Albuquerque Criminal Lawyer Blog

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in the case of State v. Winton. The defendant was charged with possession of a controlled substance and drug paraphernalia following a warrantless stop, detention and search of the defendant by police officers.

The police had obtained a search warrant for 1822 Hammett Street. Upon arriving at the scene, the police found the defendant at 1824 Hammett Street as he was entering 1822 Hammett Street. The defendant was ordered to the ground where the officer held him for about 5 minutes with the officer's boot on his neck. The defendant was then held on the ground for another 10 minutes after the officer removed his boot from his neck as the officers searched the premises of 1822 Hammett.

After conducting a search of the residence, Officer Hengst exited the residence to find the defendant lying on the ground. The officer handcuffed the defendant. At that time, he allegedly observed a knife in defendant's pocket. The defendant allegedly told the officer that he had another knife in his possession. Upon searching the defendant, the officer found a pipe with meth residue.

The New Mexico Court of Appeals took note that defendant was not on the property that was the subject of the search warrant, that the defendant was not named in the search warrant, and that the text of the warrant did not provide the officers with the authority to search and seize the defendant. The Court further recognized the longstanding precedent that a warrantless search is presumptively unreasonable under the 4th Amendment placing the burden on the State to prove reasonableness.

The Court stated an exception to the warrant rule allowing officers to detain and search those present on the subject property to prevent flight, preserve evidence, minimize risks to officers, and to facilitate the orderly completion of the search. The Court also recognized that a visitor's mere presence at a home subject to a search warrant is insufficient to justify a search of the visitor. Instead, there must be facts present that would render it reasonable under the circumstances to search the visitor. In short, the officer must have a reasonable belief that the visitor has some connection to the premises or the criminal activity. So far, so good for the Defendant?

Despite the fact that the defendant was not on the subject premises, and therefore not a visitor at all, and the fact that there appeared to be no suspected connection to the property or the suspected crimes therein, the Court found that the search and seizure of the defendant was lawful. The Court found that the search and seizure was lawful because the police had information that the subject of the warrant, not the defendant, was not afraid to shoot someone. Thus, the search and seizure of defendant was necessary for officer safety despite the lack of connection to the property or the crimes under investigation via the warrant or the threat to officer safety expressed in the warrant.

Thus, visitors cannot be searched and seized simply because of their presence on premises subject to a search warrant. However, a visitor can be detained, held down by a boot on his her neck, and subsequently searched if the police can make any suggestion of officer safety issues. This is apparently the case even where the visitor is not on the property, has no connection to the property or the crime, and was not the individual named in the warrant or the individual feared to pose threats to officer safety.

In short, under State v. Winton, a visitor or apparently anyone in close proximity to the premises can be searched and seized without any real justification as long as the officer expresses a fear for officer safety, which should not be hard for the imaginative officer. This ruling makes absolutely no sense in light of the authority recognized by the Court. The ruling effectively negates the protection of visitors against unlawful search and seizure set forth in prior New Mexico cases. Hopefully, the case will move on to the New Mexico Supreme Court where, if the 4th Amendment has any meaning In New Mexico, it should be reversed.

www.CollinsAttorneys.com

New Mexico law does not allow law enforcement to take a blood draw without the suspect's consent. However, a blood draw may be taken upon the issuance of lawful search warrant. Likewise, in the absence of a search warrant, a suspect may not be forced to submit to a blood draw.

Blood draws are common in controlled substance cases. They also are used in DWI/DUI cases. However, it is pretty rare that an officer would order a blood draw in a DWI/DUI case. In the recent case of State v. Bullcoming, a blood draw was taken from the defendant under search warrant following the defendant's refusal to take the breath alcohol test and his refusal to voluntarily submit to a blood draw.

The Bullcoming case has importance for a number of reasons, most notably the admissibility of the blood draw report. Though the issue of the search warrant itself was mentioned only in setting forth the facts of the case, almost in passing, the issue is certainly not a trivial one. The defendant in Bullcoming was charged with aggravated felony DWI/DUI. The aggravated portion arose from the fact that the defendant was involved in an accident , and then promptly fled the scene. Once the officer tracked him down, the defendant refused the blood alcohol test, also grounds for aggravated DWI/DUI.

No doubt the result of the defendant's antics, the officer in Bullcoming took the rare step of obtaining a search warrant to obtain the blood draw. Unfortunately for the defendant, his blood alcohol level was .21, almost three times the legal limit, again an aggravating factor.

The more common response of law enforcement to a suspect's refusal to submit to the breath alcohol test is to simply note the refusal and charge the DWI/DUI as aggravated. Aggravated DWI/DUI carries significantly greater penalties than simple DWI/DUI. Thus the refusal can have severe consequences.

No matter how the blood draw is taken, whether voluntarily or by warrant, the suspect has the right to an independent test. In a situation like Bullcoming where the blood alcohol level comes in so high, the independent blood draw may serve only to bolster the results. In closer cases, the suspect would do well to obtain an independent blood draw. The independent test is free to the suspect so long as he or she did not refuse the blood alcohol test. So there is no good reason to waive this right in close cases.

The police officer should inform a suspect of the right to independent testing. If an independent blood test is merited, then the suspect should insist on the test even if the officer has not advised him or her of this right. In fact, the suspect should be quite vocal if the officer is resistant to the request for an independent blood test. As seen in the recent case of State v. Duarte, the presumptions are with the officer so that if he or she says he advised the suspect, it is taken as gospel.

In short, you cannot be forced to take a blood test without a warrant. If you are forced by warrant to take a blood test, you would be well advised in cases close to .08 (simple DWI/DUI) or .16 (aggravated DWI/DUI) to demand an independent blood test. However, in cases with very high levels, or cases that come in just below the aggravated .16 or simple .08, you may be very disappointed with your independent testing.

www.CollinsAttorneys.com

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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