Albuquerque Criminal Lawyer Blog

A case in Ohio's Supreme Court recently set forth a framework for protection against the unlawful search & seizure of a suspect's cell phone. The case hopefully signifies a legal trend that should will across the country, including Albuquerque and the remainder of New Mexico.

The case of State v. Antwuan Smith established a warrant requirement prior to the search of person's cell phone. This marks the first time that the Supreme Court of any state has addressed this issue.

It is well established that searches conducted without a warrant are presumed unreasonable. There are exceptions related to officer safety and preservation of evidence which allow the officer to search the area within the arrestee's immediate control. If there is no issue of officer safety or preservation of evidence, then the exception no longer applies. It is equally well established that an officer may search any containers or articles on the defendant' person such as purses. Law enforcement have attempted to equate a person's cell phone to a purse or in the alternative to argue that search of a cell phone is necessary for the preservation of evidence. The Supreme Court of Ohio has refuted these arguments.

The Court's analysis rested upon the classification of a cell phone. A 5th Circuit Court of Appeals case analogized a cell phone to a closed container in the possession of the accused. However, this ruling partly arose as a result of the defendant's legal theory which in part conceded the analogy. The United States District Court for Northern California suppressed the warrantless search of a cell phone. The court reasoned that cell phones are far more than communication devices. Instead, they store immense volumes of personal information and the court said they were more akin to laptop computers which have far greater privacy protections than do purses.

The Ohio court took the latter position. As a result, the evidence seized from the warrantless search of the cell phone was ordered suppressed. The court's ruling recognized that the defendant's phone was not a smart phone but rather a less sophisticated model with phone, texting and camera capabilities.

The Ohio court stated that the 4th Amendment serves to protect the reasonable and justifiable expectations of privacy. The court found that citizens have reasonable expectation of the privacy of their cell phones. Moreover, there is no issue of officer safety or preservation of evidence that would suggest a warrantless search of a cell phone.

The law often trails behind the development of technology. The Ohio Supreme Court serves notice to law enforcement its own state as well those in other states that the warrantless search of cell phone which has become routine in criminal investigations will likely be challenged under the 4th Amendment. The issue is likely to become even more prevalent as many individuals now possess a variety of devices such as I-Pods, flash drives, and other devices capable of voluminous data storage.

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In U.S. v. Pena-Montes, the 10th Circuit Court of Appeals addressed the legality of questioning under the 4th Amendment of an individual following a traffic stop. The case involved the prosecution of the defendant Jose Luis Pena-Montes for illegal reentry into the United States following his arrest following the traffic stop.

During the course of the traffic stop based upon the officer's belief that the car in which Pena-Montes was a passenger lacked dealer plates. Upon further investigation, the officer determined that the car did have dealer plates. However, he wrongfully believed that the use of dealer plates was restricted to certain times of day. Because there had been auto thefts from Albuquerque car dealers in the recent past, he suspected that the vehicle was stolen.

Due to his suspicions, he continued to question the driver. He then turned his questioning to Pena-Montes questioning him on his identity. Pena-Montes gave false and misleading answers regarding his identify. Due to the false identity provided by Pena-Montes, the officer arrested him for concealing identity.

Upon arrest, Pena-Montes was transported to and identified by Albuquerque Police identification. Upon identification, it was determined through the NCIC national database that he had previously been convicted of a felony in California and subsequently deported.

Based upon these findings, Pena-Montes was indicted on one count of illegal reentry of a removed alien following a felony conviction in violation of 8 U.S.C. §1326(a) and (b). Pena-Montes moved for suppression of all evidence derived from the traffic stop, including his identity. The district court denied his Motion finding that the questioning following the stop was not illegal under the 4th Amendment.

The Court of Appeals reversed the District Court holding that the officer had violated the 4th Amendment by continuing to question the occupants of the vehicle once the basis for the stop, illegal plates, was found to me missing. The Court provided an excellent analysis of search and seizure law in New Mexico

The court began by citing the 2008 10th Circuit case of United States v. Rodriguez-Rodriguez for the assertion that "A routine traffic stop is indisputably a seizure within the meaning of the Fourth Amendment." Citing United States v. Winder (10th Cir. 2009), the Court set forth the requirements under Terry v. Ohio that the stop must be justified at its inception and the resulting detention must be reasonably related to the basis for the stop.

Under this standard, the Court found that the continuing questioning of both the driver and Pena-Montes did violate the 4th amendment prohibitions against illegal search & seizure since questioning continued following the determination that the basis for the stop proved to be lacking. Unfortunately, this may not have saved Pena-Montes as will be seen in part II of this blog.

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The recent New Mexico Supreme Court case of State v. Joshua Garcia makes clear that Article II, Section 10 of New Mexico's Constitution extends greater protection from illegal search and seizure than that set forth in the 1991United States Supreme Court case of California v. Hodari D.

State v. Garcia involved a domestic violence call whereby the caller indicated that she wanted an individual named Joshua Garcia removed from her home. Upon responding to the call, the officer saw a man walking across the street near the caller's address. The officer immediately flashed his spot light on the unidentified man and told the man to stop. The officer had no prior knowledge of the identification of the defendant. Garcia continued walking past the patrol car and which point the officer again instructed him to stop. Garcia ignored the instructions of the officer and continued walking. The officer sprayed Garcia twice with pepper spray. As Garcia continued walking, the officer saw something fall from his pocket at which time the officer tackled and handcuffed Garcia. The article that fell from Garcia's pocket was identified as crack cocaine.

Garcia was charged which possession of crack cocaine. The question that arose was whether the evidence of crack cocaine should be excluded from evidence as the fruit of an illegal search and seizure by the officer. The District Court refused to suppress the evidence under the "fruit of the poisonous tree" doctrine. Garcia pled guilty to the charges reserving his right to challenge the court's suppression ruling.

The Court followed the ruling set forth in the 1997 New Mexico Supreme Court case of State v. Gomez. State v. Gomez explicitly recognized that New Mexico's constitutional protections could at times exceed the protections afforded under federal law. Upon applying the law set forth in Gomez, the Court found in Garcia that New Mexico's Constitution, Article II, Section 10 provided greater protection than that set forth in Hodari D.

In Hodari D, officers drove up on a group of youths huddled together. Upon seeing the patrol unit, the youth took flight. The officers pursued the youth on foot. During the pursuit, one of the youth discarded a rock of crack cocaine. The officer tackled the youth and recovered the discarded crack. The United States Supreme Court found that the youth was not seized at the time the crack was discarded. The Court determined that a seizure is defined by the reaction of the suspect. Because the suspect fled, there was no seizure despite the fact that the pursuit lacked any reasonable basis from its inception. Because there was no seizure, the evidence was not illegally seized.

The New Mexico Court in Garcia reverted back to the law as previously set forth by the United States Supreme Court in the 1980 case of U.S. v. Mendenhall. Mendenhall stated that a person is seized when a reasonable person under the circumstance would not feel free to leave. Utilizing the Mendenhall standard, and the protections set forth in Article II, Section 10, the Court found that Joshua Garcia was illegally seized at the moment the officer shown his spot on him and commanded him to stop. Because there was no reasonable suspicion for the stop, the search and seizure that ensued was illegal, and the crack cocaine should have been excluded from evidence.

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The 4th Amendment to the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment protections against unlawful search and seizure rests on the right to privacy proving protection against unlawful and abusive law enforcement practices that would invade that right to privacy. The protections of the 4th Amendment are broad and complex. Entire books are written on the 4th Amendment, and there are legal scholars that spend much of their careers studying and writing about the 4th Amendment. Many of the most important cases in criminal law and criminal procedure derive from the 4th Amendment as do the rights of criminal defendants.

The importance of the protections afforded under the 4th Amendment cannot be over-stated. The 4th Amendment protects at every stage of a criminal case from the initial stop by the officer, to the search of the suspect's vehicle, home, property or other belongings both before, during or after the arrest, and of course to the arrest itself.

The 4th Amendment provides protection in all variety of encounters with law enforcement. The protections stretch from the petty shoplifting offense, to DWI/DUI stops and investigations to the most serious felony offenses. Violations of the 4th Amendment have serious consequences including the exclusion of evidence seized illegally. Often, the exclusion of illegally seized evidence will result in the dismissal of the charges in whole or in part. Should the prosecutor refuse to dismiss based upon the lack of evidence, the exclusion of the illegally seized evidence can be an insurmountable obstacle for the prosecution at trial.

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

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

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

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

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

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

The Supreme Court of New Mexico overruled the New Mexico Court of Appeals in State v. Anaya. The Court of Appeals had ruled that evasion of a DWI/DUI Checkpoint was not an illegal act and therefore could not provide the reasonable suspicion necessary for an investigatory stop. The New Mexico Supreme Court ruled that the surrounding circumstances and the evasion of the a checkpoint itself gave rise to a reasonable suspicion of DWI/DUI and thus was sufficient foundation for the investigatory stop.

State v. Anaya involved a DWI checkpoint set up outside of Farmington. The highway leading up to the checkpoint was well marked with cones, droplights, emergency lights, and signs indicating to approaching motorist the presence of the checkpoint. The defendant, Anaya, upon seeing the checkpoint, made a legal u-turn to avoid the checkpoint. She was pulled over by a police officer who was stationed nearby for these very purposes.

Anaya attempted to suppress the evidence gathered during the stop arguing that the stop constituted an illegal search and seizure in violation of the 4th Amendment. The trial court denied the motion. Anaya entered a no contest plea reserving the right to challenge the constitutionality of the stop.

The New Mexico Court of Appeals sided with Anaya finding that the u-turn was not a violation of law, nor was evasion of a DWI/DUI checkpoint without more a violation of law. As such, the u-turn and evasion of the checkpoint was insufficient for the investigatory stop. The Court also found that the checkpoint was constitutionally unreasonable under Las Cruces v. Betancourt (NMCA 1987). The Supreme Court found otherwise finding that the checkpoint was indeed reasonable and legal under the law, and further that evasion of the checkpoint itself provides reasonable suspicion for a investigatory stop.

The 10th Circuit Court of Appeals reinforces the long held and cherished 4th Amendment right against unlawful search and seizure in the unlawful intrusion by police into an Albuquerque home.

In Manzanares v. Higdon, Albuquerque Police officers came to the home of the Defendant Manzanares for the purpose of investigating Manzanares' co-worker in a rape case. The Albuquerque Police Officers first arrived at the home of Manzanares at 5:50 AM in the morning. From the beginning, Manzanares was very cooperative with the Albuquerque Police officers, allowing them into them into his home, and providing helpful information into the identify and location of the alleged rapist. The police continued with the interrogation for hours on end until finally Manzanares asked that the police leave his home. The police refused to leave, instead handcuffing Manzanares as they continued to interrogate him.

Manzanares brought a civil lawsuit against the police under the 4th Amendment for Illegal Search & Seizure. The jury ruled in favor of Albuquerque Police Officer Higdon on all counts. Manzanares filed a Motion of Judgment as a Matter of Law. This Motion was denied by the trial court. Manzanares filed an appeal to the 10th Circuit Court of Appeals. The 10th ruled in favor of Manzanares that his 4th Amendment rights were violated as a matter of law.

The police officers argued that officers argued the encounter constituted an investigative stop and that his detention was needed to prevent his interference with the investigation. The Court was not persuaded putting great emphasis on the fact that the seizure occurred in Manzanares home. The Court recognized that Manzanares consented to the entry of the police into his home. However the court stressed that his consent could be withdrawn at any time. The refusal of the Albuquerque Police officers to leave once consent was withdrawn amounted to an illegal arrest without probable cause in violation of the search and seizure clause in 4th Amendment.

The Court emphasized the sanctity of the home stating, " It has been clear for nearly thirty years that a warrantless entry into a home...is presumptively unreasonable. The Supreme Court has consistently reiterated the famous refrain that a man's home is his castle and has preserved the home as the center of the Fourth Amendment's protections."

The court found that reasonable police officers would have recognized that their refusal to leave upon withdrawal of consent constituted a seizure. There was no warrant, no probable cause to believe a crime had been committed, and no extraordinary circumstances to justify their continued presence in Manzanares' home against his wishes. Once his consent to their presence was withdrawn, their refusal to leave was a violation of the 4th Amendment.

Continued Assault on the Rights Against Unlawful Search & Seizure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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