Albuquerque Criminal Lawyer Blog

Fox and others have grossly mischaracterized the new Department of Homeland Security policy regarding the removal of illegal immigrants. For political gain, these organization and individuals have portrayed the new policy as an amnesty program suggesting that the Obama administration is not serious about immigration enforcement. It is not surprising as no stone is left unturned to scare the daylights, and rationality, out of voters.

In fact, the new policy would simply release those immigrants from immigration detention facilities if and only if they have pending visa application and are likely to successfully achieve legal immigration status. These immigrants will likely achieve legal status so there is no reason to hold them in immigration detention facilities.

The reports from Fox and others are clearly dishonest, opportunistic, and grossly cynical. The reports are meant to garner Republican votes at any costs. The reports seem to appeal most to Tea Party supporters. Ironically, it is these voters who should be most offended by the reports.

The costs of these unnecessary detentions are huge. It is estimated there was a backlog in the federal courts of 247,922 cases as of June. Each of these represents an individual being held in immigration detention facilities at a cost per detainee that can exceed $100 per day. This does not begin to address the costs affiliated with the Immigration and Customs Enforcement in the investigation, location and arrest of these individuals.

The reports fail to recognize the work of ICE over the past year. The reports suggest that immigrant criminals are being freed wholesale onto our streets. In reality, there have been a record number deportations of immigrants with criminal convictions over the past year. There were over 167,000 immigrants with criminal convictions deported in the 2009. This represents a 43 percent increase over the 2008, when Bush was still in office.

The reports fail also to recognize the realities of immigration removal for criminal offenses. Many who hear these reports imagine immigrants committing horrendous crimes against society. In fact, immigrants can be removed for pretty trivial criminal offenses such as shoplifting, minor possession of marijuana, possession of paraphernalia, even a hint of domestic violence, and many other offenses that for a citizen would be a minor bump in the road. In contrast to the portrayal of ICE as light on criminal immigrants, immigrants face removal for these offenses even if they are here legally, have been here for years, have worked and paid taxes, have raised families, bought homes, started businesses and contributed positively to our society in every possible way.

It is unfortunate that Fox and others would so badly distort the truth. These reports are harmful to American taxpayers who foot the bill for any delay in implementation of the new policy. It is disrespectful to the ICE officers in the field who daily make gains on the very serious problem of criminal immigrants. Most of all, it promotes an unjust and inhumane policy of imprisoning immigrants who pose absolutely no risk to our country, have committed no crimes and who in the end will attain legal status, and likely become fellow American citizens.

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 10th Circuit Court of Appeals case of US v. Silva-Arzeta brings both further illumination and concerns to the recent Arizona immigration enforcement bill. There are many in New Mexico clamoring for Arizona style immigration enforcement in our state. This case will provide little comfort to those already concerned about this prospect and the forfeiture of individual rights that it would bring.

In a nutshell, the defendant was stopped by officers while in his car leaving his apartment on suspicion of drug trafficking. The officers questioned the defendant in English. They searched his vehicle finding meth and $1038 in cash. The officers alleged that the defendant then consented to the search of his apartment. Really! That's what they alleged. They stopped him in his car, he is drug trafficker, and he consented to the search of his apartment. Drug dealers everywhere would be appalled by his lack of professionalism. All this was done in English.

After he was arrested, the defendant was finally provided a Spanish speaking interpreter for further questioning at the station. The interrogation at the station was conducted entirely in Spanish. The officers that obtained the consent to the search, searched the defendant's car and apartment and placed him under arrest stated that the defendant's English was fine. It is not clear why the station interrogation was in Spanish given the defendant's mastery of the English language. Perhaps it was because he did not speak English as testified to by his employer who stated that the defendant spoke little English and that he had to use a bilingual employee to assist him in communicating with the defendant on the job.

The defendant was acquitted of all charges in the first trial. The state was able to obtain a retrial and the defendant was then convicted on all counts. The defendant appealed arguing that all evidence seized in the case was seized in violation of the 4th Amendment prohibitions against unlawful search and seizure. The defendant argued that the consent to the search was not and could not be consensual due to his inability to adequately understand English. The 10th Circuit affirmed the conviction.

The court recognized that any warrantless search is presumed unreasonable. One exception of course is a consensual search. The Court stated that "Whether voluntary consent was given is a question of fact, determined by the totality of the circumstances and reviewed for clear error." In short, the question is left to the jury who judgment should not be second guessed. The most obvious question being which jury should we rely on? The first jury that acquitted him on all counts, or the second jury that convicted him?

The court recognized established case-law that "invalidated searches based on consents ... given by Hispanics who did not comprehend what they were doing." Despite the case-law, the court affirmed the conviction stating "Mr. Silva-Arzeta could converse in English sufficiently well to consent to the search." Naturally, no guidance was provided for the definition of "sufficiently well" effectively leaving it up the judgment of law enforcement.

Keep in mind this is what happened here. The defendant's English speaking ability was entirely evaluated by the arresting officers. The testimony of the defendant's employer was ignored as was the defendant's own testimony. And none of the conversations with the defendant were recorded. Not at the scene, and not at the station during the Spanish language interrogation. None of the officers saw fit to record these conversations despite the ease with which it can be done with the officers' standard issue belt-tapes.

These issues are even more problematic when the court states: "Mr. Silva-Arzeta's concerns, however, are the bread and butter of litigation. Much of the controversy at trials could be minimized, if not eliminated, if all acts were videotaped and all conversations recorded." The court further recognized approvingly the defendant's citation of Justice Department guidelines that suggest this practice. However, the court dismissed these as mere suggestions of best practice that do not give rise to constitutional concerns.

In short, a Spanish speaker has no right to protection against unlawful search and seizure. The defendant could be held to have consented based purely upon the self-serving testimony of the arresting officers as in this case where there was no mention of other corroborating witnesses to the defendant's ability to understand and speak English. Finally, officers are not required to record any of the encounter, unless they so choose despite the obvious evidentiary value of a recording.

The folks of New Mexico might want to keep an eye on the immigration enforcement debate in the upcoming elections. It's not just drug dealers that will suffer if New Mexico heads down this path of Arizona. It is not just drug dealers that benefit from the 4th Amendment protections against unlawful search & seizure. Use your imagination, I am out of space, and out of time.

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

Federal prosecution for immigration violations reached a record high of 169,612 in 2009. According to the study out of Syracuse University, this number represents more than ½ of all criminal cases brought by the federal government.

Prosecution of immigration violations is up by almost 16% and reflects the Bush era policies of strict and speedy enforcement of the immigration laws. Many of the cases represent illegal reentry cases. Others related relate to crime related bases for removal and deportation. The Bush administration greatly increased the number of I.C.E (Immigration and Customs Enforcement) agents, Border Patrol agents, and federal prosecutors for purposes of enforcement.

Much of the increase is also, according the New York Times, related to the Department of Justice program Operation Streamline which relies on speedy and large-scale processing of plea bargains in immigration cases. It is suggested that the Department of Justice goes after the relatively simple immigration cases since these cases are very rapidly processed and closed compared to other cases. White-collar criminal cases take an average of 460 days for disposition. Narcotics cases take 333 days. By contrast, the immigration cases typically reach disposition in 2 days.

The success of the Operation Streamline program has now met with constitutional challenges particularly in Arizona which accounted for more than 22,000 of the federal criminal immigration cases in 2009. The 9th Circuit Court of Appeals recently ruled in U.S. v. Roblero-Solis that the process of mass pleadings is a violation of Rule 11 of the Federal Rules of Criminal Procedure regarding the taking of pleas in federal court. Interestingly, despite the finding by the court that the plea process was a violation of Rule 11 which fundamentally a Due Process protection, the convictions in the case were upheld since the defendants failed to show that the process affected their decisions to enter the pleas.

The growth in the number of immigration prosecutions shows that the Obama Administration is equally serious about immigration enforcement. In fact, the data from the Syracuse study indicate that the rate of prosecution has accelerated. These numbers appear to conflict with the Administration's public statements regarding immigration reform. Perhaps, the tough position on enforcement is seen as necessary for progress on future reform.

In any event, it is clear that immigration enforcement will remain a high priority at the Department of Justice for some time to come. In addition, though the mass plea process under Operation Streamline is a violation of Rule 11, it appears that the process will stand in light of the ruling in Roblero-Solis.

www.CollinsAttorneys.com