When talking about the injustice of the criminal justice system, one of the first places to look is the prisons. To address prisons, one way to approach is through probation and parole which seems more geared toward filling prison beds than rehabilitation. This is in fact no different than prisons themselves and the New Mexico criminal justice system on the whole.

However, probation/parole officers have enormous power over the freedom of probationers/parolees. Some might argue they have unfettered power. With this, there is simply no way to avoid abuses when that power is in the wrong hand.

The problem begins with the subjective terms of probation/parole which allow for discretionary enforcement, arbitrary enforcement and/or malignant enforcement of the terms. With discretionary or subjective terms of probation/parole, a probationer or parolee is at the whim of his or her supervising officer. Whim is never a good thing especially when it is in any way related to imprisonment.

Probation/Parole Subject to Abuse

A review of the standard terms of probation and parole will show that many of the terms are discretionary and subjective. In other words, a motivated probation or parole officer can find a reason to violate the person for even slight technical violations. A malignant officer could not only find reasons but generate reasons to violate a person’s probation or parole. In fact, there are a significant number of inmates in New Mexico prisons right now on minor technical violations. Due the discretionary nature of the terms of probation/parole, we as New Mexicans have idea or even any way of knowing whether reincarceration was fair and justified. We must simply take the word of the probation/parole officers. I frankly have a problem with that.

The system is not geared toward keeping inmates from returning. It is just the opposite. It is far too easy to send someone back to prison.

Discretion is no Basis for Justice

The standard terms include highly discretionary terms. The first regarding reporting to the probation or parole office is actually probably the most problematic of all stating:

Reporting: I will report to my Probation/Parole Officer as often as required and will submit completed and truthful written reports as required by my Probation/Parole Officer. All communication with my Probation/Parole Officer will be truthful and accurate and I will promptly reply to any correspondence or communication I may receive from the Probation Officer.

The next very problematic term which is subject to abuse relates to associations, friendships, even family members;

Association: I will not associate with any person identified by my Probation/Parole Officer as being detrimental to my Probation supervision, which may include persons having a criminal record, other probationers and parolees, and victims or witnesses of my crime or crimes.

The next is equally prone to abuse should a probation officer see it fit to abuse it:

Supervision Level: I will follow all orders and instructions of my Probation/Parole Officer including actively participating in and successfully completing any level of supervision and/or treatment program, which may include Community Corrections, ISP, Electronic Monitoring or other supervision/treatment program, as deemed appropriate by the Probation/Parole Officer.

The problem with these terms is that they are extremely difficult to comply with under the best of circumstances. They are impossible to meet with an abusive probation or parole officer.

Little Recourse in Court

When there is an abusive probation or parole officer, there is little for a defendant to do. The courts will almost always side with the probation or parole officer. After all, how can the court trust a convict. The presumptions against the former inmate are extremely difficult to overcome.

In addition, imagine trying to gather evidence on behalf of the probationer or parolee for a violation of any of the above. It really is the probation/parole officer’s word against the former inmate/convict. More than that the probation/parole officer establishes the rules, i.e. “as deemed appropriate by the Probation/Parole Officer”. How do you think this might turn out? When we are talking about locking people up, there are countless collateral consequences to the inmate, the family and if that is not enough for taxpayers. Is it too much to ask that there be very well-defined rules?

Rules Matter

Discretionary rules are not rules. They are opportunities for abuse. They are opportunities to feed the monster that is the criminal justice system. They are opportunities for profits. They might even be as trivial as the desire of a probation/parole officer to lessen a workload. They might also be an opportunity to express racism, other bias or just an authoritarian personality.

There should be no room for judgement on the part of probation/parole officers. There should be rules, they should be well defined and they should be followed by all including the supervising officers.

Criminal charges in New Mexico frequently get dismissed for a number of reasons. Among the most common in DWI cases is dismissal for failure of police officers to show for trial.

A defendant has a right to confrontation of witnesses. In DWI cases, the only witnesses are typically officers. As such, a trial cannot proceed without the presence of the officers.

No-Show of Officers Common Grounds for Dismissal

The question then becomes how much leeway the State should have in getting the officers to trial. Often, the courts in New Mexico will give the State and the officers significant latitude with the case only getting dismissed for lack of appearance of the officers when the speedy trial rule has run or is about to run.

The New Mexico Supreme Court case of City of Farmington v. Piñon-Garcia took up the issue of the propriety of a Magistrate Court dismissal of DWI charges for failure of the officer to show for trial. More to the point, the Supreme Court addressed the State’s right to appeal such a dismissal and the appropriate scope of review by the district court.

We are addressing only the scope of review here. We will not go into the facts of the case. For a discussion of the underlying facts, we addressed this case at the New Mexico Court of Appeals level here:  Scope of Review in de novo Appeals from New Mexico Municipal Courts.

Scope of Review Not Limited to Abuse of Discretion as Defendant Argued

The defendant in the case argued that the district court should review the case only for an abuse of discretion while the State argued that the district court should review de novo. The distinction is important.

The defendant’s position would allow the magistrate court to be overturned only for an abuse of discretion which is a pretty difficult hurdle. On the other hand, a de novo review allows the district court to treat the case as if viewing it for the first time which allows the court to review all pretrial and trial rulings, motions, orders and so on.  It further allows the district court to hear new motions from the parties.  This latter standard gives the district court significantly greater latitude.

The Supreme Court, like the Court of Appeals, ruled that the appeal to the district court was de novo in nature. However, the Court explained that though municipal courts are not  “courts of record”, it does not mean that mean that “the entire history of a case in municipal court is disregarded.” On the other hand, “if a party raises a pretrial motion in a de novo appeal, the district court must make an independent determination of the merits of the motion.”

Though the district court need not ignore the magistrate court record, the Supreme Court emphasized that when a district court conducts a de novo review of decisions from courts that are not of record (like the municipal court in this case), the district court conducts that review independently. In other words, the district court doesn’t have to consider whether the lower court abused its discretion or necessarily review the decision-making process at all. Instead, it can look at the evidence and decide for itself, regardless of the municipal court’s decision, whether a dismissal was warranted.

As a result of the Supreme Court holding, the case was sent back to the district court to resolve whether the district court would have dismissed the case under the circumstances given the State’s sole witness failed to appear, or whether it would “consider alternatives to dismissing the case with prejudice.”

The district court’s determination will be an important one. As stated, cases are often dismissed for lack of cooperation of the State’s witnesses. It is very important for the rights of accused that the State’s witnesses are available at trial.

Unless the State is held to this burden, it may be expected that officers will be more prone to no show at trials with the expectation that they will be granted leniency burdening both the accused and the State with further unnecessary hearings.

In New Mexico, there are some acts of medical negligence that are so egregious they give rise to criminal charges. The New Mexico Court of Appeals recently took up such a case in State v. Muraida.

The case is interesting on a number of levels. However, the Court‘s opinion was grounded in evidentiary and procedural issues that don‘t necessarily get to the more interesting implications of the opinion.

In particular, when one views the statutes, at issue, regarding medical negligence (set out below), it is interesting to note that the elements are not much different than are typically alleged in civil medical malpractice claims.

This discussion will focus on the holding of the Court leaving these other issues to be discussed in our medical malpractice section of our personal injury blog.

This case involved criminal charges for abuse and neglect of a nursing home resident that ultimately died of blood loss resulting from excessive administration of the anticoagulant drug Coumadin.

The State‘s expert provided an expert report detailing all the errors and omissions made by the defendant. The expert began by noting that the defendant doctor initially administered the Protime blood test to monitor the anticoagulant effects of the Coumadin. This test measures the patient‘s clotting time; which is referred to as the INR. It is essential to monitor the INR until the levels are both safe and stable.

Inexplicably, the test was not administered again for over one week despite the fact that new higher doses of Coumadin had been started. This test was necessary to insure the proper levels of Coumadin and to avoid the risk of excessive bleeding.

It was noted in the Court‘s opinion that, “Dr. Muraida did not set blood pressure notification parameters, and actually ignored her low blood pressure when he examined her.” Low blood pressure can be a sign of internal bleeding.

Upon discovery of blood in the patient‘s stool 6 days following the increase in Coumadin, the defendant doctor ordered a non-emergent colonoscopy for possible hemorrhoids. Notably, there was nothing in her charts indicating the condition.

This was done without any consideration of the possibility of the patient‘s low blood pressure, the increase in Coumadin and the possible bleeding suggested by these conditions. The defendant failed to retest the patient‘s INR for clotting time, making the colonoscopy very dangerous while also failing to detect the very high risk of bleeding from the excessive levels of Coumadin.

The State‘s expert further testified that the patient should have been removed from Coumadin for at least 2 days prior to the colonoscopy. Prior to the colonoscopy the patient began to experience bleeding from the nose, swelling in the knees and bright red blood in her stool. These issues were not addressed.

On September 1, 6 days following the initial reports of rectal bleeding, the patient was sent to the ER for acute rectal bleeding. Testing showed that she was “massively over anticoagulated.” The patient died of blood loss from a tumor in her colon. The State‘s expert testified that the death would not have occurred had the rectal bleeding been addressed immediately and the Coumadin not been overprescribed.

In short, the defendant doctor‘s treatment was grossly negligent, at least in the estimation of the prosecutor. The doctor was charged under the New Mexico Resident Abuse and Neglect Act (the Act).

The Act at §30-47-4 “provides criminal penalties for medical care administered in a residential setting that falls beneath legislated standards of acceptability.” The Act defines abuse at §30-47-3(A)(4), as “any act or failure to act performed intentionally, knowingly[,] or recklessly that causes or is likely to cause harm to a resident, including: . . . medically inappropriate conduct[.]”

The Act states further at §30-47-3(F):

…”neglect” means, subject to the resident‘s right to refuse treatment and subject to the caregiver‘s right to exercise sound medical discretion, the grossly negligent:

(1)failure to provide any treatment, service, care, medication or item that is necessary to maintain the health or safety of a resident;

(2)failure to take any reasonable precaution that is necessary to prevent damage to the health or safety of a resident; or

(3)failure to carry out a duty to supervise properly or control the provision of any treatment, care, good, service or medication necessary to maintain the health or safety of a resident[.]

In order to support criminal charges, the criminal complaint must allege facts indicating abuse or gross negligence. The defendant argued, and the district court agreed, that the complaint had failed to allege the necessary facts. The case was dismissed on the defendant‘s Foulenfont Motion by the trial court. And this is where the Court of Appeals came into the picture.

There was much discussion in the opinion about the difference between civil negligence and criminal negligence. In a nutshell, after citing extensively from prior case-law, the court determined that for criminal negligence, “there must be an actual or imputed foreseeability of danger directed toward the [victim] who might be injured as a result of the defendant‘s acts and the risk of harm must be ‘substantial and unjustifiable.‘”

Under State v. Foulenfont, dismissal of the case by the trial judge is allowable if the charges can be dismissed solely on a question of law. The charges may not be dismissed upon contested issues of fact; which is reserved solely for the jury.

In this case, the Court found that the complaint did in fact allege sufficient facts for criminal liability, if proven, and that those facts were to be judged by the jury–not by the district court judge.

There was much further discussion on intent, knowledge, identity of who did what, individual responsibility and so on. The Court again found that these determinations were best left for the jury to decide after hearing all the evidence. The Court stressed that it is unnecessary for the State to prove its entire case prior to trial; which would obviously infringe on the realm of the jury.

However, the Court did leave open the possibility that the defendant could attack probable cause at the preliminary examination. At that time, the court will be able to view a more complete factual record to determine if the facts as indicated by the parties as a matter of law are sufficient to move forward to trial.

In short, this saga is far from over. The ultimate outcome has potentially wide-ranging implications.


During the course of a legal case, whether criminal or civil, the law imposes certain deadlines. Generally, if those deadlines are not met the party failing to meet the deadline will be subject to penalties. These penalties may include having their case dismissed or having a judgment entered against them.

Recently, in New Mexico v. Leon, the New Mexico Court of Appeals dealt with a situation where the defendant missed the deadline to file an appeal on his criminal conviction. In cases where an appeal is not timely filed, an ineffective assistance of counsel may be presumed. This case held consistently with this position despite the state‘s argument that there was no 6th Amendment right to counsel in this case since it involved probation violations as opposed to original criminal charges.

The defendant was convicted of one count of contributing to the delinquency of a minor and one count of selling or giving alcoholic beverages to a minor, and he was sentenced to three years of incarceration followed by one year of parole. The court partially suspended his sentence and ordered him placed in supervised probation. The defendant also had a prior felony conviction for a sex offense, for which he is required to register as a sex offender. As a condition of the defendant‘s probation, he was not permitted to drink or possess alcohol, he was required to receive permission from his probation officer for missing any counseling sessions and he was required to get written permission from his probation officer before having unsupervised contact with children under eighteen years of age.

The defendant‘s probation officer filed four probation violation reports based on possession of alcohol, failing to register as a sex offender and missing two counseling sessions. As a result, the State sought to revoke the defendant‘s probation based on the violations. In addition, the State filed a supplemental criminal information requesting that the defendant‘s sentence be enhanced due to his habitual offender status. The court reviewed the evidence and revoked the defendant‘s probation, sentencing the defendant to five years of incarceration followed by a period of supervised probation.

Despite the fact that New Mexico law requires an appeal to a court‘s decision to be filed within thirty days of the final decision, the defendant did not file his appeal until sixty-two days after the final decision was entered. While the trial court may have granted the defendant an extension to file his appeal, he did not file the request for an extension until more than sixty days after the final decision as well. By that time, the trial court could not rule on any matters pertaining to the case, because it no longer had jurisdiction.

The defendant argued that his counsel‘s failure to file the appeal on time was ineffective assistance of counsel. Ineffective assistance of counsel is a claim raised when a criminal defendant believes their attorney‘s performance was so ineffective that it deprived them of their constitutional right to an attorney. In the past, New Mexico courts have presumed ineffective assistance of counsel where an appeal is not filed before the deadline passes, in which case the court will then review the defendant‘s case. However, this case differed slightly from the normal untimely appeal cases, because it deals with revocation of probation.

The State argued that in an appeal from a revocation of probation, the defendant had no right to counsel. However, the defendant‘s probation revocation hearing involved contested evidence, legal issues and complicated legal arguments, which most certainly require the assistance of an attorney. Additionally, the defendant had the right to appeal the revocation of his probation. Due to the significant effect a revocation of probation would have on the defendant‘s liberty, he should not have his right to appeal taken away due to his lawyer‘s mistake. Therefore, the defendant was permitted to appeal his probation revocation, despite missing the filing deadline.


Related Reading:
Sliding Scales of Due Process in New Mexico Probation Violation Hearings
4th Amendment Rights Limited for Probationers and Parolees
You Can Run but …: Tolling of Probation and Jurisdiction in New Mexico Criminal Cases

Collins & Collins, P.C.
Albuquerque Attorneys

The 2011 New Mexico Supreme Court decision in State v. Williams addressed the legality of an under-clothing search incident to arrest. The Court found the search under the crimustances of the case reasonable under the 4th Amendment‘s and related cases on search and seizure.

This case involved a traffic stop. When the officer approached the stopped vehicle he saw through the window that the Defendant was “fumbling around” with an object. Based on the officer‘s training and experience he concluded that these actions were consistent with attempting to conceal contraband or searching for a weapon. When the Defendant exited the car his pants were unzipped and his belt was unbuckled.

Because the Defendant had an outstanding warrant the officer placed him under arrest and handcuffed him. The Defendant was placed between two police cars parked bumper to bumper on the side of the road. The arresting officer patted the Defendant down and shook the waistband of the Defendant‘s pants. The officer also pulled the waistband of his pants out about six inches and looked down and saw a plastic bag underneath the Defendant‘s underpants. With a gloved hand the officer reached down and removed the bag, the contents of the bag latter tested positive for illegal drugs.

The Defendant challenged the search as an illegal search and seizure under the 4th Amendment. The Court found that the search was not illegal and was warranted under the circumstances.

To determine the reasonableness of the officer‘s underclothing search the Court applied the factors previously set forth by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).

These factors require the Court to determine whether the justification, scope, manner and place of the search were reasonable in the context of the totality of the circumstances surrounding the underclothing roadside search.

In this case the Court concluded that each of these factors was met:

  1. The search was justified because the officer reasonably suspected that the Defendant was hiding a weapon or drugs in his underpants based on Defendant‘s movements within the vehicle and exiting the car with his pants unzipped and belt unbuckled.
  2. The scope of the search was narrowly tailored as the officer limited his underclothing search to the area in which he suspected the weapon or drugs to be hidden.
  3. The manner of the search was appropriate as only the Defendant and searching officer were able to see underneath the Defendant‘s clothing.
  4. The location of the search on the side of the road was appropriate as the Defendant was protected from public view by the police cars and the officers on the scene.

After concluding that the Bell factors supported the arresting officer‘s search the Court‘s final step was a balance of the public and private interests at stake. The Court concluded that the underclothing search protected the public interest in safety without unreasonably violating Defendant‘s privacy expectations under the Fourth Amendment.

While the Court found the undergarment search in this case to be reasonable the Court was careful to point out that invasive underclothing searches remain the exception. The opinion in this case is not to be construed as a blanket approval of underclothing searches as part of the typical search performed incident to arrest.

If you are charged with a crime, search and seizure issues are extremely important to your defense. Illegally seized evidence will not be allowed into court. The suppression of illegally obtained evidence is often the best line of defense. It is important to discuss these matters with an attorney experienced in search and seizure issues.


Related Reading:
Unlawful Search & Seizure Under the 4th Amendment
New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law
Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible
Courts Continue Assault on the Rights Against Unlawful Search & Seizure

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the U.S. Constitution and Article II, Section 10 of the New Mexico State Constitution protect us against unreasonable searches and seizures. This means that law enforcement are required to first get a search warrant before going into someone‘s house or car to seize evidence. A search warrant is issued by a judge and is a court order that authorizes law enforcement officers to conduct a search of a person or a location for evidence of criminal activity and to seize that evidence.

The U.S Constitution and the New Mexico State Constitution require that searches be reasonable and specific. Therefore, a search warrant must specifically state the exact place and object that may be searched. A warrantless search, therefore, is presumed to be unreasonable. There are, however, a few recognized exceptions that make warrantless searches reasonable and permissible.

These include exigent circumstances, searches incident to arrest, inventory searches, consent, hot pursuit, open field, and plain view. When law enforcement conducts a warrantless search, it is the responsibility of the state to prove that the warrantless search was reasonable. This can be done by proving that the warrantless search fits into one of the recognized exceptions to the warrant requirement listed above.

The Plain View Doctrine

One of the exceptions frequently relied upon by law enforcement when a warrantless search is conducted is what is commonly referred to as the plain view doctrine. This exception allows a police officer to seize something that is illegal or suspicious if it is in the plain view of the officer. Two requirements must be met in order for the plain view exception to apply. First the officer must be legitimately present at the searched location and second, the incriminating nature of the evidence seized must be immediately apparent giving the officer probable cause to believe that the item seized is evidence of a crime.

For example, if a police officer has a warrant to search someone‘s home for a stolen T.V. and while searching the home for the T.V. the police happen to see drugs laying on a coffee table in the living room, the police may seize the drugs under the plain view doctrine. The seizure of the drugs is reasonable and not a Fourth Amendment violation even though the warrant that allowed the police to search the home for the stolen T.V. did not also specifically state that the officer may search the home for drugs.

The plain view doctrine applies because the police were legitimately present at the searched location pursuant to the search warrant for the T.V. and the drugs were in the plain view of the police. In this same scenario, the plain view doctrine would not apply if the drugs were hidden in a drawer of the coffee table instead because they would no longer be in plain view.

If you are facing criminal charges it is wise to discuss your case with an experienced criminal law attorney. A criminal law attorney will review the details of your case with you to determine whether you have been subject to an unlawful search and seizure. If your attorney determines that your Fourth Amendment Rights have been violated he or she can file a motion to suppress the evidence obtained through the unlawful search and seizure.


Related Reading:
4th Amendment and the Plain View Doctrine
Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Under the Fourth Amendment of the U.S. Constitution, individuals are protected from unreasonable searches and seizures that are not accompanied by a warrant or supported by probable cause.

There are a small number of exceptions to the warrant requirement when police can conduct a search and seizure. A 2011 Supreme Court case, Kentucky v. King, explained the limits of the exigent circumstances exception to the warrant requirement when officers search a private residence.

In Kentucky v. King, police officers followed a suspected drug dealer to an apartment complex where they smelled marijuana coming from one of the apartment doors. Officers knocked on the door and announced their presence. Officers at the scene testified that when they began knocking they could hear movement within the apartment that sounded like the occupants were destroying evidence. Law enforcement officers kicked the door in and found marijuana and cocaine in plain view during a protective sweep of the apartment.

The Defendant claimed that the warrantless entry and search of the apartment was in violation of the Fourth Amendment and that the exigent circumstances exception did not apply because police created the exigency. Essentially, the defendant argued that by loudly knocking on the door, police created a situation where there was a danger of destruction of evidence. The Supreme Court disagreed.

A warrantless search of a private residence is generally considered unreasonable and therefore prohibited by the Fourth Amendment. However, law enforcement officers may enter and search a private home without a warrant if there are exigent circumstances present. Exigent circumstances are present when there is an eminent danger of harm to an individual, a suspect is escaping, or evidence may be destroyed.

Under the “police-created exigency” rule, the exigent circumstances exception does not apply if law enforcement officers “manufactured” or created the exigency. However, lower courts have come up with different tests to determine whether an exigency was created by police officers. The Supreme Court in Kentucky v. King announced the correct test to determine whether the exigency was “police-created.”

Under this ruling, police create an exigency only when they “engage or threaten to engage in conduct violating the Fourth Amendment.” Simply put, the exigent circumstances exception to the warrant requirement applies even if the police officers‘ actions caused the exigency, as long as the officers were acting lawfully and reasonably.

In this case, police knocked loudly and announced their presence. Neither knocking nor announcing the presence of law enforcement, according to the Court, is in violation of a residence‘s occupants‘ Fourth Amendment rights. According to the majority, police may need to knock forcefully and announce themselves loudly in order to let a residence‘s occupants know that they are at the door. In this case, officers did not enter the apartment or make any demands to enter the apartment or otherwise suggest an eminent search. They entered he residence only once they heard people moving inside and feared that evidence would be destroyed.

Therefore, even when police create a situation where a suspect may destroy evidence by knocking at their door, as long as police are acting reasonably and lawfully, they may enter the residence without a warrant. Of course, the officers must have a legitimate and lawful reason to knock on the door to begin with. Likewise, there must be an exigency meriting a warrantless entry. For this determination, the Supreme Court send the case back to the Kentucky courts.


Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The police are not permitted to simply search anyone for any reason. Their powers to search people are limited by the Fourth Amendment to the U.S. Constitution, preventing unreasonable searches and seizures. In most cases, the police must acquire a warrant in order to search a person. A number of exceptions do exist that allow police to forgo a warrant, but those exceptions are limited.

Earlier this year, the New Mexico Court of Appeals examined the use of “pat-down searches” to acquire evidence in New Mexico v. Almanzar. In this case, two police officers were dispatched to investigate a domestic violence incident. By the time the police arrived, the defendant and his girlfriend left the scene of the alleged domestic violence. Both had gone their separate ways and were at different locations when the officers made contact.

When the officers approached the defendant, the defendant allegedly put his hands in his front pockets and refused to remove them. While neither officer believed the defendant was armed, they handcuffed him and conducted a pat-down search for weapons.

During the pat-down search, the officer felt a hard “golf ball-size thing” in the defendant‘s pocket, which he then removed, despite the fact that he knew it was not a knife or gun. The officers believed the object was powdered cocaine.

The defendant was arrested for possession of cocaine with intent to distribute. The defendant, believing that the police search violated his constitutional rights, sought to have the evidence suppressed so that it could not be used against him at trial. The trial court allowed the evidence. The defendant then entered a conditional plea to trafficking cocaine reserving on the issue of the search and seizure question.

Officers are permitted to pat-down or frisk suspects only for the purpose of officer safety. Specifically, they are allowed to search for weapons. In fact, an officer may only conduct a pat-down search if he or she believes that the suspect is armed and presently dangerous.

The search itself must be limited to what the officer needs to do in order to locate any weapons. If the officer detects something that reasonably may be a weapon, then the officer may remove it.

The courts will generally defer to an officer‘s judgment when determining if a pat-down search is required. In this case, the defendant‘s behavior, including putting his hands in his pockets and refusing to remove them, provided a basis for the pat-down search. However, in order to remove the object from the defendant‘s pocket, the officers were required to believe that it could be a weapon.

A pat-down search is not a search for evidence. It is strictly for the protection of the officer. In this case, the officer testified that he did not believe the object was a weapon. As such, removal of the object was not necessary for officer safety. At that point it became an evidentiary search and was therefore an illegal search under the 4th Amendment.

There is a further exception to the limited scope of the pat-down search. If the evidence would have been discovered anyway, then it may still be admissible under the “inevitable discovery doctrine.” Here the police argued that it would have been discovered anyway due to a search incident to arrest on domestic violence.

The New Mexico Court of Appeals disagreed. In fact, the Court reiterated the misdemeanor arrest rule in New Mexico which requires that an officer be present at the scene of the crime to make an arrest. This rule applies equally to domestic violence and has in fact been codified in NMSA 31-1-7(A) as follows:

Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.

The State took a broad view of “at the scene” arguing that it meant in the vicinity. The Court of Appeals again disagreed using the plain meaning of the words despite some agile arguments made by the State attempting to equate it to related DWI rules.

In short, a pat-down search is limited to officer safety. It is not a basis for a full search for evidence. Naturally, this will not be the end of it as it will often come down to what the officer believed. And this is obviously open to interpretation.


Related Reading:
4th Amendment and the Plain View Doctrine
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant

Collins & Collins, P.C.
Albuquerque Attorneys

Police officers often collect evidence used in later criminal prosecutions after using search warrants to examine various places, like homes and cars. However, there are specific rules about when it is proper for officers to obtain those warrants from a judge. If a warrant is obtained without sufficient probable cause than the search is improper and the evidence found via the search cannot be used in a trial.

Earlier this year the New Mexico Supreme Court ruled in State v. Haidle held that multiple levels of hearsay are not sufficient to support a constitutionally valid search warrant. Therefore, any evidence obtained using that search warrant could not be used.

In this case the decomposed body of a woman was found in a remote area with signs that she had been killed by blunt-force trauma to the head. Over ten months later, the police received tips from a confidential source and two concerned citizens that the defendant admitted to at least one person that he killed the woman.

The police obtained a search warrant for the man‘s home and truck. They found a bloody t-shirt that was too small for him and a piece of living room carpet containing bloodstains that had apparently been cleaned. Using this evidence, the police then obtained a warrant for the defendant‘s DNA. After the blood on the carpet matched the victim‘s, he was arrested and charged with first-degree murder.

Before trial, the defendant sought to suppress all the evidence obtained as a result of the search of his home. He argued that the police failed to obtain probable cause for the warrant. The district court agreed that the police did not have probable cause, but allowed the evidence because it would inevitably be discovered anyway. The defendant appealed this determination, and the issue went to the New Mexico Supreme Court.

The New Mexico Supreme Court determined that the affidavit used to support the warrant included both hearsay information from unnamed informants and nonhearsay evidence gathered independently by the police. New Mexico Rules of Criminal Procedure address the use of hearsay for a basis of probable cause for a warrant. The Court in Haidle quoted those rules stating:

Rule 5-211(E) NMRA provides that when a showing of probable cause depends in whole or in part on hearsay information, the affidavit must show “a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.”

The court found that the hearsay information did not provide any evidence of truthfulness because there was no indication that the sources had provided reliable information in the past or made statements against their own interest. In short, there was no basis for the court to find unnamed sources reliable and trustworthy.

The Supreme Court then had to address whether the evidence would have inevitably been discovered, even without the warrant. First, the court rejected what it termed the “we-could-have-done-it-lawfully-so-it-doesn‘t-matter-that-we-didn‘t view.” The court found that there was nothing in the record that would indicate the bloody carpet would have been discovered without the warrant. Furthermore, allowing the police to use the inevitable discovery doctrine would make the probable cause requirement meaningless.

The court then concluded that the inevitable discovery doctrine would not apply in this case. The Court‘s language seemed to go further though it did not outright state that the inevitable discovery rule did not apply in New Mexico.

The Court anticipated the sour feeling one might have after reading the Court‘s opinion. It appears that justice was denied. And many will use cases like this to attack the courts, the rules of evidence, the exclusionary rule, and of course, criminal defense attorney. However, keep in mind the words from the U.S. Supreme Court case of Mapp v. Ohio as quoted by the Court in Haidle, “[n]othing can destroy a government more quickly than its failure to observe its own laws…”


Related Reading:
Expansion of Police Investigation Under the 4th Amendment in New Mexico
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Passenger Rights Against Illegal Search & Seizure in Routine Traffic Stops

Collins & Collins, P.C.
Albuquerque Attorneys

The Fourth Amendment of the Constitution protects people against warrantless searches of their persons, papers and homes.

The law requires police to possess a valid warrant when searching a home for evidence, unless they act within one of the exceptions created by the courts. In order for the police to obtain a valid warrant, the police must have probable cause and specifically describe the place to be searched and items they want to seize.

The New Mexico Court of Appeals found a search invalid where the police failed to properly describe the area where they seized evidence in the search warrant. In New Mexico v. Hamilton, the police obtained a warrant to search the defendant‘s home. The warrant described the place to be searched as “a residence,” more specifically as “a red stucco single level home with turquoise trim.”

The police executed the warrant, and soon witnessed the defendant and his brother exiting a detached guesthouse located in the backyard area of the main house. The defendant and his brother were detained while drug-sniffing dogs searched both the main house and the guesthouse. The dogs alerted the police during the sniff of the guesthouse. The police then searched the guesthouse leading them to evidence upon which the defendant was charged.

The Fourth Amendment exists to prevent the police from searching people and places without cause. The courts have limited the police‘s authority to search, which ensures that the search will be carefully tailored and will not be a general search that the Constitution prohibits.

The area encompassing the “home” may extend beyond the walls of the home, and is sometimes referred to as the “curtilage.” The Fourth Amendment does extend to protect the curtilage. There is no set definition of curtilage, but several factors are considered by the courts. However, it is clear that where the police want to search two houses, they are required to provide probable cause to each, and specifically describe the residences and things they wish to seize.

In the Hamilton case, the warrant did not mention the separate guesthouse. The main house and guesthouse were owned as a common unit, but the defendant used the guesthouse as a separate residence. In addition, the guesthouse had been rented out to tenants in the past, and it formerly had a different address.

The State argued that the guesthouse was part of the main house, due to its close proximity. However, the evidence showed that the guesthouse was, in fact, a separate residence. As a separate residence, it cannot be considered as part of the main house because it contains the intimate activities of its own respective occupants. The simple fact that an adult child lives closely to his parents, even when they are both allowed access to both homes, does not make the two residences one.

The contents of a warrant are very important. A defective warrant will result in the suppression of evidence. If this is the only evidence of a crime, then the prosecutor would have a difficult time at best moving forward. It is important to discuss these matters with your criminal defense attorney. Evidentiary suppression issues are often the best line of defense against criminal charges.


Related Reading:
4th Amendment and the Plain View Doctrine
The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico
Protective Sweep Searches in New Mexico Fairly Limited Under 4th Amendment

Collins & Collins, P.C.
Albuquerque Attorneys