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

As part of the rehabilitative approach of the juvenile criminal justice system, judges, defense counsel, prosecutors, and juvenile probation take a progressive approach in dealing with juvenile delinquents. For example, each county will typically have its own drug court program which is an alternative to prosecuting a child with substance abuse issues.

Drug Court takes a progressive approach to juvenile substance abuse issues. Therapists, probation officers, and drug court staff help both the child and the child's family to address the substance abuse issue. The child and the parents participate in family counseling. The child will attend alcohol and substance abuse counseling. The child will also undergo random urine analysis. In addition, the child will participate in outdoor team based confidence building activities to help the child stay clean.

Drug Court is an option for juveniles who have a criminal history that includes drug or alcohol related offenses. Upon entry, the juvenile must have a clean urine analysis to establish base levels for future drug testing. Once admitted, there are four stages of Drug Court that the juvenile must complete. Stage one will not commence until the child has a clean urine test. Each stage must be completed prior to moving to the next stage.

Drug Court can be completed in six months if the juvenile takes it seriously and complies with all of the demands placed on him or her. However, if a juvenile commits a violation while in drug court, the Drug Court team will vote on the type of sanction that should be imposed on the juvenile.

Common violations include but are not limited to a missed or positive (dirty) urine test, curfew violations, new criminal charges and truancy. The sanctions vary from not being able to move to the next stage to house arrest. For repeated violations, the juvenile may be kicked out of the Drug Court program. Termination from Drug Court is considered a serious probation violation frequently resulting in immediate detention (lock-up).

In short, Drug Court is a rather progressive approach to juvenile drug offenses. However, it is a double-edged sword. Drug Court is very demanding of its participants. Many kids simply cannot meet the burdens of the program. Unfortunately for those kids, there are few remaining options other than detention.

Those kids that are sentenced to and successfully complete Drug Court often turn their lives around. For those, both the child and the parents are typically very grateful for the assistance Drug Court provides in dealing with a very serious problem before it has gotten out of hand.

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

In keeping with the New Mexico Supreme Court's decision in State v. Aragon, the New Mexico Court of Appeals upholds a defendant facing drug charges rights to confront and cross examine the State's forensic chemist.

The case of State v. Delgado has an interesting procedural history. The defendant's original appeal of his convictions for possession of cocaine and tampering with evidence was denied by the New Mexico Court of Appeals. However, the case was sent back to the Court of Appeals after a series of 6th Amendment right to confrontation cases beginning with the United States Supreme Court decision of Melendez-Diaz. Based upon Melendez-Diaz, the New Mexico Supreme Court held in State v. Aragon that the testimony of the forensic chemist who conducted the testing and prepared the forensic report was required. The Court held that it was a violation of a defendant's 6th Amendment rights to have a substitute forensic chemist testify on the opinions of the non-testifying chemist.

In light of the ruling in Aragon, the Supreme Court remanded the case of State v. Delgado back to the Court of Appeals. The Court of Appeals then issued its ruling consistent with the decisions in Melendez-Diaz and Aragon. On remand, the Court of Appeals issued its ruling in a Memorandum Opinion. Upon the motion of the defendant, the Court substituted the Memorandum with a formally published opinion.

In short, the Courts in New Mexico will, as they must, adhere to the Melendez-Diaz decision. The rash of cases from State v. Aragon, State v. Bullcoming and now State v. Delgado make clear the State's commitment to the 6th Amendment rights of confrontation. The prosecutor must bring the forensic chemist who tested the drugs and prepared the forensic report. In the absence of this testimony, the drug evidence is inadmissible.

Sadly for Mr. Delgado, the Court also ruled that he was not entitled to a dismissal, but a new trial. It may be expected that the prosecutor will have the appropriate chemist in court for the next trial.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

California voters will vote on a ballot measure that would legalize marijuana. In the meantime, Governor Arnold Schwarzenegger has signed a bill that reduces the penalties of the marijuana possession down to the level of a traffic violation. However, he remains opposed to the legalization and taxation of marijuana.

It might seem that reduction of the consequences of a marijuana conviction to a traffic ticket is sufficient to address the concerns of marijuana legalization activists. It does address a few. Reclassification of the offense will avoid criminalizing personal possession of a substance that an estimated 83 million Americans have tried. It avoids potentially criminalizing one half of the country's high school population that admits to trying marijuana before high school graduation. Perhaps most importantly, it will help to alleviate the hugely disproportionate impact marijuana criminalization has on minorities, particularly blacks and hispanics, who are far more likely to be arrested and prosecuted for the offense than similarly situated Anglos.

Despite the merits of reclassification, this solution does not go far enough. Marijuana continues to be classified as a controlled substance under State and Federal law. Reclassifying the seriousness of the offense will not change the controlled substance classification.

Why does it matter? Conviction, even without incarceration, of a controlled substance offense has many collateral consequences beyond the penal consequences. The most obvious is that conviction for a controlled substance offense, including marijuana, is a deportable offense. This means that many law abiding legal residents may be deported, not just those folks that according to Jan Brewer are littering our deserts with headless bodies.

Of course, there are those that are not opposed to the rather harsh measure of deportation of legal residents for minor possession of marijuana. There are other consequences as well. Perhaps most concerning is the impact a controlled substance conviction has on federal student loan eligibility. For those that were lucky enough to avoid student loans and unlikely to need them in the future, a controlled substance conviction can cause all kinds of future problems related to employment.

In short, reclassifying marijuana offenses to a less serious penal status does not address the inequities of marijuana criminalization. If the estimates are correct, there are 83 million Americans potentially at risk. Any law that would threaten to arrest and prosecute over a quarter of country's population for a controlled substance offense is simply unacceptable.

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 United States Supreme Court has overruled the 5th Circuit Court of Appeals in Carachuri-Rosendo v. Holder. The petitioner had agreed that he was removable because of the two simple possession convictions but had applied for cancellation of removal. The 5th Circuit ruled that the petitioner's conviction on two simple possession charges constituted an aggravated felony thereby making the petitioner ineligible for cancellation of removal. This ruling had potentially disastrous immigration consequences for thousands of non-citizens charged with petty drug offenses.

The petitioner had served 20 days on his first simple possession and 20 days on the second. The case was brought in Texas state court. The prosecutor had not sought an enhancement though enhancement as a recidivist offender was possible under both Texas and Federal law. The government argued successfully in the 5th Circuit that because the second offense could have been enhanced under the law, the second conviction constituted an aggravated felony.

The Supreme Court reversed the 5th Circuit. In short, the Court stated that in order to be convicted on an aggravated felony as a recidivist offender, the State must have provided notice of the intent enhance to the defendant so that he could have defended against those charges. The court refused to entertain the government's theoretical possibility of enhancement when in fact there had been no such allegations in the second criminal action. Nor did such a possibility factor into the plea which resulted in only a 10 day sentence under Texas law for simple possession.

This is good news for the petitioner and all non-citizens facing removal for petty drug offenses. However, this does not end the matter. Though the petitioner is now eligible for cancellation of removal, there is no guarantee that cancellation will be granted. If you find yourself or a loved one in this situation, contact an immigration attorney immediately. If you are charged with any kind of crime, especially drug offenses, then make sure you understand all possible immigration consequences of the charges and any offered plea. Even seemingly trivial offenses may have disastrous immigration consequences.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Possession of a controlled substance, including marijuana, can have serious consequences for student aid. A conviction results in an automatic suspension of eligibility for federal student loans, grants and work assistance.

Suspension of eligibility for student loans, grants and work assistance is automatic for a duration of 1 year for a first time conviction for possession of a controlled substance. A second conviction carries an automatic 2 year suspension. A third conviction results in an indefinite suspension of eligibility.

Because the definition of controlled substance includes marijuana, both under federal and New Mexico law, any college student charged with possession of marijuana needs to carefully consider the consequences of any possible plea offers. Often, the prosecutor or district attorney will offer a plea disposition that ultimately involves a dismissal of the charges. This is very common in minor first time possession of marijuana. However, the prosecutor will often condition the plea and eventual dismissal on an admission of guilt such as in offers of a deferred sentence.

Any offer resulting in ultimate dismissal would typically be a very good option for a criminal defendant. Unfortunately, much like the untended immigration consequences related to seemingly trivial offenses, an admission of guilt to possession of a marijuana, despite a later dismissal, will jeopardize student loan eligibility.

Unfortunately, these harsh federal laws have not caught up with the national trends toward greater leniency in marijuana prosecution. California is moving toward decriminalization. At least one town, Breckenridge, has decriminalized marijuana usage. Medical marijuana legalization is expanding fairly rapidly across the country. Even law enforcement officials across the country are leaning toward leniency in marijuana enforcement. All the while, federal law continues to penalize recipients of student loans and grants for what is a fairly widespread practice on college campuses.

Hopefully, the federal law will catch up with state laws and the realities of widespread marijuana usage throughout the population, including college students. However, until that day comes, any New Mexico college student facing this situation would be well advised to seek the advice of a New Mexico attorney. Going to court without the assistance of counsel believing this to be a minor matter could prove very costly.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Arguments were heard last week by the Supreme Court in Carachuri-Rosendo v. Holder. The case addresses the immigration consequences of removal and deportation of immigrants from the United States for minor possession of marijuana. I set forth a summary of the case in a prior post. The last post did not address the public policy implications of the case. There are many that will be felt here in New Mexico.

News reports over the last several weeks have included California releasing thousands of prisoners due to budget issues. The State of New Mexico is considering permanently cutting over 1000 employment positions in the State, many of which are corrections and law enforcement. The New Mexico State Police have cut back on officers. Other cities and towns, including Albuquerque, are cutting law enforcement positions and/or salaries. The courts in New Mexico, including the Second Judicial District, are cutting hours and staff due to budget issues. Prosecutor budgets are being cut with prosecutors taking pay cuts. Think of what a continuation of the policy of deportation of immigrants on minor possession of marijuana has on prosecutor's offices.

Immigrants facing these charges have no plea options. Prosecutors are left with one few options, dismissing the case or going to trial. In many cases, these are only options if there were no other charges in the complaint. There is simply no lesser included offense that would allow plea. Criminal defense attorneys cannot advise their clients to take a plea involving any hint of drug possession. They cannot even allow a plea that would result in a dismissal if the plea involves an admission of marijuana possession. The admission alone, despite the later dismissal, is a deportable act.

Thus, the policy forces defendants to go to trial on otherwise trivial charges. Trials are a huge burden on the courts and prosecutors who are already under severe budgetary strains. Just today, the Albuquerque Journal reported that Albuquerque Public Schools face a $43 million budget deficit forcing the layoff of 664 APS employees. How should we as a society spend our tax dollars? For teachers or for prosecuting and deporting otherwise law-abiding immigrants on minor possession of marijuana?

Morality, humanity, compassion carry little weight in immigration debates. Money is always persuasive, and though money cannot buy happiness, it might buy change in a cruel and irrational immigration enforcement policy.

www.CollinsAttorneys.com

Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

www.CollinsAttorneys.com

It is estimated that drug violence has claimed over 16,000 lives in Mexico during the past three years. These deaths have resulted from a virtual war between the Mexican government and the drug cartels. The cash crop is marijuana.

The cartels are turning increasingly to child runners. Mexican drug gangs are recruiting children as drug runners and mules. The Texas Department of Public Safety refers to the child recruitment campaign as "scare and awe." The awe comes in the form of the promise of easy money and status while the fear comes in the form of torture and death.

Several states now have medicinal marijuana programs, including New Mexico. It is estimated that California has up to 2000 medical marijuana dispensaries. There is now even a Cannabis University, Oaksterdam University, that teaches people how to grow and dispense weed. Yet New Mexico, and Albuquerque in particular, continues to prosecute possession very aggressively. God forbid, you have over 8 ounces in your possession because you will likely then be charged with distribution.

Lives continue to be ruined on both sides of the border as a result of the war on drugs and the prosecution of marijuana possession. Thousands of lives have been lost, children are exploited and even tortured, immigrants are deported routinely for marijuana possession, people are hauled into court for minor possession, and those with more than 8 ounces can face 2nd degree felony trafficking charges carrying up to 9 years in prison.

No amount of reason has worked thus far to alter the enforcement of the marijuana laws. Perhaps, reason simply lacks the persuasive force of profits. This is particularly so when the insurance industry is involved. Due to the explosive growth of the medical marijuana industry, a new cottage insurance industry catering to the needs of the medical marijuana industry has sprouted up. Insurance is now available for everything from standard worker's compensation to crop theft insurance.

Medical marijuana is becoming big business California leads the country with as many as 2000 medical marijuana dispensaries. Colorado is a distant second with 60. However, the number is growing in the states that have legalized medical marijuana. You can bet the industry is growing when the insurance industry has taken note.

The insurance industry is generally much maligned and for good reason. Maybe, the very greed that is generally so repulsive in the insurance industry will lead to positive social change as the medical marijuana industry takes root. Perhaps, similar profit motives will dictate more enlightened marijuana policies across the board as the insurance industry spots new profit centers. Where the logic of saving lives, saving children from exploitation and torture, saving immigrants from deportation for minor possession, and saving otherwise law abiding citizens from often harsh and inhumane prosecution has fallen on deaf ears, the logic of capitalism will hopefully carry the day. This is a rare occasion when I am pulling for the insurance industry to make more money.

www.CollinsAttorneys.com

Legalization of marijuana is picking up steam in California. It is expected that there will be enough signatures to get the measure on the ballot in 2010. Possession of marijuana remains a crime under federal law. Possession of marijuana remains a crime in New Mexico, classified as possession of a controlled substance. The police in New Mexico continue to make arrests for marijuana. Likewise, they continue to allege intent to distribute for relatively small amounts of marijuana.

All the while the State of New Mexico continues to move forward with its groundbreaking medical marijuana program. There has been a shortage of medical marijuana. There has to date been only one licensed grower and distributor. There are currently 25 applications for non-profit licenses for the production and distribution of medical marijuana. Seven of these applications have been forwarded to the New Mexico Department of Health Secretary Alfredo Vigil.

There is bound to be a clash between the States of New Mexico and California and the Federal Government. The U.S. Supreme Court also has ruled that federal law enforcement agents have the authority to enforce and prosecute the federal laws against the production, sale and possession of marijuana even against state sanctioned programs. It is unclear whether the federal government will be able to force the cooperation of state and local governments in these activities. Without the assistance of state and local law enforcement, the federal government would be hard pressed to enforce the federal laws in California, a state of 40 million. The numbers are telling. In 2008, there were 847,000 marijuana related arrests. Only 6300 of these were made by federal law enforcement, representing less than 1% of the total.

It remains to be seen if New Mexico will follow the lead of California. Or will limit the legal use of marijuana to medical purposes thereby continuing to criminalize a harmless and common activity. The harm to otherwise law-abiding citizens goes well beyond the criminal penalties, which can be fairly severe in the case of possession of 8 ounces or more, which is classified as a 4th degree felony, and possession with intent to distribute which is at a minimum a 4th degree felony. Conviction can impact not only employment, but education since some convictions carry with the disqualifications for federal student loans or other aid.

The International Drug Policy Reform Conference will be held in Albuquerque, New Mexico on November 12-14. The conference was held in Albuquerque in 2001. It returns because the presumably New Mexico is a "beacon of reform" because of its innovative Good Samaritan laws passed to prevent fatal overdose, and its medical marijuana initiatives.

There will be a variety of drug law reform advocates including doctors, lawyers, activists, educators and law enforcement. Much of the discussion will center on the recent tide of support for the legalization and regulation of marijuana.

The War on Drugs has clearly failed. The War on Drugs destroys the lives of otherwise productive, law-abiding citizens. It also enriches and empowers the drug cartels. The War on Drugs has never appreciably affected drug use. Instead, it has placed a huge tax burden on federal, state and local governments. The enforcement, prosecution and punishment of drug use costs the country billions upon billions of dollars per year. This is in fact probably the reason for the new enlightened views on legalization. With governmental budgets devastated by the ongoing recession, necessity has led to enlightenment.

It remains to be seen whether Albuquerque will live up to the honorary title of "beacon of reform." Neither the Albuquerque Police Department nor the District Attorney in Albuquerque have gotten the memo. Instead, marijuana possession continues to be prosecuted quite aggressively.

The potential penalties for possession of marijuana in New Mexico remain severe. Possession of marijuana in any quantity is still considered possession of a controlled substance. Misdemeanor possession of less than 8 ounces carries up to one year in jail. Felony possession of 8 ounces or more carries criminal penalties of up to 18 months in prison. Possession of more the 30 grams carries deportation consequences. A second offense of less than 30 grams carries deportation consequences. Hopefully, someone from City of Albuquerque will attend the International Drug Policy Reform Conference. They should at least be aware of their purported leadership role in this important trend.