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

It is well established that individuals on probation have significantly fewer rights than the general population. One of the rights that is generally forfeited by a probationer is the right against search and seizure by the probation officer.

While on probation, the probation officer has a right and a duty to insure that the probationer is complying with the terms of probation. The terms of probation universally prohibit the use of illegal drugs while on probation. Likewise, a probation officer can order the probationer to cease contact with known felons or drug dealers.

These variables came together in the New Mexico Court of Appeals case of State v. Sundae Bolin. In Bolin, local law enforcement was seeking to execute a warrant on an associate of Ms. Bolin who was suspected of drug trafficking. In order to try to locate the suspect, the police enlisted the aid of Bolin's probation officer.

Upon request of the police officers, the probation officer escorted the police to Bolin's residence where she was questioned about the suspect's whereabouts. The suspect was not present, nor was there any reason to believe the suspect would be present at Bolin's residence. After questioning Ms. Bolin about the location of the suspect, the police officers and probation officer began questioning Bolin about drug use. Ms. Bolin admitted drug use precipitating a search of the premises. Police discovered a variety of contraband for which Bolin was charged with trafficking a controlled substance.

Interestingly, the court noted that contact with felons or drug dealers is not necessarily a violation of probation unless there is an express prohibition against such contact. Nor is it a crime. As such, neither the police nor the probation officer had any reasonable basis for being at Ms. Bolin's home. Without grounds for presence at her home, they also lacked any basis for questioning her about her drug use which led to the search of her residence.

The Court made clear that probationers have a lessened expectation of privacy under the 4th Amendment while on probation. The court also made clear that probation officers may call upon law enforcement in the performance of their duties. To the contrary, police may not enlist probation officers in their law enforcement duties. In short, the court would not allow a police investigation to be conducted under the pretense of a probationary visit.

The court found that when Bolin answered that the suspect was not there, the encounter should have ended. There was no legitimate law enforcement purpose for their continued presence, nor was there a legitimate probationary purpose. The probation officer was at Bolin's home purely for the purpose of assisting the police officers in a criminal investigation.

The Court found that the search and seizure upon which the charges against Bolin were illegal under the 4th Amendment. As such, the district court's decision to suppress the evidence seized as a result of the illegal search was upheld.

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

Officers in DWI investigations must follow the guidelines established by the New Mexico Scientific Laboratory Division (SLD) in the administration of the breath alcohol tests. Failure to strictly adhere to the guidelines will invalidate the breath alcohol scores.

In State v. Ybarra, the New Mexico Court of Appeals addressed a situation where the officer failed to obtain 2 breath alcohol samples despite the defendant's willingness to provide the samples. The defendant was having a difficult time completing the test as a result of his asthma. The officer actually held an asthma inhaler for the defendant as the defendant was handcuffed. The officer then decided to terminate the breath alcohol test determining that the defendant was unable to provide a second breath sample.

The Court ruled that the circumstances of the case did not justify termination of the breath alcohol test stating, "Terminating a breath test and using the result from the single completed sample must be based on more than a police officer's belief that the willing test subject has physical difficulties blowing into the machine." The court made it clear that DWI officers must comply SLD mandated two breath samples. The only exception to this requirement is when the defendant is physically incapable or refuses to consent to the second test.

Failure to obtain two breath alcohol samples in the absence of incapacity or refusal will result in the suppression of the breath score. The prosecutor cited the 2005 case of State v. Vaughn to suggest that DWI officer's may exercise discretion in terminating the tests. The court recognized that a officer might terminate the test where the defendant intentionally gives a bad sample as in Vaughn. However, the court determined that there was no such evidence of an intentionally bad sample by defendant. Instead, the defendant attempted to give the sample even as the officer held his asthma inhaler for him while he was handcuffed.

The court further cited the 1998 case of State v. Gardner for the proposition strict compliance with the SLD regulations is required. Good faith attempts at compliance are not enough. Gardner involved a case where the officer had failed to observe the defendant for the SLD required 20 minute observation period when the defendant was allowed to go to the bathroom. Despite the apparent good faith of the officer, the breath alcohol scores were suppressed for failure to adhere to the SLD regulations.

The court in its rulings recognizes the importance of standardized guidelines in the administration of the breath alcohol tests to insure legitimate and accurate tests results. Perhaps in this case, the officer did exercise good faith in terminating the tests. However, the absence of strict guidelines could lead to any number of possible abuses in the administration of the tests. After all, how is good faith to be measured in the absence of rules?

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

In State v. Toms, the New Mexico Court of Appeals addressed the foundational requirements for admission of breath alcohol score results in a DWI trial. The Court in Toms reiterated the ruling in the 2007 New Mexico Supreme Court case of State v. Martinez. In addition, the Court expanded on Martinez in addressing the proper procedural grounds by which a defendant may attack the foundation of the breath alcohol results.

The Court first stated that calibration of the machine by the officer was not enough. Though calibration of the machine is a measure to insure the accuracy of the breath alcohol score, it is insufficient to establish the foundation for admission of the score into evidence at trial. In addition, as stated in Martinez, the State must prove by a preponderance of the evidence that the machine has been properly certified and the certification is current at the time of the test. The State in short must show that the machine has been properly certified, the certification is current, and the machine was certified by the Scientific Laboratory Division of the Department of Health (SLD).

Failure to fully establish the foundation for admission of the breath alcohol score will render the evidence inadmissible. These foundational requirements are meant to insure the accuracy of the breath alcohol scores and to protect defendants against unreliable or inaccurate tests results. The State argued that the defendant must raise the issue prior to trial. Effectively, the State argued that the defendant was obligated to alert the State to weaknesses in its case prior to trial in essence providing the State with the opportunity to cure the defect.

Fortunately, the Court disagreed. This foundation is the State's responsibility, not the defendant's. The Court expressly expanded on Martinez to address the State's argument. The Court stated that the defendant has no obligation to raise the deficiency in the State's case via pre-trial motion as the trial court and the State had suggested. The Court stated that the state has the burden of laying the foundation for the breath alcohol test results and that the Court would not "require the defense to file a pretrial motion simply to advise the prosecution that it may have a defect in its proof or some problem in establishing the appropriate evidentiary foundation."

DWI is enforced very vigorously in New Mexico for good reason. DWI is a threat to the safety of all of us and our families who drive New Mexico roads. However, on occasion, DWI is perhaps enforced a little too vigorously as was the recently invalidate practice of arresting drivers who were sleeping in their cars, and the continuing practice of arresting and prosecuting drivers at breath alcohol levels below .08. Fortunately, the Court in State v. Tom has not shifted the burden of prosecution to the defendant him or herself by placing the responsibility of foundational elements to the defendant. After all, the defendant should not carry the burden of prosecuting him or herself despite the efficiencies that would come from such a requirement.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed 4th Amendment search & seizure issues in State v. Jose Manuel Martinez. The case involved the expansion of an investigation of an felony aggravated battery case to the detention of the defendant until a canine unit could be called to the scene for a search of the defendant's car.

The defendant was identified as the perpetrator in an aggravated battery where the alleged victim had suffered serious injuries and coma. The police officers went to the location of the alleged incident where they found a number of individuals including the defendant. The officers smelled marijuana in the residence and asked the occupants to step outside. The officers conducted a walk through search but found no evidence of drugs or weapons.

Despite the apparent lack of any evidence of a crime at the scene, the officers then asked if the defendant had any weapons in his car. The defendant answered that all he had in his car was a crowbar. The officer asked to search the car. Defendant refused the search stating that he would retrieve the crowbar for the officer. The officer then detained the defendant calling in the canine unit. Upon searching the vehicle, the officers found two bags containing cocaine, a digital scale, and rolling papers resulting in charges of trafficking a controlled substance and possession of drug paraphernalia.

The question was whether the expansion of the investigation under these circumstances was reasonable and constitutional under the 4th Amendment. The Court of Appeals found that the expansion was reasonable thereby denying the defendant's motion for suppression of the cocaine and paraphernalia.

The court stated, "An officer may expand the scope of an investigatory stop if the officer has reasonable suspicion that other criminal activity is taking or has taken place... If evidence of another crime surfaces during a routine investigatory stop, the officer may proceed in a reasonable manner to investigate." The court was quite generous toward the investigating officers in allowing for the search on these grounds. The Court stated that the defendant's admission that he had a crowbar, but refusal to allow the search of his vehicle, was an indication of other criminal activity sufficient to justify the detention of the defendant until the canine unit arrived, and the search of the defendant's car.

In light of the customary deference to the 4th Amendment and the expansive protections against unlawful search and seizure under New Mexico law, the outcome is somewhat surprising. The case seems like a good candidate for further appeal to the New Mexico Supreme Court where there may be a different outcome.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed the constitutionality of a "reach-in" search of a defendant on a busy street in the recent case of State v. Williams. The court found that the search was an unlawful invasion of privacy under the circumstances and therefore and illegal search and seizure under the 4th Amendment.

In a nutshell, there was a felony warrant outstanding on the defendant. The officer legally pulled the defendant over in his car. The officer legally placed the defendant under arrest due to the warrant. The officer then pulled out the defendant's waist-band on his pants looking in and seizing crack cocaine in the defendant's pants. The search and seizure was conducted in broad daylight on a busy city street. The defendant argued the search constituted an illegal strip. The Court disagreed that it was a strip search. However, the Court still found the search to be unreasonable under the circumstances and therefore unconstitutional.

The issue that arose was not whether the officer was entitled to search the defendant. All parties agreed that the officer had the right to search the defendant. However, the manner of the search was found to be unreasonable and unconstitutional under the 4th Amendment. The Court recognized that there are situations where the suspect's sense of modesty and privacy are overridden by exceptional circumstances. However, the cases all indicated that reasonable steps must be taken to protect the suspect's privacy. The Court stated that there was must a proper balance between the immediate need to search the suspect and the invasion of privacy and embarrassment associated with a public search.

In State v. Williams, the search was conducted in broad daylight during rush hour. No evidence was presented by the State showing that appropriate steps were taken to lessen the invasion of the defendant's privacy or that the situation dictated an immediate search in the manner it was conducted. In fact, according to the Court, the trial court did not consider at all the reasonableness of the location or the manner of the search.

Because the State failed to show the reasonableness of the search, or necessity under the circumstances, the search was found to be illegal and the crack cocaine was suppressed. Many will take objection to the ruling. The ruling may seem to run against common sense. However, the New Mexico courts are very protective of constitutional rights often extending protections well beyond the federal courts in similar situations. And the simple fact is the officer could have waited and conducted a full strip search once the suspect was taken to jail. The search as conducted simply was not necessary and some very basic steps could have protected both the defendant's right to privacy as well as the officer's seizure of evidence.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The 4th Amendment protections against unlawful search and seizure generally require a warrant grounded in probable cause prior to the search of a citizen's home. It has long been recognized that the broad protections of the 4th Amendment do not apply to those on probation or parole. The issue was addressed most recently in the New Mexico Court of Appeals case of State v. Benavidez.

In Benavidez, the defendant's parole officer visited the defendant's home for a parole visit. The parole officer knocked on the door repeatedly. The defendant would not answer the door. The parole officer saw the curtains in the defendant's bedroom moving. There was also a car in the driveway in which the parole officer had earlier seen the defendant driving. The parole officer called for police backup. Upon arrival, the officers kicked in the door. Upon searching the home, they found the defendant hiding under a bed. They also found meth and paraphernalia in the defendant's bedroom where he was found hiding.

The defendant was charged with possession of a controlled substance and drug paraphernalia. He entered a conditional plea to the charges reserving his right to appeal the constitutionality of the search and seizure. The defendant argued that the search and seizure was illegal and therefore the drugs and the paraphernalia should be suppressed. The court of appeals found the search and seizure to be lawful drawing upon abundant case-law supporting the search and seizure of the parolee's home.

The court indicated that probationers and parolees do not enjoy the same protections under the 4th Amendment as do ordinary citizens. The Court cited the interests in the State in supervising probationers/parolees which dictate a lesser expectation of privacy. In fact, probation and parole agreements require that the probationer/parolee submit to reasonable searches of his or her home. Thus, a search may be conducted for reasonable suspicion rather than the higher standard of probable cause that applies to ordinary citizens.

In this case, the Court found that the refusal of the defendant to open his door for his parole officer provided reasonable suspicion for the search. The refusal itself constituted a violation of the terms of parole which alone was sufficient grounds for the search. Based upon the Court's finding that the search and seizure were legal under the 4th Amendment, the defendant's appeal was denied.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Broad discovery is fundamental to due process in the defense of criminal charges. The New Mexico Court of Appeals addressed the issue in State v. Ortiz. The court stated that a defendant is entitled to all discovery that might reasonably relate to the defense. The defendant need not know in advance that the records, documents or other evidence are helpful, but only that they might possibly be helpful to the defense.

Ortiz involved a DWI stop. The officer stated in grand jury testimony that he stopped the defendant due to erratic driving behavior. Through discovery, the State provided a videotape of the incident. However, the video was missing 6 minutes of footage. The defendant insisted that the State provide the excised portion of the tape. The State refused stating that the missing portion was irrelevant to the case. The defendant also requested the officer's cell phone records for the missing 6 minute period. Again, the State refused stating that the officer had an expectation of privacy in his personal cell phone records.

The district court ordered the State to provide both the missing video footage as well as the officer's cell phone records for the six minute period. The State refused. The Court, exercising its discretionary authority for discovery violations, suppressed all evidence arising from the DWI stop which resulted in dismissal of the case. The Court of Appeals affirmed the district court's dismissal of the case.

The Court of Appeals reiterated the liberal discovery standard in criminal cases. The court cited United States v. Lloyd, a 1993 D.C. Circuit Court case, as follows: the "materiality standard...is not a heavy burden; rather, evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation , corroborating testimony or assisting impeachment or rebuttal."

The Court agreed with the district court that both the missing video footage and the officer's cell phone records during the missing 6 minutes might play a role in the defense. It was not up to the defendant to prove the materiality of the evidence. Instead, the defendant had the right to obtain and review the evidence for its materiality. The court indicated that liberal discovery was fundamental to the defendant's due process rights and his right to a fair trial.

The Court's ruling as well as the liberal rules of discovery are essential to the defense. In addition, they reflect plain common sense. A defendant would hardly be entitled to any discovery if it were required that he or she first show the materiality of the evidence before obtaining it. The materiality of evidence often cannot be known until it has been reviewed. In many cases, a review of the evidence may find that it is immaterial or otherwise inadmissible. But due process dictates that all potentially material or relevant evidence be disclosed. Only then can a determination of admissibility be undertaken. It takes little imagination to envision potential abuse of a less stringent discovery rule.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Court of Appeals draws the parameters of investigatory stops in State v. Eric K. An anonymous call was made to 911 reporting that a female had pulled a gun and took the caller's money during an apparent drug transaction. A police officer went to the area where the alleged crime had occurred to investigate. Upon arrival, he noticed two male youths that he believed looked a little bit nervous but "nothing real suspicious."

Based upon the 911 report and his belief that the two youths looked nervous, the officer initiated contact with the youths. As the officer approached, the youths began to enter a laundromat. The officer called for them to come over to speak with him. During the conversation, the officer instructed one of the children to remove his hands from his pockets. At that time, one side of the child's coat hung lower than the other prompting the officer to pat down the child. A gun, drugs and drug paraphernalia were discovered in the pat down search. The child moved to suppress all of the evidence as fruits of an illegal search & seizure. The trial court denied the motion to suppress. The New Mexico Court of Appeals reversed.

An officer is always free to initiate a voluntary encounter with a citizen. However, once the circumstances are such that a reasonable person would not feel free to leave, the encounter turns into a seizure for which there must be reasonable suspicion. Mere proximity to a reported crime does not constitute reasonable suspicion,. Nor does looking a little nervous. Instead, the court reiterated the well-established rule that there must be "individualized, articulable, reasonable suspicion" at the time of the seizure which the court found in this case to be when the officer ordered the child to remove his hands from his pockets.

The 4th Amendment provides significant protection against illegal search and seizure. This includes cases where officers without reasonable suspicion, but merely on a hunch or perhaps simply in the process of fishing for evidence, initiate an non-voluntary investigative encounter with a citizen. The 4th Amendment attempts to balance individual rights against community and officer safety.

This case points out the tension between these interests. On the one hand, the child had a gun, an illegal act and perhaps a danger to the community. On the other, the officer had no basis for investigating the child. It is a difficult balance for law enforcement and the courts as the interests on both sides are extremely important. However, the 4th Amendment right against unlawful search and seizure must not be compromised on a case by case basis where an officer just happens upon a crime through an illegal investigation. To allow the end result of an illegal investigation to justify the unlawful police conduct would render the 4th Amendment meaningless. As much as a case like this rattles our insecurities, the alternative is far worse.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

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 New Mexico Court of Appeals addressed the knock and announce rule in the recent case of State v. Gonzales. It is well established in New Mexico that law enforcement must first knock and announce their presence and wait a reasonable amount of time for a response before entering a residence to execute a search warrant.

The rule avoids the needless destruction of property while recognizing the sanctity of the home and the right to privacy. Failure to comply with this rule constitutes unlawful search and seizure in violation of the 4th Amendment to the United States Constitution. The Court, in its ruling, reinforced these very important protections afforded by the knock and announce rule.

In State v. Gonzales, the Court addressed a situation where it the facts indicated that the officers had not knocked and had waited only 8 seconds after announcing their presence before bursting through the front door with a battering ram. The Court determined that, under the circumstances, 8 seconds was not a reasonable amount of time to wait following announcement of their presence. The Court also deferred to the District Court's factual finding, based upon the officers' belt tapes, that the police had not knocked despite uncontroverted testimony to the contrary. As a result, the marijuana and cocaine seized from the residence was suppressed.

The Court, in determining the reasonableness of the 8 seconds, contrasted the facts in the case with several prior rulings. There are circumstances where a brief wait following announcement of the officer's presence would be deemed reasonable. The court cited several prior cases involving hotel/motel rooms and other small residences where a brief wait was justified due to the brief amount of time that it would require the resident to get to the door. A delay in these cases would indicate constructive refusal of the warrant.

Likewise, the Court indicated there might be exigent circumstances that would avoid completely the necessity of the knock and announce rule. These cases involved situations where the circumstances indicated announcement posed a danger to law enforcement. An indication that the target was attempting to destroy evidence would also obviate the need for a knock and announce.

The Court was careful to indicate that the fact that evidence might be destroyed was insufficient to override the protections of the knock and announce rule. Therefore, the simple fact that drugs were involved, which could be easily destroyed, was insufficient grounds to avoid the knock and announce rule. There must be some indication under the circumstances that the suspect was in fact attempting to destroy evidence.

State v. Gonzales illustrates the great deference the New Mexico Courts have for the 4th Amendment and the U.S. Constitution, often exceeding federal constitutional protections.

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New Mexico law allows a DWI/DUI suspect to request independent chemical testing. In fact, NMSA 66-8-109(B) requires that the officer inform the suspect of this right. The question arises what happens if the officer fails to offer the independent chemical test?

The law dictates that the breath alcohol score must be suppressed for failure to inform the DWI/DUI suspect of the right to independent chemical testing. The problem is in proving the failure of the officer to comply with the law.

As is often the case in DWI/DUI cases in New Mexico, the issue boils down to issues of credibility. Who is the court or jury to believe, the cop or the suspect? It is often a coin toss with the jury. As for the Court, it is clear that the presumptions are with the cop. This is so in the impaired to slightest degree, under the .08 limits DWI/DUI cases, where you are impaired if the cop says you are impaired. It is equally so in the advice of rights for independent chemical testing.

This presumption was made clear in the 2007 case of State v. Duarte. In that case, the officer videotaped the field sobriety tests. Presumably this same video would have carried evidence of the reading of the implied consent and the advice of rights for independent chemical testing. The cop lost the video. The Court made some interesting rulings allowing in testimony regarding the field sobriety tests despite the loss of the only real evidence of the suspect's performance.

Further, the suspect said that he was not informed of that right. The cop did not say he did inform him of that right. Instead, he said it was his general practice to read the advice of rights. Despite the loss of the video, again the only true evidence of the reading of those rights, and the officer's lack of recollection of the reading other than his general practice, the Court ruled in favor of the State and refused to exclude the breath alcohol results.

This case, like the under the limits DWI/DUI arrests on the impaired to the slightest degree standard, points to the real presumptions in DWI/DUI cases in New Mexico. Is there really a presumption of innocence when an officer need only opine that the suspect was impaired for a DWI/DUI conviction? Is there really any due process protection at all when as in this case the only tangible evidence of the officer's compliance with the law has been lost, and yet the officer is allowed to testify to what would have been on the video based general procedure?

The great majority of law enforcement officers are honest, competent and professional. Due process protects society against those that are not. New Mexico's DWI/DUI laws present a sliding scale of justice which is dependent upon the luck of the draw on the cop, the prosecutor and the judge. Fairness, justice and due process are situational. Is DWI/DUI such a threat to our society that it justifies the rebalancing of our system of justice?

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