5/28 - State Bar

Transcription

5/28 - State Bar

May 28, 2014 • Volume 53, No. 22
Inside This Issue
Table of Contents .................................................... 3
Navajo Law Seminar on Aug. 29........................... 6
General Referral Program...................................... 7
2014–15 Bench & Bar Directory Pre-Order......... 7
Hearsay/In Memoriam........................................... 8
Clerk’s Certificates................................................. 16
From the New Mexico Court of Appeals
2014-NMCA-041, No. 31,982:
State v. Paananen .............................................. 20
2014-NMCA-042, No. 28,219:
State v. Davis...................................................... 26
2014-NMCA-043, No. 32,585:
State v. Salas....................................................... 32
1 Yucca 2 Yucca by Meredith Chapman (see page 3)
www.meredithdoborski.com
Special Insert
2014 Annual Meeting—
Bench and Bar Conference:
Agenda and Registration
2014 ANNUAL MEETING
Twin Warriors Golf Club at The Hyatt Regency Tamaya Resort & Spa
Give-A-Ways • Prizes • Hole-In-One Contest
$375 per team (4/per team) • $99 per individual
Team up with your firm or invite your clients!
All proceeds go to the New Mexico State Bar Foundation.
Tee time: noon, Thursday, July 17 • Shotgun start
Tournament package includes greens fees, cart, bag handling.
Prizes for closest to the pin, longest drive, and hole in one.
To register, go to www.nmbar.org.
Hole sponsorships available for your firm or organization.
For sponsorship information, contact Marcia Ulibarri,
505-797-6058 or [email protected].
2
Bar Bulletin - May 28, 2014 - Volume 53, No. 22
Table of Contents
Officers, Board of Bar Commissioners
Erika Anderson, President
Martha Chicoski, President-Elect
J. Brent Moore, Vice President
Scotty A. Holloman, Secretary-Treasurer
Andrew J. Cloutier, Immediate Past President
Board of Editors
Ian Bezpalko, Chair Kristin J. Dalton
Jocelyn C. Drennan
Jennifer C. Esquibel
Bruce Herr
George C. Kraehe
Maureen S. Moore
Tiffany L. Sanchez
Mark Standridge
Joseph Patrick Turk
State Bar Staff
Executive Director Joe Conte
Managing Editor D.D. Wolohan
505-797-6039 • [email protected]
Communications Coordinator
Evann Kleinschmidt
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2014, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
E-mail: [email protected]. • www.nmbar.org
May 28, 2014, Vol. 53, No. 22
Notices .................................................................................................................................................................4
General Referral Program...............................................................................................................................7
2014–15 Bench & Bar Directory Pre-Order.................................................................................................7
Hearsay/In Memoriam.....................................................................................................................................8
Legal Education Calendar........................................................................................................................... 11
Writs of Certiorari .......................................................................................................................................... 13
List of Court of Appeals’ Opinions............................................................................................................ 15
Clerk’s Certificates.......................................................................................................................................... 16
Recent Rule-Making Activity...................................................................................................................... 19
Opinions
2014-NMCA-041, No. 31,982: State v. Paananen ...................................................................... 20
2014-NMCA-042, No. 28,219: State v. Davis................................................................................ 26
2014-NMCA-043, No. 32,585: State v. Salas................................................................................. 32
Advertising....................................................................................................................................................... 36
Meetings
State Bar Workshops
May
May
28
Natural Resources, Energy, and
Environmental Law Section BOD,
Noon, via teleconference
28
Consumer Debt/Bankruptcy Workshop
6 p.m., State Bar Center, Albuquerque
June
30
Family Law Section BOD,
9 a.m., via teleconference
4
Divorce Options Workshop
6 p.m., State Bar Center, Albuquerque
June
4
Foreclosure Legal Fair
10 a.m.–1 p.m., Second Judicial District
Court, Third Floor Conference Room,
Albuquerque
4
Employment and Labor Law Section,
Noon, State Bar Center
5
Health Law Section,
10
Civil Legal Clinic for Veterans
9 a.m.–noon, Raymond G. Murphy VA
Medical Center, SCI Meeting Room,
Albuquerque
11
Taxation Section,
12
Business Law Section,
4 p.m., via teleconference
12
Public Law Section,
Noon, Montgomery and Andrews, Santa Fe
18
Children’s Law Section,
Noon, Juvenile Justice Center
18
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Ford Canyon Senior Center, Gallup
19
Legal Resources for the Elderly Workshop
10–11:15 a.m., Presentation
12:30–3:30 p.m., Clinics
Bonnie Dallas Senior Center, Farmington
Cover Artist: Meredith Chapman is a printmaker and bookbinder. She is heavily influenced by the New Mexican landscape.
Chapman uses vibrant colors and geometric shapes to illustrate the desert she loves. Her abstract vocabulary in her work
communicates the subtle beauty and seductive qualities of the desert that is her home and passion.
Bar Bulletin - May 28, 2014 - Volume 53, No. 22 3
Notices
Professionalism Tip
Court News
First Judicial District Court
Announcement of Vacancy
A vacancy on the First Judicial District
Court will exist in Santa Fe as of May 21
due to the creation of an additional judgeship by the Legislature. The new judge will
be assigned to the general civil docket by
Chief Judge Raymond Z. Ortiz. David
Herring, Chair of the Judicial Nominating
Commission, solicits applications for this
position from lawyers who meet the statutory qualifications in Article VI, Section 14
of the New Mexico Constitution. Applications may be obtained from the judicial
selection website, http://lawschool.unm.
edu/judsel/application.php, or by calling Raylene Weis at 505-277-4700. The
deadline for applications is 5 p.m., June 10.
Applicants seeking information regarding
election or retention if appointed should
contact the Bureau of Elections in the Office of the Secretary of State. The Judicial
Nominating Commission will meet at
9 a.m., June 19, at the Judge Steve Herrera
Judicial Complex, 224 Montezuma Ave.,
Santa Fe, to evaluate the applicants for
this position. The Commission meeting
is open to the public and anyone who
wants to voice his or her opinion about a
candidate will be heard.
Second Judicial District Court
Announcements of Vacancy
There are two vacancies on the Second
Judicial District Court (listed in the next
column). Applications for both vacancies
may be obtained from the Judicial Selection
website, http://lawschool.unm.edu/judsel/
application.php, or by calling Raylene Weis
at 505-277-4700. The deadline for applications for both vacancies is 5 p.m., June 11.
Applicants seeking information regarding
election or retention if appointed should
contact the Bureau of Elections in the Office
of the Secretary of State.
With respect to the courts and other tribunals:
I will avoid the appearance of impropriety at all times.
Vacancy Due to the Creation of an
Additional Judgeship
A vacancy will exist in the Second Judicial District Court in Albuquerque as of
May 21, due to the creation of an additional
judgeship by the Legislature. This position
will be assigned to the Civil Division. Further inquiries regarding additional details
or assignment of this judicial vacancy
should be directed to the chief judge or the
administrator of the court. David Herring,
chair of the Judicial Nominating Commission, solicits applications for this position
from lawyers who meet the statutory
qualifications in Article VI, Section 14 of
the New Mexico Constitution. Those applying for this position and the vacancy below
will be interviewed separately. The Judicial
Nominating Commission will meet on June
20 at the Bernalillo County Courthouse in
Albuquerque to evaluate the applicants. The
Commission meeting is open to the public
and anyone who wants to voice his or her
opinion about a candidate will be heard.
Vacancy Due to Retirement
A vacancy will exist in the Second Judicial District Court in Albuquerque due
to the retirement of Hon. Ross C. Sanchez,
effective June 17. This position will be assigned a Domestic Violence Division of the
Family Court. Further inquiries regarding
additional details or assignment of this
judicial vacancy should be directed to the
chief judge or the administrator of the court.
David Herring, chair of the Judicial Nominating Commission, solicits applications
for this position from lawyers who meet
the statutory qualifications in Article VI,
Section 14 of the New Mexico Constitution.
Those applying for this position and the new
judgeship will be interviewed separately.
The Judicial Nominating Commission will
meet on June 20, at the Bernalillo County
Courthouse, Room 338, in Albuquerque, to
evaluate the applicants. The Commission
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
Judicial Conclave
The judges and hearing officers of the
Second Judicial District Court will be attending the Judicial Conclave, June 11–12,
so no court proceedings will be held those
days. Criminal court arraignments will be
conducted as scheduled from 8:30 a.m.–
noon on June 13, heard by Pro Tem Judge
Michael Martinez.
Retirement Celebration for
Chief Judge Ted C. Baca
Members of the legal community are
invited to attend a retirement reception
in honor of Chief Judge Ted C. Baca from
3–5 p.m., June 9, at the Second Judicial
District Courtroom 338. The reception
will include Chief Judge William F. Lang
(ret.) as a guest speaker.
Retirement Celebration for
Judge Ross C. Sanchez
Celebrate the retirement of Judge Ross
C. Sanchez at a reception from 3–5 p.m.,
June 5, at the Second Judicial District
Courtroom 338. Justice Patricio M. Serna
(ret.) will speak.
13th Judicial District Court
Announcements of Vacancy
There are two vacancies on the 13th
Judicial District Court (listed below).
Applications for both vacancies may be
Judicial Records Retention and Disposition Schedules
Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years
and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for
parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits
may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record
for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released
in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court.
Court
Exhibits/Tapes
For Years
May Be
Retrieved Through
2nd Judicial District Court
Domestic Matters/Relations
1987–1994
June 5
505-841-7596/6717
and Domestic Violence
4
www.nmbar.org
obtained from the Judicial Selection website, http://lawschool.unm.edu/judsel/application.php, or by calling Raylene Weis at
505-277-4700. The deadline for applications
for both vacancies has been set for 5 p.m.,
May 29. Applicants seeking information
regarding election or retention if appointed
should contact the Bureau of Elections in
the Office of the Secretary of State.
Vacancy Due to the Creation of an
Additional Judgeship
One vacancy will exist in the 13th Judicial District Court in Bernalillo (Sandoval
County) due to the creation of a new judgeship by the Legislature, effective May 21.
Inquiries regarding details or assignment
of this judicial vacancy should be directed
to the chief judge or the administrator
of the court. David Herring, chair of the
Judicial Nominating Commission, solicits
applications for this position from lawyers
who meet the statutory qualifications in
Article VI, Section 14 of the New Mexico
Constitution. The Judicial Nominating
Commission will meet at 9 a.m., June 9,
at the Valencia County Courthouse in Los
Lunas, to evaluate the applicants. Those
applying for this position and the vacancy
below will be interviewed separately. The
Commission meeting is open to the public
and anyone who wants to voice his or her
opinion about a candidate will be heard.
Vacancy Due to Retirement
One vacancy will exist in the 13th Judicial District Court in Los Lunas (Valencia
County) due to the retirement of Hon. Violet
C. Otero, effective June 21. This position will
be for a General Jurisdiction judge. Inquiries
regarding further details or assignment of
this judicial vacancy should be directed to
the chief judge or the administrator of the
court. David Herring, chair of the Judicial
Nominating Commission, solicits applications for this position from lawyers who
meet the statutory qualifications in Article
VI, Section 14 of the New Mexico Constitution. The Judicial Nominating Commission
will meet at 9 a.m. on June 9 at the Valencia
County Courthouse in Los Lunas to evaluate the applicants. Those applying for this
position and the new judgeship will be
interviewed separately. The Commission
meeting is open to the public and anyone
who wants to voice his or her opinion about
a candidate will be heard.
State Bar News
Attorney Support Groups
• June 2, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the first Monday of the month.)
• June 9, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, Room 1119 (The group
meets the second Monday of the month.)
• June 16, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (The group
meets the third Monday of the month.)
•For more information, contact Bill
Stratvert, 505-242-6845.
Appellate Practice Section
Brown-Bag Lunch with
Justice Maes
The Appellate Practice Section, working with the New Mexico Supreme Court
and Court of Appeals, continues its lunch
program for section members. Justice
Petra Jimenez Maes will speak at the
State Bar Center at noon on June 6. These
meetings are informal and attendees are
encouraged to bring their own lunch.
Email Dolph Barnhouse, dbarnhouse@
indiancountrylaw.com, to reserve a spot.
Bankruptcy Law Section
Golf Tournament and CLE in
Las Cruces
The Bankruptcy Law Section is hosting a CLE, golf outing, and reception
on June 6, at the Sonoma Ranch Golf
Clubhouse in Las Cruces. The CLE
program, “Bankruptcy Automatic Stay
Fundamentals—How Does the Automatic
Stay Affect Your State Court Case” (2.0 G),
will be from 10 a.m.–noon. Cost is $45.
Register online at www.nmbarcle.org or
call 505-797-6020. The golf outing will
begin at 1 p.m. followed by a reception at 5
p.m. Hors d’oeuvres and a cash bar will be
available. Participants must provide their
own golf clubs. R.S.V.P. to Gerald Velarde,
[email protected] or 505-248-0050.
Make reservations at the Hotel Encanto
by May 28 to take advantage of the special
$99 rate per night. Call 1-866-383-0443
and mention the Bankruptcy Law Section
Golf Tournament. All State Bar members
are welcome to attend.
Correction:
The May 21, 2014 Bar Bulletin (Vol. 53, No. 21) listed an incorrect date for the
retirement of Judge Violet C. Otero of the 13th Judicial District Court.
Featured
Member Benefit
Auto and Home Insurance
SBNM members receive an exclusive group
discount off already competitive rates, extra
savings for insuring both car and home, and
discounts based on driving experience, car
and home safety features and much more.
Contact Edward Kibbee,
(505) 323-6200 ext. 59184, or visit
www.libertymutual.com/edwardkibbee.
Board of Bar Commissioners
Two Appointments
Members who want to serve in either
position below should send a letter of
interest and brief résumé to Executive
Director Joe Conte, State Bar of New
Mexico, PO Box 92860, Albuquerque, NM
87199-2860; or fax to 505-828-3765. The
deadline is June 30.
Judicial Standards Commission
The Board of Bar Commissioners will
make one appointment to the Judicial
Standards Commission for a four-year
term. The responsibilities of the Judicial
Standards Commission are to receive, review, and act upon complaints against state
judges, including supporting documentation on each case as well as other issues
that may surface. The commission meets
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org/JLAP/JLAP.html
www.nmbar.org
once every eight weeks in Albuquerque
and additional hearings may be held as
many as four–six times a year. The time
commitment to serve on this commission is
significant and the workload is large. Applicants should consider all potential conflicts
caused by service on this commission.
ABA House of Delegates
The Board of Bar Commissioners will
make one appointment to the American
Bar Association House of Delegates for
a two-year term, which will expire at
the conclusion of the 2016 ABA Annual
Meeting. The delegate must be willing to
attend meetings or otherwise complete
his/her term and responsibilities without
reimbursement or compensation from
the State Bar; however, the ABA provides
reimbursement for expenses to attend the
ABA Midyear Meetings.
Center for Legal Education
7th Annual New Mexico Legal
Service Providers Conference
The 7th Annual New Mexico Legal
Service Providers Conference will be held
June 12 and 13 at the State Bar Center. The
conference will provide 10.0 G and 2.0
EP CLE credits. From trial techniques to
limited scope representation to working
with Odyssey, the general sessions will
provide knowledge and skills necessary
for those working in the legal service field.
There also will be a number of hands-on
training sessions addressing government
benefits and family law issues. To view
the full agenda and register, visit www.
nmbarcle.org or call 505-797-6020.
Immigration Law Section
Happy Hour Mixers
The Immigration Law section will
host two happy hour mixers this month.
The Albuquerque event will begin at 5:30
p.m. on May 29 on the patio of the Indian
Pueblo Cultural Center, 2401 12th St. NW.
R.S.V.P. to Olsi Vrapi at olsi@noblelawfirm.
com. The El Paso event will begin at 6 p.m.
on May 30 at Corralito Restaurant, 5800
Doniphan Dr. in west El Paso. R.S.V.P. to
Pamela Munoz at pamela.genghini0823@
gmail.com.
Young Lawyers Division
Bridge the Gap Mentorship
Program Forum
The Young Lawyers Division will be
holding a forum about the Bridge the Gap
Mentorship Program at 11:30 a.m.–1:30
6
p.m., June 5, at the State Bar Center. Past
mentors and mentees are particularly
welcome to share their thoughts on ways
to improve the program that matches a
veteran attorney with a new attorney in
a one-year mentorship. Lunch will be
served. R.S.V.P. to Evann Kleinschmidt,
[email protected].
UNM
Law Library
Hours Through Aug. 17
Building & Circulation
Monday–Thursday 8 a.m.–8 p.m.
Friday
8 a.m.–6 p.m.
Saturday
8 a.m.–5 p.m.
Sunday
Noon–8 p.m.
Reference
Monday–Friday
9 a.m.–6 p.m.
Saturday–Sunday
Closed
Closures
July 4: Independence Day
2014 Law Scholarship Golf Classic
The UNM School of Law Alumni/ae
Association is hosting the 2014 Law Scholarship Golf Classic on June 6 at the UNM
Championship Golf Course. It is dedicated
to the memory of Peter H. Johnstone.
Proceeds benefit the Law Alumni Association Scholarship program. Lunch begins at
11 a.m. with a shotgun start at 12:30 p.m.
For more information, call 505-277-1457
or visit http://lawschool.unm.edu/alumni/
events/2014/golf.php.
Other Bars
Albuquerque Bar Association
Monthly Membership Luncheon
The Albuquerque Bar Association’s
membership luncheon will be held at
noon, June 3, at the Embassy Suites
Hotel, 1000 Woodward Pl. NE, Albuquerque. Janet Blair, spokeswoman
for the Albuquerque Police Department, will present “An Update of D.O.J.
Investigation and How it Will Affect
the Albuquerque Police Department.”
Second Judicial District Attorney Kari
Brandenburg will present “Peaks and
Valleys; The Life of a Prosecutor” (2.0
G) from 1:15–3:15 p.m. Cost: lunch
only, $30 members, $40 non-members;
lunch and CLE, $90 members, $120 nonmembers; CLE only $60 members, $80
non-members. Register by noon, May
30, at www.abqbar.org. Non-member
walk-up attendance will not be permitted
for this event.
New Mexico Criminal Defense
Lawyers Association
‘The Body’ CLE
The New Mexico Criminal Defense
Lawyers Association presents “The Body:
Biochemistry Basics, the Physiology of
Injury, and the Rapidly Changing Law
and Science of Child and Sex Abuse” (6.0
G) on June 13 at the UNM School of Law.
Register online at www.nmcdla.org.
New Mexico Hispanic
Bar Association
Meet and Greet in Farmington
The New Mexico Hispanic Bar Association and the State Bar Young Lawyers
Division will present a meet-and-greet
event, 5:30–7:30 p.m., June 13, at the Three
Rivers Brewery, 111 E. Main St., Farmington. Appetizers will be provided. For more
information, visit www.nmhba.net.
Other News
National Hispanic Cultural
Center Foundation
Trailblazers en el Camino
Reception and Program
The National Hispanic Cultural Center
Foundation is partnering with the family
of Justice Joseph F. Baca to host Trailblazers en el Camino from 6–10 p.m. on June
20. Tickets and sponsorships are available
online at www.nhccfoundation.org or by
phone, 505-766-9858.
New Mexico Workers’
Compensation Administration
Request for Comments
The director of the Workers’ Compensation Administration, Darin A. Childers,
is considering the reappointment of Judge
Leonard Padilla to a five-year term pursuant
to NMSA 1978, Section 52-5-2 (2004). Judge
Padilla’s term expires on Aug. 31. Those wishing to submit written comments concerning
Judge Padilla’s performance may do so until
5 p.m., June 2. Mail comments to WCA
Director Darin A. Childers, c/o Human
Resources, PO Box 27198, Albuquerque, NM
87125-7198, or fax to 505-841-6813.
Sutin, Thayer & Browne
Navajo Law Seminar on Aug. 29
Sutin, Thayer & Browne will present a
Navajo Law Seminar on Aug. 29 at Sandia
Resort & Casino in Albuquerque. The
day-long seminar is expected to be worth
8 CLE credits (6.0 G, 2.0 EP), applicable to
Same Great Referral Program Has a New Name
www.nmbar.org
MCLE and the Navajo Nation Bar Association. Details and registration information
will be forthcoming.
State Bar
General Referral
Program
10th Circuit Historical Society
Reception on June 2
All are invited to attend the 10th Circuit
Historical Society reception hosted by
Hon. James Browning and the Washington and Lee School of Law from 6:30–8
p.m., June 2, at the home of Nancy and
Jerry Roehl in Los Ranchos. Special guests
include Nora V. Demleitner, dean and Roy
L. Steinheimer Jr. professor of law. Cost is
$25. To register, contact Suzanne Wade,
[email protected] or 540-458-8996.
(Formerly known as Bridge to Justice)
A statewide program that refers
participants to an attorney in the
appropriate legal area for a
30-minute consultation.
The participant pays the referral
program a $35 service fee.
Submit
announcements
Statewide: 800-876-6227
Albuquerque: 505-797-6066
for publication in
the Bar Bulletin to
[email protected]
by noon Monday
the week prior
to publication.
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Order form available at www.nmbar.org
Hearsay
David P. Buchholtz has joined the Rodey
Law Firm as a member of its business department. He practices in the areas of government
finance law, economic development and state
tax incentive law, financial institutions law,
government relations, securities law, and corporate matters. Buchholtz currently serves
on the boards of Think New Mexico, New
Mexico Chapter of the National Association
of Office and Industrial Properties, and the
Jewish Community Center of Albuquerque,
David P. Buchholtz
where he is president. Buchholtz attended
Georgetown University (J.D.).
James Gilman, principal at the Gilman Law Firm in Albuquerque,
has been elected president of the Lawyer Pilots Bar Association.
Established in 1959, LPBA serves a national membership of
lawyers and non-lawyers with interests in aviation law.
SaucedoChavez, PC, announces the addition of two new attorneys to the firm.
Ryan Harrigan represents clients on a
diverse range of healthcare, litigation and
corporate matters. His primary focus will be
healthcare issues on regulatory, fraud and
abuse, litigation, and compliance matters
for a wide range of healthcare entities. He
attended the New York University School of
Law. Prior to joining SaucedoChavez, PC,
Harrigan was a shareholder at Melendres,
Ryan Harrigan
Melendres & Harrigan PC and practiced
law for eight years at the international law firm Latham &
Watkins LLP, where he was a member of the Health Care and
Life Sciences practice group. Catie Russell is a December 2013
graduate of the University of New Mexico School of Law. During
law school she was president of the Women’s
Law Caucus (2012–2013) and secretary of
the Business Law Society (2012–2013). She
also was a citations editor of the Natural
Resources Journal and participated in the
2013 National Health Law Moot Court.
Her prior experience includes law clerking
at Sanchez, Mowrer & Desiderio, PC, and
the University of New Mexico, Office of
University Counsel, Health Law Section,
and as a legal extern at Southwest Women’s
Catie Russell
Law Center.
Michael L. Keleher
S. Carolyn Ramos
H. Jesse Jacobus III of the Law Office
of George “Dave” Giddens, PC, in Albuquerque has been named to the National
Academy of Personal Injury Attorneys’ Top
10 Under 40 in New Mexico.
Junilla Sledziewski
H. Jesse Jacobus III
Thomas F. Keleher
William B. Keleher
National Jewish Health, one of the nation’s leading respiratory
hospitals, honored three Keleher & McLeod attorneys for their
contributions of time, talents, and resources to the community.
Michael L. Keleher, of counsel, has held a Martindale Hubbell AV
Preeminent rating for more than 25 years and was mentioned in
Best Lawyers in America under real estate. He attended the New
Mexico Military Institute, University of New Mexico (B.A.), New
York University (M.A.) while on active duty with the U.S. Navy,
and the University of Mississippi (J.D.). Thomas F. Keleher began
his career as an officer in the U.S. Navy Civil Engineer Corps serving in the Philippines and Vietnam during the Vietnam War. He
attended the University of New Mexico School of Law (1974). He
has been recognized by the Best Lawyers in America, Martindale
Hubbell AV, and Benchmark Litigation. William B. Keleher, a
lifelong resident of New Mexico, attended Stanford Law School
and served for two years in the U.S. Air Force as an assistant staff
judge advocate. He is a member of the American College of Trust
and Estate Counsel and is listed in the Best Lawyers in America
in real estate and corporate law.
S. Carolyn Ramos has been invited to join
the Claims and Litigation Management Alliance, a nonpartisan alliance comprised of
thousands of insurance companies, corporations, corporate counsel, litigation and risk
managers, claims professionals, and attorneys. Ramos is an attorney, shareholder, and
director with the law firm of Butt Thornton
& Baehr PC, where her litigation practice
focuses on the defense of transportation,
product liability, sports venue, and other
personal injury cases.
Junilla Sledziewski joined Statman, Harris
& Eyrich, LLC’s Chicago office. Her practice
areas include commercial litigation, creditors’ rights, bankruptcy, and business planning. Sledziewski attended the University of
Miami School of Law and the University of
Nevada, Las Vegas. She is a member of the
Illinois State Bar Association, Florida Bar,
and State Bar of New Mexico. She worked for
several years at Fowler White Burnett, PA,
in Miami and as a solo practitioner before
relocating to Chicago in 2013.
Editor’s Note: The contents of Hearsay and In Memoriam are submitted by members or derived from news clippings. E-mail announcements to [email protected].
8
Hearsay
Cate Stetson has been selected as a Super
Lawyer in native law by Southwest Super
Lawyers and is the only woman in New
Mexico to have been recognized with
the honor. She has achieved this recognition every year since the magazine’s first
publication.
Cate Stetson
The State Bar of New Mexico Young Lawyers Division took first
place in this year’s ABA Next Steps Challenge, announced on
May 19 at the ABA YLD Spring Conference in Pittsburgh. The
winning submission was “Creating a Culture of Collaboration:
Promoting Diverse Law School and Bar Association Leaders.” It
focused on outreach to the UNM School of Law, collaboration
between the law school and affinity bar associations, and member
and public service initiatives to promote outreach to underserved
and underrepresented communities. For its efforts, the ABA
YLD awarded the New Mexico YLD $1,500 for continued work
on this project. Pictured below from left, Jamie Davis, Walmart;
Myra McKenzie-Harris, Walmart; Kenya Jenkins-Wright, ABA
YLD Diversity Director; Tomas Garcia, 2014 SBNM YLD Director; Greg Gambill, ABA YLD District Representative (N.M. and
Arizona); Mary Modrich-Alvarado, 2013 SBNM YLD Director;
Mario Sullivan, ABA YLD Chair; and Shenique Moss, ABA YLD
Diversity Vice Director.
Keleher & McLeod
Southwest Super Lawyers 2014:
S. Charles Archuleta, employment litigation and defense; Arthur
O. Beach, personal injury defense and products liability; Thomas
C. Bird, appellate; Ann Maloney Conway, business litigation;
Phil Krehbiel, business litigation; Sean Olivas, employment
and labor litigation Charles A. Pharris, business litigation; W.
Spencer Reid, business litigation; Gary Van Luchene, personal
injury, general and defense; and Kurt Wihl, business litigation.
Top 25 New Mexico Super Lawyer:
W. Spencer Reid
New Hunt Research Center Focuses
on Region’s Development
Organized by the Hunt Institute for Global Competitiveness,
a new research center at the University of Texas at El Paso
was inaugurated on April 29 to study how divergent municipal, state and national governments can work together
to enhance the Paso del Norte. Patrick Schaefer, executive
director of the Hunt Institute for Global Competitiveness,
said the mission is to develop economic frameworks to analyze the institutional and regulatory structures that influence
the quality of life of millions of people in the Paso del Norte
region. Schaefer, a multilingual and multi-degreed attorney
with a grounded understanding of comparative economic,
political and legal systems of the U.S. and Latin America,
discussed the types and levels of institutional economic
research he expects from the institute. He is a graduate of
the UNM School of Law and is a member of the State Bar
of New Mexico.
Rodey, Dickason, Sloan, Akin & Robb, PA:
Chambers USA—America’s Leading Lawyers for Business: 2014
Mark K. Adams, environment (natural resources and regulated
industries), water law; Rick Beitler, litigation (medical malpractice and insurance defense); Perry E. Bendicksen III, corporate/
commercial Henry M. Bohnhoff, litigation (general commercial);
David Buchholtz, corporate/commercial; Nelson Franse, litigation (general commercial, medical malpractice and insurance
defense); Catherine T. Goldberg, real estate; Scott D. Gordon,
labor and employment; Alan Hall, corporate/commercial;
Bruce Hall, litigation: general commercial; Justin A. Horwitz,
corporate/commercial; Robert L. Lucero, real estate; Donald B.
Monnheimer, corporate/commercial; Julie P. Neerken, labor
and employment (employee benefits and compensation); Sunny
J. Nixon, environment, natural resources and regulated industries
(water law); Lisa C. Ortega, litigation (general commercial);
Theresa W. Parrish, labor and employment; John N. Patterson,
real estate; John P. Salazar, real estate; Andrew G. Schultz, litigation (general commercial); Tracy Sprouls, corporate/commercial
(tax); Thomas L. Stahl, labor and employment; Aaron C. Viets,
labor and employment; Charles J. Vigil, labor and employment.
9
In Memoriam
Richard Carl Civerolo, born August 1, 1917, died peacefully at
his home on May 12. He was preceded in death by his parents Paul
and Albina Micheletti Civerolo; sister Primina Civerolo Golino;
and brothers Peter, James, John, Edmund, and Arthur Civerolo.
He also was preceded in death in January 2011 by Mary, his wife
of 65 years. Survivors include daughter Gina Civerolo and husband
Dennis Smigiel, son Paul and wife Jennifer Civerolo, and grandsons Steven Civerolo, and Michael Civerolo and wife Jacqueline,
and his faithful dog companion Nikki. He was the shareholder
and founder of Civerolo, Gralow, Hall and Curtis. He graduated
from the University of New Mexico’s first law school class in 1950
(B.A., 1950, Bachelor of Laws 1950, J.D., 1968). He was a member
of Alpha Kappa Psi, Kappa Sigma, and Pi Sigma Alpha. Civerolo
was special assistant attorney general (1962–1970). He was a proud
member many organizations including the American Bar Association (chairman, Unauthorized Practice of Law Committee, 19691977), Specialization Board (1979–1982), Medical-Legal Grievance
Committee (co-chairman, 1979–present), Medical-Legal Liaison
Committee (co-chairman, 1984–present), New Mexico Medical
Review Commission (member and chairman, 1983–present);
American Board of Trial Advocates (member, National Executive
Committee, 1970–present; National President, 1979–1980); and
American College of Trial Lawyers (fellow). Civerolo received the
State Bar of New Mexico 1997 Distinguished Bar Service Award,
which recognizes long-term commitment to Bar services and
significant contributions to the legal profession. In 1992, he was
honored by the New Mexico Medical Society with a special award
for services to the public, the legal profession and the medical
profession (this was the first award given by the Medical Society
to a New Mexico lawyer). He was a captain in the U.S. Army and
past state president of the New Mexico Cancer Society. He held an
AV rating by Martindale-Hubbell.
William H. “Bill” Darden died March 31
at his home in Raton. He was born on July
28, 1917, in Birmingham, Ala., to Richie
H. and Annie Lou Wood Darden. He was
a resident of Raton since 1918 and graduated from the University of Colorado (B.A.
and J.D.). He was admitted to the State Bar
of New Mexico in 1947, practicing law in
Raton and serving as an assistant district
attorney until his retirement in 1980. A
World War II veteran, he served in Europe
William H. Darden
and the Philippines as a junior officer in a
U.S. Army combat engineer battalion. After the war he served
an additional 10 years in the U.S. Army Reserves and the New
Mexico National Guard. At one time he was the commander of
the Raton National Guard Battery, and was discharged with the
rank of major. He married Kathryn Tower of Fulton, Ky., in 1957.
Darden was a past director of the Gate City Building and Loan Association, past president of the Raton Chamber of Commerce, past
president of the Raton Kiwanis Club, past chairman of the City
of Raton Personnel Board, and past member of Raton’s Library
Board, Recreation Board and Sugarite Canyon Board. A member
of the First Presbyterian Church in Raton since 1927, he served
several terms as a trustee and an elder. He is preceded in death by
his wife and his parents. He is survived by one brother, Robert H.
Darden and wife, Virginia, of Lakeville, Conn.; nephew Thomas
A. Darden of Santa Fe; nieces Anne Richardson of Lakeville and
Margaret Garber of San Diego; great nieces Madeleine Garber and
Kristina Darden; and great nephew Barry Richardson.
10
Thomas E. Jones died on April 13. He was born on May 25,
1932, in Pocahontas, Iowa. Jones is survived by his six children
Catherine Jones, Tom Jones, Randall Jones, Andrea (Suzy) and
son-in-law Joel Platt, Jeffrey and wife Vanessa Jones, and Scot
Jones of Albuquerque; three grandchildren, Samantha Platt, Elias
and Parker Jones of Albuquerque; and brothers, John Jones of St.
Paul, Minn., and Bob Jones of Norristown, Pa. Jones was preceded
in death by his father Cecil Jones, mother Jane Jones, aunt Emma
Wallace, and infant son Zachary in 1964. Growing up in Storm
Lake, Iowa, he served as an altar boy, played basketball, and was
a life guard. He was very proud to be one of the first in the Storm
Lake area to earn the rank of Eagle Scout, the highest achievement
in the Boy Scouts of America. He received his undergraduate
degree from St. Thomas University and attended Notre Dame
Law School before he was called into the U.S. Air Force. He later
received his law degree from the University of Iowa. Jones moved
to Albuquerque in 1961, where he worked as an attorney for more
than 50 years until his death. He never turned away a client who
couldn’t afford to pay. He was a member of the State Bar of New
Mexico and the Iowa State Bar Association. Jones was a retired
U.S. Air Force lieutenant colonel, N.M. State Defense Force twostar general, pilot, and a member of the Caterpillar Club. He was
a trusted and loving father who treasured spending time with
his three grandchildren. His biggest passion in life was flying his
Cessna locally and across country. He enjoyed football and old
Westerns, too. Jones was a long-time member of the Knights of
Columbus, where he served as state deputy in 1967. He was the
president of the St. Pius School Board in the mid ’80s. Jones was
a devout and faithful servant of God as a deacon at Our Lady of
Fatima Catholic Church for 40 years. He attended Mass daily, and
his faith was an inspiration to all.
Legal Education
May
28UCC Issues in Real Estate
Transactions
1.0 G
National Teleseminar
Center for Legal Education of NMSBF
505-797-6020
www.nmbarcle.org
29Trust Investments: A Guide to
Trustee Duties & Liability Under
the UPIA
1.0 G
505-797-6020
www.nmbarcle.org
30
Accounting for Lawyers
6.0 G
Live Seminar and Webcast
505-797-6020
www.nmbarcle.org
30Attorney Ethics and Social Media
1.0 EP
505-797-6020
www.nmbarcle.org
30
The Basics of Kinship/
Guardianship
2.0 G
Live Seminar
New Mexico Legal Aid
Volunteer Attorney Program
505-797-6040
June
1–8 CLE at Sea: Alaska
10.0 G, 2.0 EP
Live Seminar
505-797-6020
www.nmbarcle.org
3Family Feuds in Trusts
1.0 G
505-797-6020
www.nmbarcle.org
3
4–5Ethics in Litigation Update,
Parts 1–2
2.0 EP
505-797-6020
www.nmbarcle.org
The Brain-Smart Negotiator:
Skills and Practices for the
Effective Litigator
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
3
Trials of the Century II with
Todd Winegar
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
3
From Workers’ Compensation to
Social Security: Complementary
Areas to Build Your Practice
5.5 G
Video Replay
505-797-6020
www.nmbarcle.org
6
Bankruptcy Automatic Stay
Fundamentals—How Does the
Automatic Stay Affect Your State
Court Case
2.0 G
Live Seminar (Las Cruces)
505-797-6020
www.nmbarcle.org
10The Perils of Using ‘Units’ in LLC
Planning
1.0 G
505-797-6020
www.nmbarcle.org
12–13 7th Annual New Mexico Legal
Service Providers Conference
10.0 G, 2.0 EP
Live Seminar
505-797-6020
www.nmbarcle.org
13Planning for Estates Under
$10 Million
1.0 G
505-797-6020
www.nmbarcle.org
13
The Body: Biochemistry Basics,
The Physiology Of Injury, And The
Rapidly Changing Law And Science
Of Child And Sex Abuse
6.0 G
New Mexico Criminal Defense
Lawyers Association
505-992-0050
www.nmcdla.org
17
The Cybersleuth’s Guide to the
Internet: Super Search-Engine
Strategies and Investigative
Research
6.0 G
Video Replay
505-797-6020
www.nmbarcle.org
11
Legal Education
www.nmbar.org
June
17
2013 Health Law Symposium:
Healthcare Compliance and
Professionalism
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
19Employees, Secrets and
Competition: Non-Competes and
More
1.0 G
505-797-6020
www.nmbarcle.org
17
20
2013 Employment and Labor Law
Institute
5.0 G, 1.0 EP
Video Replay
505-797-6020
www.nmbarcle.org
17–18Estate and Trust Planning
Update Part 1–2
2.0 G
505-797-6020
www.nmbarcle.org
4th Annual ADR Institute: How
Neuroscience Helps Mediators
Resolve Conflict
6.0 G
505-797-6020
www.nmbarcle.org
24Sales Agreements: UCC Article 2
and Practical Considerations
1.0 G
505-797-6020
www.nmbarcle.org
25–26Buying and Selling Commercial
Real Estate, Part 1–2
2.0 G
505-797-6020
www.nmbarcle.org
26
2014 Ethicspalooza
1.0–6.0 EP
505-797-6020
www.nmbarcle.org
27Attorney Ethics and Disputes with
Clients
1.0 EP
505-797-6020
www.nmbarcle.org
July
1Picking the Right Trust: Alphabet
Soup of Alternative
1.0 G
505-797-6020
www.nmbarcle.org
17–18Estate Planning for Real State, Parts
1–2
2.0 G
505-797-6020
www.nmbarcle.org
25Ethics and Lateral Transfers of
Lawyers Among Law Firms
1.0 EP
505-797-6020
www.nmbarcle.org
8–9Asset Based Finance, Parts 1–2
2.0 G
505-797-6020
www.nmbarcle.org
17–19 2014 Annual Meeting—Bench and
Bar Conference
12.0 CLE Credits (including a
possible 8.0 EP)
Live Seminar
Hyatt Regency Tamaya Resort and Spa
505-797-6020
www.nmbarcle.org
29Structuring For-Profit/Non-Profit
Joint Ventures
1.0 G
505-797-6020
www.nmbarcle.org
15Employment Taxes Across Entities
1.0 G
505-797-6020
www.nmbarcle.org
12
22Opinion Letters in Transactions
Involving LLCs and S Corps
1.0 G
505-797-6020
www.nmbarcle.org
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective May 16, 2014
Petitions for Writ of Certiorari Filed and Pending:
No. 34,710
No. 34,709
No. 34,707
No. 34,705
No. 34,704
No. 34,706
No. 34,703
No. 34,701
No. 34,700
No. 34,615
No. 34,699
No. 34,698
No. 34,697
No. 34,694
No. 34,693
No. 34,692
No. 34,691
No. 34,689
No. 34,688
No. 34,687
No. 34,686
No. 34,307
No. 34,684
No. 34,683
No. 34,679
No. 34,677
No. 34,676
No. 34,675
No. 34,669
No. 34,668
No. 34,633
No. 34,666
No. 34,678
No. 34,660
No. 34,589
No. 34,657
No. 34,654
No. 34,574
No. 34,652
No. 34,650
No. 34,630
No. 34,571
No. 34,629
No. 34,619
No. 34,611
No. 34,606
Date Petition Filed
State v. Lombardeux
COA 33,272 05/16/14
State v. Jeter
COA 33,424 05/16/14
Trammell v. Hollis
COA 33,484 05/15/14
State v. Carlos C.
COA 33,233 05/14/14
Maese v. Garret
COA 32,260 05/14/14
Camacho v. Sanchez
12-501 05/13/14
State v. Ramos
COA 33,356 05/13/14
State v. Charley
COA 31,911 05/12/14
CYFD v. Billy K.
COA 33,536 05/12/14
Dominguez v. Bravo
12-501 05/12/14
Brashar v. Regents of
University of California COA 32,246 05/09/14
Astante v. Ammre Inc.
COA 31,482 05/09/14
State v. Albertson
COA 33,521 05/09/14
State v. Salazar
COA 33,232 05/09/14
West v. N.M. Taxation
and Revenue Dept.
COA 32,037 05/08/14
State v. Carrillo
COA 33,298 05/08/14
Wetson v. Nance
12-501 05/07/14
State v. Ramirez
COA 33,343 05/07/14
State v. Melendrez
COA 32,203 05/07/14
State v. Staake
COA 33,307 05/07/14
Avallone v.
City of Las Cruces
COA 33,340 05/07/14
State v. Muraida
COA 31,646 05/07/14
State v. Jim
COA 31,008 05/05/14
State v. Hodge
COA 33,200 05/05/14
Cummins v. State
12-501 05/02/14
State v. Nichols
COA 33,430 05/01/14
Bachechi v.
Coastal Transport
COA 33,474 04/30/14
Alejandro v. State
12-501 04/29/14
Hart v. Otero County Prison 12-501 04/29/14
State v. Vigil
COA 32,166 04/29/14
Vespender v. Janecka
12-501 04/29/14
State v. Thomas
COA 33,289 04/28/14
Bradford v. State
12-501 04/24/14
State v. Bonney
COA 33,259 04/23/14
Seager v. State
12-501 04/23/14
State v. Gallegos
COA 32,938 04/21/14
Ginko v. Cucchetti
COA 33,152 04/21/14
Montano v. Hatch
12-501 04/21/14
State v. Montoya
COA 33,168 04/18/14
Scott v. Morales
COA 32,475 04/16/14
State v. Ochoa
COA 31,243 04/07/14
Fresquez v. State
12-501 04/07/14
Edwards v. Sexson
COA 32,865 04/04/14
Response filed 4/23/14
State v. Cannon
COA 32,127 03/31/14
Musacco v. Franco
12-501 03/28/14
French v. Hickson
12-501 03/25/14
No. 34,604
No. 34,600
No. 34,563
No. 34,560
No. 34,470
No. 34,467
No. 34,289
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Lopez v. State
12-501
State v.
Dominguez
COA 32,546/31,975
Response ordered; filed 4/29/14
Benavidez v. State
12-501
Response ordered; due 5/27/14
Hartzell v. State
12-501
MacLennan v. Michel
COA 31,026
Bertola v. State
12-501
Tafoya v. Stewart
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Response ordered; filed 1/22/13
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
03/21/14
03/19/14
02/25/14
02/11/14
02/03/14
01/17/14
08/23/13
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Certiorari Granted but not yet Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,837 State v. Trujillo
COA 30,563 11/02/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,952 Melendez v.
Salls Brothers
COA 32,293 01/18/13
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,076 State v. Martinez
COA 32,424 04/19/13
No. 34,124 State v. Cortina
COA 30,317 05/24/13
No. 34,122 State v. Steven B. consol.
w/ State v. Begaye COA 31,265/32,136 07/12/13
No. 34,204 Faber v. King
COA 31,446 07/12/13
No. 33,994 Gonzales v. Williams
COA 32,274 08/30/13
No. 33,863 Murillo v. State
12-501 08/30/13
No. 33,810 Gonzales v. Marcantel
12-501 08/30/13
No. 34,271 State v. Silvas
COA 30,917 09/20/13
No. 34,300 Behrens v. Gateway
COA 31,439 09/27/13
No. 34,286 Yedidag v.
Roswell Clinic Corp.
COA 31,653 09/27/13
No. 34,311 State v. Favela
COA 32,044 10/18/13
No. 34,295 Dominguez v. State
12-501 10/18/13
No. 34,380 Cohen v.
Continental Casualty Co. COA 32,391 11/15/13
No. 34,365 Potter v. Pierce
COA 31,595 11/15/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,398 State v. Garcia
COA 31,429 12/04/13
No. 34,387 Perea v. City of
Albuquerque
COA 31,605/32,050 12/04/13
No. 34,400 State v. Armijo
COA 32,139 12/20/13
13
Writs of Certiorari
No. 34,455
No. 34,435
No. 34,499
No. 34,498
No. 34,488
No. 34,487
No. 34,447
No. 34,443
No. 34,516
No. 34,473
No. 34,548
No. 34,546
No. 34,558
No. 34,549
No. 34,526
No. 34,522
No. 34,582
No. 34,644
No. 34,637
No. 34,613
No. 34,607
No. 34,554
No. 34,501
No. 34,476
City of Santa Fe v.
Tomada
COA 32,407
State v. Strauch
COA 32,425
Perez v. N.M. Workforce
Solutions Dept. COA 32,321/32,330
Hightower v. State
12-501
State v. Norberto
COA 32,353
State v. Charlie
COA 32,504
Loya v. Gutierrez
COA 32,405
Aragon v. State
12-501
State v. Sanchez
COA 32,994
Mandeville v.
Presbyterian Healthcare COA 32,999
State v. Davis
COA 28,219
N.M. Dept. Workforce Solutions v.
Garduno
COA 32,026
State v. Ho
COA 32,482
State v. Nichols
COA 30,783
State v. Paananen
COA 31,982
Hobson v. Hatch
12-501
State v. Sanchez
COA 32,862
Valenzuela v. Snyder
COA 32,680
State v. Serros
COA 31,975
Ramirez v. State
COA 31,820
Lucero v.
Northland Insurance
COA 32,426
Miller v.
Bank of America
COA 31,463
Snow v. Warren Power
COA 32,335
State v. Pfauntsch
COA 31,674
01/10/14
01/10/14
02/07/14
02/07/14
02/07/14
02/07/14
02/07/14
02/14/14
02/14/14
03/07/14
03/14/14
03/14/14
03/21/14
03/28/14
03/28/14
03/28/14
04/11/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
05/01/14
Certiorari Granted and Submitted to the Court:
(Submission Date = date of oral
argument or briefs-only
submission) Submission Date
No. 33,296 State v. Gutierrez
COA 29,997 09/12/12
No. 33,014 State v. Crane
COA 29,470 11/13/12
No. 33,324 State v. Evans
COA 31,331 11/26/12
No. 33,483 State v. Consaul
COA 29,559 12/17/12
No. 33,382 N.M. Human Services v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,383 Presbyterian Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,384 Cimarron Health Plan v.
Starko, Inc.
COA 29,016/27,922 01/15/13
No. 33,594 Fallick v. Montoya
COA 30,172 03/13/13
No. 33,589 Zhao v. Montoya
COA 30,172 03/13/13
No. 33,632 First Baptist Church of Roswell v.
Yates Petroleum
COA 30,359 03/13/13
No. 33,548 State v. Marquez
COA 30,565 04/15/13
No. 33,567 State v. Leticia T.
COA 30,664 04/30/13
No. 33,566 State v. Leticia T.
COA 30,664 04/30/13
14
No. 33,592
No. 33,971
No. 33,808
No. 33,862
No. 33,993
No. 33,770
No. 33,969
No. 33,938
No. 33,898
No. 34,007
No. 34,039
No. 33,884
No. 33,847
No. 34,013
No. 33,970
No. 34,085
No. 34,146
No. 34,126
No. 34,128
No. 33,604
No. 34,009
No. 34,093
No. 34,194
No. 33,999
No. 33,997
No. 34,150
No. 34,287
No. 34,120
No. 34,349
No. 34,583
State v. Montoya
COA 30,470
State v. Newman
COA 31,333
State v. Nanco
COA 30,788
State v. Gerardo P.
COA 31,250
Fowler v. Vista Care and American
Home Insurance Co.
COA 31,438
Vaughn v.
St. Vincent Hospital
COA 30,395
Safeway, Inc. v.
Rooter 2000 Plumbing
COA 30,196
State v. Crocco
COA 31,498
Bargman v. Skilled Healthcare
Group, Inc.
COA 31,088
City of Albuquerque v.
AFSCME Local 3022
COA 31,075
Cavu Co. v. Martinez
COA 32,021
Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502
State v. Urquizo
COA 30,337
Foy v. Austin Capital
COA 31,421
State v. Parvilus
COA 30,379
Badilla v. Walmart
COA 31,162
Madrid v.
Brinker Restaurant
COA 31,244
State v. Maurice H.
COA 31,597
Benavides v.
Eastern N.M. Medical
COA 32,450
State v. Ramirez
COA 30,205
State v. Huettl
COA 31,141
Cordova v. Cline
COA 30,546
King v. Faber
COA 34,116
State v. Antonio T.
COA 30,827
State v. Antonio T.
COA 30,827
Kimbrell v.
Kimbrell
COA 30,447/31,491
Hamaatsa v.
Pueblo of San Felipe
COA 31,297
State v. Baca
COA 31,442
Harrison v. Lovelace Health
System, Inc.
COA 32,215
State v. Djamila B.
COA 32,333
05/15/13
07/24/13
08/14/13
08/14/13
08/14/13
08/26/13
08/28/13
08/28/13
09/11/13
09/24/13
09/30/13
10/28/13
10/30/13
11/14/13
11/25/13
12/04/13
12/09/13
12/16/13
12/18/13
01/14/14
01/14/14
01/15/14
02/24/14
02/26/14
02/26/14
03/24/14
03/26/14
03/26/14
05/27/14
07/29/14
Opinion on Writ of Certiorari:
No. 34,083
Amethyst v. Terhune
Date Opinion Filed
COA 31,165 05/12/14
Petition for Writ of Certiorari Denied:
None
Date Order Filed
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Wendy F. Jones, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • (505) 827-4925
Published Opinions
No. 32598 2nd Jud Dist Bernalillo CR-07-2414, STATE v J SMITH (dismiss)
05/13/2014
No. 32059 2nd Jud Dist Bernalillo CV-11-3711, D RAINALDI v CITY OF ABQ (reverse and remand)
05/14/2014
No. 32553 2nd Jud Dist Bernalillo CR-11-5110, STATE v B BACA (reverse)
05/14/2014
Unublished Opinions
No. 33080 2nd Jud Dist Bernalillo LR-10-21, STATE v J MASTERSON (affirm)
05/12/2014
No. 33098 2nd Jud Dist Bernalillo CR-09-5182, STATE v N STEAD (affirm)
05/12/2014
No. 33375 1st Jud Dist Rio Arriba CR-10-120, STATE v D GURULE (affirm)
05/12/2014
No. 32094 2nd Jud Dist Bernalillo LR-08-85, STATE v K SANDOVAL (reverse and remand)
05/13/2014
No. 32531 13th Jud Dist Sandoval CR-10-19, STATE v F ROMERO (dismiss)
05/13/2014
No. 33082 2nd Jud Dist Bernalillo LR-10-0007, STATE v R KELSEY (affirm)
05/14/2014
No. 33120 2nd Jud Dist Bernalillo JQ-12-04, CYFD v G GABRIELLE C (affirm)
05/14/2014
No. 33163 3rd Jud Dist Dona Ana JQ-12-41, CYFD v JESSICA G (affirm)
05/14/2014
No. 33491 5th Jud Dist Lea CR-10-85, STATE v M QUIROGA (affirm)
05/14/2014
No. 33499 12th Jud Dist Otero CR-07-496, STATE v P CAIN (affirm)
05/14/2014
No. 32064 6th Jud Dist Grant CR-10-42, STATE v T MADRID (affirm)
05/14/2014
No. 32961 11th Jud Dist San Juan DM-12-120, G CORDOVA v T CORDOVA
05/15/2014
(affirm in part, reverse in part and remand)
No. 33007 2nd Jud Dist Bernalillo DM-08-224, E ACHEN v K BRUYERE (affirm)
05/15/2014
No. 33460 12th Jud Dist Lincoln LR-10-9, STATE v Y COHEN (dismiss)
05/15/2014
No. 32717 3rd Jud Dist Dona Ana CR-08-1101, STATE v D MONTOYA (reverse and remand)
05/15/2014
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
15
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Dated May 2, 2014
Clerk’s Certificate
of Address and/or
Telephone Changes
Michael Allison
The Allison Law Firm, PC
PO Box 25344
Albuquerque, NM 87125-5344
505-204-7639
888-375-7551 (fax)
[email protected]
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PO Box 771
Beaverton, OR 97075-0771
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160 Alder Street
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Bowles Law Firm
PO Box 25186
315 Fifth Street NW (87102)
505-217-2680
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Office of the County Attorney
PO Box 276
102 Grant Street (87501)
Santa Fe, NM 87504-0276
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rabrown@santafecountynm.
gov
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N.M. Human Services
Department
PO Box 2348
2009 Pacheco Street
Santa Fe, NM 87504-2348
505-827-7720
505-827-7729 (fax)
[email protected]
16
Sonya Carrasco-Trujillo
Office of the State Auditor
2540 Camino Edward Ortiz,
Suite A
Santa Fe, NM 87507
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505-827-3512 (fax)
sonya.carrasco-trujillo@osa.
state.nm.us
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Sandia National Laboratories
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[email protected]
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PO Box 8741
Mobile, AL 36608-8741
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Close Law Firm, PC
1803 Rio Grande Blvd. NW,
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505-214-5366 (fax)
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5185 Hunters Chase Road
Las Cruces, NM 88011-2556
575-646-4352
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Law Firm of Alexander
D. Crecca, PC
PO Box 7247
920 Lomas Blvd. NW (87102)
505-385-6517
505-766-9950 (fax)
[email protected]
Tamara L. Ewing
Law Office of Daniel P. Ulibarri
625 Silver Avenue SW,
Suite 300
505-830-0566
505-830-0567 (fax)
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Greta Braker Fischer
Robert White
230 W. 3rd Street
Odessa, TX 79761-5014
432-580-5421
432-337-5465 (fax)
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N.M. Medical Board
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Santa Fe, NM 87505
505-476-7220
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A & R Logistics, Inc.
600 N. Hurstborne Parkway
Louisville, KY 40222
502-690-4806
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68-709 Farrington Hwy.
Haleiwa, HI 96712-1255
808-637-2404
808-637-2404 (fax)
[email protected]
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Keel Nassour, LLP
3839 Bee Cave Road, Suite 100
Austin, TX 78746
512-480-8693
512-480-8170 (fax)
[email protected]
Timothy R. Hasson
New Mexico Legal Aid, Inc.
214C Kit Carson Road
Taos, NM 87571
575-758-2218
575-613-1368 (fax)
[email protected]
Victor Hernandez
Office of the Second Judicial
District Attorney
520 Lomas Blvd. NW
505-222-1052
505-241-1052 (fax)
[email protected].
nm.us
Amme M. Hogan
N.M. Workers’ Compensation
Administration
PO Box 27198
2410 Centre Avenue SE
505-841-6047
505-841-6873 (fax)
[email protected]
Paul E. Houston
7421 Gila Road NE
John Huntley
Apt. Blk 106, Simei Street 1,
#05-806
Singapore 520106
Singapore
+65 90888372
[email protected]
C. Brian James
PO Box 2434
Taos, NM 87571-2434
505-629-3326
[email protected]
Terry L. Johnson
Kemp Smith, LLP
221 N. Kansas, Suite 1700
El Paso, TX 79901-1401
915-546-5273
915-546-5360 (fax)
terry.johnson@kempsmith.
com
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Miami, FL 33176
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Santa Fe, NM 87505
505-988-1067
505-988-1602 (fax)
[email protected]
Michael S. Martinez
Martinez Hsu, PC
PO Box 120249
Arlington, TX 76012-0249
682-237-9484
msmartinez@mhlegalgroup.
com
Darren E. Odesnik
101 Pugliese’s Way, 1st Floor
Delray Beach, FL 33444
561-455-3163
[email protected]
Debra D. Poulin
Law Office of Debra Poulin
7 Avenida Vista Grande,
Suite B7, PMB 431
Santa Fe, NM 87508
505-995-0360
505-466-3466 (fax)
[email protected]
Louis Puccini Jr.
9105 Camino Cometa NE
505-821-0121
[email protected]
of Withdrawal
Effective March 26, 2014:
Lee L. Auerbach
2820 Holliston Avenue
Altadena, CA 91001
William John Darling
PO Box 959
Pagosa Springs, CO
81147-0959
Effective April 2, 2014:
Bonnie Ann Hungerford
2126 Pauline Blvd., Unit 204
Ann Arbor, MI 48103
Thomas Nance Jones
8610 La Sala del Norte NE
Effective January 1, 2014:
Jeffrey K. Kelemen
1505 Bryn Mawr Drive NE
http://nmsupremecourt.nmcourts.gov.
Carolina Martin Ramos
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
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[email protected]
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Sanchez Law Firm
PO Box 3273
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Dorothy C. Sanchez
PO Box 6630
[email protected]
Anderson S. Kressy
4801 Lang Avenue NE,
Suite 110
Brandee R. Lynch
Lynch Firm PLLC
2604 Jefferson Avenue
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Renee Christine Ozer
Law Offices of Renee C.
Ozer, LLC
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Marilyn Mason-Plunkett
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#301-330
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Randall L. Thompson
Law Office of Randall L.
Thompson, PC
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Ann Arbor, Mi 48103
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Wilmette, Il 60091
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Yankee Hill, Ca 95965
Of Change To
Inactive Status
Richard C. Civerolo
1317 Stagecoach Lane Se
As Of April 4, 2014:
Robert William Parker
1200 Bandolina Road
Santa Fe, Nm 87501
Ellen E. Trachman
8661 E. 26Th Avenue
Denver, Co 80238
Nancy Kram Yankow
69 Bahama Avenue
Key Largo, Fl 33037
17
of Name, Address,
and/or Telephone
Changes
As of March 22, 2014:
Miriam Sutherland
Davis Miles McGuire
Gardner, PLLC
320 Gold Avenue SW,
Suite 1401
505-293-9333
866-893-9280 (fax)
[email protected]
18
http://nmsupremecourt.nmcourts.gov.
Susan C. Little
([email protected])
Karen H. Bradley
([email protected])
Deborah A. Nesbitt
([email protected])
Rachel Marie Chiado
([email protected])
Sandra A. Brown
([email protected])
Amber Cash
([email protected])
The firm name, address, and
telephone number are as
follows:
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505-248-2400
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Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Pending Proposed Rule Changes Open for
Comment:
Comment Deadline
Recently Approved Rule Changes
Since Release of 2014 NMRA:
Effective Date
Rules Governing Admission to the Bar
15 102
15 103
15 105
15 107
Admission requirements.
Qualifications.
Application fees
Admission by motion.
06/1/15
06/1/15
06/1/15
06/1/15
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
19
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
Certiorari Granted, March 28, 2014, No. 34,526
Opinion Number: 2014-NMCA-041
Topic Index:
Appeal and Error: Preservation of Issues for Appeal; and Standard of Review
Constitutional Law: Interstitial Analysis; New Mexico Constitution, General;
and Suppression of Evidence
Criminal Law: Shoplifting
Criminal Procedure: Arrest Warrant; Motion to Suppress;
Search and Seizure; Warrantless Arrest; and Warrantless Search
Evidence: Suppression of Evidence
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
ERNEST PAANANEN,
Defendant-Appellee
Docket No. 31,982 (filed January 2, 2014)
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
JACQUELINE FLORES, District Judge
GARY K. KING
Attorney General
NICOLE BEDER
Assistant Attorney General
Santa Fe, New Mexico
for Appellant
Opinion
Michael D. Bustamante, Judge
{1}The State of New Mexico, pursuant
to NMSA 1978, Section 39-3-3(B)(2)
(1972), appeals from a district court order
suppressing physical evidence discovered
by officers during a search of Defendant’s
belongings following his detention for
alleged shoplifting. The State raises two
issues on appeal: (1) that the district court
erred in failing to recognize a search incident to arrest where the officers had probable cause to arrest independent from the
fruits of the search, and (2) that the district
court erred in requiring proof beyond all
doubt for a claim of inevitable discovery.
{2}We hold that the arrest of Defendant
was not lawful under Article II, Section
10 of the New Mexico Constitution.
Therefore, the warrantless search of De20
JORGE A. ALVARADO
Chief Public Defender
B. DOUGLAS WOOD III
Assistant Appellate Defender
for Appellee
fendant’s belongings did not fall within any
well-delineated exception to the warrant
requirement, as it was not incident to a
lawful arrest. The evidence would not have
been inevitably discovered, as any inventory search that may have followed was
dependent upon a legal arrest. Thus, the
district court was correct in suppressing
the items found in Defendant’s backpack
and cigarette pack. Accordingly, we affirm.
BACKGROUND
{3}Sportsman’s Warehouse loss prevention personnel observed Defendant placing two flashlights under his jacket and
leaving the store without paying. Loss
prevention personnel detained Defendant
upon his exit and escorted him to the loss
prevention office. A pat-down search of
Defendant took place, which revealed the
two flashlights, as well as several other
personal items located in Defendant’s
pockets. These items were placed on a table
in the office. Store personnel gathered Defendant’s backpack, which he had initially
checked at the front door, and placed it
on the floor in the office. Defendant was
asked if he had any other merchandise in
his backpack and he responded that he did
not. He was told to sit in a chair and that
the police would be called out.
{4} Albuquerque Police Officers Knight and
Hsu were dispatched to Sportsman’s Warehouse in reference to the alleged shoplifting. When they arrived, they learned from
the store’s loss prevention personnel that
Defendant had been observed placing two
flashlights under his arm and attempting
to leave the store without paying. Officer
Knight then entered the loss prevention
office and immediately told Defendant to
turn around and place his hands behind his
back. Officer Knight handcuffed Defendant
and conducted a pat-down. Officer Knight
asked Defendant if he had any weapons on
him and Defendant responded that store
personnel had already placed the items from
his pockets on the table. Officer Knight then
told Defendant to sit back down in the chair
and proceeded to ask Defendant for his
name, date of birth, social security number,
address, and phone number.
{5}At approximately the same time, Officer Hsu reached into the office, grabbed
Defendant’s backpack, and took it into
the hallway. Officer Hsu opened the bag,
discovering hypodermic needles and
some items that appeared to have come
from Office Depot. The officers began to
question Defendant regarding his drug use
and whether he was presently in possession of drugs, and examined Defendant’s
arms with a flashlight. Defendant denied
being a drug user, except for one time the
previous day, and denied having any drugs
in his possession. Officer Knight expressed
his disbelief as to Defendant’s responses.
{6}Officer Knight asked loss prevention
personnel if they could provide a copy of
the surveillance video and they responded
that it might take some time. Defendant
then asked Officer Knight not to throw his
backpack and bike away. Officer Knight
responded, “we’re not going to throw it
away, we’re going to tag it.”
{7} Approximately fifteen minutes after
Defendant had been handcuffed, Officer
Knight brought Defendant’s backpack
back into the office and began to place
Defendant’s items from the table into
the bag, saying “I’m just going to throw
all this junk in here.” When he picked
Advance Opinions
up Defendant’s cigarette pack, he looked
inside the pack and discovered what appeared to be heroin. Upset with Defendant for lying, Officer Knight told him
that if he had been honest, they might
have been able to work with him to work
his charge off. Instead, Officer Knight
told Defendant that they were “going to
book [him] on the felony.”
{8}The State indicted Defendant on
charges of possession of a controlled substance (felony narcotic - heroin), possession of drug paraphernalia, and two counts
of shoplifting ($250 or less) (one count
involving the flashlights from Sportsman’s
Warehouse and the other count involving
items taken from Office Depot). Prior to
trial, Defendant filed two motions to suppress evidence. The first motion sought to
suppress evidence gathered as a result of an
illegal search and seizure pursuant to the
Fourth Amendment and Article II, Section
10 of the New Mexico Constitution. The
second motion sought to suppress statements made by Defendant to the officers,
under the Fifth, Sixth, and Fourteenth
Amendments and Article II, Sections 15
and 18 of the New Mexico Constitution.
Prior to the suppression hearing, the State
filed a written response to Defendant’s
motions, conceding the suppression of
Defendant’s statements but arguing that
the physical evidence would have been
inevitably discovered in an “inventory
search incident to arrest.”
{9} At the suppression hearing, the State
clarified that it had a two-part argument:
(1) that the searches were incident to arrest, and (2) that in the alternative, the
evidence would have been inevitably
discovered. Officers Knight and Hsu testified at the hearing, and a DVD recording
of the entire interaction within the loss
prevention office, as well as surveillance
footage of the alleged shoplifting, were
entered into evidence. Despite the State’s
initial assertion of search incident to arrest,
both sides focused throughout the hearing on the inevitable discovery doctrine
and particularly on State v. Barragan,
2001-NMCA-086, 131 N.M. 281, 34 P.3d
1157, overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, 275 P.3d
110, relied upon by the State in its written
response for the purpose of establishing
inevitable discovery. Indeed, the district
court’s sole conclusion of law was that the
second factor of the Barragan test1 (whether the officers would in fact have made
the arrest under such circumstances) was
not met. The district court did not make
a ruling regarding whether the searches
were incident to arrest.
ANALYSIS
{10} The two issues for determination
on appeal are: (1) whether the district
court erred in failing to recognize a search
incident to arrest where the officers had
probable cause to arrest independent from
the fruits of the search, and (2) whether
the district court erred in requiring proof
beyond all doubt for a claim of inevitable
discovery. We address each in turn.
1.SEARCH INCIDENT TO LAWFUL
ARREST
A.PRESERVATION
{11} While acknowledging that the State
did assert search incident to arrest at the
suppression hearing, Defendant argues
that the State did not properly invoke a ruling from the district court on that specific
issue and thus did not preserve the issue
for appeal. We do not agree.
{12} We have considered an issue to be
preserved where the court was “armed
with the legal assertions and facts necessary” to rule on the issue and the opposing
party had the opportunity to respond.
State v. Granville, 2006-NMCA-098, ¶
16, 140 N.M. 345, 142 P.3d 933; see also
State v. Figueroa, 2010-NMCA-048, ¶ 11,
148 N.M. 811, 242 P.3d 378 (concluding
that the defendant preserved the issue of
unreasonable expansion of an investigation “even if he did not primarily focus
on the expansion during the suppression
hearing”). While the State’s written response to Defendant’s motion to suppress
physical evidence focused on the inevitable
discovery doctrine, and particularly on
Barragan, the response did contain a vague
argument that the evidence “would have
been discovered through an inventory
search incident to arrest.” The prosecutor
clarified the State’s position at the beginning of the suppression hearing, telling the
district court: “just to clarify, Your Honor,
that—and it might not have been clear
in my motion—the State’s position was
that . . . Defendant was placed under ar-
rest. It was a search incident to arrest, and
alternatively it’s inevitable discovery[.]”
The district court then asked, “So you had
a two-part argument?” and the prosecutor
replied, “Yes.” Yet aside from this clarification, throughout the suppression hearing
both sides, in argument and in the questioning of the two witnesses, focused on
whether the factors laid out in Barragan
were met for purposes of determining
inevitable discovery.
{13} The district court did not make a
ruling regarding whether the searches
were incident to arrest, even though facts
bearing squarely on the issue were adduced
during the hearing. Defendant contends
that because the State did not make an
additional argument regarding its purported search incident theory following
the conclusion of the taking of evidence,
it did not properly invoke a ruling from
the district court.
{14} We acknowledge that the State
had the burden of proof on this issue.
See State v. Weidner, 2007-NMCA-063,
¶ 18, 141 N.M. 582, 158 P.3d 1025 (holding that “[t]he [s]tate has the burden of
proving that the warrantless search was
lawful under the search incident to arrest exception”). However, we recognize
that “whenever possible, the [s]tate and
defendants should be given identical
procedural treatment on appeal, including evenhanded application of the rules
governing the scope of appellate review.”
State v. Alingog, 1993-NMCA-124, ¶ 24,
116 N.M. 650, 866 P.2d 378, rev’d on other
grounds, 1994-NMSC-063, 117 N.M. 756,
877 P.2d 562. Additionally, the preservation rule recognizes that “[i]t is impractical to require trial counsel to develop the
arguments, articulate rationale, and cite
authorities that may appear in an appellate brief.” State v. Gomez, 1997-NMSC006, ¶ 31, 122 N.M. 777, 932 P.2d 1.
{15} Applying these standards to the case
at bar, although the State did not argue
or articulate a rationale supporting the
contention that the searches were justified as incident to arrest, it did assert the
issue and adduce facts to support the legal
principle. Defendant had the opportunity
to respond during the suppression hearing.
We conclude that the issue was preserved
and consider it accordingly.
1 “In order for a [district] court to find in favor of the State [that the evidence would have inevitably been seized during an inventory search], the court would be required to make at least three factual findings: (1) whether, without the illegally seized evidence,
the officers had probable cause to arrest [the d]efendant; (2) whether the officers would in fact have made the arrest under such
circumstances; and (3) whether an inventory that would have revealed the items was standard procedure.” Barragan, 2001-NMCA086, ¶ 18.
21
Advance Opinions
B. STANDARD OF REVIEW
{16} In reviewing a district court’s ruling on a motion to suppress, this Court
draws all reasonable inferences in favor
of the ruling and defers to the district
court’s findings of fact as long as they are
supported by substantial evidence. State v.
Jason L., 2000-NMSC-018, ¶¶ 10-11, 129
N.M. 119, 2 P.3d 856. If the district court
does not state on the record a disbelief of
uncontradicted testimony, we “presume
the court believed all uncontradicted
evidence.” Id. ¶ 11. The ultimate determination of whether a search is reasonable
and meets constitutional standards is a
question of law that is reviewed de novo.
State v. Olson, 2012-NMSC-035, ¶ 9, 285
P.3d 1066.
C.EXCEPTION TO WARRANT
REQUIREMENT
{17} The officers did not have a warrant
to search Defendant’s backpack and cigarette pack. Under the Fourth Amendment
to the United States Constitution and
Article II, Section 10 of the New Mexico
Constitution, warrantless searches are
presumed to be unconstitutional. See
State v. Rowell, 2008-NMSC-041, ¶ 10,
144 N.M. 371, 188 P.3d 95 (holding
that “[a]ny warrantless search analysis
must start with the bedrock principle
of both federal and state constitutional
jurisprudence that searches conducted
outside the judicial process, without
prior approval by judge or magistrate,
are per se unreasonable, subject only to
well-delineated exceptions” (emphasis,
internal quotation marks, and citation
omitted)). According to Rowell, “[o]ne
of the most firmly established exceptions
to the warrant requirement is the right
on the part of the government, always
recognized under English and American
law, to search the person of the accused
when legally arrested.” Id. ¶ 13 (internal
quotation marks and citation omitted).
D. LAWFUL ARREST
{18} The threshold question we must address, then, is whether there was a lawful
arrest in this case, and if so, when did it
occur. The State contends that Defendant
was placed under arrest before the officers searched his backpack and pack of
cigarettes. Defendant argues that there
was not an arrest made until well after the
searches and discovery of the evidence of
the unrelated felony drug offense, on the
theory that the misdemeanor arrest rule
precluded the officers from arresting Defendant for the shoplifting alone without
a warrant.
22
{19} “The question exactly when has an
arrest taken place is in the first instance
for the [district] court to determine.”
Boone v. State, 1986-NMSC-100, ¶ 14, 105
N.M. 223, 731 P.2d 366. We determine
whether there is substantial evidence to
support the finding. Id. Here, the district
court’s findings as to whether the officers
would have arrested Defendant were based
solely on the subjective intent of Officer
Knight, particularly the fact that he never
definitively testified that he would have arrested Defendant. Specifically, the district
court stated that “he was asked several
times whether or not he always arrests or
would have arrested, and he never really
gave a direct, ‘Yes, I would have arrested.’ ”
Commenting further on Officer Knight’s
testimony, the district court stated:
I wrote down his responses. One
was, “They usually go to jail,”
which means “sometimes” [] to
me. Another part of his testimony
was that, “I can’t remember letting somebody go,” which is still
not a definitive, and his last comment on it . . . was, “I most likely
would have made the arrest.”
However, “Fourth Amendment reasonableness is predominantly an objective
inquiry.” Ashcroft v. al-Kidd, __ U.S. __,
___, 131 S. Ct. 2074, 2080 (2011) (internal
quotation marks and citation omitted);
see also Maryland v. Macon, 472 U.S. 463,
470-71 (1985) (holding that “[w]hether
a Fourth Amendment violation has occurred turns on an objective assessment
of the officer’s actions in light of the facts
and circumstances confronting him at the
time, and not on the officer’s actual state
of mind at the time the challenged action
was taken” (internal quotation marks and
citation omitted)).
{20} In this case, the officers were dispatched to Sportsman’s Warehouse for a
shoplifting call. Upon arrival, the officers
met with the store’s loss prevention personnel and learned of the facts leading up
to Defendant’s detention. Officer Knight
then entered the small office where Defendant had been detained by store personnel
and immediately handcuffed Defendant.
Officer Knight patted Defendant down and
asked him if he had any weapons on him.
Officer Knight next told Defendant to sit
down on a chair, which Defendant did.
{21} While Officer Knight did not specifically announce to Defendant that he was
under arrest, he did not indicate that he
was not under arrest or that he was free
to leave. By the use of handcuffs, Officer
Knight increased the amount of restraint
that Defendant was under. “A person is
arrested when . . . freedom of action is
restricted by a police officer and . . . is
subject to the control of the officer.” Boone,
1986-NMSC-100, ¶ 14. This is consistent
with Professor LaFave’s contention that
a “[r]esort to physical restraint is almost
certain to result in a holding that an arrest had been made.” 3 Wayne R. LaFave,
Search and Seizure: A Treatise on the
Fourth Amendment § 5.1(a) (5th ed. 2012).
Our Supreme Court, in determining the
level of formality required for making an
arrest, stated that “as a general rule, the
notice is sufficient when it is such as to
inform a reasonable man of the authority
and purpose of the one making the arrest,
and the reason thereof. Circumstances,
without express words, may afford sufficient notice.” Manning v. Atchison T. &
S. F. Ry. Co., 1938-NMSC-034, ¶ 8, 42
N.M. 381, 79 P.2d 922 (internal quotation
marks and citation omitted). In this case,
Defendant had been placed in the office
by loss prevention personnel, was told that
the police were called, and was clearly on
notice that he was suspected of shoplifting
when Officer Knight arrived and promptly
handcuffed him.
{22} In further support of the proposition that the objective indicia lead to the
conclusion that Defendant was placed
under arrest from the outset, the State
points out that the district court granted
Defendant’s motion to suppress statements made to the officers while he was
detained. While the State did concede
the issue of custodial interrogation prior
to the suppression hearing, the district
court was free to disregard that concession after hearing the testimony of the
two officers and viewing the videotape.
However, after presentation of evidence,
the district court stated that “the State
stipulates that the statements were taken
while . . . Defendant was subject to a
custodial interrogation, and he was not
given Miranda [w]arnings, so that motion is granted.” Implicit in this ruling
is a finding by the district court that
Defendant was either under formal arrest or restrained to the level associated
with formal arrest at the time he was
questioned by the officers. See State v.
Wilson, 2007-NMCA-111, ¶ 1, 142 N.M.
737, 169 P.3d 1184 (holding that the test
for “in custody” for Miranda purposes
is “whether the defendant’s freedom of
movement is restrained by formal arrest
or of the degree associated with a formal
2014 Annual Meeting –
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Dick Minzner
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Leon Howard III
1 p.m.
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2:15 p.m.
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3:30 p.m.
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4:30 p.m.
Adjourn
4:45 p.m.
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8 a.m.
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9 a.m.
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Mark E. Lassiter
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Diane Albert, Jeff Albright, Kameron Kramer
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Gerald Dixon, Daymon Ely, Maureen Sanders
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11:15 a.m.
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11:30 a.m.
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12:30 p.m.
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1:30 p.m.
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2:30 p.m.
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2:45 p.m.
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Advance Opinions
arrest”). Because all statements to the
officers were suppressed, we reason that
the district court found the custody to
have begun at the start of Defendant’s
encounter with the officers.
{23} The district court did not make a
finding as to the objective indicia of arrest,
namely the use of handcuffs and continued
detention in the loss prevention office for
an extended period of time. However,
these facts are uncontradicted. Because the
circumstances, viewed objectively, indicate
that Defendant’s freedom of action was restricted by the officers and he was detained
in a manner consistent with formal arrest,
we determine that Defendant was placed
under arrest at the point he was handcuffed
by Officer Knight.
{24} We recognize that in some circumstances the use of handcuffs does
not elevate a detention to an arrest. For
example, in a traffic stop based on a report
of a drive-by shooting, we held that the
stop was not considered an arrest, even
though the officers made the occupants
exit the vehicle one by one at gunpoint
and then placed each one in handcuffs.
State v. Lovato, 1991-NMCA-083, ¶ 24,
112 N.M. 517, 817 P.2d 251. We stated
that “[w]henever the police confront an
individual reasonably believed to present a
serious and imminent danger to the safety
of the police and public, they are justified
in taking reasonable steps to reduce the
risk.” Id. ¶ 31 (internal quotation marks
and citation omitted). Similarly, in Bailey
v. United States, __ U.S. __, ___, 133 S. Ct.
1031, 1042-43 (2013), the United States
Supreme Court stated that “[d]etentions
incident to the execution of a search
warrant are reasonable under the Fourth
Amendment because the limited intrusion
on personal liberty is outweighed by the
special law enforcement interests at stake.”
Chief among these interests is “risk of
harm to the officers.” Id. at 1038 (internal
In Muehler v. Mena, 544 U.S. 93, 98-99
(2005) the Court held that “[i]nherent in
[the] authorization to detain an occupant
of the place to be searched is the authority
to use reasonable force to effectuate the
detention” and found the use of handcuffs
in that case to be reasonable.
{25} The facts in this case do not indicate the presence of any special law enforcement interests to explain the use of
handcuffs. Instead, the premise expressed
in United States v. Newton, 369 F.3d. 659,
676 (2d Cir. 2004) that “[h]andcuffs are
generally recognized as a hallmark of a
formal arrest” only serves to support our
conclusion that Defendant was arrested
when handcuffed by Officer Knight.
1.Warrantless Arrest Under the
Fourth Amendment
{26} Defendant was arrested without a
warrant. As with searches, we strongly
prefer arrests pursuant to a warrant. State
v. Rivera, 2010-NMSC-046, ¶ 2, 148 N.M.
659, 241 P.3d 1099. The United States Supreme Court addressed warrantless arrests
under the Fourth Amendment in United
States v. Watson, 423 U.S. 411, 417 (1976),
stating that “[t]he usual rule is that a police
officer may arrest without warrant one believed by the officer upon reasonable cause
to have been guilty of a felony” (internal
Watson further explained that this usual
rule encompasses misdemeanors committed in the officers’ presence as well:
The cases construing the Fourth
Amendment thus reflect the
ancient common-law rule that a
peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in
his presence as well as for a felony
not committed in his presence if
there was reasonable ground for
making the arrest.
423 U.S. at 418. Watson dealt with a federal
statute authorizing Postal Service Officers
to arrest without warrant persons they
had reasonable grounds to believe had
committed, or were committing, a felony
offense under the laws of the United States.
The majority in Watson found that the statute reflected a determination on the part
of the legislature that a warrantless arrest
in that situation was reasonable, and the
Court was reluctant to second guess that
determination. Id. at 416. The Court held
that “[t]he necessary inquiry, therefore,
was not whether there was a warrant or
whether there was time to get one, but
whether there was probable cause for the
arrest.” Id. at 417.
{27} New Mexico’s “misdemeanor arrest
rule is a holdover from the common law
distinction between warrantless arrests
for felonies and for misdemeanors.” City
of Santa Fe v. Martinez, 2010-NMSC-033,
¶ 7, 148 N.M. 708, 242 P.3d 275 (internal
quotation marks and citation omitted);
see also Boone, 1986-NMSC-100, ¶ 9
(stating that “[w]e long have held that, in
the absence of statutory authority, a duly
authorized peace officer may make an arrest for a misdemeanor without a warrant
only if he has probable cause or reasonable
grounds to believe that the offense has
been committed in his presence”).
{28} Defendant argues that the classic
formulation of the misdemeanor arrest
rule precluded the officers in this case
from arresting Defendant for misdemeanor shoplifting without a valid arrest
warrant because he did not commit the
crime in the officers’ presence. We disagree. Professor LaFave, in analyzing the
question of whether the “in presence”
requirement is constitutional in nature,
states that “the consensus is that the answer here is . . . no” and that the Supreme
Court has “never held that a warrant
for lesser offenses occurring out of the
presence of an officer is constitutionally
required.” 3 LaFave, supra § 5.1(b) (internal quotation marks omitted). Similarly,
our Supreme Court has recognized that
“[a]lthough the ‘in presence’ requirement
of the rule remained intact, over time,
the common law rule has been further
limited by both the [L]egislature and the
courts.” City of Santa Fe, 2010-NMSC-033,
¶ 7 (alterations, internal quotation marks,
and citation omitted). One such legislative
limitation is NMSA 1978, Section 30-1623 (1965), which allows, without reference
to any “in the presence” requirement, a
law enforcement officer to arrest without
warrant any person he has probable cause
for believing has committed the crime of
shoplifting.
{29} Probable cause means a reasonable
probability that an offense has been or
is being committed. State v. Williamson,
2009-NMSC-039, ¶ 31, 146 N.M. 488, 212
P.3d 376. At the suppression hearing, both
sides essentially agreed that the officers
had probable cause to arrest Defendant
for shoplifting based on the information
that the officers learned from loss prevention personnel. Testimony from Officers
Knight and Hsu, which was uncontradicted at the hearing and not explicitly
found to be incredible by the district court,
was that the officers were dispatched to
Sportsman’s Warehouse in reference to
a shoplifting. Upon arrival, the officers
spoke with loss prevention personnel, who
told the officers that the Defendant was
observed placing two flashlights under
his jacket and then attempting to leave the
store without paying.
{30} Thus, the warrantless arrest of Defendant, statutorily authorized and based
on probable cause, did not run afoul of
the classic misdemeanor arrest rule and
satisfied the requirements of the Fourth
Amendment.
23
Advance Opinions
2.Interstitial Analysis of Warrantless
Arrest Under New Mexico Law
{31} However, a determination of lawfulness under the Fourth Amendment does
not end our inquiry. Article II, Section 10
of the New Mexico Constitution guarantees a “broad right” to be “free from unwarranted government intrusions.” State
v. Gutierrez, 1993-NMSC-062, ¶ 46, 116
N.M. 431, 863 P.2d 1052. Our Supreme
Court has held that it is “well-established
that Article II, Section 10 provides more
protection against unreasonable searches
and seizures than the Fourth Amendment.” State v. Leyva, 2011-NMSC-009,
¶ 51, 149 N.M. 435, 250 P.3d 861; see also
Rivera, 2010-NMSC-046, ¶ 2 (stating that
“[w]e have consistently interpreted the
search and seizure provision of the New
Mexico Constitution . . . as imposing a
greater requirement for a warrant than
its federal counterpart”). Therefore, we
must analyze whether Defendant would
have greater protection under our State
Constitution. Gomez, 1997-NMSC-006,
¶¶ 19, 20, 22. In all cases, “the ultimate
question is whether the search and seizure
was reasonable.” State v. Martinez, 1980NMSC-066, ¶ 18, 94 N.M. 436, 612 P.2d
228.
{32} Our Supreme Court squarely addressed the reasonableness of warrantless
arrests for the first time in Campos v. State,
1994-NMSC-012, 117 N.M. 155, 870 P.2d
117. The Court, siding with the dissenting Justices in Watson, held that in order
for a public felony arrest without warrant
to be reasonable under our constitution
it must be based on both probable cause
and sufficient exigent circumstances.
Campos, 1994-NMSC-012, ¶ 14. Exigent
circumstances “means an emergency
situation requiring swift action to prevent
imminent danger to life or serious damage
to property, or to forestall the imminent
escape . . . or destruction of evidence.” State
v. Copeland, 1986-NMCA-083, ¶ 14, 105
N.M. 27, 727 P.2d 1342.
{33} Campos, like Watson, involved a
statute. Pursuant to NMSA 1978, Section
30-31-30 (1972), an officer had statutory
authority to make a warrantless arrest
where an offense under the Controlled
Substances Act was committed in his
presence, or where he had probable cause
to believe a felony offense under the act
was being, or had been, committed. The
Court held that “[w]arrantless arrests
made under the authority of the statute
may be presumed reasonable but that
presumption may be rebutted under our
interpretation of what is constitutional.”
Campos, 1994-NMSC-012, ¶ 7. The Court
explained that “statutory provisions regarding warrants must be considered in
pari materia with Article II, Section 10
of our constitution.” Id. The Court stated
that “our constitution and case law lead
us to hold that for a warrantless arrest to
be reasonable the arresting officer must
show that the officer had probable cause to
believe that the person arrested had committed or was about to commit a felony
and some exigency existed that precluded
the officer from securing a warrant.” Id. 14.
Thus, the necessity for both probable cause
and exigent circumstances applies even if
the statutory authority for the arrest only
requires probable cause.
{34}While Campos addressed the reasonableness of a warrantless public arrest
in the felony context, we see no reason to
deviate from its rationale in the context
of a misdemeanor public arrest. In fact, it
would be incongruent to require an arrest
warrant in felony cases where no exigent
circumstances exist, but not for misdemeanor cases similarly lacking. “Because
felonies are a greater concern with respect
to public safety, officers are granted more
latitude when conducting investigations
of such crimes.” City of Santa Fe, 2010NMSC-033, ¶ 12. This notion undergirds
the misdemeanor arrest rule’s usual requirement for an arrest warrant where the
offense is not committed in the officer’s
presence. Thus, we hold that the narrowly
drawn exceptions to the misdemeanor arrest rule, including Section 30-16-23, are
subject to the recognized requirement that
the warrantless arrest be reasonable under
Constitution.
{35} In reviewing a warrantless arrest for
exigent circumstances and to determine
reasonableness, we “limit our inquiry . . .
to whether it was reasonable for the officer
not to procure an arrest warrant.” Campos,
1994-NMSC-012, ¶ 15. In this case, the
State presented no evidence of exigent
circumstances and no reason as to why the
officers did not attempt to secure an arrest
warrant. Defendant had been detained
by loss prevention personnel and the
evidence of the crime, two flashlights, had
been removed from his person. Defendant
sat in the loss prevention room, waiting for
officers to arrive, even though he was not
restrained in any way. He was compliant
and cooperative when first encountered by
Officer Knight. The actual act of alleged
shoplifting was captured on video. Under
these facts, Defendant presented no imminent threat to escape or destroy evidence.2
{36} We conclude that Defendant was
placed under arrest when he was handcuffed by Officer Knight. The classic
misdemeanor arrest rule is inapplicable
to this case because there was specific
statutory authority for the arrest even
though the offense was not committed in
the officers’ presence. However, in order to
be reasonable under Article II, Section 10
of the New Mexico Constitution, a public
warrantless arrest must be based on both
probable cause and exigent circumstances.
Although the officers had probable cause
in this case to arrest Defendant, the State
made no showing of exigent circumstances
to support the arrest. Therefore, the warrantless arrest was not valid under the New
Mexico Constitution. The district court
did not err in failing to uphold the search
as incident to a lawful arrest.
2. INEVITABLE DISCOVERY
{37} The State’s second point on appeal
is that the district court required too
high a standard of proof on the issue of
whether the inevitable discovery doctrine, an exception to the exclusionary
rule, applied in this case. This argument
is based on the district court’s finding
that the second Barragan factor was not
met. We need not resolve this argument
given our ruling concerning the impropriety of the arrest. For the inevitable
discovery doctrine to apply, “the lawful
means by which the evidence could have
been attained must be wholly independent of the illegal actions.” State v. Wagoner, 2001-NMCA-014, ¶ 13, 130 N.M.
274, 24 P.3d 306. The State depended
on an anticipated inventory search at
the Metropolitan Detention Center to
provide the “alternate source of evidence
Aware that the opinion resolves the case on a basis likely not anticipated by the parties, we submitted a draft of the opinion to them
for response and allowed supplemental briefing. The State argued in part that it did not have a reasonable opportunity to develop
facts which would support a finding of exigent circumstances. We reject the argument on the common-sense basis that the record
already reflects a complete picture of the events of the day and as a matter of law they cannot support a colorable argument, much
less a finding of exigency.
2
24
Advance Opinions
. . . pending, but not yet realized.” Id. ¶
15. Because the inventory search itself
was contingent on Defendant being arrested and then incarcerated at MDC,
we conclude that the inventory search
was not wholly independent of the illegal
arrest. Therefore, in this case the inevitable discovery doctrine does not save
from suppression the physical evidence
discovered as a result of the search conducted incident to an unlawful arrest.
CONCLUSION
{38} The warrantless search of Defendant’s belongings was not incident to a
lawful arrest under Article II, Section 10 of
the New Mexico Constitution, and therefore did not fall within any well-delineated
exception to the warrant requirement. The
evidence would not have been inevitably
discovered, as any inventory search that
may have followed would not have been
independent of the illegal arrest. Thus, the
district court did not err in suppressing the
items found in Defendant’s backpack and
cigarette pack. We affirm.
{39} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE,
Judge
WE CONCUR:
CYNTHIA A. FRY, Judge
TIMOTHY L. GARCIA, Judge
25
Advance Opinions
Certiorari Granted, March 14, 2014, No. 34,548
Topic Index:
Appeal and Error: Standard of Review
Constitutional Law: Fourth Amendment;
New Mexico Constitution, General; and Suppression of Evidence
Criminal Law: Controlled Substances
Criminal Procedure: Search and Seizure
Plaintiff-Appellee,
v.
NORMAN DAVIS,
Defendant-Appellant
Docket No. 28,219 (filed January 14, 2014)
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
JOHN M. PATERNOSTER, District Judge
GARY K. KING
Attorney General
M. ANNE KELLY
Albuquerque, New Mexico
for Appellee
Opinion
Cynthia A. Fry, Judge
{1} This case is before us on remand from
our Supreme Court. See State v. Davis
(Davis II), 2013-NMSC-028, ¶ 35, 304
P.3d 10. The Supreme Court upheld the
district court’s determination that Defendant voluntarily consented to a search
of his property. Id. ¶ 2. On remand, we
conclude that Article II, Section 10 of the
New Mexico Constitution provides greater
protection than the Fourth Amendment to
the United States Constitution when aerial
surveillance of a person’s home is involved.
We further conclude that, under the New
Mexico Constitution, the aerial surveillance in this case constituted a search
requiring a warrant or an exception to the
warrant requirement. Although Defendant
consented to a physical search of the curtilage after the surveillance search, there
was insufficient attenuation between the
warrantless aerial search and Defendant’s
consent. Accordingly, we reverse the
26
JORGE A. ALVARADO
ALLISON H. JARAMILLO
for Appellant
district court’s denial of Defendant’s motion to suppress the marijuana and other
evidence seized during the search.
BACKGROUND
{2} The New Mexico State Police, in conjunction with the New Mexico National
Guard, undertook a plan called “Operation
Yerba Buena” in order to locate marijuana
plantations in Taos County, New Mexico.
During the operation, a spotter in a helicopter alerted a ground team “to the
presence of a greenhouse and vegetation
in Defendant’s backyard.” Davis II, 2013NMSC-028, ¶ 3. One of the ground team
members, Officer William Merrell, made
contact with Defendant, identified himself,
and said that “the helicopter [was] looking for marijuana plants and they believe
they’ve located some at your residence.”
He then asked Defendant for permission
to search the residence, and our Supreme
Court held that Defendant gave voluntary
consent. Davis II, 2013-NMSC-028, ¶ 34.
{3} Officers searched Defendant’s property
and found marijuana and drug paraphernalia. Defendant was indicted for posses-
sion of marijuana and possession of drug
paraphernalia. Defendant sought suppression of the evidence seized during the
search, arguing, among other things, that
the helicopter surveillance of his property
violated the federal and state constitutions.
The district court denied Defendant’s
motion, determining that the helicopter
surveillance was “just barely permissible.”
Defendant entered a conditional guilty plea
and appealed the denial of his motion to
suppress. On appeal, this Court reversed
the district court’s denial of the suppression motion on the basis that Defendant’s
consent was the result of duress. See State
v. Davis (Davis I), 2011-NMCA-102, ¶ 13,
150 N.M. 611, 263 P.3d 953, rev’d, 2013NMSC-028. The Supreme Court reversed
this determination and remanded the case
with instructions for this Court to consider
Defendant’s remaining arguments.
DISCUSSION
{4}On remand, we address the following arguments raised by Defendant: (1)
whether the aerial surveillance of Defendant’s property prior to the consensual
physical search of his property violated the
Fourth Amendment to the United States
Constitution and Article II, Section 10
of the New Mexico Constitution; and (2)
whether Defendant’s consent to the search
of his property was purged of the taint of
the alleged constitutional violation arising from the aerial surveillance. Because
of our disposition, it is not necessary for
us to consider whether the district court
improperly denied Defendant’s motion
requesting that the court visit his property
during the suppression proceedings. We
address each argument in turn.
A. Standard of Review
{5}“The reasonableness of a search or seizure under the Fourth Amendment and under Article II, Section 10 of the New Mexico
Constitution presents a mixed question of
law and fact, which we review de novo.”
State v. Leyva, 2011-NMSC-009, ¶ 30, 149
N.M. 435, 250 P.3d 861. In reaching the
ultimate issue of reasonableness, we look
“for substantial evidence to support the trial
court’s factual findings, with deference to
the district court’s review of the testimony
and other evidence presented.” Id.
B.Whether the Aerial Surveillance of
Defendant’s Property Violated the
Fourth Amendment of the United
States Constitution and Article
II, Section 10 of the New Mexico
Constitution
{6}We first consider Defendant’s argument that the aerial surveillance of his
Advance Opinions
property prior to the consensual search of
his property violated the Fourth Amendment to the United States Constitution and
Constitution. “Because both the United
States and the New Mexico Constitutions
provide overlapping protections against
unreasonable searches and seizures, we
apply our interstitial approach.” Ketelson,
2011-NMSC-023, ¶ 10 (internal quotation
marks and citation omitted). Under the
interstitial approach, “we first consider
whether the right being asserted is protected under the federal constitution.” Id.
(internal quotation marks and citation
omitted). “If the right is protected by the
federal constitution, then the state constitutional claim is not reached.” Id.; see
also State v. Jean-Paul, 2013-NMCA-032,
¶ 5, 295 P.3d 1072 (stating that “[u]nder
New Mexico’s interstitial approach to state
constitutional interpretation, this Court
should only reach the state constitutional
question if the federal constitution does
not provide the protection sought by the
party raising the issue”). If the right is not
protected by the federal constitution, “we
next consider whether the New Mexico
Constitution provides broader protection,
and we may diverge from federal precedent
for three reasons: a flawed federal analysis,
structural differences between state and
federal government, or distinctive state
characteristics.” Ketelson, 2011-NMSC023, ¶ 10 (internal quotation marks and
citation omitted).
1. Fourth Amendment
{7} We begin with Defendant’s argument
that the aerial surveillance of his property
violated the Fourth Amendment to the
United States Constitution. The Fourth
Amendment guarantees “[t]he right of
the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. Since the United States
Supreme Court’s decision in Katz v. United
States, 389 U.S. 347 (1967), “[t]he touchstone of [a] search and seizure analysis is
whether a person has a constitutionally
recognized expectation of privacy.” State
v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M.
174, 108 P.3d 1032. In the specific context
of the constitutionality of an aerial surveil-
lance operation, the question boils down
to whether such an operation constitutes
a search under the Fourth Amendment.
As noted by a leading commentator, “[i]f
the individual does not have a protected
interest, actions that might otherwise be
labeled a search will not implicate the
Fourth Amendment.” Thomas K. Clancy,
What is a “Search” Within the Meaning of
the Fourth Amendment?, 70 Alb. L. Rev. 1,
at 2 (2006). Thus, in order to label the aerial surveillance in the present case a search,
we must first conclude that Defendant
had a protected interest. In considering
this question, the United States Supreme
Court has applied the two-prong analysis
of privacy expectations set forth in Katz,
where a court considers first whether the
defendant has an actual or subjective expectation of privacy and, second, whether
that expectation is one that society is
prepared to recognize as reasonable. See
Katz, 389 U.S. at 361 (Harlan, J., concurring); see also California v. Ciraolo, 476
U.S. 207, 211-15 (1986) (applying Katz in
addressing whether aerial surveillance of
the defendant’s property was a violation
of the Fourth Amendment).
{8} The two leading United States Supreme
Court cases establish that a defendant does
not have a protected interest under the
Fourth Amendment if an aerial surveillance
of a home and its curtilage1 is conducted
from a public vantage point and if it reveals
something that a person has not protected
from aerial scrutiny. In the first case, Ciraolo,
police received an anonymous tip that the
respondent was growing marijuana in his
backyard, which was enclosed by a six-foot
outer fence and a ten-foot inner fence. 476
U.S. at 209. When officers could not see
what was in the yard from ground level, they
flew a plane in navigable air space over the
house at an altitude of 1000 feet, and they
were able to observe marijuana plants in the
respondent’s yard. Id. The Court concluded
that because the police observations “took
place within public navigable air[]space in
a physically nonintrusive manner . . . , [the]
respondent’s expectation that his garden
was protected from such observation [was]
unreasonable and [was] not an expectation
that society is prepared to honor.” Id. at 21314 (citation omitted).
{9} In the second case, Florida v. Riley, the
contents of the respondent’s greenhouse
were screened from ground level observation by structures, trees, and shrubs, but
some of the greenhouse’s roofing panels
were either translucent or missing. 488
U.S. 445, 448 (1989). An officer was able
to see what he thought was marijuana
through openings in the roof when he
circled the greenhouse in a helicopter at
an altitude of 400 feet. Id. A plurality of the
Court held that the respondent “could not
reasonably have expected that his greenhouse was protected from public or official
observation” from navigable air space. Id.
at 450-51. The plurality noted that there
was no evidence that helicopters flying at
400 feet were rare or that “the helicopter
interfered with [the] respondent’s normal
use of the greenhouse or of other parts of
the curtilage.” Id. at 451-52. In addition,
“no intimate details connected with the use
of the home or curtilage were observed,
and there was no undue noise, and no
wind, dust, or threat of injury.” Id. at 452.
Accordingly, “there was no violation of the
Fourth Amendment.” Id.
{10} These cases teach that an aerial
surveillance is not a search for Fourth
Amendment purposes if the objects observed are in open view from a legal vantage point. See 1 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth
Amendment § 2.3(g) (5th ed. 2012) (explaining that under Ciraolo, “it is no search
to make a naked-eye observation into the
curtilage from navigable air space”). This
is especially true if the surveillance is not
unduly disruptive.
{11} Turning to the present case, the helicopter surveillance passes muster under
the Fourth Amendment. While Defendant
testified that the helicopter was hovering
about fifty feet above him and that it was
“kicking up dust and debris,” there is nothing in the record suggesting that this altitude was outside the range of navigable air
space, nor is there evidence that the helicopter interfered with Defendant’s normal
use of his residence or greenhouse. Officer
Merrell testified that the plastic cover on
Defendant’s greenhouse was “somewhat
clear” and that the plants in the greenhouse
were pressed up against the ceiling.2 One
1 “Generally, the curtilage is the enclosed space of the grounds and buildings immediately surrounding a dwelling house.” State
v. Hamilton, 2012-NMCA-115, ¶ 16, 290 P.3d 271 (internal quotation marks and citation omitted). The curtilage enjoys the same
privacy protections of the home itself. Id.
2 Although the district court found that greenhouses in the area “were constructed of non-transparent fiberglass, wood[,] and
opaque plastic sheeting[,]” the evidence supporting that finding related to a surveillance target other than Defendant.
27
Advance Opinions
of the helicopter spotters testified that,
from the air, marijuana looks “real bright
green, more of a lime green, compared to
the rest of the vegetation in the area.” Thus,
under the rationale articulated in Ciraolo
and Riley, Defendant’s expectation that the
contents of his greenhouse were screened
from public aerial view was unreasonable.
2.Article II, Section 10 of the New
Mexico Constitution
{12} Because the Fourth Amendment
does not protect Defendant’s subjective
expectation of privacy, we now consider
whether the New Mexico Constitution
provides greater protection. See Ketelson,
2011-NMSC-023, ¶ 10 (stating that if
an asserted right is not protected by the
federal constitution, “we next consider
whether the New Mexico Constitution
provides broader protection”).
{13} At issue in this case is Article II,
Section 10 of our state constitution, which
our Supreme Court has consistently
interpreted as providing greater privacy
protections than the Fourth Amendment.
See Leyva, 2011-NMSC-009, ¶ 51 (“It is
well-established that Article II, Section
10 provides more protection against unreasonable searches and seizures than the
Fourth Amendment.”). “Our Supreme
Court has emphasized New Mexico’s
strong preference for warrants in order to
preserve the values of privacy and sanctity
of the home that are embodied by this
provision.” State v. Granville, 2006-NMCA098, ¶ 24, 140 N.M. 345, 142 P.3d 933.
{14} With this in mind, we discern two
threads of analysis in Ciraolo and Riley that
are inconsistent with our jurisprudence
under Article II, Section 10. The first involves the United States Supreme Court’s
focus on the fact that law enforcement personnel in aircraft were no different from
passengers in aircraft who could plainly
see the marijuana in question. The second
thread involves an emphasis on various
factors meant to assess the intrusiveness
of the aerial surveillance.
a.Airborne Police Are Not the
Equivalent of Airborne Members
of the Public
{15} With respect to the first aspect of the
United States Supreme Court’s analysis, the
Court noted in Ciraolo that “[a]ny member
of the public flying in this air[]space who
glanced down could have seen everything
that these officers observed.” 476 U.S. at
213-14. And in Riley, the Court observed
that the accused “could not reasonably
have expected that his greenhouse was
protected from public or official observation from a helicopter had it been flying
within the navigable air[]space for fixedwing aircraft.” 488 U.S. at 450-51.
{16} The only New Mexico cases addressing aerial surveillance were decided before
our Supreme Court began interpreting
Article II, Section 10 more broadly than
the Fourth Amendment. 3 These older
cases, decided in 1983, seemingly anticipated the United States Supreme Court’s
analysis in Ciraolo and Riley (decided in
1986 and 1989, respectively) and assessed
the propriety of aerial surveys under the
Fourth Amendment in part by considering
what could be seen from the air. See State
v. Rogers, 1983-NMCA-115, ¶¶ 2, 7, 100
N.M. 517, 673 P.2d 142 (concluding that
the defendant had no reasonable expectation of privacy “with respect to marijuana
plants protruding through holes in his
greenhouse roof to the extent of their
visibility from the air”); State v. Bigler,
1983-NMCA-114, ¶ 8, 100 N.M. 515, 673
P.2d 140 (holding that the defendant had
no reasonable expectation of privacy in his
marijuana crop “to the extent of visibility
from the air”).
{17} In contrast to the rationale stated
in these cases, New Mexico cases decided
since Rogers and Bigler have emphasized
that “Article II, Section 10, protects citizens from governmental intrusions, not
intrusions from members of the general
public.” Granville, 2006-NMCA-098, ¶ 29.
As the dissent in Ciraolo observed, there
is a “qualitative difference between police
surveillance and other uses made of the
air[]space. Members of the public use the
air[]space for travel, business, or pleasure,
not for the purpose of observing activities
taking place within residential yards.” 476
U.S. at 224 (Powell, J., dissenting). Because
New Mexico’s post-Rogers/Bigler case law
has interpreted Article II, Section 10 more
broadly than the Fourth Amendment, we
conclude that police flying over a residence
strictly in order to discover evidence
of crime, without a warrant, “does not
comport with the distinctive New Mexico
protection against unreasonable searches
and seizures.” Garcia, 2009-NMSC-046, ¶
27.
b. Intrusiveness Factors Are Not Useful
{18} As to the second type of analysis
under the Fourth Amendment, the Court
in Riley seemingly assessed the intrusiveness of the aerial surveillance when it
observed that “there was no undue noise,
and no wind, dust, or threat of injury.”
488 U.S. at 452. And in Rogers, this Court
also evaluated similar factors, such as the
“altitude of the aircraft, use of equipment
to enhance the observation, frequency of
other flights[,] and intensity of the surveillance.” 1983-NMCA-115, ¶ 9. The district
court in the present case relied heavily on
factors similar to those mentioned in Rogers and Riley when it assessed the propriety
of the helicopter surveillance.
{19} We fail to see how an analysis of
intrusiveness factors aids in the determination of whether an aerial surveillance
is a search. The privacy interest protected
by Article II, Section 10 is not limited
to one’s interest in a quiet and dust-free
environment. It also includes an interest
in freedom from visual intrusion from
targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the
intrusion is performed. Indeed, it is likely
that ultra-quiet drones will soon be used
commercially and, possibly, for domestic
surveillance. Michael J. Schoen, Michael
A. Tooshi, Confronting the New Frontier
in Privacy Rights: Warrantless Unmanned
Aerial Surveillance, 25 No. 3 Air & Space
Law 1 (2012); see Intelligence Advanced
Research Projects Activity, “Great Horned
Owl (GHO) Program,” http://www.iarpa.
gov/Programs/sc/GHO/gho.html. Such
advances in technology demonstrate the
increasingly diminished relevance of intrusiveness factors, as courts have regarded
them in the past, in the analysis of what
constitutes a search.
c.The Aerial Surveillance in This
Case Constituted a Search Under
Article II, Section 10
{20} We decline to perpetuate both the
analysis in the United States Supreme
Court’s cases and in Rogers and Bigler
focusing on what is openly visible to the
public from the air and the analysis in Rogers based on intrusiveness factors. Since
Rogers and Bigler were decided, our courts
have diverged from the Fourth Amendment, and the analysis in those cases fails
to “serve the robust character and honored
history of [Article II, Section 10] with
special attention to its purpose of police
regulation.” Garcia, 2009-NMSC-046, ¶
31. Instead of relying on visibility and intrusiveness factors, we adopt the view that
3 See State v. Garcia, 2009-NMSC-046, ¶ 28, 147 N.M. 134, 217 P.3d 1032 (stating that our Supreme Court diverged from Fourth
Amendment analysis for the first time in 1989).
28
Advance Opinions
if law enforcement personnel, via targeted
aerial surveillance, have the purpose to
intrude and attempt to obtain information
from a protected area, such as the home or
its curtilage, that could not otherwise be
obtained without physical intrusion into
that area, that aerial surveillance constitutes a search for purposes of Article II,
Section 10. We explain the evolution of
our view below.
{21} We find persuasive the analysis in
Kyllo v. United States, 533 U.S. 27 (2001).
While Kyllo did not involve aerial surveillance, its determination that seeking
information through “sense-enhancing
technology” can constitute a search aptly
applies to aerial surveillance, in our view.
533 U.S. at 34. Kyllo involved the question
“whether the use of a thermal-imaging
device aimed at a private home from a
public street to detect relative amounts of
heat within the home constitutes a ‘search’
within the meaning of the Fourth Amendment.” 533 U.S. at 29. On suspicion that the
petitioner was growing marijuana in his
home, a police officer scanned the home
in the early morning hours from a position across the street from the residence
and from the street behind the house. Id.
at 29-30. The scan showed that sections of
the home were relatively hotter than other
sections, which suggested to police that the
petitioner was using halide lights to grow
marijuana. Id. at 30. Based in part on the
scan’s results, police obtained a search warrant and discovered “an indoor growing
operation.” Id.
{22} In holding that the scan constituted
a search under the Fourth Amendment,
the Court first reviewed its jurisprudence,
whose definition of a search evolved from
the notion of common law trespass to the
two-prong Katz assessment of whether
the person has “manifested a subjective
expectation of privacy” that society recognizes as reasonable. Kyllo, 533 U.S. at 31-33
omitted). The Court then noted that “[i]t
would be foolish to contend that the degree
of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected
by the advance of technology.” Id. at 3334. While acknowledging the difficulty of
applying the Katz test to searches of “areas
such as telephone booths, automobiles, or
even the curtilage,” Kyllo, 533 U.S. at 34,
the law at a minimum recognizes that the
expectation of privacy in the interior of
the home is reasonable when the police
“obtain[] by sense-enhancing technology
any information regarding the interior of
the home that could not otherwise have
been obtained without physical intrusion
into a constitutionally protected area, . . . at
least where . . . the technology in question
is not in general public use.” Id. (internal
{23} We believe the Kyllo Court’s analogy
to physical invasions is in harmony with
our jurisprudence under Article II, Section 10. Given our “strong preference for
warrants in order to preserve the values of
privacy and sanctity of the home,” Granville, 2006-NMCA-098, ¶ 24, it follows that
police should be required to secure a warrant before attempting to obtain, through
flight, information from a home or its
curtilage that they would not otherwise be
able to obtain without physical intrusion.
{24}While Kyllo’s requirement that the
sense-enhancing technology not be in
general use by the public makes sense in
the context of that case, we place no reliance on this as a factor. The only rationale
for that requirement seems to be that
it provides a way to distinguish police
conduct from conduct by a member of
the public in order to acknowledge the
Fourth Amendment’s protections against
government intrusion. A better means of
protecting against government intrusion—
and one that is consistent with Article II,
Section 10 jurisprudence—is the addition
of a requirement that the goal of government personnel is to intrude. As Professor
Clancy put it, “[i]n assessing whether a
search has occurred, inquiry must be made
into whether it is the goal of the government agent to learn something about the
target when engaging in an activity or
employing a technological device.” Clancy,
supra, at 39. This inquiry also permits the
government to use evidence obtained inadvertently by law enforcement personnel.
See, e.g., Clancy, supra, at 41 (hypothesizing that it would not be a search if a police
officer tripped and fell on a bus passenger’s
soft-sided luggage and, in bracing himself,
felt a brick-like object in the luggage).
{25} This inquiry, plus the inquiry as to
whether the information could otherwise
only be obtained via physical intrusion,
“add[s] clarity of meaning for decisionmakers” like police and magistrates
contemplating the issuance of warrants.
Clancy, supra, at 39. Our Supreme Court
has stated that clarity for such decision
makers is an important consideration
under Article II, Section 10. See Garcia,
2009-NMSC-046, ¶ 32 (explaining that
the indeterminancy of Fourth Amendment analysis “is cause for concern in that
it fails to provide law enforcement with a
useful framework with which to predict
when its actions will trigger constitutional
scrutiny”).
{26} Putting this analysis in the context
of aerial surveillance, such surveillance
constitutes a search under Article II, Section 10 if (1) the government agent(s)
involved intend to obtain information
from a target or targets through aerial
surveillance, and (2) if the information to
be obtained through aerial surveillance
could not otherwise be obtained without
physical intrusion into the target’s home or
curtilage. If the surveillance constitutes a
search, then the government agent(s) must
obtain a search warrant before conducting
the surveillance, absent an exception to
the warrant requirement, such as exigent
circumstances.
{27} In the present case, the evidence
presented to the district court established
that the agents involved in Operation
Yerba Buena undertook helicopter surveillance of several homes, including
Defendant’s home, with the purpose of
finding marijuana plantations. In addition,
the evidence suggesting that Defendant
was growing marijuana in his greenhouse
could not have been obtained without aerial surveillance unless the agents physically
invaded the greenhouse. Consequently,
the helicopter surveillance of Defendant’s
property constituted a search requiring
probable cause and a warrant. Because
the agents did not obtain a warrant, they
had to rely on an exception to the warrant
requirement. In this case, our Supreme
Court determined that they obtained from
Defendant valid consent to search. The
question thus becomes whether Defendant’s consent was sufficiently attenuated
from the illegal search to be purged of the
illegality’s taint.
C.Defendant’s Consent Was Not
Sufficiently Attenuated From the
Illegal Search
{28} “The fruit of the poisonous tree
doctrine bar[s] the admission of legally
obtained evidence derived from past
police illegalities.” State v. Monteleone,
2005-NMCA-129, ¶ 16, 138 N.M. 544, 123
P.3d 777 (alteration in original) (internal
quotation marks and citation omitted). Before considering the question of whether
Defendant’s consent was tainted by the
prior illegal helicopter search, we first address the State’s argument that Defendant
failed to preserve the question. The State
maintains that Defendant did not specifically argue at the suppression hearing that
29
Advance Opinions
his consent was tainted, and the district
court did not address the taint issue because it found that Defendant’s consent
was voluntary.
{29} We conclude that Defendant was
not required to expressly raise the fruit
of the poisonous tree doctrine because
the district court determined that the
helicopter surveillance was constitutional
and, therefore, there was no reason for
Defendant to have raised or argued that
the doctrine applied. See State v. Ingram,
1998-NMCA-177, ¶ 9, 126 N.M. 426, 970
P.2d 1151 (“Evidence which is obtained
as a result of an unconstitutional search
or seizure may be suppressed under the
exclusionary rule.” (internal quotation
marks and citation omitted)).
{30} Because we disagree with the district
court’s determination, we now consider
whether Officer Merrell obtained Defendant’s consent “by means sufficiently distinguishable to be purged of the primary
taint” of the illegal helicopter surveillance
of Defendant’s property. Monteleone,
2005-NMCA-129, ¶ 17 (internal quotation marks and citation omitted). “If
there is sufficient attenuation between the
illegality and the consent to search, the
evidence is admissible.” Id. “To determine
whether there was sufficient attenuation,
we consider the temporal proximity of the
[illegality] and the consent, the presence
of intervening circumstances, and the
flagrancy of the official misconduct.” Id.
omitted).
{31} Here, Officer Merrell obtained Defendant’s consent through exploitation of
the illegal helicopter search. The evidence
suggesting that Defendant was growing
marijuana was obtained via the aerial
surveillance of his property. Officer Merrell then approached Defendant, who was
standing outside his home, and obtained
consent. Davis II, 2013-NMSC-028, ¶ 5.
Given that Officer Merrell entered Defendant’s property solely as a result of information obtained in the helicopter search,
as well as the lack of any intervening circumstances between the aerial search and
Defendant’s consent, there was insufficient
attenuation to purge Defendant’s consent
of the taint resulting from the unconstitutional aerial surveillance. See State v.
Portillo, 2011-NMCA-079, ¶ 25, 150 N.M.
187, 258 P.3d 466 (“It is established law
that evidence discovered as a result of the
exploitation of an illegal [search or] seizure
must be suppressed unless it has been
purged of its primary taint.”). The district
30
court erred in holding the surveillance to
be constitutional instead of determining
it to be unconstitutional and suppressing
the evidence obtained from the physical
search. Because we reverse the district
court’s denial of Defendant’s suppression
motion, we need not address Defendant’s
argument that the district court erroneously denied his motion for a judicial view.
CONCLUSION
{32} For the foregoing reasons, we reverse the district court’s denial of Defendant’s suppression motion.
I CONCUR:
RODERICK T. KENNEDY, Chief Judge
JONATHAN B. SUTIN, Judge
(specially concurring).
SUTIN, Judge (specially concurring).
{34} I concur in the Opinion’s insightful and forward-thinking application of
Constitution. I have some additional
thoughts.
Weighing Factors
{35} Deciding warrantless aerial surveillance cases, by weighing factors of altitude,
FAA regulations, extent of physical intrusion, location of the property, means of
surveillance (as the district court found,
helicopter swooping to lower altitude and
men on a mission as if they were in a state
of war searching for weapons or terrorist
activity), and complaint anonymity, is
fraught with arbitrary or painstakingly difficult and subjective determinations. Note
the district court’s “just barely permissible”
characterization of the “helicopter search,”
and the court’s characterization of the facts
as “teeter[ing] dangerously close to exceeding the limitations implicit in the Fourth
Amendment.” The weighing approach is
less effective than Justice Scalia’s approach
in Kyllo. Citizens have an expectation of
privacy with respect to the police looking into their homes and curtilage. If the
police, as in this case, are purposefully
targeting a home, curtilage, or residential
area to discover illegal marijuana growing activity by, as the district court in
this case characterized it, “flying around
generally in an effort to spot greenhouses”
in a “random investigation,” the police
should have to pass warrant muster as a
condition precedent to conducting the
aerial surveillance. This requirement is
restrictive, no doubt. But the better judgment in a circumstance like that before
us is to protect the privacy of the home
and curtilage and require a validly issued
warrant for the targeted surveillance. Here,
Defendant had an expectation of privacy
with regard to his curtilage. The targeted
surveillance was a search. The search was
warrantless and presumed to be unlawful.
No exception overcame the presumption.
Taint of Consent
{36} I offer another basis on which we
ought to be able to hold that the warrantless and unreasonable aerial surveillance
search tainted Defendant’s consent. The
district court determined factually that the
spotter could not have observed marijuana
and that any belief the spotter had was
speculative. After noting that “ ‘Carson’
area plus ‘greenhouse’ propelled the spotting officer to conclude by speculation that
behind the walls of the greenhouses were
prohibited plants[,]” the court perceived
“a surreal ‘profiling’ aspect to the police
behavior.” Stated differently, the court
determined that it was objectively unreasonable to believe that the spotter had, in
fact, observed marijuana, thereby rendering such “observation” by the spotter to
be mere speculation. Speculation does
not give rise to reasonable suspicion. See
Leyva, 2011-NMSC-009, ¶ 23 (“Reasonable suspicion must consist of more than
an officer’s hunch that something is amiss;
it requires objectively reasonable indications of criminal activity.”). Because Officer Merrell’s statement to Defendant that
“marijuana had been identified growing
in his greenhouse from the air” was based
exclusively on the spotter’s speculation, by
extension, it was unfounded in reasonable
suspicion. See State v. Vandenberg, 2002NMCA-066, ¶ 18, 132 N.M. 354, 48 P.3d
92 (recognizing that “reasonable suspicion
based on information obtained from another officer require[s] that [the] officer
providing information must himself have
possessed reasonable suspicion”), reversed
on other grounds by 2003-NMSC-030, 134
N.M. 566, 81 P.3d 19. Thus, Defendant’s
encounter with Officer Merrell was essentially a circumstance in which a police
officer, without reasonable suspicion or
a warrant, approached Defendant at Defendant’s own home and accused him of
engaging in criminal activity. This is not
reasonable police conduct at the front
door of a person’s home when the officer
does not have a probable cause basis on
which to make the accusation. The spotter’s non-credible, speculative belief that
gave rise to Officer Merrell’s factually
incorrect statement was causally related
Advance Opinions
to Defendant’s consent, and therefore the
consent was tainted. See State v. Figueroa,
2010-NMCA-048, ¶ 35, 148 N.M. 811,
242 P.3d 378 (holding that the defendant’s
consent that was sought and granted “on
the heels of ” improper police questions
was tainted).
Fourth Amendment
{37} I would hold the surveillance search
unreasonable under the Fourth Amendment as well as under Article II, Section
10 on the basis that the expectation of
privacy analyses in cases that involve targeted aerial surveillance investigations and
invasions into a home and curtilage using
modern technology, whether thermal
imaging technology or a helicopter, should
now be controlled by Justice Scalia’s Kyllo
analysis and test as set out earlier in the
Opinion of this Court.
31
Advance Opinions
Certiorari Denied, March 28, 2014, No. 34,569
Topic Index:
Appeal and Error: Standard of Review
Constitutional Law: Suppression of Evidence
Criminal Law: Driving While Intoxicated
Criminal Procedure: Motion to Suppress; Reasonable Suspicion;
Right to Speedy Trial; and Right to Trial by Jury
Evidence: Suppression of Evidence
Plaintiff-Appellee,
v.
JOSEPH SALAS,
Defendant-Appellant
Docket No. 32,585 (filed February 11, 2014)
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
ABIGAIL ARAGON, District Judge
GARY K. KING
Attorney General
CORINNA LASZLO-HENRY
for Appellee
Opinion
Jonathan B. Sutin, Judge
{1}Police Officer Gene Gonzales, along
with Officer Jonathan Wright, stopped
Defendant Joseph Salas after the officers
observed Defendant driving erratically.
Defendant ultimately was arrested for
driving while intoxicated (DWI). After
losing motions to suppress and to dismiss
for violations of his speedy and jury trial
rights, Defendant entered a conditional
plea of guilty to DWI. On appeal, he
challenges the stop for lack of reasonable
suspicion, and he also contends that he was
denied his constitutional speedy and jury
trial rights.1 Determining that Defendant’s
JORGE A. ALVARADO
KATHLEEN T. BALDRIDGE
for Appellant
appellate points are meritless, we affirm
Defendant’s conviction.
BACKGROUND
{2}The facts and the court’s findings are
not contested. The facts involving the stop
and arrest derive from the suppression
hearing testimony. The two officers observed Defendant driving southbound on
a highway consisting of two lanes in each
direction with a median in between. The
officers were traveling behind Defendant’s
vehicle in a New Mexico State Police patrol
car. Officer Gonzales testified that he observed Defendant’s vehicle cross over the
dashed lines on the road. Officer Gonzales
then witnessed Defendant make a sudden left turn from the far right lane into
a driveway, without using his turn signal.
Officer Gonzales testified that while making this turn, Defendant’s vehicle crossed
over the other southbound lane, the median, and both northbound lanes. Officer
Wright testified that he observed Defendant’s vehicle fail to maintain its traffic
lane and then make a left turn from the far
right lane. Officer Wright further testified
that he did not see any apparent reason for
Defendant’s driving behavior. Based on the
officers’ testimony and on an audio-visual
recording relating to the stop reviewed by
the district court judge in chambers, the
district court made uncontroverted, verbal
findings that Defendant’s vehicle “drifted
approximately one-half car length into the
parallel lane, across the dash[ed] white
line[,]” Defendant “continued to travel
back into his original right lane, and then
abruptly made a left turn from the far right
lane without using his signal.” Defendant
acknowledged his erratic driving verbally
to Officer Gonzales. Defendant received
a warning citation for failing to maintain
his lane, contrary to NMSA 1978, Section
66-7-317(A) (1978), and he signed the
warning citation, agreeing that the traffic
violation had occurred. Officer Gonzales
believed that Defendant violated traffic
laws, and he also believed that Defendant’s
driving was indicative of possible impairment.
{3}Defendant was charged with DWI
in magistrate court on April 29, 2011.
On the day of trial, January 19, 2012, but
before trial commenced, the State orally
dismissed the charge. On January 23, 2012,
the State filed a notice of dismissal of the
charge, and on January 31, 2012, it re-filed
the charge in district court, claiming that
the magistrate court, before trial, had
suppressed substantial proof in the State’s
case—the dash-cam video related to the
stop.
{4} Defendant moved to dismiss in
district court on March 12, 2012, arguing that, pursuant to Magistrate Court
Rule 6-506(B)(1) NMRA’s six-month
requirement, the case should be dismissed
because the time had run. Defendant recognized that, barring improper motive,
the State could dismiss the magistrate
court case and re-file in district court,
1 Defendant asserts the protections of both the United States and New Mexico Constitutions. Defendant does not engage in any
argument or analysis as to whether he should receive greater protection under the New Mexico Constitution than that available under
the United States Constitution. See State v. Gomez, 1997-NMSC-006, ¶¶ 20-23, 122 N.M. 777, 932 P.2d 1 (adopting and analyzing the
interstitial approach to constitutional interpretation). Nor does he show where such an argument was preserved in the district court.
See id. ¶ 23 (requiring a defendant to assert in the trial court that the state constitutional provision at issue should be interpreted
more expansively than the federal counterpart). We therefore do not address the issue.
32
Advance Opinions
see State v. Heinsen, 2005-NMSC-035,
¶¶ 23, 25, 138 N.M. 441, 121 P.3d 1040,
but argued that the State failed to dismiss
prior to trial and that the State’s motive
in dismissing was improper because it
was done to circumvent Defendant’s due
process rights based on the 182-day limit
in Rule 6-506(B)(1) for trying the case in
magistrate court. Defendant argued that
the State’s dismissal of the magistrate
court DWI charge was done solely to
give the prosecution time to assure that
Officer Gonzales, who was not present
for the scheduled magistrate court trial,
could attend trial and testify and that the
State simply wanted to get “a second bite
at the apple” after the State’s unpreparedness at trial in the magistrate court. See
State v. Ahasteen, 1998-NMCA-158, ¶ 22,
126 N.M. 238, 968 P.2d 328 (stating that a
prosecutor’s charging discretion is limited
when based on improper motive), abrogated on other grounds by State v. Savedra,
2010-NMSC-025, 148 N.M. 301, 236 P.3d
20.
{5} The State filed its response on March
23, 2012, to Defendant’s motion to
dismiss, indicating that the controlling
rule was District Court Rule 5-604(B)
NMRA and that Defendant’s motion was
governed by the five factors set out in that
rule derived from Barker v. Wingo, 407
U.S. 514 (1972), Savedra, 2010-NMSC025, and State v. Garza, 2009-NMSC-038,
146 N.M. 499, 212 P.3d 387. The motion
to dismiss then turned into a question
whether Defendant was denied a speedy
trial under the factors stated in Rule
5-604(B). The motion to dismiss was
heard on May 14, 2012. Afterward, in a
letter to the parties dated May 30, 2012,
citing Barker, Garza, and State v. Sharp,
2012-NMCA-042, 276 P.3d 969, the court
determined that “the State had a reasonable basis to file a Nolle Prosequi in the
[magistrate court],” and further, based
on its analysis of the speedy trial factors
in the controlling cases, the court found
that, although the case was a simple one,
Defendant was responsible for the delay of
which he complained, he failed to assert a
demand for speedy trial, and he failed to
show prejudice.
{6}On June 8, 2012, Defendant filed a
motion to reconsider the court’s May 30,
2012, decision, arguing that Sharp was not
applicable and that the case involved instead
“the determination of whether the State’s
dismissal in the [m]agistrate [c]ourt and refiling in the [d]istrict [c]ourt were properly
motivated.” Simultaneously, Defendant filed
requested findings of fact and conclusions
of law related to his motion to dismiss, in
which he reiterated the applicability of Rule
6-506(B)(1) and his argument in regard to
the prosecution’s improper motive. On June
11, 2012, the court entered an order denying
Defendant’s motion to dismiss.
{7}During the pendency of Defendant’s
motion to dismiss based on his purported
speedy trial right, Defendant, on April 25,
2012, filed a demand for jury trial. The
State moved to strike the demand on June
1, 2012. The court never ruled on the motion.
{8} On June 12, 2012, Defendant moved
to suppress all evidence arising from the
traffic stop. Defendant did not testify
at the suppression hearing, which occurred on July 10, 2012. Officers Gonzales and Wright testified. At the close of
the hearing, based on the totality of the
circumstances and State v. Hubble, 2009NMSC-014, 146 N.M. 70, 206 P.3d 579, the
district court denied Defendant’s motion
to suppress.
{9}Defendant and the State entered into
a conditional plea and disposition agreement dated and signed October 9, and
filed October 10, 2012. At Defendant’s
sentencing hearing on October 9, 2012,
the prosecutor discussed the conditions
of the plea and specifically noted that the
agreement reserved for appeal the issue
of “the court’s denial of the motion to
suppress.” The court received assurances
from Defendant that he understood the
agreement, he was advised of his rights,
and he had not been promised anything
other than what was contained in the
agreement. The agreement stated that
Defendant, by pleading guilty to the DWI
charge, understood that he was giving
up the right to trial by jury. In addition,
Defendant expressly waived his right to
appeal the DWI conviction that resulted
from entry of the agreement. Defendant
reserved only his right to appeal the court’s
denial of his motion to suppress, at the
same time expressly giving up all motions
and defenses that he had made or raised
or could assert.
{10} On October 26, 2012, the court
entered a judgment and sentence that
referred to the conditional plea and disposition agreement as having been “accepted and recorded by the [c]ourt[,]” yet
stated that “Defendant reserves the right
to appeal the [c]ourt’s decision regarding
the denial of the [m]otion to [s]uppress
filed by . . . Defendant, as stated in the
conditional plea agreement entered into
on October 9, 2012, and the right[s] to any
other issues arising and/or pertaining to
this case.” The parties do not indicate, and
nothing in the record before us indicates,
how or why the court added language to
the parties’ plea and disposition agreement
purporting to broaden the agreement to
permit a carte blanche appeal. Nor is there
anything in the record indicating why the
prosecutor did not at any time after the
judgment and sentence was entered bring
this apparent broadening of Defendant’s
appeal right to the court’s attention as
inappropriate or unauthorized action by
the court.
{11} Defendant saw the breadth given to
him by the judgment and sentence and he
appealed not only the court’s denial of his
motion to suppress, but also the State’s alleged inappropriate dismissal and re-filing
of the charges and the related violation of
his speedy trial right, and the violation of
his right to a jury trial.
DISCUSSION
The Suppression Issue
{12} “In reviewing a trial court’s denial of
a motion to suppress, we observe the distinction between factual determinations
which are subject to a substantial evidence
standard of review and application of law
to the facts, which is subject to de novo
review. We view the facts in the manner
most favorable to the prevailing party and
defer to the district court’s findings of fact
if substantial evidence exists to support
those findings. Questions of reasonable
suspicion are reviewed de novo by looking at the totality of the circumstances
to determine whether the detention was
justified.” Hubble, 2009-NMSC-014, ¶ 5
(alteration, internal quotation marks, and
citations omitted).
{13} Section 66-7-317(A), the violated
traffic law for which Defendant received
and signed a warning citation, requires
that “a vehicle shall be driven as nearly as
practicable entirely within a single lane
and shall not be moved from such lane until the driver has first ascertained that such
movement can be made with safety[.]”
Defendant contends that the officers did
not have reasonable suspicion to stop him
based on his driving conduct because “no
hazard or peril was created by his actions.”
{14} Under the totality of circumstances,
the district court did not err in denying
Defendant’s motion to suppress. The officers’ observations gave rise to reasonable
inferences and thus reasonable suspicion
that one or more traffic offenses had occurred. See State v. Anaya, 2008-NMCA-
33
Advance Opinions
020, ¶¶ 13-15, 143 N.M. 431, 176 P.3d 1163
(indicating that where there exist facts to
support the inference that a law has been
violated, a stop is objectively reasonable,
even in instances in which the facts articulated by the officer support reasonable
suspicion as to violation of an offense
other than that for which the motorist
was stopped). While there may not have
been other traffic at the particular instance
of Defendant’s erratic driving, Officer
Wright recalled seeing vehicles traveling
in the northbound lanes (but recalling
no safety issue at the time of Defendant’s
turn), and the officers’ police car was traveling southbound some distance behind
Defendant. Officer Gonzales identified
himself as other traffic on the roadway
that was affected by the movements of
Defendant’s vehicle. Officer Gonzales also
suggested that any overcorrecting might
cause a rollover accident. Further, Officer
Gonzales believed that Defendant’s erratic
driving indicated possible impairment,
and Officer Wright could not think of a
justification for Defendant’s driving activity.
{15} Also significant in the mix, erratic
driving, such as that in this case, can well
present a concern in the judgment of an
experienced police officer about safety
and danger to northbound or southbound
traffic were Defendant to have been permitted to continue his travels. Nothing
in the record indicates that Defendant
ascertained that his movements could be
made with safety, that he was conscious
of or focused on safety or risk, or that his
condition was such that he would not
continue to drive erratically. A reasonable
inference could be drawn that Defendant
drove in a manner that would indicate
that he was not concerned about possible
vehicular travel coming from behind or
northbound. The officers had legitimate
and reasonable suspicion that lane and
illegal turn-related traffic offenses occurred. Officer Gonzales had legitimate
and reasonable suspicion of impairment
due to Defendant’s erratic driving. And
nothing in the record indicates that the
officers had any reason to believe that
Defendant’s behavior could be justified
by any existing circumstance. The officers
certainly would have justified concern
about Defendant continuing to drive.
We are persuaded that, in the balance,
and under the totality of circumstances,
the stop advanced the public interest
well over the minimal intrusion into
Defendant’s liberty interest. See State v.
34
Contreras, 2003-NMCA-129, ¶¶ 13-16,
134 N.M. 503, 79 P.3d 1111 (discussing
the balancing test for determining the reasonableness of a traffic stop based on an
anonymous caller’s information regarding
the defendant’s erratic driving). We hold
that under the totality of circumstances,
after observing his erratic driving, the officers lawfully stopped Defendant based
on the traffic offenses they observed and
to investigate whether he was impaired
and a danger on the road.
{16} Defendant’s attempt to negate
reasonable suspicion by arguing that the
officers acted under a mistake of law in
regard to the traffic offenses for which
he was stopped is of no avail. See Hubble,
2009-NMSC-014, ¶ 22 (clarifying the
distinction between a mistake of law and
a mistake of fact). First, this argument
ignores that Officer Gonzales stopped
Defendant for reasons in addition to
drifting over lane markers. The officer
believed that Defendant may have been
impaired. And the officer had concerns
about Defendant’s illegal turn. Second,
we see no mistake of fact or law. It is
reasonably likely that had Defendant
been cited for violating both lane-change
and turn-related traffic offenses, he could
have been convicted of the offenses.
Third, any mistake could only have been
one of fact, not law. See id. (characterizing a mistake of fact as a “mistake about a
fact that is material to the transaction[,]”
distinguishing that from a mistake of law,
characterized as a “mistake about the
legal effect of a known fact or situation”
omitted)). Any possible mistake was
only as to whether Defendant “first ascertained” whether his drifting and then
turning could be made safely. Under the
totality of circumstances here, this would
not amount to a mistake of law. Mistakes
of fact such as this do not negate reasonable suspicion. Id. ¶¶ 31-32 (holding that
the officer did not make any mistake, but
even if he did, the mistake was one of
fact—determining whether the relative
positions of vehicles and their direction
of travel constituted a scenario where he
may have been affected by the defendant’s
movement—and that “any mistakes regarding these factual judgments would
be classified as mistakes of fact and not
mistakes of law”).
Speedy Trial and Jury Trial Issues
{17} “A plea agreement is a unique form
of contract the terms of which must be
interpreted, understood, and approved
by the trial court.” State v. Mares, 1994NMSC-123, ¶ 12, 119 N.M. 48, 888 P.2d
930. A plea of guilty made voluntarily,
“after advice of counsel and with full
understanding of the consequences,
waives objections to prior defects in the
proceedings and also operates as a waiver
of statutory or constitutional rights, including the right to appeal.” State v. Hodge,
1994-NMSC-087, ¶ 14, 118 N.M. 410,
882 P.2d 1. “Entry of a conditional plea is
contingent upon approval of the court and
consent of the prosecution.” Id. ¶ 20. While
this Court might pardon some informalities of a conditional plea, we still require
the defendant to “express[] an intention
to preserve a particular pretrial issue for
appeal that neither the government nor
the district court opposed[.]” Id. ¶¶ 21,
27 (internal quotation marks and citation
omitted).
{18} The conditional plea and disposition agreement Defendant signed reserved one particular pretrial issue only
for appeal, namely, the denial of his motion to suppress. Yet the court, apparently
sua sponte, broadened the issues that Defendant could raise on appeal to an extent
equaling what Defendant could raise on
appeal after a jury trial and conviction.
With no explanation in the record, we
can only assume that the district court
added the carte blanche conditional appeal right language to the judgment and
sentence without any discussion with or
agreement of the State. We can only assume that the district court inadvertently
added the carte blanche appeal language.
We fault the prosecution for not catching this addition after the sentence was
entered. In its answer brief, the State does
not say head-on that it did not agree to
any change in the conditional plea agreement. The State appears to suggest that
it did not agree to any expansion of the
conditional plea and right to appeal in its
unsupported representation to this Court
that “[t]he prosecution and the district
court were not allowed the opportunity to
reject [the] material change in the conditions of the conditional plea.” We could
remand for further proceedings in regard
to the district court’s intent and authority
to change the plea agreement language in
an attempt to uncover why the prosecution did not catch and seek to have the
addition corrected. We choose not to go
that route.
{19} Defendant very clearly did not reserve in his conditional plea agreement a
right to appeal based on speedy or jury trial
Advance Opinions
right violations. He expressly waived any
jury trial right. He expressly gave up any
relief that he had attempted or could have
attempted through motion. This covered
his motion for a jury trial and his motion
to dismiss based on the conduct of the
prosecution leading to an asserted speedy
trial violation. We agree with the State that
Defendant should not be permitted to raise
the additional issues on appeal. We therefore reject those appellate contentions.
CONCLUSION
{20} We affirm Defendant’s conviction.
The court did not err in denying Defendant’s motion to suppress. Defendant’s
speedy and jury trial arguments are neither
viable nor meritorious, and there existed
no error as to those claims.
WE CONCUR:
LINDA M. VANZI, Judge
35
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(505) 988-2826 • [email protected]
SETTLE YOUR FAMILY
LAW CASE!
Martha Kaser, JD, LISW
• A highly trained, results oriented settlement
facilitator
• Handling simple to highly complex financial and custody matters
• Over 30 years experience litigating and facilitating family law cases
• Accepting cases statewide in New Mexico
Call today to reserve your settlement date
NEW MEXICO LEGAL GROUP, PC
505-843-7303 • www.newmexicolegalgroup.com
40
Visit the State Bar of
New Mexico’s website
www.nmbar.org
Associate Attorneys
MEDIATION AND SETTLEMENT FACILITATION SERVICES
Traci J. Wolf • Bryan T. Fox • Melanie J. Rhodes • Christen E. Hagemann
Amy B. Bailey • Kimberly L. Padilla • Randy W. Powers, Jr. • Camille A. Pedrick
88 years of combined experience in successfully resolving disputes
in a broad range of legal areas. Reasonable flat fee rates.
(505) 268-7000
E-mail: [email protected]
Classified
Positions
Assistant City Attorney
The City of Rio Rancho is accepting applications for the position of Assistant City Attorney. Applicants must be admitted to the
New Mexico Bar and have excellent written
and oral communication skills. Experience
in one or more of the following areas sought:
municipal law, civil litigation, land use law, and
contracts; emphasis on labor and employment
law preferred. May also involve misdemeanor
prosecution in municipal and district court,
and presentation at public meetings of the city’s
governing body, boards and commissions.
Salary DOQ Annual Minimum $58,242.00
to Annual Mid-Point $72,802.00. For details
and to apply, visit www.ci.rio-rancho.nm.us
and click the Employment link. M/F/ EOE.
Pueblo of Laguna – Associate Judge
The Pueblo of Laguna is seeking applicants
for a full time Associate Judge. Under general
direction of Presiding Judge, hears, tries, and
determines outcome of a variety of domestic,
civil, criminal, juvenile, and probate cases.
Applicant must be a member in good standing with the NM State Bar. For more specific
information, including application instructions, go to www.lagunapueblo-nsn.gov and
click on Employment Opportunities.
Indian Law Attorney
Johnson Barnhouse & Keegan LLP is seeking
an associate attorney with 4+ years’ experience to work in its Albuquerque, New Mexico
office. Applicants must be licensed in a state
jurisdiction, preferably in New Mexico or
California. Position requires experience in
federal Indian law, tribal law, commercial
transactions and litigation. Applicants must
be motivated, hard-working, able to work
independently and as part of a team, and must
be passionate about serving Native American
individuals, tribes, pueblos and their business
enterprises. To apply, submit a cover letter,
resume, three references and a writing sample
to [email protected].
Lawyer-Advanced
The New Mexico Taxation and Revenue
Department (TRD), Legal Services Bureau
seeks a Lawyer-Advanced to assist TRD in
the administration of New Mexico’s state tax
and related laws. Attorney will provide legal
representation and counsel to the Department, including administrative and judicial
proceedings to related state tax, motor vehicle
law, and other litigation. Draft and review
closing agreements, tax rulings and regulations. Provide legal advice regarding all tax
programs and motor vehicle laws that the
Department administers. Draft and review
contracts, handle wage garnishments, and
review public requests. Attorney will present cases to the hearing officers, and district
and appellant court judges. Attorney will
be directed by and report to the TRD Chief
Legal Counsel. Position is located in Santa
Fe. Position is a pay band 80, hourly salary
range of $20.93/hr. to $37.20/hr. ($43,534.40/
yr. to $77,376.00/yr.) Some travel may be
required. The classified position requires
the following qualifications: Law degree (JD)
from an accredited law school, admission
to the State Bar of New Mexico pursuant
to 36-2-27 (NMSA 1978) or eligibility for a
public employees limited license pursuant
to Rule 15-301.1 (NMRA), and a minimum
of five (5) years of legal practice. As a TRD
employee, attorney must be current with all
tax reporting and payment, and have a valid
NM driver’s license. For more information
and to submit your application please go to
the State Personnel website at www.SPO.state.
nm.us. Recruitment will be ongoing until
position is filled.
Experienced Attorney
Chappell Law Firm is seeking an experienced
attorney to work in its commercial transaction and litigation practice. Compensation
and position (including possible shareholder
status) will be considered based upon experience and other factors. Please submit resumes
and other requirements to Gwenn Beaver at
[email protected]. All information
will be held in strictest confidence.
Kemp Smith LLP is an established law firm
with 40 lawyers, 32 at its headquarters in
El Paso, Texas, 6 lawyers in Austin, Texas,
and currently 1 lawyer in Las Cruces, New
Mexico. We are seeking 2 candidates; 1 with
5 to 6 years experience in doing transactional
work, including Wills and Estates and 1 candidate with 5 to 6 years experience in General
Insurance Defense to work in our Las Cruces
office. Must have good writing and presentation skills. We offer a comprehensive benefit
package and competitive salary. For confidential consideration, please apply with salary requirements online at www.kempsmith.
com, e-mail [email protected], or fax to
KMIL at (915) 546-5360. EEOE
New Mexico Association of Counties
Litigation Attorney
Non-profit local governmental association
with offices in Santa Fe and Albuquerque is
seeking in-house litigation attorney for new
legal bureau. Successful candidate shall have
significant experience litigating civil rights
matters as lead counsel. Experience representing local government preferred. Will be
responsible for defense of civil rights matters
and for providing counsel to county members
on employment and other legal issues. Some
travel required. Excellent benefits package
and working environment. Email resume,
writing sample and references by June 13,
2014 to [email protected].
Family Law Attorney-Full Time
The Law Office of Dorene A. Kuffer, P.C. is a
growing, established Albuquerque family law
firm seeking an attorney with a true passion
for practicing family law. Maybe you’ve been
a solo practitioner and want to focus more
on practicing law vs. managing the business
side? Perhaps you’re working in a firm that
has limited incentives or where you have no
voice? Or you practice family law in another
state and would like to relocate to the Land
of Enchantment? You’ll need at least 5 years’
experience specifically practicing family
law and the ability to work full-time. Visit
www.kufferlaw.com to learn more about our
practice. And please call Susan Dougherty
at 505-924-1000 to discuss the possibilities
in confidence or email [email protected].
Attorneys
Attorneys needed for 2 openings. 1 requires
litigation exp. for trials, court hearings, mediations, discovery...2nd attorney, 0-5 yrs exp.
Must be able to multi-task in a high volume,
fast paced reputable, growing law firm rep.
numerous nationwide banking clients. Nice
office in the Journal Center area. Join our
successful and expanding firm! Good benefits
(hol, vac, sick, health, dent, retir. & more).
Submit in conf. cover letter, resume, sal hist
& req to [email protected]
41
Staff Attorney
The American Civil Liberties Union (ACLU)
of New Mexico seeks a full-time Staff Attorney, based in Albuquerque. This position
carries out litigation and related activities in
support of the ACLU’s mission. For the full
position announcement and how to apply:
w w w.aclu-nm.org/job-announcementstaff-attorney/2014/05/. Position is open
until filled, preference given to applications
received by June 9, 2014.
Estate Planning and
Probate Attorney:
5 years + experience with Elder Care, Estate
Planning and Probate issues, licensed and
in good standing in New Mexico. Please
send resume to [email protected] or fax
to 866.518.1090
Attorney
The Harvey & Foote Law Firm, a plaintiff’s
firm specializing in prosecuting cases involving nursing home abuse and neglect, is
hiring an attorney. The applicant needs to
have excellent research and writing abilities,
be detail-oriented and proactive, and have
excellent computer and communication
skills. Prior litigation experience is helpful,
but not required. This is a full time position,
although half- or three-quarter time may
also be considered. Please send your resume
to [email protected].
Entry Level Position Available
The Fourth Judicial District Attorney’s Office
in Las Vegas, New Mexico has immediate
openings for an entry level attorney. This
may be the opportunity you’ve been waiting
for. Las Vegas is a small, but historic and artinfluenced community. Please forward your
letter of interest and resume to Richard D.
Flores, District Attorney, P.O. Box 2025, Las
Vegas, New Mexico 87701; e-mail: rflores@
da.state.nm.us.
Bankruptcy Specialist
(Albuquerque)
Compensation: salary to commensurate upon
experience. Weststar Mortgage Corporation
is seeking an individual to handle all mortgages that are currently in Bankruptcy and
the Administrative work in the Post Foreclosure Claims Dept. Multi-tasking and working
well under pressure is a must.
Bookkeeper
Part time for real estate attorney on Jefferson
NE. Knowledge of TimeSlips and Sage 50
preferred. 888-8888
42
Contract Paralegal
Wanted Contract Paralegal with extensive
NM Personal Injury trial experience. Send
resume case history Morris Law Firm 901
Lomas Blvd. NW Albuquerque, NM 87102
Legal Assistant
Allen, Shepherd, Lewis & Syra, P.A. is seeking
a Legal Assistant. Duties include administrative tasks related to legal cases. Must have a
high school diploma with three to five years
of directly related experience working in a
defense, civil litigation law firm or similar law
practice. Associates degree and/or certificate
related to legal administration work is preferred. Must be proficient in Microsoft Office,
computerized databases, related software and
the ability to learn new, complex programs.
Experience with TimeMatters is a plus. Must
have an understanding of legal documents
and knowledge of court processes, including
the ability to draft documents and follow
them through the process. Seeking a highly
skilled, professional, thoughtful, organized
and motivated individual with attention to
detail who can work in a demanding role.
If you believe you are qualified and have an
interest, please send resume, cover letter and
salary demands to [email protected].
Legal Secretary/Assistant
Well established commercial litigation firm
seeks to replace valued employee who is to
retire soon. Candidate must have minimum
of 3 years’ experience as legal secretary in
civil litigation/trial work and possess exceptional word processing and computer skills.
Must know court rules and be proficient in
e-filing in local and federal courts. Qualified applicants send your resume to Kay@
OnSiteHiring.com
Briefs, Research, Appeals—
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Office Space
620 Roma N.W.
620 ROMA N.W., located within two blocks
of the three downtown courts. Rent includes
utilities (except phones), fax, internet, janitorial service, copy machine, etc. All of this is
included in the rent of $550 per month. Up
to three offices are available to choose from
and you’ll also have access to five conference rooms, a large waiting area, access to
full library, receptionist to greet clients and
take calls. Call 243-3751 for appointment to
inspect.
Office Space
One office plus secretarial space for rent
walking distance to the Courts $800.. 1019
2nd Street NW. 244-0530
Downtown Offices
One or two offices available for rent, including secretarial areas, at 2040 4th St. NW (I-40
& 4th St.), ABQ. Rent includes receptionist,
use of conference rooms, high speed internet,
phone system, free parking for staff and clients, use of copy machine, fax machine and
employee lounge. Contact Jerry or George at
505-243-6721 or [email protected].
Unique Office Space Available
Real Estate Paralegal
Two offices in Law Office Suite. Class A
Building on Jefferson, north of Masthead.
Includes use of conference room, break room
and reception area. Furnished office $1,100;
Unfurnished office $700. Call 888-8888.
Paralegal or Legal Assistant
3 Large Offices Available To Rent!
Part time for real estate attorney on Jefferson
NE. Knowledge of document preparation and
closings preferred. 888-8888
Paralegal or legal assistant needed to replace
assistant leaving our office for law school!
Must be bright, consistent, detail-oriented
and team players, with excellent writing and
organizational skills. Full-time position, M-F
8 to 5. See our Mission Statement at www.
ParnallLaw.com. Email cover letter, resume,
references and grade transcripts to Sandra@
ParnallLaw.com.
Services
Contract Paralegal
Experienced paralegal with strong background in civil litigation available for
freelance work. Excellent references. [email protected]
BEST LOCATION IN TOWN, 1 Block or
less to all courthouses. Up to 4 large offices
available, secretary space,library, security,
receptionist, cleaning, parking, phone, etc.
included. Call Office Manager at 247-2972.
Miscellaneous
DWI Prevention
American Limousine
www.NewMexicoLimos.com
Call 505 242-2229
2014 Annual Meeting – Bench and Bar Conference
Hyatt Regency Tamaya Resort and Spa • July 17-19, 2014
n!
i
g
e
b
n
u
f
Let the
g
n
i
n
e
p
O
n
o
i
t
p
e
c
e
R
d
es B a
u
l
B
c
i
V
c
i
with Myst
n
Mingle and network with friends, colleagues, Board of Bar Commissioners
and exhibitors of legal-related products and services. Enjoy hors d’oeuvres
and be entertained by the Mystic Vic Blues Band. Cash bar provided.
Mystic Vic plays up-tempo blues and rock n’ roll. They may be the longest running blues band in
Albuquerque, having formed in the early 1990s (but they are still younger than the Rolling Stones).
The band’s hallmarks are its tight arrangements and ensemble playing, honed by years of performing
individually and together as a band. Their influences range from Muddy Waters and Junior Wells to ZZ
Top and Los Lobos. Mystic Vic’s infectious music will put a grin on your face and a glide in your stride.
Mystic Vic is Tom Brahl, drums; Scott Blackwell, guitar and vocals; Chaz Jetty, guitar and vocals; Larry
Wells, bass and vocals; and Jack Brant, blues harp and vocals.
Thursday, July 17, 6-9 p.m.
Tamaya Ballroom
To register, go to www.nmbar.org.
43
2014 Annual Meeting – Bench and Bar Conference
Justice at Stake
Sponsorship Opportunities
Hyatt Regency Tamaya Resort and Spa
July 17-19, 2014
For information on sponsorship opportunities,
Annual Meeting Program Guide advertising,
or exhibit space contact Marcia Ulibarri
at 505-797-6058 or [email protected]

5/28 - State Bar

Transcription

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