Albuquerque Criminal Lawyer Blog

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

The great majority of juvenile criminal cases, whether misdemeanor or felony, do not go to trial but end with a plea bargain.

As part of the plea bargain the delinquent child is usually put on probation. As soon as the plea agreement is signed the judge orders the delinquent child to meet with an intake probation officer, and then they are assigned a permanent probation officer.

Terms of probation range from six months to 2 years though the court can exercise jurisdiction and extend probation until the delinquent turns 21. In fact, every offense under the juvenile code carries up to two years in detention. Actual incarceration is the exception for all but the most serious and/or serial repeat offenders and those children that simply will not comply with the terms of probation.

It is the job of the probation officer to monitor the child to make sure they are in compliance with their probation agreement. Some of the conditions in the probation agreement include but are not limited to obeying all state and federal laws, going to school, not possessing weapons, not associating with certain individuals, restrictions on driving privileges and getting a job. In addition, there are two more that trip kids up the most: violations of curfew and violation of the prohibition on the use of drugs or alcohol (particularly marijuana).

Probation Officers set up appointments for the child to come to their office so they can meet. During that meeting the Juvenile Probation Officer will often ask the child to take a urine analysis to test for drugs and alcohol. If the child tests positive for drugs or alcohol the probation officer can ask the children's court attorney to revoke the delinquent's probation and spend the rest of their sentence in jail. More common for a first dirty urine test, the probation officer will call for more frequent meetings with probation along with random urine testing.

Assuming all else fails in the supervision of the child, the probation officer may recommend the revocation of probation. In order to revoke the child's probation, the children's court attorney must file a probation violation which will be followed by a hearing where the probation officer states the violation and makes a recommendation to the Judge. The Judge may revoke probation or some other type of sanction to get the child's attention to comply with the probation agreement.

If at the tail end of a probationary period the child is not complying and the child is over the age of eighteen, the probation officer may suggest a 15 day and cut. A fifteen day and cut means that the child will spend 15 days in jail and is cut from probation with an unsatisfactory discharge.

Finally, and perhaps most importantly for those children that are serious about turning things around, the probation officer does have discretion to request that the court release the child from probation early. As such, if a child is doing well on probation, the probation officer may ask the Judge to reduce the amount of time the child is on probation. This should serve as a great incentive for compliance if possible detention is not enough.

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

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

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 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

There was an interesting editorial in the New York Times today about the broken criminal justice system. It was not interesting so much for the recognition of the problem and the fact that there apparently is a bi-partisan effort to study the longstanding problems and to provide solutions. It is far more interesting when viewed in terms of what is happening in New Mexico.

It is well accepted that U.S. prisons are brimming with non-violent offenders, the great majority of whom are drug offenders. It is also well recognized that the costs of housing theses inmates is extremely expensive. In fact, California has put forth a bill to release thousands of prisoners due to the financial strain that it is putting on the state. New Mexico is facing similar pressures.

None of this new and because everyone has heard it time and time again, most have become desensitized to the issues. This is particularly so in New Mexico and apparently acutely so in Albuquerque where the local press seems on a crusade to increase the incarceration rates for everything from first time DWI/DUI to domestic violence to drug offenses to immigration offenses to apparently every crime on the books. There seems to be a law and order movement in Albuquerque and New Mexico generally while much of the rest of the country is seeking less inhumane and oh yes, less expensive solutions to society's woes.

While California is releasing prisoners, Albuquerque Police in particular continue to arrest drivers for DWI/DUI even though they are under the legal limit of .08. They continue to arrest drivers for sleeping intoxicated in their vehicles. They continue to arrest individuals, many of whom are young, for minor possession of marijuana. They continue to arrest people for domestic violence when they come to the scene even when the alleged victim explains there was no domestic violence. And when they bring each of these fundamentally unjust charges, the prosecutors prosecute with little discretion to drop the charges despite the lack of any evidence, or evidence directly contrary to the charges. The prosecutors on the front lines are driven to prosecute by their bosses, who in turn are driven by politics and funding.

And judging by the recent articles and letters to editor, the public wants more it seems. This in turns drives the District Attorneys throughout New Mexico to dig in and push these cases toward trial. After all, District Attorneys are elected officials and they must listen to the masses. These cases have little to do with justice or the protection of society. To the contrary, as prosecutors are forced to push these cases toward trial by their bosses, the media, the new law and order Governor, and ill advised voters, they are pushing New Mexico toward bankruptcy. And the public gleefully cheers them on while at the same time screaming for lower taxes, smaller government, less government intrusion, greater individual rights, and on and on and on.

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