Bell case? How will a passenger judge impair,ment in these situations?

Simply put, how is one to know that the driver is impaired by New Mexico's vague, loose and ill-defined standards. In fact, how are they to know if the person is over .08? Should we now all be held to account for failure to measure blood alcohol before entering a vehicle?

What about spouses, girlfriends/boyfriends, business associates, employees? How about an employee who gets in the car with his or her boss after the boss has had a few? What if the boss is known to drink regularly but the employee did not see him drink today? The fact is if the Albuquerque District Attorney is allowed to proceed on this new and incredibly broad theory, then each and every one could be charged with DWI. There is in fact no limit to the hypothetical situations that might lead to a passenger charge of DWI.

DWI is a serious problem. DWI drivers should be punished. But should their friend, family and associates all be taken down with them?

Collins & Collins, P.C.
Albuquerque Attorneys

In the case of criminal charges in New Mexico, a conditional discharge is often a very positive outcome. A conditional discharge will result in the eventual dismissal of the charges.

A conditional discharge allows for the disposition of the criminal charges without an adjudication of guilt. This means that the defendant is never found guilty of any crime so long as all conditions of probation are met.

However, to get a conditional discharge, the defendant must enter a plea of guilty or no-contest. In the event of a violation of the terms of the conditional discharge, the plea then turns into a conviction.

The conditional discharge does not wipe the record clean. Though there is no conviction, there will always remain a record of the charges and the proceedings. As such, anyone doing a background check on the defendant will see that the charges were filed and dismissed.

Because there was no conviction, many defendants believe that the record should be expunged. The mere fact of the charges can have very serious consequences in the future. Unfortunately, despite the fact of the dismissal, the New Mexico Courts have held consistently the right to expungement to be very limited.

The issue came up most recently in State v. C.L. State v. C.L. addressed in depth the right to an expungement. In State v. C.L., a showing of adverse employment consequences due to the court record was expressly held to be insufficient for an expungement. Under the New Mexico Court of Appeals ruling in C.L., an expungement is possible only in case of a finding of unlawful arrest or unlawful conviction.

Unfortunately, a conditional discharge meets neither of these criteria. The conditional discharge is meant as a second chance of sorts. However, a conditional discharge will not completely wipe the record clean. This is possible only through expungement which is difficult and rare to put it mildly.

Collins & Collins, P.C.
Albuquerque Attorneys

Expungement of a criminal record is very difficult, and in New Mexico very rare. In order to obtain an expungement, the defendant/petitioner must show extraordinary circumstances justifying the expungement. As it happens, this is a near impossible standard in New Mexico as the law now stands.

The 2010 New Mexico Court Appeals case of State v. C.L. makes clear that adverse employment consequences do not rise to the level of "extraordinary circumstances." Rather, the court stated that adverse employment consequences are not an extraordinary consequence but a natural result of a criminal charge or conviction.

State v. C.L. involved an individual that was charged with first degree felony child abuse resulting in great bodily harm. She pled to 4th degree felony child abuse on a conditional discharge. The conditional discharge indicated that upon successful completion of the terms of 5 years of probation, there would be no adjudication of guilt. In fact, the petitioner was released early from probation due to her performance on probation.

The petitioner was denied several employment opportunities due to the charges despite the fact that there was no adjudication of guilt. She therefore sought to have her the charges expunged and all records related to the charges sealed.

The Court of Appeals recognized that many states allow district court judges authority to expunge criminal records. The Court, however, refused such authority for New Mexico's district court judges.

Petitioner's arguments of extraordinary circumstances based upon the fact that she was only an accessory, she entered an Alford plea, she was granted a conditional discharge, she was released early from probation and finally that she was suffering adverse employment consequences collectively did not amount to "extraordinary circumstances."

The Court did not expressly set forth the criteria necessary to establish "extraordinary circumstances." However, the Court in addressing the shortcomings of the petition did suggest some very strict parameters for an expungement. The Court referenced the 1997 New Mexico Court of Appeals case of Toth v. Albuquerque Police as follows:

" in Toth, Defendant does not challenge the accuracy of the information "in her record[,] . . . the general interest of law enforcement agencies in retaining" the criminal records, or "the lawfulness of the underlying arrest," and she has not demonstrated "that the dismissal of [the] charges against [her are] predicated on factual innocence."

In short, based upon this language, it appears that to show "extraordinary circumstances" necessary for an expungement, the defendant/petitioner would have to show inaccuracies in her criminal record, constitutional violations suggesting unlawful arrest, and/or a wrongful conviction. This is an extraordinarily high hurdle that very few defendants will be able to meet.

Collins & Collins, P.C.
Albuquerque Attorneys

Stalking is a common domestic violence charge in New Mexico. The definition of stalking under the New Mexico statutes is fairly broad allowing prosecutors great latitude in bringing stalking charges.

Under the statute, stalking is defined to include any of the following acts on more than one occasion:

1) following a person in a place other than the residence of the alleged stalker, 2) placing another under surveillance by being present outside the person's residence, school, workplace or motor vehicle or any other place frequented by that person, other than the residence e of the alleged stalker, or 3) harassing another person.

Each and every element of the definition can be read very broadly to include some fairly innocuous behavior. A first time stalking offense is a misdemeanor. Under the prior law, a 3rd offense was a 4th degree felony.

However, due to the growing concern with domestic violence, the law was amended in 1997 to make a second offense a 4th degree felony. In addition, aggravated stalking may be charged for knowingly violating a protective order or no contact order.

Aggravated stalking is also a 4th degree felony. Aggravated stalking consists of knowingly violating protective order, violating a no contact order under conditions of release, stalking while in possession of a deadly weapon, or stalking a person under 16 years of age.

A 4th degree felony carries very serious penalties with possible jail time of 18 months and fines up to $5000 for each count. Most prosecutors will charge the offense of aggravated stalking only in cases involving real and serious danger to a victim. Others may err on the side of caution and charge it whenever the statute allows. Then there are those prosecutors that will charge everything conceivably possible under the alleged facts in order to gain strategic advantage. And felony charges most definitely place enormous plea pressure on a defendant due to the great risks associated with conviction.

To avoid any risk of charges for aggravated stalking, a person under a protective order or no contact order should have absolutely no contact with the alleged victim of any kind. This means avoiding contact even when the alleged victim initiates the contact. Charges under these circumstances are far too common.

The statute reads that a mutual violation "may" constitute a defense. Thus, a mutual violation is not an absolute defense. Nor does a mutual violation prevent the charges from being filed.

In short, it is highly inadvisable to test the boundaries of the statute. In a case of alleged domestic violence or stalking, the defendant should either stay away from the victim, or get the protective order or no contact order lifted. Any other course of action is extremely risky carrying very serious felony consequences.

Collins & Collins, P.C.
Albuquerque Attorneys

The holiday season is a joyous time of year when people get together and celebrate. It's important to remember if you're going to drink, do it responsibly. New Mexico is serious about keeping drunk drivers off the road. Law enforcement is aware people will be drinking and driving during this time of year so they are quite busy, by performing super blitzes and added DWI checkpoints.

This is something to keep in mind this holiday season as it happens far too frequently good people get arrested for DWI. When going to holiday parties make sure there is a designated driver if you plan to consume alcohol. Any alcohol!

This is especially important if you bring the kids to the holiday party. When a person is charged with DWI and a child is in the car, the driver will routinely face a charge of negligent child abuse in addition to the DWI charge.

Negligent child abuse is a third degree felony. Typically officers will charge one count of felony child abuse if there are one or more children in the vehicle. However, it is possible that a separate count of felony child abuse could be charged for each child.

DWI charges are disastrous in their own right. Felony child abuse is far worse. For first time offenders, it is a third degree felony. For second and subsequent offenses, it is a second degree felony. In the event the child is injured, it's a first degree felony.

If convicted of DWI, it is fairly simple to get a conviction of felony child abuse. The reasoning behind the charge is adults are putting children in a situation that may endanger the child's safety. The consequences of a felony conviction are severe. A basic sentence for a third degree felony is imprisonment for three (3) years and a fine not to exceed five thousand dollars ($5,000). It gets far worse for 2nd and 3rd degree felonies. These charges and penalties are in addition to the DWI fees and fines which are steep in themselves.

Have a happy and safe holiday season with your family. If you drink, do not drive!

Collins & Collins, P.C.
Albuquerque Attorneys

The great majority of juvenile criminal cases, whether misdemeanor or felony, do not go to trial but end with a plea bargain.

As part of the plea bargain the delinquent child is usually put on probation. As soon as the plea agreement is signed the judge orders the delinquent child to meet with an intake probation officer, and then they are assigned a permanent probation officer.

Terms of probation range from six months to 2 years though the court can exercise jurisdiction and extend probation until the delinquent turns 21. In fact, every offense under the juvenile code carries up to two years in detention. Actual incarceration is the exception for all but the most serious and/or serial repeat offenders and those children that simply will not comply with the terms of probation.

It is the job of the probation officer to monitor the child to make sure they are in compliance with their probation agreement. Some of the conditions in the probation agreement include but are not limited to obeying all state and federal laws, going to school, not possessing weapons, not associating with certain individuals, restrictions on driving privileges and getting a job. In addition, there are two more that trip kids up the most: violations of curfew and violation of the prohibition on the use of drugs or alcohol (particularly marijuana).

Probation Officers set up appointments for the child to come to their office so they can meet. During that meeting the Juvenile Probation Officer will often ask the child to take a urine analysis to test for drugs and alcohol. If the child tests positive for drugs or alcohol the probation officer can ask the children's court attorney to revoke the delinquent's probation and spend the rest of their sentence in jail. More common for a first dirty urine test, the probation officer will call for more frequent meetings with probation along with random urine testing.

Assuming all else fails in the supervision of the child, the probation officer may recommend the revocation of probation. In order to revoke the child's probation, the children's court attorney must file a probation violation which will be followed by a hearing where the probation officer states the violation and makes a recommendation to the Judge. The Judge may revoke probation or some other type of sanction to get the child's attention to comply with the probation agreement.

If at the tail end of a probationary period the child is not complying and the child is over the age of eighteen, the probation officer may suggest a 15 day and cut. A fifteen day and cut means that the child will spend 15 days in jail and is cut from probation with an unsatisfactory discharge.

Finally, and perhaps most importantly for those children that are serious about turning things around, the probation officer does have discretion to request that the court release the child from probation early. As such, if a child is doing well on probation, the probation officer may ask the Judge to reduce the amount of time the child is on probation. This should serve as a great incentive for compliance if possible detention is not enough.

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

Though it can be a pain, failure to balance your checkbook can be significantly more painful in New Mexico. Under New Mexico's Worthless Check Act, a bounced check over $25 may be charged as a felony.

Business establishments may report individuals who write bad checks to the District Attorney who will prosecute the matter. It is a serious crime in New Mexico to write a check without enough funds or credit in your account. This is particularly true of late with a new focus on property crime in Albuquerque. The possible penalties for even inadvertent NSF checks (hot checks) can be severe.

The penalty for writing a NSF check for over $1 but less than $25 is a fine up to $100 and up to thirty days in jail or both. The penalty for writing a NSF check for over $25 is a fine up to $1,000 and imprisonment of not less than one year and up to three years in the Department of Corrections. The penalties are intentionally severe with the Worthless Check Act's stated purpose to "remedy the evil of giving bad checks".

The defense to these charges is rather limited. Defenses to these types of cases are limited to such things as a stolen check book or identity theft. Failure to balance the checkbook is not a defense.

District Attorneys and prosecutors in the State of New Mexico work closely with small businesses in the community to prosecute check fraud. Once a person is on notice that they are being prosecuted for a worthless check it is important to immediately address the charges. Though there are few defenses, there are several possible early resolutions to the charges.

These include diversion programs, pre-indictment resolutions, pre-prosecution probation, and other possible resolutions to avoid jail time. In some cases, depending on the circumstances, it may be possible to avoid felony charges altogether. In many others, it is possible to eventually clean up your criminal with a resolution that results in an eventual dismissal.

Diversion Programs offer a very good alternative for those charged. The Diversion program is an alternative for the District Attorney to prosecuting a worthless check case. The essence of Diversion is restitution. In short, the person gets to work out a payment plan and the case will be dismissed by the District Attorney.

Where Diversion is not an option, there may be other options to keep a conviction off a person's criminal record. In all these cases, it is critical to address the problem early. Ignoring the problem, like ignoring the checkbook balance, is not a solution. The further the case moves along, the fewer the options available for resolution.

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

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

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

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

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

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

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

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

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

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

Puncturing a car's gasoline tank to steal gas may be charged as burglary under New Mexico Law. By statute, burglary of an automobile is a 4th degree felony punishable by up to 18 months in prison and $5000 fine.

In State v. Muqqddin, the defendant used a nail to puncture a gas tank and steal the gasoline from what he believed was an abandoned vehicle. The facts showed that the vehicle had been parked in an alley for 6 months. However, the owner of the vehicle indicated that he had not abandoned the vehicle but rather was going to donate it to charity or sell it for salvage.

Mr. Muqqddin was convicted of burglary. He appealed the conviction on two grounds. First, he argued that puncturing the gas tank did not fall within the definition of burglary. Second, he argued that he believed the vehicle was abandoned and therefore he lacked the requisite intent necessary for a burglary conviction.

The New Mexico Court of Appeals upheld the conviction. Though sympathetic to Mr. Muqqddin's arguments, the Court noted that the act of puncturing the gasoline tank to steal gasoline clearly fell within the statutory definition of burglary. The statute defined burglary as "the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein."

The Court analogized to past cases in New Mexico. In the 1984 New Mexico Court of Appeals case of State v. Rodriguez, it was found that reaching into the back of a pickup bed to steal a toolbox. In the 1990 Court of Appeals case of State v. Reynolds, the defendant was convicted of burglary for reaching into the engine compartment from underneath the vehicle to steal the starter.

The more interesting aspect of the appeal was in Muqqddin's challenge to the finding of intent by the jury. The 1952 United States Supreme Court case of Morissette v. United States established that abandoned property belongs to nobody and therefore may be "appropriated by the first taker." Mr. Muqqddin arguably believed that the vehicle had been abandoned. The evidence seemed to show that this was not an irrational conclusion.

The Court of Appeals did express sympathy for Mr. Muqqddin's situation. However, the Court refused to reverse the jury's factual finding of intent stating that it would not substitute's the Court's own finding for the finding of the jury.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The "knock and announce" rule that has arisen under the 4th Amendment protections against unlawful search and seizure requires officers to wait a reasonable amount of time for an occupant's response before resorting to forcible entry. The amount of time that is reasonable is dependent upon the circumstances.

In State v. Ulibarri, the New Mexico Court of Appeals found that 10 to 12 seconds was insufficient under the circumstances of the case. In Ulibarri, the defendant was convicted on a conditional plea to felony possession of heroin and cocaine. The evidence was seized during the search of the defendant's grandfather's home. The defendant was not present at the time of the search. He was already in custody. The only occupant at the time of the search was the defendant's 75 year old grandfather.

It was admitted by the 12 member police team that executed the warrant that they waited only 10 to 12 seconds after knocking and announcing before kicking in the door. Unfortunately, the grandfather who was trying to get to the door was knocked down and injured as the door struck him.

The Court spelled out the purposes of the "knock and announce" rule which is to prevent the needless destruction of property, avoid violence toward both the police and the occupants, to protect individual privacy, and particularly relevant here, to avoid unnecessary injury to the occupants. Failure to abide by the rule results in the suppression of the evidence.

The State in its appeal argued that it was customary to wait only 10 to 12 seconds based upon a couple of cases involving hotel rooms and mobile homes. The Court distinguished these cases stating that 10 to 12 seconds might be reasonable in such small quarters. The Court further distinguished these cases since the suspects were known to be present during these forced entries.

The State further argued that exigent circumstances will allow for shorter waiting times to protect officer safety. However, the Court pointed out that the State had not argued exigent circumstances at trial but rather that 10 to 12 seconds was by law a sufficient waiting period.

The Court emphasized that there were no bright line rules for proper waiting period. Instead the reasonableness of the wait is viewed under the totality of the circumstances. Most importantly, the Court reaffirmed that it is the State's burden to "show the reasonableness of the execution of the warrant." In this case, the Court determined the State had not met its burden and therefore the conviction of Mr. Ulibarri was reversed.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the issue of judge shopping by the prosecutor in State v. Cornelius White.

Mr. White was charged with felony DWI and battery on a police officer. The prosecutor took the case before a Magistrate Court judge on a preliminary hearing. The judge found that there was no probable cause and dismissed the case.

The prosecutor then filed a criminal complaint in district court on the same facts. The district court remanded the case to magistrate court for a preliminary hearing. The case landed back before the original magistrate. The state then recused the judge on a peremptory excusal.

The case was then sent to another magistrate court judge. The new magistrate judge simply listened to the transcript of the original magistrate court preliminary hearing. Upon the very same facts and testimony presented at the first preliminary hearing, the new judge found probable cause and bound the case over to district court on the felony charges.

Mr. White entered a conditional plea preserving his appeal on the legality of the prosecutor's tactics. Mr. White argued that the State was barred by collateral estoppels from presenting identical allegations and evidence following the original dismissal at the preliminary hearing. He further argued that the original magistrate court judge was improperly recused. He argued finally that his rights to a speedy trial under the 6th Amendment had been violated.

The New Mexico Court of Appeals agreed with Mr. White that the subsequent criminal complaint was barred by collateral estoppel and that the original judge was improperly recused. This was sufficient for reversal of Mr. White's conviction and it was unnecessary to address the speedy trial issue.

On the issue of collateral estoppel, the general rule is that a finding that there is no probable cause by a magistrate court judge at preliminary hearing is binding. It is binding both on the judge that made the ruling and any other magistrate court judge. In order to re-file the charges, the prosecutor must produce additional evidence in support of the allegations. The prosecutor in White simply re-filed the same complaint with the same supporting evidence.

This brings us to the second portion of the ruling regarding peremptory recusal. Once the prosecutor or any other lawyer calls upon the court for a ruling of any kind, that judge may not later be recused. This rule is designed to prevent the judge shopping that occurred here.

The rules apply to all cases, and both sides of the case. However, it is easy to see why it is so important in the case of criminal matters where a prosecutor might simply re-file the same case with the same evidence with the expectation of a different outcome before a friendlier judge.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com