Albuquerque Criminal Lawyer Blog

When dealing with illegal search & seizure issues under the Fourth Amendment protection cases, courts evaluate whether the defendant had a "legitimate expectation of privacy" in the first place.

As a general rule, courts look at both the individual's and the societal expectation of privacy for that determination. The courts will look to both the "subjective expectation of privacy" and the "objective expectation of privacy."

For instance, any person expects to have privacy while using a public restroom and the majority of people in society finds this desire of privacy reasonable. So, if police officers spy upon a person inside a restroom without a valid reasonable basis and see a packet of drugs that the person had hidden, the search is considered illegal. On the other hand, if police agents spot a weapon or drugs on the front seat of a car, the search is not protected because most people would not consider this place private since would agree that the front seat of a car is publicly exposed.

These cases are connected to what is called "the plain view doctrine". Under this rule, governmental agents can conduct warrantless searches and seize evidence of criminal activities that are in their plain view - in public - and as long as the agents have a "legal right to be in that place". The plain view doctrine even in traditional searches can become rather complicated. The proliferation of technology has greatly increased the complexity of a plain view analysis of a search.

The increasing presence of technology in our daily routines in fact may significantly erode our right and expectation of privacy. This can be seen with the growing use of surveillance video cameras in public places.

Clearly, if any person commits a serious illegal act such as drugs trafficking or robbery in front of a public camera, most would argue that police should have a right to take action without worrying about an illegal search and seizure. In fact, there is a significant body of case-law that has ruled individuals videotaped in public view have no reasonable expectation of privacy. As such the use of video evidence could not be challenged under the 4th Amendment. Most have no problem with stripping criminals of their privacy rights.

The more difficult issue is the encroachment on the privacy of law-abiding citizens through the use of these videos. For the instance, there is a growing trend to install video cameras over public roads, highways, shopping centers, schools and a host of other public places. The reality is that there are many private acts, other than criminal acts, that occur in public.

Keeping in mind that your car is considered a public place to the degree it's interior is in plain view. Would any of us really want everything that occurs in our car to be exposed to public view? There is answer is probably no but the reality is that it already is. So as is often the case, our zeal in tracking down bad guys has left the great majority of good guys quite exposed.

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment to the U.S. Constitution provides limits to law enforcement search and seizure procedures in order to protect individuals' privacy. Under the 4th Amendment, unreasonable searches and seizures carried out by law enforcement officials are forbidden, Perhaps most importantly, any evidence gathered in violation of the 4th Amendment is inadmissible in Court.

The 4th Amendment prohibits police officers from entering your house or your workplace, searching your backpacks, purses, or any other private personal item, among other private matters, in the absence of either probable cause or consent to the search.

Unfortunately, the protections of the 4th Amendment do not extend to illegal searches and seizures by non-governmental agents. Essentially, individuals may be subject to unreasonable and otherwise illegal search and seizure at the hands of a host of private actors such as landlords, employers, store employees, private security guards and the like. The New Mexico Supreme Court held as much in State v. Luis Santiago.

The lack of protection means that should a later court action be commenced, whether civil or criminal, 4th Amendment rights and remedies do not generally apply. As such, illegal search and seizure may as a basis for excluding the evidence

A not too uncommon example will illustrate the point. Mall security guards can be quite aggressive. On occasion, based upon pure hunch (to be generous), they may choose to search a teenager's backpack. In so doing, contraband such as marijuana or other drugs may be discovered. Mall security may then hold the teenager until police arrive, who coincidentally are often conveniently located nearby.

Even if the security guard lacked probable cause to search the teenager's backpack, the search would not be considered illegal. Moreover, the drugs would be admissible so long as it is not found that the mall security was acting as an arm or under the direction of law enforcement.

Determining whether or not the mall security was acting under the direction of law enforcement can be challenging at best. Perhaps more problematic are situations where mall security engage in profiling or other constitutionally suspect behavior that gives rise to the search to begin with. Unfortunately, this may be far more common than we would like to believe. This type of conduct gives rise to a whole new set of issues beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the constitutionality of a "reach-in" search of a defendant on a busy street in the recent case of State v. Williams. The court found that the search was an unlawful invasion of privacy under the circumstances and therefore and illegal search and seizure under the 4th Amendment.

In a nutshell, there was a felony warrant outstanding on the defendant. The officer legally pulled the defendant over in his car. The officer legally placed the defendant under arrest due to the warrant. The officer then pulled out the defendant's waist-band on his pants looking in and seizing crack cocaine in the defendant's pants. The search and seizure was conducted in broad daylight on a busy city street. The defendant argued the search constituted an illegal strip. The Court disagreed that it was a strip search. However, the Court still found the search to be unreasonable under the circumstances and therefore unconstitutional.

The issue that arose was not whether the officer was entitled to search the defendant. All parties agreed that the officer had the right to search the defendant. However, the manner of the search was found to be unreasonable and unconstitutional under the 4th Amendment. The Court recognized that there are situations where the suspect's sense of modesty and privacy are overridden by exceptional circumstances. However, the cases all indicated that reasonable steps must be taken to protect the suspect's privacy. The Court stated that there was must a proper balance between the immediate need to search the suspect and the invasion of privacy and embarrassment associated with a public search.

In State v. Williams, the search was conducted in broad daylight during rush hour. No evidence was presented by the State showing that appropriate steps were taken to lessen the invasion of the defendant's privacy or that the situation dictated an immediate search in the manner it was conducted. In fact, according to the Court, the trial court did not consider at all the reasonableness of the location or the manner of the search.

Because the State failed to show the reasonableness of the search, or necessity under the circumstances, the search was found to be illegal and the crack cocaine was suppressed. Many will take objection to the ruling. The ruling may seem to run against common sense. However, the New Mexico courts are very protective of constitutional rights often extending protections well beyond the federal courts in similar situations. And the simple fact is the officer could have waited and conducted a full strip search once the suspect was taken to jail. The search as conducted simply was not necessary and some very basic steps could have protected both the defendant's right to privacy as well as the officer's seizure of evidence.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The 4th Amendment protections against unlawful search and seizure generally require a warrant grounded in probable cause prior to the search of a citizen's home. It has long been recognized that the broad protections of the 4th Amendment do not apply to those on probation or parole. The issue was addressed most recently in the New Mexico Court of Appeals case of State v. Benavidez.

In Benavidez, the defendant's parole officer visited the defendant's home for a parole visit. The parole officer knocked on the door repeatedly. The defendant would not answer the door. The parole officer saw the curtains in the defendant's bedroom moving. There was also a car in the driveway in which the parole officer had earlier seen the defendant driving. The parole officer called for police backup. Upon arrival, the officers kicked in the door. Upon searching the home, they found the defendant hiding under a bed. They also found meth and paraphernalia in the defendant's bedroom where he was found hiding.

The defendant was charged with possession of a controlled substance and drug paraphernalia. He entered a conditional plea to the charges reserving his right to appeal the constitutionality of the search and seizure. The defendant argued that the search and seizure was illegal and therefore the drugs and the paraphernalia should be suppressed. The court of appeals found the search and seizure to be lawful drawing upon abundant case-law supporting the search and seizure of the parolee's home.

The court indicated that probationers and parolees do not enjoy the same protections under the 4th Amendment as do ordinary citizens. The Court cited the interests in the State in supervising probationers/parolees which dictate a lesser expectation of privacy. In fact, probation and parole agreements require that the probationer/parolee submit to reasonable searches of his or her home. Thus, a search may be conducted for reasonable suspicion rather than the higher standard of probable cause that applies to ordinary citizens.

In this case, the Court found that the refusal of the defendant to open his door for his parole officer provided reasonable suspicion for the search. The refusal itself constituted a violation of the terms of parole which alone was sufficient grounds for the search. Based upon the Court's finding that the search and seizure were legal under the 4th Amendment, the defendant's appeal was denied.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Supreme Court recently addressed the applicability of the misdemeanor arrest rule to DWI/DUI arrests in City of Santa Fe v. Martinez. The case involved a tip from a mall employee who observed the defendant attempting to unlock several different vehicles in the mall parking lot before he finally ventured upon his own vehicle and drove away. The mall employee contacted the police providing the defendant's drivers license number.

A Santa Fe police officer traced the license to the defendant's home. The police officer went to the defendant's home where he found the defendant inside extremely intoxicated. The defendant voluntarily opened the door and allowed the officer into the home. He admitted drinking and having driven the vehicle earlier.

Based upon the defendant's statements, his visible intoxication, the smell of alcohol and other indicators of intoxication, the officer arrested the defendant. The defendant refused the breath alcohol test which resulted in charges for aggravated DWI.

The defendant moved to dismiss the charges for violation of the misdemeanor arrest rule which the court denied in Santa Fe Municipal Court. The defendant appealed to district court where the conviction was set aside. The City of Santa Fe appealed and the case made its way to the Supreme Court.

The misdemeanor arrest rule is a long standing rule requiring that an officer actually observe the misdemeanor offense in order to make a warrantless arrest. There is no such rule for felony arrest. The rule derived from the fact that misdemeanors are typically not as serious as felony crimes and pose a much lower risk to public safety.

The New Mexico Supreme Court determined that the misdemeanor arrest rule should not apply to DWI/DUI arrests. The court reasoned that unlike most misdemeanor offenses, DWI/DUI pose a very real, immediate and significant risk to public safety stating, "Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests." In addition, delay in investigation and arrest on DWI results in the loss of evidence of intoxication as the person begins to sober up. The court indicated that the misdemeanor arrest rule represents a balance between the rights of the accused and public safety. In the case of DWI, the balance according to the Court falls on the side of waiver of the misdemeanor arrest rule in DWI/DUI cases.

This is a significant development in DWI/DUI enforcement. It remains to be seen how this will play out in future DWI/DUI enforcement. The rule may impact the DWI police team concept as well as the need for both the stopping officer and DWI investigating officer at trial. It is likely that there will be future activity surrounding these issues as this case is incorporated into DWI enforcement practices.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals draws the parameters of investigatory stops in State v. Eric K. An anonymous call was made to 911 reporting that a female had pulled a gun and took the caller's money during an apparent drug transaction. A police officer went to the area where the alleged crime had occurred to investigate. Upon arrival, he noticed two male youths that he believed looked a little bit nervous but "nothing real suspicious."

Based upon the 911 report and his belief that the two youths looked nervous, the officer initiated contact with the youths. As the officer approached, the youths began to enter a laundromat. The officer called for them to come over to speak with him. During the conversation, the officer instructed one of the children to remove his hands from his pockets. At that time, one side of the child's coat hung lower than the other prompting the officer to pat down the child. A gun, drugs and drug paraphernalia were discovered in the pat down search. The child moved to suppress all of the evidence as fruits of an illegal search & seizure. The trial court denied the motion to suppress. The New Mexico Court of Appeals reversed.

An officer is always free to initiate a voluntary encounter with a citizen. However, once the circumstances are such that a reasonable person would not feel free to leave, the encounter turns into a seizure for which there must be reasonable suspicion. Mere proximity to a reported crime does not constitute reasonable suspicion,. Nor does looking a little nervous. Instead, the court reiterated the well-established rule that there must be "individualized, articulable, reasonable suspicion" at the time of the seizure which the court found in this case to be when the officer ordered the child to remove his hands from his pockets.

The 4th Amendment provides significant protection against illegal search and seizure. This includes cases where officers without reasonable suspicion, but merely on a hunch or perhaps simply in the process of fishing for evidence, initiate an non-voluntary investigative encounter with a citizen. The 4th Amendment attempts to balance individual rights against community and officer safety.

This case points out the tension between these interests. On the one hand, the child had a gun, an illegal act and perhaps a danger to the community. On the other, the officer had no basis for investigating the child. It is a difficult balance for law enforcement and the courts as the interests on both sides are extremely important. However, the 4th Amendment right against unlawful search and seizure must not be compromised on a case by case basis where an officer just happens upon a crime through an illegal investigation. To allow the end result of an illegal investigation to justify the unlawful police conduct would render the 4th Amendment meaningless. As much as a case like this rattles our insecurities, the alternative is far worse.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Miranda rights suffer another setback in the United States Supreme Court case of Berghuis v. Thompkins. The court held that is not enough to remain silent to stop police questioning, a suspect in a criminal case must explicitly invoke his or her Miranda rights.

The ruling will allow police to interrogate suspects for hours on end so long as the suspect does not state to the police the wish to invoke Miranda. It is rightfully feared that the police will abuse the greater latitude particularly in cases of poorly educated, mentally ill, impaired, or generally unsophisticated suspects. The court's ruling may have even greater consequences for those whose first language is not English particularly in the 10th Circuit where non-English speaking suspects may waive important constitutional rights without the benefit of an interpreter.

Berghuis v. Thompkins represents just one more setback to Miranda. In fact, the exceptions to Miranda are so numerous as to render it virtually meaningless even before this opinion. Perhaps more troubling than the opinion itself is the Court's willingness to cast aside long established constitutional rights. This same mind-set is present throughout the Circuit Courts as well. So what does it all mean?

It means a suspect should keep his or her mouth shut except to the degree necessary to assert Miranda Rights. After all the right to remain silent under the 5th Amendment is the essence of Miranda. The fact is that there are so many exceptions to Miranda that anything said to the police is likely to end up in court. Likewise, any physical evidence discovered as a result of questioning will be admitted. It is extremely rare that the evidence would be completely suppressed. It is rarer still that a case would be dismissed for a violation of Miranda. On the other hand, there are countless ways that a suspect's statements may damage his or her defense.

Many labor under the misconception that the legal system is fair and balanced. Just as many believe that accused persons are presumed innocent. It is not and they are not. This is made most clear in the cases involving Miranda disputes. Once a "confession" is extracted or even alleged to have been extracted, the burden shifts to the defendant. Clearly, judges are going to believe police over an accused. If there is any question as to the legitimacy of the Miranda warnings, and the suspects waiver of Miranda rights, the courts will err on the side of the police. This made clear each and every day in criminal courts across the country. Ties go to the prosecution as in the recent 10th Circuit case of US v. Silva-Arzeta where the police alleged that the suspect consented to the search of his residence despite the fact that he did not speak English, no interpreter was provided and the suspect was first taken into custody a distance from his residence.

In light of Berghuis v. Thompkins, Silva-Arzeta, and the growing list of exceptions, is there any question how the courts will rule in case of a dispute over Miranda? Keep this in mind as Arizona's "Papers Please" law moves forward. It is a fairly safe bet that these trends will quickly come into play there.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

It is amazing how many are so quick to take away the rights of others to protect against the wave of violence along the border. Many on the right are quick to point out that the wave of violence emanates from Mexico and that the threat comes in a neat identifiable package. All that is left is for the well intentioned police officers throughout Arizona to root out these ne'er-do-wells, lock them up, and send them packing.

What is lost in the debate is the fact that the wave of violence is a fiction created by the Right. El Paso is among the safest big cities in the nation. Yet it is separated only by a river from Juarez, which has earned the moniker of "murder capitol of the world." Phoenix' crime rate is also on the decline. San Diego too has seen no spike in violent crime from the marauders pouring across the border as the right would have everyone believe.

For 2006, El Paso ranked 179th, Phoenix 108th, and San Diego 130th in violent crime rates. Anchorage came in at #8 on the list suggesting that those Russians pouring over the border on to Sarah Palin's back porch are up to no good and should be profiled and eradicated.

The FBI reports that the nation as a whole had a decrease in violent crime of 4.4 percent from 2008 to 2009. It decreased 1.9 percent from 2007 to 2008. Violent crime rates in the border cities have seen similar decreases. Clearly, the violent crime statistics do not support the measures in Arizona. Like many issues from the Right, the threat of violent crime by illegal immigrants is a fictitious threat cynically created to scare the hell out of the public in an effort to garner votes.

Unfortunately, the public has until November to learn the truth behind the Arizona measures and the many on the Right that who support them. The numbers are pretty straightforward and easily communicated. What is harder to communicate is the impact that measures such as those in Arizona have on all Americans, even those that support these measures.

The right against illegal search and seizure by law enforcement is among the most protected rights that we have. It was important enough to come in at # 4 in the Bill of Rights. It is easy for many to support a forfeiture of this right when they believe it does not affect them. But the erosion of the right against unlawful search and seizure affects everyone. It takes little imagination to envision endless situations where police governed by laws like Arizona's "papers please law" could justify the stop of anyone for any reason.

The infringement on the rights of legal immigrants and Hispanic citizens is an outrage and should cause everyone to pause before embracing it. Sadly, most cannot see past their own narrow circumstances and only when these laws begin to infringe on their own sacred constitutional rights will they understand the dangers of laws like those in Arizona. And for what? A fictional wave of violent crime pouring over the US-Mexico border created in a dangerous and hopefully failed ploy to win votes.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The recent immigration law enforcement measure passed in Arizona should interest citizens of New Mexico. The Arizona law not only permits law enforcement officers to stop anyone who appears to be an immigrant to check their papers, it demands it. It is a gross violation of the 4th Amendment prohibitions against illegal search & seizure. It is a pervasive and dangerous infringement of individual rights.

The 2009 census suggests that 44.9% of New Mexico population is Hispanic. The Hispanic population in New Mexico exceeds the white non-Hispanic population which stands at 41.7%. In addition to the large Hispanic population, Blacks represent 3%, Native Americans represent 9.7%, Asians stand at 1.4%, Hawaiians and Pacific Islanders at .1% All told, whites are in the distinct minority.

So what would happen if such a law were passed in New Mexico? The answer is easy 55% of the population could be stopped at the whim of law enforcement. Some argue that there is nothing wrong with this and it is needed to protect our soil. Before jumping on board with this bill, why couldn't whites be stopped as well? After all, many immigrants are of white European descent and a diligent officer would question their legal status as well as those of darker skin color.

Keep in mind a driver's license is not proof of citizenship. Therefore, lawful citizens could be stopped and taken into custody for failure to provide their proof of citizenship. After all, how many citizens carry proof of citizenship? How many New Mexicans have a passport? I suspect that it is a relatively small percentage of the population. As a result, the law could be used to harass, intimidate, and terrorize illegal immigrants and citizens alike. The law basically gives a cop the right to stop anyone, anywhere, anytime, for any reason.

The good governor of Arizona has indicated that the law in not illegal racial profiling because racial profiling is illegal and Arizona law enforcement does not engage in illegal activity. Apart from the ridiculous nature of this argument, what other indicators other than race could be used as probable cause to stop a potential non-citizen? What other criteria could there possibly be to justify the stop of a vehicle other than race? What other observations could an officer make of a passing vehicle that would raise suspicion of illegal status?

The good governor responds further to the suggestion of racial profiling that the officers are well trained and she trusts their judgment. Of course, she then states that they will have to come up with some criteria and then train Arizona law enforcement so they do not engage in the illegal racial profiling in which they would never engage because they are trained not to engage in illegal activity. Perhaps, the resulting guidelines will be that all people of whatever skin color should be stopped so as to avoid any suggestion of racial profiling. That should solve it. I feel better now.

New Mexicans have an election coming up in November for their own governor. The rhetoric surrounding immigration enforcement coming from some of the candidates rings very familiar when set against the backdrop of Arizona's recent law. New Mexicans would be wise to carefully consider who they are putting in office. And in the meantime, stay out of Arizona!

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

"Freeze" is not something you want to hear from a police officer. The command will send a chill through most reasonable people. That is exactly why it is considered a seizure under the 4th Amendment.

A seizure under the 4th Amendment occurs when the person stopped reasonably believes that her or she is not free to leave. The very command "freeze" suggests that the person is not allowed to leave. In fact, leaving would be a violation of the command to freeze. Leaving and freezing are mutually exclusive, unless of course the officer is considerate enough to offer you the option of freezing or leaving.

The issue was addressed in the Tenth Circuit cases of U.S. v. Alarcon-Gonzales (1996). The court in Alarcon-Gonzales, as would most, took it for granted that the command was a seizure. The court stated that whether or not it was a seizure was not even an issue, the issue was whether there was reasonable suspicion to yell the command to begin thereby taking for granted that the command was a seizure.

In Alarcon-Gonzalez, the immigration service (at that time "INS") was investigating roofing companies suspected of hiring undocumented workers. The company for whom the defendant worked was not necessarily suspected. The immigration officers intended to use consensual encounters with roofing workers to conduct their investigation and ferret out illegal workers. When they approached the defendant and one of his co-workers, they intended such a consensual encounter. However, as they approached, defendant's co-worker was reaching into the cab of his truck for a shingle gun. One of the officers mistook the gun for a weapon and yelled "freeze" to the co-worker. In response, the defendant also froze.

Despite the fact the command was not even yelled at defendant, the Court ruled that it constituted a seizure of defendant under the circumstances since he clearly did not feel free to leave. In addition, the Court found lack of reasonable suspicion for the seizure since there was no reason to suspect defendant or his friend of illegal activity, other than the color of their skin. Thus there was no reason to approach them to begin with and therefore the seizure was illegal from its inception.

Of course, had the defendant's friend not froze, and continued to pull out the shingle gun, the later conversation would likely have been one regarding excessive force and §1983 violations. Thus, faced with this situation, one is faced with a dilemma. You cannot both assert your constitutional rights and obey the command of the officer. A reasonable person would freeze believing they were not free to leave as the Court in Alarcon-Gonzales rightly noted.

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The New Mexico Court of Appeals addressed the knock and announce rule in the recent case of State v. Gonzales. It is well established in New Mexico that law enforcement must first knock and announce their presence and wait a reasonable amount of time for a response before entering a residence to execute a search warrant.

The rule avoids the needless destruction of property while recognizing the sanctity of the home and the right to privacy. Failure to comply with this rule constitutes unlawful search and seizure in violation of the 4th Amendment to the United States Constitution. The Court, in its ruling, reinforced these very important protections afforded by the knock and announce rule.

In State v. Gonzales, the Court addressed a situation where it the facts indicated that the officers had not knocked and had waited only 8 seconds after announcing their presence before bursting through the front door with a battering ram. The Court determined that, under the circumstances, 8 seconds was not a reasonable amount of time to wait following announcement of their presence. The Court also deferred to the District Court's factual finding, based upon the officers' belt tapes, that the police had not knocked despite uncontroverted testimony to the contrary. As a result, the marijuana and cocaine seized from the residence was suppressed.

The Court, in determining the reasonableness of the 8 seconds, contrasted the facts in the case with several prior rulings. There are circumstances where a brief wait following announcement of the officer's presence would be deemed reasonable. The court cited several prior cases involving hotel/motel rooms and other small residences where a brief wait was justified due to the brief amount of time that it would require the resident to get to the door. A delay in these cases would indicate constructive refusal of the warrant.

Likewise, the Court indicated there might be exigent circumstances that would avoid completely the necessity of the knock and announce rule. These cases involved situations where the circumstances indicated announcement posed a danger to law enforcement. An indication that the target was attempting to destroy evidence would also obviate the need for a knock and announce.

The Court was careful to indicate that the fact that evidence might be destroyed was insufficient to override the protections of the knock and announce rule. Therefore, the simple fact that drugs were involved, which could be easily destroyed, was insufficient grounds to avoid the knock and announce rule. There must be some indication under the circumstances that the suspect was in fact attempting to destroy evidence.

State v. Gonzales illustrates the great deference the New Mexico Courts have for the 4th Amendment and the U.S. Constitution, often exceeding federal constitutional protections.

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