http://www.albuquerquecriminallawyerblog.com/ Published By Collins & Collins, P.C. en Copyright 2013 Mon, 13 May 2013 08:43:37 -0700 http://www.sixapart.com/movabletype/ http://www.rssboard.org/rss-specification AlbuquerqueCriminalLawyerBloghttp://feedburner.google.com <p>Conspiracy charges are very common in New Mexico. The word conspiracy sounds may suggest something very serious, sinister and complex but in actuality it is a fairly simple charge to derive in <a href="http://www.collinsattorneys.com/lawyer-attorney-1448138.html">criminal cases</a> involving multiple defendants. </p> <p>The Mexico Jury instruction is pretty straightforward and from it, it is easy to see why conspiracy charges are often charged where there is more than one defendant. The jury instruction on conspiracy sets forth 3 basic elements: 1) the defendant and another person or persons by words or acts agreed together to commit a crime, 2) the defendant and the other person or persons intended to commit the crime, and 3) it happened in New Mexico. </p> <p>In short, it is quite easy to get an <a href="http://www.collinsattorneys.com/lawyer-attorney-1625144.html">indictment </a>on conspiracy when 2 or more defendants are allegedly involved in a crime. One defense that may be asserted is "withdrawal" from the conspiracy. It is possible for a defendant to conspire to commit a crime but subsequently withdraw from the conspiracy. In other words, the defendant was no longer involved. </p> <p>The Supreme Court case of <a href="http://www.collinsattorneys.com/lawyer-attorney-2148994.html">Smith v. United States</a> has implications for those charged with conspiracy in in New Mexico on a number of fronts. The case addressed a situation involving the asserted "withdrawal" defense. The case was made more interesting by the fact that it was also alleged that the statute of limitations had run since the alleged withdrawal. Interestingly, the statute of limitations was 5 years and the defendant had been in prison on other charges for 6.</p> <p>The Court made a number of important findings regarding "withdrawal" with consequent implications for the statute of limitations. First, the court addressed who bears the burden of proving withdrawal. The Court stated that because withdrawal from a conspiracy is an affirmative defense and affirmative defenses must be proved by the defendant, the burden was on the defendant to prove withdrawal and not upon the prosecutor to disprove it. </p> <p>The Court also set forth the rule which also governs withdrawal in New Mexico regarding the nature of the withdrawal. In short, the defendant must prove unequivocally by words or deeds that he or she withdrew. Apparently, imprisonment does not quite meet this high standard. </p> <p>The Court further stated that defendant remains criminally liable for all criminal acts that occurred prior to the withdrawal. So a defendant cannot simply assert that he withdrew, and somehow disavow responsibility for acts occurring before the withdrawal. An effective withdrawal will prevent criminal responsibility for any acts or crimes occurring after the withdrawal. However, there may be issues and problems for a defendant for the natural progression of the conspiracy of which he was apart and failed to stop. That topic is beyond the scope of this article.</p> <p>Finally, there is a statute of limitations on conspiracy charges. In Smith v. United States, it was 5 years. However, the statute of limitations does not begin to run until the withdrawal. And once again, the defendant must prove the withdrawal and the date of withdrawal in asserting the statute of limitations. If there was an effective withdrawal, and the statute of limitations has run since that withdrawal, then indeed the prosecution would be barred from pursuing charges. </p> <p>In short, the issues are complicated and require the assistance of an experienced criminal law attorney. If you have been charged, you should not delay in speaking with an attorney. If you cannot afford an attorney, there are many very skilled New Mexico public defenders and you should apply for assistance immediately. </p> <p><br /> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div></p> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/02/six-month-rule-speedy-trial-re.html">Speedy Trial Requirement & Six Month Rule on Misdemeanor Cases: Exceptional Circumstances Required for Deviations</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/08/speedy-trial-rights-in-new-mex.html">Speedy Trial Rights in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/03/speedy-trial-rights-mount-a-co.html">Speedy Trial Rights Stumble Up from the Mat: Oral Rulings Will Not Extend the Rule in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=xDbnMuWICWc:uHZ-F3rYtB8:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=xDbnMuWICWc:uHZ-F3rYtB8:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=xDbnMuWICWc:uHZ-F3rYtB8:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=xDbnMuWICWc:uHZ-F3rYtB8:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=xDbnMuWICWc:uHZ-F3rYtB8:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=xDbnMuWICWc:uHZ-F3rYtB8:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/xDbnMuWICWc" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/xDbnMuWICWc/the-withdrawal-defense-statute.html http://www.albuquerquecriminallawyerblog.com/2013/05/the-withdrawal-defense-statute.html Defenses Mon, 13 May 2013 08:43:37 -0700 http://www.albuquerquecriminallawyerblog.com/2013/05/the-withdrawal-defense-statute.html <p>In the case of <a href="http://www.collinsattorneys.com/lawyer-attorney-2140521.html">Missouri v. McNeely</a> , the United States Supreme Court recently addressed the legality of a warrantless, non-consensual blood draw in a <a href="http://www.collinsattorneys.com/lawyer-attorney-1448136.html">DWI investigation</a>. More specifically, the Court addressed whether there could be a per se blanket rule exception to the<a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html"> 4th Amendment</a> under the exigent circumstances exception in DWI investigations. </p> <p>The Court ruled that there could be no such per se rule. Instead, the cases must be analyzed on a case by case basis. As a result, there was nothing justifying a per se rule, but there was likewise nothing suggesting a per se rule prohibiting such non-consensual, warrantless blood draws. </p> <p>In the <em>McNeely </em>case, the Court held, based upon the circumstances of the case, that the blood draw was a violation of the 4th Amendment search and seizure protections. Instead, <em>McNeely </em>was no more than a routine DWI investigation with nothing suggesting exigent circumstances necessary for an exception to the warrant requirement. </p> <p>For those in New Mexico, it is important to understand the limitations of the opinion. It would be unwise to read too much into the opinion with potentially serious consequences for your rights. </p> <p>First, as suggested, the Court stated that these cases must be analyzed on a case by case basis. In short, there may be a situation where a warrantless, non-consensual blood draw is allowable. The Court discussed a number of such past cases. </p> <p>Second, the Court in no way suggested that a non-consensual blood draw would be disallowed where a warrant was properly secured and executed. In fact, the Court explicitly recognized the ease and speed with which a lawful warrant for a blood draw may be obtained. In those situations where the warrant is legally obtained, then there simply is no prohibition against a non-consensual blood draw. </p> <p>Perhaps, most importantly for New Mexico drivers, it must be recognized that there are consequences for a refusal to consent to a blood and/or breath alcohol examination that are independent of the criminal charges. Under the New Mexico Implied Consent Act, a refusal has several automatic and quite serious consequences. </p> <p>First, a refusal will result in the automatic revocation of your driver's license. Under New Mexico law, a refusal carries a mandatory and automatic 1 year license revocation. In addition, the license revocation is independent of the criminal charges. In other words, even if you are successful in excluding the illegal blood draw as in the case of <em>McNeely </em>and you thereby are acquitted of the DWI charges, the license revocation still stands. Your guilt or innocence in the DWI criminal proceedings in no way affects the Motor Vehicle Division's revocation of your license. </p> <p>Second, refusal of a breath and/or blood alcohol test will result in the aggravation of your charges. In other words, you will be charged with Aggravated DWI instead of simple DWI. Aggravated DWI carries mandatory jail time. In cases of repeat DWI offenders, conviction for aggravated DWI carries increasingly severe mandatory jail time. </p> <p>Finally, a blood and/or breath test is not necessary for a conviction. The test could be excluded and you could still be convicted under New Mexico's "impaired to the slightest degree" standard. The rule originated to deal specifically with refusals. This is a fairly easy standard to meet and a blood/breath alcohol test is by no means necessary to meet it. </p> <p>In short, there are consequences for refusal to provide a blood or breath sample. Though the <em>McNeely </em>case certainly provides important 4th Amendment privacy protections for DWI suspects, it is by no means a get out of jail free card. In fact, there is no such get out of free jail card in DWI cases. And if you can't get out of jail free then you might want to avoid jail altogether and this can be done only by not drinking and driving. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/08/dwidui-license-revocation-unde.html">DWI/DUI: License Revocation Under the New Mexico Implied Consent Act</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/09/dwidui-the-true-standard-in-ne.html">DWI/DUI: The True Standard in New Mexico is Impaired to the Slightest Degree</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/06/factors-leading-to-a-charge-of.html">Factors Leading to a Charge of Aggravated DWI in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=s_EfR0xIn4U:ThChywqsaeg:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=s_EfR0xIn4U:ThChywqsaeg:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=s_EfR0xIn4U:ThChywqsaeg:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=s_EfR0xIn4U:ThChywqsaeg:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=s_EfR0xIn4U:ThChywqsaeg:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=s_EfR0xIn4U:ThChywqsaeg:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/s_EfR0xIn4U" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/s_EfR0xIn4U/the-issue-of-warrantless-non-c.html http://www.albuquerquecriminallawyerblog.com/2013/04/the-issue-of-warrantless-non-c.html Constitutional Rights DWI/DUI Thu, 25 Apr 2013 08:32:41 -0700 http://www.albuquerquecriminallawyerblog.com/2013/04/the-issue-of-warrantless-non-c.html <p>In New Mexico there are several laws that protect victims from domestic violence crimes. These laws set forth specific penalties for certain violent behaviors. Generally, under New Mexico law a crime may be considered a <a href="http://www.collinsattorneys.com/lawyer-attorney-1448148.html">domestic violence crime</a> if it includes a pattern of controlling behavior directed at an intimate partner or that person's property, family members, animals, or associates.</p> <p>The primary laws most commonly used to address domestic violence in New Mexico include:<ol><li>Family Violence Protection Act, </li><li>Crimes Against Household Members Act, and </li><li>Harassment and Stalking Act.</li><br /> </ol><strong>The Family Violence Protection Act.</strong></p> <p>The <a href="http://www.collinsattorneys.com/lawyer-attorney-1580300.html">New Mexico Family Violence Protection Act </a>creates a cause of action that allows a victim of domestic violence to obtain an order of protection against the household member who committed the abuse. The order of protection prohibits the restrained party from having any contact with the victim. Violation of an order of protection is a misdemeanor.</p> <p><strong>Crimes Against Household Members Act</strong></p> <p>The New Mexico Crimes Against Household Members Act creates the crimes of assault and battery when violence is committed against a "household member." Under this law a "household member" includes a spouse or former spouse, a family member including a relative or parent, and anyone with whom the abuser has a continuing personal relationship. It is not necessary that the people live together to be considered a "household member"</p> <p>Potential criminal charges under this law include criminal charges for assault, aggravated assault, assault with intent to commit a violent felony, battery, and aggravated battery. While the criminal penalties available for these crimes are generally the same as the criminal penalties under the general assault and battery statutes, one reason to proceed under this act is that an officer is permitted to make an arrest without a warrant at the scene of a domestic disturbance if the officer has probable cause to believe that the abuser has committed an assault or battery against a household member.</p> <p><strong>The Harassment and Stalking Act</strong></p> <p>The New Mexico Harassment and Stalking Act is different from the Family Violence Protection Act and the Crimes Against Household Members Act in that the victim under this act does not have to be a family member or household member. Under the Harassment and Stalking Act harassment is defined as a pattern of conduct intended to annoy, alarm, or terrorize someone so as to cause a reasonable person to suffer substantial emotional distress. A conviction for harassment is a misdemeanor.</p> <p>Stalking is defined as a pattern of conduct that would cause a reasonable person to feel frightened, intimidated or threatened. Stalking is also a misdemeanor for the first offense but is a fourth degree felony for subsequent offenses.</p> <p>One can also be convicted of aggravated stalking under the Harassment and Stalking Act if the stalker does any of the following:<ol><li>Knowingly violates a temporary or permanent order of protection,</li><li>Violates a court order setting conditions of release and bond (i.e. No Contact Order), </li><li>Possesses a deadly weapon, or</li><li>Stalks a victim under the age of sixteen.</li></ol>A first offense for aggravated stalking is a fourth degree felony and subsequent offenses are third degree felonies.</p> <p>Domestic Violence is taken very seriously in New Mexico. The consequences can be severe and the penalties escalate rapidly with each subsequent offense. If you have been charged with domestic violence, it is important to contact an <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">experienced criminal defense attorney </a>right away to insure that your rights are fully protected. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/07/collateral-consequences-of-dom.html">Collateral Consequences of Domestic Violence Findings Can be Worse than Criminal Penalties</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/03/criminal-v-civil-domestic-viol.html">Criminal v. Civil Domestic Violence Charges in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/12/domestic-violence-early-interv.html">Domestic Violence Early Intervention Programs in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=sJkQNogfoP4:c68iZAMFaeY:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=sJkQNogfoP4:c68iZAMFaeY:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=sJkQNogfoP4:c68iZAMFaeY:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=sJkQNogfoP4:c68iZAMFaeY:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=sJkQNogfoP4:c68iZAMFaeY:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=sJkQNogfoP4:c68iZAMFaeY:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/sJkQNogfoP4" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/sJkQNogfoP4/new-mexico-domestic-violence-l.html http://www.albuquerquecriminallawyerblog.com/2013/04/new-mexico-domestic-violence-l.html Criminal Offenses and Criminal Charges Domestic Violence Wed, 24 Apr 2013 09:01:35 -0700 http://www.albuquerquecriminallawyerblog.com/2013/04/new-mexico-domestic-violence-l.html <p>The U.S. Supreme Court recently heard <u>Florida v. Harris</u>, a Florida case concerning the use of police dogs in traffic-stop searches. The case addresses indicia of reliability and hence legality of narcotics sniffing dogs under <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">4th Amendment search and seizure</a>. </p> <p>Essentially, the case is about whether a drug-detection dog must have proven reliability in the field and what is sufficient to show such reliability. The U.S. Supreme Court held that searches demand a "flexible, common-sense standard," and that it is not necessary to produce exhaustive records about drug-detection dogs' training and reliability in order to have probable cause for a vehicle search.</p> <p>The facts of the case are relatively straightforward. During a routine traffic stop, a police officer pulled the defendant over. The police officer noticed that the defendant appeared nervous, and he had an open beer can in his car. The police officer asked the defendant if he could search the car, and the defendant refused. The police officer then led his trained narcotics dog around the defendant's. The dog signaled the presence of drugs. Because of the dog's alert, the police officer determined that he had probable cause to which is required for a search.</p> <p>The police officer searched the defendant's car. During that search, he found pseudoephedrine and other illegal ingredients used to manufacture methamphetamine. The police officer arrested the defendant for illegal possession of the ingredients, although none of them were substances that the dog was actually trained to detect.<br /> When the defendant was out on bail, the police officer stopped him again for a broken brake light and the dog alerted again, but the police officer didn't find any illegal substances--"nothing of interest was found."</p> <p>The defendant moved to suppress the evidence found in his car (the ingredients for manufacturing methamphetamine) by arguing that the dog's alert didn't give the police officer reasonable cause for a search. The defendant emphasized that the dog wasn't trained to detect the type of drug ingredients found, and that the dog had a false positive during the second search. </p> <p>The trial court ruled that the search was legal, and the defendant appealed. The case then went to the Florida Supreme Court in 2012. That court there decided in favor of the defendant, finding that it's necessary to have extensive records of a drug-detection dog's training and field reliability in order for a search to be legal. It said that mere proof of a dog's training and certification "is simply not enough." The Florida Supreme Court emphasized a need for "evidence of the dog's performance history." The state appealed to the U.S. Supreme Court, which overruled the Florida Supreme Court's decision.</p> <p>The U.S. Supreme Court emphasized that, in cases concerning probable cause for a search, it looks to a "totality of the circumstances." This means simply that it looks to all the factors involved in order to determine whether a reasonable person would believe that there was evidence of illegal drugs or other contraband materials, making the search legal. </p> <p>The U.S. Supreme Court described this standard as a "practical" and "common-sensical" one, and emphasized that it rejects "rigid rules" and "bright-line tests" like the one proposed by the Florida Supreme Court. Instead, in situations concerning probable cause for a search, police officers can be "flexible," taking an "all-things-considered approach." For the U.S. Supreme Court, a dog's training and certification is sufficient to say that the dog is capable of sniffing out illegal substances and properly alerting a police officer. Training records alone are enough to establish reliability.</p> <p>This ruling seems to ignore the fact that dogs, like humans, have different abilities. Training alone does not make a dog any more competent than a human. In fact, it seems that the reliability of the dog can only be measured by its history of service. There may be dogs, like humans, that are predisposed to false alerts creating overboard searches which is the very thing that is prohibited by the 4th Amendment.</p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/12/consent-to-police-search-must.html">Consent to Police Search Must be Voluntary</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/07/plain-view-exception-to-4th-am.html">Plain View Exception to 4th Amendment Search & Seizure Warrant Requirements</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/11/unlawful-search-seizure-under.html">Unlawful Search & Seizure Under the 4th Amendment</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p> <p><br /> <link rel="author" href="https://plus.google.com/116703354415324540372/about" /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Ut_BvQAi0gQ:DiHrZfLbnqc:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Ut_BvQAi0gQ:DiHrZfLbnqc:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=Ut_BvQAi0gQ:DiHrZfLbnqc:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Ut_BvQAi0gQ:DiHrZfLbnqc:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=Ut_BvQAi0gQ:DiHrZfLbnqc:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Ut_BvQAi0gQ:DiHrZfLbnqc:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/Ut_BvQAi0gQ" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/Ut_BvQAi0gQ/proof-of-reliability-of-narcot.html http://www.albuquerquecriminallawyerblog.com/2013/04/proof-of-reliability-of-narcot.html Constitutional Rights Tue, 02 Apr 2013 12:21:36 -0700 http://www.albuquerquecriminallawyerblog.com/2013/04/proof-of-reliability-of-narcot.html <p>Under the <a href="http://www.collinsattorneys.com/lawyer-attorney-2054064.html">Implied Consent Act</a> (ICA), every person driving a vehicle within the state of New Mexico is deemed to have given his or her consent to a <a href="http://www.collinsattorneys.com/lawyer-attorney-2103950.html">breath alcohol test</a> and/or <a href="http://www.collinsattorneys.com/lawyer-attorney-2103248.html">blood alcohol test</a> if suspected of DWI. </p> <p>Under the ICA, every time an individual gets behind the wheel of a car in New Mexico, that person automatically gives consent to a blood alcohol test if arrested for any acts committed while driving under the influence of either drugs or alcohol or both. If a law enforcement officer has reasonable grounds to believe that an individual was driving a vehicle under the influence of drugs or alcohol, the officer may order a blood test or administer a breath test or both. </p> <p>A law enforcement officer usually administers breath tests. However, under the ICA, only a physician, licensed professional, nurse, or lab technician employed by a hospital or physician can withdraw blood for the purposes of testing the level of alcohol and drugs present. The person being tested has the right to have a qualified physician, technician, etc. of their choosing to perform an additional chemical test besides the one being ordered by law enforcement. The law enforcement agency that orders the tests is responsible for the costs of both the test ordered by law enforcement and the additional chemical test, if requested by the arrestee. </p> <p>The results of the blood and breath tests can be used in criminal and civil cases involving the actions allegedly committed by the person driving under the influence. Blood alcohol test results create a number of assumptions when used in court. Under § 66-8-110, if a person's blood alcohol level is below .04, there is a presumption that the person was not under the influence of alcohol. Also, when an individual's blood alcohol level is between .04 and ,08, there is no presumption that the individual was under the influence unless he or she was driving a commercial vehicle. To determine whether the person was under the influence in this case, other evidence will be considered along with the individual's blood alcohol level. When a person is driving a commercial vehicle, he or she is presumed to be under the influence if alcohol if their blood alcohol level is .04 or above. </p> <p>The ICA is also very strict with underage drivers who get behind the wheel while under the influence of drugs and alcohol. Under the ICA, individuals less than 21 years of age driving with and alcohol level of .02 or over will have their driving privileges revoked.</p> <p>Under § 66-8-108 if a person is incapable of refusal, that person shall be deemed not to have withdrawn consent. A person may be rendered incapable of refusal if they are unconscious, dead, or suffering from any other condition that may make refusal impossible. However, since the person is deemed not to have withdrawn consent, alcohol level tests ordered by a law enforcement officer may be administered to a dead or unconscious person. </p> <p>If a person refuses to consent to a blood or breath test, they are in violation of the ICA and can be charged with <a href="http://www.collinsattorneys.com/lawyer-attorney-1594705.html">aggravated DWI</a> under NMSA § 66-8-102(D)(3). Refusing of consent will also result in the automatic revocation of an individual's driver's license. </p> <p>If you have been charged with DWI and you refused testing under the Implied Consent Act, it is important to understand your rights under the law. An experienced DWI defense attorney can help you do just that. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/02/new-mexicos-implied-consent-ac.html">New Mexico's Implied Consent Act Leaves No Room for Indecision in Consent to Alcohol Testing</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/08/dwidui-license-revocation-unde.html">DWI/DUI: License Revocation Under the New Mexico Implied Consent Act</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/08/independent-blood-test-in-new.html">Independent Blood Test in New Mexico DWI/DUI Cases</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p> <p><br /> <link rel="author" href="https://plus.google.com/116703354415324540372/about" /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=_fIq_nm9640:QVnrneUdKak:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=_fIq_nm9640:QVnrneUdKak:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=_fIq_nm9640:QVnrneUdKak:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=_fIq_nm9640:QVnrneUdKak:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=_fIq_nm9640:QVnrneUdKak:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=_fIq_nm9640:QVnrneUdKak:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/_fIq_nm9640" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/_fIq_nm9640/breath-blood-alcohol-testing-u.html http://www.albuquerquecriminallawyerblog.com/2013/03/breath-blood-alcohol-testing-u.html DWI/DUI Fri, 15 Mar 2013 10:56:44 -0700 http://www.albuquerquecriminallawyerblog.com/2013/03/breath-blood-alcohol-testing-u.html <p>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. </p> <p>Recently, in <u>New Mexico v. Leon</u>, 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 <a href="http://www.collinsattorneys.com/lawyer-attorney-1902712.html">6th Amendment right to counsel</a> in this case since it involved probation violations as opposed to original <a href="http://www.collinsattorneys.com/lawyer-attorney-1448138.html">criminal charges</a>. </p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/05/sliding-scales-of-due-process.html">Sliding Scales of Due Process in New Mexico Probation Violation Hearings</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/07/4th-amendment-rights-for-proba.html">4th Amendment Rights Limited for Probationers and Parolees</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/02/you-can-run-but-tolling-of-pro.html">You Can Run but ...: Tolling of Probation and Jurisdiction in New Mexico Criminal Cases</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p> <p><br /> <link rel="author" href="https://plus.google.com/116703354415324540372/about" /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=PJbge2_cXTo:9KPzQAk7_hk:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=PJbge2_cXTo:9KPzQAk7_hk:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=PJbge2_cXTo:9KPzQAk7_hk:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=PJbge2_cXTo:9KPzQAk7_hk:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=PJbge2_cXTo:9KPzQAk7_hk:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=PJbge2_cXTo:9KPzQAk7_hk:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/PJbge2_cXTo" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/PJbge2_cXTo/failure-to-timely-appeal-proba.html http://www.albuquerquecriminallawyerblog.com/2013/03/failure-to-timely-appeal-proba.html Constitutional Rights Criminal Procedure Mon, 11 Mar 2013 10:06:29 -0700 http://www.albuquerquecriminallawyerblog.com/2013/03/failure-to-timely-appeal-proba.html <p>In most situations in New Mexico, a criminal suspect being held for an interrogation must be read his or her <a href="http://www.collinsattorneys.com/lawyer-attorney-1805201.html">Miranda rights</a>. For Miranda rights to kick in, the suspect must be subject to a custodial interrogation. One hallmark of the custodial interrogation is that the subject does not feel free to leave. This takes on unique meaning in <a href="http://www.collinsattorneys.com/lawyer-attorney-1448142.html">a juvenile criminal case</a> involving the questioning of a student.</p> <p><strong>Investigatory Detention by School Personnel Not a Custodial Interrogation</strong></p> <p>In a recent case, <u>State v. Antonio T.</u>, the New Mexico Court of Appeals examined the rights of a student when being questioned by a school official in the presence of a police officer. The court was tasked with determining whether this situation arose to the level of a custodial interrogation or whether it was instead simply an investigatory detention. </p> <p>The court found that it was simply an investigatory investigation despite the many attributes that would suggest that this was a custodial interrogation including the fact the student probably by no means felt free to leave. Moreover, because it was conducted by the Vice Principal in a school setting, the questioning was not considered an investigatory detention by police. </p> <p>This is an important distinction since juveniles in New Mexico are protected against such investigatory police detentions due to the fact that they are less likely to know their rights or to exert them even if they do know them because of their youth. Because it was only an investigatory detention by a school official, the court of appeals agreed that the student was not entitled to a reading of his rights under Miranda.</p> <p><strong>Police Presence Not Enough to Trigger Miranda</strong></p> <p>In this case, the student was taken into the vice principal's office to be questioned about being intoxicated on school grounds. Soon after the student entered the vice principal's office, a police officer acting as the school's resource officer arrived in the office as well. </p> <p>The police officer was dressed in his full uniform and was called in to administer a portable breath test. While the police officer prepared the portable breath test, the vice principal questioned the defendant. The student admitted to the Vice Principal that he had two shots of peppermint schnapps and the portable breath test showed that the student had a blood alcohol concentration of .11 percent.</p> <p>At trial, the student sought to suppress his admission about consuming the alcohol. He alleged that the prosecution did not show that he made a knowing, intelligent and voluntary waiver of his right to remain silent due to the failure to read him his rights under Miranda. The trial court disagreed as would the Court of Appeals.</p> <p>In this case, though the student was questioned by the school official in the presence of a police officer, it was found that it was not a custodial interrogation. The court reasoned that the police officer only listened while the student was questioned. The officer did not pariticpate in the questioning nor control the area wehre the questioning took place. </p> <p><strong>Greater Rights for Juveniles Not at Issue Investigation by School Personnel </strong></p> <p>New Mexico does have a statute providing juveniles with greater protections in an investigatory interrogation. In fact, New Mexico is the only state that requires a reading of Miranda rights during an investigatory interrogation of a juvenile.</p> <p>However, the New Mexico statute limits when a juvenile must be read their Miranda rights in an investigatory interrogation to situations where the investigation is undertaken by, or on behalf of, law enforcement officials. Here, the investigation was not undertaken on behalf of law enforcement. Thought the police officer was aware of the investigation, he did not provide any direct assistance or even ask any questions. </p> <p>Perhaps most important for the ruling are the student safety issues facing schools. In this case, it was determined that the vice principal conducted the questioning in order to ensure the safety of the child and the other students in the school. As a vice principal, she has a legitimate interest, separate from the law enforcement aspect of the incident, to inquire into whether the student was intoxicated and whether the alcohol remained on the premises possibly endangering the defendant or other students.</p> <p>The student safety considerations seem to dictate the court's decision. A traditional analysis of whether a custodial interrogation took place would likely result in a different outcome. After all, would a student in this situation really feel free to simply leave despite the fact that the officer was simply present but not conducting the questioning? </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/do-minors-have-broader-rights.html">Do Minors Have Broader Rights Under the 4th Amendment Than Adults?</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/08/consent-by-a-minor-to-a-warran.html">Consent by a Minor to Warrantless Search in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/03/what-does-you-have-the-right-t.html">What Does "You have the right to remain silent" Under Miranda Actually Mean?</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Zbi-DX5buXs:LdPOstkbqPo:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Zbi-DX5buXs:LdPOstkbqPo:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=Zbi-DX5buXs:LdPOstkbqPo:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Zbi-DX5buXs:LdPOstkbqPo:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=Zbi-DX5buXs:LdPOstkbqPo:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=Zbi-DX5buXs:LdPOstkbqPo:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/Zbi-DX5buXs" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/Zbi-DX5buXs/miranda-reading-not-required-f.html http://www.albuquerquecriminallawyerblog.com/2013/02/miranda-reading-not-required-f.html Constitutional Rights Juvenile Criminal Charges Mon, 25 Feb 2013 08:31:43 -0700 http://www.albuquerquecriminallawyerblog.com/2013/02/miranda-reading-not-required-f.html <p>The New Mexico Court of Appeals was recently called upon to review the "knock and announce" rule in the case of <em>State of New Mexico v. Jean-Paul</em>. The gist of the opinion is that the not only is there a requirement that police knock and announce in New Mexico, they must also wait a reasonable period of time to enter or risk suppression of suppression of any evidence seized. "Reasonable time" is not a static definition. It depends on the circumstances. As a rule, however, a one second wait is not sufficient absent exceptional circumstances.</p> <p>Both the <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">4th Amendment to the United States Constitution </a> and Article II, Section 10 of the New Mexico Constitution protect citizens against unlawful search and seizure. One protection is the aforementioned "knock and announce" rule which requires police officers seeking to execute a warrant to knock and announce their presence to the occupants. Then they must wait a "reasonable" amount of time to allow the occupants a chance to voluntarily open the door. As you can imagine, the question is often what period of time is considered reasonable? </p> <p>In this case, the police were seeking to execute a search warrant on the defendant's home. They knocked on the door and announced their presence, then after waiting only one second, they used a battering ram to enter the defendant's home. The police officers later explained that they waited such a short period because a man in the home was looking out a window at them as they approached. Inside the home, the officers found drugs and drug paraphernalia for which the defendant was charged with drug trafficking and possession of drug paraphernalia.</p> <p>Before trial, the defendant sought to have any evidence discovered as a result of the search warrant's execution suppressed. She argued that the police did not wait a reasonable period of time after announcing their presence, and that no exceptions to the knock and announce rule were present. </p> <p>There are only two exceptions to the knock and announce rule that could have applied in this case. The police are not required to knock and announce if it would merely be an empty gesture or if there are exigent circumstances. A court would consider knocking and announcing an empty gesture if the occupants were already aware that the police were on the premises for purposes of searching the premises. Similarly, the police would not be required to knock and announce if there was a real risk that evidence would be destroyed by waiting. However, it should be noted that simply because the occupants see the police approaching does not give rise to an exception. </p> <p>In determining whether police officers waited long enough after knocking to forcibly enter the premises, the courts will often review the size of the premises, the time of day and whether the police know someone is inside. While the defendant's home in this case was small, New Mexico courts have only approved wait times of ten seconds or more, unless there are exigent circumstances. Only waiting one second, like in this case, does not provide the occupants with enough time to collect themselves and move toward the door to allow the police officers entry into the defendant's home. While in some cases a court will permit a shorter wait due to concerns by the police that do not quite reach the level of exigent circumstances, the police officers could not provide evidence of any such concerns here.</p> <p>The court noted that while both the 4th Amendment and the New Mexico Constitution follow the knock and announce rule, the remedy for a violation is different under the two. The New Mexico Court of Appeals recognized that under the 2006 U.S. Supreme Court Case of <em>Hudson v. Michigan</em>, violation of the knock-and-announce rule does not necessarily require suppression of the evidence. As such, application of the federal law here would likely have led to very different consequences for the defendant. <br /> <br /> In short, the police must knock and announcing their presence. They must also under New Mexico law wait a reasonable period of time to enter the premises or face suppression of any evidence seized. One second is clearly not sufficient. How long the police must wait will depend on the circumstances. If you have been arrested, and your property searched under a warrant, it highly advisable to seek the assistance of<a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html"> attorney knowledgeable of search and seizure issues</a> in New Mexico. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/11/unlawful-search-seizure-under.html">Unlawful Search & Seizure Under the 4th Amendment</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/11/new-mexico-provides-greater-pr.html">New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/search-warrant-for-home-does-n.html">Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=96iVQNUYeNE:YSHZ553KWVA:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=96iVQNUYeNE:YSHZ553KWVA:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=96iVQNUYeNE:YSHZ553KWVA:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=96iVQNUYeNE:YSHZ553KWVA:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=96iVQNUYeNE:YSHZ553KWVA:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=96iVQNUYeNE:YSHZ553KWVA:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/96iVQNUYeNE" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/96iVQNUYeNE/knock-and-announce-rule-requir.html http://www.albuquerquecriminallawyerblog.com/2013/02/knock-and-announce-rule-requir.html Constitutional Rights Evidence Fri, 22 Feb 2013 06:28:33 -0700 http://www.albuquerquecriminallawyerblog.com/2013/02/knock-and-announce-rule-requir.html <p>The 2011 New Mexico Supreme Court decision in <em>State v. Williams</em> 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 <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">4th Amendment's and related cases on search and seizure</a>. </p> <p>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. </p> <p>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. </p> <p>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. </p> <p>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 <em>Bell v. Wolfish</em>, 441 U.S. 520 (1979).</p> <p>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.</p> <p>In this case the Court concluded that each of these factors was met:<ol><br /> <li>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.</li><br /> <li>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. </li><br /> <li>The manner of the search was appropriate as only the Defendant and searching officer were able to see underneath the Defendant's clothing. </li><br /> <li>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.</li><br /> </ol>After concluding that the <em>Bell</em> 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.</p> <p>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.</p> <p>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 <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">attorney experienced in search and seizure issues</a>. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/11/unlawful-search-seizure-under.html">Unlawful Search & Seizure Under the 4th Amendment</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/11/new-mexico-provides-greater-pr.html">New Mexico Provides Greater Protection from Illegal Search & Seizure than Federal Law</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/09/evidence-seized-under-the-pret.html">Evidence Seized Under the Pretext of a Traffic Stop is Inadmissible</a> <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2009/09/courts-continue-assault-on-the.html">Courts Continue Assault on the Rights Against Unlawful Search & Seizure</a> </p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=MXBvFDnMwvI:rG2-Gdh05Bw:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=MXBvFDnMwvI:rG2-Gdh05Bw:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=MXBvFDnMwvI:rG2-Gdh05Bw:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=MXBvFDnMwvI:rG2-Gdh05Bw:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=MXBvFDnMwvI:rG2-Gdh05Bw:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=MXBvFDnMwvI:rG2-Gdh05Bw:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/MXBvFDnMwvI" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/MXBvFDnMwvI/legality-of-under-clothing-sea.html http://www.albuquerquecriminallawyerblog.com/2013/02/legality-of-under-clothing-sea.html Criminal Procedure Evidence Mon, 18 Feb 2013 08:50:43 -0700 http://www.albuquerquecriminallawyerblog.com/2013/02/legality-of-under-clothing-sea.html <p>Both the United States and New Mexico Constitutions protect people in New Mexico from <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">unreasonable searches and seizures by the police</a>. These protections arise under Article II, Section 10 of the New Mexico State Constitution and the 4th Amendment to the U.S. Constitution.</p> <p>In order for the police to search any place or seize any person, they must obtain a warrant. A warrant requires the police to specifically describe what they want to seize, and it has to include a written description of why the police officer believes he or she has probable cause to believe the search will show criminal activity occurred.</p> <p>In <em>New Mexico v. Boyse</em>, the New Mexico Court of Appeals determined that a warrant obtained by an officer over the telephone was not permitted. In August 2008, an officer responded to a call about a dead horse smell at the defendant's home. He saw evidence of numerous problems while he was looking around the property, and he decided to obtain a search warrant. </p> <p>The courts were closed at that point, and the police officer did not attempt to find a judge in person. Instead, the police officer contacted the on-call judge by telephone to obtain verbal approval for the warrant. The judge administered an oath to the police officer, and the officer read him the typed facts in support of the search warrant. The judge approved the warrant and the police officer signed the judge's name to the warrant. Several days later, the judge then signed and initialed the warrant himself.</p> <p>In New Mexico, the Constitution requires a written showing of probable cause. The fact that a sworn writing exists is not enough to satisfy the requirements of the New Mexico Constitution. The requirement for the existence of a sworn writing indicates that the sworn writing must exist somewhere, but also that it must be shown and considered by the court before the warrant issues. In other words, the judge must physically review the police officer's sworn statement before issuing a warrant. Therefore, the constitutional requirements are not met if the police officer writes out a probable cause statement but does not show it to the judge.</p> <p>In this case, when the judge approved the warrant, the police officer did not show the writing to the judge. While the police officer read the written statement to the judge, the judge had no way of knowing whether the written statement even existed. Furthermore, the judge did not have any way of knowing if it was modified between the phone conversation and the time the judge signed the warrant. The possibility of error or abuse is simply too great. The warrant was invalid, and the evidence obtained from the search could not be used against the defendant.</p> <p>The protections of the 4th Amendment and Article II, Section 10 of the New Mexico State Constitution provide significant protections to the public. This is particularly true for those charged with crimes in the State. In fact, search and seizure violations and the suppression of illegally obtained evidence are in many cases the best and/or only line of defense in a criminal case. </p> <p>If you have been charged with a crime, it is important to speak with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">attorney with knowledge of search and seizure issues</a>. It is particularly important to discuss the facts surrounding any search of your property as well as the circumstances of arrest. It may be that your best defense is on search and seizure grounds. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>More Reading on Search & Seizure: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/06/proximity-to-alleged-crime-alo.html">Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/anonymous-hearsay-without-evid.html">Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/search-warrant-for-home-does-n.html">Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=0eio_CMTfDY:MduS0aSCr-A:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=0eio_CMTfDY:MduS0aSCr-A:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=0eio_CMTfDY:MduS0aSCr-A:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=0eio_CMTfDY:MduS0aSCr-A:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=0eio_CMTfDY:MduS0aSCr-A:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=0eio_CMTfDY:MduS0aSCr-A:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/0eio_CMTfDY" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/0eio_CMTfDY/warrant-obtained-by-telephone.html http://www.albuquerquecriminallawyerblog.com/2013/02/warrant-obtained-by-telephone.html Constitutional Rights Defenses Mon, 11 Feb 2013 07:00:34 -0700 http://www.albuquerquecriminallawyerblog.com/2013/02/warrant-obtained-by-telephone.html <p>The <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">Fourth Amendment of the U.S. Constitution</a> 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.</p> <p>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. </p> <p><a href="http://www.collinsattorneys.com/lawyer-attorney-2016565.html"><strong>The Plain View Doctrine</strong></a></p> <p>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. </p> <p>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. </p> <p>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. </p> <p>If you are facing criminal charges it is wise to discuss your case with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1448230.html">experienced criminal law attorney</a>. 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.</p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/the-plain-view-doctrine.html">4th Amendment and the Plain View Doctrine</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/pat-down-search-in-new-mexico.html">Pat-Down Search in New Mexico is a Protective Search for Officer Safety Not a Search for Evidence</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/10/the-4th-amendment-and-police-q.html">The 4th Amendment and Police Questioning Beyond Scope of Traffic Stop in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=wZhatJrh0W8:vQjkWISzmnE:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=wZhatJrh0W8:vQjkWISzmnE:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=wZhatJrh0W8:vQjkWISzmnE:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=wZhatJrh0W8:vQjkWISzmnE:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=wZhatJrh0W8:vQjkWISzmnE:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=wZhatJrh0W8:vQjkWISzmnE:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/wZhatJrh0W8" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/wZhatJrh0W8/warrantless-searches-reasonabl.html http://www.albuquerquecriminallawyerblog.com/2012/12/warrantless-searches-reasonabl.html Constitutional Rights Criminal Procedure Thu, 06 Dec 2012 08:32:48 -0700 http://www.albuquerquecriminallawyerblog.com/2012/12/warrantless-searches-reasonabl.html <p>In the case of <a href="http://www.collinsattorneys.com/docs/state_v._cofer__nmca__hearsay_and_pricing_information_in_shoplifting_cases.pdf"><u>State v. Cofer</u></a>, the New Mexico Court of Appeals considered the use of improper hearsay testimony to establish the market value of stolen goods. </p> <p>In June 2008, the defendant took a 32" Sanyo LCD television from a Wal-Mart. Soon after, the defendant was pulled over by a police officer, based upon information provided by the police dispatcher. While the defendant was pulled over, the officer noticed a 32" Sanyo LCD television in <a href="http://www.collinsattorneys.com/lawyer-attorney-2016565.html">plain view</a> in the back seat of the defendant's vehicle. The police officer read the defendant his Miranda rights, and the defendant admitted that he shoplifted the television from Wal-Mart. He was charged with one count of shoplifting over $500.</p> <p>At trial, the defendant admitted to taking the 32" Sanyo LCD television, but he did not state its value. The prosecution's only witness, a Wal-Mart assistant manager from the electronics department, testified that she researched the value of the television on the in-store database. She concluded that the television was worth $576 on the date of the crime. The trial court accepted the valuation of the television, and the defendant was convicted of shoplifting merchandise valued at more than $500.</p> <p>At trial there are rules governing the proper way to introduce evidence. Generally, a witness is not allowed to testify about another person's statement. That is known as hearsay. Of course, there are exceptions to that rule, like where the other statement is a record of regularly conducted business activity. </p> <p>Specifically, the courts in New Mexico have traditionally allowed the admission of price tags or testimony thereon as non-hearsay evidence. In this case, there was no price tag for admission. Nor did the manager have firsthand knowledge of the price of the item at the time of the theft. Instead, she conducted research into the pricing using historical inventory and pricing reports 10 months after the incident. </p> <p>There were several problems with the pricing testimony and one easy solution for the state. The first problem was the lack of a price tag. The second was lack of firsthand knowledge of the price. </p> <p>The last problem was the reliance on inventory and pricing reports. The obvious question is why is this a problem? Here, those inventory and pricing reports were not provided to the defense nor were they entered into evidence. Instead, manager just testified to what she found. </p> <p>This might seem like a gotcha type case for prosecutors. However, the solutions would have been relatively easy. First, the police could have secured the price tag and pricing info at the time of the theft. Second, the prosecutor could have obtained the inventory reports and presented them as business records through the manager. </p> <p>These are routine steps in the introduction of evidence. Shortcuts are not allowed. It is not hard to imagine how even a seemingly trivial shortcut like this one could quickly lead to abusive prosecution tactics. In short, the Courts did their jobs in holding the prosecutor accountable for following the rules of procedure and the rules of evidence. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/the-plain-view-doctrine.html">4th Amendment and the Plain View Doctrine</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/anonymous-hearsay-without-evid.html">Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/06/proximity-to-alleged-crime-alo.html">Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p> <p> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=jJkQyItgyCk:Th78q0zBN0M:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=jJkQyItgyCk:Th78q0zBN0M:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=jJkQyItgyCk:Th78q0zBN0M:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=jJkQyItgyCk:Th78q0zBN0M:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=jJkQyItgyCk:Th78q0zBN0M:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=jJkQyItgyCk:Th78q0zBN0M:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/jJkQyItgyCk" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/jJkQyItgyCk/improper-hearsay-and-failure-t.html http://www.albuquerquecriminallawyerblog.com/2012/12/improper-hearsay-and-failure-t.html Constitutional Rights Evidence Mon, 03 Dec 2012 09:18:56 -0700 http://www.albuquerquecriminallawyerblog.com/2012/12/improper-hearsay-and-failure-t.html <p>Under the Fourth Amendment of the U.S. Constitution, individuals are protected from <a href="http://www.collinsattorneys.com/lawyer-attorney-1490174.html">unreasonable searches and seizures</a> 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, <a href="http://www.collinsattorneys.com/docs/kentucky_v._king__ussc__warrantless_entry_and_search_of_a_home_under_exigent_circumstances.pdf"><em>Kentucky v. King</em></a>, explained the limits of the exigent circumstances exception to the warrant requirement when officers search a private residence. </p> <p>In <em>Kentucky v. King</em>, 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.</p> <p>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.</p> <p>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. </p> <p>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 <em>Kentucky v. King</em> announced the correct test to determine whether the exigency was "police-created." </p> <p>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.</p> <p>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. </p> <p>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. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/the-plain-view-doctrine.html">4th Amendment and the Plain View Doctrine</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2010/06/proximity-to-alleged-crime-alo.html">Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/11/search-warrant-for-home-does-n.html">Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a><br /> </p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=aQvR0984Y28:SKQVFYvD6_M:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=aQvR0984Y28:SKQVFYvD6_M:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=aQvR0984Y28:SKQVFYvD6_M:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=aQvR0984Y28:SKQVFYvD6_M:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=aQvR0984Y28:SKQVFYvD6_M:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=aQvR0984Y28:SKQVFYvD6_M:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/aQvR0984Y28" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/aQvR0984Y28/warrantless-entry-and-search-o.html http://www.albuquerquecriminallawyerblog.com/2012/11/warrantless-entry-and-search-o.html Constitutional Rights Criminal Procedure Defenses Thu, 29 Nov 2012 08:57:33 -0700 http://www.albuquerquecriminallawyerblog.com/2012/11/warrantless-entry-and-search-o.html <p>The New Mexico Delinquency Act creates three different types of juvenile offenders. The <a href="http://www.collinsattorneys.com/lawyer-attorney-1448142.html">juvenile criminal offender's</a> classification is very important, because it determines whether they may be tried as an adult. This in turn will determine the possible penalties they can receive.</p> <p>A "serious youthful offender" is a child from 15 to 18 years old that is charged with first-degree murder. Once charged with first degree murder, they are no longer a juvenile under the law and are automatically sentenced as adults if they are convicted.</p> <p>A "youthful offender" is a child aged 14 to 18 and found guilty of specified felony offenses (like second degree murder, assault with intent to commit violent felony, kidnapping, aggravated battery, criminal sexual penetration and robbery); who has three prior, separate felony convictions in the past three; or is 14 and found guilty of first degree murder. A youthful offender may receive either a juvenile or adult sanction.</p> <p>Finally, a "delinquent offender" is a child that commits a less serious crime. The child is tried in Children's Court under the Children's Court Rules. A delinquent offender will receive juvenile sanctions under the Children's Code.</p> <p>A recent case before the New Mexico Court of Appeals, <a href="http://www.collinsattorneys.com/docs/state_v._nanco__nmca_2012__youthful_offender_sentencing.pdf"><u>New Mexico v. Nanco</u></a>, examined whether a child charged with murder but only found guilty of a lesser crime should receive credit for the time they serve before sentencing.</p> <p>The defendant was a fifteen-year-old who was arrested because police believed he was involved in a fatal shooting. He was charged with one count of first-degree murder and two counts of tampering with evidence related to the shooting. Due to his age and charges, the defendant was classified as a serious youthful offender and tried as an adult. After a trial, he was found not guilty of first-degree murder and one of the evidence tampering charges. However, the jury found him guilty of voluntary manslaughter and tampering with evidence.</p> <p>The defendant's charges meant that his classification would be changed to a delinquent offender. Under New Mexico law, a serious youthful offender would be entitled to a credit for the time served prior to sentencing, but a youthful offender or a delinquent offender would not. In New Mexico, juveniles do not receive credit for time served. The defendant argued that he should receive credit for the time served, because he was initially categorized as a serious youthful offender. The court disagreed.</p> <p>The New Mexico statute allowing pre-sentence credit specifically states that the credit applies against a sentence. However, a delinquent offender, like the defendant, is not "convicted" or "sentenced." Under New Mexico law, the defendant was "adjudicated" and received a "disposition." Since the defendant was a juvenile and was not sentenced, the pre-sentence credit law cannot apply to him.</p> <p>In addition, New Mexico seeks to rehabilitate juveniles in the criminal justice system. In order to do so, juveniles are treated differently from adults. One important difference is the way consequences are determined, with the possibility that a sentence can be cut short or extended based upon the needs of the child and the public. By allowing pre-sentence credit, the juvenile's rehabilitation could be cut short at a critical time, harming both the child and the public at large.</p> <p>The <a href="http://www.collinsattorneys.com/lawyer-attorney-1590219.html">juvenile criminal process </a>is somewhat different than the adult criminal process. Because of the differences, it is typically beneficial have an attorney experienced in the juvenile criminal courts. If your child is involved in the juvenile criminal courts in the Albuquerque area, feel free to contact us at Collins & Collins, P.C. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/timely-preliminary-hearings-an-1.html">Timely Preliminary Hearings for Juveniles Facing Adult Charges in New Mexico</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/03/a-no-bill-eliminates-time-limi.html">Youthful Offender, No-Bills and Time Limits in Juvenile Criminal Cases</a><br /> <a href="http://www.albuquerquecriminallawyerblog.com/2012/04/do-minors-have-broader-rights.html">Do Minors Have Broader Rights Under the 4th Amendment Than Adults?</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=fJJpdWG3vqQ:zPNv05uHbmY:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=fJJpdWG3vqQ:zPNv05uHbmY:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=fJJpdWG3vqQ:zPNv05uHbmY:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=fJJpdWG3vqQ:zPNv05uHbmY:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=fJJpdWG3vqQ:zPNv05uHbmY:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=fJJpdWG3vqQ:zPNv05uHbmY:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/fJJpdWG3vqQ" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/fJJpdWG3vqQ/no-presentence-credit-for-juve.html http://www.albuquerquecriminallawyerblog.com/2012/11/no-presentence-credit-for-juve.html Juvenile Criminal Charges Penalties & Consequences Mon, 19 Nov 2012 11:05:49 -0700 http://www.albuquerquecriminallawyerblog.com/2012/11/no-presentence-credit-for-juve.html <p>The Federal Indian Country Crimes Act limits the ability of state and local law enforcement officials in charging Native Americans with crimes when the alleged crime occurs on Native American land. This raises the issue of what is considered Native American land. </p> <p>While certain situations are simple such as historical treaty land, allotted lands or lands later federally recognized as Indian lands, other situations are more complicated. The recent New Mexico Court of Appeals case of <a href="http://www.collinsattorneys.com/docs/state_v._vandever__nmca_2012_.pdf"><u>State v. Vandever</u></a> presented one such more challenging case. </p> <p>The question in <u>Vandever </u>was whether land purchased by a tribe, used by the tribe and for the benefit of the tribe constituted tribal lands. The question might seem to answer itself. However, there were added complications. Most notably that the land was neither within the historical boundaries of the tribe nor had it been officially designated tribal land by Congress. </p> <p>The defendant was driving under the influence of alcohol, when he struck and killed a highway worker. He continued driving leaving the scene until later stopped by the police. The officer smelled alcohol. When asked, the defendant admitted to drinking a six-pack of beer. The defendant then took a blood test, which revealed the defendant had a blood alcohol level of .19%.</p> <p>The defendant was charged with an <a href="http://www.collinsattorneys.com/lawyer-attorney-1594705.html">aggravated DWI</a>, homicide by vehicle and knowingly leaving the scene of an accident. In court, he argued that the court did not have jurisdiction because he is a member of the Navajo Nation and the incident occurred on the Navajo Nation land. </p> <p>Interestingly, both the defendant and the prosecution agreed that the incident occurred on land purchased and owned by the Navajo Nation. The issue then became, whether the land owned by the Navajo Nation was considered part of the Navajo reservation under the Indian Country Crimes Act, thereby preventing the police from charging the defendant in New Mexico State Court.</p> <p>The Court noted and the testifying experts agreed that the historically drawn borders of Indian lands, including that of the Navajo Nation, have changed or time stating:<blockquote>"...since the 1868 treaty was signed, there have been changes made to Navajo Nation treaty boundaries by congressional acts of diminishment, temporary expansions of boundaries, allotments of parcels of land to individual Indians, and return of land to the public domain."</blockquote>The State argued and the Court agreed that the critical question was whether the crime occurred on Indian land as defined and delineated at the time of the crime not the historical boundaries. </p> <p>The Court placed the burden on the defendant to prove that the crime occurred within then existing tribal boundaries. It was not enough that the tribe owned the land and used it for tribal purposes. The land had to be federally recognized as tribal land at the time of the crime which the defendant was unable to show. </p> <p>The case makes sense in that tribal sovereignty without the distinction of federal recognition could be greatly expanded through the simple purchase of lands for tribal use. This was never the intent of Congress at the time of the 1868 Treaty or since. </p> <p>And in the end, keep in mind, that had the State of New Mexico not assumed jurisdiction over the case, the U.S. Attorney surely would have. So a victory may have been short-lived in any event. </p> <div style="text-align: center;"><a href="http://www.collinsattorneys.com/lawyer-attorney-1448101.html">DISCLAIMER</a></div> <p>Related Reading: <br /> <a href="http://www.albuquerquecriminallawyerblog.com/2011/06/factors-leading-to-a-charge-of.html">Factors Leading to a Charge of Aggravated DWI in New Mexico</a></p> <p><a href="http://www.collinsattorneys.com/">Collins & Collins, P.C.<br /> Albuquerque Attorneys</a></p><div class="feedflare"> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=23g_Y4ivVAY:teBKSq4kPac:yIl2AUoC8zA"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=yIl2AUoC8zA" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=23g_Y4ivVAY:teBKSq4kPac:V_sGLiPBpWU"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=23g_Y4ivVAY:teBKSq4kPac:V_sGLiPBpWU" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=23g_Y4ivVAY:teBKSq4kPac:F7zBnMyn0Lo"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?i=23g_Y4ivVAY:teBKSq4kPac:F7zBnMyn0Lo" border="0"></img></a> <a href="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?a=23g_Y4ivVAY:teBKSq4kPac:qj6IDK7rITs"><img src="http://feeds.feedburner.com/~ff/AlbuquerqueCriminalLawyerBlog?d=qj6IDK7rITs" border="0"></img></a> </div><img src="http://feeds.feedburner.com/~r/AlbuquerqueCriminalLawyerBlog/~4/23g_Y4ivVAY" height="1" width="1"/> http://feedproxy.google.com/~r/AlbuquerqueCriminalLawyerBlog/~3/23g_Y4ivVAY/the-indian-country-crimes-act.html http://www.albuquerquecriminallawyerblog.com/2012/11/the-indian-country-crimes-act.html DWI/DUI Fri, 16 Nov 2012 10:44:44 -0700 http://www.albuquerquecriminallawyerblog.com/2012/11/the-indian-country-crimes-act.html