Albuquerque Criminal Lawyer Blog

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.

There is a small but growing trend toward the decriminalization of marijuana. Albuquerque and New Mexico, despite taking a lead on medical marijuana, lag behind the trend toward decriminalization.

Governor Arnold Schwarzenegger has indicated that legalization needs to be studied closely. Massachusetts voters approved a referendum decriminalizing marijuana. Denver has passed a law making adult marijuana possession the lowest law enforcement priority.

Other countries have gone much further. Portugal decriminalized all drug possession. The feared spike in drug use never materialized. Several Latin American countries are following the lead of Portugal including Brazil and Colombia, who have called on other countries in the region to follow suit. Surprisingly, there has been no reaction from the United States government when in years past these trends would have been met with severe diplomatic reactions.

The American people seem to accept marijuana use. Polls have shown that over 50% believe that marijuana should be legalized, taxed and regulated. These folks have it right. This approach would have numerous positive effects. First, it would bring tax dollars all but bankrupt governments at the Federal, State and local levels. Second, it would reduce the power, wealth and influence of organized crime which is a very serious threat to United States national security. Third, it would save State and local governments huge budgetary waste expended on enforcement, prosecution and punishment of this completely harmless crime. Finally, it would stop ruining the lives of those caught up in these senseless policies.

Despite these trends, and New Mexico's forward looking vision on medical marijuana, the State and Albuquerque in particular continue to take a hard stand on marijuana possession. Marijuana is still considered a controlled substance. Possession of marijuana is classified as possession of a controlled substance. Possession of less than 8 ounces is a misdemeanor, possession of more than 8 ounces is a felony. Even a charge for possession of a controlled substance can have devastating consequences to a defendant. A conviction can have many serious consequences beyond even the penal consequences.

New Mexico, and Albuquerque should take the lead here as they have in other areas such as immigration and medical marijuana. The current enforcement policies are barbaric to the those unfortunate enough to be caught in the system, and neglectful of responsibilities to our taxpayers.

Marijuana use in New Mexico and throughout the United States seems be generally accepted. Stories have appeared this month alone on the Today Show, Marie Claire magazine, Variety, and even Forbes depicting marijuana use in relatively favorable light. Forbes described the medical marijuana trend as a step toward the end of prohibition.

Many of our top political figures including Bill Clinton, Barak Obama, Mayor Michael Bloomberg, Arnold Schwarzenegger and even George W. Bush have admitted to smoking marijuana in the past. Yet more than 750,000 people are arrested every year on charges of marijuana possession. New York, where the mayor has admitted past marijuana use, leads the way with 40,000+ arrests each year.

The fact that law enforcement and prosecutors continue to bring these cases at great costs to taxpayers, and often catastrophic costs to the defendant, is disappointing to put it mildly. More disturbing, however, is the racial component of the arrests. Though Anglos smoke pot at higher rates than blacks or Latinos, and make up the majority of the United States population, the great majority of those arrested for marijuana are black or Latino. In New York, called the marijuana arrest capitol of the world, blacks and Latinos are 87% of those charged.

Possession of less than 8 ounces of marijuana in New Mexico is a misdemeanor. Possession of over 8 ounces is a 4th degree felony. Most possession charges fall in the misdemeanor category. Though misdemeanor possession my seem to some like a trivial criminal matter, marijuana is stilled considered a controlled substance. Possession of a Controlled Substance in New Mexico carries very serious consequences well beyond the penal consequences.

The trend toward medical marijuana and what Forbes describes as the end of prohibition cannot move fast enough for those unfortunate enough to be arrested for what is pretty well accepted by all a harmless act.

In the past, the federal government did not recognize medical marijuana laws in the 13 states that now have such laws. The result was that the federal government would prosecute aggressively those folks engaged in medical marijuana distribution despite the fact that their state allowed it. Attorney General, Eric Holder, quietly has announced that the federal government would no longer engage in these practices.

Instead, the federal government will now respect the laws of the states and will not preempt local law with federal drug policy. New Mexico and 13 other states have breathed a sigh of relief as their citizens can now rely on the law in their state.

New Mexico now has the first state-licensed medical marijuana farm and distributor. The law has been up and running for 2 years allowing medical marijuana in New Mexico. However, the state has moved cautiously awaiting the announcement of the new production and distribution program.

Despite its youth, the program has been hugely successful. The farm cannot keep up with demand. The farm is generating substantial revenue for the state helping to relieve the enormous budgetary strains that the state now faces. Yet the beat goes on with police and prosecutors continuing to prosecute simple possession of marijuana cases and possession of paraphernalia cases. Lives continue to be ruined through the criminal justice system as the State carves out a cottage industry in the production and sale of marijuana.